Opinion
No. 15–P–1093.
06-30-2016
Samir BAYOUMI v. MASSACHUSETTS GENERAL HOSPITAL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this employment discrimination case, Samir Bayoumi maintains that the defendant, Massachusetts General Hospital (MGH), failed to hire him as a pharmacy technician because of his age. See G.L. c. 151B, § 4(1B). After a three-day trial, the jury returned a defense verdict in thirty minutes, after answering special questions. Bayoumi timely appealed from the judgment. Bayoumi challenges the judge's rulings for three reasons. First, Bayoumi asserts that the judge abused her discretion in several of her evidentiary rulings. Second, Bayoumi argues that the judge erred in her jury instructions. Third, Bayoumi contends that the judge erred by submitting special questions to the jury. We affirm.
As a threshold matter, we note that many of Bayoumi's claims of error are not presented in a manner that meets the minimum level of adequate appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Pro se litigants “are held to the same standards as litigants who are represented by counsel.” Davis v. Tabachnick, 425 Mass. 1010, 1010 (1997). See Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183, 184 (1994) ; Solimine v. Davidian, 422 Mass. 1002, 1002 (1996).
A. Evidentiary rulings. Although Bayoumi challenges several of the judge's evidentiary rulings, we discern no abuse of the judge's broad discretion in her evidentiary rulings, see N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013), and we will address them in turn. First, the judge did not violate Bayoumi's constitutional rights or err by refusing to allow him to present his case to the jury through a PowerPoint presentation. The exclusion of the computer presentation fell within the exercise of the judge's considerable discretion. See Commonwealth v. Bys, 370 Mass. 350, 361 (1976), citing Davis v.. Boston Elev. Ry., 235 Mass. 482, 502 (1920). See also Mass. G. Evid. § 102 note (2016).
In limine, Bayoumi offered forty-eight slides for admission, which contained, among other items, Bayoumi's expected testimony, excerpts from the Massachusetts Commission Against Discrimination proceedings that resulted in a probable cause finding, and the summary judgment decision finding a genuine issue of material fact. Many of the slides contained argument and personal commentary. The judge sustained MGH's objection to the slides on the basis of her preliminary conclusion that they appeared to be improper. She instructed Bayoumi that he could ask her about the admissibility of individual slides as he put on his case. Ultimately, the judge refused to allow Bayoumi to use any of the slides, ruling that they contained inappropriate and irrelevant information and reflected evidence that never had been introduced. This ruling was not an abuse of discretion.
Second, Bayoumi failed to establish any abuse of discretion in the judge's rulings that excluded Bayoumi's Massachusetts Commission Against Discrimination (MCAD) evidence. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 134–135 (1997) (MCAD's finding of probable cause did not constitute probative evidence sufficient to withstand defendant's summary judgment motion). See also Patten v. Wal–Mart Stores E., Inc., 300 F.3d 21, 26 (1st Cir.2002) (no abuse of discretion in exclusion of agency's “reasonable grounds” finding).
Multiple rulings were required because Bayoumi failed to abide by the judge's initial ruling excluding the evidence. The judge reasoned that the administrative proceedings, a prerequisite to a civil action under G.L. c. 151B, § 9, were not relevant.
Third, there was no error in the pretrial exclusion of Matthew Monahan's deposition. Our procedural rules provide for situations where the admission of depositions at trial as a substitute for live testimony is permissible. See Mass.R.Civ.P. 32(b), 365 Mass. 787 (1974). See also Caron v. General Motors Corp., 37 Mass.App.Ct. 744, 748 (1994). Here, Monahan was present in the court room at the time the judge made her ruling. Monahan testified at trial and was subjected to examination by Bayoumi. During the subsequent colloquy about the state of the exhibits to be sent to the jury, the judge may have made an incorrect reference about Bayoumi's failure to move to seek introduction of the deposition in evidence. However, any misstatement was harmless, as the deposition was properly excluded on the basis of Monahan's live testimony.
At the beginning of the trial, the judge instructed Bayoumi, who was acting pro se, on the proper use of the deposition for impeachment purposes only. Notwithstanding her instructions, Bayoumi repeatedly asked questions about the deposition during the trial.
Fourth, to the extent Bayoumi claims error in the judge's exclusion of the files of the four individuals that were hired by MGH to fill the pharmacy technician position, Bayoumi never moved to introduce this evidence. Because these files were never introduced into evidence, the judge did not err by refusing to allow Bayoumi to discuss the files during his summation. See Back v. Wickes Corp., 375 Mass. 633, 643–644 (1978).
B. Jury instructions. Based on our review of the entire charge, we conclude that the judge correctly instructed the jury on the governing principles of Massachusetts law. The judge could reasonably have concluded that the omitted instruction, though a correct statement of the law, was irrelevant to any facts in evidence and arguably misleading to the jury. See id. at 638. Even assuming, arguendo, that the instruction should have been given, Bayoumi has not argued, let alone shown, that his substantial rights were affected. See Dos Santos v. Coleta, 465 Mass. 148, 153–154 (2013).
No Federal claims were asserted in the one-count complaint.
C. Special jury questions. There was no error in the scope or the form of the special jury questions submitted to the jury under appropriate instructions from the judge. The special questions properly covered the required elements of the type of discrimination claim brought by Bayoumi. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39 (2005). If, as requested by Bayoumi, the judge had submitted only one question regarding MGH's discriminatory animus, she would have improperly lightened Bayoumi's burden of proof.
D. Other claims. Where the jury concluded that Bayoumi had not met his burden of proving discrimination by MGH, we need not consider Bayoumi's challenge to the exclusion of certain instructions and special questions on damages.
Judgment affirmed.