Opinion
No. 11–P–10.
2012-06-28
Patricia A. CALLANDER v. BIG LOTS STORES, INC.
By the Court (CYPHER, GREEN & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises from an action by the plaintiff, Patricia A. Callander, bringing claims of handicap discrimination and retaliation against the defendant employer, Big Lots Stores, Inc. (Big Lots), pursuant to G.L.c. 151B. After a jury trial, the jury found in favor of Big Lots. The plaintiff, a former assistant manager of operations at the Big Lots store in Pittsfield, appeals from the judgment and the denial of her motion for a new trial.
The plaintiff argues on appeal that her new trial motion should have been granted (1) because there was overwhelming evidence supporting her claims of handicap discrimination and retaliation, and (2) because of an affidavit submitted to the motion judge from Mark Brown, the plaintiff's former assistant manager at Big Lots, stating that an unidentified juror approached him the day after the verdict and made statements indicating, according to the plaintiff, “bias and inappropriate deliberations” and that the jury had “serious confusion” about the case. We affirm the judgment and the order denying the motion for new trial.
Discussion. The decision to grant or deny a motion for a new trial based on the weight of the evidence rests in the discretion of the trial judge, who is instructed to set aside a verdict if it is “so greatly against the weight of the evidence [as to indicate] that it was the product of bias, misapprehension or prejudice.” Jamgochian v. Dierker, 425 Mass. 565, 571 (1997), quoting from Scannell v. Boston Elev. Ry., 208 Mass. 513, 514 (1911). A new trial motion should also be granted if the jury's verdict is “inconsistent with substantial justice.” Jamgochian, supra (citation omitted). The fact that the jury could have credited the plaintiff's testimony and found in her favor does not make their verdicts against the weight of the evidence or inconsistent with substantial justice, and we conclude that the judge did not abuse his considerable discretion in denying the plaintiff's motion for a new trial. See Gath v. M/A–COM, Inc., 440 Mass. 482, 492 (2003); O'Brien v. Pearson, 449 Mass. 377, 384 (2007).
The jury could reasonably have found that the plaintiff did not verbally make a reasonable request for an accommodation, and that the general brochure she provided to Big Lots describing her symptoms neither constituted an adequate request for accommodation nor put Big Lots on notice of the plaintiff's specific needs and limitations as of February, 2006. Contrast Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 649–650 & n. 21 (2004). Further, the jury could have reasonably found that the plaintiff was not subject to a hostile work environment tantamount to a constructive discharge as a result of her filing with the Massachusetts Commission Against Discrimination. See GTE Prod. Corp. v. Stewart, 421 Mass. 22, 33–36 (1995).
In certain infrequent situations, an employer has a duty to offer an accommodation even in the absence of a request by the employee. See Leach v. Commissioner of the Mass. Rehabilitation Commn., 63 Mass.App.Ct. 563, 566–567 (2005). On this record, a finding that Big Lots knew or should have known from the plaintiff's condition of her need for accommodations was not required.
With regard to the plaintiff's final argument, the submission of a juror's alleged postverdict statement did not require that the judge grant the plaintiff's motion for a new trial. The affidavit from Mark Brown summarized posttrial statements regarding the jury deliberations, made to him by an unnamed male juror in a Macy's department store. Notwithstanding the fact that Brown's statements about what the unidentified juror told him were likely inadmissible hearsay, see G.E.B. v. S.R.W., 422 Mass. 158, 168 (1996), case law in Massachusetts weighs against the right to a new trial based on postverdict juror disclosure. See Commonwealth v. Fidler, 377 Mass. 192, 195–198 (1979); Cassamasse v. J.G. Lamotte & Son, Inc., 391 Mass. 315, 317–319 (1984); Commonwealth v. Pytou Heang, 458 Mass. 827, 857–859 (2011). The trial judge was well within his discretion to find that the limited grounds warranting the impeachment of a jury verdict were not present here.
To the extent that we have not addressed other specific points made by the plaintiff, they have not been overlooked. We have considered them and have found them to be without merit.
Judgment affirmed.
Order denying motion for new trial affirmed.