Wrongful Termination Cases

Joulé, Inc., & others vs. Randi Simmons & another. Suffolk. November 1, 2010. March 10, 2011. Present: Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Anti-Discrimination Law, Arbitration, Termination of employment. Contract, Arbitration. Employment, Discrimination. Practice, Civil, Interlocutory appeal. Massachusetts Commission Against Discrimination. Massachusetts Arbitration Act. Federal Arbitration Act. Public Policy. This court concluded that even where an employee has signed a presumptively valid employment agreement requiring arbitration of any claim arising from the employee’s employment, including a claim of discrimination, the Massachusetts Commission Against Discrimination (MCAD) has authority under G. L. c. 151B, § 5, to conduct its own independent proceeding based on such an employee’s complaint of discrimination, and that nothing in such an arbitration provision prohibits the employee from testifying before the MCAD or from providing information, materials, or responses that are necessary for investigation of the case. [93-98] In a civil action seeking to compel arbitration of a claim of discrimination in employment, the judge erred in granting a stay of further proceedings, where, assuming the validity of the arbitration provision in an employment agreement between the parties, the effect of such a stay was to place in the Massachusetts Commission Against Discrimination primary jurisdiction over the employee’s discrimination-based claims rather than to enforce the agreement to arbitrate. [98-100] Civil action commenced in the Superior Court Department on November 19, 2009. A motion to intervene was heard by Thomas E. Connolly, J., and a motion to compel arbitration was heard by Paul E. Troy, J. The Supreme Judicial Court granted an application for direct appellate review. Thomas A. Reed (Eugene J. Sullivan, III, with him) for the plaintiffs. Barbara A. Robb (Nancy S. Shilepsky with her) for the defendant. Catherine C. Ziehl for the intervener. The following submitted briefs for amici curiae: Andrew M. Abraham & J. Michael Conley for The Massachusetts Academy of Trial Attorneys. John Pagliaro & Martin J. Newhouse for New England Legal Foundation & another. Robert S. Mantell for Massachusetts Employment Lawyers Association. Martha Coakley, Attorney General, & Maura T. Healey & Jonathan B. Miller, Assistant Attorneys General, for the Commonwealth. Anne L. Josephson & Heidi S. Alexander for American Civil Liberties Union of Massachusetts & others. Joulé Technical Staffing, Inc.; John G. Wellman; Kristin Motta Zwickau; and Kari Burke. Massachusetts Commission Against Discrimination, intervener. Botsford, J. The plaintiff Joulé Technical Staffing, Inc. (Joulé), employed the defendant, Ranch Simmons, from 2008 to 2009. Both were parties to an employment agreement containing an arbitration provision that purported to cover claims of employment discrimination expressly. Simmons was terminated from her position in July, 2009. Simmons, who claims that her termination was based on discrimination and retaliation by Joulé, did not file a claim for arbitration under the arbitration provision, but did file a complaint of discrimination with the Massachusetts Commission Against Discrimination (MCAD). In response, Joulé filed in the Superior Court a complaint and a motion to compel arbitration of Simmons’s discrimination claim. Before us is Joulé’s interlocutory appeal from the order of a Superior Court judge that in principal part denied Joulé’s motion to compel arbitration and stayed all further proceedings in the Superior Court case pending the outcome of the MCAD proceeding. We conclude that pursuant to G. L. c. 15IB, § 5, the MCAD may conduct its own, independent proceeding based on Simmons’s complaint. With respect to Joulé and Simmons, however, if the arbitration provision in Simmons’s employment agreement is valid — an issue that remains to be resolved — Joulé has a right to compel arbitration of a dispute between it and Simmons concerning her claim. Accordingly, we vacate the order of the Superior Court and remand for further proceedings. 1. Facts and procedural history. Joulé is in the business of providing staffing and business systems support to companies in various States. Joulé hired Randi Simmons for its Boston office in February, 2008, as “selling branch manager.” In accepting the position, Simmons turned down another full-time job offer with another company. At some point after she began to work for the company, Joulé provided Simmons with a document titled “Employment Agreement with Confidentiality, Non-Competition, and Arbitration Provisions” (employment agreement, or agreement). The agreement contains an arbitration provision, quoted in the margin. Simmons had not received a copy or been informed of the employment agreement before starting her job. The agreement provides that Simmons had a