Pielech v. Massasoit Greyhound, Inc.

• Citation: 423 Mass. 534,668 N.E.2d 1298
• Parties: , 71 Fair Empl.Prac.Cas. (BNA) 1145, 68 Empl. Prac. Dec. P 44,187 Kathleen PIELECH & another 1 v. MASSASOIT GREYHOUND, INC. 2
• Decision Date: 20 August 1996
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1298

668 N.E.2d 1298

423 Mass. 534, 71 Fair Empl.Prac.Cas. (BNA) 1145,

68 Empl. Prac. Dec. P 44,187

Kathleen PIELECH & another ¹ v. MASSASOIT GREYHOUND, INC. ²

Supreme Judicial Court of Massachusetts, Bristol.

Argued Nov. 7, 1995.

Decided Aug. 20, 1996.

Howard A. Brick, Boston, for Anti-Defamation League.

Joel A. Kozol (William I. Cowin with him), Boston, for defendant.

Harvey A. Schwartz, for Kathleen Pielech & another, submitted a brief.

Nancy J. Gannon, of Wisconsin, for amicus curiae Catholic League For Religious and Civil Rights.

Howard A. Brick, Sally J. Greenberg and Carl E. Axelrod, and Ruth L. Lanser, Steven Freeman and Debbie N. Kaminer of New York, for amicus curiae Anti-Defamation League.

Scott Harshbarger, Attorney General, and Freda K. Fishman, Assistant Attorney General, for amicus curiae, Attorney General.

Toni G. Wolfman, Michael A. Albert, and Sarah R. Wunsch for, amicus curiae, Civil Liberties Union of Massachusetts.

Wilson D. Rogers, Jr., Frederic J. Torphy, James F. Cosgrove, and John A. Egan, for amicus curiae, Roman Catholic Archbishop of Boston & others.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH, O'CONNOR, GREANEY and FRIED, JJ.

O'CONNOR, Justice.

The plaintiffs, former at-will employees of the defendant corporation, seek damages based on their assertion that the defendant required them, as a condition of their continued employment, to work on Christmas Day in contravention of their "creed or religion as required by that creed or religion" in violation of G.L. c. 151B, § 4(1A) (1994 ed.). The plaintiffs also claim entitlement to relief under G.L. c. 93, § 102 (1994 ed.) (Massachusetts Equal Rights Act). The plaintiffs moved for summary judgment and the defendant filed a cross motion for summary judgment as to liability. A Superior Court judge allowed the defendant's motion and denied that of the plaintiffs. The plaintiffs appealed, and we granted their application for direct appellate review. We affirm the judgment for the defendant, although our reasoning differs from that of the Superior Court judge.

The following undisputed facts are established by the summary judgment materials: The plaintiffs were employed by the defendant as part-time parimutuel clerks at the Raynham-Taunton Greyhound Track. On December 18, 1992, the defendant posted a notice informing all regularly scheduled employees that they would be required to work on Christmas night, Friday, December 25, 1992. The plaintiffs were regularly scheduled to work on Fridays, but requested Christmas off to observe the holiday. The defendant denied their requests. The plaintiffs failed to appear for work on December 25. The parties differ as to whether they were "terminated" or "suspended." In any event, they suffered "adverse action" for purposes of c. 151B, § 4(1A).

In addition, the plaintiffs submitted affidavits that at the relevant time they were devout members of the Roman Catholic Church and that, as such, their religious beliefs prohibited them from working on Christmas. The question whether abstinence from work on Christmas was required by Roman Catholic dogma was also the subject of affidavits given by two Roman Catholic priests, one of which was submitted by the plaintiffs and the other of which was submitted by the defendant. The affidavit submitted by the defendant essentially stated that Roman Catholics are obligated to attend one mass celebrated between 4 P.M. on December 24 and 1 P.M. on December 25, and that the church neither prohibits its members from working on Christmas nor requires them to worship on Christmas night. The priest's affidavit submitted by the plaintiffs said that "[o]n Sundays and other holy days of obligation the faithful are ... to abstain from those labors and business concerns which impede the worship to be rendered to God, the joy which is proper to the Lord's Day, or the proper relaxation of mind and body." That affidavit also cited the following statement from The Catholic Encyclopedia as authoritative:

"Church law forbids servile work on Sundays and holy days of obligation, but exceptions are made for those functions that are necessary for the well-being of society, or for those who must support their family or to maintain their livelihood."

