50 Mass. App. Ct. 480 | Mass. App. Ct. | 2000
The defendants, Cliff Smith & Associates (CSA)
1. Peremptory challenges. The defendants assert that they were erroneously deprived of four peremptory challenges during jury empanelment.
Moreover, “the denial of the correct number of peremptory challenges [does not] constitute^ by itself ground for reversal . . . .” Andras v. Marcyoniak, 13 Mass. App. Ct. 1043, 1043 (1982). Neither CSA nor Smith has shown, as they must even if an error in this regard occurred, that “the ruling affected the jury’s verdict in some material way.” Id. at 1044. The lack of the requisite prejudice is seen in the failure of CSA and Smith to demonstrate that either defendant “was required to accept one or more jurors whom he wished to challenge . . . .” Ibid., quoting from Tamburello v. Welch, 392 S.W.2d 114, 116 (Tex. 1965).
2. Expert testimony. The defendants point out that the plaintiff’s treating psychiatrist, Dr. Compaine, was not
We are not unsympathetic to the defendants’ indignation at the plaintiff’s cavalier violation of the procedural rules with respect to her expert.
The extensive discretion of trial judges with respect to both the process of discovery and the admission of evidence, particularly expert testimony,
The defendants have cited to, and we know of, no case in which a trial judge’s discretionary admission (or exclusion) of belatedly offered and previously unidentified expert testimony has been reversed by our appellate courts, notwithstanding any violation of discovery obligations or pretrial orders. Moreover, it is clear that they knew well prior to trial that Dr. Compaine would be the plaintiff’s key witness. They had subpoenaed all his treatment notes and they had deposed him, thereby having had the opportunity to obtain the substance of his testimony.
Further subversive of their claim of unfair surprise or prejudice are the facts that the defendants (a) did not request a continuance, thereby indicating that there was nothing further to investigate regarding Dr. Compaine, that they were prepared to cross-examine him, and that their own expert was ready to counter opinions favorable to the plaintiff’s case, see Giannaros v. M.S. Walker, Inc., 16 Mass. App. Ct. 902, 902 (1983); Resendes v. Boston Edison Co., 38 Mass. App. Ct. at 350-351 (failure of defendant to seek continuance when plaintiff’s late-identified expert allowed to testify cuts against claim of abuse of discretion and prejudice); cf. Commonwealth v. Gordon, 422 Mass. 816, 836 (1996), quoting from Commonwealth v. McGann, 20 Mass. App. Ct. 59, 66 (1985) (when “surprise” evidence surfaces at trial in violation of discovery obligations, “the preferred course of action is ... a provision of additional time . . . .”); (b) did not seek a voir dire on or challenge Dr. Compaine’s qualifications to provide expert testimony (and have likewise not challenged the judge’s implicit discretionary finding that Dr. Compaine was so qualified, a finding amply supported by his resume and experience, see Commonwealth v. Boyd, 367 Mass. 169, 182 [1975], and cases cited); (c) did not state any specific objection to the content of the opinions Dr. Compaine expressed or to his testifying as both the treating physician and an expert (indeed, defense counsel conceded that a treating physician may render an expert opinion so long as he
Assuming, arguendo, that Dr. Compaine should not have been allowed to testify as an expert, the defendants have not demonstrated any consequent prejudice. Their ability to cross-examine him thoroughly was not discernibly hindered. In particular, they effectively used his treatment notes and admissions to emphasize for the jury that he had no personal knowledge of the events at CSA that the plaintiff reported to him and that he based his opinions on the information supplied by the plaintiff. They responded to every significant aspect of Compaine’s testimony through their own expert, Dr. Gutheil, who had personally interviewed both the plaintiff and Smith. Gutheil not only contradicted Compaine’s opinion that the plaintiff presented the clinical picture of someone in an abusive relationship who had lost her free will, but further opined (well beyond the testimony of Compaine, see note 12, supra) that the facts of the case were “most consistent with a broken-up office romance . . . rather than a gender-based sexual harassment scenario” (an opinion not challenged by the plaintiff). There was also no undue emphasis by plaintiff’s counsel in closing argument on Dr. Compaine’s testimony. The judge’s charge on the subject of expert testimony was additionally counteractive of any residue of prejudice.
