Discrimination Cases

Lisa Trinh vs. Gentle Communications, LLC, & another. No. 07-P-441. Middlesex. December 11, 2007. March 10, 2008. Present: Cowin, Brown, & Kafker, JJ. Practice, Civil, Judgment notwithstanding verdict. Employment, Sexual harassment, Discrimination, Constructive discharge. Anti-Discrimination Law, Sex, Employment, Damages. Damages, Under anti-discrimination law, Punitive. In an action brought by a plaintiff against her former employer and her former supervisor, alleging sexual harassment in employment, the trial court judge did not err in denying the defendants’ motion for judgment notwithstanding the verdict on the issue of the award of compensatory damages against both defendants arising from the supervisor’s conduct, where the evidence at trial demonstrated that the supervisor’s remarks and actions were sufficiently severe and pervasive to support the jury’s findings of harassment and of vicarious liability on the part of the employer [373-374]; further, the award of punitive damages against the supervisor was both warranted and not excessive [375-376]. In a civil action brought by a plaintiff alleging sexual harassment in employment, the trial court judge did not err in granting the defendants’ motion for judgment notwithstanding the verdict on the issue of the award of damages for lost income, where the plaintiff failed to present sufficient evidence to establish a constructive discharge. [374-375] In an action brought by a plaintiff against her former employer, alleging that the employer was liable for failing to take adequate remedial action after the plaintiff complained of sexual harassment by her supervisor, the trial court judge properly granted the employer’s motion for judgment notwithstanding the verdict, and correctly ruled that the jury lacked a factual predicate for assessing punitive damages against the employer directly, where the evidence presented at trial was insufficient to warrant a finding that the employer inadequately or inappropriately investigated the plaintiff’s claims of sexual harassment. [376-378] Civil action commenced in the Superior Court Department on October 30, 2000. The case was tried before Mitchell J. Sikora, Jr., J., and motions for judgment notwithstanding the verdict were heard by him. Joseph H. Reinhardt (James F. Champa with him) for the plaintiff. Heidi Goldstein Shepherd for the defendants. Samuel Tencer. Kafker, J. Lisa Trinh, a junior employee of Gentle Communications, LLC, doing business as Gentle Dental (Gentle), complained that the dentist in charge of its Brookline office, Samuel Tencer, sexually harassed her. The matter went to a jury, which found, on special questions, that (1) Tencer sexually harassed Trinh; (2) such harassment proximately caused damages of $20,000 for emotional injury and $20,000 in lost income or back pay; (3) Tencer was individually liable for a punitive award of $65,000; (4) Gentle was separately liable for Tencer’s sexual harassment because it knew of Tencer’s harassment and failed to take adequate remedial measures; (5) Trinh’s damages proximately related to Gentle’s separate tort were $20,000 in lost income and $20,000 in emotional injury; (6) Gentle was separately liable for a $1 million punitive award. The jury also determined that (1) neither Tencer nor Gentle retaliated against Trinh for presenting her complaint; (2) Tencer did not intentionally inflict emotional distress on Trinh; and (3) Tencer did not interfere with an advantageous business or employee relationship between Trinh and Gentle. Tencer and Gentle filed motions pursuant to Mass.R.Civ.P. 50(b), as amended, 428 Mass. 402 (1998), for judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, for a new trial or a remittitur. The trial judge allowed the motions for judgment n.o.v. in part, concluding that (1) there was no evidence that Trinh suffered lost income proximately caused by either Tencer or Gentle; (2) no evidence supported a finding of separate liability against Gentle; and (3) no evidence supported a punitive award against Gentle, which award was in any case grossly excessive. The judge denied the motion for judgment n.o.v. on the sexual harassment award and on the separate punitive damage award against Tencer. In accord with those rulings, the judge entered a judgment that awarded Trinh (1) $20,000 in compensatory damages jointly and severally against both Tencer and Gentle; (2) $65,000 in punitive damages against Tencer only; and (3) $30,592 as Trinh’s reasonable attorney’s fees against both Tencer and Gentle. The defendants appeal, and Trinh cross-appeals. We affirm. Factual background. We summarize the facts the jury could have found as follows. Gentle owns a number of dentists’ offices in the greater Boston area. In October of 1997, Trinh was hired by Gentle and was assigned to work in its Brookline office as a “care coordinator,” as part of what Gentle designated as a “pilot program.” The care coordinator’s role was to explain treatments recommended by the dentists to the patients, to determine how patients would pay, and to schedule the treatments. When Trinh began her employment, Gentle presented Trinh with a copy of Gentle’s written sexual harassment policy and had her sign it. The policy indicated that complaints about sexual harassment should be directed to Barry Bomfriend, Gentle’s chief operating officer, or Donna Simonds, its director of human resources. Trinh testified that she was not given time to adequately review the policy prior to signing it, nor was she given a copy. After her training, Trinh began work in the Brookline office at the beginning of December. Tencer had previously expressed skepticism with the idea of care coordinators, but agreed to participate in the pilot program. During the few months in which Trinh worked at the Brookline office, Tencer engaged in behavior that made her feel uncomfortable. Trinh testified that Tencer, on several occasions, made inappropriate sexual remarks to her. Tencer had, at one point, walked in on a conversation at the front desk where Trinh revealed to other coworkers that she was considering breast augmentation surgery. Tencer later brought up the surgery with her individually and asked her if he could see what her breasts looked like before the surgery. He commented on her clothes and body at work, and at one point walked into the lunchroom, looked at the plaintiff, and said, “I like to eat that too,” referring to Trinh. He also whistled at Trinh in the workplace, looked at her in a way that made her feel uncomfortable, and when he passed her in the hallways during work, he would brush against her. Finally, at one point Tencer leaned over Trinh while she worked at the front counter, and she testified that she could feel his penis against her back. Over the course of her employment in the Brookline office, Trinh mentioned her discomfort to three people: a care coordinator in Gentle’s Natick office, who had gone through training with the plaintiff; the Gentle employee who trained and supervised the care coordinator program; and a dentist at another Gentle location (a part owner who did not act as an officer of the company) whom she dated over the span of approximately two months while she worked in the Brookline office. Near the end of February, 1998, Trinh was notified that she was to be transferred to Gentle’s Cambridge office. On her second-to-last day in the Brookline office, Thursday, February 26, Trinh notified Kathy Circeo, the Brookline office administrator, of her complaints. The next day, Circeo called Simonds about the complaint. Simonds then conferred with Bomfriend and decided to investigate the allegations, although Trinh had not contacted either of them directly to relate the substance of her complaints. The following Monday, March 2, Simonds contacted Trinh, who was at her first day of work in the Cambridge office, and made an appointment to speak to her on Wednesday, March 4. On March 3, Simonds and Bomfriend went to the Brookline office and interviewed five employees there, including Tencer and Circeo. When interviewed, Tencer denied the harassing behavior and said that Trinh had dressed inappropriately for the office, although she had never been told during her employment at Gentle that her dress was inappropriate. When conducting the interviews, Simonds took handwritten notes and typed them afterwards. There were differences between the handwritten notes and the typed copies made afterwards; the typed versions lacked some details and contained other additional details not included in the handwritten notes. Each set of typed interview notes contained a signature line for the interviewee to attest that the notes were a truthful representation of the interview, but most of them were unsigned. On March 3, Trinh sent a letter to Bomfriend, saying that she was too “stressed out” to meet with Bomfriend and Simonds the next day. Bomfriend and Simonds then made an appointment to speak with Trinh at some point in the next week. In the meantime, Bomfriend and Simonds interviewed several employees at different Gentle offices, including, on March 5, the care coordinator in Natick to whom Trinh had detailed her complaints. Trinh testified that her conversation with her colleague in Natick convinced her that the investigation was biased against her. From that conversation, she got the impression that the investigation was focusing on her behavior at the office, rather than Tencer’s, and therefore that the investigation was aimed at trying to discredit her rather than to resolve her complaints fairly. On March 9, she wrote another letter to Bomfriend, stating that it was “impossible” for her to continue working at Gentle because “everyone in the company knows about your investigation and you have accused me of lying about the sexual harassment and of being immoral and illegal. The entire environment has become hostile towards me.” She then went on to state that she was terminating her employment with Gentle as of March 14, 1998. Simonds and Bomfriend went to the Cambridge office to speak with Trinh in person, but she ended the interview after a short period of time because, as she testified, she had to see a patient. At the end of the week, Trinh left her job at Gentle. Thus, Simonds and Bomfriend’s investigation concluded with none of their interview subjects having corroborated Trinh’s complaints and with Trinh herself having refused to participate in the internal investigation because of her belief that the investigation was biased against her. As they had found no information confirming Trinh’s complaints against Tencer during their interviews, and Trinh had declined the opportunities given to her to participate in the investigation, Simonds and Bomfriend concluded their investigation, and Tencer was not disciplined. Discussion. 1. Standard of review. In reviewing a trial judge’s decision on a motion for judgment n.o.v., “[w]e do not defer to the judge’s view of the evidence but examine the case anew, following the same standard the judge is obliged to apply.” MacCormack v. Boston Edison Co., 423 Mass. 652, 659 (1996). That standard has been often articulated and provides that “the question before us is the same: that is, ‘whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.” ’ Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972), quoting from Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302 (1943).” Doe v. Senechal, 66 Mass. App. Ct. 68, 76 (2006). Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 603 (2006). See Smith v. Bell Atl., 63 Mass. App. Ct. 702, 711 (2005). We consider the claims against each of the defendants in turn. 2. Claims against Tencer. a. Compensatory damages. On appeal Tencer argues that the trial judge should have granted his motion for judgment n.o.v. or a new trial on the award for compensatory damages because Trinh failed to introduce sufficient evidence to sustain a sexual harassment claim against Tencer individually and, in addition, failed to meet the heightened burden for assessing punitive damages. Trinh’s case was based on the theory that Tencer’s harassment created a hostile work environment. The relevant portion of the statute defines sexual harassment as “verbal or physical conduct of a sexual nature when . . . such . . . conduct ha[s] the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G. L. c. 151B, § 1(18), as amended by St. 1987, c. 473, § 2. In order to prevail on this theory, Trinh had to show that the ‘.‘conduct alleged was sufficiently severe and pervasive to interfere with a reasonable person’s work performance.” Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 411 (2001). Conduct of a sexual nature may be considered sexual harassment under the statute, even absent sexual advances or requests for sexual favors. See Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997). There was sufficient evidence at trial to support the jury’s verdict that Tencer sexually harassed Trinh. She testified that Tencer asked to see her breasts after the conversation concerning her breast augmentation surgery. Trinh testified that Tencer made other sexually suggestive comments, and that he rubbed against her in a way in which she could feel his penis against her. Tencer’s statements and actions were objectively offensive, and Trinh testified to her discomfort about the comments and physical contact. Tencer’s remarks and actions were sufficiently severe and pervasive to support the finding of harassment and the emotional distress damages that ensued therefrom. We find nothing in the record that compels us to disturb the trial judge’s decision to allow the jury’s verdict to stand in this regard. It was also appropriate to hold the employer vicariously liable for its manager’s sexual harassment and for the compensatory damages owed because of this harassment. See College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 166-167 (1987). b. Damages for lost income. The plaintiff complains that the judge should not have granted the defendants’ motion for judgment n.o.v. on the award of damages to her for lost income. The judge did not err in his ruling. Trinh was not fired from Gentle, but rather resigned. In these circumstances, she was required to show that she was constructively discharged from Gentle in order to recover lost income. A plaintiff establishes a constructive discharge by showing that “based on an objective assessment of the conditions under which the employee has asserted [s]he was expected to work, it could be found they were so difficult as to be intolerable.” GTE Prod. Corp. v. Stewart, 421 Mass. 22, 34 (1995). See Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. at 606-607. In this case, Trinh was transferred out of the Brookline office, where the complained of harassment took place, and away from the one manager who had harassed her. She had worked in the Cambridge office for less than two weeks when she submitted her letter of resignation. Her pay had not been reduced, and her responsibilities at Cambridge were substantially the same as they had been in Brookline. There was no evidence that her managers in Cambridge took any adverse action toward her. Trinh’s testimony and her resignation letter do not establish a work environment in Cambridge so hostile that it would support a finding of constructive discharge. While participation in the company’s investigation of her sexual harassment complaint could be expected to be difficult, it would not constitute intolerable working conditions. Moreover, Trinh did not participate in the process after making the complaint. The trial judge properly ruled that Trinh had not presented sufficient evidence to establish a constructive discharge, and therefore she was not entitled to damages for lost income. c. Punitive damages. To assess punitive damages under G. L. c. 15IB, § 9, the plaintiff must show that the complained-of behavior is “not merely intentional and offensive.” Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 498 (2000). Rather, the conduct must be “outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Dartt v. Browning-Ferris Indus., Inc. (Mass.), All Mass. 1, 17a (1998), quoting from Restatement (Second) of Torts § 908(2) (1979). The conduct must warrant “condemnation and deterrence.” Bain v. Springfield, 424 Mass. 758, 767 (1997). We conclude that Tencer’s conduct could have been found outrageous given his sexual harassment of a junior employee, including asking to see her breasts and rubbing up against her so that she could feel his penis, and his position of responsibility as the dentist in charge of the local office. The punitive damages assessed against Tencer also were not excessive. We use a three-part test to analyze the reasonableness of a punitive damages award, scrutinizing “ ‘the degree of reprehensibility of the defendant’s conduct,’ the ratio of the punitive damage award to the ‘actual harm inflicted on the plaintiff,’ [and] a comparison of the ‘punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct.’ ” Labonte v. Hutchins & Wheeler, 424 Mass. 813, 826-827 (1997), quoting from BMW of N. Am. v. Gore, 517 U.S. 559, 575, 580, 583 (1996). Tencer’s conduct described above could have been found reprehensible. The ratio of less than four-to-one was within standards deemed appropriate. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (“Single digit multipliers are more likely to comport with due process”); Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. 787, 798 (2007) (five-to-one ratio affirmed). And the amount, under $100,000, has been found acceptable in similar contexts. See, e.g., Bain v. Springfield, 424 Mass. at 768; Beaupre v. Cliff Smith & Assocs., supra at 497-498. 3. Claims against Gentle, a. Compensatory damages. An employer may be found directly liable for discrimination under G. L. c. 15IB, § 4, if it is notified of sexual harassment in its workplace and fails to take adequate remedial action. College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. at 167. On appeal, Trinh argues that the jury verdict assessing direct liability, both compensatory and punitive, against Gentle was adequately supported, and therefore the judge’s grant of Gentle’s motion for judgment n.o.v. and, in the alternative, a new trial should be reversed. The trial judge, in his ruling on Gentle’s motion for judgment n.o.v., accurately delineated the factual basis for his decision to vacate the jury’s finding of direct liability against Gentle. Even drawing all reasonable inferences in Trinh’s favor, the evidence presented at trial was insufficient to warrant a finding that Gentle inadequately or inappropriately investigated the claims. Trinh did not complain to the officials identified in the sexual harassment policy. Once Donna Simonds, the director of human resources and one of the officials responsible for investigating sexual harassment, became aware of the complaints, she followed up immediately along with Barry Bomfriend, the chief operating officer of the company, and the other official responsible for sexual harassment investigations. Simonds and Bomfriend also responded appropriately, including questioning Trinh’s behavior. At least some inquiry into the plaintiff’s workplace behavior was relevant to the investigation, as determining whether the conduct at issue was unwelcome is a key component of a claim under the sexual harassment statute. See Ramsdell v. Western Mass. Bu

Teresa M. Brooks vs. Peabody & Arnold, LLP. No. 06-P-1763. Suffolk. October 18, 2007. January 7, 2008. Present: Gelinas, Duffly, & Graham, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Handicap, Termination of employment, Burden of proof. Employment, Discrimination, Termination. Handicapped Persons. In a discrimination action brought by an employee who alleged that her employment had been terminated on the basis of her disability, the trial judge properly granted summary judgment in favor of the employer, where, in the face of the employer’s claim that it had terminated her employment because she had exaggerated her symptoms and had falsely claimed benefits, the employee’s allegations (namely, that the employer had abruptly revoked its accommodations and had engaged in an unprecedented enforcement of its attendance policy), which lacked support in the record, did not suffice to demonstrate that the reason proffered by the employer was a pretext. [50-57] Civil action commenced in the Superior Court Department on March 25, 2005. The case was heard by Patrick F. Brady, 1, on a motion for summary judgment. Robert R. Berluti (Kathryn L. Marshall with him) for the plaintiff. Neil V. McKittrick (.Elizabeth Schnairsohn with him) for the defendant. Gelinas, J. The plaintiff, Teresa M. Brooks, suffers from spondylolisthesis and spondylolysis. She worked as a legal secretary for the defendant, Peabody & Arnold, LLP, since 1989. After beginning short-term disability leave, the plaintiff was terminated on January 14, 2005, by the defendant because, as the defendant asserts, there was evidence that the plaintiff was exaggerating her condition and fabricating her symptoms, thus fraudulently collecting disability payments. The plaintiff then commenced this action, alleging that she was a disabled person, that the stated reason for her termination was a pretext, and that she was actually terminated because of her disability, in violation of G. L. c. 15IB, § 4(16). A judge of the Superior Court granted summary judgment in favor of the defendant and dismissed the plaintiff’s complaint, concluding that the plaintiff had not offered sufficient evidence to warrant a finding that the reason for the termination was a pretext. He ruled that in the face of the defendant’s claim that the plaintiff had exaggerated her symptoms and had falsely claimed the benefits, her allegations of lack of accommodation and prior knowledge by the defendants, with unclear support in the record, did not suffice to demonstrate that the reason put forward by the defendant was a pretext. We affirm. Facts. We view the facts, as we must, in the light most favorable to the plaintiff, the nonmoving party. The plaintiff was employed by the defendant for sixteen years as a legal secretary. She received mostly positive performance reviews during her time with the defendant, and remained with the firm despite its significant downsizing in 2002. The only unfavorable mention was her work attendance, for which she had not previously been disciplined. On October 18, 2004, the plaintiff received a written disciplinary warning from the defendant due to inappropriate use of firm electronic mail (e-mail), inappropriate interactions with attorneys and staff, and excessive absenteeism. Eight days later, on October 26, 2004, the plaintiff received another written warning, this time about her tardiness. The plaintiff did not appear for work on the next day, October 27, 2004. Rather, the defendant received a facsimile transmission from her physician, Dr. Donald Gedarovich, stating that because of the plaintiff’s back condition, she was “disabled from all work.” The plaintiff never returned to work. The defendant had some prior knowledge of the plaintiff’s back problems. It had provided her with a special chair with added support, permitted her to miss work for physical therapy sessions, allowed her to take work home (which was later discontinued), and, after being advised that she should not be lifting heavy objects, provided personnel to help her with lifting helavy files. Dr. Gedarovich supplied the defendant with a “Certification of Health Care Provider,” a document required under the Family and Medical Leave Act of 1993, in which he stated that the plaintiff had a “complete disability.” Based on this certification, the defendant permitted the plaintiff to go on short-term disability leave, on the condition that she submit to an independent medical examination (IME) with Dr. Ronald Birkenfeld. The plaintiff agreed to this condition. On December 13, 2004, when the plaintiff attended the IME with Dr. Birkenfeld, he confirmed the diagnosis of spondylolysis. He went on to state that “based on her presentation and history, it would seem that” the plaintiff had “a disabling degree of pain,” and recommended that she see a surgeon to consider spinal fusion surgery. Dr. Birkenfeld noted that the plaintiff appeared at the examination walking with a distinct forward bend and using a cane. The defendant had never observed the plaintiff using a cane before. According to the defendant, this use of a cane, coupled with the timing of the disability claim (immediately after receiving the written warnings), and the fact that the plaintiff, now receiving disability pay, left for what had earlier been agreed to as an unpaid vacation to Disney World, caused it to become suspicious of the degree of the plaintiff’s infirmity. Despite this suspicion, the defendant began paying short-term disability benefits to the plaintiff on December 20, 2004, retroactive to November 15, 2004. Acting on its suspicion, the defendant hired a private investigator. The private investigator videotaped the plaintiff from December 21 to 23, 2004, and again on January 3, 2005. The videotape showed the plaintiff engaging in various activities, including walking up and down stairs, bending, lifting, turning, working in the yard, shopping, carrying groceries, and lifting packages from her vehicle. She never walked with a limp, used a cane, or otherwise demonstrated pain or difficulty in walking or in carrying out the other activities. She was seen entering two separate hospitals, but it was unknown what took place there. The defendant then showed Dr. Birkenfeld a copy of the videotape. Dr. Birkenfeld noted that many of the symptoms the plaintiff demonstrated at her examination, such as walking with a “severely antalgic gait,” “laborious” walking, and “splinting,” were no longer present. Dr. Birkenfeld further noted that her behavior was in “marked contrast” to her presentation in his office during the initial visit. He opined that “[t]o a reasonable medical certainty, it is my opinion as a neurosurgeon licensed to practice in the Commonwealth of Massachusetts that her presentation in my offices was a marked embellishment and not compatible with what I viewed [on the videotape].” He concluded that, based upon the neurological data from the examination, and what he saw in the videotape, the plaintiff was not disabled from her job with the defendant. He did not withdraw his diagnosis of spondylolisthesis. Without reviewing the videotape with any other physician, the defendant concluded that the plaintiff had “misled the firm about [her] alleged disability in order to collect short term disability benefits,” and terminated her on January 14, 2005. The plaintiff was examined by Dr. David Kim on January 18, 2005, who reported that a magnetic resonance image performed on December 23,2004, was entirely consistent with the plaintiff’s diagnosed condition of spondylolisthesis. Dr. Kim also opined, in a report dated July 25, 2005, that he disagreed with Dr. Birkenfeld’s assessment of the plaintiff, noting that spondylolisthesis and spondylolysis often caused differing levels of discomfort, at some times permitting almost normal function, and at other times causing incapacitation. Dr. Kim also stressed the plaintiff’s consistent and typical description of her symptoms and how they affected her “functional ability.” On appeal, the plaintiff claims that the judge erred in granting summary judgment against her, arguing that her materials at the summary judgment stage made a showing of pretext sufficient to allow the case to be presented to a jury. She further claims that the judge erroneously relied on the “honest belief” rule set out in Kariotis v. Navistar Intl. Transp. Corp., 131 F.3d 672 (7th Cir. 1997), contending that the rule is not the law in Massachusetts and contravenes the protective and remedial purposes of G. L. c. 151B. Discussion. Summary judgment is appropriate when there is no genuine issue of material fact and, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as matter of law. See Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974); Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000). “An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Hickson Corp. v. Northern Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). “[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). “On review of summary judgment, we . . . consider the record and the legal principles involved without deference to the motion judge’s reasoning.” Clean Harbors, Inc. v. John Hancock Life Ins. Co., 64 Mass. App. Ct. 347, 357 n.9 (2005). We recognize that “[s]ummary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment . . . [but] summary judgment is not always inappropriate in [such] cases[, w]here 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 plaintiff’s favor.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439-440 (1995). The plaintiff argues that she presented sufficient evidence of pretext in the defendant’s proffered reason for terminating her employment so as to create a genuine issue of material fact, thus avoiding summary judgment. We review the three-step analysis required in discrimination cases where the employer articulates a seemingly legitimate reason for termination which is claimed by the employee to be merely a pretext and a cover for the real, discriminatory reason for termination. Initially, the plaintiff has the burden to show, by a preponderance of the evidence, a prima facie case of discrimination. An employer then may rebut the presumption created by the prima facie case by articulating a legitimate, nondiscriminatory reason for its decision to terminate the plaintiff. “[A]n employer must not only give a lawful reason or reasons for its employment decision but also must produce credible evidence to show that the reason or reasons advanced were the real reasons.” Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138 (1976). The burden on the employer is not onerous. Blare, supra at 442. Where the plaintiff shows a prima facie case, and the employer then advances lawful grounds for the termination and produces evidence of underlying facts in support thereof, the plaintiff must persuade the fact finder by a fair preponderance of the evidence that the employer’s asserted reasons were not the real reasons for the termination, but were in fact a pretext for discriminatory action. See Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 700 (1992). These elements of employment discrimination must be viewed in the over-all context that the plaintiff bears the burden of proof on the ultimate issue of discrimination and that, “[ajlthough the three-stage order of proof ‘lightens the employee’s burden’ by requiring the employer to provide information at the second stage which ‘narrows the field of possible lawful reasons’ for its decision, it does not go so far as to shift the burden of persuasion to the defendants.” Blare, 419 Mass. at 445, quoting from Trustees of Forbes Library v. Labor Relations Commn., 384 Mass. 559, 566 (1981). “Thus, if the evidence is in balance, the employer must prevail.” Trustees of Forbes Library, supra. “[T]he plaintiff may, and more often than not must, carry his burden of persuasion with circumstantial evidence that convinces the fact finder that the proffered explanation is not credible.” Blare, supra. Here, assuming, without deciding, that the plaintiff has established her prima facie case (first element), and that the defendant has articulated a legitimate reason with support in the evidence for the termination (second element), the question becomes: has the plaintiff introduced sufficient material to demonstrate that there is a genuine issue of material fact whether the defendant’s proffered reason is a pretext; that is, “[d]ces the employer’s articulated reason Tack[] reasonable support in evidence or is [it] wholly disbelievable[?]’ Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 765 (1986). . . . The employer’s reasons need not be wise, so long as they are not discriminatory and they are not pretext. Lewis, supra at 766.” Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996). With these principles in mind, we review the plaintiff’s claims that she presented evidence sufficient to warrant putting the case to trial. She first argues that the defendant’s abmpt revocation of its accommodations for her alleged back problems and an “unprecedented” enforcement of its attendance policy support an inference that the defendant’s real motive in terminating her employment was discriminatory. Relying on Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13 (1997), the plaintiff claims that evidence that the defendant — after originally providing accommodation for her back problems by arranging for a new support chair, allowing her to leave early to attend physical therapy, allowing her to work from home on occasion, providing personnel to assist in carrying files, and giving her uniformly good performance reviews — suddenly eliminated working from home, required timely attendance, cautioned her on two occasions for being tardy, and warned her that if tardiness continued she would be terminated, raised a genuine issue of material fact that her firing was a pretext. We think the plaintiffs reliance on the Handrahan decision is misplaced. The plaintiff in Handrahan worked for the defendant as a housekeeper and received generally good performance reviews, although she was criticized for failing to clean her assigned rooms in a timely fashion. Id. at 15. After learning that the plaintiff suffered from epileptic seizures, the defendant gave her two warnings and then terminated her for a third instance of failing to comply with a “thirty-minute rule” for required completion of room cleaning duties. Id. at 15-16. The plaintiff argued that implementation of a thirty-minute rule did not occur until immediately after the defendant learned of her illness. The court characterized the evidence of pretext as “slim” but concluded that despite the defendant’s claim that the thirty-minute rule was adopted to make it more competitive economically, the abrupt enforcement of the thirty-minute rule, resulting in the termination of the plaintiff’s employment, was “suspect and could support an inference that the defendant’s real motive was discrimination” because of the plaintiff’s susceptibility to epileptic seizures. Id. at 17. Here, the plaintiff was terminated for reasons completely different from those relating to warnings that she had received from the defendant concerning her attendance. Becoming suspicious of her claims concerning the extent of her back problems, the defendant hired a private investigator to conduct surveillance and to capture the plaintiff’s activities on videotape. The videotape and the surveillance report revealed that while the plaintiff reported to the defendant that she could not work at her job as a legal secretary because of her back problems, and while she collected short term disability payments, she was physically able to perform many strenuous tasks inconsistent with having a bad back and, more importantly, inconsistent with her claim that she could not perform her duties as a legal secretary. The videotape showed the plaintiff working in her yard, repeatedly bending over, carrying heavy bundles, walking up and down stairs without difficulty, and walking without a limp or a cane, contrary to her presentation at the IME arranged by the defendant shortly before she went on leave. She was also physically able to drive forty minutes each way to a casino in Lincoln, Rhode Island, and to sit playing slot machines for three hours, while claiming that her back problems would not permit her to sit at her desk and type. The defendant reviewed the