[Ed (Bob La Trémouille): DOT gives the impression that they are, for now, backing off all but the "northern tier" parts of the Urban Ring, mostly north of Cambridge. The fine print seems to attempt to keep parts of the "southern tier" alive through odd maneuvers. Nothing should be taken for granted.]
Archie Mazmanian reports:
The Executive Office of Transportation (EOT) has posted at its website – www.theurbanring.com - its Notice of Project Change (NPC) filing of June 30, 2009. (To access the NPC, go to this website, click on Reference Materials, then click on Current Materials and under the heading Notice of Project Change – June 30, 2009 (2), download 07-Jul-2009 Notice of Project Change.)
A note of caution: The NPC is 526 pages long. But this should not discourage visitors to your Blog who are not on a payroll of a municipality or institutional stakeholder from reviewing the NPC. The guts of the NPC are set forth in “Attachment 6: Project Change Description – Supporting Details.” At a minimum, read Pages 19 through 34 of Attachment 6; but be aware that the pagination on the NPC download is different, so that Sheets/pages 35 through 50 should be accessed AND PRINTED OUT.
Section “6.4 Response to Comments on RDEIR” begins at Sheet/page 52, continuing at great length (paginated 1 through 232). Unfortunately, the download Sheets/pages differ, making it difficult maneuvering to selected responses. Sheets/pages 52 through 54 set forth various Categories of Comment Letters that EOT’s responses relate to, listing names in such Categories. Because of time limitations, I would suggest that visitors to your Blog might focus on EOT’s responses to “Individual Comments” and selected “Community Advocacy and Organization Comments” and selected “Institution Comments.”
Beginning AFTER Section 6.4, there appear the actual Comment Letters annotated and separated into the various Categories described in Section 6.4. Maneuvering through the Comment Letters can be very time consuming as well as difficult because of different paginations as noted above.
Hopefully, the above will serve as a guide to visitors to your Blog in reviewing the NPC. The public comment period is scheduled to begin July 7th and close August 7, 2009. Beginning in the next day or so, I plan to provide commentary on the NPC, in particular as it impacts the BU Bridge area that has long had serious traffic and transportation issues for commuters and adjoining neighborhoods. EOT is suggesting with the NPC a half a loaf approach for Phase 2 of the Urban Ring with a Northern Tier that is relatively inexpensive and set to go without too many obstacles (impediments), whereas much more time is needed for the Southern Tier that includes the Charles River crossing, the Longwood Medical/Fenway/Academies area as well as the Allston connection (read Harvard) because of many overwhelming obstacles (impediments), financial and otherwise.
Visitors to your Blog residing in communities in Cambridge, Boston (Allston and the Fenway in particular) and Brookline must pay close attention to the NPC’s impacts on their communities in the Southern Tier to make sure that existing traffic and transportation problems are not exacerbated. They must take the time to submit their comments on the NPC.
EOT is keeping its “hat in the ring,” i.e., the Urban Ring, even though difficulties – some insurmountable – with the Southern Tier may bring tears to the eyes of residents in these communities that would not be tears of joy.
You may post this on your Blog if you wish.
Tuesday, July 07, 2009
Monday, July 06, 2009
DCR "Public Hearing" Nonsense, A Responsible Proposal for the Charles River
Last Tuesday, June 30, the Department of Conservation and Recreation held a “public hearing” on the Boston University campus concerning the BU Bridge Repair project.
The “public hearing” was an excellent example of bad faith as the DCR papered over continuing, needless environmental destruction and heartless animal abuse.
This is part of a series of strikingly irresponsible projects being progressed in spite of lack of merit. The protagonists routinely use whatever technique is available to further unworthy ends.
Key in the BU Bridge Repair project is not the needed repairs, but the totally unnecessary destruction included in it. It is no wonder that none of the three “public hearings” on this destruction have been conducted in Cambridge near the destruction in spite of very clear promises to do so. A related, non-destructive project has had a public hearing in the Morse School.
The BU Bridge Repair project furthers destruction of habitat aimed at the very popular and valuable Charles River White Geese. It destroys all the undestroyed vegetation in their nesting area just east of the BU Bridge. Half of the destruction is for staging that should be placed under Memorial Drive where staging was placed for the BU Bridge sidewalk project.
The project completes the destruction of all ground vegetation located between the BU Bridge and the BU Boathouse. The rest of the ground vegetation has been destroyed in stages since the DCR and Cambridge confined the Charles River White Geese to this tiny portion of their mile long habitat in September 2004. It would turn three quarters of the nesting area into a construction zone, leaving the geese with one quarter of the nesting area, all of which has been denuded of ground vegetation by the DCR. Even the tiny amount of grass under Memorial Drive across the on ramp would be taken from them.
In September 2004, the DCR and Cambridge started starving them. It was a two pronged attack. Half their food was taken from them by the City with a plastic starvation wall at the edge of the Charles River across from the Hyatt. Their food at Magazine Beach was blocked first with excavation, and then with a bizarre wall of introduced vegetation which has no business on the Charles River.
The DCR has repeatedly promised “no intent” to harm the Charles River White Geese, starting with their attack on the Nesting Area in fall 1999. The DCR explains that, in their world, starving the Charles River White Geese is not harming them.
Currently also pending is the replacement of Green playing fields at Magazine Beach with SMALLER poison maintained playing fields. The decrease in size is “needed” to put in an expensive drainage system to carry away poisons which have no business being dumped on the banks of the Charles River.
In addition to starving local animals, the Cambridge City Council is also taking Magazine Beach away from the general public. Magazine Beach, which has been used for pick up sports activities for the better part of a Century, will be prohibited for use without specific advance permission. This is an extension of the police enforced prohibition of neighborhood pick up games at Russell Field.
The Boston Conservation Commission, when faced with a similar situation at Ebersol Field near Mass. General Hospital, ordered signs posted allowing public use when not scheduled through central scheduling. The Boston Conservation Commission disagrees with the Cambridge City Council’s intents at Magazine Beach.
The DCR has informed the Cambridge Conservation Commission of its intent to destroy hundreds of healthy trees, including every cherry tree, between the BU and Longfellow Bridges. The DCR, working closely with Cambridge, is offended that Memorial Drive has hundreds of mature, healthy trees which did not appear on 19th Century plans for what was then a treeless tidal wetlands. Obama stimulus moneys will be used with Governor Patrick’s blessing.
Part of the tree destruction project will include reinstatement of the plastic starvation wall across from the Hyatt.
Maximum secrecy can be expected. If people know what is going on, they might object, and that would involve people knowing just how bad the Cambridge City Council and Governor Patrick are when it comes to environmental destruction, heartless animal abuse, and denying public services to the public.
Responsible behavior would defer the BU Bridge Repair project until Magazine Beach is livable for the Charles River White Geese. Key in the livability would be destruction of the bizarre starvation wall, return to Green Maintenance and killing of the silly, expensive drainage system which is not needed for green maintenance. The nesting area, as well, should be allowed to the Charles River White Geese for uses as they deem fit, including the nesting uses which they have done there for 28 years. Destruction should be limited to needed destruction, not the outrageous staging use which belongs under Memorial Drive.
It would also be minimal for the Cambridge City Council to behave as responsibly as the Boston Conservation Commission and return Magazine Beach to use by the public when it is not otherwise scheduled.
Plus, it would be nice to refrain from destroying hundreds of healthy, mature trees because they do not appear on a 19th Century plan for what was then a treeless tidal wetlands, and do not do that part of the starvation attacks.
The “public hearing” was an excellent example of bad faith as the DCR papered over continuing, needless environmental destruction and heartless animal abuse.
This is part of a series of strikingly irresponsible projects being progressed in spite of lack of merit. The protagonists routinely use whatever technique is available to further unworthy ends.
Key in the BU Bridge Repair project is not the needed repairs, but the totally unnecessary destruction included in it. It is no wonder that none of the three “public hearings” on this destruction have been conducted in Cambridge near the destruction in spite of very clear promises to do so. A related, non-destructive project has had a public hearing in the Morse School.
The BU Bridge Repair project furthers destruction of habitat aimed at the very popular and valuable Charles River White Geese. It destroys all the undestroyed vegetation in their nesting area just east of the BU Bridge. Half of the destruction is for staging that should be placed under Memorial Drive where staging was placed for the BU Bridge sidewalk project.
The project completes the destruction of all ground vegetation located between the BU Bridge and the BU Boathouse. The rest of the ground vegetation has been destroyed in stages since the DCR and Cambridge confined the Charles River White Geese to this tiny portion of their mile long habitat in September 2004. It would turn three quarters of the nesting area into a construction zone, leaving the geese with one quarter of the nesting area, all of which has been denuded of ground vegetation by the DCR. Even the tiny amount of grass under Memorial Drive across the on ramp would be taken from them.
In September 2004, the DCR and Cambridge started starving them. It was a two pronged attack. Half their food was taken from them by the City with a plastic starvation wall at the edge of the Charles River across from the Hyatt. Their food at Magazine Beach was blocked first with excavation, and then with a bizarre wall of introduced vegetation which has no business on the Charles River.
The DCR has repeatedly promised “no intent” to harm the Charles River White Geese, starting with their attack on the Nesting Area in fall 1999. The DCR explains that, in their world, starving the Charles River White Geese is not harming them.
Currently also pending is the replacement of Green playing fields at Magazine Beach with SMALLER poison maintained playing fields. The decrease in size is “needed” to put in an expensive drainage system to carry away poisons which have no business being dumped on the banks of the Charles River.
In addition to starving local animals, the Cambridge City Council is also taking Magazine Beach away from the general public. Magazine Beach, which has been used for pick up sports activities for the better part of a Century, will be prohibited for use without specific advance permission. This is an extension of the police enforced prohibition of neighborhood pick up games at Russell Field.
The Boston Conservation Commission, when faced with a similar situation at Ebersol Field near Mass. General Hospital, ordered signs posted allowing public use when not scheduled through central scheduling. The Boston Conservation Commission disagrees with the Cambridge City Council’s intents at Magazine Beach.
The DCR has informed the Cambridge Conservation Commission of its intent to destroy hundreds of healthy trees, including every cherry tree, between the BU and Longfellow Bridges. The DCR, working closely with Cambridge, is offended that Memorial Drive has hundreds of mature, healthy trees which did not appear on 19th Century plans for what was then a treeless tidal wetlands. Obama stimulus moneys will be used with Governor Patrick’s blessing.
Part of the tree destruction project will include reinstatement of the plastic starvation wall across from the Hyatt.
Maximum secrecy can be expected. If people know what is going on, they might object, and that would involve people knowing just how bad the Cambridge City Council and Governor Patrick are when it comes to environmental destruction, heartless animal abuse, and denying public services to the public.
Responsible behavior would defer the BU Bridge Repair project until Magazine Beach is livable for the Charles River White Geese. Key in the livability would be destruction of the bizarre starvation wall, return to Green Maintenance and killing of the silly, expensive drainage system which is not needed for green maintenance. The nesting area, as well, should be allowed to the Charles River White Geese for uses as they deem fit, including the nesting uses which they have done there for 28 years. Destruction should be limited to needed destruction, not the outrageous staging use which belongs under Memorial Drive.
It would also be minimal for the Cambridge City Council to behave as responsibly as the Boston Conservation Commission and return Magazine Beach to use by the public when it is not otherwise scheduled.
Plus, it would be nice to refrain from destroying hundreds of healthy, mature trees because they do not appear on a 19th Century plan for what was then a treeless tidal wetlands, and do not do that part of the starvation attacks.
Thursday, July 02, 2009
Monteiro Case: Plaintiff wants decision changed; Cambridge works on appeal package
1. Plaintiff files to change Judgment.
2. Cambridge still working on appeal package.
3. Analysis.
Bob Reports.
1. Plaintiff files to change Judgment.
The plaintiff filed the following on June 26:
1 Plaintiff Monteiro's Motion To Clarify, Alter And Amend The Court's
2 Judgment On Jury Verdicts Dated June 2, 2009 And Request For Hearing;
3 Defendnat's opposition to Plaintiff Monteiro's Motion To Clarify,
4 Alter And Amend The Court's Judgment On Jury Verdicts Dated June 2,
5 2009
2. Cambridge still working on appeal package.
The Court filed the following on June 24:
1 Court received Letter from Joan A. Lukey: In response to your letter
2 dated June 19, 2009 and pursuant to Mass R. App. P. 8(b)(1) and
3 9c(2), I hereby certify that: 1. All transcripts have previously been
4 ordered. 2. The following transcripts have been completed and are on
5 file with the Court: May, 5, 2008; May 6, 2008; May 9, 2008; May 12,
6 2008; May 13, 2008; May 15, 2008; May 16, 2008; May 19, 2008; May 20,
7 2008; May 21, 2008; May 22, 2008; May 23, 2008. 3. We have previously
8 requested the transcripts for May 7, 2008 and May 8, 2008. I am also
9 formally re-requesting these two transcripts by separate
10 correspondence to Court Reporters Kristin Simonini and Melissa
11 Spirito, respectively. The Transcripts for the above mentioned dated
12 comprise the entire transcript.
3. Analysis.
I do not have any of the papers. These reports are based on the on line court docket. Most such items are just the title of documents. The line numbers showing on the left margin are direct copies of the docket.
There rather clearly is something in the Court’s judgment which the Plaintiff is unhappy with. Cambridge would have been aware of this motion before Cambridge filed notice of appeal since the motion is served on the other party and the responding party has an opportunity to serve a response.
As far as the appeal letter goes, Cambridge filed notice of appeal. Then Cambridge has a duty to ensure the court’s records are adequate for review by the appellate court before the records are forwarded to the appellate court. Cambridge is saying by this letter that it still needs at least to add two days of trial transcripts before the file is ready for appeal.
2. Cambridge still working on appeal package.
3. Analysis.
Bob Reports.
1. Plaintiff files to change Judgment.
The plaintiff filed the following on June 26:
1 Plaintiff Monteiro's Motion To Clarify, Alter And Amend The Court's
2 Judgment On Jury Verdicts Dated June 2, 2009 And Request For Hearing;
3 Defendnat's opposition to Plaintiff Monteiro's Motion To Clarify,
4 Alter And Amend The Court's Judgment On Jury Verdicts Dated June 2,
5 2009
2. Cambridge still working on appeal package.
The Court filed the following on June 24:
1 Court received Letter from Joan A. Lukey: In response to your letter
2 dated June 19, 2009 and pursuant to Mass R. App. P. 8(b)(1) and
3 9c(2), I hereby certify that: 1. All transcripts have previously been
4 ordered. 2. The following transcripts have been completed and are on
5 file with the Court: May, 5, 2008; May 6, 2008; May 9, 2008; May 12,
6 2008; May 13, 2008; May 15, 2008; May 16, 2008; May 19, 2008; May 20,
7 2008; May 21, 2008; May 22, 2008; May 23, 2008. 3. We have previously
8 requested the transcripts for May 7, 2008 and May 8, 2008. I am also
9 formally re-requesting these two transcripts by separate
10 correspondence to Court Reporters Kristin Simonini and Melissa
11 Spirito, respectively. The Transcripts for the above mentioned dated
12 comprise the entire transcript.
3. Analysis.
I do not have any of the papers. These reports are based on the on line court docket. Most such items are just the title of documents. The line numbers showing on the left margin are direct copies of the docket.
There rather clearly is something in the Court’s judgment which the Plaintiff is unhappy with. Cambridge would have been aware of this motion before Cambridge filed notice of appeal since the motion is served on the other party and the responding party has an opportunity to serve a response.
As far as the appeal letter goes, Cambridge filed notice of appeal. Then Cambridge has a duty to ensure the court’s records are adequate for review by the appellate court before the records are forwarded to the appellate court. Cambridge is saying by this letter that it still needs at least to add two days of trial transcripts before the file is ready for appeal.
Friday, June 19, 2009
Cambridge’s Notice of Appeal in Monteiro case.
