Retaliation Cases

Viatcheslav G. Abramian vs. President & Fellows of Harvard College & others. Middlesex. February 11, 2000. July 14, 2000. Present: Abrams, Lynch, Ireland, Spina, & Cowin, JJ. Employment, Discrimination, Termination, Retaliation. Anti-Discrimination Law, Employment, Termination of employment, Burden of proof, National origin. Practice, Civil, Judgment notwithstanding verdict, Instructions to jury, Conduct of counsel. Federal Preemption. Waiver. Damages, Punitive. Evidence at the trial of an employment discrimination case warranted a finding that an employer’s reason for terminating an employee was a pretext and that the disparate treatment received by the employee was motivated by a discriminatory animus based on national origin. [113-115] A Superior Court judge correctly ruled that, in an employment discrimination action, the defendant employer waived its affirmative defense of Federal preemption. [115] This court undertook to reexamine the holding of Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 444-446 (1995), and stated that, in an employment discrimination case in which the plaintiff demonstrates that the employer’s proffered reason for terminating the plaintiff is a pretext, i.e., untrue, that gives rise to an inference of unlawful discrimination sufficient to withstand a motion for directed verdict and sufficient to warrant a jury to return a verdict for the plaintiff; and that the employer may rebut this inference by showing that there was no discriminatory intent or that the employer’s action was based on a different nondiscriminatory reason. [115-118] Where, in an action alleging unlawful employment discrimination based on national origin, the judge instructed the jury in response to a question in accordance with Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 444-446 (1995), to the effect that they had to find for the plaintiff if they determined that the defendants’ proferred reason for terminating the plaintiff’s employment was a pretext, the jury was thereby stripped of their fact-finding function: where there was a basis in the evidence for concluding that the plaintiff was terminated for other than a discriminatory reason, the defendants were entitled to a new trial. [117-119] A Superior Court judge correctly allowed defendants’ motion for a new trial in an employment discrimination case on the issue of punitive damages, where the judge concluded that his instructions could have allowed the jury to award punitive damages without a finding that the defendants’ conduct was “outrageous.” [119] At the trial of an employment discrimination case based on national origin, the judge properly allowed evidence of racial bias expressed by one defendant as relevant to the defendant’s state of mind and credibility, and the judge properly allowed use of such evidence to impeach the defendant; further, plaintiffs counsel’s pursuit of evidence of racial bias at trial did not constitute a basis for the grant of a new trial. [119-121] In a retaliation claim brought under G. L. c. 15 IB, § 4 (4), arising from asserted employment discrimination, the evidence was sufficient for the jury to return a verdict for the plaintiff and the judge instructed the jury correctly on that claim. [121-122] A retaliation claim was separate from and independent of the underlying discrimination in employment claim, on which the defendant was granted a new trial, but claims of intentional interference with contractual relations and aiding and abetting discrimination were, in the circumstances, so intertwined with or derivative of the discrimination claim that the defendant was entitled to a new trial on those claims as well. [122] At a civil trial, the judge did not err in excluding evidence proffered to demonstrate an assertion that the proponent had no reasonable expectation of proving. [122-123] Civil action commenced in the Superior Court Department on October 14, 1993. The case was tried before James F. McHugh, III, J. The Supreme Judicial Court granted an application for direct appellate review. George Marshall Moriarty (Allan A. Ryan, Jr., with him) for the defendants. John J. Barter {John G. Swomley with him) for the plaintiff. The following submitted briefs for amici curiae: Michael E. Malamut for Associated Industries of Massachusetts. Betsy L. Ehrenberg & James S. Weliky for National Employment Lawyers Association, Massachusetts Chapter, & others. Paul E. Johnson, Robert J. Dowling, and Thomas Henaghan. Spina, J. Viatcheslav G. Abramian (Abramian) brought a civil action against the president and fellows of Harvard College (Harvard), alleging that (1) he was discharged in February, 1993, from his employment as a security guard because of his national origin in violation of G. L. c. 151B, § 4 (1), and (2) he was harassed and eventually discharged in retaliation for his complaints about discriminatory acts directed at him because of his national origin in violation of G. L. c. 151B, § 