Sarni Original Dry Cleaners, Inc. v. Cooke

• Decision Date: 04 April 1983
• Citation: 388 Mass. 611,447 N.E.2d 1228
• Parties: , 49 Fair Empl.Prac.Cas. (BNA) 1503, 32 Empl. Prac. Dec. P 33,662 SARNI ORIGINAL DRY CLEANERS, INC. v. Ronnie Lee COOKE et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1228

447 N.E.2d 1228

388 Mass. 611, 49 Fair Empl.Prac.Cas. (BNA) 1503,

32 Empl. Prac. Dec. P 33,662

SARNI ORIGINAL DRY CLEANERS, INC. v. Ronnie Lee COOKE et al. ¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 10, 1982.

Decided April 4, 1983.

Donald L. Conn, Woburn, for plaintiff.

Brian Rogal, Boston, for Mass. Com'n Against Discrimination.

Barbara J. Rouse, Boston (Mark S. Swartz, Boston, with her), for Ronnie Lee Cooke.

Before HENNESSEY, C.J., and NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

On September 12, 1975, Ronnie Lee Cooke filed a complaint with the Massachusetts Commission Against Discrimination (commission) alleging that he had been terminated from his employment with Sarni Original Dry Cleaners, Inc., ² because of his race and color, in violation of G.L. c. 151B, § 4(1). ³ A public hearing was held before a single member of the commission. The decision of the hearing Commissioner on October 25, 1978, found a violation of law on the part of Sarni Original Dry Cleaners, Inc., and ordered Sarni to reimburse Cooke for all lost wages since the termination, plus interest, minus all sums earned by Cooke since the termination. ⁴ Sarni appealed to the full commission, which affirmed the decision of the hearing Commissioner on February 15, 1980.

Thereafter, Sarni filed a complaint in the Superior Court seeking reversal of the decision of the commission on matters of law. The matter was argued before a Superior Court judge on a motion for summary judgment filed jointly by the commission and Cooke. On May 6, 1982, the judge issued a memorandum of decision and order allowing the motion for summary judgment, and a judgment affirming the decision of the commission. Sarni appealed, and this court granted direct appellate review on the petition of the commission and Cooke. We affirm.

The facts as found by the hearing Commissioner are as follows. Sarni Original Dry Cleaners, Inc., is a Massachusetts corporation engaged in the dry cleaning business, having its principal place of business in Boston. Cooke, a black male, was employed by Sarni as a delivery truck driver from July to September, 1975. Sarni operated sixteen stores and three dry cleaning plants in the Boston area during the relevant period. As a normal part of his duties, Cooke made four deliveries a day to Sarni's store in South Boston. On one occasion early in September, 1975, during his third daily delivery to the South Boston store, a group of three or four youths, eight to ten years of age, threw rocks at the truck which Cooke was driving. There was no evidence that the truck or its contents were damaged, that the incident was racially motivated, or that the youths could see that the driver of the truck was black. The incident lasted only a few moments, did not interfere with Cooke's duties, did not injure him, and did not cause him to feel that he was in any danger.

Cooke reported the incident to Sarni upon returning to the plant. Cooke returned to the South Boston store once that afternoon, and four times each day for several days thereafter without further trouble. As a result of his personal observation during this period, Cooke believed that his job was in jeopardy. Three or four days after the incident, Cooke spoke to Sarni about switching routes with the driver of Sarni's other truck, or at least switching stores with the other driver. Cooke would then deliver to the Harbor Towers store instead of the South Boston store. Sarni denied both requests without explanation. During this period, a white man named Mark regularly drove Sarni's second truck. Since Mark's attendance was sporadic, Rubin McRae, a black man, filled in for him on the second truck on those days when Mark was absent. When not driving the truck, McRae performed different tasks inside the plant.

At some point following the stone-throwing incident, Sarni discussed the incident with certain persons at a gasoline station in South Boston. An attendant there told Sarni that the incident had happened at the gasoline station, that the youths had attempted to tip the truck over, and that if Cooke came back there would be trouble. The actual incident took place more than a block away from the station. Sarni did not discuss the incident with Cooke. Approximately five days after the incident, Sarni offered Cooke one week's pay if he would resign. This offer was made after Sarni had denied Cooke's offer to switch either the routes or the stores on the routes. Cooke refused this offer and Sarni fired him. After Cooke's termination, a white man was hired to drive the route which included the South Boston store. Sarni admitted he would not have hired a black man to replace Cooke.

The Commissioner concluded that Cooke had established that he was the victim of overt racial discrimination by showing that a similarly-situated white driver would not have been fired.

In affirming the decision of the hearing Commissioner in all but one respect (the award for emotional distress), the full commission filed a twenty-four page decision in which it emphasized the importance of the case and described the issues as follows: "[U]nder what circumstances, and according to what standard of review [may] an employer ... restrict or deny the employment opportunities of a person of one race, because of perceived safety problems posed by anticipated racial attacks[?]"

1. Judicial review of the decision of the commission is in accordance with the standards expressed in G.L. c. 30A, § 14, and G.L. c. 151B, § 6. Chapter 30A, § 14(7)(e ) (as appearing in St.1973, c. 1114, § 3), implements, inter alia, the "substantial evidence" test as a measure of agency decisions.

The burden of proof as to the unlawfulness of the challenged act or practice must be carried by the employee. Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 137, 355 N.E.2d 309 (1976). The employee is assigned the threshold burden of establishing a prima facie case, after which the burden of production shifts to the respondent to articulate a legitimate, nondiscriminatory reason for its action, and to "produce credible evidence to show that the reason or reasons advanced were the real reasons." Id. at 138, 355 N.E.2d 309. The burden of proving that the asserted nondiscriminatory reason was a pretext rests upon the employee. Thus, proof of a prima facie case establishes that, in the absence of other and lawful explanation, the challenged employment decision was based on impermissible and discriminatory factors in violation of G.L. c. 151B. See Smith College v. Massachusetts Comm'n Against Discrimination, 376 Mass. 221, 229, 380 N.E.2d 121 (1978); Trustees of Forbes Library v. Labor Relations Comm'n, --- Mass. ---, --- n. 4, Mass.Adv.Sh. (1981) 2183, 2189 n. 4, 428 N.E.2d 124.

Cooke has clearly established a prima facie case of racial discrimination. A member of a racial minority, he was qualified for, and worked successfully as, a delivery truck driver. He was discharged, and a white man was hired to drive his route. Sarni has, in fact, admitted that it would not have hired a black man to replace Cooke. The commission accepted Sarni's stated reason (safety considerations) as real, and not a pretext. However, we disagree with Sarni's characterization of that reason as nondiscriminatory. Rather, we agree with the commission's conclusion and reasoning: "While [Sarni] argues that his reason was concern for the safety of the truck and driver, this safety concern was a general management objective, not a reason for the specific action in this case. In attempting to achieve that management objective, Sarni used a criterion for determining what type of driver was likely to be safe or unsafe. That criterion was the 'determinative cause,' Smith College [supra 376 Mass. at 226, 380 N.E.2d 121], and was admittedly and exclusively racial. Unlike possible nondiscriminatory reasons (such as poor driving record, excessive absenteeism), Sarni's decisional criterion was facially improper. His reason was necessarily linked to [c]omplainant's race" (footnote omitted).

In similar cases, the employer's neutral reason, although genuine and not a pretext, was held to be discriminatory where the reason was directly linked to a protected classification. In Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), female employees were required to pay more than was required of male employees into a pension fund. This requirement was based on actuarial studies showing a longer life expectancy for women. Because gender had been used in computing...