1.2 SUFFICIENT EVIDENCE OF DISCRIMINATION

Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097 (2000) After a jury found in the Plaintiff's favor in an age discrimination case, the Fifth Circuit found that the employer's motion for judgment notwithstanding the verdict should have been granted. The Supreme Court reversed the Fifth Circuit, finding that the Plaintiff had proffered sufficient evidence of age discrimination. The Supreme Court assumed without deciding that the McDonnell Douglas framework was applicable to ADEA claims.

The Fifth Circuit found that there was insufficient evidence of discrimination on the premise that proof of a prima facie case, along with proof of pretext alone, is insufficient to demonstrate discrimination, and that other evidence is necessary. The Supreme Court disagreed and held that proof of a prima facie case along with proof that the employer's articulated reason for discharge was pretextual, can be sufficient to generate an inference of discrimination. The Supreme Court therefore rejected an absolute "pretext plus" standard; the Court asserted that this discredited standard had been used in the First Circuit in the case of Woods v. Friction Materials, Inc., 30 F.3d 255 (1^st Cir. 1994).

The Supreme Court held that while pretext does not compel a finding of discrimination, it is permissible for the jury to infer the ultimate issue of discrimination from the falsity of the employer's explanation. On the other hand, pretext will not always be adequate to sustain a jury's finding of discrimination, if proof of pretext is particularly weak and there is strong, independent evidence supporting the absence of discrimination. The strength of the prima facie case and the evidence of pretext must be evaluated to determine whether such evidence is adequate.

Next, the Court went on to describe the JNOV standard, and stated that a judge should review the entire record, but that she must disregard all evidence favorable to the moving party that the jury is not required to believe, must draw all reasonable inferences in the non-moving party's favor, and should give credence to evidence favoring the movant only to the extent that it is uncontradicted, unimpeached, and comes from disinterested witnesses.

Applying these standards to the case at issue, the Court found adequate evidence of age discrimination. The Court held that the employer's articulated reason for the termination, shoddy record keeping, was proven to be pretextual, where it was established that another worker, and not Plaintiff, was responsible for the records at issue. Moreover, the Court found that various statements bolstered the finding of age discrimination: that Plaintiff was "so old he must have come over on the Mayflower," that he was "too damn old to do the job." The Fifth Circuit improperly downplayed the importance of these comments as not made in the direct context of Reeves termination; however, it was the jury that was in the proper position to weigh such evidence. Finally, there was evidence that a younger, similarly situated employee was treated with much more respect. Importantly, the Court found there was sufficient evidence of intentional discrimination, despite the fact that there was no evidence that some of the individuals recommending Reeves' termination were biased.

EEOC v. Commonwealth of Massachusetts, 2000 U.S. Dist. LEXIS 11042 G.L. c. 32, sec 7(1) provides certain Massachusetts employees with accidental disability retirement allowances. However, benefits are curtailed to the extent that the employees reach a "maximum age" of 70, 65, or 55 for different categories of workers, and benefits are diminished as employees approach these maximum ages. To the extent that various employees are covered by the ADEA (and exempting others such as elected officials and policymakers), the ADEA preempts the Massachusetts statute; the defendants are enjoined from using an employee's age from limiting entitlement to benefits under the statute. This may need to be read with Kimmel, see above.

Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424 (1st Cir. 2000) the plaintiff sought to demonstrate his age discrimination/wrongful termination case using a direct evidence framework; however, the district court granted summary judgment. The First Circuit reversed the district court. When a plaintiff presents direct evidence of age discrimination, the employer may respond by denying the validity or sufficiency of the plaintiff's evidence, or it may prove that it would have made the same decision even if it had not taken age into account. However, the line between the direct evidence and circumstantial evidence frameworks is blurry, and courts have sometimes looked instead to the totality of evidence. The court decided that it did not want to enter the "direct evidence" thicket, and instead decided to review the case based on the totality of the evidence, while guided by the McDonnell Douglas analysis.

The First Circuit reviewed the McDonnell Douglas analysis, and held that proof of a prima facie case as well as proof of pretext could be sufficient to generate an inference of discrimination, even if there was no other supporting evidence. However, the Court then stated that courts should not get caught up in the legal frameworks, and instead should review the aggregate package of proof offered by the plaintiff, taking all inferences in the plaintiff's favor.

In this case, the aggregate package of proof generated an inference of age discrimination. The decisionmakers were 12 and 2 years younger than plaintiff. After plaintiff left, his duties were divided up among four younger co-workers. When he was terminated, the plaintiff was the oldest employee of defendant. Defendant asserted that plaintiff was terminated for problems with his work performance. However, this articulated reason was inconsistent with what plaintiff was told at the time of his termination, that the separation was due to reorganization and was not based on his performance. Furthermore, defendant's description of the plaintiff's alleged performance based problems changed over time. Different and inconsistent reasons can demonstrate pretext. defendant's explanation for the inconsistency, that it did not want to humiliate the plaintiff by describing all his faults, could be seen as not credible. With regard to some of the alleged performance based problems, there was evidence that plaintiff was not responsible for the problems, and that others engaging in similar violations were not terminated. Furthermore, there was a long record of strong performance by plaintiff at the company, as evidenced by an evaluation, letter of commendation, and a merit increase.

There was evidence that plaintiff was called "old fart" and "el viejo," and notes concerning the decision to terminate plaintiff contain the phrases "cover up so Alberto doesn't," "all over 40," "Tony--age," and "age descrim. [sic]." The First Circuit rejected the district court's contention that some of the comments were stray remarks. Thus, there was sufficient evidence of age discrimination and the case was remanded for trial.

Febres v. Challenger Caribbean Corp., 214 F.3d 57 (1^st Cir. 2000) Direct evidence of age discrimination may consist of statements by a decisionmaker reflecting age animus and bearing directly on the contested employment decision. In this case, one of the three decisionmakers told the plaintiff that one of the criteria used in a reduction of force was "in some cases, the age." The First Circuit determined that such a comment was direct evidence of age discrimination, even though the statement asserted that age was considered in only some cases, and not necessarily in the plaintiff's case. The comment reflected age animus, despite the employer's argument that the comment reflected an intent to treat older workers more favorably, because the laid off workers were older than some of the retained workers.

Given the presence of direct evidence of age discrimination, the plaintiffs were entitled to a Price Waterhouse jury instruction, requiring that plaintiffs prove that age was a motivating factor in the decision to terminate them, and then shifting the burden to the employer to prove that the employees would have been terminated anyway even in the absence of consideration of age.

The trial judge accurately gave the necessary jury instruction, although it was not a model of clarity and the court does not recommend its emulation. The instruction stated, in part, "if plaintiffs have offered evidence from which you conclude that defendant discriminated against them because of their ages, plaintiffs are entitled to recover, unless the defendant proves that it would have taken the same action regardless of plaintiff's ages . . .." The plaintiffs, having failed to delineate the specific language of the charge that they considered confusing or internally consistent waived their objections to the jury charge.

The plaintiff's requested change in the jury instruction that the burden shifts to the defendant on the introduction of direct evidence is legally incorrect. It is only on the jury's finding that age was a motivating factor that the burden is shifted, and not necessarily just because direct evidence is introduced.

