Hostile Work Environment Cases

ELEZOVIC v FORD MOTOR COMPANY Docket No. 267747. Submitted August 2, 2006, at Lansing. Decided January 25, 2007, at 9:00 a.m. Leave to appeal sought. Lula and Joseph Elezovic brought an action in the Wayne Circuit Court against the Ford Motor Company and Daniel E Bennett under the Civil Rights Act (CRA), MCL 37.2101 et seq., seeking damages for alleged sexual harassment resulting from a hostile work environment. The plaintiffs alleged that Bennett, a supervisor at the Ford plant where Lula Elezovic worked, exposed himself to her, requested oral sex, and repeatedly engaged in other sexually offensive conduct. The trial court, Kathleen I. Macdonald, J., granted directed verdicts in favor of the defendants. The Court of Appeals, JANSEN, EJ, and Neff, J. (Kelly, J., concurring), affirmed, holding that it was bound to follow the rule in Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464 (2002), that a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiffs civil rights. 259 Mich App 187 (2003). The Court stated that, were it not bound by MCR 7.215(J) to follow Jager, it would have reached the opposite result. On appeal, the Supreme Court overruled Jager to hold that an agent of an employer may be held individually liable under the CRA, and remanded this case to the trial court for further proceedings regarding Bennett. 472 Mich 408 (2005). On remand, the trial court granted Bennett’s motion for summary disposition on the ground that he was not functioning as an agent of Ford under the CRA when he committed the claimed acts of sexual harassment. Lula Elezovic appealed, and Bennett cross-appealed by delayed leave granted, challenging the trial court’s denial of his renewed pretrial motion for summary disposition of the hostile work environment claim on its merits. The Court of Appeals held-. 1. The trial court erred in concluding that, because Ford had not given Bennett the authority to create a sexually hostile work environment, he was not functioning as an agent of Ford when he allegedly committed the unlawful acts of discrimination. Under the CRA, the term “employer” includes an agent of the employing entity. Agents are persons to whom the employing agency delegates supervisory power and authority over subordinates. An agent can be held directly and individually hable for engaging in discriminatory behavior in violation of the CEA while acting as the victim’s employer. This conclusion is consistent with the Legislature’s intent to eradicate the evil of sexual discrimination in the workplace, with prevailing law related to torts committed by agents, and with the rule that remedial statutes must be construed liberally to suppress the evil and advance the remedy. The narrower construction urged by the dissent would effectively insulate the tortfeasor agent from personal accountabihty for creating the very conditions that the CRA was enacted to prevent. Contrary to the dissent’s contention, the common-law agency principles on which courts have relied to determine whether to hold employers hable for harassment that their employees committed are not applicable here, because this case involves direct, not vicarious, liability. Therefore, if Elezovic can establish a prima facie case of hostile work environment sexual harassment against Bennett, absent the respondeat superior requirement, she may be entitled to damages for which Bennett is individually hable. 2. The trial court did not err in denying Bennett’s motion for summary disposition on the ground that Elezovic’s allegations of hostile work environment sexual harassment were insufficient as a matter of law. Elezovic presented evidence that, while Bennett was her supervisor, he repeatedly engaged in sexual conduct in her presence that a reasonable person would conclude was hostile, intimidating, or offensive. Although Elezovic did not supply specific dates and times in connection with her allegations, she has nonetheless established a genuine issue of material fact regarding whether Bennett subjected her to a hostile work environment. Reversed and remanded for further proceedings. Talbot, J., dissenting, stated that because the undisputed facts reflect that, under common-law agency principles, Bennett’s acts of sexual harassment occurred outside the scope of his authority as a Ford superintendent and violated Ford’s antidiscrimination policy, Bennett was not acting as Ford’s agent when he committed the alleged acts of sexual harassment, and he therefore does not meet the definition of an “employer” under the CRA. Accordingly, the trial court properly granted Bennett summary disposition with respect to Elezovic’s CRA claim. 1. Civil Rights — Civil Rights Act - Employees — Agents — Individual Liability. An agent of an employer may be held individually hable under the Civil Rights Act for sexually harassing an employee in the workplace (MCL 37.2101 et seq.). 2. Civil Rights — Civil Rights Act — Employees — Agents — Definition. An agent of an employer, for purposes of the Civil Rights Act, is a person to whom an employing entity has delegated supervisory power and authority to act on its behalf (MCL 37.2101 et seq). 3. Civil Rights — Civil Rights Act — Employees — Agents — Scope of Authority. An agent of an employer may be held individually hable for violating the Civil Rights Act in the workplace regardless of whether the underlying acts were outside the scope of the agent’s authority because an action for individual liability does not seek to hold the principal hable for the agent’s acts (MCL 37.2101 et seq). Edwards & Jennings, EC. (by Alice B. Jennings), for Lula Elezovic. Kienbaum Opperwall Hardy & Felton, F.L.C. (by Julia Turner Baumhart and Elizabeth Hardy), for Daniel Bennett. Before: CAVANAGH, EJ., and SMOLENSK! and TALBOT, JJ. CAVANAGH, EJ. This appeal follows the remand of this matter to the circuit court by our Supreme Court for consideration of plaintiff Lula Elezovic’s sexual harassment claim premised on a hostile work environment theory, MCL 37.2103(i)(iii), against her former supervisor, defendant Daniel Bennett, only. On remand, the circuit court granted defendant’s motion for summary disposition on the ground that, under the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq., defendant was not functioning as an “agent” of the Ford Motor Company when he committed the charged acts of sexual harassment. Elaintiff appeals this decision. Defendant cross-appeals by delayed leave granted, challenging the trial court’s denial of his renewed pretrial motion for summary disposition of plaintiffs hostile work environment claim on its merits. Because the facts related to this matter have been extensively detailed in previous opinions, we reiterate only the salient facts here. See Elezovic v Ford Motor Co, 472 Mich 408, 411-418; 697 NW2d 851 (2005); Elezovic v Ford Motor Co, 259 Mich App 187, 190-191; 673 NW2d 776 (2003). Plaintiff was an hourly production worker at Ford’s Wixom assembly plant when she was allegedly sexually harassed by defendant, her supervisor. She brought sexual harassment claims against both Ford and defendant. Following a three-week jury trial, the trial court granted defendants’ motion for a directed verdict, holding that plaintiff failed to establish a prima facie case of sexual harassment against either Ford or defendant. On