Discrimination Cases

Kimberly Dahms vs. Cognex Corporation & others. Middlesex. May 5, 2009. October 15, 2009. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, & Gants, JJ. Employment, Sexual harassment. Evidence, Settlement offer, Judicial discretion, Relevancy and materiality, Hearsay, State of mind. Practice, Civil, Instructions to jury. At the trial of a civil complaint alleging, inter alla, sexual harassment in employment and retaliation, the judge did not err in allowing the defendants (the corporate employer and one of its officers) to introduce in evidence statements made during settlement negotiations on a claim that the plaintiff filed with the Massachusetts Commission Against Discrimination, where the statements were probative of whether the work restrictions imposed on the plaintiff subsequent to the filing of that claim were imposed for a nonretaliatory purpose. [198-199] At the trial of a civil complaint alleging, inter alla, sexual harassment in employment and retaliation, the judge did not abuse his discretion in allowing the introduction of evidence regarding the plaintiff’s clothing, speech, and conduct, where the plaintiff’s counsel was the first to mention evidence of this type and introduced photographs of the plaintiff and other employees of the corporate defendant in various party costumes; where such evidence was probative of whether the plaintiff was subjectively offended by her work environment or by the conduct of one of the individual defendants, and was not admitted as character evidence; and where some of that evidence was also relevant to show another individual defendant’s state of mind. [199-202] At the trial of a civil complaint alleging, inter aha, sexual harassment in employment and retaliation, the judge’s exclusion of a certain witness’s testimony about the substance of a telephone conversation did not rise to the level of an abuse of discretion, where the judge permitted the witness to testify that the plaintiff contacted her and was upset on the telephone. [202-204] The judge at a civil trial did not abuse his discretion in declining to take judicial notice of the release date of a movie, or in denying a request for rebuttal testimony regarding the date of the movie’s release, where the party seeking to introduce such testimony had not proposed a proper method for introducing such evidence before resting its case-in-chief. [204] At the trial of a civil complaint alleging, inter alla, sexual harassment in employment and retaliation, although the judge’s instruction on the claim that two of the individual defendants created a hostile work environment contained error, the verdict would not have differed absent the error. [204-208] Civil action commenced in the Superior Court Department on June 24, 1999. The case was tried before Stephen E. Neel, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Wendy H. Sibbison for the plaintiff. Joan A. Lukey (Elizabeth E. Feeherry with her) for Cognex Corporation & another. Justine H. Brousseau for John J. Rogers, Jr. Rebecca G. Pontikes, Tara M. Swartz, & Jonathan J. Margolis, for Massachusetts Chapter of the National Employment Lawyers Association, amicus curiae, submitted a brief. Catherine C. Ziehl & Beverly I. Ward, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Robert J. Shillman and John J. Rogers, Jr. Cordy, J. Kimberly Dahms, an employee of Cognex Corporation (Cognex), filed a civil complaint alleging that John J. Rogers, an officer of Cognex, subjected her to “quid pro quo” sexual harassment over the course of several years in violation of G. L. c. 151B, § 4 (16A); Cognex and Robert J. Shillman, the chief executive officer of Cognex, aided and abetted Rogers’s harassment by failing promptly to investigate his conduct and take corrective measures to stop it; Rogers and Shillman created a hostile work environment in violation of G. L. c. 151B, § 4 (16A); and all three defendants wrongfully retaliated against her in violation of G. L. c. 151B, § 4 (4), because she reported being sexually harassed and filed a charge with the Massachusetts Commission Against Discrimination (MCAD). She also claimed that Rogers was liable for assault, battery, and intentional infliction of emotional distress. The trial commenced on October 1, 2003, and on November 10, the jury returned a verdict for the defendants on all counts. Dahms appealed, arguing that the judge erred in allowing certain evidence to be introduced, in excluding certain other evidence, and in instructing the jury on hostile work environment sexual harassment. We transferred the case from the Appeals Court on our own motion. We affirm. 1. The trial. The following evidence was introduced at trial. In 1981, Shillman cofounded Cognex, a company that designs and manufactures computer systems that can “see” their surroundings. Dahms, who held a bachelor of science degree in computer engineering, was hired by Cognex in 1990 and by 1996 had become its director of customer satisfaction. In her position at Cognex, Dahms was subject to a noncompete agreement. Dahms reported to Patrick Alias, the executive vice-president of sales and marketing at Cognex, who reported to Shillman. Rogers, a certified public accountant, joined Cognex in 1991 and, at different times, held the titles of vice-president of finance and administration, chief financial officer, and treasurer. In 1996, Rogers moved to the town where Dahms lived, and the two sometimes traveled to work together. Dahms testified that she and Rogers began discussing the failure of one of his recent romantic relationships, and that Rogers was “heart-broken.” Rogers testified that they also discussed Dahms’s boy friend at that time, a Cognex engineer named Michael Cook, and that from the summer of 1996 until the summer of 1997 they frequently discussed their personal lives and relationships. Much of the trial focused on the broadening of the relationship between Rogers and Dahms in 1996 and 1997. Dahms testified that she and Rogers “became friendly” and sometimes saw each other outside of work. Marilyn Matz, who at the time of trial was a senior vice-president in charge of engineering at Cognex, testified that Dahms and Rogers appeared to be friends, and that they “chatted” and “danced at parties.” Jo Ann Woodyard, vice-president of corporate employee services at Cognex (including human resources and corporate communications), testified that Dahms “obviously had a friendship with [Rogers],” and that during the first half of 1997, she increasingly saw Dahms socialize with Rogers at company events, at times placing a “hand on the [other’s] arm” and frequently socializing in hallways and in meetings. She said Dahms appeared “happy” and “friendly.” She also reported often seeing Dahms in Rogers’s office with the door closed. Dahms testified that Rogers asked her to accompany him to his high school reunion and that this made her uncomfortable. She also testified that he asked to spend a weekend with her in her rented ski house; Rogers denied this. Dahms further testified that she never had any romantic interest in Rogers; Rogers testified that she initiated a first kiss, and that she “had very strong feelings” for him. As of January, 1997, Rogers was dating a woman whom he later married. By the spring, 1997, Dahms was living with Cook, whom she later married. Around that time, Dahms began receiving voicemails from Rogers, which she recorded and kept; he described her as beautiful, said that he dreamed of her, and said that he wanted to kiss her. Rogers testified that Dahms left him voicemails with a similar tone, but that he did not have any reason to record them. Dahms denied that she had left such voice-mails for Rogers. In March, 1997, Dahms and Rogers took a business trip to Japan. She testified that at dinner one night, he told her that he would have a role in her next promotion. He had a lot to drink that night, she said, and he later tried to push open the door to her hotel room; she shut the door and locked it, and thirty minutes later he returned and pounded on the door. Dahms was upset by this and telephoned a friend, Denise Donovan, in the United States, to talk about it. Rogers denied Dahms’s version of events, testifying that she invited him to her room that night, and that he left the room without incident. Finally, Dahms and Rogers testified that they went on a rafting trip in June, 1997, together with their future spouses. Dahms said that the trip was uneventful, except that Rogers once stated that he was “the guy who decided how much money [Cook] and [Dahms] made.” Rogers said that Dahms was excited about the trip, and that he and Dahms talked about how they might be better suited for each other than the people they were dating at the time because they both enjoyed outdoor activities. After the rafting trip, Dahms testified, she ended all nonwork contact with Rogers. Soon thereafter, Rogers registered complaints about Dahms to her direct supervisor, Alias, on her use of a company credit card, her travel expenses, and her criticism concerning an unsuccessful Cognex project. Dahms told Alias in August, 1997, that such criticism might not be objective because she had told Rogers that she “didn’t want to date him.” In September, 1997, Dahms approached Shillman to discuss Rogers’s conduct, and played the voicemails for him. Shillman was “outraged” and “distraught” that “Rogers had gotten involved with a female at Cognex against [his] specific orders.” He began pacing around his office, and told Dahms that “this would be the last time that Mr. Rogers would do that.” He told Dahms that he would fire Rogers if she wished; she initially did not respond, but later told Shillman that she did not want him to fire Rogers. He asked Dahms to write a summary of Rogers’s actions, and to deliver to him copies of the tape recordings of the voicemails. Approximately