Discrimination Cases

William Brackett & others vs. Civil Service Commission & another (and a companion case). Suffolk. April 3, 2006. July 14, 2006. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Massachusetts Bay Transportation Authority, Police officers. Civil Service, Decision of Civil Service Commission, Judicial review, Police, Promotion, Eligibility list. Practice, Civil, Review respecting civil service. Constitutional Law, Equal protection of laws. Administrative Law, Judicial review, Agency’s authority, Regulations, Agency’s interpretation of regulation. Statement of the standard applied by this court when reviewing a decision of the Civil Service Commission. [241-242] The actions of the Massachusetts Bay Transportation Authority (MBTA) in promoting minority and female police officers through the use of special certifications did not offend the equal protection rights of the plaintiffs (white male police officers who were bypassed for promotions), where the MBTA provided a strong basis in evidence to justify the conclusion that it had engaged in prior discriminatory practices with respect to the promotion of minority officers, the effect of which continued to affect its police department and necessitated the use of special certifications [242-246]; where the MBTA demonstrated prima facie evidence of ongoing effects of a past practice of gender discrimination (specifically, a gross statistical disparity between the gender composition of its workforce and the gender composition of the relevant qualified female applicant pool), which supplied the requisite firm basis for the MBTA’s belief that remedial action was necessary [246-251]; and where the use of special certifications was a narrowly tailored means of addressing the racial and gender discrimination in the hiring and promotion practices of the MBTA police department [251-253], The human resources division of the Executive Office for Administration and Finance (HRD) had the statutory authority, pursuant to G. L. c. 31, § 3, to promulgate a rule creating separate lists of candidates for promotion, based on race and gender, as part of an affirmative action plan of the Massachusetts Bay Transportation Authority (MBTA) [253-256], and the actions of the EORD and the MBTA in implementing the rule were sufficient to satisfy its technical requirements [256-257], Crm actions commenced in the Superior Court Department on December 5, 1997, and November 8, 2001. Motions for judgment on the pleadings were heard by Diane M. Kottmyer, J., and Margot Botsford, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Frank J. McGee for William Brackett & others. Robert L. Quinan, Jr., Assistant Attorney General, for Human Resources Division of the Commonwealth. Robert P. Morris for Massachusetts Bay Transportation Authority. Daniel J. Gleason, Yalonda T. Howze, & Nadine Cohen, for Massachusetts Association of Minority Law Enforcement Officers, amicus curiae, submitted a brief. Steven Douglas, Robert Fitzsimmons, Joseph Lyons, Joseph O’Connor, Peter Roy, and Robert Vitale. Massachusetts Bay Transportation Authority (MBTA). Massachusetts Bay Transportation Authority vs. Civil Service Commission & others. Spina, J. The plaintiffs are seven white male police officers employed by the Massachusetts Bay Transportation Authority (MBTA) who contend that they were unlawfully bypassed for promotions to the ranks of sergeant and lieutenant when the chief of the MBTA police department, with the approval of the personnel administrator (administrator) of the human resources division of the Executive Office for Administration and Finance (HRD), chose instead to promote six minority or female candidates to those positions. We consider in this case whether Personnel Administration Rules PAR. 10 (Rule 10), pertaining to special certifications in the civil service based on race, color, national origin, or sex, was validly enacted, procedurally satisfied, and constitutionally sound. For the reasons that follow, we conclude that Rule 10 is valid and constitutional, and that the actions of the HRD were lawful. 1. Rule 10. Rule 10 provides in pertinent part: “(1) Prerequisites for special certifications based on race, color, national origin or sex shall be made whenever: “(a) an appointing authority shall make requisition to fill one or more positions included in said appointing authority’s affirmative action plan on file with the administrator, and; “(b) the administrator has made a written determination substantiating that previous practices of the department and/or of said appointing authority with respect to the filling of such position or positions have discriminated against members of a group, hereinafter referred to as a protected group, on the basis of race, color, sex, or national origin in contravention of any provision of the Constitution of the United States or the Constitution of the Commonwealth, Title VII of the federal Civil Rights Act of 1964 (42 U.S.C. [§ ] 2000e) or any other federal or state statute[,] the administrator may then certify, in addition to names certified in accordance with PAR. 09, the names of a like number of individuals who are members of the protected group and are on an eligible list for such position, in order of their standing. “(2) At least ten days prior to certifying names under the provisions of PAR. 10(1), the administrator shall post a notice of his intention to do so in the offices of the Department of Personnel Administration and shall mail a copy of such notice to the appointing authority, with instructions to post copies of such notice at all locations where persons whose names may be certified under the provisions of section one may, if employed, be assigned.” 