NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-353
KATHLEEN ROMANO
vs.
CITY OF LAWRENCE & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury awarded Kathleen Romano, the plaintiff in this
case, $500,000 in emotional distress damages and $1 million in
punitive damages on her retaliation claim under G. L. c. 151B,
§ 4, the defendants, the city of Lawrence and Lawrence public
schools,2 moved for judgment notwithstanding the verdict or, in
the alternative, for a new trial. The defendants also sought to
have the damages the jury awarded remitted. The trial judge
1 Lawrence public schools.
2At trial, the parties agreed that although there were technically two defendants, "the liability of one is completely tied to the liability of the other," and the jury were not asked to make separate determinations as to the liability of the two defendants. denied this motion and entered an amended final judgment. The
defendants have now appealed.3 We affirm the amended judgment.
Facts. The jury could have found the following facts.
Romano spent twenty-five years in the military, eventually
reaching the rank of major before retiring from military
service. In 2009, after retiring from the military, Romano
became the "Senior Army Instructor" (SAI) at Lawrence High
School's Junior Reserve Officers' Training Corps (JROTC)
program. At the time of the relevant events, four "Army
Instructors" (AIs), as well as Romano, worked in the JROTC
program at Lawrence High School.
The SAI "manages the entire program" in a particular
school. Any other AIs in the program "work for the SAI."
Schools can only employ in their JROTC programs people who have
been certified by the Army as instructors. While instructors
3 The defendants' notice of appeal states that they are appealing from the amended final judgment entered on February 10, 2023, and from "all prior interlocutory rulings and orders," and lists as examples the order on the defendants' motion to dismiss, the orders on the defendants' motion for judgment notwithstanding the verdict, or in the alternative, for a new trial or remittitur, and two orders related to the plaintiff's efforts to obtain attorney's fees and costs. The defendants, however, have advanced in their brief only arguments related to the judge's orders on their motion for judgment notwithstanding the verdict, or in the alternative, for a new trial or remittitur; therefore, any potential issues related to these other orders identified in the notice of appeal are waived. See Police Dep't of Salem v. Sullivan, 460 Mass. 637, 640-641 (2011).
2 work for the school, these programs are still subject to Army
rules and regulations, and the Army has the right to remove
instructors for unsatisfactory conduct or performance by
decertifying them. The SAI is the direct supervisor of the AIs,
and the relevant Army regulations allow the SAI to initiate a
performance improvement plan for AIs who perform poorly. If,
after such a plan is implemented, the AI's performance continues
to be unacceptable, the SAI may recommend that the Army
decertify the AI, which would lead to their removal.
Romano and one of the AIs, Paul Ronan, had a long history
of disagreements. When Romano spoke to her then boss Ted
Lombardi, an assistant principal and, later, principal at the
school, about Ronan's behavior and their disagreements, he told
her to approach the situation as if the two of them were a
married couple "having a spat."
In December 2015, Romano was involved in a car accident and
broke her back. As a result, she took medical leave until April
2016. When she returned to work, she found that, in her
absence, the number of community service missions the student
cadets were going on had decreased and the typical afterschool
JROTC programs were not being undertaken.
Upon her return, Romano's and Ronan's relationship
deteriorated further; in every meeting, Ronan yelled at Romano
in front of the other AIs.
3 At some point in the spring of 2016, after Romano returned
to work, Ronan informed her that he refused to work over the
summer -- something Romano was adamant that the JROTC staff were
required to do. In June 2016, after this incident, Romano
decided that she wanted to file a formal complaint about Ronan's
behavior and told Lombardi so. Lombardi told Romano not to move
forward with her complaint because she did not understand the
politics of Lawrence public schools and the school district
would "crush [her]."
Shortly after this conversation, Lombardi left the Lawrence
school system and was replaced by Juan Rodriguez.
None of the AIs worked during the summer of 2016. At the
beginning of the new school year in August, Ronan again angrily
confronted Romano, this time screaming at her because he did not
want to teach a class she had assigned to him.
After this, Romano spoke with Rodriguez about the conduct
of Ronan and one of the other AIs, John Helbert. Rodriguez told
Romano that he needed to speak with the headmaster, Michael
Fiato, and potentially human resources, given the nature of her
complaint. Two weeks later, on September 14, 2016, Romano,
Rodriguez, and Fiato all met. Fiato stated that he would
investigate Romano's allegations.
