Heagney v. Wong

United States Court of Appeals
For the First Circuit

No. 17-2033

SCOTT L. HEAGNEY,

Plaintiff, Appellee,

v.

LISA A. WONG; CITY OF FITCHBURG,

Defendants, Appellants,

BADGEQUEST, INC.; STEPHAN UNSWORTH,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Torruella, Thompson, and Barron,
Circuit Judges.

Leonard H. Kesten, with whom Judy A. Levenson, Deidre Brennan
Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief,
for appellants.
Nicholas B. Carter, with whom Joseph M. Cacace and Todd &
Weld LLP were on brief, for appellee.
February 11, 2019
 BARRON, Circuit Judge. This case concerns a suit that

Scott Heagney, a past applicant for the position of the police

chief of Fitchburg, Massachusetts, brought against the City of

Fitchburg ("Fitchburg") and its mayor after the mayor decided not

to nominate him for the job. The mayor made her decision after

she discovered late in the hiring process that Heagney had not

disclosed, among other things, that he was charged with serious

criminal offenses (of which he was later acquitted at trial) during

the time period in which he was employed at another local police

department. The mayor was quoted thereafter in local newspapers

explaining her decision not to nominate Heagney for the position.

Heagney's suit claims that Fitchburg violated his rights

under Massachusetts General Laws Chapter 151B by basing its

decision not to hire him for the position on his failure to

disclose the criminal case against him. Heagney's suit also

claims, under Massachusetts law, that the mayor defamed him through

statements that she made to the local newspapers explaining the

decision.

At trial, the jury found for Heagney on both claims.

For the defamation claim, the jury awarded Heagney $750,000 in

compensatory damages and for the Chapter 151B claim, no

compensatory damages but $750,000 in punitive damages. The

District Court denied Fitchburg's motions for judgment as a matter

of law and for a new trial or remittitur, and entered judgment for

- 3 -
Heagney. Fitchburg now appeals. We reverse the judgment on the

defamation claim, affirm the judgment on the Chapter 151B claim,

and reverse the award of punitive damages for the Chapter 151B

claim.

I.

Heagney first submitted his application for the position

of Fitchburg Police Chief in October 2013. On the résumé

accompanying his application, Heagney listed positions that he had

held at the Police Department of Franklin, Massachusetts from 1987

to 2001 and at the United States Bureau of Alcohol Tobacco and

Firearms ("ATF"), where he had been employed since 2001.

Heagney did not list on his résumé, however, his prior

employment as an officer in the Police Department of Falmouth,

Massachusetts where, after being fired by the Franklin Police

Department, he had worked from 1990 to 1993. Instead, on his

résumé, Heagney stated that he had worked as a patrolman at the

Franklin Police Department from 1987 to 1994, without noting the

break in his service. Heagney also did not list his prior

employment at the Police Department of Attleboro, Massachusetts,

where he had worked from 1985 to 1987.

As part of the application process, Heagney was also

asked to fill out a standard employment application. The

application asked candidates to list their employment for the past

fifteen years. Heagney stated in the application only that he had

- 4 -
worked in the Franklin Police Department from 1987 to 2001 and at

the ATF from 2001 to present. He also answered "no" to two

questions: "Have you ever been disciplined, fired or forced to

resign because of misconduct or unsatisfactory employment?" and

"Prior to the hiring of our next police chief, a thorough and

comprehensive background investigation will be conducted. Are

there any issues that we should be aware of that would arise during

such an investigation?"

Over the course of several months, Bernard Stephens --

Fitchburg's personnel director -- and the rest of the selection

committee -- whose members had been chosen by Lisa Wong, the mayor

of Fitchburg -- gradually narrowed the pool of potential candidates

with the assistance of an "assessment center" and through various

interviews. After interviewing the three remaining candidates,

Wong chose Heagney as the finalist for the position of Fitchburg

Police Chief. She sent an email to the city council on March 10,

2014 announcing her decision to nominate him for the position.

Before Wong would officially nominate any candidate for

Fitchburg Police Chief to the city council, however, that candidate

was required to pass a background check by BadgeQuest, a consulting

firm that Fitchburg had hired to assist in the selection process.

Thus, BadgeQuest, at Fitchburg's request, proceeded to complete

its background investigation of Heagney. And, after an initial

investigation, Stephan Unsworth, Fitchburg's primary contact at

- 5 -
BadgeQuest, communicated BadgeQuest's tentative conclusion to

Stephens that "there [we]re no issues in [Heagney's] background

that would have a negative impact on [his] suitability for the

position of Fitchburg [P]olice [C]hief." Unsworth did indicate,

though, that BadgeQuest was still waiting for Heagney's personnel

file from the ATF.

The next significant development occurred on March 17,

2014, before Heagney's personnel file arrived from the ATF. On

that date, Wong's office received an anonymous letter that raised

concerns about Heagney's pending nomination for Fitchburg Police

Chief. The letter stated that Heagney had worked and had been

involved in various incidents of misconduct at the Attleboro,

Falmouth, and Franklin Police Departments. The letter also stated

that Heagney had been charged with various criminal offenses

related to pistol whipping an individual (which subsequent

investigation revealed to be his ex-girlfriend) but that the

criminal "case was dismissed[.]"

At Wong's request, Stephens immediately asked BadgeQuest

to "check out" the allegations in the letter, which BadgeQuest

began to do. Before BadgeQuest had conclusively verified any of

the letter's allegations, however, Stephens sent Unsworth an email

on the afternoon of March 18, 2014, in which he called off the

BadgeQuest investigation into Heagney. In his email to Unsworth

explaining why, Stephens gave as "[r]easons": (1) "[y]our question

- 6 -
early on to him about any problems in the past . . . that we should

know about. He answered no"; (2) "[a]pplication was not filled out

with all the police jobs that he had early in his career"; and (3)

"[h]e has lost Mayor Wong's support."

On the afternoon of March 18, 2014, Wong spoke with

Heagney and gave him an end-of-business-day deadline to withdraw

his name as an applicant for the chief of police position. After

that deadline passed and Heagney still had not withdrawn his name,

Wong sent an email to the city council in which she withdrew her

nomination of Heagney to be the Fitchburg Police Chief. In the

email, Wong stated that "[t]he nomination was subject to the

execution of a contract and a background check, both of which have

been suspended."

Local newspapers covered Wong's withdrawal of Heagney's

nomination. One of the articles about this news, written by Paula

Owen, appeared in the Worcester Telegram & Gazette and stated:

"Now, Ms. Wong claims the 46-year-old ATF agent, who runs the

Rochester, N.Y., office, was not forthcoming on his résumé about

his work experience or about a court case on alleged assault and

battery and other charges when he was 21."1

1 That same article also included a statement attributed to
Wong that she sent via text to Owen: "The city is not interested
in pursuing a candidate for police chief who was not forthcoming
with his résumé." Another article, published in the Fitchburg
Sentinel & Enterprise, included a statement attributed to Wong

- 7 -
 Fitchburg eventually received Heagney's personnel files

from the ATF and the Falmouth and Attleboro Police Departments.

