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3)
. COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
MIDDLESEX, ss. SUPERIOR COURT
ALICIA CRINITI,
Plaintiff,
C.A. NO: 21 81CV00466
Vv.
F.W. WEBB COMPANY,
ROBERT MUCCIARONE and
BRENDAN MONAGHAN.
Defendants.
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2
(“TO PROHIBIT IMPROPER LAY OPINION”)
The instant motion largely concerns what the Supreme Judicial Court has termed “words
of summary description.” Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 647 (1961) (judge
had discretion to permit witnesses to use words “boisterous” and “in an arrogant manner” to
describe actions of person they observed). While fact witnesses are generally expected to testify
as to the things that they saw and heard, doing so often requires them to characterize those
observations in order to accurately convey their observations to the jury. Classic examples are
testimony that a person was “angry” or “happy”or “drunk.” These are descriptive terms that can
be rationally based on a witness’s first-hand observations and helpful to a jury in understanding
what they saw. See Mass. Guide to Evid. Rule 701.
“[W]ords of summary description” can be particularly helpful to a jury in discrimination
cases because context is often needed to understand meaning. As the United States Supreme
Court has explained in the context of racial discrimination, “[t]he speaker's meaning may depend
on various factors including context, inflection, tone of voice, local custom, aid historical:
usage.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (per curiam). Thus, for example, in
B urns v. Johnson, 829 F.3d 1, 12-13 (ist Cir. 2016), the First Circuit held that it was permissible
for a lay witness to testify that a supervisor’s tone was “condescending” and that their actions
exhibited “disdain.”
Against this backdrop, the relief sought in Defendants’ motion clearly sweeps too broad.
To be sure, a witness should not purport to be a mind reader. But it will ultimately be the jury’s
‘duty to determine what the Defendants thought, meant and intended at various points in time. To
make that determination, the jury would be significantly aided by the impressions formed by the
individuals who saw the conduct first-hand.
The incident cited by Defendants in their motion, in which Mr. Mucciarone said to
Plaintiff “I’d recognize you from the back,” is a prime example. At her deposition, Plaintiff did
not only characterize this comment as “sexist’”—she also explained why. Specifically, she
testified that the comment was made in a “lewd way” and identified “the tone and the laugh that
goes with it” as causing her to believe it was “sexist.”
These characterizations are not inadmissible “editorial opinions”—they are the
observations made by the person who was actually there and had the benefit of hearing not just
what was said, but how it was said. If the jury is deprived of these first-hand observations, it
cannot properly fulfill its ultimate role as factfinder.
The same is also true with respect to the referenced testimony of Lisa Mooradian. Her use
of words like “demeaning” and “degrading” to describe the conduct that she observed first-hand
is no different than-the descriptive words found to be permissible by the First Circuit in Burns.'.
829 F.3d at 12-13 (allowing descriptors of “condescending” and showing “disdain”). Likewise,
here description of conduct as “flirting” and “teasing” is plainly the type of “words of summary
description” that courts routinely allow.
Ms. Mooradian’s testimony that she believed Mucciarone was referring to women when
he said “[they] are only good for certain things if you know what I mean” while elbowing a male
employee who was standing next to him falls squarely within the realm of permissible lay
opinion. See Mass. Guide to Evid. 701. This is a classic lay opinion that is rationally based on
the witness’s observations and helpful in telling their story. So too is her testimony concerning
her understanding of what Mr. Monaghan meant by his use of the term “club,” which she
explained at deposition “[y]ou would probably only understand that if you were immersed in the
environment at Webb and saw the social structure of management.” See Exhibit A.
For the foregoing reasons, Plaintiff respectfully requests that Defendants’ Motion in Limine
No. 2 (“To Prohibit Improper Lay Opinion”), be denied.
Respectfully submitted,
Plaintiff Alicia Criniti,
By her attomeys,
/s/ PatrickJ. Hannon
Patrick J. Hannon, BBO# 664958
Hartley Michon Robb. Hannon LLP
101 Federal Street, Suite 1810
Boston, MA 02110 P:
(617) 723-8000
phannon@hmrhlaw.com
' Defendants’ brief cherry picks three examples of the behavior observed by Ms. Mooradian, but
there is substantially more set forth in her affidavit.
3
CERPIFICATE OF SERVICE 4
I, Patrick J. Hannon, hereby certify that I served a copy of the foregoing document upon
all counsel of record, via E-Mail, on February 7, 2024.
