KATHLEEN ROMANO v. CITY OF LAWRENCE & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-353

KATHLEEN ROMANO

vs.

CITY OF LAWRENCE & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury awarded Kathleen Romano, the plaintiff in this

case, $500,000 in emotional distress damages and $1 million in

punitive damages on her retaliation claim under G. L. c. 151B,

§ 4, the defendants, the city of Lawrence and Lawrence public

schools,2 moved for judgment notwithstanding the verdict or, in

the alternative, for a new trial. The defendants also sought to

have the damages the jury awarded remitted. The trial judge

1 Lawrence public schools.

2At trial, the parties agreed that although there were
technically two defendants, "the liability of one is completely
tied to the liability of the other," and the jury were not asked
to make separate determinations as to the liability of the two
defendants.
denied this motion and entered an amended final judgment. The

defendants have now appealed.3 We affirm the amended judgment.

Facts. The jury could have found the following facts.

Romano spent twenty-five years in the military, eventually

reaching the rank of major before retiring from military

service. In 2009, after retiring from the military, Romano

became the "Senior Army Instructor" (SAI) at Lawrence High

School's Junior Reserve Officers' Training Corps (JROTC)

program. At the time of the relevant events, four "Army

Instructors" (AIs), as well as Romano, worked in the JROTC

program at Lawrence High School.

The SAI "manages the entire program" in a particular

school. Any other AIs in the program "work for the SAI."

Schools can only employ in their JROTC programs people who have

been certified by the Army as instructors. While instructors

3 The defendants' notice of appeal states that they are
appealing from the amended final judgment entered on February
10, 2023, and from "all prior interlocutory rulings and orders,"
and lists as examples the order on the defendants' motion to
dismiss, the orders on the defendants' motion for judgment
notwithstanding the verdict, or in the alternative, for a new
trial or remittitur, and two orders related to the plaintiff's
efforts to obtain attorney's fees and costs. The defendants,
however, have advanced in their brief only arguments related to
the judge's orders on their motion for judgment notwithstanding
the verdict, or in the alternative, for a new trial or
remittitur; therefore, any potential issues related to these
other orders identified in the notice of appeal are waived. See
Police Dep't of Salem v. Sullivan, 460 Mass. 637, 640-641
(2011).

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work for the school, these programs are still subject to Army

rules and regulations, and the Army has the right to remove

instructors for unsatisfactory conduct or performance by

decertifying them. The SAI is the direct supervisor of the AIs,

and the relevant Army regulations allow the SAI to initiate a

performance improvement plan for AIs who perform poorly. If,

after such a plan is implemented, the AI's performance continues

to be unacceptable, the SAI may recommend that the Army

decertify the AI, which would lead to their removal.

Romano and one of the AIs, Paul Ronan, had a long history

of disagreements. When Romano spoke to her then boss Ted

Lombardi, an assistant principal and, later, principal at the

school, about Ronan's behavior and their disagreements, he told

her to approach the situation as if the two of them were a

married couple "having a spat."

In December 2015, Romano was involved in a car accident and

broke her back. As a result, she took medical leave until April

2016. When she returned to work, she found that, in her

absence, the number of community service missions the student

cadets were going on had decreased and the typical afterschool

JROTC programs were not being undertaken.

Upon her return, Romano's and Ronan's relationship

deteriorated further; in every meeting, Ronan yelled at Romano

in front of the other AIs.

3
At some point in the spring of 2016, after Romano returned

to work, Ronan informed her that he refused to work over the

summer -- something Romano was adamant that the JROTC staff were

required to do. In June 2016, after this incident, Romano

decided that she wanted to file a formal complaint about Ronan's

behavior and told Lombardi so. Lombardi told Romano not to move

forward with her complaint because she did not understand the

politics of Lawrence public schools and the school district

would "crush [her]."

Shortly after this conversation, Lombardi left the Lawrence

school system and was replaced by Juan Rodriguez.

None of the AIs worked during the summer of 2016. At the

beginning of the new school year in August, Ronan again angrily

confronted Romano, this time screaming at her because he did not

want to teach a class she had assigned to him.

