447 Mass. 1 | Mass. | 2006
This appeal arises out of a decision by the Massachusetts Commission Against Discrimination (commission) that the Wakefield Municipal Gas & Light Department (department) unlawfully retaliated against the plaintiff for filing a complaint with the commission claiming that the department had discriminated against him on the basis of his age in violation of G. L. c. 151B, § 4 (4). The commission ordered the department to pay the plaintiff damages in the amount of $260,000, including $50,000 to compensate him for emotional distress, but failed to provide for interest on the damages. The plaintiff and the department both sought judicial review of the commission’s decision pursuant to G. L. c. 151B, § 6. After a hearing in accordance with standards set forth in G. L. c. 30A, § 14, a judge in the Superior Court entered a judgment affirming the commission’s determination that the department had committed retaliatory employment action and the commission’s award of damages, and, in addition, declaring that interest be assessed on the damages. A second judge in the Superior Court denied the plaintiff’s motion for reasonable attorney’s fees and costs for services performed during the G. L. c. 30A proceedings in the Superior Court.
Both parties have appealed. The department does not contest its liability under G. L. c. 15IB, but claims that the judge lacked authority to assess interest on the damages awarded the plaintiff and, further, that the award of $50,000 in damages for emotional distress is unsupported by the plaintiff’s evidence. The plaintiff, in turn, asserts his entitlement to reasonable attorney’s fees and costs incurred in connection with successfully defending the commission’s decision before the Superior Court. We allowed the plaintiff’s application for direct appellate review and, for reasons set forth in this opinion, conclude that the plaintiff is entitled to (1) no damages for emotional distress for the department’s retaliatory conduct; (2) prejudgment interest, at the rate of twelve per cent per annum, assessed on the damages for back pay, calculated from May 6, 1996, the date of the retaliatory conduct, until June 1, 2005, the date judgment entered in his favor; and (3) reasonable attorney’s fees and costs incurred during the appeal to the Superior Court of the commission’s award in connection with those issues on which
The background of the case may be summarized as follows. The department is a municipal electric department established by the voters of the town of Wakefield (town), pursuant to G. L. c. 164, § 34, to operate the light plant owned by the town. The plaintiff was employed at the department from 1950 until 1993, when he retired (believing that his retirement was mandatory) at age sixty-five. The town retirement board processed the plaintiffs application for retirement without informing him that, due to a change in the public employee retirement statute, G. L. c. 32, he was not required to retire until he was seventy years of age. Approximately two years later, a manager at the department notified the plaintiff of the change in G. L. c. 32. The plaintiff responded to this unexpected news, first, by requesting a financial settlement to compensate for his premature retirement and, later, by requesting from the department reinstatement to his former position and reimbursement of lost wages and overtime pay. The plaintiff sought answers from the department and the retirement board as to how such a mistake could happen, but his attempts to pinpoint responsibility in the matter proved fruitless.
On February 15, 1996, the plaintiff filed a complaint with the commission alleging that the town retirement board and the department had “forced” his retirement, thereby unlawfully discriminating against him on account of his age, in violation of G. L. c. 151B.
After a hearing, a commission hearing officer determined that the department’s failure to inform the defendant that he was not required to retire at age sixty-five did not constitute discrimination under G. L. c. 151B, but that the department’s conduct in assigning the plaintiff to the line crew rather than the home service crew on his May, 1996, return to employment was adverse action in retaliation for the plaintiff’s having filed a complaint with the commission. The hearing officer ordered the department to pay the plaintiff compensatory damages in the sum of $260,000, representing $210,000 in damages for back and front pay and $50,000 in damages for emotional distress. Under the authority of a decision of the Appeals Court, see Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234 (1995), the hearing officer denied the plaintiff’s request to assess interest against the department.
Both the department and the plaintiff sought judicial review of the commission decision, and the cases were consolidated in the Superior Court. The department challenged the commission’s finding of retaliation and its award of emotional distress damages. The plaintiff appealed from that part of the order which denied the assessment of interest on the award. Prior to the hearing before the judge in the Superior Court, the commission, which had taken the position that the department’s status as a public entity rendered it exempt from paying interest on damages awarded under G. L. c. 151B, joined the plaintiff’s efforts to reverse its own decision on that point.
