Retaliation Cases

Efrain Falcon vs. Robert J. Leger & another. No. 03-P-463. Worcester. April 8, 2004. October 29, 2004. Present: Lenk, Cowin, & Doerfer, JJ. Public Policy. Contract, Employment, Interference with contractual relations. Employment, Termination. Regulation. Words, “Actual malice.” Evidence at the trial of a claim for wrongful interference with employment supported the conclusion that the defendant, improperly motivated by his frustration with the plaintiff’s resistance to his scheme to deceive a safety inspector from an independent testing laboratory, conducted himself with actual malice in firing the plaintiff from his at-will position in quality control at a wire and cable manufacturing company and, in so doing, violated clearly established public policy and lacked any legitimate corporate interest to support his action. [361-365] Civil action commenced in the Superior Court Department on September 9, 1996. The case was tried before Timothy S. Hillman, J., and a motion for a new trial was heard by him. John A. Mavricos for the defendants. Gregory J. Angelini for the plaintiff. James Monroe Wire & Cable Corp. Doerfer, J. A Superior Court jury determined that when the defendant, Robert Leger, general manager of James Monroe Wire & Cable Corp. (JM), fired Efrain Falcon, an at-will employee, he wrongfully interfered with Falcon’s employment. On appeal, Leger claims that the evidence does not support a conclusion that his conduct in firing Falcon from his quality control job at JM constituted “actual malice,” and that the judge erroneously denied his motions for a directed verdict and judgment notwithstanding the verdict or in the alternative for a new trial. Leger argues that the evidence was insufficient to show that he was not acting within the scope of his privilege to terminate an at-will employee when he let Falcon go, and that Falcon failed to overcome that privilege with sufficient evidence that Leger acted with a “spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Shea v. Emmanuel College, 425 Mass. 761, 764 (1997), quoting from Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992); Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 433 (1987). We conclude otherwise and affirm. Our examination of the record discloses sufficient evidence of malice on Leger’s part to support a conclusion that he fired Falcon for Falcon’s refusal to comply with his instructions to interfere with a product inspection process conducted by a private, independent testing laboratory upon which government inspectors rely to insure the safety of the public. Such conduct amounted to a violation of a clearly established public policy grounded in statutes and regulations designed to minimize potential hazards of fire and shock associated with poorly insulated electrical wire. Consequently, as Leger’s actions did not comport with any legitimate corporate interest, Falcon succeeded in establishing that Leger abused his privilege to fire Falcon. 1. Facts a. Background. JM manufactures wire and cable. In late 1994 and early 1995, Falcon and Leger worked for JM at its South Lancaster plant. Falcon began working there in 1987, mainly in the quality control department, where he was directly responsible for inspecting and testing the various types of wire and cable produced at JM to ensure that they conformed to certain safety standards prior to shipping. If during his inspections, which occurred before the wire was spooled, Falcon determined the wire to be unsafe, he would instruct the machine operator to correct the problem. He would also report the nonconforming wire to his immediate supervisor. Leger was hired by JM as general manager in February, 1994, with the expectation that he would correct some problems the company was having with quality control. Reporting directly to the president of JM, he was responsible for all departments, including quality control, and for all hiring and firing decisions. Until Falcon’s discharge, Leger considered him to be a reliable and competent worker, who was rewarded with several raises. Falcon indicated that the two were generally amicable toward one another and that he knew of no reason why Leger would want to cause him harm. Sixty percent of JM’s total output was regularly sold through distributors to the industrial market. Such industrial wiring included fire alarm cable, typically installed in residences, hotels, and high rise buildings. JM industrial wire could also end up in elevators and home appliances. Such products ordinarily must meet strict safety standards meant to prevent fire and electrical shock. JM contracted with an independent, nonprofit organization, Underwriters Laboratories, Inc. (UL), to perform periodic, unannounced testing of its products. Certification by an organization such as UL assures government inspectors and the public that the wire complies with the requisite UL standards and is safe for its intended purposes, and also signifies that JM had agreed to manufacture its wire and cable in accordance with those specifications. As a prerequisite to obtaining a UL “listing,” which refers to the right to mark an approved product with the UL label, a manufacturer must sign a written agreement provided by UL. Under its agreement with UL, JM paid a fee for the right to purchase and affix UL labels upon approved wire and cable. JM could purchase an unlimited quantity of labels, the prices of which varied depending upon the type of wire for which they were intended. JM stored the labels on its premises to await the step in the manufacturing process when they were placed on the product. The UL label for use on JM’s control tray cable (tray cable), the wire at issue in this case, and entered into evidence at trial indicates, among other things, that the tray cable is “UL LISTED” for use in accordance with certain enumerated articles of the National Electrical Code. On UL’s part, the organization agreed to provide regular, unannounced inspections of Usted products at JM’s South Lancaster factory. The purpose of the inspections was to determine comphance with each of the requisite safety standards prior to labeling and shipping of JM’s products bearing the UL label. In certain circumstances, a batch of wire, while technically nonconforming, could still be deemed acceptable for labeUng and shipping upon further consideration by the UL inspector as long as safety was not at issue and the variance was de minimis. In any event, it was the UL inspector, not JM, who controlled the ultimate resolution by requiring JM to avail itself of various options until the problem was corrected to UL’s satisfaction. EHzabeth Goldsmith served as the UL inspector for JM during the relevant period. She testified that the set of safety standards with which wire and cable products must conform prior to UL Hsting was created by UL in consultation with wire and cable manufacturers. These standards pertain to the safe conditions under which the wire may be used, such as temperature, locations (dry or wet), and the amount of maximum voltage for proper operation. UL standards also specify such criteria as the proper type and size of conductor wire and insulation, and the type and quality of compound to be used in making the insulation for the wire. According to Leger, a twenty-two-year veteran of the cable and wire industry, assessing the safety of wire and cable