4 (4). The jury returned verdicts against Harvard on both counts, and as to each count the jury awarded compensatory damages of $522,136 and punitive damages of $750,000. In response to special questions, the jury specified the components of compensatory damages as follows: (1) past lost wages — $116,866; (2) future lost wages — $155,270; and (3) emotional distress — $250,000. Abramian named as additional defendants Paul E. Johnson, chief of police and security at Harvard (Johnson); Robert J. Dowling, manager of operations for the security department (Dowling); Thomas Henaghan, supervisor (Henaghan); and Timothy Carlow, a fellow security guard (Carlow). Abramian alleged, inter alia, that each individual defendant (1) aided and abetted acts of unlawful discrimination directed at him, G. L. c. 151B, § 4 (5), and (2) intentionally interfered with his employment relationship with Harvard. The jury returned verdicts for Johnson and against Dowling and Henaghan for aiding and abetting unlawful discrimination, and awarded punitive damages of $25,000. The jury returned verdicts against Johnson, Dowling, and Henaghan for intentional interference with an employment relationship, and awarded compensatory damages of $522,136. The jury were not asked to identify the components of this aspect of damages, as it had with respect to Harvard. The jury returned verdicts for Carlow on both counts. Abramian moved for attorney’s fees and received an award of $161,181.01. The defendants (other than Carlow) moved for judgment notwithstanding the verdict (judgment n.o.v.), Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974), in which they challenged the sufficiency of the evidence and raised a Federal preemption claim. The defendants also filed a motion for a new trial, Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974), contending, inter alia, that the judge gave incorrect burden-shifting instructions as to “pretext” and incorrect instructions as to punitive damages. The defendants also sought a new trial based on alleged repeated misconduct of Abramian’s trial counsel. Finally, the defendants filed a motion to alter or amend judgment, Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), challenging the damages as duplica-tive, and requesting that compensatory damages awarded against the individual defendants be broken into component parts, similar to what had been done for Harvard, to avoid calculation of prejudgment interest on future damages. The judge denied the defendants’ motion for judgment n.o.v. and granted the defendants’ motion for a new trial only as to the issue of punitive damages. The defendants’ motion to alter or amend the judgment was allowed such that they would be jointly and severally liable for compensatory damages; it was denied as to the individual defendants’ request that compensatory damages be broken into components, and prejudgment interest was ordered on that entire amount. The defendants and Abramian appealed. We granted both applications for direct appellate review. On appeal, the defendants claim that (1) the evidence was insufficient to warrant a finding of pretext; (2) the judge erroneously concluded that they waived their Federal preemption claim; (3) the judge gave an erroneous instruction as to the effect of a finding of pretext; (4) the judge’s erroneous instructions of pretext and punitive damages require a new trial as to all issues; (5) they are entitled to a new trial because of repeated misconduct by Abramian’s counsel; and (6) the calculation of prejudgment interest on the award of compensatory damages against the individual defendants was error. Abramian claims that the judge erred in (1) allowing the defendants’ motion for a new trial as to punitive damages; (2) ordering certain subpoenas quashed; and (3) making certain evidentiary rulings. We affirm the judgment against Harvard on the count alleging retaliation, and vacate the other judgments. 1. Background facts. We summarize facts that the jury could have found. Abramian, a white male bom in Russia, was hired by Harvard as a security guard in January, 1988. Abramian was one of approximately ninety security guards on the force. At the time Abramian was hired, Dowling maintained input into the hiring and disciplining of security guards, but did not have direct control. Dowling became manager of operations, with authority to hire and recommend the discipline of guards, in 1989. Henaghan was hired as a security guard in February, 1989, and was promoted to supervisor in August of that same year. He was one of five men who supervised Abramian. The first two years of Abramian’s employment at Harvard were relatively uneventful except for three incidents. In November, 1988, he was found sleeping during his midnight to 8 a.m. shift, and was suspended for five days. The customary sanction for sleeping on post was a suspension of from two to three days. An American-born guard who was also found asleep at his post was disciplined