Section Review

Patricia A. Washienko is the founder of the employment law firm the Law Offices of Patricia A. Washienko. She is a member of the Massachusetts chapter of the National Employment Lawyers Association, the Massachusetts Bar Association and the Boston Bar Association, where she has served as a member of the Steering Committee of the Labor and Employment Section.

Katherine J. Michon is a partner at the firm of Kimball, Brousseau & Michon, LLP, whose practice is devoted to employment law. She has substantial experience in a wide range of employment disputes, including discrimination, sexual harassment, wrongful termination and contract. She has co-chaired the subcommittee that drafted the MCAD’s Sexual Harassment Guidelines.2

Early 2005 is a good time to look back at the decisions issued by the Massachusetts Commission Against Discrimination in 2004. Listed below are 10 decisions from 2004 that clarified the commission’s position on the law or its own authority, provided helpful guidance to the employment practitioner or contained one of the highest emotional distress damages awards of the year. It was a fascinating year — primarily because emotional distress damages came into their own. Not surprisingly, cases presenting significant emotional distress damages awards open and close our top 10 list.

Stonehill College v. MCAD: SJC reverses Lavelle, so respondents cannot force jury trial de novo; emotional distress damages must be proved

Although it’s not technically a commission decision this year, it is arguably the most important employment decision of the year. Stonehill College v. MCAD, 441 Mass. 549 (2004), needs to be number one on our list. As a result of the Stonehill decision, the commission is once again empowered to uphold its own decisions without fear of employers forcing a jury trial, and retains its authority to award, among other things, emotional distress damages and attorneys’ fees and costs.

For complainant’s counsel, the impact of the Stonehill decision can be found in several cases last year that awarded significant emotional distress damages. A powerful (if sobering) reminder of what Stonehill means to the practitioner at the commission is the commission’s decision in Welch v. Trans-Lease Group, Inc., 26 MDLR 247 (2004), which wins hands down for its simplicity. In Welch, complainant, a truck driver, was terminated and not rehired after respondent employer learned he wore a prosthetic foot, even though complainant had an unblemished 25-year record as a commercial truck driver and had received a waiver from the Department of Transportation. Finding the respondent’s allegedly legitimate non-discriminatory reasons for its actions to be false, the commission concluded complainant had been unlawfully discriminated against on the basis of disability. The commission awarded complainant $64,691 in back pay and a $10,000 civil penalty. However, it did not award emotional distress or punitive damages. Citing Stonehill, the commission noted that it has no authority under Massachusetts General Laws chapter 151B to award punitive damages and that a prevailing complainant is not entitled to an award of emotional distress damages without proof of same. Because complainant failed to present any evidence of emotional distress, the commission awarded him nothing for it.

McGrath v. Local Union No. 12004: Chapter 151B is not automatically pre-empted by the National Labor Relations Act

Beyond the statute of limitations set by Chapter 151B, the commission recognizes few limits to its authority. In McGrath v. Local Union No. 12004, 26 MDLR 192 (2004), the commission specifically considered the viability of a claim of sexual orientation hostile work environment in the context of a labor dispute. After careful review of the purposes of the NLRA and the MCAD, the commission concluded that Chapter 151B is not per se preempted by the NLRA. In reaching its conclusion, the commission made it clear that the preemption standards that apply to state tort claims are equally appropriate to claims under Chapter 151B — so a claim is not per se preempted where (as here) the regulated conduct is so deeply rooted in local feeling and responsibility that courts cannot infer that Congress has deprived the states of the power to act. However, the commission further held that because the NLRA grants a “license” to a union in a labor dispute “to use intemperate, abusive, or insulting language without fear of restraint or penalty,” the complainant must prove that the specific conduct alleged exceeds the protections often afforded to its union and its members by the NLRA in order to be actionable under Chapter 151B. Applying this standard to the present case, the commission found for the complainant because he established that (a) a reasonable gay man working under the unique circumstances of the labor dispute at issue would have been offended by respondents’ conduct; and that (b) respondents engaged in conduct so outrageous that no reasonable person in a civilized society should be expected to endure it. The commission awarded the complainant $35,000 in emotional distress damages.

Apsey v. GKA, Inc.: Commission declines to stay proceeding following bankruptcy filing and sanctions respondent for discovery abuses

As fell the NLRA preemption argument, so too fell the argument that the automatic stay of the United States Bankruptcy Code prevents the commission from proceeding against a respondent who filed a bankruptcy claim. In Apsey v. GKA, Inc., 26 MDLR 56 (2004), the commission concluded that the respondent employer’s Chapter 7 bankruptcy filing does not prevent the commission from proceeding with a public hearing and issuing a decision. While the commission noted that the complainant’s ability to recover any money damages might be affected by an automatic stay, it emphasized that its own authority to investigate discrimination was not similarly affected.

