Bandera v. City of Quincy

• Citation: 220 F.Supp.2d 26
• Decision Date: 29 August 2002
• Docket Number: No. CIV.A. 00-11375-MBB.,CIV.A. 00-11375-MBB.
• Parties: Kathleen BANDERA, Plaintiff, v. CITY OF QUINCY, Mayor James Sheets, and Police Chief Thomas Frane, Defendants.
• Court: U.S. District Court — District of Massachusetts

220 F.Supp.2d 26

Kathleen BANDERA, Plaintiff, v. CITY OF QUINCY, Mayor James Sheets, and Police Chief Thomas Frane, Defendants.

No. CIV.A. 00-11375-MBB.

United States District Court, D. Massachusetts.

August 29, 2002.

COPYRIGHT MATERIAL OMITTED

David P. Grunebaum, Holtz Gilman Grunebaum, Thomas J Marcoline, Holtz Gilman Grunebaum, Boston, MA, for Defendants.

Kathleen Bandera, Quincy, MA, pro se.

MEMORANDUM AND ORDER RE: MOTION FOR JUDGMENT AS A MATTER OF LAW (DOCKET ENTRY # 108); ATTORNEY WENDY A. KAPLAN'S PETITION FOR ATTORNEYS' FEES AND COSTS (DOCKET ENTRY # 110); BILL OF COSTS (DOCKET ENTRY # 113)

BOWLER, Chief United States Magistrate Judge.

On May 9, 2002, after hearing seven days of testimony and deliberating for two days, the jury in this wrongful discharge and sexual harassment case rendered a verdict finding defendant City of Quincy ("the City of Quincy" or "the city") liable under 42 U.S.C. §§ 2000(e) et seq. ("Title VII") and Massachusetts General Laws chapter 151B ("chapter 151B") for the sexual harassment plaintiff Kathleen Bandera ("plaintiff" or "Bandera") experienced while employed as the Executive Director of the Community Oriented Policing and Problem Solving Commission ("the Commission") of the Quincy Police Department ("the police department") from September 1997 to June 1998. The jury did not find the City of Quincy liable for the wrongful discharge claims under Title VII or chapter 151B or the hostile work environment claim under 42 U.S.C. § 1983 ("section 1983"). Nor did the jury find defendants James Sheets ("Mayor Sheets" or "the Mayor"), Mayor for the City of Quincy from 1990 to 2002, and Thomas Frane ("Frane," "Chief Frane" or "the Chief"), Police Chief of the City of Quincy during plaintiff's September 1997 to June 1998 tenure as Executive Director for the Commission, liable for wrongful discharge or a hostile work environment under chapter 151B and section 1983.

As compensatory damages, plaintiff limited her claims to back pay and front pay.¹ The jury declined to award plaintiff either back or front pay. The jury did award plaintiff the sum of $135,000 in punitive damages against the City of Quincy under chapter 151B.²

On May 15, 2002, the City of Quincy, Frane and Sheets (collectively: "defendants") filed a timely motion for judgment as a matter of law under Fed.R.Civ.P. 50(b) ("Rule 50(b)") and a timely motion to amend the judgment under Fed.R.Civ.P. 59(e) ("Rule 59(e)"). (Docket Entry # 108). As a separate matter, plaintiff's bill of costs and response to a Procedural Order seeks reimbursement for costs under Fed.R.Civ.P. ("Rule 54(d)") including attorney's fees in the amount of $5,716.87. (Docket Entry ## 113 & 124). In addition, nonparty Attorney Wendy A. Kaplan ("Attorney Kaplan"), plaintiff's former counsel, filed a petition for attorney's fees and costs in the respective amounts of $58,635 and $5,815.86. (Docket Entry # 110). With few exceptions, plaintiff opposes her former counsel's petition. (Docket Entry ## 111 & 116). Defendants likewise oppose Attorney Kaplan's petition. (Docket Entry # 117).

I. MOTION FOR JUDGMENT AS A MATTER OF LAW (DOCKET ENTRY # 108)

In the first and second paragraphs of their five paragraph motion, defendants challenge the $135,000 award of punitive damages on the basis that it is contrary to the evidence, unsupportable and excessive as a matter of law. (Docket Entry # 108, ¶¶ 1 & 2). Defendants raise three additional challenges to the judgment, two of which are based on the incorrect premise that the jury issued the punitive damages award under Title VII. This court addresses these additional grounds for the motion before turning to the insufficient evidence challenge.

