ROBERT C. POWERS vs. H.B. SMITH COMPANY, INC., & another. [Note 1]

BROWN, J. This case, that seemingly neither party wanted to win, causes us to navigate around numerous procedural tangles and wade through several critical missteps. As will be seen, after this curious journey, all we are left with is the uncomfortable sense that the ultimate result is not "inconsistent with substantial justice." Mass.R.Civ.P. 61, 365 Mass. 829 (1974).

After being discharged from his position as a quality control inspector with H.B. Smith Company, Inc. (Smith), the plaintiff, Robert C. Powers, filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging age discrimination. [Note 2] On February 3, 1994, the plaintiff, with the MCAD's assent, filed this action in Superior Court. In the complaint, the plaintiff, for the first time, named Mestek, Inc. (Mestek), as a defendant. Prior to trial, Mestek moved for summary judgment contending that, since it was not named in the MCAD complaint, the plaintiff's claim against it was barred. The motion judge agreed and entered judgment for Mestek.

Returning a verdict on special questions, a Superior Court jury found the plaintiff was discharged "by reason of age discrimination" and awarded him $750,000 in damages. The

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defendant then filed a motion for a new trial. The trial judge denied Smith's motion, but reduced the damage award to $350,000. Both parties appeal from the ensuing judgment. The defendant argues that: (a) it was error to allow the plaintiff's motion for relief from a default judgment; (b) the plaintiff failed to establish a prima facie case of age discrimination and the jury's verdict was against the weight of the evidence; (c) certain evidence was improperly admitted or excluded; (d) the damages were excessive; and (e) the trial judge abused his discretion in denying its post-trial motions. The plaintiff, in turn, contends that the trial judge erred in denying his request for attorney's fees. The plaintiff also argues that summary judgment was improperly entered for Mestek.

Based on the evidence presented at trial, the jury would have been warranted in finding the following facts. Smith is a manufacturer of boilers. The plaintiff began working for Smith in January, 1982, as a quality control inspector. [Note 3] The plaintiff's duties included the processing of returned parts. When defective parts were returned, the plaintiff would check to see if they were still under warranty and then arrange for the parts to be returned to the vendors. The plaintiff also inspected parts purchased from vendors to ensure that they met company specifications.

In 1986 or 1987, Smith opened a new plant approximately five miles away from its main facility and moved the assembly line for residential boilers to the new plant. Prior to that time, the assembly work had been performed at the main plant. Initially, the plaintiff assisted in monitoring the new assembly line, as Smith had not yet hired an inspector for the new facility. Marianne Fortier was later hired as quality control inspector for the new plant. The plaintiff, however, filled in for Fortier when she was on vacation, performing Fortier's duties with the exception of the "100th boiler test." [Note 4] The plaintiff had not been trained to perform that test. The plaintiff also performed several quality control functions that Fortier had not.

Sometime prior to 1990, Smith began to experience

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financial difficulty. In February, 1990, Mestek made a tender offer for approximately forty-eight percent of Smith's shares. Thereafter, a Mestek official, John Kaddaras, at the behest of Smith's board of directors, conducted an analysis of Smith's organizational structure. The board had concluded that "major restructuring" was necessary in order for Smith to stay afloat. Another Mestek official (Walter Markowski) met with Smith employees, including the plaintiff. At that time, there were three inspectors in the quality control division: the plaintiff, Fortier, and Ray Deso. Markowski recommended that the number of quality control inspectors be reduced from three to one. Markowski conveyed his opinion to Kaddaras that Fortier possessed the most "technical ability." A few days later, Kaddoras spoke with Donald F. Schmidt, the plaintiff's supervisor, who, when asked, opined that Fortier was the "most capable" of the three. At the time of the layoffs, Schmidt and Fortier were romantically involved. Kaddaras recommended that Fortier be retained, and the plaintiff and Deso were subsequently laid off.

1. Defendant's appeal.

a. Rule 60(b) motion. Before moving on to the other issues in this case, we pause briefly to dispose of Smith's claim that the judge abused his discretion in vacating the default judgment entered earlier against the plaintiff for failure to appear at a pretrial conference. See in this regard Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 433-434 (1979). Upon review of the record, we conclude that the judge, pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 829 (1974), reasonably could have found extraordinary circumstances warranting relief from the judgment. See Parrell v. Keenan, 389 Mass. 809, 814-815 (1983). See generally 11 Wright, Miller & Kane, Federal Practice and Procedure s. 2864 (2d ed. 1995).

b. Age discrimination claim. The alleged discriminatory act arises in the context of a reduction in force decision by the plaintiff's employer. In analyzing claims of discrimination brought under the Massachusetts antidiscrimination statute (G. L. c. 151B, s. 4) we look to the familiar three-stage order of proof paradigm articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 134-136 & n.5 (1976). In stage one, the plaintiff bears

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the initial burden of establishing a prima facie case of discrimination. Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 447 (1996).