After this, Romano spoke with Rodriguez about the conduct

of Ronan and one of the other AIs, John Helbert. Rodriguez told

Romano that he needed to speak with the headmaster, Michael

Fiato, and potentially human resources, given the nature of her

complaint. Two weeks later, on September 14, 2016, Romano,

Rodriguez, and Fiato all met. Fiato stated that he would

investigate Romano's allegations.

On September 28, Romano, Rodriguez and Fiato met again. At

this meeting, Fiato told Romano that she was not in charge of

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the other AIs and the JROTC program; she was only a figurehead,

and all the JROTC staff members were peers. Romano asked Fiato

to look at the relevant Army regulation and call Brenda Gainey,

the chief of the Second Brigade of JROTC, as they would confirm

that she was supposed to be running the program. Fiato agreed

to do both.

On October 18, Romano met with Fiato and Anne Marie

Stronach, the chief operations officer for Lawrence public

schools. They discussed the ongoing conflicts between Romano

and the AIs and, at one point in the meeting, Romano, in

describing her work environment, described herself as "an abused

woman." Stronach took this to be a complaint about gender

discrimination, harassment or a hostile work environment and

told Romano that she would have to investigate it.

On November 16, Romano, her union representative,

Rodriguez, Fiato, and Stronach had another meeting. At that

meeting, the school administrators acknowledged that the JROTC

program had a chain of command and the SAI was responsible for

running the JROTC program. The administrators, however, told

Romano that they wanted to wait until Gainey came and visited

the school and the program before returning Romano's full scope

of authority to her.

That same day, Ronan again confronted Romano. During a

staff meeting with the cadets, a cadet Romano had relieved from

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duty stood up to brief the group. Romano told her to sit down,

but Ronan contradicted her and told the cadet to stand up and

give her brief. At the end of the meeting, Romano told another

cadet to make sure that the cadet who had given the brief, along

with one other cadet, were both reduced to lower ranks. In

front of the assembled cadets, Ronan began screaming at Romano

about this decision, telling her that she could not reduce the

cadets' ranks. Romano retreated to her office, where she called

Fiato and asked him to keep Ronan away from her. The school

security guard walked her to her car, and once she got in her

car, she began to cry.

On November 18, Romano met with her union representative

and told him that she could not take working under these

conditions anymore. The union representative advised her to go

home and to take Family and Medical Leave Act (FMLA) leave until

the investigation into her complaint was completed. Romano left

school after that meeting, called in sick for the next two days,

and scheduled a doctor's appointment so she could get a doctor's

note and take FMLA leave. Romano's request for leave was

ultimately approved.

On one of the days that she called in sick before going on

leave, Romano nonetheless went to a local soup kitchen with some

of the cadets and one of the AIs, José Caraballo, who were

performing a mission there. One of the cadets at the soup

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kitchen that evening reported that Romano had told him, "[I]f I

catch you standing still again, I'll punch you." The school

reported the student's allegation to the Department of Children

and Families, and Robert Kujawa, one of the AIs, reported it to

the Army by way of a "Serious Incident Report." The Department

of Children and Families "screened out" this report two days

after it was filed. Stronach learned that this report had been

screened out on December 6.

In response to both Romano's allegations about the AIs

creating a hostile work environment and the report that Romano

had threatened a cadet, Timothy Ferguson, an Army lieutenant

colonel, investigated the Lawrence High School JROTC program on

behalf of the Army. During that investigation, Ferguson spoke

with Fiato. Before that meeting, Fiato had spoken to the AIs,

and they told him that they were not sure whether the situation

with Romano was repairable after the investigation into her

allegations about their conduct. Fiato conveyed the AIs'

feelings to Ferguson and stated that he believed Romano was

unfit to continue leading the JROTC program and the program

needed a new leader to be effective. Ferguson also spoke with

the AIs, some of whom told him that they did not believe Romano,

as SAI, was their superior and that the use of their military

ranks was merely a formality. In his report on his

investigation, Ferguson concluded that Romano was not fit to

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continue as the SAI and recommended that she undergo a fitness

for duty examination.

