Opinion
No. 96-1278.
February 2, 2007.
Plaintiff, Susan Sommer (Sommer), brought this claim against Joseph P. Bialy (Bialy), Dennis R. Desroches, (Desroches), Joanne Austin (Austin), and the Town of Southbridge (collectively, Defendants) for intentional infliction of emotional distress (Count I), sex discrimination (Count II), negligence (Count III) and wrongful termination (Count IV). Following a jury trial, the jury found that the defendants were not liable to Sommer and awarded her no damages. Sommer moved for a new trial, relief from judgment, and to amend or alter the judgment. The Defendants petitioned for costs.
Finding that Sommer has no cause of action arising from M.G.L. ch. 71, § 42 (§ 42), the court denies her motions. The court allows the request for ordinary costs and denies the request for extraordinary costs.
BACKGROUND
On June 24, 1998, Sommer was terminated from her employment as a school nurse at Southbridge High School (Southbridge). As a result, she filed this complaint against Bialy, the principal of Southbridge, and Desroches, an assistant principal, alleging that the two men engaged in a pattern of harassment, discrimination, and intimidation against her from April 11, 1996 through June 24, 1998. At trial, Sommer also alleged that Austin, as the superintendent of the Southbridge public schools, failed to review and approve her termination in violation of § 42. Sommer asserted that the Town of Southbridge, through its agents, Bialy and Desroches, was liable to her for damages because of its failure to obtain Austin's review and approval of her termination pursuant to § 42.
Sommer's case was tried to a jury. Although the jury found that Austin did not approve Sommer's termination pursuant to § 42, it awarded her no damages. Sommer asserts that this court erred when it included two questions on the jury verdict form which misled the jury and resulted in the no damages finding. Question C.2. read as follows:
If you find that the Town of Southbridge failed to obtain the approval of the Superintendent when it terminated Susan Sommer from employment, would the Superintendent have approved the dismissal if it had been presented for her review?
The jury answered by placing a "14" above yes and by leaving the "no" space blank, apparently referring to the vote of the jury.
Question D.5. read as follows:
If you found that the Town of Southbridge, acting by and through Joann D. Austin and Joseph P. Bialy failed to obtain the approval of the Superintendent when it terminated Susan Sommer from her employment and that the Superintendent would not have approved the dismissal if it was presented to her for approval, what amount of damages do you assess against the Town of Southbridge attributable to this failure?
The jury answered by placing "0 none" in the space for "Compensatory Damages."
Sommer argues that the use of these "hypothetical" questions prevented the jury from awarding her damages because an additional element was added within Question D.5., whether Austin would not have approved the termination, and, therefore, she is entitled to a new trial. Finally, she asserts that as a full-time nurse at Southbridge, she qualified for the protections of § 42 and that the Defendants' noncompliance with the statute entitles her to relief from the judgment.
The Defendants assert that Sommer's post trial motions should be denied because the jury questions were not hypothetical, but rather, were questions carefully crafted by the court based on evidence presented by both parties at trial. The Defendants also argue that Sommer was not entitled to damages pursuant to § 42 because: (1) she did not fall within the provisions of the statute; and (2) even if she was protected by § 42, she did not meet her burden of proving her damages at trial. Finally, the Defendants claim that despite the jury verdict in this case, Sommer's failure to object before the jury was discharged prevents her from receiving the requested relief.
DISCUSSION
I. Motion for New Trial and The Jury Verdict Form
A motion for 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). The motion must be brought within ten days of the entry of judgment. Mass. R. Civ. P. 59(b). Although there is no specific limit as to the issues available for retrial, Tosti v.Ayik, 394 Mass. 482, 499 n. 12 (1985), a new trial "should not be ordered . . . unless the failure to do so `appears to the [trial] court inconsistent with substantial justice.'" Galvin v. Welsh Mfg. Co., 382 Mass. 340, 343 (1981), quoting Mass. R. Civ. P. 61. Where a judge's instructions to the jury are "prejudicially incorrect," grounds for a new trial exists. Galvin, 382 Mass. at 343. It is within the trial judge's discretion whether to allow a motion for new trial and, upon an appeal, his decision will be "reversed only for a clear abuse of [that] discretion."Id.
Sommer asserts that she is entitled to a new trial because the questions misled the jury. She relies on the case of Commonwealth v. Salemme, 11 Mass. App. Ct. 208 (1981) to argue that the use of hypothetical questions is highly disfavored. Sommer is correct that the Appeals Court in Salemme stated that "the use of hypotheticals, analogies, or examples from everyday life are viewed with strong disfavor." Id. at 228. However, that does not end the analysis. In Salemme, the Appeals Court affirmed the trial court's denial of a request for new trial because the hypothetical used to describe reasonable doubt to the jury was carefully constructed and did not deviate from the classical formulation. Id.