Bob Reports:
For your information, the following is copied from docket on 6/19/09, edited into outline format:
It was filed on 6/17/09, notice sent to all counsel of record 6/19/09:
***********
Defendant City of Cambridge's notice of appeal:
From
(1) Judgment on Jury Verdicts entered on June 2, 2009;
(2) Order entered on May 8, 2009 denying the defendant's post-trial motions including without limitation:
a) Defendant's Motion for Judgment Notwithstanding the Verdict; and
b) Defendant's Motion for a New Trial, or, in the Alternative, for a Remittitur, and
c) Motion to Supplement the Record on Appeal.
(4) [Ed: no (3) on the docket] Order from the Bench at the Charge Conference in May, 8 2008, rejecting Defendant's proposed retaliation charge under McCormack v. Boston Edison, and other objections as preserved.
(5) Order denying Defendant City of Cambridge's Motion for reconsideration of Decision and Order on Post-Trial Motions.
(6) Order from the bench Denying Defendant City of Cambridge's Motion for Directed Verdict dated May 20, 2008.
(7) Order from the Bench of May 13, 2008 denying Defendant's Motion for Mistrial in connection with the admission of so-called "comparator" evidence;
(8) Order denying Defendant's Motion for Directed Verdict dated February 22, 2005;
(9) Order denying Defendant's Motion for Directed Verdict and/or Reconsideration of the Denial of Motion for Directed Verdict dated June 2, 2005;
(10) Order Denying Motion of Defendant City of Cambridge for Entry of Partial Judgment dated August 4, 2005; and
(11) January 2005 Order from the Bench allowing plaintiff Monteiro's Motion to Amend Complaint filed on December 14, 2004.
For your information, the following is copied from docket on 6/19/09, edited into outline format:
It was filed on 6/17/09, notice sent to all counsel of record 6/19/09:
***********
Defendant City of Cambridge's notice of appeal:
From
(1) Judgment on Jury Verdicts entered on June 2, 2009;
(2) Order entered on May 8, 2009 denying the defendant's post-trial motions including without limitation:
a) Defendant's Motion for Judgment Notwithstanding the Verdict; and
b) Defendant's Motion for a New Trial, or, in the Alternative, for a Remittitur, and
c) Motion to Supplement the Record on Appeal.
(4) [Ed: no (3) on the docket] Order from the Bench at the Charge Conference in May, 8 2008, rejecting Defendant's proposed retaliation charge under McCormack v. Boston Edison, and other objections as preserved.
(5) Order denying Defendant City of Cambridge's Motion for reconsideration of Decision and Order on Post-Trial Motions.
(6) Order from the bench Denying Defendant City of Cambridge's Motion for Directed Verdict dated May 20, 2008.
(7) Order from the Bench of May 13, 2008 denying Defendant's Motion for Mistrial in connection with the admission of so-called "comparator" evidence;
(8) Order denying Defendant's Motion for Directed Verdict dated February 22, 2005;
(9) Order denying Defendant's Motion for Directed Verdict and/or Reconsideration of the Denial of Motion for Directed Verdict dated June 2, 2005;
(10) Order Denying Motion of Defendant City of Cambridge for Entry of Partial Judgment dated August 4, 2005; and
(11) January 2005 Order from the Bench allowing plaintiff Monteiro's Motion to Amend Complaint filed on December 14, 2004.
Thursday, June 18, 2009
Allston Planning in Context.
Archie Mazmanian reports (with technical edits, Bob, ed.):
The Executive Office of Transportation (EOT) has posted at its Urban Ring website on 17-Jun-2009 its presentation "Allston Multimodal Station Study" at a June 15, 2009 Allston-Brighton Community Meeting.
I did not attend this meeting nor have I fully studied the presentation. But I direct you and visitors to your Blog to Slide 33 "Coordination with Other Projects" to add to my earlier post under the heading "Long Term Planning Issues: BU Bridge ..." on June 17th. WOW!
And what can we expect on the Cambridge side of the Charles River?
On an earlier occasion I made reference to the rail yards in Allston as a potential Prudential Center-type complex (coincidentally also involving rail yards). Imagine the impact on traffic and transportation issues on both sides of the River.
EOT's website is at: http://www.theurbanring.com.
Click (left margin) on "Reference Materials" and then "Current Materials" for CAC # 25 June 10, 2009
The Executive Office of Transportation (EOT) has posted at its Urban Ring website on 17-Jun-2009 its presentation "Allston Multimodal Station Study" at a June 15, 2009 Allston-Brighton Community Meeting.
I did not attend this meeting nor have I fully studied the presentation. But I direct you and visitors to your Blog to Slide 33 "Coordination with Other Projects" to add to my earlier post under the heading "Long Term Planning Issues: BU Bridge ..." on June 17th. WOW!
And what can we expect on the Cambridge side of the Charles River?
On an earlier occasion I made reference to the rail yards in Allston as a potential Prudential Center-type complex (coincidentally also involving rail yards). Imagine the impact on traffic and transportation issues on both sides of the River.
EOT's website is at: http://www.theurbanring.com.
Click (left margin) on "Reference Materials" and then "Current Materials" for CAC # 25 June 10, 2009
Wednesday, June 17, 2009
EOT report on Urban Ring
Archie Mazmanian reports as follows (acronyms spelled out, Bob, Ed.). His report on this meeting is in a report below:
The Executive Office of Transportation (EOT) posted at its Urban Ring website yesterday (June 16, 2009) its Presentation at the Citizen’s Advisory Committee (CAC) 6/10/09 Meeting. While the entire Presentation is quite interesting, residents on both sides of the BU Bridge, including Allston, should check slides 15 through 19 at a minimum since they address Segment B that would be the busiest segment of the Urban Ring.
EOT's website is at: http://www.theurbanring.com.
The Executive Office of Transportation (EOT) posted at its Urban Ring website yesterday (June 16, 2009) its Presentation at the Citizen’s Advisory Committee (CAC) 6/10/09 Meeting. While the entire Presentation is quite interesting, residents on both sides of the BU Bridge, including Allston, should check slides 15 through 19 at a minimum since they address Segment B that would be the busiest segment of the Urban Ring.
EOT's website is at: http://www.theurbanring.com.
Long Term Planning Issues: BU Bridge / Urban Ring / Institutions, and the Impact on Residents
Archie Mazmanian reports (I have spelled out one acronym and added one clarification, Bob, ed.):
As I eagerly await the Executive Office of Transportation (EOT)’s Notice of Project Change on Phase 2 of the Urban Ring, I think of the Inner Belt of yesteryear that would have devastated the Cottage Farm neighborhood in Brookline (where I now reside), perhaps “double-decked” the BU Bridge and then devastated neighborhoods on the Cambridge side but for residents in the more affluent section of Jamaica Plain, Brookline and Cambridge active opposition that proved successful. Prior thereto, portions of lower economic neighborhoods in Jamaica Plain, Roxbury and the South End on the southerly portion of the proposed Inner Belt route and in Somerville on the northerly portion had been demolished, devastated, in the days when there was no concept of economic justice in evaluating projects such as the Inner Belt. Many residents currently residing in Boston, Brookline and Cambridge may not know much of the Inner Belt. Its history available at:
http://www.bostonroads.com/roads/inner-belt/
is relevant to Phase 2 of the Urban Ring’s proposal for the Charles River crossing.
For several months the BU Bridge has been undergoing long neglected repairs, causing serious traffic and transportation problems on both sides of the Charles River, exacerbating long existing traffic and transportation problems. Later this year, it is anticipated that a significant project will be undertaken to address serious structural problems with the BU Bridge that may take well over a year. But there are many other infrastructure issues and future projects in addition to Phase 2 in the area of the BU Bridge that need to be addressed in assessing Phase 2’s Charles River crossing.
1. A large portion of Commonwealth Avenue at the BU Bridge serves as a bridge over the MA Turnpike Extension that has serious structural problems. The B Commonwealth Green Line Branch trolleys are required to slow down to a crawl in passing over this bridge. This would be a major project. Consider the steps required to be taken to minimize traffic flow problems on the Extension and how this would be handled above at the Commonwealth Avenue and BU Bridge area.
2. Boston University’s (BU) Charles River campus has ambitious plans, including creating a “beach” from the northerly side of Commonwealth Avenue (just easterly of the BU Bridge) down to the Charles River (presumably crossing over Storrow Drive) that would eliminate University Road’s currently easy access to and from Storrow Drive East. In addition, BU has its eyes on developing air rights over the Extension, a small segment in Boston just to the west of the BU Bridge, and two huge footprint segments in Brookline south of Commonwealth Avenue between Essex and St. Mary’s Streets, that would introduce complex traffic and transportation issues directly for Boston and Brookline as well as users of the BU Bridge from points north and south. I have suggested elsewhere that perhaps BU had lobbied the Legislature earlier this year for a $4.1 million budget item for a transportation study of this area that might impact its plans.
3. The rotary on the Cambridge side of the BU Bridge is quite complex. EOT has long recognized significant changes would be required to this rotary to accommodate Phase 2’s 60-foot articulated BRT buses in order to be able to utilize the BU Bridge for Phase 2. How might such changes impact Cambridgeport neighborhoods (even assuming that EOT is able to utilize the Grand Junction Rail Line (GJRL) in Cambridge)? Traffic between the rotary and Central Square through narrow streets with parking and various one-way patterns is currently difficult enough.
4. And then there’s Harvard, the institutional elephant in the room with its proposed humongous Allston campus that wants-in to connect to Phase 2 somewhere in the area of the Boston side of the BU Bridge to provide access to Harvard’s burgeoning Longwood Medical Area. While current economic problems have slowed down Harvard’s Allston activities, it would be a long range project in any event, creating significant traffic and transportation issues not only in Allston but at the BU Bridge and thus Brookline and Cambridge for many years.
We all know how long it took to complete the Big Dig and how much it cost. We know that the Big Dig’s Charles River crossing was both difficult and expensive, finally accomplished with a humongous bridge that some, many, consider attractive. Phase 2 of the Urban Ring also has a major Charles River crossing problem. Funding apparently is not available to accomplish using the GJRL bridge under the BU Bridge. In addition, there are significant environmental issues to be addressed in expanding the former as well as legal issues with CSX for its continued freight rail use of the bridge together with continued rail access on the Boston side connecting to Beacon Yards. [ed: The railroad yards which are on the north side of Soldier’s Field Road, extending from Cambridge Street almost to the BU Bridge.]
Perhaps it is time for residents of Brookline, Boston and Cambridge to take a lesson from the days of the threats of the Inner Belt to their communities and demand a halt to EOT’s Phase 2 proposed Charles River crossing. EOT has yet to undertake serious engineering studies/designs for the Charles River crossing. While engineers can do just about anything, the results might not be successful. EOT should be required – and promptly – to come up with such studies/designs to test whether its proposed Charles River crossing will work. While the GJRL bridge under the BU Bridge is “cockamamie,” utilizing the BU Bridge (which may be reduced from 4 lanes to 3 lanes) is “cockamanier;” in fact, it’s NUTS!
As I eagerly await the Executive Office of Transportation (EOT)’s Notice of Project Change on Phase 2 of the Urban Ring, I think of the Inner Belt of yesteryear that would have devastated the Cottage Farm neighborhood in Brookline (where I now reside), perhaps “double-decked” the BU Bridge and then devastated neighborhoods on the Cambridge side but for residents in the more affluent section of Jamaica Plain, Brookline and Cambridge active opposition that proved successful. Prior thereto, portions of lower economic neighborhoods in Jamaica Plain, Roxbury and the South End on the southerly portion of the proposed Inner Belt route and in Somerville on the northerly portion had been demolished, devastated, in the days when there was no concept of economic justice in evaluating projects such as the Inner Belt. Many residents currently residing in Boston, Brookline and Cambridge may not know much of the Inner Belt. Its history available at:
http://www.bostonroads.com/roads/inner-belt/
is relevant to Phase 2 of the Urban Ring’s proposal for the Charles River crossing.
For several months the BU Bridge has been undergoing long neglected repairs, causing serious traffic and transportation problems on both sides of the Charles River, exacerbating long existing traffic and transportation problems. Later this year, it is anticipated that a significant project will be undertaken to address serious structural problems with the BU Bridge that may take well over a year. But there are many other infrastructure issues and future projects in addition to Phase 2 in the area of the BU Bridge that need to be addressed in assessing Phase 2’s Charles River crossing.
1. A large portion of Commonwealth Avenue at the BU Bridge serves as a bridge over the MA Turnpike Extension that has serious structural problems. The B Commonwealth Green Line Branch trolleys are required to slow down to a crawl in passing over this bridge. This would be a major project. Consider the steps required to be taken to minimize traffic flow problems on the Extension and how this would be handled above at the Commonwealth Avenue and BU Bridge area.
2. Boston University’s (BU) Charles River campus has ambitious plans, including creating a “beach” from the northerly side of Commonwealth Avenue (just easterly of the BU Bridge) down to the Charles River (presumably crossing over Storrow Drive) that would eliminate University Road’s currently easy access to and from Storrow Drive East. In addition, BU has its eyes on developing air rights over the Extension, a small segment in Boston just to the west of the BU Bridge, and two huge footprint segments in Brookline south of Commonwealth Avenue between Essex and St. Mary’s Streets, that would introduce complex traffic and transportation issues directly for Boston and Brookline as well as users of the BU Bridge from points north and south. I have suggested elsewhere that perhaps BU had lobbied the Legislature earlier this year for a $4.1 million budget item for a transportation study of this area that might impact its plans.
3. The rotary on the Cambridge side of the BU Bridge is quite complex. EOT has long recognized significant changes would be required to this rotary to accommodate Phase 2’s 60-foot articulated BRT buses in order to be able to utilize the BU Bridge for Phase 2. How might such changes impact Cambridgeport neighborhoods (even assuming that EOT is able to utilize the Grand Junction Rail Line (GJRL) in Cambridge)? Traffic between the rotary and Central Square through narrow streets with parking and various one-way patterns is currently difficult enough.
4. And then there’s Harvard, the institutional elephant in the room with its proposed humongous Allston campus that wants-in to connect to Phase 2 somewhere in the area of the Boston side of the BU Bridge to provide access to Harvard’s burgeoning Longwood Medical Area. While current economic problems have slowed down Harvard’s Allston activities, it would be a long range project in any event, creating significant traffic and transportation issues not only in Allston but at the BU Bridge and thus Brookline and Cambridge for many years.
We all know how long it took to complete the Big Dig and how much it cost. We know that the Big Dig’s Charles River crossing was both difficult and expensive, finally accomplished with a humongous bridge that some, many, consider attractive. Phase 2 of the Urban Ring also has a major Charles River crossing problem. Funding apparently is not available to accomplish using the GJRL bridge under the BU Bridge. In addition, there are significant environmental issues to be addressed in expanding the former as well as legal issues with CSX for its continued freight rail use of the bridge together with continued rail access on the Boston side connecting to Beacon Yards. [ed: The railroad yards which are on the north side of Soldier’s Field Road, extending from Cambridge Street almost to the BU Bridge.]
Perhaps it is time for residents of Brookline, Boston and Cambridge to take a lesson from the days of the threats of the Inner Belt to their communities and demand a halt to EOT’s Phase 2 proposed Charles River crossing. EOT has yet to undertake serious engineering studies/designs for the Charles River crossing. While engineers can do just about anything, the results might not be successful. EOT should be required – and promptly – to come up with such studies/designs to test whether its proposed Charles River crossing will work. While the GJRL bridge under the BU Bridge is “cockamamie,” utilizing the BU Bridge (which may be reduced from 4 lanes to 3 lanes) is “cockamanier;” in fact, it’s NUTS!
Friday, June 12, 2009
Urban Ring CAC, 6/10/09
Archie Mazmanian provides the following report on the Urban Ring Citizen’s Advisory Committee Meeting of June 10, 2009:
The CAC meeting of June 10, 2009, addressing EOT’s Notice of Project Change (NPC) required to be filed by June 30, 2009, was quite depressing. Prior to EOT’s Powerpoint slide show presentation, the CAC Chair Nally and Co-Chair Garver summarized a recent CAC Alternatives Subcommittee meeting that considered ABC proposals regarding the NPC. Co-Chair Garver presented what might have been a “majority” Subcommittee report followed by a CAC member from Somerville with what might have been a “minority” Subcommittee report. (I am not aware that this Subcommittee meeting was a public meeting. There was no indication of such on EOT’s Urban Ring website.)
