Discrimination Cases

Joseph R. Anderson & others vs. Commonwealth Employment Relations Board & another. No. 07-P-1286. January 23, 2009. Civil Service, Fire fighters. Fire Fighter. Labor, Fair representation by union. Over ninety other retired Boston fire fighters. Formerly the Labor Relations Commission. Boston Firefighters Local 718, International Association of Firefighters, AFL-CIO, CLC, intervener. Plaintiffs, a number of retired members of the International Association of Firefighters, Local 718, AFL-CIO (union), appeal from a final order of the Commonwealth Employment Relations Board (board) dismissing their charges that the union committed a breach of its duty of fair representation in violation of G. L. c. 150E, § 10(b)(1). We affirm. 1. Background. The plaintiffs are more than ninety retired union members who filed a claim with the board alleging that the union committed a breach of its duty of fair representation in violation of G. L. c. 150E, § 10(b)(1), by negotiating a collective bargaining agreement (CBA) with the following sick leave provision: “[T]he City agrees that on a one-time basis, for those employees . . . on the Department payroll as of September 1, 2001, he/she shall receive seventy-two (72) hours of sick time credited to his/her sick leave bank for each calendar year or fractions thereof ... of actual service, commencing on his/her date of appointment to the Department. “Notwithstanding the effective date of this Article, the Sick Leave Redemption at Retirement or Death Provision shall be effective September 1, 2001.” The plaintiffs all retired before September 1, 2001. They contend that the quoted provision disadvantages them because they, unlike active duty firefighters, cannot receive the extra seventy-two hours of sick leave. The plaintiffs claim that the provision discriminates against them on the basis of age or disability and that the union violated its duty of fair representation in negotiating it.* The board dismissed the plaintiffs’ charge without a hearing, citing lack of probable cause to believe that the union violated G. L. c. 150E, § 10(A)(1). The board concluded that the sick leave provision did not, without more, warrant the inference that the union had improper discriminatory motivations in negotiating the CBA, especially in light of other CBA provisions that benefited the plaintiffs. See part 2, infra. The board also concluded that it had no jurisdiction over matters of internal union governance like those contained in the union’s constitution. After the plaintiffs filed a request for reconsideration, the board affirmed the dismissal. The plaintiffs appeal from that final order, claiming that the board’s decision to dismiss their claims lacks substantial evidentiary support. 2. Discussion, a. Standard of review. Pursuant to G. L. c. 30A, § 14(7)(E), as appearing in St. 1973, c. 1114, § 3, we may set aside the board’s decision to dismiss the plaintiffs’ claim only if we find it “[Unsupported by substantial evidence.” See Goncalves v. Labor Relations Commn., 43 Mass. App. Ct. 289, 295 (1997). To be “substantial,” evidence must be of a character that “a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1(6). We “examine the entire administrative record,” Pyfrom v. Commissioner of Pub. Welfare, 39 Mass. App. Ct. 621, 624 (1996), giving “deference to the [board’s] specialized knowledge and expertise, and to its interpretation of the applicable statutory provisions.” Worcester v. Labor Relations Commn., 438 Mass. 177, 180 (2002). See Labor Relations Commn. v. University Hosp., Inc., 359 Mass. 516, 521 (1971) (court may not treat an appeal of the commission’s decision “as a trial de novo on the record which was before the administrative board”). We will only set the board’s decision aside if the record “points to an overwhelming probability of the contrary.” New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466 (1981), quoting from Jaffee, Judicial Control of Administration Action 598 (1965). The record here does not do that. b. The board properly dismissed for lack of probable cause. “A union has a duty to represent its members fairly in connection with issues that arise under a collective bargaining unit.” National Assn. of Govt. Employees v. Labor Relations Commn., 38 Mass. App. Ct. 611, 613 (1995). See Vaca v. Sipes, 386 U.S. 171, 177 (1967). This duty does not require a union to treat each member identically. A union has “room for discretion, consideration of the interests of the over-all union membership in relation to that of the individual aggrieved member, and even for honest mistake .... That fairly generous scope for inaction is exceeded when the union’s conduct is arbitrary, discriminatory, in bad faith, or . . . grossly negligent.” National Assn. of Govt. Employees v. Labor Relations Commn., supra. As the board concluded, the plaintiffs provided no evidence that the union “did not act primarily for the collective good of all bargaining unit members” in negotiating the CBA or that it “acted in a manner that was arbitrary, perfunctory or demonstrative of inexcusable neglect.” The board was also correct to point out that a union may treat different classes of employees differently with respect to wages without violating G. L. c. 150E, § 10(b)(1), absent evidence of unlawful motivation. Alliance, AFSCME SEIU, 6 M.L.C. 1170, 1172 (1979). The plaintiffs nevertheless claim that they satisfied their burden with circumstantial evidence. Cf. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005) (plaintiff in an employment discrimination case may establish discriminatory intent through indirect or circumstantial evidence). Specifically, they contend that “a cut-off date by which such a large number of elderly and infirm employees were denied benefits received by the remainder of the bargaining unit” gives rise to a reasonable inference that the union intended to discriminate against them based on age or disability during the negotiation process. This argument fails because active duty members of the union are not necessarily younger or more able-bodied than retired members. It is uncontested that because twenty years of service triggers retirement eligibility, voluntary retirees could range in age from thirty-eight to sixty-five. Disability retirees, of course, could be much younger. Michael J. Slitt for the plaintiffs. Paul T. Hynes for the intervener. Cynthia A. Spahl for the defendant. Furthermore, the sick leave provision makes an entirely rational distinction between retired and active-duty members. Active-duty members can use additional sick leave to avoid using vacation time in the event of illness. For the appellants, on the other hand, the “sick-leave” provision would provide only a cash benefit. The board could permissibly conclude that the union did not commit a breach of its duty of fair representation by obtaining for active members what amounted to added insurance against loss of a benefit, vacation time, that retired members simply did not have. Finally, while the union may not have obtained every benefit the plaintiffs would have liked, it did act reasonably in negotiating the CBA for all its members and, as the board pointed out, gained for the plaintiffs an approximately four percent retroactive pay increase and the consequential upward adjustment of their retirement benefits. In short, nothing in the record suggests that the union acted in an unfair, arbitrary, discriminatory, or otherwise prohibited manner. Lacking such a suggestion, we cannot find that the board’s decision was unsupported by substantial evidence. Order denying charge affirmed. Order denying request for review affirmed. Oeneral Laws c. 150B, § 10(b)(1), inserted by St. 1974, c. 589, § 2, makes it a prohibited practice for a union to “ [¡Interfere, restrain, or coerce any employer or employee in the exercise of any right guaranteed under this chapter.” General Laws c. 150E, § 5, inserted by St. 1973, c. 1078, § 2, states that an “exclusive representative . . . shall be responsible for representing the interests of all such employees without discrimination.” Even if the “statute did not provide for the duty of fair representation, the courts would infer it as a constitutional requirement.” Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. 341, 348 (1987). The plaintiffs further argue that the union’s constitution, which provided that retired members could maintain active membership in the union but could not vote on collective bargaining agreements, likewise violates the duty of fair representation to the extent that it denied them the right to vote. The board correctly concluded that it had no jurisdiction to address the plaintiffs’ voting claim, a purely internal matter. See Switzer v. Labor Relations Commn., 36 Mass. App. Ct. 565, 567-568 (1994). The board did not address the question whether the union owed the plaintiffs a duty of fair representation. The plaintiffs tried to bolster their argument by claiming that the union encouraged one member to delay retirement until after the sick leave cutoff date, yet did not give other members the same “inside information.” The board did not consider this claim due to a policy not to consider information raised for the first time in a request for reconsideration. We, too, decline to consider it. See McCormick v. Labor Relations Commn., 412 Mass. 164, 170 (1992) (holding that a party “cannot raise on appeal arguments that she failed to raise before the commission”). Even if we were to consider it, we would agree with the board that one case of delayed retirement does not suggest discriminatory intent on the union’s part. Cf. Trinque v. Mount Wachusett Community College Faculty Assn., 14 Mass. App. Ct. 191, 199 (1982) (“[L]ack of a rational basis for a union decision and egregious unfairness or reckless omissions or disregard for an individual employee’s rights” may amount to a denial of fair representation).

Bobby T. Brown vs. F.L. Roberts & Co., Inc. Hampshire. September 3, 2008. December 2, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Employment, Discrimination. Anti-Discrimination Law, Employment, Religious beliefs. Practice, Civil, Attorney’s fees. In a civil action alleging that a grooming policy at one of the defendant’s businesses, which required that all employees who had customer contact be clean shaven, discriminated against the plaintiff due to his religion, the judge erred in granting summary judgment in favor of the defendant, where the plaintiff’s initial request for an exemption did not relieve the defendant of its obligation under G. L. c. 151B, § 4 (1A), to provide a reasonable accommodation unless there was an undue hardship, and an exemption from a grooming policy could not constitute an undue hardship as a matter of law, as the demonstration of an undue hardship on the course of one’s business is a factual inquiry [678-686]; and where the evidence presented was insufficient to demonstrate conclusively that all conceivable accommodations would impose an undue hardship on the course of the defendant’s business [686-688], In a civil action alleging that a grooming policy at one of the defendant’s businesses, which required that all employees who had customer contact be clean shaven, discriminated against the plaintiff due to his religion, the judge properly denied the plaintiff’s motion for summary judgment on the question whether working in an area of the business that did not have customer contact was a reasonable accommodation, where the issue was disputed. [688] This court declined a request to award appellate attorney’s fees and costs in an appeal from a summary judgment rendered in a civil action brought under G. L. c. 15IB, where the request for such fees was premature. [688-689] Civil action commenced in the Superior Court Department on June 16, 2006. The case was heard by Bertha D. Josephson, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Joel Feldman for the plaintiff. Claire L. Thompson (Rebecca L. Bouchard with her) for the defendant. Beverly I. Ward, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Joel Eigerman, Sarah Wunsch, & Sara Smolik, for American Civil Liberties Union of Massachusetts & others, amici curiae, submitted a brief. Justice Greaney participated in the deliberation on this case prior to his retirement. Ireland, J. In June, 2006, the plaintiff filed a complaint in the Superior Court pursuant to G. L. c. 15IB, § 4 (1A), claiming that a new grooming policy at one of the defendant’s businesses, which required all employees who had customer contact to be clean shaven, discriminated against him due to his religion. The parties filed cross motions for summary judgment. A Superior Court judge concluded that, as a matter of law, an exemption from the grooming policy would constitute an undue hardship because the defendant had a right to control its public image. She granted the defendant’s cross motion for summary judgment and denied the plaintiff’s motion. The plaintiff appealed, and we granted his application for direct appellate review. Because the defendant did not engage in an interactive process to address the plaintiff’s religious needs, it was the defendant’s burden to prove conclusively that no other conceivable accommodation was possible without imposing an undue hardship. We conclude that, on the record before us, the defendant has not met its burden. Accordingly, we vacate the grant of summary judgment and remand the case for further proceedings consistent with this opinion. 1. Statutory scheme. General Laws c. 151B, § 4 (1A), provides, in relevant part: “It shall be unlawful discriminatory practice for an employer to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate or [forgo] the practice of, his creed or religion as required by that creed or religion . . . and the employer shall make reasonable accommodation to the religious need of such individual. . . . ‘Reasonable Accommodation’, as used in this subsection shall mean such accommodation ... as shall not cause undue hardship in the conduct of the employer’s business.” The statute sets out an important public policy interest in prohibiting discrimination against individuals for their sincerely held religious beliefs, Pielech v. Massasoit Greyhound, Inc., 441 Mass. 188, 195 (2004), and mandates that its provisions “be construed liberally for the accomplishment of its purposes.” G. L. c. 151B, § 9, first par. Nevertheless, the statute’s undue hardship provision balances the interests of employers with that of religious employees. Opinion of the Justices, 423 Mass. 1244, 1247 (1996). The statute’s nonexhaustive list defining undue hardship “illustrates the types of accommodation that constitute excessive interference with an employer’s business affairs.” Massachusetts Bay Transp. Auth. v. Massachusetts Comm’n Against Discrimination, 450 Mass. 327, 337 (2008) (MBTA). A three-part inquiry applies where an employee claims discrimination based on religion. New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, 401 Mass. 566, 575-576 (1988). The employee bears the initial burden of establishing a prima facie case that the employer required the employee to violate a required religious practice. Id. at 576. The employee also must “demonstrate that he or she gave the employer the required notice of the religious obligations.” Id. If the employee makes this prima facie case, the burden then shifts to the employer “to prove that accommodation of the [employee’s] religious obligations would impose ... an undue hardship” pursuant to the statute. Id. In determining whether an employer has met its burden of proving undue hardship, the focus is on the particular nature and operations of its business. Id. Moreover, “[a]n employer’s mere contention that it could not reasonably accommodate an employee is insufficient . . . .” MBTA, supra at 336. 2. Background. On summary judgment, we view the facts and inferences drawn therefrom in the light most favorable to the nonmoving party. Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied, 459 U.S. 970 (1982), quoting Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970). The plaintiff worked in Hadley as a lube technician for a Jiffy Lube service station that was owned by the defendant (Jiffy Lube). The plaintiff worked on motor vehicles in the upper and lower bays. When he worked in the upper bay he also worked as a greeter, salesperson, and cashier. In 2001, Richard Smith became the defendant’s new vice-president in charge of Jiffy Lube. Smith avers that he hired a consultant to help him develop strategies to improve sales and attract new customers to Jiffy Lube. As a result, in January, 2002, Smith instituted a grooming policy that stated, “[Cjustomer-contact employees are expected to be clean-shaven with no facial hair .... Hair should be clean, combed, and neatly trimmed or arranged. Radical departures from conventional dress or personal grooming and hygiene standards are not permitted.” Other businesses owned by the defendant, including a retail gasoline station and convenience store, a restaurant, and a car wash, did not implement similar policies. The plaintiff is a practicing Rastafarian. His religion, to which he has adhered since 1991, does not permit him to shave or cut his hair. In light of the grooming policy, the plaintiff told Jiffy Lube’s manager and assistant manager that he wished to maintain customer contact without having to shave or cut his hair. The plaintiffs concerns were communicated to Smith, who stated that if the plaintiff did not comply, he would be allowed to work only in the lower bay and could not have customer contact. The plaintiff also made his concerns known directly to Smith, who stated, according to the plaintiff, that he did not have time to check people’s religions. Once the policy was implemented, the plaintiff worked solely in the lower bay with no formal customer contact. The plaintiff remained a lube technician and received a merit pay increase in January, 2002. However, the plaintiff asserts that the working conditions in the lower bay were significantly worse than the upper bay, including that it was much colder in the winter, and more dangerous. Because he was the sole lower bay employee on his shift, he could not take breaks and “many times” was the “last person at lunch.” There was no alternative to working in the lower bay if he wanted to keep his job. He also states that he saw many lube technicians who had grease on them when they had customer contact. The plaintiff ceased working for Jiffy Lube in May, 2002, which, according to the judge, was for reasons unrelated to the litigation. 3. Discussion. Summary judgment is appropriate where there are no genuine issues of material fact and the record before the court entitles the moving party to judgment as a matter of law. Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 397 (1994). In her written memorandum of decision, the judge stated that the sincerity of the plaintiff’s religious beliefs are not disputed by the defendant and that the plaintiff did inform the defendant of the requirements of his religion. The judge also concluded that the change in the plaintiff’s job responsibilities was substantial enough for the plaintiff to meet his burden to show a prima facie case of discrimination due to his religion. The judge did not discuss directly whether the job change itself was a reasonable accommodation. Rather, the judge addressed the issue of undue hardship, focusing on “whether the employer could have exercised its managerial discretion in such a way that the employee’s religious obligations could have been reasonably accommodated.” New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, supra at 576. The judge noted that no Massachusetts case has addressed the employer’s burden of proof of undue hardship where grooming policies were the basis of a religious discrimination claim under G. L. c. 15IB, § 4 (1A). Therefore she relied on Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 138 (1st Cir. 2004), cert. denied, 545 U.S. 1131 (2005) (Cloutier), where the United States Court of Appeals for the First Circuit addressed undue hardship and a grooming policy pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2000) (Title VII), as well as under G. L. c. 151B. As the judge discussed in her decision, Cloutier involved an employee who claimed that the policy of the employer in that case, banning facial piercings for employees who interacted with customers, violated her religious beliefs. The court held that an outright exemption to the grooming policy was an undue hardship as a matter of law. Id. at 136. Noting that “employees reflect on their employers,” the court stated that other courts have “upheld dress code policies that ... are designed to appeal to customer preference or to promote a professional image.” Id. at 135, 136. Applying these principles, the court concluded that allowing that employee the outright exemption she requested would deny the employer the ability to demand compliance and to control its public image. Id. at 137. In the absence of a Massachusetts case on which it could rely, the court also applied these principles to the plaintiffs G. L. c. 151B claim. Id. at 137-138. Here, the judge concluded that, like in Cloutier, the plaintiff was asking for an exemption from the grooming policy, and thus the defendant was entitled to summary judgment as a matter of law. a. Undue hardship. We note that, in their briefs to this court, the parties focus solely on the undue hardship issue that was the basis for the judge’s summary judgment decision. The defendant argues, in essence, that the judge properly granted its motion for summary judgment because Cloutier is applicable to G. L. c. 151B, § 4 (1A). It also claims that, if this court concludes that proof of undue hardship is required, on this record, it has presented sufficient evidence. We consider each contention in turn. i. The defendant contends that, as a matter of law, it was not required to engage in an interactive process to find a reasonable accommodation for the plaintiff because, like the plaintiff in Cloutier, he requested an exemption from the grooming policy and thus “foreclosed Jiffy Lube’s ability to exercise its managerial discretion is such a way as to reasonably accommodate [him].” We apply Federal case law that construes Federal antidiscrimination statutes in interpreting G. L. c. 151B, Wheatley v. American Tel. & Tel. Co., supra at 397, but “such interpretations are not binding on a State court construing its own State statute.” Massachusetts Elec. Co. v. Massachusetts Comm’n Against Discrimination, 375 Mass. 160, 167 (1978). Indeed, “[i]n construing G. L. c. 151B, we frequently do not follow the reasoning of Federal appellate decisions applying Title VII . . . for several reasons [including] the existence of material differences [in the two statutory schemes, and] the legislative directive that G. L. c. 151B is to be applied liberally.” Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 537 (2001). See id. at 536-539, and cases cited (rejecting case of United States Court of Appeals for First Circuit interpreting continuing violation doctrine in sexual harassment). For the reasons that follow, we decline to apply Cloutier to G. L. c. 151B, § 4 (1A). We begin with a more detailed discussion of the facts in Cloutier. There, the employee maintained that it was against her religion not to show her facial piercings and thus she could not follow the employer’s grooming policy. Cloutier, supra at 129. The employee first offered the employer the option of her covering her piercings with bandages. The employer refused. Id. After mediation through the Equal Employment Opportunity Commission (EEOC), the employer ultimately offered the employee two alternative accommodations: her own suggestion of bandages or substituting, during working hours, clear retainers for her facial piercings. Id. at 130. It was only then that the employee claimed that neither accommodation was adequate. Id. Thus, the employer engaged in a search for a reasonable accommodation, albeit after an initial refusal that prompted EEOC intervention. Here, unlike in Cloutier, because the defendant did not discuss alternatives with the plaintiff, the defendant cannot show conclusively, on this record, that a total exemption from the grooming policy was the only possible accommodation. Indeed, in his supplemental affidavit, the plaintiff asserts that he never said that he would not have considered suggestions by Jiffy Lube for an accommodation other than a complete exemption and that he, in fact, would have considered other alternatives had they been offered. The defendant’s reliance on the facts in Cloutier is misplaced. In any event, G. L. c. 151B, § 4 (1A), requires an employer to provide a reasonable accommodation unless there is an undue hardship. We conclude that the plaintiff’s initial request for an exemption did not relieve the defendant of this obligation. All that was required of this plaintiff, initially, was that he make clear to Jiffy Lube that there was a conflict between the grooming policy and his religion. The specific content of the plaintiff’s initial communication of that conflict is irrelevant. See Ocean Spray Cranberries, Inc. v. Massachusetts Comm’n Against Discrimination, 441 Mass. 632, 644 (2004), quoting Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 457 (2002) (employee’s initial request for accommodation of disability triggers employer’s obligation to participate in process to find possible accommodation). To hold otherwise would shift the statutory burden entirely to the employee, eviscerating the statutory requirement that an employer provide a reasonable accommodation. See MBTA, supra at 341 (“If merely looking into an accommodation . . . were to be considered too great an interference with an employer’s business conduct, then employers would effectively be relieved of all obligation under [the statute]”). See generally Anderson v. General Dynamics Convair Aerospace Div., 589 F.2d 397, 401 (9th Cir. 1978), cert. denied sub nom. International Ass’n of Machinists & Aerospace Workers v. Anderson, 442 U.S. 921 (1979) (under Title VII, shortcomings in employee’s initial suggestion for accommodation did not relieve union and employer of burden to undertake initial steps to accommodate employee’s religious beliefs). In addition, in purely practical terms, the employer is in as good, if not better, position to determine possible accommodations. We also conclude that an exemption from a grooming policy cannot constitute an undue hardship as a matter of law. Our cases have interpreted the statute to mean that an employer has the burden to prove undue hardship. MBTA, supra at 336, quoting New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, supra at 576. In the absence of a search for a reasonable accommodation, an employer is required to “conclusively demonstrate that all conceivable accommodations would impose an undue hardship on the course of its business” (emphasis added). MBTA, supra at 342. Such a demonstration is a factual inquiry. Id. at 338-339 (examining whether voluntary employee swaps would have constituted undue hardship); New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, supra at 571, 576 (engaging in factual inquiry into specific nature and operations of employer’s business; assessing whether employer could have exercised its managerial discretion to accommodate religious beliefs without undue hardship). Blanket assertions that an employee’s “demand for relief” is unreasonable is not enough. MBTA, supra at 340. See Cloutier, supra at 135, quoting Draper v. United States Pipe & Foundry Co., 527 F.2d 515, 520 (6th Cir. 1975) (courts skeptical of hypothetical hardship claims). In addition, unlike Title VII, G. L. c. 151B, § 4 (1A), contains a list of specific examples of undue hardship that, although not exhaustive, provides guidance for the “types of accommodation that constitute excessive interference with an employer’s business affairs.” MBTA, supra at 337. The Legislature presumably was mindful of the types of accommodations employees with certain religious practices and beliefs would request and made no specific exception in the statute for grooming policies. Moreover, the statute’s list of circumstances that constitute undue hardship (i.e., the inability to provide services, a compromise of the health and safety of the public, the presence of an employee being indispensable or needed to alleviate an emergency) are situations that have an important impact on an employer’s business. Such an impact cannot be shown by “mere contention” of its inability to accommodate. Id. at 336. Indeed, even in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 77-82, 84-85 (1977), where the United States Supreme Court held that, under Title VII, unless an employer’s burden is de minimis, there is no duty to accommodate a religious belief, the Court considered the nature and operation of the employer’s business, job duties, and efforts at accommodation before it concluded that the employee’s request was an undue burden. Compare Balint v. Carson City, 180 F.3d 1047, 1049, 1053-1054 (9th Cir. 1999) (no undue hardship as matter of law where employer made no attempt to accommodate plaintiff’s request for exemption from working on his Sabbath; seniority system with potential for preventing accommodation did not reli

CAROLYN DOLORIS TAYLOR, Plaintiff v. HOSPICE OF HENDERSON COUNTY, INC., d/b/a FOUR SEASONS HOSPICE & PALLIATIVE CARE; JOANIE BURNS; and JEANNETTE KUTT, Defendants No. COA08-530 (Filed 2 December 2008) 1. Appeal and Error— appealability — dismissal of NCPWDA claims — remaining claims — possibility of inconsistent verdicts An interlocutory order dismissing plaintiff’s claim under the North Carolina Persons With Disabilities Act was immediately appealable where the trial court denied defendants’ motion to dismiss plaintiff’s remaining claims and there was a risk that two trials and possibly inconsistent verdicts could result. 2. Statutes of Limitation and Repose— relation back— amended summons — name change — not a substitution of parties The trial court erred by dismissing claims under the North Carolina Persons With Disabilities Act where the alleged discriminatory conduct took place on 14 December 2006; the applicable 180 day statute of limitations expired on 12 June 2007; plaintiff’s original summons was issued on that date; an amended summons was issued on 1 August 2007; and the trial court held that the amended summons did not relate back. The amended summons changed “Four Seasons Hospice & Palliative Care, Inc” to “Hospice of Henderson County, Inc., d/b/a Four Seasons Hospice & Palliative Care,” a change that did not amount to a substitution of parties. Appeal by plaintiff from order entered 8 February 2008 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 23 October 2008. Law Offices of Glen C. Shults, by Glen C. Shults, for plaintiff-appellant. McGuire, Wood & Bissette, P.A., by Rendi Mann-Stadt, for defendant-appellees. TYSON, Judge. Carolyn Doloris Taylor (“plaintiff’) appeals order entered, which dismissed her claim under the North Carolina Persons With Disabilities Protection Act (“NCPWDPA”) against Hospice of Henderson County, Inc. d/b/a Four Seasons Hospice & Palliative Care. We reverse and remand. I. Background On 12 June 2007, plaintiff filed a complaint, which named the defendants as: “Four Seasons Hospice & Palliative Care, Inc.; Jamie Burns; and Jeannette Keith, Defendants.” Plaintiff’s complaint asserted claims of: (1) a violation of the NCPWDPA against Four Seasons Hospice & Palliative Care,' Inc.; (2) wrongful discharge in violation of public policy against Four Seasons Hospice & Palliative Care, Inc.; (3) negligent infliction of emotional distress against all defendants; and (4) gross negligence against all defendants. A summons was issued to the named defendants on 12 June 2007. Plaintiff served the complaint, but the summons was never served. On 1 August 2007, plaintiff filed an amended complaint, which named the defendants as: “Hospice of Henderson County, Inc., d/b/a Four Seasons Hospice & Palliative Care; Joanie Burns; and Jeannette Kutt, Defendants.” Plaintiff’s amended complaint stated an additional claim of tortious interference with contract against all defendants. An alias and pluries summons was issued on 1 August 2007. An amended alias and pluries summons was issued on 2 August 2007. Hospice of Henderson County, Inc. d/b/a Four Seasons Hospice & Palliative Care and Joanie Burns were served on 3 August 2007. Jeannette Kutt was served on 8 August 2007. On 10 September 2007, plaintiff “moved, pursuant to Rule 4(i) and 15(a), North Carolina Rules of Civil Procedure, for an order allowing her to file the First Amended Complaint for Damages Injunctive Relief, And Jury Demand, and to amend the summons, and/or alias and pluries summons issued in this case, by changing the names of the defendants . . . .” Defendants’answered plaintiffs amended complaint on 2 October 2007 and moved to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(2), (4), (5), and (6). Plaintiffs “Motion to File a First Amended Complaint and to Amend Summonses Previously Issued and Served in this Case” and defendants’ Motion to Dismiss were heard on 5 February 2008. On 8 February 2008, the trial court filed its order, which: (1) granted plaintiff’s Motion to File First Amended Complaint; (2) granted, in part, plaintiff’s Motion to Amend the 1 August 2007 Alias and Pluries Summonses; (3) held the amended summonses constituted the original summonses; (4) denied plaintiff’s motion to amend the 12 June 2007 summonses; (5) held that the statute of limitations on plaintiff’s NCPWDPA claim had expired before plaintiff commenced her action on 1 August 2007; (6) granted defendants’ motion to dismiss plaintiff’s NCPWDPA claim; and (7) denied defendants’ motion to dismiss plaintiff’s remaining claims. Plaintiff appeals. II. Interlocutory Anneal As a preliminary matter, we note that this appeal is interlocutory. The trial court’s order did not dispose of the entire case. See Veazey v. Durham, 231 N.C. 354, 361-62, 57 S.E.2d 377, 381 (1950) (“A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.” (Citations omitted)). Our Supreme Court has stated: A party may appeal an interlocutory order under two circumstances. First, the trial court may certify [pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b)] that there is no just reason to delay the appeal after it enters a final judgment as to fewer than all of the claims or parties in an action. Second, a party may appeal an interlocutory order that affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment. Davis v. Davis, 360 N.C. 518, 524-25, 631 S.E.2d 114, 119 (2006) (internal citations and quotation omitted). The record does not show the trial court entered a Rule 54(b) certification after it dismissed plaintiff’s NCPWDPA claim. Appellate review is unavailable to plaintiff on that basis. Id. In Bowling v. Margaret R. Pardee Mem’l Hosp., this Court held: [The plaintiff]’s North Carolina Disabilities Act claim and his claim for wrongful discharge in violation of public policy, which remains at the trial court level, unquestionably involve the same facts and circumstances, namely, his termination by [the defendant]. If we refuse his appeal, two trials and possibly inconsistent verdicts could result. We therefore address the merits of [the plaintiff]’s arguments .... 