BERESFORD v. CHARLES RIVER AUTOMOTIVE LLC (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following the termination of his employment with defendant Charles River Automotive, LLC (Charles River) by Charles River's general manager, defendant Mark Gentile, the plaintiff, James Beresford, brought an employment discrimination claim against both Charles River and Gentile, pursuant to G. L. c. 151B, § 4.³ After a trial in the Superior Court, a jury returned a verdict for Beresford against both Charles River and Gentile. The defendants appeal from the judgment, as well as from the trial judge's orders denying their motions for judgment notwithstanding the verdict, a new trial or remittitur, and to alter or amend the judgment. With the exception of punitive damages, we affirm.⁴

I. Facts. We summarize the trial evidence in the light most favorable to Beresford, given the jury's verdict in his favor, see Quinn v. Mar-Lees Seafood, LLC, 69 Mass. App. Ct. 688, 689 (2007), reserving certain facts for later discussion. In 1988, James Beresford began working as a mechanic for YCN Transportation (YCN), a school bus fleet garage in Norwood, Massachusetts, owned by “Tim” Armour and his brothers.

In 2011, the Armours sold YCN to another company, which, two years later, sold the business to Charles River. Following the sale to Charles River, Gentile, who already managed three other garages for Charles River, became the general manager of the Norwood garage. Beresford, who was fifty-eight years old at the time, assumed the role of Charles River's maintenance facility lead, reporting to Gentile.⁵

Gentile described Beresford as being resistant to changes in garage policy and practices, and to Gentile's supervision; although, generally, to the extent that Gentile put Beresford on notice of his dissatisfaction with Beresford's job performance, Beresford took steps to remedy the problems that Gentile identified. Beresford, on the other hand, testified that Gentile was mischaracterizing his conduct.

Notably, despite testifying that his concerns about Beresford's performance escalated over the course of their eleven-month working relationship, Gentile did not at any point initiate a performance plan for, or impose discipline on, Beresford.

There was ample evidence from which a reasonable jury could have found that Gentile's antipathy toward him was, in fact, based on Beresford's age, not on the performance concerns Gentile voiced at trial. Beresford's claim of age discrimination focused on two specific comments that he testified that Gentile made to him. First, in the fall of 2013, when Beresford requested that information be printed from the computer using a larger font, Gentile responded with, “You old timers gotta get your eyes checked more often.” Later, in early 2014, when Beresford's replacement boots were missing from the lot ordered for the garage's employees, Gentile responded to Beresford's inquiry about the boots by saying, “What is it with you old timers? What do you have, special feet?” Additionally, according to Beresford, Gentile's age-related comments were not directed only at him. When Beresford raised concerns about the fluctuating quality of the work done by another mechanic at the garage, “Shorty” Poindexter, Gentile responded by asking, “What, is he too old?”⁶ In response to Beresford's explanation that his concern was with Poindexter's performance, and not his age, Gentile instructed Beresford to provide him privately with his notes on Poindexter, saying, “This company has a way of --,” leaving the sentence unfinished. Gentile then indicated that he would “take care of it.” In addition, according to Beresford, Gentile preferred younger and less experienced employees over him.

Matters between Gentile and Beresford came to a head in July 2014, during a meeting Armour called with Gentile to discuss certain issues with the company's fleet vehicles. Beresford testified that when he became aware of the meeting, which was scheduled for July 10, 2014, he asked to be included so that he could clarify his role in the shop. According to Gentile, however, before the meeting, another employee reported that Beresford had told him and other garage employees that he planned to use the meeting to tell Gentile, in effect, that Beresford, and not Gentile, was in charge of the garage. In any event, in anticipation of the meeting and without initiating any other disciplinary steps,⁷ Gentile sought and obtained management authority to terminate Beresford. When Beresford arrived at the meeting, Gentile provided him with a termination letter and fired him, effective immediately. Beresford was sixty-one years old when he was fired. Within two weeks of Beresford's termination, Gentile assigned Beresford's duties to younger employees.

