City of Boston v. Massachusetts Com'n Against Discrimination

• Citation: 39 Mass.App.Ct. 234,654 N.E.2d 944
• Decision Date: 13 September 1995
• Docket Number: No. 94-P-666,94-P-666
• Court: Appeals Court of Massachusetts
• Parties: CITY OF BOSTON & another 1 v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION.

Page 944

654 N.E.2d 944

39 Mass.App.Ct. 234

CITY OF BOSTON & another ¹ v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION.

No. 94-P-666.

Appeals Court of Massachusetts Suffolk.

Argued April 13, 1995.

Decided Sept. 13, 1995.

John M. Townsend, Boston, for plaintiffs.

George P. Napolitano, Salem, for defendant.

Before ARMSTRONG, KASS and JACOBS, JJ.

KASS, Justice.

On August 27, 1985, Larry Brooks, a provisional corrections officer at the Deer Island house of correction, and another guard, Paul Delaney, were involved in an altercation with several prisoners. In consequence of the affray, Brooks, who is black, was fired, and Delaney, who is white, received a commendation. Brooks complained to the Massachusetts Commission Against Discrimination (MCAD) that his discharge was racially motivated. In the employer's ² appeal from a determination by the MCAD that the termination of Brooks's employment was, indeed, an act of unlawful racial discrimination, the issue of interest concerns the refusal of the MCAD to give any weight at all to the decision of an arbitrator before whom the unlawful discrimination issue had been placed. There are some other issues as well.

The MCAD ordered that the employer: (1) cease and desist from its unlawfully discriminatory practices; (2) pay Brooks compensatory damages; (3) reinstate him; and (4) initiate a training program in human relations and civil rights. Upon review of the MCAD decision under G.L. c. 30A, § 14, a judge of the Superior Court affirmed the finding of racially motivated discharge and much of the substance of the MCAD's orders.

For purposes of considering the appeal, the detailed findings of fact made by the single commissioner who conducted the MCAD hearing and restated by the reviewing Superior Court judge may be distilled. Brooks's duty post as a corrections officer on August 27, 1985, was in the east wing of the Deer Island house of correction. While returning from a stop in a central administrative area, Brooks had word from an inmate of trouble in the west wing. Together with Delaney, whose assistance Brooks sought, he went to the west wing to see what was up. There seemed to have been some sort of disturbance, in which a prisoner named Edward Reid was a combatant. Brooks tried to escort Reid, whose blood was still up, into a segregation unit in the east wing. Another prisoner, Michael Burns, warned Brooks to take his "fuckin' hand off him [Reid]," and placed himself between Brooks and Reid. Delaney arrived on the scene, and now both Reid and Burns were being steered to the segregation unit. Burns announced, "We're not going in. Let's fuck these cops up." Reid took up the invitation, and he and Burns sailed into the guards, to the pleasure of a now raucous crowd of inmates. Delaney sounded the alarm and help sufficient to control the incipient riot arrived. For their part, officers Brooks and Delaney, while dealing with Reid and Burns, roughed them up enough so both inmates required medical attention.

Each of the two officers was charged with leaving his post without authority, transferring an inmate without authority, and using excessive force against an inmate. There was a disciplinary hearing, following which the penal commissioner of Boston determined that Brooks had, indeed, undertaken to transfer an inmate without authority and had used excessive force. Brooks's professional conduct, the commissioner said, had been deplorable, and he was discharged immediately. As to Delaney, the commissioner exonerated and commended him on the grounds that Delaney had acted on Brooks's alarm and had appropriately assisted a fellow officer in need of aid.

Brooks invoked his right under the correction officers' collective bargaining agreement to grievance arbitration, and was represented by his union in that process. In the arbitration, Brooks claimed that he had been fired without just cause and that he had been discriminated against by reason of his race. Following seven days of hearings, the arbitrator filed a detailed, fifteen-page decision in favor of the employer. Brooks, the arbitrator found, had violated regulations in failing to notify his supervisor immediately when he had word of trouble, and, by proceeding on his own, had caused a minor incident in the prison to escalate. That lapse on the part of Brooks, the arbitrator determined, was just cause for firing him, and it was not necessary to sort out whether the force he had used against Reid or Burns was excessive. As to the claim of race discrimination, the arbitrator concluded it had not been made out because Delaney, the white officer, had not been informed by Brooks about what was going on; that "Officer Delaney was placed in the position of backing up a fellow [o]fficer who was taking independent action without sharing any information as to why."

