MacCormack v. Boston Edison Co.

• Decision Date: 28 October 1996
• Citation: 423 Mass. 652,672 N.E.2d 1
• Parties: , 73 Fair Empl.Prac.Cas. (BNA) 1831 Edward R. MacCORMACK & another 1 v. BOSTON EDISON COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1

672 N.E.2d 1

423 Mass. 652, 73 Fair Empl.Prac.Cas. (BNA) 1831

Edward R. MacCORMACK & another ¹ v. BOSTON EDISON COMPANY.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Sept. 5, 1996.

Decided Oct. 28, 1996.

Nancy S. Shilepsky (Katherine J. Michon, with her), Boston, for plaintiffs.

James M. Paulson (Robert P. Morris, with him), Boston, for defendant.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and FRIED, JJ.

FRIED, Justice.

The plaintiffs, Edward R. and Janet MacCormack, sought damages under G.L. c. 151B, § 4 (1994 ed.), from his employer for discriminating against him because of his age and for retaliating against him for seeking such relief. A jury found for the defendant on the age discrimination claim and for the plaintiffs on his claim of retaliation. A Superior Court judge, treating the portion of the verdict relating to retaliation as merely advisory, ruled that the plaintiffs were not entitled to a jury trial, found for the defendant on the retaliation claim, and, in the alternative, assuming there was a right to a jury trial, granted judgment for the defendant notwithstanding the jury's verdict on the ground that the evidence of unlawful retaliation was insufficient as a matter of law. The plaintiffs appealed. We transferred their appeal to this court on our own motion. The parties are entitled to a jury trial for retaliation claims and that ruling applies retroactively. The Superior Court judge was correct, however, that the evidence of unlawful retaliation was insufficient as a matter of law.

I

Edward R. MacCormack began working for the Boston Edison Company in May, 1976. In 1986, MacCormack became Boston Edison's "Corporate Nuclear Security Specialist." This responsibility required him to report directly to John F. Kehoe, Jr., who then served as Boston Edison's corporate security officer. In October, 1990, MacCormack applied for the position of corporate security officer in anticipation of Kehoe's upcoming retirement. MacCormack was interviewed for the opening, but John Connolly, a former Federal Bureau of Investigation (FBI) supervisor agent, was chosen for the position instead. When MacCormack asked why he had not been selected, he was told that Connolly had stronger relationships with law enforcement personnel throughout New England and that Connolly had more experience and training in the area of terrorism prevention. At the time Connolly's appointment was announced in December of 1990 MacCormack was sixty years of age and Connolly was fifty years of age.

Approximately four months later, in April, 1991, MacCormack notified Boston Edison that he would be filing a claim of age discrimination as a result of this hiring decision. MacCormack's first charge was filed on or about May, 1991. On September 13, 1991, MacCormack and his wife filed a claim in the Superior Court alleging that Boston Edison had practiced discrimination toward him on the basis of age and demanding a jury trial. ² In February, 1993, the MacCormacks filed a motion to amend their complaint to claim that Boston Edison had retaliated against MacCormack because of his age discrimination suit. Boston Edison's motion to strike MacCormack's jury demand on the unlawful retaliation claim was denied. It was later agreed that all claims would be tried to the jury, but the judge would reserve judgment as to whether the verdict on the unlawful retaliation claim would be binding or advisory.

On January 18, 1994, the jury returned a verdict for Boston Edison on the age discrimination claims, but found for the plaintiffs on the unlawful retaliation claim, awarding the plaintiffs $50,000 in damages for emotional distress and $150,000 in punitive damages. Boston Edison moved to treat the jury verdict on the unlawful retaliation claim as advisory, and the judge agreed. The judge held that there is no right to a jury trial for retaliation claims. Concluding that no unlawful retaliation had taken place, the judge entered judgment for Boston Edison on that claim.

The plaintiffs filed a timely notice of appeal on June 23, 1994. On July 11, 1994, this court issued its opinion in Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 636 N.E.2d 212 (1994), which held that a plaintiff asserting a gender discrimination claim under G.L. c. 151B, § 4, has a right to trial by jury under art. 15 of the Declaration of Rights of the Massachusetts Constitution. On July 14, the plaintiffs moved for reconsideration and relief from judgment on the basis that Dalis mandated a jury trial on their unlawful retaliation claim. Boston Edison opposed the motion and, in the alternative, moved for a judgment notwithstanding the verdict. The judge refused to apply Dalis retroactively, but amended his previous judgment to rule, in the alternative, that Boston Edison was entitled to a judgment notwithstanding the jury's verdict.

