Robinson v. Marshfield

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SJC-13825

KEVIN C. ROBINSON vs. TOWN OF MARSHFIELD.

Plymouth. January 7, 2026. – May 15, 2026.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Dewar,

& Wolohojian, JJ.

Fire Fighter. Municipal Corporations, Fire department.

Employment, Retaliation. Anti-Discrimination Law,

Employment, Burden of proof, Damages. Evidence, Motive.

Damages, Under anti-discrimination law, Remittitur,

Punitive. Practice, Civil, Instructions to jury, Special

questions to jury, Damages, Judgment notwithstanding

verdict, New trial. Jury and Jurors.

Civil action commenced in the Superior Court Department on

March 13, 2020.

The case was tried before Gregg J. Pasquale, J., and a

motion for posttrial relief was heard by him.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

Jason W. Crotty (John J. Davis also present) for the

defendant.

Anne Glennon (Marisa A. Campagna also present) for the

plaintiff.

The following submitted briefs for amici curiae:

J. Lynn Milinazzo-Gaudet & Deirdre A. Hosler for

Massachusetts Commission Against Discrimination.

2

Aaron A. Spacone & Catherine M. Scott for Massachusetts

Defense Lawyers Association, Inc.

Emma Quinn-Judge & Noah Gillen for Massachusetts Employment

Lawyers Association.

KAFKER, J. The plaintiff, Kevin C. Robinson, sued his

employer, the town of Marshfield (town), alleging retaliation in

violation of G. L. c. 151B, § 4 (4). Robinson was chief of the

town's fire department (department), and he alleged that the

town retaliated against him for complaining that his niece, who

was also a firefighter in the department, was being

discriminated against because of her gender. After trial, a

jury found the town liable for retaliation and awarded Robinson

compensatory and punitive damages. The town moved for judgment

notwithstanding the verdict (judgment n.o.v.) or, in the

alternative, for a new trial or remittitur of the verdict. The

motion judge, who was also the trial judge, denied the motion.

The town appealed, and we transferred the case sua sponte.

On appeal, the town claims that the judge erred in denying

its motion for judgment n.o.v. because the evidence was

insufficient to find that the town retaliated against Robinson.

The town also asserts that a new trial is required because the

judge improperly instructed the jury by blending pretext and

mixed-motive instructions.1

1 Robinson has cross-appealed, arguing that, with respect to

his retaliation claim, summary judgment should not have been

3

We conclude that there was sufficient evidence for the jury

to find that the town retaliated against Robinson because he

complained of gender discrimination. We also conclude that the

judge's jury instructions, as he recognized in his judgment

n.o.v. decision, included some blending of pretext and mixed-

motive language, even though this case should have been governed

by the pretext framework alone. Nonetheless, like the judge, we

ultimately conclude these errors were not prejudicial because

the instructions as a whole were adequate and the jury's answers

to the special verdict questions -- and particularly the jury's

award of punitive damages, which required a finding that the

town's conduct was extreme and outrageous -- leave no doubt

about their ultimate findings. We therefore affirm.2

1. Background. a. Facts. Because the town argues that

the trial evidence was insufficient to support the jury's

verdict, we summarize the facts in the light most favorable to

granted in favor of the town on the issue of constructive

discharge. However, deciding the case as we do, we do not reach

this cross appeal, because Robinson has waived it in the event

that this court affirms the jury's verdict and damages award in

full.

2 We acknowledge the amicus briefs submitted by the

Massachusetts Commission Against Discrimination; Massachusetts

Defense Lawyers Association, Inc.; and Massachusetts Employment

Lawyers Association.

4

the plaintiff. See Haddad v. Wal-Mart Stores, Inc. (No. 1), 455

Mass. 91, 94 (2009).

i. Robinson's employment. Robinson began working as a

firefighter for the town in 1978. In 2003, Robinson was

appointed fire chief by the town's board of selectmen (board).

The fire chief is the appointing authority for the fire

department and responsible for overseeing discipline,

promotions, and training. Robinson's employment contract

provided for, among other things, annual written performance

appraisals, written notice of performance deficiencies and an

opportunity to cure, annual salary increases, and certain pay-

outs if separated from employment other than for cause.

Robinson never faced disciplinary action prior to the events in

this case and received a positive performance appraisal in 2012.

Both Robinson's brother, Shaun, and Robinson's son, Craig,

were firefighters in the department and worked under Robinson's

supervision for several years.3 General Laws c. 268A sets forth

standards of conduct for municipal employees with respect to

conflicts of interest. Because Shaun and Craig are Robinson's

immediate family members as defined in G. L. c. 268A, § 1 (e),

3 Because Shaun and Craig share a last name with Robinson,

and because Shauna shared a last name with Robinson at the time

of the facts of this case, we refer to Shaun, Craig, and Shauna

by their first names.

5

in connection with Robinson's appointment as chief, Robinson

submitted forms disclosing his financial interest and the

appearance of conflicts of interest as required by G. L.

c. 268A, §§ 19 (b) and 23 (b) (3).

ii. Shauna's employment and training. In February 2013,

the department had two vacancies. The top two candidates on the

civil service examination, both women, were Jodi Corrigan and

Robinson's niece, Shauna, who was a paramedic. Before Shauna

was hired, Robinson met with the board to discuss potential

conflicts of interest in connection with her employment.

Although nieces are not immediate family members under G. L.

c. 268A, Robinson nevertheless submitted the forms disclosing

his financial interest and the appearance of a conflict of

interest, under § 19 (b) and § 23 (b) (3), as he had done when

Shaun and Craig were hired. Robinson also recused himself from

the hiring process.

In October 2013, the board approved Shauna's selection and

Robinson's disclosure forms but set several conditions with

respect to Robinson's involvement in Shauna, Craig, or Shaun's

work. Specifically, as to these family members, Robinson was

required to recuse himself from decisions relating to

appointments or promotions; prohibited from making any

discretionary assignments resulting in additional wages or

overtime; and required to refer any disciplinary matters to the

6

town administrator, Rocco Longo, who would be responsible for

investigating the matter and making a recommendation to

Robinson.

Each new firefighter was required to serve a one-year

probationary period before becoming a permanent firefighter.

During that time, the new firefighter was required to complete

emergency medical service (EMS) and firefighter training,

followed by a nine-week program at the Massachusetts

Firefighting Academy (fire academy). Pursuant to the

department's EMS training program, if an employee lacked

sufficient experience or competency, the employee would continue

the training process and complete any additional remedial

training for up to one year. The fire chief was authorized to

approve additional training and to send firefighters to certain

hospitals for skills training as necessary.