Those files included the following information related to the

"court case" -- and the underlying allegations of criminal conduct

by Heagney -- referenced in the anonymous letter. In 1988, Cheryl

Collins, Heagney's ex-girlfriend, filed complaints with the

Franklin and Wrentham Police Departments against Heagney in which

she alleged that he had physically abused and threatened her with

a pistol. Following the allegations, Heagney was placed on

temporary leave from his job at the Franklin Police Department

after an internal investigation. The criminal case against Heagney

in Wrentham District Court for assault and battery of Collins with

a dangerous weapon ended in Heagney's acquittal.

The personnel files also revealed other disciplinary

actions that had been taken against Heagney by police departments

at which he had previously worked. Those actions were for various

instances of misconduct, including fabricating a police report,

acting unprofessionally during a suicide watch, and failing to

appear in court for a trial.

that "[t]he city [wa]s not interested in pursuing a candidate for
police chief who withheld key information about their work résumé
and character." The jury rejected Heagney's defamation claims
arising from these statements because the jury found that both
statements were true. On appeal, the parties do not contest the
jury's verdicts as to these statements, so we need not address
them here.

- 8 -
 In 2015, Heagney filed suit in state court against Wong,

Fitchburg, BadgeQuest, and Unsworth. The defendants removed the

case to federal court based on diversity jurisdiction. See 28

U.S.C. § 1332(a). Heagney's complaint alleged that all defendants

except for Fitchburg had defamed him in violation of Massachusetts

law and that Fitchburg had violated Massachusetts General Laws

Chapter 151B by not hiring Heagney due to his failure to inform it

of the criminal case against him. As relevant here, Chapter 151B

provides that it is unlawful for

an employer, himself or through his agent, . . . to
exclude, limit or otherwise discriminate against any
person by reason of his or her failure to furnish such
information through a written application or oral
inquiry or otherwise regarding . . . an arrest,
detention, or disposition regarding any violation of law
in which no conviction resulted.

Mass. Gen. Laws ch. 151B, § 4(9).

Prior to trial, Heagney settled with BadgeQuest and

Unsworth. Heagney then proceeded to trial on his claims against

Wong and Fitchburg. At the end of the trial on those claims, the

defendants filed a motion for judgment as a matter of law under

Federal Rule of Civil Procedure 50(a), which the District Court

denied. The case was submitted to the jury. The jury specifically

found that Wong had made the statement to the Worcester Telegram

& Gazette that Heagney "was not forthcoming . . . about a court

case on alleged assault and battery and other charges when he was

21" and that this statement was both false and defamatory. On

- 9 -
this defamation claim, the jury awarded Heagney $125,000 "for

damages to his reputation, including emotional distress" and

$625,000 "for economic losses." Separately, the jury found that

the other statements at issue were not false.

The jury also found Fitchburg liable, in violation of

Chapter 151B, for discriminating against Heagney because of his

failure to disclose the information concerning the criminal case

against him. But, with respect to damages, the jury found, based

on after-acquired evidence of administrative actions that had been

taken against Heagney by other police departments, that Fitchburg

would have refused to hire Heagney on the basis of that evidence

alone and thus independently of the fact that he had not disclosed

the criminal case. As a result, the jury did not award Heagney

any compensatory damages on the Chapter 151B claim. The jury did

award him, however, $750,000 in punitive damages on that claim.

The defendants renewed their motion for judgment as a

matter of law under Federal Rule of Civil Procedure 50(b) and

alternatively requested a new trial under Federal Rule of Civil

Procedure 59(a) or remittitur under Federal Rule of Civil Procedure

59(e). The District Court denied all the motions. Wong and

Fitchburg now appeal.

II.

Wong's appeal of the denial of both her motion for

judgment as a matter of law and for a new trial on Heagney's

- 10 -
defamation claim focuses on the statement attributed to her that

appeared in the story by Owen that was published in the Worcester

Telegram & Gazette on March 20, 2014. To repeat, the story stated,

in relevant part: "Now, Ms. Wong claims the 46-year old ATF agent,

who runs the Rochester, N.Y., office, was not forthcoming on his

résumé about his work experience or about a court case on alleged

assault and battery and other charges when he was 21."

Under Massachusetts law, to prove defamation against a

public figure (which Heagney concedes that he is), Heagney must

show that: (1) Wong made a statement concerning him to a third

party; (2) the statement could damage Heagney's reputation in the

community; (3) Wong made the statement with actual malice; and (4)

the statement caused economic loss or is actionable without

economic loss. See Ravnikar v. Bogojavlensky, 782 N.E.2d 508,

510-11 (Mass. 2003).

The jury found that Wong made the entire statement

attributed to her in the story by Owen. The jury found that the

portion of the statement in which Wong stated that Heagney "was

not forthcoming on his résumé about his work experience" was not

false. But, the jury found that the portion of the statement in

which Wong stated that Heagney "was not forthcoming . . . about a

court case on alleged assault and battery and other charges when

he was 21" was both false and defamatory. The jury's finding on

- 11 -
that portion of the statement is the sole basis for the finding of

liability on Heagney's defamation claim.

We can easily dispose of Wong's threshold contention

that the evidence was too slight to permit a jury to find that she

in fact made the statement at issue to the Worcester Telegram &

Gazette. Owen, the reporter at the Worcester Telegram & Gazette

who wrote the March 20, 2014 article, testified at trial that Wong

made the statement to her during a phone call. The jury reasonably

could have credited Owen's testimony as to that point.

Nevertheless, truth is "an absolute defense" to this

defamation claim.2 Noonan v. Staples, Inc., 556 F.3d 20, 26 (1st

Cir. 2009) (citing Mass. Sch. of Law at Andover, Inc. v. Am. Bar

2 A Massachusetts statute permits a plaintiff in a libel
action to recover for a truthful defamatory statement if the
plaintiff proves that it was made in writing with actual malice.
See Mass. Gen. Laws ch. 231, § 92. However, the First Amendment
limits the scope of that statute such that "a statement on matters
of public concern must be provable as false before there can be
liability under state defamation law." Shaari v. Harvard Student
Agencies, Inc., 691 N.E.2d 925, 927 (Mass. 1998) (internal
quotation marks omitted) (emphasis added); see also Materia v.
Huff, 475 N.E.2d 1212, 1216 n.6 (Mass. 1985) ("[A] judge cannot
constitutionally apply [the statute] to a public figure or public
official."); Ravnikar, 782 N.E.2d at 510 n.3 (noting that "the
provisions of the First Amendment to the United States
Constitution" limit "[t]he scope of the statute"); White v. Blue
Cross & Blue Shield of Mass., Inc., 809 N.E.2d 1034, 1036 (Mass.
2004). Because the parties agree that Heagney is a public figure,
see Rotkiewicz v. Sadowsky, 730 N.E.2d 282, 287 (Mass. 2000)
(holding that "police officers . . . are 'public officials' for
purposes of defamation"), and that the statement at issue was on
a matter of public concern, we do not need to address whether Wong
made that statement with actual malice if we decide that the
evidence was insufficient to show that the statement was false.

