Opinion
10-P-1853
12-21-2011
ROBERT ALVAREZ v. CITY OF LOWELL.
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
The defendant, the city of Lowell (city), appeals from a judgment on a jury verdict in favor of the plaintiff, Robert Alvarez, a Lowell police officer, on his claim that the city retaliated against him, in violation of G. L. c. 151B, § 4(4), for filing a complaint with the Massachusetts Commission Against Discrimination (MCAD). The city argues that the evidence did not support the jury's answers to special questions regarding Alvarez's retaliation claim, and that the judge erred in certain evidentiary rulings and jury instructions, and in the award of attorney's fees. We affirm.
The facts, as the jury could have found them, are set out in the plaintiff's brief at pages 2-15. We note at the outset that much of the city's argument depends in large part on credibility determinations. On appeal from a jury verdict, however, we review the trial record without considering the credibility of the witnesses or the weight of the evidence. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 110 n.2 (2000). 'When reviewing the denial of a motion for judgment notwithstanding the verdict, the evidence is viewed in the light most favorable to the plaintiff, and all evidence favorable to the city is disregarded.' Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. 787, 791 (2007). See MacCormack v. Boston Edison Co., 423 Mass. 652, 659 (1996) (in reviewing a jury verdict, we assume all evidence offered by plaintiffs in support of their case to be true). With that standard in mind, we turn to the city's specific arguments.
1. Sufficiency of the evidence. To establish his case of retaliation, Alvarez had to prove that he reasonably and in good faith believed that the city was engaged in wrongful discrimination, that he acted reasonably in response to his belief, and that the city's desire to retaliate against him was a determinative factor in its adverse actions. Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995). Abramian v. President & Fellows of Harvard College, 432 Mass. at 121.
The reasonableness of Alvarez's beliefs and actions were questions of fact for the jury to decide. See, e.g., Pardo v. General Hosp. Corp., 446 Mass. 1, 21- 22 (2006). Our review of the trial record reveals ample evidentiary support for the jury's findings that Alvarez was reasonable in his belief that the city engaged in wrongful discrimination against him and that his filing of the MCAD complaint was a reasonable response. The jury were entitled to so find from evidence showing serious inaccuracies in the city's investigations and accounts of the 1996-1997 incidents that lead to Alvarez's suspension and loss of privileges, and from other instances of unfair treatment involving Alvarez and other minority officers.
The jury were free to reject the city's position that Alvarez's beliefs were not reasonable because it removed Alvarez from the SWAT team, training positions, and special assignments based on concerns, stemming from the three 1996-1997 incidents, that Alvarez was emotionally unstable. The evidence showed that, despite those purported concerns, the city did not refer Alvarez for a psychological evaluation or counseling and did not seek to remove Alvarez from armed patrol duty. The jury also could consider that, shortly after the Kennedy incident in 1997, Alvarez was singled out for reprimand for outside work undertaken without permission, while numerous other nonminority officers routinely did so without disciplinary action. The city's reasons for taking that action against Alvarez were flimsy at best. Evidence of privileges and promotions enjoyed by Kennedy when compared to Alvarez, following their 1997 altercation, lends further support to the jury's finding that Alvarez held a reasonable belief that he was the victim of discrimination. And certainly the jury could have viewed as significant that Alvarez filed his MCAD complaint shortly after the minority officers' meeting, at which other minority officers complained of unfair treatment at the hands of the city.
Less compelling, but sufficient nonetheless, was evidence establishing the requisite causal connection between the adverse employment actions that followed Alvarez's MCAD complaint in October, 1999, and a retaliatory motive on the part of the city. In accordance with the judge's instructions, the jury reasonably could infer a retaliatory motive from the succession of events that followed the MCAD filing and that adversely affected Alvarez's working conditions and compensation.
