Opinion
18-P-577
11-05-2019
Susan LEDOUX v. BRISTOL COMMUNITY COLLEGE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Superior Court, a jury returned a verdict for the plaintiff, Susan Ledoux, on her claims of gender discrimination and sexual harassment against the defendant, Bristol Community College (BCC). BCC claims that the trial judge erred in denying its motion for judgment notwithstanding the verdict (judgment n.o.v.) and created reversible error by declining to give two requested jury instructions. We affirm in part, vacate in part, and remand for further proceedings.
Background. Insofar as this case hinges in large part on the trial judge's denial of BCC's motion for judgment n.o.v., we summarize facts the jury could have found at trial, viewing the evidence in the light most favorable to the plaintiff and disregarding evidence favorable to the defendant. See O'Brien v. Pearson, 449 Mass. 377, 383 (2007). Ledoux was forty-five years old at the time of trial in 2016. She began working at BCC as an institutional security officer in 1990 and became a campus police officer in 1997. She reported to the chief of the campus police, Wayne Wood. Wood reported to Steve Kenyon, the vice-president of administration and finance. Wood and Kenyon viewed Ledoux as a good police officer, and she received positive performance evaluations.
"In reviewing the allowance of a motion for judgment n.o.v., we view the evidence in the light most favorable to the plaintiff, and we ‘consider whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the nonmoving party.’ " Esler v. Sylvia-Reardon, 473 Mass. 775, 780 (2016), quoting Phelan v. May Dep't Stores Co., 443 Mass. 52, 55 (2004).
BCC had a written "Policy on Affirmative Action" (policy) that contained specific policies on sexual harassment and nondiscrimination. As described by the trial judge in her denial of the motion for judgment n.o.v., the policy, which was admitted in evidence as an exhibit:
"prohibited inquiries into employees' sexual experiences and activities, sexual epithets, jokes, written or oral references to sexual conduct, and gossip regarding one's sex life. The Policy stated that grievances about sexual harassment will be investigated and handled pursuant to a grievance procedure set forth in subsection L. The Policy required an investigation within certain time frames after a formal written complaint and the preparation and issuance of a report of preliminary findings to the parties, with a final written decision issued by the President."
In or around 2004, three other campus police officers, Vasco Cordeiro, Sergeant Richard Cookingham, and Damien Santos, approached Ledoux and asked her to sign something that Cordeiro had written "that had a no confidence towards ... Wood." Ledoux refused to sign the paper, as she testified, "[b]ecause it wasn't true." She told the other officers that "it was fabricated, it was lies, I wasn't going to go with them on that." Following that event, Cordeiro and other officers isolated Ledoux. Despite her seniority over the junior male officers, she "would get stuff like ‘I'll never answer to a female’ " from them. Various incidents of harassment ensued. Someone tampered with the pedals on Ledoux's bicycle such that "the pedal completely came off" when she attempted to use it on patrol, and Cordeiro, Sergeant Cookingham, and Santos "were standing there laughing" as she almost fell. Santos drew a picture of her with horns. As found by the trial judge in her denial of the motion for judgment n.o.v., Sergeant Cookingham, "made a motion with his hand suggesting to others that Ledoux was performing oral sex upon Wood when she was in his office." Ledoux also testified that between 2004 and 2009, "one particular officer, any time he was reprimanded or was in trouble for something, he would turn around and say I was sleeping with the boss." Although Ledoux was a senior officer to Cordeiro, he stated that he would not follow orders from a woman. Wood discussed Cordeiro's comment with Kenyon, and it was also brought to Tafa Awolaju, the vice-president of human resources and affirmative action at BCC, but "[t]here was no discipline."
During the same timeframe, the men in the campus police department gossiped about Ledoux and Wood having an affair, and Ledoux often heard that she only had her job because she was sleeping with Wood. Ledoux reported the false and defamatory attacks against her to Wood, Kenyon, and Awolaju. For a period of time, she went to Awolaju at least once a month. Awolaju responded by telling her that women in his birthplace of Nigeria "could only walk behind a man, because a woman cannot have control over a man." Ledoux understood that Awolaju was "basically telling [her] not to report the guys." In addition, Cordeiro made ongoing allegations to Kenyon that Ledoux and Wood were engaged in an inappropriate sexual relationship through 2009. Kenyon determined that the allegations were unfounded and untrue. Although Kenyon recommended to Awolaju that Cordeiro be disciplined, no punishment ensued for these actions.