right to consult an attorney prior to signing it, but that she would not “be offered employment until [she] sign[ed] and retum[ed] this [agreement.” Simmons did not sign the agreement immediately but, rather, delayed until a “specific request was made for it by the human resources department,” because she “felt apprehensive and uncomfortable about certain restrictions therein.” At the time Simmons was hired and thereafter presented with the employment agreement, she was pregnant, and the baby was bom in due course. Simmons alleges that she was subjected to a hostile work environment and was denied a promotion and salary increase because of Joulé’s biases against pregnant women and against women with children. She complained about the issue to Kristin Motta Zwickau, the director of Joulé’s Boston office. On July 30, 2009, Joulé terminated Simmons’s employment. On August 25, 2009, Simmons filed a complaint with the MCAD asserting discrimination on the basis of sex and pregnancy in violation of G. L. c. 151B, §§ 4 (1) and (11A); G. L. c. 149, § 105D; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2006) (Title VII); and retaliation in violation of G. L. c. 15IB, § 4 (4). As previously stated, Simmons did not initiate arbitration proceedings pursuant to the arbitration provision in the employment agreement. On November 19, 2009, Joulé filed its complaint and motion to compel arbitration in the Superior Court. Joulé requested the court to declare that the agreement was valid and binding on Simmons; that Simmons was required to submit to arbitration any claim against Joulé based on the facts alleged in her MCAD complaint; and that Simmons was precluded from acting as a litigant or party in any MCAD proceeding against Joulé. Simmons opposed the motion to compel arbitration, arguing that the arbitration provision in the agreement was unconscionable and did not unmistakably cover discrimination claims; and that in any event, her MCAD complaint or charge could proceed and she was entitled to “participate in the proceeding as the complainant.” The MCAD thereafter filed an emergency motion to intervene that was allowed by a Superior Court judge. After a hearing, a different Superior Court judge (motion judge) accepted the MCAD’s argument that its authority to conduct an investigation and adjudication of Simmons’s claim of discrimination was not affected by the parties’ agreement to arbitrate, and ordered that Joulé’s motion to compel arbitration be denied, that the Superior Court action be stayed pending resolution of the MCAD’s proceeding, and that the arbitration provision in the employment agreement did not preclude Simmons from participating as a party in the pending MCAD matter. Joulé appealed from the motion judge’s order pursuant to G. L. c. 251, § 18 (a) (1). We granted the applications for direct appellate review filed by Simmons and the MCAD. 2. Discussion. General Laws c. 251, § 18 (a) (1), authorizes a party to appeal directly from the denial of an application to compel arbitration. See, e.g., Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390, 394 (2009) (Warfield). All parties agree, therefore, that Joulé’s interlocutory appeal from the motion judge’s order is properly before us. We review the judge’s order de novo. See Feeney v. Dell Inc., 454 Mass. 192, 199 (2009), citing Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844 (2007). See also Warfield, supra at 395 (motion to compel arbitration treated summarily and judge’s order reviewed de novo). a. Effect of the employment agreement’s arbitration provision on the MCAD. We consider first the effect of the arbitration provision on the MCAD’s ability to pursue its investigation and resolution of Simmons’s MCAD complaint. “The MCAD was established to enforce the Commonwealth’s antidiscrimination laws.” Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 563, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm’n Against Discrimination, 543 U.S. 979 (2004) (Stonehill College). The MCAD has the power to investigate claims of discrimination on its own, but also has the authority — and generally follows this course — to investigate and pursue complaints filed by individuals. See G. L. c. 151B, § 5. In the latter circumstance, although the complaint is filed by the individual, the agency proceeds in its own name. See Stonehill College, supra (in proceeding under G. L. c. 151B, § 5, “it is the MCAD, and not the complainant, that prosecutes the discrimination claim”). We review briefly the MCAD’s procedure in investigating such complaints. See generally G. L. c. 151B, § 5. Any individual alleging discrimination in employment (or otherwise), or the Attorney General, may file a complaint with the MCAD. 804 Code Mass. Regs. § 1.10(1) (1999). The chairperson of the MCAD then designates a single commissioner to investigate the complaint promptly. 