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Charles v. Leo

Appeals Court of Massachusetts, Suffolk

October 31, 2019

CHANTAL F. CHARLES
v.
VIVIAN LEO & another.[1]

          Heard: November 15, 2018.

          Civil action commenced in the Superior Court Department on March 5, 2012. The case was tried before Elizabeth M. Fahey, J., a motion for judgment notwithstanding the verdict was heard by her, and a motion for a new trial or remittitur was heard by her.

          Emma Quinn-Judge (Monica R. Shah also present) for the plaintiff.

          Kay H. Hodge (John M. Simon also present) for the defendants.

          Present: Rubin, Maldonado, & Lemire, JJ.

          RUBIN, J.

         Chantal Charles sued Vivian Leo and the city of Boston (city) for racial discrimination and retaliation in violation of G. L. c. 151B. A jury found the defendants liable on both claims, and awarded Charles $888, 159.83 in compensatory damages ($32, 350 for back pay, $105, 394.56 for front pay, $250, 415.27 for retirement benefits, and $500, 000 for emotional distress) and $10 million in punitive damages. Following trial, the defendants moved for judgment notwithstanding the verdict (n.o.v.), [2] a new trial, and remittitur. The trial judge denied in full the motions for judgment n.o.v. and a new trial. She also declined to remit the compensatory damages award, but remitted the punitive damages award to $2 million, and an amended final judgment then entered. The defendants have appealed from the amended final judgment, arguing error in the denial of their motion for judgment n.o.v., the denial of their new trial motion, the denial of the remittitur motion as to compensatory damages, and the partial denial of the remittitur motion as to punitive damages. Charles has appealed, arguing error in the judge's reduction of the punitive damages award. We vacate the portion of the final amended judgment related to the punitive damages award and remand for reconsideration of the motion to remit those damages. In all other respects, we affirm the final amended judgment.

         Facts.

         Given the applicable standards of review, we summarize the facts adduced at trial in the light most favorable to Charles, with additional facts reserved for discussion.

         Charles is a black woman who, since 1986, has worked as a senior administrative assistant, paid at a grade of MM-5, in the trust office of the city's treasury department. Leo, a white woman, has worked in the treasury department since 1974, and has served as the first assistant collector-treasurer since 1996. From 1986 until 2011, Charles was supervised by Robert Fleming, who became the executive secretary of the trust office in 1990. Fleming initially reported directly to the collector-treasurer, but the trust office eventually became part of the treasury department, and Fleming began reporting to Leo in 2000.

         The trust office manages trust funds left to the city for various purposes. Some, under the "small grants program," are left for purposes such as community activities, events, and cultural programs. Another fund, the Edward Ingersoll Browne Fund (Browne Fund), is used for beautification projects related to parks, squares, streets, and public art. Although Charles had originally been hired to do secretarial and operational work within the trust office, she quickly acquired management responsibilities over the small grants program and the Browne Fund. For instance, Fleming assigned her to "staff the Browne Fund committee and work with the various other [c]ity agencies in preparing applications for review, interacting with the community organizations that were making applications to the Browne Fund, making sure that when they came into the Browne Fund committee for their presentations, they delivered the material that they were required to, and the like." This often required Charles to meet with community groups after business hours because many members of those groups were volunteers with standard work schedules and therefore unavailable during the day. Fleming assigned Charles these responsibilities because of her "knowledge and her ability to . . . accept the training that [the trust office was] providing." In connection with these responsibilities, she was given "functional" job titles of "fund manager" and "community service director." While these titles were not reflected in the city's civil service system, the title of community service director did appear on Charles's business card.

         Charles's job conditions changed when the trust office was reorganized within the treasury department. Leo prohibited Charles from using her functional titles in memoranda and letters to the community. Leo also prohibited Charles from attending community meetings after 5:00 P.M. because Leo would not approve overtime, although Charles attended some such meetings anyway, without remuneration. Leo also prohibited Charles from accepting awards on the trust office's behalf. This included one instance in which the mayor gave an award to the trust office based on its management of a grant that was given to the parks department; the head of the parks department, a white man, accepted the award on Charles's behalf.

         In November of 2010, Fleming had an unscheduled meeting with Leo and her deputy, Richard DePiano, a white man. Leo accused Fleming of being a bad manager because he inadequately supervised Charles, whose behavior Leo described as "aloof, non-deferential, uppity." (Leo denied using the word "uppity," but a rational juror could have credited Fleming's version of events.) Leo then threatened to give Fleming a poor performance evaluation, and to take action to remove him as executive secretary of the trust office, if he did not give Charles an evaluation that Leo "believed was justified." According to Fleming, because Leo did not manage Charles on a daily basis, her order was inconsistent with the city's policy on performance reviews. Fleming refused to capitulate, and gave Charles a review he thought she deserved, which was "[a] good performance evaluation." Leo then gave Fleming a "very poor performance evaluation as executive secretary." This caused Fleming to retire early. The city's personnel files, which were maintained by Leo's assistant, ordinarily contained past performance reviews, but these two reviews were missing from the city's personnel files at the time of trial.