appeal, this Court affirmed the trial court’s decisions. With regard to defendant, this Court relied on the then-recent case of Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464, 485; 652 NW2d 503 (2002), which held that a supervisor may not be held individually liable for violating the CRA. Elezovic, 259 Mich App at 197, 202. Our Supreme Court granted leave to appeal, and affirmed with regard to the issue of Ford’s liability. Elezovic, 472 Mich at 430. However, the Court overruled the Jager holding, concluding that an agent who sexually harasses an employee in the workplace can be held individually liable under the CRA. Id. at 411. The Court remanded the matter to the circuit court for further proceedings regarding defendant. Id. at 431. As noted above, on remand, the circuit court granted defendant’s renewed motion for summary disposition on the ground that defendant was not functioning as an “agent” of Ford when he committed the charged acts of sexual harassment. This appeal followed. Plaintiff argues that the trial court erred in concluding that defendant was not functioning as an “agent” of Ford under the CRA when he committed the charged acts of sexual harassment and, thus, could not be held individually liable. We agree. This Court reviews de novo the ruling on a motion for summary disposition. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). Although the trial court did not specify under which subrule of MCR 2.116(C) it found summary disposition appropriate, because the court looked beyond the pleadings, it appears that the decision was premised on MCR 2.116(0(10). MCR 2.116(0(10) tests the factual support of a claim and requires this Court to consider the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact warranting a trial exists. Walsh, supra. This Court also reviews de novo issues of statutory interpretation. Bloomfield Twp v Oakland Co Clerk, 253 Mich App 1, 9; 654 NW2d 610 (2002). Our purpose in reviewing questions of statutory construction is to discern and give effect to the Legislature’s intent. Echelon Homes, LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005). We begin our analysis by examining the plain language of the statute. If the language is unambiguous, no judicial construction is required or permitted and the statute must be enforced as written. Id., quoting People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). The undefined words of a statute must be given their plain and ordinary meaning, which may be ascertained by looking at dictionary definitions. Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). The CRA is remedial and thus must be “liberally construed to suppress the evil and advance the remedy.” Eide v Kelsey-Hayes Co, 431 Mich 26, 34; 427 NW2d 488 (1988). One of the purposes of the CRA, specifically MCL 37.2202, is to eradicate particular forms of discrimination in the workplace. See Champion v Nation Wide Security, Inc, 450 Mich 702, 713; 545 NW2d 596 (1996). “MCL 37.2202 forbids any employer from engaging in acts of discrimination that are prohibited by the CRA.” McClements v Ford Motor Co, 473 Mich 373, 386; 702 NW2d 166, amended 474 Mich 1201 (2005) (emphasis in original). One form of discrimination the CRA prohibits is discrimination based on sex. MCL 37.2202(1). Thus, an employer shall not discriminate on the basis of sex, which includes sexual harassment. MCL 37.2202(l)(a); MCL 37.2103®. The CRA is the exclusive remedy for a claim based on sexual harassment. McClements, supra at 383. There are two categories of sexual harassment: (1) quid pro quo and (2) hostile work environment. See Chambers v Trettco, Inc, 463 Mich 297, 310-311; 614 NW2d 910 (2000). At issue in this case is the latter type, hostile work environment sexual harassment, which is defined to include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions: (Hi) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment... or creating an intimidating, hostile, or offensive employment. .. environment. [MCL 37.2103(i).] When the hostile work environment is created by the actions of coworkers and other coemployees, the alleged victim seeking a remedy under the CRA must file a claim of hostile work environment sexual harassment against her employer on a vicarious liability theory. See, e.g., Gilbert v DaimlerChrysler Corp, 470 Mich 749, 791-792; 685 NW2d 391 (2004). Thus, to establish a prima facie case of hostile work environment sexual harassment, the plaintiff employee must prove (1) that she belonged to a protected group; (2) that she was subjected to communication or conduct on the basis of sex; (3) that she was subjected to unwelcome sexual conduct or communication; (4) that the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with her employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. See Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993). Respondeat superior liability exists when an employer has adequate notice of the harassment and fails to take appropriate corrective action. See Chambers, supra at 318-319. However, “if an employer is accused of sexual harassment, then the respondeat superior inquiry is unnecessary because holding an employer liable for personal actions is not unfair.” Radtke, supra at 397 (emphasis in original). Thus, when the hostile work environment is created by the actions of the employer, the alleged victim seeking a remedy under the CRA may file such a claim against her employer premised on a direct theory of liability. Similarly, this case involves not vicarious liability but the individual liability of the alleged sexual harasser, who is a purported “agent” of the employing entity, not a coworker. In this case, defendant argued in the trial court on remand that plaintiffs case had to be summarily dismissed because defendant was never vested with authority to create a sexually hostile work environment; i.e., defendant “was not Ford’s agent for purposes of creating a sexually hostile work environment.” The trial court agreed with defendant, granting defendant’s motion for summary disposition on the ground that defendant was not functioning as an agent at the time he committed the alleged unlawful acts of discrimination. We conclude that both defendant and the trial court misconstrued the applicable legal principles of agency. This unjust and unreasonable result permits an agent to pursue and accomplish his illegal objective by using his position and power, but immunizes him from liability because he was not supposed to do that. In other words, in this case, defendant could not be held personally liable for violating the purported victim’s civil rights because Ford did not tell him to sexually harass her. We do not believe that the Legislature intended this incongruous result. Article 2 of the CRA defines an “employer” as “a person who has 1 or more employees, and includes an agent of that person.” MCL 37.2201(a). Our Supreme Court, in this case, declared that an agent of an employer is considered an “employer” for purposes of the CRA, holding: [W]hen a statute says “employer” means “a person who has 1 or more employees, and includes an agent of that person,” it must, if the words are going to be read sensibly, mean that the Legislature intended to make the agent tantamount to the employer so that the agent unmistakably is also subject to suit along with the