Not easily. The employee told the judge in open court he was for a bench trial and then signed a jury waiver form, and the Appeals Court held the waiver was valid. It upheld a judge’s verdict for a hotel on the employee’s claims of discrimination in hiring and retaliation under G.L. c. 151B. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The employee worked as a storeroom clerk at a Boston hotel. He applied for an open accounts receivable clerk job, and the hotel hired someone else. He claimed the decision was based on his age, race, color and national origin. He also claimed the hotel later fired him in retaliation for filing a charge with the Massachusetts Commission Against Discrimination (MCAD). After a trial before a Superior Court judge without a jury, the judge found he had not proved his claims. He appealed, arguing that he never validly waived a jury and that the judge got the facts wrong.
What the court decided
The Appeals Court affirmed in Djessouho v. Jones, No. 25-P-17 (Mass. App. Ct. December 4, 2025) (Rule 23.0 decision).
The record problem. The employee did not give the court a complete trial transcript or the trial exhibits. It is the appellant’s job to provide a record adequate for review, and failing to do so is generally fatal to an appeal. Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410 (2018). The court said it could have affirmed on that basis alone. It reached the merits only because the hotel supplied the missing materials.
The jury waiver. In a civil case, parties may give up a jury by a written stipulation filed with the court or by an oral stipulation made in open court and entered in the record. Mass. R. Civ. P. 39 (a). Whether a waiver happened is a question of fact reviewed for clear error. Northeast Line Constr. Corp. v. J.E. Guertin Co., 80 Mass. App. Ct. 646 (2011). Here the employee said in court he was for a bench trial, and the parties signed a waiver form. The judge explained the difference between a jury trial and a bench trial and let him review the form with an interpreter before signing. The court found no sign of coercion. It also rejected his argument that the detailed questioning required before a criminal defendant waives a jury applies in civil cases. He cited no authority for that.
The merits. In a bench trial, the appeals court accepts the judge’s findings unless clearly erroneous, and credibility is for the trial judge. Robert & Ardis James Found. v. Meyers, 474 Mass. 181 (2016). On hiring, the manager who made the decision testified that the job was more customer facing and that the other applicant was stronger in communication skills, English fluency and experience with hotel guests. The judge believed him and found those reasons legitimate and not a pretext for discrimination. On retaliation, a coworker testified that the employee yelled at her, put a finger in her face and blocked her in a corner. Her internal complaint and the hotel’s investigation reports backed her up. The judge found the firing was because of that incident, not the MCAD charge, and saw no evidence the investigation was a sham.
What this means for you
The employer won. The first lesson is about the jury. In a civil discrimination case you have a right to ask for a jury, but if you agree to a bench trial in court and sign a waiver, that choice will almost always stand. Decide carefully, and ask questions before you sign.
The second lesson is that a bench trial turns on whom the judge believes. An appeal is not a chance to retry credibility. If the judge credits the employer’s witnesses and documents, the appeals court will rarely disturb that.
The third lesson is about the record. If you appeal, you must order the transcript and include the exhibits the court needs. Without them, you may lose before the court even looks at your arguments.
What to do now
- If you have filed a discrimination case, decide early whether you want a jury, and make a written jury demand on time.
- Do not sign a jury waiver until you understand what you are giving up. Ask for an interpreter if you need one.
- Gather evidence of pretext before trial, such as comparisons with other applicants or inconsistent explanations.
- If you appeal, order the full transcript promptly and include all trial exhibits in your appendix.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Deadlines for discrimination and employment claims can be short.