videotape with Dr. Birkenfeld, the physician who had performed the IME. When the plaintiff originally came for her examination, she appeared in obvious pain, was flexed forward and to the left, had an extremely laborious gait, and was using a cane. After reviewing her medical records and conducting an examination, Dr. Birkenfeld concluded that the plaintiff suffered from chronic lower back pain associated with spondylolysis, and recommended that she consider surgery after consultation with an appropriate specialist. After reviewing the videotape, in which he observed her walking with a normal gait, going up and down stairs without difficulty, “walking . . . perfectly normally] with no evidence of splinting, antalgia or other movements,” twisting and turning effortlessly, repeatedly bending from the waist for substantial periods while putting objects on the ground outside her home, carrying sizable packages from a shopping mall, raising the lid of the trunk of her car, and loading and unloading a considerable number of packages, while at no time demonstrating behaviors that could be determined as being due to pain, and with no evidence that she was favoring her lumbar region, Dr. Birkenfeld concluded that “[t]o a reasonable medical certainty, it is my opinion as a neurosurgeon licensed to practice in the Commonwealth of Massachusetts that her presentation in my offices was a marked embellishment and not compatible with [activities viewed on the videotape].” Dr. Birkenfeld further stated that “[b]ased on her performance in this video and the otherwise normal neurological examination, which I determined on December 13th [the date of his examination of the plaintiff], I do not believe that the plaintiff is disabled from her job at the defendant, as described.” Based on this report, and the evidence of the videotape and the report of the private investigator, the defendant terminated the plaintiff for falsely claiming short-term disability benefits. The plaintiff contends that the defendant should have consulted with her treating physician regarding the activities shown on the videotape, and that such consultation might have suggested that the plaintiff’s condition resulted in sporadic episodes of pain, interspersed with periods of time when she was able to be free of pain and act in an “almost” normal manner, and that failure to so do supports an inference of pretext. We disagree. Nothing required the defendant to engage in exhaustive review of either the plaintiff’s physical condition or the plaintiff’s apparent fraudulent behavior to eliminate the question of pretext. Here, the defendant only had to provide a nondiscriminatory reason for the termination and credible evidence that the reason advanced was th

Massachusetts Bay Transportation Authority vs. Massachusetts Commission Against Discrimination & another. Suffolk. October 4, 2007. January 4, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Massachusetts Bay Transportation Authority. Anti-Discrimination Law, Employment, Religious beliefs. Religion. Employment, Discrimination. A judge in the Superior Court correctly affirmed a determination of the Massachusetts Commission Against Discrimination that the plaintiff employer had discriminated against a prospective employee in violation of G. L. c. 151B, § 4 (1A), where the employer failed to demonstrate that any possible accommodation of the prospective employee’s religious obligations would have constituted an undue hardship in the context of its operations, in that the employer failed to investigate the possibility of voluntary shift swaps to cover the prospective employee’s weekly absences due to his need for time off to observe his Sabbath. [334-341] Statement that requiring an employer to conduct an investigative or interactive process to determine whether accommodation of a prospective employee’s religious obligations would be an undue hardship on the employer was not itself an undue hardship, but an employer’s failure to engage in such an interactive process is not, in and of itself, a violation of G. L. c. 151B, § 4 (1A). [341-343] After determining that an employer had discriminated against a prospective employee in violation of G. L. c. 151B, § 4 (1A), by failing reasonably to accommodate the prospective employee’s religious obligations, the Massachusetts Commission Against Discrimination (commission) did not exceed its authority in ordering the employer to hire the prospective employee to the position for which he was qualified, where the commission reasonably could have concluded that the five-year litigation process sufficiently had investigated the extent of the prospective employee’s religious obligations and the possible avenues of accommodation. [343-344] Civil action commenced in the Superior Court Department on January 20, 2004. The case was heard by Geraldine S. Hines, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Mark W. Batten for the plaintiff. Gerald E. Katz for David Marquez. Beverly I. Ward for Massachusetts Commission Against Discrimination. The following submitted briefs for amici curiae: Todd R. McFarland, of Maryland, Charles M. Kester, of Arkansas, & Charles J. Eusey for General Conference of Seventh-Day Adventists. Rebecca Pontikes & Patricia A. Washienko for Jewish Alliance for Law and Social Action & others. Douglas Taylor, of Virginia, & John F. McMahon for Local 589 of the Amalgamated Transit Union. Mary T. Sullivan & Donald J. Siegel for Massachusetts AFL-CIO. David Marquez. Cordy, J. The Massachusetts Bay Transportation Authority (MBTA) appeals from a judgment of the Superior Court affirming a determination of the Massachusetts Commission Against Discrimination (MCAD) that the MBTA discriminated against a prospective employee, David Marquez, in violation of G. L. c. 15IB, § 4 (1A). More specifically, the MCAD determined that the MBTA failed reasonably to accommodate Marquez’s religious obligations when it refused to hire him as a part-time bus driver due to his need for time off to observe his Sabbath (Friday at sundown until Saturday at sundown). The principal basis for its determination was the failure of the MBTA to meet its statutory burden either to provide a reasonable accommodation for Marquez’s sincerely held religious beliefs or to demonstrate that any accommodation that the MBTA could have made would have posed an “undue hardship” on its operations. This failure of proof, in turn, the MCAD concluded, was largely the product of the MBTA’s failure to take any steps whatsoever to ascertain whether an accommodation was possible at the time, and evidence from MBTA employees suggesting the existence of a number of possibilities that went unexplored. We transferred the case to this court on our own motion. In its appeal, the MBTA presents three grounds on which it claims that the MCAD decision should be reversed: (1) requiring the MBTA to give Marquez Friday evenings off would have posed an undue hardship pursuant to G. L. c. 151B, § 4 (1A), or, alternatively would violate the establishment clause of the First Amendment to the United States Constitution,; (2) requiring the MBTA to engage Marquez in an interactive process for the purpose of identifying possible accommodation would likewise pose an undue hardship on the MBTA; and (3) the relief granted by the MCAD exceeded its authority. We affirm the Superior Court judgment, but not on all the grounds relied on by the judge. 1. Facts. The following material facts are not in dispute. Marquez is a practicing Seventh-Day Adventist, who serves as a deacon of his church in Cambridge. Consistent with the tenets of his religion, Marquez does not work on the Sabbath, which extends from sundown each Friday night to sundown each Saturday night. According to Marquez’s beliefs, he could be in transit home after sunset on Friday. He could not, however, work after sunset. He spends each Friday evening at home with his family, sharing Sabbath dinner, and spends each Saturday at his church. Former employers accommodated his religious obligations by allowing him to work on Sunday. In April, 1997, Marquez applied for a job with the MBTA. Throughout the application process, Marquez informed MBTA representatives that he was not able to work from sundown on Friday to sundown on Saturday. In May, Marquez passed a written examination to become a part-time streetcar operator, and on June 12, 1997, he was given a conditional offer of employment. That offer was contingent on the outcome of a criminal records check, a physical examination, and a drug screening test. On August 7, 1997, while his background checks were ongoing, Marquez expressed an interest in applying for the position of part-time bus operator. The manager of human resources for the MBTA informed Marquez that he would need a commercial driver’s license in order to become a bus operator. Shortly thereafter, Marquez obtained his commercial driver’s license. By late August, 1997, he had passed the preliminary screening, testing, and interview process. His physical examination, drug screening, and criminal records check all were unproblematic, and he was cleared for hiring. Marquez received his assignment to begin bus driver training on September 2, 1997. The training was scheduled to run from Tuesday through Saturday, which conflicted with Marquez’s observation of the Sabbath. Marquez notified an MBTA human resources representative of the conflict, who told him that she would “look into the issue.” Other than that one Saturday of training, working on Saturdays did not present any problem, as part-time bus operators work Monday through Friday, for a morning rush hour shift and then an evening rush hour shift each day. Friday evenings, then, became the point of conflict between Marquez’s Sabbath obligations and the requirements of his job. In early September, 1997, the MBTA notified Marquez that it could not grant his request to refrain from working on Friday evenings because of his religious beliefs and, therefore, would not extend an offer of employment. The parties agree that but for Marquez’s scheduling needs, he was qualified for the position of part-time bus operator. It is also undisputed that the MBTA never discussed with Marquez any possible accommodation. In the wake of the MBTA’s decision, Marquez suffered significant emotional distress. He felt that he was put in a position where he had to choose between his religion and his ability to work, and his choice made him question his faith. He took a hiatus from serving as a deacon in his church because he felt that he was an inadequate advocate for his religion. Marquez’s relationship with his wife began to deteriorate, and he began to drink and smoke cigarettes, in violation of his religious obligations. Only after a period of one and one-half years was he able fully to reembrace his religion. 