Destroy Alewife and Save Silver Maple? Bad idea.

Bob reports:

I have been remiss in reporting published letters.

The following letter was printed in the Cambridge Chronicle on April 9, 2009. I had previously commented in these pages that I thought the Chronicle had decided not to print the letter to which I was responding.

They printed. I responded. The Chronicle published.

***********

Well meaning folks wrote a letter opposing destruction of the PRIVATELY OWNED Silver Maple Forest but supporting destruction of the PUBLICLY OWNED Alewife Reservation a hundred feet or so from Silver Maple.

A cynical reader could react that the writers’ support of environmental destruction a few feet from Silver Maple which they want protected proves the writers to be opponents of affordable housing.

Such a reaction does not reflect the singular treatment good people are subjected to when they try to protect the environment in or near the City of Cambridge.

You see, Cambridge’s extremely destructive City Manager has a massive organization which descends on good people who try to protect the environment. Techniques frequently include deceptive statements, lies, misstatements, and key omissions.

It is quite certain that the operatives did not tell these decent people a number of things.

First, there is a very reasonable alternative to destruction of the Alewife reservation. Destruction of the Alewife Reservation is for flood storage. The reasonable place for the flood storage is under the large parking lot about 500 feet south of Alewife, just north of the railroad tracks. That owner is considering developing.

Secondly, the proposed destruction comes from a government which is flat out reprehensible on environmental issues.

The support of destruction of the Alewife Reservation by these good people has a qualifier based on a third common game. The operatives commonly talk about due process and lovely reviews. They do not tell who the “reviewers” are.

The letter mentions some sort of committee. The good people who wrote the letter would never be told that the committee is appointed by the key destroyer, and they would not be told the dangers to people appointed by the Cambridge City Manager who stand up to the Cambridge City Manager.

A jury recently considered the treatment by the Cambridge City Manager of a black woman department head who had the nerve to file a civil rights action. Malvina Monteiro, according to the jury, had her life destroyed in retaliation. The jury awarded $1.1 million real damages and $3.5 million penal damages. The judge is considering the verdict and hopefully will change it to firing the city manager without pension.

But we have decent people fooled into an irresponsible statement.

I have sympathy for those good people and for saving the environment which is our mutual concern. I have great lack of respect for the bad people who fooled these good people into a silly, destructive statement.

News Reports: Court calls Healy “Reprehensible"

Bob reports:

1. Boston Herald / AP.
2. Cambridge Chronicle.
3. Boston Globe.
4. My report.

1. Boston Herald / AP.

The following is from Roy Bercaw, April 28, 2009:

Boston Herald reports AP story saying Court says Cambridge City
Manager "reprehensible."

http://bostonherald.com/news/regional/view/2009_04_28_Judge_upholds__4_5_verdict_against_Cambridge/srvc=home&position=recent

2. Cambridge Chronicle.

Posted Apr 27, 2009 @ 05:18 PM, Last update Apr 28, 2009 @ 11:30 AM, at http://www.wickedlocal.com/cambridge/news/x718272795/Judge-Cambridge-must-pay-city-worker-wronged-in-discrimination-case.

I presume this report will be printed on Thursday.

The Chronicle has an excellent quote from the judge, and reports that the city paid $1.6 million in legal bills through July 10, 2008.

3. Boston Globe.

A friend told me about the Globe report as I was relaxing in an Au Bon Pain near Harvard Square. It was printed on pages B1 and B15 of today’s, April 28, 2009, edition. The on line report is at http://www.boston.com/news/local/massachusetts/articles/2009/04/28/cambridge_assessed_45m_in_bias_suit/.

The Globe quoted several statements of the judge. It felt like I was reading my materials.

They quoted the city’s attorney describing the judge’s description of Healy as “inappropriate” and “unfortunate.”

4. My report.

I passed on the word to a number of sources over the past several days.

For the record (so that the Globe does not consider me plagiarizing them, at minimum), I distributed the following collection of quotes from the judge’s opinion to perhaps a hundred Cambridge residents on April 17, 2009:

a. Not only are municipalities subject to punitive damages in the same regard as other defendants, but deliberate violations of G. L. c. 151B, by those charged with the public duty to enforce the law equally, present a heightened degree of reprehensibility. [citations omitted]. Healy, and the City of Cambridge, are subject to increased scrutiny for their retaliatory actions, particularly where Healy took this action in capacity as a high-ranking public official. [citation omitted]. The city of Cambridge does not get a free pass to unlawfully retaliate against its employees and avoid the imposition of punitive damages simply by virtue of its status as a taxpayer funded municipality; to the contrary, the city is held to a higher standard of reprehensibility.

b. First, the jury had adequate evidence before it to find Healy s conduct reprehensible. Healy indicated, in his testimony, that he was aware of the legal implications of retaliation, and that the plaintiff s discrimination claim was constantly on his mind. Such conscious disregard for the law of retaliation would provide relevant support for an argument that strong medicine is required to cure the defendant s disrespect for the law.

c. . . . Healy, as city manager, is charged with the public duty to enforce the law equally, and as a result, his conduct is subject to a heightened degree of reprehensibility.

d. Healy simply was not credible, and the jury was entitled to form this opinion based on his demeanor on the stand and his inconsistent and incoherent testimony.

Judge issues decision denying Cambridge's Post Trial Motions in Monteiro v. City of Cambridge

Bob reports:

(I) EDITOR’S INTRODUCTION
(II) COURT DECISION AND ORDER
Introduction
I. Judgment Notwithstanding the Verdict
A. Standard of Review
B. Evidence of Retaliation
1. Comparative Evidence
2. Temporal Proximity
3. Other Circumstantial Evidence
C. Award of Punitive Damages
II. Defendant s Motion for a New Trial, or, in the Alternative, For Remittitur
A. Standard of Review
B. Excessive Damages
1. Compensatory Damages
2. Emotional Distress Damages
3. Punitive Damages
C. Juror Conduct
D. References to Race
E. Plaintiff s Counsel s Closing Arguments
F. Circumstantial Evidence That Flex-Time Memo Was Fabricated
G. References to Plaintiff s Background and Life Experience
H. Cross-Examination of Healy
I. Unusual Level of Jocularity and Humor in Courtroom
J. Court Bias
K. Verdict Against the Weight of Evidence
III. DEFENDANT S OTHER MOTIONS
ORDER

(I) EDITOR’S INTRODUCTION

Friday, April 24, 2009, Judge Bonnie H. MacLeod-Mancuso filed her decision in the post trial motions with regard to Malvina Monteiro v. City of Cambridge, Middlesex Superior Court Docket MICV2001-02737.

The jury’s verdict was that the Cambridge City Manager destroyed the life of the plaintiff in retaliation for her filing a civil rights complaint. The jury awarded $1.1 million real damages and $3.5 million penal damages.

While the judge was considering the post trial motions, the Cambridge City Council rehired the city manager for an additional three years.

Basic summary is that the Cambridge city government has been told that it is reprehensible and that decent human beings have a right to so indicate with powerful actions.

I initially filed this report on this blog the day after the decision came down. My filing was based on a direct copy of the judge’s decision on the court docket. Two days later, I amended my blog filing. The court’s docket is not programmed compatible with normal writing. The court’s docket deletes all paragraph marks. I inserted my interpretation of paragraphing to make this report readable.

I repeat: ALL PARAGRAPHING HAS BEEN INSERTED BY ME.

On reviewing the decision, it is clear that a number of other oddities exist as a result of the programming of the court docket. Correcting these other oddities, however, would involve actual changes to the text. This would go beyond what I consider proper editing.

I have amended this report on May 11, 2009 to add an outline for the benefit of the reader. The opinion has an introduction which is not specifically identified and which lacks numbering. The introduction quotes special questions answered by the jury. The decision then follows with the above quoted outline structure. It concludes with the order of the court.

After I published this paragraphed version of the opinion, the Cambridge Chronicle added a faxed copy of the actual decision to its on line version of its April 30, 2009 report. I have not since been able to find either on the website. In any case, I have stated that the paragraphing is solely my work. I am happy with the paragraphing as it is. My paragraphing makes the opinion readable and probably makes the opinion more readable than is the actual opinion.

I would suggest the reader use a FIND capability to go to a desired portion of the decision.

The decision’s structure is based on the motions of the city, all of which motions are denied by the judge.

(II) COURT DECISION AND ORDER

MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANT S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT; MOTION FOR A NEW TRIAL, OR, IN THE ALTERNATIVE, REMITTITUR; MOTION TO STRIKE PLAINTIFF S MEMORANDUM IN RESPONSE TO DEFENDANT S POST-TRIAL SUBMISSION; AND MOTION TO SUPPLEMENT RECORD ON APPEAL:

The defendant City of Cambridge (the city ) moves for Judgment Notwithstanding the Verdict, or in the alternative, moves for a New Trial or a Remittitur, of the jury verdict and any judgment entered in accord with the jury verdict returned on May 23, 2008 in favor the plaintiff, Malvina Monteiro (the plaintiff ). The city also moves to strike plaintiff s memorandum in response to defendant s post-trial submission, and to supplement the record on appeal.

The case was tried before the undersigned, sitting with a jury, from May 6, 2008 through May 21, 2008.

The jury began deliberating on May 21, and returned a verdict in favor of the plaintiff on May 23.

The jury answered Special Verdict Questions, finding that:

1) the plaintiff proved that the City of Cambridge retaliated against her by terminating her employment as Executive Secretary of the Police Review and Advisory Board ( PRAB );

2) proved that she suffered retaliation, that is, materially adverse employment action(s) other than termination of employment because she pursued her legal rights in a discrimination claim against the city; and

3) proved that the conduct of the city was so extreme in nature as to warrant punitive damages. The jury awarded $962,400 in front pay, back pay, and consequential damages; $100,000 in emotional distress damages, and $3,500,000 in punitive damages.