We reject the city's insistence that the jury verdict be reversed because the jury identified the date of October 6, 1999, as the beginning of the five-year period in which the city retaliated against Alvarez. While the record confirms that the city did not receive notice of the MCAD complaint until October 22, 1999, the city has not shown that it was harmed by the jury's error.
According to the evidence, on November 9, 1999, two and one-half weeks after the city received notice of Alvarez's MCAD complaint, Alvarez learned that he was being investigated for sick leave abuse, for taking three sick days on October 22-24, 1999, at a time when he had accumulated fifty unused sick days and had used no sick time in three months. The sole reason given by the city for the investigation was that an officer who was friends with Alvarez took sick time that overlapped with the days taken by Alvarez. Alvarez testified that, after submitting his report indicating that he had been sick with the flu, a Lieutenant Flaherty told him that the investigation for his alleged sick time abuse would continue, and that Alvarez was also under investigation for having a bad attitude. The jury could take into account the close proximity of the investigation and accompanying remarks, occurring shortly after the city learned that Alvarez had filed the MCAD complaint, to infer a retaliatory motive. See Mole v. University of Mass., 442 Mass. 582, 591-592 (2004), citing Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991); Ritchie v. Department of State Police, 60 Mass. App. Ct. 655, 666 (2004); King v. Boston, 71 Mass. App. Ct. 460, 475 (2008) (inference of retaliation permissible when city eliminated rank-specific locker rooms two months after receiving notice of plaintiff's grievance regarding the lack of rank-specific locker rooms for women officers).
We find no support in the trial record for the city's contention at oral argument that it was the police department's policy to investigate an officer's use of sick time beyond a certain number of days or that such policy was applicable here. The city offered no evidence that Alvarez had been investigated for sick time abuse in the past or that his attendance record was otherwise unsatisfactory.
The jury reasonably could have concluded that the department equated Alvarez's filing of an MCAD complaint with a bad attitude, and then denied Alvarez opportunities and assignments on that basis going forward. The evidence revealed several such instances following the filing of Alvarez's MCAD complaint:
In February, 2000, Alvarez's locker was relocated from the officers' main locker room to a less desirable location in the hallway. In April, 2000, the city provided what the jury could have found was inaccurate and misleading information against Alvarez in his MCAD case; Alvarez was then reprimanded for seeking an investigation into the city's misconduct. In December, 2000, Alvarez, having been out of work since March for an injury received in the line of duty, returned to work and applied for a position as an instructor on the police department's rifle team; his application was denied. In February, 2001, Alvarez was reassigned to patrol a less desirable sector of the city to accommodate Kennedy, who had been promoted to sergeant and did not want to work with Alvarez. In January, 2002, Alvarez requested permission from the department to return to the SWAT team; his request was denied. In April, 2003, Alvarez was asked by a sergeant to teach a motorcycle class, but was then blocked from teaching by a superior. In September, 2003, Alvarez sought permission from the department to join a motorcycle unit in NEMLEC; permission was denied. In August, 2004, Alvarez was given permission to join the NEMLEC motorcycle unit, but was denied permission to teach. In January, 2005, Alvarez, finally, was appointed to a training position.
There is no merit to the city's argument that an adverse employment action must rise to the level of a disciplinary action or reprimand to be material in a retaliation claim. 'Material disadvantage for this purpose arises when objective aspects of the work environment are affected.' King v. Boston, 71 Mass. App. Ct. at 468 (question of fact as to materiality of removing rank-specific locker rooms for superior officers). See also Bray v. Community Newspaper Co., 67 Mass. App. Ct. 42, 44-45 (2006), quoting from MacCormack v. Boston Edison Co., 432 Mass. at 662-663 (trier of fact could conclude that unfounded criticism, written warning, and reassignment to less desirable sales territories were material disadvantages to the plaintiff, and 'not merely subjective feelings of disappointment and disillusionment').