2. Procedural history. On September 9, 1997, Marquez filed a charge of discrimination against the MBTA with the MCAD. He alleged that the MBTA discriminated against him on the basis of his religion by refusing to accommodate his religious observance of the Sabbath, in violation of G. L. c. 151B, § 4 (1A). The MCAD found probable cause to credit Marquez’s allegations and certified the case for a public hearing. A commissioner conducted a hearing on August 1 and 2, 2001. There was testimony from the manager of the human resources department at the MBTA that in 1997 the MBTA did not have a written policy regarding religious accommodation, but that the standard operating procedure was to ask for documentation supporting the request (which Marquez had provided), and to consult the legal department, the hiring department, the equal employment opportunity department, and the human resources department of the MBTA about potential accommodations. This process of consultation would include weighing factors such as the position the applicant was seeking and the impact any accommodation would have on operational needs, all of which would yield “some tangible evidence or documentation to support [the MBTA’s] decision.” There was, however, no evidence of any kind, written or oral, offered by the MBTA to establish that it engaged in such a process in response to the request made by Marquez. The MBTA’s chief transportation officer of bus operations testified at the MCAD hearing regarding the MBTA’s methods of covering for its many scheduled and unexpected employee absences. When there are insufficient drivers, he testified, the MBTA will use its “cover” list to fill in with relief drivers for any absent ones. If possible, the MBTA will also facilitate voluntary swaps among drivers to limit preventable absences. Although there was at the time a policy forbidding full-time drivers from swapping with part-time drivers, it was a “loose[ly]” enforced policy, and approximately thirty full-time drivers (who would have worked out of the same garage as Marquez) worked on Sundays and not on Fridays, and would have been in a position to swap shifts with Marquez if they chose to do so. There was also testimony that, if necessary, the MBTA would pay other operators overtime to cover for an unmanned route, or even leave the vacant shift uncovered. There was no evidence that any of these methods for covering employee absences was considered by the MBTA in response to Marquez’s request for accommodation. After the hearing, the commissioner issued a written decision, including detailed findings of fact and conclusions of law. The commissioner found that there were a number of possible means by which Marquez’s religious beliefs could have been accommodated, including coverage by relief drivers (over which management retained a measure of discretion), or through the use of overtime workers, or by leaving the Friday evening shift uncovered, or by allowing voluntary swaps between part-time and full-time drivers. Notwithstanding these possible accommodations, the MBTA offered no evidence to show that it explored any of them, but had concluded, without investigation, that an accommodation of Marquez’s beliefs was not feasible. Consequently, the hearing commissioner found, the MBTA had “refused to even attempt a good faith effort to accommodate [Marquez]” and did not meet its burden of proving undue hardship pursuant to G. L. c. 151B, § 4 (1A). The commissioner awarded Marquez $50,000 for emotional distress and ordered the MBTA to hire Marquez for the position for which he was qualified in 1997, if Marquez still desired to pursue it. The MBTA appealed from the commissioner’s decision to the full commission. The MBTA did not contest that Marquez was qualified to be a part-time bus operator or the commissioner’s finding that, despite a loose policy to the contrary, voluntary swaps between part-time bus operators and full-time operators happened frequently. Instead, the MBTA claimed that any accommodation that would have allowed Marquez to leave his bus route early every Friday evening would have caused undue hardship. Therefore, the MBTA contended, it did not need to engage Marquez in an interactive process to ascertain his religious obligations more fully and whether they could be reasonably accommodated. Indeed, the MBTA asserted that requiring such a process would itself be an undue hardship. The full commission affirmed the commissioner’s findings and order of relief, similarly concluding that the MBTA had not sufficiently demonstrated that accommodating Marquez’s religious beliefs would cause it an undue hardship. The MCAD also went further, interpreting the reasonable accommodation language of G. L. c. 151B, § 4 (1A), to require that an employer engage in an interactive process with its employee once the employer is notified of an employee’s conflicting religious obligation, and concluding that the MBTA’s failure to engage in such a process with Marquez was itself a separate violation of the statute. As the MCAD found, “the reasonable accommodation language . . . give[s] rise to a concomitant obligation on the part of an employer to engage in a meaningful dialogue with an employee in order to investigate fully whether a particular accommodation can be made.” The MCAD affirmed the relief granted by the commissioner and awarded $53,550 in attorney’s fees to Marquez. Pursuant to G. L. c. 30A, § 14, the MBTA appealed from the MCAD’s decision to the Superior Court. A Superior Court judge affirmed the decision of the MCAD, concluding that the MBTA had failed to demonstrate that the possibility of reasonably accommodating Marquez was foreclosed. Modes of accommodation, the judge observed, such as voluntary swaps and the use of relief drivers, may have been available to accommodate Marquez, and the MBTA failed to show that those options would have constituted an undue hardship. The judge noted that no MBTA official consulted with union officials regarding any possible accommodations (shift selections and swaps), and no employees were consulted regarding their willingness to swap shifts with Marquez. Additionally, the judge found that the payment of overtime to an employee to cover Marquez’s Friday evening shift would not impose an undue hardship on the MBTA, but that requiring the MBTA to leave a shift uncovered as an accommodation to Marquez’s schedule would impose such a hardship. The judge found ample evidence to support the MCAD’s finding that the MBTA should have conducted an interactive individualized inquiry seeking to accommodate Marquez, and that such an inquiry is required unless a reasonable accommodation clearly is impossible, which was not the case here. Last, the judge found that the relief ordered by the MCAD, including the award of attorney’s fees, was within the commission’s discretion. 3. Discussion. We will affirm a decision and order of the MCAD unless its findings and conclusions are unsupported by substantial evidence or are based on error of law. See G. L. c. 151B, § 6; G. L. c. 30A, § 14 (7); School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 423 Mass. 7, 11 (1996); New York & Mass. Motor Serv., Inc. v. Mas sachusetts Comm’n Against Discrimination, 401 Mass. 566, 572 (1988). We begin by noting that the commissioner’s findings (adopted by MCAD) that Marquez established a prima facie case of religious discrimination in violation of G. L. c. 151B, § 4 (1A), and that the MBTA failed to take any steps to accommodate him or even to investigate whether any of a number of potential accommodations was possible without incurring undue hardship, are amply supported in the record. We now turn to the MBTA’s two central assertions of error. First, the MBTA asserts that the MCAD’s conclusion that it failed to prove that any possible accommodation would have been undue hardship was incorrect as a matter of law. Second, the MBTA asserts that any accommodation of Marquez would have imposed more than a de minimis cost on it in violation of the establishment clause. In applying G. L. c. 151B, § 4 (1A), the MCAD and the Superior Court judge properly looked to the familiar three-part inquiry that is applied when religious discrimination is alleged. New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, supra at 575-576. Initially, the employee bears the burden of proving that the employer required him to violate a religious practice compelled by his sincerely held belief. Id. See Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 137 (1st Cir. 2004), cert. denied, 545 U.S. 1131 (2005) (applying same analysis in context of amended statute). The employee must also demonstrate that he provided his employer with the required advance notice of his religious obligation (ten days). G. L. c. 15IB, § 4 (1A). Once the employee establishes these prerequisites, the burden shifts to the employer either to accommodate the complainant or “to prove that accommodation of the complainant’s religious obligations would impose on the employer an undue hardship as defined by the statute.” New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, supra at 576. In determining whether this burden has been met, the MCAD must focus on the particular nature and operations of the employer’s business. Id. Additionally, the MCAD must inquire “whether the employer could have exercised its managerial discretion in such a way that the employee’s religious obligations could have been reasonably accommodated.” Id. The burden here, then, is on the MBTA to demonstrate that any possible accommodation of Marquez’s religious beliefs would have constituted an undue hardship in the context of its operations. An employer’s mere contention that it could not reasonably accommodate an employee is insufficient, G. L. c. 151B, § 4 (1A); New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, supra, as is its mere speculation. See Brown v. General Motors Corp., 601 F.2d 956, 960 (8th Cir. 1979) (under parallel protections of Title VII of Civil Rights Act of 1964, “employer stands on weak ground when advancing hypothetical hardships in a factual vacuum”). The statute offers four express examples of undue hardship. G. L. c. 15IB, § 4 (1A). The term includes the “inability of an employer to provide services which are required by . . . federal and state laws.” If the employee’s absence would “unduly compromise[]” public health or safety, then accommodation is unreasonable. Similarly, an employer is not required to accommodate the absence of an irreplaceable employee “where [that] employee’s presence is indispensable to the orderly transaction of business.” Last, if the employee’s presence is “needed to alleviate an emergency situation,” his absence will be considered undue hardship. The list of examples is not exhaustive. Cloutier v. Costco Wholesale Corp., supra at 138. Rather, it illustrates the types of accommodation that constitute excessive interference with an employer’s business affairs under the statute. Id. The term “undue hardship” is the same term used in Title VII of the Civil Rights Act of 1964 regarding Federal protections from religious discrimination. 42 U.S.C. §§ 2000e(j), 2000e-2(a)(1) (2006). The United States Supreme Court has interpreted the inclusion of the “undue hardship” provision in Title VII to mean that an employer may not be required to bear more than a de minimis cost to accommodate the religious beliefs of an employee. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). Although the Massachusetts undue hardship standard in G. L. c. 151B is “notably different” and all