one month later, Dahms sent Shillman the tapes and a two-page memorandum highlighting Rogers’s conduct. After the meeting with Dahms, Shillman began an investigation into Rogers’s conduct, and reminded Rogers that he was prohibited from engaging in any type of romantic relationship with a Cognex employee. He did not inform Rogers of Dahms’s complaint because she had asked him to keep the report confidential. Rogers lied to Shillman, saying that he had not “asked anybody out at Cognex.” Shillman testified that he believed Rogers had “misbehaved,” but struggled over the proper response in light of Dahms’s request that Rogers not be fired. Shillman then approached Woodyard for advice; she surprised him by saying he should “take a step back” before acting. She told him that Dahms and Rogers “had a very close relationship,” and had had dinners and dates together. He testified that in light of this information (which he was told was “company knowledge”), he was “confused why [Dahms] would make these claims.” He began asking Cognex employees about their relationship, and learned that Dahms had cooked food for Rogers; that they went on skiing, rafting, and other trips together; that they had gone on double-dates together; and that they visited each others’ homes. He testified that at this point, although he was still inclined to fire Rogers for becoming involved with a Cognex employee, he had concluded that Rogers’s “voice-mails were wanted, not unwanted,” and that Dahms was “making a false claim” about the harassment. He continued to weigh his response to Rogers’s behavior, and checked in with Dahms approximately five times in the months following the receipt of her memorandum to see if Rogers was bothering her in any way; she said he was not. There were no new developments regarding Dahms’s harassment claims, and Shillman testified that by 1998 he “was comfortable that the matter of John Rogers and [Dahms] was over.” On May 13, 1998, Cognex held a meeting with an important customer. The customer had reported serious problems with some Cognex products, and requested the meeting to discuss how Cognex would solve them. During the meeting, several Cognex employees gave presentations outlining and discussing the project from various points of view. Shillman testified that when Dahms stood to give her own presentation, she stated that the problems were caused by Matz, who was in the room. This, Shillman testified, angered him, and that it was “frankly the worst thing that can happen in front of a customer.” He pulled Dahms aside in the parking lot as they were leaving the meeting, and told her that he was disappointed that she would “blame other people in the company in front of a customer.” In response, she said, “Bob, I want you to pay my legal fees,” referring to her having consulted with a lawyer in the summer of 1997 about a possible harassment claim arising from Rogers’s conduct. He said that he would consider paying them if she submitted receipts, but that her legal claim was not connected to her behavior in the meeting with the customer. One month later, she submitted legal bills totaling $4,500. Shillman then called Dahms to a meeting, and offered her $5,000 and 10,000 shares of Cognex stock if she would agree to release the company and its officers and employees from any claims of harassment she might have arising out of Rogers’s conduct. She rejected the offer. Dahms filed a complaint with the MCAD on August 7, 1998. In addition to sexual harassment claims against Rogers, the complaint alleged that Cognex had created a sexually hostile work environment, and that Shillman (personally) had both sexually harassed Dahms and had created a hostile work environment.* Shillman testified that he was shocked to be named personally in the MCAD complaint, that he had never sexually harassed anyone, and that he knew the claims against him were false. At that point, he said, he began gathering evidence to defend himself. He sent an electronic mail message (e-mail) to Woodyard asking her for copies of photographs and videotapes of Dahms, descriptions of any complaints employees had made about Dahms, and a “list of rumors/things that you’ve heard about [Dahms] . . . with some information about how we can track these rumors down.” He testified that he sought to demonstrate that “she enjoyed being at the company,” and that “she was an active participant and enjoyed the culture of the company,” which, as others described it, was based on a “work hard, play hard” team building philosophy. Over the next few months, Dahms’s attorney and the defendants sent several letters to each other in an attempt to negotiate a settlement of the MCAD claim. On August 21,1998, Dahms’s attorney outlined the terms that Dahms would accept in settlement, and also wrote that “it is our position that a court would not be likely to enforce a non-compete agreement given the egregious behavior of the company.” On September 15, Dahms’s attorney wrote that “Ms. Dahms will not agree to abide by the non-compete agreement, which would preclude her from finding any meaningful employment for the next two years. As previously stated to you, we believe Cognex has very little likelihood of enforcing the agreement . . . .’’On October 14, Dahms’s attorney sent a new settlement offer to counsel for Cognex, writing that, “[w]ith regard to the suggestion of Ms. Dahms remaining with Cognex, that is not an option.” None of these letters was introduced in evidence. Shillman then wrote a letter to Dahms on October 27, 1998, stating that in an October 7 meeting and in the previous letters from “your attorney,” Dahms had made “unequivocal statements that [she] would not remain at Cognex under any circumstances and that it simply was not open for discussion,” and had “expressed insistence that [she] intended] not to be bound by the non-compete provisions” that she signed when joining the company. As a consequence, he wrote, while Dahms remained an employee of Cognex, her access would be restricted, including access to the physical facility, proprietary information, and strategic planning. She would be required to leave Cognex by 6:30 p.m. each day and to leave meetings when strategic discussions began, and her access to computer files would be limited to those deemed necessary for her work. Shillman testified that the restrictions were necessary only because Dahms had stated an intention to leave the company and compete with it, and that he personally informed Dahms that the restrictions would be lifted “if she would reaffirm her non-compete commitment.” On June 24, 1999, Dahms filed the present civil complaint, and alleged that these restrictions (among other things) constituted retaliation for the filing of her MCAD complaint in August, 1998. Over the ensuing months, Shillman testified that Dahms spent a large portion of each day at Cognex working on her legal case, and that she was “inundat[ing]” coworkers with e-mails and voicemails about her claims. Alias testified that Dahms came to work less frequently, and was not working well with her Cognex peers. She was terminated on June 6, 2000; Alias testified that he made the decision to terminate her because he “wasn’t able to make her work.” 2. Discussion. On appeal, Dahms argues that the judge committed five errors that alone or in combination require a new trial: (1) allowing the defendants to introduce in evidence references to settlement negotiations; (2) admitting evidence of Dahms’s dress, speech, and conduct, which she contends was inadmissible “character and propensity evidence”; (3) excluding Denise Donovan’s testimony about the substance of Dahms’s telephone call to her from Japan; (4) excluding evidence of the general release date of a movie, a matter, Dahms contends, that was relevant to Rogers’s credibility; and (5) instructing the jury to enter a judgment for the defendants on the hostile work environment claim if Dahms was “a willing participant in sexual behavior in her workplace.” a. Evidence referring to settlement negotiations. Dahms argues that the judge improperly allowed in evidence Shillman’s October 27, 1998, letter and his related testimony on Dahms’s intention to leave and compete with the company, thereby improperly presenting the contents of a settlement negotiation to the jury. “We do not disturb a judge’s decision to admit evidence absent an abuse of discretion or other legal error.” Zucco v. Kane, 439 Mass. 503, 507 (2003). Typically, offers of settlement are inadmissible to prove or disprove a defendant’s liability. Id. at 509. This rule attempts “to encourage settlements by limiting the collateral consequences of a decision to compromise.” Id. There are, however, exceptions to that rule. First, factual statements made during the course of settlement negotiations are admissible. See M.S. Brodin & M. Avery, Massachusetts Evidence § 4.6, at 183 (8th ed. 2007), and cases cited. Second, evidence regarding the settlement may be admissible if it “is relevant for some other purpose .... There may be situations ... in which evidence of a settlement, or the amount of a settlement, will bear on some issue in the case other than damages, and an automatic rule of exclusion should not be applied.” Morea v. Cosco, Inc., 422 Mass. 601, 603 (1996). The evidence admitted in this case was relevant for a purpose other than liability or damages on the MCAD claim about which the negotiations related. The evidence was probative of whether the work restrictions imposed by Shillman subsequent to the filing of that claim were imposed for a nonretaliatory purpose. Specifically, the statements made in settlement negotiation correspondence were properly admitted for the purpose of demonstrating Shillman’s state of mind at the time he imposed the work restrictions on Dahms. The judge carefully weighed the benefits and potential prejudice of this evidence. In discussions with Dahms’s counsel, the judge agreed that the evidence (devoid

