Quarterman v. City of Springfield

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16-P-223 Appeals Court

WILL QUARTERMAN vs. CITY OF SPRINGFIELD & another.1

No. 16-P-223.

Hampden. November 9, 2016. - March 29, 2017.

Present: Kafker, C.J., Kinder, & Lemire, JJ.

Alcoholic Liquors, License, Local licensing authority. Anti-
Discrimination Law, Race, Damages, Attorney's fees.
Practice, Civil, Judgment notwithstanding verdict, Motion
to amend, Instructions to jury. Judgment, Amendment.
Damages, Loss of profits, Attorney's fees.

Civil action commenced in the Superior Court Department on
August 14, 2008.

The case was tried before Daniel A. Ford, J., an award of
attorney's fees was ordered by him, and motions for judgment
notwithstanding the verdict and to alter or amend the judgment
were heard by him.

Leonard H. Kesten for the plaintiff.
Edward M. Pikula, City Solicitor, for the defendants.

KINDER, J. On April 13, 2006, the board of license

commissioners (board) of the city of Springfield (city) denied

1
Peter Sygnator, individually and as chairman of the board
of license commissioners.
2

plaintiff Will Quarterman's application for a liquor license.

Quarterman, an African American, brought this action against

board chairman Peter Sygnator and the city, claiming that denial

of the application was discriminatory and in retaliation for

Quarterman's earlier filing of a complaint with the

Massachusetts Commission Against Discrimination (MCAD).

Ultimately, a Superior Court jury rejected the claim of racial

discrimination, but found that the city, through the actions of

former Mayor Charles Ryan, had retaliated against Quarterman in

violation of G. L. c. 151B, § 4(4).2 The jury awarded damages of

$250,000 in lost profits and $100,000 for emotional distress.

The city challenged the verdict in posttrial motions for

judgment nothwithstanding the verdict (judgment n.o.v.), to

alter or amend the judgment, and for a new trial. Principally,

the city argued that the evidence of retaliation and damages was

insufficient. In a comprehensive written decision, the trial

judge denied the motions as to liability for retaliation, but

allowed them, in part, as to damages. The judge concluded that

there was evidentiary support for the award of $100,000 for

emotional distress. However, he found that the evidence of lost

profits was "lacking in substance." He also reasoned that

2
The jury found that neither Sygnator nor Mayor Ryan
discriminated against Quarterman, and that Sygnator did not
retaliate against him. Mayor Ryan is not a named defendant in
this action.
3

Quarterman had failed to establish standing to claim lost

profits because the profits were not direct and personal to him.

Accordingly, the judge reduced the damages from $350,000 to

$100,000. Quarterman challenges that ruling on appeal.

On cross-appeal, the city argues that (1) the motions for

judgment n.o.v. and to alter or amend the judgment should have

been allowed in their entirety; (2) the judge erred in refusing

to instruct the jury regarding the mayor's right to freedom of

speech; (3) the judge abused his discretion in denying a motion

in limine to admit findings in a related Federal case; and (4)

the judge abused his discretion in awarding attorney's fees.

For the reasons that follow, we affirm the order denying

the motion for judgment n.o.v. as to liability for retaliation,

and affirm the order to alter or amend the judgment by

eliminating damages for lost profits. We also conclude that the

jury were properly instructed, and that the judge did not abuse

his discretion with respect to the motion in limine and the

award of attorney's fees.3

Background. We summarize the facts in the light most

favorable to Quarterman, reserving some details for our

discussion. See Abramian v. President & Fellows of Harvard

3
In light of our ruling affirming the allowance of the
motion to alter or amend the judgment, we need not address the
motion for new trial, which was allowed only on the condition
that the motion to amend or alter judgment was reversed. See
Mass.R.Civ.P. 50(c), as amended, 428 Mass. 1402 (1998).
4

College, 432 Mass. 107, 110 (2000). Quarterman had been in the

bar business in the city for several years. In September, 2002,

he opened a nightclub, Logan's Lounge, after obtaining a liquor

license from the board. The business operated without incident

until April, 2004, when a brawl and shooting occurred there

during an afterhours party. Although Quarterman was not present

at the time, police reports suggested that he was. Immediately

following the shooting, Quarterman voluntarily closed Logan's

Lounge. Shortly thereafter, the business was evicted from the

property and closed permanently.

