65 Mass. App. Ct. 329 | Mass. App. Ct. | 2005
Five female, African-American employees
Facts. We relate the relevant facts as found by the hearing officer. In July, 1994, in response to funding cutbacks, THH laid off five African-American women — Gloria Coney, Belinda Chambers, Veronica Higginbottom, Marlene Hinds, and Betty Smith — from its Healthy Baby/Healthy Child Program. Each of these women was a full-time employee at THH’s Hyde Park office. At least one of them was a management-level employee.
During these same layoffs, THH also laid off Christopher Navin, a Caucasian man who worked in the Healthy Baby/ Healthy Child Program at the Hyde Park location, as well as at a Boston location, and at times, from his home. He was a permanent part-time employee who was responsible for reviewing and making recommendations concerning the Healthy Baby/ Healthy Child Program’s organizational structure. Navin’s layoff and the layoffs of the complainants were strikingly different in their execution.
Marjorie Perkins, the program director of the Healthy Baby/ Healthy Child Program, was in charge of the layoffs. She learned on or before June 30, 1994, that there would have to be
Coney and Hinds were laid off on July 19, 1994, when Perkins and McNamara called them into Perkins’s office and informed them that they were being laid off effective immediately, and that they should collect their belongings and leave within thirty minutes. In full view of their coworkers and Hinds’s daughters (who happened to be at the office), McNamara and two other employees monitored Coney and Hinds as they packed their things. The monitoring was such that Hinds’s daughters thought their mother was being observed to prevent stealing. Perkins and one of the employees examined Coney’s belongings as she packed, including an inspection of her lunch bag. She was told that the monitoring was to ensure she did not take anything issued by THH. Coney refrained from using the restroom because she felt she would be watched. She asked for special permission to return the following day to collect the rest of her things. She was allowed to do so, again under the supervision of an employee. Coney did not have an opportunity to say goodbye to her coworkers, some of whom cried and asked if she was being arrested.
Higginbottom, Chambers, and Smith were not at work on July 19. On July 20, they were summoned to Perkins’s office, informed that they were being laid off effective immediately, and sent to pack their belongings. They were monitored in a fashion similar to the scrutiny Hinds and Coney had endured. Notably, Smith did not have an opportunity to collect all her belongings and left photographs and certificates in the office. In addition, McNamara pulled papers out of Chambers’s hands as Chambers packed and “order[ed] Chambers around.” Chambers’s officemate cried as Chambers packed. McNamara also refused to allow Chambers to contact her clients to tell them she would not make her appointments that day. Finally, after several requests, McNamara permitted Chambers to take the telephone numbers of some of her clients home to contact them later.
Within two weeks following the layoffs, THH Commissioner Lawrence Dwyer apologized to the complainants at a union meeting, stating that the treatment they received would not be repeated during his tenure. Dwyer also offered Chambers and Higginbottom another job. They rejected this offer. The complainants thereafter filed their complaint with the MCAD. Their theory of liability was not that THH discriminated in its choice of whom to lay off, but rather in the manner in which it executed the layoff.
At the hearing, McNamara testified that she and Perkins had decided on the layoff procedures because they were concerned for their safety and to prevent vandalism and theft at the office, especially with regard to confidential patient files. The hearing officer concluded that these reasons were merely a pretext for THH’s actions.
Standard of review. We generally review an agency’s interpretation of law de nova. See, e.g., Hogan v. Labor Relations Commn., 430 Mass. 611, 613 (2000). However, we grant deference to the interpretations administrative agencies make of the statutory scheme that they administer. Somerset Importers, Ltd. v. Alcoholic Beverages Control Commn., 28 Mass. App. Ct. 381, 385 (1990). See Heublein, Inc. v. Capital Distrib. Co., 434 Mass. 698, 705 (2001). Further, “[w]e will affirm a decision and order of the MCAD unless the findings and conclusions are unsupported by substantial evidence or based on an error of law.” Salem v. Massachusetts Commn. Against Discrimination, 44 Mass. App. Ct. 627, 640-641 (1998).
Discrimination claims under G. L. c. 151B. The complainants’ discrimination claims are based on alleged violations of G. L. c. 151B, § 4, as amended by St. 1965, c. 397, § 4, which, in relevant part, makes it unlawful “[f]or an employer, by himself or his agent, because of the race [or] sex ... of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” Specifically, the complainants assert that THH discriminated against them in the “terms, conditions or privileges of employment” by its degrading differential treatment of them during their layoffs, which they claim was due to the fact that they are African-American women.
