Rock v. Massachusetts Commission Against Discrimination

• Citation: 424 N.E.2d 244,384 Mass. 198
• Parties: , 41 Fair Empl.Prac.Cas. (BNA) 1351, 27 Empl. Prac. Dec. P 32,163 Harvey R. ROCK et al. 1 v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION.
• Decision Date: 04 August 1981
• Court: United States State Supreme Judicial Court of Massachusetts

Page 244

424 N.E.2d 244

384 Mass. 198, 41 Fair Empl.Prac.Cas. (BNA) 1351,

27 Empl. Prac. Dec. P 32,163

Harvey R. ROCK et al. ¹ v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION.

Supreme Judicial Court of Massachusetts, Hampden.

Argued April 6, 1981.

Decided Aug. 4, 1981.

James B. Krumsiek, Springfield (Bart J. Gordon, Springfield, with him), for plaintiffs.

Anne H. Taylor, Newton Highlands, for defendant.

Jerry E. Benezra, Melrose, and Arthur M. Marshall, Springfield, for Westinghouse Elec. Corp., intervener.

Anthony P. Sager, Asst. Atty. Gen., for the Attorney General, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and BRAUCHER, LIACOS, ABRAMS and NOLAN, JJ. ABRAMS, Justice.

In this age-discrimination-in-employment case the plaintiffs, three former employees of the intervener Westinghouse Electric Corporation (Westinghouse), filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging that Westinghouse had engaged in an unlawful practice under G.L. c. 151B, § 4(1), inserted by St. 1946, c. 368, § 4, ² by offering early retirement benefits to former employees who were over fifty-five years of age in July, 1970, but not to former employees who were between the ages of forty and fifty-five in July, 1970. After a hearing, a Commissioner ordered Westinghouse to make the early retirement program available to "each member of the class." ³ Westinghouse appealed to the full commission. The full commission concluded that Westinghouse's offer of early retirement benefits to workers who were over age fifty-five at the time of a plant close-down was not an unlawful practice under G.L. c. 151B, § 4(1), and dismissed the complaint.

The plaintiffs brought a complaint in Superior Court, seeking judicial review of the MCAD decision. G.L. c. 151B, § 6. G.L. c. 30A, § 14(7). Westinghouse intervened as a defendant and filed an answer. A Superior Court judge reserved and reported the case without decision, and we granted the parties' joint application for direct appellate review. Mass.R.A.P. 11, 365 Mass. 854 (1974). G.L. c. 211A, § 10. We agree with the MCAD's conclusion that the plaintiffs' complaint should be dismissed. ⁴

The parties stipulated to the following facts. For a number of years prior to 1971, Westinghouse operated a facility in East Springfield, Massachusetts. On or before November 23, 1970, Westinghouse announced its intention to close that facility. As a result, a substantial number of employees, including the plaintiffs, were laid off during 1970 and 1971. The plaintiffs had been employed for varying amounts of time, ranging from fifteen to thirty-six years, and all had rights in a noncontributory pension plan. Each of the plaintiffs was at least forty, but younger than fifty-five years of age, at the time his employment was terminated due to the closing of the facility. Terminated employees who were age fifty-nine or older at the time of the close-down were entitled immediately to early retirement benefits under the company pension plan, but workers younger than fifty-nine were not eligible to receive pension benefits until age sixty-five.

The complainants were members of the International Union of Electrical, Radio and Machine workers, AFL-CIO (union), and were covered by a collective bargaining agreement at the time their employment was terminated. In June, 1973, the union and Westinghouse entered into a new collective bargaining agreement that amended the pension plan to include a provision that an employee who had attained the age of fifty-five and was laid off as a result of a facility's closing would immediately qualify for early retirement benefits. The new agreement became effective on July 1, 1973, and did not apply to the 1971 closing of the East Springfield plant.

During the 1973 labor negotiations, Westinghouse had made a commitment to the union to "do something" for the former workers affected by the East Springfield layoffs. On August 1, 1973, Westinghouse elected to make available certain of the early retirement benefits ⁵ to former East Springfield employees who were at least age fifty-five at the time of the plant's closing, but not to those who were under age fifty-five at that time.

The discrimination issue. The critical question is whether Westinghouse's voluntary plan is an unlawful practice under G.L. c. 151B, § 4(1). The commission found that those employees between ages forty and fifty-five did not lose a benefit to which they were entitled or for which they had some reasonable expectation. The commission found that the early retirement program placed no additional hardship (other than the hardship of the plant close-down) on the younger workers, and was consistent with its 1973 national contract. It concluded that there was no unlawful discrimination against the younger workers within the meaning of G.L. c. 151B, § 4(1).

