Modern Continental/Obayashi v. Mcad

• Decision Date: 07 September 2005
• Citation: 833 N.E.2d 1130,445 Mass. 96
• Parties: MODERN CONTINENTAL/OBAYASHI v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

833 N.E.2d 1130

445 Mass. 96

MODERN CONTINENTAL/OBAYASHI v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another.¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 6, 2005.

Decided September 7, 2005.

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Richard D. Wayne, Boston, for the plaintiff.

Beverly I. Ward for Massachusetts Commission Against Discrimination.

James B. Cox, Boston, for Whatleigh Edmands.

John D. O'Reilly, III, Southboro, Karl J. Gross, & James F. Grosso, & James F. Grosso, Framingham, for Associated General Contractors of Massachusetts, Inc., & others, amici curiae, submitted a brief.

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

SOSMAN, J.

Modern Continental/Obayashi (Modern) sought judicial review of a decision by the Massachusetts Commission Against Discrimination (MCAD) finding Modern liable for sex discrimination when Modern failed to protect one of its employees from harassment by employees of one of Modern's subcontractors. A judge in the Superior Court affirmed the MCAD's decision, and Modern appealed. We transferred the case to this court on our own motion. Although we reject Modern's contention that an employer can never be liable for sexual harassment perpetrated by outside third parties, we agree that, on this record, Modern satisfied its obligation to its employee by making reasonable efforts to remedy the harassing conduct. The MCAD's decision to the contrary is not supported by substantial evidence, and instead reflects the imposition of an erroneous standard higher than reasonableness. We therefore reverse the judgment.²

1. Facts and procedural background. On January 18, 1994, Whatleigh Edmands, a female employee of Modern, filed a complaint with the MCAD charging Modern with sex discrimination based on sexual harassment. She subsequently amended her complaint to add Mohawk Construction (Mohawk), one of Modern's subcontractors as a respondent, but ultimately settled her claim against Mohawk. She amended her complaint again to add a claim that she was constructively discharged from Modern as a result of a hostile work environment. The investigating commissioner found probable cause to support the claim of sexual harassment, but no probable cause to support the claim of constructive discharge. The matter went forward to a public hearing solely on the sexual harassment claim. The hearing commissioner's findings on that claim are as follows, supplemented by uncontested details from the record.

Modern was the successful bidder on a public works project to prepare the eastern approach to the Ted Williams Tunnel, a portion of the Central Artery/Tunnel project (the so-called "Big Dig"). Modern subcontracted the iron work on the project to Mohawk. As a condition of its contract, Modern and all of its subcontractors entered into a project labor agreement with the construction trades unions, which required, inter alia, that all craft employees (including foremen) be union members, that all such employees be hired through exclusive union hiring halls, and that workers not be disciplined or terminated except for "just cause."

Whatleigh Edmands, an apprentice carpenter, was hired by Modern through the carpenters' union in October, 1993. She worked with four or five other carpenters on a crew supervised by foreman Charles Cofield. Numerous other tradespeople were on the site, including ironworkers employed by Mohawk. On November 3, 1993, Edmands was using one of the portable toilet facilities on the site when she heard scratching noises outside. Looking up, she saw someone peering through an air vent near the roof. The peeper was wearing a brown hard hat of a type worn exclusively by the ironworkers. When Edmands tried to exit, she found herself unable to open the door, as a tie wire had been fastened around the toilet enclosure.³ She screamed, and someone cut the tie wire to let her out. As she came outside, she saw approximately twelve men in the area. She yelled at them, demanding to know who had spied on her and tied her in the portable toilet facility. None of them responded.

Later that day, Edmands informed Cofield of the incident, and Cofield assured her that he would "take care of this." The following day, Richard Ell, the steward for the carpenters' union, came to see Edmands about the incident, and, the next day, returned to see Edmands with Jay Kennedy, the steward for the ironworkers' union. Ell informed Edmands that one of the ironworkers, Joe Roselli, had admitted responsibility for tie wiring Edmands into the toilet facility. Ell asked Edmands if she wanted to have Roselli apologize in person, suggesting that seeing him might enable her to identify him as the person who had peered in through the vent. Although Edmands said that she did not wish to speak to Roselli, Roselli was brought over and made his apologies to her. He admitted that he was the one who had fastened the tie wire, but claimed it was a prank that he intended to play on another ironworker, and that he had thought someone else was using the toilet facility at the time.⁴ Roselli denied that he had looked through the vent. After hearing from Roselli, Ell asked Edmands if she could identify Roselli as the person who had peered in through the vent. She could not. At the hearing, Edmands testified that Roselli was not the peeper.