Claims of discrimination under G. L. c. 15 IB are usually evaluated using a three-stage test.
In our view, it is unnecessary to decide whether Navin was similarly situated in all relevant ways to the complainants, because regardless whether Navin was similarly situated, the record reflects that the complainants were treated worse than all potential comparators. This was enough of a showing to meet the complainants’ burden. Although providing a similarly situated comparator is usually the most probative means of proving that an adverse action was taken for discriminatory reasons, it is not absolutely necessary.
In this case, the hearing officer found that there was no evidence that “anything similar had ever happened before in complainants’ workplace,” and that McNamara and Perkins had had several conversations on the manner in which to conduct these particular layoffs. At oral argument, the attorney for THH confirmed that the manner in which the complainants were laid
The complainants have proved not simply that they were treated worse than one similarly situated comparator, they have proved that they were treated worse than all potential comparators. This showing fulfils the purpose of the stage one showing: to “eliminate[] the most common nondiscriminatory reasons for the plaintiff’s rejection.” See Blare, 419 Mass. at 441, quoting from Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). See also Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 45, quoting from Che v. Massachusetts Bay Transp. Authy., 342 F.3d 31, 38 (1st Cir. 2003) (stating that stage one is meant only to be a “ ‘small showing’ that is ‘easily made’ ”).
Application of statutory interest. Finally, the complainants
Both the Boston and the Salem cases rely on the principle that the Commonwealth does not waive sovereign immunity unless there is “express statutory authorization.”
Recognition that sovereign immunity may be waived by necessary implication is both important and relevant to the interpretation of G. L. c. 151B. The Bain court reasoned that sovereign immunity had been waived under c. 15IB for punitive damages because the statute expressly authorizes punitive damages as a remedy, and because the Commonwealth and its subdivisions are specifically listed in the statutory definition of persons and employers subject to the statute. See Bain v. Springfield, 427 Mass. at 762-764. Therefore, the natural and ordinary reading of the statute resulted in a necessary implication that the Commonwealth had consented to punitive damages pursuant to the statute. See id. at 763. In other words, if a remedy is authorized by statute, and if it would apply to the Commonwealth by virtue of the appropriate statutory definition, sovereign immunity is waived.
The reasoning of the Bain court is applicable to the case at hand. First, the Commonwealth and its subdivisions are listed under the statutory definition of persons and employers subject to G. L. c. 15IB, as the Bain court recognized. Second, prejudgment interest is a remedy authorized under c. 151B. See College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 169-170 (1987); New York & Mass. Motor Servs., Inc. v. Massachusetts Commn. Against Discrimination, 401 Mass. 566, 583 (1988). Therefore, the award of prejudgment interest in this case is no different from the award of punitive damages in Bain.
Although the statutory authorization for prejudgment interest is not explicit in our case — as the authorization for punitive damages was in Bain — the Supreme Judicial Court has made clear that prejudgment interest is permitted under the broad grant of authority to the MCAD under G. L. c. 151B, § 4. See College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. at 169-170; New York & Massachusetts Motor Servs., Inc. v. Massachusetts Commn. Against Discrimination, 401 Mass. at 583. More importantly, the court has held that broad authorization for prejudgment interest is specific enough to constitute a waiver of sovereign
In light of the reasoning suggested in Bain v. Springfield, supra, and School Comm. of Newton v. Labor Relations Commn., supra, we conclude that the MCAD’s current position is the correct one and that prejudgment interest can be awarded against the Commonwealth under G. L. c. 151B.
Conclusion. We reverse the judgment of the Superior Court, and order the entry of a new judgment that modifies the MCAD’s decision by reinstating the hearing officer’s award of prejudgment interest. The new judgment shall affirm the MCAD’s decision, as so modified.
So ordered.
In refusing to credit McNamara’s testimony, the hearing officer noted that McNamara’s testimony concerning the basis of the procedures conflicted with Perkins’s testimony — the person with whom McNamara supposedly decided on the procedures — and conflicted with McNamara’s own deposition testimony. In addition, the hearing officer pointed out that McNamara’s testimony was undercut by the fact that THH failed to take simple steps during the layoff to protect the integrity of patient files, such as identifying which of the complainants had patient files in their possession, or even telling the complainants that the layoff procedures were intended to protect patient files. Some of the complainants did not handle confidential patient files as part of their employment.
