Bournewood Hosp., Inc. v. Massachusetts Commission Against Discrimination

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; HENNESSEY
• Citation: Bournewood Hosp., Inc. v. Massachusetts Commission Against Discrimination, 358 N.E.2d 235, 371 Mass. 303 (Mass. 1976)
• Decision Date: 04 November 1976
• Parties: , 14 Fair Empl.Prac.Cas. (BNA) 710, 13 Empl. Prac. Dec. P 11,405 BOURNEWOOD HOSPITAL, INC. v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION et al. 1

Page 235

358 N.E.2d 235

371 Mass. 303, 14 Fair Empl.Prac.Cas. (BNA) 710,

13 Empl. Prac. Dec. P 11,405

BOURNEWOOD HOSPITAL, INC.

v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION et al.

¹

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 5, 1976.

Decided Nov. 4, 1976.

Robert S. Cohen, Boston, for Ellen J. Silberberg, intervener.

William B. Baker, Boston, for Bournewood Hospital, Inc.

Francis X. Bellotti, Atty. Gen., and Patricia C. Gunn, Asst. Atty. Gen., Boston, as amicus curiae, for the Commonwealth.

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

HENNESSEY, Chief Justice.

On October 28, 1970, Ellen J. Silberberg filed a complaint (the first complaint) with the Massachusetts Commission Against Discrimination (MCAD), in which she alleged that Bournewood Hospital, Inc. (Bournewood or the hospital), was discriminating against her on the basis of sex in violation of G.L. c. 151B, § 4, cl. 1. ² In the first complaint, Silberberg claimed that she was being paid ten cents an hour less than male occupational therapist assistants at Bournewood who were performing the same tasks for the hospital as she. On September 22, 1972, Silberberg filed a second complaint with the MCAD, this time charging the hospital with a violation of G.L. c. 151B, § 4, cl. 4, ³ based on Bournewood's alleged retaliatory action in offering Silberberg, after the filing of the first complaint, a promotion to head of the occupational therapy department at no increase in salary beyond the rate of compensation she had been receiving as an occupational therapist assistant.

Public hearings on both complaints were held before a Commissioner of the MCAD in September and November, 1972. Based on the testimony of the witnesses who appeared before him, the Commissioner was of opinion that Bournewood did pay Silberberg ⁴ ten cents an hour less than it paid males employed as occupational therapist assistants, and that Silberberg had shown by a preponderance of the evidence that the discrepancy in pay rates was not justified on the basis that male occupational therapist assistants performed additional duties not performed by Silberberg. With regard to the first complaint the Commissioner found that Bournewood was in violation of Federal law and G.L. c. 151B, § 4, cl. 1. As to the second complaint, the Commissioner, based on facts which will be set out in detail infra, found that Silberberg had met her burden of showing by a preponderance of the evidence that the hospital had retaliated against her in violation of G.L. c. 151B, § 4. cl. 4.

The Commissioner ordered, on September 5, 1973, that (1) the hospital cease and desist from discriminating on the basis of sex between female and male occupational therapist assistants (see note 4 supra); (2) the hospital equalize the wage rates of its female and male occupational therapist assistants by raising the wage rates of females to correspond with those of males; (3) Silberberg be awarded attorney's fees in the amount of $2,000, payable by the hospital; (4) Silberberg be awarded $2,000 for 'emotional distress, pain and suffering' caused by Bournewood's violation of G.L. c. 151B, § 4, cl. 4; (5) Silberberg be awarded a sum in the amount of the difference between wages paid to her and $140 a week, plus interest at a rate of 6% a year, from the date she was offered the promotion to head of the occupational therapy department to the date of termination of her employment with the hospital; and (6) Silberberg be awarded back pay from the date she was hired, plus interest at a rate of 6% a year, based on a wage level equal to that of male occupational therapist assistants. See note 4 supra.

Bournewood timely filed a petition for review of the Commissioner's order in the Superior Court in Norfolk County. ⁵ After a hearing, a judgment was entered which, inter alia, set aside the Commissioner's order relating to attorney's fees (No. (3) above) and damages for 'emotional distress, pain and suffering' (No. (4) above), and amended that part of the order relating to an award to Silberberg of the difference between the wages paid her and $140 a week (No. (5) above) by reducing the length of time for which this wage difference should have been paid from a period of approximately five months to a period of two weeks.

