Discrimination Cases

Nataly Minkina vs. Laurie A. Frankl & others. No. 13-P-1480. Suffolk. May 12, 2014. September 15, 2014. Present: Cypher, Kafker, & Hanlon, JJ. Attorney at Law, Malpractice, Withdrawal. Anti-Discrimination Law, Arbitration, Employment. Arbitration. Practice, Civil, Notice of appeal, Amendment of complaint, Costs. There was no merit to the contention by the defendants in a civil action that their motion for costs rendered the plaintiff’s subsequent notice of appeal premature or a nullity, where the judgment appealed from expressly included costs, and the defendants’ motion sought only to provide the court with the information necessary for the computation of the award. [288] In a civil action alleging that the defendant attorneys and law firm committed malpractice during their representation of the plaintiff in an employment discrimination matter, the judge did not err in granting summary judgment in favor of the defendants, where their failure to advocate for or anticipate a substantial change in law that required the overruling of a controlling precedent (here, the enforceability of an arbitration clause governing any controversy arising out of the termination of employment) could not serve as a basis for professional negligence (regardless of whether the defendants held themselves out to be employment law specialists); and where the plaintiff’s contention that she would have received a greater recovery had the case proceeded in court rather than in arbitration was speculative. [288-292] There was no merit to the argument of a plaintiff in a civil action that the defendant law firm committed a breach of its fiduciary duty when it discontinued its representation of her following a breakdown in the attorney-client relationship. [293] A trial court judge did not commit an abuse of discretion in denying a plaintiffs second motion to amend the complaint, filed three years after the first amended complaint, five months after discovery had closed, and while a summary judgment motion was pending. [293-294] Civil action commenced in the Superior Court Department on May 11, 2009. A motion to strike expert testimony was heard by Edward P. Leibensperger, J.; a motion for leave to file a second amended complaint was considered by Janet L. Sanders, J.; and the case was heard by Peter M. Lauriat, J., on a motion for summary judgment. Richard L. Neumeier for the plaintiff. Kevin G. Powers (Robert S. Mantell with him) for the defendants. Jonathan J. Margolis and Rodgers, Powers & Schwartz, LLP. Kafker, J. Nataly Minkina contends that her former counsel, Laurie A. Frankl, Jonathan J. Margolis, and Rodgers, Powers and Schwartz, LLP (hereinafter, collectively, RPS), committed legal malpractice during their representation of her in an employment discrimination action. More particularly, she claims that RPS mishandled its opposition to a motion to compel arbitration by failing to recognize that the reasoning in a then-controlling decision of this court, Mugnano-Bornstein v. Crowell, 42 Mass. App. Ct. 347 (1997) (Mugnano-Bornstein), would be rejected by the Supreme Judicial Court in a later decision, Warfield v. Beth Israel Deaconess Med. Center, Inc., 454 Mass. 390 (2009) (Warfield). Minkina also contends that RPS breached its fiduciary duty to her when it withdrew from her representation after she criticized the performance of Frankl and other lawyers in the firm and accused at least Frankl of unprofessional conduct. In addition, Minkina contends that the judge abused his discretion in denying her second motion to amend her complaint. For the reasons stated below, we affirm the decision of the Superior Court judge rejecting the malpractice and breach of fiduciary duty claims and allowing the defendants’ motion for summary judgment. We also conclude that the denial of the second motion to amend the complaint was not an abuse of discretion. Background. In 2002, Minkina was hired as a physician by the Affiliate Physicians Group of Beth Israel Deaconess Medical Center (APG). At that time, she executed an employment agreement that contained an arbitration clause. The clause provided: “In the event that any dispute arising out of or relating to this Agreement, including without limitation any dispute regarding the validity, breach or termination of this Agreement, should occur, the parties shall for a period of thirty (30) days meet and negotiate in good faith to resolve the dispute. Any dispute that is not resolved by the parties within thirty (30) days shall be finally settled by arbitration. . . . The parties irrevocably waive any right to redress any such dispute other than by such arbitration.” In 2003, Minkina, who was then represented by counsel other than RPS, filed charges of discrimination pursuant to G. L. c. 15 IB against APG with the Massachusetts Commission