Wheelock College v. Massachusetts Commission Against Discrimination

• Citation: 371 Mass. 130,355 N.E.2d 309
• Parties: , 20 Fair Empl.Prac.Cas. (BNA) 1457, 13 Empl. Prac. Dec. P 11,508 WHEELOCK COLLEGE et al. 1 v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION et al. 2
• Decision Date: 30 September 1976
• Court: United States State Supreme Judicial Court of Massachusetts

Page 309

355 N.E.2d 309

371 Mass. 130, 20 Fair Empl.Prac.Cas. (BNA) 1457,

13 Empl. Prac. Dec. P 11,508

WHEELOCK COLLEGE et al. ¹

v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION et al.

²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 6, 1976.

Decided Sept. 30, 1976.

Marc S. Seigle, Asst. Atty. Gen., for the Massachusetts Commission Against Discrimination.

John Taylor Williams, Boston, for Constance D. Kehoe.

Thomas D. Burns, Boston (Robert T. Harrington, Lowell, with him), for plaintiffs.

Before HENNESSEY, C.J., and BRAUCHER, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

We discuss for the first time the proof which is necessary to establish unlawful discrimination in violation of G.L. c. 151B and order that the proceedings be remanded to the Massachusetts Commission Against Discrimination (commission) for further consideration.

Wheelock College declined to renew the teaching contract of Constance D. Kehoe (Kehoe) for the 1971--1972 academic year. Kehoe, who held a part time teaching position, filed a complaint with the commission charging that she was terminated solely because of her sex in violation of G.L. c. 151B. An evidentiary hearing was held in December, 1971, before Commissioner Burres, the commission's acting chairman, who ordered the complaint dismissed on the ground that the conduct of the college and individual respondents did not constitute an unlawful practice under G.L. c. 151B, § 4(1).

Kehoe appealed from the decision of the single commissioner to the full commission, which in May, 1972, without any explanation of its order, 'revoked' the 'decree' dismissing the complaint and remanded the case for further hearings 'in order that the Respondent's (sic) case can be introduced and completed and a final decree rendered.' A further hearing was held before Commissioner Burres in November, 1972. Commissioner Burres ceased to be a member of the commission before he made any formal ruling in the proceeding.

The matter then was reassigned to Commissioner Regina Healy for the purpose of preparing a decision. In June, 1974, Commissioner Healy filed findings of fact and conclusions of law, based solely on her reading of the transcript and her review of the exhibits, and entered an order which directed that the college 'reinstate' Kehoe for the 1974--1975 school year as a full time teacher with the rank and appropriate salary of associate professor and that she receive back pay on the basis of a full time salary. The college and the other respondents before the commission appealed to the full commission, and, with minor modifications, Commissioner Healy's decision and order was affirmed by the full commission in August, 1974. A further order was entered by Commissioner Healy in January, 1975, setting forth the amounts to be paid to Kehoe by the college for the academic years 1970--1971 through 1974--1975, inclusive. That further order was affirmed by the full commission on appeal, and the college and the other respondents before the commission filed a petition for review in the Superior Court challenging the commission's order. See G.L. c. 151B, § 6, and G.L. c. 30A. Kehoe was named as a defendant along with the commission. ³

The judge of the Superior Court who heard the case on the record before the commission entered judgment for the plaintiffs. He took the position that 'the case in the final analysis gets down to the following: A woman teacher was not rehired by a woman president of a predominantly women's college. This decision was solely the prerogative of its president. She agreed with the recommendations of the three full-time male members of the English Department.' Because our review on the appeal of Kehoe and the commission is based on the record before the commission, unaffected by the judge's conclusions, we need not discuss the reasoning of the trial judge at any length. Of course, it was not his function to decide the case anew. Although he stood in as good a position as Commissioner Healy to pass judgment on the credibility of witnesses (because only retired Commissioner Burres had heard those witnesses), under the State Administrative Procedure Act the court must defer to the fact-finding function of the commission where there is substantial evidence to support its findings and there is no other error of law. See G.L. c. 30A, § 14(7).