Silberberg appealed from the Superior Court judgment, see note 1 supra, and the case was transferred by us from the Appeals Court sua sponte. We are asked to determine whether the judge's rulings in setting aside the award of attorney's fees and the award for 'emotional distress, pain and suffering,' as well as his ruling that Silberberg be compensated at an increased rate of pay for two weeks as opposed to aproximately five months, were in error. G.L. c. 151B, § 6. See G.L. c. 30A, § 14(7), as appearing in St.1973, c. 1114, § 3; Katz v. Massachusetts Comm'n Against Discrimination, 365 Mass. 357, 364--365, 312 N.E.2d 182 (1974); East Chop Tennis Club v. Massachusetts Comm'n Against Discrimination, 364 Mass. 444, 447--448, 305 N.E.2d 507 (1973); LaPierre v. Massachusetts Comm'n Against Discrimination, 354 Mass. 165, 167, 236 N.E.2d 192 (1968).

We conclude that the judge was correct in setting aside that portion of the Commissioner's order awarding attorney's fees to Silberberg and in limiting that portion of the Commissioner's order which awarded her the pay she should have received as head of the occupational therapy department to the two-week period during which Silberberg actually performed in that supervisory capacity. We reverse so much of the judgment, however, as sets aside that portion of the Commissioner's order awarding Silberberg damages for emotional distress.

1. The Attorney's Fee Award. Silberberg argues that we should uphold the attorney's fee award on either or both of two grounds, viz., that the MCAD has the statutory authority to award such fees to a successful complainant in an employment discrimination case, and that, in all events, the award of such fees was proper here since she was acting as a 'private attorney general.'

Her first argument relies in part on the broad grant of power to the MCAD under § 5 of c. 151B, as amended through St.1969, c. 751, §§ 10--12, after finding that an employer has violated § 4, to issue a cease and desist order and 'take such affirmative action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay . . .' (emphasis supplied). She further points out that there is no explicit prohibition against an award of attorney's fees in an employment discrimination case under c. 151B, § 5, as there is under that same section with regard to the remedial powers of the MCAD in dealing with complaints alleging that an individual has engaged in a discriminatory practice in the housing or real estate spheres. See G.L. c. 151B, § 5, third par. Finally, Silberberg draws our attention to G.L. c. 151B, § 9, as amended through St.1974, c. 478, which provides a 'person claiming to be aggrieved by a practice made unlawful under (c. 151B)' with the option of pursuing a complaint already filed with the MCAD or bringing 'a civil action for damages or injunctive relief or both in the superior or probate court . . . or in the housing court,' and which further provides that, '(i)f the court finds for the petitioner it shall, in addition to any other relief . . . award the petitioner reasonable attorney's fees and costs unless special circumstances would render such an award unjust.' To Silberberg, this provision clearly shows legislative awareness on three levels: (1) that an award of attorney's fees is necessary if c. 151B is to be effective; (2) that the MCAD has the power to award such fees (at least in some discrimination settings); and (3) that courts in civil cases rarely make such awards, thus necessitating an express authorization for attorney's fee awards in the amendment.

Silberberg's alternative contention is rooted in the belief that her situation presents an appropriate case for this court to assert its equitable power to grant or uphold an award of attorney's fees in spite of the traditional 'American Rule,' which teaches that attorney's fees are not ordinarily recoverable in the absence of statute, court rule, enforceable contract or stipulation providing therefore. 1 S.M. Speiser, Attorneys' Fees §§ 12:3, 13:1 (1973). She places her case within the elements of the 'private attorney general' exception to the 'American Rule' as set forth in LaRaza Unida v. Volpe, 57 F.R.D. 94, 98 (N.D.Cal.1972), aff'd, 488 F.2d 559 (9th Cir. 1973), cert. denied, 417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1138 (1974); that is, she asserts that the award of attorney's fees was justified here because a strong legislative policy (the eradication of discrimination based on sex) has been effectuated through her efforts, a class of people (all female occupational therapist assistants at Bournewood) has benefited, and the necessity and financial burden of private enforcement of c. 151B are such as to make the attorney's fee award essential. As to this last point she argues that, if such fees are not allowed, attorneys would be extremely hesitant to accept a discrimination case because of the frequently minimal monetary damages awarded.

Bournewood argues that nothing in c. 151B expressly gives the MCAD the power to award attorney's fees. It draws our attention to a portion of c. 151B, § 5, which, as we read it, provides that at a hearing before the MCAD, '(t)he case in support of the complaint shall be presented . . . by one of its attorneys or agents' (G.L. c. 151B, § 5) and contends that, in light of this provision, the MCAD should not be allowed to award attorney's fees for services rendered before the commission because the statute contemplates they will be performed by its own representatives. The hospital further points out that when the Legislature believes that attorney's fees should be awarded in...