Boy v. General Electric Co., 115 F. Supp. 2d 109 (D. Mass. 2000) In this reduction of force/age discrimination case, the employer's motion for summary judgment was denied, upon showing of pretext. The employer asserted that it lay off plaintiff in a reduction of force because he had the lowest score according to its merit comparison system. Plaintiff, however, demonstrated that other workers were not included in this comparison. The employer responded that it did not compare workers in different sites with each other, nor members in a particular program. However, the employer's efforts to distinguish between various types of worker did not find any support in its detailed layoff handbook. Moreover, before plaintiff had left, the employer developed a need for individuals doing plaintiff's job, and rather than recalling plaintiff, filled his position with a younger, less experienced and higher paid worker. Therefore, summary judgment was denied. This opinion, from Judge Lasker, is one of the few federal decisions denying summary judgment consistent with a "pretext only" standard.

Quercia v. Allmerica Financial, 84 F. Supp. 2d 222 (D. Mass. 2000) In this wrongful termination/age discrimination case, the employer asserted that the reduction in force prima facie case should control. Plaintiff successfully argued that the evidence showed that he was replaced by a younger employee, and that therefore, the case should not be dealt with pursuant to a RIF inquiry, but pursuant to an ordinary prima facie case, in which he could prevail by showing that he was replaced by a younger employee. The employer's assertion that plaintiff failed to restrain an abusive co-worker was rebutted by plaintiff's testimony that he only received one complaint about the co-worker, and he acted appropriately in response. The employer's assertion that plaintiff's coworkers had lost trust in plaintiff was rebutted by the fact that plaintiff was evaluated as having solid management skills, and the employer never interviewed the coworkers to determine their view on this subject. Further evidence supported plaintiff's claim, that a lower paid, younger person took over plaintiff's job functions; plaintiff was told that another employee had been "coasting," had been there for a lot of years, and if he wanted to retire, that could happen really quick; and successors to plaintiff's job were not disciplined for failure to curb the conduct of the abusive co-worker. Summary judgment was denied on the ADEA and c. 151B age claims, however the claim under the MERA was dismissed, as c. 151B is an exclusive remedy.

1.3 INSUFFICIENT EVIDENCE OF DISCRIMINATION-AGE

Fite v. Digital Equipment Corp., 232 F.3d 3 (1^st Cir. 2000). The District Court dismissed c. 151B wrongful discharge age discrimination claims due to failure to appropriately file the claims with the MCAD. Without reaching the issue of filing, the First Circuit upheld the dismissal on different grounds. A parallel age discrimination claim under the ADEA had been tried before a jury, and the jury found against the plaintiff. Since ADEA and c. 151B age discrimination claims are analogous, the jury's rejection of the ADEA claim justified dismissal of the c. 151B claim on the merits. The plaintiff argued that the burden of proof for c. 151B is more liberal than that of the ADEA, and that he would have been entitled to a liberal "pretext only" jury instruction requiring judgment in favor of Plaintiff upon the showing of pretext, had the c. 151B claim been permitted to reach the jury. The Plaintiff argued that the instruction was required, pursuant to Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437 (1995). The First Circuit reasoned that Blare was no longer controlling, and that Abramian v. President & Fellows of Harvard College, 432 Mass. 107 (2000), made it clear that proof of pretext permits, but does not compel, a finding of discrimination. Therefore, the Court concluded, Massachusetts discrimination law is now "generally aligned" with Federal law, as articulated in Reeves v. Sanderson Plumbing Prods. Inc., 120 S. Ct. 2097 (2000), as possibly permitting but not compelling a finding of discrimination upon proof of pretext. Therefore, the jury's rejection of the ADEA requires dismissal of the parallel c. 151B claim as well.

Keeler v. Putnam Fiduciary Trust Co., 238 F.3d 5 (1^st Cir. 2001) this was a c. 151B age discrimination claim. The First Circuit considered the Plaintiff's claim for a continuing violation. Successive reverses to the Plaintiff's career, beginning in 1993, including loss of responsibilities, loss of staff, reduction and loss of bonuses, loss of perquisites and reduction of job title from Senior Vice President to Vice President, did not constitute a continuing violation, because the Plaintiff suspected age discrimination as early as 1994 and failed to file a timely MCAD charge. While the continuing violations doctrine may apply in a harassment case "where pinpricks may only slowly add up to a wound," in this case the conduct alleged constituted discrete and major adjustments in pay, title and responsibilities. Therefore, Plaintiff may not be excused from filing a timely charge of discrimination for these discrete acts. While this untimely conduct may be unactionable, it may nevertheless be utilized as background evidence of discrimination.

In considering the merits of the age discrimination claim, the Court held that a statement in 1993 by the decisionmaker that "due to [plaintiff's] age he . . . would be given less responsibility at the same pay . . ." as well as two other comments suggesting discriminatory intent, might have supported a claim of discrimination with regard to conduct occurring in that time period. However, the comments do not demonstrate that conduct beginning in late 1995 was discriminatory, especially in light of a record of declining performance reviews and a record of work criticisms by others. Plaintiff's argument that the criticisms of Plaintiff were unfair is irrelevant, so long as the criticisms were not age related. The Court failed to address the evidentiary value of a showing of pretext or the fact that unfair criticism may itself evidence discrimination. The Court noted that there was no specific evidence of the plaintiff being treated differently from younger, similarly situated employees.

Finally, the First Circuit held that an employer does not incur independent liability for failure to properly investigate an internal claim of age discrimination, especially where the plaintiff does not prevail on the underlying discrimination claim. While failure to promptly investigate a complaint of discrimination may impose liability on an employer that has failed to adequately respond to a correct allegation of discrimination, the employer will not be held responsible for failing to respond properly to a complaint of discrimination where no underlying discrimination has been found.

Suarez v. Pueblo International, Inc., 229 F.3d 49 (1^st Cir. 2000) The First Circuit affirmed summary judgment in favor of an employer in this age discrimination case. The plaintiff proved he was qualified for the position because he had functioned in that capacity for several years. The employer, while claiming some defects in the plaintiff's job performance, did not claim that he lacked the necessary skills to perform his job. The case was dismissed for lack of an adverse action, in that the plaintiff was unable to demonstrate a constructive discharge. The Court recognized that a constructive discharge could take place over time, "in a calculated, age-inspired effort to force an employee to quit." However, the Court held that those who labor in the workplace "are expected to have reasonably thick skins--thick enough, at least, to survive the ordinary slings and arrows that workers routinely encounter in a hard, cold world. Especially where an individual is a highly compensated executive, it is to be assumed that tyrannical assignments, such as requiring that a three page report be completed overnight, are an accepted part of the job. Changes in work conditions, such as exclusion from meetings, relocation of staff, and changing job functions, do not constitute a constructive discharge in this case where the changes are part of a larger reorganization and effect individuals other than the plaintiff, and where the changes are administered in an even-handed fashion. Especially where salary and benefits are unaffected, changes in job responsibilities do not generate a constructive discharge.

Statements made to the plaintiff to the effect that his proposals were "tired," that he "looked old" and that the employer needed "new blood" were "ambiguous" and "innocuous" and were insufficient to transform routine managerial decisions into something more invidious. While the statements may have been mean, a reasonable employee could have continued working under the circumstances. Thus, no constructive discharge took place. The Court left open the question of whether individuals could be sued under the ADEA.

