Mary Kellie Beaupre vs. Cliff Smith & Associates & another
Case Details
- Citation
- 50 Mass. App. Ct. 480
- Procedural Posture — the stage the case had reached
- jury verdict
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Jury found both the corporation (Cliff Smith & Associates) and its president (Clifford F. Smith) liable for sex discrimination in the form of quid pro quo and hostile work environment sexual harassment under Massachusetts G.L. c. 151B. Awards of back pay, front pay, and punitive damages were upheld on appeal.
Excerpt
Mary Kellie Beaupre vs. Cliff Smith & Associates & another. No. 98-P-100. Middlesex. May 5, 2000. November 16, 2000. Present: Kass, Laurence, & Duefly, JJ. Employment, Discrimination, Sexual harassment. Anti-Discrimination Law, Termination of employment, Sex, Burden of proof, Individual liability, Damages. Practice, Civil, Challenge of jurors, Judicial discretion, Directed verdict, Instructions to jury. Witness, Expert. Damages, Under anti-discrimination law. Defendants in a civil action did not preserve for appellate review any issue regarding their peremptory challenges. [482-483] Defendants in a civil action did not demonstrate that the trial judge’s decision mid-trial to allow the plaintiff’s treating physician to testify as an expert constituted an abuse of discretion, or, in any event, that any prejudice resulted from the judge’s ruling. [483-488] Evidence at the trial of a claim for sex discrimination in employment in violatian of G. L. c. 151B, § 4, was more than sufficient to meet the plaintiff’s burden of establishing “quid pro quo” and “hostile work environment” sexual harassment, and there was no error in the judge’s submitting the case to the jury or denying the defendants’ motions for judgment notwithstanding the verdict. [488-489] There was no merit to a claim that there is a presumption in the law favoring an accused harasser in a case involving a former consensual sexual relationship between the accuser and the accused. [489] A claim of sex discrimination in employment was not barred by the six-month statute of limitations set forth in G. L. c. 15IB, § 5 [489-490], and the judge properly allowed evidence of related conduct falling outside the six-month period on a theory of a continuing violation [490], A corporation’s president and controlling shareholder was correctly held personally liable, along with the corporation, for his sexual harassment of an employee of the corporation, where there was sufficient evidence of his conduct coercing the plaintiff into submitting to his sexual demands and using his authority over the corporation to create a hostile environment to warrant the jury’s verdicts; further, the individual defendant had ample notice of the specific allegations against him. [490-496] The awards of damages in a claim of sex discrimination in employment, consisting of lost front pay and lost back pay, were neither speculative nor excessive [496-497], and the punitive damages award was not, on the record, excessive [497-498]. Civil action commenced in the Superior Court Department on April 16, 1993. The case was tried before Herman J. Smith, Jr., J. Raymond J. Reed for Cliff Smith & Associates. Paul M. Stein for Clifford F. Smith. Laura R. Studen (John G. DiPiano with her) for the plaintiff. Clifford E Smith, individually. Laurence, J. The defendants, Cliff Smith & Associates (CSA) and Clifford F. Smith (CSA’s president and controlling shareholder), appeal from verdicts and damage awards by a Superior Court jury in favor of a former employee, the plaintiff, Mary Kellie Beaupre. The plaintiff had commenced suit in April, 1993, on a complaint alleging that her discharge from CSA in September, 1992, was motivated by unlawful sex discrimination in violation of G. L. c. 151B, § 4, in the form of sexual harassment of both the “quid pro quo” and “hostile work environment” varieties (see G. L. c. 151B, § 1[18]; Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673, 677 [1993]; Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65-66 [1986]). The defendants assign several errors on appeal: the judge’s supposed limitation of their peremptory jury challenges; the judge’s allowance at trial of previously undisclosed expert opinion testimony by the plaintiff’s treating psychiatrist; the judge’s denial of their motions for directed verdict and judgment notwithstanding the verdict (challenging the sufficiency of the plaintiff’s sexual harassment case); the verdict of individual liability against Smith; and the excessiveness of the damage awards generally, and the award of punitive damages against Smith individually in particular. We affirm. 