In sum, we discern neither abuse of discretion nor improper
3. Denial of directed verdict motion. Under the standard of review applicable to the denial of the defendants’ motion for a directed verdict on the G. L. c. 15 IB claim, the defendants’ contention that the evidence did not establish actionable sexual harassment fails.
The plaintiffs testimony (see note 4, supra), if believed by the jury, would be more than sufficient to meet her burden of establishing both sets of circumstances constituting what are commonly known as “quid pro quo” and “hostile work environment” sexual harassment (see G. L. c. 151B, § l[18][a], [b]), namely that (a) Smith’s sexual advances and other sexual conduct directed at the plaintiff were unwelcome, cf. Gnerre v. Massachusetts Commn. Against Discrimination, 402 Mass. 502, 507 (1988); and (b) the advances either conditioned some aspect of employment or were sufficiently pervasive that they “ha[d] the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.”
The defendants, who did not request that the special questions submitted to the jury provide that the jury specify the theory of sexual harassment supporting any verdict, may not now be heard to argue, as they do, that it is impossible to tell on which theory the jury based their verdict. See Mass.R.Civ.P. 49(a), 365 Mass. 813 (1974); Hawco v. Massachusetts Bay Transp. Authy., 398 Mass. 1006, 1006 (1986); Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 530 (1992). There being adequate evidence to support a verdict on both theories, the judge did not err in sending the case to the jury and in not overturning the jury’s verdicts.
Also unavailing is the defendants’ suggestion that the judge erred in not instructing the jury (as they requested) that a special presumption favoring accused harassers applies to sexual harassment cases involving coworkers who once shared a consensual sexual relationship. Such a presumption finds no support in the law of this Commonwealth. We are not obligated to follow the Federal courts’ interpretations of related, but distinguishable, portions of Title VII which suggest such a presumption — see, e.g., College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 163-164 (1987); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 289 (1997); Bain v. Springfield, 424 Mass. 758, 765 n.4 (1997); Mullenix v. Forsyth Dental Infirmary for Children, 965 F. Supp. 120, 153 (D. Mass. 1996) — and none of the cases cited by the defendants involved the relevant provisions of chapter 151B.
Finally, the defendants contend that the plaintiff’s January 29,
The judge also acted within his discretion in allowing the admission of evidence of related conduct falling outside of the six-month period on a “continuing violation” theory, which he implicitly did in denying the defendants’ directed verdict motion that was in part premised on the irrelevance of the July 27, 1992, flare-up. See, e.g., Lynn Teachers Union, Local 1037 v. Massachusetts Commn. Against Discrimination, 406 Mass. 515, 520-523 (1990); In re C.F. Smith & Assocs., Inc., 235 B.R. 153, 164 (Bankr. D. Mass. 1999).
4. Smith’s individual liability. The defendants argue that no Massachusetts appellate decision has recognized personal liability of individual employees under G. L. c. 15IB; that the “trend of authority” in other states and under analogous Federal law is to construe sexual harassment statutes so as “to limit liability to an ‘employer’ ”; that in any event Smith himself could only be held personally liable in this case for “aiding and abetting” CSA under G. L. c. 151B, § 4(5), but he was never charged individually or as an aider or abettor in the MCAD charge or the Superior Court complaint; and that such liability would be legally impossible since the only sexually harassing conduct alleged was his own, i.e., “there was no one else whom he could have aided and abetted.” These arguments all fail, for several reasons.
First, G. L. c. 15 IB does not limit the categories of persons
Contrary to the defendants’ assertion, Smith was from the outset named as an individual defendant and alleged to have had personal responsibility for the plaintiff’s claimed sexual harassment and consequent injuries, in both the MCAD charge and the Superior Court complaint. He had ample notice of the specific allegations made against him personally by the plaintiff. See Brunson v. Wall, 405 Mass. 446, 451 (1989); Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996); Chatman v. Gentle Dental Center of Waltham, 973 F. Supp. 228, 235 (D. Mass. 1997) (together emphasizing the importance under c. 15 IB of sufficient notice being provided in the MCAD filing of the charges being made and of the parties deemed responsible, so as to allow both the opportunity to attempt early conciliation and a fair opportunity to litigate the issues raised).