In August, 2004, Quarterman and a new business partner,

Paul Ramesh, applied to the board to transfer the liquor license

to a new club called Halo that they planned to open in the

entertainment district of the city. Despite Quarterman's

repeated requests for a hearing on the application, one was not

convened until March, 2005. In the intervening months, Sygnator

raised multiple concerns about the interior design of the club,

which Quarterman addressed. There was also a concern about the

proposed venue, which had previously been occupied by a

nightclub called Asylum. Asylum had posed problems for the city

because of large crowds, excessive noise, vandalism, illegal

drug use, and violence.

On March 2, 2005, Quarterman filed the first of two

complaints with the MCAD. He alleged that the city, the mayor,
5

and Sygnator discriminated against him on the basis of race by

failing to schedule a vote on his application to transfer the

liquor license. Meanwhile, the board held a hearing and voted

three to two to deny the application. The city, through its

attorney, suggested to Quarterman and Ramesh that they address

the concerns raised by the board and apply for a new license.

In January, 2006, Quarterman and Ramesh applied for a new

liquor license in the name of their new corporation, Exile

Entertainment, Inc. The hearing on the application was delayed

from March 9, 2006, to April 13, 2006, at the mayor's request so

that he could attend. At the hearing, the mayor, who had never

previously appeared before the board, argued against the

application. He also recruited other witnesses to speak in

opposition to the application, including the police commissioner

and a representative of American International College. In

support of his opposition, the mayor cited the shooting at

Logan's Lounge, suggesting that Quarterman had been present when

it had occurred. The board voted three to one to deny the

application. At least one commissioner changed his vote based

on the mayor's opposition.

By contrast, immediately following the vote denying Exile a

liquor license, the board voted to approve a liquor license for

another nightclub in the entertainment district, the Alumni

Club. The mayor spoke in favor of that application.
6

After issuance of the board's final written decision

denying his application, Quarterman filed a second complaint

with the MCAD. He again alleged that the city and Sygnator

discriminated against him on the basis of race and engaged in

retaliation. Following a finding of probable cause by the MCAD,

Quarterman removed the complaint to Superior Court by filing

this action.

Discussion. Although the judge's memorandum of decision

did not distinguish between the relief sought by the city in its

motion for judgment n.o.v. and its motion to alter or amend the

judgment, the motions addressed different issues. The city

clarified the relief sought by each motion in its joint

memorandum in support of all posttrial motions: "The [c]ity has

moved, pursuant to Massachusetts Rule of Civil Procedure Rule

50(b), [as amended, 428 Mass. 1402 (1998),] for judgment in its

favor notwithstanding the verdict as to liability for

retaliation; moved, pursuant to Massachusetts Rule of Civil

Procedure Rule 59(e), [365 Mass. 827 (1974),] to alter or amend

the judgment by deducting the amount of damages awarded for lost

profits; and moved, pursuant to Massachusetts Rule of Civil

Procedure Rule 59(a), [365 Mass. 827 (1974),] for a new trial on

the issue of liability for retaliation attributed to Mayor

Ryan." Thus, the city sought to address liability with its

motion for judgment n.o.v. and motion for new trial, and damages
7

with its motion to alter or amend the judgment. While the

judge's decision and some of the pleadings conflate these

issues, we address liability and damages separately as the city

framed them at the outset.

1. Motion for judgment n.o.v. regarding liability for

retaliation. Relief is appropriate under a motion for judgment

n.o.v. "[o]nly when no rational view of the evidence warrants a

finding [for the nonmoving party] . . . ." Mullins v. Pine

Manor College, 389 Mass. 47, 56 (1983), quoting from Zezuski v.

Jenny Mfg. Co., 363 Mass. 324, 327 (1973). See J.W. Smith &

H.B. Zobel, Rules Practice § 50.13, at 150 (2007). Accordingly,

in analyzing this motion we draw every reasonable inference in

favor of Quarterman "without weighing the credibility of the

witnesses or otherwise considering the weight of the evidence

. . . ." Bavuso v. Caterpillar Industrial, Inc., 408 Mass. 694,

695 n.1 (1990), quoting from McNamara v. Honeyman, 406 Mass. 43,

45 (1989).