EOT’s Ned Codd presented a dismal picture based upon realities of financial limitations. In effect he came up with what I have referred to on earlier occasions as EOT’s Plan B:
1. Use of the BU Bridge for Phase 2’s Charles River crossing; and
2. Surface routes – NO TUNNEL! – through the LMA/Fenway.
In addition, EOT’s slide show provided illustrations of Phase 2 segmented. Rather than attempt to describe them, those interested should periodically check EOT’s Urban Ring website for its anticipated posting of its presentation. [Note: Co-Chair Garver mentioned that EOT’s consultants contract expired at 2:30 PM on June 10th, which may impact activities on EOT’s website.]
Those who reviewed EOT’s RDEIR/DEIS are aware of “major impediments” described therein for various portions of Phase 2. In effect, these “major impediments” were repeated at this CAC meeting with subtle suggestions that not only have they not been resolved but perhaps may become more difficult to resolve, especially involving CSX easements critical to the Charles River crossing and accommodating Harvard’s Allston campus. I sense anxieties similar to the current situation nationally with General Motors and Chrysler that seems to get worse with time. The “Ring” may be breaking apart.
EOT’s required NPC will include responses to written comments from the public. These comments can be viewed at EOT’s website. For residents of Cambridge, Boston (especially Allston and Brighton) and Brookline who visit your Blog, I suggest a look at my comment letters at page 40 (27 pages) and at page 67 (2 pages), where I focus primarily on the Charles River crossing for Phase 2. While lengthy, my comments written in narrative form may be both informative and entertaining. The serious traffic and transportation issues involved with the BU Bridge on both sides of the Charles River impact these communities negatively as demonstrated on a daily basis. Just imagine the addition of the 60-foot articulated BRT buses to the current traffic.
There will be a public comment period, perhaps beginning July 8th, on EOT’s NPC that is to be filed by June 30th. Those interested should keep an eye on EOT’s website for postings. I had in an earlier letter described the requirement for the NPC as in effect a “do-over” of EOT’s RDEIR/DEIS. I can hardly wait.
During the public comment period for this meeting that ran quite late, Fred Salvucci provided some wise observations that may not be heeded. I also made some comments. In advance of this meeting based upon media reports on MA’s growing financial and ethical problems as well as on transportation issues, I came up with what might be considered a “sound bite” for the media if the media covered the Urban Ring and these CAC meeting, such coverage being non-existent. Accordingly my public comments included in substance:
“There is not enough POLITICAL VIAGRA in MA that would be required to straighten out the 60-foot articulated BRT buses of Phase 2.”
Times are tough financially – and politically – here in MA. But matters will only get worse if public transit and other transportation issues are not properly addressed and resolved. People have to be able to get to their jobs and back home.
By the way, Barry Steinberg has published “An Unofficial Condensation of Public Comments Prepared for the Association for Public Transportation, Inc.” providing an alphabetical listing of those who submitted public comments, their sequence on EOT’s CD-ROM, and a digest of portions that includes the CD-ROM page where a comment letter is located (as well as its length in pages), which provides convenience to those interested in reading some of the comment letters. Barry’s work runs some 21 pages. It is possible it may have been posted on the Internet. I’ll check with Barry and provide a link, if it has been posted.
The CAC meeting of June 10, 2009, addressing EOT’s Notice of Project Change (NPC) required to be filed by June 30, 2009, was quite depressing. Prior to EOT’s Powerpoint slide show presentation, the CAC Chair Nally and Co-Chair Garver summarized a recent CAC Alternatives Subcommittee meeting that considered ABC proposals regarding the NPC. Co-Chair Garver presented what might have been a “majority” Subcommittee report followed by a CAC member from Somerville with what might have been a “minority” Subcommittee report. (I am not aware that this Subcommittee meeting was a public meeting. There was no indication of such on EOT’s Urban Ring website.)
EOT’s Ned Codd presented a dismal picture based upon realities of financial limitations. In effect he came up with what I have referred to on earlier occasions as EOT’s Plan B:
1. Use of the BU Bridge for Phase 2’s Charles River crossing; and
2. Surface routes – NO TUNNEL! – through the LMA/Fenway.
In addition, EOT’s slide show provided illustrations of Phase 2 segmented. Rather than attempt to describe them, those interested should periodically check EOT’s Urban Ring website for its anticipated posting of its presentation. [Note: Co-Chair Garver mentioned that EOT’s consultants contract expired at 2:30 PM on June 10th, which may impact activities on EOT’s website.]
Those who reviewed EOT’s RDEIR/DEIS are aware of “major impediments” described therein for various portions of Phase 2. In effect, these “major impediments” were repeated at this CAC meeting with subtle suggestions that not only have they not been resolved but perhaps may become more difficult to resolve, especially involving CSX easements critical to the Charles River crossing and accommodating Harvard’s Allston campus. I sense anxieties similar to the current situation nationally with General Motors and Chrysler that seems to get worse with time. The “Ring” may be breaking apart.
EOT’s required NPC will include responses to written comments from the public. These comments can be viewed at EOT’s website. For residents of Cambridge, Boston (especially Allston and Brighton) and Brookline who visit your Blog, I suggest a look at my comment letters at page 40 (27 pages) and at page 67 (2 pages), where I focus primarily on the Charles River crossing for Phase 2. While lengthy, my comments written in narrative form may be both informative and entertaining. The serious traffic and transportation issues involved with the BU Bridge on both sides of the Charles River impact these communities negatively as demonstrated on a daily basis. Just imagine the addition of the 60-foot articulated BRT buses to the current traffic.
There will be a public comment period, perhaps beginning July 8th, on EOT’s NPC that is to be filed by June 30th. Those interested should keep an eye on EOT’s website for postings. I had in an earlier letter described the requirement for the NPC as in effect a “do-over” of EOT’s RDEIR/DEIS. I can hardly wait.
During the public comment period for this meeting that ran quite late, Fred Salvucci provided some wise observations that may not be heeded. I also made some comments. In advance of this meeting based upon media reports on MA’s growing financial and ethical problems as well as on transportation issues, I came up with what might be considered a “sound bite” for the media if the media covered the Urban Ring and these CAC meeting, such coverage being non-existent. Accordingly my public comments included in substance:
“There is not enough POLITICAL VIAGRA in MA that would be required to straighten out the 60-foot articulated BRT buses of Phase 2.”
Times are tough financially – and politically – here in MA. But matters will only get worse if public transit and other transportation issues are not properly addressed and resolved. People have to be able to get to their jobs and back home.
By the way, Barry Steinberg has published “An Unofficial Condensation of Public Comments Prepared for the Association for Public Transportation, Inc.” providing an alphabetical listing of those who submitted public comments, their sequence on EOT’s CD-ROM, and a digest of portions that includes the CD-ROM page where a comment letter is located (as well as its length in pages), which provides convenience to those interested in reading some of the comment letters. Barry’s work runs some 21 pages. It is possible it may have been posted on the Internet. I’ll check with Barry and provide a link, if it has been posted.
Thursday, June 11, 2009
President Obama and Governor Patrick to Needlessly Destroy Hundreds of Healthy Trees on the Cambridge Side of the Charles River in Massachusetts.
Bob Reports:
I lost part of the title. The full title is: President Obama and Governor Patrick to Needlessly Destroy Hundreds of Healthy Trees on the Cambridge Side of the Charles River in Massachusetts. Needless and silly environmental destruction part of the “economic stimulus.”
The following has been posted to Governor Patrick at http://www.mass.gov/?pageID=gov3utilities&sid=Agov3&U=Agov3_contact_us. President Obama places a character limit, so I will post a link to this blog posting with the index and whatever else I can get in that will fit the character limit. The president's URL is: http://www.whitehouse.gov/contact/
1. DCR Announces Obama moneys for environmental destruction.
2. The Details of the Project.
3. The DCR Record on the Charles River.
4. Supposed benefits from the Environmental Destruction.
5. Longtime supporter bemoans destruction of EVERY cherry tree.
6. Magazine Beach in context.
7. Ongoing poisoning of the Charles River.
8. Yet more lies: “Saving” Trees by Destroying them Next Week.
9. BU Bridge to be transferred to Massachusetts Highways. Mass Highways vetoes or delays some environmental destruction.
10. Destructive Plans proceed.
11. Accomplice, Cambridge City Manager, may be fired for Civil Rights behavior called “reprehensible” by judge and jury.
12. Summary.
1. DCR Announces Obama moneys for environmental destruction.
Environmentally destructive state bureaucrats from Massachusetts’ Department of Conservation and Recreation bragged to the Cambridge (MA) Conservation Commission Monday, June 8. They stated that they were securing funds for their long moribund so-called “Historical Parkways” project. This project is a major part of plans to destroy more than 449 to 660 healthy trees between Magazine Beach and the Longfellow Bridge on the Cambridge side of the Charles River.
2. The Details of the Project.
The bureaucrats claim they are implementing nineteenth century plans for the riverbanks. They neglect to mention that, in the nineteenth century the area was a tidal marsh. When the “Memorial Drive Esplanade” was built it generally was thought to be a major improvement over the wetlands destroyed. Today construction of the “Esplanade” would be an environmental crime, contrary to the Wetlands Protection Act.
The DCR's current “restoration” returns to destroying the environment. Hundreds of healthy trees not in the original plans, including all cherry trees, are to be destroyed.
Literally digging holes in the median of this section of Memorial Drive and filling them would be a better use of federal stimulus money. Instead the DCR is using our tax dollars to destroy beautiful, healthy trees that give pleasure to us all--for a stale and sterile “restoration.”
3. The DCR Record on the Charles River.
The bureaucrats, twice a year, destroy all protective vegetation on the Charles River below the Watertown Dam thus driving away migratory birds. The only exception is a bizarre wall of bushes blocking access between Magazine Beach and the Charles River. This blockage was bragged about as assisting swimming. The “native” vegetation introduced by the bureaucrats proceeded to repeatedly die because it was unfit for the environment.
Their representative brags that this wall starves local resident waterfowl. The wall of bushes was introduced in 2004 with the explanation that it would assist swimming on the Charles. The bureaucrats have bragged since 2000 that they have no intention to harm the local animal residents, the Charles River White Geese. They explain that starving them is not harming them.
The Charles River White Geese are a very popular tourist attraction. They have resided on the Cambridge side of the Charles River since 1981. They are in the way of the plans of the DCR for the Charles River. The DCR is aggressively destroying all living beings below the Watertown dam.
4. Supposed benefits from the Environmental Destruction.
The principal achievement of the “Historical Parkways” project will be to straighten out Memorial Drive between the BU Bridge and the Longfellow Bridge.
Supporters of the DCR brag about how great Memorial Drive will look in 40 years. Even the supporters, however, blanche at the outrageous destruction.
5. Longtime supporter bemoans destruction of EVERY cherry tree.
One longtime supporter of the project, at the Monday meeting, commented on the DCR’s plans to destroy every Cherry Tree between Magazine Beach (just west of the BU Bridge) and the Longfellow Bridge. It seems that, when the planners were making plans for this wasteland a century and a half ago, they did not think of putting in Cherry Trees. So all those healthy Cherry Trees will not be allowed to live out their lives and will be destroyed because they were not included in these century and a half old plans to improve a wasteland which has not existed for a century.
6. Magazine Beach in context.
Presently ongoing is a project to “improve” Magazine Beach playing fields located just west of the BU Bridge. The playing fields are being “improved” by REDUCING the acreage of the playing fields, by replacing green maintenance with poison maintenance, by barring the public from its traditional ready access prohibiting use without prior approval and by making the grass poisonous to feeding waterfowl.
Average humans have never seen any need to “improve” these sixty or so year old playing fields.
7. Ongoing poisoning of the Charles River.
The precursor to the Magazine Beach “improvements” were the “improvements” to Ebersol Fields on the Boston side of the Charles, just east of the Longfellow Bridge, near Massachusetts General Hospital. The DCR’s beloved poisons did not work as well as green maintenance. So the DCR tossed on Tartan, labeled against use near water. The next day, the Charles River was dead from the harbor to the Mass. Ave. bridge from algae infestation. That algae infestation now returns annually.
8. Yet more lies: “Saving” Trees by Destroying them Next Week.
In the tenor of the bureaucrats’ attacks on the Charles River White Geese while bragging no intent to harm, the bureaucrats brag that they are “saving” perhaps hundreds of trees in the “Historical Parkways” project by “phasing” their destruction. Translation of “phasing”: the “saved” trees will be destroyed outside the time period they brag about.
“Saving” trees by “phasing” falls into the same category as not “harming” by starving, just another of the very varied techniques of the bureaucrats to lie about their very bad projects.
9. BU Bridge to be transferred to Massachusetts Highways. Mass Highways vetoes or delays some environmental destruction.
Previously, the DCR had accelerated repairs on the BU Bridge claiming that needless environmental destruction in that project should be ignored as well.
A recent Boston Globe report indicates that Massachusetts Highways has vetoed the accelerated work on the BU Bridge.
Since the starvation commenced at Magazine Beach, the DCR consigned the Charles River White Geese to an area immediately east of the BU Bridge, extending to the BU Boathouse. The DCR has since then destroyed all ground vegetation in the area except for vegetation they intended to destroyed as part of the BU Bridge project. Half of that vegetation destruction is for staging that should be put under a nearby Memorial Drive overpass.
It seems certain that the state legislature will reassign to Mass. Highways ownership of the bridges currently owned by the DCR and may be reassigned boulevards as well.
10. Destructive Plans proceed.
It is uncertain if the hundreds of trees slated for needless destruction will be able to wait for transfer of Memorial Drive to a responsible bureaucracy. Earlier complaints to Governor Patrick about multiple instances of outrageous environmental destruction by the DCR have been ignored or passed to the DCR for comment.
Monday night, the DCR disclosed that their plans would include a starvation wall at the Charles River just east of the BU Boathouse. This would block access to that grass for feeding by the Charles River White Geese. The 2004 starvation attack included a similar starvation wall erected by the City of Cambridge in this location.
11. Accomplice, Cambridge City Manager, may be fired for Civil Rights behavior called “reprehensible” by judge and jury.
Also associated with the environmental destruction on the Charles River is the Cambridge City Manager. He has a lot of other environmental destruction on his record.
The Cambridge City Council is currently considering the civil rights case of Malvina Monteiro v. City of Cambridge, on which judgment was issued June 4, 2009. Judge and jury awarded the plaintiff $5 million including $3.5 million penal damages. According to judge and jury, the Cambridge City Manager retaliated against a black woman Cape Verdean department head. She had the “effrontery” to file a civil rights complaint. So she was retaliated against and fired. The judge’s one word description was “reprehensible.”
The judge’s opinion may be read at: http://charlesriverwhitegeeseblog.blogspot.com/2009/04/judge-issues-decision-denying.html. The final judgment may be read at: http://charlesriverwhitegeeseblog.blogspot.com/2009/06/judgment-entered-in-monteiro-case-12.html.
The Cambridge City Council is currently considering whether to fund an appeal. The City Council claims to have a strong record on civil rights, but they also claim a strong record on environmentalism. Their records belies their claims on environmentalism. The city council is funding the outrage at Magazine Beach.
A reasonable response by an entity with the civil rights verbiage issued by the Cambridge City Council would be to fire the Cambridge City Manager. That would, in turn, greatly reduce the destructive pressure on the Charles River. There seems to be a consensus that the Cambridge City Council does not have the integrity to do so.
12. Summary.
So the world is faced with a rogue bureaucracy, charged with protecting the environment and aggressively destroying it.
In the background are a governor and a president who may or may not be concerned about the environment, and a city council with a bad environmental record which may possibly fire one of the key actors, their city manager.
I lost part of the title. The full title is: President Obama and Governor Patrick to Needlessly Destroy Hundreds of Healthy Trees on the Cambridge Side of the Charles River in Massachusetts. Needless and silly environmental destruction part of the “economic stimulus.”
