Wynn & Wynn, PC v. Massachusetts Commission Against Discrimination

• Decision Date: 10 February 2000
• Citation: 431 Mass. 655,729 NE 2d 1068
• Parties: WYNN & WYNN, P.C. v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

431 Mass. 655

729 NE 2d 1068

WYNN & WYNN, P.C. v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.¹

Supreme Judicial Court of Massachusetts, Bristol.

February 10, 2000.

June 6, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Douglas A. Hale for the plaintiff.

Judith Ashton (Howard P. Speicher with her) for Jill Carmichael.

Jerrold S. Levinsky (Christine E. Davio with him) for Massachusetts Commission Against Discrimination.

Howard M. Brown, for Northeast Security, Inc., amicus curiae, submitted a brief.

MARSHALL, C.J.

This is an appeal from a judgment of the Superior Court affirming a decision of the Massachusetts Commission Against Discrimination (MCAD or commission) that the law firm of Wynn & Wynn, P.C. (Wynn & Wynn or firm), discriminated against Jill Carmichael on the basis of her sex when it failed to hire her as an associate on her graduation from law school. G. L. c. 151B, § 4 (1).² We determine that the judge in the Superior Court correctly concluded that Wynn & Wynn was not entitled to a jury trial. In addition, we conclude that the decision of the commission concerning the discriminatory failure to hire was supported by substantial evidence and was consistent with applicable law. See G. L. c. 30A, § 14 (7). We affirm the judgment in all respects. On May 18, 1992, Carmichael filed her discrimination complaint with the commission charging Wynn & Wynn with failure to hire her on the basis of her sex. On August 18, 1992, Carmichael alleged additional claims for sexual harassment and disparate treatment while she was employed as a law clerk. On December 1, 1992, the MCAD investigating commissioner found probable cause to credit all of Carmichael's allegations. Conciliation efforts proved unsuccessful, and the matter was certified for a public hearing.

In October and November, 1994, a four-day public hearing was held before an MCAD hearing officer. One year later, on November 16, 1995, the hearing officer issued her findings of fact and conclusions of law. She found in favor of Carmichael on her failure to hire claim, and awarded her damages for lost back wages and for emotional distress.³ She denied Carmichael's claim for front pay, and dismissed as untimely her claims of sexual harassment and disparate treatment.

Wynn & Wynn appealed to the commission, and Carmichael cross-appealed. On September 30, 1996, the commission affirmed the decision in all respects. The commission also concluded that Carmichael had "prevailed," and awarded her attorney's fees and costs. G. L. c. 151B, § 5.⁴

Wynn & Wynn filed a complaint for judicial review in the Superior Court, challenging the MCAD's ruling that it had failed to hire Carmichael because of her sex, and the award of fees and costs. See G. L. c. 151B, § 6; G. L. c. 30A, § 14. Carmichael filed a counterclaim seeking to set aside so much of the commission's decision as denied her damages for front pay and dismissed her sexual harassment and disparate treatment claims as untimely. In the alternative, Carmichael asked the judge to enforce the decision of the commission, and to award her attorney's fees and costs. Both Wynn & Wynn and the commission moved to dismiss Carmichael's counterclaim as an "appeal" that had not been filed within the requisite thirty-day filing period. See G. L. c. 151B, § 6; G. L. c. 30A, § 14 (1). A Superior Court judge denied their motions. Wynn & Wynn then filed a motion for judgment on the pleadings, as did Carmichael. The judge affirmed all aspects of the commission's decision, and judgment entered on September 12, 1997. Wynn & Wynn and Carmichael filed timely appeals. Carmichael filed a motion for attorney's fees and costs, which the Superior Court judge awarded.⁵

On December 23, 1997, we issued our decision in Lavelle v. Massachusetts Comm'n Against Discrimination, 426 Mass. 332 (1997), holding that in a discrimination case a respondent has the same right to a jury trial as a complainant after the MCAD has taken final action. On January 9, 1998, Wynn & Wynn moved to set aside the judgment of the Superior Court and for a jury trial, which the judge denied. Wynn & Wynn appealed from that decision. We transferred this case from the Appeals Court on our own motion, and treat the appeals as consolidated.