179 N.C. App. 815, 818, 635 S.E.2d 624, 627 (2006), disc. rev. denied, 361 N.C. 425, 648 S.E.2d 206 (2007). Based on this Court’s holding in Bowling, the trial court’s order affects a substantial right: the risk that “two trials and possibly inconsistent verdicts could result.” 179 N.C. App. at 818, 635 S.E.2d at 627. The trial court’s order is immediately appealable. Davis, 360 N.C. at 525, 631 S.E.2d at 119. We review the merits of plaintiff’s appeal. III. Issues Plaintiff argues the trial court erred when it: (1) found the amended 1 August 2007 summonses constituted “original summonses” and “[p]laintiff’s action commenced on August 1, 2007 with the issuance of the August 1, 2007 summonses, as amended” and (2) dismissed her NCPWDPA claim based upon the expiration of the applicable statute of limitations. IV. Misnomer Plaintiff argues “the amended complaint and alias [and] pluries summonses only corrected a misnomer, and they did not seek to add, or change, the parties in the case.” We agree. A. Standard of Review Rule 4(i) of the Rules of Civil Procedure permits trial courts to allow in their discretion the amendment of any process or proof of service thereof unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued. [Our Supreme] Court has stated that the discretionary powers of amendment permit the courts to allow amendment to correct a misnomer or mistake in the name of a party. If the amendment amounts to a substitution or entire change of parties, however, the amendment will not be allowed. Harris v. Maready, 311 N.C. 536, 545-46, 319 S.E.2d 912, 918 (1984) (internal citations and quotation omitted) (emphasis supplied). B. Analysis In Franklin v. Winn Dixie Raleigh, Inc., this Court held “[the] plaintiffs’ attempt to amend the original summons was prohibited because it constituted a substitution or entire change of parties.” 117 N.C. App. 28, 36, 450 S.E.2d 24, 29 (1994) (citation and quotation omitted), aff’d per curiam, 342 N.C. 404, 464 S.E.2d 46 (1995). This Court stated: The record shows . . . that “Winn-Dixie Stores, Inc.” was not a corporate entity on record with the Secretary of State. It further shows that at no time pertinent to this action did Winn-Dixie Stores, Inc. ever own, lease or operate the store located at 651 Western Boulevard Extension. Moreover, while Winn-Dixie Stores, Inc. and Winn-Dixie Raleigh, Inc. are both Florida corporations authorized to do business in North Carolina, they have been and were separate and distinct corporations at the time the cause of action accrued. Therefore, we hold that the named defendant in the original summons and complaint, “Winn Dixie Stores, Inc.”, was not a mistake or misdescription permitting the amendment of the summons. Rather, Winn Dixie Stores, Inc. was the correct name of the wrong corporate party defendant, a substantive mistake which is fatal to this action. Quite simply, [the] plaintiffs sued the wrong corporation. Id. at 34-35, 450 S.E.2d at 28. In Kimbrell’s of Sanford v. KPS, Inc., this Court held that “the use of the name Kendale Pawn Shop to refer to the defendant in the complaint was a mere misnomer . . . .” 113 N.C. App. 830, 833, 440 S.E.2d 329, 331 (1994) (citation omitted). This Court stated: The record reveals that there is no separate legal entity known as Kendale Pawn Shop; there is only KPS, Inc., which does business under the name Kendale Pawn Shop. ... It is therefore immaterial that the judgment was entered in favor of KPS, Inc. d/b/a Kendale Pawn Shop while the initial caption of the case referred only to Kendale Pawn Shop. Id. Here, the record reveals and the North Carolina Secretary of State’s records show that there is no North Carolina chartered legal entity known as “Four Seasons Hospice & Palliative Care, Inc.” The chartered entity of “Hospice of Henderson County, Inc.” does business under the name “Four Seasons Hospice & Palliative Care.” Based on this Court’s reasoning in Franklin and Kimbrell’s of Sanford, the amendment did not “amount[] to a substitution or entire change of parties,” but was a “correctfion] [of] a misnomer or mistake in the name of a party.” Franklin, 117 N.C. App. at 34-35, 450 S.E.2d at 28; Kimbrell’s of Sanford, 113 N.C. App. at 833, 440 S.E.2d at 331; Harris, 311 N.C. at 546, 319 S.E.2d at 918. Plaintiff did not “sue[] the wrong corporation^]” but rather used a “misnomer or mistake in the name of’ the corporate entity. Franklin, 117 N.C. App. at 35, 450 S.E.2d at 28; Harris, 311 N.C. at 546, 319 S.E.2d at 918. The trial court erred when it failed to find that the amendment constituted a correction of the original 12 June 2007 summons and denied plaintiff’s motion to amend the 12 June 2007 summons. Harris, 311 N.C. at 546, 319 S.E.2d at 918. V. Statute of Limitations Plaintiff argues the trial court erred when it found “[her] action commenced on August 1, 2007 with the issuance of the August 1, 2007 summonses, as amended . . . .” We agree. A. Standard of Review “Ordinarily, a dismissal predicated upon the statute of limitations is a mixed question of law and fact. But where the relevant facts are not in dispute, all that remains is the question of limitations which is a matter of law.” Udzinski v. Lovin, 159 N.C. App. 272, 273, 583 S.E.2d 648, 649 (2003), aff’d, 358 N.C. 534, 597 S.E.2d 703 (2004) (citations omitted). We review a trial court’s decision to dismiss an action based on the statute of limitations de novo. Id. B. Analysis N.C. Gen. Stat. § 168A-12 (2007) provides: A civil action regarding employment discrimination brought [under the NCPWDPA] shall be commenced within 180 days after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct. A civil action brought [under the NCPWDPA] regarding any other complaint of discrimination shall be commenced within two years after the date on which the aggrieved person became aware of or, with reasonable diligence, should have become aware of the alleged discriminatory practice or prohibited conduct. It is undisputed that the alleged discriminatory conduct took place on 14 December 2006 and the applicable 180-day statute of limitations expired on 12 June 2007. Having held that the N.C. Gen. Stat. § 1A-1, Rule 4(i) amendment constituted a correction of the original 12 June 2007 summons, plaintiffs action commenced on 12 June 2007. The trial court erred when it dismissed plaintiffs NCPWDPA claim and found that “[t]he statute of limitations for [p]laintiff to bring her [NCPWDPA] [c]laim . . . expired before [p]laintiff commenced her action . . ..” VI. Conclusion The trial court erred when it found that the amended 1 August 2007 summonses “constitute [d] original summonses as to Hospice of Henderson. County, Inc. d/b/a Four Seasons Hospice & Palliative Care” and denied plaintiffs motion to amend the 12 June 2007 summons. The amendment corrected a “misnomer or mistake” and did not “amount[] to a substitution or entire change of parties . . . .” Harris, 311 N.C. at 546, 319 S.E.2d at 918. Plaintiffs action commenced on 12 June 2007, within the applicable 180-day statute of limitations for her NCPWDPA claim. The corporate defendant cannot claim prejudice because it was served with plaintiffs 12 June 2007 complaint prior to the 1 August 2007 amendment. The trial court’s dismissal of plaintiff’s NCPWDPA claim is reversed. The trial court dismissed plaintiff’s NCPWDPA claim based upon the expiration of the applicable statute of limitations after it found that the “original summons []” was issued on 1 August 2007 and the amendment did not relate back to the 12 June 2007 summons. We express no opinion on the merits, if any, of this claim, or plaintiff’s remaining claims. This case is remanded to the trial court for further proceedings not inconsistent with this opinion. Reversed and Remanded. Judges McCULLOUGH and CALABRIA concur.

Tracy Thurdin vs. SEI Boston, LLC. Suffolk. May 5, 2008. October 24, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, II. Constitutional Law, Sex discrimination. Anti-Discrimination Law, Employment, Sex. Employment, Discrimination. Discussion of G. L. c. 93, § 102 (a), one of the provisions of the Massachusetts Equal Rights Act. [439-440] Discussion of G. L. c. 151B and the administrative and judicial avenues for redress of employment discrimination in violation of the statute. [440-443] A Superior Court judge erred in dismissing a civil action alleging gender and pregnancy discrimination against the plaintiff’s employer, where although the employer, which had fewer than six employees, was not amenable to suit under G. L. c. 151B, the plaintiff could nonetheless assert a claim under the Massachusetts Equal Rights Act (MERA), G. L. c. 93, § 102 (a), a result confirmed by the plain language of the two statutes and case law [443-448], as well as the legislative intent evident from the history of MERA [448-452], Botsford, J., concurring, with whom Marshall, C.J., and Greaney, J., joined. Cordy, J., dissenting, with whom Cowin, J., joined. A Superior Court judge erred in dismissing a civil action alleging gender and pregnancy discrimination under the Massachusetts Equal Rights Act, G. L. c. 93, § 102, against the plaintiff’s employer (which, having fewer than six employees, was not amenable to suit under G. L. c. 151B), where the phrase “make and enforce contracts” in G. L. c. 93, § 102, was not limited to the hiring phase of employment, but rather covered discriminatory treatment during the course of employment. [452-455] Botsford, J., concurring, with whom Marshall, C.J., and Greaney, J., joined. Cordy, J., dissenting, with whom Cowin, J., joined. Civil action commenced in the Superior Court Department on March 8, 2006. A motion to dismiss was heard by John C. Cratsley, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Daniel W. Rice for the plaintiff. Joseph S. Berman (Kenneth J. Rodriguez with him) for the defendant. The following submitted briefs for amici curiae: James S. Weliky for Massachusetts Employment Lawyers’ Association & others. Jo Ann Shotwell Kaplan & Martin Newhouse for New England Legal Foundation & others. Patricia A. Washienko & Anne Josephson for Union of Minority Neighborhoods & others. Ireland, J. We transferred this case from the Appeals Court on our own motion to consider whether an employee who is unable to pursue an employment discrimination claim against her former employer pursuant to G. L. c. 151B, because the employer had fewer than six employees, may instead assert a claim under G. L. c. 93, § 102, one of the provisions of the Massachusetts Equal Rights Act (MERA). A Superior Court judge entered an order granting the defendant’s motion to dismiss the plaintiffs complaint charging the defendant with sex discrimination pursuant to MERA. Because we conclude that an employee may assert a sex discrimination claim under MERA where an employer is not within the ambit of G. L. c. 151B, we vacate the order and judgment dismissing the complaint and remand the case for further proceedings. Facts and procedure. We set forth the facts, taking as true all the allegations in the plaintiffs complaint and drawing all inferences in her favor. Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). On February 15, 2005, the defendant, which provides information technology services to businesses, offered the plaintiff a position as an onsite information technology consultant. The plaintiff began working on March 15, 2005, reporting to the defendant’s managing principal, Vicki Hudson. On April 11, the plaintiff told Hudson that she was pregnant and had a due date of June 27. The plaintiff alleges that she could perform all of the essential functions of her job, including onsite consulting. The next day, Hudson told the plaintiff that she had spoken to Daniel Pierce, the owner of Systems Evolution, Inc., in Mason, Ohio. Hudson stated that she and Pierce were upset that the plaintiff was pregnant and requested that the plaintiff voluntarily take an unpaid leave of absence. The plaintiff refused. Hudson told the plaintiff that she had acted unethically by failing to reveal, during her job interview, that she was pregnant. Hudson stated that the defendant could not place the plaintiff onsite with clients due to her pregnancy and that it would be very costly to have the plaintiff “on the bench” during the term of her pregnancy and while on maternity leave. Hudson went on to say that the plaintiff was unfairly burdening the defendant with her pregnancy because the defendant is a small company trying to develop new business in the Boston area. The plaintiff asked Hudson to view the plaintiff’s situation from her perspective, to which Hudson remarked that it was “not [her] problem.” After this conversation, the plaintiff telephoned her attorney, a friend, and her husband, and relayed that she believed she was being discriminated against due to her pregnancy. Another employee overheard these calls and reported them to Hudson. Hudson ordered the plaintiff to leave the office and to “have a conversation with [herself] in the mirror and come back tomorrow with a better attitude.” By a letter dated April 20, 2005, but not given to the plaintiff until April 22, the defendant placed the plaintiff on unpaid administrative leave because of her pregnancy. The plaintiff did not return to work. Prior to receiving the letter, the plaintiff filed a charge of discrimination against the defendant with the Equal Employment Opportunity Commission (EEOC) and with the Massachusetts Commission Against Discrimination (MCAD), thus pursuing administrative remedies under Federal and State law pursuant to Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2000) (Title VII), and G. L. c. 151B. The plaintiff’s complaint appears to have been closed by the EEOC for lack of jurisdiction after the defendant contended that it had only three employees. In March, 2006, the plaintiff filed a complaint in the Superior Court alleging gender and pregnancy discrimination under MERA. After answering the complaint, the defendant filed a motion to dismiss or, in the alternative, a motion for judgment on the pleadings. The judge found that it is undisputed that the defendant employed less than six people. He concluded that G. L. c. 15IB is the exclusive remedy in employment discrimination cases and that, as evidenced by the statute’s definition of “employer,” the Legislature intended that discrimination claims would not lie against employers having fewer than six employees. The judge also concluded that, in any event, the plaintiff did not have an alternative remedy under MERA because the statute’s phrase “make and enforce contracts” applies only to claims of discrimination during the hiring process. To support his conclusion, the judge relied on the United States Supreme Court’s interpretation of comparable language that existed in 42 U.S.C. § 1981, at the time of its decision in Patterson v. McLean Credit Union, 491 U.S. 164, 176-177 (1989), abrogated by the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071. A judgment entered dismissing the plaintiff’s complaint. The plaintiff appealed. Statutory scheme. We begin with an overview of the pertinent provisions of the relevant statutes. MERA. General Laws c. 93, § 102 (a), inserted by St. 1989, c. 332, provides, in pertinent part: “All persons within the commonwealth, regardless of sex, race, color, creed or national origin, shall have, except as is otherwise provided or permitted by law, the same rights enjoyed by white male citizens, to make and enforce contracts, to inherit, purchase, to lease, sell, hold and convey real and personal property, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other” (emphasis supplied). The language of § 102 (a) drew on language in 42 U.S.C. §§ 1981 and 1982 (2000), as they existed at the time, but expanded the category of those covered, as §§ 1981 and 1982 cover only race. See Johnson, The 1989 Massachusetts “Equal Rights Law”: A Short History, 34 B.B.J. 17, 18 (1990) (Johnson) (MERA added sex and religion to language fashioned from §§ 1981 and 1982). The statute was proposed in anticipation of the United States Supreme Court’s Patterson decision. Id. at 17. General Laws c. 93, § 103, inserted by St. 1990, c. 156, extended the rights afforded under § 102 to persons with a handicap or over forty years of age, as defined in G. L. c. 15IB, § 1 (8), (17), and requires a “reasonable accommodation” concerning those rights. General Laws c. 15IB. General Laws c. 151B is an antidis-crimination statute originally enacted in 1946. St. 1946, c. 368, § 4. General Laws c. 151B, § 4 (1), (1A), (IB), and (3), as amended through St. 2004, c. 355, § 1, forbids discrimination in employment on the basis of race, color, religious creed, national origin, sex, sexual orientation, genetic information, ancestry, age, or handicap. For purposes of the statute, “employer” is defined to expressly exclude “any employer with fewer than six persons in his employ.” G. L. c. 151B, § 1 (5). The Massachusetts Commission Against Discrimination (MCAD) is the administrative agency that enforces the statute. G. L. c. 15IB, §§ 1 (7), 3, 5. General Laws c. 15IB, § 9, first par., provides that the statute “shall be construed liberally for the accomplishment of its purposes.” It states that “any law inconsistent with any provision of this chapter shall not apply, but nothing contained in this chapter shall be deemed to repeal any provision of any other law of the commonwealth relating to discrimination” (emphasis added). Section 9, second and third pars., also states that ninety days (but not later than three years) after filing a complaint with the MCAD, a plaintiff may choose to bring an action for damages (actual and punitive) in the Superior Court, Probate and Family Court, or Housing Court. Thus the statute provides an aggrieved party with “two largely independent avenues for redress of violations of [G. L. c. 15IB], one through the MCAD (G. L. c. 151B, §§ 5-6), and the other in the courts (G. L. c. 151B, § 9).” Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 565, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm’n Against Discrimination, 543 U.S. 979 (2004) (Stonehill College), quoting Brunson v. Wall, 405 Mass. 446, 452 (1989). However, the judicial remedy is available only after a party has first filed a complaint with the MCAD, and while administrative procedures are pending pursuant to G. L. c. 151B, §§ 4 and 5, that procedure is exclusive. G. L. c. 151B, § 9, as amended through St. 2002, c. 223, § 2. Moreover, if G. L. c. 151B is available, an aggrieved employee may not bring a claim under another statute in the first instance. Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 (1994) (Charland) (where G. L. c. 151B applies, it is exclusive remedy for employment discrimination). Furthermore, “the primary purpose of an administrative proceeding before the MCAD is to vindicate the public’s interest in reducing discrimination in the workplace.” Stonehill College, supra at 563. During the administrative process, the commission, not the complainant, prosecutes the claim, and “the commission is empowered to fashion equitable remedies designed chiefly to protect and promote the broader public interest in eradicating systemic discrimination” (emphasis added). Id. If the complainant chooses the judicial route to recover damages for his or her individual discrimination, the MCAD takes no further action. Id. Rather, the case is considered no longer “pending” pursuant to G. L. c. 151B, §§ 4, 5, and 9. Charland, supra at 585. Discussion. 1. In his written decision granting the defendant’s motion to dismiss, the judge stated: “[I]t is apparent that [the Legislature] contemplated the precise issue currently before this Court. [It] considered and resolved [in the negative] the question of whether the antidiscrimination statute allows for a cause of action in pregnancy-related discrimination cases involving employers with [six] or fewer employees. . . . [Its] intent is demonstrated in the definition of an employer provided in [G. L.] c. 151B. Employees of such smaller companies are not within the scope of the statute’s intended protections . . . [and] given the explicit text they enacted [it] must have believed that the benefits to smaller businesses outweighed all other considerations.” In support of this conclusion, the judge stated that in the case of sexual harassment, the Legislature enacted G. L. c. 214, § 1C, to cover employees working for small firms. He concluded that because the Legislature did not enact a statute to cover pregnancy-related discrimination for employees of small firms, it was evidence that the Legislature intended G. L. c. 15IB to be the exclusive remedy for such discrimination. The defendant argues that the judge’s interpretation of the statute is correct because G. L. c. 151B’s definition of “employer” is plain and unambiguous, and because there was a footnote in the bill proposed in 1946 stating that the Legislature deliberately excluded small businesses from the scope of the statute. See note 7, supra. The defendant further contends that this position is bolstered by G. L. c. 149, § 105D, which provides, in certain circumstances, maternity leave for female employees, and for the restoration of their job (or similar position) and protection of, inter alla, seniority and level of pay. The statute states that an employer “shall be defined as in [G. L. c. 151B, § 1 (5)].” Although the defendant does not argue that maternity leave is at issue here, it argues that this statute is evidence that small employers were exempted deliberately from pregnancy discrimination. We disagree. Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent. See Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 (1986), and cases cited. Moreover, we construe civil rights statutes liberally, giving effect to every provision to produce a consistent body of law. See, e.g., Green v. Wyman-Gordon Co., 422 Mass. 551, 554 (1996); Batchelder v. Allied Stores Corp., 393 Mass. 819, 822 (1985), citing 3 C. Sands, Sutherland Statutory Construction § 72.05, at 392 (4th ed. 1974) (civil rights statutes are remedial and entitled to liberal construction). “The mle for the construction of remedial statutes is that cases within the reason, though not within the letter, of a statute shall be embraced by its provisions . . . .” Batchelder v. Allied Stores Corp., supra, quoting 2A C. Sands, Sutherland Statutory Construction § 54.04, at 570 (4th ed. 1974). We also assume the Legislature is aware of existing statutes when it enacts subsequent ones. Green v. Wyman-Gordon Co., supra. Furthermore, where there is an express exception in a statute, it comprises the only limit on the operation of the statute and no others will be implied. General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 805-806 (1999), quoting District Attorney for the Plymouth Dist. v. Selectmen of Middleborough, 395 Mass. 629, 633 (1985). Here, there is nothing in the plain language of § 102 of MERA that excludes small employers from its application. It expressly states, in pertinent part, that “[a]ll persons” shall have a right to “make and enforce contracts” without regard to sex. Moreover, there is nothing in the plain language of G. L. c. 15 IB stating that, where it does not apply, aggrieved parties are excluded from using other statutes to vindicate their right to be free from employment discrimination. Rather, the statute expressly states that “nothing contained in this chapter shall be deemed to repeal any provision of any other law of this commonwealth relating to discrimination,” unless it is inconsistent with G. L. c. 15IB (emphasis added). G. L. c. 15IB, § 9, first par. The statute’s phrase “nothing contained in this chapter” would include the definition of “employer” in G. L. c. 15IB, § 1 (5), because § 9 allows no exception, reflecting a determination by the Legislature that antidiscrimination statutes should be applied as written. See General Elec. Co. v. Department of Envtl. Protection, supra. In addition, there is nothing “inconsistent” between the two statutes because they do not cover the same employers and provide different remedies. We also do not agree with the defendant that our Charland decision supports its interpretation of G. L. c. 15IB. In Char-land, the plaintiff failed to file a timely complaint with the MCAD and filed suit in the Superior Court under MERA. The court’s conclusion that G. L. c. 151B is the “exclusive remedy” for employment discrimination because “it is unlikely . . . the Legislature intended to create a parallel and competing alternative to dealing with the problem of employment discrimination,” was expressly qualified by the words “where applicable.” Char-land, supra at 584, 586. The Charland court discussed Melley v. Gillette Corp., 397 Mass. 1004 (1986), and Mouradian v. General Elec. Co., 23 Mass. App. Ct. 538, 541-542 (1987), where G. L. c. 151B did apply, and where the Appeals Court concluded that it would not, respectively, create a new common-law cause of action or permit an action under the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H and 111, in lieu of G. L. c. 151B. See Charland, supra at 585-586. However, Charland did not state that there were no alternative remedies where G. L. c. 151B did not apply. Rather, it quoted this portion of the Mouradian case: “There may be a case in which the termination of an at-will employee could give rise to a tenable complaint seeking relief under G. L. c. 12, §§ 11H and 111.” Id. at 586, quoting Moura-dian v. General Elec. Co., supra at 543. The Charland court went on to state that its decision was in keeping with its decisions (predating MERA) in O’Connell v. Chasdi, 400 Mass. 686 (1987), and Comey v. Hill, 387 Mass. 11 (1982). Charland, supra. The court stated that the O’Connell case held that the exclusivity provisions of G. L. c. 15IB “do not preclude an independent claim of a violation of an employee’s equal protection rights under art. 1 of the Declaration of Rights.” Charland, supra. The court also stated that the Comey case held that an employee could maintain a tort claim based on common-law principles that existed prior to the adoption of G. L. c. 151B. Id. Thus, we do not read Charland to stand for the proposition that G. L. c. 15IB is the exclusive remedy for all employment discrimination claims. Cases subsequent to MERA’s enactment support our reading of Charland. In Agin v. Federal White Cement, Inc., 417 Mass. 669, 670 (1994), the court was faced with a reported question similar to the one here, where an employee filed an age discrimination complaint pursuant to § 103 of MERA, and remanded the case because there had been no finding whether G. L. c. 151B applied to the employer. Id. at 672-673. However, the court did not state that if G. L. c. 15IB was not available, the plaintiff could not use MERA. In addition, this court has stated in two other cases that if G. L. c. 151B is not available for an employee alleging sexual harassment, the sexual harassment statute, G. L. c. 214, § 1C, is available as an alternative. Compare Guzman v. Lowinger, 422 Mass. 570, 572 (1996) (G. L. c. 151B unavailable), with Green v. Wyman-Gordon Co., 422 Mass. 551, 554-555 (1996) (G. L. c. 151B available). In Guzman v. Lowinger, supra,

Jordany Delva vs. Brigham and Women’s Hospital, Inc. No. 07-P-1128. Suffolk. June 12, 2008. - October 3, 2008. Present: Cypher, Cohen, & Fecteau, JJ. Anti-Discrimination Law, Prima facie case, Age, Race. Employment, Discrimination. In a civil action alleging discrimination in employment on the basis of age, race, and color, the judge properly granted summary judgment in favor of the defendant employer, where the plaintiff employee failed to demonstrate that he would be able to prove, as part of his prima facie case, that the defendant sought to fill the position at issue by hiring another individual with qualifications similar to the plaintiff’s, in that, even assuming that the plaintiff was qualified for the position, his qualifications were not similar, i.e., roughly equivalent, or more or less comparable, to those of the successful candidate. [767-772] Civil action commenced in the Superior Court Department on April 12, 2005. The case was heard by Robert C. Cosgrove, J., on a motion for summary judgment. David W. Downes for the plaintiff. Jeffrey A. Dretler {Joshua Abrams with him) for the defendant. Fecteau, J. The plaintiff, Jordany Delva, appeals from the allowance of summary judgment in favor of his employer, the defendant Brigham and Women’s Hospital, Inc. (hospital), dismissing his complaint for discrimination on the basis of age, race, and color in violation of G. L. c. 151B, § 4(1) and (IB). Delva alleges that the discrimination occurred when the hospital hired another to fill its open position for a ‘ ‘painter/plasterer. ’ ’, On our review of the record, we agree with the motion judge that Delva’s case failed at the first stage of the familiar order of proof used in cases involving indirect evidence, see Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130 (1976), and affirm. 1. Factual background. The undisputed facts in the record before the motion judge are these. The hospital posted a job opening for a “painter/plasterer.” The three-page official job description listed two “qualifications”: (1) the ability to read, write, and follow oral and written instructions; and (2) one to two years’ experience in a related job. Other sections described in detail the “principal duties and responsibilities” of the position and the “skills and abilities required.” As relevant herein, the first paragraph of the latter section provided that the candidate “[mjust have the ability to apply even coats of paints, varnishes and so forth by use of brushes, rollers and spray compressors neatly and efficiently . . . [and] to mix plaster and retardant and to evenly and skillfully apply plaster to a variety of surfaces and pipes.” Walter Gleeson, the supervisor of the hospital’s mechanic’s shop, and his supervisor, Colin MacLachlan, the assistant director of engineering services, interviewed all candidates for the painter/plasterer position. The ultimate hiring authority rested with George Player, the director of the hospital’s engineering services department. On the interviewers’ recommendations, Player hired Alan Browne, a full-time painter and foreman by trade with over twenty-three years of residential and commercial experience. Browne’s work history included an apprenticeship in painting, owning his own painting business, and supervising all painting for a construction company. Delva, on the other hand, was trained as a maintenance mechanic and had worked at the hospital in that role for the last eighteen years. 2. Discussion. Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Mass. R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his or her case at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Courts must read the summary judgment material in the light most favorable to the nonmoving party. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 438 (1995). “[T]he opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207, 209 (1989). Where the ultimate question is the employer’s state of mind, which requires a finding dependent on circumstantial evidence, summary judgment is usually disfavored. Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 439. As the court stated in Blare, id. at 440, “However, summary judgment is not always inappropriate in discrimination cases. Where a defendant’s motion for summary judgment demonstrates that the plaintiff s evidence of intent, motive, or state of mind is insufficient to support a judgment in plaintiffs favor, we have upheld summary judgment in favor of defendants.” See Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 770 (1986); McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 437-438 (1989); Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 705 (1992). The judge here granted summary judgment in favor of the hospital on the ground that, in the absence of direct evidence of a discriminatory basis for the decision to hire another, Delva failed to show that he would be able to prove a prima facie case of employment discrimination under- the familiar three-stage framework adopted in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass, at 138-139. While the defendant did not dispute that Delva satisfied the first three of the four elements required in the first stage in a failure to hire case, namely, “that (1) [the plaintiff] is a member of a class protected by the State discrimination statute, (2) [the plaintiff] applied for an open position, (3) [the plaintiff] was not selected,” the judge decided, on the record before him, that Delva would be unable to prove the fourth element, that “(4) [the plaintiff’s] employer sought to fill the position by hiring another individual with qualifications similar to [his].” Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655, 665 n.22 (2000). Delva contends that the motion judge improperly granted summary judgment to the hospital because, based on his alleged accumulation of “1-2 years experience in a related job” as required in the “qualifications” section of the job description, he was qualified for the position. Delva argues that it was sufficient that he met the two job requirements listed in this section. In other words, he contends, without citation to any supporting authority, that since both candidates met such minimum qualifications, they were both similarly qualified and the relevant inquiry must end there. Such a position appears neither logical nor supported by any view of the facts or the law. Even assuming that Delva was qualified for the position, we disagree that the hospital “sought to fill the position by hiring another individual with qualifications similar to [his].” Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, supra. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 41 (2005) (setting out elements of prima facie case for discriminatory termination). See also Goldman v. First Natl. Bank, 985 E2d 1113, 1117 (1st Cir. 1993) (plaintiff alleging discriminatory termination must show that he “was replaced by a person with roughly equivalent job qualifications”); Gu v. Boston Police Dept., 312 F.3d 6, 11 (1st Cir. 2002) (successful candidate had “significantly different qualifications than either plaintiff”); Rathbun v. Autozone, Inc., 361 F.3d 62, 74 (1st Cir. 2004) (plaintiff alleging discriminatory failure to promote must show “that the position[s] were filled by others whose credentials were more or less comparable to hers”). Similarly, in the third stage of a disparate treatment case, when identifying other employees to whom he or she is similarly situated, the plaintiff must put forth evidence concerning the hired applicant’s qualifications. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129-130 & n.4 (1997) (adopting approach taken by Federal courts). Viewing this element in light of the above, we reject Delva’s argument that he could make a prima facie case for discrimination without regard to the degree of his qualifications as compared to those of Browne. On the undisputed facts in the summary judgment record, no jury could reasonably conclude that Delva’s qualifications were similar, i.e., roughly equivalent, or more or less comparable, to those of Browne. Browne’s resume, which was objectively stronger than that of Delva in terms of relevant painting and plastering experience, highlighted his many specific skills and abilities. He indicated having the ability to plaster, patch, drywall tape, skim coat, and spray paint. These skills were exactly those that were sought by the hospital, as evidenced by the job description. In addition, Browne’s superior knowledge and ability and lack of any apparent weakness were reflected in the interviewers’ written evaluations and comments. Browne also conveyed additional information to his interviewers that did not appear on his resume, such as his familiarity with different types of applications and mixing colors and tints. By contrast, Delva’s experience and knowledge of the trades of painting and plastering fell far short of Browne’s, especially as revealed to Gleeson and MacLachlan. As he admitted, Delva either did not have some of the basic skills and abilities required, or led his interviewers to believe that such experience was seriously lacking. The sum total of painting experience listed on Delva’s resume was “Engineering Mechanical Room, freelance painting at various residences.” His painting work at the hospital was one of twelve listed principal duties and responsibilities of his maintenance mechanic position, taking up three to five hours on average of his forty-hour work week. That painting work ended in 2000 and never involved painting in public areas. Delva’s “freelance painting” consisted only of painting for a friend and painting and maintaining a three-floor residence that he co-owned with his former wife. Having failed to meet his burden under Mass.R.Civ.R 56 to produce evidence that would eliminate one of the most common explanations for the failure to hire decision, Delva was not entitled to a presumption of discrimination raised by the establishment of the prima facie case. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000), quoting from Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 441 (“The prima facie case ‘eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection,’ which are lack of competence and lack of job availability, and thereby creates a presumption of discrimination”). Accordingly, the judge’s allowance of summary judgment for the defendant was proper. Judgment affirmed. As is required before suit may be instituted in court, Delva first filed a claim with the Massachusetts Commission Against Discrimination, which was dismissed for lack of probable cause. At the time of the adverse decision, late 2002, Delva, a naturalized American citizen bom and raised in Haiti, was sixty-one years old, black, and a longtime employee of the hospital. The successful candidate, Alan Browne, was forty-two years old, Caucasian, and from outside the employ of the hospital. Given our decision, we need not address the judge’s additional ruling that the hospital produced credible evidence of a legitimate, nondiscriminatory reason for the hiring decision, but that Delva would be unable to prove that the hospital’s hiring of another, better qualified individual was a pretext. There was no dispute that Delva met the first listed “qualification.” As noted above, other sections of that job description set forth in detail the “principal duties and responsibilities” and “skills and abilities required” of a painter/plasterer, which would be relevant to such an inquiry. Moreover, the job description specifically indicated that the statements within only were “intended to describe the general nature and level of work being performed” and should not “be construed as an exhaustive list of all responsibilities, duties, and skills required.” Finally, Delva relies upon the “principal duties and responsibilities” section of the job description of his own position as a maintenance mechanic to establish his qualifications for the painter/plasterer position. Neither of the parties cited any case defining or interpreting the phrase “similarly qualified” as it applies in this element of the first stage of the framework. In any event, counsel for both parties expressed satisfaction with use of the phrase “roughly equivalent” as a suitable definition. We assume, without deciding, that it is appropriate to evaluate whether Delva and Browne were similarly qualified based on the information of which Gleeson and MacLachlan were or should have been aware. To that end, Delva asserts that, by virtue of the interviewers’ knowledge of his work as a maintenance mechanic and the duties of that position, it should be assumed that these interviewers were aware of certain of Delva’s qualifications. Considering that both interviewers worked the day shift, and that neither had seen Delva, who worked on the second shift, paint, we reject Delva’s contention that they should have assumed he possessed all of the qualifications in his job description, especially those which he effectively disclaimed in the interview. Delva admitted that when asked during the interview about various painting techniques and substances, he indicated to Gleeson and MacLachlan that he had no knowledge of, or familiarity with, the following: a coat of paint, polyurethane, varnish, spray painting with compressors, or skim coating. He also told them that he could not mix paint (one of the three items listed in the “qualifications” section of the job posting and one of the “principal duties and responsibilities” listed on the job description), and that his spray painting experience was “cleaning home radiators,” as opposed to the requisite experience of spray painting with compressors. In addition, Delva argues that it was error to consider the ability to use a spray compressor when evaluating whether candidates were similarly qualified because he, a maintenance mechanic who worked the night shift, had never seen a hospital painter/plasterer, concededly a day shift employee, use a spray compressor. Regardless, the objective evidence established that the hospital listed experience with spray compressors as a required skill of the position and his lack of witnessing the use of this equipment was not adequate to establish a genuine issue of material fact whether compressors were used by the hospital painter/plasterers or whether skill and experience with spray compressors was an essential requirement of that job. According to the defendant, his painting experience at the hospital consisted of painting a red line around the concrete housing of electrical motors or pumps, painting walls, offices, and IV poles, and applying epoxy to the floor in the mechanical room and the hallway in the engineering area.

School Committee of Lowell vs. Vong Oung & others. No. 07-P-184. Middlesex. December 5, 2007. - September 25, 2008. Present: Celinas, Smith, & Sikora, JJ. School and School Committee, Termination of employment, Arbitration. Arbitration, School committee, Authority of arbitrator, Arbitrable question. Public Policy. Discussion of the standard of review applicable in an action to review an arbitration award. [703-704] An arbitrator possessed authority under G. L. c. 71, § 42, to review, for substantive and procedural errors, a school superintendent’s dismissal of three teachers for inadequate fluency in English, and also possessed authority to reinstate the teachers if the school committee failed to meet its burden of proof. [704-705] This court concluded that, absent a showing of fraud, an arbitrator’s decision to exclude from evidence in an arbitration hearing certain test results was beyond judicial review, where the arbitrator had rational reasons for excluding the results. [705-707] This court declined to resolve the validity of three grounds of an arbitration award that arguably trespassed into considerations of public policy, where those grounds were gratuitous to the award. [707-708] Civil action commenced in the Superior Court Department on April 7, 2006. The case was heard by Christine M. McEvoy, J. James P. Hall for the plaintiff. James L. Messenger for the defendants. Christopher DeMayo & Jeffrey S. Strom, for Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association & others, amici curiae, submitted a brief. Vandy Duch and Pedro Espada. Justice Celinas participated in the deliberation on this case prior to his retirement. Sikora, J. In October of 2003 the superintendent of the Low: ell public schools terminated three teachers for “failure to demonstrate fluency in English.” None of the teachers had been bom in the United States: Vong Oung and Vandy Duch grew up in Cambodia, and Pedro Espada in Puerto Rico. The School Committee of Lowell (Committee) now appeals from the judgment of the Superior Court confirming the arbitration award reinstating all three teachers with full back pay and related benefits. We affirm. 1. Background. By a referendum vote in 2002, the Massachusetts electorate approved the general elimination of bilingual education in Massachusetts public schools. General Laws c. 71 A, inserted by St. 2002, c. 386, § 1, implements the referendum: it mandates that “all children shall be placed in English language classrooms,” c. 71 A, § 4, conducted by teachers “fluent and literate in English,” c. 71A, § 2(b). The pertinent Department of Education (DOE) regulations require school district superintendents to “provide annually to the [DOE] a written assurance that teachers of English language classrooms ... are literate and fluent in English.” 603 Code Mass. Regs. § 14.05(1) (2003). A teacher’s fluency is to be “determined through one or more of the following methods: (a) classroom observation and assessment by the teacher’s supervisor, principal, or superintendent; or (b) an interview and assessment by the teacher’s supervisor, principal, or superintendent; or (c) the teacher’s demonstration of fluency in English through a test accepted by the Commissioner of Education; or (d) another method determined by the superintendent and accepted by the Commissioner.” 603 Code Mass. Regs. § 14.05(3) (2003). The DOE’s March 27, 2003, written memorandum (“DOE guidelines”) to all school superintendents states that “/a] test is needed only in cases where the teacher’s English fluency is not apparent through classroom observation and assessment or interview and assessment” (emphasis in original). If a teacher fails to demonstrate fluency through assessments by classroom observation or interview, the DOE recommends the administration of the American Council on the Teaching of Foreign Languages (ACTFL) Oral Proficiency Interview (OPI) for assessment of the teacher’s language skills. The DOE guidelines state also that, in the event that a school district chooses to employ an assessment tool other than the OPI, it should contact the DOE to ascertain whether the alternative would be “accepted by the Commissioner.” The Committee’s certification of its teachers deviated from the DOE regulations and guidelines in several particulars: (1) it bypassed the processes of assessment by classroom observation or by interview; (2) it allowed a teacher to demonstrate fluency by means of a passing score on the so-called SPEAK test without administration of the OPI and without approval of the SPEAK test by the DOE; and (3) it presumed that all native English speakers who “were educated in English in mainland US schools for at least [four] years during their K-12 education” were fluent in English and thus exempt from assessment. Prior to the three teachers’ termination in 2003, representatives of the Lowell school district had evaluated them on multiple occasions and had awarded them satisfactory ratings in every category, including the use of appropriate instruction and questioning techniques, proper monitoring of students’ understanding of the curriculum, and clear communication of learning goals. In the fall of 2003, the Committee determined that the teachers were not exempt from the fluency assessment. The teachers took the SPEAK test but did not achieve passing scores. They then took the OPI test. Oung and Duch each failed it three times, and Espada failed it twice. The superintendent determined that she could not attest to the teachers’ fluency in English as required by the DOE regulations, and in October, 2003, she terminated their employment. At the time, all three had the status of professional teachers and the coverage of a collective bargaining agreement. General Laws c. 71, § 42, as appearing in St. 1993, c. 71, § 44, does not permit termination of a teacher with professional status “except for inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or . . . other just cause.” The statute confers upon a dismissed teacher the right to “seek review of a dismissal decision ... by filing a petition for arbitration with the commissioner.” Ibid. At the arbitration proceeding, the school committee has the burden to show cause for termination. Ibid. If the arbitrator finds that “the dismissal was improper,” he or she “may award back pay, benefits, reinstatement, and any other appropriate non-financial relief or any combination thereof.” Ibid. The superintendent terminated all three teachers pursuant to G. L. c. 71, § 42, for “other just cause.” The teachers invoked arbitration. The arbitrator instructed the Committee that the admission of the OPI score reports into evidence without affording the teachers an opportunity to cross-examine the OPI graders would violate the teachers’ procedural rights of meaningful cross-examination. The Committee obtained subpoenae from the Superior Court ordering Language Testing International (LTI), the company administering the OPI test, “immediately [to] produce the names and addresses of all raters and graders for the various OPI tests of” the teachers; “to produce audio tapes of the . . . OPI tests”; and “to send a representative who is a nationally recognized expert in the use and administration of the OPI tests to be a witness [at] the arbitration hearing.” The graders, who lived over one hundred miles from Lowell, did not comply with the Committee’s request to testify at the arbitration hearing. The arbitrator found that the graders’ “qualifications and training in OPI test administration and rating ha[d] a profound impact on the reliability of the OPI test results” and on the ultimate determination of the teachers’ inadequate fluency in English. He ruled that the audio recordings of the teachers’ OPI tests and the expert testimony of an LTI employee, who admittedly had not administered the test, would violate the teachers’ right to cross-examine adverse witnesses. He therefore excluded the OPI scores. He excluded the OPI scores also on the ground that the Committee had failed to evaluate the teachers’ fluency by classroom observation or interview before administering the OPI, as the DOE guidelines required. The arbitrator admitted in evidence the results of the SPEAK test because the Committee produced its graders for cross-examination. He found that the Committee had made no attempt to have the SPEAK test accepted by the DOE as a valid assessment tool. Despite the Committee’s failure to meet this threshold requirement, he addressed the results of the test. He found that the Committee had failed to show that the SPEAK test results adequately reflected the teachers’ fluency, because the graders and the Committee had failed to follow proper procedures in the administration of the test and in the evaluation of its results. The exclusion of the OPI scores caused the Committee’s failure to carry its burden of proof of the teacher’s lack of fluency in English and therefore of their disqualification by just cause within the meaning of G. L. c. 71, § 42. As an independent ground of decision, the arbitrator added that even if valid OPI scores had established a lack of fluency, the Committee’s confinement of fluency assessment to nonnative English speakers had improperly discriminated against the teachers in violation of G. L. c. 151B, § 4. 