Joseph C. Kelley v. Department of Conservation and Recreation.

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

21-P-1072

JOSEPH C. KELLEY

vs.

DEPARTMENT OF CONSERVATION AND RECREATION.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Joseph Kelley, brought this action against

the Massachusetts Department of Conservation and Recreation

(department) under G. L. c. 151B, asserting age discrimination

and retaliation. After trial, the jury returned a verdict for

the department. With respect to the retaliation claim, the jury

answered the relevant special verdict questions as follows:

"(1) Do you find that the Plaintiff has proven that he engaged

in protected activity in that he acted reasonably and in good

faith in reporting alleged sexual harassment? Yes." "(2) Do

you find that the Plaintiff suffered an adverse employment

action? Yes." "(3) Do you find that the Plaintiff's protected

activity in reporting alleged sexual harassment was a

determinative factor or but for cause of the adverse employment

action? No." Kelley, acting pro se as he did in the trial
court, has appealed, raising issues solely with respect to the

retaliation claim. We affirm.

Facts. We recite the facts in the light most favorable to

the department, the party for whom the jury found. See Laramie

v. Philip Morris USA Inc., 488 Mass. 399, 401 (2021).

Kelley was hired by the department as a seasonal recreation

facilities supervisor at Ashland State Park for the summer of

2013, having scored the highest during the interview process.

This was a seasonal position with no guarantee of rehiring for

the same position for the subsequent summer.

In early July 2013, Kelley overheard Jeff Culliton, his

direct supervisor, on two occasions making inappropriate

comments of a sexual nature in the presence of younger female

and male laborers and lifeguards. He brought these comments to

the attention of Jeff Cate, Culliton's indirect supervisor, a

"recreation facilities supervisor IV," who oversaw numerous

department facilities, including Ashland State Park.

The plaintiff argued in closing, and the jury were

instructed by the judge, that for purposes of § 151B, this

reporting was the protected conduct in which in which Kelley

engaged. On July 7, 2013, Cate met with Culliton at Ashland

State Park and confronted him about the inappropriate

statements. Culliton acknowledged he made the statements.

Culliton assured Cate that it would never happen again. Cate

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then initiated a follow-up meeting the next day with Culliton

and Kelley, and Culliton apologized to both Kelley and Cate for

the comments.

Kelley continued to work in the seasonal position for

another fifty-seven days until the end of the summer. Kelley

was given a performance evaluation at the end of the summer, in

late August 2013. Culliton and his immediate supervisor,

Richard Trubiano, both gave Kelley a "strong and good" job

performance evaluation. His review was conducted face to face

with Culliton, and Kelley described it as a great review without

any criticism. Culliton wrote on August 31, 2013, that Kelley's

performance met the requirements of all six factors on the

evaluation form, without exception, and that "Joe proved to be a

great help this summer" with a "very ambitious attitude and

great public relations." The evaluation form also provided a

section for the evaluated employee's response. There, Kelley

wrote that one of the rewards of the job had been working with

Culliton. Cate signed off on the evaluation form.

This evaluation was given despite the fact that, subsequent

to the reporting of Culliton's statements to Cate, while

working, Kelley had caused property damage to three pieces of

department equipment. In one instance, he drove a department

vehicle into a waterway requiring an approximately $1,600

replacement of the engine. The department elicited testimony

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from Cate that Culliton had helped Kelley retrieve the vehicle

from the water. Kelley testified that his interaction with

Culliton that day was "amazing." Kelley was not reprimanded or

disciplined by Culliton or Cate for damaging any of the

equipment.

The results of Kelley's end-of-summer performance

evaluation meant that Kelley would be eligible to apply for jobs

with the department in June 2014, though it did not mean he was

guaranteed a job.

In 2014, Kelley again applied for the seasonal recreation

facilities supervisor position at Ashland State Park, because he

had worked there the prior summer, as well as other department

jobs. Kelley testified during cross-examination that he

regarded the interview as a formality; Cate, however, did tell

Kelley before the interview began that he had to answer the

interview questions as if he were applying for the first time.

