United States Court of Appeals 

For the First Circuit 

No. 17-2033 

SCOTT L. HEAGNEY, 

Plaintiff, Appellee, 

v. 

LISA A. WONG; CITY OF FITCHBURG, 

Defendants, Appellants, 

BADGEQUEST, INC.; STEPHAN UNSWORTH, 

Defendants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

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

Before 

Torruella, Thompson, and Barron, 

Circuit Judges. 

 Leonard H. Kesten, with whom Judy A. Levenson, Deidre Brennan 

Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief, 

for appellants. 

 Nicholas B. Carter, with whom Joseph M. Cacace and Todd & 

Weld LLP were on brief, for appellee. 
February 11, 2019 
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BARRON, Circuit Judge. This case concerns a suit that 

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

chief of Fitchburg, Massachusetts, brought against the City of 

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

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

she discovered late in the hiring process that Heagney had not 

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

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

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

department. The mayor was quoted thereafter in local newspapers 

explaining her decision not to nominate Heagney for the position. 

Heagney's suit claims that Fitchburg violated his rights 

under Massachusetts General Laws Chapter 151B by basing its 

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

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

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

statements that she made to the local newspapers explaining the 

decision. 

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

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

compensatory damages and for the Chapter 151B claim, no 

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

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

of law and for a new trial or remittitur, and entered judgment for 
- 4 - 

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

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

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

claim. 

I. 

Heagney first submitted his application for the position 

of Fitchburg Police Chief in October 2013. On the résumé 

accompanying his application, Heagney listed positions that he had 

held at the Police Department of Franklin, Massachusetts from 1987 

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

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

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

employment as an officer in the Police Department of Falmouth, 

Massachusetts where, after being fired by the Franklin Police 

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

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

Franklin Police Department from 1987 to 1994, without noting the 

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

employment at the Police Department of Attleboro, Massachusetts, 

where he had worked from 1985 to 1987.

As part of the application process, Heagney was also 

asked to fill out a standard employment application. The 

application asked candidates to list their employment for the past 

fifteen years. Heagney stated in the application only that he had 
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worked in the Franklin Police Department from 1987 to 2001 and at 

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

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

resign because of misconduct or unsatisfactory employment?" and 

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

comprehensive background investigation will be conducted. Are 

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

such an investigation?" 

Over the course of several months, Bernard Stephens -- 

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

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

of Fitchburg -- gradually narrowed the pool of potential candidates 

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

interviews. After interviewing the three remaining candidates, 

Wong chose Heagney as the finalist for the position of Fitchburg 

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

2014 announcing her decision to nominate him for the position.

Before Wong would officially nominate any candidate for 

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

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

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

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

its background investigation of Heagney. And, after an initial 

investigation, Stephan Unsworth, Fitchburg's primary contact at 
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BadgeQuest, communicated BadgeQuest's tentative conclusion to 

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

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

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

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

file from the ATF.

The next significant development occurred on March 17, 

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

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

concerns about Heagney's pending nomination for Fitchburg Police 

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

involved in various incidents of misconduct at the Attleboro, 

Falmouth, and Franklin Police Departments. The letter also stated 

that Heagney had been charged with various criminal offenses 

related to pistol whipping an individual (which subsequent 

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

criminal "case was dismissed[.]" 

At Wong's request, Stephens immediately asked BadgeQuest 

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

began to do. Before BadgeQuest had conclusively verified any of 

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

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

BadgeQuest investigation into Heagney. In his email to Unsworth 

explaining why, Stephens gave as "[r]easons": (1) "[y]our question 
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early on to him about any problems in the past . . . that we should 

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

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

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

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

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

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

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

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

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

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

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

been suspended."

Local newspapers covered Wong's withdrawal of Heagney's 

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

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

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

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

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

battery and other charges when he was 21."1

 1 That same article also included a statement attributed to 

Wong that she sent via text to Owen: "The city is not interested 

in pursuing a candidate for police chief who was not forthcoming 

with his résumé." Another article, published in the Fitchburg 

Sentinel & Enterprise, included a statement attributed to Wong 
- 8 - 

Fitchburg eventually received Heagney's personnel files 

from the ATF and the Falmouth and Attleboro Police Departments. 

