15 Lagrange St. Corp. v. Mass. Comm'n Against Discrimination

• Decision Date: 13 May 2021
• Docket Number: No. 20-P-726,20-P-726
• Citation: 176 N.E.3d 279,99 Mass.App.Ct. 563
• Parties: 15 LAGRANGE STREET CORPORATION & others v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 563

176 N.E.3d 279

15 LAGRANGE STREET CORPORATION¹ & others²

v.MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.³

No. 20-P-726

Appeals Court of Massachusetts, Suffolk.

Argued March 19, 2021.

Decided May 13, 2021.

Jack K. Merrill, Wellesley, for the plaintiffs.

Simone R. Liebman, Boston, for Massachusetts Commission Against Discrimination.

Lana Sullivan, for the intervener, was present but did not argue.

Present: Vuono, Hanlon, & Shin, JJ.

SHIN, J.

Derrick Sims filed a complaint with the Massachusetts Commission Against Discrimination (commission or MCAD), alleging, among other things, retaliatory termination by his then employer, 15 LaGrange Street Corporation (doing business as The Glass Slipper), and its managers, Nicholas Romano and Michael Bennett (together, respondents). After a public hearing, a hearing officer concluded that, although Sims had failed to prove retaliation, the evidence established that the real reason for his termination was race discrimination, entitling him to lost wages and emotional distress damages. The hearing officer also found the respondents liable on Sims's separate claim of racially hostile work environment. On the respondents’ petition for review, the commission affirmed in all respects.

The respondents now appeal from an amended judgment of the Superior Court affirming the commission's decision on judicial review. They argue principally that they were not put on notice that Sims was claiming that he was terminated based on his race. We agree. The facts set out in Sims's complaint did not give reasonable notice of such a claim, and, while the commission had the authority -- if not the obligation -- to issue a complaint in its own name, it did not do so. We disagree, however, with the respondents’ contention that there was no substantial evidence to support the commission's finding of a racially hostile work environment. We thus vacate the amended judgment in part and order the matter remanded to the commission for redetermination of emotional distress damages and attorney's fees.

Background. We summarize the facts found by the hearing officer and the uncontested facts from the administrative record.

The Glass Slipper (club) is a "gentlemen's club" in Boston. It is managed by Romano and Bennett, who are both white, and owned by Romano and Bennett's mother.

Sims, who is Black, began working as a bouncer for the club in August 2010. He was terminated only a few months later on February 27, 2011. The previous day, Sims had worked his scheduled day shift but left his post early without finding a replacement. As a result, when Romano arrived at the club around 6:15 P.M. , he found the front door unattended. Angry, Romano ordered employee Danny Wong to fire Sims, which Wong did the next day.

Sims filed his complaint, on a form made available by the commission, in September 2011. In the section asking for the cause of discrimination, Sims checked "race," "color," "retaliation," and "other." In the section asking for the "particulars," Sims referred to his attached declaration, in which he alleged that, a few months after he started working at the club, he learned that another bouncer was sexually assaulting the dancers. Sims further alleged that Romano treated him less favorably than the white bouncers -- for example, by stationing him outside, ordering him to take out trash, and not allowing him to use the newer walkie-talkies.⁴ According to Sims, soon after he reported these issues to Bennett, Wong told Sims that management wanted him gone for "asking too many questions." Based on this, Sims "believe[d] that the Club terminated [him] in retaliation for reporting the discriminatory and illegal practices that were occurring."

In July 2013, after an investigating commissioner found probable cause to credit Sims's allegations and conciliation efforts failed, the commission certified the case to a public hearing. Sims's complaint was attached to the certification, but the certification did not itself identify the particular claims to be decided at the hearing. The investigating commissioner also waived the certification conference,^{5 ,6} noting that the parties could raise all relevant issues at the prehearing conference with the hearing officer.