The plaintiff filed a motion for attorney’s fees and costs incurred in connection with the G. L. c. 30A review of the commission’s decision. This motion was considered by a second judge in the Superior Court who, after a hearing, concluded that there is no statutory authority for the award of the requested fees. The plaintiff appealed from the denial of his request for
1. We first address the commission’s award of $50,000 in emotional distress damages. In Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 575-577 (2004), we clarified the standards governing an award by the commission for damages to compensate a plaintiff for emotional distress caused by an employer’s discriminatory conduct and enumerated factors a reviewing judge should consider in determining whether such an award may stand. A critical point expressed in our Stonehill decision was that a finding by the commission of discrimination, or retaliation, is insufficient by itself, as matter of law, to permit an inference of emotional harm. See id. at 576, citing Equal Employment Opportunity Commission: Policy Guide on Compensatory and Punitive Damages under 1991 Civil Rights Act (July 7, 1992), reprinted in Fair Empl. Prac. Man. (BNA) 405:7091-405:7102. We emphasized that emotional distress, to be compensable, must be proved by substantial evidence of the emotional suffering that occurred, as well as substantial evidence of a causal connection between the complainant’s emotional distress and the respondent’s unlawful act. See id. at 576-577. Factors to be considered include “(1) the nature and character of the alleged harm; (2) the severity of the harm; (3) the length of time the complainant has suffered and reasonably expects to suffer; and (4) whether the complainant has attempted to mitigate the harm (e.g., by counseling or by talcing medication).” Id. at 576. The factual basis for emotional distress damages awarded by the commission must be clear on the record, and a reviewing judge must set aside (or remit to an appropriate amount) awards that are not supported by substantial evidence. See id. at 576-577; G. L. c. 30A, § 14. An emotional distress damage award may not be imposed as a substitute for punitive damages (which the commission is not authorized, under G. L. c. 15IB, § 5, to award). See id. at 575-576.
The hearing officer found that the plaintiff, his wife, and his daughter presented “sincere, credible, and compelling” testimony about the emotional impact on the plaintiff resulting from his original retirement in September, 1993. The plaintiff
The award appears to be a classic example of what the principles set forth in our Stonehill decision were intended to discourage. The evidence presented at the hearing with respect to the plaintiff’s distressed emotional state relates either to emotions experienced by the plaintiff in the months and weeks leading up to his impending retirement in 1993, or to the plaintiff’s reaction after being informed of the mistake, in the fall of 1995, and lacks any causal connection with the finding of retaliation against the department.
2. We next address the department’s challenge to the imposition of interest on the damages awarded the plaintiff. In Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234, 245-246 (1995), the Appeals Court recognized that G. L. c. 15IB is silent on the subject of interest on awards against the Commonwealth or its instrumentalities. Relying on decisions of this court addressing the issue of interest under the Massachusetts Tort Claims Act, G. L. c. 258, see Onofrio v. Department of Mental Health, 411 Mass. 657, 659 (1992), and under the statute providing compensation to victims of violent crimes, G. L. c. 258A, see Gurley v. Commonwealth, 363 Mass. 595, 600 (1973), the Appeals Court held that interest could not permissibly be imposed on an award under G. L. c. 15 IB against a public entity. See Boston v. Massachusetts Comm’n Against
(a) We agree with the department that it is a public entity. The citizens of the town voted to create the department, G. L. c. 164, § 55, and the department’s board of commissioners (board) is comprised of members elected by those same citizens. Id. It is the town that owns the light plant that the department operates. G. L. c. 164, § 34. The manager of the department, who has “full charge of the operation and management of the plant,” is appointed by the board. G. L. c. 164, § 56.
The Legislature has specifically placed the department in the class of entities subject to the Tort Claims Act, thereby reflecting its view that the department is in that class of entities afforded the protections of sovereign immunity. See G. L. c. 258, § 1 (“[pjublic employer” means “any . . . town . . . and any department . . . thereof . . . including a municipal gas or electric plant”). The department is subject to the requirements of G. L. c. 39, § 23B (open meeting law), and G. L. c. 66, § 10 (public records statute), which apply only to public entities. See G. L. c. 39, § 23A. See also G. L. c. 4, § 7, Twenty-sixth.