On September 28, Romano, Rodriguez and Fiato met again. At
this meeting, Fiato told Romano that she was not in charge of
4 the other AIs and the JROTC program; she was only a figurehead,
and all the JROTC staff members were peers. Romano asked Fiato
to look at the relevant Army regulation and call Brenda Gainey,
the chief of the Second Brigade of JROTC, as they would confirm
that she was supposed to be running the program. Fiato agreed
to do both.
On October 18, Romano met with Fiato and Anne Marie
Stronach, the chief operations officer for Lawrence public
schools. They discussed the ongoing conflicts between Romano
and the AIs and, at one point in the meeting, Romano, in
describing her work environment, described herself as "an abused
woman." Stronach took this to be a complaint about gender
discrimination, harassment or a hostile work environment and
told Romano that she would have to investigate it.
On November 16, Romano, her union representative,
Rodriguez, Fiato, and Stronach had another meeting. At that
meeting, the school administrators acknowledged that the JROTC
program had a chain of command and the SAI was responsible for
running the JROTC program. The administrators, however, told
Romano that they wanted to wait until Gainey came and visited
the school and the program before returning Romano's full scope
of authority to her.
That same day, Ronan again confronted Romano. During a
staff meeting with the cadets, a cadet Romano had relieved from
5 duty stood up to brief the group. Romano told her to sit down,
but Ronan contradicted her and told the cadet to stand up and
give her brief. At the end of the meeting, Romano told another
cadet to make sure that the cadet who had given the brief, along
with one other cadet, were both reduced to lower ranks. In
front of the assembled cadets, Ronan began screaming at Romano
about this decision, telling her that she could not reduce the
cadets' ranks. Romano retreated to her office, where she called
Fiato and asked him to keep Ronan away from her. The school
security guard walked her to her car, and once she got in her
car, she began to cry.
On November 18, Romano met with her union representative
and told him that she could not take working under these
conditions anymore. The union representative advised her to go
home and to take Family and Medical Leave Act (FMLA) leave until
the investigation into her complaint was completed. Romano left
school after that meeting, called in sick for the next two days,
and scheduled a doctor's appointment so she could get a doctor's
note and take FMLA leave. Romano's request for leave was
ultimately approved.
On one of the days that she called in sick before going on
leave, Romano nonetheless went to a local soup kitchen with some
of the cadets and one of the AIs, José Caraballo, who were
performing a mission there. One of the cadets at the soup
6 kitchen that evening reported that Romano had told him, "[I]f I
catch you standing still again, I'll punch you." The school
reported the student's allegation to the Department of Children
and Families, and Robert Kujawa, one of the AIs, reported it to
the Army by way of a "Serious Incident Report." The Department
of Children and Families "screened out" this report two days
after it was filed. Stronach learned that this report had been
screened out on December 6.
In response to both Romano's allegations about the AIs
creating a hostile work environment and the report that Romano
had threatened a cadet, Timothy Ferguson, an Army lieutenant
colonel, investigated the Lawrence High School JROTC program on
behalf of the Army. During that investigation, Ferguson spoke
with Fiato. Before that meeting, Fiato had spoken to the AIs,
and they told him that they were not sure whether the situation
with Romano was repairable after the investigation into her
allegations about their conduct. Fiato conveyed the AIs'
feelings to Ferguson and stated that he believed Romano was
unfit to continue leading the JROTC program and the program
needed a new leader to be effective. Ferguson also spoke with
the AIs, some of whom told him that they did not believe Romano,
as SAI, was their superior and that the use of their military
ranks was merely a formality. In his report on his
investigation, Ferguson concluded that Romano was not fit to
7 continue as the SAI and recommended that she undergo a fitness
for duty examination.
On May 5, 2017, Romano filed a complaint alleging
discrimination with the Massachusetts Commission Against
Discrimination (the commission). Lawrence public schools filed
a position statement with the commission in June 2017, in
response to Romano's complaint. In that position statement,
Stronach, on behalf of the school system, asserted that Romano
"wrongfully believes that Army Regulations apply to her job at
[Lawrence public schools]" and "military rank is not relevant"
to the JROTC staff's activities. Romano ultimately withdrew her
complaint before the commission to pursue this civil action.