The judge’s special question form expressly requested verdicts by the jury as to Smith’s personal liability for sexual harassment of the plaintiff (without specifying the legal bases or theory therefor) as well as the liability of CSA. The form also required the jury to determine whether punitive damages should be awarded against Smith personally as well as against CSA. The defendants did not register timely objections to either the
Even if we view the legal source for Smith’s liability to be limited to the strictures of G. L. c. 151B, § 4(5),
CSA is a viable legal person
There is no legal or logical reason why Smith cannot be
The defendants’ focus on the aiding and abetting provision of § 4(5) is, moreover, unduly narrow. When instructing the jury that they were to confine their liability deliberations to whether Smith’s alleged conduct amounted to sexual harassment as defined in c. 151B, § 1(18), and, if so, whether that conduct fell within § 4(5), the judge did not confine their consideration of Smith’s personal liability to whether his conduct constituted aiding and abetting. On the plaintiff’s evidence and the language of § 4(5), the jury could rationally have found that Smith had both “coerce[d] the doing of . . . acts forbidden under this chapter” — i.e., had coerced the plaintiff into abandoning her right to be free from sexual harassment and into submitting to
' 5. Damages. The defendants challenge the jury’s damage awards of lost front pay ($50,000) and lost back pay ($112,500)
a. Back pay. The plaintiff testified that she was earning $45,000 annually at CSA in 1992, the year of her termination. In the four years that elapsed between then and the trial, the plaintiff, at the same salary, would have earned $180,000. According to the plaintiff’s testimony, she actually earned approximately $138,000 in that time period. The difference between these amounts would allow for a back pay award of $42,000, only about a third of the jury’s actual award. The plaintiff also testified, however, that her CSA salary had
b. Front pay. Chapter 151B “authorizes an award of damages for loss of future earnings and benefits which have been proved with reasonable certainty as attributable to the employer’s misconduct subject to the employee’s duty to mitigate.” Conway v. Electro Switch Corp., 402 Mass. at 390. The plaintiff testified that, at the time of trial, she was employed at a salary of $30,000. Had she remained at CSA, she would (on her evidence) have been earning anywhere from $45,000 to $65,000 annually. The jury’s front pay award of $50,000 constituted about two times the difference between her then-current salary and her putative likely salary at CSA. The jury’s award, in light of the judge’s instructions, appears to have reflected the jury’s view that it would have taken the plaintiff about two years to earn what she would have been earning at CSA at either her present job or some other job. That view seems rational, given the fact that, in the four years after her termination, the plaintiff was still earning substantially less than she had when she left CSA. The front pay award was therefore neither speculative or excessive. Contrast Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13, 24 (1997) (front pay award based on thirty-year future wage period deemed speculative and excessive).
c. Punitive damages. The $87,500 punitive damages award against Smith individually was not excessive on this record. See Bain v. Springfield, 424 Mass. 758, 769 (1997) (punitive damages “award of $100,000, even in the absence of any compensatory harm, would [not] necessarily exceed the norms of rationality”). Contrast McMillan v. Massachusetts Soc. for the
Conclusion. For the reasons stated above, we affirm the verdicts and judgments in all respects.
So ordered.
A Massachusetts corporation engaged in the automotive after-market industry.
General Laws c. 151B, § 4(16A), inserted by St. 1986, c. 588, § 3, states that “[i]t shall be an unlawful practice . . . [f]or an employer, personally or through its agents, to sexually harass any employee.” The defendants concede that CSA met the statutory definition of an employer. See G. L. c. 151B, § 1(5). The plaintiff’s complaint, which had been first filed with the Massachusetts Commission Against Discrimination (MCAD), see G. L. c. 151B, § 9, originally contained five other counts that were either dismissed or have not been made the subject of appeal. She also named as a codefendant Wayne Yodzio, a friend of Smith and major customer of CSA. Yodzio employed the man who became the plaintiff’s boyfriend subsequent to Smith (see note 4, infra). The plaintiff settled her claims against Yodzio prior to trial, and the complaint against him was dismissed with prejudice by stipulation.