II. Background. Beresford brought suit against Charles River and Gentile in the Superior Court. The case was tried before a jury on a single count of age discrimination pursuant to G. L. c. 151B; the jury returned a verdict in favor of Beresford and against the defendants in the total amount of $1,205,559.76.⁸ The defendants moved for judgment notwithstanding the verdict, see Mass. R. Civ. P. 50 (b), as amended, 428 Mass. 1402 (1998); for a new trial or remittitur, see Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974); and to alter or amend the judgment. See Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974). In a thoughtful and thorough memorandum, the trial judge denied the defendants' motions for judgment notwithstanding the verdict, as well as their motions for new trial or remittitur. The judge allowed the defendants' motion to reduce the judgment to reflect a stipulated amount of unemployment benefits Beresford received, but, after determining that a posttermination payment Beresford received from Armour was “collateral source income,” the judge denied the defendants' motion to reduce the judgment by the amount of that payment. Judgment entered against the defendants on June 11, 2018, and this appeal followed.

III. Discussion.⁹ A. Judgment notwithstanding the verdict. 1. Liability. The defendants argue that Beresford failed to present sufficient evidence to prove that his termination was a consequence of age discrimination and that, accordingly, the judge erred in denying their motion for judgment notwithstanding the verdict (JNOV) as to liability and punitive damages. We conclude that the evidence was sufficient to support the imposition of liability and compensatory damages and, on those issues, affirm the judge's order denying the defendants' motion for JNOV.

“[N]ullifying a jury verdict is a matter for the utmost judicial circumspection.” Cahaly v. Benistar Prop. Exch. Trust Co., 451 Mass. 343, 350 (2008). The standard of review is generous to the party bringing suit -- “[w]e ask whether, construing the evidence most favorably to the plaintiff, and ‘without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could have returned a verdict for the plaintiff.’ ” Id., quoting Phelan v. May Dep't Stores Co., 443 Mass. 52, 55 (2004). “The verdict must be sustained if the plaintiff offered any evidence from which the jury could have reasonably reached their verdict.” Zaniboni v. Massachusetts Trial Court, 81 Mass. App. Ct. 216, 217-218 (2012).

General Laws c. 151B, § 4, prohibits a private employer from discriminating in its employment practices based on any of a variety of impermissible bases, including discrimination based on an employee's age. See G. L. c. 151B, § 4 (1B). To prevail on a claim under that section, “an employee ․ must demonstrate four things: that he or she is a member of a protected class[¹⁰ ]; that he or she was subject to an adverse employment action; that the employer bore ‘discriminatory animus’ in taking that action; and that that animus was the reason for the action (causation).” Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016). The employee may, and often must, rely on “indirect or circumstantial evidence [of discriminatory animus and causation].” Id. at 680-681, quoting Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39-40 (2005).

In employment discrimination cases, “we apply the three-stage, burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 ․ (1973) (McDonnell Douglas).” Yee v. Massachusetts State Police, 481 Mass. 290, 294 (2019). At the first stage, the plaintiff must make a prima facie showing that the plaintiff was a member of a protected class, had performed his job at an acceptable level, and was terminated. See Bulwer, 473 Mass. at 681; Knight v. Avon Products, Inc., 438 Mass. 413, 420-421 (2003); Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). Additionally, the plaintiff must show that his job responsibilities were assumed by a younger person. See Knight, supra at 421. The plaintiff's burden “is not onerous.” Sullivan, 444 Mass. at 40. At the second stage, the employer can rebut the presumption of discrimination, created by the plaintiff's prima facie showing, “by articulating ‘a lawful reason or reasons for its employment decision [and] produc[ing] credible evidence to show that the reason or reasons advanced were the real reasons.’ ” Zaniboni, 81 Mass. App. Ct. at 220, quoting Blare, supra at 442. If the defendant is able to meet its burden of production, we continue to the third stage, which requires that the employee produce evidence that “the employer's articulated justification [for the termination] is not true but a pretext.” Bulwer, supra, quoting Blare, supra at 443.