See G. L. c. 151B, § 9.
On November 24, 2017, Romano received a letter from the
Army informing her that she had been flagged during a background
check due to the Serious Incident Report related to the soup
kitchen incident. The letter informed her that the flagged
finding needed to be reviewed by the "Centralized Adjudication
Authority," and an adverse finding from that authority could
lead to the loss of her certification.
In December 2017, Romano resigned from her position with
Lawrence public schools and obtained disability retirement
benefits.
8 Discussion. 1. Adverse employment action and causal
connection. The defendants argue that the judge should have
granted their motion for judgment notwithstanding the verdict or
a new trial because there was insufficient evidence to support
Romano's retaliation claim.
We review the denial of a motion for judgment
notwithstanding the verdict to determine 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." Dobos v. Driscoll,
404 Mass. 634, 656, cert. denied sub. nom. Kehoe v. Dobos, 493
U.S. 850 (1989), quoting Poirier v. Plymouth, 374 Mass. 206, 212
(1978).
As for the defendants' request for a new trial, we review a
trial judge's decision on such a motion for abuse of discretion.
W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct.
744, 748 (1993). A trial judge should grant a motion for a new
trial in a civil case only where "the verdict is so markedly
against the weight of the evidence as to suggest that the jurors
allowed themselves to be misled, were swept away by bias or
prejudice, or for a combination of reasons, including
misunderstanding of applicable law, failed to come to a
reasonable conclusion." Id.
9 "[T]o make out a prima facie case of retaliation" under
G. L. c. 151B, § 4 (4), (4A), Romano was required to show "that
[s]he engaged in protected conduct, that [s]he suffered some
adverse action, and that a causal connection existed between the
protected conduct and the adverse action" (quotations and
citations omitted). Psy-Ed Corp. v. Klein, 459 Mass. 697, 707
(2011).
Here, the defendants argue that Romano has not established
that she suffered an adverse employment action; or, even if she
did suffer an adverse employment action, that it was causally
connected to her protected activity: complaining about gender
discrimination by describing herself as an "abused woman."
For the purposes of G. L. c. 151B, an adverse employment
action occurs when the employee suffers a "[m]aterial
disadvantage" (citation omitted). Yee v. Massachusetts State
Police, 481 Mass. 290, 296 (2019). Such a disadvantage must be
"objectively apparent to a reasonable person in the employee's
position; subjective feelings of disappointment and
disillusionment will not suffice" (quotation and citation
omitted). Id. at 297.
The defendants characterize the reduction in Romano's
authority as nothing more than a temporary misunderstanding, or
the result of the administration's failure to ensure she was
treated with proper deference. We do not agree. The relevant
10 Army regulations make it clear that "[t]he SAI is in charge of
the JROTC unit" and that the SAI, therefore, manages the program
and supervises the other AIs. Lawrence public schools deprived
her of both of these functions. Given that Lawrence public
schools deprived her of core functions the Army regulations
assign to those in her role, the disadvantage inflicted on
Romano would have been objectively apparent to a reasonable
person in her shoes and, as the judge concluded, the jury could
have found that the restriction of Romano's authority was an
adverse employment action.
The defendants argue next that, even if the reduction in
her authority was an adverse employment action, Romano has not
shown that this action was causally related to her protected
activity because her authority was reduced before she told Fiato
and Stronach that she felt like an "abused woman."
The judge explained three ways in which the jury could have
determined that the reduction in Romano's authority was causally
related to her protected complaint of gender discrimination. We
need go no further than the first.
The jury could have found that Lawrence public schools
restricted Romano's supervisory authority on September 28, 2016,
due to its mistaken understanding of the JROTC program's
structure. However, by the time of the November 16 meeting, the
school administrators had spoken with Gainey and been informed
11 that they were wrong, that military rank did apply within the
JROTC program, and that the SAI had greater authority than the
other AIs. Despite the fact that Gainey had already disabused
them of any confusion around the structure of the JROTC program,
the school refused to restore Romano's authority to her at that
time, and instead stated that they wanted to wait until Gainey
had conducted a site visit. We agree with the judge that, based
on these facts, the jury could have found that Lawrence public
schools' refusal to reinstate Romano's authority after learning
of its mistake was causally related to her earlier protected
activity.