         When Fleming retired, he was working on six or seven Browne Fund projects and performing account reconciliation work on the small grants program and the Browne Fund. He was also attending community meetings. Charles took over this work in addition to the six or seven Browne Fund projects that she had already been managing. She was neither compensated for the additional work nor instructed not to perform it, and she was not aware of anyone else who had taken over Fleming's other responsibilities.

         Nonetheless, shortly after Fleming's retirement, Charles was marginalized from working on the Browne Fund. On September 15, 2011, she was contacted by Karin Goodfellow, the director of the Boston Art Commission, asking for input on revisions to the Browne Fund application procedure and guidelines -- Charles had originally drafted the application. Goodfellow's e-mail indicates that she had been discussing the revisions with Gail Hackett, the assistant to the collector-treasurer. This surprised Charles because both Goodfellow and Hackett did not "really deal with the Browne Fund."

         The next day, Charles filed a complaint with the Massachusetts Commission Against Discrimination (MCAD). Shortly thereafter, Leo circulated a final version of the new Browne Fund application that had removed Charles as the contact person. The city's website had also removed Charles as the contact person and replaced her with Goodfellow. Furthermore, DePiano instructed Charles that she could no longer lead Browne Fund committee meetings, prepare Browne Fund summary reports, or work on the small grants program, all of which she had done prior to filing her MCAD complaint. She was also no longer given information on what occurred at the Browne Fund meetings. This impeded her ability to work with community organizations.

         Although Charles was hoping to be promoted to Fleming's position after he retired, nobody suggested she apply to replace him, nor did she see a job posting for that position. She did, however, see a posting for a position called "supervisor of accounts," a title that existed in other parts of the treasury department but had never been used in the trust office. The job description differed substantially from the work Fleming had been performing: it "listed a lot of public awareness procedural awareness, [etc.]," whereas Fleming's responsibilities were focused on community engagement and project management. It also would be paid at a grade of MM-8; Fleming had been paid at MM-9. In addition, while Fleming's executive secretary position had not required a formal application, this position did. Charles did not apply because the job description and pay grade did not correspond to Fleming's executive secretary position, and because "Leo was never going to give [her] this job if [she] applied for it." At trial, DePiano referred to it as Fleming's position.

         Ultimately, Andrew Niles, a white man, received the position, and began work in November of 2011. By his own admission, Niles "obviously wasn't qualified" to handle certain investment-related aspects of the job, and had been terminated for performance-related reasons from his previous job as a mutual fund accountant. (According to Fleming, Charles did not have experience handling investments either, but did have the ability to learn the required skills. Fleming also noted that DePiano had been trained in the relevant investment-related work on the job.)

         When Niles began as supervisor of accounts, he was told his position was actually called "trust fund manager," which bears an obvious resemblance to the quasi-official title of "fund manager" that Leo had prohibited Charles from using. Indeed, when Leo introduced Niles to Charles as a "trust fund manager," Charles did not understand that Niles was her supervisor. She learned this only after Leo's assistant instructed her to get Niles's approval for a vacation request. After Charles clarified the matter with Leo, Leo wrote Charles a warning letter alleging that she had acted disrespectfully and had accused Leo of being a liar, an accusation that Charles had not leveled. This was the first warning Charles had ever received.

         Niles did not last long on the job. On April 11, 2012, Charles asked Niles for permission to attend an evening meeting at Edward Everett Square related to the Browne Fund. Pursuant to procedure, Niles asked Leo if he and Charles could go to the meeting and receive overtime pay. Leo denied the overtime request. Niles told Charles she could go to the meeting but would not get paid. Leo fired Niles the next day. According to the termination letter Leo gave to Niles, one of the "major factor[s]" in her decision was his "not exhibiting a capacity to monitor workflow and accountability of those employees you manage." Charles was one of two employees Niles managed, and there was no suggestion in the record that Leo believed Niles had problems managing the other employee.

         Leo and DePiano subsequently prepared another job posting for supervisor of accounts. The description differed from the one related to Niles's application and the work Fleming performed; it focused less on the various trust funds themselves and more on financial reporting. Charles did not apply because she did not recognize it as Fleming's position and because the rewriting of the job description "was a clear message to [her] that [she] need not apply." Leo hired Angela Chandler, a white woman and a former collector-treasurer for the town Norwell, for the position.

