SEBASTIEN DJESSOUHO v. ASIMA JONES & Others.

• Court: Massachusetts Appeals Court
• Decided: December 4, 2025
• Docket: 25-P-0017
• Status: Unpublished

Opinion

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

25-P-17

SEBASTIEN DJESSOUHO

vs.

ASIMA JONES & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff brought the underlying suit under G. L.

c. 151B, § 4, claiming employment discrimination and

retaliation. While working as a storeroom clerk for the Taj

Hotel in Boston,2 the plaintiff applied for an open position for

an accounts receivable clerk, but the hotel hired another

applicant. The plaintiff claims that this decision was

1Richard Brideau, Dinesh Khandka, and IHMS (Boston) LLC, doing business as Taj Boston.

2Defendant IMHS (Boston) LLC owns the Taj Hotel. For convenience we will refer to this defendant as "the hotel." The complaint also names three hotel employees as defendants, although only the hotel is named in the judgment and has filed a brief on appeal. A fifth defendant, IHMS, LLC, was dismissed from the case without opposition. unlawfully based on his age, race, color, and national origin.

He further claims that the hotel later terminated his employment

in retaliation for his filing a charge with the Massachusetts

Commission Against Discrimination (MCAD). After a jury-waived

trial, a Superior Court judge found that the plaintiff failed to

prove his claims, and judgment entered in favor of the

defendants. The plaintiff appeals, arguing that he did not

validly waive his right to a jury trial and that the judge made

clearly erroneous factual findings. We affirm.

1. Adequacy of the record. We note at the outset that the

plaintiff failed to provide us with a complete trial transcript

and copies of the trial exhibits, without which we cannot review

his arguments on appeal. It was the plaintiff's "responsibility

to ensure that the record is adequate for appellate review," and

"his failure to do so is fatal to his appeal" (citation

omitted). Roby v. Superintendent, Mass. Correctional Inst.,

Concord, 94 Mass. App. Ct. 410, 412 (2018). Although we could

affirm on this basis alone, we will exercise our discretion to

address the plaintiff's arguments, as the hotel has submitted

the materials necessary for our review in a supplemental

appendix.

2. Jury trial waiver. Parties in a civil case may waive a

jury trial "by written stipulation filed with the court or by an

2 oral stipulation made in open court and entered in the record."

Mass. R. Civ. P. 39 (a) (1), as amended, 450 Mass. 1403 (2008).

We review a judge's finding of waiver for clear error. See

Northeast Line Constr. Corp. v. J.E. Guertin Co., 80 Mass. App.

Ct. 646, 650 (2011). Here, the plaintiff stated in open court

that he was "for a bench trial," and the parties then signed a

jury waiver form. We see no support for the plaintiff's claim

that the judge "coerced him into a bench trial." To the

contrary, the judge carefully explained to the plaintiff the

differences between a jury trial and a bench trial and then

allowed him to review the jury waiver form with the assistance

of an interpreter before he signed it. The plaintiff cites no

authority for his contention that the requirement of a colloquy,

which applies in criminal cases, is "equally applicable in civil

cases." The judge complied with the requirements of rule

39 (a) (1) and did not commit clear error in finding that the

parties waived their jury trial rights. See Northeast Line

Constr. Corp., supra at 652-653.

3. Merits. We review a judge's findings of fact in a

bench trial for clear error. See H1 Lincoln, Inc. v. South

Washington St., LLC, 489 Mass. 1, 13 (2022). A finding is only

clearly erroneous if "the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has

3 been committed." Id., quoting Demoulas v. Demoulas Super Mkts.,

Inc., 424 Mass. 501, 509 (1997).

The judge did not clearly err in finding that the plaintiff

failed to prove that the hotel unlawfully discriminated against

him by selecting the other applicant for the open position. The

decisionmaker, Dinesh Khandka, testified that the job of

accounts receivable clerk is more oriented toward customer

service and that the other applicant was superior to the

plaintiff in terms of communication skills, fluency in English,

and experience working with hotel guests. Assessing the

credibility of witnesses is within the purview of the trial

judge. See Robert & Ardis James Found. v. Meyers, 474 Mass.

181, 186 (2016). Here, the judge expressly credited Khandka's

testimony, which supports the judge's findings that the hotel

had legitimate nondiscriminatory reasons for hiring the other

applicant and that those reasons were not pretextual.

Nor did the judge clearly err by finding that the plaintiff

failed to prove retaliation. The hotel presented evidence

showing that it terminated the plaintiff's employment because of

an altercation he had with a coworker, April Geyer, and not

because he filed a charge with the MCAD. According to Geyer's

testimony, which the judge credited, after she questioned the

plaintiff about an order, he yelled and screamed at her, put his

4 finger in her face, and blocked her in a corner. Although the

plaintiff contends that Geyer was not credible because of her

inability to recall certain facts, again, it was for the judge

to assess witness credibility. See Robert & Ardis James Found.,

474 Mass. at 186. Moreover, as the judge observed, Geyer's

testimony was corroborated by an internal complaint she filed at

the time of the incident and by the hotel's investigative

reports. The judge found that there was no evidence to suggest

that the investigation was a sham or that the reason put forth

by the hotel for its termination decision was pretextual. We

discern no clear error in the judge's findings and thus no

reason to disturb the judgment.3

Judgment affirmed.

By the Court (Desmond, Shin & Walsh, JJ.4),

Clerk

Entered: December 4, 2025.

3 We deny the hotel's request for appellate attorney's fees. The hotel is entitled to the costs of the appeal in the ordinary course. See Mass. R. A. P. 26 (a), as appearing in 481 Mass. 1655 (2019).

4 The panelists are listed in order of seniority.