EDWARD R. MacCORMACK & another [Note 1] vs. BOSTON EDISON COMPANY.

FRIED, J. The plaintiffs, Edward R. and Janet MacCormack, sought damages under G. L. c. 151B, s. 4 (1994 ed.), from his employer for discriminating against him because of his age and for retaliating against him for seeking such relief. A jury found for the defendant on the age discrimination claim and for the plaintiffs on his claim of retaliation. A Superior Court judge, treating the portion of the verdict relating to retaliation as merely advisory, ruled that the plaintiffs were not entitled to a jury trial, found for the defendant on the retaliation claim, and, in the alternative, assuming there was a right to a jury trial, granted judgment for the defendant notwithstanding the jury's verdict on the ground that the evidence of unlawful retaliation was insufficient as a matter of law. The plaintiffs appealed. We transferred their appeal to this court on our own motion. The parties are entitled to a jury trial for retaliation claims and that ruling applies retroactively. The Superior Court judge was correct, however, that the evidence of unlawful retaliation was insufficient as a matter of law.

I

Edward R. MacCormack began working for the Boston Edison Company in May, 1976. In 1986, MacCormack became Boston Edison's "Corporate Nuclear Security Specialist." This responsibility required him to report directly to John F. Kehoe, Jr., who then served as Boston Edison's corporate security officer. In October, 1990, MacCormack applied for the position of corporate security officer in anticipation of Kehoe's upcoming retirement. MacCormack was interviewed for the opening, but John Connolly, a former Federal Bureau of Investigation (FBI) supervisor agent, was chosen for the position instead. When MacCormack asked why he had not been selected, he was told that Connolly had stronger relationships with law enforcement personnel throughout New England and that Connolly had more experience and training in the area of terrorism prevention. At the time Connolly's appointment was announced in December of 1990 MacCormack was sixty years of age and Connolly was fifty years of age.

Approximately four months later, in April, 1991, MacCormack notified Boston Edison that he would be filing a claim of age discrimination as a result of this hiring decision.

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MacCormack's first charge was filed on or about May, 1991. On September 13, 1991, MacCormack and his wife filed a claim in the Superior Court alleging that Boston Edison had practiced discrimination toward him on the basis of age and demanding a jury trial. [Note 2] In February, 1993, the MacCormacks filed a motion to amend their complaint to claim that Boston Edison had retaliated against MacCormack because of his age discrimination suit. Boston Edison's motion to strike MacCormack's jury demand on the unlawful retaliation claim was denied. It was later agreed that all claims would be tried to the jury, but the judge would reserve judgment as to whether the verdict on the unlawful retaliation claim would be binding or advisory.

On January 18, 1994, the jury returned a verdict for Boston Edison on the age discrimination claims, but found for the plaintiffs on the unlawful retaliation claim, awarding the plaintiffs $50,000 in damages for emotional distress and $150,000 in punitive damages. Boston Edison moved to treat the jury verdict on the unlawful retaliation claim as advisory, and the judge agreed. The judge held that there is no right to a jury trial for retaliation claims. Concluding that no unlawful retaliation had taken place, the judge entered judgment for Boston Edison on that claim.

The plaintiffs filed a timely notice of appeal on June 23, 1994. On July 11, 1994, this court issued its opinion in Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994), which held that a plaintiff asserting a gender discrimination claim under G. L. c. 151B, s. 4, has a right to trial by jury under art. 15 of the Declaration of Rights of the Massachusetts Constitution. On July 14, the plaintiffs moved for reconsideration and relief from judgment on the basis that Dalis mandated a jury trial on their unlawful retaliation claim. Boston Edison opposed the motion and, in the alternative, moved for a judgment notwithstanding the verdict. The judge refused to apply Dalis retroactively, but amended his previous judgment to rule, in the alternative, that Boston Edison was entitled to a judgment notwithstanding the jury's verdict.

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II

MacCormack's claim of age discrimination was brought under G. L. c. 151B, s. 4. In addition to prohibiting specific forms of discrimination, this statute also forbids retaliation stemming from such discrimination claims: an entity may not "discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under section five." G. L. c. 151B, s. 4(4).