Against Discrimination (MCAD). In September, 2004, APG terminated her employment. In November, 2004, predecessor counsel removed Minkina’s MCAD action to the Superior Court. In January, 2005, APG filed its answer to Minkina’s complaint, moved to dismiss one count of the complaint, and commenced discovery. After APG’s motion to dismiss was denied and Minkina responded to APG’s first request for discovery, APG moved in June, 2005, to compel arbitration of the employment discrimination claims. By this time, Minkina had retained RPS to represent her. In its memorandum in support of its motion to compel arbitration, APG argued that the arbitration clause in Minkina’s employment agreement was broad, not narrow, and that the Appeals Court decision in Mugnano-Bornstein, supra, and the Supreme Judicial Court decision in Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 666-667 (2002) (Drywall Sys., Inc.), were controlling precedents requiring the arbitration of Minkina’s discrimination claims. In Mugnano-Bornstein, supra at 353, this court required the arbitration of G. L. c. 15IB claims based on an arbitration clause governing “any controversy concerning . . . termination of employment,” and in Drywall Sys., Inc., supra at 667, the Supreme Judicial Court required arbitration of claims under G. L. c. 93A based on an arbitration clause governing “[a]ny controversy or claim . . . arising out of or related to this [subcontract.” RPS did not argue that the arbitration clause at issue was narrower than the ones referenced in Mugnano-Bornstein and the other cases cited by APG and therefore not broad enough to encompass the discrimination claims. Rather, RPS contended that (1) the arbitration provision was unenforceable as it contained unconscionable prospective waivers of punitive damages and attorney’s fees, (2) APG had waived its right to demand arbitration by engaging in discovery and filing a motion to dismiss, (3) APG failed to meet the terms of the “Dispute Resolution” procedures set forth in the employment agreement, and (4) the arbitration clause did not apply to Minkina’s claims against a necessary party, APG’s president. In 2006, a judge in the Superior Court found Minkina’s G. L. c. 15 IB claim arbitrable. The judge relied on the “strong presumption of arbitrability” that attaches to broad arbitration clauses; the breadth of the language of the arbitration clause at issue here, which “encompasses not only claims based on the contract itself, but also . . . disputes arising out of the contractual relationship”; and the rule that “[statutory claims [including discrimination claims] also may be contractually limited to the arbitral forum,” as held by the Supreme Judicial Court in Drywall Sys., Inc., and the Appeals Court in Mugnano-Bornstein. The judge rejected the particular arguments made by RPS, although she concluded that attorney’s fees were recoverable. According to Minkina, on May 19, 2006, Frankl informed her that APG would be responsible for the payment of all arbitration fees, but four days later Frankl told Minkina that she was incorrect and that Minkina would be responsible for splitting the arbitration fees, requiring her to pay approximately $30,000. Thereafter, Minkina wrote to the partners of RPS via electronic mail message (e-mail) “to complain of gross negligence and unprofessionalism by an attorney of your firm.” In the e-mail, Minkina further stated that Frankl had “damaged my case and cost me thousands of dollars,” and was “more concerned about complying with APG[’s] attorney[’s] demands than helping my case.” Minkina also complained about the performance of other lawyers in the firm. She concluded the e-mail by stating, “I do not plan to choose another firm to represent me” and requested a meeting with RPS’s partners and that she be given replacement counsel, as she could not “tolerate [the] careless attitude” of her current attorney. That same day, RPS informed Minkina via e-mail that “it is clear that you have lost faith in us as your counsel. Accordingly, we shall withdraw from representing you. We shall, however, give you time to find new counsel.” By June 9, Minkina had retained new counsel. In July, 2006, Minkina filed a complaint with the office of bar counsel (OBC) contending that RPS violated the Massachusetts Rules of Professional Conduct when it advised her regarding the allocation of arbitration fees and when it withdrew its representation. As set forth in a letter to Minkina, an assistant bar counsel at the OBC concluded that “it was not unreasonable for [RPS] to determine that [Minkina’s] allegations [regarding Frankl’s legal advice] placed them in a position of conflict of interest and, as a result, that they were required to withdraw ... or, at the least, permitted to withdraw.” The assistant bar counsel further stated that the