In stage two, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its actions. Ibid. Finally, in stage three, the burden shifts back to the plaintiff to show that the employer's articulated reason is not the true reason, but rather a pretext. Ibid. As "Massachusetts is a pretext only jurisdiction" (Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 443 [1995]), if successful in stage three, [Note 5] "the plaintiff is entitled to recovery for illegal discrimination under G. L. c. 151B." Id. at 444-445.

Contrary to Smith's contention, our review of the record indicates that the plaintiff met his initial burden of establishing a prima facie case of age discrimination. The plaintiff showed that: (1) he is a member of a class protected by G. L. c. 151B (he was over the age of 40); (2) he was qualified for the position of quality control inspector; (3) he was terminated; and (4) a similarly or less qualified younger person was retained. [Note 6] See Tardanico, supra at 447 n.4; LeBlanc v. Great American Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993). See also Finney v. Madico, Inc., ante 46, 50 (1997). "The exact prima facie proof required can vary depending on the factual situation." Harrison v. Boston Financial Data Servs., Inc., 37 Mass. App. Ct. 133, 137 (1994). See Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 441.

It is uncontroverted that Smith articulated a legitimate nondiscriminatory reason for its conduct. According to Smith, the plaintiff was laid off as a result of corporate restructuring. Based on Mestek's recommendations, Smith decided to reduce

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the number of quality control inspectors from three to one. Smith stated that after comparing the qualifications and duties of Fortier and the plaintiff, it concluded that Fortier possessed better qualifications. See and compare Finney v. Madico, Inc., supra at 50-51.

Thus, the pivotal phase is stage three. On appeal, Smith maintains that there was no reasonable basis for the jury to conclude that its asserted reason was a pretext. We disagree. At trial, Smith emphasized the fact that the plaintiff was unable to perform the "100th boiler test." However, Richard A. Lemelin, a former employee of Smith, testified that depending on the number of boilers produced, only one or two were tested a week and that each test took approximately one or two hours. Moreover, Lemelin indicated that the test was not that difficult to perform and that no outside training was required. It was Lemelin who trained Fortier to perform the test. In addition, Schmidt, the plaintiff's supervisor, indicated that the only job that the plaintiff had not performed was the "100th boiler test," and that Fortier had not performed some of the plaintiff's duties. Moreover, given the romantic relationship between Schmidt and Fortier, a finder of fact would be entitled to discredit some or all of Schmidt's testimony. [Note 7] In these circumstances, the jury reasonably could have concluded that Smith's asserted reason was a pretext, [Note 8] and "not the real reason[] for the action." Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 443, quoting from Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 700 (1992).

c. Evidentiary rulings. At trial, the plaintiff, without objection, introduced in evidence two written evaluations of his

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work performance. Later, Smith sought to introduce a written assessment of Fortier's work. The plaintiff objected, claiming that Fortier's evaluation was irrelevant. In its offer of proof, Smith argued that, since the qualifications of both the plaintiff and Fortier were at issue, the evaluations were relevant. The judge then asked the Smith representative whether he considered that evaluation in making his decision. He indicated that he had not. The judge then excluded the evidence.

On appeal, Smith maintains that it was error for the judge to exclude the evaluation because (a) it was relevant, and (b) in its absence, the jury could not properly evaluate the defendant's decision to retain Fortier over the plaintiff. "The decision whether evidence is relevant remains within the sound discretion of the trial judge." McLaughlin v. Vinios, 39 Mass. App. Ct. 5, 8 (1995). "A trial judge will not be reversed on review except for palpable error." Ibid. Here, given that the defendant appears to have conceded that the evaluation played no role in its decision, we find no abuse of discretion. [Note 9] Moreover, even if the evaluations were relevant, we discern no prejudice to Smith's case, as evidence of the quality of Fortier's work was introduced during Schmidt's testimony. [Note 10] See Pina v. McGill Dev. Corp., 388 Mass. 159, 164 (1983) (no prejudice found where excluded evidence was merely cumulative of other evidence pointing to the same fact).

The defendant further argues that the judge erred in failing to admit in evidence two disciplinary letters concerning the plaintiff. The record indicates, however, that the judge's ruling was not final. The judge clearly indicated that he would admit at least one of the letters if Smith could demonstrate that it had relied on the letter in making its determination. [Note 11]

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Smith did not mention the matter again during the course of the trial. [Note 12] "Such an omission fatally 'dispose[s] of [an] exception to a ruling which expressly was not final and which related to the order of proof, a matter [well within] the discretion of the trial judge.' " Cooke v. Walter Kidde & Co., 8 Mass. App. Ct. 902, 904 (1979), quoting from Donahue v. Kenney, 330 Mass. 9, 12 (1953). Thus, the defendant cannot now contend that the letters were improperly excluded.

