DeRoche v. Massachusetts Commission Against Discrimination

William DeRoche vs. Massachusetts Commission Against Discrimination & another. Middlesex. April 6, 2006. June 12, 2006. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Employment, Discrimination, Retaliation. Emotional Distress. Anti-Discrimination Law, Employment, Age, Attorney’s fees. Damages, Emotional distress, Interest, Attorney’s fees. Massachusetts Commission Against Discrimination. Interest. Governmental Immunity. Massachusetts Tort Claims Act. Practice, Civil, Attorney’s fees. Evidence in a civil action for damages based on a municipal employer’s unlawful retaliation against the plaintiff employee for filing a complaint alleging age discrimination in violation of G. L. c. 151B, § 4, did not support an award for emotional distress. [7-9] This court announced that prejudgment interest may properly be imposed on a damages award under G. L. c. 15 IB against a public employer, where the Legislature has expressed its intention, manifest through a natural and ordinary reading of the statute, that sovereign immunity with respect to the imposition of interest on a G. L. c. 151B damage award has been waived [9-11]; therefore, such interest was properly awarded in a civil action for retaliatory discrimination against a municipal utility company, which was, as a department of the town, a public entity [11-14]. A Superior Court judge acted well within his authority in modifying an award of back pay by the Massachusetts Commission Against Discrimination (commission) to include an assessment of interest in conformity with the statutory rate of twelve per cent provided for in G. L. c. 231, § 6B, where the commission had denied interest based on an error of law [14-15]; nevertheless, the plaintiff was not entitled to prejudgment interest on his front pay award [15], and there was no justification for calculating the back pay interest from a date that preceded the unlawful retaliatory conduct on which the action was premised [15-16]. This court concluded that the language of G. L. c. 151B, § 5, providing that a prevailing party before the Massachusetts Commission Against Discrimination (commission) is entitled to reasonable costs and attorney’s fees, supports an award of reasonable attorney’s fees and costs to a prevailing plaintiff in an administrative appeal pursuant to G. L. c. 151B, § 6 [16-18]; accordingly, a plaintiff who succeeded in defending a favorable decision from the commission appropriately made a motion in the Superior Court requesting such fees and costs, and a judge in that court could consider an award compensating the plaintiff for expenses incurred in connection with those issues on which the plaintiff prevailed in the Superior Court [18-19]. Civil actions commenced in the Superior Court Department on October 15 and October 17, 2003. After consolidation, the cases were heard by Geraldine S. Hines, J., on motions for judgment on the pleadings, and a motion for attorney’s fees and costs was heard by Stephen E. Neel, J. The Supreme Judicial Court granted an application for direct appellate review. Nicholas J. Scobbo, Jr. (Ann Ryan-Small with him) for Wake-field Municipal Gas & Light Department. Seth H. Hochbaum for the plaintiff. Beverly I. Ward for Massachusetts Commission Against Discrimination. The following submitted briefs for amici curiae: Thomas F. Reilly, Attorney General, & Peter Sacks, Assistant Attorney General, for the Commonwealth. James S. Weliky for National Employment Lawyers’ Association, Massachusetts Chapter. Wakefield Municipal Gas & Light Department (department). Greaney, J. This appeal arises out of a decision by the Massachusetts Commission Against Discrimination (commission) that the Wakefield Municipal Gas & Light Department (department) unlawfully retaliated against the plaintiff for filing a complaint with the commission claiming that the department had discriminated against him on the basis of his age in violation of G. L. c. 151B, § 4 (4). The commission ordered the department to pay the plaintiff damages in the amount of $260,000, including $50,000 to compensate him for emotional distress, but failed to provide for interest on the damages. The plaintiff and the department both sought judicial review of the commission’s decision pursuant to G. L. c. 151B, § 6. After a hearing in accordance with standards set forth in G. L. c. 30A, § 14, a judge in the Superior Court entered a judgment affirming the commission’s determination that the department had committed retaliatory employment action and the commission’s award of damages, and, in addition, declaring that interest be assessed on the damages. A second judge in the Superior Court denied the plaintiff’s motion for reasonable attorney’s fees and costs for services performed during the G. L. c. 30A proceedings in the Superior Court. Both parties have appealed. The department does not contest its liability under G. L. c. 15IB, but claims that the judge