NEW YORK AND MASSACHUSETTS MOTOR SERVICE, INC. vs. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.¹
Supreme Judicial Court of Massachusetts
January 19, 1988
401 Mass. 566
HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, & LYNCH, JJ.
Hampden. September 11, 1987. - January 19, 1988.
On review of a determination by the Massachusetts Commission Against Discrimination that an employer had discriminated against an employee on the basis of his religion, this court concluded that substantial evidence supported the commission‘s findings that the employer could have redistributed the complainant‘s duties among its other employees in order to accommodate his religious observances, and that the employer applied a stricter standard of accommodation to the complainant than to other employees. [572-576]
An employer in a proceeding before the Massachusetts Commission Against Discrimination on a complaint by an employee that he was discriminated against on account of his religion did not demonstrate that redistributing the complainant‘s duties among other employees in order to accommodate his religious needs would impose an undue hardship on the employer or would entail more than a minimal cost. [577-579]
The statutory scheme embodied in
An award by the Massachusetts Commission Against Discrimination of back pay damages to a complainant on account of unlawful religious discrimination in his employment was remanded for recalculation, to avoid overcompensation, by deducting the amount of unemployment compensation the complainant had received after his discharge, where,
The Massachusetts Commission Against Discrimination did not err in calculating interest on a back pay award, in conformity with
CIVIL ACTION commenced in the Superior Court Department on October 23, 1985.
The case was heard by Elizabeth A. Porada, J.
The Supreme Judicial Court granted a request for direct appellate review.
Mark I. Zarrow for the plaintiff.
Gerald R. Hegarty for James A. Mislak.
Leslie B. Greer for Massachusetts Commission Against Discrimination.
ABRAMS, J. New York and Massachusetts Motor Service, Inc. (New York-Mass), appeals from a judgment of the Superior Court affirming a determination of the Massachusetts Commission Against Discrimination (commission) that New York-Mass discriminated against the complainant, James A. Mislak, on the basis of his religion, and awarding Mislak lost wages and interest. New York-Mass argues four grounds for reversal that: (1) the decision of the commissioner, as affirmed by the full commission, was not supported by substantial evidence; (2)
On December 9, 1981, Mislak filed a verified complaint with the commission alleging that his employer, New York-
The investigating commissioner found probable cause to credit the allegations in Mislak‘s complaint. After a hearing, the single commissioner found that New York-Mass had discriminated against Mislak on the basis of his religion. The single commissioner ordered New York-Mass to pay Mislak the wages he lost as a result of his termination, as well as interest thereon at a rate of twelve per cent per annum from the date the complaint was filed until the date payment was made. New York-Mass appealed to the full commission, which affirmed the single commissioner‘s decision with some modifications.2 New York-Mass sought review in the Superior Court. The judge affirmed the commission‘s decision and order. We granted New York-Mass‘s application for direct appellate review.
We summarize the facts found by the single commissioner and adopted by the full commission. James Mislak resides in Chicopee, and is a member of the Worldwide Church of God. His former employer, New York-Mass, is a corporation engaged in the freight delivery business in Springfield and in New York City. New York-Mass is owned by Paul A. Dubrey, Jr., who also serves as New York-Mass‘s president and treasurer. Dubrey operates the business jointly with his father, Paul A. Dubrey, Sr. Mislak began work as a truck driver for New York-Mass in May, 1979.
When he was hired by New York-Mass in May, 1979, Mislak informed Paul Dubrey, Sr., that he would be unable to work from sunset Friday until sunset Saturday. Dubrey told Mislak that New York-Mass could work around his Sabbath observance. New York-Mass accommodated Mislak‘s needs by getting him off the road before sundown. In the fall of 1979, Mislak requested vacation time corresponding to the Feast of Trumpets, the Day of Atonement, and the Feast of Tabernacles. Mislak did not inform his employer that the requested time was needed for his religious observances. New York-Mass granted the request. In 1980, Mislak requested time off to observe all of that year‘s holy days.⁴ That request was granted. In 1981, Mislak did not have to request vacation for the spring holy days, because they fell on days he was not scheduled to work. In March or April, however, Mislak marked the company vacation calendar for September 29 (Feast of Trumpets), October 8 (Day of Atonement), October 13-19 (Feast of Tabernacles), and October 20 (the Last Great Day). Mislak informed Paul Dubrey, Jr., that he needed the vacation days in order to
Dubrey told Mislak that it was company policy that only one employee take vacation at a single time and that two employees, Clarence and George Babcock, were already scheduled to take vacation during that week. Clarence Babcock had requested vacation from October 13 through October 30, and George Babcock had requested vacation from October 19 through October 30. The Babcocks had longer tenure at New York-Mass than did Mislak. Dubrey told Mislak that he could not have the requested week off unless he worked it out with the Babcocks. Mislak approached George Babcock about the vacation problem, but because Babcock and his father (Clarence) planned to attend a family reunion in Texas, Mislak did not ask them to switch weeks.