Both Corrigan and Shauna began their probationary year in

November 2013. Captain Louis Cipullo oversaw Shauna's

firefighter training, and Eric Morgan oversaw her EMS training.

Deputy Chief William Hocking was ultimately responsible for

Shauna's training because Robinson had recused himself. Any

issues with Shauna's training would be reported to Hocking, who

would report those issues to Robinson. Corrigan successfully

completed both her firefighter and EMS training without

incident.

7

iii. Robinson's involvement in Shauna's training. By

early January 2014, multiple supervisors had expressed concerns

that Shauna was struggling with her training, and Hocking

conveyed this to Robinson.4 As a result, Robinson and Hocking

met with Shauna on January 9, 2014, and sought to create a plan

to address her deficiencies.

On January 10, 2014, Shaun met with Robinson and Hocking to

discuss his belief that Shauna was being treated or evaluated

unfairly.5 Robinson, as fire chief, and therefore a supervisor

and member of the town's management, was required to report all

incidents of harassment to the town administrator, pursuant to

the town's antiharassment policy, which contains a broad

definition of harassment. After meeting with Shaun and Hocking,

4 For example, Cipullo was concerned that Shauna was too

short for the job and that she was not able to reach the trucks'

side ladders, physically throw ground ladders, or raise a

twenty-four foot ladder. Morgan expressed concerns about

Shauna's decision-making during emergency calls and indicated on

most of her evaluation forms that Shauna needed retraining and

her performance fell below expectations. The firefighters union

president, Matthew Cohen, observed that Shauna was unable to

complete "the stair chair of a patient down a few steps" or

interpret "a 12-lead [electrocardiogram]"; she failed to report

a gastrointestinal bleed to hospital staff; and she did not know

that all patients who accidentally received epinephrine

injections had to be transported to the hospital. On January 1,

2014, two months into her one-year probationary period, Cipullo

told Shauna that she was running out of time to improve her

skills.

5 Both Robinson and Hocking testified that gender

discrimination did not specifically come up at this meeting.

8

Robinson contacted town administrator Longo and the town's labor

counsel, John Clifford, to discuss Shauna's training issues and

the proper steps to address the situation. Longo then sent an

e-mail message to Robinson indicating that an ethics complaint

had been brought to his attention and that they needed to

address it immediately.

On January 20, 2014, Longo and Clifford met with Robinson

to discuss a possible conflict of interest in violation of G. L.

c. 268A, based on Robinson's January 10, 2014, meeting with

Hocking and Shaun regarding Shauna's training and evaluation

issues. Later that day, Clifford sent an e-mail message to

Robinson and Longo memorializing the agreement reached at the

meeting. Clifford recommended that Longo file a complaint with

the State Ethics Commission to determine whether an ethics

violation occurred. Further, Clifford recommended that Robinson

recuse himself from any further involvement in decisions

concerning Shauna's training and evaluation, and that Longo

contact an outside fire chief to advise him on Shauna's

progress, using Hocking's assistance as necessary to implement

that advice. Clifford explained that if Longo and the outside

fire chief determined that Shauna still failed to meet

performance standards during her probationary period, they

should forward that determination to Robinson, who, as the

appointing authority for the department, was "the only person

9

with the legal ability to terminate" an employee, pursuant to

his contract and the town charter. Robinson replied on January

22 and agreed to follow Clifford's recommendations and to

cooperate in any ethics investigation. Longo then filed a

complaint with the State Ethics Commission about Robinson's

involvement in Shauna's training.

On January 20, Cipullo, who was overseeing Shauna's

firefighter training, had sent an e-mail message to Robinson

asking whether Shauna was ready to be assigned to "shift

strength."6 Because Robinson had recused himself from further

involvement in Shauna's training, Robinson responded that

Cipullo should assign her to shift strength if he believed she

was ready. Cipullo then assigned Shauna to shift strength that

day, and no one complained about that assignment. Robinson did

not have any further involvement in Shauna's training from

January 2014 until March 2014.

To assess Shauna's training progress, the town brought in

two outside fire chiefs and Glenn Coffin, the president of

Emergency Medical Teaching Services, Inc., an independent

paramedic and EMS training organization. Coffin conducted

written and practical examinations with Shauna and noted gaps in

her protocol and knowledge. The two outside fire chiefs never

6 The record indicates that a firefighter assigned to "shift

strength" was ready to assume full duties.

10

met with Shauna or observed her performance but determined,

based on her evaluation forms and Coffin's assessment, that

Shauna was not qualified to be a firefighter or paramedic. Both

fire chiefs recommended that Shauna receive additional training

and be transferred to a different training group; neither fire

chief recommended firing her. However, because Longo was

concerned about moving Shauna to a training group with her

father or cousin, Shauna was never transferred to a different

training group. Shauna also never received any additional

training to address her performance deficiencies.

In March 2014, Robinson reviewed Shauna's evaluation forms

and Coffin's report. Most of Shauna's evaluations indicated

that she needed retraining or improvement in various EMS skills.

On March 31, 2014, Robinson met with Longo and Clifford to

discuss the status of Shauna's training. Robinson planned to

follow the recommendations of the outside fire chiefs and

Coffin's report to provide Shauna with remedial training and to

transfer her to a different training group. However, Longo

wrote a memorandum to Robinson and copied the board, concluding

that Shauna lacked the requisite paramedic skills to continue

her probationary period. Longo stated that he recommended to

Robinson that Shauna withdraw as a probationary candidate or

that Robinson terminate her, and that Robinson refused to follow

that recommendation. Longo concluded the memorandum by stating,

11

"As my recommendations will not be followed, I will have no

further involvement in training, assessment or disciplining

Firefighter Shauna Robinson. Please advise Deputy Chief Hocking

to discontinue providing me with any information regarding her

training or performance, as you [Robinson] will be overseeing

that process moving forward."

On April 2, 2014, Robinson made a plan for Shauna's

training. Among other assignments, Robinson determined that

Shauna would work shift strength that day, particularly because

she had worked shift strength without incident in January 2014.