An interview panel composed of Cate, Culliton, and a third

person, Sean Lovejoy, interviewed three candidates for the job,

including Kelley. Based on the interviews, this panel gave

Kelley the lowest scores of all three candidates. His score was

approximately half the score he had gotten on the same interview

the year before. During his 2013 interview, Kelley had received

an average score of 38.5. By contrast, in 2014, Kelley received

an average score of 17.3. The comments on Kelley's score sheets

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noted that he failed to answer the questions asked during the

interview and tended to ramble. The highest scoring candidate,

with an average score of 35.3, was hired for the job.

Discussion. Before us, Kelley's primary complaint is about

a jury instruction on temporal proximity as it related to his

retaliation claim. The judge instructed the jury,

"Retaliation and temporal proximity. You are permitted to
infer retaliation from the timing and sequence of events.
The inference may be drawn if adverse action is taken
against a satisfactorily performing employee in the
immediate aftermath of the . . . employers becoming aware
of the employee's protected activity or where adverse
employment action follows close on the heels of protected
activity. In other words, closeness in time between a
protected activity and the adverse employment action
allows, but does not compel, an inference that retaliation
was a reason for the adverse employment action. However,
a substantial gap in time between a protected activity and
any alleged retaliation may defeat an inference of
retaliation."

Kelley argues first that the second sentence of this

instruction is misleading and inaccurate in the context of his

seasonal employment case. He argues that, where seasonal

employment ends and then resumes months later, retaliation that

is effectively temporally proximate, indeed that may present the

first opportunity to retaliate, may not occur "immediate[ly]"

after the protected activity or "close on [its] heels," yet the

jury may be unable to take account of that under this

instruction.

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The department argues that the claim with respect to the

second sentence of the instruction was not adequately preserved.

Kelley, who was pro se below, as he is before us, did raise this

issue during the charge conference with the judge who instructed

that while he understood the argument, he was not going to

change the instruction, which the department asserts is from

§ 5.2.8, of the Massachusetts Superior Court Civil Practice Jury

Instructions , but that Kelley could argue the point in closing

(which he did not do). 1 See Massachusetts Superior Court Civil

Practice Jury Instructions § 5.2.8 (Mass. Cont. Legal Educ. 3d

2018). The department says that this was not sufficient to

preserve the claim of error because Kelley did not "state any

clear or distinct objection." Kelley points out that at least

once during the charge conference the judge indicated that

Kelley's rights were preserved by his having made an objection,

and that, therefore, his raising the objection as he did

preserved his rights. Rather than resolving this dispute, we

will assume without deciding that this claim of error was

adequately preserved.

1 We note that jury instructions are neither immune to review nor
entitled to deference solely because they happen to appear in
model jury instructions. It is the obligation of the court to
give accurate instructions on the facts of the case before the
judge, and of the parties to proffer accurate instructions for
the judge to consider when the judge requests them.

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Kelley also argues that the last sentence of the

instruction, instructing that "a substantial gap in time between

the protected activity and any alleged retaliation may defeat an

inference of retaliation," is also inaccurate, and that not all

inferences of retaliation can be defeated by such a substantial

temporal gap between the protected conduct and the adverse

employment action. While this second complaint of Kelley is not

without some force, the department correctly asserts that it was

not raised below and it is therefore waived. 2

Turning then to the portion of the instruction that we have

assumed was properly challenged below, we conclude there is a

substantial argument that the language of the sentence at issue

is imprecise, and that, in particular, it may not adequately

describe the proper way to assess the temporal proximity of

protected conduct in an adverse employment action in the context

of seasonal or other episodic employment. We will assume

without deciding that that is the case here, that given the

facts of the case, this instruction on temporal proximity might

have misled the jury, and that its use was error.

2 In a civil case of course we do not review unpreserved claims
of error, even for a "substantial risk of a miscarriage of
justice" as we do in criminal cases. See Costa v. Brait
Builders Corp., 463 Mass. 65, 70 (2012), citing Carey v. New
England Organ Bank, 446 Mass. 270, 285 (2006); Commonwealth v.
Gaouette, 66 Mass. App. Ct. 633, 644 (2006).

