Hostile Work Environment Cases

Farouk Martins vs. University of Massachusetts Medical School & others. No. 08-P-1343. Suffolk. June 8, 2009. October 30, 2009. Present: Lenk, Brown, & Grainger, JJ. Limitations, Statute of. Anti-Discrimination Law, Age, Race, Termination of employment, Prima facie case, Burden of proof. Civil Rights, Termination of employment. Employment, Discrimination, Termination, Retaliation. Massachusetts Commission Against Discrimination. Administrative Law, Exhaustion of remedies. Libel and Slander. This court concluded that a civil action alleging discrimination in employment was not time barred, where the running of the applicable statute of limitations had been tolled by the plaintiff employee’s action of filing a complaint with the Massachusetts Commission Against Discrimination within 300 days of the conclusion of grievance proceedings into which the employee had entered with the defendant employer within 300 days of the complained of conduct. [628-629] In a civil action alleging, inter alia, discrimination in employment on the basis of race and age, the Superior Court judge erred in granting summary judgment in favor of the defendants (the plaintiff’s former employer and certain members of the employer’s staff), where the plaintiff employee, after demonstrating that he was performing his job at an acceptable level and that his termination occurred in circumstances that would raise a reasonable inference of unlawful discrimination, presented evidence on which a jury could reasonably find that the defendants’ articulated reason for the plaintiff’s termination was a pretext and that the true reason was discriminatory animus [629-630]; moreover, the judge erred in granting summary judgment in favor of the defendants on the plaintiff’s claims of retaliation, where, because the defendants never adequately addressed these claims, the summary judgment burden never shifted to the plaintiff, but even if it had, the plaintiff placed the issues of motivation and causation into legitimate dispute [630]; further, the judge erred in granting summary judgment in favor of the defendants on the plaintiff’s claim of intentional interference with advantageous relations, which turned on whether the plaintiff met his burden with respect to his discrimination claim [634]. In a civil action in which the plaintiff employee alleged, inter alia, discrimination in employment on the basis of race and age in violation of G. L. c. 151B, the Superior Court judge properly granted summary judgment in favor of the defendants on a claim under the Massachusetts Equal Rights Act, where G. L. c. 151B provides the exclusive remedy for employment discrimination not based on preexisting tort law or constitutional protections. [630-633] This court declined to reach a claim that fell below acceptable standards of appellate argument. [633] In a civil action alleging, inter alia, two claims of defamation, the Superior Court judge properly granted summary judgment in favor of the defendants, where, with respect to one claim, the plaintiff failed to demonstrate publication, and with respect to the other claim, the memorandum at issue was not defamatory on its face, and even if it were, the memorandum was subject to conditional privilege. [634] In a civil action alleging, inter alia, breach of the covenant of good faith and fair dealing in an employment setting, the Superior Court judge erred in granting summary judgment in favor of the defendant employer, where the plaintiff provided sufficient record support to permit a jury to find that the defendant’s employment policies applied to the plaintiff, and to decide whether the plaintiff suffered economic harm as a result of the loss of his right under these policies to an internal appeal. [634-635] Civil action commenced in the Superior Court Department on February 14, 2006. The case was heard by Nancy S. Holtz, J., on a motion for summary judgment. Farouk Martins, pro se. Jean Marie Kelley for the defendants. Charles Cook, Nancy Kealey, and Anthony Zanette. Brown, J. The point of law we are required to clarify in this case is whether a complainant seeking a judicial remedy for discrimination who has satisfied his administrative requirements may bring parallel claims under G. L. c. 93, §§ 102-103, the Massachusetts Equal Rights Act (MERA), in addition to his G. L. c. 15 IB claims in court. Although the Supreme Judicial Court unequivocally answered this question in the negative in 1994, an element of uncertainty has crept into the case law. We now reiterate that where, as here, G. L. c. 15IB remedies are or were available to a complainant, those remedies are exclusive, preempting the joining of parallel MERA claims on removal to court. Accordingly, we affirm the summary judgment entered in favor of the employer on the plaintiff’s MERA claims here. As we conclude that the judge properly ordered summary judgment to enter on only two of the plaintiff’s remaining five claims, further proceedings in the Superior Court will be required. 