Augis Corporation vs. Massachusetts Commission Against Discrimination & another. No. 08-P-1271. Norfolk. March 11, 2009. October 14, 2009. Present: McHugh, Green, & Fecteau, JJ. Anti-Discrimination Law, Employment, Race, Damages. Employment, Discrimination. Massachusetts Commission Against Discrimination. Administrative Law, Hearing, Evidence, Substantial evidence. Damages, Emotional distress. Emotional Distress. At the hearing on a complaint filed with the Massachusetts Commission Against Discrimination, alleging discrimination in employment based on race, the hearing officer did not abuse her discretion in prohibiting the employer from calling a certain witness to testify as a sanction for the employer’s bad faith in failing to cooperate after the illness of its attorney frustrated the employee’s ability to comply with a discovery deadline for the deposition of that witness; further, any error arising from the exclusion of another witness’s testimony, on the ground that his name first appeared on the employer’s witness list shortly before the hearing, was harmless, in that the exclusion of the witness’s testimony did not deprive the employer of any substantial rights. [402-406] In a civil action, a Superior Court judge did not err in affirming a decision of the Massachusetts Commission Against Discrimination (commission) that an employer had engaged in racial discrimination against the complaining employee, where the award of damages was not based on uncharged conduct, in that the employee’s allegation that he was singled out for harsh treatment because of his race was a visible, central component of his over-all claim [406-407]; where there was substantial evidence to support the commission’s finding, based on a single incident, that the employer was liable for discrimination of a type G. L. c. 151B, § 4, prohibits [408-409]; and where there was substantial evidence to support the commission’s award of damages for emotional distress [409-410], Civil action commenced in the Superior Court Department on October 16, 2003. The case was heard by Barbara A. Dortch-Okara, J., on a motion for judgment on the pleadings, and a motion for attorney’s fees and costs was also heard by her. Peter R. Fenn (Lowry Heussler with him) for the plaintiff. Simone R. Liebman for Massachusetts Commission Against Discrimination. Annette Hill Green, for Franklin McCreath, was present but did not argue. Franklin McCreath. McHugh, J. Franklin McCreath filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging that his employer, Augis Corporation, doing business as Elite Protective Services (Augis), engaged in racial discrimination. After a public hearing, an MCAD hearing officer agreed and awarded McCreath $10,000, plus costs and attorney’s fees. Augis appealed to the full commission, which affirmed the hearing officer’s decision but reduced the attorney’s fee award by one-half. Augis then appealed to the Superior Court, which in turn affirmed the decision of the MCAD. Augis now appeals to this court, claiming that the MCAD decision is erroneous and that the MCAD proceedings were infected by a series of procedural errors. We affirm. Background. The administrative record reveals that McCreath is a black man of Jamaican descent who worked for Augis, a security services firm, as a security officer at the Hammond Park Condominiums (Hammond Park) in the Chestnut Hill section of Brookline. McCreath had a history of difficulty with his supervisor, Neil Lesman. On several occasions, Lesman disciplined Mc-Creath for work rule violations such as making personal telephone calls, washing his motor vehicle while on duty, and leaving his post with an insufficiently trained replacement. On November 3, 1999, Lesman and McCreath got into an argument in which Lesman told McCreath that if he did not like the company rules, he could hand in his uniform. According to McCreath, Lesman ended the exchange by calling him a “fucking nigger” and storming out. McCreath was “stunned” by the slur, which made him feel inferior to Lesman, and concerned about continuing to work for him. He was so upset by the incident that he considered resigning. Though financial considerations prevented him from doing so, he did reduce the hours he worked. McCreath filed an incident report with Augis on November 6, but received no response. On November 15, he filed a complaint with the MCAD alleging that Desman’s comment and racially motivated differential treatment violated G. D. c. 15IB. A few weeks later, on December 11, 1999, the guard scheduled to work the shift after McCreath’s reported that he could not come to work. McCreath called Augis to ask who would relieve him. When he had not received an answer by 4:45 p.m., he gave the Hammond Park maintenance supervisor his keys and told him that he had to leave for a 5:00 p.m. appointment. Leaving his post without a replacement violated a written Augis work rule, and later that day, McCreath received notice that Augis had suspended him. Citing the incident, Augis ultimately terminated McCreath, who then expanded his MCAD complaint to allege that the termination was retaliatory. The case proceeded to a public hearing on November 1 and 2, 2001. As the hearing began, the hearing officer entered an order prohibiting Augis from calling Desman as a witness because she found that Augis had acted in bad faith by requiring a subpoena before it would produce Desman for a deposition. The hearing officer also prohibited Augis from calling its president and chief executive officer, John Augis, as a witness because she found that Augis had given McCreath inadequate notice of its intent to do so. Substantively, the hearing officer found that Desman had used the racial slur McCreath alleged and that Augis had violated G. L. c. 151B, § 4, because Lesman’s slur constituted “racial harassment” producing an “abusive working environment.” She found that McCreath’s report put Augis on notice of Lesman’s conduct and that Augis took no remedial action. However, she found that McCreath did not establish discrimination based on disparate treatment or retaliatory termination. She awarded him $10,000 in emotional distress damages, $31,710 in attorney’s fees, and $2,008 in costs, and she ordered Augis to hold a management training program on racial discrimination and harassment. On September 17, 2003, the MCAD affirmed the hearing officer’s award but reduced the award of fees and costs to a total of $17,863. Augis subsequently sought review in the Superior Court, where a judge affirmed the MCAD’s decision and awarded Mc-Creath an additional $8,400 in fees in connection with the appeal to the Superior Court. On appeal, Augis contends that (i) the hearing officer’s award violated its right to due process by excluding evidence; (ii) “racial harassment,” which was the language used in McCreath’s complaint, is not discrimination prohibited by G. L. c. 15IB, § 4, and neither McCreath nor the MCAD charged Augis with creating a hostile work environment; (iii) it was error to base liability for discrimination on a single incident; and (iv) the record did not contain substantial evidence to support the damages award for emotional distress. Discussion, a. Exclusion of evidence. As noted, at the outset of the hearing, the MCAD hearing officer prohibited Augis both from calling Lesman to testify about his interactions with Mc-Creath and from calling John Augis to testify about Augis’s response to McCreath’s complaint. Augis claims that the exclusion order denied its right to due process of law. The order barring Lesman’s testimony was a sanction for what the hearing examiner found was Augis’s bad faith interference with McCreath’s effort to obtain discovery. That finding is rooted in an order entitled “Commission Complaint and Order for Certification to Public Hearing” (certification order) that the MCAD’s investigating commissioner issued on July 23, 2001. The certification order set a discovery deadline of September 15, 2001, and provided that “Neil Lesman’s deposition will be conducted no later than” that date. The order mentioned Lesman because he was a key witness whom Augis had listed in a joint certification memorandum the parties had filed earlier. In the memorandum, Augis gave Lesman’s address as “c/o Elite Protective Services.” Counsel for McCreath initially noticed Lesman’s deposition, along with the deposition of Augis and of McCreath’s coworker Aaron Cribbs, for June 12, 2001, but she then canceled both depositions. The deposition notices stated that the address of Lesman and Cribbs was “Elite Protective Services, 255 Commandant’s Way, Chelsea, MA 02150,” and the record contains no suggestion, contemporaneous or other, from Augis that the address was inappropriate. On August 2, 2001, a few days before the MCAD issued an order that the case would proceed to a hearing on November 1 and 2, counsel for McCreath issued a notice of Lesman’s deposition for September 11, 2001. Shortly before September 11, counsel for Augis canceled the date because of an illness, but Lesman, unaware of the cancellation, appeared without a subpoena, evidently having been instructed by counsel for Augis to do so. No deposition took place. Insofar as the administrative record is concerned, neither party immediately rescheduled the depositions. Instead, the parties jointly moved on October 16,2001, to continue the November 1 and 2 hearing dates because McCreath had not completed depositions of the Augis witnesses he wanted to depose and would not be able to do so by November 1. The hearing officer denied that motion on October 18. On Monday, October 22, 2001, McCreath’s counsel mailed counsel for Augis two notices of deposition, one for Lesman and one for Cribbs, both of which were scheduled for the following Monday, October 