On October 21, 2009, Cordeiro told Awolaju that a former BCC employee, Lynn Levesque, had called him and advised that she had just seen Ledoux riding in Wood's truck off campus after hours. Awolaju told Cordeiro to relay this information to Kenyon. Cordeiro told Kenyon that Wood and Ledoux were seen driving down "lover's lane." Kenyon told Wood and Ledoux that Cordeiro had reported that they were seen driving down a dirt road after work to have sex. Ledoux was upset. She denied the allegation and stated that she was with friends at the time. Wood was also upset. While in uniform, he located and confronted Levesque near her home, and yelled and swore at her. Levesque reported the confrontation to Kenyon.
BCC subsequently began an investigation. Awolaju assigned the associate director of human resources, Lisa Tarantino, to investigate the October 21 truck incident, whether Wood showed favoritism to Ledoux and was sexually harassing her, and Wood's management of the department. The investigation was purportedly into Wood's conduct only, and Awolaju claimed that Ledoux was not the subject of any investigation. Nonetheless, Awolaju instructed Tarantino to investigate Ledoux's whereabouts on October 21, 2009. Tarantino instructed Ledoux to provide her with a list of the names and contact information for the friends she said she was with on October 21, 2009. Though Kenyon had previously told Ledoux that he did not think that she should be asked about what she did on her personal time, she complied. Tarantino contacted Ledoux's friends to verify her whereabouts. The allegation that Ledoux was in Wood's truck was dispelled as inaccurate "within a few days." Still, after the allegation was dispelled, Tarantino asked Wood if he was having sex with Ledoux. And although the investigation allegedly focused on Wood, whether he showed favoritism toward Ledoux, and whether he was sexually harassing Ledoux, Tarantino never asked Ledoux if she was harassed by or uncomfortable with Wood.
On December 8, 2009, Ledoux made a written complaint to Awolaju stating that she felt harassed and subjected to a hostile work environment as a result of BCC's investigation of Cordeiro's false allegations against her. Awolaju did not open an investigation into the allegations made by Ledoux. On January 15, 2010, Ledoux filed a gender discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD), which alleged, among other things, that Cordeiro's false allegations were based on gender and created a hostile work environment, and that BCC's failure to take action against Cordeiro constituted discriminatory conduct.
On January 22, 2010, Awolaju issued a one-page "Report of Findings Re: October 21, 2009," which stated, among other things, that "[t]here is no evidence to substantiate the allegation" that Ledoux was riding in a truck with Wood on October 21, 2009. As to Cordeiro, the report recommended "that some form of disciplinary and corrective action be taken ranging from a letter of warning to suspension without pay." The report further concluded that "a thorough investigation of the operations of the Public Safety Department is warranted." Cordeiro was never disciplined for making the false report.
On January 27, 2010, Ledoux asked Awolaju for a copy of the final report on BCC's investigation. Awolaju told her that she "wasn't going to get the report" and to drop her MCAD case or she would lose her job. Prior to this conversation, a BCC student approached Ledoux and told her that classmates "were talking about [Ledoux] having [her] job only because [she] was sleeping with [her] boss." Ledoux subsequently collapsed at work from what was later diagnosed as a pseudoseizure, a stress-induced seizure. Ledoux remained out of work for an extended period, due to pseudoseizures, and received workers' compensation payments in 2010 and 2011.
In August 2010, Ledoux submitted documentation from her medical providers indicating that she could return to work. Awolaju rejected the documentation as insufficient because it did not state that she could perform all of the essential functions of her job. On September 7, 2010, following additional communications between Ledoux's medical providers and Awolaju, Ledoux reported to work. Awolaju instructed Kenyon to send her home. BCC then terminated Ledoux's employment for failure to provide sufficient medical documentation to support her return to work. An arbitrator upheld BCC's decision to terminate Ledoux's employment for inadequate medical documentation under the collective bargaining agreement, and the arbitration award was confirmed by a judge of the Superior Court.
A panel of this court affirmed the judgment confirming the arbitration award. See American Fed'n of State, County & Mun. Employees, Council 93 v. Board of Higher Educ., 89 Mass. App. Ct. 1134 (2016).
On August 27, 2012, Ledoux filed the present action against BCC, alleging one count of gender discrimination and one count of sexual harassment under G. L. c. 151B. Her complaint did not allege that she had been terminated in violation of G. L. c. 151B. It did allege that she had gone on medical leave due to a stress-related illness, and it also requested damages for lost wages.
