Opinion
No. 11–P–765.
2012-12-4
Farouk MARTINS v. UNIVERSITY OF MASSACHUSETTS MEDICAL SCHOOL & others.
By the Court (KAFKER, COHEN & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On October 30, 2009, this court partially reversed summary judgment and remanded this employment discrimination case for further proceedings. See Martins v. University of Mass. Med. Sch., 75 Mass.App.Ct. 623 (2009). After a six-day trial in December, 2010, a jury, answering special questions, found in favor of the defendants. Thereafter, the plaintiff filed posttrial motions, which were denied.
Before us is the plaintiff's appeal. Based upon our review of the record, we discern no error in the denial of the plaintiff's motion for judgment notwithstanding the verdict (JNOV) or for a new trial.
Finding no merit to his other claims of error, we affirm the judgment.
In the process of our review, we have refrained from considering materials that were not part of the evidence presented to the jury, as well as statements of fact in the plaintiff's briefs that are not supported by the record. See Marnerakis v. Phillips, Silver, Talman, Aframe & Sinrich, P.C., 445 Mass. 1027, 1028 n. 5 (2006).
Having failed to move for a directed verdict at the close of all the evidence, the plaintiff did not preserve the right to challenge the sufficiency of the defendants' evidence through a motion for JNOV. See Rhode Island Hosp. Trust Natl. Bank v. Varadian, 419 Mass. 841, 845–848 (1995). Even if we were to consider the issue, however, we would conclude that the evidence, viewed under the directed verdict standard, was more than sufficient to support the verdict. See O'Brien v. Pearson, 449 Mass. 377, 383 (2007).
The trial judge did not abuse his discretion in denying the plaintiff's motion for a new trial. “It is the right and duty of a judge presiding at the trial of a civil case to set aside the verdict of the jury when in his judgment it is so greatly against the weight of the evidence as to induce in his mind the strong belief that it was not due to a careful consideration of the evidence, but that it was the product of bias, misapprehension or prejudice.” Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 802 (1987), quoting from Scannell v. Boston Elev. Ry., 208 Mass. 513, 514 (1911). A verdict may not be set aside on this basis unless the judge determines that the jury “failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law.” Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520 (1989), cert. denied, 493 U.S. 894 (1989), quoting from Hartmann v. Boston–Herald Traveler Corp., 323 Mass. 56, 60 (1948).
Here, the jury's verdict was consistent with the evidence and the law. The defendants introduced a significant amount of evidence from which the jury could have found that the real reasons for the plaintiff's discharge were his continuing refusal to recognize Anthony Zanette's authority as his supervisor as well as his inability to get along with a number of coworkers and a key outside contractor.
We are unpersuaded that any nondiscriminatory reasons advanced by the defendants at the trial were new. Poor performance, the reason initially given for the plaintiff's termination, can encompass a wide variety of specific deficiencies, including an uncooperative attitude and a lack of interpersonal skills. Where the plaintiff was put on notice of these alleged performance problems long before his termination, he cannot claim recent fabrication by his employer. In any event, this action was brought pursuant to G.L. c. 151B, § 9 (and not G.L. c. 151B, § 6). In these civil actions, no rule of law prohibits an employer from changing or adding to the alleged nondiscriminatory reasons for the adverse employment actions given to the Massachusetts Commission Against Discrimination. See Poon v. Massachusetts Inst. of Technology, 74 Mass.App.Ct. 185, 198 (2009).
There was also evidence supporting the jury's finding that the plaintiff did not suffer any adverse employment action before his termination, including evidence from which the jury could have found that he was not demoted upon his transfer to the University of Massachusetts Medical School (UMMS).
Much of the same evidence supported the jury's implicit findings that the individual defendants did not act with actual malice or bad faith toward the plaintiff.
For example, there was evidence that while the plaintiff's title changed, his salary did not decrease, and other managers' titles also changed in a similar fashion to reflect UMMS's human resources system. Although the plaintiff was the only manager occupying a cubicle instead of an office upon transfer, he occupied a cubicle prior to transfer and there was no evidence that he complained about the lack of an office, which the evidence established were small and shared. When he did complain about the lack of space for his files, he was offered a filing cabinet, which he refused. When he complained about not being invited to meetings, he was invited to some training sessions and refused to go. He also refused offers to transfer to another position and for additional computer training.
See Ayash v. Dana–Farber Cancer Inst., 443 Mass. 367, 385–386, cert. denied sub nom. Globe Newspaper Co. v. Ayash, 546 U.S. 927 (2005); Blackstone v. Cashman, 448 Mass. 255, 260–261 (2007). In rejecting his retaliation claim, the jury's finding that he did not engage in any protected activity by filing one or more pretermination complaints was supported by the evidence.
The jury could properly have found that the defendants reconciled their policies and procedures in good faith and reasonably relied upon information showing the plaintiff was ineligible for a step increase upon transfer.
Marlene Tucker, the assistant director of the equal opportunity office, testified that the plaintiff's first complaint of status-based discrimination occurred after his termination. Furthermore, Nancy Kealey, one of the plaintiff's supervisors, testified that he never mentioned race or age in his complaints about Zanette. Julie Forgione, the acting director of benefit coordination, testified that while the plaintiff did complain about being treated differently from other managers, he was unable to provide her with any details or examples.
Moreover, to the extent the plaintiff claimed the defendants “demonized” him by using racial stereotyping against him, the record supports the trial judge's conclusion that no such improper appeal to the jury's emotions and fears was made. So far as appears, it was the plaintiff who introduced “the middle age black man propensity for violence” theme into the trial and reiterated it in his questioning, testimony and closing argument. Faced with allegations of serious statutory violations, the defendants were entitled to present evidence of the negative interactions that led to his termination. Finally, we note that during his charge, the judge specifically reminded the jurors about their oath to keep “bias, prejudice, speculation, guesswork, favoritism, anger, fear, frustration or the raw and base emotions of life” out of their decision-making. The jury presumed to have followed these instructions. See Carrel v. National Cord & Braid Corp., 447 Mass. 431, 451 (2006). Any remaining undeveloped claims of error are deemed waived for want of appropriate appellate argument. See Adams v. Adams, 459 Mass. 361, 392 (2011).
Judgment affirmed.
Order denying motion for judgment notwithstanding the verdict or for a new trial affirmed.