Whether a defendant’s appeal permits a plaintiff to retract acceptance of remittitur; whether a jury damage award for hostile work environment may be based on a pattern of conduct not alleged in an MCAD complaint.

The plaintiff, who is gay, was the only woman employed by the Somerset Highway Department from 1984 to 2000. In 2000, she filed a claim with the Mass. Commission Against Discrimination (“MCAD”) that her supervisor from 1998 to 2000 had subjected her to discrimination on the basis of gender and sexual orientation. MCAD found lack of probable cause.

The plaintiff then filed a discrimination complaint in Superior Court. At trial, her theory was that the treatment by her supervisor was the culmination of a hostile work environment existing since she was hired. She offered evidence from throughout her tenure of disparate treatment; sexual touching; touching of the underwear in her locker; pornography stored in nearly every work area, displayed on posters, and played on video in the break room; and unchecked verbal abuse by employees. The jury returned a verdict of over $1.8 million in compensatory and punitive damages.

The judge found that the plaintiff could only properly cover damages related to her MCAD allegations, and that those allegations and related facts at trial did not support the jury verdict. The judge therefore ordered a new trial subject to remittitur, limiting the plaintiff’s recovery to $500,000. The plaintiff accepted.

The defendant Town of Somerset appealed, the plaintiff cross-appealed, and the SJC granted the plaintiff’s request for direct appellate review. 

(As of this writing, only the plaintiff’s cross-appeal was available. The defendant may raise other issues.)

1. Plaintiff’s ability to challenge remittitur once accepted. In general, a plaintiff who accepts remittitur in lieu of a new trial cannot appeal any part of the trial up to that point (although she may appeal issues arising afterward, such as calculation of post-judgment interest). The plaintiff argues that Massachusetts should join other states in allowing her to cross-appeal after the defendant appeals; the theory is that she has not received the benefit of her bargain in accepting remittitur, to avoid further litigation, and therefore should not be bound by it.
2. Evidence relating to discrimination or harassment not alleged before MCAD. A plaintiff may not make claims at trial that are entirely separate and distinct from her claims before MCAD, because the MCAD claim is designed partly to put the employer on notice of the charges. See Lattimore v. Polatoid Corn., 99 F.3d 456, 464 (1st. Cir. 1996). The judge held that the evidence and claims of which the Town was put on notice by the MCAD complaint did not justify the full jury verdict, and therefore granted remittitur. The plaintiff argues that the scope of an MCAD complaint includes facts that “the MCAD investigation could reasonably be expected to uncover.” Windross v. Village Automotive Group, Inc., 71 Mass. App. Ct. 861, 864-865 (2008). She further argues that the evidence of bad conduct throughout her employment is relevant to showing the hostile work environment during the last three years, under the continuing violation doctrine of Cuddyer v. Stop & Shop Supermarket, 434 Mass. 521 (2001).

1. Plaintiff’s ability to challenge remittitur once accepted. The Court is likely to agree with the plaintiff, and a number of states, that a plaintiff loses the benefit of remittitur when a defendant appeals, and therefore should not be bound by it.
2. Evidence relating to discrimination or harassment not alleged before MCAD. Here the plaintiff’s argument is less convincing. From the trial judge’s decision, it seems that the plaintiff’s trial theory of 15 years of hostile environment was hardly hinted at in her MCAD filings, and therefore not reasonably uncoverable through MCAD investigation. Although she now seeks to recover from that strategic error with reference to the continuing violation doctrine, that doctrine relates to relevance of evidence and statute of limitations — not notice.