Robinson also reached out to Captain Anthony Boccuzzo, the only

captain who was a paramedic, to ask to transfer Shauna to a

different training group.7 Shauna ultimately suffered a shoulder

injury that prevented her from reporting to the fire academy,

and she resigned on April 13, 2014. Shauna testified that she

felt the department was not evaluating her fairly; she had

already worked as a paramedic for several years, but Morgan, her

EMS training supervisor, nevertheless insisted she was doing

everything wrong; and working at the department was a

"miserable" and "stressful" experience. Corrigan likewise

resigned before the end of her first year and accepted

7 Boccuzzo testified that Robinson asked him not to tell

anyone about that conversation.

12

employment with a different fire department because morale at

the department was low and there was conflict among the union,

Robinson, and other employees.

iv. The board's actions toward Robinson. On April 7,

2014, Robinson had written a letter to Longo and copied the

board responding to Longo's March 31, 2014 memorandum. Robinson

complained that other firefighters with performance deficiencies

had received additional training or counselling in the past and

that Shauna's performance was fundamentally a training, and not

a disciplinary, issue.8,9 Moreover, Clifford's recommendation

8 Specifically, Robinson wrote:

"Multiple firefighters in the past who were not

[per]forming to the established standard during their

probationary period have not been treated as a discipline

issue but as a training issue and have been given

additional training and/or coaching and counseling to

resolve the issue. . . . We have many examples of

firefighters who cannot perform all of the duties assigned

and being paid while the department works to bring this

firefighter in to compliance with our standard. . . An

extended training period is not unprecedented when a new

member is having difficulty with skills required to meet

our standard in the last two years. Additionally, other

members have been required to attend additional training or

receive additional experience when their job performance is

below our standard."

9 Robinson testified about the specific instances of

differential treatment he referenced in his letter. For

example, one male firefighter failed a physical ability test and

was permitted to retake it the following year, he was hired

despite his continued struggles with medical skills, and he was

afforded an extra month of training; another male firefighter

struggled with emergency medical training and received

assistance from different training groups until he was able to

13

following the January 20, 2014 meeting was assessment and

training, but there had been no documentation of Shauna's

training after January 21, and no assessment performed until

March 25. Robinson tried to provide Shauna with the remedial

training recommended by the outside fire chiefs and Coffin's

report by placing her on shift strength.

On April 7, 2014, the firefighters union, through its

president, Cohen, filed a grievance with the board complaining

that Shauna's placement on shift strength posed a safety risk.

One week later, the board held the union grievance hearing, in

which Robinson, Clifford, Longo, and Cohen participated.

Robinson submitted a letter to the board setting out twenty-five

questions for the union, which included questions about extra

training afforded to some firefighters within the last two

years. Although the board did not allow Robinson to question

Cohen, Robinson nevertheless defended his actions and told the

board of other examples of firefighters who required additional

training. At the conclusion of the hearing, Robinson presented

perform without issue; a third male firefighter received

numerous demerits at the fire academy, but was eventually able

to pass the fire academy with Robinson's counselling; a fourth

male firefighter was unable to complete pull-ups or climb a

ladder to a second-floor window, but Robinson counselled him to

get a personal trainer; and a fifth male firefighter was

provided remedial training to improve his medical skills.

14

Shauna's resignation letter, and the board voted to deny the

union's grievance.

On April 24, 2014, the board received an anonymous letter

complaining that Robinson created an environment of harassment,

mistreatment, retaliation, and favoritism for his family. Then,

on May 26, 2014, the board received another letter from an

anonymous "[s]enior" firefighter identifying Cohen as the author

of the previous letter and asserting that most union members

were embarrassed by that letter.

On May 21, 2014, Robinson had asked to meet with the board

to discuss how Clifford and Longo had treated him, but the board

declined to meet with him and told Robinson to reach out to

Clifford and Longo directly. Thus, on June 17, 2014, Robinson,

accompanied by counsel, attended a meeting with Clifford and

Longo. Clifford began the meeting by commenting that Robinson

was nearing retirement age and asking when he intended to

retire. Robinson replied that he had no plans to retire at that

time and was still seeking to renew his contract for the next

three years. Clifford suggested that Robinson should think

about retiring before his reputation was damaged. Prior to

complaining about Shauna's unfair treatment, Robinson testified

that he had an excellent working relationship with Clifford and

Longo and that they had worked as a team to address labor issues

in the department. But by the time of this meeting, Robinson

15

felt Clifford and Longo were making his job more difficult, and

no agreement or resolution was reached.

In June 2014, pursuant to his employment contract, Robinson

sought a two percent annual salary increase and to renegotiate

his employment contract with the town. In an executive session

on June 30, 2014, the board voted not to enter into contract

negotiations with Robinson and not to approve the requested

salary increase.

v. Robinson's involvement in Shaun's discipline. Pursuant

to their contracts, members of the bargaining unit were entitled

to rotation on the overtime shift list. However, on August 22,

2014, Shaun skipped Hocking on the overtime shift list and took

the shift for himself. Longo consequently recommended that

Shaun be disciplined by suspension without pay for three twenty-

four hour shifts. Robinson ultimately suspended Shaun for one

twenty-four hour shift.

On August 28, 2014, Clifford and Longo met with Robinson to

discuss a potential violation of the conflict of interest law

based on Robinson's involvement in reducing Shaun's suspension.

Clifford expressed concern about Robinson's health and again

suggested that Robinson should retire in September before his

reputation was damaged, but Robinson refused.

vi. The Smith investigation. On November 24, 2014, the

board hired attorney Mark Smith of Laredo & Smith, LLP, assisted

16

by investigator Edward Johnson, to "perform a comprehensive

investigation into allegations of unlawful conduct and recent

events" in the department, including any potential violations of

the State ethics laws.

On January 2, 2015, Robinson wrote a detailed letter to the

board stating that Clifford and Longo were harassing him and

attempting to intimidate him to retire.

On January 15, 2015, Longo received a letter from the

Massachusetts Commission Against Discrimination (MCAD) stating

that Shauna had filed a complaint of discrimination against the

department, along with a copy of her complaint. One week later,

town counsel Robert Galvin forwarded the MCAD complaint to Smith

and noted that, based on the statements contained therein, it

appeared Robinson had assisted Shauna with her complaint.

On January 21, 2015, Smith scheduled an interview with

Robinson. Because Robinson's attorney could not attend,

Robinson tried to record the interview, but Smith would not

allow it. Robinson refused to be interviewed without recording,

so he left and was never interviewed. Smith never interviewed

Shauna because she was no longer employed by the town. Smith

also testified that he never inquired about how other

firefighters with training deficiencies were treated in the

department in the past.

17

On February 13, 2015, Longo sent Smith an e-mail message

including Robinson's employment contract and the charter

provisions that outline the process to terminate him.