- 12 -
Ass'n, 142 F.3d 26, 42 (1st Cir. 1998); McAvoy v. Shufrin, 518

N.E.2d 513, 517 (Mass. 1988)); see also Shaari, 691 N.E.2d at 927.

And, under the First Amendment, Heagney bears the burden of showing

that the statement at issue was false. See Philadelphia

Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986). Moreover,

the First Amendment compels us to "afford plenary review" instead

of the "usual deferential Rule 50 standard" to "'mixed fact/law

matters which implicate core First Amendment concerns,' such as

the jury's conclusions regarding falsity." Sindi v. El-Moslimany,

896 F.3d 1, 14 (1st Cir. 2018) (quoting AIDS Action Comm. of Mass.,

Inc. v. MBTA, 42 F.3d 1, 7 (1st Cir. 1994)).

Essentially, Wong's position is that the record shows

that Heagney was, in fact, "not forthcoming" about the "court case"

involving the criminal charges that had been lodged against him in

the ordinary sense of being "not forthcoming." After all, she

points out, Heagney at no point actually brought the case to the

attention of Wong or the search committee. Thus, Wong contends

the statement at issue cannot ground a defamation claim because it

was true rather than false. And, we conclude, applying plenary

review, that, under the ordinary construction of the phrase "not

forthcoming," Wong is right. See Oxford Living Dictionaries:

English, https://en.oxforddictionaries.com/definition/forthcoming

(defining "forthcoming" as "willing to divulge information");

- 13 -
Merriam-Webster Dictionary (2005) (defining "forthcoming" as

"characterized by openness, candidness, and forthrightness").

The evidence shows that Heagney had been put on notice

that "a thorough and comprehensive background investigation

w[ould] be conducted" as part of the selection process. Yet,

despite multiple opportunities during that process to do so,

Heagney never in fact "alert[ed] the Defendants that his background

investigation would reveal [the assault and battery] allegations,

the resulting internal affairs investigation, the suspension, and

the subsequent criminal charges." In fact, when asked on the

initial application form whether he had "ever been disciplined,

fired, or forced to resign because of misconduct or unsatisfactory

employment" and whether he had "any issues that [the committee]

should be aware of," Heagney answered "no."

Heagney nevertheless argues that the jury could have

found that the statement at issue was false because it "conveyed

that Heagney wrongfully concealed the prior criminal charges

because he was obligated to disclose the charges to the City."

Heagney contends, in that respect, that the statement was false,

because "[t]he law is clear that Mr. Heagney was legally allowed

to withhold this information about the prior criminal charges he

was acquitted on[.]" See Mass. Gen. Laws ch. 151B, § 4(9).

We do not see, however, why Chapter 151B is relevant to

the question of whether the statement at issue was true or false.

- 14 -
The statement makes no assertion as to whether Heagney was

protected by Massachusetts law from being asked or required to

furnish information concerning the prior criminal case or whether

Heagney violated Massachusetts law by not doing so. The portion

of the statement at issue simply describes, accurately, his failure

to be forthcoming as to the existence of that case. Whether or

not, under Chapter 151B, Heagney's failure to furnish the protected

information could lawfully provide the basis for Wong's decision

to withdraw his nomination for the position thus does not bear on

whether he was in fact forthcoming in regard to that information.

Certainly the protection afforded to him by Chapter 151B did not

in any way bar Heagney from being forthcoming about the criminal

case against him if he wished to be.

This conclusion comports with our decision in Noonan v.

Staples, Inc., 556 F.3d at 27. There, we declined to construe

Massachusetts defamation law to permit "even an objectively true

statement [to] give rise to a libel claim if reasonable readers

might infer from it other, untrue characteristics of the plaintiff

or conduct by him." Id. (noting that "our survey of the relevant

Massachusetts law ha[d] uncovered no clear support for this

interpretation"). And, under the "much simpler" "truth-or-falsity

inquiry" that we continue to discern in Massachusetts law, we find

here that "everything said in [Wong's statement] was true . . . ."

Id. at 28 (citing Murphy v. Boston Herald, Inc., 865 N.E.2d 746,

- 15 -
754 (Mass. 2007); Jones v. Taibbi, 512 N.E.2d 260, 266 (Mass.

1987)).

In sum, the fact that the statement attributed to Wong

may help Heagney in bringing his Chapter 151B claim does nothing

to make that statement false rather than true. And yet that

statement must be false in order to sustain Heagney's defamation

claim. Accordingly, because we conclude that the statement at

issue was not false, we need not address whether the evidence

sufficed to permit a jury to find any of the other elements of the

tort of defamation nor Wong's arguments relating to damages. We

thus reverse the judgment on the defamation claim.

III.

We turn, then, to Fitchburg's challenges to the portion

of the judgment that concerns Heagney's claim against Fitchburg

for allegedly violating Chapter 151B. As we have noted, the jury

found for Heagney on that claim. And, although the jury awarded

him no compensatory damages, it did find that he was entitled to

a sizable punitive damages award. Fitchburg raises several

objections to the District Court's denial of its motion for

judgment as a matter of law and for a new trial or remittitur on

the Chapter 151B claim as well as to the award of punitive damages.

We consider each of these arguments in turn.

- 16 -
 A.

Fitchburg first challenges the sufficiency of the

evidence with respect to the Chapter 151B claim on the following

grounds. Fitchburg contends that the evidence sufficed to show

only that it obtained the information about the prior criminal

case against Heagney from a third party unprompted, that it did so

without either having prompted or directly asked Heagney to

disclose it, and that it then relied solely on the content of that

information to make its employment decision and not on the fact

that the information had not been disclosed by Heagney. Fitchburg

then goes on to contend, citing Bynes v. School Committee of

Boston, 581 N.E.2d 1019 (Mass. 1991), that, in such circumstances,

Chapter 151B does not apply. See id. at 1021-22.

But, Fitchburg makes no argument, that, if the evidence

sufficed to show that its decision not to hire Heagney was based

on Heagney's failure to disclose information regarding the

criminal case, rather than simply on the content of the information

itself, Chapter 151B does not apply because Fitchburg never asked

him to disclose the information and only obtained it, unprompted,

from a third party. Accordingly, if the evidence does suffice to

show that Fitchburg declined to move forward with Heagney's

candidacy because of the nondisclosure, rather than simply because

of the content of the information that he did not disclose, we

must reject this sufficiency challenge. And, reviewing "de novo,

- 17 -
[while] viewing the evidence in the light most favorable to the

verdict," Kennedy v. Town of Billerica, 617 F.3d 520, 527 (1st

Cir. 2010) (citing Jennings v. Jones, 587 F.3d 430, 438 (1st Cir.

