In 1999, a jury in the Superior Court found that the Massachusetts Bay Transportation Authority (MBTA) had discriminated against the plaintiff in his employment on the basis of his race, in violation of G. L. c. 151B, § 4 (1) and (4), and awarded him $500,000 in compensatory damages for emotional distress and $5 million in punitive damages. After the plaintiff refused to accept a remittitur of the punitive damages award to $500,000, the trial judge ordered a new trial on the issue of punitive damages and reported the entire case to the Appeals Court. The Appeals Court modified the judge's order to include a new trial on liability and on compensatory as well as punitive damages. See Clifton v. Massachusetts Bay Transp. Auth., 62 Mass.App.Ct. 164, 180 (2004). We granted the plaintiff's application for further appellate review limited to consideration of (1) whether the "continuing violation" doctrine has any application to a claim of retaliation; if so, (2) whether the judge used the proper date to anchor retaliatory conduct alleged by the plaintiff that would otherwise be untimely to the six-month limitations period authorized by G. L. c. 151B, § 5
We need not detail the facts that could have been found by the jury. It suffices to say that the evidence at trial demonstrated a pattern of egregious racial harassment and retaliation, perpetrated on the plaintiff (who is African-American) by both supervisors and coworkers throughout nine years of his employment in the engineering and maintenance department at the MBTA. We relate but a few examples, beginning in 1986, when the plaintiff became the first African-American foreman in the MBTA's Charlestown yard. Another foreman at that time, Philip Chisholm, and others shot bottle rockets at him, turned the lights off when he used the bathroom, sprayed water at him through fire hoses, dropped firecrackers near him, set water boobytraps that would fall on him when he opened his office door, and painted "fag bait" and "Sanford and Son" on his locker. When the plaintiff complained to his supervisor, Robert Rooney, Rooney called the plaintiff a "rat." Rooney himself soon joined in the harassment, calling the plaintiff "Roxbury
In 1988, in order to escape the harassment, the plaintiff requested, and received, a transfer to become foreman of an MBTA landscaping crew. The unlawful behavior directed toward him by his colleagues did not cease. The conduct often took the form of enforcing rules against the plaintiff that were not applied to other supervisors. The plaintiff perceived that rules extending preferences for filling job vacancies constantly changed, to his detriment, and to the benefit of, other foremen who were white. After 1992, the plaintiff was involved in a series of work disputes in which he was treated unfairly. The plaintiff became aware of several instances of discriminatory conduct, including the use of racist epithets such as "nigger" and "colored boy," directed toward other MBTA employees who also were African-American. In 1992, Chisholm placed a photograph of an African-American woman (who resembled the plaintiff's wife) on a flyer, with words indicating that the woman was available for sexual services, and listing the plaintiff's pager number. Chisholm transmitted this flyer by facsimile to other MBTA offices.
The plaintiff initially complained about the derogatory and unlawful conduct to his immediate supervisors, but they did nothing to stop it.
On April 20, 1993, the plaintiff filed a charge with the Massachusetts Commission Against Discrimination (MCAD) alleging racial discrimination. On February 22, 1994, he filed a
Considering various posttrial motions, the judge upheld the jury's verdicts on liability and compensatory damages, but allowed the MBTA's request for a remittitur of the punitive damages award, reducing it to $500,000, and allowed the MBTA's motion for a new trial solely on punitive damages to the extent that the plaintiff did not accept the remittitur. The plaintiff rejected the remittitur, and the judge filed a report to the Appeals Court, pursuant to Mass. R. Civ. P. 64, as amended, 423 Mass. 1410 (1996), on all of the issues raised in the case. The Appeals Court concluded that the plaintiff could rely on the continuing violation doctrine to recover for retaliatory acts committed beyond the six-month limitations period permitted by G. L. c. 151B, § 5, but that the anchoring period required to establish the continuing violation commenced on August 22, 1993, and not on April 20, 1993, as instructed by the judge. See Clifton v. Massachusetts Bay Transp. Auth., supra at 175-176. On the basis of this perceived flaw in the jury instructions, the court held that a new trial on liability and damages (both compensatory and punitive) was necessary.