On February 23, 2015, Smith sent Galvin a draft of his

report, concluding that Robinson "may have" violated G. L.

c. 268A. The next day, Galvin replied that Clifford believed

Smith's conclusions "should be framed if they can be as

[Smith's] opinions" to the extent possible.

One day later, on February 25, 2015, Smith issued his final

report, concluding definitively that Robinson violated G. L.

c. 268A and recommending that the town refer the matter to the

State Ethics Commission. Among other things, Smith concluded

that Robinson impermissibly interfered with Shauna's training

and evaluation, rejected Longo's recommendations, and reduced

Shaun's suspension.

On February 27, 2015, the board published a notice of a

meeting to "investigate charges of criminal misconduct or to

consider the filing of criminal complaints."

On March 2, 2015, the town referred the matter to the State

Ethics Commission. The same day, Longo called Robinson to the

station. When Robinson arrived to the station, Hocking and

Johnson were inside, and the police captain was sitting in his

cruiser in the parking lot. Robinson was handed a letter

notifying him that he had been placed on administrative leave

18

for sixty days pending an investigation into his alleged State

ethics law violations. The letter further stated that Robinson

was prohibited from entering any town fire station without

Galvin's permission, he had to turn over his keys to the

building and equipment, he was prohibited from engaging in any

official activities unless so directed by Galvin, and he was

required to fully cooperate with the investigation. Robinson

was then given a few minutes to collect his personal belongings

and was escorted from the premises by Hocking and Johnson.

Administrative leave was unusual in the department; only two

employees had been placed on leave in recent years, for

harassment and for driving while under the influence,

respectively.

The following day, a constable served Robinson at his house

with a notice to show cause why he should not be terminated

based on Smith's report. The notice also informed Robinson of

his right to a public hearing. There was subsequently a

plethora of negative publicity in local papers speculating why

Robinson had been placed on administrative leave and suggesting

that he was being investigated for criminal conduct.

On March 12, 2015, in response to the notice to show cause,

Robinson resigned. He testified that although he did not want

to retire and was only five years from the mandatory retirement

age, he risked losing his pension and separation benefits if he

19

was terminated. He also wanted to leave the department's

hostile environment because it was causing him extreme emotional

distress, and he felt the department was trying to force him

out. Further, he did not believe he would receive a fair

hearing because he did not believe the process would be

independent.

On April 17, 2015, the State Ethics Commission notified

Robinson by letter that it did not intend to further investigate

his actions because he had retired.

On April 23, 2015, the State Ethics Commission sent a

letter to Longo concluding that the matter did not warrant a

public resolution or formal sanctions. Longo forwarded the

letter to Smith and stated that he was disappointed in the

outcome and felt "let down by the State."

b. Procedural history. In December 2016, Robinson filed

suit in Federal court against the town, Longo, and John E. Hall,

the board's former chair, alleging age discrimination in

violation of G. L. c. 151B, § 4 (1C), and the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. § 623(a) (count one);

retaliation under G. L. c. 151B, § 4 (4), and the ADEA, 29

U.S.C. § 623(d) (count two); failure to investigate and remedy

under G. L. c. 151B and the ADEA (count three); breach of

contract (count four); defamation (count five); and intentional

interference with contractual relations (count six). A judge of

20

the United States District Court for the District of

Massachusetts allowed summary judgment for the town on all

claims. Robinson vs. Marshfield, U.S. Dist. Ct., No. 16-12560-

NMG (D. Mass. Jan. 11, 2019), aff'd in part and vacated in part,

950 F.3d 21 (1st Cir. 2020). The United States Court of Appeals

for the First Circuit affirmed the District Court's rulings on

count one in its entirety and counts two and three to the extent

they raised claims under Federal law. Robinson, 950 F.3d at 23.

However, the First Circuit held that the District Court should

not have exercised supplemental jurisdiction over the State law

claims. Id. Accordingly, the First Circuit dismissed the

remaining claims without prejudice to be refiled in State court.

Id.

On March 13, 2020, Robinson filed his remaining claims in

the Superior Court in Plymouth County, which included claims of

retaliation against the town, the then town administrator, and

Hall; breach of contract against the town; tortious interference

with contractual relations against Hall; and defamation against

Hall. The town moved for summary judgment. The summary

judgment judge granted the motion with respect to the defamation

claim, denied it with respect to the retaliation and tortious

interference claims, and denied it in part with respect to the

21

breach of contract claim.10 Robinson subsequently voluntarily

dismissed with prejudice all the remaining claims except the

retaliation claim against the town.

On November 13, 2023, after a two-week trial, a jury

returned a verdict in favor of Robinson. The jury awarded

$300,000 in compensatory damages for emotional distress and

$1,100,000 in punitive damages. The town filed a motion for

judgment n.o.v., or, in the alternative, for a new trial or

remittitur; it argued, among other things, that the verdict was

against the weight of the evidence, erroneous jury instructions

required a new trial, and there was insufficient evidence to

support a punitive damages award. The judge concluded that

"[a]lthough the jury instructions erroneously contained elements

of both [pretext and mixed-motive] frameworks, [the]

instructions as a whole adequately conveyed the applicable law."

The judge also concluded that the verdict was not against the

weight of the evidence and the evidence supported a punitive

damages award.

The town appealed regarding these issues. We transferred

the case to this court on our own motion.

10As explained supra, summary judgment was granted in favor

of the town on the issue of constructive discharge.

22

2. Discussion. a. Statutory background. "General Laws

c. 151B, § 4 (4), prohibits retaliation by making it unlawful

for 'any person . . . to discharge, expel or otherwise

discriminate against any person because he has opposed any

practices' forbidden under G. L. c. 151B." Abramian v.

President & Fellows of Harvard College, 432 Mass. 107, 121

(2000). To prevail on a retaliation claim under G. L. c. 151B,

an employee-plaintiff must prove that (1) "the employee

reasonably and in good faith believed that the employer was

engaged in wrongful discrimination," (2) "the employee acted

reasonably in response to that belief through reasonable acts

meant to . . . oppose . . . discrimination (protected

activity)," (3) "the employer took adverse action against the

employee," and (4) "the adverse action was a response to the

employee's protected activity" (quotations and citations

omitted). Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky &

Popeo, P.C., 474 Mass. 382, 405-406 (2016).

