College-Town, Div. of Interco, Inc. v. Massachusetts Com'n Against Discrimination

Decision Date03 June 1987
Docket NumberDIVISION,COLLEGE-TOW
Citation400 Mass. 156,508 N.E.2d 587
Parties, 46 Fair Empl.Prac.Cas. (BNA) 1406 OF INTERCO, INCORPORATED v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION et al. 1 , 2
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Jerry Lybarger, St. Louis, Mo. (David C. Phalen, Boston, with him), for plaintiff.

Barbara B. Dickey for Massachusetts Com'n Against Discrimination.

Marjorie Heins, S. Beville May, & Alison J. Bell, Boston, for Women's Bar Ass'n of Massachusetts & another, amici curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

College-Town Division of Interco, Inc. (College-Town), appeals from the decision of a judge of the Superior Court affirming a decision by the Massachusetts Commission Against Discrimination that College-Town had discriminated against an employee, Loretta Rizzi, on the basis of sex, in violation of G .L. c. 151B, § 4(1) and (4). The commission, affirming the decision of the hearing commissioner, had decided that College-Town was liable because its supervisor had created a sexually harassing work environment, because it had failed to remedy the situation, and because it had retaliated against Rizzi in seeking to transfer her and in discharging her when she declined the transfer. College-Town argues that the commission's decision was not supported by substantial evidence and is incorrect as a matter of law. We affirm.

We summarize the facts as they were found by the hearing commissioner. Loretta Rizzi began working at College-Town in March, 1979, as a "production clerical." Several weeks after Rizzi was hired, her supervisor, Chester Broad, began making sexually suggestive comments to her, such as "You have a sexy voice on the phone" and "You have a sexy walk. I like the way you walk." On one occasion, Broad approached her as she sat at her desk, placed his hand on her back and said, "Boy, you have a firm back for a broad your age." Later that month, Broad telephoned her from another company facility, and asked, "Hey, how about our getting together? I'll practice my judo and you practice your karate at your apartment." Another time, Broad came over to Rizzi as she sat at her desk, covered the slit in her dress, and said, "Fix your skirt." In June, 1979, Rizzi asked Broad to evaluate her performance in a meeting earlier that day. Broad responded, "You handled it very well. Do you know the best way you handled it? I liked the way your tits stood out in the red shirt."

In July or early August, 1979, the character of Broad's remarks changed. On one occasion, Broad looked around to see if anyone was listening, and then turned to Rizzi and asked, "Are you a good f---?" Rizzi replied that it was none of Broad's business, and then went to the women's room and cried because she felt "cheap and degraded." When Rizzi told a coworker of Broad's remarks, the coworker urged her to speak with Mike Levy, the director of manufacturing. Rizzi went to Levy's office on Friday, August 17, 1979, and told him that Broad had been sexually harassing her since April. Levy told her he did not want to hear details because he was not "qualified to go into these things." Levy referred Rizzi to Claire Bergman in the personnel department. Rizzi was not able to meet with Bergman until the following Tuesday, at which time Rizzi told Bergman about Broad's harassment.

In the meantime, Broad propositioned Rizzi again, putting his head close to hers and saying, "Are you a good f---?" Rizzi began to cry. Broad handed her some tissues, and said, "Hey, hey, hey, cut it out. You are going to get me in trouble. I say that to my wife's girlfriends all the time. They are in the same boat that you are in." Rizzi reported this incident to Bergman, and expressed concern that she might lose a promotion she had been seeking.

Bergman directed Levy to speak with Broad about the accusations, and then spoke with Broad herself. Broad denied the allegations and stated that, in fact, Rizzi had made sexually suggestive comments to him. Bergman decided to call a meeting of Broad's staff to determine the truth of the allegations. Broad and all the other women in the department, except Rizzi, attended. Rizzi was neither asked to the meeting nor notified of its occurrence and purpose. At the meeting, Bergman and Broad explained the allegations Rizzi had made against Broad. Broad remained in the room throughout the meeting. The coworkers were not asked any questions about the alleged incidents, but did "express dismay at the allegations and were generally supportive of Broad." Three of Rizzi's coworkers later testified that they had never observed any conduct by Broad which might constitute sexual harassment.