29. The notices prompted a telephone call from Augis’s counsel, a lawyer other than the one who had been handling the matter from the outset, but a member of the same firm. In the telephone call, Augis’s attorney said that neither Lesman nor Cribbs would appear for a deposition without a subpoena. He followed that telephone call with a letter dated October 26, the Friday before the scheduled depositions, reiterating the same position. Counsel for McCreath issued no subpoenas but instead filed a motion in limine to preclude Les-man’s testimony. The circumstances surrounding the order barring John Augis’s testimony begin with a “position statement,” essentially a response to McCreath’s complaint that counsel for Augis filed on December 10, 1999. See 804 Code Mass. Regs. § 1.10(8) (1998). In that statement, counsel said that Augis intended to call as witnesses three individuals, Lesman, Cribbs, and its general manager, Tom Healy, although it characterized the list as “preliminary” and reserved its right to amend it. In the joint certification memorandum, which was dated July 13, 2001, McCreath listed four witnesses in addition to himself, and Augis listed Lesman and Healy. Both parties reserved their right to amend the lists. The investigating commissioner incorporated the joint certification memorandum in his July 23 certification order where, in addition to setting the deadline discussed earlier, he ordered McCreath to “produce a complete list of his witnesses, including names and addresses and the substance of their testimony, by August 17, 2001.” He imposed no similar obligation on Augis. Counsel for McCreath did not comply with the certification order until October 15,2001, when she sent by facsimile transmission to counsel for Augis a list containing the names of two witnesses and the other required information. One of the two names had not appeared in any earlier filing or correspondence. In response, Augis sent counsel for McCreath its witness list by letter dated October 26, 2001, substituting John Augis for Healy. On that record, the MCAD hearing officer barred Augis from calling either Lesman or John Augis as a witness. Insofar as Lesman is concerned, she noted that the certification order required the parties to depose Lesman “on or before September 15, 2001,” and that, although Lesman had appeared on September 11, counsel for Augis had not. Subsequent attempts to depose Lesman failed, she found, “because of [Augis’s] sudden refusal to produce him without subpoena.” As for John Augis, the hearing officer barred both sides from calling witnesses whose names appeared for the first time on the lists counsel exchanged shortly before the hearing. In considering Augis’s claims regarding exclusion of Les-man’s testimony, we keep in mind that if the MCAD’s “interpretation of its regulations and statutory mandate is rational, and adhered to consistently, it should be respected.” Boston Police Superior Officers Fedn. v. Boston, 414 Mass. 458, 462 (1993). Moreover, regulation of the administrative discovery process lies within the sound exercise of the hearing officer’s discretion, just as regulation of the discovery process in judicial proceedings lies within the sound exercise of judicial discretion. See, e.g., University Hosp., Inc. v. Massachusetts Commn. Against Discrimination, 396 Mass. 533, 536-538 (1986). Compare, e.g., Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 131-133 (2002). In excluding Lesman’s testimony, the hearing officer appeared to be applying 804 Code Mass. Regs. § 1.19(5) (1999), which states that “[i]f a party or person from whom discovery is sought fails to comply with an Order for discovery ... a party . . . seeking discovery may apply to the Commission to make such Orders in regard to the failure of discovery as are just.” Here, the relevant order required completion of any deposition of Lesman by September 15, 2001. Counsel for McCreath attempted to comply with that order but the illness of counsel for Augis prevented her from doing so. Thereafter, as evidenced by their joint motion for a continuance, both counsel appear to have thought that the best course was to seek a continuance of the hearing. When that effort failed, counsel for McCreath attempted to obtain the discovery she would have had by the deadline but for the illness of Augis’s counsel. At that point, Augis suddenly decided that it was time for hardball. The hearing was imminent. For almost two years, Augis had given no indication that witness subpoenas were required for the deposition of its own employees. In filings with the MCAD, it had given its own address as the address for its employee witnesses. It had raised no objection to deposition notices using that address. It had manifestly instructed Lesman to appear without a subpoena for the September 11, 2001, deposition. Then, the week before the hearing, it decided that subpoenas would be necessary and gave no assurance, at least so far as the record reveals, that it would honor the subpoenas, make its employees available to receive service, or provide its employees’ home addresses. Under those circumstances, we think that the hearing officer could conclude that Augis acted in bad faith and could prohibit Lesman’s testimony as a sanction for Augis’s failure to cooperate to remedy the problem it had created when the illness of its attorney prevented McCreath’s attorney from complying with the discovery deadline she otherwise would have met. See generally Mattoon v. Pittsfield, 56 Mass. App. Ct. at 128-133. A party that frustrates, innocently or otherwise, another party’s ability to comply with a discovery deadline has an obligation to cooperate in repairing the damage and cannot with impunity seek to capitalize on the problems its own conduct created. The order precluding John Augis’s testimony presents greater difficulty. Although McCreath was under an order to provide a witness list and a summary of witness testimony, no such order applied to Augis. Despite the fact that Healy’s name had been on Augis’s witness list from the very beginning, counsel for McCreath never attempted to obtain discovery from him after the notices for the June 12, 2001, deposition. McCreath’s own witness list was delivered at the eleventh hour and well past the applicable deadline. Whatever doubts we may have about the propriety of precluding testimony from John Augis under those circumstances, we think that the preclusion order was harmless. Augis intended to have John Augis testify as to two subjects, i.e., that McCreath’s termination was neither retaliatory nor discriminatory and that Augis was unable to determine whether the incident about which McCreath complained in fact took place. The hearing officer and the MCAD found in Augis’s favor on the first issue without testimony from John Augis. The damages award was based on Desman’s conduct, not on Augis’s knowledge of that conduct. The portion of the order requiring training for Augis supervisors was warranted by Desman’s conduct and would have been warranted by evidence that, when confronted by an allegation of conduct as profoundly offensive as Desman’s, Augis chose to do nothing because it could not determine precisely what had happened. In sum, we think that the hearing officer’s preclusive orders did not deprive Augis of any substantial rights. b. The basis of liability. Augis’s second claim is that the MCAD’s damages award rested on a form of discriminatory conduct with which it had not been charged. More specifically, Augis alleges that the complaint charged it with wrongfully terminating McCreath but the MCAD, after determining that there had been no wrongful termination, imposed liability because of a “hostile work environment,” a claim no one had ever made. The record paints a different picture. In his complaint to the MCAD, McCreath alleged that he had been “the victim of different terms and condition[s] in the facility where [he] work[ed] because of [his] race and color.” As an example of that different treatment, McCreath stated that “[o]n November 3, 1999, [Les-man] called me a ‘f . . . g nigger.’ ” An MCAD investigator stated that “the gravamen of [Mc-Creath’s] complaint is that the supervisor, Neil Lesman, used racially derogatory language directly toward the black employees, and specifically towards him.” The investigator found evidence supporting that allegation and concluded that there was probable cause “for crediting the allegations of the . . . complaint.” Later, in the parties’ joint certification memorandum, Mc-Creath’s counsel stated that McCreath alleged, among other things, that Lesman had called him a “nigger” and that, after he complained, he was singled out for discriminatory treatment for minor workplace violations. One of the four issues as to which counsel sought certification was whether Augis, through Lesman, “unlawfully discriminated against [McCreath] when [Lesman] voiced racial epithets and displayed hostilities toward [McCreath] and other African-American security guards.” Still later, in his certification order, to which a copy of McCreath’s complaint was attached, the investigating commissioner said that a public hearing was required on three issues: “1) Whether [McCreath] was subjected to different terms and conditions of employment by reason of his race, when he was singled out in an unusually harsh and unjust manner for alleged job infractions. “2) Whether [McCreath] was unlawfully terminated by his supervisor Neil Lesman on account of his race. “3) Whether [McCreath] suffered damages from emotional distress and lost wages on account of the alleged disparate treatment and termination.” From the outset, then, McCreath’s allegation that he was singled out for harsh treatment because of his race was a visible, central component of his over-all claim. To be sure, wrongful termination was also an issue in the case. But Lesman’s alleged use of a racial epithet and the extent of the resulting harm were always issues on center stage. The damages award was not based on uncharged conduct. c. Sufficiency of the evidence. Augis’s cla