advice regarding the arbitration fees might nonetheless be the basis of a malpractice claim. A member of the Board of Bar Overseers denied a motion to reconsider the decision on withdrawal, and the Supreme Judicial Court declined an appeal of the decision. In March, 2009, the arbitrator found that APG had engaged in unlawful employment practices, and awarded Minkina approximately $266,000 in damages, fees, and costs. The arbitrator concluded that punitive damages were not recoverable — and that he would not have awarded them even if they were. Minkina did not move to vacate or modify the award. In May, 2009, Minkina filed a malpractice action against RPS, and in July, 2009, she filed a first amended complaint. In her first amended complaint, Minkina alleged that RPS, in filing Min-kina’s opposition to APG’s motion to compel arbitration, “neglected to raise important arguments that might have succeeded if raised, namely that an improper termination of Minkina’s employment negates the validity of the employment contract’s arbitration clause.” In addition, she alleged that RPS had withdrawn its representation prior to the arbitration and had improperly advised her regarding the subject of arbitration fees. Although eventually the arbitrator concluded that the arbitration fees were to be paid by APG, Minkina had been required to split the cost of the arbitration with APG, at least for a period of time. On July 27,2009, the Supreme Judicial Court issued its opinion in Warfield, 454 Mass. 390. There, the court held that for statutory discrimination claims under G. L. c. 15 IB to be arbitrable, they must be specifically referenced in the arbitration clause. Id. at 398. The court expressly overruled the Appeals Court’s analysis in Mugnano-Bornstein, which had rejected such a requirement. Warfield, supra at 397 & n.ll. More than two years later, in December, 2011, Minkina retained an expert, Samuel Estreicher, a New York University School of Law professor and director of the Center for Labor and Employment Law, who opined that “competent employment counsel would have made and pressed the argument that the arbitration clause in [Minkina’s] employment agreement with defendants in the [APG] [c]ose was a narrow one and did not authorize arbitration of employment discrimination and other statutory employment claims.” He further opined that “[w]ell before the issuance of the Massachusetts Supreme Judicial Court’s decision in Warfield . . . competent counsel would have understood that the Mugnano-Bornstein [decision,] ... on which the trial court in the [APG] [c]ose heavily relied, was plainly distinguishable, as the arbitration clause in that case referred to employment disputes and was not limited to claims arising under the employment agreement, as was true of Minkina’s arbitration agreement . . . .” He concluded: “Had Dr. Minkina been able to obtain a jury trial in this case, she would likely have obtained a significantly larger award than she in fact obtained from the arbitrator. Because of the potential availability of punitive damages, and other factors, competent defense counsel, fearing such a prospect, would likely have settled the case at a level in excess of the award she received from the arbitrator.” The assertion that Minkina would likely have obtained a greater recovery in court or through a settlement was struck by a judge in the Superior Court as speculative. RPS moved for summary judgment on all claims on June 29, 2012. On July 2, 2012, Minkina moved for leave to file a second amended complaint to add a G. L. c. 93A claim, contending that Frankl committed deceptive acts when she told Minkina that an American Arbitration Association case manager had informed Frankl that Minkina’s employment agreement was individually negotiated, and therefore, the arbitration costs would be split between the parties. RPS opposed the motion on multiple grounds, including that RPS would be prejudiced by the three-year delay in filing the second amended complaint, given RPS’s recent summary judgment motion and the close of discovery. The motion to amend was denied in July, 2012, for the reasons stated in RPS’s opposition. On April 9, 2013, an order entered allowing RPS’s motion for summary judgment. The motion judge concluded that the law existing at the time of the motion to compel arbitration, particularly Mugnano-Bornstein, supra, supported the enforcement of arbitration clauses, even where the clause did not explicitly mention G. L. c. 15 IB discrimination claims, and that Minkina’s assertion that she would have received greater damages in court than in arbitration was too speculative to support a claim for legal malpractice. The judge also rejected the breach of fiduciary duty claim arising out of RPS’s discontinuance of its representation, ruling that “Minkina’s strong criticism of Frankl’s performance, and her assertion that Frankl was unprofessional and may have committed legal malpractice, amounted to a breakdown of the attorney-client relationship sufficient to justify RPS’s withdrawal.” Judgment entered on April 10, 2013, dismissing the complaint against the defendants “with costs.” RPS served its motion for $5,949.12 in costs on April 23, 2013. On or about April 25, 2013, Minkina filed her notice of appeal of both the memorandum of decision and order on summary judgment (entered April 9, 2013), and the judgment (entered April 10, 2013). On August 1, 2013, the judge allowed the motion for costs, and awarded RPS $5,257.21. Discussion. 