Opinion
13-P-993
12-09-2014
JENNIFER M. CARRION v. SABA HASHEM & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Attorney Saba Hashem and his law firm, D'Angelo & Hashem, LLC (firm), appeal from a judgment following a jury verdict in favor of the plaintiff, their former employee, on claims of gender discrimination and retaliation in violation of G. L. c. 151B. We affirm in part and reverse in part.
In answer to special questions, the jury found that Hashem and the firm discriminated against the plaintiff because of her pregnancy, and that the firm retaliated against her because of an internal complaint of discrimination. On the discrimination claim, the jury awarded the plaintiff $72,000 in back pay and lost benefits, as well as $28,000 in emotional distress damages. The jury awarded the plaintiff an additional $9,000 in emotional distress damages on the retaliation claim.
1. Denial of motion for judgment notwithstanding the verdict. In reviewing the denial of a motion for judgment notwithstanding the verdict, we determine whether "anywhere in the evidence . . . any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." McLaughlin v. Lowell, 84 Mass. App. Ct. 45, 62 (2013), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). We conclude that there was sufficient evidence to support the discrimination claim, but not the retaliation claim.
a.. Discrimination claim. Viewed in the light most favorable to the plaintiff, the evidence not only presented a prima facie case of gender discrimination based on the plaintiff's pregnancy, but also created a jury question as to whether the defendant's proffered reasons for terminating her employment were a pretext. See Haddad v. Wal-Mart Stores, Inc. (No. 1), 455 Mass. 91, 97 n.14 (2009). Briefly summarized, the evidence established that in July, 2005, the plaintiff was hired to serve as the firm's receptionist. She soon took on additional clerical duties, and received a promotion. In October, 2005, she informed Hashem that she was pregnant. Previously, Hashem had praised her work, told her he was grooming her to be his "right-hand man," and saw to it that she received a raise. However, after learning of her pregnancy, he became anxious and angry. At one point, he told the plaintiff she was fired and then immediately reversed himself, explaining that he was "stressed out" because, despite her assurances to the contrary, he did not know if she would return to work after maternity leave.
Subsequently, Hashem confronted the plaintiff with allegations made by a woman who worked in the same office building. The woman claimed that she found firm mail in the ladies' restroom and, on the same day, saw the plaintiff asleep at her desk. Although the defendants maintained at trial that they terminated the plaintiff's employment because of her inadequate job performance and her "lying" about sleeping at work, the plaintiff testified that Hashem never mentioned these allegations or any other issue about her work when he took action against her. When he ordered her to take a leave of absence, he explicitly told her that he was putting her on leave because she was pregnant, and when he fired her two days later, he again did not bring up any issues with her job performance.
The plaintiff admitted that she had left sealed, stamped mail in the restroom by mistake, but denied being asleep. She explained that she had placed her head down on her desk because she was not feeling well.
On the state of the evidence, it was for the jury to "'weigh the credibility of conflicting explanations' of the adverse [employment] decision." Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005), quoting from Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440 (1995). The motion for judgment notwithstanding the verdict on the discrimination claim was properly denied.
b. Retaliation claim. The plaintiff bases her retaliation claim on the defendants' opposition to her application for unemployment benefits. Without deciding the issue, we assume for present purposes that endeavoring to deny an employee unemployment benefits may, in appropriate circumstances, constitute actionable retaliatory conduct. Even with that assumption, however, the plaintiff's claim fails because she failed to prove all of the other essential elements of a claim for retaliation.
It is undisputed that the firm's opposition to her application predated her complaint to the Massachusetts Commission Against Discrimination or other formal assertion of her rights. The plaintiff therefore takes the position that a statement she made to Hashem when he placed her on leave of absence (that he was being "unfair" in treating her this way because she was pregnant) was a protected internal complaint that triggered the firm's efforts to thwart her receipt of benefits. It is questionable whether the plaintiff's statement qualifies as the type of protected activity contemplated by G. L. c. 151B, § 4(4). Contrast Ritchie v. Department of State Police, 60 Mass. App. Ct. 655, 664-665 (2004) (protected activity included multiple informal complaints to supervisors about a hostile work environment). But even if it does, the plaintiff did not establish the requisite causal connection between the alleged protected activity and the firm's actions. See Mole v. University of Mass., 442 Mass. 582, 591-592 (2004). For that reason, if no other, the firm's motion for judgment notwithstanding the verdict on the retaliation claim should have been allowed.