with a letter of reprimand but no suspension. In January, 1989, Abramian was terminated after two Harvard custodial staff members complained that he had fallen asleep on post again. After his union steward investigated the matter during a grievance procedure, Abramian was reinstated with back pay in February, 1989, and the incident was ordered expunged from his personnel file. In May, 1989, a supervisor noted that Abramian had lost part of his uniform, but Abramian received no discipline as a result of this incident. The harassment alleged by Abramian occurred between 1990 and 1993 after Henaghan had become a supervisor. In July, 1990, Henaghan submitted a written incident report into Abrami-an’s personnel file that described Abramian on duty in his T-shirt rather than his uniform shirt. In April, 1991, Henaghan submitted a report that described Abramian wearing a summer uniform shirt opened to the fourth button and wearing civilian pants. In May, 1991, Dowling entered a “final warning” into Abramian’s personnel file, citing a “substantial number of verbal warnings” for being out of uniform. In August, 1991, Henaghan submitted an incident report describing Abramian on duty wearing a uniform shirt open to the second button, no uniform belt, and a uniform shirt and pants in “a mass of wrinkles.” Abramian testified that he never received copies of these written reports, and the jury could have found that the incident reports were false and were entered into Abramian’s file without his knowledge, in violation of Harvard’s personnel policy. From 1990 to 1993, Henaghan was the only supervisor to “write up” Abramian for being out of uniform. During that same time period, Abramian was subjected to demeaning slurs about his national origin. In the presence of an unnamed supervisor, an unnamed guard called him a “bullshit Bolshevik” but no action was taken on the matter. Henaghan, in speaking about Abramian, said, “I’d like to send that fucking Russian back to Russia,” and, “This Russian is nothing but trouble.” Fellow guard Carlow called him a “commie,” and a “fucking Russian” as well. Henaghan also ridiculed Abramian for having an accent and attempting to practice his English skills. Carlow, while in the presence of Henaghan, called Abramian “fucking Rainman” in reference to the movie about an autistic man who “memorizefd] a lot of stuff.” Abramian’s work environment also was tainted by his supervisors’ pejorative references to the national origin of others. From the testimony of a guard of Portuguese descent, the jury could have found that Henaghan ridiculed the guard’s name and the accent of the guard’s mother. From his own testimony, the jury could have found that Henaghan purposefully declined immediately to reprimand another guard for referring to a supervisor of Italian descent as a “fucking little guinea.” After Dowling received complaints about a guard whose native language was Spanish, he said, “We’re trying to give him a job with his own kind, like the Dining Hall Service.” There was testimony that Dowling expressed support, while in the workplace, for the 1992 presidential candidacy of David Duke, a former candidate for Governor of Louisiana in 1991 whose background included an affiliation with the Ku Klux Klan. Dowling condoned comments by other guards who referred to the holiday honoring the birthday of Dr. Martin Luther King, Jr., as “nigger day.” On February 17, 1992, Henaghan went to Abramian’s work station and reprimanded him for not wearing a tie and ridiculed his accent. Abramian asked Henaghan to stop harassing him,, but in response Henaghan threatened to beat him up and challenged him to meet him “outside” at the end of his shift. Abramian wrote a letter dated March 11 to Johnson complaining about the threats and harassment from Henaghan. On March 14, Henaghan wrote up Abramian for being tardy; on March 16, Henaghan wrote up Abramian for eating dinner at a coffee shop during his shift and wearing a civilian jacket; and on March 18, Henaghan wrote a note to Dowling claiming that Abramian had left numerous doors and windows open at the end of his shift. On April 2, a meeting presided over by Dowling was convened for the alleged purpose of discussing the harassment claimed by Abramian, but the result of the meeting was that Abramian was suspended without pay for three days for lying and being out of uniform and Henaghan was not asked to stop harassing Abramian. Although an arbitrator reduced the suspension to one day for being out of uniform, Carlow and other American-born guards had received as many or more warnings than Abramian for being out of uniform, but only Abramian was suspended for being out of uniform. On May 20, 1992, the Harvard Crimson, a student-run newspaper, ran an article detailing how an unnamed Russian security guard (Abramian) was being harassed on a regular basis by his supervisors in the security division of the Harvard police department. After the article was