Cynthia Haddad vs. Wal-Mart Stores, Inc. (No. 1). Berkshire. February 5, 2009. October 5, 2009. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Anti-Discrimination Law, Employment, Sex, Termination of employment, Damages. Employment, Discrimination, Termination. Damages, Under anti-discrimination law, Punitive, Remittitur, Future earning capacity. Evidence, Relevancy and materiality. Practice, Civil, Argument by counsel, Instructions to jury. At the trial of a civil complaint alleging unequal compensation and termination of employment based on gender, the evidence was sufficient to permit the jury to find that the defendant employer had acted with a discriminatory animus in terminating the plaintiff’s employment as a pharmacy manager (i.e., that the defendant’s stated reasons for the plaintiff’s termination were false and that similarly situated male pharmacists were treated differently than the plaintiff for similar infractions of the defendant’s policies), that the plaintiff’s base pay was significantly less per hour than all the male pharmacy managers in the region, and that despite the plaintiff’s repeated requests for the additional hourly pay and a bonus that the male pharmacy managers received, the defendant denied the plaintiff the bonus until just before her termination. [97-101] At the trial of a civil complaint alleging unequal compensation and termination of employment based on gender, the award to the plaintiff employee of nineteen years’ front pay was neither excessive nor speculative, where the judge properly instructed the jury as to the relevant principles to consider; where the plaintiff testified to her difficulty in obtaining a new position; where expert testimony established, based on evidence presented at trial, the plaintiff’s loss of income due to the defendant’s discrimination, discounted to present value; and where the award was consistent with the plaintiff’s anticipated retirement age. [102-106] In a civil action alleging unequal compensation and termination of employment based on gender, the judge erred in granting the defendant employer’s motion for judgment notwithstanding the verdict on the jury’s award of punitive damages, where the plaintiff was not required to demonstrate that the defendant had acted with knowledge that its conduct violated the terms of the gender discrimination statute; where, from evidence that the defendant had policies prohibiting harassment, the jury could infer that the defendant was aware that gender discrimination was not legally permitted; where there was sufficient evidence of the defendant’s reprehensible or recklessly indifferent conduct to support the award of punitive damages; and where the award was not excessive. [106-110] Discussion of the new standard, in an action alleging discrimination in employment, for determining whether an employer’s conduct was so outrageous or egregious that punitive damages are warranted. [110-111] At the trial of a civil complaint alleging discrimination in employment, the judge did not err in admitting evidence that was relevant to a determination of pretext [111-112]; moreover, an improper remark made during the plaintiffs closing argument was not likely to have altered the outcome of the case [112]; further, the plaintiff produced sufficient evidence to justify a mixed motive instruction, and error arising from the judge’s failure to make clear what the plaintiffs burden was before the burden shifted to the defendant was harmless in the circumstances [112-115], Give, action commenced in the Superior Court Department on September 9, 2005. The case was tried before John A. Agostini, J., and a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial or remittitur was heard by him. The Supreme Judicial Court granted an application for direct appellate review. Robert S. Mantell (Richard E. Fradette, of New Hampshire, & David E. Belfort with him) for the plaintiff. David C. Casey (Stephen T. Melnick with him) for the defendant. Jo Ann Shotwell Kaplan, Martin J. Newhouse, & John R. Pagliaro, for New England Legal Foundation & another, amici curiae, submitted a brief. Patricia A. Washienko, for Jewish Alliance for Law and Social Action & others, amici curiae, submitted a brief. Cowin, J. The plaintiff filed a complaint in the Superior Court against Wal-Mart Stores, Inc. (Wal-Mart), alleging unequal compensation and termination of employment based on gender in violation of G. L. c. 151B, § 4 (1). The complaint also included claims for defamation. Following a jury trial, Wal-Mart was found liable on the G. L. c. 151B, § 4 (1), claim, and the plaintiff was awarded $972,774 in compensatory damages and $1 million in punitive damages. Wal-Mart moved for judgment notwithstanding the verdict or, in the alternative, for remittitur or a new trial. The motion judge, who was also the trial judge, vacated the award of punitive damages but otherwise denied the motion. The parties cross-appealed; we granted the plaintiff’s motion for direct appellate review. On appeal, Wal-Mart claims that the judge erred in denying its motion for judgment notwithstanding the verdict as to the gender discrimination claim, and in declining to reduce the front pay award. Wal-Mart asserts also that a new trial is required because of the improper admission of certain evidence, misconduct in the plaintiff s closing argument, and errors concerning two jury instructions. In her cross appeal, the plaintiff claims that the judge erred in allowing Wal-Mart’s motion for judgment notwithstanding the verdict with respect to punitive damages. We conclude that there was sufficient evidence for the jury to find that Wal-Mart’s proffered motive for the plaintiff’s termination was a pretext, and consequently that Wal-Mart acted with a discriminatory animus. We conclude also that there was sufficient evidence to support the jury’s award of front pay damages. None of Wal-Mart’s claims regarding the trial convince us that the judge was wrong in denying the defendant’s motion on the basis of the asserted errors in the trial proceedings. Accordingly, we affirm the judge’s decision denying the defendant’s motion for judgment notwithstanding the verdict on the liability and front pay claims. We do, however, conclude that the judge erred in regard to the punitive damages award. He determined incorrectly that the jury were not warranted in finding intentional and outrageous conduct (a precondition for punitive damages). His decision is also confusing because it suggests, at least in part, and contrary to his proper instruction to the jury, that punitive damages could not be awarded unless it was proved that Wal-Mart acted with the specific knowledge that it was deliberately violating the anti-discrimination statute, G. L. c. 151B. We therefore vacate the judge’s order and reinstate the jury’s award of punitive damages. The plaintiff argues also that our standard for awarding punitive damages should be modified so that a showing of intentional discrimination alone suffices for an award of punitive damages. While we decline the plaintiffs invitation to modify the standard in this respect, we take this opportunity to set forth a new standard in language that more clearly describes the considerations necessary for an award of punitive damages in the specific context of a discrimination claim. 1. Factual background. Because Wal-Mart alleges that the evidence was insufficient, we summarize the evidence in the light most favorable to the plaintiff., The plaintiff, Cynthia Haddad, worked as a pharmacist at Wal-Mart for ten years, seven of those in Wal-Mart’s Pittsfield store. Pursuant to Massachusetts law and regulation, every pharmacy must have a “manager of record.” The manager of record, who must be a registered pharmacist, is responsible for complying with State and Federal reporting requirements and supervising the pharmacy staff. A registered pharmacist must be on duty during a pharmacy’s hours of operation. See, e.g., G. L. c. 112, §§ 24, 39; 247 Code Mass. Regs. §§ 6.01, 6.02, 6.07 (2005). During the period at issue, Wal-Mart employed one pharmacist at its Pittsfield store, who was designated the “pharmacy manager,” to serve as the “manager of record.” A staff pharmacist generally worked under the pharmacy manager, and several pharmacy technicians (who are not registered pharmacists) assisted the staff pharmacist. At times, only one pharmacist would be on duty. In addition to their hourly wages as pharmacists, pharmacy managers received an additional hourly stipend as well as an annual bonus. For most of the plaintiff’s tenure at Wal-Mart, she served as staff pharmacist; she received consistently excellent evaluations. In March, 2003, the plaintiff accepted the position of pharmacy manager on a temporary basis.