         Charles continued to be subjected to hostile behavior. When a group came to the office asking for Charles's advice on Browne Fund applications, Leo prohibited them from talking to her and instead diverted them to Chandler. In addition, a small nonprofit organization that for many years had received a small grant, and which had given Charles several awards for her work with them, was the only one out of twenty-one applicants to be denied a small grant in the relevant funding cycle. Finally, Charles continued not to receive overtime for attending after-hours meetings during Chandler's tenure as her supervisor. In fact, shortly before trial, after Chandler had approved Charles's attendance at two after-hours meetings, Leo met with Chandler regarding her failure to follow procedures in approving Charles's overtime, which caused Chandler to become upset and miss a day and one-half of work.

         Discussion.

         1. Judgment n.o.v.

         "In reviewing the judgment, we consider the facts and inferences therefrom in the light most favorable to the plaintiff to determine if 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.'" Phelan v. May Dep't Stores Co., 60 Mass.App.Ct. 843, 844 (2004), quoting Stapleton v. Macchi, 401 Mass. 725, 728 (1988). Our review is de novo. See Phelan, supra at 845.

         Charles claimed in the Superior Court that (1) the defendants discriminated against her on the basis of race by failing to promote her to the positions that ultimately went to Niles and Chandler, (2) the defendants discriminated against her on the basis of race by not awarding her out-of-grade pay when she assumed Fleming's responsibilities following his departure, (3) the defendants discriminated against her on the basis of race by refusing her overtime pay for the after-hours meetings she attended, and (4) the defendants retaliated against her for filing her September, 2011 MCAD complaint. The defendants waived any challenge to the out-of-grade pay and overtime arguments by not raising those issues in their motion for a directed verdict.[3] See Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31, 34 (1991). As such, we need only address the sufficiency of the evidence for the failure-to-promote and retaliation claims.[4]

         a. Failure to promote.

         To succeed on an employment discrimination claim under G. L. c. 151B, a plaintiff must prove four elements: "membership in a protected class, harm, discriminatory animus, and causation." Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001). Charles, as a black person alleging racial discrimination, is a member of a protected class. The defendants here dispute the sufficiency of the evidence with respect to the other three elements. Specifically, they argue that Charles cannot establish those elements because she did not apply for the positions, and because Niles and Chandler were more qualified than she.

         i. Futility.

         The defendants argue first that Charles's claim must fail because she did not apply for the promotions she did not receive. Ordinarily, to succeed on a failure-to-promote claim, the plaintiff must show that he or she applied for and was denied a promotion. However, a plaintiff need not meet this requirement if she can show that applying would have been futile because a "consistently enforced pattern or practice of discrimination" existed which would have resulted in the plaintiff's "explicit and certain rejection." Nguyen v. William Joiner Center for the Study of War & Social Consequences, 450 Mass. 291, 297, 298 (2007), quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 365 (1977) . A plaintiff can prove futility by the employer's "consistent discriminatory treatment of actual applicants, by the manner in which he publicizes vacancies, his recruitment techniques, his responses to casual or tentative inquiries, and even by the racial or ethnic composition of that part of his work force from which he has discriminatorily excluded members of minority groups." Id., quoting International Bhd. of Teamsters, supra. The judge instructed the jury consistently with these legal principles:

"Generally, a person who does not apply for a posted position is not allowed to sue for not getting the posted position. . . . [One] exception is that applying for the job would have been a futile gesture due to a consistently enforced pattern or practice of discrimination. ... If an employer should announce his policy of discrimination by a sign reading, men only, or whites only on the hiring office door, the victims would not be limited to the few who ignored the sign and have subjected themselves to personal rebuffs. The same message can be communicated to potential applicants more subtly, but just as clearly by an employer's actual practices, by an employer's consistent discriminatory treatment of actual applicants, by the manner in which the employer publicizes vacancies, by the employer's recruitment techniques, by the employer's responses to casual or attentative [sic] inquiries, and even by the racial or ethnic composition of that part of the employer's workforce, from which the employer has discriminatorily excluded members of minority groups."

