Robert J. Fontaine vs. Ebtec Corporation & another
Case Details
- Citation
- 415 Mass. 309
- 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 employer liable for age discrimination under state and federal law; plaintiff awarded compensatory damages for lost wages, benefits, and emotional distress, plus attorney's fees. Appellate court affirmed liability but modified damages to exclude punitive damages under state law (not retrospectively applicable) and awarded liquidated damages under federal ADEA.
Excerpt
Robert J. Fontaine vs. Ebtec Corporation & another. Hampden. February 3, 1993. May 21, 1993. Present: Liacos. C J.. Abrams. Nolan, O’Connor, & Greaney, JJ. Anti-Discrimination Law, Age, Damages, Termination of employment. Practice, Civil, Judicial discretion, Continuance, Attorney’s fees. Damages, Under anti-discrimination law, Punitive, Attorney’s fees, Interest. Statute, Retroactive application, Construction. Attorney at Law, Compensation. In an age discrimination case, arising from the termination of the plaintiff’s employment, the jury’s verdict finding the employer and its parent corporation liable for discrimination under State and Federal law was supported by the evidence, and the judge correctly denied the defendant’s motion for judgment notwithstanding the verdict. [312-316] In an age discrimination case, the defendants were not entitled to a new trial on the ground that, due to a scheduling conflict, their principal witness’s testimony was presented through a videotaped deposition, where the scheduling of the trial was properly addressed by the judge under Mass. R. Civ. P. 40 (a) and (c). [316-317] In a civil action, this court declined to consider on appeal an argument not raised at trial. [317] Amendments to G. L. c. 151B, § 9, that provide for awards of enhanced damages in age discrimination cases were not applicable retrospectively to a case pending at the time of the amendments’ effective date, or to conduct occurring prior thereto. [318-321] In age discrimination cases, punitive damages are not available as a remedy, inasmuch as G. L. c. 151B, § 9, 4th par., inserted by St. 1990, c. 395, provides, when appropriate, that multiple damages be awarded. [321-322] A plaintiff in an age discrimination case, asserting claims under both State and Federal law, was entitled to “liquidated damages” for violations of the Federal Age Discrimination in Employment Act where he proved that the defendants’ acts were wilful. [322-323] A fair market rate for time reasonably spent preparing and litigating a case is the basic measure of a reasonable attorney’s fee (“lodestar” award) awarded under G. L. c. 151B. [324-326] In a noncomplex age discrimination case, the appropriate attorney’s fee award, calculated by the lodestar method, was adequate, and enhancement of the fee, in the circumstances, was not warranted. [326] In an age discrimination case the plaintiff was entitled to prejudgment interest on the compensatory damages awarded on his State law claim, dating from the commencement of the action [326-327], and postjudgment interest of the liquidated damages awarded on his Federal claim, dating from the date of the jury’s verdict [327-328]. Civil action commenced in the Superior Court Department on March 3, 1988. The case was tried before William H. Welch, J. The Supreme Judicial Court granted a request for direct appellate review. John J. Egan (Maurice M. Cahillane & David G. Cohen with him) for the plaintiff. Richard D. Hayes for the defendants. Stephen S. Ostrach & Emily R. Livingston, for Associated Industries of Massachusetts, amicus curiae, submitted a brief. George P. Napolitano, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Thermal Scientific, PLC. Greaney, J. In January, 1988, the plaintiff was discharged from his position as vice president of Ebtec Corporation, an American subsidiary of Thermal Scientific, PLC, a British company (defendants). A jury in the Superior Court found for the plaintiff in his ensuing claims that the defendants had violated G. L. c. 15IB, § 4 (IB) (1990 ed.), the Massachusetts statute which prohibits age discrimination, and 29 U.S.C. §§ 621 et seq. (1988), the Federal Age Discrimination in Employment Act (ADEA). The jury concluded, in response to special questions, that the defendants’ violations had been wilful. The jury awarded the plaintiff actual damages for lost wages and benefits ($270,422) and for emotional distress ($80,000), and also assessed punitive damages ($600,000). On the basis of G. L. c. 15IB, § 9, as amended through St. 1990, c. 395, the judge doubled the award of actual damages, and he also awarded $132,323 in attorney’s fees. See G. L. c. 15IB, § 9 (1990 ed.). An amended judgment was entered which awarded the plaintiff $590,844 in actual damages, and $600,000 in punitive damages, and $132,323 in attorney’s fees on his claims under G. L. c. 15IB, and $1 on his claim under the ADEA. Both sides have appealed, and we granted the plaintiff’s application for direct appellate review. In part I of this opinion, we deal with the issues pertaining to liability and a new trial, concluding that the jury’s liability verdict was warranted and that there is no basis for a new