lacked authority to assess interest on the damages awarded the plaintiff and, further, that the award of $50,000 in damages for emotional distress is unsupported by the plaintiff’s evidence. The plaintiff, in turn, asserts his entitlement to reasonable attorney’s fees and costs incurred in connection with successfully defending the commission’s decision before the Superior Court. We allowed the plaintiff’s application for direct appellate review and, for reasons set forth in this opinion, conclude that the plaintiff is entitled to (1) no damages for emotional distress for the department’s retaliatory conduct; (2) prejudgment interest, at the rate of twelve per cent per annum, assessed on the damages for back pay, calculated from May 6, 1996, the date of the retaliatory conduct, until June 1, 2005, the date judgment entered in his favor; and (3) reasonable attorney’s fees and costs incurred during the appeal to the Superior Court of the commission’s award in connection with those issues on which he ultimately prevailed. We remand the case to the Superior Court for modification of the judgment in accordance with this opinion. The background of the case may be summarized as follows. The department is a municipal electric department established by the voters of the town of Wakefield (town), pursuant to G. L. c. 164, § 34, to operate the light plant owned by the town. The plaintiff was employed at the department from 1950 until 1993, when he retired (believing that his retirement was mandatory) at age sixty-five. The town retirement board processed the plaintiffs application for retirement without informing him that, due to a change in the public employee retirement statute, G. L. c. 32, he was not required to retire until he was seventy years of age. Approximately two years later, a manager at the department notified the plaintiff of the change in G. L. c. 32. The plaintiff responded to this unexpected news, first, by requesting a financial settlement to compensate for his premature retirement and, later, by requesting from the department reinstatement to his former position and reimbursement of lost wages and overtime pay. The plaintiff sought answers from the department and the retirement board as to how such a mistake could happen, but his attempts to pinpoint responsibility in the matter proved fruitless. On February 15, 1996, the plaintiff filed a complaint with the commission alleging that the town retirement board and the department had “forced” his retirement, thereby unlawfully discriminating against him on account of his age, in violation of G. L. c. 151B. In response to the plaintiff’s complaint, the department offered to reinstate the plaintiff to his former position. The plaintiff returned to work in May, 1996, but resigned, after only one day, on learning that he had been assigned to the position of lead lineworker in a line crew, which was a more dangerous and physically demanding position than the one he left in 1993, which was lead lineworker in a home service crew. The plaintiff then amended his complaint with the commission to add a claim of retaliation. After a hearing, a commission hearing officer determined that the department’s failure to inform the defendant that he was not required to retire at age sixty-five did not constitute discrimination under G. L. c. 151B, but that the department’s conduct in assigning the plaintiff to the line crew rather than the home service crew on his May, 1996, return to employment was adverse action in retaliation for the plaintiff’s having filed a complaint with the commission. The hearing officer ordered the department to pay the plaintiff compensatory damages in the sum of $260,000, representing $210,000 in damages for back and front pay and $50,000 in damages for emotional distress. Under the authority of a decision of the Appeals Court, see Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234 (1995), the hearing officer denied the plaintiff’s request to assess interest against the department. On appeal to the full commission, brought by both the department and the plaintiff, the hearing officer’s decision was affirmed in all respects. Both the department and the plaintiff sought judicial review of the commission decision, and the cases were consolidated in the Superior Court. The department challenged the commission’s finding of retaliation and its award of emotional distress damages. The plaintiff appealed from that part of the order which denied the assessment of interest on the award. Prior to the hearing before the judge in the Superior Court, the commission, which had taken the position that the department’s status as a public entity rendered it exempt from paying interest on damages awarded under G. L. c. 151B, joined the plaintiff’s efforts to reverse its own decision on that point. Considering the parties’ motions for judgment on the pleadings, a judge in the Superior Court affirmed the commission’s decision that the department