A report was commissioned by the city of Brockton to look into a claim of retaliation as part of the Russell Lopes employment discrimination case. Lopes was awarded $4 million by a jury at Brockton Superior Court last year. But a new report by the Boston-based law firm Prince Lobel concludes that the jury didn't get to see all the evidence and no retaliation actually took place.
BROCKTON – Despite a jury ruling to the contrary last year following a six-day trial, a new report commissioned by Brockton Mayor Bill Carpenter concludes that there was no retaliation committed against a job applicant whose claims of employment discrimination ended in a $4 million penalty against the city.
The 26-page report written by the Boston-based Prince Lobel was released on Thursday, featuring a summary of interviews with seven witnesses, and a review of documents related to the $4 million lawsuit won last year by Russell Lopes. The plaintiff said he was the victim of racially-motivated employment discrimination and subsequent retaliation by the city for his complaints. The city sent its former Code Enforcement Task Force to the home of Lopes the day after he appeared in a story published by The Enterprise in July 2011, giving his account of being rejected for a Brockton Department of Public Works mechanic job.
The Prince Lobel report argued that the jury was not privy to information that the law firm was able to obtain, including an email from the chief of staff for former Brockton mayor Linda Balzotti, requesting the Code Enforcement Task Force to visit Lopes’ home due to a neighbor complaining that Lopes was working on a truck at his Nancy Lane property. Along with other "significant evidence" of prior code enforcement complaints for Lopes' home, the report states the the former chief of staff, Ken Thompson, was not called to the stand as a witness during the civil trial last year.
“In sum, there is credible evidence from multiple sources that supports the conclusion that the Task Force went to Mr. Lopes’ home on July 27, 2011, due to a neighbor’s complaint regarding his work on a truck on his property, and not as a result of (or, in response to) the July 26th Enterprise article,” the Prince Lobel report states. “On the other side of the ledger, the evidence and inferences that would support a retaliatory motive were found to be weak and to be far outweighed by the evidence that supports a non-retaliatory motive. To conclude otherwise would be to engage in speculation and ignore facts.”
Scroll to the bottom of the story to read the entire Prince Lobel report on retaliation in the Lopes case.
The Prince Lobel report concludes that it was just a coincidence that this code enforcement incident came the day after the Enterprise published an interview with Lopes. At the same time, the law firm concedes in its investigation that Lopes “understandably” had reason to be concerned that he was targeted for retaliation.
“As for the timing of the events, while again, understandably it struck Mr. Lopes as suspicious, we believe it is sufficiently explained by the substantial evidence of contemporaneous complaints from a neighbor who had made similar complaints in the past,” the Prince Lobel report states.
The jury awarded Lopes $4 million on Jan. 30, 2017, but that award was broken down into his employment discrimination claim, for which he received $1.2 million in punitive damages; and his retaliation claim, for which he received $350,000 in compensatory damages and $2.5 million in punitive damages.
The city of Brockton continues its efforts to appeal the case, which is now before the Massachusetts Appeals Court. Motions were argued on behalf of the city a several months ago by Boston-based lawyer Leonard Kesten. The city is now awaiting a ruling.
Philip Gordon, the Boston-based attorney representing Lopes, said that the email from Thompson and other evidence in the Price Lobel report does not disprove retaliation. In fact, the information supports Lopes’ claim of retaliation, he said.
"I think it would have led to corruption at the mayor's office and it would have been worse," said Gordon, reached on Thursday afternoon.
Gordon also pointed out that the Prince Lobel investigation shows how Thompson admitted it was "likely" that he discussed The Enterprise article with Balzotti. Gordon said the mayor's office sent the task force, which included a police officer with a reputation for overly aggressive code enforcement against members of the Cape Verdean community. (Lopes is of Cape Verdean descent.)
"I would have given a different closing argument: The fish rots from the head down," Gordon said. "That's what I would have started my closing argument with."
The Prince Lobel report also states that Thompson could not recall who made a request to him to contact the Code Enforcement Task Force to visit Lopes' home. The report states Thompson "didn't recall getting an order from Mayor Balzotti" to address a complaint lodged by Lopes' neighbor, but he couldn't rule it out. The complainant neighbor was a prominent member of the community and had a personal connection to the former mayor, according to the report.
Balzotti did not respond to requests to participate in the Prince Lobel investigation, according to the law firm.
Gordon said that the city's director of personnel, Maureen Cruise, was caught misrepresenting her actions during the trial, when she claimed that she didn't gave special help to any job candidates. Cruise was then confronted with her own email, providing instructions to a white candidate to navigate the employment process for a DPW job. Also, during the trial, Lopes claimed that Cruise told him, "You're lucky we even interviewed someone like you," which he interpreted to be a discriminatory comment. Cruise, who remains the city's director of personnel, denied she said that.
"You think other witnesses were going to fare much better?" Gordon said. "If I had the city brass on the witness stand, and I had connected the mayor's office with the order to do this investigation, that jury verdict would have been significantly larger. ... It’s now even more clear that defense counsel wisely did everything they could to avoid a bloodbath on the retaliation count. It looks easy to second guess a trial lawyer, but we were prepared for every bit of this."
In the report released by Prince Lobel, it notes that before the Enterprise article was published, Cruise said she informed the mayor's office and the Brockton Law Department about the newspaper working on a story about Lopes.
Gordon added that Brockton Fire Lt. Eddie Williams, who was part of the now defunct Code Enforcement Task Force, admitted on the stand that he "stepped in it” after the mayor's office sent him to Lopes' home the day after The Enterprise story was published.
The new report on Lopes' retaliation claim, which was authored by attorneys Walter B. Prince and Daniel S. Tarlow, cost the city $68,000, according to City Solicitor Philip Nessralla. The Collins Center for Public Management at UMass Boston will do a separate, broader examination of personnel, diversity and hiring practices, said Carpenter, the current mayor.
Prince said he stands by his conclusion, which does not involve speculation.
"I can't say what was in the jury's mind, I can only tell you, based upon the evidence that we found in this investigation, that we reached this particular conclusion," said Prince, during a small press conference at Brockton City Hall on Thursday afternoon.
Carpenter said the investigation by Prince Lobel reveals a "long track record of complaints" by a neighbor against Lopes, proving how the Code Enforcement Task Force visit to Lopes' home was not an act of retaliation.
"I'm actually relieved," Carpenter said. "The report brings up some questions in my mind. But I think it answers a lot of questions that people have had."
Look below to read the entire Prince Lobel report on retaliation in the Lopes case.