II

MacCormack's claim of age discrimination was brought under G.L. c. 151B, § 4. In addition to prohibiting specific forms of discrimination, this statute also forbids retaliation stemming from such discrimination claims: an entity may not "discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under section five." G.L. c. 151B, § 4(4).

A

Right to a jury trial. In Dalis we held that art. 15 ³ applies to gender discrimination claims, as these fall within the language of that article guaranteeing trial by jury in, "controversies concerning property ... between two or more persons." Dalis v. Buyer Advertising, Inc., supra at 222-223, 636 N.E.2d 212. While the article excepts cases which, prior to its adoption, were addressed to the court's equity jurisdiction, insofar as Dalis's claim of gender discrimination sought damages it was analogous to common law causes of action under tort and contract. ⁴ Id. at 222-224, 636 N.E.2d 212, citing Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 122-123 (1st Cir.1992). We now take the inevitable next step and hold that the right to a jury trial extends to all damage claims under G.L. c. 151B, § 4, including claims for unlawful retaliation. ⁵ General Laws c. 151B, § 4(4), retaliation claims arise directly out of a claimant's original discrimination claim. It would be anomalous to grant a right to a jury trial for claims of unlawful gender, racial, or other such categorical discrimination, but to deny it in cases where it is said that bringing the charge itself led to prohibited discrimination. ⁶

B

Retroactive application of Dalis. Boston Edison argues that, if the Dalis case is held to apply to retaliation claims, its holding should not be applied retroactively to cover this case. The holding in Dalis itself was retroactive, in the sense that it entitled the plaintiff in that case to a jury trial. This does not end the inquiry, however, as decisions which apply retroactively to the case at hand have not always been applied retroactively to all parties in other cases similarly situated. See, e.g., Bouchard v. DeGagne, 368 Mass. 45, 48-49, 329 N.E.2d 114 (1975); McIntyre v. Associates Fin. Servs. Co. of Mass., 367 Mass. 708, 710-712, 328 N.E.2d 492 (1975).

Both parties invoke the factors enumerated in McIntyre v. Associates Fin. Servs. Co. of Mass., supra, to decide this issue. The Appeals Court also used these factors in Dean v. Springfield, 38 Mass.App.Ct. 910, 645 N.E.2d 39 (1995), to give Dalis retroactive application. Although the McIntyre test plainly requires retroactivity here, ⁷ we believe the issue of retroactivity may be resolved more simply. The McIntyre test was based on the Supreme Court's discussion in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971). Subsequent to Chevron Oil, the Supreme Court has held that, when a rule of Federal law is applied retroactively in the case in which it is announced, it should apply retroactively to all parties similarly situated to eradicate "selective temporal barriers to the application of federal law" in civil cases. Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 2517, 125 L.Ed.2d 74 (1993). See also Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, ----, 115 S.Ct. 1745, 1748, 131 L.Ed.2d 820 (1995). While we have cited McIntyre with approval in a number of cases addressing retroactivity, see Tamerlane Corp. v. Warwick Ins. Co., 412 Mass. 486, 490, 590 N.E.2d 191 (1992); Payton v. Abbott Labs, 386 Mass. 540, 565 n. 12, 437 N.E.2d 171 (1982); Schrottman v. Barnicle, 386 Mass. 627, 631-632, 437 N.E.2d 205 (1982); Crowell v. McCaffrey, 377 Mass. 443, 452, 386 N.E.2d 1256 (1979); Bouchard v. DeGagne, supra at 49, 329 N.E.2d 114, none of these cases concluded that we should limit the reach of a prior decision which had initial retroactivity when announced. Traditionally, exceptions to the general rule of retroactivity have arisen when judicial rulings have altered rights in Massachusetts contract and property law where issues of reliance might impose hardship on unsuspecting parties. Payton v. Abbott Labs, supra at 565, 437 N.E.2d 171. When the decision involves a matter of constitutional right, as it does here, considerations of constitutional principle with rare exceptions require retroactive application. A constitutional decision is not a legislative act but a determination of rights enacted by the Constitution, so that all persons with live claims are entitled to have those claims judged according to what we conclude the Constitution demands. This was the analysis put forward by Justice Harlan in Desist v. United States, 394 U.S. 244, 258-259, 89 S.Ct. 1030, 1038-39, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting), to which the Supreme Court returned in Harper. It is an analysis which has equal force in adjudicating claims under our State Constitution.

Different considerations are at work where the judicial process...