A

Right to a jury trial. In Dalis we held that art. 15 [Note 3] applies to gender discrimination claims, as these fall within the language of that article guaranteeing trial by jury in, "controversies concerning property . . . between two or more persons." Dalis v. Buyer Advertising, Inc., supra at 222-223. While the article excepts cases which, prior to its adoption, were addressed to the court's equity jurisdiction, insofar as Dalis's claim of gender discrimination sought damages it was analogous to common law causes of action under tort and contract. [Note 4] Id. at 222-224, citing Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 122-123 (1st Cir. 1992). We now take the inevitable next step and hold that the right to a jury trial extends to all damage claims under G. L. c. 151B, s. 4, including claims for unlawful retaliation. [Note 5] General Laws c. 151B,

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s. 4 (4), retaliation claims arise directly out of a claimant's original discrimination claim. It would be anomalous to grant a right to a jury trial for claims of unlawful gender, racial, or other such categorical discrimination, but to deny it in cases where it is said that bringing the charge itself led to prohibited discrimination. [Note 6]

B

Retroactive application of Dalis. Boston Edison argues that, if the Dalis case is held to apply to retaliation claims, its holding should not be applied retroactively to cover this case. The holding in Dalis itself was retroactive, in the sense that it entitled the plaintiff in that case to a jury trial. This does not end the inquiry, however, as decisions which apply retroactively to the case at hand have not always been applied retroactively to all parties in other cases similarly situated. See, e.g., Bouchard v. DeGagne, 386 Mass. 45, 48-49 (1975); McIntyre v. Associates Fin. Servs. Co. of Mass., 367 Mass. 708, 710-712 (1975).

Both parties invoke the factors enumerated in McIntyre v. Associates Fin. Servs. Co. of Mass., supra, to decide this issue. The Appeals Court also used these factors in Dean v. Springfield, 38 Mass. App. Ct. 910 (1995), to give Dalis retroactive application. Although the McIntyre test plainly requires retroactivity here, [Note 7] we believe the issue of retroactivity may be resolved more simply. The McIntyre test was based on the

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Supreme Court's discussion in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107 (1971). Subsequent to Chevron Oil, the Supreme Court has held that, when a rule of Federal law is applied retroactively in the case in which it is announced, it should apply retroactively to all parties similarly situated to eradicate "selective temporal barriers to the application of federal law" in civil cases. Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993). See also Reynoldsville Casket Co. v. Hyde, 115 S. Ct. 1745, 1748 (1995). While we have cited McIntyre with approval in a number of cases addressing retroactivity, see Tamerlane Corp. v. Warwick Ins. Co., 412 Mass. 486, 490 (1992); Payton v. Abbott Labs, 386 Mass. 540, 565 n.12 (1982); Schrottman v. Barnicle, 386 Mass. 627, 631-632 (1982); Crowell v. McCaffrey, 377 Mass. 443, 452 (1979); Bouchard v. DeGagne, supra at 49, none of these cases concluded that we should limit the reach of a prior decision which had initial retroactivity when announced. Traditionally, exceptions to the general rule of retroactivity have arisen when judicial rulings have altered rights in Massachusetts contract and property law where issues of reliance might impose hardship on unsuspecting parties. Payton v. Abbott Labs, supra at 565. When the decision involves a matter of constitutional right, as it does here, considerations of constitutional principle with rare exceptions require retroactive application. A constitutional decision is not a legislative act but a determination of rights enacted by the Constitution, so that all persons with live claims are entitled to have those claims judged according to what we conclude the Constitution demands. This was the analysis put forward by Justice Harlan in Desist v. United States, 394 U.S. 244, 258-259 (1969) (Harlan, J., dissenting), to which the Supreme Court

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returned in Harper. It is an analysis which has equal force in adjudicating claims under our State Constitution.

Different considerations are at work where the judicial process has run its course, a final judgment reached, and a defendant -- almost invariably in a criminal case -- seeks to obtain the benefit of a new rule thereafter on a motion for a new trial, see Reynoldsville Casket Co. v. Hyde, supra at 1751, and Commonwealth v. Figueroa, 413 Mass. 193, 202-203 (1992), S.C., 422 Mass. 72 (1996), or when a defendant in a constitutional tort case claims that his conduct did not violate any constitutional norms at the time he acted. Reynoldsville Casket Co. v. Hyde, supra at 1751. Harlow v. Fitzgerald, 457 U.S. 800, 818-819 (1982). Pasqualone v. Gately, 422 Mass. 398, 402 (1996). See generally Fallon & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731 (1991). But those are not this case.