The following has been posted to Governor Patrick at http://www.mass.gov/?pageID=gov3utilities&sid=Agov3&U=Agov3_contact_us. President Obama places a character limit, so I will post a link to this blog posting with the index and whatever else I can get in that will fit the character limit. The president's URL is: http://www.whitehouse.gov/contact/
1. DCR Announces Obama moneys for environmental destruction.
2. The Details of the Project.
3. The DCR Record on the Charles River.
4. Supposed benefits from the Environmental Destruction.
5. Longtime supporter bemoans destruction of EVERY cherry tree.
6. Magazine Beach in context.
7. Ongoing poisoning of the Charles River.
8. Yet more lies: “Saving” Trees by Destroying them Next Week.
9. BU Bridge to be transferred to Massachusetts Highways. Mass Highways vetoes or delays some environmental destruction.
10. Destructive Plans proceed.
11. Accomplice, Cambridge City Manager, may be fired for Civil Rights behavior called “reprehensible” by judge and jury.
12. Summary.
1. DCR Announces Obama moneys for environmental destruction.
Environmentally destructive state bureaucrats from Massachusetts’ Department of Conservation and Recreation bragged to the Cambridge (MA) Conservation Commission Monday, June 8. They stated that they were securing funds for their long moribund so-called “Historical Parkways” project. This project is a major part of plans to destroy more than 449 to 660 healthy trees between Magazine Beach and the Longfellow Bridge on the Cambridge side of the Charles River.
2. The Details of the Project.
The bureaucrats claim they are implementing nineteenth century plans for the riverbanks. They neglect to mention that, in the nineteenth century the area was a tidal marsh. When the “Memorial Drive Esplanade” was built it generally was thought to be a major improvement over the wetlands destroyed. Today construction of the “Esplanade” would be an environmental crime, contrary to the Wetlands Protection Act.
The DCR's current “restoration” returns to destroying the environment. Hundreds of healthy trees not in the original plans, including all cherry trees, are to be destroyed.
Literally digging holes in the median of this section of Memorial Drive and filling them would be a better use of federal stimulus money. Instead the DCR is using our tax dollars to destroy beautiful, healthy trees that give pleasure to us all--for a stale and sterile “restoration.”
3. The DCR Record on the Charles River.
The bureaucrats, twice a year, destroy all protective vegetation on the Charles River below the Watertown Dam thus driving away migratory birds. The only exception is a bizarre wall of bushes blocking access between Magazine Beach and the Charles River. This blockage was bragged about as assisting swimming. The “native” vegetation introduced by the bureaucrats proceeded to repeatedly die because it was unfit for the environment.
Their representative brags that this wall starves local resident waterfowl. The wall of bushes was introduced in 2004 with the explanation that it would assist swimming on the Charles. The bureaucrats have bragged since 2000 that they have no intention to harm the local animal residents, the Charles River White Geese. They explain that starving them is not harming them.
The Charles River White Geese are a very popular tourist attraction. They have resided on the Cambridge side of the Charles River since 1981. They are in the way of the plans of the DCR for the Charles River. The DCR is aggressively destroying all living beings below the Watertown dam.
4. Supposed benefits from the Environmental Destruction.
The principal achievement of the “Historical Parkways” project will be to straighten out Memorial Drive between the BU Bridge and the Longfellow Bridge.
Supporters of the DCR brag about how great Memorial Drive will look in 40 years. Even the supporters, however, blanche at the outrageous destruction.
5. Longtime supporter bemoans destruction of EVERY cherry tree.
One longtime supporter of the project, at the Monday meeting, commented on the DCR’s plans to destroy every Cherry Tree between Magazine Beach (just west of the BU Bridge) and the Longfellow Bridge. It seems that, when the planners were making plans for this wasteland a century and a half ago, they did not think of putting in Cherry Trees. So all those healthy Cherry Trees will not be allowed to live out their lives and will be destroyed because they were not included in these century and a half old plans to improve a wasteland which has not existed for a century.
6. Magazine Beach in context.
Presently ongoing is a project to “improve” Magazine Beach playing fields located just west of the BU Bridge. The playing fields are being “improved” by REDUCING the acreage of the playing fields, by replacing green maintenance with poison maintenance, by barring the public from its traditional ready access prohibiting use without prior approval and by making the grass poisonous to feeding waterfowl.
Average humans have never seen any need to “improve” these sixty or so year old playing fields.
7. Ongoing poisoning of the Charles River.
The precursor to the Magazine Beach “improvements” were the “improvements” to Ebersol Fields on the Boston side of the Charles, just east of the Longfellow Bridge, near Massachusetts General Hospital. The DCR’s beloved poisons did not work as well as green maintenance. So the DCR tossed on Tartan, labeled against use near water. The next day, the Charles River was dead from the harbor to the Mass. Ave. bridge from algae infestation. That algae infestation now returns annually.
8. Yet more lies: “Saving” Trees by Destroying them Next Week.
In the tenor of the bureaucrats’ attacks on the Charles River White Geese while bragging no intent to harm, the bureaucrats brag that they are “saving” perhaps hundreds of trees in the “Historical Parkways” project by “phasing” their destruction. Translation of “phasing”: the “saved” trees will be destroyed outside the time period they brag about.
“Saving” trees by “phasing” falls into the same category as not “harming” by starving, just another of the very varied techniques of the bureaucrats to lie about their very bad projects.
9. BU Bridge to be transferred to Massachusetts Highways. Mass Highways vetoes or delays some environmental destruction.
Previously, the DCR had accelerated repairs on the BU Bridge claiming that needless environmental destruction in that project should be ignored as well.
A recent Boston Globe report indicates that Massachusetts Highways has vetoed the accelerated work on the BU Bridge.
Since the starvation commenced at Magazine Beach, the DCR consigned the Charles River White Geese to an area immediately east of the BU Bridge, extending to the BU Boathouse. The DCR has since then destroyed all ground vegetation in the area except for vegetation they intended to destroyed as part of the BU Bridge project. Half of that vegetation destruction is for staging that should be put under a nearby Memorial Drive overpass.
It seems certain that the state legislature will reassign to Mass. Highways ownership of the bridges currently owned by the DCR and may be reassigned boulevards as well.
10. Destructive Plans proceed.
It is uncertain if the hundreds of trees slated for needless destruction will be able to wait for transfer of Memorial Drive to a responsible bureaucracy. Earlier complaints to Governor Patrick about multiple instances of outrageous environmental destruction by the DCR have been ignored or passed to the DCR for comment.
Monday night, the DCR disclosed that their plans would include a starvation wall at the Charles River just east of the BU Boathouse. This would block access to that grass for feeding by the Charles River White Geese. The 2004 starvation attack included a similar starvation wall erected by the City of Cambridge in this location.
11. Accomplice, Cambridge City Manager, may be fired for Civil Rights behavior called “reprehensible” by judge and jury.
Also associated with the environmental destruction on the Charles River is the Cambridge City Manager. He has a lot of other environmental destruction on his record.
The Cambridge City Council is currently considering the civil rights case of Malvina Monteiro v. City of Cambridge, on which judgment was issued June 4, 2009. Judge and jury awarded the plaintiff $5 million including $3.5 million penal damages. According to judge and jury, the Cambridge City Manager retaliated against a black woman Cape Verdean department head. She had the “effrontery” to file a civil rights complaint. So she was retaliated against and fired. The judge’s one word description was “reprehensible.”
The judge’s opinion may be read at: http://charlesriverwhitegeeseblog.blogspot.com/2009/04/judge-issues-decision-denying.html. The final judgment may be read at: http://charlesriverwhitegeeseblog.blogspot.com/2009/06/judgment-entered-in-monteiro-case-12.html.
The Cambridge City Council is currently considering whether to fund an appeal. The City Council claims to have a strong record on civil rights, but they also claim a strong record on environmentalism. Their records belies their claims on environmentalism. The city council is funding the outrage at Magazine Beach.
A reasonable response by an entity with the civil rights verbiage issued by the Cambridge City Council would be to fire the Cambridge City Manager. That would, in turn, greatly reduce the destructive pressure on the Charles River. There seems to be a consensus that the Cambridge City Council does not have the integrity to do so.
12. Summary.
So the world is faced with a rogue bureaucracy, charged with protecting the environment and aggressively destroying it.
In the background are a governor and a president who may or may not be concerned about the environment, and a city council with a bad environmental record which may possibly fire one of the key actors, their city manager.
Boston Conservation Commission defends public from DCR, striking difference from Cambridge.
1. Commendable Action on Ebersol Field.
2. Cambridge does not want to know it.
Bob reports:
1. Commendable Action on Ebersol Field.
Wednesday evening, June 10, I attended the Boston Conservation Commission hearing on fencing proposed by the Department of Conservation and Recreation for Ebersol Fields on the Charles River across from Massachusetts General Hospital. This facility is the model upon which Magazine Beach is based and is of great concern to us.
The member from the Back Bay dwelt in detail on access for the public to the premises.
Access, for animals and humans, is one of the many shocking aspects to the ongoing outrage at Magazine Beach. The terms of the contract call for Cambridge to regulate access.
Cambridge has shown at Russell Field in North Cambridge how they regulate access. The Police have thrown kids off at least one field for playing there without an advance reservation.
I had to cross examine the DCR representative quite intensely.
The Back Bay rep got the hint and squarely asked about public use of fields which have not been reserved without getting separate and advance permission. He got the DCR to agree to such use.
Signage at Ebersol Fields will expressly allow the public to use unused fields.
2. Cambridge does not want to know it.
I had first learned of this problem from a meeting of the North Cambridge neighborhood entity. It has clear connections to the Cambridge City Manager.
The group met after the Boston Conservation Commission meeting.
I went there and asked to make a brief announcement at the end of the meeting.
I was denied permission to announce the victory. I was told to come to the next meeting, strictly on Russell Field.
This group has a significant visibility in the group “defending” Alewife by opposing private destruction of an ancillary area and supporting public destruction of the reservation itself.
Key members of the group have been very visible in the more than 10 years of downzonings written by the Cambridge City Manager. Too many of these petitions accomplish exactly the opposite of their claimed results through undisclosed fine print. One of the group’s first activities was to push through a City Manager zoning proposal which wiped out residential districts on north Massachusetts Avenue, districts which would require open space at the sidewalk. The upzoning drastically increased development allowed on those lots, on the north side of Massachusetts Avenue going west from Rindge Avenue.
The chair had a letter in the Cambridge Chronicle today defending the Cambridge City Manager. He says the lawyers made Healy due it. I have filed a response. They may be read at: http://www.wickedlocal.com/cambridge/news/opinions/x986603944/Letter-City-should-get-another-lawyer.
2. Cambridge does not want to know it.
Bob reports:
1. Commendable Action on Ebersol Field.
Wednesday evening, June 10, I attended the Boston Conservation Commission hearing on fencing proposed by the Department of Conservation and Recreation for Ebersol Fields on the Charles River across from Massachusetts General Hospital. This facility is the model upon which Magazine Beach is based and is of great concern to us.
The member from the Back Bay dwelt in detail on access for the public to the premises.
Access, for animals and humans, is one of the many shocking aspects to the ongoing outrage at Magazine Beach. The terms of the contract call for Cambridge to regulate access.
Cambridge has shown at Russell Field in North Cambridge how they regulate access. The Police have thrown kids off at least one field for playing there without an advance reservation.
I had to cross examine the DCR representative quite intensely.
The Back Bay rep got the hint and squarely asked about public use of fields which have not been reserved without getting separate and advance permission. He got the DCR to agree to such use.
Signage at Ebersol Fields will expressly allow the public to use unused fields.
2. Cambridge does not want to know it.
I had first learned of this problem from a meeting of the North Cambridge neighborhood entity. It has clear connections to the Cambridge City Manager.
The group met after the Boston Conservation Commission meeting.
I went there and asked to make a brief announcement at the end of the meeting.
I was denied permission to announce the victory. I was told to come to the next meeting, strictly on Russell Field.
This group has a significant visibility in the group “defending” Alewife by opposing private destruction of an ancillary area and supporting public destruction of the reservation itself.
Key members of the group have been very visible in the more than 10 years of downzonings written by the Cambridge City Manager. Too many of these petitions accomplish exactly the opposite of their claimed results through undisclosed fine print. One of the group’s first activities was to push through a City Manager zoning proposal which wiped out residential districts on north Massachusetts Avenue, districts which would require open space at the sidewalk. The upzoning drastically increased development allowed on those lots, on the north side of Massachusetts Avenue going west from Rindge Avenue.
The chair had a letter in the Cambridge Chronicle today defending the Cambridge City Manager. He says the lawyers made Healy due it. I have filed a response. They may be read at: http://www.wickedlocal.com/cambridge/news/opinions/x986603944/Letter-City-should-get-another-lawyer.
Thursday, June 04, 2009
"That’s the way things are done in Cambridge."
Bob Reports:
The following letter was printed on line on June 6, 2009 by the Cambridge Chronicle:
Reading the city solicitor’s very strong op ed to the Chronicle on Monteiro versus Cambridge reminds me of an incident which personally concerned me several years ago.
An employee of the Election Department trashed 51 out of 100 signatures on my election papers, trashing the papers. He objected to my turning in original signatures on forms that were photocopies of his forms. He did so in clear and direct violation of a Supreme Judicial Court case concerning Jack E. Robinson, a Republican candidate for governor. I informed him of the case. He informed me that the way he did things was the “way things are done in Cambridge.”
A lawyer with the state election people told a friend of mine that it was inconceivable that any city solicitor would support the Election Department’s action. The city solicitor’s office supported the action. A bunch of city appointed lawyer members on the election commission also supported the action of the employee in spite of the very clear wording of the Jack E. Robinson case.
Grievances against a list of departments damned by the guest editorial that followed the editor’s editorial sounded like old home week.
The following letter was printed on line on June 6, 2009 by the Cambridge Chronicle:
Reading the city solicitor’s very strong op ed to the Chronicle on Monteiro versus Cambridge reminds me of an incident which personally concerned me several years ago.
An employee of the Election Department trashed 51 out of 100 signatures on my election papers, trashing the papers. He objected to my turning in original signatures on forms that were photocopies of his forms. He did so in clear and direct violation of a Supreme Judicial Court case concerning Jack E. Robinson, a Republican candidate for governor. I informed him of the case. He informed me that the way he did things was the “way things are done in Cambridge.”
A lawyer with the state election people told a friend of mine that it was inconceivable that any city solicitor would support the Election Department’s action. The city solicitor’s office supported the action. A bunch of city appointed lawyer members on the election commission also supported the action of the employee in spite of the very clear wording of the Jack E. Robinson case.
Grievances against a list of departments damned by the guest editorial that followed the editor’s editorial sounded like old home week.
Tuesday, June 02, 2009
Judgment entered in Monteiro case, 1/2 Million added in interest
Bob Reports:
The following judgment was entered in the Monteiro case, today, June 2, 2009. This is taken from the Court Docket which loses all paragraphing. I have inserted my interpretation of paragraphing.
JUDGMENT ON JURY VERDICTS: It is ORDERED and ADJUDGED:
With regard to the first trial of this case in 2005,
that judgment enter for the defendant City of Cambridge with respect to plaintiff Malvina Monteriro's underlying claims for discrimination in accordance with the Special Verdicts returned by the jury on February 24, 2005,
that the plaintiff take nothing on such claims, and that the defendant City of Cambridge recover its costs of that action.
With regard to the second trial of this action in 2008,
that the plaintiff Malvina Monteiro take:
(a) compensatory damages in the amount of $1,062,400, plus pre-judgment simple interest at he rate of 12% per annum from January 18, 2005 to June 2, 2009 in the amount of $557,459.26;
(b) punitive damages in the amount of $3,500,000, with interest from April 24, 2009, the date of this Court's ruling on the defendant's post-trial motions to June 2, 2009 in the amount of $44,877.11;
(c) reasonable attorneys's fees and costs in an amount to be determined by the Court hereafter.
Dated: June 2, 2009
(Bonnie H. MacLeod, Justice). Copies mailed 6/2/2009
The following judgment was entered in the Monteiro case, today, June 2, 2009. This is taken from the Court Docket which loses all paragraphing. I have inserted my interpretation of paragraphing.