* At that time, and until her termination thirteen months later, the plaintiff was paid at an hourly rate considerably lower than any male pharmacy manager in the Pittsfield region. In addition, although she was told that she would receive the additional hourly pay that Wal-Mart paid all pharmacy managers, she did not receive this differential. After numerous complaints, on April 9, 2004, she finally received a check for the pharmacy manager bonus that others received in February, but she never received the thirteen months’ worth of additional hourly pay. On April 14, 2004, Wal-Mart district manager David Hogan and two other Wal-Mart managers met with the plaintiff at the Pittsfield store. They questioned her about two prescriptions that had been fraudulently written and filled by pharmacy technician Kristin Baran. One of the prescriptions had been written in October, 2002, while the plaintiff was on duty, and one was written on March 20, 2004, while a male pharmacist, Richard Blackbird, was on duty. Baran admitted, immediately after the meeting between the Wal-Mart supervisors and the plaintiff, that she falsified the October, 2002, prescription. The plaintiff denied any knowledge of the fraudulent prescriptions, but told Hogan that the first one could have been written when she briefly left the pharmacy area to purchase a soda at a nearby counter; when she was in the restroom; when she was in the front of the pharmacy talking to customers; or when she was in the back of the pharmacy eating lunch or counting narcotics. The plaintiff’s employment was terminated that same day. She was told that the reason for her termination was based on her statement during the interview that she “fail[ed] to secure the pharmacy” because, in violation of an unspecified Wal-Mart policy, she had briefly left the pharmacy area unsecured, leaving Baran unattended in the pharmacy area. Baran’s employment was also terminated the same day. The more recent fraudulent prescription contained Blackbird’s initials. Neither Blackbird, who was on duty when the second fraudulent prescription was written, nor any other pharmacist was questioned about or disciplined for it. Indeed, Blackbird was appointed to be pharmacy manager at the time of the plaintiff’s departure. Blackbird testified that he commonly left the pharmacy area unsecured to talk to a customer in the over-the-counter area, to go to the restroom, or to get a snack; he was unaware of any policy prohibiting this practice and was never disciplined for doing so. Other testimony at trial indicated that it was common practice for pharmacists to leave the pharmacy area briefly unsecured and go to other areas of the store during their shifts. Copies of Wal-Mart’s written policy regarding lunch breaks, effective in October of 2002 and introduced in evidence, indicated that it was optional whether a pharmacy manager closed and locked the pharmacy during lunch breaks. There was also evidence that this policy later changed several times. Wal-Mart employees gave inconsistent reasons for the plaintiff’s termination and were also inconsistent regarding who was responsible for the decision. Answers to interrogatories, submitted by Hogan on his own behalf and on behalf of Wal-Mart, were introduced at trial. In these answers, Hogan stated, contrary to his trial testimony, that the plaintiff’s employment was terminated because she had not properly monitored store charge accounts and had allowed a technician to maintain a charge account. Hogan testified that he told the store manager that the plaintiff was terminated for allowing controlled drug losses. Another district manager told Blackbird that the plaintiff was terminated because of discrepancies in the controlled drug inventory. In addition, Hogan testified on direct examination that he made the decision to fire the plaintiff for her failure to secure the pharmacy; however, on cross-examination, after being shown his answers to interrogatories, Hogan testified that he had been “instmct[ed]” to fire the plaintiff by his supervisor, the regional manager, and that he was told to give the reason as “gross misconduct.” Moreover, the plaintiff’s “exit interview” forms, signed by three Wal-Mart managers, were dated April 13, 2004, the day before the termination, and indicated the reason for the plaintiff’s termination as “gross misconduct . . . misappropriation.” Another explanation offered for the plaintiff’s termination was that she gave pharmacy technicians her computer sign-on codes. According to the record in this case, at the time of the plaintiff’s termination, in the geographic district containing the Pitts-field store, twenty of the twenty-one managers above the pharmacy manager level at Wal-Mart were male, and all the pharmacy technicians were female. Only two of the pharmacy managers of the fifteen stores in the district were females. 2. Sufficiency of the evidence. Wal-Mart argues that the judge erred in denying its motion for judgment notwithstanding the verdict, Mass. R. Civ. P. 50 (b), as amended, 428 Mass. 1402 (1998), on the discrimination claim because there was “no evidence” to support a finding of discriminatory animus. There was no error. The evidence was sufficient for the jury to find that Wal-Mart acted with a discriminatory animus in terminating the plaintiff’s employment. Wal-Mart does not dispute that the plaintiff met her burden of establishing all the elements in the first stage of the three-stage McDonnell Douglas analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000). Wal-Mart offered several facially valid reasons for the plaintiff’s termination. Therefore, if the jury were warranted in concluding that at least one of the proffered reasons for the plaintiff’s termination was a pretext, that alone would constitute sufficient evidence to support an inference that Wal-Mart acted with a discriminatory animus. See Lipchitz v. Raytheon Co., 434 Mass. 493, 499-502, 504 (2001). There was ample evidence from which a jury could have inferred that Wal-Mart’s stated reasons were pretexts, and consequently that Wal-Mart acted with discriminatory intent. The jury could have decided that all of Wal-Mart’s proffered reasons for terminating the plaintiff’s employment were false. Hogan testified to one reason: that the plaintiff had failed to secure the pharmacy area, that is, that she left the area to get a soda, leaving only a technician present. The jury could have concluded that this statement was false for several reasons. First, Wal-Mart employees, including Hogan, had previously given a variety of conflicting reasons for the termination. Additionally, the incident had occurred eighteen months prior to the termination. Furthermore, there was testimony that male pharmacists routinely left the pharmacy to purchase food or beverages in the store or to assist customers. The jury could also have determined that the reason initially checked on the exit interview form — “gross misconduct . . . misappropriation” — was false because there was no evidence or even any allegation that the plaintiff misappropriated assets. In addition, Hogan testified that the decision to fire the plaintiff was made at her April 14, 2004, interview, after she stated that she might have left the pharmacy area, possibly to get a soda. The jury could have concluded, moreover, that the plaintiff’s termination had been planned in advance of her interview. Her termination notice was originally dated on the day before the interview, and Hogan testified further that he told the regional manager, the day before the plaintiff’s termination, that he intended to interview and then terminate the plaintiff on the following day. Moreover, the jury could have rejected Hogan’s statement that the plaintiff was fired for allowing a technician to maintain a charge account, well before the termination, because there was testimony that male pharmacists were unaware of any policy prohibiting such accounts, there was no evidence that any other pharmacist had been disciplined for allowing the account to remain open, and there was evidence that the plaintiff had closed the account on the day she was told to do so by a Wal-Mart manager. Lastly, the jury could have chosen not to credit Hogan’s statement that the plaintiff was fired because she disclosed her computer sign-on code to a technician. The plaintiff testified that she had never disclosed her password to anyone, and a number of Wal-Mart employees testified that it was routine practice for pharmacists to log onto the computer in the morning and to stay logged on all day, so that a technician could easily use the pharmacist’s computer account. In addition, there was substantial evidence that the jury could have credited that similarly situated male pharmacists were treated differently than the plaintiff for similar infractions of Wal-Mart policy. See Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Comm’n Against Discrimination, 449 Mass. 675, 683-686 (2007) (similarly situated comparator is usually most probative means of proving adverse action was taken for discriminatory reasons). As stated, there was evidence that male pharmacists routinely left the pharmacy area unsecured in order to purchase snacks or drinks, and that no other pharmacist had been terminated for such a reason. There was also evidence that the policy on lunch breaks did not mandate that a pharmacist secure the pharmacy before leaving the pharmacy area. The then-effective policy stated that a pharmacist “may” close and lock the pharmacy if only one pharmacist was on duty and was going on a meal break, and that the pharmacist “may” leave the pharmacy area, but should not leave the building. In circumstances virtually identical to the incident for which the plaintiff was purportedly terminated, a male pharmacist was neither questioned about nor disciplined for the second fraudulent prescription filled by Baran, even though his initials were on the prescription, he was on duty at the time it was filled, the prescription appeared suspicious on its face, and the incident had occurred only a few weeks, rather than eighteen months, before the plaintiff’s termination. Indeed, the evidence indicated that the investigation of the second fraudulent prescription was limited to questioning the plaintiff about it and thereafter asking Baran whether she had written it. There was evidence of other incidents in which male pharmacists were not disciplined for far more serious infractions of Wal-Mart policies, or even for actions that violated State and Federal law. For instance, a videotape from a surveillance camera showed Baran placing drugs in her purse while the male pharmacist on duty, Hershel Patel, was standing near her; Wal-Mart policy prohibited bringing purses into the pharmacy area. Patel, who remained employed by Wal-Mart at the time of trial, testified that he was not questioned or disciplined about the incident. In August, 2003, Wal-Mart discovered that another