Those files included the following information related to the 

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

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

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

Franklin and Wrentham Police Departments against Heagney in which 

she alleged that he had physically abused and threatened her with 

a pistol. Following the allegations, Heagney was placed on 

temporary leave from his job at the Franklin Police Department 

after an internal investigation. The criminal case against Heagney 

in Wrentham District Court for assault and battery of Collins with 

a dangerous weapon ended in Heagney's acquittal.

 The personnel files also revealed other disciplinary 

actions that had been taken against Heagney by police departments 

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

instances of misconduct, including fabricating a police report, 

acting unprofessionally during a suicide watch, and failing to 

appear in court for a trial. 

 

that "[t]he city [wa]s not interested in pursuing a candidate for 

police chief who withheld key information about their work résumé 

and character." The jury rejected Heagney's defamation claims 

arising from these statements because the jury found that both 

statements were true. On appeal, the parties do not contest the 

jury's verdicts as to these statements, so we need not address 

them here. 
- 9 - 

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

Fitchburg, BadgeQuest, and Unsworth. The defendants removed the 

case to federal court based on diversity jurisdiction. See 28 

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

except for Fitchburg had defamed him in violation of Massachusetts 

law and that Fitchburg had violated Massachusetts General Laws 

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

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

provides that it is unlawful for 

an employer, himself or through his agent, . . . to 

exclude, limit or otherwise discriminate against any 

person by reason of his or her failure to furnish such 

information through a written application or oral 

inquiry or otherwise regarding . . . an arrest, 

detention, or disposition regarding any violation of law 

in which no conviction resulted. 

Mass. Gen. Laws ch. 151B, § 4(9). 

Prior to trial, Heagney settled with BadgeQuest and 

Unsworth. Heagney then proceeded to trial on his claims against 

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

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

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

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

found that Wong had made the statement to the Worcester Telegram 

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

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

21" and that this statement was both false and defamatory. On 
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this defamation claim, the jury awarded Heagney $125,000 "for 

damages to his reputation, including emotional distress" and 

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

the other statements at issue were not false. 

The jury also found Fitchburg liable, in violation of 

Chapter 151B, for discriminating against Heagney because of his 

failure to disclose the information concerning the criminal case 

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

on after-acquired evidence of administrative actions that had been 

taken against Heagney by other police departments, that Fitchburg 

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

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

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

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

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

The defendants renewed their motion for judgment as a 

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

alternatively requested a new trial under Federal Rule of Civil 

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

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

Fitchburg now appeal. 

II. 

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

judgment as a matter of law and for a new trial on Heagney's 
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defamation claim focuses on the statement attributed to her that 

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

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

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

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

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

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

Under Massachusetts law, to prove defamation against a 

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

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

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

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

the statement caused economic loss or is actionable without 

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

510-11 (Mass. 2003). 

The jury found that Wong made the entire statement 

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

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

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

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

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

court case on alleged assault and battery and other charges when 

he was 21" was both false and defamatory. The jury's finding on 
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that portion of the statement is the sole basis for the finding of 

liability on Heagney's defamation claim. 

We can easily dispose of Wong's threshold contention 

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

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

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

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

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

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

Nevertheless, truth is "an absolute defense" to this 

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

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

 2 A Massachusetts statute permits a plaintiff in a libel 

action to recover for a truthful defamatory statement if the 

plaintiff proves that it was made in writing with actual malice. 

See Mass. Gen. Laws ch. 231, § 92. However, the First Amendment 

limits the scope of that statute such that "a statement on matters 

of public concern must be provable as false before there can be 

liability under state defamation law." Shaari v. Harvard Student 

Agencies, Inc., 691 N.E.2d 925, 927 (Mass. 1998) (internal 

quotation marks omitted) (emphasis added); see also Materia v. 

Huff, 475 N.E.2d 1212, 1216 n.6 (Mass. 1985) ("[A] judge cannot 

constitutionally apply [the statute] to a public figure or public 

official."); Ravnikar, 782 N.E.2d at 510 n.3 (noting that "the 

provisions of the First Amendment to the United States 

Constitution" limit "[t]he scope of the statute"); White v. Blue 

Cross & Blue Shield of Mass., Inc., 809 N.E.2d 1034, 1036 (Mass. 