III

A

The judge held that "the verdict [on retaliation] was unsupported by sufficient evidence," and therefore Boston Edison was entitled to judgment notwithstanding the verdict pursuant to Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974). [Note 8]

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When we review the entry of a judgment notwithstanding the verdict, we must view the facts contained in the record in the light most favorable to the plaintiffs. See Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 127 (1996); Stapleton v. Macchi, 401 Mass. 725, 728 (1988). We do not defer to the judge's view of the evidence but examine the case anew, following the same standard the judge is obliged to apply. Anthony H. v. John G., 415 Mass. 196, 199 (1993). Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 786 (1982). A jury's verdict must be sustained if a plaintiff has presented any evidence from which the jury could have made their findings, Young v. Atlantic Richfield Co., 400 Mass. 837, 841 (1987), cert. denied, 484 U.S. 1066 (1988); Service Publications, Inc. v. Goverman, 396 Mass. 567, 571-572 (1986), and we assume all the evidence offered by the plaintiffs in support of their case to be true and do not assess witness credibility or the weight of the evidence, but seek to determine whether there is truly "but one conclusion as to the verdict that reasonable men could have reached." Corsetti v. Stone Co., 396 Mass. 1, 21 (1985). Margeson v. Town Taxi, Inc., 266 Mass. 192, 194 (1929).

At the time MacCormack applied for the opening of corporate security officer, he reported directly to Kehoe who then held that position. MacCormack testified that the only other employees with direct reporting links to the corporate security officer were the officer's secretary and William Kilroy, who served as the division manager over the claims investigative unit. On November 30, 1990, MacCormack was

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notified that he would not receive the position he sought and that Connolly would be the new corporate security director. [Note 9]

MacCormack testified that before Kehoe's retirement, his department was in the midst of planning a reorganization, which Connolly acted on following his appointment. Under Kehoe's direction, MacCormack had helped develop plans for this reorganization. MacCormack testified that after he filed his first charge of discrimination in May, he was left "out in the cold" and was excluded from further participation in the reorganization process.

On September 13, 1991, the MacCormacks filed their complaint in the Superior Court. In a proposed job description for division manager, dated November 5, 1991, three of the six "major responsibilities" included in the proposal were duties that had traditionally been contained within MacCormack's job description.

On June 23, 1992, MacCormack's attorney deposed Connolly. The following day, MacCormack received a telephone call regarding a sexual harassment matter at the Pilgrim station. A few hours after initiating an investigation, MacCormack called Connolly's secretary at which time he was informed that Connolly had already assigned the case to an investigator named Peter Dolan. Later that day, Connolly also assigned MacCormack to the case. MacCormack found this assignment to "assist" Dolan odd because MacCormack was responsible for claims at Pilgrim, he had never been asked to assist Dolan in the past, and Dolan was not normally assigned to cases at this facility because Dolan did not have free access to the Pilgrim facility. Connolly noted that prior to this case, he could not recall any criminal investigations at Pilgrim which he had assigned to individuals other than MacCormack and Dolan could not recall a previous investigation at Pilgrim in which he had participated.

In August, 1992, MacCormack filed his second charge of discrimination and retaliation. In October, the investigators within the corporate security department received a job level upgrade from a grade 42A to a grade 43A which was identical to MacCormack's job grade, despite MacCormack's observation that the investigators' responsibilities had only

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changed "on paper," the fact that a major portion of these responsibilities had not been implemented, and Connolly's concession that MacCormack held more responsibilities than the investigators. In response, MacCormack requested that his own position be assigned a still higher grade. This was not done.

In early January, 1993, the parties to this case received a notice of a pretrial conference. On January 18, 1993, MacCormack attended a meeting at the Somerville service center investigative offices where Connolly introduced Frank Herzog, as the new division manager and announced that MacCormack and two investigators would be reporting to Herzog. MacCormack and these two investigators were also told that they would be responsible for investigating pole knockdowns and motor vehicle accidents. Under Connolly's reorganized structure, MacCormack's reporting duties changed in regard to all his responsibilities apart from a nuclear security audit: he would now report to Herzog regarding the bulk of his work. Connolly also stated that Herzog would be responsible for managing security system upgrades at non-nuclear stations and their associated capital and expense budgets, responsibilities formerly held by MacCormack. MacCormack took these announcements to be a public demotion in front of his peers.