essentially involves a determination that it is “capable of carrying the electricity and not producing a shock or hazard.” He further asserted that a UL inspector, whom he likened to a “government inspector,” tests specifically for the electrical safety and flammability of the listed wire, criteria that could affect public safety. As an example, Leger spoke of a disastrous fire at a Las Vegas hotel involving UL approved wire that forced a reassessment and, ultimately, the creation by UL of stricter mandates for wiring in such buildings. Part of Falcon’s job in quality control was to assist Goldsmith during her unannounced visits to JM’s South Lancaster facility. Goldsmith would view sample wire cuttings under JM’s microscope to determine the thickness of both the copper wire and the wire’s insulation at various points. On other occasions, she would send samples of compound, the raw material from which insulation is made, to UL’s laboratory for compliance testing. b. Events leading to Falcon’s discharge. On December 7, 1994, Goldsmith visited JM and inspected samples from a lot of 50,000 feet of eighteen gouge, sixteen string, two conductor, 600 volt, “Type TC” power and tray cable. The tray cable had been wound onto twenty reels while awaiting UL labeling for shipping to Anixter, a JM customer based in Ohio. Goldsmith rejected the batch as unsafe due to nonconforming insulation and placed the whole lot on hold. On the variation notice she issued to JM, Goldsmith indicated that the problem was a “very low wall” of insulation where the two conductors intersected. Goldsmith’s actual measurements ranged from a low of five to a high of twelve mils. The minimum insulation width established by UL for tray cable was thirteen mils. A wire’s over-all capacity to prevent shorting increases with the thickness of the wall surrounding each conductor. Although Goldsmith did not recall the substance of her conversations with either Leger or Falcon concerning her findings that day, she remembered being “horrified” at how thin the insulation was. According to Falcon, Goldsmith indicated that the order could be shipped without the UL label, but that it could not be sold for use as tray cable. On the variation notice, Goldsmith wrote, “Lot on hold pending disposition from [followup services]. Hold for release by U.L. rep.” Following Goldsmith’s December 7, 1994, visit, Leger appeared concerned about Anixter’s urgent need for its order, which had a specified delivery date of December 15, 1994. He admitted that any delay in its shipment would have been costly to JM. Presuming that the defects in this order could be weeded out, Leger requested that Falcon and other employees go through the wire, eliminate the defective sections from the lot, and prepare it for reinspection. Falcon complied, only to report to Leger days later that the wire in the order appeared to be bad throughout. According to both Leger and Falcon, it was not unusual for low points to occur in the insulation at the start-up of spooling, when tensions in the spooling machine are difficult to adjust. Ordinarily, since JM tacked on and billed for five to ten percent more wire than an order called for, problems with insulation thickness could be rectified by removing a few turns of wire from the reel and adjusting the price accordingly. Falcon believed, based upon his experience and training in quality control and his own personal knowledge of the compound used to make the insulation on the lot of tray cable in question, that no amount of weeding of defective sections would have sufficed to correct the problem with the insulation thickness. According to him, the lot was most likely rejected because of JM’s practice of mixing a nonconforming, “cheap” type of “regrinded” compound during the manufacturing process. From Falcon’s perspective, such conduct by JM in violating UL standards was motivated by making profits at the expense of the safety of the general public. Falcon claimed that “sometimes we do things that is [sz'c] not legal” at JM, such as “ship it out the way it is” when in fact the wire does not meet UL specifications. Falcon apparently had participated in shipping out nonconforming wire in the past, even though he knew it was wrong. He further testified that unless someone informed Goldsmith, she would have no way of knowing the exact type of compound that had been used on the tray cable. When insulation compound is tested, which did not occur in this instance, it is done off site and prior to the extrusion process during which the insulation is placed on the wire. Despite his doubts about the safety of the wire’s insulation, Falcon complied with Leger’s order to resubmit the rejected shipment to Goldsmith for reinspection when she returned on December 16, 1994. It was no surprise to Falcon when Goldsmith found the insulation to be faulty and once again ordered the shipment held. Following Goldsmith’s reinspection on December 16, 1994, Leger told Falcon to hide the whole batch of tray cable in the back of the factory and to conceal it with cardboard. To Falcon’s knowledge, the bad batch of tray cable remained there until some time in early February, 1995, when Leger further ordered him to load all twenty reels on to a rental truck, where it stayed for some time, unchanged, and forever hidden from Goldsmith. On the afternoon of February 9, 1995, Goldsmith unexpectedly returned for a final, third inspection of the Anixter order. She did not inspect the wire hidden in the rental truck on this visit. Falcon was convinced that JM deceived Goldsmith by substituting and presenting for inspection a new, conforming batch of wire in its place, and that the rejected wire was mislabeled and shipped as if it had been approved. Falcon had arrived at work around 6:00 a.m. on February 9, 1995. Within an hour or so of his arrival, he approached Leger to request a raise in his hourly pay, from $9.75 to $11 an hour. According to Falcon, Leger responded that he had no problem with the raise, but said “you have to change the way you deal with Elizabeth [Goldsmith].” When Falcon asked for clarification, Leger said, “You know we most of the time use [the] wrong compound or [the] wrong wire, but you cannot tell her that, you have to cover my back and you’ve got to say that we’re using the right compound, the right wire.” At this point, Falcon said that he could not do that, to which Leger replied, “Who pays you?” Falcon answered, “But that’s not legal, [] to lie for you.” When Goldsmith arrived at the plant later that day and inquired of Falcon about the whereabouts of the twice-rejected wire, Falcon ignored Leger’s instructions to he. Rather, he told her “no comment,” and directed her to “see Mr. Leger.” Falcon contends that this action cost him his job. Leger met with Goldsmith after her February 9, 1995, inspection. Neither testified as to the substance of their conversation. Shortly after she left, Falcon claims that he labeled the old wire with UL labels, and shipped it to Anixter, per Leger’s instructions. At the end of Falcon’s shift, Leger called him to his office where Leger told him he had no recourse but to fire him. Leger’s stated reason was the abrasive and threatening manner in which Falcon had asked for the raise in front of other employees. 