College-Town made no further investigation, although vice president Carl Packer testified that he believed College-Town was never satisfied it had determined the truth of Rizzi's allegations. None of the staff was questioned at the meeting or individually. College-Town never provided Rizzi with the opportunity to present her case before her coworkers or to confront Broad. In fact, College-Town took no further action on the matter, did not further interview Rizzi, and did not issue a warning to or take disciplinary action against Broad.

During the same period in 1979, Rizzi began seeking a promotion to a position in another department as assistant to Ed Gordon, director in charge of duplicates. Although Rizzi sought this position while Broad's harassment occurred, the harassment does not appear to have been her motive in seeking the position. Rizzi first complained to Levy and Bergman of Broad's harassment, in part, because of her concern that it might jeopardize her chances of receiving the promotion. Shortly before the meeting of the office staff concerning Rizzi's allegations of sexual harassment, Gordon informed Levy that Rizzi was not qualified for the position. Following the meeting of the office staff concerning the sexual harassment charges, Levy informed Rizzi that she was not qualified for the promotion. College-Town subsequently hired a person with more knowledge and experience. On October 9, 1979, Rizzi filed a complaint with the commission alleging that she had been sexually harassed and had been denied the promotion in retaliation for complaining about the harassment.

After Rizzi filed her complaint, Packer, Levy, and Bergman became concerned that tension in the allocation office was affecting productivity. They decided to transfer Rizzi to a similar position in a nearby facility; Rizzi could easily be transferred, they testified at trial, while Broad was considered essential. Bergman offered Rizzi the transfer on October 1, 1979. Rizzi declined, telling Bergman that she would consider only a position equivalent to the promotion that she had been seeking. Bergman told Rizzi to think about it over the weekend. On the following Monday, Rizzi again declined the transfer. At no time did Bergman tell Rizzi that the transfer was mandatory.

On October 25, 1979, Packer called Rizzi into his office, and said, "Loretta, it has come to my attention that you are suing College-Town. It's been done before. Here is your vacation, your severance pay or whatever, and good luck. May I have your badge?" Packer testified that Rizzi was fired for refusing the mandatory transfer.

On November 5, 1979, Rizzi amended her complaint to allege that her discharge was in retaliation for filing the original complaint.

After a hearing, the hearing commissioner found that Broad had sexually harassed Rizzi, that College-Town's investigation of Rizzi's allegations was incomplete, inadequate, insensitive to Rizzi and deferential to Broad, and that both the transfer and discharge were retaliatory. The hearing commissioner found that Rizzi was not offered the promotion because she was not qualified, and not in retaliation for complaining about Broad's sexual harassment. The hearing commissioner awarded Rizzi damages amounting to $10,000 for emotional distress resulting from the harassment and discharge, back pay of $7,733.81, plus interest at the statutory rate of twelve per cent per year.

College-Town appealed to the full commission, which affirmed the decision of the hearing commissioner, concluding that his decision was supported by substantial evidence and was correct in the application of the law. College-Town sought judicial review of the commission's decision in the Superior Court, arguing that the decision was not supported by substantial evidence and contained errors of law. The judge affirmed the commission's decision. College-Town appealed the judge's decision and this court, on its own motion, took the case for review.

1. This court has not previously been presented with the questions whether sexual harassment constitutes discrimination in violation of G.L. c. 151B, § 4(1), and on what basis an employer may be found liable. General Laws c. 151B, § 4, as amended through St.1965, c. 397, § 4, provides: "It shall be an unlawful practice: 1. For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, ... or ancestry of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification." General Laws c. 151B, § 9, as amended through St.1974, c. 478, provides in part: "The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof...."

We conclude, and College-Town cites no authority to the contrary, that sexual harassment may constitute discrimination in violation of G.L. c. 151B, § 4(1). 3 Chapter 151B, § 4(1), prohibits employment discrimination on the basis of gender, and seeks the removal of...

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