Charles Sherman Neal v. City of Boston. ( 2023 )

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
22-P-715
CHARLES SHERMAN NEAL
vs.
CITY OF BOSTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The sole issue in this appeal from an amended judgment in
favor of the plaintiff, Charles Neal, on his claim for
retaliatory discharge is whether the judge abused his discretion
in excluding evidence that the decision maker was married to a
Black man. Discerning no abuse of discretion, much less
prejudice, we affirm.1
The plaintiff is a Black man who was employed as a physical
education teacher within the city of Boston (city) public school
system. After a series of events we need not detail here, he
1 The defendant filed a motion for a new trial on the same ground
of supposed error, which was denied. However, on appeal, the
defendant does not argue the issue within the context of the
motion for a new trial, but rather as part of its direct appeal
of the final judgment. For this reason, we do not address the
issue as it was raised in the motion for a new trial. All this
said, the outcome would be the same either way. The plaintiff
elected not to file a brief in connection with this appeal.
was terminated from his position. That decision was made by the
headmaster of the school, who is a white woman married to a
Black man.
The plaintiff brought the underlying employment suit
alleging, among other things, race discrimination and
retaliatory discharge. Anticipating that the headmaster would
be called as a witness, the plaintiff moved in limine to prevent
her from testifying that she was married to a Black person. The
trial judge conducted a hearing on the motion during which
counsel for the city represented that the city did not intend to
ask the headmaster about the race of her husband. However,
counsel argued that the headmaster should be permitted to
volunteer the evidence "organically," even if it was not called
for by any question. The judge initially deferred ruling on the
motion given that both sides stated that they did not intend to
seek to introduce the information. However, the judge also
stated that he would revisit the issue when the witness was
called.
When that occurred two days later, the judge conducted a
sidebar conference during which he asked the attorneys whether
they had told the witness not to volunteer unsolicited
information. The judge was told none of the attorneys had done
so. The following exchange then took place:
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The judge: "I'm going to ask that one of you go
outside and have that conversation with her."
City's counsel: "Has Your Honor ruled on that?"
The judge: "Yes. And unless there is some -- well,
you don't want it blurted out inadvertently; though,
if a question calls for the information, I'm going to
permit her to answer it; but otherwise, I'm going to
require you to be alert to objection. But I'm not
going to tolerate any kind of blurting out of
something that's non-responsive.
So I'm going to ask that somebody step outside; maybe
both of you -- one of each of you -- to step outside
to convey that to the witness."
City's counsel: "Convey exactly what now?"
Neal's counsel: "The race of her husband."
The judge: "Go ahead."
". . .
City's counsel: "Your Honor, may I just have
clarification? I'm sorry, but what you want me to
tell the witness is that she can't blurt out, non-
responsively, the race of her husband?"
The judge: "The race of her husband is irrelevant,
okay? She shouldn't offer it; it's not relevant to
the way she conducted herself in a particular way.
And if she brings that up, sua sponte, not responsive
to a question, it's going to be a problem. So, yes,
you should tell her that she shouldn't bring that up.
Both of you should; you both should be present at the
time of the instruction to relate [sic]."
Neal's counsel: "Okay."
The judge: "If you want me to talk to her, I'll talk
to her."
Neal's counsel: "All right, fine."
The judge: "You want me to bring her in?"
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City's counsel: "No, I can talk to her, You Honor."
The judge: "Okay, all right."
City's counsel: "Please note my objection."
The judge: "The objection to what?"
City's counsel: "The instruction to (inaudible . . .)2
–-"
The judge: "Do you think the race of her husband is
relevant?"
City's counsel: "I just -- I'm not going to ask her
that question, but I just -–"
The judge: "Neither one of you are; that's the reason
-- that's the point."
Neal's counsel: "Thank you."
City's counsel: "Thank you."
Ultimately, the jury found in favor of the city on the
discrimination claims, and in favor of the plaintiff on the
retaliation claim.
Just as a judge may strike unresponsive information
volunteered by a witness and instruct a jury to disregard it,
see Commonwealth v. Richards, 363 Mass. 299, 309 (1973), a judge
may prophylactically instruct a witness not to volunteer
2 The city has made no effort to reconstruct the record
concerning the inaudible portion of the transcript. See
Commonwealth v. Ralph R., 490 Mass. 770, 773 n.6 (2022)
(appellant bears "burden to reconstruct the record of
indiscernible portions of the trial if they are relevant to his
claims on appeal").
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unresponsive testimony. This is especially true where, as here,
the judge has been alerted to the possibility that the witness
might volunteer the unresponsive information despite the fact
that neither side intended to elicit it. Moreover, as the judge
correctly observed, the information was irrelevant, and its
admission carried with it the peril that the jury would be led
to speculate that a white person would be more or less likely to
engage in employment discrimination or retaliation depending on
the race of the person to whom he or she was married -- a
proposition for which the city has provided no support. See
Mass. G. Evid. §§ 401, 403 (2022).
In any event, there was no prejudice. To begin with, the
city did not plan to introduce the evidence. Thus, its
exclusion in no way curtailed the city's proof. Moreover, the
jury found in favor of the city on the plaintiff's
discrimination case, and the city has not shown any connection,
let alone relevance, between the witness's marital situation and
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the retaliation claim.
For these reasons, the amended judgment on the jury verdict
is affirmed.
So ordered.
By the Court (Wolohojian,
Shin & Hodgens, JJ.3),
Clerk
Entered: April 21, 2023.
3 The panelists are listed in order of seniority.
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