2004). Because the parties agree that Heagney is a public figure, 

see Rotkiewicz v. Sadowsky, 730 N.E.2d 282, 287 (Mass. 2000) 

(holding that "police officers . . . are 'public officials' for 

purposes of defamation"), and that the statement at issue was on 

a matter of public concern, we do not need to address whether Wong 

made that statement with actual malice if we decide that the 

evidence was insufficient to show that the statement was false. 
- 13 - 

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

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

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

that the statement at issue was false. See Philadelphia 

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

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

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

matters which implicate core First Amendment concerns,' such as 

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

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

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

Essentially, Wong's position is that the record shows 

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

involving the criminal charges that had been lodged against him in 

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

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

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

the statement at issue cannot ground a defamation claim because it 

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

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

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

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

(defining "forthcoming" as "willing to divulge information"); 
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Merriam-Webster Dictionary (2005) (defining "forthcoming" as 

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

The evidence shows that Heagney had been put on notice 

that "a thorough and comprehensive background investigation 

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

despite multiple opportunities during that process to do so, 

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

investigation would reveal [the assault and battery] allegations, 

the resulting internal affairs investigation, the suspension, and 

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

initial application form whether he had "ever been disciplined, 

fired, or forced to resign because of misconduct or unsatisfactory 

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

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

Heagney nevertheless argues that the jury could have 

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

that Heagney wrongfully concealed the prior criminal charges 

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

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

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

to withhold this information about the prior criminal charges he 

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

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

the question of whether the statement at issue was true or false. 
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The statement makes no assertion as to whether Heagney was 

protected by Massachusetts law from being asked or required to 

furnish information concerning the prior criminal case or whether 

Heagney violated Massachusetts law by not doing so. The portion 

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

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

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

information could lawfully provide the basis for Wong's decision 

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

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

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

in any way bar Heagney from being forthcoming about the criminal 

case against him if he wished to be. 

This conclusion comports with our decision in Noonan v. 

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

Massachusetts defamation law to permit "even an objectively true 

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

might infer from it other, untrue characteristics of the plaintiff 

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

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

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

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

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

Id. at 28 (citing Murphy v. Boston Herald, Inc., 865 N.E.2d 746, 
- 16 - 

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

1987)). 

In sum, the fact that the statement attributed to Wong 

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

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

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

claim. Accordingly, because we conclude that the statement at 

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

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

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

thus reverse the judgment on the defamation claim.

III. 

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

of the judgment that concerns Heagney's claim against Fitchburg 

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

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

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

a sizable punitive damages award. Fitchburg raises several 

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

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

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

We consider each of these arguments in turn.
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A. 

Fitchburg first challenges the sufficiency of the 

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

grounds. Fitchburg contends that the evidence sufficed to show 

only that it obtained the information about the prior criminal 

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

without either having prompted or directly asked Heagney to 

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

information to make its employment decision and not on the fact 

that the information had not been disclosed by Heagney. Fitchburg 

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

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

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

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

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

on Heagney's failure to disclose information regarding the 

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

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

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

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

show that Fitchburg declined to move forward with Heagney's 

candidacy because of the nondisclosure, rather than simply because 

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

must reject this sufficiency challenge. And, reviewing "de novo, 
- 18 - 

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

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

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

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

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

the record sufficed to show. 

As we have already explained, a jury could reasonably 

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

testimony and published in the Worcester Telegram & Gazette -- 

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

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

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

represents that Wong made that decision not because of the criminal 

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

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

sufficiency challenge. 

B. 

Fitchburg next challenges the District Court's charge to 

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

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

need not prove that the prohibited ground for the employment action 

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

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

provide "strong" or "direct" evidence that it was one reason. 
- 19 - 

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

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

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

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

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

Id. at 77 (internal quotation marks omitted). 

Fitchburg contends that the District Court erred in 

issuing the mixed-motive instruction here because Heagney had not 

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

Fitchburg had relied on an illegitimate reason in refusing to hire 

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

mixed-motive instruction was warranted, Fitchburg was entitled to 

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

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

have refused to hire Heagney even apart from his nondisclosure of 

the criminal case. 

In reviewing whether the evidence suffices to prove 

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

must construe the evidence in the light most favorable to the 

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

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

Before turning directly to our consideration of 

Fitchburg's challenge to the evidentiary basis for both the mixedmotive instruction and the sufficiency of the evidence of liability 
- 20 - 

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

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

the timing of the employment decision by Fitchburg that Heagney 

contends violated Chapter 151B. 