On May 5, 2017, Romano filed a complaint alleging

discrimination with the Massachusetts Commission Against

Discrimination (the commission). Lawrence public schools filed

a position statement with the commission in June 2017, in

response to Romano's complaint. In that position statement,

Stronach, on behalf of the school system, asserted that Romano

"wrongfully believes that Army Regulations apply to her job at

[Lawrence public schools]" and "military rank is not relevant"

to the JROTC staff's activities. Romano ultimately withdrew her

complaint before the commission to pursue this civil action.

See G. L. c. 151B, § 9.

On November 24, 2017, Romano received a letter from the

Army informing her that she had been flagged during a background

check due to the Serious Incident Report related to the soup

kitchen incident. The letter informed her that the flagged

finding needed to be reviewed by the "Centralized Adjudication

Authority," and an adverse finding from that authority could

lead to the loss of her certification.

In December 2017, Romano resigned from her position with

Lawrence public schools and obtained disability retirement

benefits.

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Discussion. 1. Adverse employment action and causal

connection. The defendants argue that the judge should have

granted their motion for judgment notwithstanding the verdict or

a new trial because there was insufficient evidence to support

Romano's retaliation claim.

We review the denial of a motion for judgment

notwithstanding the verdict to determine whether "anywhere in

the evidence, from whatever source derived, any combination of

circumstances could be found from which a reasonable inference

could be drawn in favor of the plaintiff." Dobos v. Driscoll,

404 Mass. 634, 656, cert. denied sub. nom. Kehoe v. Dobos, 493

U.S. 850 (1989), quoting Poirier v. Plymouth, 374 Mass. 206, 212

(1978).

As for the defendants' request for a new trial, we review a

trial judge's decision on such a motion for abuse of discretion.

W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct.

744, 748 (1993). A trial judge should grant a motion for a new

trial in a civil case only where "the verdict is so markedly

against the weight of the evidence as to suggest that the jurors

allowed themselves to be misled, were swept away by bias or

prejudice, or for a combination of reasons, including

misunderstanding of applicable law, failed to come to a

reasonable conclusion." Id.

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"[T]o make out a prima facie case of retaliation" under

G. L. c. 151B, § 4 (4), (4A), Romano was required to show "that

[s]he engaged in protected conduct, that [s]he suffered some

adverse action, and that a causal connection existed between the

protected conduct and the adverse action" (quotations and

citations omitted). Psy-Ed Corp. v. Klein, 459 Mass. 697, 707

(2011).

Here, the defendants argue that Romano has not established

that she suffered an adverse employment action; or, even if she

did suffer an adverse employment action, that it was causally

connected to her protected activity: complaining about gender

discrimination by describing herself as an "abused woman."

For the purposes of G. L. c. 151B, an adverse employment

action occurs when the employee suffers a "[m]aterial

disadvantage" (citation omitted). Yee v. Massachusetts State

Police, 481 Mass. 290, 296 (2019). Such a disadvantage must be

"objectively apparent to a reasonable person in the employee's

position; subjective feelings of disappointment and

disillusionment will not suffice" (quotation and citation

omitted). Id. at 297.

The defendants characterize the reduction in Romano's

authority as nothing more than a temporary misunderstanding, or

the result of the administration's failure to ensure she was

treated with proper deference. We do not agree. The relevant

10
Army regulations make it clear that "[t]he SAI is in charge of

the JROTC unit" and that the SAI, therefore, manages the program

and supervises the other AIs. Lawrence public schools deprived

her of both of these functions. Given that Lawrence public

schools deprived her of core functions the Army regulations

assign to those in her role, the disadvantage inflicted on

Romano would have been objectively apparent to a reasonable

person in her shoes and, as the judge concluded, the jury could

have found that the restriction of Romano's authority was an

adverse employment action.

The defendants argue next that, even if the reduction in

her authority was an adverse employment action, Romano has not

shown that this action was causally related to her protected

activity because her authority was reduced before she told Fiato

and Stronach that she felt like an "abused woman."

The judge explained three ways in which the jury could have

determined that the reduction in Romano's authority was causally

related to her protected complaint of gender discrimination. We

need go no further than the first.