2009); Visible Sys. Corp. v. Unisys Corp., 551 F.3d 65, 71 (1st

Cir. 2008)), we disagree with Fitchburg's characterization of what

the record sufficed to show.

As we have already explained, a jury could reasonably

find that Wong made the statement -- confirmed by Owen's in-court

testimony and published in the Worcester Telegram & Gazette --

that she withdrew Heagney's nomination because he "was not

forthcoming about . . . a court case on alleged assault and battery

and other charges when he was 21." That statement quite clearly

represents that Wong made that decision not because of the criminal

case against Heagney, but because Heagney was "not forthcoming"

about that case. Accordingly, we reject this aspect of Fitchburg's

sufficiency challenge.

B.

Fitchburg next challenges the District Court's charge to

the jury, over its objection, that this was a so-called "mixed

motive" case. In a Chapter 151B case of this type, the plaintiff

need not prove that the prohibited ground for the employment action

-- here, Heagney's failure to disclose the criminal case -- was

the sole basis for that action. Rather, the plaintiff need only

provide "strong" or "direct" evidence that it was one reason.

- 18 -
Haddad v. Wal-Mart Stores, Inc., 914 N.E.2d 59, 76 (Mass. 2009)

(internal quotation marks omitted). If the plaintiff makes that

showing, the burden then shifts to the defendant to prove that it

"would have taken the same action absent the unlawful motive" on

the basis of its other "legitimate reason[s], standing alone."

Id. at 77 (internal quotation marks omitted).

Fitchburg contends that the District Court erred in

issuing the mixed-motive instruction here because Heagney had not

put forth the requisite "strong" or "direct" evidence that

Fitchburg had relied on an illegitimate reason in refusing to hire

him. See id. Relatedly, Fitchburg contends that, insofar as the

mixed-motive instruction was warranted, Fitchburg was entitled to

judgment as a matter of law because no reasonable jury could find

that Fitchburg had failed to meet its burden to prove that it would

have refused to hire Heagney even apart from his nondisclosure of

the criminal case.

In reviewing whether the evidence suffices to prove

discrimination under Chapter 151B on a mixed-motive theory, we

must construe the evidence in the light most favorable to the

verdict. See id. at 64 n.5. And, we review de novo whether that

evidence, so construed, suffices. See Kennedy, 617 F.3d at 527.

Before turning directly to our consideration of

Fitchburg's challenge to the evidentiary basis for both the mixed-

motive instruction and the sufficiency of the evidence of liability

- 19 -
under that instruction, however, we need to make one point clear

at the outset about the focus of our inquiry. That point concerns

the timing of the employment decision by Fitchburg that Heagney

contends violated Chapter 151B.

Fitchburg contends that the employment decision at issue

concerns whether Fitchburg would have ultimately hired Heagney for

the position. But, Chapter 151B expressly applies to the decisions

of "an employer, himself or through his agent, . . . to exclude,

limit, or otherwise discriminate" against an applicant. Mass.

Gen. Laws ch. 151B, § 4(9) (emphasis added). And, Fitchburg

provides no authority for the doubtful proposition that Wong was

not acting in her official capacity as mayor of Fitchburg when she

decided not to nominate Heagney or that her official role in the

employment decision would have no bearing on whether Fitchburg

violated Chapter 151B.

To the contrary, the record supportably shows that

Wong's nomination of Heagney was a necessary step before the city

council would even consider a candidate. Moreover, Wong did in

fact withdraw Heagney's nomination to the city council, which ended

Heagney's candidacy for the position.

Thus, we conclude that, to determine whether the

evidence sufficed to warrant the mixed-motive instruction -- and,

relatedly, whether the evidence sufficed to support a finding of

liability under that instruction -- we must consider the portions

- 20 -
of the record that concern Wong's motivation for deciding to

withdraw Heagney's nomination. Cf. Price Waterhouse v. Hopkins,

490 U.S. 228, 252 (1989) ("An employer may not . . . prevail in a

mixed-motives case by offering a legitimate and sufficient reason

for its decision if that reason did not motivate it at the time of

the decision.").

The timing of Wong's decision to withdraw Heagney's

nomination, however, is itself a source of dispute between the

parties, and so we need to address that point up front as well.

The parties agree that Wong formally withdrew that nomination in

an email to the city council around 5 p.m. on March 18, 2014.

Fitchburg asserts that Wong had not yet definitely made up her

mind to withdraw her support from Heagney when she made that call.

But, Heagney argues, Wong had already made up her mind not to

nominate Heagney when she called him around 3:45 p.m. that

afternoon to ask him to withdraw his name from consideration.

We conclude that a jury could reasonably infer from the

evidence that Wong had already made up her mind not to nominate

Heagney at the point that she called him to ask him to withdraw

his name. We thus focus on what the record shows about what Wong

knew up until that time in assessing both whether the mixed-motive

instruction was warranted and whether a reasonable jury could have

found that Wong would not have taken the same action on the basis

of a motive other than the one prohibited by Chapter 151B.

- 21 -
 1.

We first address Fitchburg's contention that it was

entitled to judgment as a matter of law because Heagney failed to

meet his initial burden to provide "either 'direct or strong'

evidence" that his failure to disclose the prior criminal case did

motivate Wong's decision not to nominate him. Haddad, 914 N.E.2d

at 77 (quoting Wynn & Wynn, P.C. v. Massachusetts Comm'n Against

Discrimination, 729 N.E.2d 1068, 1078 (Mass. 2000), overruled on

other grounds by Stonehill Coll. v. Massachusetts Comm'n Against

Discrimination, 808 N.E.2d 205 (Mass. 2004)). "Direct evidence in

this context is evidence that if believed, results in an

inescapable, or at least highly probable, inference that a

forbidden bias was present in the workplace." Wynn & Wynn, 729

N.E.2d at 1078 (internal quotation marks omitted).

"[I]n determining whether a 'mixed-motive' claim

survives a motion for judgment as a matter of law, a [district]

court must determine whether the plaintiff has put forth sufficient

evidence for a jury to conclude that it is more likely than not

that the [illegitimate ground] was 'a motivating factor' for the

defendant's employment decision." Resare v. Raytheon Co., 981

F.2d 32, 40 (1st Cir. 1992). Reviewing the District Court's

determination de novo and reading "the evidence, taking all

inferences in favor of [the non-moving party]," Burton v. Town of

- 22 -
Littleton, 426 F.3d 9, 14 (1st Cir. 2005), we conclude that Heagney

met his initial burden.

The most "direct" evidence is the statement attributed

to Wong in the Worcester Telegram & Gazette that Owen testified

that Wong made to her. That statement asserts that Wong withdrew

Heagney's nomination because Heagney "was not forthcoming about .

. . a court case on alleged assault and battery and other charges

when he was 21."