Fitchburg contends that the employment decision at issue 

concerns whether Fitchburg would have ultimately hired Heagney for 

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

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

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

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

provides no authority for the doubtful proposition that Wong was 

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

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

employment decision would have no bearing on whether Fitchburg 

violated Chapter 151B. 

To the contrary, the record supportably shows that 

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

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

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

Heagney's candidacy for the position. 

Thus, we conclude that, to determine whether the 

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

relatedly, whether the evidence sufficed to support a finding of 

liability under that instruction -- we must consider the portions 
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of the record that concern Wong's motivation for deciding to 

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

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

mixed-motives case by offering a legitimate and sufficient reason 

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

the decision."). 

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

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

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

The parties agree that Wong formally withdrew that nomination in 

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

Fitchburg asserts that Wong had not yet definitely made up her 

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

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

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

afternoon to ask him to withdraw his name from consideration.

We conclude that a jury could reasonably infer from the 

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

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

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

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

instruction was warranted and whether a reasonable jury could have 

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

of a motive other than the one prohibited by Chapter 151B.
- 22 - 

1. 

We first address Fitchburg's contention that it was 

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

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

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

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

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

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

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

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

this context is evidence that if believed, results in an 

inescapable, or at least highly probable, inference that a 

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

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

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

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

court must determine whether the plaintiff has put forth sufficient 

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

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

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

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

determination de novo and reading "the evidence, taking all 

inferences in favor of [the non-moving party]," Burton v. Town of 
- 23 - 

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

met his initial burden. 

The most "direct" evidence is the statement attributed 

to Wong in the Worcester Telegram & Gazette that Owen testified 

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

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

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

when he was 21." 

That statement, if attributed to Wong and credited, was 

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

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

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

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

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

circumstantial evidence that Wong was motivated by Heagney's 

failure to disclose the criminal case. The jury heard testimony 

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

council up until the moment that she received the anonymous letter 

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

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

admission, however, Wong decided to withdraw her support for 

Heagney before she "knew whether the allegations about the criminal 

charges mentioned in the letter were true." 
- 24 - 

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

Heagney's failure to disclose the criminal case that motivated 

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

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

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

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

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

2. 

We, turn, then to the question whether Fitchburg carried 

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

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

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

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

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

of persuasion on the presence of an illegitimate motive, the 

decision whether the employer has met its burden of proving that 

another legitimate, nondiscriminatory reason actually led it to 

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

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

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

strongly and overwhelmingly in favor of the moving party that no 

reasonable jury could have returned a verdict adverse to that 

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

Asociado de P.R., 554 F.3d 164, 170 (1st Cir. 2009). And, in 
- 25 - 

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

not take into consideration the credibility of witnesses, resolve 

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

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

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

Fitchburg points to two non-discriminatory reasons that, 

it contends, the record indisputably shows would have been the 

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

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

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

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

nomination based on these reasons alone. 

First, Fitchburg points to Heagney's omissions regarding 

his prior employment history. Fitchburg did provide some evidence 

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

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

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

Heagney, Wong had learned the following. The record supportably 

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

résumé or his application materials that he had worked at the 

Falmouth Police Department from 1990 to 1993, despite representing 

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

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

supportably shows that Wong had learned that Heagney had worked at 
- 26 - 

the Attleboro Police Department from 1985 to 1987, even though 

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

application materials. Wong also testified that she decided to 

withdraw her support on the basis of those omissions because she 

had concluded that Heagney would not be successful before the city 

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

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

But, Heagney testified that, although he had not 

included his prior work at the Attleboro and Falmouth Police 

Departments on his résumé or application materials, he had told 

Wong and other search committee members during a phone interview 

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

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

record also supportably shows that Wong was ready to nominate 

Heagney after the latter interview. 

Thus, a jury could reasonably find on this record that 

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

the anonymous letter. A jury could reasonably have credited 

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

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

his previous employment at the Attleboro and Falmouth Police 

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

reasonably infer that Wong was already aware of that previous 

employment and its omission from Heagney's résumé and application 
- 27 - 

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

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

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

failure to include this employment on his application materials. 

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

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

Second, Fitchburg argues that the record indisputably 

shows that Wong would have decided not to nominate Heagney solely 

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

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

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

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

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

nominate Heagney before she got on the phone with him. 