1. Notice of appeal and jurisdiction. As an initial matter, RPS contends that this court lacks jurisdiction to hear this appeal because Minkina’s April 25, 2013, notice of appeal of the memorandum of decision and order on judgment (entered April 9, 2013) as well as the judgment (entered April 10, 2013) was rendered premature and a nullity by RPS’s motion for costs, which it contends was a motion pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974). See Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999) (“A notice of appeal filed before the disposition of [a rule 59 motion] shall have no effect”). We disagree. The April 10, 2013, judgment provided for costs. Compare Lopes v. Peabody, 426 Mass. 1001, 1002 (1997) (where costs apparently were not requested and original judgment failed to assess costs, motion for costs filed nearly five months late treated as untimely pursuant to rule 59[e]). As an award of costs had been provided for in the judgment, RPS’s subsequent motion “for allowance of costs in the amount of $5,949.12” was directed only at the amount of costs. By appealing the judgment, which expressly included costs, Minkina preserved her right to appeal any particular award of costs. RPS’s motion did not seek to alter or amend the judgment, which already provided for costs; rather, it sought to provide the court with the “information necessary for the computation of [the costs] already awarded.” Liquor Liab. Joint Underwriting Assn, of Mass. v. Hermitage Ins. Co., 419 Mass. 316, 325 n.7 (1995). It therefore “does not involve a matter of such substance that consideration under rule 59(e) would be required.” Ibid. 2. Malpractice claim. Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). “To prevail on a claim of negligence by an attorney, a client must demonstrate that the attorney failed to exercise reasonable care and skill in handling the matter for which the attorney was retained ...; that the client has incurred a loss; and that the attorney’s negligence is the proximate cause of the loss . . . .” Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500 (2010), quoting from Colucci v. Rosen, Gold berg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987). On appeal, Minkina argues that RPS committed malpractice by not recognizing that Mugnano-Bomstein was distinguishable or incorrectly decided, and that if RPS had avoided arbitration, she would have been awarded more damages in a judicial forum, where punitive damages were available. We conclude that it is not malpractice to fail to advocate for or anticipate a substantial change in law requiring the overruling of a controlling precedent. See Davis v. Damrell, 119 Cal. App. 3d 883, 888 (1981) (failure to anticipate “180 degrees shift in law cannot serve as the basis for professional negligence” [citation omitted]); Kaufman v. Stephen Cahen, PA., 507 So. 2d 1152, 1153 (Fla. Dist. Ct. App. 1987) (“[A]n attorney’s failure to accurately predict changes on an unsettled point of law is not actionable”); Howard v. Sweeney, 27 Ohio App. 3d 41, 43-44 (1985) (“Counsel’s failure to predict a subsequent change in a settled point of law cannot serve as a foundation for professional negligence”); 4 Mallen & Smith, Legal Malpractice § 33.5, at 656-657 & n.5 (2014) (“The rule is that an attorney is not liable for an error in judgment concerning a proposition of law that is debatable, uncertain, unsettled, or tactical”). At the time of the motion to compel arbitration, the Appeals Court decision in Mugnano-Bomstein, 42 Mass. App. Ct. at 352, requiring the arbitration of G. L. c. 15 IB claims based on an arbitration clause governing any controversy arising out of the termination of employment, and the Supreme Judicial Court decision in Drywall Sys., Inc., 435 Mass, at 667, requiring the arbitration of G. L. c. 93A claims based on an arbitration provision governing “[a]ny controversy or claim . . . arising out of or related to this [subcontract,” were two of the closest controlling cases. Both cases referred to the respective arbitration clauses, whether it be controversies arising out of or related to employment or an agreement, as “broad.” Both cases discussed the “presumption of arbitrability in the sense that [a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage .... Such a presumption is particularly applicable where the clause is . . . broad.” Drywall Sys., Inc., supra at 666 (ci