Williams v. Raytheon Co., 220 F.3d 16 (1^st Cir. 2000) Where the 51 year old male plaintiff was replaced by a 48 year old replacement, the three year difference is too insignificant to support a prima facie case of age discrimination. A difference of five years or more may generate an inference of age discrimination. Summary judgment was granted, despite the fact that plaintiff's female superior stated that she needed to change Raytheon's "old, white men" culture so that younger people and women could assume a prominent position, that she said she would favor women and younger people in her hiring, and that she remained silent when she was accused of age and sex discrimination.

Moreover, the federal rule of continuing violations, to the effect that there is no continuing violation of the plaintiff if he perceived he was being subjected to discrimination at the time of the conduct, was applied to the plaintiff's c. 151B discrimination claims, without discussion.

Cruz-Ramos v. Puerto Rico Sun Oil Co., 202 F.3d 381 (1^st Cir. 2000) Summary judgment was affirmed in this age discrimination case, where the employer used a neutral grading system to rank seven incumbents and eliminated the two lowest scorers. Although a younger individual was retained in one of the positions, the fact that existing employees absorbed plaintiff’s work demonstrates that he was not "replaced." The hiring of a younger, temporary worker three years later does not generate an inference of discrimination. The fact that plaintiff was the second oldest in the group of seven does not generate a statistically significant demonstration of age bias. Plaintiff's personal opinion as to how his qualifications compared with other retained employees was unpersuasive, in light of the employer's meticulous explication of its ranking system. Plaintiff was told by a manager that plaintiff would be selected for RIF because of plaintiff's age and because plaintiff qualified for early retirement. This comment was not a stray remark. However, factoring an employee's pension status into the consideration of whether to lay off an employee is lawful and is not indicative of age discrimination.

Megwinoff v. Banco Bilbao Vizcaya, 233 F.3d 73 (1^st Cir. 2000) the plaintiff alleged that she was fired because she was an older, female employee. While there was pattern of discriminatory conduct alleged, the only conduct for which a complaint was timely filed was plaintiff's termination. The Court held that there was insufficient evidence that the termination was discriminatory.

Megwinoff could not prove that the employer's articulated reason for the termination, that she had been out of work sick for longer than a year, was pretextual. Puerto Rico has a law requiring employers to hold open positions for sick employees for a year. During the year in which Megwinoff was on sick leave, her brother was told by the employer that if Megwinoff came back to work "tomorrow morning . . . she has a job with us." Later, after the year of protected sick leave ended, Megwinoff attempted to come back to work, but was told she would be fired instead, because the year of protected leave had ended. Megwinoff attempted to show this articulated reason to be pretextual with the comment to her brother that if she were to return to work tomorrow, she could come back to work. However, the comment, which was made within the protected yearlong period, was true when uttered, and did not render the employer's later justification pretextual.

Megwinoff sought to litigate conduct occurring earlier than the termination, via the continuing violations doctrine. The First Circuit held that a "serial" continuing violation requires a discriminatory act to occur within the limitations period; therefore, Megwinoff's failure to prove that her termination was discriminatory disposed of that theory.

Megwinoff also tried to litigate the earlier conduct with a "systemic" continuing violation theory. Megwinoff's evidence of a systemic violation included an alleged memorandum acknowledging the employer's non-compliance with discrimination laws, a remark that the employer was looking for new blood, a remark concerning the need to rejuvenate employees, a remark expressing a preference for hiring younger women, a remark concerning the "ailments of age," a perceived policy of only providing training to younger women and an opinion of the employer's counsel that age was a factor in an earlier transfer of Megwinoff.

The Court rejected Megwinoff's claim of a "systemic" continuing violation. A systemic continuing violation does not require a discrete discriminatory act to occur within the limitations period, but it requires that the discriminatory pattern or practice must continue into the limitations period. A series of discrete discriminatory acts, like the ones alleged by Megwinoff were insufficient to demonstrate a systemic violation and are more properly dealt with under the "serial" continuing violation theory. As opposed to a serial violation, a systemic violation relies on proof of an express or de facto policy. A systemic violation, rarely recognized, is usually demonstrated where an employer's promotion, hiring, training or compensation system is shown by direct evidence, statistics or other evidence, to have discriminatory effects. Megwinoff, seeking to demonstrate that the employer had a general policy of reducing the age of its workforce, did not meet this burden, and to the extent that she did include some direct evidence, the allegations were unsupported by citations to the record.

Mitchell v. TAC Technical Services, Inc., 50 Mass. App. 90 (2000) Summary judgment was granted in favor of the employer in this age discrimination case, because the plaintiff failed to satisfy the fourth element of the prima facie case. Without evidence of the age of the person that replaced plaintiff, and without provision of a Rule 56(f) affidavit seeking leave for additional discovery, there was insufficient proof of age discrimination to survive the Rule 56 motion.

2.0 GENDER

2.1 JURISDICTION AND PROCEDURE

Santiago-Ramos, v. Centennial P.R. Wireless Corp.; ABC Insurance Co., 217 F.3d 46; 2000 U.S. App. LEXIS 15655; (1^st Cir. 2000) A "party's own affidavit, containing relevant information of which he has first-hand knowledge, may be self-serving, but it is nonetheless competent to support or defeat summary judgment."

A plaintiff who obtained a reversal of summary judgment which had entered for the defendant on sex discrimination and contract theories and who failed to succeed on her claim of retaliation, was nevertheless entitled to costs on appeal.

O'Rourke v. City of Providence, 235 F.3d 713 (1^st Cir. 2000) Employer failed to preserve argument that it was not allowed to put on evidence where it failed to make an offer of proof, and relied on an unsuccessful motion in limine but did not renew its objections at the time of the introduction of the evidence.

After prevailing at two trials, and obtaining a reinstatement of the first verdict, the plaintiff was entitled to attorney’s fees and costs for both trials. Two attorneys were reasonable in light of the complexity of the litigation and the experience of opposing counsel. It was reasonable to place the cost of the second trial on the losing defendant, when there was no misconduct by plaintiff’s counsel.

Award of prejudgment interest was within the court’s discretion to order make whole relief.

Romano v. U-Haul International, U-Haul Company of Maine, Inc.233 F. ed 655 2000 U.S. App. LEXIS 31175; (2000) (Substantial jury verdict for firing woman where only problem given was “You sit when you pee”.) The case is notable for a long discussion of Joint employer/single employer issues, and strict application of waiver.

Romano was a female hired by the local U-Haul Company of Maine to do traditionally male work which included coupling of trailers. The parent company president called, and told the local supervisor that they didn’t want women installing hitches, that women are supposed to be working in the main office. Training stopped and a male was hired, and she was terminated. The local supervisor told her he was following higher up decision-making, and told her “The only problem you have is you sit when you pee”.

The court determined that U Haul International waived its argument that agency principles should be followed under Kolstad v. American Dental Ass’n 577 U.S. 526 (1999), and that its argument on joint enterprise was insufficient to preserve the agency issue for appeal by failing to object to jury instructions with specificity. There were no important constitutional or governmental issues that justified excusing the waiver.

There was also no plain error. Kolstad directed federal courts to interpret Title VII using agency principles only in the context of punitive damages, not in the context of single employer.