         A rational jury, armed with the facts as we have described them, clearly could have inferred that it would have been futile for Charles to apply for the positions. Furthermore, while many of Leo's acts, devoid of context, would not compel an inference that this futility was caused by Leo's race-based discrimination, context is crucial in determining the discriminatory quality of those acts. Here, to begin with, Leo instructed Fleming to give Charles an unjustified performance review because of her "uppity" behavior. The "racially-charged term 'uppity, '" Bridges v. Scranton Sch. Dist., 644 Fed.Appx. 172, 180 n.6 (3d Cir. 2016), is a derogatory term applied by definition only to those whom the speaker considers inferior, and it has a long, sorry history of use in the United States to describe African Americans who the speaker believes don't know or keep to what the speaker believes is their proper, subjugated place. See, e.g., Bell, Racial Equality: Progressives' Passion for the Unattainable, The Lost Promise of Civil Rights, 94 Va.L.Rev. 495, 517 n.68 (2008) (book review) ("Racial tensions were high in the years following World War I. Some whites, often aided by the KKK, responded with violence to any indication that blacks were acting 'uppity' or had strayed 'from their place'"); Leon F. Litwack, Trouble in Mind: Black Southerners in the Age of Jim Crow xiv-xv (Vintage ed. 1999) (during Jim Crow era, "[e]vidence of success, no matter how it was achieved or displayed, made every black man and woman vulnerable. To convey an air of independence .... was to invite trouble. The simple fact was that many whites equated black success with 'uppityness,' 'impudence,' 'getting out of place,' and pretensions toward racial equality"); Craig-Taylor, To be Free: Liberty, Citizenship, Property and Race, 14 Harv. BlackLetter J. 45, 57 (1998) (prior to Emancipation, free blacks "who did purchase property were subject to mob action for being too 'uppity'"). See also, e.g., Beckwith v. State, 707 So.2d 547, 564 (Miss. 1997) (quoting murderer of Mississippi civil rights activist Medgar Evers calling Evers an "uppity nigger") . It is in the context of this case strong evidence of racially discriminatory animus. A rational juror therefore could have concluded that Leo, out of discriminatory animus, instructed Fleming to give Charles an unjustified performance review, and disciplined him for not doing so.

         Furthermore, the jury heard evidence of the racial composition of upper management. Of ten people holding management positions above Charles's grade of MM-5, only one, Priscilla Flint, was black, and a rational juror could have concluded that Leo promoted Flint to conceal Leo's discriminatory behavior with respect to another black employee, Patrick Bosah: Leo gave Flint the job without Flint's having applied, Flint assumed supervisory responsibilities over Bosah shortly after Bosah had filed a racial discrimination claim with the MCAD, and Leo ordered Flint to attend one of Bosah's MCAD hearings because "I have you, you're black." (Flint testified that she did not attend the MCAD hearing voluntarily.) Again, this supports an inference of racial animus.

         Given this context, Leo's decisions to distance Charles from the Browne Fund and small grants program, and to rewrite the job descriptions to minimize the value of Charles's work experience, take on new possible meanings. A rational juror could have concluded that Leo did not want black people in upper management, and, when it looked like Charles would emerge as a successor to Fleming, Leo took these steps to prevent that from happening.[5] On all the facts and circumstances, a rational juror could have concluded that it would have been futile for Charles to apply for the positions because of the defendants' discriminatory practices.

         The defendants claim that Charles's real reason for not applying for the positions was simply that she did not want them, and that there is therefore an insufficient causal link between their alleged pattern or practice and Charles's failure to apply. Their only argument for this proposition consists of out-of-context citations to Charles's testimony, given on cross-examination, that she "didn't . . . specifically want" Niles's position, and that she "didn't want [Chandler's] job because of the title and also the job description. It's strictly financials." But Charles also testified that she did not understand these positions to be the ones that would replace Fleming's position, which she said she wanted. Indeed, a rational juror could have concluded that Charles lacked this understanding precisely because of the defendants' discriminatory acts in changing the jobs' title, descriptions, and pay grade.

         ii. Qualifications.

         The defendants also argue that Charles's failure-to-promote claim cannot succeed because Niles and Chandler were more qualified than she was for the positions. See International Bhd. of Teamsters, 431 U.S. at 369 n.53 ("Inasmuch as the purpose of the nonapplicant's burden of proof will be to establish that his status is similar to that of the applicant, he must bear the burden of coming forward with the basic information about his qualifications that he would have presented in an application. . . . [T]he burden then will be on the employer to show that the nonapplicant was nevertheless not a victim of discrimination. For example, the employer might show that there were other, more qualified persons who would have been chosen for a particular vacancy, or that the nonapplicant's stated qualifications were insufficient"). See also Somers v. Converged Access, Inc., 454 Mass. 582, 595-596 (2009). The defendants did not raise this argument in their motion for a directed verdict and have therefore waived it on appeal. If we were to reach the merits, we would disagree. A rational juror could have found that Charles was at least as qualified as Niles and Chandler.

         Charles had worked in the trust office for a quarter century and had a detailed knowledge of many of the trust funds the office managed. Indeed, she had taken over Fleming's responsibilities when he retired early, and had designed the application form for the Browne Fund, one of the major funds the trust office administered. She had also received positive performance reviews throughout the course of her employment.

         Niles, by his own admission, was not qualified for certain aspects of the job. He was fired after only a few months. While he had previous accounting-related experience that Charles lacked, this is undercut by the fact that he was terminated for performance reasons from his prior position in which he performed that work. In any event, a rational juror could ...


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