The Commission's decision

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COMMONWEALTH OF MASSACHUSETTS
COMMISSION AGAINST DISCRIMINATION
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MCAD and NANCY DALRYMPLE,
Complainants
v. Docket Nos.: 02-BEM-03751
05-BEM-01174
TOWN OF WINTHROP, 1 05-BEM-02944
Respondent
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Appearances: Jonathan J. Margolis and Beth R. Meyers, Esqs. For Complainant
Michelle Randazzo and Peter E. Montgomery, Esqs. For Respondent
DECISION OF THE HEARING OFFICER
I. PROCEDURAL HISTORY
On November 7, 2002, Nancy Dalrymple (“Complainant”) filed a complaint with
the Massachusetts Commission Against Discrimination (“MCAD”) charging that the
Town of Winthrop discriminated against her on the basis of gender and retaliated against
her for filing prior complaints alleging discrimination. 2 On April 28, 2005, Complainant
filed additional charges of gender discrimination and retaliation against the Town of
Winthrop and individually-named respondents. 3 On November 4, 2005, Complainant
filed a third charge of gender discrimination and retaliation against the Town of Winthrop
and individually-named respondents. 4 A lack of probable cause finding was issued in the
first complaint on March 11, 2004 but was reversed after appeal on September 30, 2005.
1 At the commencement of the public hearing, the parties agreed to release the individual respondents from
the case.
2 MCAD Docket No. 02-BEM-03751.
3 MCAD Docket No. 02-BEM-01174.
4 MCAD Docket No. 05-BEM-02944

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On December 21, 2007, a preliminary disposition was issued in the second complaint in
which the claims against individuals David Goldstein, Richard DiMento and Virginia
Wilder were found to lack probable cause but the claims against the Town were found to
have probable cause. A probable cause finding was issued by the Investigating
Commissioner in the third complaint on September 2, 2010.
The cases were certified for a public hearing on January 28, 2008, February 10,
2009, and August 23, 2011, respectively. It was determined that the matters would be
consolidated and heard together. The public hearing commenced on July 8, 2013 and
continued on July 9, 11 and 15, 2013. On the first day of hearing, Complainant moved to
dismiss claims against individually-named Respondents Virginia Wilder, Martin O’Brien,
Brian Perrin, and Susan Bolster. The motion was granted.
The following witnesses testified at the public hearing: Complainant, Michael
McManus, Virginia Wilder, Stephen Rogers, Paul DeLeo, Susan Bolster, Frank Scarpa,
and Ronald Vecchia. The parties submitted Joint Stipulations of Fact and forty-nine (49)
agreed-upon exhibits. In addition, Complainant submitted five (5) additional exhibits and
Respondent submitted three (3) additional exhibits. Two (2) chalks pertaining to Paul
DeLeo’s promotion to lieutenant were also submitted.
Based on all the relevant, credible evidence and the reasonable inferences drawn
therefrom, I make the following findings and conclusions.
II. FINDINGS OF FACT
1. Complainant became a permanent police officer in the Town of Winthrop in
1982. Transcript I at 27. For a number of years she was the only woman on the
force. Transcript II at 42. Complainant has a Bachelor of Arts degree and a

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Master of Science degree in the fields of political science and criminal justice
administration. She attended the police academy and holds certificates of
completion in areas of first aid, fingerprinting, breathalyzer operation, and
investigation of sex offenses. At various times during her tenure with the
Winthrop Police Department, she was the police union vice president and member
of the police union executive board. At the time of public hearing she was the
second most senior member of the Department. Only Lieutenant Frank Scarpa
had more seniority. Joint Exhibit 11.
2. Prior to January 1, 2006, the Winthrop police chief reported to the Winthrop
Board of Selectmen which functioned as the Appointing Authority for the
Winthrop Police Department. The chief could not hire or promote without the
Board’s approval. Transcript II at 94. Although the Board of Selectmen was
technically the Appointing Authority, it deferred to the Chief’s recommendations
regarding the appointment and promotion of police personnel. The Board of
Selectmen was a part-time entity administered by an executive secretary. Virginia
Wilder served as the Board’s executive secretary from 1989 to January 1, 2006.
Wilder was the conduit between department heads and the Board of Selectmen.
She knew about litigation brought by Complainant against the Town, attended
Complainant’s jury trial against the Town, and testified at the MCAD in regard to
previous claims brought by Complainant. Transcript II at 162-167. On January 1,
2006, the Town changed to a town council form of government and abolished the
Board of Selectmen. Transcript II at 93.

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3. The Winthrop Police Department operates under the provisions of Massachusetts
civil service law. Joint Stipulation 35. In 1987, Complainant took, but did not
pass, a civil service examination for promotion to police sergeant. Transcript I at
36.
4. In 1989, Complainant filed an MCAD complaint alleging that she was treated
differently from other members of the Winthrop Police Department in regard to
such matters as executing arrest warrants and participating in drug raids . The
charge went to public hearing and resulted in an award of $25,000.00 in damages
and an additional award for attorney’s fees. See Dalrymple v. Town of Winthrop,
15 MDLR 1473 (1993). The award was upheld on appeal. See Town of
Winthrop v. MCAD and Dalrymple (Suffolk, ss, CA 965667C, November 1998,
Cratsley, J), affirmed Town of Winthrop v. Dalrymple and another,
Memorandum and Order pursuant to Appeals Court Rule 1:28 (Doc. No. 99-P-
280, December 28, 2000). 
5. Between 1990 and 1991, Complainant brought several additional charges to the
MCAD pertaining to a shift reassignment, the omission of her name in regard to
firearm recertification, and the refusal to reassign her to the station during her
second pregnancy. 
6. In August of 1992, Complainant was terminated from her position as police
officer for “conduct unbecoming” in regard to her alleged refusal to return to
work after a leave of absence following her second pregnancy and her efforts to
extend the leave based on a doctor’s note addressing problems with her hands (a
work-related injury to one hand and pregnancy-related tendonitis in the other).

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Chief Angelo LaMonica initiated the termination. Complainant appealed to the
Civil Service Commission and, after being out of work for almost three years, the
Civil Service Commission in 1995 ordered Complainant reinstated with back pay
upon a medical determination that she was fit to return to duty. Transcript I at 27-
28.
7. In 1995, Complainant filed a complaint with the MCAD for gender discrimination
and retaliation arising out of her dismissal from the police force. The case was
removed to Suffolk Superior Court (Docket No. 95-4248B). Following trial, a
jury awarded Complainant damages in the amount of $575,000.00 for
compensatory and punitive damages against the Town of Winthrop and
individually against former Police Chief LaMonica. The verdict was upheld on
appeal. See Dalrymple v. Town of Winthrop, 50 Mass. App. Ct. 611 (2000). The
Supreme Judicial Court subsequently denied further appellate review. Joint
Stipulation 58. The judgment was common knowledge within the Town of
Winthrop and its police department. Transcript III at 115, IV at 11, 28-29.
8. In 1995, Complainant took a civil service examination for sergeant and placed
third on the list for promotion to sergeant. Transcript I at 36. The Town
promoted the top two patrol officers to sergeant off the eligible list. Respondent’s
Exhibit 2 (arbitration decision at p. 2); Transcript I at 37.
9. On October 23, 1999, Complainant again took a civil service examination for
sergeant. Complainant placed first on the March 23, 2000 eligible list.
Complainant’s Exhibit 1; Transcript I at 37; Respondent’s Exhibit 2 (arbitration
decision at 2). It is customary in the Town of Winthrop Police Department to