For the following reasons, the city s motions for Judgment Notwithstanding the Verdict; New Trial, or in the alternative, Remittitur; To Strike Plaintiff s Memorandum in Response to Defendant s Supplemental Post-Trial Submission; and To Supplement the Record on Appeal, are DENIED.

I. Judgment Notwithstanding the Verdict

A. Standard of Review

Massachusetts Rule of Civil Procedure Rule 50(b) provides that a party who previously moved for a directed verdict may move for judgment notwithstanding the verdict within ten days of judgment. Mass. R. Civ. P. 50(b).

When acting on a defendant s motion for judgment notwithstanding the verdict, the judge s task, taking into account all the evidence in its aspect most favorable to the plaintiff, to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff. Tosti v. Ayik, 394 Mass. 482, 494 (1985), quoting Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass. App. Ct. 252, 254 (1983). The court will consider whether anywhere in the evidence from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the non-moving party. Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 438 (1992) (internal citations omitted). The inferences to be drawn from the evidence must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture. Id., quoting McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 706-707 n.3 (1990). It is unavailing for a defendant to argue that there was evidence warranting a contrary finding by the jury. Tosti, 394 Mass. at 494, quoting Curtiss-Wright Corp. v. Edel-Brown Tool & Die Co., 381 Mass. 1, 4 (1980).

The court may not substitute its judgment for that of the jury. Id.

If a jury could reasonably have arrived at their verdict from any of the evidence that the plaintiff presented, the verdict will be sustained. Dartt v. Browning-Ferris Indus., 497 Mass. 1, 16 (1998), quoting Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997).

B. Evidence of Retaliation

The city moves for judgment notwithstanding the verdict, contending that the plaintiff failed to prove that her employment would not have been terminated but for her prosecution of the discrimination lawsuit.

1. Comparative Evidence

The city specifically maintains that the plaintiff s comparative evidence was improperly admitted by this court, was unduly prejudicial, and represented the only evidence from which the jury could infer retaliatory animus.

Retaliation may be proved with comparative evidence of similarly situated employees. Matthews v. Ocean Spray Cranberries, 426 Mass. 122, 129 (1997). The city maintains that the comparative evidence offered by the plaintiff was improperly admitted at trial and because it was the sole evidence from which the jury could infer retaliatory animus, the jury s verdict must be aside. This court disagrees that it improperly admitted evidence of comparators, as it was relevant to show the City Manager, Healy s ( Healy ), state of mind and his overall treatment of the plaintiff as compared to other employees, about whom he received similar complaints concerning work performance and attendance. It is well settled that elevant evidence is admissible unless unduly prejudicial, and, n weighing the probative value of evidence against any prejudicial effect it might have on a jury . . . trial judges great latitude and discretion . . .. Bank v. Thermo Elemental, 451 Mass. 638, 670 (2008), quoting Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004).

The plaintiff offered evidence of five employees who were reported to Healy for violations of workplace misconduct and/or attendance.

Three comparators, Ms. Hebert, Mr. Tran, and Ms. Neighbor, were Executive Directors of the city s commissions or boards like the plaintiff. Their respective commissions complained to Mr. Healy about their attendance and other performance issues, and although Healy disciplined the employees, none were terminated for the particular misconduct.

The two other comparators, Mr. Bernais and Mr. White, were employees of the City Print Shop and City Department of Public Works, respectively. The plaintiff admitted evidence to demonstrate Healy s measured and fair approach to discipline when confronted with serious employee misconduct, which in their cases, consisted of incidents of tasteless racial actions and/or jokes on the part of these two employees.

To ensure that the jury properly considered the evidence in accordance with the law, this court gave specific instructions that they could consider the comparative evidence of employees similarly situated only if they determined that the employees were similar to the plaintiff in all relative respects.

Consistent with the law as articulated in Matthews v. Ocean Spray Cranberries, the instruction stated:

A comparison may be made between Ms. Monteiro and other employees. You may consider whether there is evidence that others similarly situated in all relevant respects but who had not complained about discrimination, have been treated differently. There is no specific test for you to use in determining whether employees are similarly situated except that a comparison may be made only where employees are similar in all relevant respects. The comparison need not be identical, but should be similar, and it is up to you to decide whether the facts warrant the comparison and what weight to give it . . .

The court presumes that the jury follows all instructions presented. Gath v. M/A-Com., Inc. 440 Mass. 482, 493 (2003), quoting Luz v. Stop & Shop, Inc., 348 Mass. 198, 207-208 (1964). This instruction ensured that the jury would appropriately weigh the evidence, considering it only if they determined that the comparators were similarly situated to the plaintiff in all relevant aspects.

Furthermore, the court in Matthews v. Ocean Spray Cranberries cautioned against the very contention that the city advances; specifically, that the misconduct at issue must be identical to qualify as sufficient comparative evidence. The offenses of two employees need not be identical, so long as they are of comparable seriousness. Matthews, 426 Mass. at 129-130. The plaintiff did not need to offer evidence of identical misconduct, which in this case would be evidence of employees who attended school during city work hours, misrepresented such attendance, or claimed to have sent a memorandum, so long as the employee misconduct was of sufficient seriousness.

A jury could infer, based on the evidence presented, that the employees were similar to the plaintiff in all relevant aspects, especially with regard to the seriousness of each employee s misconduct and Healy s approach to disciplining each employee s misconduct. This is particularly true with regard to the three comparators who held similar positions to the plaintiff as executive directors of city commissions and boards.

That Healy disciplined these five employees differently than the plaintiff could be inferred from evidence that he addressed misconduct and attendance problems of all five comparators personally, gave the employees an opportunity to respond and remedy the problems, took into account the dynamics of the employees commissions and boards, and exhibited a sympathetic and forgiving approach to their misconduct and/or attendance issues. From this evidence, a jury could find the comparators were similarly situated to the plaintiff in all relevant aspects.

The city next contends that the potential prejudice from the evidence, particularly evidence of racially charged incidents committed by Mr. White and Mr. Bernais, substantially outweighed any probative value of the evidence.

The comparative evidence of Mr. White and Mr. Bernais s incidents was probative of Healy s state of mind, particularly his even-handed approach to disciplining other employees. The plaintiff never suggested that this evidence was relevant to or was to be considered for any other purpose. Further, this court instructed the jury to consider the evidence only if the employees were similarly situated in all aspects, and certainly did not suggest to the jury that the evidence was probative of any racial animus harbored by Healy.

2. Temporal Proximity

The city next contends that without the comparative evidence, the jury had no basis to infer retaliatory animus. They claim that because five years separate the filing of the MCAD complaint and the plaintiff s termination, the lapse of time far exceeds the temporal proximity necessary for finding retaliation based solely on a time-related inference.

The plaintiff contends that the jury properly inferred temporal proximity between the protected activity and the plaintiff s termination from a series of retaliatory measures over the five year period between the plaintiff s filing of her discrimination claim and her termination.

Where temporal proximity between protected activity and adverse action is very close, retaliation may be inferred from that temporal proximity alone. Mole v. University of Massachusetts, 442 Mass. 582, 585 (2004). The greater the time between termination and the adverse action, however, the plaintiff must rely on additional evidence beyond temporal proximity to establish causation. Id. (citations omitted). However, series of retaliatory measures starting shortly after the protected activity can justify the inference that a particular action in that series, although occurring a considerable time later, is still motivated by retaliation. Id. at 596.

The plaintiff presented sufficient evidence from which a jury could infer that the plaintiff endured a series of retaliatory measures starting shortly after her filing of the discrimination claim in September 1998. The jury heard evidence that prior to the filing of her discrimination claim, the plaintiff s employment record was satisfactory. See Mole, 442 Mass. at 592 ( f adverse action is taken against a satisfactorily performing employee in the immediate aftermath of the employer s becoming aware of the employee s protected activity, an inference of causation is permissible. ).

They also heard evidence that in November 1998, an intern reported an awkward conversation with the plaintiff to the Deputy City Manager. The Deputy City Manager instructed the intern to write a memo about the incident, which the plaintiff never received. The jury could infer that the Deputy City Manager s instruction to the intern to document her complaint without informing the plaintiff, less than two months after the plaintiff filed a claim of discrimination, constituted the beginning in a series of retaliatory measures.

The jury also heard evidence that after the city took a deposition in November of 1999 in connection with the discrimination claim, Healy held a meeting with two PRAB Board Members concerning the plaintiff s performance on the Board without the plaintiff s knowledge or input. He testified that during the meeting, the plaintiff s charge of discrimination was on his mind.

In 2000, Healy stripped the plaintiff of her duties to hire Board members, informing her that his office would conduct all interviews without her input or involvement. It is reasonable that the jury could find this to be a retaliatory measure, particularly given the plaintiff s former integral involvement as the initial screener and interviewer of candidates. In the same year, Mr. Gardner, the city s personnel director, forwarded a newspaper article in which the plaintiff was quoted about racial profiling in the Cambridge Police Department, to the police commissioner without bringing the problem to the plaintiff s attention.

Further, the plaintiff presented evidence of the city s year long investigation in 2002 into the plaintiff s relationship with and performance on the PRAB Board. The jury, taking this evidence as true, could reasonably infer that a series of retaliatory measures against the plaintiff started shortly after her filing of the discrimination claim in September 1998, and could justify the inference that even the investigation in 2002, although four years after the filing of the claim, was nonetheless motivated by retaliation. A jury could infer the requisite temporal proximity between the plaintiff s protected activity and her termination despite the five year period based on this series of retaliatory measures.

The city contends that the Special Verdicts returned by the jury defeat any possibility that retaliatory animus could be inferred from a series of retaliatory measures because the jury did not award damages for intra-employment material adverse actions.

The first Special Verdict Question stated: Did the plaintiff Malvina Monteiro prove that the City of Cambridge retaliated against her by terminating her employment? The jury answered yes and proceeded in Question Two to award $962,400 in back pay, front pay, and consequential damages as a result of the retaliatory termination.

