Ciccarelli v. School Dept. of Lowell

• Decision Date: 07 December 2007
• Docket Number: No. 06-P-1537.,06-P-1537.
• Citation: 70 Mass. App. Ct. 787,877 N.E.2d 609
• Parties: Sara CICCARELLI v. SCHOOL DEPARTMENT OF LOWELL.
• Court: Appeals Court of Massachusetts

877 N.E.2d 609

70 Mass. App. Ct. 787

Sara CICCARELLI v. SCHOOL DEPARTMENT OF LOWELL.

No. 06-P-1537.

Appeals Court of Massachusetts, Middlesex.

Argued October 18, 2007.

Decided December 7, 2007.

Kimberly A. McMahon, Pitsfield, for the defendant.

Justine H. Brousseau, Boston (Nina Joan Kimball with her) for the plaintiff.

Present: McHUGH, KAFKER, & GRAINGER, JJ.

KAFKER, J.

Just a few days after she appeared on a witness list of another teacher who had filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) against the city of Lowell (city) school department for sex discrimination, the plaintiff, Sara Ciccarelli, unexpectedly learned that she would not be reappointed as a provisional teacher. Ciccarelli then brought this action against the city for retaliation pursuant to G.L. c. 151B, § 4(4). The jury found for Ciccarelli and awarded her $1,800 for lost pay, $8,200 for emotional distress, and $50,000 in punitive damages. The trial judge awarded Ciccarelli $102,252.54 in attorney's fees. On appeal, the city claims that there was insufficient evidence to support the jury's finding of retaliation and the award of emotional distress and punitive damages. The city further maintains that Ciccarelli's counsel made improper references to an uncalled witness in her closing argument. We conclude that the evidence supports the jury's finding of retaliation and its award of punitive damages. We also conclude that the city failed to preserve the issues of the uncalled witness references and emotional distress damages, and we affirm the judgment.

Background. The jury were warranted in finding the following facts. Ciccarelli began teaching Spanish at Lowell High School (school) in the 1995-1996 school year under a provisional teaching certificate. This teaching experience was part of a five-year program to gain advanced provisional certification. The program was supervised by Mary Ann Simensen, the coordinator for staff development programs. In addition to the teaching experience, the certification program required Ciccarelli to fulfill seven teaching competencies¹ and complete fifteen hours of coursework before the end of the five-year period.

After receiving the highest ratings in her evaluations,² Ciccarelli was rehired for the 1996-1997 academic year. While Ciccarelli was completing her second year of teaching, another school employee, Patricia Kealy, filed a sexual discrimination complaint with the MCAD against the city. In the spring of 1997, Ciccarelli agreed to be a witness on Kealy's behalf. In March of 1997, the headmaster of the school, William Samaras, recommended Ciccarelli for permanent hire and reappointment for the 1997-1998 school year. In a letter dated June 18, 1997, the superintendent, George Taspatsaris, also stated the present intention to rehire her for the following school year. Shortly after that letter, the deputy superintendent of personnel, Dr. Helen Flanagan, reported that Ciccarelli successfully completed a supervised, mentored internship and fulfilled all seven teaching competencies. Flanagan's job responsibilities included the hiring, recruitment, and professional development of the city's teachers. As part of these responsibilities, she would issue "halts" and provide clearance for the rehiring of provisional teachers.

On Thursday, July 31, 1997, the city's attorney first received a list of potential witnesses in the Kealy case. Of the names on the list, Ciccarelli was the only provisional teacher. Four days later, Flanagan called Ciccarelli to discuss her lack of coursework toward advanced certification. This telephone call was the first criticism of Ciccarelli's progress in her two years of employment at the school. Even though Ciccarelli still had three years to complete these courses, Flanagan expressed concern about Ciccarelli's ability to do so. Ciccarelli continued to stress her intentions to take the courses. However, Flanagan refused to accept these assurances. Flanagan told Ciccarelli that there was "no possibility of [her] coming back," unless she took the courses immediately. Flanagan ended the call by asking, "How can I rehire you, can you answer that?"

After that phone call, Ciccarelli consulted an attorney in order to be rehired. On August 13, 1997, her attorney sent a letter to Flanagan requesting Ciccarelli's reinstatement and pointing to the "more than coincidental" fact that her employment was terminated just days after the city learned of her status as a witness in the Kealy case. This request was unsuccessful, as Flanagan continued to insist that by delaying the coursework, Ciccarelli was not working in good faith.

