Pelletier v. Town of Somerset & Another.1

• Decision Date: 10 December 2010
• Docket Number: SJC–10654.
• Citation: 110 Fair Empl.Prac.Cas. (BNA) 1792,458 Mass. 504,939 N.E.2d 717
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Kim PELLETIERv.TOWN OF SOMERSET & another.1

458 Mass. 504

939 N.E.2d 717

110 Fair Empl.Prac.Cas. (BNA) 1792

Kim PELLETIER

v.TOWN OF SOMERSET & another.1

SJC–10654.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Sept. 8, 2010.Decided Dec. 10, 2010.

Carlin J. Phillips, North Dartmouth (Joseph P. Fingliss, Jr., with him) for the plaintiff.David D. Dowd, Boston, for the defendants.Beverly I. Ward & Catherine Ziehl, Boston, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief.Present: MARSHALL, C.J., IRELAND, SPINA, CORDY, BOTSFORD, & GANTS, JJ. ²BOTSFORD, J.

The plaintiff, Kim Pelletier, worked as a laborer for the highway department of the town of Somerset (town) from 1984 to 2000. In 2003, after first filing a complaint with the Massachusetts Commission Against Discrimination (MCAD), the plaintiff commenced an action in the Superior Court against the town and the highway department seeking damages for discriminating against her on the basis of gender and sexual orientation, for subjecting her to sexual harassment and a hostile work environment, and for constructive discharge. After a trial lasting six days, a jury awarded the plaintiff compensatory and punitive damages against the town.³ Concluding that “a substantial portion of the evidence presented by Pelletier at trial was not within the scope of the MCAD complaint or discovery provided incidental thereto,” the trial judge allowed the remittitur portion of the town's motion for a new trial or in the alternative for remittitur, and ultimately reduced the jury verdict to $200,000 in compensatory damages and $400,000 in punitive damages, plus attorney's fees and costs pursuant to G.L. c. 151B. The plaintiff elected to accept the remittitur.

The town thereafter appealed from the ensuing Superior Court judgment, the plaintiff cross-appealed, and we granted the plaintiff's application for direct appellate review. We apply the scope of investigation rule and conclude that the scope of the MCAD investigation in this case should have been expected to cover the plaintiff's various claims of discriminatory treatment, sexual harassment, and hostile work environment allegedly occurring during the time period that Antone Cabral was her supervisor, but not her claims of discrimination relating to alleged events and incidents that preceded Cabral's supervisory tenure. These earlier incidents were “separate and distinct both qualitatively and temporally,” Lattimore v. Polaroid Corp., 99 F.3d 456, 465 (1st Cir.1996), from what could reasonably be considered as within the range or reach of the MCAD's investigation. Because, however, a significant amount of evidence presented at trial concerned these earlier incidents, the town is entitled to a new trial on liability as well as damages. With respect to other issues raised by the parties on their cross appeals, we conclude that the judge properly denied the town's motion for judgment notwithstanding the verdict; we also conclude that where a plaintiff accepts an order of remittitur but the defendant nevertheless appeals from the judgment, the plaintiff is not precluded from challenging the remittitur on cross appeal. ⁴

Background. We begin with a recitation of undisputed facts that were presented at trial; additional facts are later described in connection with our discussion of the issues.

The plaintiff worked as a laborer for the town's highway department starting in 1984. By 2000, she had risen to the level of senior truck driver. Except for summer interns, she was the only woman in the highway department for the entire period of her employment. The plaintiff is a lesbian, as her supervisors knew.

Antone Cabral joined the highway department in 1996 as a laborer, and became a foreman in August of 1998. Once he became foreman, Cabral was the plaintiff's supervisor and responsible for assigning the plaintiff and other employees to assignments and tasks.⁵ In August, 1999, the plaintiff injured her back at work and was out of work for approximately nine months. When she returned in May, 2000, Cabral was once again her immediate supervisor.

In the summer of 2000, the plaintiff filed a grievance under her collective bargaining agreement concerning Cabral's alleged discriminatory mistreatment of her.⁶ After a contentious hearing held on September 7, 2000, and presided over by John McAuliffe, the town administrator, the town formally denied the grievance. Thereafter, the plaintiff's relationship with her employer deteriorated further, the plaintiff claimed she could no longer work for the highway department, and she did not return to work there after October 23, 2000.⁷

On October 18, 2000, the plaintiff filed a complaint with the MCAD; she was not then represented by counsel. The complaint named the highway department as the respondent, and alleged discrimination on the basis of gender and sexual orientation. The narrative portion of the complaint alleged that the plaintiff's supervisor Cabral “engaged in a pattern of harassment and disparate treatment against [her],” including treating her differently than male coworkers, specifically by restricting her from driving certain trucks. It ended with the statement that the plaintiff believed she was “subject to harassment and discriminatory terms and conditions of employment based on [her] sexual orientation and gender.”