2. UL listing and the statutory framework. Tray cable wire, the type of wire at issue in this case, is intended to be installed in settings and in products that are subject to the National Electrical Code (NEC), and several NEC articles govern its use. The UL label affixed to the tray cable in this case states that the tray cable is “UL listed [] for use in accordance with Articles 318, 340, 500 and 501 of the National Electrical Code.” Consequently, the label indicates the tray cable complies with the law of those states, such as Massachusetts, that have adopted the NEC in relevant part. See 527 Code Mass. Regs. §§ 12:00 et seq. (1993). The 1993 Massachusetts electrical code, 527 Code Mass. Regs. §§ 12.00 et seq., is the 1993 NEC as adopted and modified in part by the Commonwealth’s board of fire prevention regulations. It was in effect in December, 1994, through February 9, 1995. General Laws c. 148, § 10B, as amended by St. 1978, c. 295, provides: “Any person who knowingly violates any rule or regulation made by the board of fire prevention regulations shall, except as otherwise provided, be punished by a fine of not less than one hundred dollars nor more than one thousand dollars.” The intent of the Massachusetts electrical code is “the practical safeguarding of persons and property from hazards arising from the use of electricity,” 527 Code Mass. Regs. § 12:00, art. 90-1. The State building code, 780 Code Mass. Regs. §§ 100 et seq. (1992), the intent of which is “to insure public safety, health and welfare . . . and, in general, to secure safety to life and property,” controls “the standards or requirements for materials to be used in connection [with buildings] including but not limited to provisions for safety.” 780 Code Mass. Regs. §§ 100.2, 100.4. The building code incorporates the electrical code into its provisions. G. L. c. 143, §§ 94(a), 96; 780 Code Mass. Regs. § 100.5 & Appendix G. See Commonwealth v. Porrazzo, 25 Mass. App. Ct. 169, 171 (1987). According to the Massachusetts electrical code, only “Usted” equipment and materials (i.e., those of which a representative sample have been approved and tested by a certified, independent laboratory) are acceptable in certain installations. See, e.g., 527 Code Mass. Regs. § 12:00, arts. 240-4, 310-6, 310-8 (a-b), and 318-3(b)(l). Further, the Commonwealth’s State and municipal inspectors may rely upon a wire’s label, issued by an independent testing laboratory, as “proof that such equipment and materials have been tested and conform to suitable recognized industry standards.” 527 Code Mass. Regs. § 12:00, Rule 6. See id.., arts. 90-4 (“The authority having jurisdiction of enforcement of the Code shall accept listed and labeled equipment or materials where used or installed in accordance with instructions included with the listing or labeling”), and 110-3 (“Suitability of equipment may be evidenced by listing or labeling”). A manufacturer is not required to choose UL as the particular listing organization with which it contracts for its listing and certification process. See note 14, supra. 3. Discussion. Viewing the evidence in the tight most favorable to Falcon, Cort v. Bristol-Myers Co., 385 Mass. 300, 301 (1982), we conclude that it permitted a rational jury to find that Leger’s actions leading up to and including Falcon’s termination were improperly motivated by Leger’s frustration with Falcon’s resistance to his scheme to deceive a UL safety inspector. This evidence sufficed to prove the requisite malevolent intent because, as matter of law, such conduct on the part of Leger violated a well-defined public policy. In cases alleging tortious interference by the employee’s supervisor or other company official who instigated the firing, malice means “actual malice” and “[a]ny reasonable inference of malice must ... be ‘based on probabilities rather than possibilities.’ ” Gram v. Mutual Liberty, Ins. Co., 384 Mass. 659, 663-664 (1981), S.C., 391 Mass. 333 (1984), quoting from Alholm v. Wareham, 371 Mass. 621, 627 (1976). See Weber v. Community Teamwork, Inc., 434 Mass. 761, 781-783 (2001). “Actual malice,” in this context, requires the demonstration by a preponderance of the evidence of “a spiteful, malignant purpose, unrelated to the legitimate corporate interest” on the part of the individual alleged to have been responsible for effecting the discharge. Wright v. Shriners Hosp. for Crippled Children, 412 Mass. at 476, quoting from Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. at 433. See King v. Driscoll, 418 Mass. 576, 587 (1994); Harrison v. NetCentric Corp., 433 Mass. 465, 479 n.16 (2001) (“There is no practical difference . . . between ‘actual malice’ and improper motives and means for purposes of [the tort of intentional interference by a corporate officer or supervisory employee]”). In some circumstances, malice may be demonstrated by evidence of the defendant’s unjustified personal vendetta or ill will exceeding personal dislike of the employee. See O’Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 690 (1996) (supervisor’s harassing behavior toward employee malicious where it was “prompted by his resentment of [the employee’s] successful chal

Hiram Clifton vs. Massachusetts Bay Transportation Authority. No. 02-P-781. Suffolk. October 20, 2003. September 30, 2004. Present: Armstrong, C.J., Kaplan, & Porada, JJ. Further appellate review granted, 443 Mass. 1104 (2005). Anti-Discrimination Law, Race. Employment, Discrimination, Retaliation. Evidence, Rebuttal. Limitations, Statute of. Practice, Civil, Instructions to jury, Interlocutory Appeal, Report. Damages, Punitive. Interest. Judgment, Interest. Discussion of the applicability of the continuing violation doctrine set forth in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 541-542 (2001), to claims of a hostile work environment based on racial discrimination in violation of G. L. c. 151B, § 4(1), and of the statute of limitations applicable to such claims [167-170], as well as of the applicability of the continuing violation doctrine to claims of retaliation in the workplace for complaints about discriminatory acts [174-175]. In a civil action for damages arising from a hostile work environment based on race discrimination and retaliation in violation of G. L. c. 15 IB, § 4(1), (4), the judge did not err or abuse his discretion in admitting in evidence, for limited purposes, testimony of sexual and racial discrimination suffered by the plaintiff’s coworkers and a racist flyer that had been posted on a bulletin board at the plaintiff’s place of employment [170-171], or in excluding from evidence reports that had not been proffered or marked for identification [171]; moreover, the judge properly left to the jury the question whether evidence of discriminatory conduct that the plaintiff had suffered more than six months before the plaintiff filed an administrative claim for discrimination was time-barred [171-173]. In a civil action for damages arising from a hostile work environment based on race discrimination and retaliation in violation of G. L. c. 151B, § 4(1), (4), the judge did not impermissibly collapse his instructions defining race discrimination and retaliation [173], nor did he err in using a chalk to indicate the various time periods that the jury could consider in awarding damages [173] or in refusing to give an instruction that did not correctly reflect the law of the Commonwealth [176]; however, although the judge correctly applied the continuing