Question Three stated: Did the plaintiff Malvina Monteiro prove that she suffered retaliation, that is, materially adverse employment action(s), other than termination of employment, because she pursued her legal rights in a discrimination claim against the City of Cambridge? The jury answered yes , yet in Special Verdict Question 4, awarded no damages as a result of the materially adverse employment actions.

The city s reliance on Burlington N. & Santa Fe Ry. Co. v. White in support of its position is misplaced. 548 U.S. 53, 67 (2006). The city relies on the Court s statement that: he anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm as standing for the proposition that monetary damages must result from a materially adverse action to constitute retaliation. Burlington, 548 U.S. at 67. In other words, the city translates the jury s award of no damages for materially adverse actions occurring during the plaintiff s employment to mean, based on the Burlington case, that the jury found no intra-employment injury or harm and thus no actionable retaliation during the plaintiff s employment. The city claims that because the jury found no retaliation during the intra-employment period, the plaintiff s temporal proximity argument based on a series of retaliatory measures essentially collapses.

The city s interpretation of the Burlington case is an unavailing attempt to escape the jury s affirmative answer to Special Verdict Question Three that the plaintiff suffered retaliation, that is, materially adverse employment action(s), other than termination of employment, because she pursued her legal rights in a discrimination claim against the City of Cambridge.

This court declines the city s invitation to misconstrue the jury s verdict, and further notes that the city s interpretation of one line in the Burlington case is out of context. Although the Court in Burlington stated that retaliation is only actionable if it causes injury or harm, it went on to evaluate retaliation that produces an injury or harm in the context of determining the level of seriousness to which the harm must rise before it becomes actionable retaliation. Id. at 67.

The Court characterized injury or harm as circumstances in which: a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Burlington, 548 U.S. at 68, quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006). Nowhere in the Court s discussion does it evaluate the level of seriousness to which the injury or harm must rise as dependent upon or in relation to a certain monetary amount of damages sustained. The Court determines whether the retaliation causes injury or harm (i.e. legally actionable retaliation) by evaluating whether the actions by the employer are materially adverse, or in other words, would have dissuaded a reasonable worker from making a charge of discrimination. Id.

Here, the jury returned an affirmative verdict that the plaintiff suffered materially adverse actions throughout her employment as a result of her filing a discrimination claim. Because the jury found that the plaintiff endured materially adverse actions during her employment, the plaintiff proved her case of retaliation. The award of no damages does not alter the jury s verdict in this regard. Further, the jury assigned emotional distress and other compensatory damages for the process of termination in Question Two and very well could have intended not to duplicate damages.

The jury s finding that the plaintiff suffered a material adverse action as a result of her filing a claim of discrimination is, by definition in the Burlington case, retaliation that produces injury or harm.

3. Other Circumstantial Evidence

To the extent that the city contends that the comparative evidence still constitutes the only circumstantial evidence from which the jury could infer retaliatory animus, the plaintiff presented other circumstantial evidence from which the jury could infer retaliatory animus.

The jury could have inferred, taking the plaintiff s evidence as true, that the city s proffered reasons for her termination were pretext based on evidence including, but not limited to, Healy s testimony that the plaintiff s legal claims were constantly on his mind, the plaintiff s satisfactory work record prior to 1998, the character and secrecy of the year long investigation, and testimony that the plaintiff s conflicts with the PRAB Board and Police amounted to nothing more than routine disagreements.

The plaintiff s evidence was sufficient to support the jury s verdict finding retaliation.

C. Award of Punitive Damages

The city contends that the evidence presented by the plaintiff could not, as a matter of law, support a finding of punitive damages.

Punitive damages are appropriate where a defendant s conduct warrants condemnation and deterrence. Bain v. City of Springfield, 424 Mass. 758, 767 (1997). They may be awarded where the defendant s conduct was outrageous, because of a defendant s evil motive or his reckless indifference to the rights of the plaintiff. Dartt, 427 Mass. at 17. Thus, a plaintiff must prove more than just simple liability for retaliation. Goodrow v. Lane Bryant, 432 Mass. 165, 178 (2000).

This court has already foreclosed the city s primary argument against the punitive damage award; that is, punitive damages cannot be awarded for the city s intra-employment conduct where the jury found that the conduct was not legally actionable. The jury, however, answered yes to Special Verdict Question Three, and found that the plaintiff suffered materially adverse actions during employment, as a result of the filing her discrimination claim. The contention that punitive damages cannot be awarded for conduct that the jury found not legally actionable fails here, where the jury expressly found the city s conduct during the intra-employment period to constitute retaliation. Moreover, even if the jury s award of no damages signified the jury s belief that the plaintiff sustained no compensatory damages for the city s retaliation during the intra-employment period, there is no requirement in our law that punitive damages may only be awarded if there is an award of compensatory damages. Bain, 424 Mass. at 767 (given the purpose of punitive damages, the key consideration is whether defendant s conduct warrants condemnation and deterrence regardless of compensatory damages).

The city similarly contends that punitive damages cannot stand because it was impossible for the jury to find the city liable at all under circumstances where an employee violated an express policy regarding City work hours, gave testimony under oath that at best obfuscated her class hours, and relied upon a suspect memo seeking permission to attend school. It is unavailing, however, for the city to argue on a motion for judgment notwithstanding the verdict that this evidence warranted a contrary finding by the jury. Tosti, 394 Mass. at 494, quoting Curtiss-Wright Corp., 381 Mass. at 4 (1980).

The city accomplishes nothing by merely pointing to what it considers to be its strongest evidence. Viewing all evidence in favor of the plaintiff, the jury could find (and did find) that the city s evidence amounted to pretext and that the real reasons for terminating the plaintiff were retaliatory.

The city s motion for Judgment Notwithstanding the Verdict is denied.

II. Defendant s Motion for a New Trial, or, in the Alternative, For Remittitur

A. Standard of Review

A new trial may be granted in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the Commonwealth. Mass. R. Civ. P. 59(a). he grant or denial of a motion for a new trial on the ground that the verdict is against the weight of the evidence rests in the discretion of the judge. See Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, (1992), quoting Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, cert. denied, 493 U.S. 894 (1989). The judge must determine whether the verdict is so markedly against the weight of the evidence as to suggest that the jurors allowed themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons, including misunderstanding applicable law, failed to come to a reasonable conclusion. W. Oliver Tripp Co. v. Am. Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993). When allowing a verdict to stand would constitute the miscarriage of justice, a new trial should be ordered. Menard v. McCarthy, 410 Mass. 125, 130 (1991).

The judge, however, should not decide the case as if sitting without a jury; rather, the judge should only set aside the verdict if satisfied that the jury failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law. Robertson, 404 Mass. at 520, quoting Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60 (1948). Unlike a judge s task in deciding a motion for judgment notwithstanding the verdict, when deciding a motion for a new trial, a judge considers the probative force of the evidence and not merely the presence or absence of any evidence on the disputed point. Id.; see also O Brien v. Pearson, 449 Mass. 377, 384 (2007) (noting standard more favorable to moving party than judgment notwithstanding the verdict).

B. Excessive Damages

The city contends that the amount of the damage awards demonstrate that the jury s verdict was the product of sympathies, biases, and inflamed passion.

The city maintains that $962,400 awarded in lost back pay, front pay, and compensatory damages is excessive where the highest amount of damages demonstrated by the evidence is $103,805. Moreover, the city maintains that the emotional distress award in connection with the termination of the plaintiff s employment was excessive where the plaintiff only advanced evidence of emotional distress suffered during her employment for the city, and not due to her termination. Finally, the city protests the amount of the punitive damages award as extraordinary because the plaintiff advanced no evidence that the city s conduct was an outrageous affront to her dignity.

1. Compensatory Damages

A new trial on the ground of excessive or inadequate damages will be granted only when the damages are so great . . . that is may be reasonably presumed that the jury, in assessing them, did not exercise a sound discretion, but were influenced by passion, partiality, prejudice, or corruption. Bartley v. Phillips, 317 Mass. 35, 41 (1944) (citations omitted) (noting judge has no right to set aside damages merely because he would have assessed damages in a different amount). Motions for a new trial on the theory that the damages were inadequate or excessive ought not to be granted unless on a survey of the whole case it appears to the judicial conscience and judgment that otherwise a miscarriage of justice will result. Moose v. Massachusetts Inst. of Tech., 43 Mass. App. Ct. 420, 427 (1997), quoting Walsh v. Chestnut Hill Bank & Trust Co., 414 Mass. 283, 292 (1993). A judge s refusal of a grant of a new trial will not be disturbed unless the damages awarded were greatly disproportionate to the injury proven . . .. Id., quoting Mirageas v. Massachusetts Bay Transp. Auth., 391 Mass. 815, 822 (1984); see also Labonte, 424 Mass. at 824. Although damages need not be proven with mathematical precision, Rombola v. Cosindas, 351 Mass. 382, 385 (1966), there must be enough evidence to make a reasonable estimate of damages without speculation or guesswork. Conway v. Electro Switch Corp., 402 Mass. 385, 388 (1988).

Surveying the whole case, the damages awarded by the jury are not excessive.

With regard to the award of compensatory damages consisting of back pay, front pay, and consequential damages, the city s primary contention is that the award bears no relationship to the highest number supported by what it claims to be the sole piece of evidence, Trial Exhibit 26 entitled Plaintiff Monteiro s Income and Pension Benefits.

The city overlooks, however, that the jury heard evidence in addition to Trial Exhibit 26 on the issue of damages. The plaintiff testified about lost pay, her unsuccessful search for comparable jobs, the end of her career as Executive Secretary of PRAB, the importance of her work and career, and her obliged work as a translator without vacation, pension, holiday, health or sick time benefits after the termination of her employment. The jury also heard evidence that other city employees, holding similar positions to the plaintiff, did not retire until their late 50s or into their 60s.

Trial Exhibit 26 further laid out different pension benefit scenarios that could have occurred if the plaintiff had not been terminated, including the amount she would have received if she was terminated after twenty years of service, if she had retired after twenty years of service, and if she had retired at 55 years old after 29 years of service. It also stated her then current pension options after being terminated in 2003. Additionally, the jury could have calculated lost health, vacation, and sick benefits since her termination in the award.