The plaintiff and Smith had entered into an intimate consensual relationship in January, 1989, after the plaintiff had worked at CSA for eight years. She testified that in the spring of 1992 she repeatedly indicated to Smith that she wanted to end their relationship, but to no avail. She then began secretly dating an employee of CSA’s major customer. Smith discovered this and, according to the plaintiff, on July 27, 1992, screamed and yelled obscenities at her, crudely interrogated her about her sex life, revoked many of her employ
General Laws c. 234, § 29, provides that “[i]n a civil case, each party shall be entitled to four peremptory challenges,” and where, as in this case, additional jurors are empaneled, “[ejach side is entitled to 1 [additional] peremptory challenge . . . .” Mass.R.Civ.P. 47(b), 365 Mass. 812 (1974). The
Although the defendants did file a motion to correct or modify the record, pursuant to Mass.R.A.P. 8(e), as amended, 378 Mass. 934 (1979), claiming that the transcript did not reflect a sidebar conference in which the judge refused to allow them additional peremptory challenges, the trial judge denied the motion. The judge’s discretionary decision in this respect “is conclusive . . . absent a showing that the . . . court has intentionally falsified the record.” Burda v. Spencer, 28 Mass. App. Ct. 685, 689 (1990), quoting from Letch v. Daniels, 401 Mass. 65, 67-68 n.3 (1987). No such showing was attempted here. Indeed, the defendants concede that there is “[n]o clear precedent for redress [from such a ruling].” Even if the record were modified as the defendants wished, our result would be unchanged because, as discussed in the following paragraph, the defendants have failed to show the requisite prejudice.
The judge allowed Dr. Compaine’s testimony after hearing argument from the defendants complaining only of the plaintiff’s failure to have identified him as an expert. They contended that they took Compaine’s deposition based upon their “assumption” that he would not be testifying as an expert, that they did not probe his opinions at the deposition, and that they were, therefore, not prepared to cross-examine him about his opinions at trial. The defendants have not included the deposition transcript in the record appendix. For her part, the plaintiff countered to the judge that the defendants had in fact been treating Compaine as an expert “all along,” including at his deposition, and had long possessed all of his notes regarding the plaintiff. The judge ruled that Compaine could testify as both “a treating physician and as an expert,” stating that “I don’t think there is any prejudice.” The defendants did not proffer a demonstration of any specific prejudice in response to the judge’s rating.
We find particularly distressing the plaintiff’s view of her obligation to supplement inaccurate interrogatory answers. Original codefendant Yodzio (see note 3, supra) served interrogatories on the plaintiff prior to his dismissal, to which the plaintiff responded that no expert witness had been identified, while recognizing her obligation to supplement. She argues (without citation to authority) that she had no obligation to CSA and Smith to supplement because they failed to serve their own interrogatories on her. This contention ignores the mandate that the rules of civil procedure are instruments for the promotion of justice (Mass.R.Civ.P. 1, as amended, 423 Mass. 1404 [1996]), not the exaltation of mere technicalities. Cf. O’Connor v. City Manager of Medford, 7 Mass. App. Ct. 615, 619 (1979); Foman v. Davis, 371 U.S. 178, 182 (1962). It also overlooks the fact that interrogatory answers constitute admissions of a party opponent (though not conclusively binding admissions,
This breadth of discretion extends to medical diagnosis and causation opinions. Canavan’s Case, 432 Mass. 304, 311-312 (2000). Unlike Canavan’s Case, this case does not involve a challenge to a medical opinion that lacks a basis in reliable scientific methodology.
An objecting party’s burden to show an abuse of discretion regarding the admission of even seriously prejudicial relevant evidence is “a heavy one” which can be sustained only by a showing that “no conscientious judge, acting intelligently, could have taken the view expressed by him.” Commonwealth v. Medeiros, 395 Mass. at 351, quoting from Commonwealth v. Bys, 370 Mass. 350, 361 (1976). On this record (see discussion, infra), the judge’s admission of the expert testimony on the ground that it was not prejudicial to the defendants has not been shown to fall into that narrow category.
