Retaliation Cases

Francisco S. Pardo vs. The General Hospital Corporation & another. Middlesex. October 3, 2005. January 26, 2006. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Cordy, JJ. Anti-Discrimination Law, Sex. Employment, Retaliation. Practice, Civil, Discovery, Instructions to jury. Privileged Communication. Doctor, Employment. Hospital, Peer review, Appointment to staff. Evidence, Hearsay, State of mind. In a civil action alleging that the defendant hospital discriminated against the plaintiff, a doctor employed at the hospital, on the basis of his sexual orientation, the judge correctly denied the plaintiff’s request for discovery of certain privileged medical peer review documents, where the plaintiff failed to establish that a member of the medical peer review committee had not acted in good faith in connection with his or her activities as a member of the committee. [8-17] In a civil action alleging that the defendant hospital discriminated against the plaintiff, a doctor employed at the hospital, on the basis of his sexual orientation, the judge did not abuse her discretion in admitting in evidence certain documents and testimony concerning their contents, where the documents demonstrated notice and knowledge on the part of a supervising doctor within the hospital, and where the documents and related testimony were admissible under the state of mind exception to the hearsay rule as pertaining directly to the hospital’s lawful, nondiscriminatory reasons for its employment decisions concerning the plaintiff. [17-19] In a civil action alleging that the defendant hospital discriminated against the plaintiff, a doctor employed at the hospital, on the basis of his sexual orientation and retaliated against him when he complained about the discrimination, the judge did not abuse her discretion in declining a request to instruct the jury that the nearness in time between protected activity and adverse action would permit an inference of retaliation, where there was sharply conflicting evidence regarding the sequence and timing of events, where the plaintiff was not precluded from arguing retaliation in his closing argument, and where the judge instructed the jury about their role in determining the credibility of witnesses and the inferences that the jury might draw from circumstantial evidence on both the discrimination and retaliation claims [19-21]; moreover, in responding to a jury question about an element of the retaliation claim, the judge properly determined that the jury should decide whether, in this particular case, the plaintiff’s filing of a charge with the Massachusetts Commission Against Discrimination was reasonable [21-23], Civil action commenced in the Superior Court Department on May 4, 1998. A motion to compel discovery was heard by Wendie /. Gershengom, J., and the case was tried before her. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Ellen J. Zucker (Paul R. Cirel with her) for the plaintiff. Frank E. Reardon (James J. Horgan with him) for the defendants. Doing business as Massachusetts General Hospital. Partners Healthcare System, Inc. Marshall, C.J. The plaintiff, Dr. Francisco S. Pardo, a radiation oncologist, appeals from a jury verdict in favor of the defendants, The General Hospital Corporation and Partners Healthcare System, Inc. (collectively the hospital), his former employer, on claims that he was discriminated against on the basis of his sexual orientation and that the hospital retaliated against him when he complained about the discrimination. See G. L. c. 151B, § 4 (1), (4), and (4A). At issue is whether the judge erred in (1) denying the plaintiff discovery of certain documents the hospital claimed were privileged under G. L. c. Ill, § 204, the medical peer review privilege; (2) admitting in evidence certain documents that the plaintiff contends were inadmissible because they contained hearsay statements, and permitting testimony concerning them; and (3) instructing the jury on his retaliation claim. We transferred the case here on our own motion. For the reasons we discuss below, we affirm the judgment. 1. Background. We summarize the facts as the jury could have found them, see Mitchell v. Silverstein, 320 Mass. 524, 525 (1946), identifying conflicting evidence where relevant. Briefly stated, the plaintiff alleged that his career was derailed after he revealed his homosexuality to Dr. Herman D. Suit, at all relevant times chief of the hospital’s department of radiation oncology (department). The hospital countered with evidence that Dr. Suit had supported the advancement of the plaintiff’s career after the disclosure, as well as evidence that the department in general and Dr. Suit in particular had a history of recruiting, employing, and supporting homosexual employees. The hospital also proffered substantial evidence of the plaintiffs neglect in the performance of his duties and other substandard behavior. We describe the evidence in greater detail