"A claim of retaliation is separate and distinct from a

claim of discrimination." Verdrager, 474 Mass. at 405. "An

employee bringing a retaliation claim is not complaining of

discriminatory treatment as such, but rather of treatment that

punish[es] [the employee] for complaining of or otherwise

opposing such discriminatory treatment" (quotation and citation

omitted). Id. "For this reason, a 'claim of retaliation may

23

succeed even if the underlying claim of discrimination fails,'"

provided that the employee "reasonably and in good faith

believed that the [employer] was engaged in wrongful

discrimination." Id., quoting Psy-Ed Corp. v. Klein, 459 Mass.

697, 706-707 (2011).11

b. Sufficiency of the evidence on liability. The town

argues that the judge erred in denying its motion for judgment

n.o.v., under Mass. R. Civ. P. 50 (b), as amended, 428 Mass.

1402 (1998), because the evidence was insufficient to show that

(1) Robinson reasonably believed that Shauna was discriminated

against because of her gender; (2) Robinson engaged in protected

activity; and (3) a causal connection existed between Robinson's

protected activity and the town's adverse actions. We conclude

the evidence was sufficient.

"When considering a motion for judgment n.o.v., the judge's

task, taking into account all the evidence in its aspect most

favorable to the plaintiff, [is] to determine whether, without

weighing the credibility of the witnesses or otherwise

considering the weight of the evidence, the jury reasonably

could return a verdict for the plaintiff." Luppold v. Hanlon,

495 Mass. 148, 163 (2025), quoting Phelan v. May Dep't Stores

Co., 443 Mass. 52, 55 (2004). "The verdict will be upheld if it

11We note that the MCAD found no probable cause to support

Shauna's claim of discrimination.

24

may be determined that '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'" (citation omitted). Sullivan v. Five Acres Realty

Trust, 487 Mass. 64, 68 (2021).

Viewing the evidence in the light most favorable to

Robinson, the evidence was sufficient to support the jury's

determination that the town retaliated against him. There was

evidence supporting differential treatment, Robinson's

complaints regarding such treatment, the town's knowledge of

such complaints, and a causal connection between the complaints

and the town's adverse actions against Robinson.

In Robinson's detailed statement to the board, he explained

how, unlike Shauna, other firefighters with performance

deficiencies were given additional training or counselling in

the prior two years. See Bulwer v. Mount Auburn Hosp., 473

Mass. 672, 685 (2016) (similarly situated employees who were not

Black "were given opportunities to remediate or repeat

rotations," unlike plaintiff); Sullivan v. Liberty Mut. Ins.

Co., 444 Mass. 34, 48 (2005) ("That [the defendant] retained

lower-rated, similarly situated male employees eliminates one of

the most obvious explanations for the [plaintiff's] discharge --

her lower proficiency" [quotations and citation omitted]);

Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 130

25

(1997) (relevant comparators are similarly situated "in terms of

performance, qualifications and conduct" [citation omitted]).

Because the department was overwhelmingly male, the jury could

have reasonably found that Robinson was engaging in protected

activity by complaining that male firefighters performing

unsatisfactorily were afforded training opportunities but Shauna

was not. Moreover, the MCAD notified the town that Shauna had

filed a gender discrimination complaint, and Galvin believed

Robinson was assisting Shauna with her claim. As explained

supra, a claim for retaliation may succeed even if the

underlying claim for discrimination does not. Furthermore,

G. L. c. 151B, § 4, does not require certainty that wrongful

discrimination has occurred; all that is required is a

reasonable, good faith belief that the employer engaged in

wrongful discrimination. See Verdrager, 474 Mass. at 405; Psy-

Ed Corp., 459 Mass. at 706-707; Abramian, 432 Mass. at 121-122.12

Finally, the evidence was also sufficient for the jury to

infer causation, that is, that the town retaliated against

Robinson because he complained of gender discrimination.

Temporal proximity between the employee's protected activity and

the ensuing adverse action "is one form of circumstantial

12 The town raises no meaningful argument regarding good

faith.

26

evidence that . . . can demonstrate the required causal

connection" (quotation and citation omitted). Verdrager, 474

Mass. at 409. When Robinson began to complain about the unfair

treatment of Shauna, he had been successfully employed in the

department for more than three decades and had been the chief

for over one decade. After his complaint, a series of

interrelated actions occurred in relatively short order in a way

that could be reasonably interpreted as retaliatory. See Mole

v. University of Mass., 442 Mass. 582, 596 (2004); Salvi v.

Suffolk County Sheriff's Dep't, 67 Mass. App. Ct. 596, 605-606

(2006). Within ten days of Robinson's reporting of Shaun's

complaint that she had not been treated the same as similarly

situated male employees, Longo and Clifford met with Robinson to

discuss a possible conflict of interest in violation of G. L.

c. 268A. Approximately three months after Robinson complained

to the board that Shauna was being treated unfairly, the board

voted not to renew his employment contract and not to increase

his salary. Then, almost two months after he refused to retire,

the Smith investigation began. Finally, about one month after

Galvin notified Smith about Robinson's apparent assistance in

Shauna's MCAD complaint, Robinson was escorted from the

workplace, ordered not to return, and placed on administrative

leave, an action highly unusual for the town, and previously

used only in cases of harassment and operating while under the

27

influence offenses. The timing of these events, demonstrating

temporal connections between complaints of discrimination and

the town's reaction, is sufficient evidence to support the

jury's determination that the town retaliated against Robinson

because of his protected activity.

c. Whether the jury instructions on mixed motives and

pretext were erroneous. We next consider the town's argument

that the jury instructions were erroneous and require a new

trial, as they improperly blended pretext and mixed-motive

instructions. "We review objections to jury instructions to

determine if there was any error and, if so, whether the error

affected the substantial rights of the objecting party."

Luppold, 495 Mass. at 158, quoting Dos Santos v. Coleta, 465

Mass. 148, 153-154 (2013). "'A trial judge has wide latitude in

framing the language to be used in jury instructions' as long as

the instructions adequately explain the applicable law."