That statement, if attributed to Wong and credited, was

certainly not a "[s]tray remark[] in the workplace," "[a]

statement[] by [someone] without the power to make employment

decisions," or a "statement[] made by [a] decision maker[]

unrelated to the decisional process itself." Wynn & Wynn, 729

N.E.2d at 1078. The record, moreover, also contains "strong"

circumstantial evidence that Wong was motivated by Heagney's

failure to disclose the criminal case. The jury heard testimony

that Wong was prepared to send Heagney's nomination to the city

council up until the moment that she received the anonymous letter

on March 17, 2014 informing her, among other things, that Heagney

had been charged with pistol whipping an individual. By her own

admission, however, Wong decided to withdraw her support for

Heagney before she "knew whether the allegations about the criminal

charges mentioned in the letter were true."

- 23 -
 "[A] reasonable jury could" thus infer that it was

Heagney's failure to disclose the criminal case that motivated

Wong's decision to withdraw his nomination. Burton, 426 F.3d at

14. Accordingly, we see no reason to reverse the District Court's

determination that Heagney met his burden to "first . . . present

a convincing case that there [wa]s an illegitimate motive present."

Haddad, 914 N.E.2d at 78.

2.

We, turn, then to the question whether Fitchburg carried

its burden to show that, "at the time of its decision to exclude

. . . Heagney as an applicant for Police Chief, [it] had a lawful,

nondiscriminatory reason to do so, and that this lawful reason,

standing alone, would have caused it to make the same decision."

As to that question, "once the plaintiff has met her initial burden

of persuasion on the presence of an illegitimate motive, the

decision whether the employer has met its burden of proving that

another legitimate, nondiscriminatory reason actually led it to

make the decision, is normally for the jury or other finder of

fact to decide." Wynn & Wynn, 729 N.E.2d at 1081. In fact, we

may overturn the jury's verdict only "when the evidence points so

strongly and overwhelmingly in favor of the moving party that no

reasonable jury could have returned a verdict adverse to that

party." Monteagudo v. Asociación de Empleados del Estado Libre

Asociado de P.R., 554 F.3d 164, 170 (1st Cir. 2009). And, in

- 24 -
reviewing the sufficiency of the evidence on that score, "we may

not take into consideration the credibility of witnesses, resolve

conflicts in testimony, or in any other manner weigh the evidence."

Álvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152

F.3d 17, 23 (1st Cir. 1998).

Fitchburg points to two non-discriminatory reasons that,

it contends, the record indisputably shows would have been the

basis -- even setting aside Heagney's failure to disclose the prior

criminal case -- for its decision not to go forward with Heagney's

candidacy. But, we are not persuaded that a reasonable jury would

have been required to find that Wong would have withdrawn Heagney's

nomination based on these reasons alone.

First, Fitchburg points to Heagney's omissions regarding

his prior employment history. Fitchburg did provide some evidence

that Heagney's omissions in this regard in fact motivated Wong's

decision not to nominate him. For example, the record supportably

shows that, by the time that she made up her mind not to nominate

Heagney, Wong had learned the following. The record supportably

shows that Wong had learned that Heagney had not disclosed on his

résumé or his application materials that he had worked at the

Falmouth Police Department from 1990 to 1993, despite representing

on those materials that he had worked as a patrolman in the

Franklin Police Department from 1987 to 1994. And, the record

supportably shows that Wong had learned that Heagney had worked at

- 25 -
the Attleboro Police Department from 1985 to 1987, even though

that information had not been provided on Heagney's résumé or his

application materials. Wong also testified that she decided to

withdraw her support on the basis of those omissions because she

had concluded that Heagney would not be successful before the city

council given that "the only information [she] could give the

council was that what [she] had given them, his résumé, was a lie."

But, Heagney testified that, although he had not

included his prior work at the Attleboro and Falmouth Police

Departments on his résumé or application materials, he had told

Wong and other search committee members during a phone interview

conducted on March 3 and during an in-person interview conducted

on March 8 about his experience working at those departments. The

record also supportably shows that Wong was ready to nominate

Heagney after the latter interview.

Thus, a jury could reasonably find on this record that

what changed between March 8 and March 18 was Wong's receipt of

the anonymous letter. A jury could reasonably have credited

Heagney's testimony that, by the time that Wong's office had

received the letter on March 17, he had already informed Wong of

his previous employment at the Attleboro and Falmouth Police

Departments. If a jury credited that testimony, then it could

reasonably infer that Wong was already aware of that previous

employment and its omission from Heagney's résumé and application

- 26 -
materials when she chose him as the finalist. Accordingly, a jury

could reasonably find, on this record, that Wong would not have

withdrawn Heagney's nomination when she did based only on his

failure to include this employment on his application materials.

For this reason, the record does not support Fitchburg's contention

that no reasonable jury could find that Wong's motives were mixed.

Second, Fitchburg argues that the record indisputably

shows that Wong would have decided not to nominate Heagney solely

because Heagney was "combative, insubordinate, and rude" during

her call with him where she asked him to withdraw. But, as we

have explained, we must conclude, after reading the evidence in

the light most favorable to the verdict, that a reasonable jury

could have found that Wong had already made up her mind not to

nominate Heagney before she got on the phone with him.

Accordingly, this line of argument also lacks merit.

C.

Fitchburg next challenges the District Court's "after-

acquired evidence" instruction to the jury, which stated, in

relevant part:

[E]vidence that . . . sometime after the city excluded
Mr. Heagney as an applicant, the city acquired evidence
that Mr. Heagney was subject to administrative actions
that may or may not have constituted discipline while
serving as a police officer . . . is so-called after-
acquired evidence, and its purpose is limited. . . .
[I]t is irrelevant to the question of whether defendants
are liable for violating General Law Chapter 151B.
Rather, the possible relevance would be to limit or

- 27 -
 exclude damages that you might find that Mr. Heagney
suffered as a result of any violation.

Based on this instruction, the jury found that "the administrative

action taken against Scott L. Heagney was of such severity that,

had . . . Fitchburg known of this administrative action in March

2014, it would have in fact refused to hire Scott L. Heagney on

those grounds alone." The jury therefore awarded Heagney no

compensatory damages on his Chapter 151B claim.

Fitchburg contends that the District Court's

"characterization of [the] files from other departments and the

ATF as 'After Acquired Evidence'" and the resulting exclusion of

evidence relating to those files were so "highly prejudicial to

the City" that it is entitled to a new trial.3 We review the

District Court's "denial of a motion for a new trial for abuse of

discretion." Teixeira v. Town of Coventry by & through Przybyla,

882 F.3d 13, 16 (1st Cir. 2018) (citing Ira Green, Inc. v. Military

Sales & Serv. Co., 775 F.3d 12, 18 (1st Cir. 2014)). "An abuse of

discretion will be found whenever a reviewed ruling is based on an

error of law." Ira Green, 775 F.3d at 18. Because Fitchburg

3 Fitchburg appears to have argued below that the jury's
finding that Fitchburg would not have hired Heagney had it known
of the administrative actions against him -- which it contends the
jury should have been allowed to consider in determining liability
-- means that the "Court should enter a judgement for the City on
the [Chapter] 151B claim." But, Fitchburg seems to have abandoned
that argument on appeal, arguing only that the alleged error in
issuing the "After-Acquired Evidence" instruction means only that
"[t]he judgment against the City on this claim must be vacated."

