DeRoche v. Com'n against Discrimination

Citation848 N.E.2d 1197,447 Mass. 1
PartiesWilliam DeROCHE v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.<SMALL><SUP>1</SUP></SMALL>
Decision Date12 June 2006
CourtUnited States State Supreme Judicial Court of Massachusetts

Seth H. Hochbaum, Wakefield, for the plaintiff.

Beverly I. Ward, Boston, for Massachusetts Commission Against Discrimination.

The following submitted briefs for amici curiae:

Thomas F. Reilly, Attorney General, & Peter Sacks, Assistant Attorney General, for the Commonwealth.

James S. Weliky, Boston, for National Employment Lawyers' Association, Massachusetts Chapter.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

GREANEY, J.

This appeal arises out of a decision by the Massachusetts Commission Against Discrimination (commission) that the Wakefield Municipal Gas & Light Department (department) unlawfully retaliated against the plaintiff for filing a complaint with the commission claiming that the department had discriminated against him on the basis of his age in violation of G.L. c. 151B, § 4(4). The commission ordered the department to pay the plaintiff damages in the amount of $260,000, including $50,000 to compensate him for emotional distress, but failed to provide for interest on the damages. The plaintiff and the department both sought judicial review of the commission's decision pursuant to G.L. c. 151B, § 6. After a hearing in accordance with standards set forth in G.L. c. 30A, § 14, a judge in the Superior Court entered a judgment affirming the commission's determination that the department had committed retaliatory employment action and the commission's award of damages, and, in addition, declaring that interest be assessed on the damages. A second judge in the Superior Court denied the plaintiff's motion for reasonable attorney's fees and costs for services performed during the G.L. c. 30A proceedings in the Superior Court.

Both parties have appealed. The department does not contest its liability under G.L. c. 151B, but claims that the judge lacked authority to assess interest on the damages awarded the plaintiff and, further, that the award of $50,000 in damages for emotional distress is unsupported by the plaintiff's evidence. The plaintiff, in turn, asserts his entitlement to reasonable attorney's fees and costs incurred in connection with successfully defending the commission's decision before the Superior Court. We allowed the plaintiff's application for direct appellate review and, for reasons set forth in this opinion, conclude that the plaintiff is entitled to (1) no damages for emotional distress for the department's retaliatory conduct; (2) prejudgment interest, at the rate of twelve per cent per annum, assessed on the damages for back pay, calculated from May 6, 1996, the date of the retaliatory conduct, until June 1, 2005, the date judgment entered in his favor; and (3) reasonable attorney's fees and costs incurred during the appeal to the Superior Court of the commission's award in connection with those issues on which he ultimately prevailed. We remand the case to the Superior Court for modification of the judgment in accordance with this opinion.

The background of the case may be summarized as follows. The department is a municipal electric department established by the voters of the town of Wakefield (town), pursuant to G.L. c. 164, § 34, to operate the light plant owned by the town. The plaintiff was employed at the department from 1950 until 1993, when he retired (believing that his retirement was mandatory) at age sixty-five. The town retirement board processed the plaintiff's application for retirement without informing him that, due to a change in the public employee retirement statute, G.L. c. 32, he was not required to retire until he was seventy years of age. Approximately two years later, a manager at the department notified the plaintiff of the change in G.L. c. 32. The plaintiff responded to this unexpected news, first, by requesting a financial settlement to compensate for his premature retirement and, later, by requesting from the department reinstatement to his former position and reimbursement of lost wages and overtime pay. The plaintiff sought answers from the department and the retirement board as to how such a mistake could happen, but his attempts to pinpoint responsibility in the matter proved fruitless.

On February 15, 1996, the plaintiff filed a complaint with the commission alleging that the town retirement board and the department had "forced" his retirement, thereby unlawfully discriminating against him on account of his age, in violation of G.L. c. 151B.2 In response to the plaintiff's complaint, the department offered to reinstate the plaintiff to his former position. The plaintiff returned to work in May, 1996, but resigned, after only one day, on learning that he had been assigned to the position of lead lineworker in a line crew, which was a more dangerous and physically demanding position than the one he left in 1993, which was lead lineworker in a home service crew. The plaintiff then amended his complaint with the commission to add a claim of retaliation.