4s/ Patrick J. Hannon
Patrick J. Hannon
Exhibit A
189
employeés talking about. Hooters with no-
subtext or implication in the question?
Well, after -- well, Iam trying to remember
if it was after an operations managers
meeting or a sales managers meeting -- I
don't think it was a general managers
meeting, I think it was an operational
managers meeting -- where there was many male
attendees from the meeting, F.W. Webb
10 employees, that went there. And so I still
11 can't say with certainty how many times.
12 Q. As you sit here today, can you recall more
13 than twice?
14 MS. HAN: Objection. Asked and
15 answered.
16 You can answer.
17 Excuse me?
18 You can answer, Miss Mooradian. I apologize.
19 I'm sorry, I have difficulty when it goes
20 back and forth like this. There's a delay on
21 my computer.
22 I can't say for certain how many
23 times.
24 So let's move onto paragraph 19. You wrote,
<= = ——
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In or arotind 2016 or 2017 I heard
Mr. Monaghan comment in the hallway to
someone else; She's not part of the club,
referring to Miss Criniti and club meaning
executive.
Did I read that correctly?
Yes, you did.
In 2016 or 2017 was Miss Criniti part of the
executive team?
10 Yes.
11 Well, at the time she was director of
12 marketing; correct?
13 Yes.
14 And how. did you know that Mr. Monaghan was
15 referring to Miss Criniti when he said, She's
16 not part of the club?
17 As I made the testimony the other day, he had
18 a very, very, very loud voice and you can
19 hear him down the hall. As I told you whose
20 office was where, I would like to continue
21 that and say there was the exit to the right
22 of my office and to the very left of my
23 office was a conference room. There would be
24 a lot of meetings in there for the sales
Dunn Reporting Services, Inc.
617-422-0005
191
managers:
who also sat around, but next to
that conference room there was a small
office and then it was Alicia's, so I could
see Alicia's office from my office and hear
the conversations of people standing out in
the hall or in the hall if they didn't shut
the door. Her office was probably about, I
want to say, 20 feet from mine, and again I
am sitting behind a half cube that’ is all
10 open so everyone could hear. You. know, it
11 was kind of like a fishbowl.
12 My question was a little different. My
13 question was how did you know when
14 Mr. Monaghan said "she" he was referring to
15 Miss Criniti?
16 Because she, besides Ruth, was the only
17 female staff member.
18 Who was Mr. Monaghan speaking to?
19 He -- I believe he was speaking to another
20 general manager
21 Q. How do you know what Mr. Monaghan meant when
22 he said "club"?
23 You would probably only understand that if
24 you were immersed in the environment at Webb
Dunn Reporting Services, Inc.
617-422-0005
192
and saw-the social structures of management.
Well, I'm not part of that, so I am trying to
understand more how you were able to
determine that when Mr. Monaghan said "club"
he was referring to the executive team, as
you wrote in this paragraph of your
affidavit.
Well, as I mentioned in my testimony the
other’ day, in regards to the meeting that: I
10 had, that I was brought into with
i1 Mr. Monaghan and Miss Martin and Miss Corkery
12 —-- excuse me, I just need a drink.
13 Q. No problem.
14 You know, when I was berated by Mr. Monaghan
15 and called a two-bit part-time clerk, that
16 was just a demonstration of how there were
17 different classes, so to speak, or what he
18 referred to as clubs, and I obviously wasn't
19 in one. So what I am saying is there was --
20 what I am trying to say is that there is --
21 there was -- I don't want to say social
22 classes, but different verbiage for different
23 levels of management.
24 How were you able to determine that
<—
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193
Mr. Monaghan wasn't referring
to: membership
in some other club, like a golf club, a
social club, a bowling club?
I don't know what to say about that. I have
no comment.
I apologize for cutting you off. You can
finish your answer.
I don't know how to answer that.
Fair to say you were speculating when you
10 believed that Mr. Monaghan was referring to
11 the executive team when he said "club"?
12 MS. HAN: Objection.
13 Well, Mr. Monaghan in my observation was not
14 very nice, as I gave in my testimony, to
15 myself as a female employee, and I didn't
16 see him very cooperative with others, either
17 My observation, yes, it was my observation,
18 but I would talk to him straight and.ask him
19 questions and he wouldn't even answer me, he
20 would walk away from me.
21 Let's move onto paragraph 21, which is at the
22 top of page 5 -- and I'm almost finished.