trial. In part II of the opinion, we discuss the issues relating to damages. We conclude that amendments to G. L. c. 15IB, § 9, which provide for punitive and multiple damages, should not have been applied retrospectively in this case and, consequently, that the plaintiff is not entitled to recover enhanced damages under State law. We discuss the appropriate measure of damages in an age discrimination case brought pursuant to G. L. c. 15IB. We conclude that the plaintiff is entitled to enhanced damages for lost wages and benefits under the ADEA. In part III of the opinion, we take up the issues relating to attorney’s fees and interest. I. Liability and New Trial Issues. We first discuss the defendants’ assertions that judgment notwithstanding the verdict (n.o.v.) should have entered in their favor or, at the very least, that they are entitled to a new trial. 1. The defendants argue that their motion for judgment n.o.v. should have been allowed because the evidence was insufficient, as matter of law, to warrant a finding by the jury that they had discharged the plaintiff in violation of age discrimination laws. At the time of his discharge, the plaintiff was fifty-one, and, consequently, within the class of persons (over forty years of age) protected by the age discrimination laws. G. L. c. 15IB, § 1 (8) (1990 ed.). The plaintiff presented evidence, which made out a prima facie case that his discharge was discriminatory. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 229 (1978); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 135 n.5 (1976). The defendants presented evidence which would have warranted a finding that the plaintiff was discharged for unsatisfactory job performance. See McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 435 (1989); Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 138. See also Trustees of Forbes Library v. Labor Relations Comm’n, 384 Mass. 559, 565-566 (1981). On the judgment n.o.v. point, therefore, the issue on appeal comes down to whether the evidence considered in the light most favorable to the plaintiff, and with all reasonable inferences drawn in his favor, see Boothby v. Texon, Inc., 414 Mass. 468, 470 (1993), warranted the jury’s finding that the plaintiff’s allegedly poor job performance was merely a pretext for a discharge actually based on concerns about his age. Under the applicable n.o.v. standard, the jury could have found the following. In August, 1980, the plaintiff joined Ebtec, located in Agawam, as manager of the company’s electron beam welding and laser “job shop.” The company was at that time a closely held corporation, which was owned by two individuals. Under the plaintiff’s management, the shop acquired new customers and sales and profits rose substantially. At the end of 1986, Ebtec was sold to Thermal Scientific, a British conglomerate. Thomas Liebermann was appointed to oversee Ebtec (and six other American operations owned by Thermal Scientific). Liebermann reported to Robert Huddie, who was responsible for all of Thermal Scientific’s American operations. In July, 1987, Liebermann promoted the plaintiff to executive vice president and general manager of Ebtec and gave the plaintiff specific goals in terms of pretax sales and profits. The plaintiff generally met those goals until the stock market “crash” of October, 1987, which had an adverse impact on many of the companies for which Ebtec performed services. In December, 1987, Liebermann evaluated the plaintiff. The evaluation was designed to identify for the plaintiff significant weaknesses in his management skills that would have to be addressed before the plaintiff’s promotion to president of Ebtec could be considered. Liebermann disclaimed any intent of terminating the plaintiff’s employment with Ebtec. According to Liebermann, the question was whether the plaintiff would work for Ebtec as a production manager or whether he would be promoted to president of Ebtec. Also in December, 1987, Liebermann decided that, because of changes in the company’s business goals caused largely by the October stock market crash, he would leave Thermal Scientific. He had conveyed this fact to Huddie by December, 1987, and had begun to disengage himself from the company’s operations. Huddie, not Liebermann, made the decision to terminate the plaintiff. On or about January 15, 1988, the plaintiff attended a meeting at which executives from Thermal Scientific’s American companies presented their budgets. Huddie presided over the meeting. The plaintiff testified that Huddie, reflecting on the reports that had been presented to him, commented that “there was a real problem in [Ebtec and another company] because both managers were old. One was in his fifties and the other was in his sixties, and it was absolutely necessary to get young management into these companies as soon as possible.” The plaintiff became concerned for his job at this meeting. He was terminated ten days later. His replacement, a thirty year old Thermal Scientific executive to whom the plaintiff had given basic courses in the technology that constituted Ebtec’s business, was given the title of president of Ebtec. There was additional evidence from which the