If anything, the different pension scenarios articulated in Trial Exhibit 26 ensured that the award of front pay, back pay, and consequential damages was not the result of speculation or conjecture, but instead a reasoned estimate based upon a factual scenario the jury found most supported by the testimonial and documentary evidence.

There is no indication that the jury failed to exercise honest and reasonable judgment in arriving at the compensatory damages figure. In light of the evidence, the jury s award of $962,400 for front pay, back pay, and consequential damages was neither greatly disproportionate to the plaintiff s injury nor does it represent a miscarriage of justice to necessitate a new trial or, in the alternative, a remittitur.

2. Emotional Distress Damages

The city further challenges the emotional distress damage award of $100,000 as excessive and reflective of the jury s inflamed passion, bias, and sympathies, thus requiring a new trial, or in the alternative, at least a 75% remittitur.

Determining whether damages are excessive is difficult because claims for damages for emotional distress are inherently difficult to prove with certainty, to rebut, and to evaluate. Labonte, 424 Mass. at 825 (citations omitted) (remitting emotional distress damages although plaintiff suffered depression, where he did not take medication, took on new projects after termination, was relieved to be released from emotional distress of job, was not hospitalized, and depression was short lived); see also Smith v. Bell Atlantic, 63 Mass. App. Ct. 702, 724 (2005) (distinguishing Labonte and upholding emotional distress damages based on employer s refusal to accommodate plaintiff s handicap where her distress was not short lived and lasted a number of years).

The city maintains that the emotional distress damages could not have been awarded for the period of the plaintiff s medical treatment and medical leave of absence during her employment for the city, because the jury concluded that the city s conduct during the plaintiff s employment did not amount to retaliatory adverse employment actions. As already articulated, the jury expressly found the city liable for materially adverse actions during the intra-employment period, therefore finding the city liable for retaliation during the employment period. Furthermore, the award of no damages for intra-employment material adverse actions is irrelevant where the jury awarded damages for emotional distress for the process of termination in Special Verdict Question Two. It is a reasonable inference that the jury did not intend to duplicate emotional distress damages already awarded in Question Two, and instead awarded one sum of emotional distress damages for all materially adverse actions of the city, whether during the employment period or upon termination.

The jury listened to the testimony at trial, including the testimony from the plaintiff and the plaintiff s therapist, Ms. Finguerra. They could infer from the testimony of Ms. Finguerra that the plaintiff suffered emotional distress from the Spring of 2002 to 2003, necessitating medical treatment, the taking of psychiatric drugs, and a medical leave of absence from the city s employ. Ms. Finguerra testified that the plaintiff was nowhere near a clinical end point of her psychiatric problems when she was terminated by the city. A jury could reasonably find, based on the therapist s testimony, that the plaintiff endured significant pain as a result of both intra-employment actions, particularly the year long investigation and stripping of her managerial duties, and the materially adverse action of termination. Further, the jury heard the plaintiff testify about the importance of her career as Executive Secretary of PRAB, and the hurt and loss she felt during the investigation and termination of her employment. See Smith, 63 Mass. App. Ct. at 723-724 (refusing to grant new trial or remit emotional distress damages totaling $207,000 for handicap discrimination in light of evidence that plaintiff s career was her whole life, that her unsuccessful efforts to work from home frustrated her, and that as a result she suffered anxiety and diminished self-esteem).

After listening to the testimony firsthand, the jury composed as they , of persons from varying walks of life and reflecting a variety of experience, ma a particularly suitable institution for assessing . . . emotional damage, and were in the best position to evaluate the emotional distress suffered by the plaintiff. Borne v. Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. 306, 320 (2003).

The evidence before the jury was sufficient to award emotional distress damages, and their award does not compel a conclusion that they were influenced by bias, passion, corruption, mistake or prejudice. Smith, 63 Mass. App. Ct. at 724.

3. Punitive Damages

Finally, the city most vehemently contends that the evidence was insufficient to support an award of punitive damages.

The city first argues that punitive damages should not have been awarded at all where the plaintiff did not prove that the defendant s conduct was an outrageous affront to her dignity that was both recklessly indifferent to her rights and egregiously beyond the pale of what our society tolerates. Dartt, 427 Mass. at 17.

The city points to the fact that an earlier jury in 2005 was unable to reach a verdict on the simple retaliation claim, and as such, it was unreasonable for the jury in this trial to find outrageous conduct and award punitive damages.

This trial, however, was before a different jury, faced with a different presentation of a case and a separate and distinct opportunity to evaluate the credibility of witnesses and other evidence. The hung jury in the first trial in no way mandates the same decision by a different jury in this case.

The city next argues that a penalty of this magnitude against a municipality is not appropriate where the punishment is being meted out to the citizens of Cambridge.

This argument plainly ignores that the Commonwealth and its subdivisions are liable for punitive damages under G. L. c. 151B on the same basis as other persons and employers. Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 611, 623 (2005). Not only are municipalities subject to punitive damages in the same regard as other defendants, but deliberate violations of G. L. c. 151B, by those charged with the public duty to enforce the law equally, present a heightened degree of reprehensibility. Clifton, 445 Mass. at 623-624 (Massachusetts Bay Transportation Authority held to higher standard), quoting Dalrymple v. Winthrop, 50 Mass. App. Ct. 611, 621 (2000); see also Ciccarelli v. School Dep t. of Lowell, 70 Mass. App. Ct. 787, 796 (2007) (City of Lowell charged with public duty to enforce law equally).

Healy, and the City of Cambridge, are subject to increased scrutiny for their retaliatory actions, particularly where Healy took this action in capacity as a high-ranking public official. Ciccarelli, 70 Mass. App. Ct. at 796 (Deputy Superintendent of Personnel s deliberate retaliation subject to heightened standard where charged with public duty to enforce law equally). The city of Cambridge does not get a free pass to unlawfully retaliate against its employees and avoid the imposition of punitive damages simply by virtue of its status as a taxpayer funded municipality; to the contrary, the city is held to a higher standard of reprehensibility.

The city requests that this court remit the amount of the punitive damage award if a new trial is not granted.

A court upholds a punitive damage award unless it clearly appears that the amount of the award exceeds the outer boundary of the universe of sums reasonably necessary to punish and deter the defendant s conduct. Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 81 (1st Cir. 2000) (citations omitted).

The court uses a three-part test to assess the reasonableness of a punitive damages award:

1) the degree of reprehensibility of the defendant s conduct;

2) the ratio of the punitive damages award to the actual harm inflicted on the plaintiff; and

3) a comparison of the punitive damages award to criminal or civil penalties for comparable misconduct.

Labonte, 424 Mass. at 826-827, citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-575 (1996).

First, the jury had adequate evidence before it to find Healy s conduct reprehensible.

Healy indicated, in his testimony, that he was aware of the legal implications of retaliation, and that the plaintiff s discrimination claim was constantly on his mind. Such conscious disregard for the law of retaliation would provide relevant support for an argument that strong medicine is required to cure the defendant s disrespect for the law. See Zimmerman, 262 F.3d at 82, quoting BMW of N. Am., Inc., 517 U.S. at 576-577.

The jury heard evidence of the city s actions over the five years following her charge of discrimination, including decreasing the plaintiff s managerial duties such as interviewing and hiring prospective Board members, depriving her of the opportunity to respond to complaints like other employees were given, and embarking upon a secretive investigation of which the plaintiff was the target. A jury could find, and did find, that the city mounted a deliberate, systematic campaign to punish the plaintiff as a reprisal for her effrontery in lodging a discrimination claim. Zimmerman, 262 F.3d at 82 (awarding punitive damages where defendant stopped inviting plaintiff to Board meetings, humiliated plaintiff at company-wide meeting, excluded her from management retreat that she once organized, and decreased job responsibilities).

The jury also heard inconsistent testimony as to Healy s reasons for terminating the plaintiff, and was free to draw their own conclusions as to whether he was covering up his wrongdoing. Ciccarelli, 70 Mass. App. Ct. at 798 (jury free to draw conclusion that superintendent s testimony an effort to cover up his wrongdoing).

Moreover, Healy, as city manager, is charged with the public duty to enforce the law equally, and as a result, his conduct is subject to a heightened degree of reprehensibility. Clifton, 445 Mass. at 623-624.

The jury, proceeding on the collective sum of their experiences, appear to have worked their way to dollar amounts that reflect the jurors assessment of the reprehensibility of Healy s conduct, and what it will take to deter like conduct in the future by the . Borne, 58 Mass. App. Ct. at 323.

As to the second consideration, the ratio between the actual harm suffered by the plaintiff ($1,062,400) and the award of punitive damages ($3,500,000) is within constitutional limits. Borne, 58 Mass. App. Ct. at 322 (less than 4:1); Ciccarelli, 70 Mass. App. Ct. at 798 (5:1 ratio affirmed); Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 24 (1991) (4:1 ratio constitutional); Zimmerman, 262 F.3d at 82 (2:1 ratio within standards). Here, the ratio between compensatory and punitive damages is about 3:1, and is not excessive in relation to the plaintiff s actual harm.

Lastly, this court must determine whether the punitive damages award is within the range of penalties for comparable misconduct.

The First Circuit in Zimmerman looked to other sections of G. L. c. 151B mandating treble damages for intentional age discrimination, as a proper comparison for the reasonableness of punitive damages awarded in a retaliation case. Zimmerman, 262 F.3d at 83. The Court reasoned that because the legislature capped punitive damages for intentional age discrimination at treble damages, but left damages for other types of discrimination uncapped, it likely intended to permit recovery greater than treble for other types of discrimination such as retaliation. Id. The Supreme Judicial Court in Clifton v. Massachusetts Bay Transp. Auth. also looked to the imposition of the treble damages cap for age discrimination in G. L. c. 151B as indicative of the legislature s intent not to impose a limit on the amount of punitive damages necessary to punish employers who discriminate. Clifton, 445 Mass. at 623-624. It is likely that the legislature did not intend to impose a limit on the amount of punitive damages necessary to punish employers, like the city, who retaliate. Further, the city was on notice that retaliating against the plaintiff in violation of the statute potentially could subject them to a similar level of punitive damages. Zimmerman, 262 F.3d at 83.