2. Discussion. The Committee argues on appeal that the arbitrator exceeded his authority because a superintendent’s determination of inadequate fluency and resulting dismissal is not an arbitrable subject matter; because he improperly excluded the OPI scores; and because he violated State law and public policy. We address each contention in turn. a. Standard of review. “Absent proof of one of the grounds enumerated in G. L. c. 150C, § 11, to vacate arbitral awards, we are strictly bound by [an] arbitrator’s factual findings and conclusions of law, even if they are in error.” School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 758 (2003), citing Lynn v. Thompson, 435 Mass. 54, 61-62 (2001), cert, denied, 534 U.S. 1131 (2002). However, “the question whether an arbitrator exceeded his or her authority is always subject to judicial review.” Board of Higher Educ. v. Massachusetts Teachers Assn., NEA, 62 Mass. App. Ct. 42, 47 (2004). See G. L. c. 150C, § 11(a)(3). b. Arbitrator’s authority. General Laws c. 71, § 42, permits an arbitrator to overturn a superintendent’s or principal’s disciplinary personnel decision on substantive or procedural grounds. See School Comm. of Pittsfield v. United Educators of Pittsfield, supra at 760-762; Board of Higher Educ. v. Massachusetts Teachers Assn., NEA, supra at 48. The Committee attempts to distinguish the dismissal of a teacher for substandard language skills from the dismissal for one of the causes enumerated in G. L. c. 71, § 42. It argues that because G. L. c. 71 A, §§ 2(b) and 4, mandate that teachers be fluent in English and because 603 Code Mass. Regs. § 14.05(1) imposes the obligation on superintendents to provide a written assurance that each teacher is in fact fluent in English, the decision to dismiss a teacher who fails to meet the fluency requirement is the “only option under the law” and thus is not an arbitrable subject matter intended by G. L. c. 71, § 42. This argument lacks merit because it presupposes that the teachers are not fluent in English. General Laws c. 71, § 42, protects teachers with professional status from dismissal for reasons ostensibly authorized by the statute, but deficient in fact or violative of the teachers’ substantive and procedural rights under a collective bargaining agreement. The Committee concedes that the superintendent terminated the three teachers for “other just cause” under G. L. c. 71, § 42. Pursuant to that statute and the teachers’ collective bargaining agreement, the arbitrator possessed authority to review the dismissal decision for substantive and procedural errors and authority to reinstate the teachers if the Committee had failed to meet its burden of proof. The issue here is fundamentally different from the one left open by the Supreme Judicial Court in School Dist. of Beverly v. Geller, 435 Mass. 223 (2001): whether an arbitrator has the authority to reinstate a teacher, and thus to “substitute!] his [or her] own judgment as to proper discipline for that of the [school] district,” if the school district establishes cause under G. L. c. 71, § 42. See School Dist. of Beverly v. Geller, supra at 225 (Cordy, J., concurring). Here the question is whether, in the first place, the school authority has established such cause. c. Factual and legal grounds of the arbitrator’s decision. The arbitrator rested his decision upon multiple grounds: (1) the exclusion of the OPI failing scores and the-resulting elimination of the Committee’s proof of inadequate fluency; (2) the failure of the Committee under the DOE guidelines to exhaust the prerequisite methods of the classroom observation and assessment or interview and assessment of fluency by the superintendent, principal, or supervisor before imposition of a testing mechanism; (3) exclusion of the SPEAK test failing scores as proof of inadequate fluency for lack of approval of the examination by DOE and for commission of numerous violations of its protocols by its administrators and graders; (4) the Committee’s imposition of fluency testing upon nonnative English speakers but not upon native English-speaking teachers (those educated in the mainland United States for at least four of their years from kindergarten through grade twelve) in supposed violation of the prohibition of G. L. c. 15IB, § 4(1), against employment discrimination upon the basis of national origin; (5) the conclusion that the personal qualities of the three dismissed teachers rendered them positive role models likely to elevate the performance of their students; and (6) the conclusion that a failure of fluency did not compel the sanction of dismissal but rather the remedy of retraining or reassignment of the teachers within their areas of certification by reason of their seniority. He appears to have reached each one as an independently adequate basis for his award of reinstatement. Several grounds lie beyond the scope of judicial review. The Committee argues that the exclusion of the OPI scores amounts to a “refus[al] to hear evidence material to the controversy” reviewable under G. L. c. 251, § 12(a)(4), inserted by St. 1960, c. 374, § 1. That provision does not bestow reviewability here for two reasons. The OPI scores lack materiality because the Committee lacked authority to substitute them for the mandated priority of classroom evaluation and face-to-face interviews. Also, the arbitrator did not unreasonably refuse to admit them, but excluded them rationally because the teachers could not fairly controvert them without information from the inaccessible test administrator. In the absence of a showing of fraud, arbitral errors of law or fact remain beyond judicial review. Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 674 (2002), citing Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990). For the same reasons, the exclusion of the SPEAK test results did not constitute a refusal to receive material information within the meaning of c. 251, § 12(a)(4). The results would not have cured the Committee’s failure to employ the mandated primary evaluation procedures and therefore lacked materiality. The exclusion of them did not constitute an arbitrary refusal but rather a reasonable precaution against unreliability. Finally, the Committee’s contention that the arbitral award includes excessive back pay without a subtraction for required mitigation efforts constitutes an issue of law and fact beyond the scope of our authority of review. d. The public policy limitation. The statutory limitation upon judicial review of arbitration decisions presumes the commitment of an issue to arbitration by a valid bargaining agreement. In Massachusetts, a governmental body cannot validly bargain away its responsibility for the public health, safety, and welfare. Elements of that inalienable duty are not delegable to contractual arbitration. An arbitrator cannot acquire authority reserved “by statute, by tradition, or by common sense ... to the sole discretion of the public employer so as to preserve the intended role of the governmental agency and its accountability in the political process.” Worcester v. Labor Relations Commn., 438 Mass. 177, 181 (2002), quoting from Lynn v. Labor Relations Commn., 43 Mass. App. Ct. 172, 178 (1997). See School Dist. of Beverly v. Geller, 435 Mass, at 230 (Cordy, J., concurring), quoting from School Comm. of Hanover v. Curry, 3 Mass. App. Ct. 151, 156 (1975), S.C., 369 Mass. 683 (1976) (upon “determinations ... of public law, the arbitrator possesses no special expertise . . ,”). See Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 603 (2000), and cases cited (arbitrators do not have authority to weigh the public policy implications of their awards; only the matters encompassed by the enabling collective bargaining agreement and related contracts). In matters of employee dismissal, the reviewing court will inspect an arbitral award for the violation of a public policy limitation by three criteria: (1) whether the policy is defined, dominant, and visible in specific law sources, and not merely inferable from a general consideration of public interests; (2) whether the discharged employee has engaged in disfavored conduct integral to the performance of his duties; and (3) whether the deficient or offensive conduct would typically require dismissal. Id. at 604-605, and cases cited. In the present circumstances the Committee contends that the award of reinstatement violates the public policy of mandatory fluent English language instruction embodied in G. L. c. 71 A, §§ 2(b) and 4, 603 Code Mass. Regs. § 14.05, and the DOE guidelines. Three of the grounds offered by the arbitrator arguably trespass into considerations of public policy: (1) the unanalyzed conclusion that the Committee’s decision not to investigate the fluency of native English-speaking teachers constituted employment discrimination against nonnative English-speaking teachers in violation of G. L. c. 151B, § 4(1); (2) the conclusion that the personal qualities and histories of the three teachers would so serve their students as to override problems of fluency; and (3) the conclusion that the Committee could not dismiss, but must retrain and reassign, the three teachers despite any fluency shortcomings. However, we need not resolve their validity. Those grounds are gratuitous to the award. Their invalidity would not require its reversal. The award would remain effective by reason of the limited, independent, and unreviewable determinations of fact and law undermining the Committee’s evaluation of the teachers’ inadequate fluency. 3. Conclusion. We therefore affirm the judgment of the Superior Court confirming the arbitration award. So ordered. Alternate spellings of Vong Oung’s name appear in the record. We acknowledge the amicus brief filed by the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association; Mass English Plus Coalition; Multicultural Education Training and Advocacy, Inc.; Massachusetts Immigrant and Refugee Advocacy Coalition; Southeast Asia Resource Action Center; Puerto Rican Legal Defense and Education Fund, Inc.; Harry H. Dow Memorial Legal Assistance Fund; Boston Asian Youth Essential Service; Irish Immigration Center; Massachusetts Coalition for Equitable Education; Children’s Law Center of Massachusetts; Juvenile Justice Center; Suffolk Law School; Citizens for Public Schools; The Union of Minority Neighborhoods; American Civil Liberties Union of Massachusetts; National Lawyers Guild, Massachusetts Chapter; Jewi

Thomas O’Connor Constructors, Inc. vs. Massachusetts Commission Against Discrimination & another. No. 07-P-831. Norfolk. March 3, 2008. - September 9, 2008. Present: Grasso, Armstrong, & Rubin, JJ. Anti-Discrimination Law, Employment, Race. Employment, Discrimination. Massachusetts Commission Against Discrimination. Damages, Emotional distress. Emotional Distress. This court concluded that an employer who was on notice of unlawful discriminatory acts by its supervisor, directed toward an employee of a subcontractor at a unitary work site, and who failed to take reasonably adequate remedial action was liable under G. L. c. 15 IB, § 4(4A); further, this court declined to resolve the contours of an employer’s derivative liability under § 4(4A) for acts of discrimination directed at nonemployees by its own personnel without regard to the employer’s awareness of those acts. [554-560] Rubin, J., concurring in the judgment and dissenting in part. In the circumstances of an action for employment discrimination based on race, the repeated, offensive, and racist remarks of the job site superintendent of a general contractor were sufficiently severe or pervasive to create a hostile work environment for the plaintiff, an African-American employee of a subcontractor and, without any remedial action by the general contractor upon learning of the conduct, permitted recovery against that entity. [560-561] A Superior Court judge properly determined that the record in an employment discrimination action supported the Massachusetts Commission Against Discrimination’s award of emotional distress damages to the plaintiff. [561] Civil action commenced in the Superior Court Department on March 3, 2006. The case was heard by Charles J. Hely, J. James F. Grosso for the plaintiff. Beverly I. Ward for the defendant. Mitchell S. Possick, for the intervener, was present but did not argue. Jarvis Aldridge, intervener. Grasso, J. Thomas O’Connor Constructors, Inc. (O’Connor), appeals from a judgment of the Superior Court affirming a decision and order of the Massachusetts Commission Against Discrimination (MCAD) on a claim brought by Jarvis Aldridge, an African-American employee of Rustic Fire Protection (Rustic). The MCAD ordered O’Connor to pay Aldridge $50,000 in emotional distress damages on account of offensive racial remarks made to or about Aldridge on four different occasions by Paul Daley, O’Connor’s job site superintendent. The MCAD also ordered O’Connor to pay a $10,000 civil penalty and to conduct annual training sessions for a period of five years. On appeal, O’Connor asserts that (1) imposition of liability on O’Connor under G. L. c. 151B, § 4(4A), for the racially offensive remarks of Daley, is error where no employment relationship existed between O’Connor and Aldridge and O’Connor neither knew nor had reason to know of Daley’s remarks; (2) Daley’s remarks were insufficiently severe and pervasive to create a racially hostile work environment; and (3) the evidence was insufficient to support an award of emotional distress damages. We affirm, albeit on grounds different from those relied on by the MCAD. We conclude that O’Connor is directly liable for tolerating the hostile work environment created by Daley where it had notice of Aldridge’s claim but failed to remedy or take sufficient corrective action and, instead, returned Daley to supervise the work site. 1. Background. On December 7, 1998, Aldridge filed a complaint with the MCAD against O’Connor claiming that he was an employee of O’Connor and that Daley, a supervisor, had engaged in unlawful discrimination on the basis of race and color in violation of G. L. c. 15IB, § 4(1). The alleged unlawful discrimination consisted of Daley’s use of racial epithets when talking with or about Aldridge. A hearing officer concluded that Daley made the racially offensive remarks alleged; that Aldridge was not the employee of O’Connor, but of Rustic; and that notwithstanding the absence of an employment relationship with Aldridge or liability under § 4(1), O’Connor was liable under G. L. c. 151B, § 4(4A), on account of Daley’s interference with Aldridge’s right to a non-hostile work environment. The hearing officer awarded Aldridge $25,000 in emotional distress damages and ordered O’Connor to pay a $10,000 civil penalty and to conduct annual training sessions for all of its employees, managers, and supervisors for a period of five years. On review, the MCAD affirmed the hearing officer’s findings of fact and conclusions of law, but deemed the award of emotional distress damages inadequate and vacated it. The MCAD also modified the annual training order by hmiting its application to managers and supervisors. On remand, the hearing officer awarded $50,000 to Aldridge for emotional distress damages and the MCAD affirmed. A judge of the Superior Court affirmed the MCAD decision and order and this appeal followed. 