804 Code Mass. Regs. § 1.10. If the investigating commissioner finds no probable cause for crediting the allegations of the complaint, the commissioner issues a lack of probable cause finding and dismisses the complaint. 804 Code Mass. Regs. § 1.15(7)(b) (2008). If, however, the commissioner determines that probable cause does exist for crediting the allegations, he or she issues a probable cause finding. Id. At that point, the investigating commissioner endeavors to “eliminate the unlawful practice complained of through conference, conciliation and persuasion.” 804 Code Mass. Regs. § 1.18 (2005). If conciliation is unsuccessful it may be terminated, see 804 Code Mass. Regs. § 1.18(l)(d), and if the investigating commissioner determines that the public interest requires a certification of issues to public hearing, the commissioner issues a complaint in the name of the MCAD. 804 Code Mass. Regs. § 1.20(3) (2004). Such a public hearing is conducted by an MCAD commissioner other than the investigating commissioner, or by a designated hearing officer, or by the full commission. 804 Code Mass. Regs. § 1.21(1) (1999). The case is prosecuted by an MCAD attorney or other staff member, or in some instances by the complainant’s attorney whom the MCAD has designated its agent for the purpose. 804 Code Mass. Regs. § 1.09(5)(a), (b) (1999). A complainant may be permitted to intervene as a party in the case, in the commissioner’s discretion, and also be allowed to testify at the hearing. 804 Code Mass. Regs. § 1.20(4) (2004). If, after the hearing, the MCAD finds that the respondent employer has engaged in an unlawful practice as defined in the statute, the MCAD may require the respondent to “cease and desist from such unlawful practice,” and may grant relief specific to the complaining individual such as “hiring, reinstatement or upgrading of [the] employee[], with or without back pay ... as, in the judgment of the [MCAD], will effectuate the purposes of this chapter.” G. L. c. 151B, § 5. See 804 Code Mass. Regs. § 1.22 (1999). Under both Federal and Massachusetts arbitration statutes, it is clear that parties can agree to arbitrate claims of employment discrimination. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-27 (1991); Warfield, 454 Mass, at 395-396; Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 17-21 (1st Cir. 1999). By its express terms, the arbitration provision in Simmons’s employment agreement is governed both by the Massachusetts Arbitration Act, G. L. c. 251, § 2 (MAA), and by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (FAA). For agreements governed by the FAA, the statute’s presumption of arbitrability means that “in applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [FAA] . . . due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration” (citation omitted). Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 475-476 (1989). In Warfield, supra at 398, we acknowledged this point, but also held that, in view of the strong public policy against discrimination in employment, any agreement to arbitrate claims of discrimination must be stated clearly and unmistakably. Even where there is a clear and unmistakable provision in an employment agreement requiring arbitration of discrimination claims, however, it would not affect the MCAD’s authority under G. L. c. 151B, § 5. “The FAA directs courts to place arbitration agreements on equal footing with other contracts, but it ‘does not require parties to arbitrate when they have not agreed to do so’. . . . ‘Arbitration under the [FAA] is a matter of consent, not coercion.’ ” EEOC v. Waffle House, Inc., 534 U.S. 279, 293, 294 (2002) (Waffle House), quoting Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. at 478, 479. The MCAD is not a party to the employment agreement at issue here, has not agreed to arbitration of Simmons’s MCAD complaint, and cannot be bound by the agreement’s arbitration provision. “[T]he proarbitration policy goals of the FAA do not require the agency to relinquish its statutory authority if it has not agreed to do so.” Waffle House, supra at 294. Accordingly, assuming the validity of the agreement’s arbitration provision, nothing in it precludes the MCAD from proceeding with its investigation and resolution of Simmons’s discrimination complaint — including, if the evidence warrants, granting relief specific to Simmons. This conclusion is consistent with, and advances, the broad statutory responsibility and authority of the MCAD to investigate and remedy instances of discrimination in the Commonwealth. See Stonehill College, 441 Mass, at 562-563, and cases cited (“While the main object of a judicial proceeding under [G. L. c. 15IB,] § 9[,] is to recover damages for the individual victim of unlawful discrimination, . . . the primary purpose of an administrative proceeding before the MCAD is to vindicate the public’s interest in reducing discrimination in the workplace by deterring, and