Melnychenko v. 84 Lumber Co.

• Decision Date: 18 February 1997
• Citation: 424 Mass. 285,676 N.E.2d 45
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: , 73 Fair Empl.Prac.Cas. (BNA) 179, 69 Empl. Prac. Dec. P 44,538 Leonid Lenny MELNYCHENKO & others 1 v. 84 LUMBER COMPANY. 2

Page 45

676 N.E.2d 45

424 Mass. 285, 73 Fair Empl.Prac.Cas. (BNA) 179,

69 Empl. Prac. Dec. P 44,538

Leonid Lenny MELNYCHENKO & others ¹ v. 84 LUMBER COMPANY. ²

Supreme Judicial Court of Massachusetts.

Argued Oct. 9, 1996.

Decided Feb. 18, 1997.

Jay M. Presser, Springfield, for defendant.

Charles V. Ryan (Timothy J. Ryan, with him), Springfield, for Leonid Lenny Melnychenko.

Clifford Heaton, Springfield, for Stephen LaRochelle, was present but did not argue.

Mary Lisa Bonauto, Portland, ME, and Nan Evans, Boston, for Gay & Lesbian Advocates & Defenders and others, amici curiae, submitted a brief.

Scott Harshbarger, Attorney General, and Catherine Ziehl, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR, GREANEY, FRIED and MARSHALL, JJ.

WILKINS, Chief Justice.

A judge in the Superior Court ruled that Richard Raab, an employee of the defendant corporation at its West Springfield store, engaged in "sexual harassment," as defined in G.L. c. 151B, § 1(18), and that it did not matter what Raab's sexual orientation was or whether Raab intended to have a sexual relationship with any of the plaintiffs, all of whom are male. The principal issue in this case is whether same-sex sexual harassment is prohibited by G.L. c. 151B, § 4(16A), regardless of the sexual orientation of the parties. We agree with the trial judge that such conduct falls within the statutory definition of sexual harassment, and is, therefore, prohibited by G.L. c. 151B, § 4(16A). We also consider a cross appeal from that part of the judgment that denied relief from claimed retaliatory conduct of the defendant. ³

1. Chapter 151B of the General Laws states that it is an unlawful practice for an employer, as defined in G.L. c. 151B, § 1(5), "to sexually harass any employee." G.L. c. 151B, § 4(16A). Sexual harassment as defined in G.L. c. 151B includes "sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" which has "the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment." G.L. c. 151B, § 1(18)(b).

The judge ruled that Raab's "revolting and positively outrageous" conduct had the purpose or effect of unreasonably interfering with all three plaintiffs' work performance by creating an intimidating, hostile, humiliating, and sexually offensive work environment. The judge concluded that Raab engaged in "verbal and physical conduct" of a sexual nature and that his conduct was totally unwelcome by the plaintiffs. The judge's subsidiary findings of fact, significant portions of which we set forth in the margin, ⁴ fully warranted the judge's ultimate findings.

The defendant argues that the finding that the plaintiffs were sexually harassed was clearly erroneous. The defendant bases its argument on the facts that the plaintiffs continued to "socialize" with Raab and failed to complain of Raab's conduct, despite complaining about other employment-related events. The judge found, however, that LaRochelle and Melnychenko did complain to the defendant's area manager and that Quill was afraid of losing his job if he complained. The record does not lead us to the definite and firm conviction that the judge was mistaken in any of his findings. See Kendall v. Selvaggio, 413 Mass. 619, 620-621, 602 N.E.2d 206 (1992); Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996).

We come then to the question whether G.L. c. 151B, § 4(16A), applies to same-sex sexual harassment, even where the perpetrator of the harassment may be a heterosexual. Relying heavily on Federal case law interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1994), the defendant argues that sexual harassment is only actionable as a form of sex discrimination, and that, therefore, the only form of same-sex sexual harassment that is prohibited by G.L. c. 151B is sexual harassment perpetrated by a homosexual. The dissent, sounding the same tune, seems to assume that, if we were to follow Federal law in this case, the result would be different. That is not certain. The Federal authorities are hardly in accord on the issue of same-sex sexual harassment. ⁵ In any event, we arrive at our own conclusions in construing our own statute. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441, 646 N.E.2d 111 (1995); College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 163-164, 508 N.E.2d 587 (1987); Massachusetts Elec. Co. v. Massachusetts Comm'n Against Discrimination, 375 Mass. 160, 167, 375 N.E.2d 1192 (1978).