violation rule to the plaintiff’s claim of racial discrimination, he failed to instruct the jury that, if the plaintiff had proved a continuing violation, the claim for earlier conduct would be barred if the plaintiff knew or reasonably should have known, more than six months prior to his filing an administrative claim, that his work sitúatian was pervasively hostile and unlikely to improve [173-174]; moreover, although the judge correctly applied the continuing violation doctrine to the plaintiff’s retaliation claim under the circumstances of this case, the instructions contained errors regarding the time period in which a violation had to have occurred and the ability of the jury to award damages if they found that found that an incident of retaliation within the applicable limitation period could be perceived as a continuation of prior reprisals [175-176]. No error arose from the fact that the jury rather than the judge in a civil action awarded punitive damages for a hostile work environment based on race discrimination and retaliation in violation of G. L. c. 151B, § 4(1), (4). [176] In a civil action for damages arising from a hostile work environment based on race discrimination and retaliation in violation of G. L. c. 151B, § 4(1), (4), the judge did not abuse his discretion or err in concluding that a punitive damage award was excessive and should be reduced [176-177]; moreover, while the judge erred in vacating the award of prejudgment and postjudgment interest on compensatory damages [177-178], he correctly denied the plaintiff’s request for prejudgment interest on the punitive damages award [178-179], This court concluded that while Mass.R.Civ.P. 64, as amended, 423 Mass. 1410 (1996), did not permit the judge in a civil action, after entry of separate judgments for compensatory and punitive damages following a jury trial, to file a report of all matters on the issues of liability and damages during the course of the trial, the judge’s order allowing a new trial on punitive damages following the plaintiff’s rejection of a remittitur of the punitive damages award was properly before this court on report as an interlocutory order. [179] Civil action commenced in the Superior Court Department on May 17, 1995. The case was tried before Ralph D. Gants, J., and was reported by him to the Appeals Court. Walter M. Foster for the defendant. Kevin G. Powers for the plaintiff. Marisa Campagna, Theresa Finn-Dever, & James S. Weliky, for National Employment Lawyers Association, Massachusetts Chapter, amicus curiae, submitted a brief. Porada, J. In 1995 Hiram Clifton brought an action in the Superior Court against the Massachusetts Bay Transportation Authority (MBTA) alleging that, because of his race, he was subjected to a hostile work environment, in violation of G. L. c. 15IB, § 4(1), and was harassed in retaliation for his complaints about discriminatory acts directed at him, in violation of G. L. c. 151B, § 4(4). A jury returned a special verdict against the MBTA and awarded Clifton compensatory damages of $500,000 for emotional distress and $5 million in punitive damages. The MBTA moved for judgment notwithstanding the verdict, a new trial, remittitur of the emotional distress and punitive damage awards, a hearing regarding jury bias, and alteration of the judgment to eliminate any prejudgment or postjudgment interest. Clifton moved to alter the judgment to include prejudgment interest on the punitive damage portion of the award and for reasonable attorney’s fees. In a consolidated memorandum of decision and order on the posttrial motions, the judge allowed the MBTA’s request for a remittitur of the punitive damage award, reducing it from $5 million to $500,000; its motion for a new trial as to punitive damages only if Clifton rejected the remittitur; and its motion to alter the judgment to vacate any prejudgment and postjudgment interest on the award for damages for emotional distress. The judge denied the MBTA’s remaining posttrial motions. The judge also allowed Clifton’s motion for attorney’s fees, but denied his motion for an award of prejudgment interest on the punitive damages. Upon Clifton’s rejection of the remittitur of the punitive damage award, the judge filed a report to this court of “all matters decided in the Consolidated Memorandum of Decision and Order on Post-Trial motions, dated February 3, 2000, and all other matters decided on the issues of liability and damages during the course of the trial of this case.” As his reason for doing so, the judge stated that “[sjince this case involves difficult and important legal issues and since the new trial on the issue of punitive damages would be lengthy, this Court finds (and the parties agree) that the interests of justice are better served by having all relevant issues decided by the Appeals Court before the commencement of the trial on punitive damages.” Neither party has challenged the propriety of the report of the entire case including the postjudgment orders. Instead, each party has briefed the case as if the entire case were here on appeal. We, therefore, defer our discussion of the procedural posture of the appeal until after a discussion of the facts and substantive issues raised. We recite the general background facts, reserving the details concerning the alleged discriminatory acts for our discussion of the particular issues. The plaintiff, an African-American man, started working for the MBTA as a nighttime track laborer in 1983. He did maintenance work on the subway tracks with a group of approximately ten to twelve other employees. In 1984 he became a trackman at the MBTA’s rail shop in the Charlestown section of Boston where he fabricated rails for installation on the MBTA lines. The supervisor in Charlestown was Robert Rooney, a Caucasian man. In 1986 the plaintiff was selected to be a line foreman by Rooney and the manager. He worked in this position until 1988. The plaintiff relocated to a facility in the Jamaica Plain section of Boston from 1988 to 1991. His immediate supervisor was Jerry Romano, a Caucasian man. In late 1991 he returned to Charlestown as a line foreman and again came under the direct supervision of Rooney. When the general foreman retired, the plaintiff took his turn in the rotational sequence used to fill the position. The plaintiff filed internal complaints with the MBTA for discriminatory practices in the workplace in 1990 and 1991. He filed complaints with the Massachusetts Commission Against Discrimination (MCAD) in 1993, alleging discrimination, and in 1994, alleging racial harassment and retaliation for his prior complaint against the MBTA. In 1995 the plaintiff withdrew his two MCAD complaints to file the Superior Court action. We turn now to a discussion of the issues raised. 