Wynn & Wynn, P.C. vs. Massachusetts Commission Against Discrimination & another
Case Details
- Citation
- 431 Mass. 655
- Procedural Posture — the stage the case had reached
- appeal
- State
- Massachusetts
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Massachusetts Supreme Judicial Court affirmed the MCAD's determination that Wynn & Wynn unlawfully discriminated against Jill Carmichael on the basis of sex by failing to hire her as an associate attorney. The firm was ordered to pay damages for lost back wages and emotional distress.
Excerpt
Wynn & Wynn, P.C. vs. Massachusetts Commission Against Discrimination & another. Bristol. February 10, 2000. June 6, 2000. Present: Marshall, C.J., Abrams, Lynch, Greaney, Ireland, Spina, & Cowin, JJ. Administrative Law; Findings, Judicial review. Massachusetts Commission Against Discrimination. Practice, Civil, Jury trial, Retroactivity of judicial holding, Attorney’s fees, Costs. Constitutional Law, Trial by jury, Retroactivity of judicial holding, Sex discrimination. Anti-Discrimination Law, Sex, Employee, Burden of proof. Employment, Discrimination. Limitations, Statute of. Emotional Distress. The defendant in an action alleging unlawful gender discrimination in employment was not entitled to the retroactive application of the holding in Lavelle v. Massachusetts Commission Against Discrimination, 426 Mass. 332 (1997), upon raising the issue in a motion for new trial, where the defendant had failed to assert a jury claim in the case at a time when such a right was sufficiently developed and thus had not properly preserved the issue. [662-664] Discussion of the three-stage approach to proof of a discrimination claim [664-666] and of the mixed-motive analysis applicable to some discrimination claims [666-667], This court articulated the analysis to be applied beyond the threshold stage when a mixed-motive framework is invoked in a discrimination case. [668-670] In the circumstances of a claim of gender discrimination in employment in which the plaintiff demonstrated by direct evidence that discriminatory animus was a factor in the defendant’s decision not to hire her, the record of proceedings before a hearing officer of the Massachusetts Commission Against Discrimination supported his conclusion that, although the decision not to offer the plaintiff a position may have resulted “in part” from concerns about her performance, the defendant’s actions were motivated primarily by unlawful discriminatory animus. [667-668, 670-671] Claims of sexual harassment and disparate treatment were not timely filed within the six-month period specified in G. L. c. 151B, § 5, and did not relate back to the filing of the claimant’s original discrimination complaint, nor was there any equitable reason to toll the limitations period. [671-673] In a gender discrimination in employment claim, the hearing officer’s award of damages for emotional distress was fully supported by substantial evidence, and the damages were not greatly disproportionate to the injury proved, nor did they represent a miscarriage of justice. [675] An award of attorney’s fees in a proceeding before the Massachusetts Commission Against Discrimination was reasonable and not an abuse of discretion [675-676], and the commission properly considered attorney’s fees billed in quarter-hour increments [676], A hearing officer of the Massachusetts Commission Against Discrimination did not err in declining to award front pay in an employment discrimination case, where the amount was not reasonably ascertainable. [676-677] A claimant in a sex discrimination in employment case, prevailing on appeal, was entitled to an award of appellate attorney’s fees and costs. [677] Civil action commenced in the Superior Court Department on November 5, 1996. The case was heard by Richard J. Chin, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Douglas A. Hale for the plaintiff. Judith Ashton (Howard P. Speicher with her) for Jill Carmichael. Jerrold S. Levinsky (Christine E. Davio with him) for Massachusetts Commission Against Discrimination. Howard M. Brown, for Northeast Security, Inc., amicus curiae, submitted a brief. Jill Carmichael. Marshall, C.J. This is an appeal from a judgment of the Superior Court affirming a decision of the Massachusetts Commission Against Discrimination (MCAD or commission) that the law firm of Wynn & Wynn, P.C. (Wynn & Wynn or firm), discriminated against Jill Carmichael on the basis of her sex when it failed to hire her as an associate on her graduation from law school. G. L. c. 151B, § 4 (l). We determine that the judge in the Superior Court correctly concluded that Wynn & Wynn was not entitled to a jury trial. In addition, we conclude that the decision of the commission concerning the discriminatory failure to hire was supported by substantial evidence and was consistent with applicable law. See G. L. c. 30A, § 14 (7). We affirm the judgment in all respects. On May 18, 1992, Carmichael filed her discrimination complaint with the commission charging Wynn & Wynn with failure to hire her on the basis of her sex. On August 18, 1992, Carmichael alleged additional claims for sexual harassment and disparate treatment while she was employed as a law clerk. On December 1, 1992, the MCAD