Smith College v. Massachusetts Commission Against Discrimination

• Decision Date: 25 August 1978
• Citation: 380 N.E.2d 121,376 Mass. 221
• Parties: , 20 Fair Empl.Prac.Cas. (BNA) 1655, 18 Empl. Prac. Dec. P 8699 SMITH COLLEGE et al. 1 v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 121

380 N.E.2d 121

376 Mass. 221, 20 Fair Empl.Prac.Cas. (BNA) 1655,

18 Empl. Prac. Dec. P 8699

SMITH COLLEGE et al. ¹ v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued April 3, 1978.

Decided Aug. 25, 1978.

Barbara J. Rouse, Asst. Atty. Gen. (Robert H. Bohn, Jr., Asst. Atty. Gen. with her), for defendant.

Edward B. Hanify, Boston (Stephen B. Perlman, Eleanor D. Acheson and H. Reed Witherby, Boston, with him), for plaintiff.

Nancy Gertner and Betty Gittes, Boston, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

WILKINS, Justice.

In April, 1972, Maurianne Adams and Mary Carruthers, ² then assistant professors of English at Smith College (Smith), a private liberal arts college for women, each filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging unlawful discrimination in that she had not been recommended for tenure because of her sex. G.L. c. 151B, § 4. The result of these adverse tenure decisions was that Smith did not renew their teaching contracts which expired at the end of the 1972-1973 academic year.

Proceedings based on these complaints have followed a lethargic course, which might attract the attention of a modern Charles Dickens. A hearing on the complaints was held before a single commissioner of the MCAD on twelve days between January 16 and May 16, 1973. On December 30, 1974 (more than nineteen months after the close of the hearing), the single commissioner filed findings of fact and conclusions of law ruling in favor of Adams and Carruthers and ordering their reinstatement with tenure at the higher rank of associate professor and with back pay. ³ Almost a year later, on November 19, 1975 the full commission, acting on Smith's administrative appeal, affirmed the decision of the single commissioner with minor modifications. Smith then filed a petition for review. A judge of the Superior Court heard the case in the spring of 1977, ⁴ and, on July 18, 1977, he ruled in favor of Smith and directed the MCAD to dismiss the complaints with prejudice. We granted the parties' joint application for direct appellate review.

The delay in the resolution of these complaints is particularly unfortunate because we conclude that the proceedings must be returned to the MCAD for further consideration. Although the single commissioner made certain errors in her decision which were not corrected by the full commission, we do not agree with the judge that the complaints should be dismissed without affording the MCAD the opportunity to reconsider the evidence (and, in its discretion, to receive any additional evidence) and to make findings under proper legal standards.

Our function is to review the decision of the MCAD in accordance with the standards of review expressed in G.L. c. 30A, § 14. G.L. c. 151B, § 6. The conclusions of the Superior Court judge carry no special weight in our deliberations, although they will, of course, be considered. Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. ---, --- ^A, 355 N.E.2d 309 (1976). Courts must defer to an administrative agency's fact-finding role, including its right to draw reasonable inferences from the facts found. Id. Although the trial judge recognized the guiding legal principles, he failed to adhere to them in some respects. In a number of instances, he appears to have weighed the evidence and reached his own conclusions on the facts. The temptation to do so is great where the record contains substantial factual support for a result not reached by the agency, and where the agency decision contains seemingly prejudicial factual errors ⁵ and lacks a balanced analysis of the evidence. ⁶

Our focus must be on the action of the agency, and we must, therefore, disregard factual conclusions advanced for the first time in the MCAD's brief here and must view critically any legal theory now claimed to be supportive of the agency decision which was not part of the reasoning expressed in the MCAD's decision. In the circumstances of this case, we deal with the findings of fact made by the single commissioner and with her ultimate conclusions and rulings as the latter were modified by the full commission. ⁷

Adams was appointed an instructor in English at Smith in 1964, after an outstanding record as a student. In 1967, after receiving her doctoral degree, she was promoted to the rank of assistant professor in the English department. In 1970, she was given a three-year contract as an assistant professor. In the late winter of 1972, the English department, acting through its available tenured members, voted, seven-to-one, not to recommend Adams for tenure. The recommendations against tenure were made by men, and the sole recommendation for tenure was made by a woman.