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The jury were entitled to reject the city's explanation that Alvarez's requests to return to the SWAT team, training positions, and special assignments were denied not as punishment, but because of concerns about Alvarez's emotional instability that persisted since the 1996-1997 incidents. See Lipchitz v. Raytheon Co., 434 Mass. 493, 498-499 (2001) (for jury to decide defendant's motive for employment decisions after weighing circumstantial evidence and assessing credibility of witnesses). The jury reasonably could have inferred, in accordance with the judge's instructions, that the city wanted to punish Alvarez for the bad attitude it associated with his filing the MCAD complaint, and that the city's reliance on the 1996-1997 incidents was a pretext to undermine Alvarez's employment conditions and derail his career, long after that justification rang true.
We are satisfied that the jury's findings on all elements of the plaintiff's retaliation claim were supported by the evidence. That the city presses alternative versions and explanations for the adverse employment actions taken against Alvarez does not negate the plaintiff's evidence, which the jury were entitled to believe.
2. Damages. The city challenges three aspects of the
damages awarded to Alvarez. First, the city challenges the compensatory damages award because the judge failed to include a special question requiring the jury to specify the amount attributable to Alvarez's failure to mitigate. Where the jury specifically found that Alvarez failed to mitigate his damages, and where the jury were clearly instructed to offset the amount by which the plaintiff failed to mitigate against the amount awarded for compensatory damages, there was no abuse of the judge's discretion in failing to include an additional question specifying the amount. See, e.g., Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. at 794.
Second, as to the jury award for emotional distress damages, the evidence supported the award. There was no error in the judge's failure to instruct the jury in accordance with Stonehill College v. Massachusetts Commn. Against Discrimination, 441 Mass. 549, 576 (2004), concerning presumptions and proof for emotional distress damages awarded in MCAD proceedings.
Third, the city argues that the evidence did not support the award of $100,000 in punitive damages. The jury were properly instructed that they could award punitive damages only if they found that the city's conduct was 'outrageous, because of evil motive or . . . reckless indifference to the rights of others.' See, e.g., Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. at 795, quoting from Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 17a (1998). The jury could have found that labeling Alvarez with a bad attitude for filing the MCAD complaint, and taking adverse employment actions against him on that basis, demonstrated a reckless indifference to Alvarez's rights. The jury also could have considered evidence that high-ranking officials in the city's police department justified the retaliation against Alvarez by relying on inaccurate and misleading information, and that such behavior called for condemnation and deterrence. Ciccarelli, supra at 797.
3. Remaining arguments. The city fails to persuade us that the judge erred in instructing the jury on the statute of limitations. The record does not establish that the sick time investigation and accompanying remarks, and the denial of Alvarez's application for a training officer position, were communicated to him outside the three-year limitations period provided in c. 151B, § 9. See Adamczyk v. Augat, Inc., 52 Mass. App. Ct. 717, 721-722 (2001). See also Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 114, 118 (1st Cir. 2009). We are similarly unpersuaded by the city's challenge to evidence admitted on claims that were not included in Alvarez's MCAD complaints, and the city's brief on that point is not supported by appropriate citation to the record, as required under Mass.R.A.P. (16)(a)(4), as amended, 367 Mass. 921 (1975). Finally, substantially for the reasons stated by the judge in his May 19, 2006, 'Memorandum and Order on the Plaintiff's Application for Attorney's Fees and Costs,' we affirm the award of attorney's fees.
The plaintiff is entitled to reasonable appellate attorney's fees, the request to be submitted within fourteen days of the date of the rescript and in accordance with Fabre v. Walton, 441 Mass. 9, 10-11 (2004). See Yorke Mgmt. v. Castro, 406 Mass. 17, 19-20 (1989); Lowell v. Massachusetts Commn. Against Discrimination, 65 Mass. App. Ct. 356, 357-358 (2006). The city shall have fourteen days thereafter to respond.
Judgment affirmed.
By the Court (Kantrowitz, Graham & Fecteau, JJ.),