had retaliated against the plaintiff and its award of damages. The judge, however, reversed the commission’s decision with respect to the imposition of interest, based on her determination that the department is not a public entity and, therefore, not protected by principles of sovereign immunity. Accordingly, the judge denied the department’s motion for judgment on the pleadings and allowed the plaintiff’s motion for judgment on the pleadings with respect to the assessment of interest on the damages award of front and back pay. The department’s motion for reconsideration of the judge’s order was denied, and the department thereafter filed an appeal from the judge’s orders. The judge subsequently issued a “corrected judgment on finding of the court” clarifying that the department is to pay the plaintiff the sum of $308,890.40 (the total sum awarded by the commission, representing $210,000 in front and back pay damages, $50,000 in emotional distress damages, and $48,890.40 for reasonable attorney’s fees and costs, see note 4, supra), with interest in the amount of $290,119.80 (reflecting a rate of twelve per cent assessed on the total amount of damages from February 15, 1996, to June 1, 2005), and ordering postjudgment interest to accrue from and after June 1, 2005 (the date the original judgment entered). The plaintiff filed a motion for attorney’s fees and costs incurred in connection with the G. L. c. 30A review of the commission’s decision. This motion was considered by a second judge in the Superior Court who, after a hearing, concluded that there is no statutory authority for the award of the requested fees. The plaintiff appealed from the denial of his request for reasonable attorney’s fees and costs, and as has been mentioned, we granted the plaintiffs application for direct appellate review. 1. We first address the commission’s award of $50,000 in emotional distress damages. In Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 575-577 (2004), we clarified the standards governing an award by the commission for damages to compensate a plaintiff for emotional distress caused by an employer’s discriminatory conduct and enumerated factors a reviewing judge should consider in determining whether such an award may stand. A critical point expressed in our Stonehill decision was that a finding by the commission of discrimination, or retaliation, is insufficient by itself, as matter of law, to permit an inference of emotional harm. See id. at 576, citing Equal Employment Opportunity Commission: Policy Guide on Compensatory and Punitive Damages under 1991 Civil Rights Act (July 7, 1992), reprinted in Fair Empl. Prac. Man. (BNA) 405:7091-405:7102. We emphasized that emotional distress, to be compensable, must be proved by substantial evidence of the emotional suffering that occurred, as well as substantial evidence of a causal connection between the complainant’s emotional distress and the respondent’s unlawful act. See id. at 576-577. Factors to be considered include “(1) the nature and character of the alleged harm; (2) the severity of the harm; (3) the length of time the complainant has suffered and reasonably expects to suffer; and (4) whether the complainant has attempted to mitigate the harm (e.g., by counseling or by talcing medication).” Id. at 576. The factual basis for emotional distress damages awarded by the commission must be clear on the record, and a reviewing judge must set aside (or remit to an appropriate amount) awards that are not supported by substantial evidence. See id. at 576-577; G. L. c. 30A, § 14. An emotional distress damage award may not be imposed as a substitute for punitive damages (which the commission is not authorized, under G. L. c. 15IB, § 5, to award). See id. at 575-576. The hearing officer found that the plaintiff, his wife, and his daughter presented “sincere, credible, and compelling” testimony about the emotional impact on the plaintiff resulting from his original retirement in September, 1993. The plaintiff described his work at the department as “his whole life.” His wife testified that the plaintiff “dreaded” the approach of his sixty-fifth birthday and was “shattered” that he had to give up his job after forty-three years when he did not feel physically or mentally ready to retire. The plaintiff’s daughter used the words “despondent,” “devastated,” and “very depressed” to describe the plaintiff in the days leading up to his retirement. She stated that her father, on learning of the mistake that had occurred with respect to his mandatory retirement age, was “brokenhearted” and “couldn’t understand and still can’t understand how (a) something like this could happen and (b) no one could give him an explanation.” According to his wife, the plaintiff felt “devastated” and “angry” at the manner in which the department and the retirement board “shuffled him back and forth” and described the plaintiff’s outrage that he was not treated with dignity or respect after