employer. (Emphasis added.) Indeed, when we said in Chambers [v Trettco, Inc, 463 Mich 297, 320; 614 NW2d 910 (2000)], that categorizing a given pattern of misconduct allows the Court “to determine whether the sexual harasser’s employer, in addition to the sexual harasser himself, is to be held responsible for the misconduct,” we believe we said as much. (Emphasis in original.) Accordingly, we reject the argument that including “agent” within the definition of “employer” serves only to provide vicarious liability for the agent’s employer and we conclude that it also serves to create individual liability for an employer’s agent. [Elezovic, 472 Mich at 420.] The Court also specifically held: Because we find that (1) inclusion of an “agent” within the definition of the word “employer” is not limited to establishing vicarious liability for the agent’s employer, but in fact means agents are considered employers, (2) federal decisions construing Title VII should not be followed because it would lead to a result contrary to the text of our CRA, and (3) the amendment history of the CRA does not preclude a finding of individual liability, we conclude that liability under our CRA applies to an agent who sexually harasses an employee in the workplace. [Id. at 426.] Again, our Supreme Court reiterated in its conclusion that “[b]ecause employers can be held liable under the CRA, and because agents are considered employers, agents can be held liable, as individuals, under the CRA.” Id. at 431. The clear result of the Supreme Court’s conclusion is that if the purported harasser is an agent of the employing entity, the harasser is treated as if he is the employer for purposes of the CRA. In other words, the harasser may be held directly and individually liable if he engaged in discriminatory behavior in violation of the CRA while acting in his capacity as the victim’s employer. Therefore, a respondeat superior analysis is not necessary with respect to the agent’s direct and individual liability because this is not a claim of vicarious liability. See Chambers, supra at 311; Radtke, supra. Next, we must determine when one is considered an “agent” and, thus, an employer under the CRA. The CRA does not define the term “agent,” so we may turn to a dictionary for guidance on its plain and ordinary meaning. See Koontz, supra. An agent is “a person or business authorized to act on another’s behalf” and “a person or thing that acts or has the power to act.” Random House Webster’s College Dictionary (1997). And, if “agent” is considered a legal term, its meaning is the same: “[o]ne who is authorized to act for or in place of another.” Black’s Law Dictionary (7th ed). These definitions are consistent with general agency principles, Stephenson v Golden (On Rehearing), 279 Mich 710, 734-735; 276 NW 849 (1937), and the fact that “most employers are corporate entities that cannot function without delegating supervisory power.” Champion, supra at 713. We conclude that it is through this delegation of general supervisory power and authority that one becomes an “agent” of the employing entity and, thus, an employer within the context of the CRA. Specifically, persons to whom an employing entity delegates supervisory power and authority to act on its behalf are “agents,” as distinguished from coemployees, subordinates, or coworkers who do not have supervisory powers or authority, for purposes of the CRA. If this agent is also the alleged sexual harasser, the agent is considered an employer under the CRA and may be directly and individually liable for this tort against the victim, whether or not the employing entity is liable. Again, MCL 37.2202 prohibits any employer from engaging in acts of discrimination that are prohibited by the CRA. McClements, supra at 386. Contrary to defendant’s argument, the trial court’s holding, and the dissent in this case, it is not necessary for a plaintiff to establish that a defendant was “functioning as an agent” when he committed the charged specific acts of sexual harassment charged. Almost invariably, the harasser is never acting within the scope of his agency when he breaks the law by sexually harassing a subordinate. As our Supreme Court has noted, “an employer rarely authorizes an agent to break the law or otherwise behave improperly. . . .” Champion, supra at 712 n 7. The issue is not whether the harassing acts were within the scope of the agent’s authority — the plaintiff is not attempting to hold the principal liable for the agent’s acts. The issue is whether the harasser was an agent, one vested with supervisory power and authority, at the time the harassing acts were being perpetrated against the victim; if so, the harasser is considered an employer for purposes of the CRA. We disagree with the dissent’

Trustees of Health and Hospitals of the City of Boston, Inc. vs. Massachusetts Commission Against Discrimination & others. No. 04-P-1036. Suffolk. May 13, 2005. December 23, 2005. Present: Laurence, Duffly, & Katzmann, JJ. Further appellate review granted, 447 Mass. 1104 (2006). Administrative Law, Judicial review, Agency’s interpretation of statute, Substantial evidence. Anti-Discrimination Law, Termination of employment, Prima facie case, Burden of proof. Employment, Discrimination, Termination. Damages, Interest. Interest. Governmental Immunity. The complainants in an employment discrimination action offered sufficient evidence to establish a prima facie case of discrimination based on race and sex, where, in addition to showing that they were members of a protected class; that the manner in which they were laid off constituted terms, conditions, or privileges of employment; and that they had performed acceptably, the complainants proved that they were treated worse by their employer than all potential comparators. [333-336] This court concluded that in an employment discrimination action, the Massachusetts Commission Against Discrimination may award prejudgment interest against the Commonwealth under G. L. c. 151B. [336-339] Civil action commenced in the Superior Court Department on June 19, 2002. The case was heard by Thomas E. Connolly, J., on motions for judgment on the pleadings. Steven Locke for Massachusetts Commission Against Discrimination. Kelly M. Bonnevie (Marc L. Breakstone with her) for Veronica Higginbottom & others. Christine M. Hayes for the plaintiff. Gloria Coney, Belinda Chambers, Veronica Higginbottom, Marlene Hinds, and Betty Smith. Katzmann, J. Five female, African-American employees (complainants) of the Trustees of Health and Hospitals of the City of Boston, Inc. (THH), filed an employment discrimination claim with the Massachusetts Commission Against Discrimination (MCAD), alleging that they were subjected to differential treatment during their terminations as part of an organized layoff, in violation of G. L. c. 15IB, § 4. The hearing officer and the MCAD found that THH discriminated against the complainants because of their race and sex and awarded damages for emotional distress. A Superior Court judge vacated the award, concluding that the MCAD had applied an improper legal standard, and granted THH’s motion for judgment on the pleadings. The complainants appeal from that ruling. They also appeal from the MCAD’s decision to vacate the hearing officer’s award of prejudgment interest against THH. We