The plaintiff directs our attention to Middleborough v. Middle
(b) The department’s status as a public entity does not, however, necessarily entitle it to immunity from the imposition of interest on damages assessed against it under G. L. c. 151B. The Appeals Court recently reconsidered that question, in light of our decision in Bain v. Springfield, 424 Mass. 758 (1997), clarifying the principle of sovereign immunity and stating that “immunity is still in effect unless consent to suit has been ‘expressed by the terms of a statute, or appears by necessary implication from them,’ ” id. at 763, quoting C & M Constr. Co. v. Commonwealth, 396 Mass. 390, 392 (1985), and held that prejudgment interest may properly be awarded by the commission against the Commonwealth under G. L. c. 15IB. See Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Comm’n Against Discrimination, 65 Mass. App. Ct. 329,
The general rule of law with respect to sovereign immunity is that the Commonwealth or any of its instrumentalities “cannot be impleaded in its own courts except with its consent, and, when that consent is granted, it can be impleaded only in the manner and to the extent expressed [by] statute.” General Elec. Co. v. Commonwealth, 329 Mass. 661, 664 (1953), quoting Glickman v. Commonwealth, 244 Mass. 148, 149-150 (1923). The Legislature has expressly waived sovereign immunity of the Commonwealth “and all political subdivisions . . . thereof” by including them in the statutory definition of persons and employers subject to the statute. See G. L. c. 15IB, § 1 (1) and (5). There is no express authorization under the statute, however, for imposition of interest on a damage award against a public employer. See G. L. c. 151B, §§ 5, 6. Nor does G. L. c. 258 (the primary statutory basis for the waiver of sovereign immunity) contain any provision permitting the recovery of prejudgment or postjudgment interest against the Commonwealth. We have repeatedly stated that the “rules of construction governing statutory waivers of sovereign immunity are stringent.” C & M Constr. Co. v. Commonwealth, supra, quoting Woodbridge v. Worcester State Hosp., 384 Mass. 38, 42 (1981). See Broadhurst v. Director of the Div. of Employment Sec., 373 Mass. 720, 722-723 (1977). Absent statutory language that indicates by express terms a waiver of sovereign immunity,
The fact that the Legislature did not specifically authorize interest on G. L. c. 151B damage awards against the Commonwealth, therefore, does not preclude the imposition of interest on the damages awarded the plaintiff based on the necessary implication of the statute’s terms. We reasoned in Bain v. Springfield, supra, that although the statute does not definitively provide for an award of punitive damages against the Commonwealth or its subdivisions, the express provision for the imposition of actual and punitive damages against “persons” and “employers” subject to the statute, § 9, logically read in conjunction with § 1 (1) and (5), lead to the inevitable conclusion that the Legislature must have chosen to subject public employers to punitive, as well as actual, damages. We apply the same reasoning to this case.
General Laws c. 15IB, § 5, empowers the commission to “take such affirmative action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay ... as, in the judgment of the commission, will effectuate the purposes of this chapter.” This language “represents a significant delegation of discretion and authority by the Legislature to the administrative agency established to enforce the Commonwealth’s anti-discrimination laws.” Bournewood Hosp., Inc. v. Massachusetts Comm’n Against Discrimination, 371 Mass. 303, 316 (1976). We have interpreted this language to permit the commission to award prejudgment interest (against private employers) in conformity with G. L. c. 231, § 6B,
(c) This court long ago approved the commission’s assess
(d) We also have spoken clearly on the issue of the interest on front pay awards in discrimination cases. In Conway v. Electro Switch Corp., supra at 390, we stated that there was “no justification for adding interest to damages which, by definition, are for losses to be incurred in the future.” We decline to revisit this issue. While the plaintiff is entitled to prejudgment interest on the back pay damage award, he is not entitled to prejudgment interest on the front pay award.