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select the first candidate on the eligible list to fill a vacancy unless there is a valid
reason for bypass in which case the Chief must provide a written justification for
the bypass. Goldstein Deposition at 45. 5
10. In December of 2000, Michael McManus became chief of the Winthrop Police
Department. Transcript II at 92. He had previously been a lieutenant. Transcript
II at 51. Prior to his appointment as chief, there were four lieutenants and five
sergeants. Transcript II at 103. There had been five sergeants in the Department
since at least 1995. Transcript III at 49. After his appointment, there were three
lieutenants (Perrin, Scarpa, and Lessard) and five sergeants (DeLeo, Femino,
Hickey, Scholwin, and Diaz). Chalk A; Transcript I at 176; Transcript II at 69,
104. 6
11. In 2001, the Town paid Complainant $784,633.96 in compensatory and punitive
damages and interest in fulfillment of the 1995 jury award, the MCAD award(s),
and possibly other judgments that Complainant held against the Town. Joint
Stipulation 59; Transcript II at 169. Around the time that the judgment was paid,
Ronald Vecchia and Marie Turner were re-elected to the Winthrop Board of
Selectmen after a period of time when they were off the Board. Transcript IV at
76; Turner Deposition at 11, 64. They both denied any recollection of discussions
about the Appeals Court verdict for Complainant even though it represented
5 David Goldstein was the Winthrop Police Chief from 2004 to 2009. He does not live in Massachusetts
and, thus, could not be served with a subpoena to command his testimony at the public hearing. In lieu of
live testimony, I accepted portions of his November, 2006 deposition into evidence.
6 According to Joint Stipulation of Facts #22, the 2001 Annual Town Report lists Paul Deleo as a
lieutenant. I discredit this information since it conflicts with the credible evidence cited herein as well as
Joint Stipulation 41 which states that Sergeant DeLeo was promoted to lieutenant on March 1, 2002.

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almost half of the police personnel budget. Id. at 77, 79; Deposition at 28. I do
not credit their testimony.
12. Chief McManus testified in at least one prior action brought by Complainant
before the MCAD and in the jury trial. Transcript I at 34, II at 43.
13. In March of 2002, the Town promoted Sergeant Paul DeLeo to lieutenant.
Respondent’s Exhibit 2 (arbitration decision at p. 2); Chalks A & B; Joint
Stipulation 41. DeLeo was first on the civil service eligible list for lieutenant.
Transcript II at 115. During McManus’s tenure as chief, he never recommended
an officer for promotion who was lower than first on a promotion list. Transcript
II at 68.
14. After DeLeo’s promotion, there were four lieutenants and four sergeants.
Transcript I at 49; Chalk B. One of the existing lieutenants, Lt. Perrin, was
moved out of the day shift and put in charge of detectives. Transcript II at 113.
After DeLeo’s promotion and Lt. Perrin’s transfer, some shifts lacked supervisory
coverage which made it more likely that a supervisory officer would have to be
hired on an overtime basis to ensure the presence of a superior officer on all
shifts. Transcript II at 152-153; III at 116.
15. Chief McManus did not request funding for an additional sergeant’s position in
his proposed budgets for fiscal years 2002 (7/01-6/02) and 2003 (7/02-6/03).
Transcript II at 105-107. He testified that he did not do so because even without a
fifth sergeant’s position, there were still two superior officers on each shift.
Transcript II at 109, 120. Chief McManus testified that he did not believe another
sergeant would significantly reduce supervisory overtime because: 1) the fifth

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position would be assigned to a particular shift; 2) overtime costs on the other
shifts would be unaffected; and 3) the Department always spends whatever
overtime is allocated. Transcript II at 126-127. I do not credit his testimony.
16. Then-Board of Selectman Marie Turner testified at deposition 7 that the Board
didn’t requisition a promotional list for sergeant after Deleo’s promotion to
lieutenant because the Police Department was operating well with four lieutenants
and four sergeants and because of extreme cutbacks on overtime. Deposition at
38. However, she also stated that she didn’t know about overtime usage
following DeLeo’s promotion and never requested to see supervisory overtime
data. Deposition at 47, 74. According to Turner, Complainant should not have
won “close to a million dollars” in damages because she was not subjected to
discrimination. Deposition at 36-37, 62-63, 66. Nonetheless, Turner denied
having any conversations about Complainant’s litigation and denied that there
was any discussion about Complainant winning a lawsuit against the Town.
Deposition at 62-64. I do not credit Turner’s testimony.
17. Sergeant Stephen Rogers, police union president from 2003 to 2004, testified in
contradiction to Chief McManus that four sergeants was an insufficient number to
achieve the cost-effective goal of having two supervisors on every shift.
Transcript III at 55; Complainant’s Exhibit 5 (“Promotion Versus Overtime
Expenditure”). Rogers testified that he provided McManus with Complainant’s
Exhibit 5 while McManus was chief. The document purports to show the cost
savings of promoting supervisors versus spending on supervisory overtime.
7 Marie Turner was a member of the Winthrop Board of Selectman in 2000 to 2003 when Michael
McManus was the chief of police. The parties agreed to submit portions of Turner’s deposition in lieu of
her live testimony.

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Transcript III at 57-58. According to Sergeant Rogers, prior to a shift
configuration in 2006, it was necessary to have a total of nine or ten supervisors
(sergeants and/or lieutenants) in order to maintain supervisory coverage on each
shift. Transcript III at 62. In March of 2002, there were only seven supervisors in
the Department aside from the Chief, who supervised the whole department and
Lt. Perrin, who supervised detectives. Chalk B; Transcript III at 62-63.
18. Chief McManus asserted that he did not know how many times Complainant had
taken the sergeant’s promotional exam or where she stood on the promotional list
for sergeant as of March, 2002. Transcript II at 123-124. I do not credit this
testimony.
19. Former Executive Secretary Virginia Wilder testified that she was approached by
Complainant multiple times in 2002 about whether the Board planned to call for
the sergeant’s list on which she was the top candidate. Transcript II at 176.
Wilder said that she informed Complainant that fiscal constraints prevented the
appointment of a fifth sergeant. Transcript II at 180-181. Although I credit that
this is what Wilder told Complainant, I do not credit the substance of what she
said. I found Wilder to be an evasive witness who testified unconvincingly that
she couldn’t recall “talk” about Complainant’s prior lawsuit, that she didn’t object
to the jury’s verdict of $575,000.00 for Complainant, and that she considered the
jury as having done “what they had to do.” Transcript II at 165, 171. These
assertions are contradicted by the deposition testimony of Police Chief Goldstein
who stated that “it may very well have been” Wilder who told him that she didn’t

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agree with the court decision in favor of Complainant and that Wilder was “not
reticent about the decision.” Deposition at 82.
20. The eligible list from the 1999 sergeant’s exam expired in October of 2002.
During the life of the eligible list -- on which Complainant was the top-scoring
candidate -- the Town did not use it to make any promotions to sergeant.
Transcript II at 63.
21. Prior to the expiration of the eligible list for sergeant in October of 2002,
Complainant filed a grievance on September 13, 2002 stating that the Town’s
failure to make a promotion from the list constituted discrimination and retaliation
against her. Respondent’s Exhibit 2. The grievance, denied by Chief McManus,
proceeded to arbitration and resulted in an arbitration decision denying the
grievance on the basis that the Town of Winthrop’s Board of Selectmen (the
Appointing Authority) was not obligated to fill a sergeant’s position whenever a
vacancy occurred. Respondent’s Exhibit 2 (arbitration decision); Transcript I at
174.
22. Complainant testified that filling a fifth sergeant’s position from the eligible list
on which she was the top candidate would have reduced the need for supervisory
overtime. Transcript I at 66. She acknowledged, however, that a fifth sergeant
would not eliminate supervisory overtime on all shifts. Transcript I at 163, 168.
23. According to Chief McManus, the money to cover the cost of promoting a patrol
officer to sergeant in 2002 would have been approximately $5,000.00 to
$6,000.00 and could have been found in the police department budget. Transcript
II at 81.