2. Facts. We summarize the facts found by the hearing officer. O’Connor was the general contractor on a project for renovation of two buildings at the University of Massachusetts at Lowell (UMass-Lowell). Rustic was a subcontractor at the project, responsible for installation of a new sprinkler and fire protection system. Besides Rustic, two other subcontractors worked on the project. Daley, who was the job site superintendent, served as O’Con-nor’s chief spokesperson and authority at the project. His responsibilities entailed overseeing of the work of the subcontractors, including coordinating and assisting in scheduling of the work. Daley unlocked and opened doors to various areas of the job site, and occasionally gave keys to the subcontractors and their employees, including Aldridge. Daley did not assign work to Rustic’s employees, order supplies on their behalf, supervise them, or tell them what to do. Ron Russell, Rustic’s foreman, directly supervised and provided materials to Rustic’s employees, including Aldridge. When Russell was on vacation, Aldridge served as acting supervisor. Aldridge received compensation only from Rustic for his work on the project. From November 27, 1997, until the end of August, 1998, Daley and Aldridge interacted without difficulty. Thereafter, on four separate occasions, Daley made racially offensive remarks to or about Aldridge or James Lucas, an African-American who worked for O’Connor as a laborer. Specifically, on August 27, 1998, in the presence of Russell and Aldridge, Daley referred to Lucas as a “fucking dumb nigger.” When Aldridge asked Daley if he knew what the word meant, Daley responded, “It’s a phrase used in the Holocaust with reference to Jews.” Upon being told that the slur referred to “black people,” Daley laughed. A few weeks later, on September 21, in the presence of Aldridge alone, Daley again referred to Lucas as a “fucking dumb nigger.” Aldridge turned and walked away. The next day, during the lunch break and following a conversation about sports, Daley referred to Aldridge as a “black bastard” in the presence of Russell and other pipefitters. Although angered by the remark, Aldridge did not respond. Finally, on September 24, 1998, while Daley and Russell were driving to New Hampshire, Daley complained to Russell that Aldridge reaped the benefits of a prevailing wage job because he is a “fucking nigger.” On returning to the job site, Russell told Aldridge of Daley’s remark. Aldridge became visibly upset. Russell also told Rustic’s project manager, Chad Duboc, of Daley’s comments. Aldridge informed John Duboc, Rustic’s owner, about Daley’s remarks and requested that he (Aldridge) be removed from the work site. John Duboc told Aldridge that Rustic needed him at the project and denied his request to work elsewhere. Aldridge wrote a letter, dated September 30, 1998, and addressed “To Whom It May Concern,” detailing the four incidents. He gave the letter to Lucas and then to a union business agent in the hope that the letter would find its way to O’Connor, which it did. Joseph Vogel was O’Connor’s project manager for the UMassLowell project. Vogel visited the work site one or two times per week. In October, 1998, upon hearing that Daley had made racial comments to Aldridge, Vogel went to the work site and asked Aldridge, “Jarvis, what’s going on?” Aldridge responded angrily, “There’s nothing wrong with being a black man.” Aldridge told Vogel that he should “read the letter” and that he (Aldridge) would be pressing charges against O’Connor. Vogel told Aldridge that he would “get to the bottom of it.” Daley was away on his honeymoon when Vogel began his investigation. When Daley returned, Vogel told him not to report to the job site. On October 19, Vogel and other O’Connor officials met with Daley to discuss the charges. Daley adamantly denied making any racial slurs. Vogel then spoke with Russell and with Lucas, one of O’Connor’s own employees. Russell corroborated Aldridge’s account, advising Vogel that he would “back his man.” Lucas denied ever being directly subjected to discrimination in any form by Daley; but when O’Connor presented Lucas with a written statement to that effect, Lucas refused to sign the document. O’Connor concluded its investigation without again speaking with Aldridge, without disciplining Daley, and without notifying Aldridge of the results of its investigation or that Daley would be returned to the work site. In its internal investigation summary, O’Connor took the position that “[sjince the specific situation is not known at this time, we will wait until a ‘claim’ is actually in house and review before taking action. (The term claim in house is referencing an ‘official action’ generated against O’Connor ... — this might not happen at all).” O’Connor reassigned Daley to the project job site. Daley had been off the site for two weeks while on his honeymoon and an additional two weeks while the matter was investigated. Upon seeing Daley back at the job site, Aldridge packed up his tools and left work that, in his words, he loved — a job with “good money” and at which he worked with “good people” — because he could no longer tolerate working there while Daley was present. The hearing officer credited the testimony of Aldridge and his wife that at the time of the racial remarks, Aldridge began coming home from work very disturbed and angry. He confided to his wife that his attitude was in response to Daley’s racial slurs. Aldridge experienced physical manifestations of distress. He lost weight and had difficulty sleeping. He became withdrawn and isolated; he stopped playing with his children, ceased communicating with his wife, and locked himself in his room to avoid contact with them. Aldridge’s outlook improved temporarily when Daley was away, but the withdrawn behavior returned when Daley returned to the job site. 3. Liability of O’Connor. The working arrangement that serves as backdrop to the present claim is commonplace in large construction projects where a general contractor and specialized subcontractors interact at a common work site. Aldridge’s claim is unusual, however, in that he sought recovery not against Rustic, his employer, or even against Daley, the perpetrator, but against O’Connor, the general contractor, on account of Daley’s racially offensive remarks. The MCAD did not rest its decision on G. L. c. 151B, § 4(1), under which Aldridge brought his claim. The hearing officer found, and the parties do not challenge, that Aldridge was an employee of Rustic, but not of O’Connor. Absent such an employment relationship, the MCAD concluded that O’Connor could not be liable to Aldridge under § 4(1), either directly or derivatively, for the acts of its supervisor, Daley. Instead, the MCAD ruled that O’Connor was liable to Aldridge under G. L. c. 151B, § 4(4A), inserted by St. 1989, c. 722, § 14, which makes it an unlawful practice: “For any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter . . . .” Guided by one of its decisions that imposed liability on a direct perpetrator of discrimination not part of the employment unit, the MCAD interpreted G. L. c. 151B, § 4(4A), so as to make O’Connor liable for Daley’s actions regardless of its knowledge. See Modern Continental/Obayashi v. Massachusetts Commn. Against Discrimination, 445 Mass. 96, 105 (2005) (Modern Continental) (statute to be interpreted liberally to effectuate purpose of eliminating workplace discrimination). The MCAD reasoned that O’Connor and Aldridge were “person[s]” as defined in G. L. c. 151B, § 1(1), inserted by St. 1946, c. 368, § 4, and that the right to work in an environment free from unlawful racial harassment is among the rights encompassed by the statute. Moreover, relying on College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156,163-167 (1987) (College-Town) (employer hable under § 4[1] for intentional acts of its supervisory personnel regardless of its notice of those acts), it concluded that O’Connor could be held hable under § 4(4A) for the acts of Daley regardless of its knowledge of those acts. We agree with the MCAD that O’Connor could not be liable to Aldridge under § 4(1) because there was no employment relationship between O’Connor and Aldridge. Indeed, no Massachusetts appellate decision ever has interpreted § 4(1) to apply to an action brought by or against someone outside the employment unit. See Modem Continental, 445 Mass, at 97, 105 (declining to read G. L. c. 151B in manner that would absolve employer of all responsibility to its own employee for hostile work environment attributable to actions of subcontractor). We also agree with the MCAD that O’Connor, the general contractor, is liable to Aldridge, the employee of a subcontractor at the work site, under § 4(4A). Where on the present facts we conclude that O’Connor is liable to Aldridge for failing to remedy a racially hostile work environment of which it had notice, we need not resolve the more difficult question whether O’Connor could be liable under § 4(4A) solely on account of Daley’s remarks without regard to its awareness of those remarks. Although no Massachusetts appellate decision ever has interpreted § 4(4A) to make an employer liable to someone other than its employee, the statutory language admits of such a result. General Laws c. 151B, § 4(4A), makes it unlawful for “any person” to “coerce, intimidate, threaten, or interfere with another person” in the exercise or enjoyment of rights granted under the chapter. O’Connor, Aldridge, and Daley are all “persons” as defined in G. L. c. 151B, § 1(1), and the right to work in an environment free from unlawful racial harassment is unquestionably among the rights encompassed by the statute. In our view, the present problem lies in the application of § 4(4A) not to acts of which O’Connor was aware but to acts of O’Connor’s employees of which O’Connor was not aware. We acknowledge that, generally speaking, a corporation is a legal entity that must act through agents and employees. Nevertheless, we are concerned that broad application of this principle in the context of § 4(4A) could produce untoward results not contemplated by either the language or the intent of that subsection. Unlike the language of § 4(1), as appearing in St. 1989, c. 516, § 4, which contemplates derivative liability by making it unlawful for “an employer, by himself or his agent,” to engage in discriminatory practices, the language of § 4(4A), by contrast, omits any reference to agents and speaks only to the direct liability of a “person.” Nor does the tort doctrine of respondeat superior dictate vicarious liability under § 4(4A). “[RJespondeat superior is the proposition that an employer, or master, should be held vicariously liable for the torts of its employee, or servant, committed within the scope of employment” (emphasis supplied). Dias v. Brigham Med. Assocs., 438 Mass. 317, 319-320 (2002). See Kavanagh v. Trustees of Boston Univ., 440 Mass. 195, 198 (2003). A discrimination action under G. L. c. 151B is, however, a statutorily created right, not a common-law tort. See Jancey v. School Comm. of Everett, 421 Mass. 482, 500-501 (1995) (despite historical connection statute prohibiting discrimination may have with common-law tort or contract claims, “acts of discrimination — whether intentional or unintentional — do not thereby become torts”). That principles of vicarious liability operate differently, and that caution is in order in applying such principles throughout the various subsections of G. L. c. 151B, § 4, is evident from College-Town, 400 Mass, at 163-167. There, the court considered the scope of an employer’s vicarious liability under § 4(1) for discrimination in the workplace arising from the acts of its agent. Taking note that language of § 4(1) “prohibits discrimination by ‘an employer, by himself or his agent,’ ” the court concluded that the Legislature had made clear its intent to impose vicarious liability under that section. Id. at 165, quoting from G. L. c. 151B, § 4. “It is clear that the Legislature intended that an employer be liable for discrimination committed by those on whom it confers authority.” College-Town, supra. Guided by the Legislature’s expressed intent, and without resolving the extent to which “G. L. c. 151B, § [4(1)], imposes an affirmative obligation on an employer to ensure that its workplace is not pervaded by harassment based on race, color, religious creed, national origin, sex, or ancestry, regardless of [its] source,” the court held that the employer was “vicariously liable for the acts of its agents — its supervisory personnel.” Ibid. Significantly, in our view, College-Town limited the employer’s vicarious liability under § 4(1) to the acts of its supervisory personnel, not those of all of its workers, as would have been the case in a common-law tort. We note, as well, that the considerations relied on in College-Town for holding an employer vicariously liable under § 4(1) for its supervisor’s discriminatory actions either do not exist, or exist with diminished force in the context of a claim under § 4(4A) by a person like Aldridge who is not part of the employment unit. When the claimant is not part of the employment unit, the supervisor does not exercise direct supervisory authority over him. Nor does harassment by the supervisor carry the same implied threat of punishing resistance through exercise of supervisory powers as exists within the employment unit. See id. at 165-166. Likewise absent is the concern regarding the anomaly that a notice requirement creates when the perpetrator is also the supervisor to whom notice would be given by an employee. See id. at 166-167. When the claimant is not part of the employment unit, no chain of command considerations restrict his ability to notify those with the ability to rectify the problem. Indeed, as was done here, he is free, if not obliged, first to approach his own employer, which has an obligation to protect its employee, whether by notifying the perpetrator’s employer or by removing the claimant from the situation should notification or other protective measures prove unsuccessful. See Modem Continental, 445 Mass, at 108-109. Likewise, as was done here, the claimant is free to provide notice of the discrimination to those in the corporate hierarchy of the perpetrator’s employer and seek protection from them. We are concerned that application of principles of vicarious liability enunciated in College-Town for a claim under § 4(1), to a claim under § 4(4A), would render an employer strictly and immediately hable for discrimination directed at nonemployees that it had no opportunity to control. Such liability would arise regardless of the employer’s knowledge of the discrimination, regardless of the remedial steps taken upon learning of the discrimination, and regardless even of the existence of

Melissa Romero vs. UHS of Westwood Pembroke, Inc., & another. No. 07-P-931. Middlesex. May 5, 2008. - September 8, 2008. Present: Grasso, Trainor, & Wolohojian, JJ. Health Care Facility. Employment, Retaliation, Discrimination, Termination. Anti-Discrimination Law, Sex, Termination of employment. Unlawful Interference. Contract, Interference with contractual relations. In a civil action alleging a violation of G. L. c. 149, § 187, the Massachusetts medical provider whistleblower statute, the judge properly granted summary judgment in favor of the defendant, a health care facility, where the plaintiff failed to demonstrate that she objected to any existing activity, policy, or practice of the defendant; where the record contained no evidence that tire proposal to which the plaintiff objected (which was never adopted) violated any law, rule, regulation, or professional standard of practice; and where the claimed retaliatory conduct occurred before the plaintiff voiced her objection to the proposal. [540-543] In a civil action alleging employment discrimination based on pregnancy, the judge properly granted summary judgment in favor of the defendant employer, where the record did not support the claim that an administrative reorganization was an adverse employment event, and the plaintiff did not produce evidence that she and the person to whom she reported as a result of the reorganization were similarly situated [543-545]; and where, with respect to the plaintiff’s termination as part of a layoff, the plaintiff failed to meet her burden of producing sufficient credible evidence that the employer’s proffered nondiscriminatory reasons for her layoff were merely a pretext [545-548]. In a civil action alleging intentional interference with advantageous business relations, the judge properly granted summary judgment in favor of the defendant, where the plaintiff, as a matter of law, could not satisfy the element of “improper motive or means” required to make out an interference claim. [548] Civil action commenced in the Superior Court Department on September 10, 2003. A motion for partial summary judgment was heard by Julian T. Houston, J., and the remaining counts were also heard by him on a motion for summary judgment. Jeffrey R. Mazer for the plaintiff. Barbara S. Hamelburg (.Laura Bernardo Sorafine with her) for the defendants. Robert Spiegel. Wolohojian, J. The plaintiff, formerly the director of a partial hospitalization program (the Boston Center) of the defendant, UHS of Westwood Pembroke, Inc. (Westwood), appeals from the dismissal on summary judgment of her claims for (1) violation of G. L. c. 149, § 187, the Massachusetts medical provider whistleblower statute; (2) violation of G. L. c. 15IB; and (3) intentional interference with advantageous business relations. The claims were based on an administrative reorganization of staff conducted by Westwood in April, 2002, that resulted in the plaintiff reporting to someone new, and on the plaintiff’s subsequent termination as part of a reduction in force in July, 2002. In broad summary, the plaintiff claimed that both the reorganization and her subsequent termination were unlawful responses to her (a) objecting to proposed patient-to-staff ratio increases; and (b) notifying her employer that she was pregnant. On appeal, we view the record in the light most favorable to the plaintiff, Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), and “consider the record and the legal principles involved without deference to the motion judge’s reasoning.” Zielinski v. Connecticut Valley Sanitary Waste Disposal, Inc., 70 Mass. App. Ct. 326, 334 (2007). We discuss each claim in turn below. 