Accordingly, this line of argument also lacks merit. 

C.

Fitchburg next challenges the District Court's "afteracquired evidence" instruction to the jury, which stated, in 

relevant part: 

[E]vidence that . . . sometime after the city excluded 

Mr. Heagney as an applicant, the city acquired evidence 

that Mr. Heagney was subject to administrative actions 

that may or may not have constituted discipline while 

serving as a police officer . . . is so-called afteracquired evidence, and its purpose is limited. . . . 

[I]t is irrelevant to the question of whether defendants 

are liable for violating General Law Chapter 151B. 

Rather, the possible relevance would be to limit or 
- 28 - 

exclude damages that you might find that Mr. Heagney 

suffered as a result of any violation.

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

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

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

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

those grounds alone." The jury therefore awarded Heagney no 

compensatory damages on his Chapter 151B claim.

Fitchburg contends that the District Court's 

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

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

evidence relating to those files were so "highly prejudicial to 

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

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

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

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

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

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

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

 3 Fitchburg appears to have argued below that the jury's 

finding that Fitchburg would not have hired Heagney had it known 

of the administrative actions against him -- which it contends the 

jury should have been allowed to consider in determining liability 

-- means that the "Court should enter a judgement for the City on 

the [Chapter] 151B claim." But, Fitchburg seems to have abandoned 

that argument on appeal, arguing only that the alleged error in 

issuing the "After-Acquired Evidence" instruction means only that 

"[t]he judgment against the City on this claim must be vacated." 
- 29 - 

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

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

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

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

We note that Massachusetts law has not yet expressly 

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

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

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

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

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

decide whether Massachusetts law has "implicitly adopted" the 

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

instruction only on the ground that it erroneously stated that the 

jury could consider the after-acquired evidence solely for the 

limited purpose of assessing damages and not also for the purpose 

of assessing liability. 

Specifically, Fitchburg concedes that there is much 

precedent in "wrongful discharge" cases limiting the consideration 

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

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

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

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

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

of the plaintiff's wrongdoing acquired subsequent to an employer's 
- 30 - 

discriminatory hiring decision does not negate liability."); 

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

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

considered only in determining the amount of damages due to the 

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

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

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

cases like this one. 

Fitchburg, however, has not pointed to a single 

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

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

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

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

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

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

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

offering a legitimate and sufficient reason for its decision if 

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

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

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

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

cannot now claim that the employee was fired for the 

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

District Court did not err in rejecting Fitchburg's contention 
- 31 - 

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

evidence in determining liability under Chapter 151B requires a 

new trial. 

D.

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

award of punitive damages cannot be sustained. First, Fitchburg 

contends that the evidence was insufficient to support any punitive 

damages award. In the alternative, Fitchburg contends that the 

jury's award of punitive damages was unreasonable.

Chapter 151B authorizes the award of punitive damages, 

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

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

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

"common law and constitutional principles," Dartt v. BrowningFerris Indus., Inc., 691 N.E.2d 526, 536 (Mass. 1998). And, under 

Massachusetts law, punitive damages are only warranted for 

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

(emphasis added). 

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

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

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

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

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

the plaintiff must make an additional showing that "the defendant's 
- 32 - 

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

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

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

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

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

public condemnation and punishment." Id. 

Our review of whether the evidence suffices to permit an 

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

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

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

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

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

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

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

1. 

In challenging Fitchburg's contention that there was 

insufficient evidence to support the punitive damages award, 

Heagney first contends that the record supportably showed that 

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

further contends that this evidence of Wong's knowledge alone 

permitted a reasonable jury to find that her conduct was 

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

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

"[a]n award of punitive damages requires a heightened finding 
- 33 - 

beyond mere liability and also beyond a knowing violation of the 

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

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

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

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

is because we conclude that Heagney did not make the requisite 

showing of knowledge here in any event.4

To show that the evidence does suffice to support a 

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

such that punitive damages may be awarded against Fitchburg under 

Haddad, Heagney points to testimony from Unsworth and Stephens. 

They testified that they were aware that Fitchburg could not 

 4 Haddad does note that prior Massachusetts "cases ha[d] held 

that . . . a defendant know[ing] that it has acted unlawfully by 

interfering with the legally protected rights of the plaintiff . 