Carruthers also was appointed an instructor in English at Smith in 1964, following a distinguished record as a student. She received a master's degree and a doctoral degree from Yale in 1965, and was promoted to the rank of assistant professor. After annual renewals, she received a three-year contract covering the academic years, 1970-1973. In the fall of 1971, she was advised that the English department would not recommend tenure for her and that her contract would not be renewed. The department's recommendation was unanimous, with seven men and one woman voting.

The procedures in effect at Smith concerning tenure required recommendations concerning tenure from senior tenured members of the department in which the concerned individual taught. Each departmental recommendation was presented to a committee on tenure and promotion, consisting of five tenured faculty members, the dean, and the president of the college. The committee's function was to review departmental tenure recommendations and to make its own assessment and recommendation to the college's board of trustees concerning tenure or promotion. The board of trustees has traditionally accepted the recommendations of the committee on tenure and promotion, but that committee has not always followed a department's recommendation. Although it seems that great weight was given to a department's recommendation, the committee made its own analysis of a tenure question. One man on the committee voted in favor of tenure for Adams. All other votes were against tenure. The woman on the committee voted against tenure for both. The president, who votes only in the case of a tie, did not vote.

In the cases of Adams and Carruthers, there is no evidence that the committee was influenced by considerations of sex, except as sex may have been a factor in the votes of individual members of the English department which led to that department's negative recommendations. The MCAD should have given greater attention than it did to the question whether sex was a determinative cause for Smith's decisions to deny tenure. If the decision of the committee on tenure and promotion as to either Adams or Carruthers in any event would have been negative despite her sex, that complainant failed to prove her case. ⁸ No doubt, an adverse departmental recommendation influenced by unlawful sex discrimination would make a favorable tenure decision by the committee less likely. On remand, any analysis of the decision of the committee must concentrate on whether the complainants proved that there were no independent, nondiscriminatory reasons for the committee's adverse determination. Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. ---, --- - --- ^B, 355 N.E.2d 309 (1976).

The single commissioner failed to recognize that, in cases involving disparate treatment of employees, proof of discriminatory motive is critical. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Sweeney v. Trustees of Keene State College, 569 F.2d 169, 174 (1st Cir. 1978). The parties have treated these complaints as alleging "disparate treatment" rather than "disparate impact." A case of disparate impact involves facially neutral practices which fall more harshly on one group than another. In such a case, discriminatory motive is not an essential part of the proof. See International Bhd. of Teamsters v. United States, supra. The full commission did not rectify the single commissioner's failure to focus on discriminatory motive, and, in fact, may have perpetuated that error. It is not surprising that, in this academic environment, there was no direct evidence of discrimination against either Adams or Carruthers individually on the basis of sex. For example, there was no substantial evidence that any member of the English department expressed, or admittedly applied, a stricter standard for women than for men in deciding tenure questions. However, although the fact of discriminatory motive must be proved, it can be inferred from differences in the treatment of two groups. ⁹ If a finding of discriminatory motive, based on disparate treatment between men and women in tenure decisions, is to be supported on this record, it will have to be based on reasonable inferences drawn from comparisons for which the decision of the single commissioner does not provide the necessary findings. See School Comm. of Chicopee v. Massachusetts Comm'n Against Discrimination, 361 Mass. 352, 354-355, 280 N.E.2d 404 (1972).

The single commissioner failed to consider the fact that Smith first became subject to G.L. c. 151B on July 24, 1969. St.1969, c. 216. Evidence of sex discrimination prior to that date, although perhaps relevant to prove a preexisting and continuing pattern of discrimination, must be considered carefully if it is to be used as a basis for a finding of discrimination after that date. See Hazelwood School Dist. v. United States, 433 U.S. 299, 309-310, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). The...