Robert Somers vs. Converged Access, Inc., & another. Middlesex. May 7, 2009. August 21, 2009. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Labor, Wages, Overtime compensation. Independent Contractor Act. Anti-Discrimination Law, Age, Prima facie case. Practice, Civil, Summary judgment. In an civil action alleging that an employer had misclassified the plaintiff as an independent contractor rather than as an employee, in violation of G. L. c. 149, § 148B, the trial judge erred in granting summary judgment in favor of the employer on the ground that, even assuming that the allegation was true, the plaintiff had not demonstrated that he had been damaged by the misclassification within the meaning of G. L. c. 149, § 150, given the unrefuted evidence presented by the employer that it paid the plaintiff more as an independent contractor than it would have paid in wages and benefits had he been hired as an employee, where such an interpretation contravened both the plain meaning and the primary purpose of the independent contractor statute and the wage act. [588-594] In a civil action alleging age discrimination in employment based on the employer’s failure to hire the plaintiff on two separate occasions, the trial judge did not err in granting summary judgment in favor of the employer, where the plaintiff failed to establish a prima facie case or to submit admissible evidence that would demonstrate a discriminatory intent, motive, or state of mind necessary to rebut the employer’s evidence that the plaintiff, in the employer’s judgment, was not considered to be as qualified for the positions as the individuals who were hired. [594-600] Civil action commenced in the Superior Court Department on May 15, 2006. The case was heard by Herman J. Smith, Jr., J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Harold L. Lichten (Shannon Liss-Riordan with him) for the plaintiff. Karla E. Zarbo, Assistant Attorney General, for the Commonwealth. Christopher R. O’Hara (Matthew J. Fogelman with him) for the defendants. Donald Siegel & Nicole Horberg Decter, for Massachusetts Building Trades Council & another, amici curiae, submitted a brief. Per Suneby, chief executive officer and president of Converged Access, Inc. (CAI). Gants, J. The plaintiff, Robert Somers, twice applied for full-time employment with Converged Access, Inc. (CAI), but neither application resulted in a job offer. He later agreed to work for CAI on a temporary basis as an “independent contractor.” After CAI terminated his contract and did not respond to his third application seeking permanent employment, the plaintiff filed suit in the Superior Court against CAI and its chief executive officer and president, Per Suneby. The plaintiff’s amended complaint alleges that he was denied employment because of his age, in violation of G. L. c. 151B, § 4 (count one); misrepresentation (count two); unjust enrichment (count three); and, in count four, that he was misclassified as an independent contractor when, as a matter of law under G. L. c. 149, § 148B (independent contractor statute), he should have been deemed an employee and received the wages and benefits enjoyed by CAI employees to which he was entitled under G. L. c. 149, § 148, as amended through St. 1998, c. 236, § 10 (wage act), and G. L. c. 149, § 150, as amended through St. 2005, c. 99, § 2 (which provides a private civil remedy for “damages incurred” from violations of the independent contractor statute and the wage act). A Superior Court judge granted CAI’s motion for summary judgment as to all of the plaintiff’s claims. As to count four, the judge concluded that, even assuming that the plaintiff had been misclassified as an independent contractor rather than an employee under § 148B, the plaintiff had not demonstrated that he had been damaged by the misclassification, because CAI had presented unrefuted evidence that he had been paid more as an independent contractor than he would have been paid in wages and benefits had he been hired as an employee. The plaintiff, now represented by counsel, has appealed from the grant of summary judgment. We transferred this case here on our own motion to decide whether the “damages incurred” by an individual under § 150 for having been misclassified as an independent contractor rather than an employee, in violation of § 148B, should be measured by subtracting the compensation the plaintiff obtained as an independent contractor from the compensation the plaintiff would have received had he been hired as an employee. We conclude that this measure of damages contravenes both the plain meaning and the primary purpose of the independent contractor statute and the wage act. An employee misclassified as an independent contractor, as a matter of law, is an employee; his contract rate is his wage rate; and his “damages incurred” equal the value of wages and benefits he should have received as an employee, but did not. Accordingly, we vacate that part of the judgment that dismisses count four of the plaintiff’s amended complaint. For reasons that will be explained, we affirm that part of the judgment that dismisses count one. We affirm with no discussion the judgment as to counts two and three. Background. We summarize the relevant facts in the light most favorable to the plaintiff for purposes of reviewing the allowance of summary judgment. See Chervin v. Travelers Ins. Co., 448 Mass. 95, 96 (2006). The plaintiff holds a bachelor of science degree in electrical engineering from the Massachusetts Institute of Technology (MIT). He had performed work under contract for various corporations, including Sitara Networks, as a software developer, network test engineer, and software quality assurance engineer, but had been self-employed since 2002. In July, 2004, Boris Gdalevich, who had been the plaintiff’s supervisor at Sitara Networks and then was a manager at CAI, urged the plaintiff to interview for two open permanent full-time positions at CAI: quality assurance engineer and senior quality assurance engineer. The plaintiff was fifty-six years of age at the time. CAI interviewed the plaintiff, but did not hire him for either position. CAI left the former position unfilled and, on September 20,2004, hired another applicant, Donald Bispham, for the latter position. Bispham was forty-seven years of age at the time. In April, 2005, CAI reopened the interview process for the unfilled quality assurance engineer position. The plaintiff applied and was granted an interview for the position, but later that month learned that CAI had decided not to hire him. Gdalevich, who did not interview the plaintiff and did not participate in the employment decision, sent the plaintiff an electronic mail message (email) on April 29, 2005, stating that “they said they just want more in depth experience testing [CATs Internet protocol application known as VoiceOver IP (VOIP)].” Gdalevich added in the e-mail that he did not think this was a reason. In a subsequent conversation with the plaintiff, Gdalevich suggested that the real reason that the plaintiff was not hired was his age. After turning down the plaintiff’s second application for employment, CAI offered the plaintiff a position to work as a software quality assurance engineer testing software products created by CAI as an “independent contractor.” The plaintiff agreed to work for CAI for a sixty-day term commencing on May 18, 2005, and later agreed to an extension for a ninety-day term commencing July 19, 2005. The plaintiff was paid sixty-five dollars per each hour worked. Because CAI deemed him an independent contractor, he was not paid extra for overtime work and received none of the benefits enjoyed by CAI employees: vacation pay, holiday pay, and employer contributions for employee health insurance plans, dental insurance plans, and life insurance plans. Nor was he eligible to join the employees’ 401(k) plans and flexible spending account plans, or to receive CAI’s regular contributions to those plans. No amount was withheld from his pay for Social Security or Medicare, or for Federal and State income taxes. In addition, CAI did not include him as an employee for purposes of State unemployment insurance or workers’ compensation. The plaintiff performed all of his work for CAI at its main place of business and headquarters in Billerica. CAI provided him with a workspace, a lab bench, and lab equipment, including three or more computers. Gdalevich supervised, assigned, and controlled all the plaintiff’s work, providing him with detailed instruction as to how and when to perform each test and what time to report to work each day. The plaintiff submitted invoices for each hour worked and was paid on an hourly basis only for hours actually worked. The plaintiff worked in excess of forty hours in some weeks but was not paid overtime. During the time that he worked at CAI, the plaintiff’s job performance was praised by Gdalevich. Another manager, Jean DuBois (later a vice-president of CAI), told the plaintiff that his work was excellent. In July, 2005, all the software quality assurance engineers in Gdalevich’s department, including the plaintiff, received training on each other’s engineering work, so that at any time any engineer in the department could take over for any other engineer in the department. On August 16, 2005, DuBois informed the plaintiff that CAI was not going to continue to fund his position and that his contract would be terminated in thirty days. DuBois also instructed the plaintiff to work on quality assurance of CAI’s converged access point (CAP) product during the remaining thirty days of his contract. On the same day he was given notice of the