because it informs in particular our discussion of the medical peer review privilege. In 1986 the plaintiff joined the department, beginning a three-year residency. Dividing his time between clinical and laboratory work, the plaintiff successfully completed his residency in 1989, receiving an award for excellence. Dr. Suit invited the plaintiff to remain on staff as a fellow for one year, during which time the plaintiff, with the support of Dr. Suit, received several competitive grants for research. In 1990, Dr. Suit recommended that the plaintiff join the medical staff of the department and be appointed an instructor at Harvard Medical School. Within two years the plaintiff had published several articles in academic publications. Dr. Suit agreed to increase the amount of clinical work undertaken by the plaintiff. During his residency and fellowship years, the plaintiff did not disclose his sexual orientation to Dr. Suit or to other senior members of the hospital staff. In the spring of 1993, the plaintiff learned that his longtime partner was ill with acquired immune deficiency syndrome (AIDS). In October, 1993, the plaintiff informed Dr. Suit that he is “gay,” that his partner had AIDS, and that he might need to take some time off to care for his partner. After this discussion, the plaintiff continued to advance in his career and Dr. Suit continued to support him. In the summer of 1994, Dr. Suit recommended the plaintiff for promotions at the hospital and at Harvard Medical School. Dr. Suit also recommended the plaintiff for further grant funding for his research. The promotion at the hospital was approved, and the plaintiff received the funding for his research from the National Cancer Institute. Dr. Suit continued to provide the plaintiff with salary support and additional office space to facilitate his work. Sometime thereafter difficulties arose between Dr. Suit and the plaintiff. The jury learned that, in January, 1995, Dr. Suit reprimanded the plaintiff for removing certain laboratory research data books from Dr. Suit’s laboratory; he ordered the plaintiff not to enter the laboratory without his permission. In March, 1995, Dr. Suit informed the plaintiff that he was placing his academic promotion on hold. Shortly thereafter, Dr. Suit became concerned about the plaintiff’s clinical teaching and patient care activities for the reasons we next discuss. In April, 1995, Dr. Alan Hartford, a medical resident in the department, submitted a five-page memorandum to Dr. Suit (Hartford memorandum), in which he detailed numerous incidents over the course of the preceding three months to the effect that the plaintiff had not provided adequate supervision and training of residents. After receiving the Hartford memorandum, Dr. Suit spoke with Dr. Allan Thornton, who took care of the plaintiff’s patients in his absence and who therefore interacted with some of the medical residents who worked with the plaintiff. In response, Dr. Thornton wrote a detailed letter (Thornton letter) discussing various shortcomings of the plaintiff. Dr. Thornton noted numerous areas of concern including “[p]age availability,” describing the plaintiff as “difficult to reach either by page or telephone”; “[c]linic accessibility,” describing the plaintiff’s repeated unavailability at the department’s clinic, creating particular difficulties for new patients; the plaintiff’s repeated failure to comply with certain protocols, which Dr. Thornton described as “an embarrassment to our group,” which could “not continue”; “[rjecord keeping,” in which Dr. Thornton said he “rarely [found] any notation in the charts of [the plaintiff’s] patients by [the plaintiff] himself,” even though these were “extremely ill patients requiring careful monitoring”; and the plaintiff’s history of obtaining “inadequate and spurious” consents by patients, which, said Dr. Thornton, would negatively affect any “litigation.” Dr. Thornton also described with concern that patient care was “left to the resident” and that the plaintiff was “rarely in attendance” at departmental conferences. In late May, 1995, Dr. Suit informed the plaintiff that he was removing him from teaching and supervising residents, and would cease assigning residents to the plaintiff effective July 1, 1995. Further reductions in the plaintiff’s privileges and responsibilities followed. Dr. Suit met with the executive committee of the department in late June, 1995. The committee concluded it would no longer commit to funding the plaintiff’s salary for his research beyond the next two years. In August, 1995, Dr. Suit removed the plaintiff from participating in an experimental radiation project because, as he testified, the plaintiff had failed to follow certain procedures concerning the use of an experimental machine to irradiate brain tumors. On August 17, 1995, the plaintiff filed a complaint with the Massachusetts Commission Against Discrimination (MCAD). The following month, a dispute arose in