The defendants’ contention at oral argument that Dr. Compaine’s deposition did not reveal any of his expert opinions cannot be verified because of their failure to make the transcript of that deposition part of the record on appeal (see note 7, supra). See Mass.R.A.P. 8(b), 378 Mass. 932 (1979); Mass. R.A.P. 18(a), 378 Mass. 940 (1979); Mass.R.A.P. 18(b), as amended, 417 Mass. 1602 (1994). Cf. Mass.R.Civ.P. 5(d)(2), as amended, 404 Mass. 1402
On appeal, the defendants for the first time argue that Dr. Compaine’s opinions had no proper foundation in the evidence, that his testimony went beyond the realm of permissible expert opinion by touching on the ultimate issue for the jury, and that it constituted an impermissible “blending” in a single witness of factual treatment, and scientific opinion testimony. Their contentions, not raised below, can find no success here. See Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 & n.25 (1991); West Broadway Task Force v. Boston Hous. Authy., 414 Mass. 394, 397 n.2 (1993); Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 11 (1998); Thibeault v. Massachusetts Elec. Co., 2 Mass. App. Ct. 24, 28 (1974); Citgo Petroleum Corp. v. Planning Bd. of Braintree, 24 Mass. App. Ct. 425, 426 n.2 (1987); Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13, 21-22 (1997). We note, in passing, that Dr. Compaine did not in fact give testimony regarding the ultimate issue for the jury, whether Smith’s conduct amounted to sexual harassment.
The judge instructed the jury that they were not bound by the opinion of any expert, that the opinion of an expert need not be given any more weight than the testimony of any lay witness, that the jury could and should carefully assess the respective experts’ credibility and reject whatever expert opinions they thought were based on insufficient qualifications or were
“[T]he question before us [in reviewing such a ruling] is . . . 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 plaintiff[].’ ” Roland v. Boston Edison Corp., 33 Mass. App. Ct. 516, 520 (1992), quoting from Dobos v. Driscoll, 404 Mass. 634, 656 (1989). The same standard applies to review of the denial of the defendants’ motion for judgment notwithstanding the verdict. See Forlano v. Hughes, 393 Mass. 502, 504 (1984).
The judge’s instructions in fact emphasized that the plaintiff and Smith had once shared a consensual sexual relationship and that, therefore, the case required “special scrutiny” by the jury. The judge went on to give essentially the instruction requested by the defendants on this issue, except that he did not adopt the “presumption” they urged. The judge twice drew the distinction between conduct motivated by an unlawful gender bias and conduct lawfully stemming from a failed romantic relationship. Cases decided by the MCAD, the agency charged with interpreting chapter 15 IB and to whose interpretations we defer (see College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. at 166; Chapin v. University of Mass. at Lowell, 977 F. Supp. 72, 78 [D. Mass. 1997]), reject the presumption urged by the defendants. “Voluntary” participation in acts that constitute sexual harassment of either variety does not necessarily bar recovery under chapter 151B. See, e.g., Durante v. Eastern Properties, Inc., 18 M.D.L.R. 1, 4 (1996); Lawless v. Northeast Battery & Alternator, Inc., 22 M.D.L.R. 138,
Those sections are § 4(1), the general prohibition against employment discrimination by an individual employer “because of . . . sex,” sexual harassment being a form of sex discrimination, G. L. c. 151B, § 1(18); § 4(4), making it unlawful for any person to discharge, expel or otherwise discriminate against any person because he “has opposed any practices forbidden under this chapter”; § 4(4A), making it unlawful for any person to “coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter,” one such right being freedom from sexual harassment, G. L. c. 214, § 1C, and G. L. c. 151B, §§ 1(18), 4; § 4(5), making it unlawful for any person “to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter”; and § 4(16A), making it unlawful for an individual employer “to sexually harass any employee.”
For the varying Federal views on individual liability in employment discrimination cases under Federal Title VII, see the discussion in Rufino v. State St. Bank & Trust Co., 908 F. Supp. 1019, 1047-1048 (D. Mass. 1995).