Several weeks later, Mislak spoke with Paul Dubrey, Jr., offering his two weeks’ vacation pay so that New York-Mass could hire a replacement driver for the six days in question. Dubrey again informed Mislak that he could not have the time off. Subsequent to this conversation, in June, 1981, Mislak obtained a request for excused absence from his minister and presented it to Paul Dubrey, Jr. The minister‘s letter informed Dubrey that Mislak was required to be on Cape Cod for the religious observances. Dubrey again refused to grant Mislak the requested time off, citing another employee‘s need to drive his wife to Boston for chemotherapy every Monday, and another employee‘s need to go to court for divorce proceedings one day each week.
Sometime in October, Mislak again spoke with Paul Dubrey, Jr., about the vacation time; Dubrey told Mislak that he might be able to take one or two days off, but that he would not be able to take the entire week. On the evening of October 10 (a Saturday), Mislak went to the office to check the schedule for the coming week. Finding that he was scheduled to work October 13, Mislak called Paul Dubrey, Sr., at home and informed him that he could not work that day. Dubrey responded by telling Mislak that if he kept the holy day, he would lose his
In her order, the commissioner found that (1) New York-Mass could reasonably have accommodated Mislak‘s religious needs by redistributing Mislak‘s runs among the remaining drivers; and (2) New York-Mass applied a stricter standard to Mislak‘s request for time off than it did to similar requests of other employees. The commissioner noted that Mislak requested the time off six months in advance, allowing New York-Mass substantial time to arrange an accommodation for Mislak. The commissioner credited Paul Dubrey, Jr.‘s testimony that New York-Mass needed twelve drivers to operate its business, but found that the company had fourteen drivers available during the week ending October 10, 1981, and thirteen available during the weeks ending October 17, 24, and 31, 1981. The commissioner also found that New York-Mass, a nonunionized company, had flexibility in reassigning drivers and other employees.
The commissioner also found inconclusive the evidence presented to demonstrate that New York-Mass was unable to fill all its orders during the period of Mislak‘s absence. The commissioner found that during the weeks when Mislak, the Babcocks, and other employees were absent, the company earned more revenue than during any other weeks from September 5 to November 28, 1981, with the exception of one week in November. Moreover, although New York-Mass had thirteen drivers working during the weeks ending October 17 and 31, 1981, the number of hours worked during those weeks totalled 418.40 and 601.51 respectively. The commissioner concluded from this fact that the number of drivers working was not solely determinative of the amount of hours worked.
The commissioner found that, although New York-Mass purported to enforce a one-man-off vacation policy, the policy was applied selectively. The commissioner noted that both Clarence and George Babcock were allowed to be away from October 16 through October 30; that another employee was permitted to take off each Monday during that same period in
1. Substantial evidence. A reviewing court may set aside the final determination of an administrative agency if the court “determines that the substantial rights of any party may have been prejudiced because the agency decision is . . . (e) Unsupported by substantial evidence . . . .”