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Nonetheless, we conclude that in this case, any error was

not prejudicial. This is because the actual adverse employment

action here, undertaken nine months after the end of Kelley's

2013 summer employment, was not, remotely, the next, or even an

early, opportunity for the department to retaliate against

Kelley had that been its intent. Kelley continued to work after

the protected activity for fifty-seven days and no negative

consequence of any kind seem to have befallen him during that

time.

Indeed, a number of events occurred during that period that

might have formed the basis for proper, or pretextual,

unfavorable treatment of Kelley, including the acts that damaged

government property. But no such action appears to have been

undertaken. At the end of the summer, any evaluation of Kelley

could have included the fact of this property damage (or,

indeed, some other pretextual ground) as reason for providing

him with a less-than-best evaluation. Instead, he received the

best possible evaluation. If Cate or Culliton had been keen to

retaliate against him, they might not have unconditionally

recommended him for rehiring the following year. But they did.

Kelley responds by saying that all this could have been

part of a plan to retaliate at a temporarily distant point from

the protected conduct precisely in order to avoid being caught

in an act of unlawful retaliation. Although this is, of course,

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possible, and something that could have been argued to the jury,

it would have required an unusually high level of conspiracy and

coordination on the part of Culliton and Cate. It also would

have required Culliton to have harbored ill-will against Kelley

and to have planned to harm him, while simultaneously pretending

to have the camaraderie with Kelley that Kelley himself

contemporaneously described as one of the benefits of his work

that summer.

The assumed error in the challenged jury instruction would

only have been relevant to the jury's deliberations if they had

made all the inferences Kelley suggests about a scheme by

Culliton and Cate not to take action against Kelley at a series

of earlier opportunities knowing that, eventually, after

inviting Kelley back to interview in 2014, they would lower the

boom on him. Although this is not impossible, it is

sufficiently unlikely that we do not think Kelley has met his

burden of showing that any error in the instruction was

prejudicial.

The plaintiff's remaining claim of error is that he was not

allowed to put in evidence of a prior lawsuit against the

department brought by another employee, Jeannie Kelley, who is

not related to the plaintiff in this case. Jeannie Kelley had

been employed by the department as a clerk in the "Sign Shop."

In 2006, a coworker and a supervisor in the "Sign Shop" began a

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romantic relationship, which made other employees uncomfortable

and resulted in blatant favoritism of the involved coworker by

the subject supervisor. Jeannie Kelley reported this conduct

and subsequently suffered adverse schedule changes, was forced

to take extraneous classes, and was ultimately transferred by

the department to a less desirable position. Jeannie Kelley

filed suit against the department for retaliation and prevailed.

The plaintiff argues that if evidence of the case had been

admitted, it would have "magnified [the department's] motive to

make [Joseph] Kelley disappear" and "informed the jury that [the

department] knew full well what [its] responsibilities were."

In opposing the admission of this evidence, the department

argued that it is irrelevant to this case, and that to whatever

extent it is relevant, the risk of unfair prejudice to the

department substantially outweighs the probative value of the

evidence.

We review the evidentiary decision of the trial judge to

exclude this evidence for abuse of discretion. Commonwealth v.

Paulding, 438 Mass. 1, 12 (2002). Because of the risk that a

jury would use this evidence improperly to conclude that the

department has a propensity to engage in discriminatory conduct,

see Cambridge Trust Co. v. Commercial Union Ins. Co., 32 Mass.

App. Ct. 561, 564 (1992)("Ordinarily, evidence of an earlier

wrongful act may not be introduced solely to prove a propensity

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on the part of the defendant for a particular kind of conduct"),

regardless of how we might have ruled in the original instance,

we conclude that it was not an abuse of discretion for the judge

to exclude the evidence.

For these reasons, the judgment is affirmed.

So ordered.

By the Court (Meade, Rubin &
Hand, JJ. 3),

Clerk

Entered: August 9, 2023.

3 The panelists are listed in order of seniority.

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