Radvilas v. Stop & Shop, Inc.

• Decision Date: 02 August 1984
• Citation: 466 N.E.2d 832,18 Mass.App.Ct. 431
• Parties: , 58 Fair Empl.Prac.Cas. (BNA) 1803 Phyllis C. RADVILAS v. STOP & SHOP, INC. et al. 1
• Court: Appeals Court of Massachusetts

Page 832

466 N.E.2d 832

18 Mass.App.Ct. 431, 58 Fair Empl.Prac.Cas.

(BNA) 1803

Phyllis C. RADVILAS v. STOP & SHOP, INC. et al. ¹

Appeals Court of Massachusetts Suffolk.

Argued April 10, 1984.

Decided August 2, 1984.

Frederick T. Golder, Boston, for plaintiff.

Richard J. Levin, Boston, for defendants.

Before ARMSTRONG, CUTTER and WARNER, JJ.

CUTTER, Justice.

Mrs. Radvilas (hereafter Radvilas) filed a complaint in the Superior Court against Stop & Shop, Inc. (S & S), and three of its employees alleging discrimination against her. Count I, in very general terms for the most part, asserted violations (sex and age discrimination) by S & S of G.L. c. 151B. Count II, in similar manner, charged discrimination against Radvilas in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (1976), and also under G.L. c. 12, § 11I. Count III charged pay practices discriminating against her under the Equal Pay Act, 29 U.S.C. §§ 206(d ) and 215(a ) (1976). At the close of Radvilas's evidence, a judge of a Juvenile Court, sitting in the Superior Court by designation, allowed the defendants' motions for directed verdicts. Radvilas appeals from judgments for the defendants and from the denial of her motion for a new trial. We conclude that the trial judge should not have granted S & S's motion for a directed verdict for it on Counts I and II. Otherwise the judgments are affirmed. The jury, on the evidence, would have been warranted in finding the facts summarized below. ²

Radvilas (at trial in 1983, 54 years old) was hired by S & S in 1968 as a "warehouse worker" at S & S's distribution center in Braintree. Her job at first was as one of a small number of employees receiving orders from S & S's retail stores and distributing garments to them. She then "went on to receiving." ³ She would "size the garments and hang them." She was a receiver until May, 1977, when she was made a grade 21 employee and a full-time supervisor assigned to the "part-time shift".

Radvilas worked in "the soft-lines area" and "took care of" that area on the part-time shift (as the only supervisor in that area) from 5 P.M. to 10 P.M., with the assistance of Frank Martin, a shift leader (grade 22) when she needed help. There were, on the same shift, Dan Devine, supervisor of "the soft lines, bulk area," and Alfred Bortolotti, supervisor of "the dock area." ⁴

In June, 1977, James Joyce came from the Readville facility to be assistant to Connor Maguire, then manager of S & S's Braintree facility. Shortly after Maguire introduced him to Radvilas, apparently before she was made a supervisor, Joyce made to her a coarse remark and occasionally other remarks of an offensive character. ⁵ Radvilas testified that she, because "ashamed," did not report the precise first remark to maguire or to other supervisors. When on one occasion she complained to Maguire about Joyce's manners, Maguire said that it was necessary to give Joyce time to adjust to a new area and that he was sure "in time ... Joyce will adjust." During the first week after Radvilas had been promoted to supervisor, Maguire called Joyce and Radvilas to his office and asked "Joyce if he would help ... [her] rather than degrade ... [her] and hinder" her on her job. Joyce replied that Radvilas "was doing the best ... [she] could" and "agreed that he would try to make ... [her] job easy." Radvilas testified that, as a result, there was no drastic change in the situation. Other complaints of allegedly improper or discriminatory treatment are summarized in the margin. ⁶

In October, 1978, Radvilas applied to Pavek, the district distribution manager of the Braintree, Readville, and New Haven warehouses, for transfer to fill a prospective vacancy on the day shift (7 A.M. to 3 P.M.) as "bulk" supervisor. Pavek made "no comment" on her inquiry but "listened." She testified that she had been "doing that job at night." The position was filled (in June, 1979, while she was on vacation) by Frank Lessard. He was a man of about thirty-seven, who "had worked in hard lines" for at least one well-known company apparently owning similar warehouse facilities. The transfer would have involved for Radvilas no difference in pay or benefits but different, longer hours of work. She never spoke to Pavek about the failure to appoint her but did speak to Frank Martin (grade 22) who had been her shift leader at night. He was the only supervisor, so long as Radvilas worked for S & S, who had "requested day [work] and got it."