At trial, Austin testified that she approved the termination. She also said that she would have approved Sommer's discharge had Bialy and Desroches presented that recommendation to her. Austin stated that although she normally did not "approve terminations of nonprofessional-status people, . . . [she] did not take any action to undo [Sommer's] termination." Sommer conceded in her amended complaint at paragraph 28 that "[o]n June 24, 1998, Bialy, with the approval of Austin, terminated Sommer from her position as school nurse at Southbridge High School." Even without application of the doctrine of judicial estoppel, the questions presented to the jury were not based on hypotheticals as Sommer asserts, but rather, were based on the trial record. The questions asked the jury whether or not it believed Sommer was entitled to damages for being terminated and what effect, if any, Austin's review would have had on Sommer's termination. The disputed jury questions were more favorable to Sommer than she was entitled to. No basis is shown for relief in the drafting of the jury questions.
II. The Applicability of G. L. c. 71, § 42
G. L. c. 71, § 42 states:
A principal may dismiss or demote any teacher or other person assigned full-time to the school, subject to the review and approval of the superintendent; and subject to the provisions of this section, the superintendent may dismiss any employee of the school district.
G. L. c. 71, § 42. Whether an individual qualifies as a "teacher" or is entitled to "professional teacher status" and falls within the purview of § 42 is determined by G. L. c. 71, § 41 (§ 41). Effective until October 22, 2006, § 41 read:
For the purposes of this section, a teacher, school librarian, school adjustment counselor, school social worker or school psychologist who has served in the public schools of a school district for the three previous consecutive school years shall be considered a teacher, and shall be entitled to professional teacher status as provided in section forty-two.
G. L. c. 71, § 41. As of October 22, 2006, the statute read as follows:
For the purposes of this section, a teacher, school librarian, school adjustment counselor, school nurse, school social worker or school psychologist who has served in the public schools of a school district for the three previous consecutive school years shall be considered a teacher, and shall be entitled to professional teacher status as provided in section forty-two.
G. L. c. 71, § 41, amended, effective October 22, 2006 (emphasis added).
By omitting the term "school nurse" and including similar positions such as "school social worker or school psychologist" in the list in § 41, the Legislature excluded school nurses until October 22, 2006. Similarly, by adding the words "school nurse" the Legislature included school nurses in the group of employees entitled to professional teacher status as of October 22, 2006. Sommer did not qualify for professional teacher status and when read in conjunction with § 41, § 42 did not apply to her.
The court's inclusion of jury questions C.1. and C.2. was not a ruling that Sommer was entitled to recover on the § 42 theory. Commonwealth v. Accetta, 422 Mass. 642, 646-47 (1996)("We shall, however, do here what we did with respect to murder in the first degree (where alternative theories of guilt are viable) and direct prospectively that, in a case where the evidence would warrant a guilty verdict of manslaughter or some other crime on more than one theory, a guilty verdict should state the theory on which guilt was found."). The court's inclusion of the disputed jury questions presented to the jury a theory of recovery upon which Sommer was not entitled to recover and the jury found against her.
Although § 42 suggests that a principal must seek the superintendent's advice as to some employee terminations, the superintendent's opinion is not dispositive of the issue of whether the termination is proper, or whether damages should be awarded in the event of noncompliance with the statute. See Sheldon v. School Committee of Hopedale, 276 Mass. 230, 235 (1931) (although Board must have superintendent's advice as to a proposed termination, superintendent's advice does not actually control teacher's dismissal under § 42). Even assuming the applicability of § 42, Austin's decision would not have controlled Bialy's power to terminate Sommer. See Id.; G. L. c. 71, § 42.
Even assuming that the Defendants' failed to comply with § 42, Sommer failed to prove her damages. A condition precedent to any damages award presupposes the plaintiff has shown what injury she suffered resulting from the defendant's conduct. Lufkin's Real Estate, Inc. v. Aseph, 349 Mass. 343, 346 (1965). SeeGalvin, 382 Mass. at 342.
The Defendants' claim that Sommer did not object to the jury question as to whether Austin would have approved the termination is incorrect.
ORDER
Sommer has failed to establish that she is entitled to any post trial relief. Plaintiff Susan Sommer's motions for a new trial, relief from the judgment, and to amend or alter the judgment are DENIED . The Defendants' petition for costs is ALLOWED as to ordinary costs. The request for extraordinary costs is DENIED .
This judge has not seen an opposition to the Defendants' petition for costs. The Defendants are awarded their ordinary costs as the prevailing parties. See G. L. c. 262, §§ 1, 13; Mass. R. Civ. P. 54. This will include Deposition — Dewsnap Associates, $75.00, Professional Services — Dunn Goudreau Court Reporting Service, Inc., $327.55 and 760.83 and Subpoena — Dewsnap Associates — $45.00, 87.00, 102.00, 44.00, 87.00, 109.00 and 34.00.