the department concerning the plaintiff’s choice of treatment for one of his patients. While the plaintiff was on vacation, Dr. Suit and the department’s clinical director changed the treatment plan ordered by the plaintiff. The clinical director and the plaintiff later disagreed over how the change had been handled. Dr. Suit recommended that the plaintiff discuss the matter with the hospital’s chief medical officer, Dr. Peter Slavin. Based on a discussion with Dr. Slavin in late November, 1995, Dr. Suit came to believe that the plaintiff had lied about approvals he claimed to have secured before he had chosen the treatment plan. There was other evidence of what the hospital characterizes as the plaintiff’s “truthfulness, clinical judgment and interpersonal interactions” that ultimately resulted in Dr. Suit’s recommendation that the plaintiff’s clinical privileges be limited. Dr. Suit testified that in light of his escalating concerns, in December, 1995, he recommended that the plaintiff’s reappointment to the medical staff be limited to six months, and that his clinical work be supervised. The hospital’s general executive committee (GEC) considered Dr. Suit’s recommendation in January, 1996, and voted unanimously to recommend that the plaintiff be reappointed for a six-month period without clinical privileges. The hospital’s board of trustees (board) adopted the recommendation on January 19, 1996. The plaintiff appealed from the decision to a staff review committee. In June, 1996, when his temporary reappointment expired, the plaintiff’s employment was terminated. In February, 1998, after a hearing, the staff review committee recommended that the board reverse its decision with respect to the plaintiff’s clinical privileges. The staff review committee upheld the board’s decision denying the plaintiff’s application for reappointment in July, 1996. The board restored the plaintiffs clinical privileges nunc pro tune for the period January to June, 1996. The plaintiff filed suit against the hospital and others in May, 1998. 2. The medical peer review privilege. The plaintiff challenges the judge’s pretrial order denying his request for the discovery of certain documents the hospital claimed were privileged under the medical peer review statute, G. L. c. Ill, § 204 (a), because, he asserts, his allegations of “bad faith” on the part of Dr. Suit, Dr. Slavin, and the clinical director triggered the statutory exception to the privilege. The exception permits discovery of medical peer review materials where a committee member did not act “in good faith” and “in the reasonable belief” that his actions were warranted. See G. L. c. 111, § 204 (b). See also G. L. c. 111, § 203 (c). The judge properly resolved the question in favor of the hospital. In a discrimination action alleging disparate treatment, obtaining comparative information about an employer’s treatment of similarly situated employees is often critical to the plaintiff’s case. See, e.g., Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997), citing Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 228 (1978) (“The most probative means of establishing that the plaintiff s termination was a pretext for . . . discrimination is to demonstrate that similarly situated . . . employees were treated differently”). Here, the plaintiff requested “all documents” relating to patient care deficiencies by other members of the department’s medical staff and the discipline of such staff, as well as “[a]ll documents” relating to other physicians denied clinical and research privileges or reappointment “from 1986 to the present.” In response to the hospital’s invocation of the medical peer review privilege, the plaintiff cited the statutory exception to the privilege, arguing that the privilege yielded to any allegation of “bad faith,” in particular, any allegation of discriminatory conduct. After multiple submissions by the parties concerning the plaintiff’s motion to compel, which the judge addressed with admirable attention to detail, see Carr v. Howard, 426 Mass 514, 529 (1998), she ordered the hospital to produce a significant amount of the requested information, but denied the plaintiff’s motion to the extent it requested documents she concluded were covered by the medical peer review privilege. The judge was correct to rule as she did. The Legislature has mandated that the medical profession regulate the quality of patient care by identifying and remedying instances of substandard care at least in part through internal medical peer review proceedings. See, e.g., G. L. c. 111, § 203 (a), (d). See also Carr v. Howard, supra at 517-518 (discussing history and purpose of medical peer review process). To that end, the Legislature enacted the medical peer review privilege, insulating from discovery certain material submitted to or produced by a medical peer review committee, G. L. c. 111, §§ 203-204, inserted by St. 1986, c. 351, § 9, a privilege not recognized at