1. Peremptory challenges. The defendants assert that they were erroneously deprived of four peremptory challenges during jury empanelment. The record, however, does not support their contention. Indeed, they did not properly preserve the issue for appeal. The record reflects no statement or action by the judge regarding the number of challenges each party was allowed, nor the judge’s rejection of any attempted exercise of additional challenges by the defendants, nor any defense objection to any aspect of the jury selection process. For all we know from the record, had either of the defendants v/ished to challenge additional jurors peremptorily, the judge would have allowed it. Their appellate claim that any further challenges by them would have been futile is entirely speculative. That they essayed no such additional challenges more likely shows that they in fact had none. The record reveals that both CSA and Smith informed the judge that they were content with the jury. Nothing on the record suggests any error or abuse with respect to the “trial judge[‘s] . . . large degree of discretion in the jury selection process.” Commonwealth v. Benjamin, 430 Mass. 673, 675 (2000). Moreover, “the denial of the correct number of peremptory challenges [does not] constitute^ by itself ground for reversal . . . .” Andras v. Marcyoniak, 13 Mass. App. Ct. 1043, 1043 (1982). Neither CSA nor Smith has shown, as they must even if an error in this regard occurred, that “the ruling affected the jury’s verdict in some material way.” Id. at 1044. The lack of the requisite prejudice is seen in the failure of CSA and Smith to demonstrate that either defendant “was required to accept one or more jurors whom he wished to challenge . . . .” Ibid., quoting from Tamburello v. Welch, 392 S.W.2d 114, 116 (Tex. 1965). 2. Expert testimony. The defendants point out that the plaintiff’s treating psychiatrist, Dr. Compaine, was not designated an expert during discovery or at any other time prior to trial. In the parties’ joint pretrial memorandum, the plaintiff affirmatively represented that she had no expert witnesses. On the seventh day of trial, however, the judge allowed the plaintiff to question Dr. Compaine both as an expert and as her treating physician, over the defendants’ objection that the plaintiff had not previously identified him as an expert. Dr. Compaine went on to testify not only to his diagnosis and treatment of the emotional and physical problems that the plaintiff had presented in the wake of her leaving CSA, but also to the general characteristics displayed by persons in abusive relationships, including lack of free will. He opined, based on what the plaintiff had told him and the symptoms she manifested, that she appeared to lack free will in the context of an abusive relationship. This, the defendants contend on appeal, constituted prejudicial surprise. We are not unsympathetic to the defendants’ indignation at the plaintiff’s cavalier violation of the procedural rules with respect to her expert. The defendants’ appeal nonetheless falters in not coming to grips with either the applicable standards of review or their failure to discharge the basic obligation of litigants seeking appellate relief to make and preserve proper objections at trial. The extensive discretion of trial judges with respect to both the process of discovery and the admission of evidence, particularly expert testimony, and the great deference appellate courts accord the rulings of trial judges in these areas are too well established to require citation. The defendants have not demonstrated that the judge’s decision to allow Dr. Compaine to testify as an expert in mid-trial constituted an abuse of that broad discretion; or that, even if the judge erred in his exercise of discretion in these matters, prejudicial error ensued. See Commonwealth v. Francis, 390 Mass. 89, 99 & n.6 (1983); Commonwealth v. Medeiros, 395 Mass. 336, 351 (1985); Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987). The defendants have cited to, and we know of, no case in which a trial judge’s discretionary admission (or exclusion) of belatedly offered and previously unidentified expert testimony has been reversed by our appellate courts, notwithstanding any violation of discovery obligations or pretrial orders. Moreover, it is clear that they knew well prior to trial that Dr. Compaine would be the plaintiff’s key witness. They had subpoenaed all his treatment notes and they had deposed him, thereby having had the opportunity to obtain the substance of his testimony. We conclude that “[ajbsent here [was] the sort of unfair surprise which [the discovery rules] spekQ to prevent.” Resendes v. Boston Edison Co., 38 Mass. App. Ct. 344, 351 (1995). Further subversive of their claim of unfair surprise or prejudice are the facts that the defendants (a) did not request a continuance, thereby indicating that there was nothing further to investigate regarding Dr. Compaine, that they were prepared to cross-examine him, and that their own expert was ready to counter opinions favorable to the plaintiff’s case, see Giannaros v. M.S. Walker, Inc., 16 Mass. App. Ct. 902, 902 (1983); Resendes v. Boston Edison Co., 38 Mass. App. Ct. at 350-351 (failure of defendant to seek continuance when plaintiff’s late-identified expert allowed to testify cuts against claim of abuse of discretion and prejudice); cf. Commonwealth v. Gordon, 422 Mass. 816, 836 (1996), quoting from Commonwealth