Luppold, supra, quoting Kelly v. Foxboro Realty Assocs., LLC,

454 Mass. 306, 316 (2009).

Before we turn to the instructions given in the instant

case, we explain the two frameworks for allocating evidentiary

burdens in a discrimination or retaliation case under G. L.

c. 151B, § 4, and the statute's causation requirement.

i. The pretext and mixed-motive frameworks. An employer

rarely announces that it has taken an adverse action against an

28

employee because of a discriminatory or retaliatory motive. See

Verdrager, 474 Mass. at 406. Consequently, plaintiffs often

must rely on circumstantial evidence to prove these elements of

a discrimination or retaliation claim. See id. Courts evaluate

such cases "using a three-stage burden-shifting paradigm" as

first set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-805 (1973), and adopted for State discrimination claims

in Wheelock College v. Massachusetts Comm'n Against

Discrimination, 371 Mass. 130, 138-139 (1976). Verdrager,

supra. See Blare v. Husky Injection Molding Sys. Boston, Inc.,

419 Mass. 437, 440-441 (1995). In the first stage, the

"plaintiff has the initial burden to establish a prima facie

case. Once [the plaintiff] succeeds in doing so, [in the second

stage,] the burden of production shifts to the employer to

articulat[e] a legitimate, nondiscriminatory reason for the

adverse employment action. Once the employer meets its burden,

it falls to the plaintiff in the [third and] final stage to

prove that the employer's reason proffered in stage two is just

a pretext" (quotations and citations omitted). Wynn & Wynn,

P.C. v. Massachusetts Comm'n Against Discrimination, 431 Mass.

655, 665-666 (2000). See Wheelock College, supra at 138. In

this final stage, the plaintiff can meet his burden by either

persuading the fact finder that the alleged illegitimate motive

more likely caused the employer's adverse action or "by showing

29

that the employer's proffered explanation is unworthy of

credence." Texas Dep't of Community Affairs v. Burdine, 450

U.S. 248, 253, 255-256 (1981). See Lipchitz v. Raytheon Co.,

434 Mass. 493, 502 (2001). Although the burden of production

under the pretext framework shifts between the parties as

described, the "plaintiff retains the burden of persuasion" at

all times. Burdine, supra at 256. See Johansen v. NCR Comten,

Inc., 30 Mass. App. Ct. 294, 299 (1991).

"There exists, however, a rare class of cases, referred to

as 'mixed-motive' cases," where the plaintiff does have some

"strong (direct)" evidence that an "illegitimate" motive

factored into the adverse employment decision. Wynn & Wynn,

P.C., 431 Mass. at 666. A different burden-shifting framework

applies where there is such strong evidence of illegitimate

motive that it makes little sense to frame the issue as whether

the employer's apparent motive was a pretext. "Once the

plaintiff carries [his] initial burden [with such strong

evidence], the burden of persuasion shifts to the [employer]."

Id. at 670. See Johansen, 30 Mass. App. Ct. at 299. Thus,

unlike under the pretext framework, an employer cannot avoid

liability by producing evidence of "a legitimate reason for its

decision." Id. at 301. Instead, the employer "must show that

its legitimate reason, standing alone, would have induced it" to

take the same action. Id., quoting Price Waterhouse v. Hopkins,

30

490 U.S. 228, 252 (1989) (plurality opinion). Accordingly,

"[t]he inquiry in [mixed-motive] cases is not whether a

legitimate reason for the [adverse employment action] is a

'pretext.' Rather, the appropriate question is whether the

employer's proffered legitimate reason also motivated the

employment decision and, if so, to what extent . . . ." Wynn &

Wynn, P.C., supra.

Whether the pretext or mixed-motive framework governs a

given case, therefore, depends on the nature of the plaintiff's

evidence that an illegitimate motive caused the adverse

employment action. Although this inquiry is sometimes phrased

as whether such evidence is "indirect" or "direct," this

terminology is perhaps "too elusive a guide." Johansen, 30

Mass. App. Ct. at 299. It is more helpful to ask whether the

evidence, "if believed, results in an inescapable, or at least

highly probable, inference that [an illegitimate motive] was

present in the workplace." Id. at 300. If so, the mixed-motive

framework applies. If not, as is usually the case, the pretext

framework applies.

Because the strength of illegitimate-motive evidence can be

difficult to characterize and may evolve as evidentiary rulings

are made throughout a trial, "[a] plaintiff is not required to

choose between a mixed-motive approach and a pretext approach;

[he] may proceed on either basis, or both." Wynn & Wynn, P.C.,

31

431 Mass. at 667 n.23. However, "[o]nce all the evidence is

received, the judge should decide whether the mixed-motive or

pretext framework properly applies to the evidence." Id. at 670

n.32. This is because the two frameworks are mutually

exclusive. The three-stage process governing pretext cases is

"premised on the idea 'that either a legitimate or an

illegitimate set of considerations led to the challenged

decision." Id. at 666, quoting Price Waterhouse, 490 U.S. at

247. Conversely, the mixed-motive framework assumes that both

legitimate and illegitimate considerations were present.

Therefore, a jury can only be instructed according to one

framework, and it is for the judge to evaluate the strength of

the evidence and ultimately decide which framework governs.

ii. The causation requirement. Proof of causation is

required in both pretext and mixed-motive cases. See Lipchitz,

434 Mass. at 506 (holding that trial judge erred by failing to

"alert the jury to the requirement that [the employee] prove a

causal link" between employer's illegitimate motive and adverse

employment action). In both types of cases, the illegitimate

motive must be "a determinative factor" in the decision to take

the adverse action. Psy-Ed Corp., 459 Mass. at 707. See

Edwards v. Commonwealth, 488 Mass. 555, 571-572 (2021)

(describing "determinative" or "but for" causation standard

32

under G. L. c. 151B, § 4). However, "who bears the burden of

proving [causation]" differs. Lipchitz, supra at 505 n.17.

In a pretext case, although we permit the fact finder to

infer either illegitimate motive or causation, or both, if the

plaintiff proves that the employer offered a false reason for

the employment decision, both illegitimate motive and causation

remain required elements a plaintiff must prove in a retaliation

claim. Lipchitz, 434 Mass. at 502. In a mixed-motive case,

because of the strong evidence of discriminatory or retaliatory

motive, proof of causation shifts to the defendant. If the jury

conclude that the employer has failed to prove that it would

have taken the same actions absent the illegitimate motive, then

necessarily the illegitimate motive was a "determinative" cause

of the adverse actions and these two elements are satisfied.