common law. See Cronin v. Strayer, supra at 535 (common-law privilege not recognized for records of impaired physician committee of Massachusetts Medical Society). The obvious purpose of the statutory medical peer review privilege is to “promote candor and confidentiality” in the peer review process, Carr v. Howard, supra at 518, and “to foster aggressive critiquing of medical care by the provider’s peers,” Beth Israel Hosp. Ass’n v. Board of Registration in Med., 401 Mass. 172, 182 (1987). See Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 396 (2005) (“Physicians would be far less willing candidly to report, testify about, and investigate concerns of patient safety if their actions would be subject to later scrutiny and possible litigation”). The Legislature provided a single, narrow exception to the privilege “to establish” that a member of a peer review committee did not act “in good faith and in the reasonable belief that based on all of the facts the action or inaction on his part was warranted” during the peer review process. See G. L. c. 111, § 204 (b); G. L. c. 231, § 85N. Neither the language of the statute nor its legislative history elucidates the precise boundaries the Legislature sought to establish when abrogating the immunity from discovery in certain cases. Taking into account the compelling public policy the privilege was established to advance, we conclude that the privilege can only be invaded on some threshold showing that a member of a medical peer review committee did not act in good faith in connection with his activities as a member of the committee, for example did not provide the medical peer review committee with a full and honest disclosure of all of the relevant circumstances, but sought to mislead the committee in some manner., The focus must be on the committee member’s actions within the peer review committee process itself, not on possible discriminatory reasons for initiating a review of the plaintiff’s work. Cf. Birbiglia v. Saint Vincent Hosp., Inc., 427 Mass. 80, 84-86 (1998) (no evidence warranting finding of “bad faith” in medical peer review process where plaintiff made no attempt to demonstrate what allegedly biased and knowingly false evidence hospital relied on, and where plaintiff did not point to specific evidence tending to prove that hospital’s executive committee or board knew that any evidence was biased or knowingly false). See Doe v. St. Joseph’s Hosp. of Fort Wayne, 42 Empl. Prac. Dec. (CCH) par. 36,973 (N.D. Ind. 1987) (in discrimination case, to overcome medical peer review privilege plaintiff must “allege facts which create more than a mere inference that the actions of the peer review committee were discriminatory, before the court will permit even an in camera inspection of the communications to, records of or determination of the peer review committee”). Here, Dr. Suit’s concerns about the plaintiff’s performance were initially triggered in substantial part by the complaint received from Dr. Hartford. His concerns were heightened when he received Dr. Thornton’s comprehensive letter outlining numerous performance shortcomings of the plaintiff. There is no allegation by the plaintiff that either Dr. Hartford or Dr. Thornton harbored any animus toward him. Their respective written complaints to Dr. Suit would give rise to the gravest concern of any supervising physician. Patients receiving treatment in the department are extremely ill, subjected to life-threatening treatments. Had the express concerns of Dr. Hartford and Dr. Thornton not been acted on, and had the scrutiny of the plaintiff’s work not intensified, Dr. Suit could well have been viewed as derelict in his duties. In Massachusetts, as elsewhere, medical peer review is not a choice, but a legislative requirement. See G. L. c. Ill, § 203. No physician is at liberty to avoid that mandate. Even assuming that Dr. Suit had treated the plaintiff “differently” in some respect because he is homosexual (by recommending to the GEC that the plaintiff’s privileges be limited rather than merely reporting his concerns to the GEC, for example), the plaintiff has not pointed to evidence that discriminatory animus rather than a legitimate concern for patient care infected the actual medical peer review process. See Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 399 (2005) (evidence did not warrant inference that supervising physician’s “misplaced focus” on plaintiff was “deliberate, or motivated by a ‘spiteful, malignant purpose’ to hurt the plaintiff that was unrelated to [supervising physician’s] professional responsibilities” [citations omitted]). We emphasize that, in the face of the hospital’s opposition to the plaintiff’s broad discovery requests, the judge ordered the hospital to produce substantial discovery. The plaintiff reviewed, among other items, the written materials that triggered Dr. Suit’s concerns; the promotional files for o

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