The defendant also argues that the judge erred in permitting evidence of a romantic relationship between Fortier and Schmidt. However, the defendant's argument with respect to this matter Ú- consisting of five sentences Ú- is inadequate, and provides us little assistance in evaluating the merits of the claim. The defendant fails to cite any authority in support of its contention and, taken all in all, the defendant's treat

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ment of the issue does not rise to the level of acceptable appellate argument within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). [Note 13]

d. Damages-Remittitur. Smith claims that the damage award, despite the remittitur, is excessive. [Note 14] Compare Labonte v. Hutchins & Wheeler, 424 Mass. 813, 823-826 (1997); Davis v. Walent, 16 Mass. App. Ct. 83, 96 (1983). "The field of discretion of the trial judge in these matters is very broad. Only in rare instances can it be ruled that there has been an abuse of discretion amounting to an error of law" (citations omitted). Davis v. Walent, supra at 96-97. Smith first argues that to the extent the damages award represents compensation for front pay, they are excessive. Specifically, Smith contends that, since Fortier testified that she was laid off in 1992, the plaintiff is not entitled to compensation beyond that date. However, the precise circumstances attending Fortier's termination are not clear from the record. What is clear is that the plaintiff had intended to work for Smith until age sixty-five. Therefore, even if Smith's assertion is correct, absent a showing that the plaintiff would not have been able to transfer to another position (or branch of the company), there is no basis for disturbing the judge's ruling.

Contrary to Smith's contention, there was sufficient evidence of emotional distress. The plaintiff, who at that time was a member of Alcoholics Anonymous (AA), testified that he attended more AA meetings as a result of his layoff. Although he did not seek independent counseling as a result of his termination, the plaintiff indicated that he availed himself of the counseling services provided by AA. "[I]n c. 151B cases an award of emotional distress damages can be sustained even in the absence of . . . psychiatric consultation" (citations omitted). Labonte v. Hutchins & Wheeler, 424 Mass. at 824. We conclude there is not sufficient record support to find an abuse of discretion. See Bartley v. Phillips, 317 Mass. 35, 43 44 (1944).

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e. Posttrial motions. With regard to the defendant's several posttrial motions we are obliged at the outset to point out that the defendant's failure to renew its motion for a directed verdict at the close of all the evidence is a critical misstep. See, e.g., Martin v. Hall, 369 Mass. 884-885 (1976). But see Mass.R.Civ.P. 61, 365 Mass. 829 (1974). We address each motion in turn.

As grounds for a motion for a new trial, Smith attacks, among other things, the plaintiff's prima facie case, the damages award, and the weight of the evidence. The standard that a trial judge is to apply on a motion for a new trial in a civil case is too well known to be restated. See, e.g., W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993), and cases cited therein. See also Bartley v. Phillips, 317 Mass. at 42. In light of the above discussion, we do not think the judge abused his discretion in denying Smith's motion for a new trial. In addition, the judge stated in his memorandum and order denying the motion that "there were inconsistencies in some of the evidence" rebutting the plaintiff's prima facie case.

As to the defendant's claim that the damages were excessive, as has already been mentioned above, the judge, pursuant to Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974), ordered, we think properly so, that $400,000 of the verdict be remitted. Compare Davis v. Walent, 16 Mass. App. Ct. at 96. We likewise reject Smith's collateral contention that the excessive nature of the verdict demonstrates that it was the result of juror prejudice or bias. Smith's argument consists entirely of conjecture and is not supported by the record. [Note 15]

The judge did not abuse his discretion or commit an error of law by denying Smith's Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974), motion for judgment n.o.v., for the reason, if no other, that Smith failed to renew its motion for a directed verdict at the close of all the evidence. See Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 9 (1993).

2. Plaintiff's cross appeal.

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a. Summary judgment. The plaintiff contends that the motion judge erred in allowing Mestek's motion for summary judgment. The motion judge concluded that, since the plaintiff did not name Mestek in his MCAD complaint, his claim against Mestek was barred. There was no error. "Resort to judicial process is not available to a party claiming age discrimination . . . unless that party has first lodged a complaint of unlawful discrimination with the MCAD within six months of the occurrence of the discriminatory event." Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. at 444. See Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994). At the time the plaintiff filed his complaint with the MCAD, he was aware of Mestek's involvement in his layoff. The plaintiff could have moved to amend his MCAD complaint, but failed to do so. Thus, we conclude that Mestek was entitled to summary judgment.

b. Attorney's fees. We agree with the plaintiff that he is entitled to attorney's fees. In denying the plaintiff's request, the trial judge reasoned that, since a contingency agreement existed between the plaintiff and his attorney, the plaintiff was not entitled to attorney's fees. However, we find no such limitation in the statute. General Laws c. 151B, s. 9, as inserted by St. 1974, c. 478, in pertinent part, provides that "[i]f the court finds for the petitioner it shall . . . award the petitioner reasonable attorney's fees and costs unless special circumstances would render such an award unjust" (emphasis supplied). Since the trial judge did not indicate that the award of attorney's fees, in the circumstances, would be unjust, we conclude that the plaintiff is entitled to attorney's fees. Cf. Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993). We, however, believe that based on the complexity of the case and on our evaluation of counsel's over-all performance, particularly the time reasonably spent on this case, the award should be modest in comparison to the $14,430 requested. The case is remanded to the Superior Court for the purpose of awarding attorney's fees to the plaintiff in accordance with this opinion. The judgment is otherwise affirmed.

So ordered.