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24. Complainant volunteered for and began serving as school resource officer in the
fall of 2002. Prior to taking the school resource assignment, she worked the 4:00
p.m. to midnight shift, for which she received an eight percent pay differential.
During the time that Complainant served as school resource officer, she continued
to receive the eight percent night-shift pay differential even though she worked an
“administrative schedule” which consisted of working Mondays through a half-
day on Fridays. Transcript II at 12. While she served as school resource officer,
Complainant took time off during school vacations without counting it as vacation
time until Chief Goldstein prohibited her from doing so. Transcript I at 80-82; II
at 10-11; Goldstein Deposition at 61.
25. On October 19, 2002 Complainant took another civil service exam for police
sergeant. Transcript I at 40, 148; Joint Stipulation 43.
26. On November 7, 2002, Complainant filed the first of the three complaints at issue
in this decision: MCAD complaint 02 BEM 03751. Complainant charged that
the Town of Winthrop engaged in gender discrimination and retaliation against
her by allowing the eligible list for sergeant to expire in October of 2002 so that
she would not be promoted because of her previously-filed sex discrimination
claims.
27. On March 31, 2003, a new eligible list for sergeant was established by the state
Human Resource Division from the 2002 sergeant’s exam. Terence Delehanty
was first on the eligible list with a score 80; Complainant and Stephen Rogers
were tied at second place on the eligible list with scores of 74. Joint Stipulation
44.

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28. On April 28, 2003, the Board of Selectmen appointed two male patrol officers --
Terence Delehanty and Stephen Rogers -- as acting sergeant sergeants. Joint
Exhibit 5; Transcript I at 72. Rogers was selected to fill a vacancy created by
Sergeant Diaz who was deployed on a military assignment for approximately
eight weeks. Transcript II at 13, 131; III at 68; Joint Stipulation 45. Delehanty
was selected to fill in for Sergeant Scholwin who was preparing to retire.
Transcript I at 73, 127. At the time the acting promotions were made, Rogers and
Diaz worked the same 4:00 p.m. to midnight shift whereas Complainant worked
days as school resource officer. Transcript II at 14; 133-134. Delehanty was then
a permanent patrol officer for seven years, Rogers was then a permanent patrol
officer for eight years, and Complainant was then a permanent officer twenty-one
years. Transcript III at 68.
29. Chief McManus testified that when he recommended Delehanty and Rogers as
acting sergeants, he hadn’t yet seen the May 2, 2003 certification of candidates
from the October 19, 2002 civil service exam for sergeant. Transcript II at 130,
142. While Chief McManus may not have seen the actual certification (Joint
Exhibit 1; Transcript II at 13), I do not believe that he was unaware of the
candidates’ relative standings on the eligible list from which the certification
derived.
30. According to Chief McManus, while Delehanty and Rogers were serving as
acting sergeants, they asked permission to attend command school. Transcript I at
20; II at 134-135. Because too few people enrolled in the summer command
school program, Rogers went to the next scheduled session which occurred after

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he returned to patrol officer from his acting sergeant assignment. The command
school serves as a training school for recently-promoted sergeants. Transcript III
at 71. Chief McManus was not credible when he testified that he would have
approved Complainant’s request to go to command school if she had asked. In
permitting Rogers to attend command school, Chief McManus evinced an intent
to promote him to the permanent rank of sergeant.
31. On May 2, 2003, three candidates were certified to the Town of Winthrop off the
eligible list from the October, 2002 exam for sergeant: Terence Delehanty, the
top-ranked candidate and the next two candidates -- Complainant and Stephen
Rogers -- who were tied. Joint Stipulation 44.
32. On May 19, 2003, Terence Delehanty was promoted to permanent sergeant to fill
the vacancy caused by Sergeant Scholwin’s retirement. Transcript I at 74; Joint
Stipulation 46.
33. In January of 2004, Chief McManus retired and in the following month, David
Goldstein became the Winthrop police chief. Transcript II at 40; II at 192;
Goldstein Deposition at 17. After being hired, Police Chief Goldstein had
conversations with the Board of Selectmen’s Executive Secretary Virginia Wilder
about Complainant’s litigation against the Town. Goldstein Deposition at 38.
Chief Goldstein testified at deposition that “it may very well have been” Wilder
who told him that she didn’t agree with the court decision in favor of Complainant
and that Wilder was “not reticent about the decision.” Deposition at 82. Chief
Goldstein also requested that the Town allow him to promote a fifth sergeant on

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the basis that it was more cost effective than hiring sergeants on supervisory
overtime. Goldstein Deposition at 23, 70. I credit this testimony.
34. Shortly after Chief Goldstein was hired in January of 2004, he “commissioned”
Sergeant Stephen Rogers to perform a financial analysis of police department
personnel costs entitled “Supervisor Budget Expenditure Analysis.” Deposition at
70-72. Based on the analysis, Chief Goldstein concluded that it would be better to
hire another sergeant rather than pay for supervisory overtime. Complainant’s
Exhibit 6; Goldstein Deposition at 70, 105. Chief Goldstein estimated that the
difference in pay between a police officer and a sergeant was approximately
$100.00 per week and that this expenditure would result in a “substantial savings”
in supervisory overtime. Goldstein Deposition at 70, 93, 105, 113. The study
states that the Department spent $30,250.21 in overtime costs to fill vacant
supervisor spots on shifts in FY 2004 (July 1, 2003 to June 30, 2004) whereas the
total cost of adding two supervisors would have been $13,180.29. Complainant’s
Exhibit 6.
35. According to Sergeant Rogers, the addition of two supervisors would have
permitted lieutenants or sergeants to be assigned to each of the three groups
within the police department’s day, evening and overnight shifts. Transcript III at
104-106. Rogers testified that such an arrangement would have ensured that two
supervisors were assigned to work each shift since shifts were, at all times, staffed
by two out of a shift’s three groups. Id. The plan also called for one supervisor to
work an outside beat in situations where there were two supervisors on the same
shift. Transcript III at 102. Sergeant Rogers testified that having two supervisors

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assigned to work the same shift meant that there would be supervisory coverage
even if one of the supervisors took time off for sickness, vacation, personal time,
training, etc. Sergeant Rogers asserted that such an approach would substantially
reduce, albeit not eliminate, supervisory overtime but that without promoting
another sergeant it wasn’t possible. Transcript III at 55, 94.
36. Chief Goldstein communicated his support for increasing the number of sergeants
to the Town Manager and to the Board of Selectmen via Executive Secretary
Wilder. Deposition at 89-91. On July 20, 2004, Chief Goldstein requested that
the Board of Selectmen call for the sergeant’s list in order to add one or more
supervisory officers as a way of reducing the costs for supervisory overtime, but
the Board did not act favorably on his request. Transcript II at 195; Joint Exhibit
13.
37. Chief Goldstein testified credibly that prior to becoming chief he was told by the
Board of Selectmen that there were five sergeant positions, but that after
becoming chief, he was told by the Board that there were “not” five positions.
Deposition at 22. The reduction in sergeant positions was not negotiated with the
police union nor was it brought before Town Meeting.
38. In the summer of 2004, Complainant voluntarily returned to the 4:00 p.m. to
midnight shift after serving two academic years as school resource officer.
Transcript I at 78-80, 92.
39. In August of 2004, Chief Goldstein requested a certification of names from the
October 19, 2002 examination in order to fill a sergeant’s vacancy created by the
retirement of Sergeant Diaz which had occurred approximately six months earlier.