On April 7, 2015, Ledoux moved to amend her complaint to add a retaliation claim based on her termination from BCC. A judge of the Superior Court denied that motion. There has been no cross appeal challenging the denial of that motion.
Following a lengthy trial, a jury found in favor of Ledoux on her gender discrimination and sexual harassment claims. The jury awarded $300,000 in compensatory damages for emotional distress, $250,000 in punitive damages, $450,000 for lost back pay, and $1,500,000 for lost front pay. In a comprehensive decision, the trial judge denied BCC's motion for judgment n.o.v.
Discussion. 1. Motion for judgment n.o.v. BCC contends that the trial judge erred in denying its motion for judgment n.o.v. because Ledoux (a) did not prove that BCC's actions created a hostile work environment between August 27, 2009, and January 15, 2010; (b) did not prove that she was subjected to an adverse employment action between August 27, 2009, and January 15, 2010; and (c) was not entitled to recover lost wages as a matter of law.
We disagree with Ledoux's claim that BCC failed to timely renew its motion for directed verdict at the close of all evidence, such that BCC was procedurally precluded from raising a motion for judgment n.o.v. "[T]o preserve a right to challenge the sufficiency of the evidence by a motion for judgment notwithstanding the verdict, a party must have moved for a directed verdict ‘at the close of all evidence.’ " Rhode Island Hosp. Trust Nat'l Bank v. Varadian, 419 Mass. 841, 847 (1995), quoting Mass. R. Civ. P. 50 (b), as amended, 428 Mass. 1402 (1998). "The rule is one of fairness, and the interest of fairness is met by construing the requirement of rule 50 (b) that a motion for directed verdict be made ‘at the close of all the evidence’ as meaning that the motion must be made before the jury begins deliberations." Varadian, 419 Mass. at 847. Here, after providing final instructions to the jury, the trial judge asked the jury to decide whether they wanted to commence their deliberations or wait until the following court date. The jury opted to start on the following court date, as reflected by the trial judge's instructions that they "can't start talking about [the case]," and had to "wait [until the ensuing date] ... to start [their] deliberations." On the next court date, BCC renewed its motion for a directed verdict, after which the trial judge instructed the jury that they would "start [their] deliberations this morning." The record thus reflects that BCC timely renewed its directed verdict motion because it did so before the jury began their deliberations. See id.
"In reviewing the allowance of a motion for judgment n.o.v., we view the evidence in the light most favorable to the plaintiff, and we ‘consider whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the nonmoving party.’ " Esler v. Sylvia-Reardon, 473 Mass. 775, 780 (2016), quoting Phelan v. May Dep't Stores Co., 443 Mass. 52, 55 (2004).
a. Sexual harassment. General Laws c. 151B prohibits sexual harassment, which it defines, in part, as "verbal or physical conduct of a sexual nature" when such "conduct [has] the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment." G. L. c. 151B, §§ 1 (18) and 4 (16A). " To prevail on a claim of sexual harassment based on the creation of a sexually hostile or offensive work environment, the plaintiff bears the burden of establishing that the conduct alleged was both ‘subjectively offensive’ and ‘sufficiently severe and pervasive to interfere with a reasonable person's work performance.’ " Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290, 296 (2016), quoting Dahms v. Cognex Corp., 455 Mass. 190, 205 (2009). In addition, in some circumstances, the continuing violation doctrine "permits a person to seek damages for alleged discrimination occurring outside the usual statute of limitations period if the alleged events are part of an ongoing pattern of discrimination, and there is a discrete violation within the statute of limitations period to anchor the earlier claims." Pelletier v. Somerset, 458 Mass. 504, 520 (2010).
The jury heard ample evidence from which they could have concluded that Ledoux was subjected to actions that were objectively and subjectively offensive. See Gyulakian, 475 Mass. at 296. During her employment with BCC, Ledoux endured repeated allegations from her coworkers that she was in a sexual relationship with Wood; an officer gestured to other officers that Ledoux was performing oral sex on Wood while she was in Wood's office; and other officers claimed she had her job only because she was sleeping with Wood. In addition, her complaints about the sexual harassment often went unanswered. Awolaju told her that she should not let the offending behavior bother her, and that in Nigeria women have to walk behind men. The harassing behavior culminated with Cordeiro's report of Ledoux and Wood driving down "lover's lane" to have sex, followed by a lengthy investigation into that report that continued well after BCC knew it to be false. The jury could have found that the substance of Cordeiro's report, along with BCC's failure to acknowledge the inaccuracy of the report despite knowing its falsity, and the continued investigation into the report "caused [Ledoux] to suffer emotional distress, interfered with her work performance, and would have interfered with a reasonable person's work performance, thus resulting in a ‘formidable barrier’ to her full participation in the workplace." Gyulakian, 475 Mass. at 296, and cases cited.