23 You wrote, Mr. Mucciarone encouraged and
24 supported Mr. Monaghan's inappropriate
<== i
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3) . COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT MIDDLESEX, ss. SUPERIOR COURT ALICIA CRINITI, Plaintiff, C.A. NO: 21 81CV00466 Vv. F.W. WEBB COMPANY, ROBERT MUCCIARONE and BRENDAN MONAGHAN. Defendants. PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE NO. 2 (“TO PROHIBIT IMPROPER LAY OPINION”) The instant motion largely concerns what the Supreme Judicial Court has termed “words of summary description.” Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 647 (1961) (judge had discretion to permit witnesses to use words “boisterous” and “in an arrogant manner” to describe actions of person they observed). While fact witnesses are generally expected to testify as to the things that they saw and heard, doing so often requires them to characterize those observations in order to accurately convey their observations to the jury. Classic examples are testimony that a person was “angry” or “happy”or “drunk.” These are descriptive terms that can be rationally based on a witness’s first-hand observations and helpful to a jury in understanding what they saw. See Mass. Guide to Evid. Rule 701. “[W]ords of summary description” can be particularly helpful to a jury in discrimination cases because context is often needed to understand meaning. As the United States Supreme Court has explained in the context of racial discrimination, “[t]he speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, aid historical: usage.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (per curiam). Thus, for example, in B urns v. Johnson, 829 F.3d 1, 12-13 (ist Cir. 2016), the First Circuit held that it was permissible for a lay witness to testify that a supervisor’s tone was “condescending” and that their actions exhibited “disdain.” Against this backdrop, the relief sought in Defendants’ motion clearly sweeps too broad. To be sure, a witness should not purport to be a mind reader. But it will ultimately be the jury’s ‘duty to determine what the Defendants thought, meant and intended at various points in time. To make that determination, the jury would be significantly aided by the impressions formed by the individuals who saw the conduct first-hand. The incident cited by Defendants in their motion, in which Mr. Mucciarone said to Plaintiff “I’d recognize you from the back,” is a prime example. At her deposition, Plaintiff did not only characterize this comment as “sexist’”—she also explained why. Specifically, she testified that the comment was made in a “lewd way” and identified “the tone and the laugh that goes with it” as causing her to believe it was “sexist.” These characterizations are not inadmissible “editorial opinions”—they are the observations made by the person who was actually there and had the benefit of hearing not just what was said, but how it was said. If the jury is deprived of these first-hand observations, it cannot properly fulfill its ultimate role as factfinder. The same is also true with respect to the referenced testimony of Lisa Mooradian. Her use of words like “demeaning” and “degrading” to describe the conduct that she observed first-hand is no different than-the descriptive words found to be permissible by the First Circuit in Burns.'. 829 F.3d at 12-13 (allowing descriptors of “condescending” and showing “disdain”). Likewise, here description of conduct as “flirting” and “teasing” is plainly the type of “words of summary description” that courts routinely allow. Ms. Mooradian’s testimony that she believed Mucciarone was referring to women when he said “[they] are only good for certain things if you know what I mean” while elbowing a male employee who was standing next to him falls squarely within the realm of permissible lay opinion. See Mass. Guide to Evid. 701. This is a classic lay opinion that is rationally based on the witness’s observations and helpful in telling their story. So too is her testimony concerning her understanding of what Mr. Monaghan meant by his use of the term “club,” which she explained at deposition “[y]ou would probably only understand that if you were immersed in the environment at Webb and saw the social structure of management.” See Exhibit A. For the foregoing reasons, Plaintiff respectfully requests that Defendants’ Motion in Limine No. 2 (“To Prohibit Improper Lay Opinion”), be denied. Respectfully submitted, Plaintiff Alicia Criniti, By her attomeys, /s/ PatrickJ. Hannon Patrick J. Hannon, BBO# 664958 Hartley Michon Robb. Hannon LLP 101 Federal Street, Suite 1810 Boston, MA 02110 P: (617) 723-8000 phannon@hmrhlaw.com ' Defendants’ brief cherry picks three examples of the behavior observed by Ms. Mooradian, but there is substantially more set forth in her affidavit. 3 CERPIFICATE OF SERVICE 4 I, Patrick J. Hannon, hereby certify that I served a copy of the foregoing document upon all counsel of record, via E-Mail, on February 7, 2024. 