1. Continuing violation doctrine. In order to pursue his claims, the plaintiff relies on the application of the continuing violation doctrine now set forth in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 541-542 (2001), to claims of a hostile work environment based on racial discrimination in violation of G. L. c. 151B, § 4(1). In Cuddyer, the Supreme Judicial Court determined that the continuing violation doctrine set forth in the regulations of the MCAD at 804 Code Mass. Regs. § 1.03(2) (1993) applied to claims of a hostile environment based on sexual harassment. The court further held that if a claimant has shown a continuing violation, the claimant will not be barred from recovering for discriminatory acts occurring six months prior to filing a complaint with the MCAD unless the claimant “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. The MBTA argues that this continuing violation rule is limited to claims of sexual harassment because the definition of “sexual harassment” contained in G. L. c. 151B, § 1(18)(b), as appearing in St. 1987, c. 473, § 2, prohibits conduct with the “purpose [of]” as well as the “effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment” and no comparable definition for racial harassment exists in G. L. c. 151B. We disagree. Unlike “sexual harassment,” racial harassment is not defined in G. L. c. 151B. Nevertheless, G. L. c. 151B, § 4(1), states that it is an unlawful practice for an employer because of race “to discriminate against [an] individual in compensation or in terms, conditions or privileges of employment.” In deciding the Cuddyer case, the Supreme Judicial Court did not base its analysis of the employee’s claim on the statutory definition of sexual harassment. Instead, the court gave deference to the MCAD’s decisions and its rule making authority. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. at 533-534. The court also observed that, pursuant to G. L. c. 151B, § 9, “the provisions of this chapter [151B] are to be construed liberally” in order to eliminate discriminatory conduct. Ibid., quoting from G. L. c. 151B, § 9. The MCAD has consistently applied the continuing violation rule to claims of hostile work environment based on racial discrimination, see Beldo v. University of Mass. Boston, 20 Mass. Discrimination L. Rep. 105, 111 (1998), in addition to claims based on sex discrimination, Nassab v. Massachusetts Gen. Hosp., 25 Mass. Discrimination L. Rep. 429, 440 (2003). The underpinnings of the continuing violation doctrine set forth in Cuddyer support its application to hostile work environment claims based on racial discrimination. If there had been any doubt about the applicability of this rule to claims of racial discrimination, it was dispelled by Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 642 (2004), in which the Supreme Judicial Court applied the Cuddyer rule to a claim of handicap discrimination. Just as the prohibition against racial discrimination does not parrot the defining discriminatory conduct language for claims of sexual harassment, G. L. c. 151B, § 4(16), simply prohibits an employer from discriminating against a “handicapped” person. Ibid. It strains credulity to suggest that the Supreme Judicial Court would not apply the continuing violation doctrine to a claim based on racial discrimination. Here, the judge did not have the benefit of the Cuddyer decision at the time of the trial. He nevertheless applied the continuing violation rule set forth in the regulations of the MCAD. See note 2, supra. He did not err in instructing the jury in accordance with the regulation, but, as we will discuss in the subsequent section on jury instructions, his application of the continuing violation doctrine was incomplete. See part 3, infra. The defendant also argues that Clifton’s claims for damages under the continuing violation rule are confined to the three-year limitation period set forth in G. L. c. 260, § 5B, or G. L. 151B, § 9. The statute of limitations applicable to Clifton’s case is set forth at G. L. c. 151B, § 9. The MBTA’s argument is foreclosed by our decision in Carter v. Commissioner of Correction, 43 Mass. App. Ct. 212, 222 (1997). As we pointed out in Carter, “[i]t would be anomalous to recognize the applicability of the continuing violation rule in respect to § 5 while precluding its application to § 9.” Ibid. 2. Evidentiary rulings. The MBTA next argues that the judge committed a number of evidentiary errors. At trial, evidence of sexual harassment of one of Clifton’s coworkers was introduced in evidence during the cross-examination of witnesses for the MBTA. The evidence was introduced to rebut testimony of those witnesses who testified that the tension in Clifton’s working environment in 1994 was caused solely by budget constraints and fear of privatization. The judge limited the scope of the questioning to the specific rebuttal of that testimony. The judge did not abuse his considerable discretion, see Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991), in allowing this evidence to be admitted for this purpose. The MBTA next argues that the judge erred in allowing testimony regarding racial discrimination suffered by Clifton’s coworker Craig Dias. Dias worked in the Charlestown yard for a short period and visited the yard from time to time thereafter in his work assignments. He relayed to Clifton that he had been the subject of racially discriminatory remarks and conduct. Acts of harassment directed against others that are known to a plaintiff, and the defendant’s failure to discipline anyone for those acts or effectively to remedy them, may be considered as part of the environment in which the plaintiff worked. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. at 541. The judge specifically instructed the jury that Dias’s testimony was relevant only to the degree that what happened to Dias was made known to Clifton and thus formed part of the alleged hostile environment in which Clifton worked at the MBTA. There was no error in the admission of this evidence for this limited purpose. The plaintiff was allowed to introduce in evidence a racist flyer posted on the MBTA bulletin board in the Charlestown yard. The flyer was entitled “Application for Employment to Jesse Jackson’s Staff” and contained questions such as “Yo’ Daddies name (if known)”; “Length of Last Jail Term”; and “How Fast Can Yo’ Steal & Strip a Car.” The MBTA did not object to Clifton’s testimony about the flyer but objected to the admissibility of the flyer on the ground the flyer was not properly authenticated and its prejudicial effect outweighed its relevancy. Clifton testified that he had shown the flyer to his superiors but that no action was taken about it. The judge ruled correctly that the failure to identify who posted the flyer went to the weight of the evidence and not to its admissibility. The flyer was relevant to paint a picture of Clifton’s workplace and the reaction of his superiors. There was no error in its admission. The MBTA also challenges the exclusion from evidence of incident reports of fellow MBTA workers that were allegedly relevant to explain adverse employment actions taken by the MBTA against Clifton. The record does not disclose that those documents were proffered in evidence or marked for identification. Nor does it appear a proper foundation was laid for their admissibility. There was no error in excluding them. The defendant also contends that the judge erred in allowing the jury to consider evidence of discriminatory conduct prior to the six months that Clifton filed his first claim with the MCAD for discrimination on April 20, 1993, on the ground that Clifton knew or should have known that he was being discriminated against because of his race and had knowledge that his working environment was unlikely to improve. The judge instructed the jury that they could consider evidence of discriminatory conduct prior to October 20, 1992, the date on which the six-month statute of limitations began to run, if they found that the defendant was subjected to a hostile work environment that continued into the limitation period. He further instructed that the discriminatory acts would have to have been of a continuing nature, which he defined as “similar to or reasonably related to the discrimination complained about to the MCAD,” but not earlier than July of 1986, the date on which Clifton was appointed to a foreman’s position, in assessing damages. (See discussion in part 3, infra.) The MBTA argues that this formulation was error because Clifton himself testified that after he became the first black foreman in the Charlestown yard in July, 1986, working conditions became so intolerable that he requested a transfer out of the yard in 1988. The MBTA points to Clifton’s testimony that during this period racial epithets like “Sanford & Son” were consistently sprayed on his locker; the men on his crew frequently threw firecrackers over the stall door when he used the bathroom or sprayed the door with a water hose; his superiors would rig up a cup of water over their office door and call Clifton in for a fake meeting to watch the water spill on him; and his complaints to his supervisors about this conduct went unheeded as illustrative of Clifton’s awareness and knowledge that he was being discriminated against. The MBTA argues that Clifton should also have known at the time of his transfer out of the Charlestown yard in 1988 that his working conditions were unlikely to improve because, although he had a new immediate supervisor, according to Clifton’s testimony, his superiors continued to display discriminatory animus to him by calling him “Roxbury man,” “Sanford,” and referring to Clifton and another black employee as “ding and dong”; failing to follow established seniority practices when it would have benefited Clifton; and giving him more stringent supervision, harsher discipline, and fewer working privileges than his white counterparts. There was also evidence that in 1990 and 1991 Clifton filed complaints with the MBTA’s equal employment opportunity office about the discriminatory treatment of him, but nothing was done to remedy the situation. Although we agree with the MBTA that this evidence presents a serious question whether the discriminatory acts prior to the six-month limitation period are time-barred, we are of the opinion that this is a factual issue that shou

John E. Mole vs. University of Massachusetts & others. Suffolk. November 6, 2003. September 1, 2004. Present: Marshall, C.J., Greaney, Ireland, Spina, Sosman, & Cordy, JJ. Civil Rights, Termination of employment. Employment, Discrimination, Retaliation, Termination. Anti-Discrimination Law, Termination of employment, Prima facie case. Public Employment, Termination. Practice, Civil, Prima facie case. In a civil action brought by a tenured university professor against the defendant university and individual defendants, alleging that the plaintiffs support of charges of sexual harassment charges lodged by his wife (also a faculty member) led to unlawful retaliation against him and violation of his civil rights under 42 U.S.C. § 1983, the judge properly granted directed verdicts in favor of all defendants where the plaintiff had not introduced sufficient evidence to establish a causal link between his support for his wife’s charge and the actions taken against him for purposes of the retaliation claim [591-602] or his claim under 42 U.S.C. § 1983 [602-603]. Civil action commenced in the Superior Court Department on August 5, 1994. A motion for summary judgment was heard by Barbara J. Rouse, J., and the case was tried before Charles T. Spurlock, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Christopher J. Campbell (Andrew C. Pickett with him) for the defendant. John Foskett for the plaintiff. Michael P. Czech, Frank J. Chlapowski, and Michael A. Bratt. Sosman, J. The plaintiff, John Mole, a former tenured professor at the University of Massachusetts Medical Center (UMMC), appeals from the granting of a directed verdict in favor of all defendants on his claims of retaliation (under G. L. c. 151B, § 4 [4] and [4A], and Title VII, 42 U.S.C. § 2000e-3 [2000]) and violation of civil rights (42 U.S.C. § 1983 [2000]). The Appeals Court, with one Justice dissenting, reversed and remanded the case for a new trial. Mole v. University of Mass., 58 Mass. App. Ct. 29, 48 (2003). We granted the defendants’ application for further appellate review. We conclude that the plaintiff failed to introduce sufficient evidence to establish the requisite causal connection between his protected activity (supporting his wife’s claim of sexual harassment) and the adverse personnel actions of which he complains. We therefore affirm the judgment. 1. Facts. Viewed in the light most favorable to the plaintiff, the evidence at trial was as follows. Professor Mole and his wife, Jacqueline Anderson, were both employed at UMMC as faculty members in the biochemistry and molecular biology department (department). Michael Czech was the chair of the department, and Frank Chlapowski was the acting chair during periods when Czech was on leave of absence. With the full support of Czech, Mole had joined the faculty in 1981, been granted tenure in 1984, and attained the rank of full professor in 1987. Anderson was not in a tenure track position. Mole and Anderson were the founders and directors of a research laboratory at UMMC known as the Protein Chemistry Core Facility (PCF), which supported the research of other scientists at UMMC (as well as scientists from outside the university) by isolating and sequencing proteins and amino acids. Funding for the PCF was provided by two sources, the Diabetes and Endocrinology Research Center (DERC), a group of research scientists at UMMC that in turn was funded by Federal grants, and the Scientific Council, another group of UMMC scientists comprised of one member from each department at UMMC. In 1988, Czech criticized Mole with respect to certain fees that the PCF was charging, alleging that the fees were “flagrantly excessive.” Czech expressed dismay about the fees in light of the support the PCF received from the Scientific Council, and disappointment that the imposition of such fees “reflects a lack of cooperative spirit and collegiality.” In response to this criticism, Mole and Anderson wrote to Czech, opining that it was “clear” that Czech had “embarked on a course of action that is intended to damage us personally and professionally” and accusing Czech of making “misleading and false accusations” against them. They indicated that, unless their concerns were resolved, they would file a formal grievance. Dissatisfied with Czech’s response, they pursued that grievance, seeking to remove from their respective personnel files Czech’s correspondence containing the alleged “false and misleading information.” The grievance was resolved in August, 1988, with Czech agreeing that his letter was a “private communication” that was not intended to be placed in their personnel files. Beginning in the late 1980’s, the Scientific Council questioned the advisability of its support of the PCF. At the time, various researchers voiced concerns about difficulties they had encountered working with Mole, and some researchers were opting to have samples analyzed by other facilities instead of using the PCF. A subcommittee of the Scientific Council, formed to review alternative proposals to the PCF, rendered its report on February 8, 1990, recommending that the PCF be merged with another nearby facility and that a new director be recruited for the new combined laboratory. Three weeks later, on February 28, 1990, Anderson submitted an informal complaint to the university’s equal employment opportunity office, alleging that Czech had made sexually offensive remarks. In some unspecified manner, Mole had supported or encouraged his wife’s decision to make that complaint. It is unclear how soon thereafter Czech or Chlapowski learned of Anderson’s complaint, or when they learned of Mole’s own involvement in supporting his wife’s pursuit of that complaint, but, by sometime in August, 1990, both Czech and Chlapowski were aware of the pending complaint. Meanwhile, back in the late spring of 1990, Mole’s teaching assignments had been curtailed, after receiving negative comments from student evaluations. Some negative comments concerning Mole’s teaching had emerged in student evaluations in prior years, but Czech had until that time discounted those negative evaluations for various reasons. On October 4, 1990, Czech and Chlapowski gave Mole his evaluation for the academic year July, 1989, through June, 1990. Whereas the prior year’s evaluation had praised his teaching as “very helpful to the department” and noted improvement in his lectures, the 1990 evaluation referenced the negative evaluations from students and reflected the fact that Mole had been relieved of his teaching duties. With regard to Mole’s research, the prior year’s evaluation had noted that one of Mole’s outside grants had ended, and that he was in his final year of another grant. That 1989 evaluation had urged Mole “to go forward with strong efforts to ensure continuation of his research funding.” The 1990 evaluation noted that the one remaining grant had not been renewed, but that Mole had pending one grant application to two other organizations. The evaluation referenced the urgency of Mole’s finding new funding for the PCF, because the Scientific Council’s withdrawal of support meant that the PCF had lost nearly one-half of its customary funding. The evaluation expressed disappointment that the Scientific Council had “lost confidence” in Mole’s direction of the PCF, and advised Mole that his “primary focus and concern” for the coming year should be to seek out new sources of research funding. In January, 1991, Anderson lodged a formal complaint of sexual harassment against Czech. Chlapowski was under the impression (ultimately shown to be mistaken) that he had also been named in the complaint. On April 24, 1991, Chlapowski filed a charge of “scientific misconduct” against Mole based on Mole’s inaccurate listing of certain papers as “accepted for publication” or “in press.” Amongst research scientists, a charge of “scientific misconduct” is extremely serious, and potentially ruinous to one’s career. After investigation by UMMC officials, it was determined that Mole’s misreporting of the status of his publications was “sloppy and inappropriate,” and deserving of reprimand, but that it did not amount to “scientific misconduct.” Mole was reprimanded but, in the opinion of one of the investigators, it had been “ridiculous” for Chlapowski to escalate the charge to one of “scientific misconduct.” In May, 1991, DERC voted to cease its funding of the PCF as of November, 1991. Chlapowski then contacted the Scientific Council, asking that it finalize its position with respect to its own funding of the PCF. The Scientific Council formally voted to terminate its financial support of the PCF. Shortly thereafter, Mole submitted a request that the department fund the PCF. Chlapowski responded with a list of questions concerning Mole’s request, while making clear that there was no commitment to provide department funding. The questions included requests for factual data (e.g., information on the PCF’s past finances), but also probed the merits of whether support from the department was warranted (e.g., asking why the department should fund the PCF when support “has been discontinued by two of the major scientific programs of the Medical School”). Mole, not wishing to expend the considerable time it would take to gather the information necessary to respond and doubtful that his request for support would be granted, did not supply the requested information. In December, 1991, Czech and Chlapowski completed Mole’s annual evaluation for the 1990-1991 academic year. That evaluation reflected the fact that Mole had lost all outside sources of funding, and that his funding from DERC and the Scientific Council was at an end. It also recited the history leading to the reprimand for the inaccurate reporting of the publication status of his research, and noted that Mole had no new papers either published or accepted for publication. The evaluation went on to list complaints from postdoctoral students who had worked in Mole’s laboratory. In that evaluation, Czech and Chlapowski expressed concern over the fact that Mole had refused to meet with Chlapowski to discuss his evaluation, necessitating resort to purely written communications, and that Mole had similarly alienated other colleagues. In light of these problems, the evaluation concluded that Mole’s “behavior and poor performance are totally inconsistent with his appointment as a tenured Professor,” and that it was “difficult for [Czech and Chlapowski] to understand how Dr. Mole can hope to continue as a faculty member.” In light of these developments, they advised Mole that the laboratory space for the former PCF and Mole’s own laboratory space might be devoted to other uses. On February 10, 1993, Chlapowski completed the next annual evaluation of Mole, and the jury could infer that Czech (despite being on a leave of absence) had been consulted with respect to that evaluation and concurred in it. The evaluation again reflected that Mole had lost all sources of outside funding, and noted that prior evaluations had advised him to concentrate his efforts on obtaining such funding. Chlapowski recounted that Mole had proposed to submit a grant application that included Anderson as one of the principal investigators, but that he (Chlapowski) had declined to approve it because Anderson would not be a member of the faculty during the time period of the grant. Mole had not prepared any other grant applications since May, 1991. The evaluation also criticized Mole for not following through with respect to the correction of his curriculum vitae (a recommendation that had stemmed from the prior accusation of “scientific misconduct”), and for not coming forward with any new publications or research papers. The evaluation cited Mole’s absence from weekly department seminars, indicative of “a further lack of interest on his part in developing a credible research program.” Ongoing problems with his teaching performance were noted, with the conclusion that it would be “inappropriate” to increase his teaching load. The evaluation concluded that Mole had failed to address any of the concerns raised in the prior year’s evaluation, and that his “overall productivity” remained “consistently poor.” As a result, Chlapowski advised that Mole’s assigned laboratory space would be consolidated into a single laboratory. Finally, Chlapowski announced his