In response to a question from the jury, Awolaju answered "[y]es" when asked, "In your capacity as affirmative action officer, if a false allegation of having a sexual relationship to gain favor was made to you, would you consider that to be a form of sexual harassment or creating a hostile work environment and consequently conduct an investigation?"
Moreover, the evidence supported the jury's determination that the continuing violation doctrine applied to BCC's creation of a hostile work environment. See Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 541-542 (2001) (application of continuing violation is question of fact for jury). As explained above, the evidence supported the jury's finding that Ledoux was subjected to a hostile work environment within the relevant timeframe. The jury heard further evidence that the harassment Ledoux experienced during the limitations period "substantially relate[d] to earlier incidents of abuse." Id. at 533. Furthermore, the jury could have found that Cordeiro's report and the surrounding circumstances "substantially contribute[d] to the continuation of a hostile work environment," thereby making the prior related incidents of discriminatory conduct timely. Id. The spreading of false and pernicious rumors about Ledoux's sexual activities violated BCC's own policy and satisfied G. L. c. 151B. Under the totality of circumstances, the evidence of harassment was sufficiently severe and pervasive to constitute a hostile work environment.
The continuing violation doctrine "focuses on the plaintiff's knowledge of the hopelessness of her work environment, and allows her to litigate alleged, otherwise time-barred, acts of sexual harassment unless her delay in initiating the lawsuit, considered under an objective standard, was unreasonable." Cuddyer, 434 Mass. at 540. The evidence supports the jury's application of the doctrine where BCC did address some of Ledoux's prior complaints, so she reasonably could have believed her situation would improve, up until the aftermath of Cordeiro's October 2009 report. See id.
b. Adverse employment action. BCC argues that Ledoux did not prove that she was subjected to an adverse employment action between August 27, 2009, to January 15, 2010 (the relevant timeframe), and thus her gender discrimination claim, brought pursuant to G. L. c. 151B, § 4 (1), should not have survived the motion for judgment n.o.v. We disagree.
The relevant timeframe for the gender discrimination claim was August 27, 2009, to January 15, 2010. BCC's conduct preceding that timeframe could not be the basis for a finding of an adverse employment action. The trial judge thus instructed the jury that they had to determine whether BCC subjected Ledoux to an adverse employment action between August 27, 2009, and January 15, 2010. Similarly, the verdict slip asked, "[d]id [BCC] subject [Ledoux] to an adverse employment action between August 27, 2009 and January 15, 2010?"
The jury found that BCC subjected Ledoux to an adverse employment action during the relevant timeframe, that the adverse employment action was taken "with a discriminatory intent, motive, or state of mind on account of [Ledoux's] gender," and that "the discriminatory intent, motive, or state of mind of [BCC] [was] the determinative cause of the adverse employment action to which [Ledoux] was subjected." In her decision denying the motion for judgment n.o.v., the trial judge determined, in part, that "the jury properly could conclude that toleration of a hostile work environment, and disparate treatment in the investigation of serious complaints, constituted an adverse employment action for purposes of Chapter 151B."
General Laws c. 151B does not define or include the phrase "adverse employment action," but "we use the phrase to determine when an act of discrimination against an employee ‘in compensation or in terms, conditions or privileges of employment’ may be remedied under c. 151B." Yee v. Massachusetts State Police, 481 Mass. 290, 295 (2019). "Cases have employed the phrase ‘adverse employment action’ to refer to the effects on working terms, conditions, or privileges that are material, and thus governed by the statute, as opposed to those effects that are trivial and so not properly the subject of a discrimination claim." Id. at 296, quoting King v. Boston, 71 Mass. App. Ct. 460, 468 (2008). "The disadvantage must be objectively apparent to a reasonable person in the employee's position; ‘subjective feelings of disappointment and disillusionment’ will not suffice." Yee, 481 Mass. at 297, quoting MacCormack v. Boston Edison Co., 423 Mass. 652, 663 (1996).