Coney was awarded $30,000. Hinds was awarded $20,000, and Chambers, Higginbottom, and Smith were each awarded $25,000.
The three-stage test announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by the Supreme Judicial Court, is technically only a substitute for direct evidence of discrimination, allowing a “jury to infer discriminatory animus and causation from proof that an employer has advanced a false reason for the adverse employment decision.” Sullivan v.
See Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997) (“ ‘terms, conditions, or privileges’ is pretty open-ended language . . . and a number of cases have extended coverage to slights or indignities that might seem evanescent”).
While we need not resolve whether the MCAD used the appropriate criteria in evaluating whether Navin was similarly situated in all relevant ways to the complainants, we note that the MCAD’s factors in that regard accomplished the goal of the stage-one burden, namely, to eliminate potential, legitimate, nondiscriminatory reasons.
The attorney for THH acknowleded that typically, TEH employees laid off for financial reasons were not treated the way the complainants were.
In addition, as we discussed at note 4, supra, the entire three-stage test is merely a method for using circumstantial evidence to prove that an adverse employment action was taken for improper, discriminatory, reasons. See Sullivan, 444 Mass. at 39-40. In the rare case where an employee can provide direct evidence of improper discriminatory animus, the test in McDonnell Douglas Corp. v. Green, supra, is not used. See Gates v. Flood, 57 Mass. App. Ct. 739, 743-744 (2003). See also Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. at 665, citing Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 298 (1991). Instead, the employee uses direct evidence to prove that the employer intentionally discriminated against her and that the discriminatory animus is the “but for” cause of the adverse action. See Gates, 57 Mass. App. Ct. at 744. See also Moriearty, Adkins, Rubin & Jackson, Employment Law § 8.42, at 536 (2d ed. 2003), and cases cited. Consequently, the complainants’ evidence might have been sufficient to show discrimination even outside of the three-stage test used by both the MCAD and the Superior Court.
The complainants also argue that Clifton v. Massachusetts Bay Transp. Authy., 62 Mass. App. Ct. 164 (2004), S.C., 445 Mass. 611 (2005), controls this issue because it stands for the proposition that quasi public agencies like THH do not enjoy the protection of sovereign immunity. Because we rule in the complainants’ favor on their other argument, we need not consider this question. However, in passing, we make two observations: first, in Clifton, this court concluded that the Massachusetts Bay Transportation Agency (MBTA) was not shielded by sovereign immunity because of the scope of tort liability as defined in a statute, G. L. c. 161A, § 38, not because it was quasi public, Clifton v. Massachusetts Bay Transp. Authy., 62 Mass. App. Ct. at 178; second, THH is not the same type of quasi public agency as the MBTA and the Massachusetts Turnpike Authority for the purposes of the Massachusetts Tort Claims Act. See Johnson v. Trustees of Health & Hosps. of Boston, 23 Mass. App. Ct. 933, 934-935 (1986).
In Dalrymple v. Winthrop, 50 Mass. App. Ct. at 622, the court simply referred to Boston without discussion.
General Laws c. 150E is the statutory scheme that, among other things, authorizes the Labor Relations Commission to remedy unfair labor practices.
To the extent that the Boston and Salem, cases held that the grant of authority to the MCAD under G. L. c. 151B is not specific enough to waive the sovereign immunity of the Commonwealth for the purposes of ordering prejudgment interest, they are not controlling post-Bain. We note that in a recent decision, Brookfield v. Labor Relations Commn., 443 Mass. 315, 326 (2005), a case focusing on G. L. c. 150E, the Supreme Judicial Court ruled that although there was no express statutory authorization for an award of interest, such an award was a “necessary remedial component of the statute.” In passing, in a footnote, the court declined to invoke Boston and Salem as persuasive authority in support of the contrary view. Id. at 326 n.5. The question of the waiver of sovereign immunity under G. L. c. 151B was not before the court. While the court stated that “the Appeals Court’s decisions in [Salem and Boston] have no relevance here because those cases dealt with interest awards made pursuant to G. L. c. 151B,” ibid., we do not understand that language to suggest anything more than that the reference to G. L. c. 151B was not necessary to the decision before the court.