Olga St. Fleur vs. WPI Cable Systems/Mutron. Middlesex. November 5, 2007. January 4, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Federal Arbitration Act. Anti-Discrimination Law, Arbitration, Uniform Arbitration Act. Contract, Arbitration, Specific performance. Fraud. Statute, Federal preemption. Words, “Proceed summarily.” In the circumstances of an action to enforce an arbitration agreement, a Massachusetts court is not required to follow the procedure set forth in 9 U.S.C. § 4, the Federal Arbitration Act (Federal act), in the application of State-law contract defenses to determine the validity of the arbitration agreement, but rather may apply the provisions of the Massachusetts counterpart, G. L. c. 251, § 2, which requires an expedited evidentiary hearing on a dispute as to a material fact, a procedure which, by placing arbitration agreements on at least the same footing as other contracts, does not undermine the purposes of the Federal act and is thus not preempted by it. [348-354] In an action brought in Superior Court by an employee against her former employer, alleging claims of discrimination and harassment based on the employee’s race, sex, and national origin, the judge erred in denying the employer’s motion to dismiss the complaint and compel arbitration, brought on the ground that the employee had signed an agreement to arbitrate such claims, where the judge mistakenly concluded that the employer bore the risk of the employee’s ignorance of the nature and contents of the arbitration agreement and that the court would only enforce an arbitration agreement where “appropriate” [354-355]; further, where the judge failed to conduct an evidentiary hearing to determine the existence of such an agreement, in light of the employee’s production of evidence sufficient to sustain a claim of fraud in the inducement, this court remanded the matter to the Superior Court for such proceedings [355-356], In an action in Superior Court to enforce an arbitration agreement, a claim that the plaintiff was fraudulently induced to enter into the agreement, an issue that went solely to the making of the agreement to arbitrate, was one for a judge, and not an arbitrator, to resolve. [356] Civil action commenced in the Superior Court Department on February 3, 2005. A motion to compel arbitration and to dismiss the complaint was heard by Leila R. Kern, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Joseph F. Hardcastle for the defendant. Howard I. Wilgoren for the plaintiff. The following submitted briefs for amici curiae: Beverly I. Ward for Massachusetts Commission Against Discrimination. Robert S. Mantell & Patti A. Prunhuber for Massachusetts Employment Lawyers Association & another. Ben Robbins, Martin J. Newhouse, & Jo Ann Shotwell Kaplan for New England Legal Foundation. Spina, J. WPI Cable Systems/Mutron (WPI) appeals pursuant to G. L. c. 251, § 18 (a) (1), from the denial of its motion to dismiss the discrimination complaint of Olga St. Fleur, a former employee, and to compel arbitration of that complaint, where the subject matter of her complaint was covered expressly by an arbitration agreement. We transferred the case to this court on our own motion. We now vacate the order denying WPI’s motion and remand this case to the Superior Court for a hearing to determine whether the parties entered into an agreement to arbitrate. Background. In July, 2000, WPI hired St. Fleur to work at its assembly plant in Chelsea. In February, 2002, she was asked to sign a document under conditions that are hotly disputed. St. Fleur presented an affidavit in which she asserts that the general manager of the WPI facility approached her in February, 2002. He asked her, “Can you please sign this for me?” “What is this?” she replied. He answered, “It is nothing. It is just something if we have a disagreement by signing this it tells you that you agree to sit down and discuss it with us.” The general manager gave her a single page to sign, and St. Fleur asked him where the rest of the document was. He said that the office manager was working on it, and he told St. Fleur, “Don’t worry about it. I will put the paper you signed with the rest of the papers that [the office manager] is working on.” He also told her, “The papers [the office manager] is working on say what I just told you,” and “Everybody is getting the same thing and you have to sign it.” The page that St. Fleur signed does not contain the word arbitration, and the general manager did not tell her that she was signing an arbitration agreement. WPI, on the other hand, presented an affidavit from Joseph Galli, St. Fleur’s supervisor at the time, asserting that, in September, 2001, he delivered to St. Fleur the company’s new arbitration policy, a memorandum explaining the new policy, and the arbitration agreement itself. Her supervisor also explained that St. Fleur should feel free to have a lawyer look at the agreement. WPI presented, in addition, an affidavit from Nicolletta Crowley, a WPI human resources administrator, asserting that most WPI employees signed the arbitration agreement in September, 2001. St. Fleur, however, did not. To employees who had not yet signed the arbitration agreement, WPI sent in February, 2002, a memorandum asking them either to sign the arbitration agreement or to confirm their refusal to sign the arbitration agreement. Two of St. Fleur’s colleagues confirmed their refusal to sign, but St. Fleur chose to sign the arbitration agreement. The arbitration agreement provides that the parties to the agreement waive all rights to a jury trial and agree to resolve through arbitration any claims against WPI arising out of the employee’s employment with or termination from WPI. The agreement specifically states that the parties are to resolve through arbitration any claims of discrimination or harassment based on race, sex, or national origin. In June, 2004, St. Fleur filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging that, on account of her race, sex, and national origin, she had suffered discrimination and harassment at WPI. Specifically, she claimed that she was subjected to “harassment, disparate terms and conditions of employment, a hostile work environment, and wrongful termination.” MCAD dismissed her complaint for lack of probable cause. Thereafter, St. Fleur filed her complaint in the Superior Court alleging claims of discrimination and harassment based on her race, sex, and national origin. WPI moved to dismiss the complaint and compel arbitration or, alternatively, to stay proceedings (WPI’s motion) on the ground that St. Fleur had agreed to arbitrate her claims of employment discrimination and harassment. St. Fleur contends that the alleged arbitration agreement was unenforceable because her supervisor had induced her to sign the agreement by misrepresenting the nature and contents of the agreement. After a nonevidentiary hearing on WPI’s motion, a judge in the Superior Court denied the motion, apparently on the grounds that WPI bore the risk of St. Fleur’s ignorance and that enforcement of the arbitration agreement would not have been “appropriate.” At no time did the judge conduct an evidentiary hearing or trial to determine whether the parties entered into an agreement to arbitrate. Discussion. WPI seeks to dismiss or stay St. Fleur’s discrimination suit and compel arbitration under the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (Federal Act). St. Fleur, on the other hand, argues that she can avoid submitting her claims to arbitration because she fraudulently was induced to sign her arbitration agreement. This dispute falls within the scope of the Federal Act because it centers on an agreement to arbitrate controversies arising from employment at WPI and because it is undisputed that WPI is involved in interstate commerce. See 9 U.S.C. §§ 1-2 (disputes involving interstate commerce fall within scope of Federal Arbitration Act); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001). State courts have jurisdiction, concurrent with Federal courts, to enforce the Federal Act. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 (1983). The Federal Act, 9 U.S.C. § 2, provides in part: “A written provision in. . .a contract evidencing a transaction involving interstate commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” By enacting this statute, Congress intended to put arbitration agreements on “the same footing as other contracts.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (1974), quoting H.R. Rep. No. 96, 68th Cong., 1st Sess. 1, 2 (1924). That is, it sought “to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate,” Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219-220 (1985), and to prevent State courts from “singling out arbitration provisions for suspect status.” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996). “While the language [of the statute] might plausibly be read to support a broader construction, consideration of the legislative history reveals that what the Congress intended was merely to overrule by legislation long-standing judicial precedent, which declared agreements to submit judicable controversies to arbitration contrary to public policy . . . .” American Airlines, Inc. v. Louisville & Jefferson County Air Bd., 269 F.2d 811, 816 (6th Cir. 1959). See Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 477 (1989). The Federal Act preempts State law only to the extent that it conflicts with the Federal Act. See id., quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (Federal Act preempts State law “to the extent that it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”); Societe Generale de Surveillance v. Raytheon European Mgt. & Sys. Co., 643 F.2d 863, 867 (1st Cir. 1981) (Federal Act preempts “only that state law inconsistent with its express provisions”). Similar to the Federal Act, the Massachusetts Act “expresses] a strong public policy favoring arbitration.” Home Gas Corp. of Mass., Inc. v. Walter’s of Hadley, Inc., 403 Mass. 772, 774 (1989), quoting Danvers v. Wexler Constr. Co., 12 Mass. App. Ct. 160, 163 (1981). The Massachusetts Act, G. L. c. 251, § 1, provides in part: “A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties shall be valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Both the Federal and State Acts deem arbitration agreements enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract.” Id. 9 U.S.C. § 2. That is, courts may apply generally applicable State-law contract defenses — such as fraud, duress, or unconscionability — to determine the validity of an arbitration agreement. Doctor’s Assocs., Inc. v. Casarotto, supra at 687 (Federal Act). Miller v. Cotter, 448 Mass. 671, 677 (2007) (Massachusetts Act). See Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987). St. Fleur alleges that she fraudulently was induced to sign the arbitration agreement. Because fraudulent inducement is a generally applicable State-law contract defense, a judge applies those State-law contract principles to determine whether it should invalidate the agreement. See Doctor’s Assocs., Inc. v. Casarotto, supra; Perry v. Thomas, supra (Federal Act); Miller v. Cotter, supra at 677 (Massachusetts Act). The judge applies those principles whether acting under the Federal or Massachusetts Act. Id. The parties do not dispute that Massachusetts contract law applies in this case. The parties do, however, dispute the procedure that a State court must follow in its application of that substantive law. More specifically, the parties argue over whether State courts must apply the procedures set forth in 9 U.S.C. § 4 of the Federal Act and, if those provisions do not apply, what procedures the court must apply in their stead. We determine that a State court need not apply the procedures set forth in 9 U.S.C. § 4. Title 9 U.S.C. § 4 states in part: “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court ... for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days’ notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default ... the court shall hear and determine such issue” (emphasis added).. Title 9 U.S.C. § 4 sets forth a procedure that only Federal courts must apply. The statute provides that an aggrieved party may petition any “United States district court.” Thereafter, the statute sets forth the procedure “the” court must follow. In this context, “the” court refers most naturally to the only court thus far mentioned in the statute — namely, a United States District Court. See Pennsylvania Mut. Life Ins. Co. v. Henderson, 244 F. 877, 880 (D.C. Fla. 1917) (interpreting word “the” as equivalent of “such”); People v. Enlow, 135 Colo. 249, 262-263 (1957) (“ ‘the’ [has] a specifying or particularizing effect, opposed to the indefinite or generalizing force of ‘a’ or ‘an’ ”). That is, “the” court refers to Federal courts and not to State courts. A further indication that the statute refers only to Federal courts is the directive in § 4 that a party serve process according to the Federal Rules of Civil Procedure. No mention is made of State rules of civil procedure. Finally, it would be a strained interpretation of the text to suppose that 9 U.S.C. § 4 refers to State courts even though the only courts mentioned are Federal courts, the only rules mentioned are Federal rules, and there is no mention at all in 9 U.S.C. § 4 of State courts. Other courts have held that the procedures set forth in 9 