forty-three years of service to the department. The plaintiff testified that his attempts to assign responsibility, and obtain redress, for the mistake, made him feel like a “yo-yo going back and forth.” When asked specifically how he felt on being assigned to the line crew, the plaintiff responded, “I just couldn’t understand the line of reasoning.” The department argues that this evidence does not support the commission’s award of $50,000 in damages for emotional distress. We agree. The award appears to be a classic example of what the principles set forth in our Stonehill decision were intended to discourage. The evidence presented at the hearing with respect to the plaintiff’s distressed emotional state relates either to emotions experienced by the plaintiff in the months and weeks leading up to his impending retirement in 1993, or to the plaintiff’s reaction after being informed of the mistake, in the fall of 1995, and lacks any causal connection with the finding of retaliation against the department. According to the plaintiff’s testimony, his over-all health had been exemplary since 1996. The plaintiff stated that he never had to seek medical help, or take medicatian, for symptoms related to emotional distress. There was no testimony that the plaintiff experienced physical manifestations of distress, such as loss of appetite or difficulty in sleeping, or that the plaintiff was compelled to curtail his life activities in any way due to stress from the department’s retaliatory action. The only evidence offered by the plaintiff on his mental state after his assignment to the line crew in May, 1996, was his testimony that he “couldn’t understand” the reasoning that led to the assignment. This testimony falls far below the factual basis for an emotional distress award deemed sufficient in our Stonehill decision and cannot constitute substantial evidence to support the commission’s determination that such an award was warranted. The commission’s award of emotional distress damages, therefore, cannot stand. 2. We next address the department’s challenge to the imposition of interest on the damages awarded the plaintiff. In Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234, 245-246 (1995), the Appeals Court recognized that G. L. c. 15IB is silent on the subject of interest on awards against the Commonwealth or its instrumentalities. Relying on decisions of this court addressing the issue of interest under the Massachusetts Tort Claims Act, G. L. c. 258, see Onofrio v. Department of Mental Health, 411 Mass. 657, 659 (1992), and under the statute providing compensation to victims of violent crimes, G. L. c. 258A, see Gurley v. Commonwealth, 363 Mass. 595, 600 (1973), the Appeals Court held that interest could not permissibly be imposed on an award under G. L. c. 15 IB against a public entity. See Boston v. Massachusetts Comm’n Against Discrimination, supra. In a later case, Salem v. Massachusetts Comm’n Against Discrimination, 44 Mass. App. Ct. 627 (1998), the Appeals Court reiterated the rule, explaining that the rule “presents an application of the doctrine of sovereign immunity.” Id. at 646. On appeal, the commission and the plaintiff take the position that the Boston decision was wrongly decided and that G. L. c. 151B, § 5, creates a waiver of sovereign immunity with respect to interest. The department, on the other hand, argues that (a) it is a public entity, and (b) therefore, not subject to the assessment of interest under G. L. c. 151B; but (c) to the extent that interest may be assessed, it should not be computed at twelve per cent, but at the floating interest rate set forth in G. L. c. 231, § 61, and (d) should be calculated only on that portion of the damage award representing back pay and (e) from the date of the retaliatory action and not from the date that the plaintiff filed his original complaint with the commission. (a) We agree with the department that it is a public entity. The citizens of the town voted to create the department, G. L. c. 164, § 55, and the department’s board of commissioners (board) is comprised of members elected by those same citizens. Id. It is the town that owns the light plant that the department operates. G. L. c. 164, § 34. The manager of the department, who has “full charge of the operation and management of the plant,” is appointed by the board. G. L. c. 164, § 56. The Legislature has specifically placed the department in the class of entities subject to the Tort Claims Act, thereby reflecting its view that the department is in that class of entities afforded the protections of sovereign immunity. See G. L. c. 258, § 1 (“[pjublic employer” means “any . . . town . . . and any department . . . thereof . . . including a municipal gas or electric plant”). The department is subject to the requirements of G. L. c. 39, § 23B (open meeting law), and G. L. c. 66, § 10 (public records statute), which apply only to public entities. See G. L. c. 39, § 23A. Se