Brookline restaurant where women were allegedly videoed in restroom allowed to stay open, with conditions

Michael Burstein reports the Brookline Select Board voted last night to let Taam China on Harvard Street remain open, under conditions that include requiring that one of the two co-owners - the one charged with making the videos over several years - relinquish his 50% share of the business.

Developer proposes 18-story tower at Arsenal Mall

Watertown News reports that the company turning the old Arsenal Mall into one of those au courant mixed-use developments, to be called Arsenal Yards, says an 18-story tower would be skinnier than the squatter 12-story building it originally wanted to put up, so more open space and, bonus, more sunlight to hit that open space, and who doesn't like sunlight on open space? Also, yeah, they could charge more for condos 18 stories up. However, not everybody in town is thrilled with the idea.

Red Line maintenance train had some bad luck; luckily they moved it so the commute wouldn't suck

The MBTA reports a maintenance vehicle derailed while outbound between JFK/UMass and North Quincy early this morning. The T managed to move the thing and fix any possible damage its derailment might have caused by 6:30 a.m., though.

Appeals court upholds $2.6-million discrimination verdict against MBTA, in part because of crappy lawyering by the T

The US Court of Appeals for the First Circuit in Boston today upheld the verdict in a lawsuit brought by a black Green Line driver, who said her supervisors made her life a living hell for years before they finally got her fired.

In a decision that quotes Benjamin Franklin's ditty about what happens for want of a nail, the three-judge panel said the T has mainly itself to blame for not doing enough at trial to combat Michelle Dimanche's case over her 2013 firing - by, for example, failing to have supervisors attempt to rebut her witnesses' testimony about their statements in specific instances.

The MBTA loses its appeal largely for want of its making appropriate objections and offers of proof before the trial court. The evidence was more than sufficient to support the compensatory damages award for wrongful termination and to justify the punitive damages amount.

The ruling continues:

Three of the MBTA's supervisory staff who either concurred in Dimanche's dismissal or were involved in the investigation of the January 25th altercation, had demonstrated racial animus towards her. McClellan was reported to have said that he wanted to "get her black ass." And Foster and Napoli had a long history of mocking Dimanche's Haitian accent, calling her "black bitch," threatening her, and attempting to retaliate against her for making complaints. Coupled with Dimanche's testimony that each of her four previous disciplinary infractions was fabricated, a reasonable jury could have concluded that the MBTA improperly terminated her employment because of her race.

The court agreed with the MBTA that the trial judge "committed clear error" in one ruling related to the trial - limiting to some extent what the MBTA could ask its witnesses to testify about because it had inadvertently replied to the initial lawsuit too late because of a clerical error. But, the court continued, the T failed to show how the restriction unfairly prejudiced the trial against it:

The MBTA has not shown that it was prejudiced by the imposition of the sanction. It failed to make any offers of proof at trial as to what it would have presented as evidence absent the sanction.

And it couldn't really, because the judge often ignored his own ruling, letting the T draw out statements from its witnesses that went beyond what the order would have allowed. And:

In the dozen or so times when the trial judge did limit testimony, the MBTA failed to protest or provide an offer of proof as to the excluded testimony. Without such offers of proof, it is nearly impossible for this court to find that the sanction resulted in prejudice "manifest on the face of the record."

The MBTA argues on appeal that, but for the sanction, it would have presented a targeted defense to Dimanche's allegations that McClellan and Foster -- two of the supervisors who were involved in her dismissal -- subjected her to racist comments. But the MBTA cannot point to an offer of proof as to what testimony its witnesses would have provided to undermine Dimanche's story. The MBTA could have easily sought to question McClellan and Foster (both called as witnesses at trial) about their alleged conduct, and asked the judge to modify the sanction order, but it chose not to. This omission is glaring, as the MBTA repeatedly went beyond the bounds of the sanction when soliciting witness testimony on other topics (without getting the court's prior consent).

And while the lack of an effective objection at trial and proffer is fatal, it is noteworthy that even on appeal, with the benefit of hindsight, the MBTA cannot point to any instances where it was prevented from introducing evidence that would have affected the outcome of the trial. Accordingly, we find no reversible error.

New Hampshire man charged with Codman Square shooting

Boston Police report arresting a Rochester, NH man on charges he shot somebody in Codman Square on the afternoon of June 8.

Police report officers drove to Rochester to arrest Andrew O'Brien, 29. O'Brien is being held in New Hampshire pending an extradition hearing, after which he will be delivered to Dorchester Municipal Court to face charges of assault with intent to murder, unlawful possssion of a firearm and discharging a firearm within 500 feet of a dwelling, police say.

Innocent, etc.

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