The plaintiff presented no evidence from which it could be concluded that her statement was the cause of the firm's decision to contest her application. Rather, a contrary inference can be drawn from her own testimony on cross-examination that Hashem told her not to apply for unemployment benefits even before she made the statement. This testimony was consistent with the defendants' position that they routinely opposed such applications.
2. Other issues. a. The defendants failed to object to the judge's sequestration of Hashem's partner, D'Angelo, along with the other witnesses. Accordingly, the issue is waived. Carrel v. National Cord & Braid Corp., 447 Mass. 431, 442-443 (2006). In any event, the sequestration order was within the judge's discretion and did not prevent the defendants from conferring with D'Angelo outside the court room. Commonwealth v. Ahart, 464 Mass. 437, 443 (2013).
b. The judge did not err in holding the defendants to a stipulation contained in the parties' joint pretrial statement. See Metropolitan Credit Union v. Matthes, 46 Mass. App. Ct. 326, 331 (1999). There is good reason to doubt that the stipulation was a "mistake," as the defendants contend. But even if it was a mistake, where the defendants failed to move to vacate the stipulation as improper or not conducive to justice, they were not entitled to be relieved of it. See Anastos v. Sable, 443 Mass. 146, 153 (2004).
It is apparent that the defendants entered into the stipulation because it was useful to their counterclaim and had second thoughts only after the counterclaim was dismissed.
c. Two charts were admitted in evidence showing the plaintiff's lost wages during the six-year period following her termination, minus her actual earnings and benefits during that period. The first chart assumed no increase in her wages; the second assumed a three percent annual increase in salary. The defendants claim that there was insufficient foundation to permit the introduction of the second chart. We disagree. There was evidence that the plaintiff received a roughly twelve percent pay increase only three months after commencing employment and that she had been told that she was being groomed to have an important long-term role at the firm. Furthermore, unlike the facts in Mailhiot v. Liberty Bank & Trust Co., 24 Mass. App. Ct. 525, 529 (1987), on which the defendants rely, the projections in this case were limited in time, and reflected only modest increases. The judge did not abuse his discretion in allowing the jury to see both charts and to make their own assessment as to whether the plaintiff had a reasonable expectancy of future raises.
d. Having failed to raise any objection at trial, the defendant's argument that the judge showed bias is waived. See Adoption of Norbert, 83 Mass. App. Ct. 542, 545 (2013). In any event, our review of the record confirms that the trial judge ably conducted the trial in an impartial, even-handed manner.
e. As no objection was made before the jury retired, the defendant's claim of error with respect to the jury instructions is waived. See Howe v. Palmer, 80 Mass. App. Ct. 736, 744 n.8 (2011). Regardless, the judge adequately explained the applicable law and was not required to give the "business judgment" instruction requested by the defendants. See Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 316 (2009).
f. There is no merit to the defendants' claim that the judge abused his discretion in precluding them from calling witnesses who would testify about the firm's treatment of other pregnant employees. The defendants' disclosure of the purported witnesses was late and inadequate, the judge's ruling was that he would consider the admissibility of any such evidence at sidebar during the trial, and the defendants never raised the issue again. To the contrary, the transcript suggests that the defendants affirmatively decided not to introduce such evidence.
g. The judge did not abuse his discretion in ordering that the plaintiff may obtain postjudgment discovery. See Evans v. Multicon Constr. Corp., 30 Mass. App. Ct. 728, 732 (1991).
If, as the plaintiff claims, the defendants are not in compliance with that order, it is for the trial court to determine if sanctions or other relief is warranted.
3. Attorney's fees. "As the prevailing party in her claim of discrimination in employment based on gender . . . the plaintiff is entitled to an award of 'reasonable' appellate attorney's fees pursuant to G. L. c. 151, § 9" (footnote omitted). Haddad v. Wal-Mart Stores, Inc. (No. 2), 455 Mass. 1024, 1024 (2010). She shall, within fifteen days following the date of the rescript, file with this court and serve on the defendant a motion for determination of the amount of her attorney's fees incurred on appeal in relation to her successful discrimination claim, supported by an affidavit detailing such fees, in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The defendant may, within fifteen days thereafter, file with this court and serve on the plaintiff an opposition to the amount of fees so claimed. Conclusion. The judgment against the defendants is affirmed as to the count alleging gender discrimination. The judgment against the firm is reversed as to the count alleging retaliation, and a new judgment shall enter in favor of the firm on that count. The order allowing postjudgment discovery is affirmed.
Because the defendants' appeal is not wholly without merit, we decline the plaintiff's request for double costs and attorney's fees.
So ordered.
By the Court (Cohen, Wolohojian & Blake JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 9, 2014.