First, the commissioner‘s finding that New York-Mass could have accommodated Mislak‘s religious holidays by redistributing his duties among the other drivers is supported by evidence that (1) Mislak allowed New York-Mass a substantial amount of time to respond to his request; (2) New York-Mass, a nonunionized company, had flexibility in reassigning its employees; (3) the number of drivers available for work during Mislak‘s holy days never fell below the twelve necessary to operate the company; (4) New York-Mass earned more revenue during the week of Mislak‘s absence than at almost any other time during the period between September 5, 1981, to November 28, 1981;⁶ and (5) the aggregate number of hours worked by
New York-Mass also contends that it did not apply a stricter standard of accommodation to Mislak, because as Paul Dubrey, Jr., testified, two other employees⁸ who were allowed time off during the Babcocks’ vacation made up the time that they missed. We agree with the full commission that this testimony, even if true, was irrelevant to the single commissioner‘s deter-
New York-Mass makes several arguments to illustrate a lack of discriminatory intent. First, New York-Mass argues that the commissioner failed to attach the proper significance to evidence that the company allocated vacation time on the basis of an employee‘s seniority. Both Clarence and George Babcock were senior to Mislak, as were the other drivers who received time off. New York-Mass asserts that in order to keep its Massachusetts operation nonunionized, it offered to its Massachusetts employees the same benefits that were available to the company‘s union employees in New York. At the core of those benefits was recognition of seniority. New York-Mass‘s argument essentially challenges the weight the commissioner accorded this testimony as opposed to testimony that New York-Mass maintained a nonunionized operation in Springfield in order to allow the company greater flexibility than a union contract would permit. It is the function of the commissioner to determine the weight to be accorded competing testimony and evidence; it is not the function of this court to second-guess the commission‘s determination unless it is not supported by substantial evidence. See Smith College v. Massachusetts Comm‘n Against Discrimination, 376 Mass. 221, 224 (1978) (“Courts must defer to an administrative agency‘s fact-finding role, including its right to draw reasonable inferences from the facts found“).⁹
The language of
In addressing the issue of undue hardship, the commission also must focus on whether the employer could have exercised its managerial discretion in such a way that the employee‘s religious obligations could have been reasonably accommodated. Therefore, the commissioner‘s determinations that New York-Mass could have distributed Mislak‘s duties among its other drivers and that New York-Mass applied a stricter standard to Mislak‘s request for vacation time than it applied to other employees’ similar requests does not improperly invade New York-Mass‘s business judgment.¹¹
With regard to the first contention, the commissioner found, “[New York-Mass] made various personnel adjustments between October 13 and October 20 to accommodate the lessened number of drivers. The night foreman, Jim Benoit, drove a truck; the night dispatcher, George Maynard, served as the foreman; and both Dubreys worked eighteen hours a day with Dubrey, Sr., driving a truck at times.” New York-Mass argues
New York-Mass first contends that the commissioner failed to consider that awarding Mislak time off for his religious holidays would have violated the seniority system by which New York-Mass traditionally allocated vacation preferences, a factor afforded great weight in Hardison. See Hardison, supra at 79. New York-Mass‘s contention miscasts the issue of accommodation in terms of a conflict between Mislak‘s need to fulfil his religious beliefs and the more senior employees’ requests for simultaneous vacation. As the commissioner found, New York-Mass did not strictly follow the one-man-off vacation policy. Thus, New York-Mass could show undue hardship if it could establish that Mislak‘s absence would cause staffing levels to fall below the minimum level needed to operate the business. The evidence did not support such a finding. The commissioner found that, even with Mislak‘s absence, staffing at New York-Mass would not have fallen below the twelve employees needed to operate the business. Furthermore, the commissioner found that because the company was not unionized, the company could shift employees’ positions and job functions without running afoul of a collective bargaining agreement. New York-Mass sought to keep its Springfield operation nonunionized to provide this flexibility. See supra at 571.
New York-Mass also failed to prove that it suffered undue hardship from Mislak‘s absence during the week prior to his termination. New York-Mass did not demonstrate that the personnel adjustments required by Mislak‘s absence imposed any cost, let alone more than a de minimis cost, on the company‘s operation. As the commissioner found that Babcocks, Jim Prouty, Clyde White, and Gary Ranney all were absent during Mislak‘s religious holidays; thus any hardship suffered during
3. Equal protection claim. New York-Mass contends that the procedures outlined in
New York-Mass admits in its brief that it did not raise this constitutional claim before the commissioner or before the full commission when it initially appealed the single commissioner‘s determination. When it was finally raised, the commission declined to entertain the claim on the grounds that the decision to allow a party to raise additional argument was within its discretion, that New York-Mass had offered no reason for the nearly six-month delay in raising the issue, and that the power to hold a statute unconstitutional exceeded the scope of the commission‘s power and authority. “As a general rule, a party is not entitled to raise an argument on appeal if the claim could have been raised, but was not raised, before the administrative agency.” Langlitz v. Board of Registration of Chiropractors, 396 Mass. 374, 382 (1985). See Albert v. Municipal Court of the City of Boston, 388 Mass. 491, 493 (1983); M.H. Gordon & Son v. Alcoholic Beverages Control Comm‘n, 386 Mass. 64, 68 (1982). This principle is equally
Assuming the issue is properly before us, there is no merit to New York-Mass‘s contention.