The commission found that there was nothing in the statute or the legislative history to suggest that the statute must be read as prohibiting Westinghouse's plan in the absence of any loss, due to age discrimination, of a benefit to which the plaintiffs were entitled. The commission determined that there is no language in the statute which suggests that all workers between the ages of forty and sixty-five must be given parity, without proof of identifiable injury, to a reasonably expected benefit. The commission found that the plaintiffs' failure to prove loss of a reasonably expected employment benefit was fatal to their case. ⁶ Finally, the commission concluded that its interpretation of the statute was consistent with analogous Federal authority, and with the history and purposes of G.L. c. 151B. There is no error.

In Massachusetts, legislative concern with the problems of older workers dates back to 1934 when the Legislature authorized a special commission to study employment discrimination against older persons. Resolves 1934, c. 39; Resolves 1935, c. 33. In 1937, following two reports of the study commission (1935 House Doc. No. 1875; 1937 House Doc. No. 33), the Labor and Industries statute, G.L. c. 149, was amended, adding a definition of age discrimination in employment, ⁷ and declaring that dismissing or refusing to hire a person between the ages of forty-five and sixty-five on the ground of age was "against public policy" (G.L. c. 149, § 24A). The Department of Labor and Industries was granted authority to investigate complaints of discrimination and assess limited penalties. ⁸ General Laws c. 149, §§ 24C-24K, inserted by St. 1937, c. 367, § 2. ⁹ These provisions were a response to the study's findings that older workers were "being discarded for younger, more vigorous men and women," 1935 House Doc. No. 1875, at 11, and that "(t)he principal discrimination in employment on account of age (is) in the hiring of new employees." 1937 House Doc. No. 33, at 7, 8.

The penalties to the employer described in c. 367 proved to be of little benefit to the older worker, and therefore, the General Court enacted St. 1950, c. 697, "An Act relative to discrimination against employees and persons seeking employment between forty-five and sixty-five years of age." See MCAD, A Study of the Employment Problems of the Older Worker (1965), at 35-36. Chapter 697 amended G.L. c. 151B, which dealt with unlawful discrimination on the basis of race, color, religious creed, national origin, or ancestry. Discrimination on the basis of age was added to the list of unlawful practices. G.L. c. 151B, § 4, as amended by St. 1950, c. 697, §§ 6-8. "Age" was defined as including "any person between the ages of forty-five and sixty-five." G.L. c. 151B, § 1 Eighth, inserted by St. 1950, c. 697, § 2.

In 1966, the statute was amended further to reduce the lower end of the protected class to age forty. St. 1966, c. 405. In proposing this amendment, Governor Volpe focused on the problems facing older workers seeking employment: "(A)ge 40 probably represents the initial entry of the factor of age discrimination into our economic life. Each additional year makes obtaining employment more difficult. Desperation and even real tragedy are often reached long before the age of 55." 1966 House Doc. No. 3677, at 2.

"When the meaning of any particular section or clause of a statute is questioned, it is proper, no doubt, to look into the other parts of the statute; otherwise the different sections of the same statute might be so construed as to be repugnant, and the intention of the legislature might be defeated. And if, upon examination, the general meaning and object of the statute should be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to the spirit of the act." Holbrook v. Holbrook, 1 Pick. 248, 250 (1823). See Commissioner of Corps. & Taxation v. Dalton, 304 Mass. 147, 150, 23 N.E.2d 147 (1939).

In this case the MCAD found that the legislative history of age discrimination provisions showed a legislative concern for older workers who were injured by termination, downgrading, or a refusal to hire, based solely on age. Therefore, the commission determined in this case that the Legislature intended that the plaintiffs prove some harm to them due to age and that in the absence of proof of such injury there is no unlawful practice. G.L. c. 151B, § 4(1). We defer to the agency's interpretation of its governing statute. "(A)n administrative interpretation of a statute is accorded deference particularly, 'where, as here, an agency must interpret a legislative policy which is only broadly set out in the governing statute.' " School Comm. of Wellesley v. Labor Relations Comm'n, 376 Mass. 112, 116, 379 N.E.2d 1077 (1978), quoting from School Comm. of Springfield v. Board of Educ., 362 Mass. 417, 442, 287 N.E.2d 438 (1972). Massachusetts Elec. Co. v. Massachusetts Comm'n Against Discrimination, 375 Mass. 160, 169-170, 375 N.E.2d 1192 (1978).

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