U.S.C. § 4 apply to Federal courts alone. See Aaacon Auto Transp., Inc. v. Newman, 77 Misc. 2d 1069, 1072 (N.Y. Sup. Ct. 1974) (9 U.S.C. § 4 is “neither intended to apply to State courts nor [does it] by [its] terms apply to any but the United States District Courts”). See also Atlantic Painting & Contr. Inc. v. Nashville Bridge Co., 670 S.W.2d 841, 846 (Ky. 1984) (“The federal Arbitration Act covers both substantive law and a procedure for federal courts to follow where a party to arbitration seeks to enforce or vacate an arbitration award in federal court [but the] procedural aspects are confined to federal cases” [emphasis in original]); Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 242 (2001) (“§ 4 of the [Federal Act] . . . expressly deal[s] only with the procedure to be followed by the federal courts”). Because the procedures in 9 U.S.C. § 4 do not apply to State courts, a State court may apply its own law. See Howlett v. Rose, 496 U.S. 356, 372 (1990) (States may apply “their own neutral procedural rules to federal claims, unless those rules are pre-empted by federal law”); Miller v. Cotter, supra at 678-679 (applying rules of Massachusetts Act because they did not stand as obstacle to purpose of Federal Act); Weston Sec. Corp. v. Aykanian, 46 Mass. App. Ct. 72, 75-77 (1998) (same). That is, because 9 U.S.C. § 4 does not apply in this situation, its Massachusetts counterpart, G. L. c. 251, § 2, applies unless that statute undermines the purposes of the Federal Act. See Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 477-478 (1989). We turn now, first, to consider what the provisions of G. L. c. 251, § 2, require and, second, to consider whether those provisions undermine the Federal Act’s purpose of placing arbitration agreements on an equal footing with other contracts. General Laws c. 251, § 2, provides in relevant part: “A party aggrieved by the failure or refusal of another to proceed to arbitration under an [arbitration agreement] may apply to the superior court for an order directing the parties to proceed to arbitration. If the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall, if it finds for the applicant, order arbitration; otherwise, the application shall be denied.” The statute thus provides that a judge shall “proceed summarily” to determine the existence of the arbitration agreement. Although G. L. c. 251 does not provide a definition of “proceed summarily,” the statute is modeled after the Uniform Arbitration Act, which has been adopted by other States that have interpreted the phrase. Specifically, those courts have interpreted “proceed summarily” to mean that a judge determines whether there is a dispute as to a material fact; and, if there is not such a dispute, the judge resolves the issue as a matter of law; but, if there is such a dispute, the judge conducts an expedited evidentiary hearing on the matter and then decides the issue. Merrill Lynch Pierce Fenner & Smith, Inc. v. Falowski, 425 So. 2d 129, 130 (Fla. Dist. Ct. App. 1982); Bass v. SMG, Inc., 328 Ill. App. 3d 492, 496 (2002); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992). The absence of a right to a jury trial in these circumstances is consistent with a party’s rights in nonarbitration contractual disputes. A motion to compel arbitration is in essence a suit in equity to compel specific performance of an arbitration agreement. See Rosenthal v. Great W. Fin. Sec. Corp., 14 Cal. 4th 394, 411 (1996). Typically, there is no right to a jury trial for actions seeking specific performance of a contract or for actions challenging the existence of a contract on the ground of fraudulent inducement. Shikes v. Gabelnick, 273 Mass. 201, 205, 207 (1930) (judge can decide in his discretion to deny or compel specific performance on account of fraud); Shapira v. D’Arcy, 180 Mass. 377, 378-379 (1902) (no right to jury trial for specific performance). However, a judge, in her discretion, may grant a jury trial. Bergeron v. Automobile Mut. Ins. Co., 261 Mass. 409, 411 (1927). Where a party, under G. L. c. 251, § 2, seeks specific performance of an arbitration agreement or where a party is challenging the existence of an arbitration agreement on the ground of fraudulent inducement, there is no reason to believe the Legislature intended to create a right to jury trial where none existed before, especially where the statute makes no reference to trial by jury. The Massachusetts Act merely applies the same basic procedure to arbitration agreements that is applied to other contracts. The procedure does not single out arbitration agreements for less favorable treatment. Rather, it places arbitration agreements on at least the same footing as other contracts. General Laws c. 251, § 2, therefore does

Luyen Huu Nguyen & others vs. William Joiner Center for the Study of War and Social Consequences & another. Suffolk. November 8, 2007. December 21, 2007. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Employment, Discrimination. Anti-Discrimination Law, Prima facie case, Employment, Unfair educational practice. Practice, Civil, Motion to dismiss. In a civil action alleging that the defendants (a university and a research center within the university) discriminated against the plaintiff in the method by which the defendants solicited and selected fellowship recipients for a certain research program, the judge properly dismissed the claim brought pursuant to G. L. c. 15 IB for failure to state a claim upon which relief could be granted, where the plaintiffs failure to apply for the fellowship, an integral element of his prima facie claim of discrimination, could not be excused either because of alleged defects in notice [296-297] or because applying would have been futile [297-299]. A Superior Court judge properly dismissed, for failure to state a claim upon which relief could be granted, a civil action brought pursuant to G. L. c. 151C alleging that the defendants (a university and a research center within the university) discriminated against the plaintiff in the method by which the defendants solicited and selected fellowship recipients for a certain research program, where persons accepted for fellowships were essentially temporary employees having faculty privileges, and as such, they could not be considered students or prospective students, as contemplated by G. L. c. 151C, § 2 (d). [300-301] Civil action commenced in the Superior Court Department on October 3, 2001. A motion to dismiss was heard by Janet L. Sanders, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Ceejaye E. Sneddon, of Mississippi, for the plaintiffs. Michael P. Joyce for the defendants. Bui Diem, Dinh Tu Nguyen, Sang P. Le, Ba Tuong Nguyen, Xuan M. Tran, Nam Nhat Phan, Liem Thanh Nguyen, and Chuc V. Nguyen. University of Massachusetts at Boston. Greaney, J. This appeal, here on further appellate review, arises out of the dismissal of a complaint brought in the Superior Court by the plaintiff, Luyen Huu Nguyen, under G. L. c. 15 IB and G. L. c. 151C, alleging discrimination in the method by which the defendants solicited and selected fellowship recipients for a program to promote research into the Vietnamese identity in the era following the Vietnam War. We affirm. We summarize the relevant facts alleged in the most recent unverified amended complaint, followed by the procedural background of the case. See Nader v. Citron, 372 Mass. 96, 98 (1977). We accept the allegations set forth in the complaint, as well as reasonable inferences therefrom, as true. We “do not accept legal conclusions cast in the form of factual allegations.” Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). See Papasan v. Allain, 478 U.S. 265, 286 (1986) (on motion to dismiss, judges “are not bound to accept as true a legal conclusion couched as a factual allegation”). In July, 1999, the defendants, the University of Massachusetts at Boston (university) and its academic center, the William Joiner Center for the Study of War and Social Consequences (center), received grant money from the Rockefeller Foundation of New York to establish research fellowships for the study of the so-called Vietnamese diaspora. The Vietnamese diaspora began when the first wave of refugees fled South Vietnam as that country was overtaken by the communists from the North during the fall of Saigon in April, 1975. The research was to focus on, among other issues, the development of Vietnamese identity, history, literature, and culture in the postwar and post-refugee era across generations. The fellows were to have temporary employment positions with “all the privileges of university faculty.” The fellowship program provided that the fellowship positions would be “publicized widely,” including notifying professional associatians and advertising in several specific publications. The program description stated that “[b]ilingual Vietnamese outreach materials will also be produced and disseminated to local and national Vietnamese community media outlets (newspapers, radio, cable television, websites).” The plaintiff is over the age of forty and resides in Boston. He claims to have a “national origin” of South Vietnam. The university has a hiring guide and an affirmative action plan, both of which prohibit discrimination. The hiring guide requires that before filling temporary and grant-funded positions, the human resources department is to be consulted. On January 4, 2000, the center distributed information to the public about the fellowships by way of a press release and a letter. The center also advertised the fellowship positions in two Vietnamese publications, Hop Luu and Van Hoc. The deadline for filing applications was January 31, 2000. The materials distributed by the center did not explain the application requirements or process, and when such information was later distributed in a poster, it was after the application deadline had passed. The center did not advertise in any publications other than Hop Luu and Van Hoc, and “outreach materials” were not disseminated to Vietnamese community media outlets. The center did not advertise in any Massachusetts-based Vietnamese-American daily newspaper, weekly newspaper, or magazine. Four individuals were awarded the fellowship positions offered in 2000. Of these four, two individuals were “admitted agents of the Communist Party” who immigrated to the United States from North Vietnam; one was a “Caucasian-American by birth under the age of [forty]”; and “one [was a] person of Vietnamese American descent” under the age of forty. The four successful candidates were less qualified than the plaintiff. The plaintiff learned of the fellowship opportunities on April 11, 2000, a little over two months after the application deadline. He informed the other plaintiffs, who had also not earlier learned of the fellowships. Fellowships were offered again in 2001 and 2002. None of the plaintiffs applied for any of these positions. With respect to the fellowships offered in 2001 and 2002, the plaintiff did not apply because of the legal proceedings he had commenced at the Massachusetts Commission Against Discrimination (commission), and because he “believed [he] would have been discriminatorily rejected had [he] actually applied.” The plaintiff further alleged that in awarding the fellowships in 2000, the center did not consult with the human resources department and failed to comply with any of the university’s hiring guidelines or its affirmative action plan. On October 27, 2000, the plaintiff filed a charge of discrimination with the commission, asserting a single count of employment discrimination under G. L. c. 151B, § 4. He moved to amend his charge to have it treated as a class action. The motion was denied. On September 12, 2001, the commission dismissed his complaint, finding a lack of probable cause. In October, 2001, the plaintiffs filed in the Superior Court the complaint underlying this appeal. In the complaint, the plaintiffs stated