The most notable MCAD decisions in this respect are Hope v. San-Ran, Inc., 8 M.D.L.R. 1195, 1210-1211 (1986) (supervisor who perpetrated sexual harassment of terminated employee and manager who did not act on employee’s complaint held jointly and severally liable for their separate acts of aiding and abetting the vicariously liable corporate employer’s illegal discrimination); Harmon v. Malden Hosp., 19 M.D.L.R. 157, 157-158 (1997) (opining that individuals who actively perpetrate or assist in the acts forbidden by §§ 4[4], 4[4A], and 4[5] can be held separately liable as aiders and abettors of the vicariously liable corporate employer deemed responsible for the discrimination against the employee under standard concepts of “accessory liability”); Raffurty v. Keyland Corp., 22 M.D.L.R. 125, 127 (2000) (president and owner of the employer corporation who made such persistent verbal and physical sexual overtures to employee that she was finally compelled to quit her job held personally liable for hostile work environment sexual harassment along with the vicariously liable corporation); and Tunstall v. Acticell H’W Cosmetics, 22 M.D.L.R. 284, 287-289 (2000) (corporation’s president and
A similar conclusion has been reached by Federal decisions in the District of Massachusetts construing c. 15 IB. See Rufino v. State St. Bank & Trust Co., 908 F. Supp. at 1048; Chatman v. Gentle Dental Center of Waltham, 973 F. Supp. 228, 232 n.8 (D. Mass. 1997); Chapin v. University of Mass. at Lowell, 911 F. Supp. 72, 80 (D. Mass. 1997); Morehouse v. Berkshire Gas Co., 989 F. Supp. 54, 61 (D. Mass. 1997); Meara v. Bennett, 27 F. Supp. 2d 288, 291 (D. Mass. 1998).
In the memorandum of law supporting their motion for a directed verdict, the defendants argued that the c. 15 IB claim against Smith should be dismissed because the plaintiff had never asserted that he was an aider and abettor, although she had explicitly described all the sexually harassing conduct and claimed that it had been performed solely by Smith and had always sought recovery against him individually as well as against CSA. After the denial of that motion (which was well within the judge’s discretion with respect to the aiding and abetting issue, see Mass.R.Civ.P. 15[b], 365 Mass. 761 [1974]; Jacobs v. Yamaha Motor Corp., U.S.A., 420 Mass. 323, 332 [1995]; Republic Floors of New England, Inc. v. Weston Racquet Club, Inc., 25 Mass. App. Ct. 479, 487-488 & n.11 [1988], particularly in the absence of any plausible claim by the defendants of prejudicial surprise), the defendants did not preserve the issue by appropriate requests and objections regarding the special questions and the judge’s instructions thereon prior to the jury commencing their deliberations.
As noted (supra at 489), the special questions and the judge’s instructions did not specify or limit the particular provisions of c. 151B that the defendants could have been found to have violated. Smith’s sexual harassment of the plaintiff (assuming that the jury credited her version of the facts) arguably fell within the personal liability provisions of G. L. c. 15 IB, § 4(4) (by effecting her discharge because of her expressed opposition to his sexual harassment, a form of sex discrimination), as well as those of § 4(4A) (by threatening, coercing, and interfering with her right, protected by G. L. c. 151B and c. 214, § 1C, to be free from sexual harassment in employment). During deliberatians the jury asked for a copy of c. 151B. At first the judge indicated he would provide the entire chapter, but subsequently decided to give them only § 1(18) (defining “sexual harassment”) and § 4(5) (making it unlawful for “any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so”). He then told the jury that “[t]hose are the only portions of the statute that are pertinent to this case and that you should consider.” The defendants objected to the jury being furnished a copy of § 4(5), on the erroneous premise that the complaint and the statute did not encompass personal liability and that the evidence against Smith was in any event insufficient to constitute actionable sexual harassment. They have not pressed that point on appeal; but it would have done them no good to do so, since they failed to object to the judge’s subsequent instructions on the statute (which were more favorable to them than the plaintiff’s evidence warranted), and the judge’s actian appears within his discretion. Compare Ross v. Broitman, 338 Mass. 770, 774-775 (1959); Schofield v. Small, 348 Mass. 782, 782 (1965). Contrast Merrill v. Nary, 10 Allen 416, 418-419 (1865) (trial judge’s unilaterally providing
Although the personality of a corporation is sometimes referred to as a “corporate fiction,” see, e.g., My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 620 (1968) — with an unfortunate connotation of artificiality regarding a meaningful relationship among human beings that is no more apt than a description of the entities known as the city of Boston or the United States as fictions — our law has nonetheless long recognized the corporation as “a single and separate legal being ... ‘a separate legal entity.’ ” Gardiner v. Treasurer & Recr. Gen., 225 Mass. 355, 370 (1916), quoting from Peterson v. Chicago, Rock Island & Pac. Ry., 205 U.S. 364, 392 (1907). See Marsch v. Southern New England R.R. Corp., 230 Mass. 483, 498 (1918); Berry v. Old S. Engraving Co., 283 Mass. 441, 451 (1933); Hale v. Henkel, 201 U.S. 43, 76 (1906); 1 Pollock & Maitland, The History of English Law 486-489 (2d ed. 1899); Raymond, The Genesis of the Corporation, 19 Harv. L. Rev. 350, 362-365 (1906).