investigating commissioner found probable cause to credit all of Carmichael’s allegations. Conciliation efforts proved unsuccessful, and the matter was certified for a public hearing. In October and November, 1994, a four-day public hearing was held before an MCAD hearing officer. One year later, on November 16, 1995, the hearing officer issued her findings of fact and conclusions of law. She found in favor of Carmichael on her failure to hire claim, and awarded her damages for lost back wages and for emotional distress. She denied Carmichael’s claim for front pay, and dismissed as untimely her claims of sexual harassment and disparate treatment. Wynn & Wynn appealed to the commission, and Carmichael cross-appealed. On September 30, 1996, the commission affirmed the decision in all respects. The commission also concluded that Carmichael had “prevailed,” and awarded her attorney’s fees and costs. G. L. c. 151B, § 5. Wynn & Wynn filed a complaint for judicial review in the Superior Court, challenging the MCAD’s ruling that it had failed to hire Carmichael because of her sex, and the award of fees and costs. See G. L. c. 151B, § 6; G. L. c. 30A, § 14. Carmichael filed a counterclaim seeking to set aside so much of the commission’s decision as denied her damages for front pay and dismissed her sexual harassment and disparate treatment claims as untimely. In the alternative, Carmichael asked the judge to enforce the decision of the commission, and to award her attorney’s fees and costs. Both Wynn & Wynn and the commission moved to dismiss Carmichael’s counterclaim as an “appeal” that had not been filed within the requisite thirty-day filing period. See G. L. c. 151B, § 6; G. L. c. 30A, § 14 (1). A Superior Court judge denied their motions. Wynn & Wynn then filed a motion for judgment on the pleadings, as did Carmichael. The judge affirmed all aspects of the commission’s decision, and judgment entered on September 12, 1997. Wynn & Wynn and Carmichael filed timely appeals. Carmichael filed a motion for attorney’s fees and costs, which the Superior Court judge awarded. On December 23, 1997, we issued our decision in Lavelle v. Massachusetts Comm’n Against Discrimination, 426 Mass. 332 (1997), holding that in a discrimination case a respondent has the same right to a jury trial as a complainant after the MCAD has taken final action. On January 9, 1998, Wynn & Wynn moved to set aside the judgment of the Superior Court and for a jury trial, which the judge denied. Wynn & Wynn appealed from that decision. We transferred this case from the Appeals Court on our own motion, and treat the appeals as consolidated. 1. The commission decision. Under the State Administrative Procedure Act, we defer to the fact-finding function of the commission where substantial evidence exists to support its findings and there is no error of law. See G. L. c. 30A, § 14 (7); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 133 (1976). The employment decision adverse to Carmichael that the hearing officer concluded was unlawful was made at a meeting in April, 1991, following which Carmichael, then a law student employed as a law clerk at Wynn & Wynn, was told by a managing partner that there were no openings for an associate. We summarize the facts as determined by the hearing officer, supplementing her findings, as appropriate, with facts from the record on appeal. . Carmichael attended New England School of Law as a full-time student from September, 1988, to December, 1991. She passed the Massachusetts bar examination in February, 1992, and was sworn in as an attorney in June, 1992. In November, 1989, while she was a law student, Carmichael obtained a position as a law clerk at Wynn & Wynn in its Fall River office. Carmichael’s interview for that position was with Charles Murray, the managing partner of the Fall River office. During the interview she informed Murray that she was married, had a small child, and planned to have additional children in the future. Carmichael was not pregnant at the time: she was not asked to, nor did she, volunteer this information. She was hired and, within a few days, began work as a law clerk. Her second child was born on September 28, 1990, approximately ten months later. Throughout her tenure as a law clerk, Carmichael worked almost exclusively for William McKeon, an associate, later a partner, on a complex, multi-party litigation case, performing duties in the nature of paralegal work. During the academic year she worked approximately three days a week; during the summers she worked full time. We defer until later discussion the findings concerning Carmichael’s allegations of sexual harassment by McKeon. See part 4, infra. In March, 1991, Carmichael asked to meet with Murray to discuss a raise, which Murray authorized; he also agreed to ask any attorneys supervising her to submit written evaluations of her work. Later that month Carmichael told Murray that she wished to be considered for an associate position with Wynn & Wynn on her graduation from law school in December, 1991. He said he would do so. At Murray’s initiative, in April, 1991, Carmichael’s request to become an associate was discussed at a meeting of the attorneys in the Fall River office. The hearing officer found