JUDGMENT ON JURY VERDICTS: It is ORDERED and ADJUDGED:
With regard to the first trial of this case in 2005,
that judgment enter for the defendant City of Cambridge with respect to plaintiff Malvina Monteriro's underlying claims for discrimination in accordance with the Special Verdicts returned by the jury on February 24, 2005,
that the plaintiff take nothing on such claims, and that the defendant City of Cambridge recover its costs of that action.
With regard to the second trial of this action in 2008,
that the plaintiff Malvina Monteiro take:
(a) compensatory damages in the amount of $1,062,400, plus pre-judgment simple interest at he rate of 12% per annum from January 18, 2005 to June 2, 2009 in the amount of $557,459.26;
(b) punitive damages in the amount of $3,500,000, with interest from April 24, 2009, the date of this Court's ruling on the defendant's post-trial motions to June 2, 2009 in the amount of $44,877.11;
(c) reasonable attorneys's fees and costs in an amount to be determined by the Court hereafter.
Dated: June 2, 2009
(Bonnie H. MacLeod, Justice). Copies mailed 6/2/2009
Monday, June 01, 2009
BU Bridge: Mass Highways stands up to DCR
Bob reports:
I have filed the following with the Governor of Massachusetts at http://www.mass.gov/?pageID=gov3utilities&sid=Agov3&U=Agov3_contact_us:
The filing is quite self-explanatory. One brief comment. The Cambridge City Manager’s people have for many years vilified Mass Highways and glorified the Department of Conservation and Recreation when Mass Highways is proposed to take over responsibilities of DCR.
Mass. Highways is apparently slated to take over the BU Bridge.
Mass Highways’ first action reaffirms the long record of the Cambridge City Manager’s organization: listen to what they say and believe the opposite.
Mass Highways is moving in the right direction against a reprehensible foe, and few governments other than that of the City of Cambridge can brag of a decision of judge and jury that its government is reprehensible. The decision is against the City of Cambridge, but it is silly to think of any meaningful difference between Cambridge and the DCR.
Governor
Commonwealth of Massachusetts
RE: BU Bridge: Mass Highways stands up to DCR
On May 30, 2009, the Boston Globe printed an article on the BU Bridge with its proposed “repairs.”
The Department of Conservation and Recreation wants to go forward with the BU Bridge repairs project immediately with its unnecessary environmental destruction. Mass Highways which is taking over the bridge from the DCR sees no need for immediate work.
The Cambridge City Manager’s people in Cambridgeport passed on the link for the report. It is: http://www.boston.com/news/local/massachusetts/articles/2009/05/30/efforts_to_renovate_bu_bridge_stall_between_state_agencies/.
People who read like the Cambridge City Manager’s people (including one who definitely is) passed comments on the matter to the Globe site. I posted a comment as well.
It is possible that the difference is a matter of opinion. Cambridge’s pols commonly see things exactly the opposite of people in the real world, and Cambridge’s pols are commonly wrong when they do that. The City Manager types’ party line on the DCR is that the DCR is bordering on sainthood. Reality is that the DCR is strikingly close to the Cambridge City Manager. But then the Cambridge Pols have problems, in reality, saying negative things about the Cambridge City Manager.
A few thoughts, expanding on my Globe comments:
I think that, to evaluate the opinions of the DCR, you just have to look at the words and the actions of the DCR in the recent past on matters supposedly within their own expertise.
The DCR is responsible for the environment. The DCR twice yearly destroys all protective vegetation on the Charles River needed by migrating birds.
The DCR is responsible for the environment. The DCR poisoned the Charles River by dumping Tartan on Ebersol Fields a few years back. The next day, annually recurring algae poisoned the Charles River.
The DCR is responsible for the environment. The DCR has been destroying ground vegetation from the BU Bridge to the BU Boathouse since 2004. The only vegetation not destroyed to date would be the vegetation destroyed by this project. A significant part of the project's destroyed vegetation would be for staging that should be put under Memorial Drive.
The DCR claims to want swimming in the Charles River. The poisoning at Ebersol Fields does not seem compatible with swimming.
The DCR has installed a bizarre wall of introduced vegetation at Magazine Beach preventing access between the Charles River and Magazine Beach. This bizarre wall is the only vegetation bordering the Charles River which the DCR does not destroy twice a year.
The key bureaucrat brags that the bizarre wall starves the local resident Charles River White Geese.
The big victim of the BU Bridge project is the Charles River White Geese.
The accumulation of projects by the DCR rather clearly shows an ongoing destruction of all living creatures on the Charles River. The BU Bridge project as implemented by the DCR continues that destruction.
The nearby Magazine Beach project is a waste of taxpayer money. It replaces perfectly good playing fields with a SMALLER footage of playing fields that need to be maintained with fertilizers rather than the prior green maintenance.
Very clearly, the BU Bridge project's most important achievement is the environmental destruction for which the DCR is so aggressively working.
One very major advantage to a delay from a wildlife point of view would be to time harm to the environment so as to minimize harm. This, however, would call for an abrupt shift at Magazine Beach.
There is no excuse whatsoever for the bizarre wall of introduced vegetation which blocks access between the Charles River and Magazine Beach. This is the only vegetation bordering the Charles River which the DCR does NOT destroy TWICE yearly. The key bureaucrat brags that it starves the Charles River White Geese.
This bizarre wall should be destroyed as much as is possible without harm to the land.
The destruction of the Green Maintenance at Magazine Beach should be reversed.
A massive drainage system is being installed to drain the DCR’s beloved poisons away from the Charles. That Drainage System is drastically reducing the athletic playing fields at Magazine Beach. You do away with the poisons, you do away with the need to drain, you do away with the REDUCTION in playing fields.
Similarly, you do away with the poisons and the bizarre wall, and the Charles River White Geese can return to their habitat since 1981, Magazine Beach, and the needed food there.
But time is necessary to neutralize the totally unneeded mudpit which has been created.
The Mass Highways delay could provide that time, but responsible behavior is needed as well at Magazine Beach.
Would it be possible for Mass Highways to completely take over the DCR?
It sounds like we finally have a responsible agency on the Charles.
I have filed the following with the Governor of Massachusetts at http://www.mass.gov/?pageID=gov3utilities&sid=Agov3&U=Agov3_contact_us:
The filing is quite self-explanatory. One brief comment. The Cambridge City Manager’s people have for many years vilified Mass Highways and glorified the Department of Conservation and Recreation when Mass Highways is proposed to take over responsibilities of DCR.
Mass. Highways is apparently slated to take over the BU Bridge.
Mass Highways’ first action reaffirms the long record of the Cambridge City Manager’s organization: listen to what they say and believe the opposite.
Mass Highways is moving in the right direction against a reprehensible foe, and few governments other than that of the City of Cambridge can brag of a decision of judge and jury that its government is reprehensible. The decision is against the City of Cambridge, but it is silly to think of any meaningful difference between Cambridge and the DCR.
Governor
Commonwealth of Massachusetts
RE: BU Bridge: Mass Highways stands up to DCR
On May 30, 2009, the Boston Globe printed an article on the BU Bridge with its proposed “repairs.”
The Department of Conservation and Recreation wants to go forward with the BU Bridge repairs project immediately with its unnecessary environmental destruction. Mass Highways which is taking over the bridge from the DCR sees no need for immediate work.
The Cambridge City Manager’s people in Cambridgeport passed on the link for the report. It is: http://www.boston.com/news/local/massachusetts/articles/2009/05/30/efforts_to_renovate_bu_bridge_stall_between_state_agencies/.
People who read like the Cambridge City Manager’s people (including one who definitely is) passed comments on the matter to the Globe site. I posted a comment as well.
It is possible that the difference is a matter of opinion. Cambridge’s pols commonly see things exactly the opposite of people in the real world, and Cambridge’s pols are commonly wrong when they do that. The City Manager types’ party line on the DCR is that the DCR is bordering on sainthood. Reality is that the DCR is strikingly close to the Cambridge City Manager. But then the Cambridge Pols have problems, in reality, saying negative things about the Cambridge City Manager.
A few thoughts, expanding on my Globe comments:
I think that, to evaluate the opinions of the DCR, you just have to look at the words and the actions of the DCR in the recent past on matters supposedly within their own expertise.
The DCR is responsible for the environment. The DCR twice yearly destroys all protective vegetation on the Charles River needed by migrating birds.
The DCR is responsible for the environment. The DCR poisoned the Charles River by dumping Tartan on Ebersol Fields a few years back. The next day, annually recurring algae poisoned the Charles River.
The DCR is responsible for the environment. The DCR has been destroying ground vegetation from the BU Bridge to the BU Boathouse since 2004. The only vegetation not destroyed to date would be the vegetation destroyed by this project. A significant part of the project's destroyed vegetation would be for staging that should be put under Memorial Drive.
The DCR claims to want swimming in the Charles River. The poisoning at Ebersol Fields does not seem compatible with swimming.
The DCR has installed a bizarre wall of introduced vegetation at Magazine Beach preventing access between the Charles River and Magazine Beach. This bizarre wall is the only vegetation bordering the Charles River which the DCR does not destroy twice a year.
The key bureaucrat brags that the bizarre wall starves the local resident Charles River White Geese.
The big victim of the BU Bridge project is the Charles River White Geese.
The accumulation of projects by the DCR rather clearly shows an ongoing destruction of all living creatures on the Charles River. The BU Bridge project as implemented by the DCR continues that destruction.
The nearby Magazine Beach project is a waste of taxpayer money. It replaces perfectly good playing fields with a SMALLER footage of playing fields that need to be maintained with fertilizers rather than the prior green maintenance.
Very clearly, the BU Bridge project's most important achievement is the environmental destruction for which the DCR is so aggressively working.
One very major advantage to a delay from a wildlife point of view would be to time harm to the environment so as to minimize harm. This, however, would call for an abrupt shift at Magazine Beach.
There is no excuse whatsoever for the bizarre wall of introduced vegetation which blocks access between the Charles River and Magazine Beach. This is the only vegetation bordering the Charles River which the DCR does NOT destroy TWICE yearly. The key bureaucrat brags that it starves the Charles River White Geese.
This bizarre wall should be destroyed as much as is possible without harm to the land.
The destruction of the Green Maintenance at Magazine Beach should be reversed.
A massive drainage system is being installed to drain the DCR’s beloved poisons away from the Charles. That Drainage System is drastically reducing the athletic playing fields at Magazine Beach. You do away with the poisons, you do away with the need to drain, you do away with the REDUCTION in playing fields.
Similarly, you do away with the poisons and the bizarre wall, and the Charles River White Geese can return to their habitat since 1981, Magazine Beach, and the needed food there.
But time is necessary to neutralize the totally unneeded mudpit which has been created.
The Mass Highways delay could provide that time, but responsible behavior is needed as well at Magazine Beach.
Would it be possible for Mass Highways to completely take over the DCR?
It sounds like we finally have a responsible agency on the Charles.
Monday, May 25, 2009
The proper action for the Cambridge City Council in Monteiro v. Cambridge
Bob reports:
The judge in Monteiro v City of Cambridge, on or about June 2, will take action that commences the appeals period in this case. The Cambridge City Council has started to position itself to evaluate whether the City Council will fund an appeal.
I have been told that the Cambridge City Council is not capable of doing what should be done on Monteiro v. City of Cambridge. This opinion is based on the individual limitations of the members of the Cambridge City Council.
I personally think that people who so clearly and publicly claim to stand for civil rights might actually stand for civil rights. And the Monteiro case involves the deliberate destruction of the life of a black woman, Cape Verdean, department head in response to her filing a civil rights complaint.
The Chronicle editor has done an excellent job evaluating this case as a personal matter of the City Manager.
This evaluation should feature in the decision of the Cambridge City Council on whether or not to fund an appeal.
If the Cambridge City Council does fund an appeal, the fact that this case is a personal matter with regard to the Cambridge City Manager should feature in the voters’ evaluation of the qualifications of the members of the City Council to hold office.
The very strong opinion of judge and jury is that the Cambridge City Manager destroyed the life of Malvina Monteiro in clear and knowing violation of civil rights laws protecting Ms. Monteiro’s right to file a civil rights complaint. His action has been determined illegal and “reprehensible.”
The judge’s decision tears apart each and every argument of the Cambridge City Manager in court. That decision may be read on the Internet at http://charlesriverwhitegeeseblog.blogspot.com/2009/04/judge-issues-decision-denying.html. That decision includes a shocking evaluation of the testimony of the Cambridge City Manager.
If the Monteiro decision is not appealed, the City Manager’s treatment of Malvina Monteiro is a matter which has been litigated.
The City Manager has rather strong clauses in his contract paying him a large golden parachute should he be fired. It is not unthinkable for such clauses to be found void as against public policy in the face of such a court decision.
I see nothing complicated about it.
We have nine city councilors who claim to be pro-civil rights.
We have nine city councilors who should be accepting the decision of judge and jury and voting to fire the Cambridge City Manager.
The judge in Monteiro v City of Cambridge, on or about June 2, will take action that commences the appeals period in this case. The Cambridge City Council has started to position itself to evaluate whether the City Council will fund an appeal.
I have been told that the Cambridge City Council is not capable of doing what should be done on Monteiro v. City of Cambridge. This opinion is based on the individual limitations of the members of the Cambridge City Council.
I personally think that people who so clearly and publicly claim to stand for civil rights might actually stand for civil rights. And the Monteiro case involves the deliberate destruction of the life of a black woman, Cape Verdean, department head in response to her filing a civil rights complaint.
The Chronicle editor has done an excellent job evaluating this case as a personal matter of the City Manager.
This evaluation should feature in the decision of the Cambridge City Council on whether or not to fund an appeal.
If the Cambridge City Council does fund an appeal, the fact that this case is a personal matter with regard to the Cambridge City Manager should feature in the voters’ evaluation of the qualifications of the members of the City Council to hold office.
The very strong opinion of judge and jury is that the Cambridge City Manager destroyed the life of Malvina Monteiro in clear and knowing violation of civil rights laws protecting Ms. Monteiro’s right to file a civil rights complaint. His action has been determined illegal and “reprehensible.”
The judge’s decision tears apart each and every argument of the Cambridge City Manager in court. That decision may be read on the Internet at http://charlesriverwhitegeeseblog.blogspot.com/2009/04/judge-issues-decision-denying.html. That decision includes a shocking evaluation of the testimony of the Cambridge City Manager.
If the Monteiro decision is not appealed, the City Manager’s treatment of Malvina Monteiro is a matter which has been litigated.
The City Manager has rather strong clauses in his contract paying him a large golden parachute should he be fired. It is not unthinkable for such clauses to be found void as against public policy in the face of such a court decision.
I see nothing complicated about it.
We have nine city councilors who claim to be pro-civil rights.
We have nine city councilors who should be accepting the decision of judge and jury and voting to fire the Cambridge City Manager.
Saturday, May 23, 2009
Change in start of BU Bridge repairs
1. Introductory.
2. Press Release from DCR.
3. Afterthought.
Bob reports:
1. Introductory.
The following Press Release was issued by the DCR on May 15, 2009, and forwarded by the Cambridge City Manager’s Cambridgeport Neighborhood Association on their listserve on May 18.
The key part of this is the comment on the BU Bridge repair project and its needless destructiveness to the environment. This is a change from the announcement I passed on from a planning group meeting last week.
The anticipated bid date is repeated as early June.
Commencement of work is now scheduled for fall.
This change in commencement of work is very clearly to fit it with Cambridge practices.
The hypocrites lie about themselves during election campaigns, and they do the really rotten stuff the week after the election.
I am rotating between eight plus bad guys and 7½ plus bad guys. My increasing evaluation is to look at Councilor Kelley’s conversion to a statement of support for the Green at Magazine Beach in light of his apparent destructiveness of the Green everywhere else that I know of.
Eight plus bad guys.
2. Press Release from DCR.
For immediate release Contact: Wendy Fox
May 15, 2009 617-626-1453
DCR BEGINS REPAIRS ON BU BRIDGE
One Boston-to-Cambridge lane will be closed to vehicles
The Department of Conservation and Recreation (DCR) is set to begin repairs on the BU Bridge that will require one Cambridge-bound lane to be closed to vehicles.