"Based on the authorities provided by the parties, [the motion judge] rule[d]" as follows: "Catholic dogma does not require worshippers to abstain from working on Holy days. The only requirement the church absolutely imposes upon its followers is to attend mass. Plaintiffs were not denied the opportunity to attend mass, and therefore, plaintiffs cannot establish that they were forced to forgo a practice required by their religion. The fact that plaintiffs wished to further observe the Christmas holiday does not constitute a religious requirement. See Lewis v. Area II Homecare for Senior Citizens, Inc., [397 Mass. 761, 772, 493 N.E.2d 867 (1986) ]. As plaintiffs' claim for violation of G.L. c. 151B, [s] 4(1A) fails, so too must their claims premised on G.L. c. 93, [s] 102." (Emphasis in original.)

General Laws c. 151B, § 4(1A), provides in pertinent part the following:

"It shall be unlawful discriminatory practice for an employer to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate, or [forgo] the practice of, his creed or religion as required by that creed or religion including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or holy day and the employer shall make reasonable accommodation to the religious needs of such individual.... The employee shall have the burden of proof as to the required practice of his creed or religion."

This court construed G.L. c. 151B, § 4(1A), in Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 771, 493 N.E.2d 867 (1986). We held, "The statute does not deal with the full panoply of religious beliefs, practices, preferences, and ideals.... The application of the statute is much more narrow. It prohibits an employer from requiring an employee, as a condition of employment, to violate or forgo the practice of her religion as required by that religion. It follows that the threshold showing an employee must make is whether the activity sought to be protected is a religious practice and is required by the religion." (Emphasis in original.) Id. at 771-772, 493 N.E.2d 867. Later, in Kolodziej v. Smith, 412 Mass. 215, 588 N.E.2d 634 (1992), in which the plaintiff sought damages and other relief "on the ground that the defendants made her retention of employment conditional on her forgoing the practice of her 'creed or religion as required by that creed or religion' in violation of G.L. c. 151B, § 4(1A)," id. at 216, 588 N.E.2d 634, we held that the judge in the Superior Court had correctly directed verdicts for the defendants on that claim. We reasoned as follows:

"In Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 771, 493 N.E.2d 867 (1986), we observed that this 'statute does not deal with the full panoply of religious beliefs, practices, preferences, and ideals,' but focuses instead on required religious practices. The plaintiff produced no evidence that the defendants' condition for her continuing as controller, attendance at the seminar, required her to miss any religious service or to compromise her faith. There was no evidence that Roman Catholic dogma forbade her attendance at the seminar." (Emphasis in original.) Id. at 221, 588 N.E.2d 634.

The plaintiffs' brief in the present case states that "[t]his appeal presents a direct challenge to this Court's recent interpretations of c. 151B, § 4(1A), which hold that the only religious beliefs protected by the employment discrimination statute are those that are required by the dogma of an established religion. This interpretation of the statute denies protection to employees whose sincere religious beliefs differ from the established dogma of their religion or are not accepted as dogma by any religion. Such an interpretation violates the Establishment Clause of the First Amendment to the United States Constitution and Article 2 of the Declaration of Rights." The plaintiffs' contention that, in Lewis v. Area II Homecare for Senior Citizens, Inc., supra, and Kolodziej v. Smith, supra, this court misconstrued c. 151B, § 4(1A), is based entirely on their argument that, so construed, the statute is unconstitutional. The plaintiffs then conclude as follows:

"To salvage the constitutionality of the statute it must be applied broadly to protect holders of all religious beliefs, not just those who follow the dogma of an established religion. Applied in that manner, since the plaintiffs have proven that the dictates of their own consciences and their religious beliefs founded on those dictates prohibited them from working on what to them was the most holy day of the year, and since their employer fired them for refusing to violate their religious beliefs, they were entitled to summary judgment as to liability."

No question concerning the constitutionality of c. 151B, § 4(1A), was raised in Lewis or Kolodziej. That question is presented to this court for the first time in this case. As we shall explain later in this opinion, we agree that G.L. c. 151B, § 4(1A), as construed by this court in those cases, and as we construe it in this case, is unconstitutional. We do not agree with the plaintiffs, however, that the appropriate remedy is for us to interpret the statute as "protect[ing] holders of all religious beliefs, not just those who follow the dogma of an established religion." Instead, we conclude that the plaintiffs' reliance on that statute, unconstitutional as it is, is unwarranted.

"[S]tatutes are to be construed so as to avoid an unconstitutional result or the likelihood thereof," Adamowicz v. Ipswich, 395 Mass. 757, 763-764, ...