Opinion
16-P-691
05-11-2017
Gina C. FIGUEIREDO & another v. ARMUR, INC.,& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial in the Superior Court on claims of employment discrimination and retaliation, the jury awarded compensatory and punitive damages to plaintiffs Gina Figueiredo and Tara Flynn. The defendants, Armur, Inc. (Armur), and Robert Mattin, appeal from the amended judgment and from orders denying their motions for judgment notwithstanding the verdict and for a new trial. We affirm.
Discussion. A. Judgment notwithstanding the verdict. The defendants filed a motion for judgment notwithstanding the verdict, see Mass.R.Civ.P. 50(b), as amended, 428 Mass. 1402 (1998), arguing that the evidence of certain elements of Figueiredo's and Flynn's retaliation claims was inadequate. The trial judge denied the motion. In reviewing the judge's denial of the motion, we ask "whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.’ " Doe v. Senechal, 66 Mass. App. Ct. 68, 76 (2006), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). We construe the evidence in the light most favorable to Figueiredo and Flynn and disregard the evidence favorable to Mattin and Armur. See O'Brien v. Pearson, 449 Mass. 377, 383 (2007) ; Esler v. Sylvia-Reardon, 473 Mass. 775, 777 (2016).
1. The retaliation claim. The defendants argue that Figueiredo and Flynn failed to present sufficient evidence to demonstrate that they engaged in protected conduct or that a causal connection existed between the protected conduct and their discharge. See Mole v. University of Mass., 442 Mass. 582, 591-592 (2004) ; Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 405-406 (2016).
a. Protected activity. According to the Massachusetts Commission Against Discrimination Sexual Harassment in the Workplace Guidelines IX.A (2002), "[p]rotected activity may include, but is not limited to, such actions as ... complaining to management or filing an internal complaint of harassment; [or] asking a supervisor or co-worker to stop engaging in harassing conduct." See, e.g., Verdrager, supra at 407 ("complain[ing] of gender discrimination to human resources officers and firm members" is protected activity).
Figueiredo engaged in protected activity by complaining to Robert Ames about Mattin's conduct and also by asking Mattin to stop his inappropriate conduct. Specifically, she complained to Ames in September of 2011, that Mattin "was being inappropriate in his comments." In addition, Figueiredo described an incident at the bar where Mattin "put his hands right behind [her], both hands ... [so she] couldn't move." He told Figueiredo that he was "too cute" and "too handsome" and invited her to touch him, to which Figueiredo replied, "I don't want to touch you. Get out of my way." Likewise, Flynn, before she was fired, complained to Ames "on more than one occasion" about the statements Mattin made "on the subject of sex." Flynn also complained about certain "offensive" photographs that Mattin posted on The Joshua Tree's Facebook page. The evidence was sufficient for a jury to find that both Figueiredo's and Flynn's actions constituted protected conduct.
b. Causal connection. The plaintiffs also must show that "a causal connection existed between the protected conduct and the adverse action." Mole, supra at 592 (quotation omitted). "Where adverse employment actions follow close on the heels of protected activity, a causal relationship may be inferred." Id. at 595. However, "[o]n a claim of retaliatory discharge, ‘unless the termination is very closely connected in time to the protected activity, the plaintiff must rely on additional evidence beyond temporal proximity to establish causation.’ " Ibid., quoting from Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999).
Here, the temporal proximity between Figueiredo's complaints to Ames and Mattin and her firing, both of which occurred in September of 2011, were sufficient for a jury to find the necessary causal connection and satisfy her prima facie case of retaliation. See Abramian v. President & Fellows ofHarvard College, 432 Mass. 107, 116-118 (2000). Although the record is less clear on the temporal proximity between Flynn's complaints to Ames and Mattin and her firing, "[t]emporal proximity is but one method of proving retaliation." Chungchi Che v. Massachusetts Bay Transp. Authy., 342 F.3d 31, 38 (1st Cir. 2003). Flynn presented " ‘[e]vidence of discriminatory or disparate treatment in the time period between the protected activity and the adverse employment action,’ which ‘can be sufficient to show a causal connection’ between the two." Verdrager, supra, quoting from Mole, supra at 596.