punishing, instances of discrimination by employers against employees” [citation omitted]). See also Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 534 (2001), quoting Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515, 523 (1990) (“the MCAD ‘has been charged with the task of combating discrimination in the Commonwealth’ ”); College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156,170 (1987) (“commission is given broad authority to remedy discrimination”); 804 Code Mass. Regs. § 1.13(4) (1999) (“No waiver agreement signed by any individual shall affect the [MCAD’s] right and statutory duty to enforce [ ] G. L. c. 151B . . . or to investigate any complaint filed before it”). The United States Supreme Court reached the same result in the Waffle House case where an employee alleging handicap discrimination declined to initiate arbitration proceedings mandated by his employment agreement, but instead timely filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) under Title VII. Waffle House, 534 U.S. at 283, 285. The Court concluded that the EEOC was authorized to bring its own enforcement action against the employer, notwithstanding the arbitration agreement between the employer and employee. Id. at 291-292, 296. It further stated that “once a charge is filed ... the EEOC is in command of the process. . . . Absent textual support for a contrary view, it is the public agency’s province — not that of the court — to determine whether public resources should be committed to the recovery of victim-specific relief.” Id. at 291-292., Joulé appears to agree both that the MCAD is empowered and entitled to pursue investigation of Simmons’s discrimination complaint under G. L. c. 151B, § 5, and also that nothing in the arbitration provision of the parties’ employment agreement does, or could, preclude Simmons from filing a complaint with the MCAD. Joulé argues, however, that beyond filing a complaint with the MCAD, under the arbitration provision, Simmons is barred from being a litigant or party to the MCAD proceeding, and that the motion judge erred in ruling otherwise. Again, if the arbitration provision in Simmons’s employment agreement is valid (see Part 2[b], infra), we would agree. When a complainant files a request to intervene, see 804 Code Mass. Regs. § 1.20(4), she must certify her “allegations of discrimination.” 804 Code Mass. Regs. § 1.20(3)(a) (2004). Thus, in essence, the complainant is required to advance a claim of discrimination in her own name. Allowing Simmons to seek to intervene as a party in the MCAD proceeding and to assert directly her individual claim of discrimination would contravene the requirement of the arbitration provision that she resolve her own disputes with Joulé through arbitration. The question whether Simmons may participate in the MCAD proceeding is a different matter. Nothing in the arbitration provision prevents her from testifying before the MCAD, see G. L. c. 151B, § 5, or from “providing] information, materials or responses to [Joulé’s] submissions which are necessary for investigation of the case” to obviate administrative foreclosure in accordance with 804 Code Mass. Regs. § 1.15(5)(b) (1999). b. Stay of court proceedings. It is Joulé’s position that the motion judge erred in granting the stay of further proceedings in its Superior Court action because, in accordance with War-field, the terms of the arbitration provision are clear and unmistakable, and Simmons lacks any ground sufficient to revoke her agreement to arbitrate. See Warfield, 454 Mass, at 398. We agree that the stay should not have been granted, but for different reasons. The motion judge assumed in effect that the arbitration provision was valid and, by staying Joulé’s court action until the MCAD concluded its proceeding, appears to have adopted the premise advanced by the MCAD, namely, that the agency’s proceeding takes precedence over any arbitration. However, “when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA.” Preston v. Ferrer, 552 U.S. 346, 349-350 (2008). In staying further proceedings in Joulé’s action to enforce the parties’ agreement to arbitrate, the motion judge in effect placed primary jurisdiction over Simmons’s discrimination-based claims in the MCAD. This was error. If an employer and employee enter into a valid and sufficiently clear agreement to arbitrate any and all disputes relating to discrimination, then the party seeking arbitration of such a dispute is entitled to have the agreement enforced. See Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844-849 (2007) (arbitration provision enforced where dispute “falls squa

