Ramsdell v. Western Massachusetts Bus Lines, Inc.

• Decision Date: 30 June 1993
• Citation: 615 N.E.2d 192,415 Mass. 673
• Parties: , 62 Fair Empl.Prac.Cas. (BNA) 547 Jill RAMSDELL v. WESTERN MASSACHUSETTS BUS LINES, INC., & others. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 192

615 N.E.2d 192

415 Mass. 673, 62 Fair Empl.Prac.Cas. (BNA) 547

Jill RAMSDELL v. WESTERN MASSACHUSETTS BUS LINES, INC., & others.¹

Supreme Judicial Court of Massachusetts Hampshire.

Argued May 6, 1993.

Decided June 30, 1993.

Richard M. Howland, Amherst (Jean M. Fielding, Greenfield, with him), for plaintiff.

Philip J. Shine, Springfield, for Western Massachusetts Bus Lines, Inc., & others.

Jerrold S. Levinsky, Springfield, for Massachusetts Com'n Against Discrimination.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

The plaintiff, Jill Ramsdell, appeals from a judgment of the Superior Court upholding a decision and order of the Massachusetts Commission Against Discrimination (MCAD) to dismiss her complaint against her employer for alleged sexual discrimination. ² We transferred the case here on our own motion. We affirm.

In her complaint filed in July of 1986, the plaintiff alleges three distinct counts of sexual discrimination: sexual harassment, unequal pay, and denial of a promotion. A hearing commissioner heard the evidence in July of 1988. Two and one-half years later, the commissioner finally issued her decision. The commissioner found no substantial evidence to support the plaintiff's claims and ordered the charges be dismissed. The plaintiff appealed to the full commission which affirmed the decision.

We begin our discussion by summarizing the facts as found by the hearing commissioner. Jill Ramsdell was hired by Western Massachusetts Bus Lines, Inc., a Massachusetts corporation, in March of 1982. She began working as a charter clerk, processing charter orders and scheduling buses. Ramsdell reported directly to John Herlihy, the president and chief operating officer.

The hearing commissioner found the environment "rife with sexually explicit language and sexual innuendos." Witnesses testified that the language in the office was "rough" and abounding with raw sexual banter. A nude male calendar hung on the wall, and Herlihy's wife, together with at least one female employee, brought sexually explicit jokes to the office and distributed them freely.

Lewd conduct persisted at social gatherings as well. At Herlihy's fortieth birthday party, the entire staff presented him with a box of "gag" gifts including sexually explicit paraphernalia. The employees contributed to hire a professional belly dancer for a male employee's birthday. At still another birthday, cakes in the form of a naked male and female were presented respectively to a female employee and to Herlihy. Ramsdell participated each time. At another event, employees, including Ramsdell, constructed for Herlihy a costume dubbed "U.S. Sex Express."

Focusing on Herlihy, the commissioner found that he had repeatedly asked Ramsdell to perform sexual favors and addressed her using sexually explicit language and profanity. Ramsdell responded in kind. These vulgar conversations often occurred in the presence of others. Ramsdell testified that at one point Herlihy chased her and pinned her up against a garage wall. However, because this testimony was contradicted by another eyewitness, the commissioner did not credit Ramsdell's account. Herlihy also made derogatory references to women in general.

Focusing on Ramsdell, the commissioner found that she "invited" or provoked these bawdy exchanges. At least one witness testified that the profanity and vulgarity began with Ramsdell's arrival. Ramsdell herself admitted to using extremely vulgar and profane language in the workplace and to participating in sexual jokes. For Herlihy's fortieth birthday, she inscribed the words, "to tickle your fancy," on a facsimile of male genitals as part of his gag gift. Once, after work, she and two other female employees followed Herlihy into a men's room and stared at him. More than once she pinched his buttocks and shouted, "Got 'ya, cutie!" She even grabbed his genitals in the presence of his wife and another employee. On one occasion she yanked down his jogging pants.

Ramsdell was promoted to sales manager in 1983. Her promotion broadened her responsibilities. She expressed interest in the general sales manager position. Herlihy, however, hired a male from outside the company to fill that particular position. At this point, Ramsdell filed a complaint alleging sexual discrimination. Prior to that hiring decision, Herlihy himself had filled the position of general sales manager and had removed Ramsdell from some of her supervisory functions due to her poor performance. Her employee evaluations for that period reflected her shortcomings. The commissioner concluded that Herlihy did not offer Ramsdell the promotion because he believed in good faith that she was not qualified.

At some point, Ramsdell discovered that her weekly salary was less than her male counterpart at the Longueil Bus Company. The commissioner found that the discrepancy was justified by the man's experience, customer base, and greater responsibilities. She concluded that there was no sexual discrimination involved.

The commissioner found that Ramsdell's distress was not a result of her workplace environment. Although Ramsdell testified that the alleged harassment began right after she started work in 1982, she chose not to file a complaint until four years later. The commissioner found that Ramsdell was "a willing and active participant and often the prov[o]cateur" in creating the atmosphere described above.

We shall affirm a decision and order of the MCAD unless the findings and conclusions are unsupported by substantial evidence or based on an error of law. G.L. c. 151B, § 6 (1990 ed.). G.L. c. 30A, § 14(7) (1990 ed.). College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 170, 508 N.E.2d 587 (1987), and cases cited. Because of our limited role, we "must defer to an administrative agency's fact-finding role, including its right to draw reasonable inferences from the facts found." Smith College v. Massachusetts Comm'n Against Discrimination, 376 Mass. 221, 224, 380 N.E.2d 121 (1978). Credibility is an issue for the commissioner and not for this court. Trustees of Deerfield Academy v. Director of the Div. of Employment Sec., 382 Mass. 26, 31-32, 413 N.E.2d 731 (1980). In this case, we conclude that the MCAD's decision and order finds substantial support in the evidence and that there was no error of law.

1. Sexual harassment. We held in College-Town, supra at 162, 508 N.E.2d 587 that sexual harassment may constitute a violation of G.L. c. 151B, § 4(1), which prohibits employment discrimination on the basis of gender. We recognized that "[a] work environment pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization, poses a formidable barrier to the full participation of an individual in the workplace." Id. General Laws c. 151B, § 1(18) (1990 ed.) defines "sexual harassment" as "sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a ) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b ) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. Discrimination on the basis of sex shall include, but not be limited to, sexual harassment." There are no allegations that submission to sexual requests or the like was ever a condition or quid pro quo of Ramsdell's employment, either explicitly or implicitly; therefore, we shall focus on the definition under § 1(18)(b ). The commissioner found that "there is no credible evidence that the work...