Salvi v. Suffolk County Sheriff's Dept.

• Decision Date: 20 October 2006
• Docket Number: No. 05-P-1047.,05-P-1047.
• Citation: 67 Mass. App. Ct. 596,855 N.E.2d 777
• Parties: Michael C. SALVI v. SUFFOLK COUNTY SHERIFF'S DEPARTMENT.
• Court: Appeals Court of Massachusetts

855 N.E.2d 777

67 Mass. App. Ct. 596

Michael C. SALVI v. SUFFOLK COUNTY SHERIFF'S DEPARTMENT.

No. 05-P-1047.

Appeals Court of Massachusetts, Suffolk.

Argued May 5, 2006.

Decided October 20, 2006.

Ellen M. Caulo for the defendant.

Robert R. Berluti for the plaintiff.

Present: GRASSO, COWIN, & KAFKER, JJ.

KAFKER, J.

The jury were warranted in making the following findings: Despite the desire of the plaintiff, Michael C. Salvi, to keep his sexual orientation private at work, rumors that he was homosexual spread through the Suffolk County sheriff's department (department) in late 1997 or early 1998. Beginning at that time, the plaintiff heard derogatory comments about homosexuals and learned that he had been referred to as a "fucking fag" by coworkers and by his commanding officer. His coworkers snickered and called him "sissy" at roll call. He felt shunned in the prison cafeteria. Children's toy blocks spelling "FAG" were sent anonymously to the home the plaintiff shared with his domestic partner. The plaintiff complained about the comments unsuccessfully, and after he had complained, he felt that his work assignments significantly worsened. He then sought therapeutic help for job-related stress and depression. Although the slurs and derogatory comments abated by the end of 1998, the rumors and his problems at work did not. After he felt he was unfairly disciplined in October of 1999, he attempted suicide by jumping off the Neponset River bridge. The day after his suicide attempt, the plaintiff went on medical leave, never to return to work.

The plaintiff brought suit in the Superior Court, claiming he was a victim of employment discrimination due to his sexual orientation. More specifically, he claimed that he was subjected to a hostile work environment in violation of G.L. c. 151B, § 4; that the department retaliated against him in violation of G.L. c. 151B, § 4(4), (4A); and that ultimately, he was constructively discharged.

The trial lasted eight days. The department moved unsuccessfully for a directed verdict at the close of the plaintiff's case and at the close of the evidence. The jury found, by special verdicts, that the plaintiff had been "subjected to unwelcome, severe or pervasive conduct by the Defendant, . . . based on his sexual orientation that unreasonably interfered with the conditions of Mr. Salvi's employment by creating a hostile, intimidating, or humiliating work environment," and that the department did "know or have reason to know of the hostile environment" but "fail[ed] to take adequate steps to remedy it." The jury further found that the department did not "retaliate against Mr. Salvi by taking an adverse job action against him because he made complaints of harassment based on his sexual orientation."¹ The jury awarded the plaintiff compensatory damages totaling $93,600 in back pay, $380,000 in front pay, and $50,000 for emotional distress, as well as $100,000 in punitive damages. Thereafter the trial judge entered judgment for the plaintiff in the amount of $623,600 with interest from July 20, 2000, plus costs.

The department moved for judgment notwithstanding the verdict, for a remittitur, or in the alternative, for a new trial. The trial judge denied this motion on all bases but one, vacating the award of prejudgment interest on the verdict. An amended judgment² that deleted the award of prejudgment interest entered. On his cross appeal, the plaintiff asks that prejudgment interest be reinstated, while on its appeal the department argues that the evidence was insufficient to support the special verdicts and damage awards. Specifically, the department maintains that the trial judge erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict on the claims for both sexual harassment and constructive discharge. The department also urges that the instructions on constructive discharge and the omission of a special verdict question on constructive discharge were error.

Factual background. In reviewing the denial of a motion for judgment notwithstanding the verdict, we view the evidence presented in the light most favorable to the plaintiff and disregard the evidence favorable to the defendant. Smith v. Bell Atl., 63 Mass.App.Ct. 702, 711, 829 N.E.2d 228 (2005). In accordance with that standard, the facts are as follows. The plaintiff is a homosexual male. He began working for the department as a correction officer at the Suffolk County house of correction (South Bay) in 1994. He did not inform his coworkers of his sexual orientation as he considered it a private matter. In late 1997, the plaintiff learned that rumors of his sexual orientation had been circulating in the workplace, apparently having been spread by a coworker named James O'Brien, who was a vice-president of the union.