In November 2013 the parties submitted a joint prehearing memorandum to the hearing officer. In his summary of the claims, Sims reasserted the allegations in his complaint that Romano treated him less favorably than white bouncers and that Wong told Sims that he was being fired for asking "too many questions." Sims then identified his claims as "discriminat[ion] ... based on the color of his skin" and "retaliat[ion] ... for complaining about Mr. Romano's racist behavior and the sexual harassment and assault towards the dancers." The respondents, for their part, noted that the complaint "apparently asserts that [Sims] was ... terminated ... because of his race." They argued, however, that there was no evidence to support any such claim and that it should not therefore be certified to a public hearing. They also argued that the case "require[d] a certification conference" and that waiver of that requirement was improper under the regulations.

No certification conference was ever held, and at no point did the commission issue a complaint in its own name identifying the issues certified to the hearing.⁷ Thus, unsurprisingly, at the start of the hearing in March 2014, the respondents’ counsel asked for clarification, stating that he "was unclear on precisely what the claims were." Sims's counsel replied:

"We have a hostile work environment claim based on race. And that was up until the time of the termination and that race played some role in the decision to terminate, but the second claim is also the retaliation for reporting the sexual harassment.

"So there's essentially two claims. A hostile work environment based on race up until the time of termination and then the termination being based on retaliation."

Consistent with this characterization, Sims's counsel averred in her opening statement that "[Sims] was fired in retaliation for asking questions about what they were going to do about [the other bouncer] bothering the girls."

After three days of testimony, the hearing officer issued a written decision in March 2015. The hearing officer concluded that Sims failed to prove retaliation, finding his testimony that he complained to Bennett and others about the alleged sexual harassment of the dancers to be "vague and unconvincing" and "not ... believable, particularly given the egregious conduct he [was] alleging occurred." The hearing officer instead credited Bennett's testimony that Sims never made a complaint. She also credited Romano's testimony that he was unaware of the sexual harassment allegations.

In addition, the hearing officer credited Romano's testimony that Sims left the front door uncovered on February 26, 2011. She did not credit Sims's testimony that he secured a replacement before leaving, nor did she credit his testimony that Wong told him Romano wanted him fired for asking too many questions. Rather, the hearing officer credited Wong's testimony that Romano told him to fire Sims because he had abandoned his post.

Nonetheless, the hearing officer found that the respondents’ proffered reason for firing Sims was a pretext -- not for retaliation, but for race discrimination:

"While Romano may have been angry that [Sims] was not at his post on the evening in question, because there was a problem generally with other bouncers arriving late for their shifts, I conclude that [Sims's] termination was motivated by discrimination based on his race. Romano acted precipitously and I conclude that he would not have fired [Sims] for a first-time incident if [he] were not [B]lack."

In support for this conclusion, the hearing officer cited Sims's good work history, the lack of "evidence of white bouncers whose employment was terminated," the "strong evidence of Romano's pervasive racist attitude that created a racially hostile work environment," and Romano's "cavalier and dismissive attitude" at the hearing. Also finding the respondents liable for creating a hostile work environment, the hearing officer awarded Sims $25,000 in emotional distress damages and $20,000 in lost wages.

The respondents petitioned for review to the commission. They argued, among other things, that Sims never claimed that his termination was racially motivated and that no such claim was certified to the hearing. The commission disagreed, concluding that Sims made allegations of race discrimination in his complaint and the respondents "were on notice that a claim of race discrimination could well encompass a claim of unlawful termination based on race." Rejecting the respondents’ other arguments, the commission upheld the hearing officer's decision and awarded Sims $32,130 in attorney's fees and $4,948.29 in costs. The Superior Court judge affirmed, and this appeal followed.

Discussion. Our review of the commission's decision is governed by G. L. c. 30A, § 14 (7), which requires us to determine whether a party's substantial rights were prejudiced because the decision was in violation of constitutional provisions, based on an error of law or unlawful procedure, or unsupported by substantial evidence. See G. L. c. 151B, § 6 ; Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 133, 355 N.E.2d 309 (1976). We review the judge's decision de novo. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89, 120 N.E.3d 1263 (2019).

1. Adequacy of notice. While "[d]ue process does not require that notices of administrative proceedings ‘be drafted with the certainty of a criminal pleading,’ " the notice must be "sufficient for persons whose rights may be affected to understand the substance and nature of the grounds upon which they are called to answer." Langlitz v. Board of Registration of...