General Laws c. 151B, § 4(4), as inserted by St. 1946,

c. 368, § 4(4), makes it unlawful "[f]or any person . . . to

. . . discriminate against any person because he has opposed any

practices forbidden under this chapter or because he has filed a

complaint . . . ." "Retaliation is a separate and independent

cause of action" from a claim of discrimination under G. L.

c. 151B, Abramian, 432 Mass. at 121, but the basic framework of
8

the claim remains the same. First, "the plaintiff bears the

initial burden of establishing a prima facie case"; second, "the

burden shifts to the [defendant] to articulate a legitimate

reason for its actions"; and third, "the burden shifts back to

the [plaintiff] to show that the [defendant's] asserted reason

was not the true reason, but rather a pretext." Handrahan v.

Red Roof Inns, Inc., 43 Mass. App. Ct. 13, 14-15 (1997). To

establish a prima facie case of retaliation, Quarterman must

prove that he "reasonably and in good faith believed that the

[city] was engaged in wrongful discrimination, that [he] acted

reasonably in response to [his] belief, and that the [city's]

desire to retaliate against [him] was a determinative factor in

its decision" to deny him a liquor license. Tate v. Department

of Mental Health, 419 Mass. 356, 364 (1995). See Abramian,

supra.

The city does not dispute that Quarterman believed the city

discriminated against him or that he acted reasonably in

response to that belief. Rather, the city argues that there was

insufficient evidence for the jury to conclude that denial of

the liquor license was caused by the city through the actions of

the mayor. Further, the city contends that Quarterman failed to

adequately rebut evidence that the license was denied for a

legitimate, nonretaliatory reason. Drawing all reasonable

inferences in favor of Quarterman, we agree with the judge's
9

assessment that the evidence was sufficient to prove that it was

more likely than not that Quarterman "suffered harm as a result

of Mayor Ryan's action."

The jury could have found that the 2006 liquor license

application addressed the concerns the board had expressed at

the 2005 hearing. The capacity of the club had been decreased

from 700 to 400, security had been increased, parking was added,

and Quarterman's role in the business had been reduced.

Considering evidence of these modifications in the light most

favorable to Quarterman, the jury could reasonably have

concluded that, but for the mayor's opposition, the application

would have been approved.

There was also evidence from which the jury could have

inferred retaliatory animus. After Quarterman filed the MCAD

complaint naming the mayor as a defendant, the mayor took an

unusual interest in Quarterman's liquor license application. He

had never before appeared to testify against an applicant, he

requested and was granted a postponement of the hearing to

ensure his attendance, and he recruited other witnesses to

testify against the application. He spoke forcefully against

the application at the hearing, persuading at least one board

member to vote against it.

According to the city, Quarterman's application was denied

for legitimate nonretaliatory reasons -- the board's concerns
10

about the location and size of the establishment, prior problems

with Asylum at the same location, and Quarterman's troubled

history at Logan's Lounge. But, as set forth above, there was

evidence that those issues had been previously raised and, in

large part, addressed by Quarterman, such that the jury could

have reasonably concluded the stated reasons were a pretext.

Reasonable minds might disagree whether the mayor's intent

in opposing the liquor license was to retaliate against

Quarterman, or to protect the city and its residents. But, in

analyzing a motion for judgment n.o.v., we do not weigh the

evidence. Simply put, when considered in a light most favorable

to Quarterman, the evidence was sufficient for the jury to

conclude that by filing an MCAD complaint Quarterman engaged in

legally protected conduct, that he suffered an adverse action in

the denial of the liquor license, and that there was a causal

connection between the two. See Ritchie v. Department of State

Police, 60 Mass. App. Ct. 655, 664 (2004). Accordingly, there

was no error in the denial of the motion for judgment n.o.v. as

to liability for retaliation.

2. Motion to alter or amend the judgment as to damages.

The judge allowed the city's motion to alter or amend the

judgment in part, by reducing the damages from $350,000 to

$100,000. In doing so, he concluded that the evidence supported
11

an award of $100,000 for emotional distress damages, but not an

award of $250,000 for lost profits damages. We agree.