Here, Beresford made the required prima facie case by establishing that he was older than forty at the relevant times, that he had worked satisfactorily for the garage under prior owners for twenty-five years, that he was fired, and that his duties were assumed by younger workers.

The burden then shifted to the defendants to “rebut the presumption created by [Beresford's] prima facie case by articulating a legitimate, nondiscriminatory reason for [their] [employment] decision.” Bulwer, 473 Mass. at 681, quoting Blare, 419 Mass. at 443. Gentile testified that the defendants terminated Beresford for reasons relating to his poor job performance and insubordinate attitude. This evidence was sufficient to satisfy the defendants' burden of production at this stage.

Ultimately, however, when the burden of production shifted back to Beresford at the third stage of the test, Beresford presented evidence that the defendants' stated reasons for terminating his employment were, in fact, merely pretexts for the real reason for firing him -- his age. See Bulwer, 473 Mass. at 681. Beresford's evidence included testimony that Gentile made jabs about Beresford's age, and tried to manufacture a link between Poindexter's age and his unsatisfactory job performance.

The statements were also consistent with Gentile's intimation, when discussing Beresford's concerns about Poindexter's job performance, that Charles River had a method for eliminating unwanted older workers. Although the defendants argue that no reasonable inference of discriminatory intent could be drawn from Gentile's unfinished statement, “[t]he company has a way of --,” the judge, who had the benefit of hearing the evidence presented at trial, characterized Beresford's testimony as “impl[ying] to [Beresford] that [Gentile] knew how to terminate an older employee without appearing discriminatory.” We defer to the judge's findings of fact where the judge had the opportunity to observe and evaluate witnesses. See General Dynamics Corp. v. Board of Assessors of Quincy, 388 Mass. 24, 29 (1983).¹¹ Finally, Beresford produced evidence that following his termination, his workspace and job responsibilities were assigned to other, younger workers.

While the defendants point to Beresford's rumored plan to challenge Gentile's authority at the fatal final meeting with Armour as “the last straw” in a series of Beresford's performance and attitude problems, and the true reason for Gentile's decision to fire him, their argument is undermined by the fact that they did nothing to discipline Beresford for his supposed ongoing intractability or unacceptable job performance until imposing the ultimate sanction of termination. See Bulwer, 473 Mass. at 682. Viewing the evidence under the JNOV standard, there was no error in the judge's conclusion that the jury could have found that the basis for Beresford's firing was pretextual. As the defendants had the burden of demonstrating all of their “true” reasons for firing Beresford were legitimate, see Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001), we discern no error in the trial judge's denial of JNOV as to Beresford's discrimination claim.

2. Punitive damages. We turn next to the defendant's challenge to the jury's punitive damages award. Chapter 151B authorizes a variety of relief for plaintiffs who demonstrate that their employers have discriminated against them, including damages intended to compensate the plaintiff, damages intended to punish the discriminating employer, and orders enjoining continued discriminatory conduct. See G. L. c. 151B, § 9, paras. 3 & 4. With respect to age discrimination claims, the statute establishes a unique and exclusive measure of and criterion for punitive damages: “[i]f the court finds for the petitioner, recovery shall be in the amount of actual damages; or up to three, but not less than two, times such amount if the court finds that the act or practice complained of was committed with knowledge, or reason to know, that such act or practice violated the provisions of said section four.”¹² G. L. c. 151B, § 9, para. 4. In age discrimination cases, damages intended to punish the defendant are limited to this multiple, and are mandated where the fact finder finds a knowing violation of § 4; in all other cases, punitive damages are awarded discretionarily. See Fontaine v. Ebtec Corp., 415 Mass. 309, 322 (1993) (section 9 provides “a certain recovery of at least double damages if the plaintiff proves that he was deliberately discriminated against on the basis of his age” and “establishes the appropriate measure of damages in an age discrimination claim”).