1. We find no basis to except a claim of retaliation, in violation of G. L. c. 151B, § 4 (4), from the proper scope of the continuing violation doctrine.
2. At trial, the plaintiff presented evidence of unlawful acts dating back over nine years. To simplify the task of instructing the jury on the applicable time frames for the acts that could be considered by the jury for the purpose of establishing liability and, separately, for the purpose of assessing damages in connection with the plaintiff's independent claims of discrimination and of retaliation, the judge drew a diagram. One shaded portion of the diagram depicted a period commencing April 20, 1993, and ending May 17, 1995, as the time within which an
The judge properly set April 20, 1993, as the beginning date for the retaliation anchoring period. Retaliatory conduct occurring after the plaintiff's first complaint to the MCAD was timely, regardless of when, or whether, a new MCAD complaint was filed. See Cuddyer v. Stop & Shop Supermarket Co., supra at 529-530 & n.8; Carter v. Commissioner of Correction, supra at 218. So long as the alleged retaliatory acts relate to an earlier complaint, a plaintiff is not required to exhaust his administrative remedies before he may bring to court a retaliation claim. Retaliation for filing a complaint of discrimination with the MCAD is subsumed within the original charge. See id.; Borase v. M/A-COM, Inc., 906 F.Supp. 65, 66-68 (D. Mass. 1995). The law was not clear at the time the plaintiff filed his second claim with the MCAD. It was wise, therefore, for him to file a second charge with the MCAD. To set a date based on a charge that was essentially unnecessary would unfairly punish the plaintiff for his cautiousness.
3. At the time of trial, the United States Court of Appeals for the First Circuit, interpreting Title VII, had adopted the so-called "revelatory" standard for applying the continuing violation doctrine, which barred a plaintiff from asserting unlawful conduct beyond the limitations period if the plaintiff was, or should have been, aware of the existence of unlawful discrimination during the "untimely" period. See Provencher v. CVS Pharmacy Div. of Melville Corp., 145 F.3d 5, 14 (1st Cir. 1998);
At the charge conference, the MBTA requested that the judge instruct the jury in accordance with the Provencher court's revelatory standard. The judge correctly (and clairvoyantly) rejected that request, based on his prediction that this court would not adopt the Provencher standard. The judge instead instructed the jury that, if they found that the MBTA committed at least one act of race discrimination during the anchoring period (on the hostile work environment claim, between October 20, 1992, and February 22, 1994) that substantially contributed to the creation of a hostile work environment, then they could award damages for emotional distress that the plaintiff suffered, going back as far as July of 1986, so long as the discriminatory conduct was similar to, or reasonably related to, the discriminatory conduct that was the subject of the plaintiff's complaint to the MCAD. The judge further instructed the jury that, if they found that the MBTA had committed at least one act of retaliation against the plaintiff during the anchoring period (on the retaliation claim, between April 20, 1993, and May 17, 1995), then they could award damages for emotional distress that the plaintiff suffered, so long as the retaliation was reasonably related to the plaintiff's expressed opposition to the discriminatory conduct complained of. The instructions given accurately stated the law at the time. See Lynn Teachers Union, Local 1037 v. Massachusetts Comm'n Against Discrimination, 406 Mass. 515, 520 (1990); Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 207-208 (1981); Carter v. Commissioner of Correction, 43 Mass.App.Ct. 212, 221 (1997).