their claims individually and as representatives of a proposed class. A Superior Court judge later denied the plaintiffs’ motion to certify the case as a class action. The complaint was thereafter amended. The amended complaint contains three counts: count one asserts a claim of discrimination by reason of disparate treatment under G. L. c. 151B; count two asserts a claim of discrimination by reason of disparate impact under G. L. c. 15IB; and count three asserts a claim of discrimination in education under G. L. c. 151C. The complaint alleges that the actions of the defendants, “including the timing and methods of the advertisement, publication, and announcement of the [fjellowships, and the evaluation and selection of the [fellowship recipients, were taken with the deliberate, improper, and illegal intent to exclude members of the Vietnamese-American community over the age of [forty], including the plaintiffs.” The defendants filed a motion to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (1) and (6), 365 Mass. 754 (1974). The defendants argued that subject matter jurisdiction was lacking because all but one of the plaintiffs failed to file a charge of discrimination with the commission before filing the Superior Court complaint and because the claim of a violation of discrimination in education under G. L. c. 151C was not included in the plaintiff’s charge of discrimination filed with the commission. In addition, the defendants maintained that the counts under G. L. c. 15 IB failed to state a claim on which relief could be granted because the plaintiffs did not apply for the fellowship and because the plaintiffs’ anticommunist views, as intertwined with a claim of discrimination predicated on national origin and age, are not protected under G. L. c. 151B. Finally, the defendants asserted that the claim under G. L. c. 151C should be dismissed because (1) that statute does not protect the “creed of communism,” (2) the plaintiffs were not seeking admission to an educational institution as students, and (3) the plaintiffs were not seeking admission to a program leading to a degree. The judge allowed the motion to dismiss, apparently pursuant to rule 12 (b) (6), as to both the G. L. c. 151B and G. L. c. 151C claims. She rested her decision primarily on the grounds that (a) notice of the positions did not permit an inference of discriminatory animus, and (b) because the plaintiffs never applied for a position, the defendants engaged in no adverse action with respect to them. Judgment entered, and the plaintiffs appealed. The Appeals Court affirmed the judgment of dismissal on a different basis, concluding that the plaintiff sought protection as a member of a class, defined essentially by political beliefs, that is not protected by G. L. c. 151B or G. L. c. 151C. Nguyen v. University of Mass., 66 Mass. App. Ct. 276, 277, 281-282 (2006). We granted the plaintiff’s application for further appellate review, and we now affirm for reasons other than those articulated by the Appeals Court. 1. Standard of review. The purpose of a motion to dismiss for failure to state a claim pursuant to rule 12 (b) (6) “is to permit prompt resolution of a case where the allegations in the complaint clearly demonstrate that the plaintiff’s claim is legally insufficient.” Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 748 (2006). In evaluating a motion to dismiss, we apply the principle that a complaint is sufficient “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” See Nader v. Citron, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). 2. Counts under G. L. c. 151B. The plaintiff concedes, as he must, that he did not apply for the fellowship, an integral element of a prima facie claim of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 135 n.5 (1976). He does not challenge the judge’s ruling that this defect can be fatal to his discrimination claims under G. L. c. 151B. Rather, the plaintiff argues that the judge erred in concluding that his failure to apply to the fellowship program was not excused. The plaintiff contends that he did not have to apply for a fellowship at any time because, in 2000, he was not timely made aware of the fellowships because of the “illusory and haphazard advertisements and solicitations” for the positions, and because in 2001 and 2002, he had commenced legal proceedings against the defendants which, together with the earlier shortcomings in advertising, rendered any application futile. His claims under G. L. c. 15 IB thus raise a single issue: whether the plaintiff’s failure to apply can be excused either because of alleged defects in notice or under the doctrine of futility. a. With respect to the 2000 positions, the judge noted that notice was circulated and published twenty-six days before the deadline for applications. The judge correctly concluded that there is nothing about the method of notice that creates an inference of age discrimination or that provides a legally sufficient reason to conclude that the defendants intended to exclude the plaintiff, or any other potential Vietnamese applicant, from receiving notice. Any infirmities in the notices, therefore, do not create any permissible inference of discriminatory animus and do not excuse a failure to apply. See Lockridge v. Trustees of the Univ. of Ark., 315 F.3d 1005, 1012 (8th Cir. 2003) (concluding that complainant’s assertion that time period for applying for job opening was shorter than usual did not raise inference in reasonable mind of racial animus); Chambers v. Wynne Sch. Dist., 909 F.2d 1214, 1217 (8th Cir. 1990) (explaining that formal application is excused only when job opening is not posted or advertised and either plaintiff had no knowledge of job otherwise or employer was aware of plaintiff’s interest in job). Cf. Williams v. Hevi-Duty Elec. Co., 819 F.2d 620, 629 (6th Cir.), cert. denied, 484 U.S. 970 (1987) (neither plaintiff’s obvious desire to be hired nor his filing of first lawsuit against company, alleging that it refused to hire him due to his race, obligated company to waive written job application requirement). b. With respect to the 2001 and 2002 positions, we need to discuss and apply the doctrine of futility. The applicable law derives from the United States Supreme Court’s decision of International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) (Teamsters), and its progeny. In Teamsters, the United States commenced a pattern and practice action under the Civil Rights Act of 1964 for racial and ethnic discrimination against a motor freight carrier because it failed to promote or transfer members of the protected class to the position of a line driver. Id. at 328-329 & n.1. The Court concluded that there had been no error in finding that the government “had proved a system-wide pattern and practice of racial and ethnic discrimination on the part of the company.” Id. at 362. The issue turned to the availability of remedies to individuals who had not applied for the position of line driver. Id. at 365. The Court rejected the employer’s contention that a person who had not actually applied for the job of line driver could never be awarded relief. Id. The Court explained: “The effects of and the injuries suffered from discriminatory employment practices are not always confined to those who were expressly denied a requested employment opportunity. A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection. “If an employer should announce his policy of discrimination by a sign reading ‘Whites Only’ on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs. The same message can be communicated to potential applicants more subtly but just as clearly by an employer’s actual practices — by his consistent discriminatory treatment of actual applicants, by the manner in which he publicizes vacancies, his recruitment techniques, his responses to casual or tentative inquiries, and even by the racial or ethnic composition of that part of his work force from which he has discriminatorily excluded members of minority groups. When a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application.” (Footnote omitted.) Id. at 365-366. In the context of proving a discrimination claim under G. L. c. 15IB, a per se prohibition of relief to a nonapplicant on the basis of futility would contravene the remedial purpose of the statute. Nonetheless, we agree with the judge that the plaintiff cannot, as matter of law, be excused under the holding of the Teamsters decision from the application requirement. The Teamsters case is readily distinguishable from this case because in Teamsters a pattern or practice of discrimination existed. Id. at 362. See Brown v. Coach Stores, Inc., 163 F.3d 706, 711 (2d Cir. 1998) (court rejected individual plaintiff’s “futile gesture” argument because “the leniency afforded individual plaintiffs in [Teamsters] hinged on an initial finding of a history of discrimination by the employer to the class of plaintiffs”). Even in the face of the alleged impediments in the advertising of the fellowship positions in 2000, the plaintiff has not alleged a consistently enforced pattern or practice of discrimination. See Teamsters, supra at 365. The judge correctly concluded that, for 2001 and 2002, the plaintiff failed to allege a sufficient causal link between any pattern or practice of the defendants and his failure to apply. The plaintiff’s subjective belief that, in light of the backdrop of legal proceedings, he would have been rejected had he applied for a fellowship cannot excuse his failure to apply, because the fact that he filed a charge with the commission alleging discrimination does not by itself establish that discrimination existed. Cf. Teamsters, supra at 369-371. We discern no other reason to support the plaintiffs claim. The fellowships were advertised. As a result, we do not have a situation where it would have been impossible to have learned of the position, see Mauro v. Southern New England Telecommunications Inc., 208 F.3d 384, 387 (2d Cir. 2000) (excusing plaintiff’s failure to apply because employer never posted positions and plaintiff had indicated that he wanted to be promoted to certain class of positions). Nor do we have a situation where the defendants possessed actual knowledge that the plaintiff wanted to apply. See id. There are also no allegations that the defendants ignored or actively discouraged the plaintiff or members of the plaintiff’s purported class from filing applications. See Lams v. General Waterworks Corp., 766 F.2d 386, 394 (8th Cir. 1985). No overt act of discrimination has been alleged. See United States v. Gregory, 871 F.2d 1239, 1241-1242 (4th Cir. 1989), cert. denied, 493 U.S. 1020 (1990) (excusing female plaintiff’s failure to apply because employer explicitly stated women would not be hired). The claims under G. L. c. 15 IB were properly dismissed. 3. Count under G. L. c. 151C. The third count of the complaint alleges discrimination in violation of G. L. c. 151C. The plaintiff clarifies that his claim is under G. L. c. 151C, § 2 (d), which provides: “It shall be an unfair educational practice for an educational institution: — “(d) To exclude, limit or otherwise discriminate against any person seeking admission to a program or course of study leading to a degree, beyond a bachelor’s degree, because of race, religion, creed, color, age, sex or national origin, or to so discriminate against any student admitted to such program or course of study in providing benefits, privileges and placement services.” The plaintiff maintains that he was discriminated against in connection with his “admission to a program” (emphasis added), id., namely, the fellowship program, on the basis of creed, age, and national origin. The plaintiff’s argument does not consider the statute as a whole. See Wolfe v. Gormally, 440 Mass. 699, 704 (2004). The statute speaks to discrimination, in the setting of an educational institution, against students and pr