Smith must also be found to have had the requisite intent to discriminate in order to be liable for aiding and abetting, as the judge correctly, instructed, cf. Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 481 (1994); but he has not raised the point on appeal, and the record reflects more than sufficient evidence to support the verdict in that respect.
We note the anomaly that Smith proposes in urging his nonliability. If nonharassing supervisory corporate employees can be held, as they have uniformly been, individually hable under the aiding and abetting provision for failing to report or remedy, or for acquiescing in, sexual harassment by other employees, see Chapin v. University of Mass. at Lowell, 977 F. Supp. 72, 78-80 (D. Mass. 1997), and authorities cited, as well as the MCAD decisions cited in note 18, supra, it would be illogical as well as contrary to the command of G. L. c. 151B, § 9, to allow the actual perpetrating harasser to escape liability.
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 CSA 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 CSA to the time of trial, less any amounts she actually earned during that period pursuant to her duty to mitigate. See generally Conway v. Electro Switch Corp., 402 Mass. 385 (1988); Handrahan v. Red Roof Inns, Inc., 48 Mass. App. Ct. 901 (1999). The judge’s instructions as to both back and front pay were correct.
Essentially, the defendants have failed to meet their burden of showing that allowing the damage awards to stand was an abuse of discretion on the part of the judge amounting to an error of law, i.e., that the damages awarded were greatly disproportionate to the injury proven or represented a miscarriage of justice. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 824 (1997); Kolb v. Goldring, Inc., 694 F.2d 869, 871 (1st Cir. 1982), quoting from Glazer v. Glazer, 374 F.2d 390, 413 (5th Cir.), cert, denied, 389 U.S. 831 (1967) (we do not disturb a jury’s award of damages unless it “exceedfs] any rational appraisal or estimate” of what the damages should be). The defendants erroneously assert that the judge failed to give their requested instruction that the jury may not base a damage award on pure speculation; in fact, he gave that very instruction.
The defendants have made no contention that the acts complained of by the plaintiff were not committed with knowledge, or reason to know that they violated the statute, an element of liability which G. L. c. 15 IB, § 9, requires. They do equivocally argue that the judge erred in instructing the jury with respect to punitive damages. They admit, however, that the judge “did hew, in general, to the developing law,” and at trial their only objection was to the fact that the judge refused to instruct that the jury were limited to considering Smith’s present net worth in any assessment of damages against him. We think the judge’s instructions easily pass muster under the most recent decisions clarifying the standards for awarding punitive damages. See Bain v. Springfield, 424 Mass. at 767; Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 17-17a (1998); Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 119 (2000).
Compare Silverman v. Silverman, 5 Mass. App. Ct. 793, 793 (1977) (“[Mjere words, if they tend ... to wound the feelings to such a degree as to affect the health of the party [can constitute cruelty], . . . [D]eeply wounded sensibility and wretchedness of mind can hardly fail to affect the health”).
The plaintiff has requested an award of appellate attorney’s fees and costs