Based on these conversations with Flanagan, Ciccarelli did not attend the teacher orientation on August 26, 1997. School began the following day. The chairperson of the foreign language department, Priscilla Sicard, noticed that Ciccarelli was absent and asked the headmaster, Samaras, if he knew the reason for her absence. Samaras responded, "She's not coming back." As he later testified at trial, Samaras was aware that Ciccarelli was not returning for some time prior to the first day of school.

On August 29, 1997, Ciccarelli wrote a letter to Flanagan in a final attempt to get her job back. In the letter, Ciccarelli stressed her progress toward certification and her continued intention to complete the required course work before the five-year period expired. This letter was also unsuccessful.

Two weeks into the 1997-1998 school year, the city still could not find anyone to fill Ciccarelli's position. Ciccarelli finally received an offer of reinstatement on September 9, 1997, the day before she was scheduled to testify in the Kealy case. For Ciccarelli, the job offer came too late, as the school year had already started without her.

The day after receiving the offer to return to work, Ciccarelli testified before the MCAD in the Kealy case. In the present case, Ciccarelli and Kealy both testified that Flanagan sat at the counsel table next to the city's attorney during that earlier testimony.

Ciccarelli initiated this action by lodging a complaint with the MCAD, which she then removed to Superior Court, alleging that the failure to rehire her was retaliation in violation of G.L. c. 151B, § 4(4). The case went to trial, where Flanagan continued to insist that Ciccarelli was not rehired because of her lack of progress, and that she was not even aware of Ciccarelli's testimony in the Kealy case until she was deposed for this trial in 2002. However, the jury agreed with Ciccarelli and awarded her damages.

The city promptly moved for judgment notwithstanding the verdict, a new trial, and remittitur. All three of these motions were denied by the trial judge. The judge allowed Ciccarelli's motion for attorney's fees, and final judgment entered against the city in the amount of $162,252.54. The city thereafter filed a timely appeal.

1. Standard of review. When reviewing the denial of a motion for judgment notwithstanding the verdict, the evidence is viewed in the light most favorable to the plaintiff, and all evidence favorable to the city is disregarded. Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 16, 691 N.E.2d 526 (1998). Christopher v. Father's Huddle Café, Inc., 57 Mass.App.Ct. 217, 219, 782 N.E.2d 517 (2003).

A trial judge may also set aside a jury verdict and grant a motion for new trial if the weight of the evidence suggests that the verdict was based on bias, misunderstanding, or prejudice. W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass.App.Ct. 744, 748, 616 N.E.2d 118 (1993). A judge's decision not to grant such a motion, however, will be overturned only upon an abuse of discretion. Gath v. M/A-COM, Inc., 440 Mass. 482, 492, 802 N.E.2d 521 (2003).

2. Retaliation claim. An employer may not "discharge, expel or otherwise discriminate against any person ... because he has filed a complaint, testified or assisted in any proceeding under section five." G.L. c. 151B, § 4(4), inserted by St.1946, c. 368, § 4. A retaliation claim under c. 151B must fulfill three elements: (1) the employee engaged in a protected activity; (2) the employee faced an adverse employment consequence; and (3) the protected activity caused the adverse employment action. Mole v. University of Mass., 442 Mass. 582, 591-592, 814 N.E.2d 329 (2004). Because it is undisputed that Ciccarelli's testimony in Kealy's sexual discrimination case was a protected activity, the city only appeals the sufficiency of the evidence on the latter two elements.

First, the city argues that Ciccarelli cannot demonstrate an adverse employment action because only school principals have the authority to hire and fire teachers, and the deputy superintendent, as a matter of law and fact, could not decide whether to rehire Ciccarelli. The Massachusetts Education Reform Act of 1993 (MERA) defines the authority to hire teachers as follows: "Principals employed under this section shall be responsible, consistent with district personnel policies and budgetary restrictions and subject to the approval of the superintendent, for hiring all teachers..." (emphasis added). G.L. c. 71, § 59B, as appearing in St.1993, c. 71, § 53. Similarly, in the area of dismissal or demotion, MERA provides: "A principal may dismiss or demote any teacher or other person assigned full-time to the school, subject to the review and approval of the superintendent" (emphasis added). G.L. c. 71, § 42, as appearing in St.1993, c. 71, § 44.

We interpret the statute to provide a significant role to superintendents in the hiring and firing process. Their approval is required for both. Although the ultimate responsibility regarding such approval resides by statute with the superintendents themselves, they may authorize their deputies to take actions on their behalf in carrying out these statutory responsibilities. Furthermore, the school department may be held responsible for such...