The jury could have found additional support for a
conclusion that the defendants acted with a retaliatory motive
from the following facts: (1) Lombardi, the principal of
humanities leadership development at Lawrence High School at the
time, told Romano not to formally complain about Ronan because
she did not "understand the politics" and Lawrence public
schools would "destroy" her; (2) after Romano's complaint, Fiato
asked the AIs if they could continue to work with her, they told
him they were not sure, and Fiato then told the Army he thought
the program needed a new SAI; and (3) after learning that Romano
had supervisory authority over the AIs and the JROTC program,
Lawrence public schools falsely stated in its position statement
12 before the commission that Romano was in the wrong for believing
that military rank applied to the JROTC program.
There was ample evidence in the record to support a
reasonable inference in favor of the plaintiff, and no error in
the judge's decision to deny the defendants' motion for judgment
notwithstanding the verdict. Likewise, there was no abuse of
discretion in the judge's decision to deny the defendants'
alternative request for a new trial.
2. Compensatory damages. The defendants also argue that
the jury's compensatory damage award was excessive, and the
trial judge should have granted them a new trial or, at least,
remitted some of the damages under Mass. R. Civ. P. 59 (a), 365
Mass. 827 (1974).
"[A]n award of damages must stand unless . . . to permit it
to stand was an abuse of discretion on the part of the court
below, amounting to an error of law" (citation omitted). Reckis
v. Johnson & Johnson, 471 Mass. 272, 299 (2015), cert. denied
sub nom. Johnson & Johnson v. Reckis, 577 U.S. 1113 (2016).
Allowing a damages award to stand constitutes an error of law
"if the damages awarded were greatly disproportionate to the
injury proven or represented a miscarriage of justice" (citation
omitted). Id.
As the judge noted, the jury could have found that after
the meeting on November 16, and throughout her leave, Romano
13 experienced emotional distress due to Lawrence public schools'
failure to reinstate her authority and its statements to the
commission in which it continued to assert that she did not have
that authority.
Further, Romano's testimony and that of her family members
reflected that she suffered a high degree of emotional distress.
Of particular note, Romano testified that she was voluntarily
committed to inpatient therapy twice, her family moved from
Andover to Boston because she could not face the reminders of
her time at Lawrence High School that she encountered living in
nearby Andover, and her husband had to take over all of her
roles in their household. Her daughter described her as a
"shell of a human."
Given this, the jury's award of compensatory damages was
neither "greatly disproportionate to the injury proven" nor
"represented a miscarriage of justice" (citation omitted).
Reckis, 471 Mass. at 299. Consequently, the judge did not abuse
his discretion or commit an error of law in allowing the award
to stand.
3. Punitive damages. Finally, the defendants contend that
an award of punitive damages was unwarranted in this case, or,
in the alternative, that the amount of punitive damages the jury
awarded Romano was excessive.
14 Punitive damages are available under G. L. c. 151B "where
the defendant's conduct is outrageous or egregious." Haddad v.
Wal-Mart Stores, Inc., 455 Mass. 91, 110 (2009), S.C., 455 Mass.
1024 (2010). "An award of punitive damages requires a
determination of the defendant's intent or state of mind,
determinations properly left to the jury, whose verdict should
be sustained if it could 'reasonably have [been] arrived at
. . . from any . . . evidence . . . presented.'" Id. at 107,
quoting Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass.
1, 16 (1998).
Factors relevant to whether the defendants' conduct was
outrageous and egregious include:
"1. whether there was a conscious or purposeful effort to demean or diminish the class of which the plaintiff is a part (or the plaintiff because he or she is a member of the class);
"2. whether the defendant was aware that the discriminatory conduct would likely cause serious harm, or recklessly disregarded the likelihood that serious harm would arise;
"3. the actual harm to the plaintiff;
"4. the defendant's conduct after learning that the initial conduct would likely cause harm;
"5. the duration of the wrongful conduct and any concealment of that conduct by the defendant."
Haddad, 455 Mass. at 111.