intention to recommend to the dean that, unless Mole demonstrated improvement in the coming year, Mole’s salary should be reduced by 17.5 per cent. On May 2, 1993, Mole filed a charge with the Massachusetts Commission Against Discrimination complaining of alleged retaliation on account of his support for his wife’s charge of sexual harassment. With respect to the negative performance evaluation he had received in February, 1993, Mole also filed a grievance, claiming that Chlapowski was biased against him and could not evaluate him fairly. The grievance committee recommended that, instead of Chlapowski performing Mole’s evaluation, a committee should be established to perform that task, with the department electing one member of the committee, Mole selecting a second member, and those two members selecting the third member. Mole, of the view that the entire department was biased against him, refused to select anyone from his department to serve on the committee. Lacking any nominee from Mole, the department, at a faculty meeting, voted for two members of the committee, and those two members selected the third member. Neither Czech nor Chlapowski was on the newly formed evaluation committee, nor did Mole present any evidence that Czech or Chlapowski had influenced the faculty vote. On November 8, 1993, nine faculty members (comprising approximately one-half of the department) signed a letter to the chancellor of UMMC complaining about Mole’s lack of productivity, and protesting that he was occupying laboratory space and receiving a salary “without making any contribution” to the department. The signatories to the letter noted that Mole’s research remained without funding “because, for some years now, he has refused to write grant applications. In short, Dr. Mole is a deliberately unproductive faculty member who should be asked to leave.” The letter opined that there were grounds for Mole’s dismissal, suggested that Mole be requested to leave, and, if he did not leave voluntarily, “that a formal investigation into his behavior be initiated.” Neither Czech nor Chlapowski signed this letter, and Mole adduced no evidence suggesting that either Czech or Chlapowski had encouraged faculty members to author or sign the letter. On June 9, 1994, the evaluation committee elected by the department faculty rendered its first evaluation of Mole. Mole, while protesting that the committee was biased against him, submitted to the three evaluators his version of events, explaining why, in his view, he had been unfairly treated by Chlapowski and unfairly denied opportunities to teach and to serve on committees. The evaluators noted that there were “irreconcilable differences of opinion” between Chlapowski and Mole, but concluded that there were grounds for reducing Mole’s teaching and declining to appoint him to committees. Specifically, the evaluation committee noted that there had been “repeated poor performance evaluations” by students in one course, and that Mole had become “a source of general dissatisfaction with the course by students.” With regard to committee assignments, the evaluators recited Mole’s “severely strained relations” with the department faculty, such that “a majority of [department] faculty members would not be willing to be represented by Dr. Mole on any committee.” The evaluation reflected that Mole had no “significant research funding” since 1991, that he had misrepresented the current status of one grant application, an infraction that they viewed as comparable to the prior misstatements about the status of his publications. The committee expressed the view that Mole was “not making serious attempts at regaining significant research support.” Concluding that Mole was “not an effective faculty member,” the committee recommended that Mole’s salary be decreased by 17.5 per cent, with a further reduction the following year if he did not present “significant evidence of research productivity.” They also recommended that, if Mole did not secure any research funding in the coming year, his laboratory space should be “eliminated” effective July 1, 1995. When the same committee evaluated Mole again in June, 1995, the evaluators found no improvement. Mole’s only new publication was a paper that had been completed the previous year. Although Mole had submitted two “small” grant applications, neither had been funded, and the committee was of the view that Mole had deliberately sabotaged one of the applications. The committee opined that Mole “has not presented any evidence of significant research productivity or made concerted or serious attempts to obtain funding.” Accordingly, consistent with their recommendations in the previous evaluation, they recommended that Mole’s salary should be reduced by another 17.5 per cent and that his laboratory space be assigned to other uses. No evaluation of Mole was performed the following year. The committee resigned, expressing the view that there was no point in evaluating the work of a faculty member who was doing no work. Mole’s own self-evaluation reflected that he had no new grants or publications, but attached his explanation that the department was denying him “any opportunities to teach, perform service or maintain a credible research program.” In 1997, the chancellor of UMMC commenced proceedings to terminate Mole. At the termination hearings, both Czech and Chlapowski testified and, at the chancellor’s request, Czech reviewed and responded to testimony in the hearing transcripts. The chancellor recommended to the board of trustees that Mole be terminated, and the board adopted his recommendation. Mole’s appointment was terminated as of May 5, 1999. 2. Discussion, a. Retaliation. Mole contends that UMMC, Czech, and Chlapowski took the above recited actions against him in retaliation for his support of Anderson’s charge of sexual harassment against Czech. See G. L. c. 151B, § 4(4) and (4A); Title VII, 42 U.S.C. § 2000e-3. Lacking any direct evidence of a retaliatory motive, Mole had the burden of establishing a prima facie case of retaliation, and, in the wake of the defendants’ introduction of nonretaliatory reasons for the various actions taken, the burden of proving that the articulated nonretaliatory reasons were pretext. See McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 309 (1st Cir. 1998), cert. denied, 525 U.S. 1104 (1999); Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992). To make out his prima facie case, Mole had to show that he engaged in protected conduct, that he suffered some adverse action, and that “a causal connection existed between the protected conduct and the adverse action.” Mesnick v. General Elec. Co., supra. The defendants contended in their motions for directed verdict, and the judge agreed, that Mole had not introduced sufficient evidence to establish a causal link between his support of his wife’s charge and the actions taken against him, and thus had insufficient evidence to permit an inference of retaliation. Mole contends that the causal relationship between his support of Anderson’s complaint and the adverse employment actions taken can be inferred from the timing and sequence of events. Of course, “[t]he mere fact that one event followed another is not sufficient to make out a causal link.” MacCormack v. Boston Edison Co., 423 Mass. 652, 662 n.11 (1996), citing Prader v. Leading Edge Prods., Inc., 39 Mas