The court found no plain error in instruction on the “integrated enterprise test for determining single employer status, which is the standard adopted by the majority of circuits that have reached the issue. The district court accurately set out the four factors of this test. (1 interrelation of operations, 2 common management, 3, centralized control over labor relations, and 4 common ownership. However, the district court did not properly set out the test for the jury, as it should have directed the jury to place particular emphasis on the interrelations of employment decisions “We chose to follow the more flexible approach …which focuses on employment decisions, but only to the extent that the parent exerts an amount of participation that is sufficient and necessary to the total employment process, even absent total control or ultimate authority over hiring decisions.” (Internal quotes deleted). Control of labor operations i.e. employment decisions is the most important of the four factors. In light of the substantial evidence at trial on the employer question, the court held the error, one of emphasis, was harmless error. (See below for discussion of punitive damages under sufficient evidence).

Wynn & Wynn, P.C v. Massachusetts Commission Against Discrimination, 431 Mass. 655 (2000) Affirming a finding of gender (pregnancy) discrimination in failure to hire the court rejected the plaintiff’s sexual harassment and disparate treatment claims, which were waived because they were raised for the first time eight months after she left the employer, and three months after filing her original complaint. Following the language of Rule 15(b) of the Mass Rules of Civil Procedure, the court found that the MCAD hearing officer did not err in finding that such claims did not relate back to the initial filing date where the charges did not arise out of the failure to hire claims, nor were they discovered in the course of the investigation of the failure to hire claims. The sex discrimination charges, arising during her employment as a law clerk, predated her application for hire as an associate. Carmichael knew the allegations at the time of, and prior to, her filing her initial complaint. The court found no equitable tolling where the plaintiff had, or could have had with due diligence, the information necessary to bringing suit. Carmichael was aware of facts leading to sexual harassment and disparate treatment claims, and could have availed herself of administrative and judicial relief. The court did not address the continuing violation doctrine, as no event was alleged within six months prior to her filing, and the court therefore found the later filed charges did not relate back to the original charges.

The defendant waived any issues as to the award of back pay, as it was not raised before the MCAD or the Superior Court. (See discussion of sufficiency of evidence on gender discrimination, below).

Beaupre v. Cliff Smith & Associates, 50 Mass. App. Ct 480 (2000) In this gender discrimination case (discussed more fully in sufficiency of evidence, below), the Appeals Court held that the individual president and controlling shareholder was individually liable as separate from the defendant corporation, thus the individual defendant could be found liable for aiding and abetting defendant company.

The court found that the plain language of the statute provides for individual liability, The court found that Smith could be liable under Section 4[4(5)] for aiding and abetting, coercing the plaintiff into abandoning her right to be free from sexual harassment and submitting to his sexual demands, and compelling the doing of such acts, i.e. causing them to occur, by personally creating the hostile work environment. The Court gave deference to MCAD decisions which have held individuals liable, with and without finding the defendant corporation liable. The court liberally construed the statute for the accomplishment of the purposes of the act, including discouraging and penalizing sexual harassment. The individual was sufficiently named as individual defendant and alleged to have had personal responsibility for conduct so as to give him notice of charges made. Relying on Rule 15(b), the Appeals Court held that the superior court did not abuse its discretion in refusing to dismiss claims against the individual because she never asserted he was an aider and abettor, where she had explicitly described all the sexually harassing conduct, claimed that it had been performed solely by Smith, and always sought individual liability against him. See Rule 15 (b), particularly where there was no prejudicial surprise and defendants waived any objections to individual liability and to punitive damages against the individual by failing to object to the form of special questions or accompanying instructions before the jury retired

Beaupre v. Cliff Smith & Associates, 50 Mass. App. Ct 480 (2000) Any assertion that defendants were erroneously deprived of their preemptory challenges was waived as neither judicial comment nor defense objection was made on the record to indicate that further peremptory challenges would have been denied. Even a claim that record omitted a side bar in which judge barred peremptory challenges was not sufficient where no showing that judge intentionally falsified the record, and where there is no showing of prejudice by a showing of being required to accept one or more jurors whom he wished to challenge.

Expert testimony was properly admitted mid-trial, despite affirmative representation of plaintiff having no expert witnesses in joint pretrial memorandum. The trial judge did not abuse discretion, in rejecting defendant’s argument of unfair surprise, where defendant’s had deposed treating physician and had long possessed his notes and where defendants failed to make any showing of any specific prejudice; also, where their own pretrial presented an expert expected to rebut any mental health experts called by the plaintiff, where their cross examination was through and the employer responded to every significant aspect of the expert’s testimony through their own expert.

Any failure to obtain the physician’s opinion in the deposition was waived by failure of defendants to include the deposition transcript in the record, and failure to request a continuance. Any argument of the expert’s opinions having improper foundation in the evidence, going beyond the realm of permissible expert opinion, or blending of facts and opinion in one witness are waived as not raised below.

Any assertion that “Quid pro quo” or “hostile environment” theories should have been presented to the jury were waived by failure to request special question where evidence in the record supported both theories.

Continuing violation: There was no statute of limitations bar where a particularly ugly incident, more than six months before filing was combined with constant sexual harassment well into the timely period, as were Smith’s offers of restoration of employment contingent upon renewing the sexual relationship.

Commonwealth v. Rosenthal, 432 Mass. 124 (2000) Evidence regarding prior gender based sexually hostile acts in criminal context: Bad acts from 3 years prior were not remote where evidence was relevant to the issues of motive and intent. Evidence of a prior hostile relationship to a woman, or false reasons earlier in time may be relevant to defendant’s motive at the time of the complained of act. Commonwealth v. Gil, 393 Mass. 204, 215, 471 N.E.2d 30 (1984).

2.2 SUFFICIENT EVIDENCE OF DISCRIMINATION-GENDER

O’Rourke v. City of Providence, 235 F.3d 713 2001 U. S. App. Lexis 165 at *53, 1^st Cir. 2001) (Three years of overt sexual hostile environment properly considered by jury).

In a landmark case being considered by the Massachusetts Supreme Judicial Court in oral argument on Cuddyer v. Stop and Shop, (infra) which examines similar issues, the court looked at the accumulation of evidence over time, in the context of sexual harassment law, found a continuing violation, and upheld a verdict of $275,000, plus attorneys fees and prejudgment interest for the plaintiff.

The facts, recited in the light most favorable to the plaintiff in light of the jury verdict, included that O’Rourke was the only woman firefighter in the City of Providence from 1992-1995, endured two years of discrimination in two Engine Companies. The court detailed over 50 incidents of harassment in first Company, of which 19 involved officers in direct conduct or failure to act, and over 60 incidents of continuous conduct in the second Engine company, again with pervasive supervisory involvement. These incidents ran the gamut from pornography, overtly sexual comments directed to the Ms. O’Rourke, personality attacks, performance criticisms, failure to act to stop comments, failure to show her procedures, abusive orders to return to a fire without sufficient air, isolation, shunning, false rumors regarding performance, failure to investigate, forced transfer to new company, and daily meetings of all the male firefighters, including the leadership, without her, rumored videotaping of her sleeping area, leading to her collapse and disability and permanent harm. Plaintiff finally complained at the point of near collapse in September 1994, two years after the series of problems began. The case came to the Court of Appeals after the district court had granted a new trial based on a legal conclusion that he had wrongly admitted the evidence from the untimely period in the first trial, and after a verdict in her favor in the second trial, the trial court denied a motion for new trial. The court denied attorneys fees and costs for the first trial.