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Joint Exhibit 19; Transcript I at 93; II at 136. Two names were certified:
Complainant and Rogers, who both had scores of 74. Id.; Joint Exhibit 1.
40. In order to assist in selecting between the tied candidates, Chief Goldstein
designated a “promotion board” consisting of two internal officers -- Lieutenant
Frank Scarpa and Sergeant Salvator Femino -- and two external officers.
Sergeant Femino had previously testified as a Town witness at one of
Complainant’s earlier MCAD hearings. Transcript I at 101. The promotion board
conducted an oral review of the two candidates on September 23, 2004.
Transcript I at 94; II at 3. Board members filled out forms on which they graded
answers to questions to six hypothetical questions, three informational questions,
the candidates’ oral presentations, and the candidates’ appearance and
communication skills. Joint Exhibit 43. The form did not contain a place for
members of the board to take account of the candidates’ length or breadth of
experience. Id.; Transcript I at 102.
41. Complainant had approximately three weeks to prepare for the review process.
Transcript I at 96. The candidates received instructions to submit an outline and
prepare an oral presentation addressing “The Winthrop Police Department
Through the Next Five (5) Years” and prepare for an oral examination regarding
relevant laws, regulations, bylaws, and requirements for search warrants and
eyewitness identifications. Joint Exhibit 45. Complainant testified that she
believed Rogers received notice of the review process sooner that she did.
Transcript II at 15. I do not credit this testimony.

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42. Sergeant Rogers testified that the training he had received at command school
helped him prepare for the presentation. Transcript III at 78. He made a
PowerPoint presentation using a projector belonging to the Town. Id.
43. Complainant testified that she thought about using an overhead projector or slides
for her presentation and contacted the Chief about the availability of projection
equipment but she was told it wasn’t available so she used an easel with flip pages
on which she wrote handwritten material. Transcript I at 99-100. At the end of
her presentation, Complainant was asked whether she believed that the screening
process had been fair and she answered yes. Transcript I at 102.
44. The promotion board recommended Rogers for the sergeant’s position even
though Complainant had fifteen years more seniority on the police force and there
were no female superior officers on the Winthrop Police Department. Transcript I
at 103; Joint Exhibit 8. Frank Scarpa participated in the promotion board as the
chairperson. Transcript IV at 34; Goldstein Deposition at 88.
45. The Town of Winthrop promoted Rogers to sergeant, effective September 27,
2004. Joint Stipulation 47. The promotion of Rogers left Complainant as the
only individual remaining on the sergeant’s list.
46. Chief Goldstein characterized Complainant as having strong and weak points as a
police officer. Deposition at 41. He described her strengths as dealing with the
public, handling desk duties in the dispatch area, handling walk-in issues, and
being respectful to her supervisors. Deposition at 42. He described Complainant
as honest, intelligent, and “for the most part” a team player, but noted that she
could be “overly critical,” was at times “very insecure” in regard to decision-

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making, required coaching, and “oftentimes” asked too many questions.
Deposition at 42-43.
47. On April 19, 2005, Chief Goldstein emailed Secretary Wilder to again express his
view that adding an acting supervisor would be a “good idea” in terms of
“supervisory overtime. Joint Exhibit 14.
48. On April 28, 2005, Complainant filed MCAD charge 02-BEM-01174 alleging
gender discrimination and retaliation against the Town of Winthrop and
individually-named Respondents in regard to the Town promoting Rogers to
sergeant in September of 2004.
49. In the summer of 2005, the Town of Winthrop Board of Selectmen called for a
new exam for police sergeant. Transcript I at 112-114. The new test was given in
October of 2005, around the same time that the previous eligible list for sergeant
expired. Transcript I at 118; Complainant’s Exhibit 2. Complainant took the
exam and scored at the top of the list. Id.
50. The eligible list from the October 19, 2002 sergeant’s exam expired on October 1,
2005 without being used by the Town.
51. Chief Goldstein again wrote the Board of Selectmen in October of 2005 about
ways of decreasing overtime costs. Joint Exhibit 3. The Chief’s letter noted that
an “inordinate” amount of overtime funds were devoted to supervisory overtime, 8
that one of the active lieutenants was unable to supervise members of the patrol
force because he was on light duty, and that the Department’s supervisory staff
(consisting of four sergeants and four lieutenants) were the most senior members
8 The letter asserts that between July 1, 2005 to October 1, 2005, supervisory overtime costs amounted to
$25,966.88. Joint Exhibit 4 at p.2.

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of the force with the largest share of accumulated leave such as vacation days and
the highest rates of compensation when working overtime. Joint Exhibit 3, p.4;
Transcript III at 91. To address these matters, one of the Chief Goldstein’s twelve
proposals was to increase the existing number of lieutenants and sergeants by two
positions. Joint Exhibit 3, p. 5. The proposal was rejected by the Board of
Selectmen -- Brian Perrin, 9 Sue Bolster, and Martin O’Brien – who were
concerned that the Police Department was top heavy with supervisors. Transcript
II at 19.
52. On November 4, 2005, Complainant filed MCAD charge 05-BEM-02944 alleging
gender discrimination and retaliation against the Town of Winthrop and
individually-named respondents in regard to the Town declining to promote her to
sergeant off the civil service list that expired on October 1, 2005.
53. In 2006, an eligible list was established from the October 22, 2005 sergeant’s
exam. Complainant’s name was at the top of the list. Complainant’s Exhibit 2.
She was not promoted to sergeant off the list.
54. At some point in 2006, Chief Goldstein altered the shift configuration in order to
reduce supervisory overtime problems. Transcript III at 85-86, 98. Under the
revised shift configuration, a lieutenant was put in charge of all groups within a
shift whether or not the lieutenant was not on duty. Goldstein Deposition at 28-
29. The Chief entered into an agreement with the union to run shifts with only
four individuals, to designate the senior patrol officer as the “Officer in Charge”
and to give that officer a stipend. Deposition at 36. As of the date of deposition,
9 Brian Perrin was a lieutenant on the Winthrop Police Department as well as a member of the Board of
Selectmen.

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Chief Goldstein had only given the Officer in Charge designation to one female
officer, Judy Racow, on a single occasion. Deposition at 48. Chief Goldstein
stated that in addition to Complainant, Officer Racow had filed a charge of
discrimination against the Police Department. Deposition at 57.
55. Complainant was out of work from January of 2008 to December of 2010 for
reasons unrelated to this litigation. Transcript I at 139. The parties have
stipulated that the period from January 8, 2008 up to and including October 19,
2010 should be excluded from any calculation or award of damages.
56. Chief Goldstein left the Winthrop Police Department in early 2009. He was
succeeded by Terence Delehanty who was appointed Chief in September of 2009.
57. In the fall of 2011, Complainant took a promotional exam for sergeant but did not
pass. Transcript II at 30.
58. In September of 2012, the Town of Winthrop made Mary Crisafi its first female
sergeant. Transcript I at 103, 129. The Town had not made any sergeant
promotions since that of Stephen Rogers in 2004. Transcript I at 168. There was
a special ceremony to mark the promotion. Transcript IV at 42. Complainant was
emotionally disturbed by the promotion. Transcript IV at 43.
59. Complainant testified that her attempts to be promoted have “taken over [her] life
and that she experiences pain whenever she works under a less senior male
officer. According to Complainant she let go of her anger from earlier disputes
with the Town because she was “vindicated” in 2000 and 2001, but that after
being denied promotion, she felt herself as becoming “invisible” on the force.
Transcript II at 28. Complainant testified that due to holding in her feelings, she

21
has had stomach problems, lost hair, had chest pains, had sporadically high blood
pressure experienced chronic hives, and has experienced insomnia. Complainant
testified to feelings of anger, rage, despair, hopelessness and frustration.
Transcript I at 134. Complainant stated that her symptoms caused her to seek
medical care from her primary care physician, a gastroenterologist, a cardiologist
and a pulmonologist, but not any mental health professionals. Transcript I at 134;
II at 26. She was prescribed stomach medication for acid reflux and Xanax for a
period of time but only took the latter medication “occasionally” because she
didn’t want to be on it.” Transcript I at 136. Complainant did not place any
medical records into evidence and had no health care professionals testify on her
behalf. Complainant acknowledged that she had abdominal pain prior to 2002
and distress also caused by the illness and death of her mother in 2003 and her
house burning down in November of 2005, an event which resulted in a four-plus
year absence from her home and the loss of all the contents of her house.
Transcript II at 26, 29-30. Complainant testified that she did not seek treatment
with any mental health care professionals and did not introduce medical records
into evidence.
60. Lt. Frank Scarpa is a thirty-seven year member of the Winthrop Police
Department, former union president, and Complainant’s shift commander for
approximately eight years. Transcript IV at 28-29. He testified that
Complainant’s lack of success at being promoted has emotionally affected her
over the years. Transcript IV at 40. According to Lt. Scarpa, Complainant would
frequently remark on her status. He described it as “weighing” on her mind. Id.