(e) The commission awarded the plaintiff back pay damages
3. We turn to the issue of the plaintiff’s entitlement to reason
The plaintiff’s motion in the Superior Court requesting reasonable attorney’s fees and costs for work done in that court was entirely appropriate. A judge in that court may consider the motion and award that amount of the requested attorney’s fees and costs that he or she deems reasonable.
4. We remand this case for modification of the judgment entered against the department in a manner consistent with Parts 1 and 2 of this opinion as follows:
(a) striking the award for damages for emotional distress;
(b) striking the award for prejudgment interest on the damages awarded for back and front pay and entering an award for prejudgment interest on the damages awarded for back pay only, from May 6, 1996, until June 1, 2005.
We also vacate the separate judgment entered denying the plaintiff’s request for reasonable attorney’s fees and costs incurred in connection with his administrative appeal to the Superior Court, and remand the matter to the Superior Court for proceedings in accordance with Part 3 of this opinion.
The plaintiff has requested in his brief an award of appellate attorney’s fees and costs in connection with this appeal. He is entitled to such an award, based on the time and funds reasonably expended on those issues on which he ultimately prevailed before this court. He may file a petition for reasonable attorney’s fees and costs in accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
So ordered.
The plaintiff’s complaint with the commission also charged the town of Wakefield (town) and the Wakefield retirement board (board) with age discrimination. The commission’s hearing officer dismissed the claim against the town, but concluded that the board had discriminated against the plaintiff when it had processed his retirement in 1993 without informing him that his retirement was not mandatory. These charges are not part of this appeal.
The decision relied on by the hearing officer, Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234 (1995), has since been overruled by Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Comm’n Against Discrimination, 65 Mass. App. Ct. 329, 339 n.12 (2005).
The commission also awarded the plaintiff the sum of $48,890.40 in reasonable attorney’s fees and costs, denying the plaintiff’s request for a fifty per cent enhancement. The attorney’s fees and costs awarded by the commission are not at issue in this appeal.
As has been indicated, the department no longer contests the order affirming the commission’s determination of retaliation by the department.
The department contends that the modification effected by the corrected judgment, assessing interest on the award of emotional distress damages as well as on lost wages, was substantive, and claims on appeal that the judge lacked authority to make this modification in the absence of a motion filed by either the plaintiff or the commission, pursuant to Mass. R. Civ. R 59 (e), 365 Mass. 827 (1974), requesting alteration or amendment of the judgment, or Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), requesting relief from the judgment. In view of our conclusion that the plaintiff is not entitled to emotional damages, it is not necessary to address this claim.
We note that the commission also awarded the plaintiff $50,000 in damages to be paid by the retirement board as compensation for emotional distress caused by its failure to inform the plaintiff that his retirement at age sixty-five was not mandatory.
At the conclusion of the plaintiff’s testimony, the hearing officer inquired whether the plaintiff had anything else that he wanted to add. The plaintiff responded: “Well, [it] just kind of overwhelms me. I — you know, I just wanted to go back to work. I didn’t expect all these things to happen. This, you know, just overwhelms me. This is all new. I didn’t know these things went on. That’s about it, I guess.” Based on these words in the transcript, the judge in the Superior Court attributed to the plaintiff the state of mind that he felt “overwhelmed] by losing his job for a second time.” The plaintiff never specifically stated that he felt overwhelmed by losing his job for a second time.
It is of no significance to the present issue that our decision in Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 576 (2004), was released after the commission affirmed the award.
Our conclusion that the plaintiff is not entitled to an award of emotional distress damages obviates the need to consider the department’s claim that the Superior Court judge erred in assessing interest on that award.
In so holding, the Appeals Court overruled its earlier decisions of Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234 (1995), and Salem v. Massachusetts Comm’n Against Discrimination, 44 Mass. App. Ct. 627 (1998). See note 3, supra.
In Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 611 (2005), we noted our agreement with the Appeals Court’s conclusion that the plaintiff in that case was entitled to prejudgment and postjudgment interest on an award of compensatory damages against the Massachusetts Bay Transportation Authority (MBTA) for discriminatory conduct in violation of G. L. c. 151B. See id. at 624 n.ll. The interest allowed in the Clifton decision was based on express language in G. L. c. 161A, § 38, which provides that the MBTA shall be liable in tort “in the same manner as though it were a street railway company” and sets no cap on the amount of damages recoverable. See Clifton v. Massachusetts Bay Transp. Auth., 62 Mass. App. Ct. 164, 178 (2004). What was said in the Clifton decision, therefore, does not apply to the present case.
General Laws c. 231, § 6B, provides: “In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damages to property, there shall be added by the clerk to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law.”
The plaintiff and the commission suggest that our recent decision in Brook-field v. Labor Relations Comm’n, 443 Mass. 315, 324-326 (2005), in which we examined broad remedial provisions contained in G. L. c. 150E, § 11, and determined that the Legislature has, by necessary implication, waived sovereign immunity with respect to awards of prejudgment interest on damages awarded against public entities by the Labor Relations Commission, virtually compels a similar conclusion with respect to the commission’s authority under G. L. c. 151B. Although there are relevant similarities between the two statutory schemes, see, e.g., New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, 401 Mass. 566, 581 n.14 (1988); Conway v. Electro Switch Corp., 825 F.2d 593, 601 (1st Cir. 1987) (noting that G. L. c. 150E is “virtually identical” to G. L. c. 151B with regard to scope of its remedial provision), there are enough significant dissimilarities between the two statutes to make us wary of adopting the Brookfield decision as authority for our conclusion that the commission is authorized to award prejudgment interest on the back pay damage award against the department.
We reject the department’s argument that our decision in Secretary of Admin. & Fin. v. Labor Relations Comm’n, 434 Mass. 340 (2001), in which we determined that the floating rate set forth in G. L. c. 231, § 61, was the appropriate rate to be applied to awards under G. L. c. 150E, requires that we apply the floating rate of interest here. We alluded to major differences between the commission and the Labor Relations Commission in note 14, supra. These differences include the fact that the latter adjudicates collective bargaining violations by agencies of the Commonwealth involving employees of the Commonwealth, see G. L. c. 150E, §§ 1, 11, while the commission adjudicates cases involving both private and public employers, see G. L. c. 151B, § 1 (1) and (5). Complainants before the Labor Relations Commission do not enjoy a commensurate right of removal to the Superior Court. We decline to equate the two statutory schemes for purposes of setting a rate of interest the commission must impose against public employers found to have violated G. L. c. 151B.
The department had moved to modify an earlier corrected judgment claiming “error or oversights in that interest should have been computed only
The department’s claim of sovereign immunity in connection with an award of reasonable attorney’s fees and costs was not raised before the commission or the judge in the Superior Court. We nonetheless consider the claim and reject it on the merits, essentially, for the reasons set forth in Part 2 of this opinion. Indeed, the department’s claim of immunity as to attorney’s fees is less persuasive than its claim of immunity as to awards of interest. This is so, primarily, because G. L. c. 151B, §§ 5 and 9, contain express statutory authority for an award of reasonable attorney’s fees and costs to a prevailing complainant. We find this to be a clear indication of the Legislature’s intent to make all “persons” and “employers” subject to the statute (including public entities such as the department) responsible for payment of reasonable attorney’s fees and costs incurred in connection with a claim of discrimination by a victim of their unlawful actions. See Bain v. Springfield, 424 Mass. 758, 763-764 (1997). This case thus is instantly distinguishable from cases cited by the department.
We reject the plaintiff’s assertion that the judge in the Superior Court was authorized to award reasonable attorney’s fees and costs incurred between the
The department has presented no independent argument as to why, if sovereign immunity has been waived in connection with prejudgment interest, that part of the judgment allowing postjudgment interest should not be affirmed. What has been said with respect to sovereign immunity thus applies to both prejudgment and postjudgment interest, for purposes of this opinion. We reject the plaintiff’s request, contained in a footnote in his brief, for an assessment of postjudgment interest on the monetary amount on which he and the department settled the latter’s appeal of the decision of the judge in the Superior Court affirming the commission’s determination of retaliation and the monetary amount to be paid the plaintiff for attorney’s fees and costs incurred in connection with proceedings before the commission.