1) The court states that it clarifies the continuing violation doctrine as to serial violations; The court in recognizing a complaint of serial violations, discussed criteria that1)the subject matter of the discriminatory acts are sufficiently similar that there is a substantial relationship between the otherwise untimely acts and the timely acts; 2) the acts are not isolated and discrete, but occur with frequency or repetitively or continuously; 3)that the acts are of sufficient permanence that they should trigger an awareness of the need to assert one’s rights.

On the third criteria, the court in O’Rourke discusses the interplay between the doctrine of permanence and the law of sexual harassment; stating “it would be anomalous to say that, for statute of limitations purposes, a plaintiff should be on notice that she has a discrimination claim where the substantive law says she does not have such a claim yet. As the relevant law requires a period of recurring acts of harassment for the claim to accrue, the court held “A plaintiff usually will not have a viable claim of hostile work environment from single acts that are isolated or sporadic or not themselves severe enough to alter the work environment and create an abusive work environment, both from an objective and subjective viewpoint. (See discussion of similar issue in Cuddyer v. Stop and Shop, discussion, infra, currently pending in the Supreme Judicial Court).

The court in O’Rourke recognized on a record where knowledge of sexual harassment would appear to have existed for two years, that nevertheless, “Sexual harassment serious enough to constitute unlawful discrimination on grounds of sex is often a cumulative process rather than a one time event. In its early stages it may not be diagnosable as sex discrimination, or may not cross the threshold that separates the non actionable from the actionable, or may not cause sufficient distress to be worth making a federal case out of, or many not have gone on long enough to charge the employer with knowledge and a negligent failure to take effective remedial action. These issues are often better resolved by juries, with jurors reflecting the lessons from their own life’s experiences. Here the court found that as a matter of law, a jury could find that she may not have been on notice of the need to file an EEOC claim before September 13, 1994., where only then did she reach a breaking point, and her internal complaints, falling on deaf ears, inaction or obstruction led O’Rourke to file an EEOC complaint. A reasonable jury could find this case fell within the continuing violation doctrine.

2) As a result of finding a continuing violation in O’Rourke, there was no error in admitting the pre-(timely filing period) evidence, and there was reversible error in instructing the jury not to consider it. The grant of new trial based on that error was in error. In considering the size of the verdict the court held that there was no prejudice from any consideration of the pre filing period conduct, because “the jury was entitled to consider the pre(filing period) conduct of the defendant”.

3) The verdict of $275,000 was not excessive. Compensatory damages are available for non-economic injuries such as emotional distress, pain and suffering, harm to reputation, and other consequential injury caused by the defendants conduct. The plaintiff’s own testimony, and that of her treating psychiatrist included being a nervous wreck, shaking uncontrollably, had difficulty sleeping, gained 80 pounds, eventually becoming unable to function. She suffered from insomnia, spent days in bed, did not want to leave the house, and had severe migraine headaches. She was diagnosed with severe post traumatic stress disorder, and felt tremendous guilt about filing her complaint, suffered embarrassment, shame and panic attack when unexpectedly encountering a firefighter in a store. The psychiatrist testified the condition is likely to be permanent, requiring medication and regular sessions for at least two additional years. The court recited four other cases involving compensatory awards for emotional distress damages exceeding $200,000.

4) The court applies recent Supreme Court case law in hostile work environment cases as to the standard for employer liability for (I) co-worker conduct and (ii) supervisor conduct. It held that there was no “crude blue collar environment” exception to the right to be free of sexual harassment. There was no First Amendment protection to the reading of pornography where the plaintiff was surrounded by pornographic magazines, sexually explicit movies and nude pictures displayed, with no way to avoid them. That evidence was probative of the city’s knowledge of, and responsibility for the hostile work environment. The court affirmed a jury instruction affirming that if the harasser is a superior, then that alone makes the city liable. If it is her coworker or coworkers who are guilty of harassing conduct, then the city is only liable if a superior officer knew , or should have known of the harassment and failed to take prompt remedial action. (Faragher 524 U.S. at 807). . Here the city could not prove the affirmative defense that it took reasonable care to prevent and correct harassing behavior , where the city made no attempt to keep track of the conduct of supervisors, and the City required the complainant to follow the chain of command despite the involvement of the chain of command in the harassment. Finding liability of the City for hostile work environment created for O’Rourke, the court reinstated the first verdict.

Santiago-Ramos, v.. Centennial P.R. Wireless Corp.; ABC Insurance Co., 217 F.3d 46; 2000 U.S. App. LEXIS 15655; (1^st Cir. 2000) The court reversed summary judgment for defendant Centennial on sex discrimination, giving a primer on types of evidence which are sufficient to prove pretext. Santiago-Ramos told the key decision-maker that she was planning on having a second child in the next several years. He specifically questioned whether she would be able to manage her work and family responsibilities; shortly thereafter, her employment was terminated. There was evidence of overt hiring criteria rejecting married women or women with children, and overt preference for unmarried childless women. There were at least 12 stereotypical comments by three officers, one director and three employees questioning company’s willingness to hire or retain plaintiff or other women who needed to balance family pregnancy or childrearing duties and work responsibilities. Rejecting a magistrate’s conclusion of stray remarks, the court recognized the inferences which could be drawn from the entire context. The court erodes the rule that typically, statements made by "one who neither makes nor influences [a] challenged personnel decision are not probative in an employment discrimination case." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990), finding instead that evidence of a company's general atmosphere of discrimination may be considered along with any other evidence bearing on motive. Proof of pretext and motive may include statements by key decision maker, or one in a position to influence a key decision maker. Such remarks were present in Santiago-Ramos where the key decision-maker, despite prior knowledge of problems, admitted he had no inclination to fire the person until after the plaintiff was grilled on her childbearing plans, and then was promptly fired.

Proof of pretext may be shown by after-the-fact justifications, provided subsequent to the beginning of legal action. Santiago-Ramos can also establish pretext by showing "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons" such that a fact finder could "infer that the employer did not act for the asserted non-discriminatory reasons."

Plaintiffs may use the same evidence to support both that the given reason was false and that the actual reason was discriminatory, provided that the evidence is adequate to enable a rational fact-finder reasonably to infer that unlawful discrimination was a determinative factor in the adverse employment action. (following Thomas v. Eastman Kodak). Id. at 54. This case relies on Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 428-29 (1st Cir. 2000). (an age case) to support a cumulative picture of discrimination from circumstantial evidence.

(See contrary conclusion on retaliation in same case).

Romano v. U-Haul International, U-Haul Company of Maine, Inc.233 F.3d 655, 2000 U.S. App. LEXIS 31175; (2000) There was sufficient evidence to support a jury verdict of $15,000 in compensatory damages and $285,000 for punitive damages, under the TitleVII cap on damages, reduced from a jury award of punitive damages of $625,000. The case is notable for a long discussion of Joint employer/single employer issues, (above) and for analysis of punitive damages after Kolstad.

There was also no plain error. Kolstad directed federal courts to interpret Title VII using agency principles only in the context of punitive damages, not in the context of single employer. .

The court found no plain error in instruction on the “integrated enterprise test for determining single employer status, which is the standard adopted by the majority of circuits that have reached the issue. The district court accurately set out the four factors of this test. (1 interrelation of operations, 2 common management, 3, centralized control over labor relations, and 4 common ownership. However, the district court did not properly set out the test for the jury, as it should have directed the jury to place particular emphasis on the interrelations of employment decisions “We chose to follow the more flexible approach …which focuses on employment decisions, but only to the extent that the parent exerts an amount of participation that is sufficient and necessary to the total employment process, even absent total control or ultimate authority over hiring decisions.” (internal quotes deleted). Control of labor operations i.e. employment decisions is the most important of the four factors. In light of the substantial evidence at trial on the employer question, the court held the error, one of emphasis, was harmless error.