Cf. Wynn & Wynn, P.C., 431 Mass. at 669-670 (after employee

carries his or her initial burden, in mixed-motive case,

employer "'may avoid a finding of liability only by proving that

it would have made the same decision' even without the

illegitimate motive" [emphasis added; citation omitted]).

iii. The instructions in the instant case. We return to

the facts and instructions in this case. As explained supra,

Robinson's evidence of illegitimate motive was sufficient, but

not the type of strong evidence required in the "rare" cases

that call for mixed-motive analysis. Wynn & Wynn, P.C., 431

33

Mass. at 666. Robinson complained of unfair treatment of his

niece, but he did not expressly describe it as gender

discrimination. That must be inferred. Although there was some

temporal proximity between Robinson's opposition to Shauna's

unfair treatment and the adverse employment actions --

approximately three months between the time of his letter to the

board and the nonrenewal of his employment contract, and

approximately one month between Galvin learning of Robinson's

possible role in Shauna's MCAD complaint and Robinson's

placement on administrative leave -- it is not immediate. See

Mole, 442 Mass. at 592 ("if adverse action is taken against a

satisfactorily performing employee in the immediate aftermath of

the employer's becoming aware of the employee's protected

activity, an inference of causation is permissible").

Furthermore, Robinson's intervention on behalf of his niece was

fraught with the possibility of nepotism and violation of G. L.

c. 268A. Thus, the town's reaction to his intervention on

behalf of his niece and its timing had a plausible, obvious,

legitimate explanation as well. Although Robinson's evidence of

retaliatory motive, if believed, permits the inference that the

town retaliated against Robinson, such inference is neither

"inescapable" nor "highly probable." Johansen, 30 Mass. App.

Ct. at 300. Therefore, this is not one of the rare cases

presenting strong evidence of an illegitimate motive. Rather,

34

it is a pretext case, and the jury should have been instructed

according to that framework only. See Wynn & Wynn, P.C., supra

at 670 n.32.

Much of the judge's instructions were unobjectionable. He

instructed the jury:

"In order to prevail on a claim of retaliation, the

Plaintiff must prove three elements by a preponderance of

the evidence. 1, the Plaintiff engaged in protected

conduct; 2, the Defendant knew of the protected conduct and

acted adversely against the Plaintiff; 3, a causal

connection existed between the protected conduct and the

adverse action."

Where the judge went astray was during his instructions to the

jury for resolving the plaintiff's and the defendant's competing

explanations for the adverse employment decision in a pretext

case. As explained supra, employers rarely state that they rely

on discriminatory or retaliatory reasons for an adverse

employment decision, so the jury are often required to make this

determination by evaluating circumstantial evidence. See

Verdrager, 474 Mass. at 406. In pretext cases, juries are

commonly instructed:

"Circumstantial evidence of discrimination [or retaliation]

can include proof that the reason given by [the defendant]

for [the adverse action] is not true or, if more than one

reason was given for [the adverse action], that at least

one of the reasons given was not true. . . . [Such pretext

evidence] standing alone may, but need not, support an

inference of unlawful bias. Therefore, if the plaintiff

has persuaded you that at least one of [the employer's]

reasons is false, you may, but are not required to, infer

that [the employer] is covering up a discriminatory [or

35

retaliatory] intent, motive, or state of mind." (Footnote

omitted.)

Massachusetts Superior Court Civil Practice Jury Instructions

§ 5.2.3 (Mass. Cont. Legal Educ. 3d ed., 2d Supp. 2018). The

judge's instructions did not, however, track this common

instruction. Instead, he blended pretext and mixed-motive

instructions as follows, beginning unexceptionally but

continuing more problematically:

"So with regard to a nonretaliatory basis for employment

decision, an employer may take adverse employment action

against an employee for many nonretaliatory reasons. It

will be up to you to decide whether the Plaintiff has

proved by a preponderance of the evidence that the

Defendant committed an adverse employment action in

retaliation for his report or opposition to gender

discrimination against his niece, Shauna."

So far, so good. Then, the judge, at the invitation of the

parties, introduced mixed-motive concepts into what should have

been a pretext instruction:

"If you find that the Defendant had other alleged

legitimate reasons for its actions with respect to the

Plaintiff or that the other legitimate reason was the sole

reason for its actions, then you must find that the

Defendant -- for the Defendant unless the Plaintiff has

adduced some significantly probative evidence that the

Town's proffered reason or reasons was or is pretextual."13

13 Both the town and Robinson requested portions of this

instruction. The town's proposed instruction said, in part,

that a verdict for the town was required if "the Town had other

legitimate reasons for its actions with respect to [the

plaintiff]." Robinson, however, asked that "or that the alleged

other legitimate reasons were the sole reason[s]" be added to

this sentence. The town objected to this addition.

36

This instruction is confusing in a pretext case. The

discussion of "other" or "sole" reasons is more commonly

associated with mixed-motive cases, where the plaintiff has

already produced strong evidence that an illegitimate motive was

present; the focus then turns to whether the employer also had

legitimate motives for the employment decision and whether the

employment decision would have been the same regardless of the

protected conduct. This is a different inquiry from the one

required in a pretext case, as explained supra. In other words,

the discussion of "other" or "sole" reasons is misleading

because it blends mixed-motive analysis into the pretext

framework. The instruction also leaves the term "pretext"

undefined. See Lipchitz, 434 Mass. at 508 (cautioning against

"burden[ing] the jury with terms like . . . 'pretext'").

Further complicating matters, the judge then gave what the

parties referred to as the "Mt. Healthy defense," see Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274

(1977), which the town requested and Robinson agreed to: "If

you find that the Defendant would have acted the same even if

the Plaintiff did not complain about or oppose . . . gender

discrimination, then you must find for the Defendant." In this

context, however, this defense is again more commonly associated

with a mixed-motive case, where strong evidence of

discriminatory or retaliatory animus has already been

37

established by the plaintiff and where the burden of persuasion

therefore shifts to the defendant to prove this defense.14 See

Johansen, 30 Mass. App. Ct. at 301, citing Price Waterhouse, 490

U.S. at 252.

Next, the judge returned to traditional pretext analysis:

"The Defendant has asserted that it had legitimate non

retaliatory reasons for its actions. If the Plaintiff

convinces you that the alleged nonretaliatory reasons put

forth by the Defendant for the adverse actions are false,

that fact may be used by you to infer that the reason for

the adverse action was retaliation."

The sixth and seventh questions on the special verdict

form, again at the invitation of the parties, also blended

pretext and mixed-motive concepts in a confusing manner. The

sixth question related to the "Mt. Healthy defense," asking:

"Has the Town of Marshfield proven by a preponderance of the

evidence that it would have treated Mr. Robinson the same

regardless of whether he engaged in protected activity?" The

question asked the jury to answer "Yes" or "No," and it

instructed that "[i]f you answered 'Yes' . . . , go to Question

7." The verdict form's instruction to proceed to the seventh

question if they answered "Yes" conflicted with the judge's

instructions, however, which told the jury that a verdict for

the defendant was required if the answer to this question were

The judge's instructions to the jury did not instruct

14

that the town bore the burden of proof on this issue.