Throughout the trial, the defendants vigorously opposed Beresford's entitlement to any damages, including damages intended to punish them. On appeal, they argue that there was no basis in the evidence to support a claim for damages intended to punish them, and that the judge erred in allowing the jury to consider those damages. Our analysis is complicated by the fact, apparent on the record, that the parties misapprehended § 9 as it applies to age discrimination cases.

Gentile's comment suggesting that the defendants “[had] a way of” terminating an older employee without appearing discriminatory was enough to suggest that the defendants knew that terminating older workers on the basis of their age was illegal. See G. L. c. 151B, § 9, para. 4. Accordingly, it would not have been an error if the judge had considered whether multiple damages under § 9, para. 4, were warranted. Cf. Cormier v. Pezrow New England, Inc., 437 Mass. 302, 310-311 (2002) (vacating award of multiple damages under § 9 in absence of evidence that employer knew or had reason to know that its termination of plaintiff was illegal). The complication here, however, is the fact that the judge, at Beresford's request and without objection from the defendants, instructed the jury on punitive damages as they may be awarded under § 9, para. 3, rather than on the multiple damages available in age discrimination cases under § 9, para. 4. The standard on which the jury were instructed lacked any reference to the requirement in § 9, para. 4, that the discrimination be committed with knowledge or reason to know that the discriminatory acts were illegal. Compare G. L. c. 151B, § 9, para. 3, with G. L. c. 151B, § 9, para. 4. The instruction was incorrect.

In considering the effect of that error, we note that the defendants failed to object to the instructions insofar as they authorized punitive, rather than multiple damages, and so waived their right to challenge them on appeal. See Miga v. Holyoke, 398 Mass. 343, 351 n.9 (1986) (party's failure to object to jury instruction waives right to appeal on that ground). Beresford, who advocated at trial for the instructions that the judge ultimately gave, does not take a different position here.¹³ Accordingly, we consider the propriety of the jury's award of what the parties and the judge referred to as “punitive damages” in light of the law on which the jury were instructed.

Punitive damages under G. L. c. 151B, § 4, para. 3, are “awarded for conduct that is ‘outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others.’ ” Cormier, 437 Mass. at 310, quoting Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 178 (2000), and which is “so offensive that it justifies punishment and not merely compensation.” Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 110 (2009). In Haddad, the Supreme Judicial Court identified a nonexhaustive list of factors for judges to consider in determining whether particular conduct meets this heightened burden, including “(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’; and (5) ‘the duration of the wrongful conduct and any concealment of that conduct by the defendant.” Kiely v. Teradyne, Inc., 85 Mass. App. Ct. 431, 436 (2014), quoting Haddad, supra at 111.

The evidence here speaks to some of the Haddad factors. Cf. Kiely, 85 Mass. App. Ct. at 440 (JNOV affirmed where evidence supported only single factor). For example, the jury could certainly infer from the evidence that the defendants were aware that firing Beresford in order to clear the way for younger employees would cause “serious harm” to Beresford, who was both sixty-one years old and a fleet mechanic in a field largely occupied by Charles River. Additionally, there was evidence that Beresford was harmed by finding himself suddenly, and from the jury's perspective, unjustly unemployed.¹⁴ There was also evidence that the defendants attempted to cover their pretextual reasons for terminating Beresford by recasting the decision as being based on Beresford's poor performance. Finally, Gentile's unfinished comment to Beresford to the effect that the company knew how to fire an older employee without appearing to discriminate suggested the defendants' awareness of the illegality of such conduct.¹⁵