The MCAD complaint also offered details of two of the incidents that had formed the basis of the plaintiff's union grievance. The first was what the parties refer to as the “forbidden fruit” incident.⁸ On June 28, 2000, after a prolonged argument over which truck the plaintiff should use, Cabral had accused the plaintiff of liking to give him a hard time, and said to her, “You want the forbidden fruit. You want what the men have.” Although she did not interpret the comment as sexual at the time, the plaintiff later spoke with her union shop steward about the incident. The shop steward and, according to the plaintiff, “all the guys” who worked in the highway department interpreted “forbidden fruit” as a sexual reference.⁹ The second incident occurred a few weeks later on July 14, 2000, when the plaintiff was monitoring dumpsters at the town transfer station. When Cabral discovered that metal had been placed in the wrong dumpster, he told her that if she could not otherwise do her job right, she should “tie [herself] down to the chair.”

In early 2001, having engaged counsel, the plaintiff participated with the town in what the MCAD refers to as “predetermination discovery.” ¹⁰ Consistent with the MCAD complaint, the focus of this discovery remained entirely on interactions in 2000 between the plaintiff and Cabral. Asked in a predetermination discovery deposition whether she thought she was “treated fairly by everyone but Mr. Cabral,” the plaintiff responded, “Yes.” She answered an interrogatory in a similar fashion. In June, 2001, the MCAD's predetermination discovery process ended. Approximately two months later, in August, 2001, the plaintiff changed counsel.

Through her new counsel, the plaintiff reframed her allegations of discrimination. The plaintiff and the town each submitted a memorandum of law to the MCAD in the fall of 2001 on the issue whether probable cause existed to believe the town committed an unlawful practice.¹¹ The plaintiff's memorandum, submitted in September, 2001, described Cabral's interaction with the plaintiff as “intimidating,” as well as “demeaning, derogatory, and hostile.” Cabral allegedly engaged in a “pattern of unequal treatment” between male employees and the only female employee of the highway department, the plaintiff. The plaintiff stated in the memorandum that she “began experiencing Mr. Cabral's discriminatory actions from the onset of his appointment to foreman,” and indicated that the discriminatory, hostile work environment she was experiencing under Cabral represented a distinct change from the past.

In the same memorandum, the plaintiff claimed that the hostile work environment extended beyond the actions of Cabral personally. She asserted that “it was common practice among all male employees to keep [p]ornographic [p]eriodicals such as ‘Playboy’ and ‘Penthouse’ magazines inside each town truck” and that “there was also an assortment of pornographic periodicals kept within the dispatche[rs'] desk draw[er]s.” The plaintiff also complained about the interfering, threatening, and coercive actions of the town administrator in dealing with the plaintiff's ongoing sexual harassment complaint that was the subject of her grievance.¹² The plaintiff claimed that work-related “anxiety, depression, insomnia, and nightmares” resulted in her leaving work on October 23, 2000, and not returning. The MCAD indicated, however, that with the agency's predetermination discovery process closed, it was no longer willing to follow up on new lines of inquiry. On November 6, 2001, the agency granted a motion by the town to “strike” the portions of the memorandum of law dealing with pornography.

Sixteen months later, on March 3, 2003, the investigating commissioner of the MCAD issued a finding of lack of probable cause (LOPC finding).¹³ A supporting memorandum rejected complaints of gender discrimination, sexual orientation discrimination, sexual harassment, and constructive discharge. The memorandum made no mention of the plaintiff's allegations of pornography. It did mention that the plaintiff's September, 2001, memorandum (but not her MCAD complaint) had alleged constructive discharge, but concluded that “the evidence does not demonstrate that a reasonable person in the [c]omplainant's position would have felt compelled to resign.”

The plaintiff filed an administrative appeal from the LOPC finding. See 804 Code Mass. Regs. § 1.15(7)(d) (1999). In her April 22, 2003, memorandum in support of the appeal, the plaintiff reiterated her earlier allegations of pornography, submitting supporting affidavits from herself and four...