New York and Massachusetts Motor Service, Inc. v. Massachusetts Com'n Against Discrimination
| Decision Date | 19 January 1988 |
| Docket Number | No. HD-4428,HD-4428 |
| Citation | 401 Mass. 566,517 N.E.2d 1270 |
| Parties | , 49 Fair Empl.Prac.Cas. (BNA) 1267, 47 Empl. Prac. Dec. P 38,356 NEW YORK AND MASSACHUSETTS MOTOR SERVICE, INC. v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION et al. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Mark I. Zarrow, Worcester, for plaintiff.
Gerald R. Hegarty, Springfield, for James A. Mislak.
Leslie B. Greer, Braintree, for Massachusetts Com'n Against Discrimination.
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.
New York and Massachusetts Motor Service, Inc. (New York-Mass), appeals from a judgment of the Superior Court affirming a determination of the Massachusetts Commission Against Discrimination (commission) that New York-Mass discriminated against the complainant, James A. Mislak, on the basis of his religion, and awarding Mislak lost wages and interest. New York-Mass argues four grounds for reversal that: (1) the decision of the commissioner, as affirmed by the full commission, was not supported by substantial evidence; (2) G.L. c. 151B, § 4(1A) (1986 ed.), may not constitutionally require an employer to bear more than a de minimis cost in attempting reasonably to accommodate an employee's religious needs, and New York-Mass was required to bear more than a de minimis cost; (3) the procedure for adjudication of discrimination claims under G.L. c. 151B, §§ 5 and 9, violates an employer's right to equal protection of the laws; and (4) the commission committed error in determining damages. We affirm in part and remand in part.
On December 9, 1981, Mislak filed a verified complaint with the commission alleging that his employer, New York- discriminated against him on the basis of his religion in violation of G.L. c. 151B, § 4(1A), and Title VII of the Civil Rights Act of 1964. Mislak alleged that New York-Mass denied his repeated requests for a leave of absence from October 13 to October 20, 1981, in order to observe holy days of his religious institution, the Worldwide Church of God. Mislak further alleged that New York-Mass subsequently terminated his employment for observing his holy days.
The investigating commissioner found probable cause to credit the allegations in Mislak's complaint. After a hearing, the single commissioner found that New York-Mass had discriminated against Mislak on the basis of his religion. The single commissioner ordered New York-Mass to pay Mislak the wages he lost as a result of his termination, as well as interest thereon at a rate of twelve per cent per annum from the date the complaint was filed until the date payment was made. New York-Mass appealed to the full commission, which affirmed the single commissioner's decision with some modifications. 2 New York-Mass sought review in the Superior Court. The judge affirmed the commission's decision and order. We granted New York-Mass's application for direct appellate review.
We summarize the facts found by the single commissioner and adopted by the full commission. James Mislak resides in Chicopee, and is a member of the Worldwide Church of God. His former employer, New York-Mass, is a corporation engaged in the freight-delivery business in Springfield and in New York City. New York-Mass is owned by Paul A. Dubrey, Jr., who also serves as New York-Mass's president and treasurer. Dubrey operates the business jointly with his father, Paul A. Dubrey, Sr. Mislak began work as a truck driver for New York-Mass in May, 1979.
Mislak joined the Worldwide Church of God in August, 1975. Members of the Worldwide Church of God observe the Sabbath from sundown on Friday until sundown on Saturday, during which time they may not work. Church members observe several holy days on which work is forbidden: the Days of Unleavened Bread, 3 Pentecost, the Feast of Trumpets, the Day of Atonement, the Feast of Tabernacles, and the Last Great Day. The Feast of Tabernacles lasts eight days, of which the last is the Last Great Day. During the Feast of Tabernacles, church members are required to leave their homes, and "go to a specific location where God has said his name." Church members are forbidden to work on the eight days of the Feast of Tabernacles, and are required to attend four hours of church services daily.