The court upheld punitive damages under Kolstad, which requires malice or reckless indifference to the federally protected right, but does not require that the misconduct was egregious. The conduct of the individual were imputed to the employer for liability for punitive damages, where 1, the agent has been authorized by the principal to commit the misconduct in question, 2, when the principal recklessly employed the unfit agent, 3, when the agent acting in a managerial capacity, committed the misconduct within the scope of employment, or 4, when the agent’s bad act was subsequently approved by the principal, unless, there is a good faith effort to comply with the requirements of Title VII, which the court found was an affirmative defense to be proved by the defendants. The court found there was ample evidence as to the state of mind of the local supervisor knowing the firing was discriminatory, that the President of the U-Haul of Maine knew of the anti discrimination policies, and that there was sufficient evidence of single employer for the President of U-Haul of Maine to be a manager of U-Haul International as well. Following the majority of circuits after Kolstad, , the court held that “ a written non discrimination policy without more is insufficient to insulate an employer from punitive damages liability; the defendant must also show that efforts have been made to implement its anti discrimination policy through education of its employees and active enforcement of its mandate.

White v. New Hampshire Department of Correction 221 F. 3d 254 (1^st Cir 2000).

Jury verdict was affirmed for female correctional officer, with compensatory damages of $45,000 where facts of sexually hostile environment included numerous comments sufficient to alter the conditions of her employment and create an abusive environment, where there were explicit comments about sexual activities in crude language, sexual jokes and graphic depictions of what occurred at clubs and bars, discussed male genitalia and how drugs affected their sex life. There was also disparate treatment of the plaintiff in assignment based on sexual stereotypes.

Lucas Rosa, v. Park West Bank & Trust Co. ,214 F.3d 213; 2000 U.S. App. LEXIS 12566 (1^st Cir. 2000) Utilizing 151 B in an equal credit context, the court reversed dismissal of the action under Rule 12(b)(6), and reinstated a claim of sex discrimination

by a cross-dressing man who was denied a loan application until he went home to change clothes, under Mass. Gen. Laws ch. 272, §§ 92A, 98; ch. 151B, § 4(14),(sexual orientation) and by application of Title VII principles to the Equal Credit Opportunity Act, the court held the complaint stated a claim for disparate treatment based on gender if he was denied credit for dressing like a woman where a woman would not have been denied credit if dressed like a male; he would have not stated a federal claim if he had been rejected because of perception of gender identity, but such claims are viable under 151 (B) §4(14). The court reiterated that stereotypic remarks regarding feminine dressing were actionable under Price Waterhouse, and that if a mixed motive were present, there might be a valid claim. Case followed in Doe v. Yunits, 2000 Mass. Super. LEXIS 491 (2000) (cross dressing student may state claim of disparate treatment based on gender after being restricted from attending school in feminine attire).

Horney v. Westfield Gage Co 95 F. Supp. 2d 29(D. Mass. 2000). Supervisor could not be held liable for sexual harassment and retaliation under Title VII; but employee’s failure to name individual in the state agency charge did not preclude claim against him under state law G.L. c. 151 B where the individual was named in the body of the MCAD charge and the party was on notice of the charge and had an opportunity to participate in the MCAD proceeding. (Consistent with Beaupre, infra).

Maltese v. Mukund Thacker et al 11 Mass L. Rptr No 21, 501 (2000)(Sosman, J). In a physician’s office with less than six employees, where the physician assaulted the medical assistant on one occasion grabbing her, lifting her up, thrusting his genitals into her buttocks and vaginal area, pulled her into an adjacent room and told her he wanted to kiss her. The plaintiff left work and did not return. The court found that common law tort actions against the perpetrator are not barred by workers compensation Act, under O’Connell v. Chasdi and Doe v. Purity Supreme Further the court found that a single incident may be sufficient to create an intimidating, hostile, humiliating or sexually offensive work environment under G.L. c. 214 1 C and was here where there as a forcible sexual contact and the plaintiff left the office and never returned to her job.

Wynn & Wynn, P.C v. Massachusetts Commission Against Discrimination, 431 Mass. 655 (2000). In this important case delineating the contours of direct evidence, the court affirmed the decision of the MCAD where there was direct evidence of gender bias and failure to hire because of pregnancy. The court found this was a “mixed-motive” case in which the plaintiff armed with some strong (direct) evidence of discriminatory bias, demonstrates that at least one factor motivating the employer’s decision is illegitimate.” In such a case, the court held, that the inquiry is not whether a legitimate reason for the employment decision is a pretext, but rather, “the employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision.”

The court required a showing that the “plaintiff demonstrate with a high degree of assurance that the employment decision of which she complaints was the product of a mixture of legitimate and illegitimate motives. Fernandes v. Costa Bros. Masonry 199 F.3d 572, 580, (1^st Cir. 2000), and “only by showing by direct or strong evidence that the proscribed criteria played a motivating part in an employment decision”. “Direct evidence in this context is evidence that, if believed, results in an inescapable, or at least highly probable, inference that a forbidden bias was present in the workplace”. The court cautioned that stray remarks, made by people without power to make employment decisions, or unrelated to the decisional process itself do not satisfy the plaintiff’s threshold burden, thus aligning Massachusetts and federal law on the mixed motive standard.

The MCAD evidence included statements made by a person with power to make employment decisions, and related to the decisional process itself. The plaintiff was not required to establish the prima facie case required in the four- part test set out in Wheelock and Blare; specifically, she was not required to show she was replaced by a make, entry level associate attorney, where there was substantial evidence she applied for an available position, and was considered as an associate, and where her pregnancy and gender were a factor in the decision not to hire her.

Once the plaintiff carries her initial burden, the burden of persuasion shifts to the defendant who “may avoid a finding of liability only by proving that it would have made the same decision even without the illegitimate motive., by a preponderance of the evidence. The court stated this is most appropriately deemed an affirmative defense. This decision is normally for the jury or other finder of fact to decide. Summary judgment is admittedly a disfavored remedy.

As to the award of $50,000 emotional distress damages, in Wynn & Wynn, the court found that the award was fully supported by substantial evidence from the plaintiff herself: “ the finding of discrimination alone permits the inference of emotional distress as a normal adjunct of the employer’s actions. The plaintiff’s own “compelling testimony” constituted fully sufficient substantial evidence.

The award of attorneys fees was appropriate where the failure to hire claim was substantially interrelated to the unsuccessfully sexual harassment claim and an adjustment of 10% to reflect failure on the latter was well within permissible discretion. Note that the court interprets “substantial interrelationship” test, for obtaining attorney’s fees as considerably broader than the “arising out of the prior claim” test for purposes of relating back an amendment under Rule 15 B given the statute of limitations issue.

The denial of front pay was upheld where it was entirely speculative in light of the evidence that several associates left the firm voluntarily or were laid off and there was no reliable means of ascertaining how long Carmichael would have remained with Wynn & Wynn.