conclude that the hearing officer and the MCAD were correct in determining that the complainants had suffered discrimination, and were entitled to damages for emotional distress. We thus reverse the Superior Court judge’s decision, and we reinstate the MCAD’s order on those claims. Additionally, we reinstate the hearing officer’s award of prejudgment interest to the complainants. Facts. We relate the relevant facts as found by the hearing officer. In July, 1994, in response to funding cutbacks, THH laid off five African-American women — Gloria Coney, Belinda Chambers, Veronica Higginbottom, Marlene Hinds, and Betty Smith — from its Healthy Baby/Healthy Child Program. Each of these women was a full-time employee at THH’s Hyde Park office. At least one of them was a management-level employee. During these same layoffs, THH also laid off Christopher Navin, a Caucasian man who worked in the Healthy Baby/ Healthy Child Program at the Hyde Park location, as well as at a Boston location, and at times, from his home. He was a permanent part-time employee who was responsible for reviewing and making recommendations concerning the Healthy Baby/ Healthy Child Program’s organizational structure. Navin’s layoff and the layoffs of the complainants were strikingly different in their execution. Marjorie Perkins, the program director of the Healthy Baby/ Healthy Child Program, was in charge of the layoffs. She learned on or before June 30, 1994, that there would have to be layoffs in the program. After Perkins chose the employees who were going to be laid off, she requested assistance from THH’s management in carrying out the layoffs. The director of labor relations, Teri McNamara, was sent to assist her. On numerous occasions, Perkins and McNamara discussed the manner in which the layoffs were to be conducted. Coney and Hinds were laid off on July 19, 1994, when Perkins and McNamara called them into Perkins’s office and informed them that they were being laid off effective immediately, and that they should collect their belongings and leave within thirty minutes. In full view of their coworkers and Hinds’s daughters (who happened to be at the office), McNamara and two other employees monitored Coney and Hinds as they packed their things. The monitoring was such that Hinds’s daughters thought their mother was being observed to prevent stealing. Perkins and one of the employees examined Coney’s belongings as she packed, including an inspection of her lunch bag. She was told that the monitoring was to ensure she did not take anything issued by THH. Coney refrained from using the restroom because she felt she would be watched. She asked for special permission to return the following day to collect the rest of her things. She was allowed to do so, again under the supervision of an employee. Coney did not have an opportunity to say goodbye to her coworkers, some of whom cried and asked if she was being arrested. Higginbottom, Chambers, and Smith were not at work on July 19. On July 20, they were summoned to Perkins’s office, informed that they were being laid off effective immediately, and sent to pack their belongings. They were monitored in a fashion similar to the scrutiny Hinds and Coney had endured. Notably, Smith did not have an opportunity to collect all her belongings and left photographs and certificates in the office. In addition, McNamara pulled papers out of Chambers’s hands as Chambers packed and “order[ed] Chambers around.” Chambers’s officemate cried as Chambers packed. McNamara also refused to allow Chambers to contact her clients to tell them she would not make her appointments that day. Finally, after several requests, McNamara permitted Chambers to take the telephone numbers of some of her clients home to contact them later. These layoff procedures stand in stark contrast to the treatment Navin received upon his termination. Navin was given a month’s advance notice of his layoff. He was allowed to come to the office at his convenience to receive his termination notice. After being told that a particular employee whom he knew from another job was to give him his notice, he requested that it be a different employee, and his request was granted. Navin was not monitored as he cleaned out his desk and he was permitted to walk around the building freely to say goodbye to his coworkers. A week later, he returned to the office, but was asked to leave because there had been allegations of discrimination concerning the layoffs. Within two weeks following the layoffs, THH Commissioner Lawrence Dwyer apologized to the complainants at a union meeting, stating that the treatment they received would not be repeated during his tenure. Dwyer also offered Chambers and Higginbottom another job. They rejected this offer. The complainants thereafter filed their complaint with the MCAD. Their theory of liability was not that THH discriminated in its choice of whom to lay off, but rather in the manner in which it executed the layoff. At the hearing, McNamara testified that she and Perkins had decided on the layoff procedures because they were concerned for their safety and to prevent vandalism and theft at the office, especially with regard to confidential patient files. The hearing officer concluded that these reasons were merely a pretext for THH’s actions. He found that the complainants suffered emotional harm as victims of discrimination, and awarded them damages based on these injuries. The MCAD affirmed this award. THH subsequently appealed the decision to the Superior Court via G. L. c. 30A; THH’s motion for judgment on the pleadings was allowed. Standard of review. We generally review an agency’s interpretation of law de nova. See, e.g., Hogan v. Labor Relations Commn., 430 Mass. 611, 613 (2000). However, we grant deference to the interpretations administrative agencies make of the statutory scheme that they administer. Somerset Importers, Ltd. v. Alcoholic Beverages Control Commn., 28 Mass. App. Ct. 381, 385 (1990). See Heublein, Inc. v. Capital Distrib. Co., 434 Mass. 698, 705 (2001). Further, “[w]e will affirm a decision and order of the MCAD unless the findings and conclusions are unsupported by substantial evidence or based on an error of law.” Salem v. Massachusetts Commn. Against Discrimination, 44 Mass. App. Ct. 627, 640-641 (1998). Discrimination claims under G. L. c. 151B. The complainants’ discrimination claims are based on alleged violations of G. L. c. 151B, § 4, as amended by St. 1965, c. 397, § 4, which, in relevant part, makes it unlawful “[f]or an employer, by himself or his agent, because of the race [or] sex ... of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” Specifically, the complainants assert that THH discriminated against them in the “terms, conditions or privileges of employment” by its degrading differential treatment of them during their layoffs, which they claim was due to the fact that they are African-American women. Claims of discrimination under G. L. c. 15 IB are usually evaluated using a three-stage test. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440-441 (1995) (Blare). Applying this test, the hearing officer found in favor of the complainants and the MCAD affirmed the decision. The Superior Court judge, however, concluded that the MCAD erred in the application of the first stage of this test. To survive this first stage, the complainants were required to establish a prima facie case of discrimination by a preponderance of the evidence. Blare, 419 Mass. at 441. See Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 665 n.22 (2000) (discriminatory failure to hire); Knight v. Avon Prods., Inc., 438 Mass. 413, 420-421 (2003) (discriminatory termination). The specific elements of the first stage are flexible and may be altered to fit the factual needs of the kind of discrimination allegedly at work in a given case. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 41-45 (2005). In the circumstances of this case, the elements we consider are (1) whether they were members of a protected class; (2) whether they suffered an adverse action with respect to a term, condition, or privilege of employment; (3) whether they had performed acceptably in connection with the aspect of employment in which the adverse action was taken; and (4) whether they were treated less favorably with respect to that adverse action than similarly situated coworkers who were not members of the protected class. On appeal to the Superior Court, the question was whether the MCAD had properly applied the fourth element. It was undisputed that the complainants had shown that they were members of a protected class, that the manner in which they were laid off constituted terms, conditions, or privileges of employment, and that they had performed acceptably. Applying the fourth element, the MCAD affirmed the hearing officer’s conclusion that the complainants were treated less favorably than Navin, a similarly situated, Caucasian, coworker. The Superior Court judge disagreed with this analysis. While noting that he empathized with the complainants and “that the manner in which they were laid off was unfair,” the judge concluded that the MCAD had failed to identify the appropriate relevant factors in determining that Navin was similarly situated to the complainants. In our view, it is unnecessary to decide whether Navin was similarly situated in all relevant ways to the complainants, because regardless whether Navin was similarly situated, the record reflects that the complainants were treated worse than all potential comparators. This was enough of a showing to meet the complainants’ burden. Although providing a similarly situated comparator is usually the most probative means of proving that an adverse action was taken for discriminatory reasons, it is not absolutely necessary. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997). See also Lavalley v. Quebecor World Book Servs. LLC, 315 F. Supp. 2d 136, 148 n.10 (D. Mass. 2004) (“Massachusetts courts do not appear to ever have squarely said that [comparator] evidence is required” [emphasis added]). Other types of evidence that might be used to prove a prima facie claim of discrimination include statistical evidence concerning the treatment of different classes of employees. See Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 228 n.9 (1978). In this case, the hearing officer found that there was no evidence that “anything similar had ever happened before in complainants’ workplace,” and that McNamara and Perkins had had several conversations on the manner in which to conduct these particular layoffs. At oral argument, the attorney for THH confirmed that the manner in which the complainants were laid off was unique. These facts support an inference that the complainants were intentionally treated differently from every other employee laid off for budgetary reasons. Intentional negative treatment of several employees in the same protected class is evidence of discrimination. See Knight v. Avon Products, 438 Mass. at 426 n.9. Moreover, a deviation from past practice is also evidence of discrimination. See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 17 (1998). Taken together, this evidence is enough to meet the complainants’ burden under the fourth element. The complainants have proved not simply that they were treated worse than one similarly situated comparator, they have proved that they were treated worse than all potential comparators. This showing fulfils the purpose of the stage one showing: to “eliminate[] the most common nondiscriminatory reasons for the plaintiff’s rejection.” See Blare, 419 Mass. at 441, quoting from Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). See also Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 45, quoting from Che v. Massachusetts Bay Transp. Authy., 342 F.3d 31, 38 (1st Cir. 2003) (stating that stage one is meant only to be a “ ‘small showing’ that is ‘easily made’ ”). In sum, the complainants offered sufficient evidence to establish a prima facie case of discrimination. Application of statutory interest. Finally, the complainants ask us to reverse the MCAD’s order vacating the hearing officer’s award of prejudgment interest. The MCAD initially denied the complainants prejudgment interest because it concluded that it was required to do so based upon two cases decided by this court, which hold that such interest is barred by sovereign immunity. See Boston v. Massachusetts Commn. Against Discrimination, 39 Mass. App. Ct. 234, 245 (1995) (Boston); Salem v. Massachusetts Commn. Against Discrimination, 44 Mass. App. Ct. 627, 646-647 (1998) (Salem). See also Dalrymple v. Winthrop, 50 Mass. App. Ct. 611, 621-622 (2000). The MCAD has since rejected this position and now concurs with the complainant that prejudgment interest should have been awarded. We are persuaded by the MCAD’s and the complainants’ argument that subsequent opinions of the Supreme Judicial Court make it appropriate that we revisit the reasoning supporting the parts of the Boston and Salem cases that discussed prejudgment interest. Accordingly, we now hold that prejudgment interest may properly be awarded against the Commonwealth by the MCAD under G. L. c. 151B. Both the Boston and the Salem cases rely on the principle that the Commonwealth does not waive sovereign immunity unless there is “express statutory authorization.” See Boston, 39 Mass. App. Ct. at 245; Salem, 44 Mass. App. Ct. at 646. In Bain v. Springfield, 424 Mass. 758, 763 (1997), quoting from C & M Constr. Co. v. Commonwealth, 396 Mass. 390, 392 (1985), however, the Supreme Judicial Court clarified this principle, stating, “immunity is still in effect unless consent to suit has been ‘expressed by the terms of a statute, or appears by necessary implication from them.’ ” Recognition that sovereign immunity may be waived by necessary implication is both important and relevant to the interpretation of G. L. c. 151B. The Bain court reasoned that sovereign immunity had been waived under c. 15IB for punitive damages because the statute expressly authorizes punitive damages as a remedy, and because the Commonwealth and its subdivisions are specifically listed in the statutory definition of persons and employers subject to the statute. See Bain v. Springfield, 427 Mass. at 762-764. Therefore, the natural and ordinary reading of the statute resulted in a necessary implication that the Commonwealth had consented to punitive damages pursuant to the statute. See id. at 763. In other words, if a remedy is authorized by statute, and if it would apply to the Commonwealth by virtue of the appropriate statutory definition, sovereign immunity is waived. The reasoning of the Bain court is applicable to the case at hand. First, the Commonwealth and its subdivisions are listed under the statutory definition of persons and employers subject to G. L. c. 15IB, as the Bain court recognized. Second, prejudgment interest is a remedy authorized under c. 151B. See College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 169-170 (1987); New York & Mass. Motor Servs., Inc. v. Massachusetts Commn. Against Discrimination, 401 Mass. 566, 583 (1988). Therefore, the award of prejudgment interest in this case is no different from the award of punitive damages in Bain. Although the statutory authorization for prejudgment interest is not explicit in our case — as the authorization for punitive damages was in Bain — the Supreme Judicial Court has made clear that prejudgment interest is permitted under the broad grant of authority to the MCAD under G. L. c. 151B, § 4. See College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. at 169-170; New York & Massachusetts Motor Servs., Inc. v. Massachusetts Commn. Against Discrimination, 401 Mass. at 583. More importantly, the court has held that broad authorization for prejudgment interest is specific enough to constitute a waiver of sovereign immunity under the relatively similar statutory scheme of G. L. c. 150E. See School Comm. of Newton v. Labor Relations Commn., 388 Mass. 557, 579-580 (1983). See also Conway v. Electro Switch Corp., 825 F.2d 593, 601 (1st Cir. 1987) (noting that c. 150E is “virtually identical” to c. 151B with regard to the scope of its remedial provision). In light of the reasoning suggested in Bain v. Springfield, supra, and School Comm. of Newton v. Labor Relations Commn., supra, we conclude that the MCAD’s current position is the correct one and that prejudgment interest can be awarded against the Commonwealth under G. L. c. 151B. Conclusion. We reverse the judgment of the Superior Court, and order the entry of a new judgment that modifies the MCAD’s decision by reinstating the hearing officer’s award of prejudgment interest. The new judgment shall affirm the MCAD’s decision, as so modified. So ordered. In refusing to credit McNamara’s testimony, the hearing officer noted that McNamara’s testimony concerning the basis of the proced

Hiram Clifton vs. Massachusetts Bay Transportation Authority. Suffolk. November 8, 2005. December 21, 2005. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Cordy, JJ. Anti-Discrimination Law, Race. Employment, Discrimination, Retaliation. Practice, Civil, Instructions to jury, Attorney’s fees. Damages, Remittitur, Punitive. This court concluded that the continuing violation doctrine applied to a claim of unlawful retaliation in the workplace for complaints about discriminatory acts, in violation of G. L. c. 151B, § 4 (4) [616-617], and that the Superior Court judge hearing the claim used the proper date to anchor retaliatory conduct alleged by the plaintiff, which would otherwise have been untimely, to the six-month limitations period authorized by G. L. c. 151B, § 5 [617-618]. The court concluded that in the context of a trial on a complaint alleging discrimination in employment on the basis of race, in violation of G. L. c. 151B, § 4 (1), the defendant was entitled to the benefit of the jury instruction on the standard enunciated by this court in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 541-542 (2001), two years after trial, for determining whether past discriminatory conduct was actionable as a continuing violation; where the trial judge had failed to so instruct, and where the defendant’s liability had been conclusively proved, this court remanded the case to Superior Court for a new trial on the amount of compensatory and punitive damages to be awarded to the plaintiff. [618-622] Discussion of the scope of a trial judge’s broad discretion when acting on a motion for remittitur of punitive damages under Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974). [623-624] Civil action commenced in the Superior Court Department on May 17, 1995. The case was tried before Ralph D. Gants, J., and after he ordered a new trial on the issue of punitive damages, the case was reported by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Kevin G. Powers (.Robert S. Mantell with him) for the plaintiff. Walter M. Foster (Matthew J. Walko with him) for the defendant. The following submitted briefs for amici curiae: Marisa Campagna, Theresa Finn-Dever, & James S. Weliky for National Employment Lawyers Association. Paul H. Merry & Angela Ciccolo for Massachusetts Employment Lawyers Association & another. Greaney, J. In 1999, a jury in the Superior Court found that the Massachusetts Bay Transportation Authority (MBTA) had discriminated against the plaintiff in his employment on the basis of his race, in violation of G. L. c. 151B, § 4 (1) and (4), and awarded him $500,000 in compensatory damages for emotional distress and $5 million in punitive damages. After the plaintiff refused to accept a remittitur of the punitive damages award to $500,000, the trial judge ordered a new trial on the issue of punitive damages and reported the entire case to the Appeals Court. The Appeals Court modified the judge’s order to include a new trial on liability and on compensatory as well as punitive damages. See Clifton v. Massachusetts Bay Transp. Auth., 62 Mass. App. Ct. 164, 180 (2004). We granted the plaintiff’s application for further appellate review limited to consideration of (1) whether the “continuing violation” doctrine has any application to a claim of retaliation; if so, (2) whether the judge used the proper date to anchor retaliatory conduct alleged by the plaintiff that would otherwise be untimely to the six-month limitations period authorized by G. L. c. 151B, § 5; (3) whether the MBTA is entitled to a jury instruction on the standard enunciated by this court in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 541-542 (2001), two years after trial, for determining whether past discriminatory conduct is actionable as a continuing violation; and (4) whether the judge abused his discretion in entering an order requiring the plaintiff to accept either a remittitur on the punitive damages award or a new trial on punitive damages. We conclude that the plaintiff has conclusively established liability on the part of the MBTA on his hostile work environment and unlawful retaliation claims. Because we further conclude, however, that the MBTA is entitled to the benefit of the Cuddyer instruction, there must be a new trial on the amount of compensatory and punitive damages to be awarded. We need not detail the facts that could have been found by the jury. It suffices to say that the evidence at trial demonstrated a pattern of egregious racial harassment and retaliation, perpetrated on the plaintiff (who is African-American) by both supervisors and coworkers throughout nine years of his employment in the engineering and maintenance department at the MBTA. We relate but a few examples, beginning in 1986, when the plaintiff became the first African-American foreman in the MBTA’s Charlestown yard. Another foreman at that time, Philip Chisholm, and others shot bottle rockets at him, turned the lights off when he used the bathroom, sprayed water at him through fire hoses, dropped firecrackers near him, set water boobytraps that