The punitive damages award is sufficiently within the range of damages to be awarded for comparable misconduct under G. L. c. 151B. Where the jury had adequate evidence before it to find Healy s conduct reprehensible, the ratio of the punitive damages to the actual harm suffered by the plaintiff is reasonable, and the punitive damage award is sufficiently within the range of civil penalties for comparable misconduct under G. L. c. 151B, the court denies the city s motion for a new trial, or in the alternative, for remittitur, of the punitive damage award.

C. Juror Conduct

The city next contends that a juror s smile allegedly directed towards the plaintiff s attorney the day before the verdict was announced is evidence that the verdict was a result of inflamed passion, biases, or sympathies.

This incident prompted the city to inquire of the court as to any bias that the juror had failed to report during impanelment, specifically as to his profession. The court responded to the city s inquiry by stating that the juror had indicated he was retired, the city had the opportunity to discuss the juror before seating him (and in fact had specifically discussed him because his wife was disclosed to be a lawyer at a firm with which the city s attorney had done business). The court noted that the jurors, in general, at what was the end of a very long day, had been talking and laughing in the hallway prior to entering the courtroom.

The court renews its response to the city, and further notes that the city has not pointed to anything in support of its contention that this juror s behavior was anything more than an unconscious smile or gesture, let alone the product of bias.

D. References to Race

The city points to a number of incidents in support of its claim that the issue of race discrimination hung over the trial and caused the jury to render a verdict inflamed by passions, bias, or sympathies.

First, the city maintains that this court s refusal to admit the jury s verdict in favor of the city on the plaintiff s discrimination claim and also disclose that the jury was unable to reach a verdict on the retaliation claim in the first trial, caused the jury to draw inferences that the city did not prevail on either the discrimination or retaliation claim.

The city s argument lacks merit because liability for the underlying discrimination claim has no bearing on liability for retaliation. Mole v. University of Massachusetts, 442 Mass. 582, 591-592 n.13 (2004) ( The fact that a complaint is later found to be unmeritorious does not preclude a retaliation claim based on the protected activity of pursuing that complaint. ); Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 122 (2000) (jury s verdict on discrimination could not have affected their verdict on retaliation where elements of discrimination and retaliation do not intersect; jury could find retaliation without finding discrimination). Any evidence of the prior discrimination claim was not probative of whether the city retaliated against the plaintiff.

Further, this court specifically addressed the possibility of jury speculation, instructing the jury that the claim of discrimination is not before the jury, and it is impermissible for you to speculate with regard to its past or future resolution. To make sure the jury understood, this court further instructed the jury: let me remind you again of what I said at the outset of the trial. While you have heard of various events and proceedings relating to Ms. Monteiro s charge of discrimination, filed on September 17, 1998, and you may consider those events as you deliberate, you may not consider the substance of the discrimination claim. That is not before you.

Jurors are expected to follow instructions, and there is nothing before this court suggesting they did not do so. Gath, 440 Mass. at 493.

Nor did the court s refusal to disclose the hung jury on the retaliation claim in the first trial cause the verdict to be a product of bias, sympathies, or inflamed passion. It was within this court s discretion to exclude evidence of the previous jury s inability to reach a verdict where the probative value of such evidence was outweighed by the prejudice that would result if a jury knew that a previous jury had deliberated over the same issue. Bank, 451 Mass. at 670 (trial judge afforded discretion in determining evidence s prejudicial effect on jury). The jury in this case was entitled to make its own decision, based on its own assessment of the evidence, without the improper influence of a previous jury s failure to reach a verdict.

The city next contends that the admission of the comparative discipline evidence of city employees Mr. White and Mr. Bernais inflamed the passions of the jury, because the evidence unfairly suggested that Healy was predisposed to treat perpetrators of racial misconduct more leniently than he did Ms. Monteiro.

As previously stated, the evidence was admitted for the purpose of demonstrating that Healy treated other employees serious misconduct differently than the plaintiff s. The plaintiff never suggested or argued that this evidence should be considered for any other purpose, and the court s instructions to the jury ensured that they would consider the discipline of Mr. White and Mr. Bernais only if the employees were similarly situated in all relevant respects.

The city lists several other racial references during the trial that it contends caused the jury s verdict to be a product of bias, inflamed passion, or sympathy.

Its contention that witnesses such as Ms. Monteiro, Ms. English, and Councilor Reeves interjected the issue of racial profiling by the Cambridge Police into the case lacks merit where much of PRAB s work during the plaintiff s tenure involved work on racial profiling. The plaintiff was afterall the head of Cambridge s Police Review and Advisory Board and thus her work with regard to racial profiling or any other problem in the Cambridge Police Department was certainly relevant in demonstrating her performance, work ethic, and contributions to PRAB. The city did not object to the plaintiff s references to racial profiling at trial. It is also noteworthy that the city s own witnesses, Commissioner Watson and Mr. Winter, referenced racial profiling during their testimony.

Moreover, the city s contention that plaintiff s counsel erred in cross-examining Cindy Ramsey because counsel suggested that Ramsey s terminology in the investigative report referenced a racial faction on PRAB is equally without merit, particularly where city s counsel did not object to the questioning. The jury had the opportunity to independently review Ramsey s report, draw their own conclusions as to the meaning of terminology based on Ramsey s testimony, and assess the credibility of Ramsey s explanation of the terminology.

Finally, plaintiff s counsel s reference to an incident where Mr. Gardner forwarded an article, in which the plaintiff was quoted about racial profiling in the Cambridge Police Department, to Police Commissioner Watson, does not warrant a new trial.

The city did not object to plaintiff s counsel s first reference to Mr. Gardner s forwarding of the newspaper article, and upon its objection to the second reference, the objection was promptly sustained. Plaintiff s counsel immediately moved on to another topic once the objection was sustained. Mr. Gardner s action in forwarding the newspaper article to Commissioner Watson, without forwarding it to the plaintiff, was in evidence. Any improper reference to Mr. Gardner s motive in forwarding the newspaper article was cured by this court s sustaining the city s objection.

E. Plaintiff s Counsel s Closing Arguments

The city objects to plaintiff s counsel s statements to the jury in her closing that a committee had been reviewing the flex-time policy before its formal institution where the jury heard no evidence of the existence of a flex-time drafting committee.

Upon review of the transcript of the closing arguments, this court disagrees that the plaintiff s reference to the existence of the term flex-time and a committee prior to the policy s formal institution was impermissible.

Several documents, including Healy s announcement of the Policy on Flexible Work Arrangements and the actual Flex-Time Policy, were before the jury. The jury could infer, based on language used in the announcement and the actual policy, that the flex-time policy resulted from some discussion and planning prior to its implementation. The jury was free to use their common sense to evaluate whether the term flex-time commonly was used prior to the formal institution of the city s flex-time policy. They could use their own experiences as employees and employers to infer that the drafting of a flex-time policy suggests a process of discussion prior to its formal implementation. They could credit or discredit arguments of plaintiff s counsel and city s counsel with regard to whether the memo was fabricated, and also were free to credit or discredit Healy s testimony about the flex-time memo based on their assessment of his credibility. Moreover, Plaintiff s counsel was entitled to respond to the city s theme in its closing that the plaintiff s flex-time request memo was fabricated, so long as her representations to the jury were based on reasonable inferences from the evidence. Mason v. General Motors Corp., 397 Mass. 183, 192 (1986) (scope of closing argument limited to comments on facts and evidence and fair inferences that can be drawn from the facts and evidence). Plaintiff s counsel was free to appeal to the jury s common sense that the term flex-time was not invented by Healy prior to institution of a formal policy, just as city s counsel suggested to the jury that flex-time was not a concept that was bouncing around in 1997 the way it is today.

This court instructed the jury that the arguments made in each counsel s closing were not evidence. Commonwealth v. Jones, 432 Mass. 623, 629 (2000) (prosecutor s argument did not amount to substantial miscarriage of justice where judge instructed jury twice that closing arguments were not evidence). The court also responded to the city s objection to the flex-time reference by reminding the jury that if counsel misstates any matter you know it s your memory that counts. Obviously they are arguing their version of what the evidence showed, and they re trying to point that out to you. If the evidence didn t - - does not support it that s your decision. These instructions sufficiently cured any impropriety, in the event there was one, that resulted from plaintiff s argument that the flex-time policy was developed by a committee prior to its formal institution in March 1998. See Lou v. Otis Elevator Co., 2008 WL 2097380, at *2 (Ma.Super. Mar. 28, 2008) (Lemire, J.) (closing remarks not improper where jury instructed that closings are not evidence and that it is their recollection of evidence that governs).

Upon review of the transcript of the closing arguments, the court also finds that plaintiff s counsel did not make inexcusable misstatements that inflamed the passions, bias, or sympathies of the jury. The plaintiff s remarks in her closing do not warrant a new trial. Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516 (1992) ( In civil cases, we have found few instances where a new trial was granted because of an overreaching closing argument. ).

F. Circumstantial Evidence That Flex-Time Memo Was Fabricated

The city argues that allowing the verdict to stand would constitute a gross miscarriage of justice in the face of overwhelming circumstantial evidence that the flex-time memo was fabricated. Specifically, the city points out that the term flex-time was not used by the city at that time the memo was drafted, the plaintiff failed to disclose her reasons for the flex-time request, the plaintiff referred to a nine month period as temporary, and she scheduled make up days precisely from 7:00 am to 6:30 pm as required by the formal policy. Faced with overwhelming circumstantial evidence of the fabricated memo, the city claims, a reasonable jury would be compelled to reject any suggestion of retaliatory animus.