The jury could have found that Lawrence public schools

restricted Romano's supervisory authority on September 28, 2016,

due to its mistaken understanding of the JROTC program's

structure. However, by the time of the November 16 meeting, the

school administrators had spoken with Gainey and been informed

11
that they were wrong, that military rank did apply within the

JROTC program, and that the SAI had greater authority than the

other AIs. Despite the fact that Gainey had already disabused

them of any confusion around the structure of the JROTC program,

the school refused to restore Romano's authority to her at that

time, and instead stated that they wanted to wait until Gainey

had conducted a site visit. We agree with the judge that, based

on these facts, the jury could have found that Lawrence public

schools' refusal to reinstate Romano's authority after learning

of its mistake was causally related to her earlier protected

activity.

The jury could have found additional support for a

conclusion that the defendants acted with a retaliatory motive

from the following facts: (1) Lombardi, the principal of

humanities leadership development at Lawrence High School at the

time, told Romano not to formally complain about Ronan because

she did not "understand the politics" and Lawrence public

schools would "destroy" her; (2) after Romano's complaint, Fiato

asked the AIs if they could continue to work with her, they told

him they were not sure, and Fiato then told the Army he thought

the program needed a new SAI; and (3) after learning that Romano

had supervisory authority over the AIs and the JROTC program,

Lawrence public schools falsely stated in its position statement

12
before the commission that Romano was in the wrong for believing

that military rank applied to the JROTC program.

There was ample evidence in the record to support a

reasonable inference in favor of the plaintiff, and no error in

the judge's decision to deny the defendants' motion for judgment

notwithstanding the verdict. Likewise, there was no abuse of

discretion in the judge's decision to deny the defendants'

alternative request for a new trial.

2. Compensatory damages. The defendants also argue that

the jury's compensatory damage award was excessive, and the

trial judge should have granted them a new trial or, at least,

remitted some of the damages under Mass. R. Civ. P. 59 (a), 365

Mass. 827 (1974).

"[A]n award of damages must stand unless . . . to permit it

to stand was an abuse of discretion on the part of the court

below, amounting to an error of law" (citation omitted). Reckis

v. Johnson & Johnson, 471 Mass. 272, 299 (2015), cert. denied

sub nom. Johnson & Johnson v. Reckis, 577 U.S. 1113 (2016).

Allowing a damages award to stand constitutes an error of law

"if the damages awarded were greatly disproportionate to the

injury proven or represented a miscarriage of justice" (citation

omitted). Id.

As the judge noted, the jury could have found that after

the meeting on November 16, and throughout her leave, Romano

13
experienced emotional distress due to Lawrence public schools'

failure to reinstate her authority and its statements to the

commission in which it continued to assert that she did not have

that authority.

Further, Romano's testimony and that of her family members

reflected that she suffered a high degree of emotional distress.

Of particular note, Romano testified that she was voluntarily

committed to inpatient therapy twice, her family moved from

Andover to Boston because she could not face the reminders of

her time at Lawrence High School that she encountered living in

nearby Andover, and her husband had to take over all of her

roles in their household. Her daughter described her as a

"shell of a human."

Given this, the jury's award of compensatory damages was

neither "greatly disproportionate to the injury proven" nor

"represented a miscarriage of justice" (citation omitted).

Reckis, 471 Mass. at 299. Consequently, the judge did not abuse

his discretion or commit an error of law in allowing the award

to stand.

3. Punitive damages. Finally, the defendants contend that

an award of punitive damages was unwarranted in this case, or,

in the alternative, that the amount of punitive damages the jury

awarded Romano was excessive.

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Punitive damages are available under G. L. c. 151B "where

the defendant's conduct is outrageous or egregious." Haddad v.

Wal-Mart Stores, Inc., 455 Mass. 91, 110 (2009), S.C., 455 Mass.

1024 (2010). "An award of punitive damages requires a

determination of the defendant's intent or state of mind,

determinations properly left to the jury, whose verdict should

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

. . . from any . . . evidence . . . presented.'" Id. at 107,

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

1, 16 (1998).

Factors relevant to whether the defendants' conduct was

outrageous and egregious include:

"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."

Haddad, 455 Mass. at 111.