Beaupre v. Cliff Smith & Associates, 50 Mass. App. Ct 480 (2000) A jury award was more than supported by testimony that after a consensual affair with the CEO Smith was terminated by the plaintiff, Smith’s sexual advances and other sexual conduct were unwelcome and they were sufficiently pervasive, or conditioned on some aspect of employment so as to have the purpose or effect of unreasonably interfering with an individual’s work performance Testimony included screaming and yelling obscenities, crude interrogation as to her sex life, revoking employment privileges, and threatening her job in the company and the industry, in the presence of coworkers and outside the office. The Court properly allowed consideration of the related conduct falling outside the six-month period.

The court rejected any applicability to G.L. c. 151 B of the suggestion in Federal cases under Title VII that a partner in a formerly consensual relationship obtains any special presumption The court deferred to decisions by the MCAD rejecting the presumption. “Voluntary participation in acts that constitute sexual harassment of either variety does not necessarily bar recovery under Chapter 151 B.

The court found that back pay award of $112,500 supported in the record by plaintiff’s own testimony of prior annual raises, prior pay and subsequent mitigation. Front pay of $50,000 supported by her evidence that it would have taken her about two years to earn what she would have been earning at prior employer. Individual punitive damages award against Smith for $87,500 was not excessive, where it was not merely intentional and offensive, but “an outrageous affront to an individuals personal dignity that was both recklessly indifferent to the plaintiff’s rights and egregiously beyond the pale of what our society tolerates in the work place” as required by Daart and Abramian. .

Benson v. Norwood Dodge Sales Inc. et al, 12 Mass. L. Rtr. No. 6, 121 (2000)(Brady, J) With 151 B claims not in dispute in this decision, the court addressed motions to dismiss several tort claims arising from numerous physical, verbal and visual incidents of express, threatening and or assaultive sexual harassment by the president and five managers of a auto dealership. On the Intentional Interference with Advantageous Relations Count, the defendants moved to establish that the five individual managers were privileged to intentionally interfere with her advantageous relations with the corporation. The court denied the motion to dismiss, holding that incidents of sexual harassment, if proven at trial, could support a reasonable inference of malice. Next, the Court refused to dismiss assault charges against individuals as the Worker’s Compensation Act does not immunize co-employees for intentional torts not related to the incidents of the employer. A fifth defendant did not seek dismissal of his assault charges. The Assault and Battery charges were not dismissed against the corporation where defendants were alleged to be acting within the scope of their employment when they sexually assaulted and battered her. At least one defendant manager had allegedly physically grabbed her buttocks and repeatedly made allegedly sexually predatory advances to her, leaving her in fear of bodily harm. . A claim for unlawful interception of oral communications stated a viable claim under G.L. c. 272 § 99

Borne v. Haverhill Golf and Country Club, 11 Mass L. Rptr No. 4, 85, (2000) Trial court denied a motion to have the jury decide as a question of fact whether matters before the six month limitation period were barred by the statute of limitations and allowed all plaintiffs to describe to the jury what they experienced prior to the limitations six month period The jury returned a verdict for the plaintiffs and the Commonwealth. Thereafter, the court issued a written decision holding that the evidence of a continuing violation at trial constituted a systemic violation theory in four areas of access; by finding rules which were applied differently to male and female golfers both within and without the limitations period. The court found the conduct also constituted continuing violations of a serial nature in two of the four areas; First, an admittedly male only Primary tournament within the period anchored the exclusion of primary women members for five years, and therefore the court found repeated acts of sex discrimination of a serial nature. The exclusion of women from the Men’s Card room was similarly an anchoring act on a series of acts excluding women from said room.

Richards v Walter Fernald State School et al. 12 Mass L. Rptr No. 8, 180 (2000).

Supervisor’s request for going out with him linked to telling her he would forget all about disciplinary memo was sufficient to qualify a s quip pro quo sexual harassment, under strict liability under state law. No requirement to have hiring and firing authority to create liability, where he had at least some degree of supervisory authority over her. There was sufficient evidence of screaming at her, making false charges against her due to her race and sex. The MCAD probable cause determination, and absence of adequate summary judgment response on these issues, justifies denial of summary judgment.

Hoffman v. Daka 2000 Mass. Super. LEXIS 537 ,Superior Court Civil Action 99-3496 (Middlesex) Agnes, J. (2000)

Grill cook at food service at College made out claim of hostile environment where there was sufficient evidence that a co-worker subjected her to repeated insults, and comments laced with sexual innuendos, accompanied by physical assaults with food, to present a question of fact to be resolved at trial. (But see retaliation, summary judgment granted. Similarly, sufficient evidence was presented to create a triable issue on failure to investigate and remedy where the employer failed to remediate behavior before it escalated despite knowledge of inappropriate behavior. Employer action to separate the employees and warn both was not sufficient to obtain summary judgment on this issue.

2.3. INSUFFICIENT EVIDENCE OF DISCRIMINATION-GENDER

Williams v. Raytheon Co., 220 F.3d 16 (1^st Cir. 2000) In this gender and age discrimination case, summary judgment was entered in the employer's favor because the plaintiff could not prove pretext. The employer asserted that it fired plaintiff for writing an insubordinate memorandum. The plaintiff's proof of pretext is that his female superior stated that she needed to change Raytheon's "old, white men" culture so that younger people and women could assume a prominent position, that she said she would favor women and younger people in her hiring, that she ordered the plaintiff to give credit for his work to a female assistant, and that she remained silent when she was accused of age and sex discrimination. The First Circuit held that the superior's remarks (and omission) were "stray" The inference that plaintiff sought to draw, that he was terminated for being an older man, was rebutted in part by the fact that the superior had once replaced an older woman with a younger man. Therefore, summary judgment was entered. It is questionable whether this is consistent with the standard in Reeves v. Sanderson Plumbing that disputed issues of fact are for the jury.

Rodriguez v. Smith-kline Beecham 224 F. 3d (1^st Cir. 2000.

Female employee failed to make sufficient showing of prima facie case of Equal Pay Act violation, and Title VII claim on promotion was time barred. Factual record showed substantially different responsibilities in the compared positions, and that the defense of being paid at a prior salary was a reason other than sex. The Title VIII clams were filed beyond the 300-day limit, and statistical evidence was not sufficient to establish a systemic violation.

Megwinoff v. Banco Bilbao Vizcaya, 233 F.3d 73 (1^st Cir. 2000) See discussion of the case in the age discrimination section.

Cuddyer v. Stop & Shop Superior Court, SJC pending.

Plaintiff Cuddyer worked in a unionized setting, in which foreman are union members but have responsibilities to tell employee what to do. There was evidence that prior to the anchor six months period, a union member-foremen engaged in sexually offensive conduct including smearing simulated blood onto a sanitary pad and stuck it to her back. Another co-worker had relayed his sexual fantasies involving her, including a dream involving digital anal penetration. Within the anchor period the evidence was presented that a foreman to have stood behind the plaintiff with a gloved hand with glue dripping off his glove, and jerked his hands back and forth as if he were masturbating. Cuddyer reported the incident to a co-worker. Cuddyer was upset and had to be escorted from a room at a meeting to describe the incident. The management instructed the supervisor to keep the plaintiff and the foreman apart. The next day, the foreman wore a fluorescent sticker on his hat saying “Beware”. Cuddyer viewed it as directed at her, and thereafter he gave her a very hard time. At that time, she also reported to management that a co worker on the line had harassed her at least once a month, and as much as just about every single day, referring to her body, boobs and fanny.