Effective this evening, the downstream sidewalk (on the side with Boston-to-Cambridge vehicular traffic) will close. The adjoining Boston-to-Cambridge traffic lane also will close to vehicular traffic, but will be open for pedestrians and cyclists.
“We know these lane and sidewalk closings will be inconvenient, but in the interest of public safety, these repairs have to be made,” said DCR Commissioner Richard K. Sullivan Jr. “We appreciate the public’s patience as this work moves forward.”
A recent inspection by TranSystems identified two structural elements under the roadway and sidewalk that need to be repaired. DCR’s design contractor, STV Inc. of Boston, will design the repairs, and Unified Contractor Inc. of Melrose will start the work as early as next week.
In the meantime, and during the work, the downstream sidewalk will be closed to all pedestrians, and the right-hand Boston-to-Cambridge lane will be closed to vehicles and reserved for pedestrians.
As part of Governor Patrick’s $3 billion Accelerated Bridge Program, aimed at quickly repairing the Commonwealth’s most neglected bridges, DCR is currently soliciting bids for a full rehabilitation of the BU Bridge. A contract for that work, estimated to cost about $20 million, is expected to be awarded in June, and work would begin in fall 2009.
The current repairs, expected to cost about $100,000 and be completed three weeks, also will be funded through the Accelerated Bridge Program. The downstream sidewalk is expected to remain closed during the full bridge rehabilitation. The upstream sidewalk, which has been undergoing repairs, is expected to reopen later this month.
To learn more about the Accelerated Bridge Program, visit www.mass.gov/ acceleratedbridg es.
To learn more about DCR projects, visit www.mass.gov/ dcr/projects.
3. Afterthought.
Public comment about the preceding project, the BU Bridge Sidewalk project is now being described as “BU Bridge Repairs.”
Yet more dirty tricks.
The game with the bad guys has always been to lie through word games and secret definitions, or, for that matter, whatever dirty trick works.
Now they are deliberately confusing the two projects, one of which is responsible, the other of which is business as usual.
Another factor to consider is the long record of bad faith. A delay which can be reversed at will can just be a tactic to catch responsible people off guard.
The Monteiro judge is right.
“Reprehensible” is a very appropriate word.
2. Press Release from DCR.
3. Afterthought.
Bob reports:
1. Introductory.
The following Press Release was issued by the DCR on May 15, 2009, and forwarded by the Cambridge City Manager’s Cambridgeport Neighborhood Association on their listserve on May 18.
The key part of this is the comment on the BU Bridge repair project and its needless destructiveness to the environment. This is a change from the announcement I passed on from a planning group meeting last week.
The anticipated bid date is repeated as early June.
Commencement of work is now scheduled for fall.
This change in commencement of work is very clearly to fit it with Cambridge practices.
The hypocrites lie about themselves during election campaigns, and they do the really rotten stuff the week after the election.
I am rotating between eight plus bad guys and 7½ plus bad guys. My increasing evaluation is to look at Councilor Kelley’s conversion to a statement of support for the Green at Magazine Beach in light of his apparent destructiveness of the Green everywhere else that I know of.
Eight plus bad guys.
2. Press Release from DCR.
For immediate release Contact: Wendy Fox
May 15, 2009 617-626-1453
DCR BEGINS REPAIRS ON BU BRIDGE
One Boston-to-Cambridge lane will be closed to vehicles
The Department of Conservation and Recreation (DCR) is set to begin repairs on the BU Bridge that will require one Cambridge-bound lane to be closed to vehicles.
Effective this evening, the downstream sidewalk (on the side with Boston-to-Cambridge vehicular traffic) will close. The adjoining Boston-to-Cambridge traffic lane also will close to vehicular traffic, but will be open for pedestrians and cyclists.
“We know these lane and sidewalk closings will be inconvenient, but in the interest of public safety, these repairs have to be made,” said DCR Commissioner Richard K. Sullivan Jr. “We appreciate the public’s patience as this work moves forward.”
A recent inspection by TranSystems identified two structural elements under the roadway and sidewalk that need to be repaired. DCR’s design contractor, STV Inc. of Boston, will design the repairs, and Unified Contractor Inc. of Melrose will start the work as early as next week.
In the meantime, and during the work, the downstream sidewalk will be closed to all pedestrians, and the right-hand Boston-to-Cambridge lane will be closed to vehicles and reserved for pedestrians.
As part of Governor Patrick’s $3 billion Accelerated Bridge Program, aimed at quickly repairing the Commonwealth’s most neglected bridges, DCR is currently soliciting bids for a full rehabilitation of the BU Bridge. A contract for that work, estimated to cost about $20 million, is expected to be awarded in June, and work would begin in fall 2009.
The current repairs, expected to cost about $100,000 and be completed three weeks, also will be funded through the Accelerated Bridge Program. The downstream sidewalk is expected to remain closed during the full bridge rehabilitation. The upstream sidewalk, which has been undergoing repairs, is expected to reopen later this month.
To learn more about the Accelerated Bridge Program, visit www.mass.gov/ acceleratedbridg es.
To learn more about DCR projects, visit www.mass.gov/ dcr/projects.
3. Afterthought.
Public comment about the preceding project, the BU Bridge Sidewalk project is now being described as “BU Bridge Repairs.”
Yet more dirty tricks.
The game with the bad guys has always been to lie through word games and secret definitions, or, for that matter, whatever dirty trick works.
Now they are deliberately confusing the two projects, one of which is responsible, the other of which is business as usual.
Another factor to consider is the long record of bad faith. A delay which can be reversed at will can just be a tactic to catch responsible people off guard.
The Monteiro judge is right.
“Reprehensible” is a very appropriate word.
Friday, May 22, 2009
Monteiro: Reconsideration rejected, Details on Motions, City Council consideration.
Bob reports:
1. Motion for Reconsideration rejected.
2. Details at Cambridge Chronicle.
3. Cambridge City Council getting in to the act.
1. Motion for Reconsideration rejected.
Cambridge filed is motion for reconsideration on May 19. The Court filed its response yesterday:
*****
Motion (P#121) Upon review of all submissions and relevant case law,
the within mtoion for reconsideration is DENIED. (Bonnie H. MacLeod,
Justice). Notices mailed 5/21/2009
*****
2. Details at Cambridge Chronicle.
The Cambridge Chronicle apparently has received a copy of some of the papers on which my knowledge is limited to paper titles. Its report may be read at: http://www.wickedlocal.com/cambridge/news/x542611448/Judge-rules-against-city-Attempt-to-appeal-discrimination-case-moot
Take care, however. The report is simplified for public consumption and, as a result, lacks legal perfection. Additionally, there are legal points which the Chronicle does not seem to understand. To the extent anything in the report conflicts with my reports, my reports should prevail.
3. Cambridge City Council getting in to the act.
The Chronicle report included city council discussion of the matter.
That came from a city council order signed by five members (a voting majority) which is published at http://www.cambridgema.gov/cityClerk/PolicyOrder.cfm?item_id=25451. This order directly addresses the Monteiro case. It was tabled and would not normally be brought up until a week from Monday.
The initial order called for money to hire special council to evaluate the situation and for closed door discussion WITHOUT THE CITY MANAGER.
A modification order from Toomey reports that the city council has already met with special council.
1. Motion for Reconsideration rejected.
2. Details at Cambridge Chronicle.
3. Cambridge City Council getting in to the act.
1. Motion for Reconsideration rejected.
Cambridge filed is motion for reconsideration on May 19. The Court filed its response yesterday:
*****
Motion (P#121) Upon review of all submissions and relevant case law,
the within mtoion for reconsideration is DENIED. (Bonnie H. MacLeod,
Justice). Notices mailed 5/21/2009
*****
2. Details at Cambridge Chronicle.
The Cambridge Chronicle apparently has received a copy of some of the papers on which my knowledge is limited to paper titles. Its report may be read at: http://www.wickedlocal.com/cambridge/news/x542611448/Judge-rules-against-city-Attempt-to-appeal-discrimination-case-moot
Take care, however. The report is simplified for public consumption and, as a result, lacks legal perfection. Additionally, there are legal points which the Chronicle does not seem to understand. To the extent anything in the report conflicts with my reports, my reports should prevail.
3. Cambridge City Council getting in to the act.
The Chronicle report included city council discussion of the matter.
That came from a city council order signed by five members (a voting majority) which is published at http://www.cambridgema.gov/cityClerk/PolicyOrder.cfm?item_id=25451. This order directly addresses the Monteiro case. It was tabled and would not normally be brought up until a week from Monday.
The initial order called for money to hire special council to evaluate the situation and for closed door discussion WITHOUT THE CITY MANAGER.
A modification order from Toomey reports that the city council has already met with special council.
Thursday, May 21, 2009
Separate Final Judgment in Monteiro to issue about June 2?
Bob reports:
1. Papers filed.
2. Analysis.
3. Summary.
It looks like there will probably be a final judgment issued by the judge for Malvina Monteiro on or about June 2.
1. Papers filed.
The judge issued the following order on Monday, May 18:
******
Motion (P#107) In light of this Court's decision on the defendant's
post-trial motions, the within motion is ALLOWED. Counsel are to
provide a proposed form of judgment for the Court within 7 days.
(Bonnie H. MacLeod, Justice). Notices mailed 5/18/2009
******
Paper 107 was filed by the Plaintiff at about the same time as the defendant's post trial motions.
It read:
Paper 107:
******
MOTION Of Plaintiff Malvina Monteiro Pursuant To Rule 54(b) For Entry
Of Final Judgment Against Defendant City Of Cambridge; and
Defendant's Opposition.
******
This action was taken in spite of the city (defendant) filing a notice of intent to seek reconsideration of the post trial motion order.
On May 19, 2009, the Defendant filed the following:
******
Defendant City of Cambridge's MOTION for Reconsideration of Decision
and Order on Post Trial Motions; Plaintiff, Monteiro's opposition to
deft's motion.
******
2. Analysis.
The reality is as follows:
There are three plaintiffs outstanding, Monteiro and two who have not had a trial yet.
Under the rules, UNLESS the judge orders otherwise, all action on a case officially is not done UNTIL all plaintiffs' complaints are resolved. The Monteiro complaint was the first to be heard. Thus, everything would normally be on hold until the other two plaintiffs complaints are tried.
The motion the judge just granted allows final judgment to Ms. Monteiro without waiting for the other two plaintiffs.
Thus, after the drafting exercise the judge calls for in her order, Ms. Monteiro will have a judgment in hand allowing her to COLLECT her judgment from the City of Cambridge (i.e., sell a couple of buildings if the city does not pay). That judgment will also allow the city to appeal the decision.
Rules are such that the plaintiff cannot get the appropriate paper to commence the collection process on the judgment until after the appeals period expires. Thus an appeal prevents collection on the judgment until the appeal is completed.
Prior to the Judge’s order, Cambridge posted notice that Cambridge will seek reconsideration of the ruling and order rejecting the city’s post-trial motions. The timing of the judge’s request for language allowed Cambridge to file its reconsideration motion with any plaintiff response attached to it before the judge is scheduled to issue her official separate Judgment.
Cambridge proceeded with filing the motion for reconsideration.
Since the actual separate judgment will not be issued until after receipt of the Cambridge reconsideration request, the judge has left herself room to change her mind in light of VERY persuasive language by Cambridge, while the judge is simultaneously moving forward the final judgment with relative speed.
3. Summary.
That motion for reconsideration had better be very persuasive if the city expects to prevail.
It would appear highly unlikely that the motion for reconsideration will be that persuasive.
June 2, give or take a few days, I anticipate final and separate judgment. That judgment will be followed by time for appeal. If Cambridge does not appeal, Cambridge had better pay or see some of its property sold at auction.
1. Papers filed.
2. Analysis.
3. Summary.
It looks like there will probably be a final judgment issued by the judge for Malvina Monteiro on or about June 2.
1. Papers filed.
The judge issued the following order on Monday, May 18:
******
Motion (P#107) In light of this Court's decision on the defendant's
post-trial motions, the within motion is ALLOWED. Counsel are to
provide a proposed form of judgment for the Court within 7 days.
(Bonnie H. MacLeod, Justice). Notices mailed 5/18/2009
******
Paper 107 was filed by the Plaintiff at about the same time as the defendant's post trial motions.
It read:
Paper 107:
******
MOTION Of Plaintiff Malvina Monteiro Pursuant To Rule 54(b) For Entry
Of Final Judgment Against Defendant City Of Cambridge; and
Defendant's Opposition.
******
This action was taken in spite of the city (defendant) filing a notice of intent to seek reconsideration of the post trial motion order.
On May 19, 2009, the Defendant filed the following:
******
Defendant City of Cambridge's MOTION for Reconsideration of Decision
and Order on Post Trial Motions; Plaintiff, Monteiro's opposition to
deft's motion.
******
2. Analysis.
The reality is as follows:
There are three plaintiffs outstanding, Monteiro and two who have not had a trial yet.
Under the rules, UNLESS the judge orders otherwise, all action on a case officially is not done UNTIL all plaintiffs' complaints are resolved. The Monteiro complaint was the first to be heard. Thus, everything would normally be on hold until the other two plaintiffs complaints are tried.
The motion the judge just granted allows final judgment to Ms. Monteiro without waiting for the other two plaintiffs.
Thus, after the drafting exercise the judge calls for in her order, Ms. Monteiro will have a judgment in hand allowing her to COLLECT her judgment from the City of Cambridge (i.e., sell a couple of buildings if the city does not pay). That judgment will also allow the city to appeal the decision.
Rules are such that the plaintiff cannot get the appropriate paper to commence the collection process on the judgment until after the appeals period expires. Thus an appeal prevents collection on the judgment until the appeal is completed.
Prior to the Judge’s order, Cambridge posted notice that Cambridge will seek reconsideration of the ruling and order rejecting the city’s post-trial motions. The timing of the judge’s request for language allowed Cambridge to file its reconsideration motion with any plaintiff response attached to it before the judge is scheduled to issue her official separate Judgment.
Cambridge proceeded with filing the motion for reconsideration.
Since the actual separate judgment will not be issued until after receipt of the Cambridge reconsideration request, the judge has left herself room to change her mind in light of VERY persuasive language by Cambridge, while the judge is simultaneously moving forward the final judgment with relative speed.
3. Summary.
That motion for reconsideration had better be very persuasive if the city expects to prevail.
It would appear highly unlikely that the motion for reconsideration will be that persuasive.
June 2, give or take a few days, I anticipate final and separate judgment. That judgment will be followed by time for appeal. If Cambridge does not appeal, Cambridge had better pay or see some of its property sold at auction.
Monday, May 18, 2009
Analysis of Urban Ring Citizens Advisory Committee meeting April 14, 2009; announcement of CAC meeting June 10, 2009
Archie Mazmanian’s analysis of the April 14, 2009 Urban Ring Phase 2 Citizens Advisory Committee meeting:
The CAC meeting April 14 included a presentation by A Better City (ABC) Planning Director and CAC Co-Chair Tom Nally.
The presentation provided several slides, with suggestions for taking several limited steps. EOT’s Ned Cod did not seem too impressed with this but perhaps bit his tongue to “comply” with the March 6, 2009 DEIR Certificate issued by Ian A. Bowles, Secretary, Executive 0ffice of Energy and Environmental Affairs. No handouts were made available to members of the public in attendance; we could only look at the slides and listen to Nally’s general narrative.
This demonstrates the “power” of ABC and its development-membership that I referred to in an earlier letter posted on the Chalres River White Geese blog March 17, 2009. After the close of the meeting, I asked Ned Codd if the ABC slides would be posted on the Urban Ring website together with EOT’s presentation. He said he thought so, subject to ABC’s permission. I suggested that these became public records and should be included. In fact, ABC’s proposal in its entirety should be disclosed to the public under the circumstances so the public can be in a position to comment on them at a later date.
There were no positive messages presented at this meeting, especially in light of recent transportation events and MA budget cutting. In fact there seemed to be a suggestion from Ned Codd that the LMA tunnel might not be affordable under FTA requirements for New Starts federal funding, as MA has to be able to demonstrate availability of project funding beyond what FTA may provide; and it was not clear that MA could do this.