After a hearing, a commission hearing officer determined that the department's failure to inform the defendant that he was not required to retire at age sixty-five did not constitute discrimination under G.L. c. 151B, but that the department's conduct in assigning the plaintiff to the line crew rather than the home service crew upon his May, 1996, return to employment was adverse action in retaliation for the plaintiff's having filed a complaint with the commission. The hearing officer ordered the department to pay the plaintiff compensatory damages in the sum of $260,000, representing $210,000 in damages for back and front pay and $50,000 in damages for emotional distress. Under the authority of a decision of the Appeals Court, see Boston v. Massachusetts Comm'n Against Discrimination, 39 Mass.App.Ct. 234, 654 N.E.2d 944 (1995), the hearing officer denied the plaintiff's request to assess interest against the department.3 On appeal to the full commission, brought by both the department and the plaintiff, the hearing officer's decision was affirmed in all respects.4

Both the department and the plaintiff sought judicial review of the commission decision, and the cases were consolidated in the Superior Court. The department challenged the commission's finding of retaliation and its award of emotional distress damages. The plaintiff appealed from that part of the order which denied the assessment of interest on the award. Prior to the hearing before the judge in the Superior Court, the commission, which had taken the position that the department's status as a public entity rendered it exempt from paying interest on damages awarded under G.L. c. 151B, joined the plaintiff's efforts to reverse its own decision on that point.

Considering the parties' motions for judgment on the pleadings, a judge in the Superior Court affirmed the commission's decision that the department had retaliated against the plaintiff and its award of damages. The judge, however, reversed the commission's decision with respect to the imposition of interest, based on her determination that the department is not a public entity and, therefore, not protected by principles of sovereign immunity. Accordingly, the judge denied the department's motion for judgment on the pleadings and allowed the plaintiff's motion for judgment on the pleadings with respect to the assessment of interest on the damages award of front and back pay. The department's motion for reconsideration of the judge's order was denied, and the department thereafter filed an appeal from the judge's orders.5 The judge subsequently issued a "corrected judgment on finding of the court" clarifying that the department is to pay the plaintiff the sum of $308,890.40 (the total sum awarded by the commission, representing $210,000 in front and back pay damages, $50,000 in emotional distress damages, and $48,890.40 for reasonable attorney's fees and costs, see note 4, supra), with interest in the amount of $290,119.80 (reflecting a rate of twelve per cent assessed on the total amount of damages from February 15, 1996, to June 1, 2005), and ordering postjudgment interest to accrue from and after June 1, 2005 (the date the original judgment entered).6

The plaintiff filed a motion for attorney's fees and costs incurred in connection with the G.L. c. 30A review of the commission's decision. This motion was considered by a second judge in the Superior Court who, after a hearing, concluded that there is no statutory authority for the award of the requested fees. The plaintiff appealed from the denial of his request for reasonable attorney's fees and costs, and as has been mentioned, we granted the plaintiff's application for direct appellate review.

1. We first address the commission's award of $50,000 in emotional distress damages. In Stonehill College v. Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 575-577, 808 N.E.2d 205 (2004), we clarified the standards governing an award by the commission for damages to compensate a plaintiff for emotional distress caused by an employer's discriminatory conduct and enumerated factors a reviewing judge should consider in determining whether such an award may stand. A critical point expressed in our Stonehill decision was that a finding by the commission of discrimination, or retaliation, is insufficient by itself, as matter of law, to permit an inference of emotional harm. See id. at 576, 808 N.E.2d 205, citing Equal Employment Opportunity Commission: Policy Guide on Compensatory and Punitive Damages under 1991 Civil Rights Act (July 7, 1992), reprinted in Fair Empl. Prac. Man. (BNA) 405:7091-405:7102. We emphasized that emotional...

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