- 28 -
raises a "question[] as to whether [the] jury instruction[]

capture[s] the essence of the applicable law," we "afford de novo

review." Teixeira, 882 F.3d at 16 (quoting DeCaro v. Hasbro, Inc.,

580 F.3d 55, 61 (1st Cir. 2009)).

We note that Massachusetts law has not yet expressly

"adopted, or declined to adopt, th[e] [after-acquired evidence]

doctrine." EventMonitor, Inc. v. Leness, 44 N.E.3d 848, 851 (Mass.

2016) (citing Flesner v. Technical Comm'ns Corp., 575 N.E.2d 1107,

1113-14 (Mass. 1991); Prozinski v. Ne. Real Estate Servs., LLC,

797 N.E.2d 415, 425 (Mass. App. Ct. 2003)). But, we need not

decide whether Massachusetts law has "implicitly adopted" the

doctrine. Prozinski, 797 N.E.2d at 425. Fitchburg challenges the

instruction only on the ground that it erroneously stated that the

jury could consider the after-acquired evidence solely for the

limited purpose of assessing damages and not also for the purpose

of assessing liability.

Specifically, Fitchburg concedes that there is much

precedent in "wrongful discharge" cases limiting the consideration

of after-acquired evidence only to the assessment of damages and

not liability. See, e.g., Nieves-Villanueva v. Soto-Rivera, 133

F.3d 92, 101 (1st Cir. 1997) ("[A]fter-acquired evidence is

normally admissible only as to remedy, and not on liability.");

Kapche v. Holder, 677 F.3d 454, 464 (D.C. Cir. 2012) ("[E]vidence

of the plaintiff's wrongdoing acquired subsequent to an employer's

- 29 -
discriminatory hiring decision does not negate liability.");

Serrano v. Cintas Corp., 699 F.3d 884, 903 (6th Cir. 2012)

("[A]fter-the-fact evidence of [employee wrongdoing] should be

considered only in determining the amount of damages due to the

individual and not in the initial liability stage"). But,

Fitchburg contends, this limitation on the jury's consideration of

after-acquired evidence has no application to "failure to hire"

cases like this one.

Fitchburg, however, has not pointed to a single

precedent -- from any court, let alone one from Massachusetts --

which has permitted an employer to rely on after-acquired evidence

to defeat the plaintiff's showing of liability for discrimination,

whether the discrimination motivates a "failure to hire" or a

"wrongful discharge." To the contrary, precedent seems to bar an

employer from doing so. See, e.g., Price Waterhouse, 490 U.S. at

252 ("An employer may not . . . prevail in a mixed-motives case by

offering a legitimate and sufficient reason for its decision if

that reason did not motivate it at the time of the decision."

(emphasis added)); McKennon v. Nashville Banner Pub. Co., 513 U.S.

352, 360 (1995) ("The employer could not have been motivated by

knowledge it did not have [at the time of the decision] and it

cannot now claim that the employee was fired for the

nondiscriminatory reason."). Therefore, we conclude that the

District Court did not err in rejecting Fitchburg's contention

- 30 -
that its instruction to the jury not to consider the after-acquired

evidence in determining liability under Chapter 151B requires a

new trial.

D.

We come, then, to Fitchburg's arguments that the jury's

award of punitive damages cannot be sustained. First, Fitchburg

contends that the evidence was insufficient to support any punitive

damages award. In the alternative, Fitchburg contends that the

jury's award of punitive damages was unreasonable.

Chapter 151B authorizes the award of punitive damages,

see Mass. Gen. Laws 151B, § 9; Int'l Fid. Ins. Co. v. Wilson, 443

N.E.2d 1308, 1317 n.20 (Mass. 1983) ("Under Massachusetts law,

punitive damages may be awarded only by statute."), based on

"common law and constitutional principles," Dartt v. Browning-

Ferris Indus., Inc., 691 N.E.2d 526, 536 (Mass. 1998). And, under

Massachusetts law, punitive damages are only warranted for

"intentional and outrageous conduct." Haddad, 914 N.E.2d at 63

(emphasis added).

The Supreme Judicial Court ("SJC") has explained,

moreover, that "[d]iscrimination [under Chapter 151B] necessarily

involves an intentional act." Id. at 75. Therefore, "[t]o sustain

an award of punitive damages under [Chapter 151B], a finding of

intentional discrimination alone is not sufficient." Id. Instead,

the plaintiff must make an additional showing that "the defendant's

- 31 -
conduct is [so] outrageous or egregious. . . . that it justifies

punishment and not merely compensation." Id. In other words,

"the fact finder should determine that the award is needed to deter

such behavior toward the class of which plaintiff is a member, or

that the defendant's behavior is so egregious that it warrants

public condemnation and punishment." Id.

Our review of whether the evidence suffices to permit an

award of punitive damages is de novo. See Intercity Maint. Co. v.

Local 254, Serv. Employees Int'l Union AFL-CIO, 241 F.3d 82, 86

(1st Cir. 2001). And, in performing that review, we must be

mindful that "[a]n award of punitive damages . . . should be

sustained if it could 'reasonably have [been] arrived at . . .

from any . . . evidence . . . presented.'" Haddad, 914 N.E.2d at

72 (quoting Dartt, 691 N.E.2d at 536) (alteration in original).

1.

In challenging Fitchburg's contention that there was

insufficient evidence to support the punitive damages award,

Heagney first contends that the record supportably showed that

Wong, a public official, knowingly violated Chapter 151B. Heagney

further contends that this evidence of Wong's knowledge alone

permitted a reasonable jury to find that her conduct was

"outrageous or egregious" enough to warrant punitive damages. See

Haddad, 914 N.E.2d at 75. Fitchburg counters that, under Haddad,

"[a]n award of punitive damages requires a heightened finding

- 32 -
beyond mere liability and also beyond a knowing violation of the

statute." Id. (emphasis added). But, we need not decide this

dispute over whether, under Haddad, such a showing of a public

official's knowledge that her conduct violated Chapter 151B can

alone suffice to sustain an award of punitive damages. And that

is because we conclude that Heagney did not make the requisite

showing of knowledge here in any event.4

To show that the evidence does suffice to support a

finding that Wong knew that her actions violated Chapter 151B,

such that punitive damages may be awarded against Fitchburg under

Haddad, Heagney points to testimony from Unsworth and Stephens.