Here, the ongoing sexual harassment, BCC's failure to conduct an investigation concerning Ledoux's complaints, the investigation of her nonexistent sexual relationship with Wood, and the failure to remedy the sexually hostile work environment, each constituted an adverse employment action. See Yee, 481 Mass. at 295 n.6 ("conditions of employment are often discussed in sexual harassment cases in the context of the creation of an abusive working environment"). As the trial judge stated in denying the motion for judgment n.o.v., "[t]he jury reasonably could have found that gender bias fueled the decision not to investigate the false rumors spread by Cordeiro while vigorously pursuing Cordeiro's accusations that Ledoux was receiving favorable treatment." "The discrimination prohibited by G. L. c. 151B, § 4 (1), encompasses a work environment pervaded by abuse and harassment. Section 4 (1) applies not only to hiring, firing, and compensation, but also to the ‘terms, conditions or privileges of employment.’ Clearly, within the broad sweep of that language falls conduct which creates a sexually harassing work environment." College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 162 (1987). By failing to conduct an investigation concerning Ledoux's complaint, particularly in light of the years of gender-related misconduct directed at Ledoux that was (under the judgment n.o.v. standard) ignored or condoned by BCC, and in light of the evidence that BCC knew Cordeiro's allegations to be false, the jury could have found that BCC's actions and failures constituted adverse employment actions.
We note that BCC's actions also violated its own policy. The policy stated, among other things, that "[i]t is the policy of [BCC] to protect the rights of all persons within the [c]ollege community by providing fair and impartial investigations of all complaints brought to the attention of appropriate officials."8 See Yee, 481 Mass. at 295 n.6 ; King, 71 Mass. App. Ct. at 470.
c. Lost wages. BCC argues that Ledoux was not entitled to recover lost wages because she did not allege or prove an unlawful termination or constructive discharge. The trial judge recognized that "in the published cases where an employee has claimed disability based upon the effects of a hostile work environment, the plaintiffs proved constructive discharge [in order to recover] back and front wages." Nonetheless, the trial judge denied BCC's motion for judgment n.o.v., reasoning that G. L. c. 151B "should be liberally construed to permit Ledoux to recover lost wages where the disabling condition that prevented further employment was caused or exacerbated by the sexually hostile work environment and BCC's failure to take any action to investigate or remedy it."
The present case involves an award of lost wages in the form of both front pay and back pay. "Lost ‘front pay’ is the amount of the plaintiff's future loss of income and benefits, subject to a present value discount, based on the differential between what she was earning at [her prior employment] and what she is likely to earn in the future. Lost ‘back pay’ is the additional amount she would have earned from the time of her wrongful separation from [her prior employment] to the time of trial, less any amounts she actually earned during that period pursuant to her duty to mitigate." Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 496 n.25 (2000).
There is no dispute that BCC preserved its objection on the issue of lost wages at trial. BCC filed a motion in limine to preclude damages for lost wages, which the trial judge denied. BCC renewed its objection throughout trial, and objected to the instructions on lost wages.
There is no doubt that G. L. c. 151B "must be construed liberally for the accomplishment of its purposes -- one of which was to discourage and penalize discriminatory conduct, including sexual harassment." Beaupre v. Cliff Smith & Assoc., 50 Mass. App. Ct. 480, 492 (2000). Furthermore, lost wages may be awarded in cases in which the plaintiff has alleged and proved that she was terminated in violation of G. L. c. 151B. See, e.g., Haddad v. Wal-Mart Stores, Inc. (No. 1), 455 Mass. 91, 102-106 (2009) (front pay awarded in case alleging termination of employment based on gender); Conway v. Electro Switch Corp., 402 Mass. 385, 387-389 (1988) (discussing when front pay may be awarded); Beaupre, 50 Mass. App. Ct. at 496-497 (upholding back pay and front pay awards in case alleging discharge from employment was motivated by unlawful sex discrimination); Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13, 24 (1997) (noting that jury could award front pay, but remanding for recomputation in handicap discrimination case where plaintiff had been terminated from employment). Cf. Trinh v. Gentle Communications, LLC, 71 Mass. App. Ct. 368, 374 (2008) (upholding allowance of defendants' motion for judgment n.o.v. where plaintiff "was not fired from [employer], but rather resigned. In these circumstances, she was required to show that she was constructively discharged from [employer] in order to recover lost income").