1. Facts. On de novo review of summary judgment, see Miller v. Cotter, 448 Mass. 671, 676 (2007), we rehearse the facts of record in their aspects most favorable to Martins. See Chervin v. Travelers Ins. Co., 448 Mass. 95, 96 (2006). In May, 2000, the Executive Office of Health and Human Services (EOHHS) hired Farouk Martins, a fifty-one year old black man, as a program manager to work in the benefit coordination and recovery unit (BCRU). Previously, Martins had worked as a manager at Boston City Hospital. At EOHHS, Martins managed the health insurance premium program. Martins was the only black manager in BCRU, the first black manager ever hired, and the oldest mid-level manager. Through the end of June, 2003, Martins received commendable and meritorious job evaluations. In August or September, 2003, Nancy Kealey, the director of revenue operations of BCRU, selected Anthony Zanette for the position of revenue operations manager. Martins, who previously , was above Zanette in the organizational chart, was required to report to Zanette. After initially rejecting the reporting relationship, Martins accepted Zanette’s supervision rather than face disciplinary action. During their individual meetings, Zanette repeatedly subjected Martins, over his objections, to coarse and vulgar language. Moreover, on several occasions, Charles Cook, the director of BCRU, threatened to put Martins “on the street where [he] belonged and replace [him] with a younger manager.” Cook also expressed his view to Martins that city of Boston managers were not equal (i.e., inferior) to State managers. Notwithstanding the favorable job evaluations from Martins’s immediate managers, Cook offered Martins a deal to leave BCRU, promising to give him any recommendation he wanted if he left voluntarily. Martins rejected the offer. When the Commonwealth medicine revenue operations program at the University of Massachusetts Medical School (UMMS) took over the functions of the BCRU, the bulk of the BCRU staff transferred to UMMS. All BCRU staff were classified by UMMS as new hires subject to a six-month probationary period. Cook and Kealey became official UMMS employees before Martins in either 2002 or 2003. On February 1, 2004, Martins became a UMMS employee, receiving the title of revenue operations assistant manager, which Martins viewed as a demotion. At UMMS, Martins reported first to Kealey and then later to Zanette. After learning about his new placement in late January, 2004, Martins complained about the discrimination to Susan Levine, his UMMS contact person. Levine subsequently assured him that she had looked into the matter and that the other similarly situated BCRU managers, all white, had received the same position and title at UMMS. When Martins received a contact list from a UMMS revenue operations program he attended in June, 2004, however, he learned that all his former colleagues had been made managers at UMMS. Before Martins became a UMMS employee, Pat Hart, a contractor, at Zanette’s request, documented inaccuracies in Martins’s spreadsheets and other shortcomings in Martins’s work. On several occasions at EOHHS and at UMMS, Martins complained to Zanette that he was unable to read the size nine font required on the spreadsheets. Zanette refused to allow Martins to use either a larger font size or capitals and abbreviations because the spreadsheets were expected to look a certain way and changes would cause the form not to run properly. In March, 2004, Martins formally complained to Catherine Parker, UMMS’s manager of employee and labor relations, and to Julie Forgione, the assistant director of UMMS, that he was being treated differently from other employees. Martins maintained that he was being ostracized, stripped of his managerial duties, and humiliated and insulted by Zanette in front of his coworkers. Martins also specifically complained to Parker, Kealey, and Forgione about Zanette’s continuing use of “obscene” language, asking that it be stopped. Although Martins applied for higher level managerial positions in March or April, 2004, he was passed over in favor of white applicants, including Zanette, who were more than ten years younger than Martins. In April, 2004, Zanette and Kealey met with Martins to discuss performance issues. At the end of May, Zanette reported to For-gione an improvement in Martins’s attitude, performance, and interaction with his customers. Forgione congratulated Zanette in turning around a difficult situation. On June 3, 2004, Zanette completed his evaluation of Martins, rating him as meeting standards (the highest of the three available ratings) both overall and on six of eight categories. Disappointed with the evaluation because Zanette had recently informed him that he “was doing a good job,” Martins refused to sign it. After the evaluation, Zanette told everyone that he and Martins were getting along well. In connection with its 2004 better government competition, the