22
at 41. He assessed her as a very good patrol officer, an officer who “knows her
stuff,” and someone he can rely on. Transcript IV at 41. Lt. Scarpa asserted that
she would be a very good sergeant. Id.
61. Complainant testified that the amount of overtime she worked has varied over the
years. She worked less overtime prior to 2006 and more thereafter because her
children were older. Transcript I at 124-125. Starting in 2006, she also earned
several thousand dollars per years covering shifts as a senior patrol officer.
Transcript I at 125. Complainant testified that had she been promoted to sergeant
in 2002 or thereafter, her base pay would have been larger, her “Quinn bill”
percentage would have been larger, her longevity pay would have increased, and
her pension would have been higher. Transcript II at 21.
62. The parties stipulated that Complainant earned $728.040 per week as a step 6
patrol officer in FY 03; $749.880 per week as a step 6 patrol officer in FY 04 and
$779.878 per week as a step 6 patrol officer in FY 05. Joint Stipulations 49-51.
During those same years sergeants in the Winthrop Police Department earned the
following: $826.62 per week; $851.434 per week and $885.486 per week. Joint
Stipulations 52-54. From 2002, Complainant had received a 25% Quinn bill
salary increase which is calculated using her base salary rate.
III. CONCLUSIONS OF LAW
A. Gender Discrimination
Complainant does not proffer direct evidence of forbidden bias and therefore, in
order to establish a prima facie case of disparate treatment discrimination, she must show
that she: (1) is a member of a protected class; (2) was performing satisfactorily; (3)

23
suffered an adverse employment action; and (4) was treated differently from similarly-
situated, qualified person(s) not in her protected class. See Lipchitz v. Raytheon
Company, 434 Mass. 493 (2001); Abramian v. President & Fellows of Harvard College,
432 Mass. 107 (2000) (elements of prima facie case vary depending on facts).
The first two elements are satisfied in that there were no female supervisors in the
positions of sergeants or lieutenant during the years when Complainant sought
promotion, and that Complainant was a member in good standing of the Winthrop Police
Department who scored at or near the top of multiple promotional exams. Regarding the
third element of a prima facie case, Complainant alleges that the Town subjected her to
the following adverse actions: it failed to make any promotions to sergeant from the
1999 sergeant’s exam which Complainant topped (02-BEM-03751); 10 it promoted Rogers
to sergeant in September of 2004 even though Complainant had the same exam score and
greater seniority (05-BEM-01174); and it failed to promote Complainant from the
eligible list for sergeant which was established in October of 2002 and expired in October
of 2005 (05-BEM-02944). Complainant’s allegations are supported by credible evidence
that the Town failed to make any promotions to sergeant between 1999 and 2005
whenever she topped civil service eligible lists for the position; overlooked Complainant
for elevation to acting sergeant in 2003 in favor of less senior male patrol officers who
were thereby given a leg up in the permanent promotion process, and declined to
10 Respondent argues that since no one was promoted, there was no adverse action resulting from
Complainant’s failure to attain sergeant status as a result of the 1999 exam results. Such an argument
overlooks the fact that the Town promoted individuals to sergeant from civil service exams in 1995 and
2002 when Complainant was not the top-scoring candidate but declined to do so from the 1999 civil service
exam when Complainant was the top-scoring candidate. Since the Town traditionally promotes candidates
in the order of their standing on civil service eligible lists, the failure to make any sergeant promotions from
the 1999 exam was tantamount to a refusal to promote Complainant. Compare Wheelock College v
MCAD, 371 Mass. 130, n.6 (1976) (suggesting that there would be no prima facie case where college
declined to rehire an academically-qualified woman due to teaching position being abolished).

24
permanently promote Complainant to sergeant in 2004 in favor of a male candidate with
the same score by using a screening process of dubious neutrality. In all of these
situations, Complainant was on the losing end of circumstances that favored similarly-
situated male patrol officers.
Respondent asserts that the Town’s failure to make sergeant promotions at various
times when Complainant topped eligible lists for the position is not an adverse action, but
such a contention is without merit. See Hurley v City of Melrose Police Department, 27
MDLR 7 (2005) (where police chief declined to use eligible list and delayed sergeant
promotions in order to open the field to younger candidates, such inaction deemed an
adverse action evidencing age discrimination). Whether alone or in concert with other
conduct favoring male competitors, such inaction is evidence of discriminatory animus.
Having established a prima facie case of discrimination, the burden of production
shifts to Respondent to articulate and produce credible evidence to support legitimate,
nondiscriminatory reasons for not promoting Complainant. See Abramian, 432 Mass.
116-117; Wynn & Wynn v. MCAD, 431 Mass. 655, 665 (2000). Respondent focuses on
fiscal constraints to justify the lack of any permanent sergeant promotions off the eligible
list which remained in effect for a three-year period following the 1999 sergeant exam.
According to Chief McManus, he did not request funding to make such a promotion in
fiscal years 2002 and 2003 even though the number of sergeants decreased from five to
four because he did not believe another sergeant would significantly reduce supervisory
overtime. His testimony is supported by the assertion of former Executive Secretary
Wilder that fiscal constraints prevented the appointment of a fifth sergeant and by the

25
assertion of then-Selectman Marie Turner that the Police Department operated well with
only four sergeants.
In regard to acting sergeant promotions in April of 2003, the selection of Terrance
Delehanty reflects his status as the top candidate on the 2003 eligible list for sergeant 11 in
combination with the Town’s practice of selecting the top candidate for permanent
promotion absent a compelling reason for bypass. Since Delehanty was the presumed
favorite for the next permanent promotion, it stands to reason that the Town gave him the
acting position. The selection of Stephen Rogers was justified on the basis that he
worked the same four-to-midnight shift as the sergeant whose place he temporarily filled,
in contrast to Complainant who worked days as a school resource officer.
When Respondent finally made a permanent promotion to sergeant in 2003, it
selected Delehanty in conformity to his rank on the eligible list and, in the following
year, selected Rogers, with whom Complainant was tied, to fill a second sergeant’s
vacancy. In order to justify the latter promotion, Respondent administered an ostensibly-
neutral selection process. The selection board consisted of internal and external panelists.
The board entertained oral presentations from candidates Rogers and Dalrymple and
evaluated their responses to a uniform set of interview questions. The foregoing
circumstances are sufficient to satisfy Respondent’s burden at stage two.
Complainant, at stage three, must show by a preponderance of evidence that
Respondent’s articulated reasons were not the real ones but a cover-up for a
discriminatory motive. See Knight v. Avon Products, 438 Mass. 413, 420, n. 4 (2003);
Lipchitz v. Raytheon Company, 434 Mass. 493, 504 (2001). Complainant retains the
11 Chief McManus claimed not to have seen a certification of candidates for permanent promotion to
sergeant prior to selecting Delehanty for acting promotion, but I believe that Chief McManus was aware of
Delehanty’s position as the top candidate on the eligible list.