that Murray expressed concern that (in his view) Carmichael had failed to inform him that she was pregnant when he hired her as a law clerk; he felt this indicated a lack of forthrightness on her part. Three other attorneys, Catherine Murphy, Laurie Mullen, and William Kenney each testified, however, that during the meeting Murray stated “flatly” that he would not have hired Carmichael as a law clerk had he known that she was pregnant, and that Carmichael’s priorities were “elsewhere,” presumably with raising a family instead of the practice of law. They said, and the hearing officer found, that Murray informed the group that he was going to tell Carmichael that there was no position available. Murray denied making these statements, but the hearing officer did not credit his testimony. Three witnesses also testified that, after Murray made his comments, McKeon seemed shocked and stated, “I’m glad you said that and not me.” The hearing officer found that, although Murray told Carmichael that there were no openings, another law clerk was under consideration as an associate attorney. Moreover, three months later Murray hired a new associate, Gary Vancini, a Rhode Island lawyer with less than one year of legal experience. Carmichael immediately confronted Murray, who insisted that Vancini was in a different category. In August, 1991, Carmichael met with Attorney Kevin O’Malley, who supervised the firm’s law clerk program. He informed her that her evaluations were excellent, that there was “not a black mark on them,” but that, due to the hiring of Vancini, there was no position available in Fall River. Carmichael was again upset. Even then she sent a copy of her resume to the firm’s named partner at its main office and asked to be considered for a position at any Wynn & Wynn office. When Carmichael left Wynn & Wynn in November, 1991, shortly before her graduation, she had heard nothing about her request. The hearing officer found that until March, 1992, Carmichael had no reason to believe that her earlier pregnancy had anything to do with the decision not to hire her. A chance encounter with William Kenney, who by then had left the firm, led her to speak to Laurie Mullen and Catherine Murphy. They relayed to her the events of the April, 1991, meeting at which Carmichael’s future at the firm had been discussed. Carmichael filed her discrimination charge shortly thereafter. The hearing officer made detailed findings concerning Wynn & Wynn’s explanation of its failure to hire Carmichael as an associate attorney. First, it said Carmichael’s performance as a law clerk had been unacceptable. The hearing officer reviewed the testimony of various attorneys who had worked with Carmichael, credited some, and discredited others. She found that Carmichael had never received substantive negative feedback during her entire employment at the firm, and that Murray’s evaluation of Carmichael was not credible and was tainted by sexism. Wynn & Wynn also claimed that Carmichael had not been offered an associate’s position because no entry-level position existed at the time. The hearing officer found otherwise: shortly after the adverse employment decision (April, 1991), Murray had in fact hired associate Gary Vancini. The hearing officer also found that when associates Mullen and Murphy left the firm in February, 1992, Carmichael was not offered either of their positions; she found those associates were “replaced by male attorneys.” Until the spring of 1992, Carmichael continued to believe that an attorney position would be offered to her if one became available. The hearing officer concluded that Carmichael had demonstrated “by direct evidence” that discriminatory animus was a “factor” in the decision not to hire her. She pointed to the array of witnesses who had testified credibly that Murray, the managing partner “ultimately responsible” for Carmichael’s hiring, had said he would inform Carmichael that there were no available openings in the face of evidence to the contrary. The hearing officer concluded that Wynn & Wynn’s failure to hire Carmichael as an attorney was the result of a determination “tainted by sex discrimination.” The decision, she said, may have resulted “in part” from concerns about Carmichael’s performance, but the unlawful considerations were the “real reason” Carmichael was not offered a position. Murray, she concluded, was responsible for the decision not to hire Carmichael, and his expressed opinions with respect to her pregnancy “reveal a bias that tainted his estimation of her potential as an attorney and that was the primary factor influencing his decision not to offer her a position.” The hearing officer also concluded that the conduct of McKeon and Murray pointed to “a pervasive attitude of sexism” that existed in the Fall River office; see part 4, infra. 