Flynn testified that she refused Mattin's requests to give his telephone number or business card to female patrons of The Joshua Tree many times. As a result, "towards the end [of her employment, she] got shifts taken away" from her and given to "less experienced people." Such treatment, culminating in Flynn's eventual termination, was sufficient for a jury to find a causal link. See Verdrager, 474 Mass. at 407. Accordingly, because both Figueiredo and Flynn established sufficient evidence of retaliation, the judge did not err in denying the defendants' motion for judgment notwithstanding the verdict.
B. Motion for a new trial. In their motion for a new trial the defendants argued that the judge erred in admitting the testimony of Jessica Chickering and in allowing the deposition testimony of plaintiff Jamie Damasceno to be read in evidence. Armur also contended that the evidence was insufficient to sustain the punitive damages award against it.
Damasceno is not a party to this appeal.
1. Chickering's testimony. At trial, Ames testified that he did not know who Benjamin Diaz was, did not recall the incident with Chickering, and did not warn Diaz not to make sexual comments in the workplace. Considering this testimony and the plaintiffs' offer of proof, the judge ruled that Chickering could testify in order to impeach Ames's testimony. Chickering testified about an incident in which Diaz, the kitchen manager, would not let her out of the cooler unless she kissed him. Chickering complained to Ames, and Ames made Diaz apologize. However, after the apology, in front of Ames, Diaz showed Chickering a picture of himself with his shirt off. Ames did nothing. The defendants complain that this testimony was irrelevant and prejudicial. We disagree.
Establishing that Ames was aware of a sexually hostile work environment but took no remedial action was necessary for the plaintiffs to make out their claim of punitive damages against the corporate defendant. See Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290, 300 (2016).
"[A] judge, in his discretion, may permit impeachment by extrinsic evidence even on collateral points." Simon v. Solomon, 385 Mass. 91, 107 (1982). Here, the judge conducted a voir dire of Chickering and limited her testimony to "what happened with Diaz ..., what she told Ames, what happened in the apology, and ... [whether] she complained to Mr. Ames or any other manager about anything else that happened to her." "The judge properly ... conclude[d] that the jury should have the benefit of the rebuttal evidence which tended to contradict [Ames's] testimony." Commonwealth v. Ferguson, 425 Mass. 349, 355-356 (1997) (permitting impeachment, in trial on murder in first degree, of defendant's testimony that he did not instruct his employees to dress and act in certain way to attract male customers).
In addition, Chickering's testimony was relevant to the plaintiffs' hostile work environment and retaliation claims. See Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 298 (1991) ("[M]ost cases of unlawful discrimination [are] stitched together from hiring and discharge patterns, [and] other acts of discrimination"). The judge did not abuse his discretion in admitting Chickering's testimony.
Although the judge admitted Chickering's testimony for impeachment purposes, the defendants did not seek a limiting instruction, and none was given. Accordingly, the evidence was admitted for all purposes. See Commonwealth v. Roberts, 433 Mass. 45, 48 (2000) ; Commonwealth v. Hurley, 32 Mass. App. Ct. 620, 621 (1992).
2. Damasceno's deposition. At trial, the judge allowed parts of plaintiff Damasceno's deposition to be read in evidence after she failed to respond to a subpoena for her testimony. The defendants argue that this ruling, which we review for abuse of discretion, was erroneous. See Zucco v. Kane, 439 Mass. 503, 507 (2003).
Massachusetts Rules of Civil Procedure 32(a), as amended, 392 Mass. 1105 (1984), provides in pertinent part,
"At [a] trial ... any part of or all of a deposition ... may be used against any party who was present or represented at the taking of the deposition ... in accordance with ... the following provisions: ...
"(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: ... (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena."
Here, plaintiffs' counsel attached to his "motion to read from the deposition testimony of Jamie Damasceno," an affidavit stating that he had "diligently sought to locate and contact Jamie Damasceno," and had "delivered a subpoena to her at her residence via the deputy sheriff." However, counsel was "not ... able to secure [Damasceno's] appearance in court by means of a subpoena." The return of service from the Middlesex County sheriff's office corroborated counsel's sworn statement. The judge's decision to allow Damasceno's deposition testimony to be read at trial was consistent with the rules of civil procedure and was within his discretion. See Kinchla v. Welsh, 8 Mass. App. Ct. 367, 372 (1979).
3. Punitive damages. Armur claims that both the judge and the jury erred regarding Figueiredo's and Flynn's punitive damages awards. Specifically, Armur maintains that the issue of punitive damages should not have reached the jury; that, in any event, the evidence of its conduct was insufficient to sustain the award; and that the award, even if permissible, was excessive. We disagree.