26
ultimate burden of proving that Respondent’s adverse actions were the result of
discriminatory animus. See id.; Abramian, 432 Mass. at 117. I conclude that
Complainant has satisfied her burden at stage three for the following reasons.
Following Complainant’s appointment to the Winthrop Police Department, there
were numerous years when she stood at the top of civil service lists for promotion to
sergeant without any positive result. Her name first rose to the top of such a list from a
1995 civil service exam after two males were promoted to sergeant. Several years later
she once again stood at the top of civil service list for promotion when she scored highest
on the 1999 civil service exam for sergeant. In neither case, did Respondent make use of
the lists as long as Complainant topped them.
After the promotion of Paul DeLeo to lieutenant in March of 2002, the number of
sergeants on the force decreased from five to four. At that time, it would have been cost-
effective to fill a fifth sergeant’s position. I base my conclusion on the fact that DeLeo’s
promotion caused additional supervisory officers to be hired on an overtime basis in
order to ensure the presence of a superior officer at all times. Then-Chief McManus
conceded that the cost of adding a sergeant would have been only five to six thousand
dollars yearly and could have been found in the police department budget. His successor,
Chief Goldstein, also acknowledged that it would have been more cost-effective to hire
another sergeant rather than to pay for supervisory overtime and, for this reason, sought
(albeit unsuccessfully) to fill a fifth sergeant’s position. Sergeant Rogers likewise
testified that the existing number of sergeants was insufficient to achieve the cost-
effective goal of having two supervisors on every shift which, according to Sergeant

27
Rogers, required a total of nine or ten supervisors rather than the seven who were
available to supervise patrol officers in March of 2002. 12
Notwithstanding the cost-effectiveness of filling the fifth sergeant’s position,
Respondent refrained from back-filling DeLeo’s sergeant slot for as long as Complainant
was the top candidate on the eligible list for sergeant from the 1999 exam. I conclude
that it did so in order to avoid having to promote Complainant in conformity to its
practice of selecting the top candidate off an eligible list unless compelling reasons
justified a bypass. Since Complainant stood at the top of the eligible list between March
of 2000 and October of 2002 and since there were no compelling reasons to bypass her
for promotion, adherence to the practice would have resulted in awarding Complainant
the fifth sergeant’s position if it were filled during the life of the eligible list.
After the eligible list expired in October of 2002, Complainant took yet another
civil service exam for sergeant in October of 2002. She received an exam score that was
lower than that of Terrance Delehanty but was the same as that of Stephen Rogers. Six
months later, Respondent made acting promotions of Patrol Officers Delehanty and
Rogers. These acting promotions paved the way for the subsequent permanent
promotions of the male candidates by giving them experience as sergeants and by
allowing them to attend command school. The acting promotions were followed in May,
2003 by the permanent promotion of Delehanty and in September, 2004 by the permanent
promotion of Rogers. While neither of these actions resulted in the bypass of
Complainant on the eligible list from the October of 2002 exam, they nonetheless had the
12 A 2004 arbitration decision about the staffing of superior officers on the Winthrop Police Department
opined that the Appointing Authority was not obligated to fill a sergeant’s position whenever a vacancy
occurred, but that decision analyzes the parties’ collective bargaining obligations and not whether the
refusal to fill the position violated Chapter 151B. Respondent’s Exhibit 2.

28
effect of favoring male employees with seven and eight years’ experience, respectively,
over Complainant who was a female candidate with twenty-one years of experience.
The allegedly-neutral screening process for permanent promotion was, moreover,
tainted by Stephen Rogers receiving access to Town equipment for his presentation to the
promotion board whereas Complainant was denied such access. Although the Town
sought to portray male candidate Stephen Rogers as superior to Complainant in 2004,
then-Chief Goldstein testified that Complainant was a strong candidate in terms of
dealing with the public, handling desk duties in the dispatch area, handling “walk-ins,”
and being respectful to her supervisors. He described Complainant as honest, intelligent,
and generally a team player, although sometimes overly critical, insecure in making
decisions and prone to asking too many questions. Lt. Frank Scarpa, a thirty-seven year
member of the Winthrop Police Department, former union president, and Complainant’s
shift commander for approximately eight years, described Complainant as a very good
patrol officer, one who “knows her stuff,” someone he can rely on, and someone who
would be a very good sergeant.
The promotion of Rogers resulted in the continued lack of any female superior
officers on the Winthrop Police Department for another nine years. Complainant
subsequently took another civil service exam in 2005 for sergeant and again scored at the
top of the list but never became a sergeant. I infer from the above circumstances that
Complainant’s gender played a ‘“material and important ingredient”’ role in the selection
process. See Chief Justice for Administration and Management of the Trial Court v.
MCAD, 439 Mass. 729 (2003) citing Lipchitz v. Raytheon Co., 434 Mass, 493, 506, n. 19
(2003) (jury could infer that female candidate was not promoted because of

29
discriminatory intent where reasons for promoting a male candidate over a female
candidate could be considered false). Gender discrimination has been demonstrated by
the pretextual reasons given for failing to fill a fifth sergeant’s position, by the staffing of
open sergeant slots (acting and permanent) with male candidates in preference to
Complainant, and by the failure to fill sergeant positions during times when Complainant
stood as the top candidate on eligible lists. The financial rationales provided by
Respondent do not stand up to factual scrutiny, as evidenced by contrary data compiled
by Chief Goldstein and Sergeant Rogers. Respondent attempts to address each and every
circumstance that resulted in Complainant’s non-promotion, but does not adequately
explain why Complainant, unlike her male comparators, failed to secure a supervisory
position after decades on the Department and why there were no female supervisors until
2012. Based on the foregoing, Complainant has proven by a preponderance of the
evidence that Respondent discriminated against her based on her gender.
Even if nondiscriminatory reasons played some part in the decisions to promote
Delehanty and Roger, the evidence establishes that a combination of gender-based and
retaliatory animus played a motivating role in depriving Complainant of any promotions
throughout her decades-long employment by the Winthrop Police Department. I
conclude that Respondent’s gender and retaliatory animus (see below) are inextricably
intertwined as determinative factors in this case.
B. Retaliation
Chapter 151B, sec. 4 (4) prohibits retaliation against persons who have opposed
practices forbidden under Chapter 151B or who have filed a complaint of discrimination.
Retaliation is a separate claim from discrimination, “motivated, at least in part, by a

30
distinct intent to punish or to rid a workplace of someone who complains of unlawful
practices.” Kelley v. Plymouth County Sheriff’s Department, 22 MDLR 208, 215
(2000), quoting Ruffino v. State Street Bank and Trust Co., 908 F. Supp. 1019, 1040 (D.
Mass. 1995). In the absence of direct evidence of a retaliatory motive, the MCAD must
follow the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 Mass. 972 (1973) and adopted by the Supreme Judicial Court in Wheelock College v.
MCAD, 371 Mass. 130 (1976). See also Abramian v. President & Fellows of Harvard
College, 432 Mass. 107, 116 (2000); Wynn & Wynn v. MCAD, 431 Mass. 655 (2000).
To prove a prima facie case of retaliation, Complainant must demonstrate that: (1) he
engaged in a protected activity; (2) Respondent was aware that he had engaged in
protected activity; (3) Respondent subjected him to an adverse employment action; and
(4) a causal connection exists between the protected activity and the adverse employment
action. See Mole v. University of Massachusetts, 58 Mass. App. Ct. 29, 41 (2003);
Kelley v. Plymouth County Sheriff’s Department, 22 MDLR 208, 215 (2000). While
proximity in time is a factor in establishing a causal connection, it is not sufficient on its
own to make out a causal link. See MacCormack v. Boston Edison Co., 423 Mass. 652
n.11 (1996), citing Prader v. Leading Edge Prods., Inc., 39 Mass. App. Ct. 616, 617
(1996).
Once a prima facie case is established, the burden shifts to Respondents at the
second stage of proof to articulate a legitimate, non-retaliatory reason for their action(s)
supported by credible evidence. See Blare v. Huskey Injection Molding Systems Boston
Inc., 419 Mass. 437, 441-442 (1995) citing McDonnell Douglas Corp v. Green, 411 U.S.
792 (1973). If Respondents succeed in doing so, the burden then shifts back to