published, Carlow told another guard that he would “help [Dowling] get rid of the — Russian, because he’s causing a lot of problems.” On January 21, 1993, Abramian walked into the security office to pick up his paycheck and see if any new opportunities for promotion had been posted on the bulletin board. Dowling and Carlow were the only others present. As Abramian approached the bulletin board, Carlow blocked his way, and Abramian asked him to move. Carlow refused, looked at Dowling, told Abramian, “Get out from here, fucking Russian,” and struck him and threatened to kill him. After this incident, witnessed by Dowling and reported to Johnson, Abramian was fired for committing assault and battery, filing a false report, and having a history of disciplinary actions. Carlow, who had been a part-time guard, was promoted to a full-time position, inferably Abramian’s. Although there had been other incidents of assaultive behavior between American-born guards, no other guard except Abramian actually had been terminated for assaultive behavior during Johnson’s ten-year tenure as chief of police. 2. Motion for judgment notwithstanding the verdict, (a) Sufficiency of the evidence of pretext. The defendants argue that the judge erred in denying their motion for judgment n.o.v. because the evidence did not support a finding that the reason advanced by Harvard for discharging Abramian was a pretext. They contend that there was no evidence that Dowling knew Carlow started the fight with Abramian that led to his discharge, or that Dowling heard Carlow’s disparaging remark about Abramian’s national origin. They further contend that Abramian failed to “identify and relate specific instances where persons similarly situated ‘in all relevant aspects’ were treated differently.” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997), quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989). The evidence warranted a finding of pretext. Although Abramian was discharged because he allegedly started the fight with Carlow, the jury could have concluded that Carlow started the fight with Dowling’s approval. The fight occurred in front of Dowling, and the jury heard testimony that Carlow looked toward Dowling as if to seek approval before escalating the hostilities. The defendants rely on a statement Abramian allegedly gave to an investigator in which he was reported to have said that Carlow positioned himself so that Dowling would not be able to see or hear what occurred. The jury were not bound by this testimony, which was at odds with Abramian’s trial testimony and could be discounted as a misunderstanding attributable to Abramian’s difficulty with English. There was sufficient evidence for the jury to find that the reason given by Harvard for terminating Abramian was not true, which alone would have warranted a finding for Abramian, as we discuss at Part 3(a), infra. The graphic evidence of discriminatory animus on the part of Dowling and Henaghan provides further support for a finding that Abramian was more likely than not the victim of unlawful discrimination. The derogatory references to Abramian’s national origin and the denigration of other security guards because of their national origin indicate that Dowling and Henaghan were very likely biased against people of other nationalities, and that they carried out their responsibilities as supervisors by harassing such employees and tolerating an atmosphere of bigotry in the workplace. There was also evidence that persons similarly situated were treated differently. Abramian was punished more severely than American-born guards for falling asleep on post, being out of uniform, and engaging in assaultive behavior. As noted, the jury could have concluded that it was Carlow who started the fight, and rather than being discharged, as was Abramian, he was promoted. The jury could have found that the treatment of Abramian was motivated by discriminatory animus rather than a legitimate employment decision. (b) Waiver of Federal preemption claim. The defendants argue that the judge erred in finding that they had waived their affirmative defense of preemption. They contend that Abramian’s claim of wrongful interference with contractual relations is preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1994), where, as here, a collective bargaining agreement is involved. See Magerer v. John Sexton & Co., 912 F.2d 525, 528 (1st Cir. 1990). The “majority of Federal courts have concluded that, where a Federal statute only controls what substantive law applies rather than the forum in which the matter must be adjudicated, preemption is a waivable affirmative defense.” Central Transp., Inc. v. Package Printing Co., 429 Mass. 189 (1999), and cases cited. Where the defendants first raised this defense in their motion for judgment n.o.v. and not in their motion for directed verdict, we agree with the trial judge that the defense is now waived. Bonofiglio v. Commercial Union Ins. Co.,