They testified that they were aware that Fitchburg could not

4 Haddad does note that prior Massachusetts "cases ha[d] held
that . . . a defendant know[ing] that it has acted unlawfully by
interfering with the legally protected rights of the plaintiff .
. . could be sufficient to support an award of punitive damages."
Id. at 73 (citing Clifton v. Massachusetts Bay Transp. Auth., 839
N.E.2d 314, 323-24 (Mass. 2005); Goodrow v. Lane Bryant, Inc., 732
N.E.2d 289, 299 (Mass. 2000); Dartt, 691 N.E.2d at 536-37)
(emphasis added). Although acknowledging that "the defendant['s]
act[ing] with the knowledge that it was interfering with the
plaintiff's right to be free of unlawful discrimination . . . has
been . . . one circumstance warranting an award of punitive
damages," Haddad stated that "an award of punitive damages has
[also] been allowed" where "the defendant's act was otherwise
outrageous, egregious, evil in motive, or undertaken with reckless
indifference to the rights of others." Id. at 73 (emphasis added).
Haddad then announced a "new standard describing the circumstances
in which punitive damages may be awarded." Id. at 75 (emphasis
added). That new standard, however, does not appear to address a
defendant's deliberate or knowing violation of Chapter 151B, and
we have found no post-Haddad case sustaining an award of punitive
damages on such a basis alone.

- 33 -
lawfully ask candidates about a criminal case not resulting in a

conviction and that it could not lawfully exclude a candidate

because of the candidate's failure to furnish that information.

Heagney also points to a handbook provided by a law firm to

Fitchburg on "[b]asic considerations in hiring process," which

instructed that "[e]mployers must be careful how they inquire about

an applicant's criminal history" and that employers "may not

inquire about arrests not resulting in conviction."

But, none of those materials purport to address a

situation in which, as was the case here, an employer does not ask

an applicant directly about a prior criminal case but learns of

it, independently and without prompting the applicant, from a third

party. Nor is this case one in which the evidence is such that a

reasonable jury "could infer" from the employer's general

practices -- unlike, for example, from an employer's general

policies prohibiting racial or gender discrimination -- that the

defendant "was aware that [the] discrimination was not legally

permitted." Haddad, 914 N.E.2d at 73.

There is also "scant case law" in Massachusetts

interpreting the Chapter 151B provision at issue, let alone any

case law applying that statute to facts remotely like those we

have here. In fact, there is some case law that construes the

Chapter 151B provision quite narrowly. See, e.g., Bynes, 581

N.E.2d at 1021 (noting that "the [Massachusetts] Legislature's

- 34 -
intent" in enacting Chapter 151B, § 4(9) "was merely to protect

employees from such requests from their employers and not to

proscribe employers from seeking such information elsewhere");

Ryan v. Chief Admin. Justice of Trial Court, 779 N.E.2d 1005

(Table), 2002 WL 31770115 at *3 (Mass. App. Ct. 2002) (unpublished)

(holding that an employer did not violate Chapter 151B § 4(9) where

the employer "did not request the information from the plaintiff");

McGowan v. Stoneham Police Dep't, 6 M.D.L.R. 1639, 1648 (1984)

(construing the protection afforded by § 4(9) to be "quite narrow

in scope" and "directed primarily at the preemployment inquiry,

particularly the application form" (internal quotation marks

omitted)).

We have here, then, a high degree of "uncertainty of the

state of the law in Massachusetts" regarding the conduct at issue.

Goodrow, 732 N.E.2d at 299. We also have a paucity of evidence

demonstrating knowledge by either Wong or Fitchburg that this

particular conduct was unlawful under Chapter 151B. We thus

conclude that no reasonable jury could find that Wong

"intentionally or willfully violated Massachusetts law," id., such

that, under Haddad, for that reason alone the conduct at issue was

"outrageous or egregious" enough to warrant punitive damages,

Haddad, 914 N.E.2d at 75.

- 35 -
 2.

Heagney separately responds to Fitchburg's contention

that the record does not reflect the "additional level of

egregiousness necessary to support an award of punitive damages,"

Haddad, 914 N.E.2d at 73, by pointing to the portion of the record

that purportedly shows that Wong concealed her discriminatory

conduct. Specifically, Heagney contends, the record shows that

Wong lied at trial by denying that she had read the anonymous

letter, that she had withdrawn Heagney's nomination because of his

failure to disclose the criminal case, and that she had told Owen

the same.

Under Haddad's "definition of outrageous conduct

appropriate specifically for discrimination claims . . . under

[Chapter] 151B," id. at 75 (emphasis added), a jury is to consider:

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.

Id. We do not see, though, how the record suffices to support a

finding that the first four of these factors had been satisfied.

Nor do we see what basis there is in Massachusetts law for finding

- 36 -
that the evidence pertaining to the last of these factors --

concerning concealment -- could alone suffice to support an award

of punitive damages in this case. See generally Kiely v. Teradyne,

Inc., 13 N.E.3d 615, 620 (Mass. App. Ct. 2014) ("reject[ing]

[plaintiff's] argument that a showing on a single Haddad factor is

sufficient to support a punitive damages award").

The jury found that Heagney suffered no actual harm from

the Chapter 151B violation in that it awarded no compensatory

damages to Heagney. See id. at 621; cf. Labonte v. Hutchins &

Wheeler, 678 N.E.2d 853, 862 (Mass. 1997) ("scrutiniz[ing] the

relationship between actual damages and the award of punitive

damages"). And, although we recognize that Massachusetts law

imposes no requirement "that punitive damages may only be awarded

if there is an award of compensatory damages," Bain v. City of

Springfield, 678 N.E.2d 155, 161 (Mass. 1997), the jury's finding

of no actual harm to Heagney counsels, at least to some extent,

against the imposition of punitive damages under Haddad, see

Haddad, 914 N.E.2d at 75; Kiely, 13 N.E.3d at 621.

That is especially so here. There was no basis for a

reasonable jury to find that the defendant "was aware that the

discriminatory conduct would likely cause serious harm, or

recklessly disregarded the likelihood that serious harm would

arise," Haddad, 914 N.E.2d at 75, as there has been in other cases

in which the second Haddad factor has been found to have been met.

- 37 -
See, e.g., Gyulakian v. Lexus of Watertown, Inc., 56 N.E.3d 785,

799 (Mass. 2016) (finding the second Haddad factor met where the

defendant-employer was aware that the plaintiff had made multiple

sexual harassment complaints regarding an employee and neglected

to initiate an investigation despite the requirement in its sexual

harassment policy that it do so); Kiely, 13 N.E.3d at 621 (finding

the second Haddad factor met where the employer did not rehire the

plaintiff despite being aware that the plaintiff had repeatedly

inquired about open positions at least three times and the

plaintiff had spent her entire career at the employer and was

grandfathered into generous benefits); Dimanche v. Massachusetts

Bay Transportation Auth., 893 F.3d 1, 10 (1st Cir. 2018) (noting

the employer's failure to act despite "numerous instances of notice

to [defendant] of racially-based and racially-demeaning comments

made to [the plaintiff]").5

Nor could a jury have reasonably concluded that the

defendants engaged in 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)."6 Haddad,

5 There was thus necessarily also no basis for a reasonable
jury to find that "the defendant's conduct after learning that the
initial conduct would likely cause harm" counseled in favor of
punitive damages. Haddad, 914 N.E.2d at 75.
6 We note that the District Court's instruction described the
first Haddad factor only as "[w]hether the city's conduct was
conscious or purposeful" instead of the full formulation. Heagney

- 38 -
914 N.E.2d at 75 (emphasis added). As the defendant points out,

"this case involved a unique set of circumstances[.]" The mayor

learned that the candidate that she had chosen to nominate to be

police chief had previously been the subject of criminal and

internal investigations for engaging in domestic violence. She

also learned that he had not disclosed that information during an

extensive vetting process for this leadership position in law

enforcement. That the mayor decided to withdraw the candidate's

nomination in that specific context does not indicate any

"purposeful effort" by Fitchburg -- through Wong -- to demean the

class that this part of Chapter 151B protects more generally. Id.