In the public comment period, I “tiraded” that I was hearing at this meeting the voice of former Secretary of Defense Donald Rumsfeld during the 2003 Iraq conflict about “known unknowns” and “unknown unknowns" that also seem to plague Phase 2 of the Urban Ring. Public transit has major problems now, and they are getting worse. I further “tiraded” that assuming Phase 2 passes muster and is completed, say, by 2020, public transit problems surely would have further worsened in the interim, such that Phase 2 would only serve as a “band-aid” when surgery is required, in the form of Phase 3 with its light/heavy dedicated rail. As to no LMA tunnel, I further “tiraded” that the traffic mess in the LMA currently is measurable and superimposing Phase 2 surface routes through LMA should reveal the absurdity, the futility of “no tunnel” since what happens in the LMA, unlike Vegas, does not stay in the LMA and causes traffic problems in surrounding neighborhoods.
What’s sad is that the Legislature is not seriously addressing transportation issues. At some point public transit users will become vociferous, especially with the economy far from recovery, as it may become more difficult commuting to their jobs. The Greater Boston area relies upon public transit. The Greater Boston area provides much of MA’s economic activity. Solving these problems will be expensive since the problems have long been neglected and ignored. MA cannot rely upon federal funding to address these problems. The Legislature has to come up with a way to find the money—and fast! Band-aids won’t stop the bleeding.
You may post this letter on your Blog, if you wish.
Archie Mazmanian
Brookline, MA 02446
Archie now notes that on April 22, 2009, EOT posted on its website its presentation including the ABC slides: www.theurbanring.com/currentmaterials.
Also, there will be an Urban Ring Phase 2 CAC meeting on Wednesday, June 10, 2009, from 4-6 PM at 10 Park Plaza, Conference Room 2-3. The meeting will discuss the “pending Notice of Project Change and review the proposed implementation strategy for the Urban Ring Phase 2 project.” Contact at EOT is Scott Hamwey, telephone 617-973-7210.
Marilyn Wellons
The CAC meeting April 14 included a presentation by A Better City (ABC) Planning Director and CAC Co-Chair Tom Nally.
The presentation provided several slides, with suggestions for taking several limited steps. EOT’s Ned Cod did not seem too impressed with this but perhaps bit his tongue to “comply” with the March 6, 2009 DEIR Certificate issued by Ian A. Bowles, Secretary, Executive 0ffice of Energy and Environmental Affairs. No handouts were made available to members of the public in attendance; we could only look at the slides and listen to Nally’s general narrative.
This demonstrates the “power” of ABC and its development-membership that I referred to in an earlier letter posted on the Chalres River White Geese blog March 17, 2009. After the close of the meeting, I asked Ned Codd if the ABC slides would be posted on the Urban Ring website together with EOT’s presentation. He said he thought so, subject to ABC’s permission. I suggested that these became public records and should be included. In fact, ABC’s proposal in its entirety should be disclosed to the public under the circumstances so the public can be in a position to comment on them at a later date.
There were no positive messages presented at this meeting, especially in light of recent transportation events and MA budget cutting. In fact there seemed to be a suggestion from Ned Codd that the LMA tunnel might not be affordable under FTA requirements for New Starts federal funding, as MA has to be able to demonstrate availability of project funding beyond what FTA may provide; and it was not clear that MA could do this.
In the public comment period, I “tiraded” that I was hearing at this meeting the voice of former Secretary of Defense Donald Rumsfeld during the 2003 Iraq conflict about “known unknowns” and “unknown unknowns" that also seem to plague Phase 2 of the Urban Ring. Public transit has major problems now, and they are getting worse. I further “tiraded” that assuming Phase 2 passes muster and is completed, say, by 2020, public transit problems surely would have further worsened in the interim, such that Phase 2 would only serve as a “band-aid” when surgery is required, in the form of Phase 3 with its light/heavy dedicated rail. As to no LMA tunnel, I further “tiraded” that the traffic mess in the LMA currently is measurable and superimposing Phase 2 surface routes through LMA should reveal the absurdity, the futility of “no tunnel” since what happens in the LMA, unlike Vegas, does not stay in the LMA and causes traffic problems in surrounding neighborhoods.
What’s sad is that the Legislature is not seriously addressing transportation issues. At some point public transit users will become vociferous, especially with the economy far from recovery, as it may become more difficult commuting to their jobs. The Greater Boston area relies upon public transit. The Greater Boston area provides much of MA’s economic activity. Solving these problems will be expensive since the problems have long been neglected and ignored. MA cannot rely upon federal funding to address these problems. The Legislature has to come up with a way to find the money—and fast! Band-aids won’t stop the bleeding.
You may post this letter on your Blog, if you wish.
Archie Mazmanian
Brookline, MA 02446
Archie now notes that on April 22, 2009, EOT posted on its website its presentation including the ABC slides: www.theurbanring.com/currentmaterials.
Also, there will be an Urban Ring Phase 2 CAC meeting on Wednesday, June 10, 2009, from 4-6 PM at 10 Park Plaza, Conference Room 2-3. The meeting will discuss the “pending Notice of Project Change and review the proposed implementation strategy for the Urban Ring Phase 2 project.” Contact at EOT is Scott Hamwey, telephone 617-973-7210.
Marilyn Wellons
Saturday, May 16, 2009
Further Thoughts on Chronicle Letter - Monteiro
Bob reports:
On looking at the letter as edited in Thursday's Chronicle, the editing significantly improved the letter.
As edited, it concentrated solely on the important issue, the Monteiro case and Cambridge's extremely bad political establishment.
The big problem is a very bad political establishment in the City of Cambridge.
On looking at the letter as edited in Thursday's Chronicle, the editing significantly improved the letter.
As edited, it concentrated solely on the important issue, the Monteiro case and Cambridge's extremely bad political establishment.
The big problem is a very bad political establishment in the City of Cambridge.
Thursday, May 14, 2009
A Clarification on Councilor Kelly.
Bob reports:
The Cambridge Chronicle has been doing very well by me, very well. It hurts to have to do a perhaps picky correction, but I do try to be accurate. So I feel compelled to make a correction, at least in this forum, on the version of my letter of praise for the Cambridge Chronicle printed in today’s (5/14/09) paper.
The letter as written is reproduced below at http://charlesriverwhitegeeseblog.blogspot.com/2009/05/praise-for-cambridge-chronicle-monteiro.html. The letter was accurately copied by the Chronicle on line.
The hard copy edition omitted the fifth through seventh paragraphs. This was rather clearly an edit to fit the letter into available space. The edit, however, kept the content solely on the Monteiro case and omitted my listing of a bunch of other problems.
My summary paragraph blasts eight plus city councilors. The text as published only really supports blasting seven. Eight deserve to be blasted as stated in those three paragraphs. I doubt very seriously that Councillor Kelley, who is the eighth councilor in this regard, would be interested in a follow up explicitly blasting him on the other civil rights issue, on environmental and animal abuse issues, and on zoning abuses while pointing out that he did not vote to rehire the City Manager. That vote makes the letter as published technically only relevant to seven councilors.
In this regard, however, I note that Councillor Kelley Monday publicly, and belatedly, objected to the ongoing destruction of Green maintenance at Magazine Beach. Kelley did not object to the outrageous introduced starvation wall. Kelley did not object to the heartless starvation of the Charles River White Geese. Kelley did not object to the outrages associated with the BU Bridge repairs. Kelley did not object to the destruction of all ground vegetation between the BU Bridge and the BU Boathouse. Kelley did not object to the twice yearly destruction of all protective vegetation lining the Charles River except for the bizarre introduced wall at Magazine Beach. Kelley did not object to the annual poisoning of the eggs of water fowl. Kelley did not object to the continuing and unnecessary destruction of healthy trees on a large scale by the City of Cambridge. Councilor Kelley did object to the destruction of Green maintenance at Magazine Beach.
I will continue my highly distressed observations.
The Cambridge Chronicle has been doing very well by me, very well. It hurts to have to do a perhaps picky correction, but I do try to be accurate. So I feel compelled to make a correction, at least in this forum, on the version of my letter of praise for the Cambridge Chronicle printed in today’s (5/14/09) paper.
The letter as written is reproduced below at http://charlesriverwhitegeeseblog.blogspot.com/2009/05/praise-for-cambridge-chronicle-monteiro.html. The letter was accurately copied by the Chronicle on line.
The hard copy edition omitted the fifth through seventh paragraphs. This was rather clearly an edit to fit the letter into available space. The edit, however, kept the content solely on the Monteiro case and omitted my listing of a bunch of other problems.
My summary paragraph blasts eight plus city councilors. The text as published only really supports blasting seven. Eight deserve to be blasted as stated in those three paragraphs. I doubt very seriously that Councillor Kelley, who is the eighth councilor in this regard, would be interested in a follow up explicitly blasting him on the other civil rights issue, on environmental and animal abuse issues, and on zoning abuses while pointing out that he did not vote to rehire the City Manager. That vote makes the letter as published technically only relevant to seven councilors.
In this regard, however, I note that Councillor Kelley Monday publicly, and belatedly, objected to the ongoing destruction of Green maintenance at Magazine Beach. Kelley did not object to the outrageous introduced starvation wall. Kelley did not object to the heartless starvation of the Charles River White Geese. Kelley did not object to the outrages associated with the BU Bridge repairs. Kelley did not object to the destruction of all ground vegetation between the BU Bridge and the BU Boathouse. Kelley did not object to the twice yearly destruction of all protective vegetation lining the Charles River except for the bizarre introduced wall at Magazine Beach. Kelley did not object to the annual poisoning of the eggs of water fowl. Kelley did not object to the continuing and unnecessary destruction of healthy trees on a large scale by the City of Cambridge. Councilor Kelley did object to the destruction of Green maintenance at Magazine Beach.
I will continue my highly distressed observations.
DCR Presentation; BU Bridge “Repairs”, Bridges to be Removed from them?
Bob reports.
On Wednesday afternoon, May 13, I attended a meeting of the “Regional Transportation Advisory Council” at the Transportation Building in Park Square, Boston.
Representatives of the Department of Conservation and Recreation made a presentation on their Parkway and Bridge Program.
They stated that the BU Bridge repair contract is anticipated to be awarded by June 3 for work starting July 4.
They showed a map of the project which included the irresponsibly located staging as previously reported. The most important part of the map from an environmental perspective was that the portion of the goose meadow which they did not intend to further destroy this time is marked something like “Geese Protection Area.”
This is the department which goes out of its way to destroy as much wildlife as it can get away with on the Charles River between the Harbor and the Watertown Dam.
This is the department which has spent nearly ten years promising no intent to harm the Charles River White Geese and then explaining that starving them is not harming them, followed by bragging about starving them.
This is the department which has timed the work around the BU Bridge to maximize harm to the Charles River White Geese.
This is the department which has, starting in 2004, destroyed all ground vegetation between the BU Bridge and the BU Boathouse except for the vegetation which they propose to destroy as part of this project.
The “Geese Protection Area” is a DCR created mudpit, with all previously undestroyed ground vegetation destroyed as part of this project, half of the destruction for staging which is unnecessary in that location and highly appropriate for under the nearby Memorial Drive overpass.
Featured very prominently in their presentation was a photo of the EMPTY but very beautiful Ebersol Fields near Massachusetts General Hospital. Ebersol Fields is the prototype of the outrage going on on Magazine Beach. Ebersol Fields, as a byproduct, has created poisoning of the Charles River with annually recurrent algae infestation. The DCR tossed on Tartan when their beloved poisons were not sufficiently destructive to pests at Ebersol Field. The DCR, like the City of Cambridge, is offended by GREEN maintenance which has existed on the Charles River for the better part of the last century.
The DCR also commented on pending legislation to destroy responsibilities of the DCR.
Based on their presentation, it would appear that all of the actors in the State House support taking away bridge responsibilities from the DCR. The DCR hopes that they will be allowed to finish the Bridge Repair projects.
Based on their presentation, there appears to be a difference of opinion as to whether parkways should be taken away from the DCR. One of the projects the DCR continued to push in their presentation would needlessly destroy hundreds of healthy trees between the Longfellow Bridge and Magazine Beach.
The DCR’s sycophants brag that Memorial Drive will look terrific in 40 years.
This entity fits very well with the City of Cambridge.
Reprehensible is an excellent word.
*************
The above report has been posted for the governor.
On Wednesday afternoon, May 13, I attended a meeting of the “Regional Transportation Advisory Council” at the Transportation Building in Park Square, Boston.
Representatives of the Department of Conservation and Recreation made a presentation on their Parkway and Bridge Program.
They stated that the BU Bridge repair contract is anticipated to be awarded by June 3 for work starting July 4.
They showed a map of the project which included the irresponsibly located staging as previously reported. The most important part of the map from an environmental perspective was that the portion of the goose meadow which they did not intend to further destroy this time is marked something like “Geese Protection Area.”
This is the department which goes out of its way to destroy as much wildlife as it can get away with on the Charles River between the Harbor and the Watertown Dam.
This is the department which has spent nearly ten years promising no intent to harm the Charles River White Geese and then explaining that starving them is not harming them, followed by bragging about starving them.
This is the department which has timed the work around the BU Bridge to maximize harm to the Charles River White Geese.
This is the department which has, starting in 2004, destroyed all ground vegetation between the BU Bridge and the BU Boathouse except for the vegetation which they propose to destroy as part of this project.
The “Geese Protection Area” is a DCR created mudpit, with all previously undestroyed ground vegetation destroyed as part of this project, half of the destruction for staging which is unnecessary in that location and highly appropriate for under the nearby Memorial Drive overpass.
Featured very prominently in their presentation was a photo of the EMPTY but very beautiful Ebersol Fields near Massachusetts General Hospital. Ebersol Fields is the prototype of the outrage going on on Magazine Beach. Ebersol Fields, as a byproduct, has created poisoning of the Charles River with annually recurrent algae infestation. The DCR tossed on Tartan when their beloved poisons were not sufficiently destructive to pests at Ebersol Field. The DCR, like the City of Cambridge, is offended by GREEN maintenance which has existed on the Charles River for the better part of the last century.
The DCR also commented on pending legislation to destroy responsibilities of the DCR.
Based on their presentation, it would appear that all of the actors in the State House support taking away bridge responsibilities from the DCR. The DCR hopes that they will be allowed to finish the Bridge Repair projects.
Based on their presentation, there appears to be a difference of opinion as to whether parkways should be taken away from the DCR. One of the projects the DCR continued to push in their presentation would needlessly destroy hundreds of healthy trees between the Longfellow Bridge and Magazine Beach.
The DCR’s sycophants brag that Memorial Drive will look terrific in 40 years.
This entity fits very well with the City of Cambridge.
Reprehensible is an excellent word.
*************
The above report has been posted for the governor.
Sunday, May 10, 2009
Praise for Cambridge Chronicle - Monteiro Case
1. Chronicle Reports.
2. Letter of Praise.
Bob Reports:
1. Chronicle Reports.
In the April 30, 2009, Cambridge Chronicle, the Chronicle had the Monteiro case as its lead headline.
The Chronicle wrote a very specific and quite good editorial on the matter.
The Chronicle editorial may be read at: http://www.wickedlocal.com/cambridge/news/opinions/x303487854/Editorial-Gambling-with-our-money.
It leads with:
“Gambling with taxpayer money. That’s essentially what Cambridge City Manager Bob Healy has done in a case that has lasted 11 years, embarrassed City Hall and cost taxpayers a whopping $6 million, if you include the more than $1 million in legal fees.”
Another juicy comment:
“The image of an unelected public official proposing fee hikes while pursuing his own expensive personal legal battle that so far seems unconquerable doesn’t sit well with us.”
The latest, May 7, 2009, Cambridge Chronicle, featured a guest editorial by an East Cambridge activist. It went into specific examples of outrageous behavior by the city.
This letter, by Mark Jaiquith, may be read at: http://www.wickedlocal.com/cambridge/news/opinions/x342382829/Guest-commentary-The-Bob-Healy-conundrum.
It leads with: “Has Cambridge had enough of Bob Healy?”