would fall on him when he opened his office door, and painted “fag bait” and “Sanford and Son” on his locker. When the plaintiff complained to his supervisor, Robert Rooney, Rooney called the plaintiff a “rat.” Rooney himself soon joined in the harassment, calling the plaintiff “Roxbury Mayor,” “fucking banana,” and “Sanford,” and referring to the plaintiff and another black employee as “ding and dong.” In 1988, in order to escape the harassment, the plaintiff requested, and received, a transfer to become foreman of an MBTA landscaping crew. The unlawful behavior directed toward him by his colleagues did not cease. The conduct often took the form of enforcing rules against the plaintiff that were not applied to other supervisors. The plaintiff perceived that rules extending preferences for filling job vacancies constantly changed, to his detriment, and to the benefit of, other foremen who were white. After 1992, the plaintiff was involved in a series of work disputes in which he was treated unfairly. The plaintiff became aware of several instances of discriminatory conduct, including the use of racist epithets such as “nigger” and “colored boy,” directed toward other MBTA employees who also were African-American. In 1992, Chisholm placed a photograph of an African-American woman (who resembled the plaintiffs wife) on a flyer, with words indicating that the woman was available for sexual services, and listing the plaintiff’s pager number. Chisholm transmitted this flyer by facsimile to other MBTA offices. The plaintiff initially complained about the derogatory and unlawful conduct to his immediate supervisors, but they did nothing to stop it. In early 1990, the plaintiff brought his complaints to the MBTA’s equal employment opportunity (EEO) office and, later that year, filed the first of what became a series of internal EEO complaints. The EEO office failed to investigate the complaints and made no written findings of fact with regard to them. One senior MBTA manager told the plaintiff that he would be considered for promotion if only he stopped filing complaints. Throughout the time period described above, the plaintiff remained (and still remains) an employee of the MBTA. On April 20, 1993, the plaintiff filed a charge with the Massachusetts Commission Against Discrimination (MCAD) alleging racial discrimination. On February 22, 1994, he filed a second charge with the MCAD alleging racial discrimination and retaliation. In 1995, the plaintiff filed a complaint in the Superior Court seeking damages for discrimination by means of racial harassment in the workplace, in violation of G. L. c. 151B, § 4 (1), alleging that he had been subjected to a hostile work environment, and in violation of G. L. c. 15IB, § 4 (4), alleging that he had been subjected to adverse employment action because he had expressed opposition to the discriminatory treatment. After a two and one-half week trial, a jury returned a special verdict finding that the MBTA had subjected the plaintiff to a hostile work environment during the period between October 20, 1992, and February 22, 1994, and had retaliated against the plaintiff by taking adverse employment action against him during the period between April 20, 1993, and May 17, 1995. The jury, as stated above, awarded the plaintiff compensatory damages of $500,000 for emotional distress and $5 million] in punitive damages. Considering various posttrial motions, the judge upheld the jury’s verdicts on liability and compensatory damages, but allowed the MBTA’s request for a remittitur of the punitive damages award, reducing it to $500,000, and allowed the MBTA’s motion for a new trial solely on punitive damages to the extent that the plaintiff did not accept the remittitur. The plaintiff rejected the remittitur, and the judge filed a report to the Appeals Court, pursuant to Mass. R. Civ. P. 64, as amended, 423 Mass. 1410 (1996), on all of the issues raised in the case. The Appeals Court concluded that the plaintiff could rely on the continuing violation doctrine to recover for retaliatory acts committed beyond the six-month limitations period permitted by G. L. c. 151B, § 5, but that the anchoring period required to establish the continuing violation commenced on August 22, 1993, and not on April 20, 1993, as instructed by the judge. See Clifton v. Massachusetts Bay Transp. Auth., supra at 175-176. On the basis of this perceived flaw in the jury instructions, the court held that a new trial on liability and damages (both compensatory and punitive) was necessary. We granted the plaintiff’s application for further appellate review, limited to the issues stated at the outset of this opinion. We now address those issues. 1. We find no basis to except a claim of retaliation, in violation of G. L. c. 151B, § 4 (4), from the proper scope of the continuing violation doctrine. The scope of G. L. c. 151B, § 4 (4)’s prohibition against retaliatory conduct is not limited to adverse employment decisions taken in response to the filing of a complaint with the MCAD, but includes “discrimination] against any person because he has opposed any practices forbidden under this chapter.” “Workplace conduct is not measured in isolation . . . .” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001). Although unlawful retaliation, typically, may involve a discrete and identifiable adverse employment decision (e.g., a discharge or demotion), it may also consist of a continuing pattern of behavior that is, by its insidious nature, linked to the very acts that make up a claim of hostile work environment. See Noviello v. Boston, 398 F.3d 76, 89-91 (1st Cir. 2005) (concluding that creation and perpetuation of hostile work environment can comprise retaliatory adverse employment action under Title VII and under G. L. c. 151B). In sum, it is the nature of the unlawful conduct alleged by the plaintiff, independent of the precise formulation of his claim, that allows a plaintiff to invoke an exception to the limitations period for a continuing violation. See Ocean Spray Cranberries, Inc. v. Massachusetts Comm’n Against Discrimination, 441 Mass. 632, 642-643 (2004) (failure to provide reasonable accommodation to handicapped employee); Cuddyer v. Stop & Shop Supermarket Co., supra at 540 (hostile work environment based on sexual harassment); Carter v. Commissioner of Correction, 43 Mass. App. Ct. 212, 221-222 (1997) (race and gender discrimination and retaliation). The evidence in this case disclosed numerous instances of hateful discriminatory conduct directed at the plaintiff that, the jury could well have found, were fueled by his initial objections to his coworkers’ insults and physical abuse informally lodged with supervisors; his later internal claims of harassment dating back to 1986, and of unequal treatment in his work conditions, brought to the EEO; and, finally, his formal complaints filed with the MCAD. The judge properly instructed the jury on the continuing violation doctrine with respect to the plaintiff’s claim of retaliation. 