Monday, August 15, 2011

Appeals Court Decision in Monteiro. Published under a special rule communicating panel’s lack of respect for Cambridge’s appeal of the matter.

Monteiro decision: The following is taken verbatim from the Appeals Court posting.

This is a “rule 1:28" posting. I understand from the Cambridge Day report that this method of posting was used because the Appeals Court panel did not find the case worthy of a formal opinion. It was that one sided.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.



The plaintiff, Malvina Monteiro, brought a G. L. c. 151B action in Superior Court against her employer, the city of Cambridge (city), alleging discrimination based on race and national origin, as well as retaliation. A jury found in her favor on her retaliation claim and awarded over $4.5 million in compensatory and punitive damages. In addition, she was awarded pre- and postjudgment interest, attorney's fees, and costs, for a total award of roughly $6.7 million. The city appeals, arguing (1) the Superior Court lacked subject matter jurisdiction, (2) erroneous jury instructions, (3) erroneous admission of comparator evidence, (4) improper closing argument, (5) a variety of errors related to the jury's damages awards, and (6) erroneous computation of postjudgment interest. We affirm.

We forego a complete recitation of the facts as they developed over the course of more than ten years of litigation, including two jury trials. We recite the facts as necessary to explain our decision.

1. Jurisdiction. The city, citing, inter alia, Everett v. 357 Corp., 453 Mass. 585 (2009), claims that the Superior Court lacked subject matter jurisdiction of Monteiro's retaliatory termination claim because the claim did not 'relate back' to Monteiro's original complaint with the Massachusetts Commission Against Discrimination (MCAD) and Monteiro never filed a separate MCAD retaliation complaint. We disagree.

The Superior Court has no jurisdiction to entertain G. L. c. 151B claims without a predicate MCAD complaint. Id. at 600. A retaliation claim does not require an additional MCAD complaint when it is ''reasonably related to and grows out of' [the] discrimination [originally] complained of to [the] agency.' Id. at 603, quoting from Clockedile v. New Hampshire Dept. of Corrections, 245 F.3d 1, 5-6 (1st Cir. 2001).

Monteiro filed an MCAD complaint in September, 1998, alleging, inter alia, retaliation for raising concerns about discrimination. When Monteiro filed her original complaint in Superior Court in 2000, she alleged ongoing retaliation against her because she engaged in activities protected by G. L. c. 151B, § 4, the statute which classifies, inter alia, the filing of an MCAD complaint as a protected activity. 'In these circumstances, she was not required to return to the MCAD to file a second complaint.' Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 388 n.19 (2005). Accordingly, the 2004 amended Superior Court complaint alleged only that the ongoing retaliation alleged in the original complaint also included her 2003 termination. [FN1] Because Monteiro alleged retaliatory termination reasonably related to and growing out of her original MCAD complaint and allegations of ongoing retaliation, she alleged no new retaliation claim requiring that she return to the MCAD. [FN2] The Superior Court had jurisdiction over Monteiro's retaliatory termination claim. [FN3]

2. Jury instructions. The city makes two interrelated arguments about the judge's instructions on the definition of 'adverse employment action': (1) the judge erroneously and prejudicially instructed along the lines of Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), instead of MacCormack v. Boston Edison Co., 423 Mass. 652 (1996); and (2) the judge's application of the more lenient Burlington standard erroneously permitted the jury to infer a causal link between Monteiro's 1998 MCAD complaint and her termination in 2003 based on insufficiently serious ongoing retaliation between 1998 and 2003. We are not persuaded.

First, assuming without deciding that the judge erroneously instructed, there was no prejudice. The city concedes, as it must, that Monteiro's termination constituted an 'adverse employment action' under the stricter MacCormack standard. And, in any event, irrespective of whether the Burlington standard or the MacCormack standard was applied, the jury did not award any damages based on the intervening retaliatory actions. The judge's instructions therefore caused the city no prejudice and present no basis for disturbing the judgment. See Dahms v. Cognex Corp., 455 Mass. 190, 207 (2009).

Second, the city essentially claims that, in order to demonstrate the requisite causal link between a termination long postdating protected activity and the protected activity based on an intervening 'series of retaliatory measures,' Mole v. University of Mass., 442 Mass. 582, 596 (2004), each such retaliatory measure must itself constitute an individually actionable 'adverse employment action.' The city has cited no authority imposing such a restriction, and we decline to create a new rule of law imposing one here. [FN4] Moreover, the city neither requested the judge to instruct that only a series of independently actionable adverse employment actions could constitute a 'series of retaliatory measures' nor objected to the instruction as given. The evidence, viewed in the light most favorable to Monteiro, enabled a reasonable juror to conclude, based on a series of intervening retaliatory measures not necessarily individually actionable, that a causal relationship existed between Monteiro's MCAD complaint and her termination. There was no error.