Henry C. Suominen, Jr. vs. Goodman Industrial Equities Management Group, LLC, & others. No. 09-P-1896. Suffolk. October 14, 2010. February 11, 2011. Present: Lenk, Smith, & Milkey, JJ. Labor, Wages, Failure to pay wages. Contract, Employment, Promissory estoppel. Practice, Civil, Notice of appeal, Instructions to jury, Directed verdict, Judgment notwithstanding verdict, Special verdict. Joint and Several Obligation. In a civil action, a Superior Court judge did not abuse her discretion in denying a motion to dismiss an appeal for failure timely to pay a docketing fee, on the ground of excusable neglect by counsel. [730-731] At the trial of a civil action alleging, inter alia, promissory estoppel, the judge erred in declining to instruct the jury on the element of detriment; therefore, the defendants were entitled to a new trial. [731-733] At the trial of a civil action alleging, inter alia, promissory estoppel, the defendants were not entitled to judgment in their favor as a matter of law, and the judge did not err in denying the defendants’ motion for judgment notwithstanding the verdict, where the plaintiff presented sufficient evidence of detriment to send the case to the jury. [733-734] At the trial of a civil action alleging, inter alia, promissory estoppel, in which neither the jury instructions on that claim nor the special questions on the verdict form drew a distinction between the liability of the defendants (the employer real estate development firm and its principal) and at which the jury found for the plaintiff employee, the judge did not clearly err in his implicit finding, under Mass.R.Civ.P. 49(a), that the employer’s principal was acting in a personal capacity when he made his promises to the employee. [734-736] At the trial of a civil action, the judge correctly dismissed the plaintiff employee’s claim that the failure of the defendants (the employer real estate development firm and its principal) to pay him amounts he claimed to be owed as a share of the “promote” (i.e., a type of profit enjoyed by a real estate developer) at the time he was fired constituted a violation of the Wage Act, G. L. c. 149, § 148, where such promote payments were not commissions within the meaning of the Wage Act, regardless of whether they were due and payable at the time the plaintiff was fired. [737-738] Civil action commenced in the Superior Court Department on May 3, 2005. The case was tried before Ralph D. Gants, J., and a motion to dismiss an appeal was heard by Margaret R. Hinkle, J. Ronald M. Jacobs for the plaintiff. Tyler E. Chapman for Goodman Industrial Equities Management Group, LLC, & another. Steven E. Goodman was a codefendant. The following defendants were joined solely on reach and apply claims: AG/GFI Winston-Salem, LLC; GFI Commerce, LLC; GFI Merrimack, LLC; GFI Littleton, LLC; AG/GFI Hampstead, Inc.; AG/GFI Duncan, LLC; AG/GFI Bradford, LLC; GFI Westminster Square, LLC; GFI Ayer, LLC; GFI Milford, LLC; GFI Tyngsboro, LLC; GFI Telluride, LLC; GFI Bedford, LLC; CB/GFI Salem, LLC; CB/GFI Littleton, LLC; GFI Auburn, LLC; and AG/GFI Worcester, LLC. Milkey, J. The plaintiff, Henry C. Suominen, Jr., was employed as the construction manager of defendant Goodman Industrial Equities Management Group, LLC (GIE), a small real estate development firm. In that position, he enjoyed an annual salary of $225,000. After he was fired in 2004, Suominen filed an action against GIE and its principal, defendant Steven E. Goodman, alleging that Goodman had broken a promise to pay him certain compensation in addition to his salary. Following a seven-day trial in Superior Court, the jury ruled in Suominen’s favor on some of his claims, including one based on promissory estoppel. The trial judge entered judgment awarding him a total of $1,729,243.01 in damages, the overwhelming bulk of which rested on the promissory estoppel claim. On appeal, the defendants argue that the trial judge should not have allowed that claim to go to the jury, and that, in any event, the judge’s instructions on the claim were erroneous. Defendant Goodman also argues that there was insufficient basis for his being held personally liable. By way of cross appeal, Suominen claims that the trial judge erred in granting a directed verdict as to one of his other claims. He also argues that the defendants’ appeal is not properly before us because of their failure — without sufficient excuse — to make timely payment of a docketing fee. We affirm in part and reverse in part. Specifically, we conclude that the judge correctly ruled on the directed verdict (and other) motions, but that a material omission in the jury instructions entitles the defendants to a new trial. Background. 1. The defendants’ business. Goodman is a real estate developer who focused on the redevelopment of existing, run-down industrial properties. Each targeted property was acquired by a deal-specific limited liability company that Goodman created solely for that purpose (referred to at trial as a “deal company” or “deal entity”). Although the deal entity purchased the property, the actual redevelopment work there was done by GIE, the limited liability company that Goodman had set up as his over-all real estate management company. That work included rehabilitating the buildings for a new use, securing permits for that use, and the like. Some of the projects were sold after they were redeveloped, while others were retained. 