Under Mass.R.Civ.P. 59(e), a motion to alter or amend "'is

designed for . . . situations' where the judgment is incorrect

because it lacks both legal and factual justification." Shawmut

Community Bank, N.A. v. Zagami, 419 Mass. 220, 223 (1994),

quoting from Page v. New England Tel. & Tel. Co., 383 Mass. 250,

252 (1981). In such circumstances, "the judge [is] not 'called

upon to find different facts from the evidence, but merely to

correct the judgment by striking out that portion which [is]

erroneous because it lack[s] both legal and factual

justification.'" Page v. New Eng. Tel. & Tel. Co., supra,

quoting from Mumma v. Reading Co., 247 F. Supp. 252, 260 (E.D.

Pa. 1965) (affirming reduction of jury's award of $10,000 as

nominal damages to $1 on a contract claim in the "absence of a

showing of pecuniary loss"). See Spring v. Geriatric Authy. of

Holyoke, 394 Mass. 274, 290-291 (1985) (affirming reduction of

jury award from $50,000 to nominal damages of $1 on a breach of

contract claim where "no actual damages were proved at trial").

We review the order allowing the motion to alter or amend

for an abuse of discretion. See Gannett v. Shulman, 74 Mass.

App. Ct. 606, 615 (2009). A judge abuses his discretion only

when he makes "a clear error of judgment in weighing" the

relevant factors "such that the decision falls outside the range
12

of reasonable alternatives." See Hoegen v. Hoegen, 89 Mass.

App. Ct. 6, 9 (2016), quoting from L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

We first address whether lost profits are a proper element

of damages for a claim of retaliation. "In the context of . . .

G. L. c. 151B, compensatory damages are those damages which

'make[] the aggrieved party whole,' . . . including those which

are the 'natural and probable consequences' of the illegal

conduct." Conway v. Electro Switch Corp., 402 Mass. 385, 388

(1988), quoting from Bournewood Hosp., Inc. v. Massachusetts

Commn. Against Discrimination, 371 Mass. 303, 315-316 (1976).

Typically, compensatory damages in such an action can be awarded

for emotional distress, see Stonehill College v. Massachusetts

Commn. Against Discrimination, 441 Mass. 549, 570-577 (2004);

back pay, see DeRoche v. Massachusetts Commn. Against

Discrimination, 447 Mass. 1, 15-16 (2006); front pay, see Haddad

v. Wal-Mart Stores, Inc. (No. 1), 455 Mass. 91, 102-106 (2009);

and lost pension benefits, see Ventresco v. Liberty Mut. Ins.

Co., 55 Mass. App. Ct. 201, 209-211 (2002). Compensatory

damages also can be awarded based on other damages incurred as a

"direct consequence" of the action. Massachusetts Commn.

Against Discrimination v. Franzaroli, 357 Mass. 112, 115 (1970).

Lost profits are the usual measure of damages in cases

involving business torts, see Jet Spray Cooler, Inc. v.
13

Crampton, 377 Mass. 159, 169 (1979), and are typically awarded

to businesses and corporations injured by another's conduct.

See, e.g., Eldim, Inc. v. Mullen, 47 Mass. App. Ct. 125, 129-130

(1999).

Although claims for lost profits are not common in cases

alleging discrimination and retaliation under G. L. c. 151B, we

are aware of no authority prohibiting such claims as a potential

remedy and we see no reason to preclude them as a matter of law.

The provisions of c. 151B are to be "construed liberally for the

accomplishment of its purposes." G. L. c. 151B, § 9, as amended

by St. 2002, c. 223, § 2. The clear legislative purpose of

c. 151B is "to afford victims of discrimination the legal remedy

of compensatory damages." Conway, supra at 387. Bearing in

mind these principles, we conclude that the natural and probable

consequence of retaliation under c. 151B can, if supported by

the evidence, include lost profits.4

Having concluded that lost profits damages are recoverable

under c. 151B, we turn to the evidence supporting Quarterman's

claim of lost profits. Quarterman was the only witness to

testify about lost profits. Despite the fact that Halo never

4
Other jurisdictions have held that lost profits damages
are available in analogous circumstances. See Thompson v. Hales
Corners, 340 N.W.2d 704, 716 (Wis. 1983) (affirming jury award
of lost profits for civil rights violation); Johnson v. Alaska
State Dept. of Fish & Game, 836 P.2d 896, 910-913 (Alaska 1991)
(lost profit damages available as remedy for discriminatory
restrictions on salmon fishing).
14

opened, he estimated that the business would have earned a

profit of $700,000 to $800,000 in the first year of operation.