termination of his contract, the plaintiff checked the CAI Web site for available job openings and saw a posting for a “software quality assurance engineer,” the same position for which he had applied in April. The new job posting indicated that the position involved quality assurance testing for CAP and required knowledge of VOIP and the ability to use the VOIP test equipment. The plaintiff applied for this job but received no response, even though he had tested all aspects of the CAP product, received training on VOIP test equipment, and used the VOIP test equipment in the CAI lab during the last thirty days of his contract. As a result of his not being hired for any of the positions he sought at CAI, the plaintiff, on November 1, 2005, filed a complaint against CAI and Suneby with the Massachusetts Commission Against Discrimination (MCAD) alleging age discrimination. It was not until January, 2006, after CAI had notice of the plaintiff’s filing with the MCAD, that CAI decided to reinterview, and ultimately hire, George McNamara for the position of software quality assurance engineer. McNamara, who is four years and seven months younger than the plaintiff, had applied for that position in April, 2005, but, like the plaintiff, had not been offered the job. McNamara had initially been eliminated from consideration for this position because he did not know enough VOIP and was weak in computer networking. The plaintiff, appearing pro se, removed the charges of discrimination from the MCAD and commenced this action on May 15, 2006, asserting his claims of age discrimination, misrepresentation, and unjust enrichment. He subsequently applied for, and received, written authorization from the Attorney General to institute and prosecute in his own name an individual suit for damages under the wage act, as required by G. L. c. 149, § 150, and, with the court’s permission, filed an amended complaint, which included his claim for violations of G. L. c. 149. The defendants filed a motion for summary judgment, and as has been stated, the judge determined that the defendants were entitled to judgment in their favor on all of the counts asserted in the plaintiff’s amended complaint. Based on the summary judgment record, the judge found that there was a genuine issue of material fact whether CAI had violated G. L. c. 149, § 148B, in classifying the plaintiff as an “independent contractor” rather than an “employee” as defined under § 148B. The judge, however, reasoned that, even were liability established after a full trial, the defendants had demonstrated (and the plaintiff had failed to rebut the evidence) that he was paid more as an independent contractor than he would have received in wages, benefits, and overtime had he been hired as an employee. The judge stated: “Assuming [the plaintiff] had been paid at the higher rate of $92,000 annually if he had been hired as an employee,[] he was still paid $7,059.76 more for the time he worked as an independent contractor. [The plaintiff] does not contest these figures. While [CAI] failed to account for overtime that might have been paid to [the plaintiff], even accounting for this does not result in a loss to the plaintiff compared to the higher rate he was paid as an independent contractor. Accounting for unpaid overtime, [the plaintiff’s] loss of $1,381.25 falls well below the extra $7,059.76 he made while misclassified.” The judge noted that CAI had “accounted not only for the actual dollars that would have been paid out to [the plaintiff] as an employee, but also the amounts CAI would have spent on [the plaintiff’s] behalf for social security, health and dental insurance, vacation pay as well as tax savings to [the plaintiff] based on pretax contributions he would have been able to make as an employee.” The judge concluded that, because the plaintiff had suffered no damages under G. L. c. 149, § 150, the defendants were entitled to summary judgment in their favor on the plaintiff’s claim under G. L. c. 149. With respect to the plaintiff’s claim of unlawful age discrimination, the judge determined that the plaintiff had failed to establish a prima facie case in either alleged instance of discrimination because he had not set forth admissible evidence that either Bispham or McNamara was similarly, or less, qualified than he for the position of software engineer. The judge also concluded that the plaintiff had failed to demonstrate any substantial age difference between the plaintiff (then fifty-seven years of age) and McNamara (then fifty-three years of age). See Knight v. Avon Prods., Inc., 438 Mass. 413 (2003). We. now address the merits of this appeal, beginning with the plaintiff’s claim under G. L. c. 149, §§ 148, 148B, and 150. Discussion. a. The claim for lost wages and benefits under the independent contractor statute and wage act. General Laws c. 149, § 148B, establishes a standard to determine whether an individual performing services for another shall be deemed an employee or an independent contractor for purposes of our wage statutes. Under § 148B (a), an individual who performs services shall be considered to be an employee, for purposes of G. L. c. 149 and G. L. c. 151, unless the employer satisfies its burden of proving by a preponderance of the evidence that “(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and “(2) the service is performed outside the usual course of the business of the employer; and “(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.” G. L. c. 149, § 148B. See Athol Daily News v. Board of Review of the Div. of Employment & Training, 439 Mass. 171, 175 (2003) (referencing nearly identical language in G. L. c. 151 A, § 2). The failure of the employer to prove all three criteria set forth above suffices to establish that the individual in question is an employee. See id:, Silva v. Director of the Div. of Employment Sec., 398 Mass. 609, 611 (1986). See generally Epstein v. Boston Hous. Auth., 317 Mass. 297, 302 (1944), and cases cited. Individuals who provide services to an employer as an employee (rather than as an independent contractor) fall within the protection of the wage act and G. L. c. 151, § 1A (overtime). The wage act requires employers timely to “pay weekly or bi-weekly each such employee the wages earned by him.” G. L. c. 149, § 148. The statute does not define the word “wages” but provides that it includes “any holiday or vacation payments due an employee under an oral or written agreement.” Id. General Laws c. 149, § 150, authorizes employees claiming to be aggrieved by violations of the independent contractor statute and the wage act (as well as other enumerated statutes not relevant here) to bring a civil action for “injunctive relief and any damages incurred, including treble damages for any loss of wages and other benefits.” See Wiedmann v. Bradford Group, Inc., 444 Mass. 698, 709-710 (2005) (treble damages may be awarded in judge’s discretion). The statute further provides that “[a]n employee so aggrieved and who prevails in such an action shall be entitled to an award of the costs of the litigation and reasonable attorney fees.” The overtime act requires employers to pay “not less than one and one half times the regular rate at which [the employee] is employed.” G. L. c. 151, § 1A. Damages for an employer’s violation of the overtime act are recoverable pursuant to G. L. c. 151, § IB, which, like G. L. c. 149, § 150, permits a private cause of action and an award of treble damages, plus costs and reasonable attorney’s fees, to a successful plaintiff. The defendants do not dispute, for purposes of this appeal, that the plaintiff was an employee of CAI, as defined by the independent contractor statute. Nor do they dispute that the plaintiff did not receive wages and other benefits that he would have received had CAI classified him as an employee rather than an independent contractor. They contend, however, that dismissal of the plaintiff’s claim was proper, because the judge correctly concluded that the plaintiff was paid more as an independent contractor than he would have been paid had CAI hired him as an employee, and therefore he suffered no damages. We disagree. Unless CAI were to prove at trial the three criteria required to establish that the plaintiff was an independent contractor under G. L. c. 149, § 148B, the plaintiff, as a matter of law, was an employee of CAI even if he was not hired as an employee. If he was an employee, the plaintiff received an hourly wage of sixty-five dollars per hour during his period of employment, but did not receive the vacation, holiday, or overtime pay to which he was legally entitled, or any employment benefits that were extended to other CAI employees. Regardless of the agreement between the plaintiff and CAI, and regardless of the parties’ intentions that his work be performed as an independent contractor, unless CAI successfully satisfies the requirements of G. L. c. 149, § 148B, the plaintiff was CAI’s employee. None of the statutory criteria speaks of the employer’s intent; rather, all speak of the nature of the service provided. To this extent, § 148B is a strict liability statute, as is the wage act. Good faith or bad, if an employer misclassifies an employee as an independent contractor, the employer must suffer the consequences. CAI’s essential position is that, had it realized that it would be violating §§ 148 and 148B by hiring the plaintiff as an independent contractor, it instead would have hired him as an employee and paid him a lower hourly wage than the hourly rate it paid him as an independent contractor. Because the plaintiff earned more as an independent contractor than he would have earned as an employee, CAI argues that it should owe no damages. This argument is analogous to (and as unpersuasive as) an employer’s argument that, despite the clear mandate of G. L. c. 151, § 1A, it should not