The court found that as Cuddyer perceived the conduct alleged as sexual harassment either at the time it occurred or soon after, and refrained from complaint, she is time barred and cannot recover any relief for them. The masturbation/glue incident and a offensive drawing three years later, were held to be only two incidents, three years apart, even in the context of the prior conduct, were held not to be sexual harassment because neither involved physical contact, request for sexual favors, vulgar or demeaning language or threat or intimidation. Two incidents three years apart were held not to be frequent. The court found that these two incidents, even in light of the past conduct, could not constitute harassment severe and pervasive enough to alter the conditions of employment or affect performance.

At oral argument, the court was interested in the fact that the company had suspended a prior offender, that the plaintiff had not sought his termination, and Justice Marshall repeatedly asked whether the court should look at only two slices of the salami instead of the whole loaf in determining severity, frequency and pervasiveness. There was also an issue of timely filing of the lawsuit, and whether that defense was preserved or waived below.

Richards v Walter Fernald State School et al. 12 Mass L. Rptr No. 8, 180 (2000).Court found that continuing violation did not exist for acts prior to the timely filing period where plaintiff is or was award that she was being discriminated against, applying Provencher rule.See discussion of issue in Cuddyer, pending before SJC. Also, summary judgment was warranted for individual not named in complaint at MCAD.

Tavares De Almeida v. Children’s Museum U 11 Mass L. Rptr No. 7, 165 (2000). Hostile environment claim under G.L. c. 151 B not sufficient to constitute a continuing violation, where, leering and sexual requests for favors from supervisor led plaintiff to complain internally. The Museum confirmed sexual harassment but failed to discipline. However, she was removed from his supervision by April 1993. She ran into him several times She filed her discrimination case in January, 1995 after an unpleasant confrontation causing her to have a panic attack . Judge Gants held that piercing eyes and a stone face, exuding hate was insufficient standing alone to support a claim of harassment. Viewing the totality of the defendnat’s conduct, and not simply individual acts in isolation, the court found the hateful stares not to be sufficiently related to the earlier sexual harassment, where there was no renewed sexual conduct and he was no longer her supervisor.

(See also Cuddyer for similar issue, now pending before Supreme Judicial Court).

Dalrymple v. Town of Winthrop, ____ Mass. App. ____ (2000), 2000 Mass. App. LEXIS 1038 This was gender and retaliation case, with evidence that a police officer was subjected to sexist comments, and that her job assignments were changed based on her gender, pregnancy and retaliation. The plaintiff was permitted to submit testimony that she had to take vacation days to attend the trial while the employer's witnesses did not have to take vacation days to testify. The employer's response to the complaint, broadcast on an interview on television, was admissible to show a pattern of discriminatory conduct, and was not introduced as evidence of a retaliatory act for which the jury could award damages. The trial judge's refusal to instruct the jury on the elements of gender discrimination and retaliation does not warrant appellate review, as the employer failed to timely and properly object pursuant to M.R.C.P. 51(b). An emotional distress award of $200,000, and a punitive damage award of $300,000 were not shocking to the conscience, given that the trial judge found the damages to be justified, and the trial judge demonstrated awareness of the applicable standards as articulated in Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997). Plaintiff felt humiliated, depressed, ashamed, angry and bitter; she could not sleep and became reluctant to leave her home. The chief of police was held individually liable as well as the employer. Post-judgment interest for the plaintiff was denied, but attorneys fees were awarded to the plaintiff for work performed in connection with the defendants' appeal.

Benson v. Norwood Dodge Sales Inc. Et al, 12 Mass. L. Rtr. No. 6, 121 (2000)(Brady, J). (described above as to claims of intentional interference which were upheld). The Assault charges against four of the individual defendants were dismissed where the conduct was not sufficient to place the plaintiff in fear of impending harmful contact. The court held that G.L. c. 214 §1c claims are barred where G.L. c 151 B applies.

Colbert v. Choate Health Management Inc. et als. 2000 Mass Super. Lexis 368(2000). Summary judgment allowed for all defendants where the plaintiff minimally made out a prima facie case of discrimination, but the defendant established legitimate reasons for terminating him where there was unrebutted evidence that there were complaints from hospital staff of sexual harassment, based on interviews conducted by his superior and supplemented by written statements, describing his behavior as sexually harassing, threatening or intimidating behavior. There was notice and opportunity to respond to the complaints; there was no evidence of disparate treatment of any female member of the staff after an investigation involving misconduct. Therefore, the plaintiff did not meet his burden of production of producing evidence to rebut the articulated reasons for the decision.

Related claims of Intentional Interference with Contractual Relationship cannot stand a) as a corporation cannot interfere with a relationship with itself, and b) as there was no claim of improper motive other than gender discrimination, and no evidence to support a reasonable expectation of proving that claim.

Frankel v. U. S. Postal Service. 96 F. Supp. 2d 19(D. Mass. 2000) Employer’s reason for having discussions with employees who exceeded sick leave was not pretext for gender discrimination under Title VII. (see also, not violation of the FMLA ,but see summary judgment precluded as to retaliation for opposition to employer practices under the FMLA and Title VII.)The plaintiff was unaware of any disparate treatment of her on the basis of sex, in examination of excessive sick leave; the discipline of the plaintiff was due to the employer’s belief that an assault had occurred and not to lawful sick leave being taken.

Goguen v. Quality Plan Administrators and Others Superior Court, 11 Mass. L. Rptr 13, 288 (2000). Plaintiff dental assistant’s failure to file with in statutory period for sexual harassment by dentist was not tolled by absence of notice of sexual harassment policy being posted where plaintiff received actual notice of anti-sexual harassment policy. Retaliation and sexual harassment not sufficient entwined claims here, however retaliation is a distinct claim and is not sufficient to revive earlier late filed claim.

Frankel v. U. S. Postal Service. 96 F. Supp. 2d 19(D. Mass. 2000) : Summary judgment was denied on claims employer retaliated for employee's discrimination complaints; jury could have found employer's conduct, including conduct it agreed had been improper, was retaliatory.

Sherman v. AI/FOCS, Inc., 113 F. Supp. 2d 65; 2000 U.S. Dist. LEXIS 16584;(D. Mass. 2000, Decided

In a FLMA claim, defendant employer interfered with plaintiff's attempts to take leave, and discriminated against her for taking it by essentially requiring plaintiff to work while on leave, and by terminating her for failing to do so.

Keeler v. Putnam Fiduciary Trust Co., 238 F.3d 5 (1^st Cir. 2001) For claims alleging retaliation for taking FMLA leave, the plaintiff may utilize the McDonnell Douglas framework for demonstrating unlawful intent. As part of his claim, the plaintiff must show some type of adverse job action was caused by his taking of protected leave. Negative reports and performance evaluations reflecting the fact that the plaintiff took protected leave were not themselves adverse employment actions in this case. Not every comment about problems created by the use of leave can be treated as an FMLA violation, and an employer is entitled to implement changes and reorganize assignments based on the fact that an employee is taking leave. Moreover, the negative evaluations did not constitute a constructive discharge in this case. A constructive discharge usually describes harassment so sever and oppressive that staying on the job while seeking redress is intolerable, which did not take place in this case.

SUMMARY OF LAW 2000

1.0 AGE

2.0 GENDER