On November 8, five days after the incident, Edmands and Ell met with Modern's project manager, John McNamara. McNamara indicated that he would speak with the ironworkers' business agent to have Roselli removed from the site. McNamara also suggested that Edmands view the videotapes of the work site to see if those tapes would help her identify the person who had peered in through the vent. Thereafter, McNamara contacted Mohawk's president, requesting that Mohawk investigate the matter. He also asked Mohawk to transfer Roselli off the job site, but Mohawk refused to remove him or to discipline him.

On November 10, Edmands noticed that the portable toilet facility had been defaced with graffiti, consisting of the word "HERS" written above a drawing of an eye and, below the eye, a crude caricature of female genitalia. Edmands understood that the graffiti was directed at her, and that it referred to the prior week's incident. She encountered Cofield and Ell a short time later; Cofield again promised to "take care of this;" and the graffiti was removed.

Following up on McNamara's suggestion about the videotapes, Edmands reviewed the tapes on November 15. However, the camera angle was such that, despite reviewing the tapes twice, Edmands still could not make any identification. Two days later, George Coblyn, Modern's equal employment opportunity officer, spoke with Edmands and asked her to give him a written statement concerning both the original peeping and tie wiring incident and the graffiti incident. She provided him with such a statement two weeks later. That statement contained no identification of either the perpetrators or of any potential witnesses. Coblyn also contacted employees and officials at Mohawk. They refused to provide him with any information concerning the identity of the perpetrator of either the peeping incident or the subsequent graffiti.

On November 23, Coblyn gave a brief presentation on the subject of sexual harassment, including a warning that sexual harassment would not be tolerated at the site, at a regular gathering of workers, managers, and union representatives referred to as "tool box talks."⁵ However, very few persons attended that particular tool box talk.⁶

Without Edmands's knowledge, her union initiated a grievance with respect to these incidents, and on December 7, she was called to attend a step one grievance meeting. In addition to various officials from Modern, the meeting was attended by the ironworkers' union business agent, Sonny Oliver; the ironworkers' steward, Jay Kennedy; and Roselli. Oliver, on behalf of the ironworkers, dominated the meeting.⁷ Oliver denied that anyone had peered into the toilet facility while Edmands was using it. He also insisted that the facility had been shut with a tie wire in order to prepare for its removal by a crane (a version contrary to Roselli's prior admission that he had tie wired the facility as a prank). McNamara repeated his request that Roselli be transferred off the project. At that, the ironworkers threatened to strike if Roselli were removed.

Oliver also raised issues concerning the cleanliness of the toilet facilities. There ensued some discussion concerning the security and cleaning of the facilities, resulting in a "general agreement" that certain of the toilets would be designated for exclusive use by female workers (instead of being entirely unisex, as they had been until that point), and that they would be separated from the men's toilets, set off by fencing, and secured with padlocks. However, from the date of the original November 3 incident onward, Edmands had opted to use the bathroom facilities at a building one-quarter mile away, and she continued to do so even after these additional security measures were later instituted.

Although unable to convince Mohawk to remove Roselli, and unable to uncover the identity of any other perpetrator, McNamara revised the work schedule at the site so that iron work would be done at a different location (some 500 to 700 yards from where Edmands worked) and on a different shift. Although Edmands still would encounter Roselli (and other ironworkers) at shift changes, she would not be working with ironworkers in the immediate vicinity.

McNamara had been skeptical of the efficacy of padlocking the newly-designated female toilet facilities, but he carried through with the ordering of separate facilities, the placement of signage, the installation of padlocks, and the issuance of padlock keys to female employees.⁸ Within a few weeks, the padlocks on the women's toilets disappeared. Some fencing was erected, but quickly...