And comments later:
“It would be easier to deal with good old-fashioned graft, but we have something else, in my judgment no less corrupt. It’s a culture within government that what matters is the city’s bond rating, doing what He wants.”
2. Letter of Praise.
I sent the following letter on May 7, after reviewing the paper:
Editor
Cambridge Chronicle
You are to be commended for your editorial and for the guest editorial on the Monteiro case.
I particularly appreciated the examples given in the guest editorial.
Cambridge has a dishonest government. Cambridge keeps the voters in control through intermediaries who do not identify themselves as intermediaries and who commonly use secret definitions and who use other improper techniques.
A government which does what was done to Ms. Monteiro is not "pro-civil rights." Seven continuing city councilors rehired the City Manager.
A government which tries to keep a handicapped elder from using her guide dog is not "pro-civil rights." All eight continuing city councilors are on the wrong side.
A city government which routinely and needlessly destroys many healthy trees, but which runs around calling itself "pro-environment" is not "pro-environment." A city government which destroys green maintenance at Magazine Beach and walls off Magazine Beach from the Charles River is not "pro-environment." A city government which heartlessly abuses beautiful valuable animals is not "pro-environment." All eight continuing city councilors are on the wrong side.
A city government which destroys zoning protections while claiming to be doing the opposite is not honest. All eight continuing city councilors are on the wrong side.
I can see unidentified representatives running around calling it "politically correct" to defend reprehensible government behavior.
I can see unidentified representatives running around repeating Cambridge’s civil rights nonsense, the civil rights nonsense which was discredited by the well thought out opinion of the Monteiro judge.
I can see unidentified representatives calling it AGAINST "political correctness" TO BE IN SUPPORT of the civil rights of this BLACK WOMAN.
"Political correctness" is other than what somebody’s handler calls "politically correct" this week, especially when the record in reality is so bad and so contrary to "political correctness."
Too many voters of Cambridge have too long been kept away from the reality that we have at least eight really bad city councilors who are responsible for the current really bad city government.
I can see too many voters being told by unidentified representatives that Cambridge has a decent government. I can see too many unidentified representatives running around who do not want to know that Cambridge’s government has been found reprehensible by verdict of judge and jury.
Your editorials are an excellent first step toward responsibility in Cambridge government.
We need to go beyond the first step. Cambridge needs a government which is not reprehensible.
2. Letter of Praise.
Bob Reports:
1. Chronicle Reports.
In the April 30, 2009, Cambridge Chronicle, the Chronicle had the Monteiro case as its lead headline.
The Chronicle wrote a very specific and quite good editorial on the matter.
The Chronicle editorial may be read at: http://www.wickedlocal.com/cambridge/news/opinions/x303487854/Editorial-Gambling-with-our-money.
It leads with:
“Gambling with taxpayer money. That’s essentially what Cambridge City Manager Bob Healy has done in a case that has lasted 11 years, embarrassed City Hall and cost taxpayers a whopping $6 million, if you include the more than $1 million in legal fees.”
Another juicy comment:
“The image of an unelected public official proposing fee hikes while pursuing his own expensive personal legal battle that so far seems unconquerable doesn’t sit well with us.”
The latest, May 7, 2009, Cambridge Chronicle, featured a guest editorial by an East Cambridge activist. It went into specific examples of outrageous behavior by the city.
This letter, by Mark Jaiquith, may be read at: http://www.wickedlocal.com/cambridge/news/opinions/x342382829/Guest-commentary-The-Bob-Healy-conundrum.
It leads with: “Has Cambridge had enough of Bob Healy?”
And comments later:
“It would be easier to deal with good old-fashioned graft, but we have something else, in my judgment no less corrupt. It’s a culture within government that what matters is the city’s bond rating, doing what He wants.”
2. Letter of Praise.
I sent the following letter on May 7, after reviewing the paper:
Editor
Cambridge Chronicle
You are to be commended for your editorial and for the guest editorial on the Monteiro case.
I particularly appreciated the examples given in the guest editorial.
Cambridge has a dishonest government. Cambridge keeps the voters in control through intermediaries who do not identify themselves as intermediaries and who commonly use secret definitions and who use other improper techniques.
A government which does what was done to Ms. Monteiro is not "pro-civil rights." Seven continuing city councilors rehired the City Manager.
A government which tries to keep a handicapped elder from using her guide dog is not "pro-civil rights." All eight continuing city councilors are on the wrong side.
A city government which routinely and needlessly destroys many healthy trees, but which runs around calling itself "pro-environment" is not "pro-environment." A city government which destroys green maintenance at Magazine Beach and walls off Magazine Beach from the Charles River is not "pro-environment." A city government which heartlessly abuses beautiful valuable animals is not "pro-environment." All eight continuing city councilors are on the wrong side.
A city government which destroys zoning protections while claiming to be doing the opposite is not honest. All eight continuing city councilors are on the wrong side.
I can see unidentified representatives running around calling it "politically correct" to defend reprehensible government behavior.
I can see unidentified representatives running around repeating Cambridge’s civil rights nonsense, the civil rights nonsense which was discredited by the well thought out opinion of the Monteiro judge.
I can see unidentified representatives calling it AGAINST "political correctness" TO BE IN SUPPORT of the civil rights of this BLACK WOMAN.
"Political correctness" is other than what somebody’s handler calls "politically correct" this week, especially when the record in reality is so bad and so contrary to "political correctness."
Too many voters of Cambridge have too long been kept away from the reality that we have at least eight really bad city councilors who are responsible for the current really bad city government.
I can see too many voters being told by unidentified representatives that Cambridge has a decent government. I can see too many unidentified representatives running around who do not want to know that Cambridge’s government has been found reprehensible by verdict of judge and jury.
Your editorials are an excellent first step toward responsibility in Cambridge government.
We need to go beyond the first step. Cambridge needs a government which is not reprehensible.
Cambridge Pols to Council: Save the world. Indifferent to city destruction of city.
Bob Reports:
1. Introductory.
2. Response sent to City Manager’s Cambridgeport Neighborhood Association listserve.
3. Call to action?
1. Introductory.
Below are an email announcing a city council vote sent over the City Manager’s Cambridgeport Neighborhood Association listserve and my response. My response has not yet been sent out.
Of interest is the naming of yet another “green” organization which somehow just does not want to know about ongoing environmental destruction by the City of Cambridge.
The “environmental” group sounds a lot like eight plus “environmental” city councilors and the Cambridge city manager.
Their definition of “environmental” is dramatically demonstrated by the ongoing destruction. You may also read the definition of “environmental” by the Cambridge Pols organization at http://charlesriverwhitegeeseblog.blogspot.com/2007_05_29_archive.html.
The opinion of judge and jury on the Cambridge City Government, “reprehensible,” may be read at: http://charlesriverwhitegeeseblog.blogspot.com/2009/04/judge-issues-decision-denying.html.
2. Response sent to City Manager’s Cambridgeport Neighborhood Association listserve.
Sent Saturday, 5/9/09
If the councilors were serious about the world's climate and its environment, they have no further to go than their own behavior on the Charles River, at Fresh Pond, at Alewife and in the needless destruction of so many healthy mature trees in their various projects.
3. Call to action?
--- On Fri, 5/8/09, ___________ wrote:
Date: Friday, May 8, 2009, 8:51 PM
There is a policy order on the Cambridge City Council agenda this Monday evening (May 11) recognizing that there is a climate emergency and requesting the City Manager "to direct the appropriate city departments to increase the City's responses to a scale proportionate to the emergency and consistent with the city's own Climate Protection goals for 2010 and beyond." The full text is at http://www.cambridg ema.gov/cityCler k/PolicyOrder. cfm?item_ id=25054 Three Councillors have signed on - Marjorie Decker, Timm Toomey, and Henrietta Davis.
This comes out of a Green Decade/Cambridge initiative to ask the Council to recognize the climate emergency and mobilize the city to take appropriate action. It could be a huge opportunity - not only for a new level of action in Cambridge, but to have a much broader impact. We need to get the word out everywhere - to the public and to policy makers - that the climate crisis is now a global emergency and that we have a rapidly narrowing window in which to act if we are to have any chance of averting a runaway catastrophe.
We need as many people as possible to come to the Council meeting Monday evening to show that there is popular support for this resolution. Also, we want to get the Council to call a citywide hearing and not just pass this without meaningful follow-up. Please come if you can! Public comment starts a little after 5:30. If you want to get on the list to speak, you can call the City Council office Monday between 10 and 3 at 617-349-4280. Or you can sign up to speak when you get there. Or you can just come and not speak but show support by being there and by applauding the people who do speak.
Or if you can't come, you can email the entire Council on any item by using Council@Cambridgema .gov and the City Manager at healy@Cambridgema. gov.
1. Introductory.
2. Response sent to City Manager’s Cambridgeport Neighborhood Association listserve.
3. Call to action?
1. Introductory.
Below are an email announcing a city council vote sent over the City Manager’s Cambridgeport Neighborhood Association listserve and my response. My response has not yet been sent out.
Of interest is the naming of yet another “green” organization which somehow just does not want to know about ongoing environmental destruction by the City of Cambridge.
The “environmental” group sounds a lot like eight plus “environmental” city councilors and the Cambridge city manager.
Their definition of “environmental” is dramatically demonstrated by the ongoing destruction. You may also read the definition of “environmental” by the Cambridge Pols organization at http://charlesriverwhitegeeseblog.blogspot.com/2007_05_29_archive.html.
The opinion of judge and jury on the Cambridge City Government, “reprehensible,” may be read at: http://charlesriverwhitegeeseblog.blogspot.com/2009/04/judge-issues-decision-denying.html.
2. Response sent to City Manager’s Cambridgeport Neighborhood Association listserve.
Sent Saturday, 5/9/09
If the councilors were serious about the world's climate and its environment, they have no further to go than their own behavior on the Charles River, at Fresh Pond, at Alewife and in the needless destruction of so many healthy mature trees in their various projects.
3. Call to action?
--- On Fri, 5/8/09, ___________ wrote:
Date: Friday, May 8, 2009, 8:51 PM
There is a policy order on the Cambridge City Council agenda this Monday evening (May 11) recognizing that there is a climate emergency and requesting the City Manager "to direct the appropriate city departments to increase the City's responses to a scale proportionate to the emergency and consistent with the city's own Climate Protection goals for 2010 and beyond." The full text is at http://www.cambridg ema.gov/cityCler k/PolicyOrder. cfm?item_ id=25054 Three Councillors have signed on - Marjorie Decker, Timm Toomey, and Henrietta Davis.
This comes out of a Green Decade/Cambridge initiative to ask the Council to recognize the climate emergency and mobilize the city to take appropriate action. It could be a huge opportunity - not only for a new level of action in Cambridge, but to have a much broader impact. We need to get the word out everywhere - to the public and to policy makers - that the climate crisis is now a global emergency and that we have a rapidly narrowing window in which to act if we are to have any chance of averting a runaway catastrophe.
We need as many people as possible to come to the Council meeting Monday evening to show that there is popular support for this resolution. Also, we want to get the Council to call a citywide hearing and not just pass this without meaningful follow-up. Please come if you can! Public comment starts a little after 5:30. If you want to get on the list to speak, you can call the City Council office Monday between 10 and 3 at 617-349-4280. Or you can sign up to speak when you get there. Or you can just come and not speak but show support by being there and by applauding the people who do speak.
Or if you can't come, you can email the entire Council on any item by using Council@Cambridgema .gov and the City Manager at healy@Cambridgema. gov.
Wednesday, May 06, 2009
Response to "Environmental" Praise for Representative Alice Wolf
Bob Reports:
Still catching up.
The following was printed in the April 23, 2009, Cambridge Chronicle.
The document from a Cambridge City Councilor to which the letter refers was written by Samuel Seidel. It is published on this blog at http://charlesriverwhitegeeseblog.blogspot.com/2007_05_29_archive.html.
**********
Editor
Cambridge Chronicle
I, with regret, have become quite skeptical of organizations and pols which call themselves “environmental” in Cambridge .
I know that I have been publicly mocked by one key Cambridge pol because I have the temerity to believe in the world’s definition of “environmentalism”. Cambridge pols, he said, have a better definition.
A letter in this week's Chronicle praises Representative Wolf on "environmental" grounds, including praise for protecting our scenic parkways and bridges.
I do not consider destruction of the Green maintenance at Magazine Beach for replacement with maintenance with herbicides to be something worthy of environmental commendation. These poisons are destructive to water fowl and not helpful to humans.
I do not consider the bizarre wall of introduced vegetation blocking access between Magazine Beach and the river to be anything other than what the key DCR bureaucrat has bragged of: a tool to starve the local waterfowl.
I see code words for protecting the environmentally reprehensible Department of Conservation and Recreation which, along with Cambridge and its pols, is destroying all animals living on or visiting the Charles River between the Watertown Dam and the harbor.
The DCR annually poisons as much waterfowl eggs as it can get away with. Twice a year, the DCR destroys all protective vegetation for migrating birds, except for the bizarre starvation wall at Magazine Beach .
The DCR seems to toss in as much animal harm as it can get away with in its projects. The BU Bridge repairs destroy key ground vegetation for staging that should go under Memorial Drive . The project completes total destruction of ground vegetation between the BU Bridge and the BU Boathouse which has been done in stages starting in 2004.
The “protection of bridges” has included addition of light pollution on three Charles River bridges.
The DCR, Cambridge, and Cambridge pols are involved in heartless animal abuse directed at the Charles River White Geese.
Sounds to me like the definition of environmentalism being used is the 19th Century of environmentalism: destroy, destroy, destroy, and make it look good.
You add to that the apparent plans to remove the playing fields at Magazine Beach from general public use. Neighborhood kids trying to use at least one Russell Field playing field have been chased off by the police for not getting prior city permission. This same “improvement” is scheduled to be implemented at Magazine Beach .
I am not happy.
Still catching up.
The following was printed in the April 23, 2009, Cambridge Chronicle.
The document from a Cambridge City Councilor to which the letter refers was written by Samuel Seidel. It is published on this blog at http://charlesriverwhitegeeseblog.blogspot.com/2007_05_29_archive.html.
**********
Editor
Cambridge Chronicle
I, with regret, have become quite skeptical of organizations and pols which call themselves “environmental” in Cambridge .
I know that I have been publicly mocked by one key Cambridge pol because I have the temerity to believe in the world’s definition of “environmentalism”. Cambridge pols, he said, have a better definition.
A letter in this week's Chronicle praises Representative Wolf on "environmental" grounds, including praise for protecting our scenic parkways and bridges.
I do not consider destruction of the Green maintenance at Magazine Beach for replacement with maintenance with herbicides to be something worthy of environmental commendation. These poisons are destructive to water fowl and not helpful to humans.
I do not consider the bizarre wall of introduced vegetation blocking access between Magazine Beach and the river to be anything other than what the key DCR bureaucrat has bragged of: a tool to starve the local waterfowl.
I see code words for protecting the environmentally reprehensible Department of Conservation and Recreation which, along with Cambridge and its pols, is destroying all animals living on or visiting the Charles River between the Watertown Dam and the harbor.
The DCR annually poisons as much waterfowl eggs as it can get away with. Twice a year, the DCR destroys all protective vegetation for migrating birds, except for the bizarre starvation wall at Magazine Beach .
The DCR seems to toss in as much animal harm as it can get away with in its projects. The BU Bridge repairs destroy key ground vegetation for staging that should go under Memorial Drive . The project completes total destruction of ground vegetation between the BU Bridge and the BU Boathouse which has been done in stages starting in 2004.
The “protection of bridges” has included addition of light pollution on three Charles River bridges.
The DCR, Cambridge, and Cambridge pols are involved in heartless animal abuse directed at the Charles River White Geese.
Sounds to me like the definition of environmentalism being used is the 19th Century of environmentalism: destroy, destroy, destroy, and make it look good.
You add to that the apparent plans to remove the playing fields at Magazine Beach from general public use. Neighborhood kids trying to use at least one Russell Field playing field have been chased off by the police for not getting prior city permission. This same “improvement” is scheduled to be implemented at Magazine Beach .
I am not happy.
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.
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.
Tuesday, April 28, 2009
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.
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.
Saturday, April 25, 2009
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)
(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)
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