Soon thereafter, in February of 1998, the plaintiff was at a bar frequented by correction officers at the same time as O'Brien and several other coworkers. Another correction officer, Francis Gearraughty, left O'Brien's table and approached the plaintiff's table. The plaintiff testified that Gearraughty told the plaintiff and his friends that O'Brien wanted to know why they were "hanging out with a fag."³ The plaintiff did not confront O'Brien, nor did he lodge any official complaint at that time.

On March 10, 1998, a package was sent to the home the plaintiff shared with his domestic partner. The package contained three children's toy blocks glued together to spell the word "FAG." The plaintiff reported the incident to the Boston police and to the investigation division of the sheriff's department (SID), the unit responsible for reviewing sexual harassment allegations in the department. On March 12, 1998, he filed a written report with Deputy Superintendent Lungelow. He informed the department and the police that he suspected O'Brien of spreading the rumors and sending the package.⁴ The department investigator, when he heard from the plaintiff about his suspicions, told him that he did not think O'Brien would do something like that. His investigation also cleared O'Brien.⁵

Soon after the plaintiff filed his complaint, the plaintiff received a three-month work assignment as a guard in the female unit at South Bay, a position with which he was uncomfortable. He had not previously received such a lengthy assignment to this unit.

The department held a fact-finding hearing on April 17 on the plaintiff's complaint of harassment before an attorney for the department, but took no further action on the plaintiff's complaint at that time. The plaintiff was concerned that the union president and chief shop steward attended the hearing. He had not requested their attendance and considered them friends of O'Brien. In their presence, the plaintiff did not identify the people who told him about the rumors because he was concerned they would be targeted for negative treatment.

The plaintiff further testified that on May 1, 1998, his commanding officer, Andy Rao, told the plaintiff that he "had a conversation with Errol [Depass, the shift commander], the other day and he's like, I could care less but just the way he said it, he's said that he couldn't believe that you were a fucking fag." The plaintiff did not report this conversation to anyone else in authority at the department because, as he testified, "anything I reported, nothing was being done, and I didn't do anything."

On May 6, 1998, a special sheriff from the department met with the plaintiff to determine how the department might accommodate his concerns about the rumors and the package sent to his home. The plaintiff requested a transfer out of the South Bay facility. His request was denied, however, because he lacked the necessary training for another position. On May 28, 1998, the plaintiff filed an official charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD), alleging discrimination on the basis of sexual orientation in violation of G.L. c. 151B, § 4, which charge detailed his awareness of the rumors, his conversation with Rao, and his assignment to the female unit.

The plaintiff testified that on June 3, 1998, while he and a coworker were relieving Officer Deborah Powers⁶ in the female unit, Powers remarked: "We had a survey in the unit today and out of all the fags, bisexuals and straights working in the unit, there's more fags working in here. Have a nice day working in the fag unit."⁷ The plaintiff complained of this incident in writing to the attorney who had conducted the fact-finding hearing and to the deputy superintendent in charge of SID, as well as in a letter from his attorneys to the sheriff.⁸ Officials from the department interviewed Powers and exonerated her. Another coworker, Officer Martha Mojave, testified that Powers boasted to Mojave in July, "I was found not guilty. . . . That faggot, Michael Salvi, filed a complaint with SID and they found me not guilty." In front of a number of inmates, Powers called the plaintiff a "fucking faggot" and said that "he's been seen down in P-Town." Mojave's testimony was admitted over objection as evidence of the state of mind of "the people working at the Institution and the environment in which they're working," not for its truth. Mojave did not communicate these statements to the plaintiff for approximately eight months. She testified, however, that the statements made her concerned for the plaintiff's safety, because "inmates will prey on what they know."

On some unspecified dates in 1998, the plaintiff had problems at roll call. Coworkers would snicker and say "sissy" when the plaintiff's name was called. His coworkers also refused to sit with him at lunch in the prison cafeteria.

In July, 1998, the plaintiff received his next work assignment at South Bay: a transfer from the female unit to the solitary confinement unit. Both the plaintiff and Mojave testified that this was an undesirable assignment. There ...