3. Comparator evidence. The city, citing Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122 (1997), argues that the judge abused her discretion in admitting circumstantial evidence of the city's treatment of similarly situated individuals. The city also asserts that it was clear error for the judge to deny its motion for a mistrial based on the admission of this evidence. There was no error. [FN5]

'[T]he great deference appellate courts accord the rulings of trial judges in [the admission of evidence is] too well established to require citation.' Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 485 (2000). The judge, acting well within her discretion, could conclude that Monteiro's comparator evidence was 'roughly equivalent' and presented, if not '[e]xact correla[ries],' 'fair congeners.' [FN6] See Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Commn. Against Discrimination, 449 Mass. 675, 682 (2007), quoting from Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989). The decision to admit the complained-of testimony was not an abuse of discretion. [FN7] Because the decision to admit this evidence was not an abuse of discretion, it follows that the judge did not commit clear error in denying the city's motion for a mistrial.

4. Closing argument. The city argues that the judge abused her discretion in denying its motion for a new trial based, inter alia, on Monteiro's counsel's closing argument. We agree with the judge that the references to the existence of the term 'flex-time' prior to March, 1998, and to a flex-time committee were based on fair inferences from the city manager's testimony and exhibits introduced during his testimony. Notwithstanding the propriety of this comment, the city objected during the closing argument. The judge immediately responded to the objection with a thorough, appropriate curative instruction. Accordingly, the argument that this comment unfairly prejudiced the city is wholly without merit. The judge did not abuse her discretion in denying the city's motion for a new trial on this basis. [FN8]

5. Damages. a. Compensatory damages. 'An excessive award of damages is grounds for a new trial. . . . The allowance of a new trial is within the judge's discretion, and an appellate court will not find an abuse of discretion . . . unless the damages awarded were greatly disproportionate to the injury proved or represent a miscarriage of justice.' Commonwealth v. Johnson Insulation, 425 Mass. 650, 667-668 (1997). On this record, we cannot conclude that the damages awarded were so disproportionate to the injury caused as to make denial of the city's new trial motion an abuse of the judge's discretion, let alone a miscarriage of justice. There was no error.

b. Punitive damages. The city argues that (1) the judge erroneously permitted the jury to consider awarding punitive damages, and (2) the judge abused her discretion in denying the city's motion for new trial or remittitur on the basis of improper and excessive punitive damages. We are not persuaded.

'Under the existing standard, '[p]unitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." Haddad v. Wal-Mart Stores, Inc. (No. 1), 455 Mass. 91, 107 (2009), quoting from Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 17a (1998). 'An award of punitive damages requires a determination of the defendant's intent or state of mind, determinations properly left to the jury, whose verdict should be sustained if it could ' reasonably have [been] arrived at . . . from any . . . evidence . . . presented." Ibid., quoting from Dartt, supra at 16.

We agree with the judge that Monteiro presented ample evidence from which a reasonable juror could find outrageous conduct. [FN9] She therefore appropriately allowed the question to go to the jury. [FN10] Because the jury's award could reasonably have been arrived at from the evidence presented, the judge appropriately denied the city's new trial motion and affirmed the damages award. There was no error. [FN11]

6. Postjudgment interest. The city argues that the judge erroneously permitted postjudgment interest to run beginning June 12, 2008, when Monteiro requested separate and final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974). The city argues that postjudgment interest should run starting June 2, 2009. We agree with the judge.
The June 4, 2010, corrected amended final judgment on jury verdict, which, pursuant to G. L. c. 235, § 4, properly entered separate and final judgment nunc pro tunc to June 12, 2008, forecloses the city's argument. The city has not challenged the propriety of the entry of separate and final judgment nunc pro tunc to June 12, 2008, and we discern no abuse of the judge's discretion in entering that nunc pro tunc judgment. [FN12] See Santos v. Chrysler Corp., 430 Mass. 198, 216-217 (1999). The city's chosen date for the commencement of postjudgment interest therefore lacks legal and factual bases. [FN13] There was no error.

7. Conclusion. We have no occasion to disturb the judgment. Monteiro has requested, and is entitled to appellate attorney's fees and costs. She may submit a petition for fees and costs, together with supporting materials, within fourteen days of the date of the rescript of this decision. The city shall have fourteen days thereafter to respond. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).

Corrected amended final judgment entered June 4, 2010, affirmed.

By the Court (Mills, Sikora & Rubin, JJ.),

Entered: August 15, 2011.
FN1. Everett is readily distinguishable because the plaintiff there made no retaliation claim. Everett, 453 Mass. at 605 n.28.