On the other hand, we discern scant evidence that the defendants' actions were intended to demean older workers, generally, on the basis of age. While the “old timer” comments, together with Gentile's other statements and conduct sufficed to show discriminatory animus, those two remarks themselves are only limited evidence of a purposeful effort to diminish older workers, categorically. More significantly, we conclude that the evidence as a whole does not demonstrate the “outrageous” misconduct required to subject the defendants to punitive damages under G. L. c. 151B, § 4. Compare Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290, 294 & 296 (2016) (affirming jury's award of punitive damages on claim of sexually hostile work environment where plaintiff presented evidence that supervisor subjected her to persistent and graphic sexual harassment, including referring to her “nipples,” “boobs,” and “ass”; “asking [the plaintiff] if they would one day sleep together so he could actually see her breasts”; touching the plaintiff's buttocks; and “attempt[ing] to throw coins down [her] blouse”); Haddad, 455 Mass. at 108-109 (affirming award of punitive damages to female pharmacy manager where employer paid male counterparts higher hourly wage, conducted “sham” investigation into alleged misconduct, imposed disproportionately severe sanction on plaintiff as compared to male colleagues, and hired male pharmacist then under criminal investigation as plaintiff's “supervisor” while requiring plaintiff to perform male pharmacist's duties); Clifton v. Mass. Bay Transp. Auth., 445 Mass. 611, 613-614 & 624 (2005) (affirming punitive damage award where African-American plaintiff's coworkers daily “call[ed] the plaintiff ‘Roxbury Mayor,’ ‘fucking banana,’ and ‘Sanford,’ ․ referr[ed] to the plaintiff and another black employee as ‘ding and dong[,]’ ” “shot bottle rockets at him, turned the lights off when he used the bathroom, sprayed water at him through fire hoses, dropped firecrackers near him, [and] set water boobytraps that would fall on him when he opened his office door”); with Smith v. Bell Atlantic, 63 Mass. App. Ct. 702, 721-722 (2005) (affirming entry of directed verdict for employer on disabled employee's punitive damage claim where defendant employer failed to accommodate plaintiff's documented need to work from home).

While we do not minimize the wrongfulness of discrimination in any degree, nor the entitlement of its victims to compensation for the effects of discriminatory employment practices, the facts of this case do not present the type of malignant conduct that our courts have recognized as extreme and outrageous. So much of the order denying the defendants' motion for JNOV as to punitive damages is reversed.

B. Motion for new trial. From the judge's memorandum of decision, we discern that the defendants argued two bases for their motion for new trial: impropriety in Beresford's closing argument and the exclusion of certain evidence. We review the denial of the defendants' motion for new trial under an abuse of discretion standard, see Wahlstrom v. JPA IV Mgt. Co., 95 Mass. App. Ct. 445, 448 (2019), and conclude that the judge did not abuse his discretion here. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

1. Propriety of closing argument. The defendants argue that their motion for new trial should have been allowed based on Beresford's improper closing argument. Specifically, the defendants contend that Beresford's counsel alluded to facts not in evidence and improperly vouched for his client's testimony. At trial, Beresford testified that Gentile made two comments characterizing him as an “old timer,” one comment about his vision, the second about his feet. Gentile denied making the statements. Cross-examining Beresford, defense counsel highlighted the fact that neither Beresford's complaint in the instant action, nor his earlier complaint before the Massachusetts Commission Against Discrimination (MCAD) based on the same allegedly discriminatory conduct, included any reference to the “old timer” comments. Conceding that the comments would have been important information to have included in his MCAD filing, Beresford testified that he did not know why information about the comments had not been included in his MCAD filing. He confirmed that although he had told his attorney the basis on which he believed he had been discriminated against, the comments “never made [their] way into” the MCAD filing.

On redirect, Beresford's attorney took up the issue of the absence of the “old timer” allegations from the MCAD complaint, asking, “So if there's something missing from that, is that on me?” Beresford replied, “I guess it would be.” Defense counsel objected and the judge struck the answer. In closing, however, defense counsel returned to this exchange; counsel's attack on Beresford's credibility included reference not only to the omission of any reference to the “old timer” comments from Beresford's MCAD complaint, but more specifically, to the question and to the answer struck in response to the defendants' objection. When his opportunity arrived, Beresford's counsel argued that the jury should not hold against Beresford his counsel's failure to include the “old timer” comments in his pleadings.