2. Suominen’s hiring. Suominen began working for Goodman as a consultant in February of 1999, and he became GIE’s “construction manager” in June of that year. In that position, Suominen oversaw the day-to-day redevelopment work of many, but not all, of Goodman’s projects. His initial starting salary at GIE was $100,000, which was $35,000 less than his most recent prior job. He was willing to accept the reduced salary because of the potential that he could share in the “upside” of the projects on which he worked. Before Suominen had been hired, Goodman had committed to working out some kind of profit-sharing plan with him, although the details of such a scheme had not been resolved before Suominen started work. 3. The parties’ negotiations. By the end of 1999, the parties were well along toward working out such profit-sharing details, with the discussions having evolved in the context of the specific development projects on which Suominen was working at the time. In fact, by January of 2000, the discussions had progressed to the point that Goodman directed his lawyer to draft “equity sharing agreements” for these projects. Under those drafts, Suominen and David Heller, GIE’s chief financial officer, were to receive a percentage of the “promote” that each of the projects realized (if any). As the testimony at trial revealed, “promote” (also known as a “promoted interest”) is a term of art used in the real estate development field. It refers to a species of profit that developers can enjoy — in addition to the return on any equity they invested — if their projects become extremely successful. What portion of profit, if any, is to go to the developer as a “promote” is determined by agreement between the developer and investors at the start of a development deal. Not every real estate development deal is structured so as to include a “promote”; in some cases, a developer’s potential profit comes only from return on equity or the payment of a separate “development fee.” In the January, 2000, drafts, the precise percentage of the promote that was to go to Suominen was left blank. Shortly thereafter, however, Goodman informed Suominen that he was willing to part with thirty-five percent of his promote, and that he did not care how Suominen and Heller split it. Suominen and Heller quickly agreed between themselves that Suominen should take two-thirds of their joint share, or a resulting 23.33% of the over-all promote. Suominen reported this back to Goodman, and they had what Suominen variously characterized as a “nod of the head,” a “handshake round,” and a “semi-congratulatory type of thing.” At this point (early 2000), Suominen believed he had reached a full agreement under which he would receive a 23.33% share of the promote that otherwise would have gone to Goodman. He viewed his promised share of the promote, and not his salary, as his “primary expectation of compensation,” and he testified that he “would have left” his employment had he learned that his understanding of what he was to receive was incorrect. At the end of 2000, Suominen had the 23.33% figure inserted into the draft documents for two then-current projects. He also modified the documents in a few other respects. For example, he added his own signature line, and he inserted a provision clarifying that the agreement would survive his termination or death. Suominen in fact signed his modified drafts, and he presented them to Goodman for his signature in December of 2000. Goodman declined to sign the documents, claiming that his doing so would require him to amend certain financial disclosure documents he had just filed. He confirmed with Suom-inen, however, that their deal was still on. In March of 2001, Goodman’s attorney forwarded to the parties a draft generic version of an equity sharing agreement that could be tailored for any specific deal (or at least those that were structured to include a promote). Moreover, the following month, Goodman acknowledged at a deposition in a separate action that Suominen and Heller had “an expectation when [Goodman did] a deal they’ll get a part of it,” and that they had an “interest” in thirty-five percent of the promote on particular projects. Goodman never signed any equity sharing agreement with Suominen. In fact, his attorney testified that, at an unspecified time, Goodman informed him that he was no longer interested in pursuing such an agreement. According to the attorney, Goodman decided that such an arrangement was too constraining. However, Goodman never informed Suominen of his change in plan. 4. The Milford distributions. In April of 2001, Goodman refinanced property in Milford that one of his deal companies owned. This resulted in a large inflow of cash (presumably because the redevelopment work that had been done at the property added significant value). He had twenty-five percent of those proceeds invested in GIE, and in May of 2000, he had the remainder distributed to himself, Suominen, and Heller. Suominen was given 23.33% of the money distributed. On several later occasions, Goodman had operating profits from the Milford project distributed to himself, Suominen, and Heller. On those occasions, Suominen again received 23.33% of the distributions. 