The commission also flexed its police power muscle within the proceeding, sanctioning respondent for its repeated discovery abuses by prohibiting respondent from introducing evidence or presenting any defense. The commission permitted respondent to cross-examine the complainant — but was unable to persuade the commission that it did not engage in quid pro quo sexual harassment and hostile work environment discrimination. The commission awarded complainant $75,000 in emotional distress damages and imposed a $10,000 civil penalty on respondent.

Pierre v. Salem State College: Respondent’s disregard of commission proceedings earns it sanctions; full commission vacates decision below in its favor

If you think not being able to introduce evidence or present a defense is bad, how about having a decision in your favor overturned as a result of your discovery abuses? That’s the penalty that befell respondent in Pierre v. Salem State College, 26 MDLR 137 (2004), a decision by the full commission that sanctioned respondent for failing to file a conforming position statement, failing to attend the conciliation conference, failing to submit the required memorandum and failing to attend the pre-hearing conference and appear before the commission. Given the respondent’s deliberate disregard for commission proceedings, the full commission determined that complainant had not been afforded the opportunity to prove his case, vacated the decision below and remanded the case for a new, expedited hearing with a different hearing officer and the participation of the chief of enforcement. The commission also ordered respondent to pay the complainant an award of attorneys’ fees in an amount to be determined by the next assigned officer, along with $1,000 in attorneys’ fees previously awarded by the investigating commissioner. The clear message: Take the commission seriously. Failure to do so will not be overlooked.

Girouard v. Bekiro Corp.: Discriminatory acts of agent subjects company to strict liability

Following on the heels of two 2003 commission decisions considering which agents of an employer may be considered “supervisors” for purposes of strict liability under Chapter 151B, the commission affirmed that discriminatory actions of individuals who are not necessarily direct-line supervisors may nonetheless subject the company to liability. In Girouard v. Bekiro Corp., 26 MDLR 24 (2004), complainant sued the respondent company, its owner, and the owner’s wife for discrimination on the basis of handicap and failure to reasonably accommodate her after they terminated her following treatment for breast cancer. Respondents argued that the owner’s wife (a named respondent) was not a supervisor for purposes of supervisory liability because she was not an owner of the company, she had no authority to hire and fire, and she did not assign work to other employees. Numerous witnesses, however, testified that the owner’s wife exercised managerial control over employees (including directing their work, investigating cash shortages and mediating disputes among workers). On the basis of that testimony, the commission concluded that the owner’s wife had actual and apparent authority to fire complainant and that her conduct could (and did) bind the company. After finding the respondents engaged in unlawful discrimination, the commission awarded complainant back pay and $50,000 in emotional distress damages and also imposed a civil penalty of $10,000.

Medeiros & Dow v. Penske Truck Leasing: Full commission rejects “male-on-male horseplay” defense

The respondent is not let off the hook in Medeiros & Dow v. Penske Truck Leasing, 26 MDLR 229 (2004). In this case, male complainants alleged that a male co-worker touched them in a sexually offensive manner and engaged in sexually inappropriate behavior. Respondent had argued that in the social context of its workplace — a predominantly blue collar, labor intensive, male work environment — the behavior of the (male) perpetrator was merely sophomoric “male-on-male horseplay,” neither severe nor pervasive enough to creative an objectively hostile work environment for the male victims. The full commission disagreed, noting same-sex conduct is actionable sexual harassment in the commonwealth. See Massachusetts General Laws chapter 151B, section 4(16A); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290-91 (1997). It also noted that the actions of the perpetrator here were “far beyond the margin of mere sophomoric horseplay.” The full commission thus upheld the 2003 hearing decision and the emotional distress damages awards of $105,000 to each complainant.

Vera & Saltmarsh v. Faust: Commission holds individual respondent individually liable and declines to reduce award by previous settlement amount

What happens when the discriminatory actions of an individual supervisor are so egregious that the employer itself settles? The case proceeds only against the individual. In Vera & Saltmarsh v. Faust, 26 MDLR 341(2004), and 26 MDLR 349 (2004), we learn that the commission flexes its muscle against individuals as much as it does against companies. In this case, complainants, both carpenters at Smith College, accused several individuals, Smith College and their union of discrimination on the basis of sex and sexual orientation and retaliation. All respondents, except one individual — Faust — settled with complainants. As a result, the matter went to public hearing only against Faust, individually, for violation of Sections 4(4A) (individual liability for coercing, intimidating and threatening), 4(5) (individual liability for aiding and abetting) and 4(4) (retaliation). Faust declined to appear at the public hearing and presented no evidence to rebut complainants’ prima facie cases. The commission readily concluded that complainants had established that Faust had discriminated against them in violation of Sections 4(4), 4(4A) and 4(5).