4s/ Patrick J. Hannon Patrick J. Hannon Exhibit A 189 employeés talking about. Hooters with no- subtext or implication in the question? Well, after -- well, Iam trying to remember if it was after an operations managers meeting or a sales managers meeting -- I don't think it was a general managers meeting, I think it was an operational managers meeting -- where there was many male attendees from the meeting, F.W. Webb 10 employees, that went there. And so I still 11 can't say with certainty how many times. 12 Q. As you sit here today, can you recall more 13 than twice? 14 MS. HAN: Objection. Asked and 15 answered. 16 You can answer. 17 Excuse me? 18 You can answer, Miss Mooradian. I apologize. 19 I'm sorry, I have difficulty when it goes 20 back and forth like this. There's a delay on 21 my computer. 22 I can't say for certain how many 23 times. 24 So let's move onto paragraph 19. You wrote, <= = —— Dunz Reporting Services, Inc. 617-422-0005 190 In or arotind 2016 or 2017 I heard Mr. Monaghan comment in the hallway to someone else; She's not part of the club, referring to Miss Criniti and club meaning executive. Did I read that correctly? Yes, you did. In 2016 or 2017 was Miss Criniti part of the executive team? 10 Yes. 11 Well, at the time she was director of 12 marketing; correct? 13 Yes. 14 And how. did you know that Mr. Monaghan was 15 referring to Miss Criniti when he said, She's 16 not part of the club? 17 As I made the testimony the other day, he had 18 a very, very, very loud voice and you can 19 hear him down the hall. As I told you whose 20 office was where, I would like to continue 21 that and say there was the exit to the right 22 of my office and to the very left of my 23 office was a conference room. There would be 24 a lot of meetings in there for the sales Dunn Reporting Services, Inc. 617-422-0005 191 managers: who also sat around, but next to that conference room there was a small office and then it was Alicia's, so I could see Alicia's office from my office and hear the conversations of people standing out in the hall or in the hall if they didn't shut the door. Her office was probably about, I want to say, 20 feet from mine, and again I am sitting behind a half cube that’ is all 10 open so everyone could hear. You. know, it 11 was kind of like a fishbowl. 12 My question was a little different. My 13 question was how did you know when 14 Mr. Monaghan said "she" he was referring to 15 Miss Criniti? 16 Because she, besides Ruth, was the only 17 female staff member. 18 Who was Mr. Monaghan speaking to? 19 He -- I believe he was speaking to another 20 general manager 21 Q. How do you know what Mr. Monaghan meant when 22 he said "club"? 23 You would probably only understand that if 24 you were immersed in the environment at Webb Dunn Reporting Services, Inc. 617-422-0005 192 and saw-the social structures of management. Well, I'm not part of that, so I am trying to understand more how you were able to determine that when Mr. Monaghan said "club" he was referring to the executive team, as you wrote in this paragraph of your affidavit. Well, as I mentioned in my testimony the other’ day, in regards to the meeting that: I 10 had, that I was brought into with i1 Mr. Monaghan and Miss Martin and Miss Corkery 12 —-- excuse me, I just need a drink. 13 Q. No problem. 14 You know, when I was berated by Mr. Monaghan 15 and called a two-bit part-time clerk, that 16 was just a demonstration of how there were 17 different classes, so to speak, or what he 18 referred to as clubs, and I obviously wasn't 19 in one. So what I am saying is there was -- 20 what I am trying to say is that there is -- 21 there was -- I don't want to say social 22 classes, but different verbiage for different 23 levels of management. 24 How were you able to determine that <— Dunn Reporting Services, Inc. 617-422-0005 193 Mr. Monaghan wasn't referring to: membership in some other club, like a golf club, a social club, a bowling club? I don't know what to say about that. I have no comment. I apologize for cutting you off. You can finish your answer. I don't know how to answer that. Fair to say you were speculating when you 10 believed that Mr. Monaghan was referring to 11 the executive team when he said "club"? 12 MS. HAN: Objection. 13 Well, Mr. Monaghan in my observation was not 14 very nice, as I gave in my testimony, to 15 myself as a female employee, and I didn't 16 see him very cooperative with others, either 17 My observation, yes, it was my observation, 18 but I would talk to him straight and.ask him 19 questions and he wouldn't even answer me, he 20 would walk away from me. 21 Let's move onto paragraph 21, which is at the 22 top of page 5 -- and I'm almost finished. 23 You wrote, Mr. Mucciarone encouraged and 24 supported Mr. Monaghan's inappropriate <== i Dunn Reporting, Services, Inc. 617-422-0005