. . could be sufficient to support an award of punitive damages." 

Id. at 73 (citing Clifton v. Massachusetts Bay Transp. Auth., 839 

N.E.2d 314, 323-24 (Mass. 2005); Goodrow v. Lane Bryant, Inc., 732 

N.E.2d 289, 299 (Mass. 2000); Dartt, 691 N.E.2d at 536-37) 

(emphasis added). Although acknowledging that "the defendant['s] 

act[ing] with the knowledge that it was interfering with the 

plaintiff's right to be free of unlawful discrimination . . . has 

been . . . one circumstance warranting an award of punitive 

damages," Haddad stated that "an award of punitive damages has 

[also] been allowed" where "the defendant's act was otherwise 

outrageous, egregious, evil in motive, or undertaken with reckless 

indifference to the rights of others." Id. at 73 (emphasis added). 

Haddad then announced a "new standard describing the circumstances 

in which punitive damages may be awarded." Id. at 75 (emphasis 

added). That new standard, however, does not appear to address a 

defendant's deliberate or knowing violation of Chapter 151B, and 

we have found no post-Haddad case sustaining an award of punitive 

damages on such a basis alone. 
- 34 - 

lawfully ask candidates about a criminal case not resulting in a 

conviction and that it could not lawfully exclude a candidate 

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

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

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

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

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

inquire about arrests not resulting in conviction."

But, none of those materials purport to address a 

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

an applicant directly about a prior criminal case but learns of 

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

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

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

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

policies prohibiting racial or gender discrimination -- that the 

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

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

There is also "scant case law" in Massachusetts 

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

case law applying that statute to facts remotely like those we 

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

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

N.E.2d at 1021 (noting that "the [Massachusetts] Legislature's 
- 35 - 

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

employees from such requests from their employers and not to 

proscribe employers from seeking such information elsewhere"); 

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

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

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

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

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

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

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

particularly the application form" (internal quotation marks 

omitted)). 

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

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

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

demonstrating knowledge by either Wong or Fitchburg that this 

particular conduct was unlawful under Chapter 151B. We thus 

conclude that no reasonable jury could find that Wong 

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

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

"outrageous or egregious" enough to warrant punitive damages, 

Haddad, 914 N.E.2d at 75. 
- 36 - 

2. 

Heagney separately responds to Fitchburg's contention 

that the record does not reflect the "additional level of 

egregiousness necessary to support an award of punitive damages," 

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

that purportedly shows that Wong concealed her discriminatory 

conduct. Specifically, Heagney contends, the record shows that 

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

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

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

the same. 

Under Haddad's "definition of outrageous conduct 

appropriate specifically for discrimination claims . . . under 

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

1. whether there was a conscious or purposeful effort to 

demean or diminish the class of which the plaintiff 

is a part (or the plaintiff because he or she is a 

member of the class); 

2. whether the defendant was aware that the 

discriminatory conduct would likely cause serious 

harm, or recklessly disregarded the likelihood that 

serious harm would arise; 

3. the actual harm to the plaintiff; 

4. the defendant's conduct after learning that the 

initial conduct would likely cause harm; 

5. the duration of the wrongful conduct and any 

concealment of that conduct by the defendant. 

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

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

Nor do we see what basis there is in Massachusetts law for finding 
- 37 - 

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

concerning concealment -- could alone suffice to support an award 

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

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

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

sufficient to support a punitive damages award"). 