Deborah Kiely vs. Teradyne, Inc. Nos. 13-P-505 & 13-P-1217. Suffolk. March 7, 2014. - June 6, 2014. Present: Kafker, Fecteau, & Agnes, JJ. Anti-Discrimination Law, Employment, Sex, Damages, Attorney’s fees. Employment, Discrimination, Retaliation. Damages, Under anti-discrimination law, Attorney’s fees. Practice, Civil, Judgment notwithstanding verdict, Instructions to jury. In an employment discrimination action in which the jury found in favor of the plaintiff on her retaliation claim but declined to award any compensatory damages, the trial judge did not err in allowing the defendant’s post-judgment motion to vacate the jury’s award of punitive damages, where the judge thoroughly addressed the relevant factors and correctly concluded that the evidence, viewed most favorably to the plaintiff, did not show conduct by the defendant that was so outrageous or egregious as to warrant public condemnation and punishment [434-441]; further, in these circumstances, the judge correctly denied the plaintiff’s postjudgment motion for attorney’s fees under G. L. c. 151B, § 9, where a finding of retaliation alone, unaccompanied by any form of relief or recovery, could not support an award of attorney’s fees under that statute [442-448], In a civil action alleging claims of gender discrimination and retaliation in employment arising from the defendant’s decision not to rehire the plaintiff, there was no error in the judge’s decision not to give a separate instruction regarding the defendant’s termination of the plaintiff’s employment, where the plaintiff did not allege, and the evidence did not support, a claim that her termination, by itself, was discriminatory [441-442]; likewise, the judge’s decision to not instruct the jury regarding the plaintiff’s statistical evidence was soundly within her discretion and consistent with the record evidence [442], In a civil action alleging, inter alla, a claim of retaliation in employment arising from the defendant’s decision not to rehire the plaintiff, the trial judge did not err in denying the defendant’s motion for judgment notwithstanding the verdict, where the evidence, although not compelling, was sufficient to retain the plaintiff’s verdict. [442] Civil action commenced in the Superior Court Department on December 30, 2008. The case was tried before Geraldine S. Hines, J., and motions for judgment notwithstanding the verdict and for attorney’s fees were heard by her. Emma Marion Quinn-Judge for the plaintiff. Jonathan D. Rosenfeld for the defendant. James A.W. Shaw, for National Employment Lawyers Association & others, amici curiae, submitted a brief. Fecteau, J. These two separately docketed appeals arise from the same underlying case, namely, claims brought by the plaintiff Deborah Kiely against the defendant, Teradyne, Inc. (Teradyne), for gender discrimination and retaliation. After an eight-day trial, the jury found for Teradyne on Kiely’s discrimination claim and for Kiely on her retaliation claim; although Kiely failed to obtain any award of compensatory damages from the jury, they did award her $1.1 million in punitive damages. Acting upon Teradyne’s timely postjudgment motion under Mass.R. Civ.P. 50(b), as amended, 428 Mass. 1402 (1998), the trial judge denied Teradyne’s request for full judgment notwithstanding the verdict (judgment n.o.v.) but allowed its alternative request to vacate, in its entirety, the jury’s award of punitive damages. The judge also denied Kiely’s motion for attorney’s fees under G. L. c. 151B, § 9, as she was not a “prevailing party.” Case No. 13-P-505 concerns Kiely’s appeal from the modified judgment, in which she contends that her gender discrimination claim must be remanded for a new trial due to the trial judge’s failure to give certain jury instructions and that the judge erred in vacating the award of punitive damages on the retaliation claim. In its cross appeal, Teradyne contends that the judge erred in denying its motion for judgment n.o.v. as to Kiely’s retaliation claim. We discern no error in the trial judge’s jury instructions, her decision to vacate the jury’s award of punitive damages, or her denial of the defendant’s motion for judgment n.o.v. In No. 13-P-1217, Kiely contends separately that the judge erred in denying her postjudgment motion for attorney’s fees under G. L. c. 151B, § 9, even in the absence of compensatory or punitive damages. We disagree and affirm this order. 