Determining that, putting aside the struck testimony, the evidence was sufficient to allow the jury to infer that the omissions were the result of Beresford's attorney's drafting error, the judge concluded that the comments were proper commentary. We agree. The plaintiff's answers to defense counsel's questions supported the inference that the plaintiff's attorney made in his closing.

To the extent that Beresford's counsel's argument echoed his question to Beresford on this topic, thus impermissibly calling to mind testimony struck by the judge -- “[t]hat's [the failure to include the comments in the MCAD complaint] on me” -- we agree with the judge that the defendants were not prejudiced by the reference. As we note, defense counsel had elicited testimony from which the jury could have concluded Beresford's lawyer was at fault for the omission. The judge did not abuse his discretion in denying the defendants' motion for new trial based on Beresford's argument. See Wahlstrom, 95 Mass. App. Ct. at 448 (appellate standard of review).

2. Proposed rebuttal evidence. As an alternative challenge to the denial of their motion for new trial, the defendants argue that the judge abused his discretion in precluding testimony from a rebuttal witness. See Teller v. Schepens, 25 Mass. App. Ct. 346, 350 (1988) (admission of rebuttal evidence within trial judge's discretion). We disagree.

At trial, the defendants sought to call a previously-undisclosed witness to rebut Beresford's testimony that he derived particular satisfaction from work as a mechanic for YCN and its successor companies, each of which specialized in fleet vehicles including school buses for special needs children, because he valued the opportunity to help to keep a vulnerable population safe. The witness would have been expected to testify that Beresford had previously asked him to “pass” several unsafe vehicles through a required inspection with promises to fix existing safety defects after the inspections were done.

There was no abuse of discretion in precluding the defendants from calling the proposed rebuttal witness. Although a party may introduce rebuttal evidence as a matter of right in order to refute opposing evidence, and may do so to support its affirmative case, see Drake v. Goodman, 386 Mass. 88, 92 (1982), as conceded by counsel, the rebuttal here was “far afield” of the evidence on the issues central to the case. See Commonwealth v. Chicas, 481 Mass. 316, 320 (2019) (judge has discretion to limit questions that involve collateral issues which are only marginally relevant).

Even if that were not so, the judge determined that the issues of Beresford's pride in his work and his concern for the safety of the children in the vehicles for which he was responsible had been raised through pretrial discovery. Where the evidence being rebutted is not newly-discovered at trial, the right to offer rebuttal evidence does not trump the ordinary requirement that trial witnesses be identified in advance. See Mass. R. Civ. P. 26 (e) (1), 365 Mass. 772 (1974) (imposing on parties “a duty seasonably to supplement his response with respect to any question directly addressed to ․ the identity and location of persons having knowledge of discoverable matters”). See also Strom v. American Honda Motor Co., 423 Mass. 330, 336 (1996), quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947) (“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation”).

3. Armour's payment as evidence of bias. In his pretrial deposition, Armour testified that after Beresford was terminated from his position at Charles River, and as part of the “wind[ing] down” of Armour's career, he and his brother decided to reward three long-term former employees, including Beresford, with payments of $75,000 each in recognition of their “dedicated service” to the Armours. Armour believed that the $75,000 represented approximately one year's salary for each of the recipients, and termed it “a severance payout,” although it appears that all of the employees had already stopped working for Armour by the time the brothers decided to make these payments.¹⁶ Ultimately, the Armours made incremental payments to Beresford totaling $60,500, which Beresford identified as “gifts,” and gave him a car valued at $14,500.