New York-Mass has argued three such differences. New York-Mass contends, first, that in adjudicating a discrimination claim, the commission is not required to adhere to the strict rules of evidence; second, that to prevail before the commission, a complainant only need prove his or her claim by substantial evidence, not proof by a fair preponderance of the evidence as is required in court; and, third, that the scope of review of an administrative agency‘s findings of fact is narrower than that applied to the findings of fact of a trial judge inasmuch as findings of fact may be clearly erroneous (the standard of review for factual findings of a judge) without being so unreasonable as to be found not to be supported by substantial evidence (the standard for review for administrative findings). Whatever the merits, if any, of these distinctions, we do not believe that they, individually or collectively, rise to the level of a fundamental right. We conclude that the statutory scheme embodied in
4. Damages award. New York-Mass contends that the commission improperly formulated Mislak‘s damages award. New York-Mass contends that the commission erroneously failed to deduct unemployment compensation received by Mislak from the amount of back pay the commission awarded as damages. New York-Mass also contests the commission‘s order that New York-Mass pay interest at the statutory rate of twelve per cent on the total back pay award from the date the complaint was filed until the date payment was made. We address each contention in turn.
a. The damages award. In her order, the single commissioner awarded Mislak $34,294.14 in back pay. The commissioner did not deduct the unemployment compensation Mislak had received ($5,430 for 1982 and $198 for 1983). New York-Mass contends that the commissioner‘s order results in a windfall for Mislak, because his unemployment benefits already partially compensated him for his lost wages.
In School Comm. of Newton v. Labor Relations Comm‘n, 388 Mass. 557 (1983), this court addressed the same question in the context of a Labor Relations Commission determination that unemployment compensation should have been deducted from an award of back pay made to school custodians who prevailed on a claim of breach of a collective bargaining agreement. In that case, this court upheld the commission‘s decision on the ground that it is within the commission‘s authority to fashion appropriate remedies for violation of the labor relations statute.¹⁴ Id. at 381-382. As we noted in School Comm. of
It is clear from New York-Mass‘s brief that Mislak received unemployment compensation no later than 1983. The commissioner‘s decision was issued on March 20, 1985. Therefore, more than a year had passed since the Division of Employment Security had made its initial benefit determination. Allowing Mislak to keep his full back pay as well as the unemployment compensation he had already received would make him more than whole. In these circumstances, we think that the commission should have deducted the amount of the unemployment compensation paid to Mislak during 1982 and 1983 in calculating Mislak‘s damage award. Accordingly, we remand this case
b. Interest. New York-Mass contests the commissioner‘s award of interest on Mislak‘s back pay award at the statutory rate of twelve percent per annum calculated on the entire amount of the damages from the date the action commenced through the date of payment. New York-Mass contends that the interest award results in a windfall to Mislak because much of the back pay had not accrued by the date the complaint was filed. New York-Mass further argues that it should not be charged interest either for (a) the time between the hearing on Mislak‘s appeal from the finding of lack of probable cause to the probable cause determination; or (b) from August 1, 1984, to March 20, 1985, the time it took the single commissioner to issue her decision.
In College-Town, Division of Interco, Inc. v. Massachusetts Comm‘n Against Discrimination, 400 Mass. 156 (1987), this court addressed the question raised by New York-Mass‘s first contention. We concluded that the commission did not err in awarding interest in conformity with
Finally, we address New York-Mass‘s contention that the commission should not have calculated interest for the time the commission required to determine probable cause and for time required for the commissioner to issue her findings and order. We find this contention to be without merit. New York-Mass does not contend that Mislak in any way occasioned the delays of which it complains, and absent a showing that the prevailing party caused an inexcusable delay in the proceedings we will not require a deduction of interest like the one New York-Mass seeks. Accordingly, we affirm the commission‘s calculation of interest on Mislak‘s back pay award at twelve percent per annum from the date of the commencement of the action to the date of payment.
5. Conclusion. In sum, we affirm the commission‘s disposition of Mislak‘s claim as based on sufficient evidence. Likewise, the commission‘s finding that New York-Mass would not have suffered undue hardship in accommodating Mislak‘s religious needs is to stand. We also conclude that the procedures outlined in
So ordered.
LYNCH, J. (dissenting in part). I do not agree that the commission correctly added interest from the commencement of the proceeding to the award of damages for loss of pay. In upholding the commission‘s award the court relies on College-Town, Division of Interco, Inc. v. Massachusetts Comm‘n