And, thus, far from "need[ing] [punitive damages] to deter such

behavior toward the class of which plaintiff is a member," id., we

agree with Fitchburg that such conduct "is unlikely to be

repeated."

Finally, we cannot conclude that evidence of Wong's

purported "attempted cover-up" of the statutory violation by

allegedly lying at trial constitutes "concealment" of a degree

"warrant[ing] public condemnation and punishment." Id. at 75. To

be sure, Heagney points to some precedent supporting the notion

that a jury may award punitive damages on the basis of a public

does not make any argument, however, that evidence that Fitchburg's
conduct was conscious or purposeful (as opposed to its violation
of Chapter 151B) supports the award of punitive damages, and
Fitchburg does not challenge the instruction.

- 39 -
official's conduct at trial. See, e.g., Hall v. Ochs, 817 F.2d

920, 927 (1st Cir. 1987) (upholding the jury's award of punitive

damages under Massachusetts law in part because of the police

officers' conduct at trial); Ciccarelli v. Sch. Dep't of Lowell,

877 N.E.2d 609, 618 (Mass. App. Ct. 2007) (upholding punitive

damages award in part because of a superintendent's false testimony

at trial). But this case is readily distinguished from those

precedents.

In Hall, the defendants, four police officers found to

have engaged in racially motivated false arrests, argued at trial

that the plaintiffs' testimony against them was deliberately false

and provided a likely fabricated police report to support their

allegations. See Hall, 817 F.2d at 927-28. "On this evidence, a

factfinder might [have] infer[red] that the stark clash could not

have resulted from innocent misrecollection, and that its

intentional quality intensified any need the jury may have found

for punishment and deterrence." Id. at 928.

In Ciccarelli, moreover, the defendant was a school

superintendent who was found to have retaliated against a teacher

who was about to testify against the city in a separate hearing by

firing her. At the trial, the superintendent gave false testimony

that she did not know about the teacher's prospective testimony.

Ciccarelli, 877 N.E.2d at 618. But, that evidence was directly

contradicted by affirmative evidence of the superintendent's

- 40 -
presence at the hearing where the teacher testified. Id.

Moreover, Ciccarelli concluded that the evidence sufficed to show

that the superintendent later actively fabricated an excuse that

she fired the teacher because the teacher was not on track to

complete coursework toward advanced certification. Id. And, the

record further showed that the superintendent had offered to

reinstate the teacher the day before the teacher's prospective

testimony in the hearing, which, Ciccarelli concluded, "the jury

could therefore infer . . . was meant to influence that testimony."

Id. Ciccarelli thus determined from the totality of this evidence

that "such behavior by a high-ranking public official in charge of

education of a city's children was outrageous" enough to "place

the issue of punitive damages before the jury." Id. at 617-18.

Here, by contrast, Wong's account at trial was that she

decided not to nominate Heagney because he had lied on his résumé

and application materials regarding prior employment. And, the

jury found that Wong's statement that Heagney "was not forthcoming

on his résumé about his work experience" was true. Thus, unlike

in Hall, 817 F.2d at 928, where the police officers fabricated a

police report, or in Ciccarelli, 877 N.E.2d at 618, where the

superintendent manufactured an excuse in order to fire the teacher,

Wong did not actively fabricate an allegation of misconduct to use

as an excuse for her decision not to nominate Heagney.

- 41 -
 Nor is the other testimony on which Heagney relies "so

egregious as to warrant the condemnation and enhanced deterrence

that underlie the imposition of punitive damages." Smith v. Bell

Atl., 829 N.E.2d 228, 245 (Mass. App. Ct. 2005). As to Wong's

answer "no" when asked if she had read the anonymous letter, Wong

immediately qualified her answer by stating that she "didn't really

read the letter," but instead "perused it and saw that it was

something related to Scott Heagney, and . . . forwarded it to Mr.

Stephens to be part of his file." Similarly, Wong's answer "no"

when asked if she told Owen that she "could no longer support Mr.

Heagney because he had not disclosed the early criminal charge"

was immediately qualified by a statement "that is what [Owen] wrote

without quotes."

Of course, the jury's finding for Heagney on the Chapter

151B claim suggests that it did not credit some of Wong's testimony

concerning her motivation for withdrawing his nomination. But,

"the fact that the jury drew an inference against [Wong] does not

equate with positive evidence that [s]he lied or . . . orchestrated

a cover up." Kiely, 13 N.E.2d at 622. Thus, the most that Heagney

has offered is an "assert[ion] that the jury's apparent disbelief

of [Wong's] testimony . . . is also proof that [Wong] attempted to

cover up [her] wrongdoing." Id. at 621-22. But, as Kiely shows,

that alone is not enough to support punitive damages. See id. at

620.

- 42 -
 We thus do not see how the record reflects conduct so

"outrageous or egregious" so as to require punitive damages in

order to "deter such behavior" or to express "public condemnation

and punishment[.]"7 Haddad, 914 N.E.2d at 75. Because we conclude

that there was insufficient evidence to support the award of

punitive damages under Haddad, we need not reach whether the award

was unreasonable or excessive. Accordingly, the award of punitive

damages is reversed.

IV.

For the foregoing reasons, we reverse the judgment on

the defamation claim, affirm the judgment on the Chapter 151B

claim, and reverse the award of punitive damages on the Chapter

151B claim. Each party shall bear its own costs.

7 Wong was an official "charged with the public duty to enforce
the law equally," Dalrymple v. Winthrop, 740 N.E.2d 204, 211 (Mass.
App. Ct. 2000), and that fact may give her actions "a heightened
degree of reprehensibility," Clifton, 839 N.E.2d at 323; see also
Kiely, 13 N.E.3d at 622 n.6 (noting that this "factor" was "absent
from the case at bar"). But, Heagney makes no argument -- nor
have we found any post-Haddad authority suggesting -- that Wong's
status as a public official alone is sufficient to sustain a jury's
award of punitive damages for a Chapter 151B violation by the city
that employs that official in a case involving facts like these.
Compare with Clifton, 839 N.E.2d at 316 (upholding award of
punitive damages against city transit authority where "both
supervisors and coworkers" engaged in extensive racial
discrimination against a plaintiff "throughout nine years of his
employment").

- 43 -