It is particularly appropriate for us to reach our own conclusions where, as here, the relevant sections of G.L. c. 151B differ significantly from Title VII of the Federal act. Of particular importance for the disposition of this issue is the fact that the Legislature specifically defined sexual harassment and, at the same time, codified the prohibition against it. Subsection 18, defining "sexual harassment," was inserted in G.L. c. 151B, § 1, by St.1986, c. 588, § 2. Subsection 16A, making an unlawful practice of sexual harassment, was inserted in G.L. c. 151B, § 4, by St.1986, c. 588, § 3. There is no parallel Federal statutory language. It is under subsection 16A that the trial judge ruled that the defendant had engaged in an unlawful practice.

Sexual harassment as defined in § 1(18), and prohibited by § 4(16A), is not limited to conduct of a supervisor aimed at a subordinate of the opposite sex, nor is it limited to same-sex conduct only where the harasser is a homosexual. Rather, any physical or verbal conduct of a sexual nature which is found to interfere unreasonably with an employee's work performance through the creation of a humiliating or sexually offensive work environment can be sexual harassment under G.L. c. 151B. The judge found that Raab's conduct fell within the statutory definition and correctly concluded that the plaintiffs were entitled to recover damages as a result.

The dissent is correct in noting that c. 151B concerns unlawful discrimination. The Legislature, in language not found in the Federal act, has defined sexual harassment so as to be included within "[d]iscrimination on the basis of sex...." G.L. c. 151B, § 1(18). Verbal or physical conduct of a sexual nature, even if it does not include "sexual advances" or "requests for sexual favors," comes within the statutory definition of sexual harassment. Id. Thus, sexual harassment as defined in § 1(18) is by legislative direction a form of sexual discrimination. Contrary to the dissent's view, nowhere is discrimination because of a victim's sex made an essential element of a sexual harassment claim in Massachusetts. ⁶

The judge also ruled that Melnychenko and Quill had proved that the defendant had interfered with their right to be free from unreasonable, substantial, or serious interference with privacy, as stated in G.L. c. 214, § 1B. To avoid duplicative damages the judge awarded only one dollar to each on this claim. He based his conclusion on the facts set forth in the latter half of paragraph 9 of his findings and quoted in note 4 above. The defendant argues only that it should not be liable because Raab's conduct in making certain announcements in the workplace about Melnychenko's and Quill's sexual conduct was outside the scope of Raab's employment. There is no merit to this contention. See College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 165-167, 508 N.E.2d 587 (1987). Raab's misconduct occurred at the defendant's place of business while he held a supervisory position. There was, moreover, evidence that the defendant received complaints about Raab's treatment of LaRochelle and Melnychenko.

2. We turn now to Melnychenko's appeal from the judge's determination that the defendant is not liable to him for retaliatory conduct forbidden by G.L. c. 151B. ⁷ To present the basis of the claim of retaliation, we set forth additional findings by the judge.

In October, 1990, the plaintiff Quill left the defendant's employment. Shortly thereafter, Quill told Melnychenko that he was going to file a complaint about Raab's conduct and asked Melnychenko to provide Quill's attorney with an affidavit concerning events at the defendant's store. Not long after Melnychenko provided a supporting affidavit, the defendant's general counsel "asked him to come to the defendant's corporate headquarters in Pennsylvania and meet with the defendant's general counsel and chief operating officer. The defendant's officers expressed disappointment that Melnychenko had given Quill's attorney an affidavit without telling them because it exposed the company to liability. They told Melnychenko not to speak with either Quill or his attorney. The officers also told Melnychenko "that they would not be able to protect him or to guarantee his physical safety" at the company's West Springfield store and that he should, therefore, accept reassignment. Melnychenko agreed and reported to the defendant's Orange Park, Florida, store about one week after the meeting in Pennsylvania. Approximately one month later, Melnychenko wrote a hostile letter to the company's chief operating officer complaining that the company had not fulfilled certain promises to him.

About the same time, the defendant's Florida area manager offered Melnychenko a temporary promotion to the position of merchandising manager because Melnychenko had been doing a good job at the Orange Park store. The area manager told Melnychenko that, when the temporary job was completed, he would be in line for a comanager's job. Because there were no guarantees, Melnychenko refused the promotion.

Thereafter, the area manager received reports that (a) Melnychenko had been telling other...