31
Complainant at stage three to persuade the fact finder, by a preponderance of evidence,
that the articulated justification is not the real reason, but a pretext for retaliation. See
Lipchitz v. Raytheon Co., 434 Mass. 493, 501 (2001). Complainant may carry this
burden of persuasion with circumstantial evidence that convinces the fact finder that the
proffered explanation is not true and that Respondents are covering up a retaliatory
motive which is a motivating cause of the adverse employment action. Id.
Applying the aforementioned elements to the matter at hand, there can be no
doubt that Complainant participated in protected activity when she filed MCAD
complaints in 1989, 1990, 1993, 1995, 2002, and 2005. Following the adjudication of the
matters brought in 1990s, Complainant collected $784,633.96 in damages from the Town
in 2001 to redress discriminatory acts by Respondent. Various Town witnesses seek to
downplay the impact of the award, but I do not credit their testimony. More accurate
expressions of the Town’s views were communicated in the deposition testimony of
former Board of Selectman Marie Turner and Chief Goldstein. Turner asserted that
Complainant should not have won the award because she was not the subject of
discrimination. Executive Secretary Virginia Wilder was described as “not reticent” in
stating that she didn’t agree with the court’s decision in favor of Complainant. Various
town officials were compelled to testify in the legal proceedings brought by Complainant.
I conclude that Complainant’s lawsuits against the Town fostered a deep
resentment against Complainant which caused her to be denied an acting promotion to
sergeant in 2003 13 and permanent promotions from the 1999 sergeant’s exam which she
13 Respondent argues that any claims based on the April, 2003 acting sergeant promotions are untimely
because the acting promotions took place after Complainant filed her November, 2002 MCAD complaint
and more than six months prior to Complainant filing her April and November, 2005 MCAD complaints. I
do not accept this rationale because the full impact of the acting promotions did not become apparent until

32
topped 14 ; the 2002 sergeant’s exam on which she stood in a second-place tie; 15 and the
2005 sergeant’s exam which she topped. 16 Rather than maintain a staff of five permanent
sergeants as it had previously done, Respondent spent more money throughout the 2002
to 2006 period to fill sergeant positions on an overtime basis. The evidence indicates that
it did so in order to avoid promoting Complainant, despite the testimony of Chief
McManus that additional supervisors were not needed to cover shifts. In arriving at this
conclusion, I find it noteworthy that Chief McManus came up through the ranks of the
Winthrop Police Department, was on the force during Complainant’s litigation against
the Town, testified in at least one prior action brought by Complainant, and was
unconvincing in claiming ignorance about where Complainant stood on the promotional
list for sergeant in 2002.
Respondent attempts to downplay the link between Complainant’s damage award
of $784,633.96 in 2001 and the promotion of Officer Rogers to sergeant in 2004, but
proximity in dates is not the only criterion in making out a causal link. The sizable nature
of the award ensured that it would not soon be forgotten. In any event, a three-year span
between protected activity and adverse action mischaracterizes the sequence of events
since Complainant filed an MCAD complaint in November of 2002 in which she accused
Complainant failed to obtain a permanent sergeant promotion in September of 2004 (when it went to
Officer Rogers). Complainant thereafter filed a timely retaliation complaint with the MCAD eight months
later.
14 In regard to the 1999 sergeant’s exam, the relevant period is the last seven months of the life of the
exam’s eligible list -- March of 2002 to October of 2002. During this period, the roster of sergeants on the
Winthrop Police Force dropped from five to four following Sergeant DeLeo’s promotion to lieutenant. The
drop in the number of sergeants presented an opportunity to fill the empty fifth sergeant’s position from the
eligible list on which Complainant stood as the top candidate but Respondent declined to do so.
15 In regard to the 2002 sergeant’s exam, Respondent made two promotions to sergeant from the eligible list
to fill positions vacated by Sergeants Scholwin and Diaz. Although Complainant was tied as the second
candidate on the eligible list and had substantially greater seniority than the candidate with whom she was
tied, she was not promoted.
16 In regard to the 2005 sergeant’s exam, the relevant period extends from the establishment of the eligible
list, which Complainant topped, and the reconfiguration of shifts in 2006 which eliminated at least some
need for supervisory overtime to augment the four permanent sergeants on the Department’s roster.

33
the Town of gender discrimination and retaliation. Respondent’s attempt to downplay
the relationship between Complainant’s protected activity and her failure to be promoted
also ignores the fact that one of the members of the promotion board testified against
Complainant in a prior proceeding she brought against the Town. For all of these
reasons, Complainant’s allegations against Respondent do not constitute a past conflict
long forgotten but, rather, a decades-long struggle between Complainant and the Town of
Winthrop over allegations of gender discrimination. I do not credit the Town’s
contention that it has long ago forgotten any such disputes and that Complainant, alone,
harbors continuing animus. On the basis of my credibility findings, I conclude that
Complainant has made out a prima facie case of retaliation.
Once a prima facie case is established, the burden shifts to Respondent at the
second stage of proof to articulate a legitimate, non-retaliatory reason for its action,
supported by credible evidence. In attempting to carry this burden, Chief McManus
claimed at the public hearing that a fifth sergeant’s position was unduly costly, that
supervisory overtime was necessary regardless of the number of permanent sergeants,
and that Officer Rogers made a more effective presentation to the promotion board in
2004 and, thus, fairly won the vacant sergeant’s position. Such rationales are sufficient
to satisfy Respondent’s burden at stage two.
At stage three, Complainant asserts that the Town’s financial rationale for
refusing to fill the fifth sergeant’s position between 2002 and 2006 and its explanation for
promoting Officer Rogers rather than Complainant in 2004 are false and that the
motivating cause for these actions was retaliation. I concur. The credible evidence in the
record establishes that it would have been less expensive to fund an additional sergeant’s

34
position during 2002-2006 rather than maintain supervisory coverage through the hiring
of sergeants on an overtime basis and that the promotion board favored Rogers over
Complainant as a result of retaliatory animus against Complainant. In arriving at this
conclusion I am not influenced by a contrary finding in an arbitration matter between
Complainant’s Union and the Town concluding that the Town was not obligated
contractually to fill a vacant sergeant’s position. The arbitrator arrived at this conclusion
pursuant to the parties’ collective bargaining agreement whereas I arrive at the
conclusions set forth herein pursuant to Chapter 151B. 
IV. REMEDIES AND DAMAGES 
A. Affirmative Relief
Pursuant to G.L.c.151B, sec. 5, the Commission has the authority to issue orders
for affirmative relief. I conclude that the findings of fact set forth in this decision merit
such action and that Complainant is entitled to promotion to sergeant, retroactive to
March of 2002, when the number of sergeants on the Department decreased from five to
four. See Hurley and Ford v City of Melrose, MDLR (2008) (Full Commission
Decision concluding that MCAD’s powers to award affirmative relief allow for
promotion of Complainant to police sergeant with retroactive pay where hearing officer
determined that Complainant would have been promoted but for age discrimination).
B. Lost Wages and Benefits
Chapter 151B provides for monetary restitution to make a victim whole, including
the same types of compensatory remedies that a plaintiff could obtain in court. See
Stonehill College, 441 Mass at 586-587 (Sossman, J. concurring) citing Bournewood
Hosp., Inc. MCAD, 371 Mass. 303, 315-316 (1976). In appropriate circumstances, the