1. General Laws c. 149, § 187. Section 187 of G. L. c. 149 provides a cause of action to health care providers who are retaliated against for disclosing problems within health care facilities. Section 187(6) prohibits health care facilities from “refus[ing] to hire, terminat[ing] a contractual agreement with or tak[ing] any retaliatory action against a health care provider” for engaging in any of the acts protected under the section. The protected acts include those contained in § 187(6)(3), on which the plaintiff relies: “objecting] to or refusing] to participate in any activity, policy or practice of the health care facility . . . which the health care provider reasonably believes is in violation of a law or rule or regulation promulgated pursuant to law or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health.” A claim under § 187(¿>)(3) requires the plaintiff to establish that (1) she objected to, or refused to participate in, an activity, policy or practice that (2) she reasonably believed to be in violation of a law, rule, regulation, or professional standard of practice, (3) which she reasonably believed posed a risk to public health, and (4) she was retaliated against as a result. Summary judgment was properly entered on this claim for several reasons, not least of which being that the record does not show that the plaintiff objected to any existing “activity, policy, or practice” at Westwood. Instead, the record reflects that the plaintiff objected to a proposed increase in the patient census which, as a result of objections raised by her and others, was in fact never adopted., General Laws c. 149, § 187, does not extend to mere proposals. Instead, the plain language of the statute refers only to existing activities, policies, and practices of a health care facility that are (the statute itself using the present tense) in violation of a statute, rule, regulation, or professional standard. The policies underlying the statute would be undermined were we to extend it to include objections to proposals, particularly to proposals such as the one at issue in this case, that are never adopted. As reflected in the provision of the statute requiring that a health care facility be given notice of an objection in cases Where the health care provider initially objects to a third party, a significant purpose of the statute is to “afford[] the health care facility a reasonable opportunity to correct the activity, policy or practice.” G. L. c. 149, § 187(c)(1). In those cases, if the health care facility corrects the problem, the objecting health care provider has no claim. Ibid. For the same reason, the plaintiff should have no claim here: she and others objected to the proposed increase in the pediatric patient census and, as a result, the proposal was abandoned. This salutary internal debate among health care professionals regarding how best to handle their medical practice is not the basis for a claim under G. L. c. 149, § 187. Summary judgment was also appropriately entered on this claim because the record contains no evidence that the proposal violated any law, rule, regulation or professional standard of practice. The record contains no evidence of any law, rule, regulation or professional standard governing the patient census or imposing a particular patient-to-staff ratio for a facility such as the Boston Center. In the absence of any such evidence, as a matter of law, the plaintiff could not have had an objectively reasonable belief that the proposed patient census increase was in violation of any statute, rule, regulation or professional standard. See Lynch v. Boston, 180 F.3d 1, 17 (1st Cir. 1999) (construing G. L. c. 149, § 185). The plaintiff’s personal views on the proposed patient census increase, unsupported by reference to any statutory, regulatory or professional standard of practice, were not enough to support her claim. Finally, to the extent that the plaintiff claims that the administrative reorganization that was announced on April 10, 2002, was retaliatory conduct within the meaning of § 187, that argument fails because the reorganization was announced before the plaintiff objected to the proposed patient census increase. The plaintiff has pointed to nothing in the record reflecting any date on which she aired her objection to the proposal apart from May 7, 2002, the date she sent a memorandum voicing her objections. It is logically and legally impossible for the claimed retaliatory conduct to have occurred before the plaintiff voiced her objection. For each of these reasons, summary judgment was appropriately entered in Westwood’s favor on the plaintiff’s claim under G. L. c. 149, § 187. 2. General Laws c. 15IB. In March, 2002, approximately six months after she was hired, the plaintiff informed her supervisor that she was pregnant with an expected delivery date in September. She contends that, as a result of this disclosure, West-wood took the same two adverse employment actions against her upon which she rested her whistleblower claim: i.e., as part of the administrative reorganization, she no longer reported directly to the chief executive officer, Robert Spiegel, and she was terminated as part of a reduction in force. A plaintiff must prove four elements to succeed on a claim under G. L. c. 151B: “membership in a protected class, harm, discriminatory animus, and causation.” Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001). There is no dispute in this case as to the first element: the plaintiff was pregnant. As to the second element, there is no dispute that her termination constituted actionable harm, but there is disagreement whether the structural reorganization did. In an indirect evidence case, such as this one, the third and fourth elements may be established using the familiar three-stage, burden-shifting paradigm, which we set out in the margin. a. The April reorganization. It was undisputed that Spiegel, Westwood’s chief executive officer, “began to consider the restructuring of Westwood’s child and adolescent partial hospitalization programs” in late January or early February, 2002 — in other words, before the plaintiff informed him that she was pregnant. Contrary to Westwood’s argument, however, this does not dispose of the plaintiff’s claim, because Spiegel never stated when he decided to go forward with the restructuring or when he decided to have the plaintiff report to a newly-created director of child and adolescent partial hospitalization services. Summary judgment, however, was properly granted because the record did not support a finding that the administrative restructuring was an adverse employment event. The plaintiff concedes that the restructuring did not change her job duties or her pay. She also admits that the restructuring did not “cause any difficulties for [her] in terms of [her] job function,” or in her “employee status.” However, she argues that “the restructuring [created] a redundancy” between her duties and those of her new supervisor, which facilitated her later termination as part of the reduction in force. This argument might have had some appeal had the plaintiff pointed to anything in the record to support her assertion that redundancies were created. Absent any such evidence, the reorganization did nothing more than create a new layer of reporting between the plaintiff and Spiegel. As a result of the reorganization, the plaintiff, instead of reporting directly to Spiegel, reported to Daniel Litwack (who was appointed the director of child and adolescent partial hospitalization services), who in turn reported to Spiegel. Standing alone, this was insufficient to constitute an adverse employment action. See Mac-Cormack v. Boston Edison Co., 423 Mass. 652, 663 (1996) (the fact that “[d]uties were rearranged and new reporting structures devised” did not amount to adverse employment action). Summary judgment was also appropriate because the plaintiff came forward with no evidence to show that Litwack and the plaintiff were similarly situated. The plaintiff provides no comparison of Litwack’s position, duties, pay, and experience with her own, whether in his new position or in his previous position at Westwood. Westwood’s undisputed evidence, on the other hand, was that Litwack had been employed longer at Westwood and had greater previous experience than the plaintiff. In the face of this evidence presented by Westwood, the plaintiff did not meet her burden of presenting evidence sufficient to withstand summary judgment with respect to the reorganization. b. The July layoff. The plaintiff’s claim arising from her termination as part of a layoff in July, 2002, is more complicated. As the motion judge found, the plaintiff satisfied her burden in coming forward with sufficient evidence to establish a prima facie case for purposes of stage one of the burden-shifting paradigm. The motion judge also properly determined that Westwood had amply met its burden of articulating nondiscriminatory reasons for the layoff and of presenting credible evidence that its reasons were the real reasons for laying off the plaintiff. This case, therefore, falls squarely within the analytical framework of Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34 (2005), in which the Supreme Judicial Court reviewed the granting of summary judgment in a case involving a reduction in force. Sullivan turned, as this case does, on whether the plaintiff had come forward with sufficient “credible evidence that [the employer’s] proffered reasons for her layoff were merely a pretext for a true intent of [pregnancy] discrimination.” Id. at 55. “This may be accomplished by showing that the reasons advanced by [Westwood] for making the adverse decision are not true.” Ibid., quoting from Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 117 (2000). Westwood pointed to ample evidence in the summary judgment record that the July, 2002, systemwide layoff was necessitated by financial losses. See note 9, supra. The Boston Center alone had posted pretax losses of more than $96,000 through June, 2002. The plaintiff herself acknowledged her understanding that if the patient census did not improve, staffing at the Boston Center would need to be reduced. The plaintiff does not attack or dispute the evidence of financial losses. Instead, she argues that pretext can be inferred from the facts that (a) Litwack was not terminated; (b) the director of the Lowell program (a nonpregnant woman) was not terminated; and (c) unlike four of the six employees who were terminated (all nonpregnant women), the plaintiff was not offered a comparable position at Westwood after her termination. None of these rebuts Westwood’s “proffered reasons for laying off [the plaintiff] and does not, by itself, create reasonable inferences of discriminatory animus and causation.” Sullivan v. Liberty Mut. Ins. Co., supra at 55. In large part, this is so because the record does not contain the information necessary to permit a reasonable inference of pretext to be drawn in this case. The plaintiff is correct that Litwack was not terminated as a part of the reduction in force. However, in order for a reasonable inference of pretext to be drawn, the plaintiff needed to provide evidence of more than the fact that he was a man; she needed to show that he was similarly situated. As set out above, the plaintiff failed to do so. Moreover, Westwood presented evidence of Litwack’s greater experience, both at Westwood and at previous employers. Similarly, the record contains no evidence that the director of the Lowell program was similarly situated to the plaintiff. West-wood’s uncontroverted evidence was that the Lowell program was not comparable to that of the Boston Center. Specifically, the Lowell program was a large inpatient facility whereas the Boston Center was a “partial” (i.e., outpatient) program only. Again, absent evidence that the director of the Lowell program was similarly situated, no reasonable inference could be drawn simply from the fact that she was neither pregnant nor terminated. Finally, the plaintiff argues that pretext can be inferred from the fact that she was not offered the directorship of the partial program at Pembroke Hospital. She points to the fact that of the six employees laid off as part of the July, 2002, reduction-in-force, four (nonpregnant women) were offered comparable positions within Westwood whereas she was not.* As the motion judge found, however, the plaintiff presented no evidence of an available suitable opening at Westwood. Westwood presented evidence — that was uncontradicted — that the Pembroke Hospital was a separate entity with different management from Westwood. No reasonable inference of discriminatory animus could be drawn from Westwood’s failure to offer a position that was not its to give. For these reasons, summary judgment was properly granted on the plaintiff’s claim under G. L. c. 151B. 3. Intentional interference with advantageous business relations. The plaintiff, an at-will employee, brought this claim against Spiegel, alleging that she had a reasonable expectation of continued employment at Westwood with which he improperly interfered by selecting her to be laid off because she was pregnant. Because her interference claim depends entirely on her discrimination claim, it fails for the reasons set forth in the preceding section. Absent a legally sufficient claim for discrimination, the plaintiff, as a matter of law, cannot satisfy the element of “improper motive or means” required to make out her interference claim, and summary judgment was properly allowed. See Alba v. Sampson, 44 Mass. App. Ct. 311, 314 (1998) (elements of interference claim). For the reasons set out above, summary judgment was properly entered on all claims. Judgments affirmed. The section largely tracks the language of the Massachusetts whistleblower statute, which is not limited to health care providers. See G. L. c. 149, § 185. For purposes of this section, a plaintiff’s belief must be objectively reasonable. See Lynch v. Boston, 180 F.3d 1, 17 (1st Cir. 1999) (construing G. L. c. 149, § 185). The objection must be “a substantial or motivating part” of the adverse employment action. See Taylor v. Freetown, 479 F. Supp. 2d 227, 241 (D. Mass. 2007) (construing G. L. c. 149, § 185). In March, 2002, Robert Spiegel, the chief executive officer of Westwood, directed that the number of pediatric patients at the Boston Center be increased without an increase in staff. The plaintiff points to nothing in the record to indicate that she objected to this proposal before May 7, 2002, when she sent a memorandum that reflected her understanding that a census increase “has been proposed.” The plaintiff did not object to an increase in the pediatric patient census per se; her objection was to an increase in census “without a formal plan in place and/or with realistic patient to staff ratio under agreement.” Although the plaintiff argues in her brief that she objected to other items as well, such as the staffing grid, the record does not support her claim. The portions of the record to which she cites do not show that she informed anyone that she had an objection or complaint to any of those matters. In order to withstand summary judgment, the plaintiff was required, among other things, to put forward sufficient material to demonstrate that she voiced an objection. Lyon v. Morphew, 424 Mass. 828, 831 (1997), quoting from Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991) (“A complete failure of proof concerning an essential element of the non-moving party’s case renders all other facts immaterial”). In stage one, the plaintiff has the burden of establishing a prima facie case of discrimination by showing that (1) she was in a protected class; (2) she performed her job at an acceptable level; (3) she suffered an adverse employment event; and (4) her employer sought to fill her position with an individual with similar qualifications; or, in the case of a reduction in force, her layoff occurred in circumstances that would raise a reasonable inference of unlawful discrimination. See Abramian v. Presid