Radvilas received various reviews of her work as supervisor, one after about six months and two in 1978. Both 1978 reviews described her, under the heading of "Overall Evaluation," as having overcome the obstacle of being the first woman supervisor, "a fact not accepted too well by some people who doubted she could do the job." One version of this appraisal, signed only by Maguire and Joyce, then described her as having "done an extraordinary amount of training ... [of] employees so that" her "shift is extremely efficient," as having "become an excellent supervisor," and as having "proved a woman can do the job as well as any man or better." The later review deleted this complimentary language and substituted, "She has done well in any task assigned to her and is rapidly becoming a good supervisor." ⁷ Both appraisals stated, "The biggest challenge Phyllis [Radvilas] will face ... is the ability to adjust to any situation that confronts her while performing her supervisory duties." ⁸

Maguire retired on July 27, 1979. On the following Monday, Nee (Maguire's successor) became manager of the warehouse. The supervisors were told "that there would be extended hours for the rest of the week" because the warehouse was "exceptionally busy." The supervisors were to be "working in the second shift from one-thirty [P.M.] to" midnight. Radvilas left the warehouse at 10 P.M. because (among other reasons) she had not brought an extra lunch with her. Bortolotti and Cullen, the other supervisors, as far as Radvilas knew, worked until midnight. Radvilas testified that she had not been given advance notice of the change in schedule. Either on that day or the next, she talked with Nee and Bortolotti and complained about various grievances ⁹ and "refused to work those hours along side the other supervisors ... [who] were [she claimed] making more money." Nee told Radvilas "that all supervisors were expected to work the same hours." She told him "[t]his was unfair" and that she "had no intention to work under those terms." She then said, "You can take the job and shove it but you will never hear the end of it," and she left the facility.

That afternoon Capozzi (see note 8, supra ) and his secretary came to her apartment. ¹⁰ Radvilas requested "a meeting with someone higher up in" S & S and Capozzi set up a long meeting with Donagan (see note 8, supra ), at which Radvilas told them her grievances. ¹¹ There was a second meeting at which both sides of her complaints were discussed. She said that she would go back to S & S only if she were paid $19,000 for nights and $18,500 for days, and S & S, "didn't come up with anything" with respect to what she had asked. She then added, "But we would have compromised."

The trial judge admitted in evidence against Joyce (who had not been summoned in behalf of Radvilas) certain answers filed by Joyce to Radvilas's interrogatories. ¹² The judge excluded part of Joyce's answer to an interrogatory which asked the names, addresses, and salaries, for each of the years 1977 through 1980, of all male supervisors. Joyce had listed these and had shown the grade of each such supervisor. Only a few grade 20 employees were thus listed. The others ranged at least from grade 21 to grade 25. The exhibit showed for each listed supervisor only the job title (usually not very informative), the facility at which the supervisor worked, the supervisor's grade, and the dates and amounts of salary changes. There was no showing in the answer of the duties and responsibilities of any position, of the prior experience and training of any listed supervisor, or of the hours during which the supervisor worked.

No foundation was laid for the propriety of a comparison between (a) the scanty description in the record of Radvilas's duties, responsibilities, experience, activities, and working conditions with (b) the same aspects of the work and qualifications of any male supervisor. No testimony was offered as to what the employment grades in S & S's compensation structure (e.g., 20, 21, 22, and above) meant or implied or what significance and salary effect S & S gave to longevity within any particular grade. The judge excluded the answer at least until Radvilas's counsel was prepared "before the trial is ended ... to compare apples with apples, rather than apples with oranges." He pointed out also that a company may reasonably come to the conclusion that certain supervisory capacities and positions are more important than others. ¹³

1. The principles governing whether there can be recovery, based upon sex discrimination, under G.L. c. 151B are discussed in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 355 N.E.2d 309 (1976), which (at 135 and note 5) adopts essentially the procedural requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 and note 13, 93 S.Ct. 1817, 1824 and note 13, 36 L.Ed.2d 668 (1973). Although the McDonnell Douglas case involved alleged racial discrimination, similar principles govern cases of sex (and old age) discrimination under G.L. c. 151B. See Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 229, 380 N.E.2d 121 (1978). Under the McDonnell Douglas case, 411 U.S. at 802, 93 S.Ct. at 1824, if the party alleging that he or she is the victim of discrimination establishes a prima facie case (the elements of which are discussed below), that preliminary proof causes a shift to...