35
MCAD is also authorized to award front pay as well as back pay as part of a
compensatory damage award. See Beaupre v. Smith & Associates, 50 Mass. App. Ct.
480 (2000) citing Conway v. Electro Switch Corp., 402 Mass. 385, 387-388 (1988);
Madden v. Town of Falmouth Harbormaster Waterway Dept., 15 MDLR 1949 (1993).
Front pay is appropriate where the discriminatory act occurs near an individual’s
retirement date and/or where comparable positions would be difficult to find. See
Haddad v. Wal-Mart Stores, Inc., SJC 10261 (October 5, 2009) (nineteen-year front pay
award appropriate where plaintiff planned to work for defendant until retirement, where
few comparable employment opportunities existed, and where plaintiff’s ability to obtain
employment undermined by defendant’s harm to her reputation); Fitzpatrick v. Boston
Police Department, 18 MDLR 29, 30 (1996); Madden,15 MDLR at 1967-68.
As lost wages, Complainant is entitled to the difference between the salary,
overtime, retirement benefits, Quinn Bill benefits, longevity benefits, and any other
income or benefits she earned as a patrol officer and that which she would have earned as
a sergeant commencing in March of 2002 but excluding the period from January 8, 2008
to October 19, 2010. The parties are directed to confer and together determine the
differential.
C. Emotional Distress Damages
Upon a finding of unlawful discrimination, the Commission is authorized, where
appropriate, to award damages for the emotional distress suffered as a direct result of
discrimination. See Stonehill College v. MCAD, 441 Mass. 549 (2004); Buckley
Nursing Home v. MCAD, 20 Mass. App. Ct. 172, 182-183 (1988). An award of
emotional distress damages must rest on substantial evidence that is causally-connected

36
to the unlawful act of discrimination and take into consideration the nature and character
of the alleged harm, the severity of the harm, the length of time the Complainant has or
expects to suffer, and whether Complainant has attempted to mitigate the harm. See
Stonehill College v. MCAD, 441 Mass. 549, 576 (2004). Complainant’s entitlement to
an award of monetary damages for emotional distress can be based on expert testimony
and/or Complainant’s own testimony regarding the cause of the distress. See Stonehill
College v. MCAD, 441 Mass. 549 (2004); Buckley Nursing Home v. MCAD, 20 Mass.
App. Ct. 172, 182-183 (1988). Proof of physical injury or psychiatric consultation
provides support for an award of emotional distress but is not necessary for such
damages. See Stonehill, 441 at 576.
Complainant testified convincingly that she experiences distress whenever she works
under a less senior male officer. According to Complainant, she let go of her anger from
earlier disputes with the Town because she was “vindicated” in 2000 and 2001, but that
after being denied promotion, she felt herself becoming “invisible” on the force.
Complainant testified that due to internalizing her feelings, she has had stomach
problems, hair loss, chest pains, sporadically high blood pressure, chronic hives, and
insomnia. Complainant testified to feelings of anger, rage, despair, hopelessness and
frustration. Lt. Frank Scarpa, Complainant’s shift commander for approximately eight
years, testified that Complainant’s lack of success at being promoted has emotionally
affected her over the years. According to Lt. Scarpa, Complainant would frequently
remark on her status. He described it as “weighing” on her mind.

37
Complainant stated that her symptoms caused her to seek medical care from her
primary care physician, a gastroenterologist, a cardiologist, and a pulmonologist. She
was prescribed Xanax for a period of time and stomach medication for acid reflux.
Notwithstanding the foregoing stressors, Complainant did not seek treatment with any
mental health care professional, only took Xanax “occasionally,” did not place any
medical records into evidence, and had no health care professionals testify on her behalf.
Complainant acknowledged that she had abdominal pain prior to 2002 and suffered
distress due to her mother’s illness and death in 2003. Complainant’s emotional state
was also impacted by her house burning down in November of 2005, which caused a
four-plus year absence from her home and the loss of all the contents of her house. In
addition to these factors, some of Complainant’s emotional distress must be attributed to
other employment-related litigation that is separate and distinct from these proceedings.
As the Supreme Judicial Court has noted, there must be substantial evidence of a causal
link between the claimed emotional distress and the alleged discriminatory conduct. See
DeRoache v. MCAD, 447 Mass.1, 8 (2006) (where the Court determined that there was
no causal connection between the discriminatory act of retaliation and the employee’s
emotional distress); Stonehill College v. MCAD, 441 Mass. at 576.
After considering all the factors contributing to Complainant’s emotional distress, I
conclude that only a portion of Complainant’s emotional distress can be attributed to her
failure to be promoted to sergeant. Complainant is entitled to $50.000.00 in emotional
distress caused by the gender animus and retaliatory actions established in this case.

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V. CIVIL PENALTY
Pursuant to G.L. c. 151B, section 5, the Commission may, in addition to any other
action which it takes under the section, assess a civil penalty against the Respondent in an
amount not to exceed fifty thousand ($50,000.00) dollars if Respondent is “adjudged to
have committed two or more discriminatory practices during the seven year period
ending on the date of the filing of the complaint.” Within the seven-year period prior to
the initial filing date in these consolidated matters, Respondent was adjudged by this
Commission to have committed gender discrimination against Complainant for which
$25,000.00 in damages and attorney’s fees was awarded. See Dalrymple V. Town of
Winthrop, 15 MDLR 1473 (1993), affirmed Town of Winthrop v. MCAD and Dalrymple
(Suffolk, ss, CA 965667C, November 1998, Cratsley, J), affirmed Town of Winthrop v.
Dalrymple and another, Memorandum and Order pursuant to Appeals Court Rule 1:28
(Doc. No. 99-P-280, December 28, 2000). Within the same seven-year period,
Respondent was also adjudged by a Suffolk Superior Court jury to have committed
gender discrimination and retaliation against Complainant for which $575,000.00 in
compensatory and punitive damages was awarded. Suffolk Superior Court (Docket No.
95-4248B), affirmed Dalrymple v. Town of Winthrop, 50 Mass. App. Ct. 611 (2000).
The sum total of the litigation between Complainant and Respondent convinces me that
the Town’s conduct towards Complainant over her thirty-year career has been egregious
and intransigent. Complainant, alone, has failed to achieve promotion through the ranks
of an organization in which male officers, as a matter of course, achieve higher rank.
Such failure has been degrading, demoralizing and financially detrimental. Based on the
foregoing, the Town merits the maximum civil penalty available, to wit $50,000.00.

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VI. ORDER
Based on the foregoing findings of fact and conclusions of law and pursuant to the
authority granted to the Commission under G. L. c. 151B, sec. 5, Respondent is ordered
to:
(1) Cease and desist from all acts of gender discrimination and retaliation;
(2) Promote Complainant to sergeant retroactive to March 1, 2002;
(3) Pay Complainant the differential between what she would have earned as a
sergeant commencing on March 1, 2002 and what she earned as a patrol
officer, plus all benefits incidental thereto and interest on the back pay award
at the rate of twelve per cent per annum starting on the date that Complainant
filed her November 7, 2002 retaliation complaint through such time as
payment is made or until this order is reduced to a court judgment and post-
judgment interest begins to accrue;
(4) Pay Complainant the sum of $50,000.00 in emotional distress damages with
interest at the rate of twelve per cent per annum. Said interest shall be
apportioned equally among the three complaints with the interest obligations
commencing on the date that each of the three complaints was filed and
continuing until paid or until this order is reduced to a court judgment and
post-judgment interest begins to accrue;
(5) Pay to the Commonwealth of Massachusetts a civil penalty in the sum of
$50,000.00.
(6) Conduct, within one hundred twenty (120) days of the receipt of this
decision, a training of the Winthrop Police Department’s managers and

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supervisors. Such training shall focus on gender discrimination and
retaliation. Respondent shall use a trainer provided by the Massachusetts
Commission Against Discrimination or a graduate of the MCAD’s certified
“Train the Trainer” course who shall submit a draft training agenda to the
Commission’s Director of Training at least one month prior to the training
date, along with notice of the training date and location. The Commission
has the right to send a representative to observe the training session.
Following the training session, Respondent shall send to the Commission the
names of persons who attended the training.
This decision represents the final order of the Hearing Officer. Any party aggrieved by
this Order may appeal this decision to the Full Commission. To do so, a party must file a
Notice of Appeal of this decision with the Clerk of the Commission within ten (10) days
after the receipt of this Order and a Petition for Review within thirty (30) days of receipt
of this Order.
So ordered this 22nd day of January, 2014.
____________________________
Betty E. Waxman, Esq.,
Hearing Officer

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