The jury found that Heagney suffered no actual harm from 

the Chapter 151B violation in that it awarded no compensatory 

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

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

relationship between actual damages and the award of punitive 

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

imposes no requirement "that punitive damages may only be awarded 

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

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

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

against the imposition of punitive damages under Haddad, see 

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

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

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

discriminatory conduct would likely cause serious harm, or 

recklessly disregarded the likelihood that serious harm would 

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

in which the second Haddad factor has been found to have been met. 
- 38 - 

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

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

defendant-employer was aware that the plaintiff had made multiple 

sexual harassment complaints regarding an employee and neglected 

to initiate an investigation despite the requirement in its sexual 

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

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

plaintiff despite being aware that the plaintiff had repeatedly 

inquired about open positions at least three times and the 

plaintiff had spent her entire career at the employer and was 

grandfathered into generous benefits); Dimanche v. Massachusetts 

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

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

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

made to [the plaintiff]").5

Nor could a jury have reasonably concluded that the 

defendants engaged in a "conscious or purposeful effort to demean 

or diminish the class of which the plaintiff is a part (or the 

plaintiff because he or she is a member of the class)."6 Haddad, 

 5 There was thus necessarily also no basis for a reasonable 

jury to find that "the defendant's conduct after learning that the 

initial conduct would likely cause harm" counseled in favor of 

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

6 We note that the District Court's instruction described the 

first Haddad factor only as "[w]hether the city's conduct was 

conscious or purposeful" instead of the full formulation. Heagney 
- 39 - 

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

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

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

police chief had previously been the subject of criminal and 

internal investigations for engaging in domestic violence. She 

also learned that he had not disclosed that information during an 

extensive vetting process for this leadership position in law 

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

nomination in that specific context does not indicate any 

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

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

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

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

agree with Fitchburg that such conduct "is unlikely to be 

repeated." 

 Finally, we cannot conclude that evidence of Wong's 

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

allegedly lying at trial constitutes "concealment" of a degree 

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

be sure, Heagney points to some precedent supporting the notion 

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

 

does not make any argument, however, that evidence that Fitchburg's 

conduct was conscious or purposeful (as opposed to its violation 

of Chapter 151B) supports the award of punitive damages, and 

Fitchburg does not challenge the instruction. 
- 40 - 

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

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

damages under Massachusetts law in part because of the police 

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

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

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

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

precedents. 

In Hall, the defendants, four police officers found to 

have engaged in racially motivated false arrests, argued at trial 

that the plaintiffs' testimony against them was deliberately false 

and provided a likely fabricated police report to support their 

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

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

have resulted from innocent misrecollection, and that its 

intentional quality intensified any need the jury may have found 

for punishment and deterrence." Id. at 928. 

In Ciccarelli, moreover, the defendant was a school 

superintendent who was found to have retaliated against a teacher 

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

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

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

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

contradicted by affirmative evidence of the superintendent's 
- 41 - 

presence at the hearing where the teacher testified. Id. 

Moreover, Ciccarelli concluded that the evidence sufficed to show 

that the superintendent later actively fabricated an excuse that 

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

complete coursework toward advanced certification. Id. And, the 

record further showed that the superintendent had offered to 

reinstate the teacher the day before the teacher's prospective 

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

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

Id. Ciccarelli thus determined from the totality of this evidence 

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

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

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

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

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

and application materials regarding prior employment. And, the 

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

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

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

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

superintendent manufactured an excuse in order to fire the teacher, 

Wong did not actively fabricate an allegation of misconduct to use 

as an excuse for her decision not to nominate Heagney. 
- 42 - 

Nor is the other testimony on which Heagney relies "so 

egregious as to warrant the condemnation and enhanced deterrence 

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

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

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

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

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

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

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

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

Heagney because he had not disclosed the early criminal charge" 

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

without quotes." 

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

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

concerning her motivation for withdrawing his nomination. But, 

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

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

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

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

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

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

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

620. 
- 43 - 

We thus do not see how the record reflects conduct so 

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

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

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

that there was insufficient evidence to support the award of 

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

was unreasonable or excessive. Accordingly, the award of punitive 

damages is reversed. 

IV. 

For the foregoing reasons, we reverse the judgment on 

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

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

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

 7 Wong was an official "charged with the public duty to enforce 

the law equally," Dalrymple v. Winthrop, 740 N.E.2d 204, 211 (Mass. 

App. Ct. 2000), and that fact may give her actions "a heightened 

degree of reprehensibility," Clifton, 839 N.E.2d at 323; see also 

Kiely, 13 N.E.3d at 622 n.6 (noting that this "factor" was "absent 

from the case at bar"). But, Heagney makes no argument -- nor 

have we found any post-Haddad authority suggesting -- that Wong's 

status as a public official alone is sufficient to sustain a jury's 

award of punitive damages for a Chapter 151B violation by the city 

that employs that official in a case involving facts like these. 

Compare with Clifton, 839 N.E.2d at 316 (upholding award of 

punitive damages against city transit authority where "both 

supervisors and coworkers" engaged in extensive racial 

discrimination against a plaintiff "throughout nine years of his 

employment").