Monteiro vs. City of Cambridge - Decision on Post-Trial Motions

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 relevant evidence is admissible unless unduly prejudicial, and, in 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 (if 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)