38

"Yes." See supra. But on the special verdict form, the jury

answered "Yes" and, as directed by that form, continued to the

seventh question. Both parties ultimately agreed to the

formulation of the sixth question, including the direction that

the jury continue to the seventh question even if they answered

"Yes."15

The seventh question asked: "Has Mr. Robinson proven by a

preponderance of the evidence that the Town's articulated,

nonretaliatory reasons were not true or not the sole reason for

the alleged adverse actions?" The question again asked the jury

to answer "Yes" or "No," and the jury also answered "Yes" to

this question.16 This answer seems in tension with the jury's

answer to sixth question; if the jury found that the town proved

it would have treated Robinson the same absent his protected

15The special verdict form used at trial closely tracked

the special verdict form proposed by the town. The sixth

question on the town's proposed form called for substantially

the same inquiry as the sixth question on the final form, and it

likewise directed the jury to move on to the seventh question if

they answered "Yes" to the sixth question. Although plaintiff's

counsel raised a question about the sixth question as the form

was finalized, she likewise concluded it was correct to have the

jury move to the seventh question after answering "Yes."

16The seventh question on the town's proposed form asked:

"Has Mr. Robinson proven by a preponderance of the evidence that

the Town's articulated, nonretaliatory reasons were not true?"

This resembles the seventh question on the form used at trial,

except for the clause "or not the sole reason for the alleged

adverse actions," which Robinson requested and the town objected

to.

39

conduct, that finding suggests the town's actions were motivated

by its articulated nonretaliatory reasons. However, the jury's

answer to the seventh question leaves open the possibility that

the jury found the town's articulated nonretaliatory reasons

were not the sole reason for the alleged adverse actions,

meaning that retaliatory or other unarticulated reasons also

contributed. If those reasons were retaliatory, that finding

supports a verdict for Robinson. If the unarticulated reasons

were not retaliatory, it does not support a verdict for

Robinson.

In sum, the introduction of mixed-motive analysis in the

instructions and verdict slip, without strong evidence of

illegitimate motives as required in a mixed-motive case, and the

inconsistent treatment of the answer "Yes" in the instructions

and the sixth question were error, albeit error invited in part

by both parties. The question becomes whether these errors were

prejudicial. We turn to that question next.

In evaluating whether these errors were prejudicial, we

must review the jury instructions as a whole. See Draghetti v.

Chmielewski, 416 Mass. 808, 818 (1994) ("We view the questions

submitted to the jury in light of the instructions given by the

judge"). See also Governo Law Firm LLC v. Bergeron, 487 Mass.

188, 194 (2021), quoting Blackstone v. Cashman, 448 Mass. 255,

270 (2007) ("An error in jury instructions is not grounds for

40

setting aside a verdict unless the error was prejudicial -- that

is, unless the result might have differed absent the error").

As discussed supra, the instructions began properly and

addressed the core issues. The jury were instructed that

Robinson was required to prove by a preponderance of the

evidence that he engaged in protected conduct, the town knew of

the protected conduct and acted adversely against him, and a

causal connection existed between the protected conduct and the

adverse action.

The special verdict form, at least when reviewed in its

entirety, also supported the verdict. Critically, the jury

answered "Yes" to the fifth question on the form, concluding

that Robinson proved by a preponderance of the evidence that a

direct causal connection existed between his protected activity

and the adverse action. This properly required the plaintiff to

prove causation, without shifting the burden to the defendant as

would occur in a mixed-motive case. The jury also answered

"Yes" to the ninth question, concluding that Robinson proved by

a preponderance of the evidence that the town intentionally

discriminated against him and the town's actions were extreme

and outrageous. The jury then awarded punitive damages in the

amount of $1,100,000.

Based on a review of all the jury instructions and all the

jury's responses to special questions, we conclude that the

41

errors in the instructions, unnecessarily introducing mixed-

motive concepts into a pretext case, were not prejudicial to the

town. The jury here made the findings, according to the

instructions, necessary in a pretext case. To reiterate, they

found that the town intentionally retaliated against Robinson.

They also found that Robinson proved by a preponderance of

evidence that there was a direct causal connection between the

protected activity and the adverse employment decision, without

shifting the burden to the defendant as occurs in a mixed-motive

case. Finally, and perhaps most importantly, the jury found

this intentional misconduct extreme and outrageous, eliminating

any doubts raised by their confusing answers to the sixth and

seventh questions, with respect to which any confusion was

invited by both parties. See DaPrato v. Massachusetts Water

Resources Auth., 482 Mass. 375, 389 (2019) (jury instruction not

prejudicial "[g]iven the jury's unequivocal decision in favor of

[the plaintiff]" where "[t]he jury awarded punitive damages

because [they] found the [defendant's] conduct outrageous").

d. Punitive damages. We also affirm the award of punitive

damages. Neither party challenges the instructions given by the

judge at trial with respect to punitive damages, and upon

review, those instructions appear to have been adequate. See

Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 17

(1998). See also Haddad, 455 Mass. at 107. Although the

42

evidence was hotly contested, with the town contending that

nepotism and bad management were the cause of the adverse

employment actions and Robinson contending it was retaliation

for his objection to gender discrimination, the jury chose to

credit Robinson, not the town. If the actions the town took

against Robinson were retaliatory, as the jury found, we cannot

say such actions were not extreme and outrageous considering

Robinson's long tenure as a firefighter and fire chief of the

town in good standing since 1978.17,18

3. Conclusion. For the foregoing reasons, the judgment,

which includes the damages awarded to Robinson, and the order

denying the town's motion for judgment notwithstanding the

verdict or for a new trial or remittitur are affirmed.

So ordered.

17Because Robinson conditionally waived his cross appeal of

the dismissal of his constructive discharge claim in the event

that we affirm the jury's verdict and damages award, and we do

so here, we need not decide this issue. See note 1, supra.

18Robinson has requested an award of appellate attorney's

fees and costs in his brief. As the prevailing party on appeal

in a G. L. c. 151B action, he is entitled to recover reasonable

attorney's fees and costs. See DeRoche v. Massachusetts Comm'n

Against Discrimination, 447 Mass. 1, 17 (2006). Robinson may

file an appropriate application for appellate fees and costs in

this court, pursuant to the procedure established by Fabre v.

Walton, 441 Mass. 9, 10-11 (2004).