During the presentation of the plaintiffs' case, other evidence was presented in support of MacCormack's claim of unlawful retaliation. Linda Baranowski, secretary to the corporate security director testified that in her view, under Kehoe's administration, MacCormack had been "next in line" to the director. John Puma, Boston Edison's Equal Employment Opportunity (EEO) officer testified that in 1988 he had filed a charge of age discrimination against the company following which he was summarily dismissed. The plaintiffs also presented a May, 1993, Boston Edison organizational chart which showed MacCormack reporting to Herzog who then reported to the corporate security director, in contrast to Boston Edison's 1989 organizational chart which showed MacCormack reporting directly to the then corporate security officer. It was agreed that MacCormack's job grade and pay level remained the same throughout all the recounted events.

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B

The fatal defect in MacCormack's claim is that he failed to prove that Boston Edison took any action against him at all which was substantial enough to count as the kind of material disadvantage that is a predicate for a finding of unlawful retaliation. See Lewis v. Gillette, Co., 22 F.3d 22, 24 (1st Cir. 1994) ("To succeed . . . plaintiff must establish the basic fact that he was subjected to an adverse employment action"). The judge correctly apprehended this point when he charged the jury that:

"Mr. MacCormack must have been the victim of change in working conditions which materially disadvantaged him. If you find that Mr. MacCormack has not suffered an adverse employment action since initiating his legal proceeding over the promotion decision, then he cannot recover for alleged retaliation." [Note 10]

After they had begun their deliberations, the jury had some questions regarding the standard of law to apply to the retaliation claim. The judge reaffirmed the necessity of finding MacCormack had suffered a change in working conditions that materially disadvantaged him and went on to explain that there must also be a causal relationship so that "but for the filing and pursuing of his original discrimination claim the adverse reaction would not have been taken by the defendant, Boston Edison Company." [Note 11] See Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995) (must be "determinative factor"); Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 770 (1986); Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Comm'n, 386 Mass. 414, 418 (1982), quoting Trustees of Forbes Library v. Labor Relations Comm'n, 384 Mass. 559, 563 (1981); Prader v. Leading Edge Prods., Inc., 39 Mass. App. Ct. 616,

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617 (1996) (under Federal law, retaliation shown if employee's assertion of rights was "immediate cause or motivating factor" of discharge).

It was the judge's conclusion, as it is ours, that Boston Edison was entitled to a judgment notwithstanding the verdict because MacCormack was unable to show that he had sustained an adverse employment action. In presenting a case of retaliation, a plaintiff must "produce evidence that, if believed, would be sufficient to establish facts that would entitle him to judgment." Whalen v. NYNEX Info. Resources Co., 419 Mass. 792, 796 (1995). There is no dispute that MacCormack's behavior was protected when he filed his discrimination claim under G. L. c. 151B, s. 4. Prader v. Leading Edge Prods., Inc., supra at 618, citing Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989); Glaz v. Ralston Purina Co., 24 Mass. App. Ct. 386, 389-390 (1987). It is likewise clear that Connolly knew MacCormack had filed a claim and knew retaliation was illegal. Cf. Prader v. Leading Edge Prods., Inc., supra at 619; Brunner v. Stone & Webster Eng'g Corp., 413 Mass. 698, 704 (1992). What was never established is that MacCormack, as a result, suffered an "adverse employment action" which materially disadvantaged him.

Our own careful review of the record shows no more than this: MacCormack's department was in a state of flux due to a reorganization prompted in part by Kehoe's retirement. Duties were rearranged and new reporting structures devised. Some persons were brought in from other parts of the company to share some of the work previously assigned in part to MacCormack and he in turn was assigned some tasks previously done by others. When we put aside MacCormack's complaint that he had not been promoted to Kehoe's position, which was the subject of his unsuccessful age discrimination claim, MacCormack's remaining complaints -- which are the subject of the retaliation claim -- amount to no more than subjective feelings of disappointment and disillusionment. He offered no objective evidence that he had been disadvantaged in respect to salary, grade, or other objective terms and conditions of employment. To buttress his position that the alterations in his work assignments were a demotion, MacCormack offered the testimony of a secretary in the Prudential Center office where he worked that she considered

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him to be second in command. But this too was merely a subjective impression from an employee whose administrative support duties placed her in an office between the corporate security director and MacCormack, apart from the rest of the departmental offices, making it logical that MacCormack would be the employee she would turn to when the director was unavailable.