In the present case, however, even the most liberal reading of the complaint does not encompass a claim that Ledoux was terminated in violation of the statute. Rather, the complaint alleged that because of the defendant's wrongful conduct, she was placed on medical leave and lost wages as a result. , In April 2015, more than two and one-half years after filing her complaint, Ledoux moved to amend her complaint to add a claim for retaliation based on her termination from BCC. The judge who ruled on the motion to amend noted that the amendment "would unduly delay this matter" and denied the motion. No cross appeal was taken from that ruling, and accordingly the propriety of that ruling is not before us.
"So long as the alleged retaliatory acts relate to an earlier complaint, a plaintiff is not required to exhaust [her] administrative remedies before [she] may bring to court a retaliation claim," Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 611, 618 (2005), but she must nonetheless bring the claim to court.
As stated in her motion to amend her complaint, Ledoux also "pursued her rights for wrongful termination of her employment through union arbitration." The arbitrator upheld the termination, a judge of the Superior Court confirmed the arbitration award, and a panel of this court affirmed the judgment confirming the arbitration award. See note 2, supra.
The trial judge repeatedly instructed the jury that Ledoux did not have a claim for wrongful termination. The jury nonetheless awarded damages for back pay and front pay based on the trial judge's instruction that back pay and front pay may be awarded for "losses she suffered ... attributable to [BCC's] misconduct."
Near the outset of her instructions on damages, the trial judge instructed the jury as follows:
"I will remind you that there is no claim for wrongful termination before you and that you may not award damages to ... Ledoux because of her termination by [BCC], even if you feel that the termination was motivated by a discriminatory animus. The evidence concerning the termination is only offered for your consideration as it bears on [BCC's] state of mind in the fall of 2009 and through January 2010."
Ledoux contends that the front and back pay awards must be upheld because BCC's gender discrimination and sexual harassment "caused her to be disabled from performing her prior work with a resulting substantial loss of earning capacity." The fatal flaw in this argument is that while Ledoux claimed to be disabled from January 2010 until August 2010, she testified repeatedly at trial that she was able to return to work thereafter. Her physician likewise testified that Ledoux was fully recovered as of August 30, 2010, and provided a letter to BCC to that effect. Although BCC did not accept the certification, ostensibly because it failed to address the essential functions of the job, the propriety of the resulting termination was not before the jury. Thus, while the jury could have found that she was entitled to lost wages during the period of her medical leave, there is no factual basis in the record for posttermination awards of back pay or front pay based on disability. Damages, "to be compensable, must be proved by substantial evidence of the [loss] that occurred, as well as substantial evidence of a causal connection between the complainant's [loss] and the respondent's unlawful act." DeRoche v. Massachusetts Comm'n Against Discrimination, 447 Mass. 1, 7 (2006). Accordingly, we do not decide whether, or under what circumstances, a litigant who has failed to allege that her termination violated G. L. c. 151B may claim an entitlement to back or front pay on the basis that she suffered from a medical condition or disability caused by the discriminatory conduct of the employer.
Ledoux also made multiple applications to other law enforcement agencies. Moreover, her counsel did not argue that she remained disabled as a basis for an award of lost wages, and the jury were not instructed on this theory of liability or causation.
Constructive discharge is likewise inapplicable in this case because the plaintiff did not resign, and did not claim that her working conditions were so intolerable that she could not return to work. See Trinh, 71 Mass. App. Ct. at 374.
The award of front pay and the award of posttermination back pay are vacated and the case is remanded to the Superior Court for recomputation of back pay in a manner not inconsistent with this memorandum and order. See Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 392-393 (2005).
The record reflects that Ledoux received her full salary during at least part of her medical leave.
2. Jury instructions. BCC also contends that the judgment should be vacated because of the trial judge's refusal to give two requested jury instructions. Citing Trinh, 71 Mass. App. Ct. at 375, BCC argues that the trial judge erred in failing to instruct the jury that an investigation is not an adverse employment action. BCC's reliance on Trinh is unpersuasive. There, the court noted that the plaintiff had resigned from her job, and was thus required to show that she was constructively discharged by her employer in order to recover lost income. Trinh, 71 Mass. App. Ct. at 374. The court further held that the plaintiff had failed to show constructive discharge, as "participation in the [employer's] investigation of her sexual harassment complaint could be expected to be difficult, [but] would not constitute intolerable working conditions." Id. at 375.