Here, as the judge noted, the jury could have found that
the defendants' conduct was outrageous or egregious based on
15 evidence that after learning and acknowledging that they had
been mistaken about the structure of the JROTC program, the
defendants not only failed to return Romano's authority to her,
but they continued to maintain before the commission a position
they knew was incorrect -- that Romano did not have any
supervisory authority. The jury could also have found that the
defendants never informed the AIs about the administration's
new-found understanding of the SAI's role, based on the fact
that the AIs continued to assert in their comments to Ferguson
and their trial testimony that Romano was their peer, not their
superior. This conduct clearly falls within the ambit of the
fourth and fifth factors listed above and supports a finding
that the defendants' conduct was outrageous and egregious.
Further, as described above, the jury could have found that
Romano suffered substantial actual harm in the form of emotional
distress due to the defendants' conduct. On this record, the
jury could reasonably have determined that punitive damages were
warranted.
As to the amount of punitive damages, as public entities,
the defendants do not have any Fourteenth Amendment rights which
would place a constitutional limit on the amount of punitive
damages that may be assessed against them. Charles v. Leo, 96
Mass. App. Ct. 326, 348 (2019). A punitive damages award
against a public entity, however, may still be reviewed for
16 excessiveness on a motion for a new trial or remittitur under
rule 59 (a). Id. To determine whether an award of punitive
damages is excessive, we look to the three factors articulated
by the Supreme Court in BMW of N. Am., Inc. v. Gore, 517 U.S.
559 (1996): "'the degree of reprehensibility of the defendant's
conduct'; the ratio of the punitive damage award to the 'actual
harm inflicted on the plaintiff'; and a comparison of 'the
punitive damages award and the civil or criminal penalties that
could be imposed for comparable misconduct.'" Charles, supra at
347-348, quoting Labonte v. Hutchins & Wheeler, 424 Mass. 813,
826-827 (1997). See BMW of N. Am., Inc., supra at 575, 580,
583. We review a judge's ruling on a motion for new trial or
remittitur under rule 59 (a) based on excessive punitive damages
assessed against a public entity for abuse of discretion or
other error of law. Charles, supra at 348.
Here, the ratio of punitive to actual damages, an amount we
have concluded above is not excessive, is only two to one, well
within the permissible range, especially given that the harm
Romano suffered was noneconomic. See Aleo v. SLB Toys USA,
Inc., 466 Mass. 398, 417 (2013).
As to reprehensibility, as we have already discussed, the
jury could have found that even after their confusion about the
JROTC program's structure was dispelled, the defendants failed
to reinstate Romano's authority, failed to inform the AIs of
17 their new understanding of the program's structure, and
maintained before the commission that Romano was the problem and
military rank did not apply within the JROTC program.
Finally, as the judge recognized, in the G. L. c. 151B
context, comparison of the award to potential criminal or civil
penalties neither weighs in favor of nor against remittitur.
See Charles, 96 Mass. App. Ct. at 352 (in this context, lack of
comparable criminal or civil penalties "does not provide
guidance with respect to the appropriate size of a punitive
damages award").
The judge, therefore, neither abused his discretion nor
committed any other error of law in refusing to remit any of the
18 punitive damages the jury awarded, or to grant a new trial due
to the claimed excessiveness of the punitive damages.4
Amended judgment affirmed.
By the Court (Rubin, Hand & Smyth, JJ.5),
Clerk
Entered: July 31, 2025.
4 The plaintiff's motion to file a surreply brief, on which we have not relied in deciding this matter, is denied, except to the extent it contains a request for attorney's fees, to which the plaintiff is entitled by statute. See G. L. c. 151B, § 9. This request does not comply with the procedure outlined in Fabre v. Walton, 441 Mass. 9 (2004). Nonetheless, we have discretion to allow a request for attorney's fees that is not made in the brief. See Beal Bank, SSB v. Eurich, 448 Mass. 9, 12 (2006). Given the plaintiff's statutory entitlement to the fees and the date of this request, less than a month after plaintiff's brief was filed and more than four months before argument, we allow the request. The plaintiff may submit a petition with supporting documentation within fourteen days of this decision; thereafter, the defendants will have fourteen days in which to file a response.
5 The panelists are listed in order of seniority.