1. Background. Kiely worked at Teradyne from 1982 until 2006, primarily as a test technician in Teradyne’s global customer services (GCS) department, which was responsible for repairing computer circuit boards returned to Teradyne from its customers around the world. In 2004, Kiely was promoted to group leader in the GCS repair group, a position that involved less repair work and more administrative duties. Between 2000 and 2006, by a series of layoffs, Teradyne reduced the number of GCS test technicians from approximately thirty-one to three. Kiely survived these layoffs until November 2, 2006, when the last group of three test technicians, Kiely, Dennis Hodgdon, and Steve Senecal, were told they would be laid off effective December 2, 2006. Kiely filed a gender discrimination charge before the Massachusetts Commission Against Discrimination (MCAD) on November 21, 2006, with notice being sent to Teradyne’s general counsel’s office and a human resources (HR) manager, Bill Bums. Shortly after these layoffs, Teradyne’s assembly test division (ATD), a different department from GCS where Kiely had been working, recognized a need for two test technicians to service a particular account. Jay Fitton, a manager in the ATD department, was designated to make the hiring decisions; he learned that Kiely, Hodgdon, and Senecal were the last three employees to have been let go from GCS and so he considered them for the two positions. Contrary to Teradyne’s usual practice, none of the three was offered an interview or told that they were being considered for the newly available positions. Bums, the HR manager, instmcted Susan Blair, another HR manager, to tell Fitton to document the hiring decision. This directive was also a departure from Teradyne’s typical hiring practice. Fitton testified, without contradiction, that the HR department never explained the reasons why he was told to document the hiring process or that Kiely had filed a discrimination charge at the MCAD. Ultimately, the ATD department rehired Hodgdon, by December 6, 2006, and Senecal, by January 15, 2007. Fitton admitted that his inquiries concluded, as a practical matter, after learning of the technical skills of Hodgdon and Senecal, but that he had not learned of Kiely’s. In a memorandum explaining his decision, Fitton stated he based his decision to rehire Hodgdon and Senecal on their superior qualifications as test technicians and on the fact that Kiely’s most recent experience had been mostly administrative. 2. Discussion, a. Punitive damages. We first address Kiely’s claim that the trial judge erred in allowing Teradyne’s postjudgment motion to vacate the jury’s award of punitive damages. When considering a defendant’s motion for judgment n.o.v., “the evidence is viewed in the light most favorable to the plaintiff, and all evidence favorable to the [defendant] is disregarded.” Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. 787, 791 (2007). The verdict must be sustained if “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.” Haddad v. WalMart Stores, Inc. (No. 1), 455 Mass. 91, 94 n.5 (2009), quoting from Boothby v. Texon, Inc., 414 Mass. 468, 470 (1993). Motions for judgment n.o.v. should be granted “cautiously and sparingly,” Wright & Miller, Federal Practice & Procedure § 2524, at 248 (3d ed. 2008), and should be granted only if the trial judge is satisfied that the jury “failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law,” Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 127 (1992), quoting from Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, cert, denied, 493 U.S. 894 (1989). However, a party cannot avoid entry of judgment n.o.v. if any essential element of her case rests on a “mere scintilla” of evidence. Stapleton v. Macchi, 401 Mass. 725, 728 (1988), quoting from Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 59 (1948). “Chapter 151B provides for the award of punitive damages in appropriate cases. Such damages ‘may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.’ ” Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. at 795, quoting from Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 17a (1998). “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 v. Wal-Mart Stores, Inc. (No. 1), 455 Mass, at 107, quoting from Dartt v. Browning-Ferris Indus., Inc. (Mass.), supra at 16. Nonetheless, “the award of punitive damages cannot be left to the unguided discretion of the jury.” Bain v. Springfield, 424 Mass. 758, 769 (1997). Such a review of punitive damages is essential given that they implicate constitutional principles. As the Supreme Judicial Court stated in Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 412-413 (2013) (citations omitted), “The due process clause of the Fourteenth Amendment to the United States Constitution . . . prohibits the imposition of a ‘ “grossly excessive” punishment’ on a tortfeasor. ‘Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.’ ” Accordingly, “[t]o the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property.” Id. at 413, quoting from State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003). In Haddad v. Wal-Mart Stores, Inc. (No. 1), 455 Mass, at 110-111 (Haddad), the Supreme Judicial Court articulated the standard for an award of punitive damages under G. L. c. 151B: “Punitive damages may be awarded only where the defendant’s conduct is outrageous or egregious. Punitive damages are warranted where the conduct is so offensive that it justifies punishment and not merely compensation. In making an award of punitive damages, the fact finder should determine that the award is needed to deter such behavior toward the class of which plaintiff is a member, or that the defendant’s behavior is so egregious that it warrants public condemnation and punishment.” Whether a plaintiff has met this standard of “outrageous or egregious” conduct is to be measured by applying a number of nonexclusive factors set out in Haddad, supra at 111: (1) “whether there was a conscious or purposeful effort to demean or diminish the class of which the plaintiff is a part (or the plaintiff because he or she is a member of the class)”; (2) “whether the defendant was aware that the discriminatory conduct would likely cause serious harm, or recklessly disregarded the likelihood that serious harm would arise”; (3) “the actual harm to the plaintiff”; (4) “the defendant’s conduct after learning that the initial conduct would likely cause harm”; and (5) “the duration of the wrongful conduct and any concealment of that conduct by the defendant.” In her memorandum, the trial judge thoroughly addressed the Haddad factors and concluded, correctly in our view, that the evidence, even viewed most favorably to Kiely, did not show conduct by Teradyne that was so outrageous or egregious as to warrant public condemnation and punishment. As an initial matter, we reject Kiely’s argument that a showing on a single Haddad factor is sufficient to support an award of punitive damages. Such a position directly conflicts with the settled principle that “mere liability” is insufficient to sustain an award for punitive damages. Id. at 110. If a single factor, like factor three, actual harm to the plaintiff, id. at 111, was sufficient to uphold such an award, then punitive damages could be awarded in virtually every discrimination case in which a jury awards some compensatory damages. We also note that the judge considered not giving an instruction on punitive damages as she doubted whether the evidence presented at trial supported such an award. However, in an abundance of caution, the trial judge reasoned the better course was to submit the question to the jury to avoid the possibility that a reversal would require another jury trial. The judge wisely waited until after the close of evidence, the verdict, and the parties’ postverdict briefing to correctly conclude upon further reflection that the award of punitive damages could not be sustained. As the judge noted, only one of the Haddad factors weighs in favor of Kiely. As to the first factor, the jury’s rejection of Kiely’s gender discrimination claim seriously undermines any suggestion that Teradyne’s action in failing to rehire Kiely was part of a conscious or purposeful effort to demean females as a class (or to demean Kiely because of being female). Nevertheless, we note that the Supreme Judicial Court fashioned the Haddad standard “specifically for discrimination claims,” 455 Mass, at 110, and therefore, this factor may be less relevant in a retaliation case such as this, where the question is whether Kiely was singled out for engaging in a protected activity, rather than being part of a protected class. Second, the jury could reasonably have concluded that Teradyne was aware or should have known that not rehiring Kiely would inflict serious harm (the second Haddad factor). Teradyne was aware that Kiely was seeking reemployment, as she inquired about open positions at least three times. Kiely also had spent her entire technical career at Teradyne and was grandfathered into generous benefits. Although factor two favors Kiely, importantly, the jury found no actual harm (the third Haddad factor) in that they awarded no compensatory damages. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 827 (1997) (“Where, as here, there is no cap on punitive damages, a judge or an appellate court must scrutinize the relationship between actual damages and the award of punitive damages”). Contrary to Kiely’s argument, there is nothing in the record to suggest that the jury were confused about the damages that they could award and how they should apportion them. Kiely’s contention that the jury may have folded damages for the harm she suffered into their award of punitive damages is mere speculation. The jury instructions clearly described and delineated the damages — compensatory and punitive — available for their consideration; moreover, the special verdict form differentiated between the separate forms of damages. Most significant is the lack of evidence as to Haddad factors four and five in that there was no evidence at trial that the defendant took any adverse action against Kiely beyond the retaliation itself. Kiely asserts that the jury’s apparent disbelief of Fitton’s testimony that he was unaware of Kiely’s MCAD complaint at the time he made the rehiring decision, which is the apparent basis for the retaliation verdict, is also proof that Teradyne attempted to cover up its wrongdoing. However, the fact that the jury drew an inference against Fit-ton does not equate with positive evidence that he lied or that Teradyne orchestrated a cover-up. Since there is no affirmative evidence, beyond this inference, that the defendant orchestrated a cover-up of its wrongdoing, or that there were other aggravating factors beyond the retaliation itself, the jury’s award of punitive damages cannot stand. See, e.g., Dalrymple v. Winthrop, 50 Mass. App. Ct. 611, 621 (2000) (punitive damages warranted where defendant police chief who was “charged with the public duty to enforce the law equally [was] shown to have deliberately violated it for reprehensible reasons”); Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. at 796-797 (punitive damages upheld where there was affirmative evidence of attempted concealment of wrongdoing and where defendant had public duty to enforce law equally). This is especially true where, as mentioned above, the jury found no actual harm to Kiely. See Aleo v. SLB Toys USA, Inc., 466 Mass, at 415, quoting from BMW of N. America, Inc. v. Gore, 517 U.S. 559, 580 (1996) (“The second and perhaps most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff”). Therefore, this case is in contrast to those cases where there was affirmative evidence of an attempted concealment of wrongful conduct. For example, in Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. at 798, this court upheld an award of punitive damages where the jury could have found that a deputy superintendent’s testimony was false and was designed to facilitate a cover-up of her wrongdoing. In that case, the city’s deputy superintendent of personnel, Flanagan, made the decision not to rehire the plaintiff, Ciccarelli, four days after learning that Ciccarelli appeared on the witness list on behalf of a coworker, Kealy, in Kealy’s MCAD case against the school district. Id. at 789-790, 796. Flanagan claimed her reason for failing to rehire Ciccarelli was that Ciccarelli had not completed coursework toward advanced certification, despite the fact that this was the first criticism of Ciccarelli’s progress and she still had three years to complete the coursework. Id. at 789-790. Significantly, Flanagan was an active participant in the Kealy case and was even present at the defense table when Ciccarelli testified at Kealy’s MCAD hearing in 1997. Id. at 794 & n.3. However, at trial in Ciccarelli’s court case, Flanagan testified that, until her deposition in 2002, she was unaware that Ciccarelli had testified on Kealy’s behalf. Id. at 790-791. Therefore, in Ciccarelli, there was affirmative evidence that Flanagan not only lied on the stand about her recollection of Ciccarelli’s role in the MCAD case, but also fabricated an excuse for her wrongful conduct in failing to rehire Ciccarelli. See Hall v. Ochs, 817 F.2d 920, 928 (1st Cir. 1987) (“[A] factfinder might infer that the stark clash could not have resulted from innocent misrecollection, and that its intentional quality intensified any need the jury may have found for punishment and deterrence”). Likewise, in Hall v. Ochs, supra at 927-928, the court upheld an award of punitive damages where the defendant police officers argued that the plaintiff’s testimony against them was deliberately false and they provided a highly suspect police report to support their allegations. By contrast, in this case, the defendant’s conduct after learning that its failure to rehire Kiely would likely cause harm, and whether the defendant purposely concealed its wrongful conduct, were, as the judge noted, “left to the realm of speculation as these issues were not addressed directly or indirectly by the evidence at trial.” As the Supreme Judicial Court made clear in Haddad, 455 Mass, at 110, “[t]o sustain an award of punitive damages under G. L. c. 151B, § 4, a finding of intentional discrimination alone is not sufficient.” Likewise here, a finding of retaliation alone is insufficient to support the jury’s award of $1.1 million in punitive damages; “[a]n award of punitive damages requires a heightened finding beyond mere liability and also beyond a knowing violation of the statute