jury reasonably could have inferred that Huddie desired to replace older managers with younger ones. Liebermann testified that Hud-die considered American age discrimination laws to be an unnecessary “fuss” and complained to him (Liebermann) about the age of certain managers in American Thermal Scientific companies. Liebermann also testified that he felt compelled to call the age discrimination laws to Huddie’s attention, and to insist that he, Liebermann, would not participate in any adverse employment decision based on an employee’s age. From this evidence, the jury reasonably could have inferred that Huddie had raised with Liebermann the possibility of an age-related discharge at a Thermal Scientific company under Liebermann’s supervision. In addition to this evidence of discriminatory intent, there was evidence from which the jury reasonably could have inferred that Huddie’s stated reason for terminating the plaintiff (unsatisfactory job performance in the sense of a failure to perform in relation to budgets and forecasts) was a pretext. The jury could have concluded that Ebtec’s declining profitability in November and December of 1987 was caused by the stock market crash, an event beyond the plaintiff’s control. There was evidence that the plaintiff’s superiors were fully aware of the effect of the stock market collapse on Ebtec’s business. The plaintiff indicated that he was discouraged from attempting to adjust his forecasts to reflect changed circumstances. The jury also could have concluded that other evidence concerning the plaintiff’s alleged poor performance was of little or no relevance, in light of Hud-die’s reason for the discharge. The jury’s verdict finding liability for discrimination under State and Federal law was supported by the evidence. 2. In February, 1991, the defendants moved for a firm trial date of either February 26, 1991, or on the first trial day in April, 1991, giving as a reason the conflicting travel schedules of their principal witnesses, Liebermann and Huddie. The motion judge scheduled the matter as first trial out in the March, 1991, inventory session. Because Huddie would be unavailable on this date, the defendants moved for reconsideration, seeking an April date, or, in the alternative, permission to videotape Huddie’s testimony. Permission was given to videotape Huddie’s deposition, and the videotape was shown to the jury as part of the. defendants’ case. The defendants nonetheless maintain that the absence of live testimony by Huddie so prejudiced their defense that a new trial is required. The scheduling of a trial is a matter within the sound discretion of a motion or trial judge. See Noble v. Mead-Morrison Mfg. Co., 237 Mass. 5, 16 (1921); Beninati v. Beninati, 18 Mass. App. Ct. 529, 534 (1984); Mass. R. Civ. P. 40 (a), 365 Mass. 802 (1974). “When [a] trial is . . . imminent as it was in this case, a judge may give weight to the public interest in the efficient operation of the trial list and to the interests of other parties who are ready for trial.” Castellucci v. United States Fidelity & Guar. Co., 372 Mass. 288, 292 (1977). Rule 40 (c) of the Massachusetts Rules of Civil Procedure, 365 Mass. 802 (1974), which addresses requests for a trial continuance based on the absence of a material witness, plainly contemplates testimony in the form of a deposition as a substitute for live testimony. Huddie’s videotaped deposition, which permitted the jury to observe his demeanor and tone, represented a reasonable accommodation between the defendants’ need for Huddle’s testimony, the plaintiffs interest in a prompt trial, and the efficient administration of the Superior Court trial list. It was not error to deny the defendants’ motion for a new trial on this basis. 3. The defendants claim that the plaintiffs attorney’s closing argument contained an improper appeal to regional bias. The defendants failed to object at trial to what constituted a relatively minor portion of the argument, despite the well-established rule that a closing argument which is considered to be improper should be called to the attention of the trial judge at once. Commonwealth v. Johnson, 374 Mass. 453, 458 (1978), and cases cited. The content of the criticized argument is not of significance. See Pryor v. Holiday Inns, Inc., 401 Mass. 506, 509 (1988). We decline to exercise our discretion to consider the claim of error now argued. Id. Rice v. James Hanrahan & Sons, 20 Mass. App. Ct. 701, 712 (1985). II. Damages Issues. As has been noted, the plaintiffs discharge occurred in January, 1988. The amendments to G. L. c. 151B, § 9, authorizing the recovery of punitive damages in a discrimination case, and multiple damages in an age discrimination case, were enacted in 1989 and 1990, respectively, subsequent to the plaintiffs discharge. In neither case did the Legislature direct that these amendments were to be given retrospective application. The defendants contend that, in the absence of lánguage mandating retrospective application, the new provisions increasing damages should not be applied to conduct occurring prior to their effective date, and consequently, that the plaintiff’s recovery of both multiple and punitive damages