The Cuddyer decision substantively changed the law with respect to the continuing violation doctrine, by providing a
The plaintiff in this case endured a hostile work environment and unlawful retaliation (as found by the jury), and presented evidence that he entered complaints as appropriate, throughout nine years of employment with the MBTA, to no avail. One would be hard put to imagine a more shocking or outrageous scenario of discrimination in the workplace. From the viewpoint of this court, the plaintiff appears to have done everything that an employee should do in an attempt to end the discriminatory treatment to which he was subjected. It is possible, however, that a reasonable jury could find that the plaintiff "knew or reasonably should have known, more than six months prior to [his] MCAD filing, that [his] work situation was pervasively hostile and unlikely to improve and, therefore, a reasonable person in [his] position, armed with [his] knowledge, would
Our conclusion does not necessitate a new trial in the entirety. The jury's finding of liability remains unassailable. The jury rendered a special verdict finding that the MBTA discriminated against the plaintiff because of his race by subjecting him to a hostile work environment during the period between October 20, 1992, and February 22, 1994, and by taking adverse employment action against him because he expressed his opposition to a discriminatory practice internally with the MBTA or filed a complaint with the MCAD during the period between April 20, 1993, and May 17, 1995. The special verdict form submitted to the jury, however, did not include express questions whether the jury had found the existence of a continuing violation on either claim. On this record, it is impossible to ascertain whether the jury based their assessment of the amount of damages that would adequately compensate the plaintiff for the emotional distress caused by the MBTA's discrimination and retaliation, and the amount of appropriate punitive damages, on a continuing violation.
We comment briefly, however, on the judge's authority to order a remittitur, should the jury, on retrial, award punitive damages that precipitate a motion under Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974), for remittitur or for a new trial. A judge acting on a motion for remittitur has broad discretion. See Blake v. Commissioner of Correction, 403 Mass. 764, 770-771 (1989), and cases cited. Rule 59 (a) requires that a judge remit only so much of the damages "as the court adjudges is excessive," in order to bring the award within the range of verdicts supported by the evidence. See D'Annolfo v. Stoneham Hous. Auth., 375 Mass. 650, 662 (1978). A remittitur of punitive damages (which do not purport to relate directly to the plaintiff's loss) raises slightly different issues. General factors to be considered in determining whether a punitive damage award is excessive were set forth by the United States Supreme Court in BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996), and adopted by this court in Labonte v. Hutchins & Wheeler, 424 Mass. 813, 826-827 (1997). They are "the degree of reprehensibility of the defendant's conduct"; the ratio of the punitive damage award to the "actual harm inflicted on the plaintiff"; and a comparison of "the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct." BMW of N. Am, Inc. v. Gore, supra at 575, 580, 583. In addition, we point out the following considerations that bear on the status of the MBTA as a public entity: first, the "Commonwealth and its subdivisions are liable for punitive damages [under G. L. c. 151B] on the same basis as other `persons' and `employers.'" Bain v. Springfield, 424 Mass. 758, 763 (1997). Second, deliberate violations of G. L. c. 151B, by "those charged with the public duty to enforce the
5. The order denying the MBTA's motion for judgment notwithstanding the verdict is affirmed insofar as it denies a judgment for the defendant on liability. The portion of the judgment finding for the plaintiff on liability is affirmed. The order granting a remittitur on punitive damages is vacated. The portion of the judgment assessing compensatory and punitive damages is vacated. The case is remanded to the Superior Court for a new trial on the amount of compensatory and punitive damages in accordance with this opinion.
The plaintiff has requested an award of appellate attorney's fees and costs in connection with this appeal. See G. L. c. 151B, § 9. Although he did not prevail on all of his claims before this court, we do not view this as a case where a plaintiff should not
"The jury will first decide whether the plaintiff has shown the existence of a continuing violation that includes conduct occurring within the six months prior to her filing with the [Massachusetts Commission Against Discrimination (MCAD)]. If the plaintiff has not shown that the conduct within that six months is part of a pattern of sexual harassment that would constitute a continuing violation, then she may not pursue a claim for the earlier conduct on a continuing violation theory. If the plaintiff has shown a continuing violation, the claim for the earlier conduct will only be barred if she 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. If the jury conclude that the plaintiff has not met this standard, then events prior to the limitations period will be barred as providing a basis for the recovery of damages. The plaintiff would still be allowed to use the time-barred events as background evidence of a hostile work environment, . . . but, if successful in establishing her claim, she could only recover for events occurring within the limitations period. On the other hand, if the jury find that the plaintiff has met the standard stated above, then conduct outside the limitations period would be open to them for an award of damages."
Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 541-542 (2001).