He based this opinion on his prior experience as a bar owner,

his knowledge of the profits from other clubs owned by Ramesh,

and the success of a sports bar in the entertainment district.5

There was no evidence regarding startup costs, retained earnings

for improvements, or the distribution of corporate profits to

the shareholders. Quarterman's opinions were not supported by

documentary evidence. No shareholder agreement, employment

agreement, business records, or tax returns were offered. While

Quarterman was "not required to prove [his] lost profits with

mathematical precision," lost profit damages must be proved "to

a reasonable degree of certainty." Herbert A. Sullivan, Inc. v.

Utica Mut. Ins. Co., 439 Mass. 387, 413 (2003) (quotations

omitted). Here, the judge found that "Quarterman's testimony

about the alleged loss of profits was lacking in substance."

Based on our review of the record, this determination was within

the range of reasonable alternatives and, therefore, not an

abuse of discretion.

5
According to Quarterman, Logan's Lounge made a $4,000 to
$7,000 profit each Friday night, and a little less on Saturday.
He testified that Sam's Sports Bar, which had a smaller capacity
and served food, earned a profit of approximately $20,000 per
week. He also testified that Ramesh's bar, the Zone, earned a
profit of approximately $20,000 per week.
15

In considering the posttrial motions, the judge also

concluded that, based on the evidence at trial, Quarterman

lacked standing to claim lost profits. As a general rule, a

shareholder does not have standing to sue to redress an injury

to the corporation in which he holds an interest. See Pagan v.

Calderon, 448 F.3d 16, 28 (1st Cir. 2005). Here, it is

undisputed that Quarterman applied for the liquor license in the

name of Exile Entertainment, Inc., the closely held corporation

in which he had a thirty percent ownership interest.6 Had Halo

opened, it was Exile that would have operated the business and

benefitted from any profits. According to the city, Quarterman

lacked standing because his claim to lost profits was merely

derivative of Exile's corporate claim. Quarterman argued that

he had standing because the damages he suffered were direct,

personal, and supported by adequate proof. See id. at 29

(shareholders did not have standing because they failed to

allege "a particularized, nonderivative injury"). In addressing

this issue, the judge reasoned that:

"If Quarterman and Ramesh, as directors of the corporation,
had testified that they would have voted to declare a
dividend and that Exile would have distributed all its
profits to the shareholders, the jury would have been free
to assess that testimony and, if they believed it, would
have been warranted in concluding that Quarterman had
indeed suffered a loss of 'profits,' in the form of a lost
dividend."

6
Ramesh owned the other seventy percent.
16

Because there was no such evidence, the judge ruled that

Quarterman had failed to prove the direct and personal injury

necessary to establish standing to claim lost profit damages.

Based on the record before us, we cannot say that this was an

abuse of discretion. Accordingly, we affirm so much of the

order allowing the motion to alter or amend the judgment as

eliminated the lost profits damages.7

3. Jury instruction. The city argues that the judge erred

in refusing to instruct the jury regarding the mayor's freedom

of political speech. "We review objections to jury instructions

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

error affected the substantial rights of the objecting party."

Dos Santos v. Coleta, 465 Mass. 148, 153-154 (2013), quoting

from Hopkins v. Medeiros, 48 Mass. App. Ct.600, 611 (2000).

The city requested the following instruction:

"As the Chief Executive Officer of the [c]ity, a [m]ayor is
entitled to express the views of his administration and to
state what political judgments seemed appropriate so long
as they were not defamatory. 'The interest in remedying
discrimination is weighty, but not so weighty as to justify
a restriction on core political speech.' Bain v.
Springfield, 424 Mass. 758, 766 (1997)."

In declining to give the instruction as requested, the judge

stated, "I just don't think it's necessary. I think everyone

7
The judge concluded that there was no impediment to the
jury's award of $100,000 in emotional distress damages because
those damages were direct and personal to Quarterman. But for
the city's argument on liability, it does not challenge that
conclusion.
17

agrees that the mayor is entitled to express his views and state

what his judgments are. I don't think that's in dispute. The

issue is, in doing so did he discriminate?" We agree.

The language of the proposed instruction would have, by

implication, suggested to the jury that the right to speak

freely is superior to the right to be free from discrimination

and retaliation. That is not the law. "In outlawing

retaliation . . . the Massachusetts Legislature prohibited a

type of conduct that can, and often does, include speech."