Pioneer Institute for Public Policy Research selected Martins’s program for an award. On June 11, 2004, Kealey sent the members of the unit, including Martins, a memorandum congratulating them and commending them for their hard work. A week later, during a routine meeting, Zanette yelled at Martins that “he [was] paying [Martins] and [he had] to do whatever it is he wants.” When Zanette brought up the subject of mistakes on the spreadsheets again, Martins told Zanette that the font size needed to be increased. Zanette responded, “[Y]ou are too fucking old to see.” Zanette then turned to Martins’s appearance, exclaiming that he “look[ed] like fuck.” Zanette asked why Martins did not leave and find another job. As Martins got up and attempted to leave the room, Zanette told him “to sit the fuck down” as he was not finished with him. A coworker, Elsa Rodriguez, who was present during the altercation, corroborated Martins’s account concerning Zanette’s hostility and inappropriate conduct toward him. Later that same day, Martins sent an electronic mail message (e-mail) to Zanette, requesting that Zanette keep their meetings strictly at a professional level. On June 21, 2004, Martins reported Zanette to Kealey and to Forgione. On June 28, 2004, Zanette informed Martins that his UMMS employment was terminated, advising him that UMMS’s grievance procedure entitled him to a hearing on the matter. Parker made arrangements to have a State police officer in plain clothes, in addition to the usual security, present during the termination. After giving Martins fifteen minutes to pack his belongings, three individuals escorted Martins from the building. Martins had no history of violence or of making threats. Kealey was unaware of armed security being used in connection with any previous employee terminations. That evening, an interagency memorandum regarding the “personnel action” was sent by e-mail to the other tenants of 600 Washington Street, the building in which Martins had worked, and forwarded to UMMS’s office staff. Employees were reminded not to let anyone, including “familiar faces,” enter the workspace without an access card. On some undisclosed date in July, 2004, Martins filed an internal discrimination complaint with UMMS’s equal opportunity office. On November 1, 2004, following an investigation, the grievance proceedings ended unfavorably for Martins. On December 23, 2004, Martins filed his administrative complaint at the Massachusetts Commission Against Discrimination (MCAD). 2. Discussion, a. Count 1 (G. L. c. 15IB, §§ 4[1], 4[1C], & 4[4]). (i) Statute of limitations. Most, if not all, of the discriminatory actions at issue in this litigation, including the demotions, failures to promote, retaliation, and termination, occurred between January, 2004, and June 28, 2004. Where, as here, the complainant entered into grievance proceedings with his employer concerning the alleged discriminatory acts within 300 days of the complained of conduct and filed his complaint at MCAD within 300 days of the conclusion of those proceedings, the statute of limitations was tolled during the pendency of those proceedings. See G. L. c. 151B, § 5, as amended by St. 2002, c. 223, § 1; 804 Code Mass. Regs. § 1.10(2) (2004); Silvestris v. Tantasqua Regional Sch. Dist., 446 Mass. 756, 770 (2006). Thus, factoring out that four-month period (July to November, 2004) here, Martins’s MCAD complaint (filed in December, 2004) was timely as to all these complained of actions, and the statute of limitations does not bar this action. To the extent that the defendants seek the affirmance of the summary judgment as to Cook individually, at least some of Cook’s alleged discriminatory acts occurred within the statutory period. On this record, the defendants have failed to show that Cook was entitled to summary judgment based on a limitations defense. See Silvestris v. Tantasqua Regional Sch. Dist., 446 Mass. at 766-767; O’Connor v. Redstone, 452 Mass. 537, 550-551 (2008). (ii) Race and age discrimination. The defendants argue that Martins was unable to show not only that he performed his job at an acceptable level, a necessary element of his prima facie cases of race and age discrimination, but also that his termination occurred in circumstances that would raise a reasonable inference of unlawful discrimination. We disagree. Martins never received an unfavorable performance evaluation. Given Martins’s “meet[ing] standards” performance evaluation, the positive feedback from Zanette, the Pioneer award, and the personal commendation from Kealey — all occurring in Martins’s last month of employment — as well as the discriminatory remarks by Zanette, a decision maker, made one week before the termination, Martins met his stage-one burden under either formulation. See Knight v. Avon Prod., Inc., 438 Mass. 413, 425-426 & n.9 (2003); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 40-46 (2005); Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Commn. Against