1. The commission decision. Under the State Administrative Procedure Act, we defer to the fact-finding function of the commission where substantial evidence exists to support its findings and there is no error of law. See G. L. c. 30A, § 14 (7); Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 133 (1976). The employment decision adverse to Carmichael that the hearing officer concluded was unlawful was made at a meeting in April, 1991, following which Carmichael, then a law student employed as a law clerk at Wynn & Wynn, was told by a managing partner that there were no openings for an associate. We summarize the facts as determined by the hearing officer,⁶ supplementing her findings, as appropriate, with facts from the record on appeal.

Carmichael attended New England School of Law as a full-time student from September, 1988, to December, 1991. She passed the Massachusetts bar examination in February, 1992, and was sworn in as an attorney in June, 1992. In November, 1989, while she was a law student, Carmichael obtained a position as a law clerk at Wynn & Wynn in its Fall River office.⁷ Carmichael's interview for that position was with Charles Murray, the managing partner of the Fall River office. During the interview she informed Murray that she was married, had a small child, and planned to have additional children in the future.⁸ Carmichael was not pregnant at the time: she was not asked to, nor did she, volunteer this information. She was hired and, within a few days, began work as a law clerk. Her second child was born on September 28, 1990, approximately ten months later.

Throughout her tenure as a law clerk, Carmichael worked almost exclusively for William McKeon, an associate, later a partner, on a complex, multi-party litigation case, performing duties in the nature of paralegal work. During the academic year she worked approximately three days a week; during the summers she worked full time. We defer until later discussion the findings concerning Carmichael's allegations of sexual harassment by McKeon. See part 4, infra.

In March, 1991, Carmichael asked to meet with Murray to discuss a raise, which Murray authorized; he also agreed to ask any attorneys supervising her to submit written evaluations of her work. Later that month Carmichael told Murray that she wished to be considered for an associate position with Wynn & Wynn on her graduation from law school in December, 1991.⁹ He said he would do so.

At Murray's initiative, in April, 1991, Carmichael's request to become an associate was discussed at a meeting of the attorneys in the Fall River office.¹⁰ The hearing officer found that Murray expressed concern that (in his view) Carmichael had failed to inform him that she was pregnant when he hired her as a law clerk; he felt this indicated a lack of forthrightness on her part. Three other attorneys, Catherine Murphy, Laurie Mullen, and William Kenney each testified, however, that during the meeting Murray stated "flatly" that he would not have hired Carmichael as a law clerk had he known that she was pregnant, and that Carmichael's priorities were "elsewhere," presumably with raising a family instead of the practice of law. They said, and the hearing officer found, that Murray informed the group that he was going to tell Carmichael that there was no position available.¹¹ Murray denied making these statements, but the hearing officer did not credit his testimony. Three witnesses also testified that, after Murray made his comments, McKeon seemed shocked and stated, "I'm glad you said that and not me."¹²

The hearing officer found that, although Murray told Carmichael that there were no openings, another law clerk was under consideration as an associate attorney. Moreover, three months later Murray hired a new associate, Gary Vancini, a Rhode Island lawyer with less than one year of legal experience. Carmichael immediately confronted Murray, who insisted that Vancini was in a different category. In August, 1991, Carmichael met with Attorney Kevin O'Malley, who supervised the firm's law clerk program.¹³ He informed her that her evaluations were excellent, that there was "not a black mark on them," but that, due to the hiring of Vancini, there was no position available in Fall River. Carmichael was again upset. Even then she sent a copy of her resume to the firm's named partner at its main office and asked to be considered for a position at any Wynn & Wynn office. When Carmichael left Wynn & Wynn in November, 1991, shortly before her graduation, she had heard nothing about her request.

The hearing officer found that until March, 1992, Carmichael had no reason to believe that her earlier pregnancy had anything to do with the decision not to hire her. A chance encounter with William Kenney, who by then had left the firm, led her to speak to Laurie Mullen and Catherine Murphy. They relayed to her the events of the April, 1991, meeting at which Carmichael's future at the firm had been discussed. Carmichael filed her discrimination charge shortly thereafter.

The hearing officer made detailed findings concerning Wynn & Wynn's explanation of its failure to hire Carmichael as an associate attorney. First, it said Carmichael's performance as a law clerk had been unacceptable. The hearing officer reviewed the testimony of various attorneys who had worked with Carmichael, credited some, and discredited others. She found that Carmichael had never received substantive negative feedback during her entire employment at the firm, and that Murray's evaluation of Carmichael was not credible and was tainted by sexism.

Wynn & Wynn also claimed that...