Dixon v. International Bhd. of Police Officers, 504 F.3d 73, 83

(1st Cir. 2007). Here, the jury were accurately instructed that

the city, through its representatives, was entitled to make its

own policy, business, and governmental judgments. But, it could

not lawfully deny Quarterman a liquor license simply because he

filed a complaint with the MCAD. Those instructions were

sufficient. There was no error in the denial of the city's

proposed instruction.8

4. Motion in limine. In 2007, Quarterman filed an action

against the city in Federal Court alleging discrimination in

8
The city's reliance on certain language in Bain, supra at
766, is misplaced. There the Supreme Judicial Court held that a
mayor had a right to express to the local newspaper that claims
of discrimination and retaliation against him were meritless,
and that such statements were not retaliatory. Here the mayor
was not merely defending himself against accusations in the
newspaper, but urging the board, an agency of the government
that he headed, to take action that would adversely affect
Quarterman.
18

connection with the denial of his 2005 liquor license

application. Following a bench trial in 2010, judgment entered

for the defendants. Prior to trial in the instant case, the

city filed a motion in limine seeking to prohibit any evidence

of retaliation, arguing that the issue had already been

litigated in the Federal case. The city appeals the denial of

that motion.

We need not dwell on this argument because another panel of

this court has already done so. The motion in limine was

previously allowed by a different Superior Court judge who then

dismissed the case sua sponte. The dismissal was reversed by a

panel of this court in a memorandum and order pursuant to rule

1:28, and remanded for further proceedings. See Quarterman v.

Springfield, 83 Mass. App. Ct. 1103 (2012). In short, the panel

held that the doctrine of issue preclusion did not apply because

the issues in the Federal and State cases were not the same.

"[T]he issue in the Federal Court litigation was whether the

city displayed racial animus against Quarterman in denying his

2005 liquor license transfer request; the issue raised in the

Superior Court litigation is whether the city had racial animus

and retaliated against Quarterman a year later, in 2006 . . . ."
19

Ibid. The city has given us no reason to revisit our resolution

of that issue.9

5. Attorney's fees. Following a nonevidentiary hearing

and consideration of multiple affidavits regarding attorney's

fees, the judge, in a thorough memorandum and order, awarded

Quarterman $169,002.41 in attorney's fees and costs pursuant to

G. L. c. 151B, § 9. Based on the arguments advanced in its

posttrial motions, the city requested a reduction in that award.

The judge denied the motion, concluding that, even though he had

eliminated lost profits damages, "[t]he time spent on proving

the alleged loss of profits cannot be separated from the time

spent on proving other aspects of the case, as those hours were

inextricably intertwined." On appeal, the city argues that the

reduction in damages should result in a decrease in the

attorney's fees. We disagree.

"The amount of a reasonable attorney's fee . . . is largely

discretionary with the judge, who is in the best position to

determine how much time was reasonably spent on a case, and the

fair value of the attorney's services." Fontaine v. Ebtec

9
To the extent that this section of the city's brief claims
error in the failure to admit the MCAD findings at trial, the
fleeting reference to the issue provides an insufficient basis
for us to reasonably consider the claim. See Howe v. Tarvezian,
73 Mass. App. Ct. 10, 12 (2008) ("Contentions lacking legal
authority or reasoned explanation fall short of [appellate]
argument"); Mass.R.A.P. 16(a)(4), as amended, 367 Mass 921
(1975).
20

Corp., 415 Mass. 309, 324 (1993). In general, when only some

claims are successful, "no fee should be awarded for services

[employed pursuing an] unsuccessful claim, unless the court

finds that the unsuccessful claims are sufficiently

interconnected with the claims on which [t]he plaintiff

prevails." Killeen v. Westban Hotel Venture, LP, 69 Mass. App.

Ct. 784, 792-793 (2007) (quotations and citations omitted).

Here, the judge concluded that the time expended on the claim of

lost profits damages was "inextricably intertwined" with the

other claims. We discern no abuse of discretion in that order.

Conclusion. We affirm the order denying the motion for

judgment n.o.v. as to liability for retaliation, and affirm the

order allowing the motion to alter or amend the judgment by

eliminating the award of $250,000 for lost profits. The

judgment awarding $100,000 in emotional distress damages is

affirmed. We also affirm the award of attorney's fees.

So ordered.