Beresford successfully moved in limine to preclude the introduction of evidence of the $75,000 payment as evidence of Armour's bias; to the extent that we can discern it from our record, the basis of the judge's ruling appears to have been that Armour's favorable disposition toward Beresford was self-evident. The defendants argue that the ruling constituted an abuse of discretion warranting a new trial. We disagree. Although a judge may not deny a party all opportunities to challenge a witness's credibility, including any bias the witness has, the judge has considerable discretion in which evidence the challenging party may use. See Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 485 (2000) (“The extensive discretion of trial judges with respect to both the process of discovery and the admission of evidence” is well established). The defendants can make no plausible argument that they were prejudiced by the judge's ruling, given that the trial record is replete with evidence of precisely the asserted bias for which they sought to introduce evidence of the $75,000 payment.¹⁷ The judge did not abuse his discretion in precluding evidence of the $75,000 payment as evidence of Armour's supposed bias.

C. Motion to alter or amend judgment. There was no error in the judge's determination that Armour's $75,000 payment to Beresford was a collateral source payment, not subject to offset against Beresford's jury award, and the judge's denial on that basis of the defendants' motion to alter or amend the judgment. We are not persuaded by the defendants' argument that Armour's $75,000 payment was “made in compensation” for Beresford's termination, and so was not a collateral source payment. Among the distinctions between this case and those in Short v. Marinas USA Ltd. Partnership, 78 Mass. App. Ct. 848, 858-859 (2011), cited by the defendants, is the lack of evidence that Armour's payment was intended to “substitute” for payment due from another responsible for Beresford's damages. While the timing of Armour's payments here may have been fortuitous for Beresford, Armour's testimony was clear that it coincided with both the general “winding up” of Armour's career, and his desire to show appreciation for a small cadre of loyal, long-term employees. There was no abuse of discretion in the judge's determination that the $75,000 was in the nature of a gift.

Armour's characterization of the payments as “severance” does not dictate a different result. The critical and undisputed fact remains that Armour's payments could not be attributed to the defendants. Armour was not Beresford's employer at the time of Beresford's termination, nor when the $75,000 payment was made. The definition of “severance pay” as “a payment to an employee at the time of his separation in recognition and consideration of the past services he has performed for the employer and the amount is usually based on the number of years of service,” reasonably implies that the “separation” be from that employer's service, not from any employment. See Bolta Products Div. v. Director of Div. of Employment Sec., 356 Mass. 684, 688 (1970). See also Fitzgerald v. Expressway Sewerage Const., Inc., 177 F.3d 71, 73 (1st Cir. 1999) (compensation received from third-party unrelated to tortfeasor-defendant will not generally diminish plaintiff's recovery). To the extent that such a payment resulted in a “windfall” to any party, the collateral source rule's deterrent purpose suggests that the benefit should inure to the injured plaintiff. See Law v. Griffith, 457 Mass. 349, 355 (2010). See also Restatement (Second) of Torts § 920A, and comment (b).

D. Remittitur. The defendants argued for remittitur of both the compensatory and punitive damages awarded by the jury. Remittitur is appropriate where damages awarded are greatly disproportionate or where their imposition represents a miscarriage of justice. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 824 (1997). With respect to the award of compensatory damages,¹⁸ we discern no abuse of discretion in the judge's denial of the motion for remittitur. See Baudanza v. Comcast of Massachusetts I, Inc., 454 Mass. 622, 629-630 (2009). We agree with the trial judge that the award made by the jury was supported by the evidence, and that the jury could reasonably find that the defendants failed to carry their burden of proving that Beresford's efforts to mitigate his damages by seeking new employment after being fired from Charles River were inadequate. See Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 465 Mass. 584, 592 (2013). Beresford offered evidence of significant efforts to find a job comparable to the one that he had lost, as well as a description of some of the challenges to succeeding in that search. Given Beresford's long history of specialized work and his past experience as a supervisor, even assuming that the defendants demonstrated that Beresford was choosy about the available job options, they did not establish that he failed to mitigate the damages occasioned by his termination. See id. at 593.