5. The events of 2002 and 2003. As a result of the Milford distributions, Suominen in 2001 earned approximately $60,000 above his baseline salary of $100,000. In 2002, however, there were no projects that had reached the point of generating distributions. Feeling strapped for cash, Suominen asked Goodman to raise his salary to $225,000, and Goodman agreed. In 2003, various projects were at the point of completion, prompting Heller, who as previously noted served as GIE’s chief financial officer, to ask Suominen if his profit-sharing arrangement with Goodman was still in place. Suominen understood that it was, but no compensation above his increased salary was forthcoming even as deals began closing. 6. Suominen’s firing. On March 18, 2004, Suominen and Goodman finally met to discuss Suominen’s compensation. They testified to markedly different versions of the meeting. In Goodman’s version, the meeting was primarily focused on concerns he claims to have had at the time regarding Suominen’s performance. In Suominen’s version, the meeting was primarily focused on the compensation that Goodman owed, with Goodman testing out various arguments about how the money might not be due. Shortly thereafter, Goodman had Heller draft a history of the equity sharing issues, which he had Heller backdate to make it appear as if the document had been drafted on January 1, 2003. On July 12, 2004, Goodman fired Suominen at a face-to-face meeting. At the meeting, they discussed a transition period in which Suominen could continue to work on some of the existing projects, although not as an employee. Suominen did in fact continue to work under the belief that he would be compensated for such work as a consultant at the rate of his most recent annual salary. By electronic mail message (e-mail) sent on August 5, 2004, Goodman directed Suominen not to do any additional work, and he refused to pay Suominen for the work that Suominen had done after the date he had been fired. 7. Suominen’s claims and the jury’s special verdict. Suom-inen brought an action in Superior Court seeking damages both for the period that he was a salaried employee and for the brief period he worked as a consultant after being fired. Only the claims covering the former period remain live, and among those, the only ones still in play relate to Goodman’s promise to pay Suominen a 23.33% share of the promote. At trial, Suominen’s principal theory of recovery was that he had entered into a binding contract for the promised compensation with both GIE and Goodman personally. The defendants argued to the jury that no such promise had ever been made, and that Goodman at most had led Suominen to believe that a discretionary bonus might come his way. The defendants also argued that, in any event, there was never a “meeting of the minds,” because any agreement would have to be on a deal-specific basis (given that the amount of the promote, or even whether a deal included any promote, varied by the deal). They further argued that Goodman would never have agreed to give Suominen a set percentage of profits on those deals that made money, without Suominen having to share in the losses of those deals that lost money. For whatever reason, the jury rejected Suominen’s contract claims. However, the jury ruled in Suominen’s favor on his fail-back theory of promissory estoppel. Specifically, the jury answered “yes” to all of the following special verdict questions: “Did Goodman promise or represent to Suominen that he would receive 23.33 percent of the ‘promote’ on any development projects? “Did he make this promise or representation with the intent of inducing Suominen to continue his employment at GIE or with the reasonable expectation that it would induce him to continue such employment? “Did Suominen rely on this promise or representation by continuing his employment at GIE? “Did Suominen act reasonably in relying on this promise or representation?” Over the defendants’ protest, the jury were not separately asked to determine whether Suominen suffered detriment from relying on Goodman’s promise. The jury found that Suominen was unlawfully denied a share of the promote on eight projects, for total promissory estoppel damages of $1,216,623 (with prejudgment interest, $1,711,005. 