2. At trial, the plaintiff presented evidence of unlawful acts dating back over nine years. To simplify the task of instructing the jury on the applicable time frames for the acts that could be considered by the jury for the purpose of establishing liability and, separately, for the purpose of assessing damages in connection with the plaintiff’s independent claims of discrimination and of retaliation, the judge drew a diagram. One shaded portion of the diagram depicted a period commencing April 20, 1993, and ending May 17, 1995, as the time within which an unlawful act of retaliation must have occurred in order for the jury to find the MBTA liable on the plaintiff’s retaliation claim. The judge used the diagram as an aid to explain to the jury that, if they were to find the MBTA liable for a continuing violation on the plaintiff’s retaliation claim, the anchoring period for that claim commenced on April 20, 1993, the date on which the plaintiff filed his first complaint with the MCAD. The judge properly set April 20, 1993, as the beginning date for the retaliation anchoring period. Retaliatory conduct occurring after the plaintiffs first complaint to the MCAD was timely, regardless of when, or whether, a new MCAD complaint was filed. See Cuddyer v. Stop & Shop Supermarket Co., supra at 529-530 & n.8; Carter v. Commissioner of Correction, supra at 218. So long as the alleged retaliatory acts relate to an earlier complaint, a plaintiff is not required to exhaust his administrative remedies before he may bring to court a retaliation claim. Retaliation for filing a complaint of discrimination with the MCAD is subsumed within the original charge. See id:, Borase v. M/A-COM, Inc., 906 F. Supp. 65, 66-68 (D. Mass. 1995). The law was not clear at the time the plaintiff filed his second claim with the MCAD. It was wise, therefore, for him to file a second charge with the MCAD. To set a date based on a charge that was essentially unnecessary would unfairly punish the plaintiff for his cautiousness. There can be no serious doubt that the retaliation alleged by the plaintiff was related to, or arose out of, the subject of his original MCAD complaint. Contrast Mole v. University of Mass., 442 Mass. 582, 595-596 (2004). 3. At the time of trial, the United States Court of Appeals for the First Circuit, interpreting Title VII, had adopted the so-called “revelatory” standard for applying the continuing violation doctrine, which barred a plaintiff from asserting unlawful conduct beyond the limitations period if the plaintiff was, or should have been, aware of the existence of unlawful discrimination during the “untimely” period. See Provencher v. CVS Pharmacy Div. of Melville Corp., 145 F.3d 5, 14 (1st Cir. 1998); Sabree v. United Bhd. of Carpenters & Joiners Local No. 33, 921 F.2d 396, 402 (1st Cir. 1990). See also O’Rourke v. Providence, 235 F.3d 713, 727 (1st Cir. 2001) (recognizing “revelatory” standard). Under the Federal “revelatory” standard, the awareness of discrimination triggers the duty to file a charge with the MCAD, and there is no exception in such circumstances for continuing discriminatory conduct. This court rejected that standard, in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001), finding it “fair neither to the employee, who may be forced prematurely to choose litigation as a remedy, nor to the employer, who has a legitimate interest in attempting to resolve allegations of harassment short of time-consuming and expensive litigation.” Id. at 538. In our view, the Federal standard “fail[ed] to recognize fully that an employee who suffers from recurring acts of abusive . . . conduct that, over time, rise to the level of a hostile work environment, may be unable to appreciate the true character and enormity of the discriminatory environment until after it has continued for an appreciable length of time.” Id. We then enunciated a new standard, providing that a plaintiff who has demonstrated a continuing violation may assert claims for conduct falling outside of the limitations period, unless the plaintiff “knew or reasonably should have known, more than six months prior to her MCAD filing, that her work situation was pervasively hostile and unlikely to improve and, therefore, a reasonable person in her position, armed with her knowledge, would have filed a seasonable complaint with the MCAD.” Id. at 541. As has been indicated, the Cuddyer decision was decided almost two years after the jury’s verdict in this case. At the time of trial, State law was unsettled. At the charge conference, the MBTA requested that the judge instruct the jury in accordance with the Provencher court’s revelatory standard. The judge correctly (and clairvoyantly) rejected that request, based on his prediction that this court would not adopt the Provencher standard. The judge instead instructed the jury that, if they found that the MBTA committed at least one act of race discrimination during the anchoring period (on the hostile work environment claim, between October 20, 1992, and February 22, 1994) that substantially contributed to the creation of a hostile work environment, then they could award damages for emotional distress that the plaintiff suffered, going back as far as July of 1986, so long as the discriminatory conduct was similar to, or reasonably related to, the discriminatory conduct that was the subject of the plaintiff’s complaint to the MCAD. The judge further instructed the jury that, if they found that the MBTA had committed at least one act of retaliation against the plaintiff during the anchoring period (on the retaliation claim, between April 20, 1993, and May 17, 1995), then they could award damages for emotional distress that the plaintiff suffered, so long as the retaliation was reasonably related to the plaintiffs expressed opposition to the discriminatory conduct complained of. The instructions given accurately stated the law at the time. See Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515, 520 (1990); Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 207-208 (1981); Carter v. Commissioner of Correction, 43 Mass. App. Ct. 212, 221 (1997). The Cuddyer decision substantively changed the law with respect to the continuing violation doctrine, by providing a standard by which a jury could bar, as untimely, past discriminatory events that otherwise would provide a basis for damages. The MBTA now asserts that it is entitled to the benefit of the Cuddyer instruction. We agree. The MBTA argued throughout the charge conference that an instruction was warranted to inform the jury that they were permitted to examine the plaintiffs awareness of the discriminatory conduct and that, at some measured point (argued as the “known or should have known” standard), untimely acts of discrimination could not be deemed part of a continuing violation. On the judge’s failure so to inform the jury, the MBTA lodged a clear and timely objection. That the MBTA contended that the proper standard was “known or should be known,” and not precisely the one ultimately adopted in Cud-dyer, does not detract from the adequacy of the MBTA’s objection. See Shantigar Found, v. Bear Mountain Bldrs., 441 Mass. 131, 136 (2004) (issue preserved when judge acknowledged awareness of issue and expressly noted defendant’s objection); Rotkiewicz v. Sadowsky, 431 Mass. 748, 751-752 (2000) (issue preserved when judge acknowledged awareness of issue and expressed intent not to instruct as requested). The plaintiff in this case endured a hostile work environment and unlawful retaliation (as found by the jury), and presented evidence that he entered complaints as appropriate, throughout nine