Thus disappointed by the arbitration proceedings, Brooks pursued his remedies before the MCAD, with which he had timely filed a charge of race discrimination in violation of G.L. c. 151B, § 4(1), and 42 U.S.C. §§ 2000e et seq. (1988). The MCAD adopted the findings of the single commissioner who conducted the hearings. He had found that white correction officers at Deer Island "regularly engage in the practice of transferring inmates without first getting supervisory approval" and that "Brooks was singled out in an unusually harsh and unjust manner.... I am compelled to conclude that the [employer's] articulated reason for terminating the Complainant ... is pretextual." The investigation of Brooks's role in the incident of August 27, the commissioner found, was "kangaroo justice" directed to the object of firing Brooks, an end desired by Mark Kepple, deputy superintendent of the prison. There was testimony, which the commissioner credited, that Kepple had voiced hostility to African-American correction officers; by way of raw example, Kepple had said on one occasion, "fuck the niggers."

1. Weight to be ascribed to the arbitrator's decision. When the employer sought to introduce the arbitrator's decision as evidence, the commissioner declined to receive it. Loftily, the commissioner said: "[T]he MCAD is the competent state agency to hear discrimination charges, and this is the forum in which they are heard; and that the weight that I would lend to somebody else's hearing on this would be no weight at all." Had the commissioner troubled to look at the arbitrator's decision, he would have found, at the least, a careful description of the physical setting in which the disturbance had occurred and the manner in which it developed into something potentially dangerous. To have waved the decision off was, as the trial judge observed, arbitrary and not in accord with law.

To be sure, submission to arbitration under a collective bargaining agreement does not give preclusive effect to the arbitral decision in a later statutory discrimination action brought before a court or specialized agency. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 54, 94 S.Ct. 1011, 1022-23, 39 L.Ed.2d 147 (1974); Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 744-745, 101 S.Ct. 1437, 1447, 67 L.Ed.2d 641 (1981); McDonald v. West Branch, 466 U.S. 284, 292 & n. 13, 104 S.Ct. 1799, 1804 & n. 13, 80 L.Ed.2d 302 (1984); Carr v. Transgas, Inc., 35 Mass.App.Ct. 581, 583, 623 N.E.2d 505 (1993), and cases cited. Compare Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35, 111 S.Ct. 1647, 1657, 114 L.Ed.2d 26 (1991), in which the Court held that the arbitral right would be both exclusive and preclusive in those instances where the parties had contracted to arbitrate statutory claims. A prohibition against discrimination in a collective bargaining contract (as in the instant case) does not constitute a referral of statutory claims to arbitration. Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. at 744 n. 23, 101 S.Ct. at 1447 n. 23. Compare Rooney v. Yarmouth, 410 Mass. 485, 491-494, 573 N.E.2d 969 (1991).

The dominant idea underlying the Gardner-Denver line of cases is that when Congress accords a person an independent statutory right (or in the State context, when the Legislature accords such a right), that public right (subject to the exception later created in Gilmer ) is independent and paramount to the privately arrived at collective bargaining agreement. See Alexander v. Gardner-Denver Co., 415 U.S. at 49-54, 94 S.Ct. at 1020-1023. Indeed, the prior arbitration decision is not even one to which an agency or court that hears a statutory discrimination claim must ascribe deference or special weight. Id. at 60 & n. 21, 94 S.Ct. at 1025 & n. 21. McDonald v. West Branch, 466 U.S. at 292 n. 13, 104 S.Ct. at 1804 n. 13. Wilmington v. J.I. Case Co., 793 F.2d 909, 919 (8th Cir.1986). McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1259 n. 7 (10th Cir.1988).

To say that the arbitral decision does not have special weight, however, is not to say that it is irrelevant. Since Gardner-Denver, the governing principle has been that the forum adjudicating a statutory claim of discrimination may receive an arbitration decision in evidence and accord it the weight that seems appropriate. Obviously, the adjudicator of the statutory claim cannot consider what weight, if any, to give an arbitral decision unless it at least examines that decision. If the arbitration has been conducted fairly and thoroughly by a competent arbitrator, the court or agency hearing the statutory claim will wish to give the arbitration decision rather more weight than if the arbitration has been loose, cursory, and conclusory. See Alexander v. Gardner-Denver Co., 415 U.S. at 60 n. 21, 94 S.Ct. at 1025 n. 21; ³ McDonald v. West Branch, 466 U.S. at 292-293 n. 13, 104 S.Ct. at 1804 n. 13. Compare Wilmington v. J.I. Case Co., 793 F.2d at 919 (refusal to admit text of arbitrator's decision was not an abuse of discretion); McAlester v. United Air Lines, Inc., 851 F.2d at 1259 n. 7 (admission in...