Armur claims that the issue of punitive damages should not have reached the jury because the plaintiffs provided insufficient evidence under the "two-step inquiry" in Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290, 298-299 (2016) ("We consider first whether the employer was on notice of the harassment and failed to take steps to investigate and remedy the situation; and, second, whether that failure was outrageous or egregious"). Our view of the record indicates otherwise.
As to the first step, Figueiredo, Flynn, Damasceno, and Chickering each testified that they told Ames about incidents of sexual harassment. At least one of these incidents was also reported by Ames to Martin Murphy, president of Armur. As to the second step, Mattin admitted that the defendants "didn't really investigate" Damasceno's complaints, and Ames told Damasceno that Murphy "didn't really care" about the employees. The evidence of Armur's failure to investigate the multiple claims of sexual harassment was sufficient to allow the jury to consider imposing punitive damages on Armur. See Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13, 23 (1997) (even where "evidence of discrimination was less than overwhelming, ... it was sufficient to warrant submitting the issue of punitive damages to the jury").
Armur also contends that the evidence of its conduct was not sufficiently "outrageous" to justify such an award. "To sustain an award of punitive damages under G. L. c. 151B, § 4, ... the defendant's conduct [must be] outrageous or egregious," Haddad v. Wal-Mart Stores, Inc. (No. 1), 455 Mass. 91, 110 (2009), "warrant[ing] condemnation and deterrence." Bain v. Springfield, 424 Mass. 758, 767 (1997). "An award of punitive damages requires a determination of the defendant's intent or state of mind, determinations properly left to the jury, whose verdict should be sustained if it could ‘reasonably have [been] arrived at ... from any ... evidence ... presented.’ " Haddad, supra at 107, quoting from Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 16 (1998).
Considering the Haddad five-factor test, see Kiely v. Teradyne, Inc., 85 Mass. App. Ct. 431, 436 (2014), we are persuaded that a reasonable jury could find that Armur's conduct (wholly independent of Mattin's conduct) was outrageous or egregious. First, the jury found Armur liable for sexual harassment—evidence of its "conscious or purposeful effort to demean or diminish" Figueiredo and Flynn on account of their sex. See Haddad, supra; Kiely, supra at 437. Second, Ames understood that sexual harassment was illegal. Therefore, a reasonable jury could infer that Ames (and therefore Armur) understood that failing to remedy an environment of sexual harassment "would likely cause serious harm" to Figueiredo and Flynn. See Gyulakian, 475 Mass. at 304-305. Third, although Figueiredo and Flynn were not awarded damages for emotional distress, they were awarded compensatory damages for lost pay as a result of their retaliatory firing—evidence of actual harm. Fourth, Figueiredo, Flynn, and Damasceno all told Ames about Mattin's sexual conduct and there was no evidence that either Ames or Murphy made an effort to stop it. Mattin also testified that Damasceno complained about other employees twice—once about Aaron Federer soliciting actors for a pornographic film he wanted to make, and once about Diaz making "sexual advances against hostesses, waitresses, and bartenders." Mattin reported the incidents to Ames, but they "didn't really investigate." Fifth, Damasceno herself, about two months before she was fired, told Ames about Mattin's having asked her for oral sex and Ames told her he would speak to Murphy about it. However, "[e]very time [she] asked [Ames] about it, [Ames said that he would] get back to [her]." Eventually, Ames reported back to Damasceno that Murphy "didn't really care what happened with the staff ... [a]s long as money was being brought in." Weighing the Haddad factors, the jury could reasonably conclude that Armur's conduct was outrageous or egregious. See Gyulakian, 475 Mass. at 304-305.
"While this factor is important to the analysis, we are careful not to overvalue it." Kiely, supra at 437 n.4. See Bain, 424 Mass. at 767 ("[T]here is no requirement in our law that punitive damages may only be awarded if there is an award of compensatory damages").
Armur also argues that the amount of punitive damages awarded to Figueiredo and Flynn was "excessive." We are not persuaded. See Bain, supra at 769 ("We do not think ... that an award of $100,000, even in the absence of any compensatory harm, would necessarily exceed the norms of rationality").
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Amended judgment affirmed.
Orders denying motions for judgment notwithstanding the verdict and for new trial affirmed.