Here, as the judge noted, the jury could have found that

the defendants' conduct was outrageous or egregious based on

15
evidence that after learning and acknowledging that they had

been mistaken about the structure of the JROTC program, the

defendants not only failed to return Romano's authority to her,

but they continued to maintain before the commission a position

they knew was incorrect -- that Romano did not have any

supervisory authority. The jury could also have found that the

defendants never informed the AIs about the administration's

new-found understanding of the SAI's role, based on the fact

that the AIs continued to assert in their comments to Ferguson

and their trial testimony that Romano was their peer, not their

superior. This conduct clearly falls within the ambit of the

fourth and fifth factors listed above and supports a finding

that the defendants' conduct was outrageous and egregious.

Further, as described above, the jury could have found that

Romano suffered substantial actual harm in the form of emotional

distress due to the defendants' conduct. On this record, the

jury could reasonably have determined that punitive damages were

warranted.

As to the amount of punitive damages, as public entities,

the defendants do not have any Fourteenth Amendment rights which

would place a constitutional limit on the amount of punitive

damages that may be assessed against them. Charles v. Leo, 96

Mass. App. Ct. 326, 348 (2019). A punitive damages award

against a public entity, however, may still be reviewed for

16
excessiveness on a motion for a new trial or remittitur under

rule 59 (a). Id. To determine whether an award of punitive

damages is excessive, we look to the three factors articulated

by the Supreme Court in BMW of N. Am., Inc. v. Gore, 517 U.S.

559 (1996): "'the degree of reprehensibility of the defendant's

conduct'; the ratio of the punitive damage award to the 'actual

harm inflicted on the plaintiff'; and a comparison of 'the

punitive damages award and the civil or criminal penalties that

could be imposed for comparable misconduct.'" Charles, supra at

347-348, quoting Labonte v. Hutchins & Wheeler, 424 Mass. 813,

826-827 (1997). See BMW of N. Am., Inc., supra at 575, 580,

583. We review a judge's ruling on a motion for new trial or

remittitur under rule 59 (a) based on excessive punitive damages

assessed against a public entity for abuse of discretion or

other error of law. Charles, supra at 348.

Here, the ratio of punitive to actual damages, an amount we

have concluded above is not excessive, is only two to one, well

within the permissible range, especially given that the harm

Romano suffered was noneconomic. See Aleo v. SLB Toys USA,

Inc., 466 Mass. 398, 417 (2013).

As to reprehensibility, as we have already discussed, the

jury could have found that even after their confusion about the

JROTC program's structure was dispelled, the defendants failed

to reinstate Romano's authority, failed to inform the AIs of

17
their new understanding of the program's structure, and

maintained before the commission that Romano was the problem and

military rank did not apply within the JROTC program.

Finally, as the judge recognized, in the G. L. c. 151B

context, comparison of the award to potential criminal or civil

penalties neither weighs in favor of nor against remittitur.

See Charles, 96 Mass. App. Ct. at 352 (in this context, lack of

comparable criminal or civil penalties "does not provide

guidance with respect to the appropriate size of a punitive

damages award").

The judge, therefore, neither abused his discretion nor

committed any other error of law in refusing to remit any of the

18
punitive damages the jury awarded, or to grant a new trial due

to the claimed excessiveness of the punitive damages.4

Amended judgment affirmed.

By the Court (Rubin, Hand &
Smyth, JJ.5),

Clerk

Entered: July 31, 2025.

4 The plaintiff's motion to file a surreply brief, on which
we have not relied in deciding this matter, is denied, except to
the extent it contains a request for attorney's fees, to which
the plaintiff is entitled by statute. See G. L. c. 151B, § 9.
This request does not comply with the procedure outlined in
Fabre v. Walton, 441 Mass. 9 (2004). Nonetheless, we have
discretion to allow a request for attorney's fees that is not
made in the brief. See Beal Bank, SSB v. Eurich, 448 Mass. 9,
12 (2006). Given the plaintiff's statutory entitlement to the
fees and the date of this request, less than a month after
plaintiff's brief was filed and more than four months before
argument, we allow the request. The plaintiff may submit a
petition with supporting documentation within fourteen days of
this decision; thereafter, the defendants will have fourteen
days in which to file a response.

5 The panelists are listed in order of seniority.

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