87). The trial judge eventually concluded that the defendants each should face joint and several liability for those damages, and he entered a judgment to that effect on September 25, 2008. How the judge came to this conclusion, and other facts relevant to the parties’ particular claims, are developed further below as the issues arise. Discussion. 1. Jurisdiction over the defendants’ appeal. Before reaching the merits of the defendants’ arguments, we must decide whether those arguments are properly before us. The defendants filed a notice of appeal on October 9, 2008, and Suominen filed a cross appeal two weeks later. Once the parties received notice of the assembly of the record, Suominen, but not the defendants, timely paid a docketing fee. See Mass.R.A.P. 10(a)(1), as amended, 435 Mass. 1601 (2001) (generally requiring payment of docketing fee within ten days of receipt of notice of assembly of record). Some five days after the payment period had run, Suominen filed a motion to dismiss the defendants’ appeal in Superior Court pursuant to Mass.RA.P. 10(c), as amended, 417 Mass. 1602 (1994). In the defendants’ opposition to the motion and at a hearing on the motion, the lawyer who was serving as the lead on the case at the time sought to explain his neglect. Specifically, he documented how his failure to pay the docketing fee was caused by a significant personal crisis that temporarily had rendered him unable to function and, in his words, “a catatonic zombie.” Based on this showing, the motion judge (who was not the trial judge) found “excusable neglect,” and she denied the motion to dismiss. Suominen challenges that ruling in his cross-appeal. We see no good reason to repeat the details of the personal crisis that counsel faced. Instead, we find it sufficient to state that the appellate rales are not so unforgiving as to render the motion judge’s conclusion that the neglect here was “excusable” an abuse of her discretion. We proceed then to a discussion of the defendants’ claims. 2. The merits of the defendants’ appeal, a. Detriment. The defendants focus on Suominen’s promissory estoppel claim, the foundation of almost all of the damages assessed against them. Reduced to basic terms, promissory estoppel “consists simply of a promise that becomes enforceable because of the promisee’s reasonable and detrimental reliance.” Rooney v. Paul D. Osborne Desk Co., 38 Mass. App. Ct. 82, 83 (1995). The defendants focus principally on whether any reliance was “detrimental,” something that the Supreme Judicial Court recently reaffirmed was a separate element of a promissory estoppel claim. Anza-lone v. Administrative Office of the Trial Ct., 457 Mass. 647, 661 (2010), citing Sullivan v. Chief Justice for Admn. & Mgmt. of the Trial Ct., 448 Mass. 15, 27-28 (2006). The defendants claim two different sorts of errors related to detriment. First, they argue that the judge erred by not separately charging the jury on detriment and by not having them determine whether this element was present. Second, they argue that the evidence of detriment was insufficient as matter of law, and that the judge therefore erred in not granting their motion for directed verdict. We address these claims in that order. (i) Jury instructions. The jury were specifically asked whether, and did find that, Suominen continued his employment at GIF in reliance on Goodman’s promises. The judge had initially intended to charge the jury with answering an additional special question: whether Suominen had “suffered some detriment, that is, some financial injury as a result of relying on this promise or misrepresentation. ” However, at the charge conference, the judge decided to eliminate that separate question, citing the potential for jury confusion that including the question might cause. In the judge’s view, the question was unnecessary, because if the jury determined that Suominen continued his employment in reliance on the promise, this by itself established sufficient detriment as matter of law. After the charge was given, the defendants renewed their objection to the absence of an instruction or special question on detriment. We disagree with the trial judge’s conclusion that Suominen’s continuing his employment was sufficient by itself to establish his detriment as matter of law. In our view, the judge erred by conflating continued employment — the action Suominen took in reliance on the promises — and detriment. That this was error is best illustrated by reference to the facts. Although Suominen began his employment at GIE in 1999 at a salary somewhat below the one at his most recent earlier employment, he earned compensation above that level in 2001 as a result of the Milford distributions. Then, in late 2002, Suominen requested and received a 125% raise, putting his base salary at a level at almost twice what he was making before joining GIE. He also never alleged that he forwent any other job opportunities or business ventures by staying with