v. McGann, 20 Mass. App. Ct. 59, 66 (1985) (when “surprise” evidence surfaces at trial in violation of discovery obligations, “the preferred course of action is ... a provision of additional time . . . .”); (b) did not seek a voir dire on or challenge Dr. Compaine’s qualifications to provide expert testimony (and have likewise not challenged the judge’s implicit discretionary finding that Dr. Compaine was so qualified, a finding amply supported by his resume and experience, see Commonwealth v. Boyd, 367 Mass. 169, 182 [1975], and cases cited); (c) did not state any specific objection to the content of the opinions Dr. Compaine expressed or to his testifying as both the treating physician and an expert (indeed, defense counsel conceded that a treating physician may render an expert opinion so long as he is qualified to do so and there is a proper foundation for the opinion); and (d) did at no time articulate any objection to Dr. Compaine’s testimony beyond the lack of prior notification. Assuming, arguendo, that Dr. Compaine should not have been allowed to testify as an expert, the defendants have not demonstrated any consequent prejudice. Their ability to cross-examine him thoroughly was not discernibly hindered. In particular, they effectively used his treatment notes and admissions to emphasize for the jury that he had no personal knowledge of the events at CSA that the plaintiff reported to him and that he based his opinions on the information supplied by the plaintiff. They responded to every significant aspect of Compaine’s testimony through their own expert, Dr. Gutheil, who had personally interviewed both the plaintiff and Smith. Gutheil not only contradicted Compaine’s opinion that the plaintiff presented the clinical picture of someone in an abusive relationship who had lost her free will, but further opined (well beyond the testimony of Compaine, see note 12, supra) that the facts of the case were “most consistent with a broken-up office romance . . . rather than a gender-based sexual harassment scenario” (an opinion not challenged by the plaintiff). There was also no undue emphasis by plaintiff’s counsel in closing argument on Dr. Compaine’s testimony. The judge’s charge on the subject of expert testimony was additionally counteractive of any residue of prejudice. In sum, we discern neither abuse of discretion nor improper prejudice to the defendants by virtue of the judge’s allowance of the plaintiffs expert testimony. See Eagan v. Marr Scaffolding Co., 14 Mass. App. Ct. 1036, 1036 (1982) (“[i]t was within the discretion of the trial judge to permit substitute expert witnesses to testify on the plaintiffs behalf even though supplementation of [discovery] . . . did not occur until shortly before and during trial, where [the] defendant long had notice of the substance of the testimony expected, where [the] defendant had an opportunity to — and did — depose each witness . . . , and where no bad faith was shown on the part of the plaintiff’). Cf. Resendes v. Boston Edison Co., 38 Mass. App. Ct. at 350-351, and cases cited. 3. Denial of directed verdict motion. Under the standard of review applicable to the denial of the defendants’ motion for a directed verdict on the G. L. c. 15 IB claim, the defendants’ contention that the evidence did not establish actionable sexual harassment fails. The plaintiffs testimony (see note 4, supra), if believed by the jury, would be more than sufficient to meet her burden of establishing both sets of circumstances constituting what are commonly known as “quid pro quo” and “hostile work environment” sexual harassment (see G. L. c. 151B, § l[18][a], [b]), namely that (a) Smith’s sexual advances and other sexual conduct directed at the plaintiff were unwelcome, cf. Gnerre v. Massachusetts Commn. Against Discrimination, 402 Mass. 502, 507 (1988); and (b) the advances either conditioned some aspect of employment or were sufficiently pervasive that they “ha[d] the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G. L. c. 15IB, § 1(18)(6). See Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673, 678-679 (1993). The defendants, who did not request that the special questions submitted to the jury provide that the jury specify the theory of sexual harassment supporting any verdict, may not now be heard to argue, as they do, that it is impossible to tell on which theory the jury based their verdict. See Mass.R.Civ.P. 49(a), 365 Mass. 813 (1974); Hawco v. Massachusetts Bay Transp. Authy., 398 Mass. 1006, 1006 (1986); Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 530 (1992). There being adequate evidence to support a verdict on both theories, the judge did not err in sending the case to the jury and in not overturning the jury’s verdicts. Also unavailing is the defendants’ suggestion that the judge erred in not instructing the jury (as they requested) that a special presumption favoring accused harassers applies to sexual harassment cases involving coworkers who once shared a consensual sexual relationship. Such a presumption finds no support in the law of this Commonwealth. We are not obligated to follow the Federal courts’ interpretations of related, but distinguishable, portions of Title VII which suggest such a presumption — see, e.g., College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 163-164 (1987); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 289 (1997); Bain v. Springfield, 424 Mass. 758, 765 n.4 (1997); Mullenix v. Forsyth Dental Infirmary for Children, 965 F. Supp. 120, 153 (D. Mass. 1996) — and none of the cases cited by the defendants involved the relevant provisions of chapter 151B. Finally, the defendants contend that the plaintiff’s January 29, 1993, complaint with the MCAD was filed over six months after the ugly July 27, 1992, incident between the plaintiff and Smith (see G. L. c. 151B, § 5, creating a six-month statute of limitations), and that the judge consequently erred in not instructing the jury to ignore that outside-the-statute incident, which they assert was unduly “played up” in the plaintiff’s closing argument. The evidence (of Smith’s constant sexual harassment of the plaintiff during August and into October, 1992, and his offers during that same time period of restoration of employment perquisites and of reemployment explicitly conditioned upon resumption of a sexual relationship, see note 4, supra) eliminated any statute of limitations problem by providing sufficient independent bases for the jury’s verdicts. The judge also acted within his discretion in allowing the admission of evidence of related conduct falling outside of the six-month period on a “continuing violation” theory, which he implicitly did in denying the defendants’ directed verdict motion that was in part premised on the irrelevance of the July 27, 1992, flare-up. See, e.g., Lynn Teachers Union, Local 1037 v. Massachusetts Commn. Against Discrimination, 406 Mass. 515, 520-523 (1990); In re C.F. Smith & Assocs., Inc., 235 B.R. 153, 164 (Bankr. D. Mass. 1999). 4. Smith’s individual liability. The defendants argue that no Massachusetts appellate decision has recognized personal liability of individual employees under G. L. c. 15IB; that the “trend of authority” in other states and under analogous Federal law is to construe sexual harassment statutes so as “to limit liability to an ‘employer’ ”; that in any event Smith himself could only be held personally liable in this case for “aiding and abetting” CSA under G. L. c. 151B, § 4(5), but he was never charged individually or as an aider or abettor in the MCAD charge or the Superior Court complaint; and that such liability would be legally impossible since the only sexually harassing conduct alleged was his own, i.e., “there was no one else whom he could have aided and abetted.” These arguments all fail, for several reasons. First, G. L. c. 15 IB does not limit the categories of persons who may be individually liable. To the contrary, the plain language of the statute provides on its face for individual personal liability in several sections, unlike the cognate provisions of other jurisdictions (including Federal), which are more or less ambiguous on the issue. See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992) (“[W]hen a statute speaks with clarity to an issue[,] judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished”). The MCAD, whose interpretations of G. L. c. 151B we are to accord deference, College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. at 166, has long recognized and imposed individual liability under the statute, including in situations similar to this one. Highly pertinent in this regard are the mandate of G. L. c. 151B, § 9, that the provisions of the chapter must be construed liberally for the accomplishment of its purposes — one of which was to discourage and penalize discriminatory conduct, including sexual harassment, by individuals — and the explicitly declared policy of the Commonwealth that all persons have the. right to be free from sexual harassment. G. L. c. 214, § 1C. Given these authorities, we have no hesitation in stating that our law clearly rejects the defendants’ contention that Smith cannot be held individually liable under c. 15 IB for his active sexual harassment of the plaintiff. Contrary to the defendants’ assertion, Smith was from the outset named as an individual defendant and alleged to have had personal responsibility for the plaintiff’s claimed sexual harassment and consequent injuries, in both the MCAD charge and the Superior Court complaint. He had ample notice of the specific allegations made against him personally by the plaintiff. See Brunson v. Wall, 405 Mass. 446, 451 (1989); Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996); Chatman v. Gentle Dental Center of Waltham, 973 F. Supp. 228, 235 (D. Mass. 1997) (together emphasizing the importance under c. 15 IB of sufficient notice being provided in the MCAD filing of the charges being made and of the parties deemed responsible, so as to allow both the opportunity to attempt early conciliation and a fair oppor
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