Commissioner Healy made findings of fact which we summarize. Kehoe joined the college's faculty in September, 1960. She holds advanced degrees, including a Ph.D. in English literature, and has outstanding academic credentials for treaching in institutions of higher learning. The college offers bachelor and master's programs in various fields but specializes in the training of elementary and preschool teachers.

During her first three academic years at the college (1960--1963), Kehoe taught full time. During her fourth year at the college, Kehoe's work load was somewhat reduced so that she might work on her doctoral dissertation. Because of pregnancy, her work schedule was substantially reduced for the 1964--1965 academic year. Although she expected to return to full time teaching in the next academic year (1965--1966), she was assigned only two courses, in effect a part time position. That year the college hired another full time person, a man, in the English department. All full time positions in the college's English department have been held by men, and substantially all part time positions have been held by women. After 1964, Kehoe repeatedly asked that she be returned to full time work.

Although the academic dean advised Kehoe in January, 1967, that she was not to be rehired for the next college year, Mrs. Merry, the new president of the college, rescinded that decision. Kehoe continued teaching part time during the next two academic years (1967--1969). In 1969--1970 she was granted a full leave in order that she might engage in further academic work. She taught part time during 1970--1971, but was granted a one-month maternity leave in May, 1971. In January, 1971, Kehoe requested full time work and a salary increase. When President Merry did not agree to either request, Kehoe said she believed she had been discriminated against as a woman. In February, 1971, President Merry advised Kehoe that, on the unanimous recommendation of the full time members of the English department, her appointment would not be renewed.

Commissioner Healy concluded that the reasons given for not rehiring Kehoe were (1) Kehoe had made numerous changes in her teaching schedule, (2) she did not regularly attend meetings of the English department and college faculty, and (3) certain students complained. Commissioner Healy concluded that Kehoe's leaves of absence and schedule changes, apart from maternity leaves, were not substantially different from those of other members of the English department. She ruled that the assertion concerning absence from meetings was without merit because Kehoe had no clear obligation to attend departmental or faculty meetings. She agreed that some students complained about Kehoe's teaching methods, although others evaluated her favorably. Commissioner Healy found that Kehoe had 'certain personality clashes and difficulties with certain members of the administration and faculty of the English Department' but attributed these conflicts and difficulties to 'Respondents' annoyance and dissatisfaction at the Complainant's request for maternity leaves of absence, her high academic standards and her superior qualification.' ⁴

A detailed analysis of what the commission determined is required in order to set forth the basic issues which face this court on appeal. This is not the typical appeal in which the sole function of the court is to review the record to determine whether there was substantial evidence to support an agency's decision. Here the single commissioner and the commission determined that Kehoe had established a prima facie case of sex discrimination and that, under the principle of McDonnell Couglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the burden shifted to the college, as the commission said, 'to meet the issues with a defense that is credible, competent and reliable.' ⁵

Although the commission relied on the existence of a prima facie case of sex discrimination in arriving at its decision in Kehoe's favor and accepted Commissioner Healy's conclusion that the college's 'stated reasons for (Kehoe's) termination are not credible and not otherwise supported by the evidence,' in their briefs before us neither Kehoe nor the commission argues that Kehoe established a prima facie case of sex discrimination. Indeed, neither brief even cites the McDonnell case. Each brief does argue that there was substantial evidence to support a finding of sex discrimination. However, we do not read the commission's decision that the college's actions were based on considerations of sex as resting on a finding of sex discrimination in the absence of the support which proof of a prima facie case of sex discrimination provides.

If, as appears to be the case, the commission has abandoned the idea that a prima facie case was established by Kehoe, then the question is whether Kehoe has proved sex discrimination without regard to the prima facie case. We do not undertake to pass on this issue because neither the commission nor the Commissioner who ruled on this matter has done so. The matter must be returned to the commission for consideration of this unresolved question. ⁶

There is a further reason to remand the proceedings to the commission. Even if Kehoe did prove a prima facie case of sex discrimination, the treatment of the college's response to that proof was erroneous as matter of law. Commissioner Healy's ruling that the college's stated reasons for not rehiring Kehoe were 'not credible' and not otherwise supported by the evidence cannot survive analysis. The reasons given by the...