Opinion
11-P-299
03-29-2012
JOANN DELOUCHREY v. FRATERNAL ORDER OF EAGLES, AERIE NO. 1445 & 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
In 2004, the plaintiff Joann Delouchrey worked as a bartender; the defendant entity, Fraternal Order of Eagles, Aerie No. 1445 (Eagles), was her employer. The defendant individual, Michael Lema, was an officer of the Eagles and her immediate supervisor. During 2004 and 2005, Delouchrey complained to officers and trustees of the Eagles that Lema was sexually harassing her during the course of her work.
At some point during 2005, after submission of her complaint in writing, the Eagles terminated her employment. In 2006, Delouchrey began suit against Lema for sexual harassment in violation of G. L. c. 151B, § 4(1B); and against the Eagles for retaliation against her complaint of sexual harassment, in violation of G. L. c. 151B, § 4(4). At the conclusion of a three-day trial in Superior Court, a jury by special verdict questions found that Lema had committed actionable sexual harassment against Delouchrey and that the Eagles had retaliated against her by reason of her complaint against his conduct. It awarded her compensatory damages against Lema in the amount of $6,000; and against the Eagles in the amount of $11,000. Delouchrey sought and received an award of attorney's fees, apparently pursuant to G. L. c. 151B, § 9, in the amount of $12,675.
The defendants moved jointly for entry of judgment notwithstanding the verdict, pursuant to Mass.R.Civ.P. 50(b), as amended, 428 Mass. 1402 (1998). The judge denied their motion. Both have now appealed from the judgment entered upon the verdicts for compensatory damages. They have not appealed from the award of statutory attorney's fees, apparently upon the premise that success upon either one or both substantive claims would reduce or eliminate the entitlement to those fees. In response, Delouchrey has defended the judgments and requested an award of appellate attorney's fees. For the following reasons, we affirm the judgments for compensatory damages and thereby the award of statutory attorney's fees. In addition, we allow Delouchrey's request for an award of appellate attorney's fees.
Discussion. The appellants' brief consists of seven and one-half pages. It purports to present four issues. It devotes three pages to discussion of those issues. The brief contains numerous unintelligible sentences and typographical errors. Beyond the opening itemization of generic issues, it fails to connect the evidence or facts of the case to legal doctrine or authority. We address the proposed appellate issues as follows.
1. The defendants claim that the trial judge improperly denied their motion for a judgment notwithstanding the verdict. They claim that the plaintiff failed to introduce evidence sufficient to establish sexual harassment or a hostile work environment created by Lema, or retaliation by the Eagles. They claim also that the Eagles maintained fewer than six employees and therefore were exempt from the anti-discrimination requirements of G. L. c. 151B, § 4.
First, the generally inadequate appellate record submitted by the defendants does contain sufficient testimony of Delouchrey describing sexually offensive remarks by Lema, reporting her complaints to the officers and trustees of the Eagles, and relating her termination soon afterward. The jury were entitled to credit that testimony and to discredit as pretextual the Eagles' allegations of other reasons for her termination. Her testimony and her formal written complaint to the Eagles furnished ample grounds for denial of the motion for judgment notwithstanding the verdict. See Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972); Lally v. Volkswagen Aktiengesellschaft, 45 Mass. App. Ct. 317, 321 (1998). Finally, insofar as the defendants argue that the Eagles employed fewer than the statutory minimum of six employees, the record supplement provided by Delouchrey shows that the Eagles in their answer specifically admitted that 'at all times material [they had] been an employer within the meaning of G. L. c. 151B.'
2. The defendants contend that the trial judge at some point granted a directed verdict in favor of the Eagles but later reversed herself so as to violate the due process clauses of both the United States and Massachusetts Constitutions. Their brief devotes one conclusory paragraph to this contention. It makes no citations to the record. It makes no citations to legal authority. The contention does not rise to the level of competent appellate argument. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Therefore we will not consider it. See Zora v. State Ethics Commn., 415 Mass. 640, 642 n.3 (1993), and cases cited; Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995), and cases cited.
In addition, the inadequate record upon this argument independently disqualifies it from consideration. See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007); Cameron v. Carelli, supra; Commonwealth v. Monteiro, 71 Mass. App. Ct. 477, 478 n.2 (2008).
3. The defendants propose to argue also that Delouchrey failed to submit timely and sufficiently specific complaints to the Eagles, and to the Massachusetts Commission Against Discrimination, so as to preserve her rights and to enable the Eagles and Lema to prepare adequate defenses. This proposed argument lacks any specific reference to the record, fails to cite any applicable legal sources, and thoroughly fails to constitute competent discussion of the issue. The deficiencies of the argument and of the record disqualify it, also, from consideration. The authorities cited above apply equally to this purported contention.
4. As a proposed fourth argument, the defendants contend again that Delouchrey's allegations of discriminatory behavior were insufficiently specific in date and substance to permit them to prepare an adequate defense. Again, no citations to appropriate law or evidence support this conclusory claim embodied in a single cross-reference to the immediately previous claim. It does not qualify for consideration.
Appellate attorney's fees. We allow Delouchrey's request for an award of appellate fees under authority of Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). The present appeal is thoroughly deficient and blatantly frivolous. Because both parties and their attorney participated thoroughly in the prosecution of this shoddy and wasteful appellate effort, we award appellate attorney's fees jointly and severally against Michael Lema, the Fraternal Order of Eagles, Aerie No. 1445, and attorney Bernard W. Fang. See Avery v. Steele, 414 Mass. 450, 455 (1993); Ashford v. Massachusetts Bay Trans. Authy., 421 Mass. 563, 568-569 (1995); Worcester v. AME Realty Corp., 77 Mass. App. Ct. 64, 73-74 & n.6 (2010). In addition, pursuant to G. L. c. 211A, § 15, we award jointly and severally against Lema and the Eagles the amount of double the appellee's appellate costs.
In accordance with the procedure set out in Fabre v. Walton, 441 Mass. 9, 10- 11 (2004), counsel for Delouchrey shall submit to this court a verified itemization of appellate attorney's fees within fourteen days of receipt of the present memorandum and order. Counsel shall support the request with a verified description of professional experience and qualifications, and shall support the itemization of fees with a description of the service, the date of rendition, the amount of time, and the hourly rate charged. Counsel should attach to the verification of the request for fees also a verified itemization of appellate costs.
Within fourteen days of receipt of the request for appellate fees and costs, the defendants Lema and Eagles and attorney Fang shall submit any opposition to the requested amount.
Judgments affirmed.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.),