Discrimination, 449 Mass. 675, 682-683 (2007); Somers v. Converged Access, Inc., 454 Mass. 582, 598 (2009). Martins met his burden at the third stage with proof of disparate treatment that could be considered together with the strong prima facie evidence of adequate job performance. Here, upon transfer to UMMS, Martins was the only BCRU manager to receive the title and position of assistant manager. At UMMS, Martins repeatedly complained without success to senior management about Zanette’s unprofessional language. No other manager was subjected to this abusive treatment. Moreover, in deviation of regular practice, armed security was hired to escort Martins, a middle-aged program manager with no history of violence, out of the building upon his termination. Based on this evidence, a jury could reasonably find that the articulated reason for Martins’s termination was a pretext and that the true reason was discriminatory animus. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000); Somers v. Converged Access, Inc., 454 Mass. at 599. (iii) Retaliation. Martins alleges that, as a result of his internal complaints of discrimination in late January, March, and June, 2004, he was effectively demoted and fired within a week of his last complaint. The defendants have not adequately addressed these claims in their brief. Because the defendants have failed to demonstrate the absence of a genuine issue of material fact on every relevant issue, the summary judgment burden never shifted to Martins here. See Fortenbacher v. Commonwealth, 72 Mass. App. Ct. 82, 85 (2008). In any event, even if the defendants did manage to shift the burden, Martins placed the issues of motivation and causation into legitimate dispute. See Mole v. University of Mass., 442 Mass. 582, 591-592 (2004); Ritchie v. Department of State Police, 60 Mass. App. Ct. 655, 663-666 (2004). The claims should have been submitted to the jury. b. Count II (G. L. c. 93, § 103[a]). In 1994, the Supreme Judicial Court held that “where applicable, G. L. c. 15 IB provides the exclusive remedy for employment discrimination not based on preexisting tort law or constitutional protections.” Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 (1994) (finding plaintiff’s discrimination claims under MERA barred). In that case, the plaintiff proceeded solely on a MERA claim in court, attempting to bypass both c. 15 IB and MCAD completely. See id. at 581. In contrast, the plaintiff in Agin v. Federal White Cement, Inc., 417 Mass. 669 (1994), decided two weeks later, did attempt (without success) to exhaust his remedies at MCAD before filing parallel c. 15 IB and MERA claims in the Superior Court. See id. at 672. In an effort to provide guidance to trial court judges, the Supreme Judicial Court stated, “[Sjhould a judge decide that G. L. c. 151B is or was available to the plaintiff, the plaintiff would have no viable c. 93, § 103, claim under the teaching of Charland.” Read together, these cases established that the right to file a parallel MERA claim in court turns not on the proper exhaustion of administrative remedies, but on the availability of a remedy under c. 151B. Jancey v. School Comm. of Everett, 421 Mass. 482 (1995), appears to have blurred the bright-line rule. In that case, after timely complying with the procedural requirements of c. 15IB, the plaintiffs filed claims in court under c. 151B and parallel claims, inter alia, under G. L. c. 149, § 105A, the Massachusetts Equal Pay Act, and MERA. The Supreme Judicial Court concluded that the plaintiffs’ parallel c. 149 claims, while subject to MCAD’s administrative process, were not barred by the exclusivity provision of c. 151B, § 9. See id. at 495-497. The primary rationale for that conclusion was the clear evidence of legislative intent. See id. at 496. In the part of the decision most relevant for present purposes, the court concluded that the “core” holding of Charland did not apply because the plaintiffs in Jancey had timely exhausted their remedies at MCAD. See id. at 498 n.14. The court also directed readers to Agin, which was analogous only to the extent that the plaintiff there had attempted exhaustion. While recognizing the continuing import of Charland and Agin, some commentators read Jancey as holding out the possibility of parallel MERA and c. 151B claims proceeding in court as long as administrative remedies were properly exhausted. See Moriearty, Adkins, Rubin, & Jackson, Employment Law §§ 10.1 & 10.4 (2d ed. 2003). The issue has caused confusion in the Superior Court, resulting in inconsistent decisions. Any confusion should have been dispelled by our appellate courts, reaffirming the rule of preemption stated in Charland and Agin. See Mammone v. President & Fellows of Harvard College, 446 Mass. 657, 681 n.l (2006) (Greaney, J., dissenting); Carleton v. Commonwealth, 447 Mass. 791, 812 (2006); Cargill v. Harvard Univ., 60 Mass. App. Ct. 585, 604 (2004).

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