With regard to damages, Faust argued that the money complainants received in settlement with the college, the union and other individual respondents should reduce any award levied against him individually — otherwise, complainants would receive a “windfall.” The commission flatly rejected that argument: “[t]hat [others] chose to voluntary resolve the matters pending against them has no bearing on respondent Faust’s individual liability for the emotional distress he caused.” Given the pervasive nature of the harassment complainants endured at the hands of Faust (or under his supervision) throughout their employ, the insecurity, self-doubt, isolation, fear and depression that each compellingly testified they suffered (including Saltmarsh’s hospitalization), the commission awarded $100,000 to Vera and $50,000 to Saltmarsh. The full commission upheld the decision and awards in their entirety.

Three decisions illustrate how false reasons for adverse actions subject companies to significant emotional distress damages awards

And last, but definitely not least: 2004’s cases offered dramatic proof that proffering false reasons for adverse actions can be quite costly. Below are three decisions in which the respondent employers, by failing to offer credible reasons for the adverse actions taken, did much of the work of proving complainants’ cases.

Lias v. Sterling Corrugated Box Co. The vague “personality conflict” defense did not fly in Lias v. Sterling Corrugated Box Co., 26 MDLR 133 (2004). Here, the commission did not believe complainant, an employee of respondent for more than 29 years, was terminated (and replaced with a far less qualified employee who was significantly younger) due to a “personality conflict.” The commission discredited respondent’s justification for several reasons: Respondent exaggerated the actual personality conflict it alleged existed; complainant’s employment record was “spotless”; complainant was replaced by someone significantly less qualified and significantly younger; and the evidence demonstrated respondent was concerned with complainant’s income and benefits — which the commission recognized is often a “proxy” for age discrimination. Based on complainant’s compelling testimony of the effects of the discrimination, the commission awarded complainant $100,000 in emotional distress damages, along with $104,263.81 in back pay.

Poore v. Harwich High School. Poore v. Harwich High School, 26 MDLR 270 (2004), is a perfect example of the need to do your homework before making a factual claim. In defense of their failure to hire complainant (a female coach) as the varsity softball coach in favor of a far less qualified male candidate, respondents alleged several reasons, among them that complainant was not the best-qualified candidate because she was less willing than the male coach hired to play regularly scheduled Saturday games. However, no Saturday games were scheduled for the season at issue (or for that matter, for the next five years). For this reason, and a host of others, the commission rejected the explanations respondents’ proffered reasons, stating the reasons given for termination were false, and concluded respondents discriminated against complainant in failing to hire her. The commission awarded complainant $100,000 in emotional distress damages to compensate her for a discriminatory decision that she convincingly testified was devastating to her mental and physical health.

White v. Citizen’s Bank. As in Poore above, the complainant in White v. Citizen’s Bank, 26 MDLR 221 (2004), was successful because respondent’s proffered legitimate reasons were less than credible. Here, the commission analyzed the four purportedly legitimate, non-discriminatory reasons that the bank proffered for its decision to offer a full-time teller position to a less-experienced white woman than complainant: the white woman’s outgoing personality; the white woman’s sales ability; the white woman’s superior record at balancing her till each day; and the bank’s alleged concern about the complainant’s commitment to the bank. Although the commission concluded that the bank’s first proffered reason may have been true (i.e., the bank may have believed that the white woman’s personality would lead to greater sales), it rejected the bank’s additional three reasons as pretextual lies. Specifically, the commission found complainant had 13 more months of sales experience than the promoted white woman; complainant had consistently exceeded her sales goals; complainant’s cash balance discrepancies were de minimus; and complainant assured the bank she intended to remain at the bank if she were promoted. Citing Supreme Judicial Court precedent, the commission noted that “even when nondiscriminatory reasons play some role in a decision not to hire a particular applicant, that decision may still be unlawful if discriminatory animus was a ‘material and important ingredient’ in the decision-making calculus.” Chief Justice for Administration and Management of the Trial Court v. MCAD, 439 Mass. 729, 735 (2003). Given that complainant showed that the bank’s decision-makers ignored her experience, higher rank, job performance and actual sales results, the commission concluded that unlawful discriminatory animus was clearly a material and important ingredient in the bank’s failure to promote complainant — and the decision was therefore unlawful. It awarded complainant $100,000 in emotional distress damages based on her testimony of severe, long-lasting effects from the discrimination. In sum: Even when one purportedly legitimate, non-discriminatory reason is true, a complainant can still prevail if the respondent’s other stated reasons are proven to be lies.

End notes

1. Portions of this article are taken from commentaries written by Katherine J. Michon, Esq. and Patricia Washienko, Esq. and published in the Massachusetts Discrimination Law Reporter by Landlaw, Inc. [back]

2. Thank you to my paralegal Elizabeth Hennessy for her contributions in preparing this article.[back]