FN2. The city argues that decisions on various pretrial motions, which decisions did not reference Monteiro's retaliation claim, prove that it was inoperative prior to the 2004 amendment. Allegations and claims in a complaint remain operative, even after amendment, until waived or abandoned. See National Constr. Co. v. National Grange Mut. Ins. Co., 10 Mass. App. Ct. 38, 40 (1980), and cases cited. Because the city does not argue that Monteiro waived or abandoned this claim, and because the record contains no evidence that she did so, we are not persuaded.

In addition, the judge's decision awarding prejudgment interest from January 5, 2005 (the date of the amended complaint), rather than from September, 2000 (the date of the original complaint filed in Superior Court), as requested in Monteiro's posttrial motion, is not to the contrary. In its answers to special verdict questions, the jury determined that the city retaliated against Monteiro both by terminating her employment and through other adverse employment actions, but that she suffered financial damages only as a result of the termination decision. Compare DeRoche v. Massachusetts Commn.

Against Discrimination, 447 Mass. 1, 16 (2006) (in MCAD action, where damages awarded on retaliation claim only, prejudgment interest appropriately awarded from date retaliation commenced, rather than from earlier date when complaint was first filed with MCAD).

FN3. To the extent the city argues that the judge should not have allowed Monteiro's 2004 motion to amend her complaint, as suggested at various points in the city's brief and reply brief, we discern no abuse of the judge's discretion to permit the amendment. See Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 864 (1991).

FN4. We note that, in the context of sexual harassment claims under G. L. c. 151B, the Supreme Judicial Court has expressly rejected such a restriction. See Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. 521, 532-533 (2001) ( 'Incidents of sexual harassment serious enough to create a work environment permeated by abuse typically accumulate over time, and many incidents in isolation may not be serious enough for complaint').

FN5. Because there was no error, we do not address the city's argument that, in the absence of this evidence, the jury could not infer retaliatory animus in the city's 2003 decision to terminate Monteiro. Even were there error, this claim would fail because we have already concluded that the jury could have inferred retaliatory animus based on the series of retaliatory measures which took place between Monteiro's 1998 MCAD complaint and 2003 termination.

FN6. We note that the city has not pointed to any discrimination or retaliation case in which an appellate court

reversed a judge's decision to admit comparator evidence at trial because the comparators lacked sufficient similarity.

FN7. Moreover, the judge's instructions, drawn nearly verbatim from Matthews, mitigated any claimed prejudice occasioned by the admission of this testimony.

FN8. We have reviewed the balance of the closing argument and conclude that it presents no basis for questioning the judge's exercise of her discretion to deny the new trial motion.

Specifically, to the extent the city argues that it was entitled to a new trial based on the judge's stray comment that one of Monteiro's attorneys had been her ethics student, we are not persuaded. To the extent the city argues that it was also entitled to a new trial based on Monteiro's counsel's statement that Monteiro 'lost' her pension, we read the statement in context as referring to Monteiro not accruing pension benefits in her current employment and losing the opportunity to reach twenty years of payment into the city's pension system. These assertions have ample record support.

FN9. The city argues that we should use the Haddad court's reformulation of this standard. See 455 Mass. at 110-111. Because our result would be the same under both standards, we need not address the issue.

FN10. As the judge aptly noted in her thoughtful consolidated memorandum on several of the city's posttrial motions, the ambiguous result of the first jury trial presents no basis for questioning the basis of the subsequent jury verdict.

FN11. To the extent the city argues that the judge should have allowed the motion for new trial in order to instruct a different jury on the new standard enunciated in Haddad because, by reason of Monteiro's pending motion pursuant to Mass.R.Civ.P. 59, 365 Mass. 827 (1974), this case had not 'gone to judgment,' 455 Mass. at 110, by the date of the Haddad decision, we are not persuaded. The instructions here substantially conformed to those which the Haddad court determined were without error. See id. at 109-110. Moreover, the city claims no error in the instructions.

FN12. To the extent the city argues that the judge improperly entered separate and final judgment without making the requisite findings, as suggested by footnotes 51 and 53 of its brief, we do not address the argument. 'Arguments relegated to a footnote do not rise to the level of appellate argument.' Commonwealth v. Lydon, 413 Mass. 309, 317-318 (1992), citing Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

FN13. To the extent the city argues that the commencement of postjudgment interest on June 12, 2008, is improper because of the delay incurred following Monteiro's rule 59 motion to clarify, alter, or amend the judgment, the city has cited no authority in support of its claim of error. Accordingly, we do not address it. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). We note that the city had the opportunity to take steps to obviate the running of postjudgment interest during the pendency of posttrial motions, such as payment into an escrow account or other alternative arrangements. The city thus acted at its own peril by neglecting to pursue alternatives.