Clifton v. Massachusetts Bay Transp. Auth.

• Decision Date: 21 December 2005
• Citation: Clifton v. Massachusetts Bay Transp. Auth., 839 N.E.2d 314, 445 Mass. 611 (Mass. 2005)
• Parties: Hiram CLIFTON v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 314

839 N.E.2d 314

445 Mass. 611

Hiram CLIFTON v.MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 8, 2005.

Decided December 21, 2005.

Kevin G. Powers, Boston (Robert S. Mantell with him) for the plaintiff.

Walter M. Foster, Boston (Matthew J. Walko with him) for the defendant.

The following submitted briefs for amici curiae:

Marisa Campagna, Theresa Finn-Dever, & James S. Weliky, Boston, for National Employment Lawyers Association.

Paul H. Merry, Boston, & Angela Ciccolo for Massachusetts Employment Lawyers Association & another.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

GREANEY, J.

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.SeeClifton v. Massachusetts Bay Transp. Auth.,62 Mass.App.Ct. 164, 180, 815 N.E.2d 614(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, § 5¹;(3) whether the MBTA is entitled to a jury instruction on the standard enunciated by this court in Cuddyer v. Stop & Shop Supermarket Co.,434 Mass. 521, 541-542, 750 N.E.2d 928(2001), two years after trial, for determining whether past discriminatory conduct is actionable as a continuing violation²; and (4) whether the judge abused his discretion in entering an order requiring the plaintiff to accept either a remittitur on the punitive damages award or a new trial on punitive damages.We conclude that the plaintiff has conclusively established liability on the part of the MBTA on his hostile work environment and unlawful retaliation claims.Because we further conclude, however, that the MBTA is entitled to the benefit of the Cuddyer instruction, there must be a new trial on the amount of compensatory and punitive damages to be awarded.

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 Mayor,""fucking banana," and "Sanford," and referring to the plaintiff and another black employee as "ding and dong."

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.³In early 1990, the plaintiff brought his complaints to the MBTA's equal employment opportunity (EEO) office, and, later that year, filed the first of what became a series of internal EEO complaints.The EEO office failed to investigate the complaints and made no written findings of fact with regard to them.One senior MBTA manager told the plaintiff that he would be considered for promotion if only he stopped filing complaints.Throughout the time period described above, the plaintiff remained (and still remains) an employee of the MBTA.

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 second charge with the MCAD alleging racial discrimination and retaliation.In 1995, the plaintiff filed a complaint in the Superior Court seeking damages for discrimination by means of racial harassment in the workplace, in violation of G.L. c. 151B, § 4(1), alleging that he had been subjected to a hostile work environment, and in violation of G.L. c. 151B, § 4(4), alleging that he had been subjected to adverse employment action because he had expressed opposition to the discriminatory treatment.After a two and one-half week trial, a jury returned a special verdict finding that the MBTA had subjected the plaintiff to a hostile work environment during the period between October 20, 1992, and February 22, 1994, and had retaliated against the plaintiff by taking adverse employment action against him during the period between April 20, 1993, and May 17, 1995.The jury, as stated above, awarded the plaintiff compensatory damages of $500,000 for emotional distress and $5 million in punitive damages.

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.SeeClifton v. Massachusetts Bay Transp. Auth., supra at 175-176, 815 N.E.2d 614.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.⁴We granted the plaintiff's application for further appellate review, limited to the issues stated at the outset of this opinion.We now address those issues.

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.⁵The scope of G.L. c. 151B, § 4(4)'s prohibition against retaliatory conduct is not limited to adverse employment decisions taken in response to the filing of a complaint with the MCAD, but includes "discriminat[ion] against any person because he has opposed any practices forbidden under this chapter.""Workplace conduct is not measured in isolation...."Clark County Sch. Dist. v. Breeden,532 U.S. 268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509(2001).Although unlawful retaliation, typically, may involve a discrete and identifiable adverse employment decision (e.g., a discharge or demotion), it may also consist of a continuing pattern of behavior that is, by its insidious nature, linked to the very acts that make up a claim of hostile work environment.SeeNoviello v. Boston,398 F.3d 76, 89-91(1st Cir.2005)(concluding that creation and perpetuation of hostile work environment can comprise retaliatory adverse employment action under Title VII and under G.L. c. 151B).In sum, it is the nature of the unlawful conduct alleged by the plaintiff, independent of the precise formulation of his claim, that allows a plaintiff to invoke an exception to the limitations period for a continuing violation.SeeOcean Spray Cranberries, Inc. v. Massachusetts Comm'n Against Discrimination,441 Mass. 632, 642-643, 808 N.E.2d 257(2004)(failure to provide reasonable accommodation to handicapped employee);Cuddyer v. Stop & Shop Supermarket Co., supra at 540, 750 N.E.2d 928(hostile work environment based on sexual harassment);Carter v. Commissioner of Correction,43 Mass.App.Ct. 212, 221-222, 681 N.E.2d 1255(199...