This court disagrees. The jury had other evidence before it that undercut and discounted the evidence suggesting that fabrication of the flex-time memo was the reason for the plaintiff s termination. The jury could consider Healy s testimony, in which he never listed the fabrication of the flex-time memo as a reason for the plaintiff s termination. They could also consider his testimony that he was not positive that his office received the flex-time memo. They listened to the plaintiff s testimony with regard to the memo. As already discussed, the jury had the Policy on Flexible Work Arrangements and the actual Flex-Time Policy before it, and could draw reasonable inferences from that evidence that the policy was not created in a vacuum and further, that the term flex-time was widely used in society prior to the city s institution of the policy.

G. References to Plaintiff s Background and Life Experience

The city next objects to references made to the plaintiff s background in plaintiff s counsel s opening statement, direct examination of the plaintiff, and closing argument. The city maintains specifically that plaintiff s counsel erred in referring to plaintiff s experiences in coming to this country from Cape Verde and encouraging jurors to take the measure of the woman , as improperly engendering sympathy and bias.

As a preliminary note, city s counsel did not object to references to the plaintiff s background during either the opening or closing statement. Nonetheless, the references to the plaintiff s background were relevant to the jury s assessment of her credibility. Plaintiff s counsel was entitled to point out the importance of this career to the plaintiff based on the her past experiences, to the jury. Moreover, this court instructed the jury that they shall not be swayed by prejudice, bias, sympathy, or anger.

H. Cross-Examination of Healy

The city notes that plaintiff s counsel inappropriately held Healy to yes or no questions that could not be answered in that fashion, leaving the jury with the impression that he was non-responsive or evasive.

This argument lacks merit.

The court actually denied plaintiff s counsel s motion to strike Healy s answer to her question about the reasons for the plaintiff s termination. The court denied the motion to strike the answer as non-responsive, and allowed Healy to testify, at length, as to his reasons for the termination of the plaintiff, despite plaintiff s counsel s attempts to stop him in the middle of his answer. This is just one example of an answer to which Healy was not limited to a yes or no.

To the extent plaintiff s counsel limited Healy to yes or no answers, she did so permissibly and succeeded in conducting an effective cross-examination. Healy simply was not credible, and the jury was entitled to form this opinion based on his demeanor on the stand and his inconsistent and incoherent testimony.

The city s inability to rehabilitate Healy after plaintiff s counsel s cross-examination does not make the jury verdict one based on inflamed passion, sympathy, or bias.

I. Unusual Level of Jocularity and Humor in Courtroom

The city next accuses this judge of permitting an unusual level of jocularity and humor in the courtroom, which may have influenced the jury s approach to the serious case before them.

This argument is not only without merit, but insulting to counsel and the court. The city points to no specific example of how the pleasant and civil atmosphere in the courtroom may have influenced the jury s decision. Further, although we do not have the benefit of the full transcript, during the trial, this court made a point of referencing the tenor of the relationship among the lawyers and the judge, indicating that the relationship was one of mutual respect and good will and specifically instructed the jury not to be influenced by any perceived light heartedness of the court or counsel, and that this was a matter of grave importance to the parties. During the final charge, the court reiterated that the jury was not to consider anything the court might have said or done as any reflection of the court s opinion, because any such opinion was irrelevant .

J. Court Bias

The city next suggests that the judge brought to the jury s attention the fact that plaintiff s counsel, Ms. Studen, was a former student of hers.

Again, while the court does not have a transcript, the reference was made under the following circumstances. In the course of examining a witness, counsel for the city had inquired regarding a document she had placed on the visual monitor. She neglected to offer the exhibit and Ms. Studen stood up, handed it to her and asked if she had forgotten to offer it. Relieved, counsel said yes, thanks so much and everyone, including the jurors and counsel, laughed. It was at that point that the court said something to the effect of and I taught her ethics and everyone laughed again. While the remark might well have been better left unsaid, there was no objection made or any request for curative instruction. It was, however, sometime after this episode that the court gave the instructions referenced above regarding the atmosphere in the courtroom.

K. Verdict Against the Weight of Evidence

The city maintains that the Special Verdict in this case regarding retaliatory discharge was against the substantial weight of the evidence and cannot be allowed to stand where the plaintiff offered no direct or circumstantial evidence of retaliatory animus.

The court has already addressed the city s argument in its decision denying judgment notwithstanding the verdict. In summary, the plaintiff produced much circumstantial evidence including, but not limited to, comparative evidence of similarly situated employees and evidence of a series of retaliatory measures starting shortly after the plaintiff s filing of her discrimination claim. The evidence also included, but was not limited to, Healy s testimony that the plaintiff s legal claims were constantly on his mind, the plaintiff s satisfactory work record prior to her filing a discrimination claim, Healy s treatment of the plaintiff during the year long investigation, and testimony that the plaintiff s conflicts with the PRAB Board and Police amounted to nothing more than routine disagreements.

The verdict was not against the weight of the evidence. The evidence, taken together with the jury s assessment of both the plaintiff and Healy s credibility, supports the jury s finding that the city s reasons for terminating the plaintiff amounted to pretext for retaliation.

III. DEFENDANT S OTHER MOTIONS

The city s Motion to Strike Plaintiff Monteiro s Memorandum in Response to Defendant s Supplemental Post-Trial Submission dated August 1, 2008, and Motion to Supplement the Record on Appeal dated July 15, 2008, are both denied.

ORDER: For the foregoing reasons, it is ORDERED that the Defendant City of Cambridge s Motion for Judgment Notwithstanding the Verdict; Motion for a New Trial, or in the alternative, Remittitur; Motion to Strike Plaintiff Monteiro s Memorandum in Response to Defendant s Supplemental Post-Trial Submission; and Motion to Supplement the Record on Appeal, be, and hereby are, DENIED.

Dated: April 2009 (Bonnie H. MacLeod-Mancuso Justice of the Superior Court)

Update on Monteiro Case

Bob reports:

I have filed a number of reports on the case of Monteiro v Cambridge. This is a jury case in which the jury verdict found that the Cambridge City Manager destroyed the life of a black woman department head in retaliation for her filing a civil rights complaint.

The jury awarded $1.1 million or so real damages and $3.5 million penal damages. Verdict came down last May with a hearing on post trial motions June 10 followed by paper submissions that ended August 4.

I am hoping the judge will replace part of the award with a firing of the Cambridge City Manager without pension.

Recently, Cambridge was allowed to file jury transcripts of part or all of the trial. These apparently occurred on March 3 and March 31. I say "apparently" because all I have access to is the docket which, for the most part, only shows the titles of documents filed.

On April 22, 2009, Cambridge filed two papers entitled "Statement of Supplemental Authority."

It looks like Cambridge is worried, probably for good reason.

Hip, hip, hooray for the good guys.

Environmental Destroyers Defend DCR As Usual

Bob La Trémouille reports:

On Tuesday, April 7, there will be a vote in the State Legislature on a proposal by Governor Patrick to take a limited ability for environmental destruction away from the Department of Conservation and Recreation.

The DCR with the governor's very clear support (He does not want to know what is going on.) is destroying all animals visiting or living on the Charles River, insofar as they can get away with it.

The most recent outrage is a particularly nasty aspect to the BU Bridge repairs, reported below.

The DCR is using whatever weapon it has to destroy animal life. A little here, a little there, and eventually they succeed in "creating" a river without animals.

The Governor's proposal is minimal. It should be supported.

The reprehensible Charles River Conservancy and the proudly environmentally destructive Representative Martha Walz have publicly, as usual, opposed protecting the environment with this minor change in powers.

The Cambridge City Manager's friends in the abutting Cambridgeport neighborhood have passed on nonsensical communications from environmental destroyers objecting to the small environmental improvement of taking this power away from the DCR.

If you get a chance, it would be nice to communicate support for the change to the legislature. We have been through this many times. With the unanimously environmentally destructive legislative contingent from Cambridge, these improvements routinely lose.

Praise for the Cambridge Chronicle, Charles River Conservancy analysis

1. Introduction.
2. Marilyn's Response.
3. Kathy Podgers' comment.
4. Update, March 26, 2009.
a. Marilyn printing.
b. Well intended but back-stabbed letter on Alewife not published in hard copy.

Bob La Trémouille reports.

1. Introduction.

The Cambridge Chronicle seems to be getting better at weeding out misleading communications.

The very destructive Charles River Conservancy put out a press release praising itself concerning swimming in the Charles River.

This was printed by the Chronicle on line, but does not seem to have been printed in last week's (March 19, 2009) Cambridge Chronicle.

One of the City Manager's groups announced that the press release was going to be in that edition of the Chronicle. Marilyn Wellons sent in a response, which is now posted by the Chronicle at http://www.wickedlocal.com/cambridge/news/opinions/x1331540183/Letter-Swimming-in-the-Charles-is-bait.

2. Marilyn's Response.

Her response reads:

“Swimming in the Charles” is the bait repeatedly offered by the Charles River Conservancy to mobilize support for whatever “restoration” or “enhancement” of riverfront parkland the Department of Conservation and Recreation and Cambridge are offering at the moment. Now, as Cambridge prepares to replace grass adapted to the riverfront at the DCR’s Magazine Beach with commercial sod, an irrigation system, fences and chemical maintenance, we see the bait once more.

Once again people are invited to connect their hopes for safe swimming to what is, in fact, further destruction of the environment. To swim safely in the river at Magazine Beach, the DCR, Cambridge, the CRC, or any other entity with money would have to build an entire swimming pool, complete with filtration system, and sink it in the river. Sediment with heavy metals, not any poop from waterfowl, is the toxic element here.

The fields Cambridge and the DCR are installing must be chemically maintained and their use restricted, as Cambridge intends, to keep the “quality of turf our players deserve,” in the words of a DCR official defending the use of herbicides at the DCR’s Ebersol Fields, also on the Charles.

In correspondence with elected officials, the DCR has said only it never “intends” to use chemicals. It uses them anyway, when “needed.” Algae blooms fed by the chemical runoff from Ebersol Fields near MGH in Boston forced the cancellation of the Charles River swim in 2006. Since then, the CRC has been forced to move the event ever earlier, from September to June, to avoid the now inevitable toxic bloom just offshore.

Maintenance of the commercial sod at Magazine Beach will apparently be at the discretion of Cambridge officials. They make noises about “integrated pest management,” a euphemism for continued use of pesticides and other chemicals. Children and wildlife alike need no exposure to these toxins courtesy of our city or the DCR.

This bait invites “environmentalists” to weigh in once again with misinformation against waterfowl, who legitimately belong on the river (if not on a river, where?) and to dismiss those of us who actually enjoy contact with the natural world, including geese.

As for any “organic” care of lawn grasses, why are these “environmentalists” not celebrating the nitrogen, naturally applied by geese, to riverfront meadows?

3. Kathy Podgers' comment.

Kathy Podgers offers the following comment:

Thanks for posting this. Marilyn's letter is special, especially considering all the hours she has put into attending numerous meetings by half a dozen "official" organizations. I appreciate her knowledge and advocacy on this issue, and count her a true friend to Cambridge neighbors, as well as a fount of knowledge.

We have collected some 500 signatures to end the folly at Magazine Beach, which is rightfully called Captain's Island, and I hope you can all join us to end the further destruction of one of Cambridge's precious natural resource's, and work with us to restore it to it's beauty. Perhaps you saw the piece in the Sunday Globe Magazine on the 10 best places to live? Two of them featured wetlands and geese.

4. Update, March 26, 2009.

a. Marilyn printing.

In the March 26, 2009 edition, the Cambridge Chronicle printed a version of Marilyn's letter which was improved by her after she posted the above on the Internet.

b. Well intended but back-stabbed letter on Alewife not published in hard copy.

Also on line but not in the Cambridge Chronicle is a letter signed by a bunch of apparently well intentioned people which reads like they have been shafted by operatives friendly to the City of Cambridge / the eight plus bad city councilors (eight because there is one new member).

After speaking out in defense of the Silver Maple Forest, the letter supports the destruction of the Alewife reservation based on "planning."

"Planning" is another con game. People appointed by the Cambridge City Manager support destruction of whatever the Cambridge City Manager and eight plus bad city councilors are destroying.

Operatives friendly to the Cambridge City Manager / eight plus bad city councilors con well intentioned people into stabbing themselves in the back loudly proclaiming the beauties of "Planning." The operatives neglect to mention the vile environmental record of the Cambridge City Manager and neglect to mention the vile environmental record of eight plus Cambridge city councilors.

They also neglect to mention Monteiro v. City of Cambridge in which a jury found that the Cambridge City Manager destroyed the life of a black woman Cape Verdean department head because she filed a civil rights complaint.

The jury awarded $1.1 million plus damages and $3.5 million penal damages. The judge is reviewing the decision. It is my hope she orders the City Manager fired and stripped of his pension.

But the operatives always sound so good.

Silver Maple Forest

Bob reports:

The following letter was printed by the Cambridge Chronicle in its March 19, 2009 edition. It was side by side with a letter from Ellen Maas on the Silver Maple.

Ellen has worked closely with the City of Cambridge and friends of the Cambridge City Manager on the issue.

In particular, Ellen bitterly opposes prevention of destruction of the Alewife reservation by the City of Cambridge. Additionally, to the best of my knowledge, the only constructive achievement by any member of the public in the area was the downzoning of a parking lot to open space followed by its conversion to open space. This was accomplished by Sheila Cook with my drafting. Ellen and her friends severely mistreated Sheila Cook.

*******

Editor
Cambridge Chronicle

RE: Silver Maple Forest

The Cambridge City Council’s vote in favor of protecting the Silver Maple Forest should be looked at in context.

This is private property, mostly in Belmont .

The environmental record of the eight continuing city councilors on public property in or related to Cambridge is outrageously bad.

On the Charles, they and their friends seem to be destroying all animals living or visiting the river or its banks. This is emphasized by the bizarre wall of introduced vegetation at Magazine Beach which seems to have no purpose except starvation, and by the ongoing mudpit at Magazine Beach which is intended to destroy green maintenance and replace it with fertilizer maintenance poisoning the resident birds. Then there is the needlessly destructive BU Bridge repair project.

Then there is Fresh Pond, apparently thousands of healthy trees and animal habitat being destroyed to introduce 1000 saplings.

Then there is the Alewife Reservation, in Cambridge , a hundred or so feet from Silver Maple. Slated to be destroyed with destruction of habitat. Why? For flood storage that should be placed under a parking lot 500 feet to the south, a parking lot which is about to be built on.

So how should we react to Silver Maple, Cambridge city councilors who destroy Cambridge ’s publicly owned environment, loudly proclaiming their environmental sanctity with regard to privately owned property mostly in Belmont ?

Nothing complicated about it, just another cynical con game.

Robert J. La Trémouille
875 Massachusetts Avenue, #31
Post Office Box 391412
Cambridge, MA 02139-0015
617-283-7649

Magazine Beach pesticides opposition

Cambridge residents concerned about the environment are contacting the City Council, registering opposition to the city's plans for Magazine Beach. These plans are to install professional-level fields, maintain them with chemicals including pesticides, and, to protect the stressed commercial turf, restrict use. Parts of Russell Field in North Cambridge are now open only with advance approval from the city.

Ann Spanel submitted the following letter to the City Council and copied it to the Cambridge Conservation Commission.

******

Dear Cambridge City Councilors:

I am strongly opposed to the use of pesiticides on ANY of Cambridge's fields, for any reason. I testified to that effect some years ago at a number of City hearings, and it was my understanding that the City's policy was NOT to use these poisons on our fields. Children and pets use these fields, and I am very concerned that you are adding ONE MORE TOXIN to our parks. . . . Cambridge is making it very hard for me to walk my dog safely in a City park. I am not at all pleased to learn that you plan to spray a field at Danehy Park as well. The idea that a field I could be walking on a pesticided field and my dog tracking pesticides into my house is unacceptable to me.

Cambridge is digging up and replacing the grass adapted to the riverfront environment [at Magazine Beach]. At great expense it's installing 7 acres of gravel, topsoil, commercial sod, and an irrigation system. The resulting, very expensive fields will need restricted use (as the city is doing at a new field in Danehy Park) and chemicals to maintain the "quality of turf our players deserve," as the DCR spokesperson told the Boston Conservation Commission about Ebersol Fields.

I am further concerned that Cambridge may follow suit in using Tartan, a pesticide forbidden to be used near water, that the DCR used on Ebersoll Field.

I look forward to hearing back from you.

****

Other residents wishing to register opposition can also e-mail the City Council (Council@Cambridgema.gov), and the Conservation Commission (jwright@CambridgeMA.GOV).

Marilyn Wellons

Analysis of the Urban Ring Certificate and Update

Bob La Trémouille reports:

1. Analysis by Archie Mazmanian.
2. Update from the State: Comments Posted.

1. Analysis by Archie Mazmanian.

Archie Mazmanian provides the following.

I apologize to Archie and the reader for my delay in posting this. I have been overloaded and I thought it was a lot longer than it is.

**************

There follow some of my initial reactions to MEPA’s Certificate dated March 6, 2009, in response to EOT’s RDEIR/DEIS filing. It runs some 9 pages and is available via EOT’s Urban Ring website: www.theurbanring.com.

1. While the bottom line of the Certificate calls for EOT to “ … submit a Notice of Project Change [NPC] to identify early action items and address issues pertaining to the phasing, financing, timing of construction, and implementation of the overall project … “ in effect it calls for a “do-over.” Reading between the lines, the Secretary tries to make lemonade out of the lemon that is EOT’s RDEIR/DEIS.

2. The Certificate state: “ … the NPC should include a copy of each comment letter … and thoroughly respond to each substantive comment received.” This is to be accomplished “ … no later than June 30, 2009.” I can hardly wait. The Certificate, at its end, lists 72 “Comments Received.”

3. For some reason, the Secretary gushes over “A Better City” (ABC), a not-for-profit (but perhaps not charitable) organization made up of developers and their support systems of attorneys, etc. This is the same ABC that lauded the Big Dig through its many travails over a long period of time at great taxpayers’ expense, a significant portion of which expense perhaps made its way into the coffers of ABC members. I recall ABC chastising complaints of North Enders whose neighborhood greatly suffered and was inconvenienced by the Big Dig for such a long period of time. With the same “usual suspects” salivating over Phase 2, what can we expect from ABC if and when Phase 2 gets underway?

4. And the Secretary applauds the CAC for its support of Phase 2. We all know that the main co-chair of the CAC is ABC’s designee. And there are many CAC members who are designees of powerful institutions, such as the LMA, Harvard, MIT and BU. Perhaps a review of the “Comments” made by CAC members representing residential neighborhoods and EOT’s responses thereto may paint a distinct minority position from that of the CAC institutional majority.

You may post this on your website if you wish. Perhaps others with residential neighborhoods interests may wish to provide their comments on the Certificate. Pending June 30th, might we expect CAC or other public meetings?

Thanks, Archie.

***********

I know nothing about “A Better City.” It, however, sounds very much and too much like entities which show up in Cambridge featuring friends of the Cambridge City Manager and the ilk.

2. Update from the State: Comments Posted.

Archie forwarded the following update:

*************

Dear CAC Members and Interested Parties,

All of the comment letters submitted to the MEPA office on the RDEIR have now been posted to the project website, www.theurbanring.com. The direct link to the comment letters is here https://www.commentmgr.com/projects/1169/docs/RDEIR_Comment_Ltrs.pdf

Please let me know if you have any questions or problems accessing the file.

Thanks,

Regan

Regan Checchio
Public Affairs Manager
Regina Villa Associates
51 Franklin St., 4th floor
Boston, MA 02110
Ph: 617-357-5772 ext. 14
Fax: 617-357-8361
E-mail: rchecchio@reginavilla.com

Environmental Destruction in North Cambridge

Bob La Trémouille reports:

About a week or so ago, I attended a meeting of the North Cambridge city manager group, the North Cambridge Defense Fund.

A lady attended who was distressed about the denial of use of a playing field at Russell Field to residents.

Russell Field is perhaps 300 feet east of Alewife station.

It has recently been “improved.”

Children have been thrown off an unused soccer field because they did not obtain permission from city officials to use this soccer field, right near their homes.

The same sort of outrage is scheduled for Magazine Beach after the eight environmental destroyers on the Cambridge City Council finish replacement of green maintenance with chemical maintenance.

An individual in the room who has more than ten years experience fighting for fake downzonings recommended talking with the group’s former leader, Craig Kelley.

Kelley is one of the eight continuing environmental destroyers on the Cambridge City Council. Kelley had the fraud to run as an environmentalist while “neglecting” to mention support for environmental destruction by the city of Cambridge where it counts. Kelley also neglected to mention support for heartless animal abuse on the Charles River. Kelley is a tertiary environmentalist and a primary environmental destroyer. In the secret definition the Cambridge pols use, this is “environmentalism.”

Kelley also has been part of the more than a decade of destruction of zoning protections through fake downzonings.

The individual recommending Kelley calls himself a zoning expert. He goes to the City Manager to find out his opinion on zoning issues.

This neighborhood is near where Jeff Manzelli lived, and for whose “leaders” Jeff expressed such contempt in his report in his report at http://charlesriverwhitegeeseblog.blogspot.com/2009/03/litigants-opinion-on-monteiro-judge.html. I entitled Jeff's report “A litigant’s opinion on the Monteiro judge."

Papers filed in Monteiro Case

Bob La Trémouille reports.

The following docket entry was added on March 3, 2009:

1 Defendant's submission of trial transcripts as available on date of
2 filing

This is an apparent implementation of the entries I reported on at http://charlesriverwhitegeeseblog.blogspot.com/2009/02/monteiro-case-update.html, below.

A litigant's opinion on the Monteiro judge

Jeff Manzelli, who did an excellent job creating the Charles River White Goose website, was a defendant in a pro-se tort suit in front of the judge handling the Melvina Monteiro court case.

He reports that the pro-se action against him was rather outrageously false.

According to Jeff, some new neighbors had moved into the upstairs apartment in the two family where he had lived for quite awhile. The new neighbors decided they wanted him out, not because of bad behavior by him, but essentially because he was not their "type."

Jeff gives the following report on what he saw of the judge. I have edited his comments to delete details of the situation which brought him to Court and to substitute generic descriptions for the names of two male participants. I have otherwise fully retained his report on the court experience.

**************

The Court Case

The Ugly One and matriarch coerced their dim-witted bully son to file a pathetic, hand-scrawled tort court against me. All allegations were false, and he appeared sans witnesses. Given the risk associated with such allegations, I was well prepared, with eight supporters, having also been prepped pro-bono, by various friendly attorneys. I watched McLeod-Mancuso judgify for hours until our turn. During this time, she had the judgely opportunity to observe all of us there in the pews of the religion of bogosity called American Justice.

Due to the child being involved, (the child was being abused, but by his psycho "family") their complaint was given way too much weight, of course. Then my complaint was presented, and the tide turn (because it predated theirs. Sick as Shit Legal Tip: ALWAYS FILE FIRST!!!) Within minutes the complaining son was shouting at Mancuso who asked him whether he was "thick-headed." (Words cannot describe.) I felt the cloud lifting and showed my new lease, and explained I had been driven out. She sent the dispute to mediation.

Mediation is "secret" but I can say that things worked out to minimize harm to me, and to the poor kid, whom the "family" had terrorized for their "gain," calling me "the bad man."

My View on Da Judge

My opinion's a bit limited on her handling of technical questions, as the legal points I saw argued were mostly obscure case law. So I see her as being very cautious and thorough, unlikely to have a mistrial. Bends over backwards, giving benefit of doubt in all situations, extending deadlines, and so forth. She's infinitely patient, the opposite of a "Judge" Judy.

But where the City is involved, even a strong Judge can cave to "influence." and Cambridge is probably the most elite-controlled city I've lived in, CCTV being an example of a well-controlled PR front for the powers that do be do be doo.

Urban Ring Phase 2 - EOT Extension

1. Report.
2. Bob Replies.

1. Report.

Archie Mazmanian reports the following:

At EOT's website there are posted EOT's request for a two-week extension to March 6, 2009, and its grant. I take this to mean that EOT needed more time to respond to MEPA with respect to the many comments submitted on the RDEIR/DEIS. But I am confused by this in the response: "The Certificate on the RDEIR will now be issued on March 6, 2009." I would assume it might take MEPA months to review the RDEIR/DEIS, public comments and EOT responses to such comments. Maybe the "Certificate" is some sort of formality.

Considering the post-RDEIR/DEIS filing events about Harvard's financial problems and its development delays in Allston, as well as the economy in general, it would seem that EOT should withdraw the RDEIR/DEIS because of significant changes in circumstances. Or at a minimum, EOT should submit an Addendum reflecting such changes and their impacts, with an opportunity for the public to comment. Otherwise, MEPA's review would non-reflective of reality.

EOT has no meetings scheduled at least through May. It seems as if it has its head in the sand.

And Brookline's Transportation Board will consider the impact on Brookline of the BU Bridge redesign at its May 5th meeting. I understand the contracts for the redesign have been let out. What can Brookline do other than perhaps consider traffic changes on Brookline streets? And what can Cambridge do, assuming that the redesign will impact traffic in Cambridge? It seems that there is no coordination between not only municipalities and the state but also between state agencies.

Archie Mazmanian

2. Bob Replies.

The City of Cambridge and all eight continuing city councilors are the bad guys.

Monteiro Case Update

Bob La Trémouille reports.

1. Action this Week.
2. Evaluation.
3. Brief summary of the Record.
4. Prior Judge’s order in response to City’s Motion for Verdict for Defense.


1. Action this Week.

The following entries were placed on the docket during the past week in Malvina Monteiro v. City of Cambridge, Middlesex Division Superior Court Civil Action MICV2001-02737:

I do not have access to papers in the case. I solely have access to the docket which is very abbreviated summaries of papers filed and similar actions.

February 25, 2009:

1 Pleading, Copy of 3 Transcripts, returned to Joan A Lukey, Esq.:
2 court does not except copies.

Joan A. Lukey is the City of Cambridge’s lawyer.

February 26, 2009:

1 Per Judge MacLeod-Mancuso's direction, clerk requested copies of
2 transcripts from Tracy E. Brown, Assistant to Defense Counsel, Joan
3 Lukey to be delivered to the Court. Copies of transcripts recevied
4 from: May 5, 2008, May 20, 2008, May 21, 2008 and transcript of
5 portions of testimony of Robert Healey (Pages 86-92)

2. Evaluation.

My guesstimate of the situation is that the longer the judge sits on this case, the more likely she is to come up with an order firing the Cambridge City Manager with loss of pension.

The actions of the City of Cambridge look to me like acts of desperation as a result of the city’s attorney agreeing with me in my guesstimate.

The judge is extending Cambridge every courtesy, thus documenting the judge's reasonableness toward the City of Cambridge.

3. Brief summary of the Record.

In May 2008, a jury found that the Cambridge City Manager had deliberately destroyed the life of a black woman Cape Verdean department head in retaliation for her filing a civil rights complaint.

The jury ordered $1.1 million or so real damages plus $3.5 million penal damages.

Cambridge moved for verdict for the defendant notwithstanding the jury verdict or for reduction in damages.

In June a hearing was conducted on the motion. There were post hearing filings apparently stemming from the hearing, the last of which was in August.

In November, first the plaintiff’s attorney, then the defendants attorney filed letters with the court. I presume these were reminders to the court that the court’s decision was awaited on the post trial motions.

4. Prior Judge’s order in response to City’s Motion for Verdict for Defense.

On June 2, 2005, the following was placed on the docket by Judge Catherine A. White, the judge in the first trial:

No. Docket Entry:
1 ORDER on Defendant's Motion for Directed Verdict and/or
2 Reconsideration of the Denial of Motion for Directed Verdict:
3 Evidence at the trial of this matter demonstrated that, admittedly, a
4 long period of time elapsed between plaintiff's initial complaint of
5 discrimination and the ultimate decision to terminate her. However,
6 there was also evidence of a number of incidents that could arguably
7 be viewed as retaliatory and not neutral events. Accordingly, this
8 Court does not find, as a matter of law, that the passage of time
9 makes plaintiff's retaliation claim untenable. Plaintiff's statement
10 of supplemental authority, forwarded to the Court on April 21, 2005
11 does not persuade the Court to change its earlier rulings.
12 Accordingly, this motion to reconsider the Court's earlier denial of
13 a motion for directed verdict on this issue is denied, and the motion
14 for directed verdict at the close of all of the evidence remains
15 denied. Finally, the request for a Rule 64(a) report to the Appeals
16 Court is also denied. ORDER on Defendant's Motion for Directed
17 Verdict and/or Reconsideration of the Denial of Motion for Directed
18 Verdict: Evidence at the trial of this matter demonstrated that,
19 admittedly, a long period of time elapsed between plaintiff's initial
20 complaint of discrimination and the ultimate decision to terminate
21 her. However, there was also evidence of a number of incidents that
22 could arguably be viewed as retaliatory and not neutral events.
23 Accordingly, this Court does not find, as a matter of law, that the
24 passage of time makes plaintiff's retaliation claim untenable.
25 Plaintiff's statement of supplemental authority, forwarded to the
26 Court on April 21, 2005 does not persuade the Court to change its
27 earlier rulings. Accordingly, this motion to reconsider the Court's
28 earlier denial of a motion for directed verdict on this issue is
29 denied, and the motion for directed verdict at the close of all of
30 the evidence remains denied. Finally, the request for a Rule 64(a)
31 report to the Appeals Court is also denied. Dated: May 27, 2005
32 (White, Catherine A.) Justice of the Superior Court. Dated: May 27,
33 2005