When he was hired by New York-Mass in May, 1979, Mislak informed Paul Dubrey, Sr., that he would be unable to work from sunset Friday until sunset Saturday. Dubrey told Mislak that New York-Mass could work around his Sabbath observance. New York-Mass accommodated Mislak's needs by getting him off the road before sundown. In the fall of 1979, Mislak requested vacation time corresponding to the Feast of Trumpets, the Day of Atonement, and the Feast of Tabernacles. Mislak did not inform his employer that the requested time was needed for his religious observances. New York-Mass granted the request. In 1980, Mislak requested time off to observe all of that year's holy days. 4 That request was granted. In 1981, Mislak did not have to request vacation for the spring holy days, because they fell on days he was not scheduled to work. In March or April, however, Mislak marked the company vacation calendar for September 29 (Feast of Trumpets), October 8 (Day of Atonement), October 13-19 (Feast of Tabernacles), and October 20 (the Last Great Day). Mislak informed Paul Dubrey, Jr., that he needed the vacation days in order to observe his holy days; Dubrey informed Mislak that he could take September 29 and October 8, but that he could not take vacation for the week of October 13 through October 20.
Dubrey told Mislak that it was company policy that only one employee take vacation at a single time and that two employees, Clarence and George Babcock, were already scheduled to take vacation during that week. Clarence Babcock had requested vacation from October 13 through October 30, and George Babcock had requested vacation from October 19 through October 30. The Babcocks had longer tenure at New York-Mass than did Mislak. Dubrey told Mislak that he could not have the requested week off unless he worked it out with the Babcocks. Mislak approached George Babcock about the vacation problem, but because Babcock and his father (Clarence) planned to attend a family reunion in Texas, Mislak did not ask them to switch weeks.
Several weeks later, Mislak spoke with Paul Dubrey, Jr., offering his two weeks' vacation pay so that New York-Mass could hire a replacement driver for the six days in question. Dubrey again informed Mislak that he could not have the time off. Subsequent to this conversation, in June, 1981, Mislak obtained a request for excused absence from his minister and presented it to Paul Dubrey, Jr. The minister's letter informed Dubrey that Mislak was required to be on Cape Cod for the religious observances. Dubrey again refused to grant Mislak the requested time off, citing another employee's need to drive his wife to Boston for chemotherapy every Monday, and another employee's need to go to court for divorce proceedings one day each week.
Sometime in October, Mislak again spoke with Paul Dubrey, Jr., about the vacation time; Dubrey told Mislak that he might be able to take one or two days off, but that he would not be able to take the entire week. On the evening of October 10 (a Saturday), Mislak went to the office to check the schedule for the coming week. Finding that he was scheduled to work October 13, Mislak called Paul Dubrey, Sr., at home and informed him that he could not work that day. Dubrey responded by telling Mislak that if he kept the holy day, he would lose his job. Mislak did not report for work during his holy days, and when he returned to work on the evening of October 21, the Dubreys informed him that he no longer had a job.
In her order, the commissioner found that (1) New York-Mass could reasonably have accommodated Mislak's religious needs by redistributing Mislak's runs among the remaining drivers; and (2) New York-Mass applied a stricter standard to Mislak's request for time off than it did to similar requests of other employees. The commissioner noted that Mislak requested the time off six months in advance, allowing New York-Mass substantial time to arrange an accommodation for Mislak. The commissioner credited Paul Dubrey, Jr.'s testimony that New York-Mass needed twelve drivers to operate its business, but found that the company had fourteen drivers available during the week ending October 10, 1981, and thirteen available during the weeks ending October 17, 24, and 31, 1981. The commissioner also found that New York-Mass, a nonunionized company, had flexibility in reassigning drivers and other employees.
The commissioner also found inconclusive the evidence presented to demonstrate that New York-Mass was unable to fill all its orders during the period of Mislak's absence. The commissioner found that during the weeks when Mislak, the Babcocks, and other employees were absent, the company earned more revenue than during any other weeks from September 5 to November 28, 1981, with the exception of one week in November. Moreover, although New York-Mass had thirteen drivers working during the weeks ending October 17 and 31, 1981, the number of hours worked during those weeks totalled 418.40 and 601.51 respectively. The commissioner concluded from this fact that the number of drivers working was not solely determinative of the amount of hours worked.
The commissioner found that, although New York-Mass purported to enforce a one-man-off vacation policy, the policy was applied selectively. The commissioner noted that both Clarence and George Babcock were allowed to be away from October 16 through October 30; that another employee was permitted to take off each Monday during that same period in order to take his wife for chemotherapy treatments; that a different employee was allowed to take off October 20 to attend to legal business; and that...
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