First, in the third paragraph, defendants assert that the jury incorrectly awarded punitive damages under Title VII. They base this assumption on the phraseology of the punitive damages instruction which referred to "plaintiff's federally protected rights." (Docket Entry # 108, ¶ 3). Accordingly, defendants seek to overturn the jury's Title VII-based punitive damages award because: (1) a punitive damages award under Title VII cannot stand without an accompanying compensatory or back pay award; and (2) a plaintiff cannot recover punitive damages from a government, government agency or political subdivision. (Docket Entry # 108, ¶¶ 3 & 4).

First and foremost, the jury did not award plaintiff punitive damages against the City of Quincy under Title VII. Rather, the jury made the award under chapter 151B. Defendants nevertheless reason that the jury must have awarded the damages under Title VII because of the instruction's reference to "federally protected rights."

Like the plaintiff in Dichner v. Liberty Travel, 141 F.3d 24, 29 & 33-34 (1st Cir. 1998) (upholding punitive damages instruction that used "formulation drawn strictly from federal precedents" which did not distinguish between federal section 1983 standard and state chapter 151B standard), defendants did not object to the phraseology of the punitive damages instruction before the jury retired. Nor did they propose any particular language for the punitive damages instruction.³ Rather they limited their objection to the failure of the evidence to support a punitive damages award and therefore an instruction.

In the first paragraph of the punitive damages instruction, this court explained to the jury the various bases under which they could issue a punitive damages award. Those bases were either under section 1983 against Frane and/or Sheets or under chapter 151B against the City of Quincy, Frane and/or Sheets. The instruction nowhere referred to Title VII. The special verdict question explicitly asked the jury to refer back to the requirements set forth in the instruction on punitive damages. Accordingly, the only basis for the punitive damages award was under section 1983 or chapter 151B.

With respect to section 1983, the punitive damages instruction allowed the jury to award punitive damages against the individual defendants "if"⁴ the jury found them liable under section 1983. The jury did not find the individual defendants liable under section 1983. Hence, presuming the jury followed the instructions, they did not award punitive damages against the individual defendants under section 1983. The punitive damages instruction also advised the jury that they could not award punitive damages under section 1983 against the City of Quincy because section 1983 did not allow plaintiff to recover punitive damages against a municipality. Accordingly, the jury did not award punitive damages against any defendant under section 1983.

With respect to chapter 151B, the punitive damages instruction informed the jury that they could impose punitive damages against the individual defendants "in the event"⁵ the jury found them liable under chapter 151B. Again, the jury did not find the individual defendants liable under chapter 151B. Presuming the jury followed the instructions, they did not award punitive damages against the individual defendants under chapter 151B. The punitive damages instruction expressly advised the jury that chapter 151B "allow[ed] [them] to award punitive damages against the City of Quincy," the only remaining basis for such liability. Consequently, contrary to defendants' argument, the jury awarded punitive damages against the city under chapter 151B.

Chapter 151B unquestionably allows the jury to award punitive damages even where, as here, the jury found that the plaintiff was not entitled to compensatory damages.⁶ Bain v. City of Springfield, 424 Mass. 758, 678 N.E.2d 155, 161-162 (1997). Chapter 151B also allows an award of punitive damages against a municipality such as a city.⁷ See Bain v. City of Springfield, 678 N.E.2d at 160 n. 3. In particular, chapter 151B waives a municipality's sovereign immunity from punitive damages because the statute "explicitly defines person and employer to include municipalities and explicitly authorizes punitive damages without distinguishing among persons or employers subject to liability." Bain v. City of Springfield, 678 N.E.2d at 160 n. 3.

Finally, if the instruction was as confusing to defendants as they now contend, they could and should have raised the issue before the jury retired to deliberate. After this court concluded giving the instructions and called counsel to the side-bar, defendants did not voice an objection. The simple insertion of a sentence that the jury could not award punitive damages under Title VII would have obviated any alleged confusion. See Gray v. Genlyte Group, Inc., 289 F.3d 128, 137 (1st Cir. 2002) (noting that the "very ease with which any confusion could have been resolved ... underscores the need for counsel to make a distinct objection after the instructions").

Defendants additionally argue, assuming that the award was based under chapter 151B, that the language of the punitive damages instruction, to wit, "whether to award punitive damages and the amount, if any, of such damages is a matter which lies entirely within your sound discretion," incorrectly failed to give the jury sufficient guidance. (Docket Entry # 108, ¶ 5). Under Massachusetts law, it is true that an "award of punitive damages cannot be left to the unguided discretion of the jury." Bain v. City of Springfield, 678 N.E.2d at 162. Again, however, defendants did not object to the language or substance of the instruction. Rather, they objected to the submission of punitive damages to the jury for lack of evidence.

The punitive damages instruction gave the jury the standard under federal anti-discrimination law which allows the jury "to assess such damages `when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.'" Dichner v. Liberty Travel, 141 F.3d at 28-29 & 33-34 (quoting Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (...