City of Salem v. Massachusetts Com'n Against Discrimination

• Decision Date: 29 April 1998
• Docket Number: No. 94-P-1952,94-P-1952
• Citation: 44 Mass.App.Ct. 627,693 N.E.2d 1026
• Parties: CITY OF SALEM v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another. 1
• Court: Appeals Court of Massachusetts

Page 1026

693 N.E.2d 1026

44 Mass.App.Ct. 627

CITY OF SALEM v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.

¹

No. 94-P-1952.

Appeals Court of Massachusetts Essex.

Argued Feb. 6, 1996.

Decided April 29, 1998.

Mary P. Harrington, Salem, for plaintiff.

Michelle H. Blauner, Boston (Alan Jay Rom, with her), for Charles Tyrone Brown.

George P. Napolitano, South Glen Falls, NY, for the Massachusetts Commission Against Discrimination, was present but did not argue.

Before ARMSTRONG, JACOBS and LENK, JJ.

ARMSTRONG, Justice.

The city of Salem appeals from a judgment affirming a decision of the Massachusetts Commission Against Discrimination (MCAD), based on a finding by the MCAD's hearing commissioner (and later adopted by the full commission) that Salem's then police chief, Charles J. Connelly, in making patrolman appointments to the Salem police department in August, 1978, violated G.L. c. 151B, § 4, by denying the defendant Charles Tyrone Brown, a black man, an appointment because of his race. Partly because Brown pursued his complaint of discrimination before several tribunals, including proceedings before the Civil Service Commission, the United States Treasury Department's Office of Revenue Sharing, the MCAD, and several courts, and partly because the MCAD's first decision was reversed on appeal (see Salem v. Massachusetts Commn. Against Discrimination, 404 Mass. 170, 534 N.E.2d 283 [1989] ), necessitating further hearings leading to the present decision, the matter has followed a complex and extraordinary course of litigation over what is now nineteen years.

1. The procedural history. In April, 1979, Brown filed a complaint with the MCAD alleging that he had been bypassed for employment in violation of his rights under G.L. c. 151B, § 4. A hearing on Brown's complaint was held in December, 1980, but the hearing commissioner died before making his decision. A new commissioner was appointed to review the record and to issue a proposed decision. In September, 1982, the new commissioner entered findings of fact, conclusions of law, and an order, finding that the Salem police department had violated G.L. c. 151B, § 4(1), by failing to hire Brown because of his race. On the city's appeal to the Superior Court, the judge concluded that the practice of appointing a substitute hearing officer to issue a decision based on the record in the event the original hearing officer is unable to do so, is only acceptable and reasonable when the credibility of witnesses is not in issue. The judge ordered that the MCAD decision be vacated and that the matter be remanded to the MCAD for a new hearing. In February, 1989, the Supreme Judicial Court affirmed the Superior Court judgment stating, inter alia, that there was conflicting evidence bearing on the question whether the police department's reasons for not hiring Brown were a pretext, and that the new commissioner could not evaluate the credibility of the witnesses without observing their demeanor when testifying. Salem v. Massachusetts Commn. Against Discrimination, 404 Mass. at 174-175, 534 N.E.2d 283.

On remand to the MCAD, and after a new hearing in November, 1990, the hearing commissioner determined that the city, through its police department, had violated Brown's rights under G.L. c. 151B, § 4, by failing to hire him because of his race. The commissioner ordered that the city pay Brown the sum of $339,297.20, representing $239,297.20 in lost wages and benefits, and $100,000 in emotional distress damages, plus interest at the statutory rate of 12 percent per annum from the date of the filing of the complaint in 1979. The hearing commissioner's decision was affirmed by the full commission which, in addition, awarded Brown attorney's fees in the amount of $124,406.65 and costs in the amount of $3,168.34, to bear interest at the statutory rate of 12 percent per annum from May 22, 1991, the day Brown's counsel submitted his application for fees and costs. In July, 1994, a judge in the Superior Court affirmed both the decision of the full commission affirming the hearing commissioner's findings and decision, and the decision of the full commission awarding attorney's fees and costs to Brown. ² This appeal followed.

2. The facts. The facts are, to a large extent, not in dispute. In July of 1978, the Salem police department called for a civil service list from which it could appoint four persons to entry-level police patrolman positions. The Division of Personnel Administration (DPA) forwarded a list of nineteen names, with Brown first on the list based on his having received the highest cumulative score on the civil service qualifying examination. The list was certified to the city on August 8, 1978. At the same time, the DPA notified (by mail) those listed that they were being considered and advised them that within a ten-day period they should appear at police headquarters to sign the civil service list to signify their willingness to serve if appointed. The police department was then given twenty-one days to make its appointments, which included the ten-day sign-in period.

During previous hirings, Chief Connelly had interviewed candidates as they came in to sign the civil service list indicating their willingness to accept the appointment. For this appointment, however, he had decided to switch to a two-stage procedure, whereby in the first stage he spoke to each candidate briefly when he or she came in to sign the list, and, in the second stage, he interviewed the candidates at a scheduled appointment. One advantage was that the new system enabled Connelly to interview fewer candidates. ³

Upon receiving the DPA notification, Brown appeared at the police station on August 15, 1978, and asked to see the chief. He waited for about an hour and was then shown into the chief's office. He indicated that he would accept the appointment if offered and signed the list. He asked Chief Connelly what position he occupied on the list, and he was told number one. On conflicting evidence, the hearing commissioner found that Chief Connelly did not tell Brown that any additional interview would be required, and did not verify Brown's current address and telephone number (as was Chief Connelly's usual practice). ⁴ Brown made no independent attempt to apprise Chief Connelly that he was no longer residing at the address shown on the list (157 Lafayette Street, Salem). ⁵

When the top nine candidates were determined, Chief Connelly sought to notify them of the time of the second interview. The candidates were contacted by telephone or by the personal visit of a police officer. In Brown's case, no phone was listed, and when a police officer went to 157 Lafayette Street, he found that Brown had moved out about one year earlier. The officer then went to the post office and was shown a change of address card submitted by Brown so that his mail could be forwarded. He went to the indicated address (on Bartlett Street in Beverly) but was unable to locate Brown.

Meanwhile, Brown's former supervisor, Dog Constable Donald Famico, and Salem police Lieutenant Francis J. Wrigley both volunteered unfavorable information to Chief Connelly about Brown's activities as an assistant dog constable in Salem from April, 1977, to April, 1978. (This was a CETA ⁶ job that had been scheduled to last for one year only.) Chief Connelly ordered Sergeant Herlihy of the department's internal affairs division to look into the Famico allegations and to produce a report, and also requested that Lt. Wrigley submit a statement. ⁷ No unsolicited negative information was received on any other candidate.

On August 28, 1978, Chief Connelly, after conducting second interviews with the other eight candidates who had signed the willing-to-serve list, selected four white candidates for appointment as entry-level police officers. Those candidates occupied the second, third, fourth, and ninth positions on the willing-to-serve list. Chief Connelly's selections were confirmed by the mayor of Salem on August 31, 1978.

On or about September 1, 1978, Brown went to Cleveland, Ohio, to be near his mother, who had become ill, and to assist in the care of his two younger sisters. He arranged for a friend to watch his mail and to call him in Cleveland in the event he received a letter from the city. Brown twice called Chief Connelly from Cleveland. In early September, 1978, Chief Connelly was unavailable to speak with Brown, but Brown left his name with the woman who answered the call. Several days after his first call, Brown spoke with the chief and asked whether he was going to get an interview (he did not consider his brief conversation with Chief Connelly when he appeared to sign the willing- list as a job interview) and whether he was going to get the job. Chief Connelly did not respond to Brown's questions and did not tell Brown that he had been bypassed and that other candidates had been appointed. ⁸ Brown later telephoned the DPA from Cleveland to enquire about his status and was informed that no appointment had been made.

Although the four new officers began work on September 11, 1978, DPA approval was necessary to complete the formal appointment process, and this could not be secured until Chief Connelly indicated his reason or reasons for bypassing higher ranked candidates on the willing-to-serve list. When the chief forwarded the names of the successful candidates to the DPA on September 2, the reason he gave for the appointments was as follows: "After personal interviews with all eligible candidates, those selected were the most impressive." In response to the DPA's request for more specific information concerning the applicants, Chief Connelly, by letter dated January 18, 1979, wrote: "My specific reason for appointing ... [the four new officers] ... is the fact that I had interviewed nine candidates and found these applicants most impressive. For not appointing Charles Brown; he previously...