IV. Conclusion. So much of the judgment as awarded punitive damages is reversed, and that portion of the judgment is struck. The remainder of the judgment is affirmed.¹⁹

So ordered.

Affirmed in part; reversed in part

FOOTNOTES

3.   Beresford was sixty-one years old when he was terminated.

4.   The judgment entered after the orders on the posttrial motions.

5.   Armour, although no longer an owner of the business, remained involved as a consultant after Charles River took over.

6.   Poindexter was in his seventies at the time of trial.

7.   In contrast to Gentile's use of progressive disciplinary procedures with other employees, Gentile never provided Beresford with a written warning, “coaching note,” performance improvement plan, or suspension sanction before terminating him.

8.   The jury awarded back pay in the amount of $317,779.88; front pay of $285,000.00; and punitive damages of $602,779.88. The jury did not award any emotional distress damages.

9.   Our review is made more challenging by the defendants' failure to include copies of the defendants' motions for judgment notwithstanding the verdict and for new trial or remittitur, Beresford's opposition to those motions, or the transcript of any hearing on those motions. See Mass. R. A. P. 18 (a), as amended, 425 Mass. 1602 (1997). “When a party fails to include a document in the record appendix, an appellate court is not required to look beyond that appendix to consider the missing document.” Everett v. 357 Corp., 453 Mass. 585, 604 n.26 (2009), quoting Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007). Nonetheless, to the extent we can discern the content of the defendants' posttrial motions from the judge's findings and conclusions, we consider the merits.

10.   In the case of age discrimination, the protected class includes those over the age of forty. G. L. c. 151B, § 1 (8).

11.   The fact that Poindexter was not actually fired did not require the jury to disregard other evidence that suggested the existence of a “general atmosphere ․ [that] did not favor older workers.” Bray v. Community Newspaper Co., 67 Mass. App. Ct. 42, 44 (2006).

12.   Both at trial and on appeal, Beresford raised a question of whether “court” in this context meant the trial judge, specifically, or the fact finder, more generally. Given our conclusion, infra, that Beresford did not actually seek multiple damages under the statute, we need not decide this issue.

13.   In fact, he concedes the likelihood that he is bound to his choice as the law of the case. See Dalton v. Post Pub. Co., 328 Mass. 595, 599 (1952). Accordingly, we need not decide that issue.

14.   In light of the fact that the jury declined in this case to award compensatory damages for Beresford's emotional distress, we refer here primarily to evidence of Beresford's economic harm. We do not, however, suggest that a jury's failure to award emotional distress damages precludes consideration of evidence of nonmonetary “actual harm” occasioned by an employer's discriminatory conduct.

15.   We do not, however, find evidence in the record to show that the defendants had actually developed a practice of age-based discrimination beyond their conduct in Beresford's case. We also note that, although a jury properly instructed on the standards for multiple damages in age discrimination cases could have considered Gentile's comment as evidence that the defendants knew their conduct was illegal, the jury here were not instructed that they were required to find knowledge in order to award punitive damages. In other words, the jury's award of punitive damages does not necessarily mean that they took Gentile's remark as proof of the defendants' knowledge of the illegality.

16.   Beresford had been working for Charles River, and not Armour, since Charles River bought the Norwood garage.

17.   The jury heard Armour's account of his forty-year relationship with Beresford, Beresford's status as “an incredible mechanic” with “high integrity,” his position that he “never saw anything like” Beresford's “incredible work ethic,” and his view that “there isn't anybody in the world who could operate [under the extreme workload handled by the garage] other than Jim Beresford.” Additionally, the judge allowed the defendants to show that Armour voluntarily paid some of Beresford's costs in prosecuting the instant litigation.

18.   Given our conclusion that the motion for JNOV should have been granted as to punitive damages, we need not address the defendants' remittitur argument as to that portion of the jury's award.

19.   Beresford's request for appellate fees and costs is denied.