2. Right to jury trial. Wynn & Wynn seeks retroactive application of our decision in Lavelle v. Massachusetts Comm’n Against Discrimination, 426 Mass. 332 (1997). The judge in the Superior Court denied the firm’s motion for a new trial, reasoning that retroactive application of Lavelle to this case was not appropriate under the standards of McIntyre v. Associates Fin. Servs. Co. of Mass., 367 Mass. 708, 712 (1975). He further concluded that, even if a new trial was warranted,'Wynn & Wynn had failed to preserve its right to a jury. We agree, but for somewhat different reasons. Prior to our decision in MacCormack v. Boston Edison Co., 423 Mass. 652, 657 (1996), we applied the three-factor analysis described in McIntyre v. Associates Fin. Servs. Co. of Mass., supra, to determine whether a rule should have retroactive application. In MacCormack, we concluded that the “issue of retroactivity may be resolved more simply.” MacCormack v. Boston Edison Co., supra at 656. To eradicate “selective temporal barriers” to the application of claims under our State Constitution in civil cases, we determined that we would give retroactive effect to a new constitutional rule, such as Lavelle, to all litigants with live claims, i.e., those litigants with cases still open on direct review. MacCormack v. Boston Edison Co., supra at 656-658. In Lavelle we applied the rule recognizing the right of a respondent in a discrimination case to a jury trial to the parties before us. See Lavelle v. Massachusetts Comm’n Against Discrimination, supra at 339. Because this case was pending on direct review at the time Lavelle was decided, it is appropriate to give retroactive effect here to that holding. But that is not the end of our inquiry because Carmichael and the commission insist that Wynn & Wynn did not, in any event, preserve its right to a jury trial. We have recognized that it would be manifestly unfair to conclude that a party waived a constitutional issue by failing to raise it before the theory on which its argument is premised “has been sufficiently developed to put him on notice that the issue is a live issue.” Commonwealth v. Bowler, 407 Mass. 304, 307 (1990). See Commonwealth v. Stokes, 374 Mass. 583, 587-588 (1978). We, therefore, must determine whether a respondent’s right to a jury trial was sufficiently developed when Wynn & Wynn could have, but did not, assert that right. We have little hesitancy in concluding that it was. The right to a trial by a jury is recognized in art. 15 of the Massachusetts Declaration of Rights. See also Mass. R. Civ. R 38 (a), 365 Mass. 800 (1974) (right of trial by jury “shall be preserved to the parties inviolate”). Presented with any claim to a trial by jury in a discrimination case under G. L. c. 151B, we consistently have recognized that right as sacred. See MacCormack v. Boston Edison Co., supra at 655 (extending the right to trial by jury to claims for unlawful retaliation); Whalen v. NYNEX Info. Resources Co., 419 Mass. 792, 794-795 (1995) (plaintiff constitutionally entitled to trial by jury for claim of employment discrimination based on physical handicap); Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 226 (1994) (“plaintiff is constitutionally entitled to a trial by jury for her claim of employment discrimination based on sex”). Our decision in Lavelle was the inevitable jurisprudential step that followed Dalis and MacCormack’, we had not intimated in any respect that a respondent in a discrimination case had no such right. Wynn & Wynn argues that it could not have asserted a jury claim before Lavelle because its right had not been recognized. But that is exactly what was done in every other case in which the right to a jury trial in a discrimination case was at issue: the party asserting the right properly preserved the issue. See Lavelle v. Massachusetts Comm’n Against Discrimination, supra at 334; MacCormack v. Boston Edison Co., supra at 654; Dalis v. Buyer Advertising, Inc., supra at 221. See also Whalen v. NYNEX Info. Resources Co., supra at 792-793;'Dean v. Springfield, 38 Mass. App. Ct. 910, 911 (1995). It required no clairvoyance to anticipate the conclusion we reached in Lavelle. Indeed, Wynn & Wynn seems to have anticipated it; it acknowledges that it intended to seek a right to a jury trial from the appellate court on appeal. The Superior Court judge was correct to conclude that Wynn & Wynn waived its right to a jury trial. 3. The discriminatory failure to hire. Wynn & Wynn’s challenge to the conclusion that it unlawfully failed to hire Carmichael may be succinctly summarized. Carmichael had the burden, it argues, to prove as part of her “prima facie” case that there was an opening for an entry-level associate attorney. Even if the hearing officer correctly concluded that Wynn & Wynn’s reasons were a pretext, it continues, Carmichael faced a further “insurmountable hurdle”: to prove as part of her prima facie case that a male entry-level associate was actually hired in her place. Wynn & Wynn misapprehends our law. In cases involvin
Similar Rulings
Browse Related
Facing something similar at work?
Court rulings like this one are useful, but every situation is different. Take 2 minutes to see which laws may protect you — it's free, private, and no account is required to start.
This ruling information is sourced from public court records via CourtListener.com. Case outcomes, claim types, and summaries are extracted using AI analysis and may be incomplete or inaccurate. It is provided for informational and educational purposes only and does not constitute legal advice.
See something wrong, or named in this ruling and want it corrected or redacted? Request a correction.