The present case, by contrast, did not involve Ledoux's participation in an investigation into her own sexual harassment complaint. Indeed, there was no investigation into Ledoux's sexual harassment complaint. Furthermore, the present case did not involve an allegation of constructive discharge.
We further disagree with BCC's argument that without the requested instruction, "the jury was free to find that the investigation alone was adverse, even if at the end nothing happened to Ledoux as a result." Ledoux did not claim that BCC violated G. L. c. 151B solely by having her participate in an investigation and did not argue that an investigation can itself be an adverse employment action. Rather, the gravamen of Ledoux's claim was that BCC investigated false allegations regarding Ledoux's nonexistent sexual relationship with Wood, while ignoring her legitimate and longstanding claims of gender discrimination and sexual harassment. As the trial judge noted, "the thrust [of Ledoux's] argument isn't that she was under investigation but that there was disparate treatment of investigations." In this regard, BCC's unequal treatment of Ledoux materially disadvantaged her in her objective terms of employment.
We also note that " ‘[a] trial judge has wide latitude in framing the language to be used in jury instructions’ as long as the instructions adequately explain the applicable law." Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 316 (2009), quoting Jacobs v. Pine Manor College, 399 Mass. 411, 414 (1987). Here, the theoretical risk posited by BCC was negated by the trial judge's clear and correct instructions, which required the jury to find that Ledoux had proven each element of her gender discrimination and sexual harassment claims. See Cuddyer, 434 Mass. at 536 ("In construing G. L. c. 151B, we frequently do not follow the reasoning of Federal appellate decisions applying Title VII").
Lastly, BCC argues that the trial judge erred in failing to instruct the jury on Federal law prohibiting retaliation against employees making invalid and unreasonable claims. We disagree.
Under Massachusetts law, a retaliation claim requires proof, among other things, that "the plaintiff reasonably and in good faith believed that the employer was engaged in wrongful discrimination." Pardo v. General Hosp. Corp., 446 Mass. 1, 21 (2006). In the present case, in accordance with BCC's request, the trial judge instructed the jury that part of BCC's defense was that "it could not punish ... Cordeiro for making reports that would constitute sexual harassment under [BCC's] policies without risking a violation of the anti-retaliation laws with respect to ... Cordeiro." The trial judge further instructed, pursuant to BCC's request, that "[y]ou should be aware that both federal and state law prohibit retaliation against people who make good-faith complaints about harassment or discrimination.... The protection against retaliation applies even if the report turns out to be wrong or cannot be substantiated." BCC contends that it was error not to further instruct that under Federal law "there is no requirement that the charges be valid, or even an implied requirement that they be reasonable." The claim is unavailing. As stated above, the trial judge had wide latitude in framing the language to be used in jury instructions. See Kelly, 454 Mass. at 316. Here, the trial judge's instructions accurately and comprehensively recited Massachusetts law. Moreover, the trial judge gave "essentially the instruction requested by the defendant[ ] on this issue," with the exception of the portion of Federal law that was inconsistent with Massachusetts law. Beaupre, 50 Mass. App. Ct. at 489 n.15. To the extent that some of the language proposed by BCC was inconsistent with Massachusetts law, the trial judge did not err in excluding it from her charge. See id. at 489 (rejecting defendants' suggestion that judge erred in not instructing jury on "special presumption" under Federal law and holding that "[w]e are not obligated to follow the Federal courts' interpretations of related, but distinguishable, portions of Title VII").
3. Attorney's fees. Ledoux requests appellate attorney's fees. As the prevailing party in her claims of sexual harassment and gender discrimination, Ledoux "is entitled to an award of ‘reasonable’ appellate attorney's fees[ ] pursuant to G. L. c. 151, § 9." Haddad v. Wal–Mart Stores, Inc. (No. 2), 455 Mass. 1024, 1024 (2010). Within fourteen days following receipt of this decision, Ledoux shall file with this court and serve on BCC a motion for determination of the amount of her attorney's fees incurred on appeal in relation to her successful sexual harassment and gender discrimination claims, supported by an affidavit detailing such fees, in accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). BCC may, within fourteen days thereafter, file with this court and serve on Ledoux an opposition to the amount of fees claimed by Ledoux.
We do not disturb the award of attorney's fees by the trial judge.
Conclusion. The portion of the judgment awarding front and back pay is vacated, and the case is remanded for recomputation of back pay in a manner not inconsistent with this memorandum and order. The judgment is otherwise affirmed.
So ordered.
Vacated in part; affirmed in part.