under G. L. c. 15IB, § 9, should be set aside. We agree with this contention. To clarify the damages questions in an age discrimination case under G. L. c. 15IB, we go on to conclude that a plaintiff who proves discrimination because of age is entitled to recover multiple damages only. We also conclude that the plaintiff is entitled to recover additional damages for lost wages and benefits under the provisions of the ADEA. 1. Whether a statute applies retrospectively is a question of legislative intent. In the absence of an express legislative directive, this court has usually applied “[t]he general rule of interpretation •. . . that all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication from their words, context or objects when considered in the light of the subject matter, the pre-existing state of the law and the effect upon existent rights, remedies and obligations. Doubtless all legislation commonly looks to the future, not to the past, and has no retroactive effect unless such effect manifestly is required by unequivocal terms. It is only statutes regulating practice, procedure and evidence, in short, those relating to remedies and not affecting substantive rights, that commonly are treated as operating retroactively, and as applying to pending actions or causes of action.” City Council of Waltham v. Vinciullo, 364 Mass. 624, 626 (1974), quoting Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3 (1914). See Austin v. Boston Univ. Hosp., 372 Mass. 654, 657 (1977); Kagan v. United Vacuum Appliance Corp., 357 Mass. 680, 683 (1970). Although this rule is easily stated, the distinction between legislation that concerns “substantive rights,” and legislation that concerns “procedures” and “remedies,” has proved to be difficult to draw. City Council of Waltham v. Vinciullo, supra at 627 & n.6. It appears from the context, and from a review of our prior decisions, that the term “remedies,” as it was used in Hanscom v. Malden & Melrose Gas Light Co., supra, has only encompassed essentially procedural legislation which preserves a remedy that might otherwise be lost, or which creates a new enforcement mechanism for remedying the impairment of an existing legal right. For example, retrospective application has been given to legislation extending the time for filing for an application for a tax abatement, Lindberg v. State Tax Comm’n, 335 Mass. 141, 143 (1956); to legislation modifying the requirements for filing an application for a tax abatement, Wynn v. Assessors of Boston, 281 Mass. 245, 249 (1932); and to legislation providing direct access to the courts to enforce preexisting legal rights, Selectmen of Amesbury v. Citizens Elec. St. Ry., 199 Mass. 394, 395 (1908). It would appear to be the rule in other jurisdictions that only this type of remedial legislation is given retrospective effect. See 1A Singer, Sutherland Statutory Construction § 22.36, at 301 (4th ed. 1985) (a statutory amendment “that affect [s] procedural rights — legal remedies — [is] construed to apply to all cases pending at the time of its enactment”). As have other jurisdictions, we have recognized that legislation limiting or increasing the measure of liability, while arguably remedial in the broad sense of that word, generally is considered to impair the substantive rights of a party who will be adversely affected by the legislation. In the absence of a provision mandating retrospective application, we have not assumed that such legislation applies to claims arising prior to enactment. See USM Corp. v. Marson Fastener Corp., 392 Mass. 334, 353 (1984) (suggesting that statute changing the measure of damages after tort has been committed should not be given retrospective effect); Austin v. Boston Univ. Hosp., supra at 657 (recognizing substantive aspect of legislation that imposes costs, and witness, expert, and attorney’s fees on an unsuccessful litigant); Cudlassi v. MacFarland, 304 Mass. 612, 613 (1939) (declining, in the absence of legislative directive, to give retrospective effect to statutory amendment eliminating double damages in tort case). See also Lavieri v. Ulysses, 149 Conn. 396, 402 (1962), and cases cited; LaBarre v. Daneault, 123 N.H. 267, 271-272 (1983). The large amount of the judgment entered in this case clearly demonstrates the force of the amendments to G. L. c. 151B, § 9, on a defendant’s potential liability. If the Legislature had intended the amendments to G. L. c. 15IB, § 9, providing enhanced damages to apply to cases pending at the time of their enactment, or to conduct occurring prior thereto,
Similar Rulings
Browse Related
Facing something similar at work?
Court rulings like this one are useful, but every situation is different. Take 2 minutes to see which laws may protect you — it's free, private, and no account is required to start.
This ruling information is sourced from public court records via CourtListener.com. Case outcomes, claim types, and summaries are extracted using AI analysis and may be incomplete or inaccurate. It is provided for informational and educational purposes only and does not constitute legal advice.
See something wrong, or named in this ruling and want it corrected or redacted? Request a correction.