In the absence of direct proof of retaliation, a plaintiff may introduce relevant evidence such as the demonstration of a general practice and policy of retaliation, see Lewis v. Area II Homecare for Senior Citizens, Inc., supra at 767. MacCormack attempted to establish such a pattern when he had Boston Edison's former corporate EEO officer testify that he had been dismissed after he filed an age discrimination case against Boston Edison in behalf of himself. Puma's testimony provided no evidence to support MacCormack's claim, as he himself noted that the reason for his dismissal was that his personal filing against Boston Edison created a conflict with his responsibilities as EEO officer and that he understood his dismissal to be lawful. See Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 231 (1st Cir. 1976) (examining the "requirements of the job"). Such evidence does not even suggest a pattern of retaliation.

MacCormack simply offered no substantial evidence to show that he had suffered any real harm, as opposed to his subjective feelings of disappointment and disillusionment. We agree with the judge that MacCormack has not succeeded in making out a prima facie case of retaliation.

IV

Lastly, the plaintiffs assert that the judge made two other errors serious enough to require reversal.

First, the plaintiffs complain about the exclusion from evidence of an article that appeared in the Boston Sunday Globe a few weeks before Connolly was selected to be the new corporate security director. The article explored connections between the FBI and organized crime and featured a photograph of Connolly next to a photograph of a noted organized crime member. The article mentioned friction between Connolly and other law enforcement officials. The plaintiffs argue that this article should have been admitted in evidence in the age discrimination claim to refute one of the

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reasons given for the selection of Connolly over MacCormack: that Connolly had more extensive relationships with members of the New England law enforcement community. The judge ruled that the article was inadmissible and then clearly stated that even assuming, arguendo, that the article was not inadmissible, its prejudicial value greatly outweighed whatever probative value it might have. "The determination whether relevant evidence is prejudicial and thus inadmissible is within the judge's discretion and not reversible on appeal in the absence of 'palpable error.'" Commonwealth v. Filos, 420 Mass. 348, 356 (1995), quoting Commonwealth v. Lewin (No. 2), 407 Mass. 629, 631 (1990). There was no such error here. See Commonwealth v. Stewart, 411 Mass. 345, 356 (1991); Maddocks v. Contributory Retirement Appeal Bd., 369 Mass. 488, 498 (1976).

The plaintiffs also argue that the judge should have recused himself from exercising any fact finding function in this case. In a side bar conference immediately after the conclusion of the trial, the judge asked the plaintiffs' counsel if they minded if he introduced himself to Connolly, who had been one of Boston Edison's witnesses. When the plaintiffs' counsel stated her concerns regarding the appearance of such a meeting, the judge agreed not to talk with Connolly but did go on to state that he had heard many great things about Connolly's service in the FBI and wanted to "tell Mr. Connolly that, I wish him the absolute best and that I'm a person who knows the great work he has done for our country, and I can tell you he's a great man." On the basis of this conversation, the plaintiffs contend that the judge was not sufficiently unbiased to evaluate Connolly's actions toward MacCormack.

We reject this claim. Throughout the trial, the judge repeatedly paid many compliments to everyone involved in the proceeding: the attorneys, the witnesses, and the jury. While the judge's remarks regarding Connolly were unusual and even imprudent, this conversation, in isolation, does not warrant the conclusion that the judge was unable to exercise impartial judgment in this case. See Edinburg v. Cavers, 22 Mass. App. Ct. 212, 218 (1986) (advocating "consideration of the whole record"). "Discharge of a judge from a case after hearings have begun is unusual and ought not to be done in the absence of compelling reasons." Edinburg v. Cavers, supra at 217, citing Dittemore v. Dickey, 249 Mass. 95, 99 (1924).

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See also Perez v. Boston Hous. Auth., 379 Mass. 703, 740-741 (1980). "Recusal is a matter within the judge's 'sound discretion,'" Azarian v. Ettinger, 13 Mass. App. Ct. 1077, 1077 (1982), quoting Commonwealth v. O'Connor, 7 Mass. App. Ct. 314, 320 (1979), and we cannot say that the judge abused his discretion, King v. Grace, 293 Mass. 244, 247 (1936), particularly as we ourselves have carefully considered the evidence and reached the same conclusion that the plaintiffs have offered insufficient evidence to withstand a judgment notwithstanding the verdict.

The judgment of the Superior Court is affirmed.

So ordered.