2. Factual and procedural background. We recite in some detail the lengthy procedural history of these consolidated cases because the evidence of discrimination, presented by the MBTA, unfolded over the course of several proceedings before the Civil Service Commission (commission). On September 9, 1996, the chief of the MBTA police department submitted three public safety civil service requisition forms to the HRD in accordance with Rule 10. One form requested special certification of a “females” list for the position of lieutenant from an existing departmental promotional eligible list; the other two forms requested special certification of a “females” list and a “minorities” list for the position of sergeant from an existing departmental promotional eligible list. Attached to each requisition form was a statistical breakdown of the racial and gender composition of the MBTA’s police force as of May, 1996. The statistics showed that out of a total of 211 police officers in the MBTA police department, fifty-two officers (or 24.6%) were minorities, and fifteen officers (or 7.1%) were women. With respect to the 181 patrol officers, fifty officers (or 27.6%) were minorities, and twelve officers (or 6.6%) were women. With respect to the thirty police officers occupying the positions of sergeant, lieutenant, captain, major, and chief, two officers (or 6.6%) were minorities, and three officers (or 10%) were women. The HRD approved a “females” list for one lieutenant position, a “females” list for two sergeant positions, and a “minorities” list for three sergeant positions. The chief of the MBTA police department posted notices of his intention to certify names under the provisions of Rule 10 for these positions, and eligible candidates from both the regular lists and the special certification lists were considered. Effective October 5, 1996, the MBTA promoted a total of nine police officers, with the approval of the HRD. Two lieutenant positions were filled by one white male (William Fleming from the regular list) and one white female (Nancy O’Loughlin from the special certification list). Seven sergeant positions were filled by two white males (Salvatore Venturelli and Michael Moms from the regular list), two white females (Anne McCall and Irene Reardon from the special certification list), two black males (Herman Wheeler and Michael Lopes from the special certification list), and one black female (Gloria Andrews from the special certification list). Rule 10 did not establish any quotas with respect to promotions, and the MBTA’s affirmative action program was scheduled to expire on January 1, 2000. The plaintiffs filed an appeal with the commission, pursuant to G. L. c. 31, § 2 (b), alleging that they were unlawfully bypassed for promotion in favor of minority and female candidates. By decision dated November 5, 1997, the commission denied the plaintiffs’ appeal, concluding that (1) Rule 10 was a valid exercise of the HRD’s rule making authority under G. L. c. 31, § 3; (2) the plaintiffs’ constitutional claims could not be decided by the commission; and (3) both the MBTA and the HRD attempted in good faith to comply with the procedural requirements of Rule 10. As such, the commission declined to substitute its own judgment for that of the MBTA and the HRD. The plaintiffs sought judicial review of the commission’s determination pursuant to G. L. c. 30A, § 14, and G. L. c. 31, § 44. By decision dated October 20, 1998, a judge in the Superior Court (first Superior Court judge) denied the plaintiffs’ motion for judgment on the pleadings with respect to the minority promotions, affirming the commission’s determination in that regard. The judge concluded that the statistical data presented by the MBTA, together with its well-documented judicial history of racial discrimination, constituted a “strong basis in evidence” to support the MBTA’s use of special certification lists for minorities. The judge further concluded that Rule 10 was narrowly tailored to serve a compelling State interest. In addition, the judge agreed with the commission that the promulgation of Rule 10 was a valid exercise of the HRD’s rule mating authority under G. L. c. 31, § 3, and that the MBTA and the HRD satisfactorily complied with its provisions. The judge allowed the plaintiffs’ motion for judgment on the pleadings with respect to the gender-based promotions, reversing the commission’s determination in that regard and remanding the matter to the commission for further findings whether there was a “strong basis in evidence” to justify the use of a gender-based classification in determining eligibility for promotions. The judge opined that the mere absence of women in the positions of sergeant and lieutenant did not warrant a finding that women had been subjected to past gender discrimination by the MBTA, and she concluded that the statistical data presented by the MBTA did not constitute a “strong basis in evidence” to support its use of special certification lists for women. The plaintiffs filed a timely notice of appeal with respect to the judge’s decision affirming the minority promotions; the MBTA filed a timely notice of appeal with respect to the judge’s decision regarding the gender-based promotions. On remand to the commission, the MBTA presented the testimony of Dr. Leonard A. Cupingood, an expert in the field of statistics, who performed, as part of his work, utilization analyses comparing the gender composition of an employer’s work force with the gender composition of similar occupations in the relevant labor market, using the census as his primary data base. Dr. Cupingood compared, inter alla, the number of women employed by the MBTA police department with the number of women in the field of “protective services’’ who were performing police-related work in the Boston metropolitan area, taking into consideration the age, education, and income constraints that would be associated with an MBTA position. He concluded that there was a statistically significant underutilization of women in the MBTA police department in 1996. Nonetheless, by decision dated December 6, 2000, the commission found that the evidence presented by the MBTA was insufficient to show past discrimination justifying the use of gender-based classifications in determining eligibility for promotions. The MBTA filed a complaint for judicial review of the commission’s determination pursuant to G. L. c. 30A, § 14, and G. L. c. 31, § 44. See note 3, supra. Before this appeal was considered, the MBTA filed a motion under G. L. c. 30A, § 14 (6), to present additional evidence to the commission pertaining to the gender of actual applicants for various officer positions in the MBTA police department. A judge in the Superior Court allowed the MBTA’s motion, concluding that the evidence was material, that the MBTA had shown good cause for not presenting the evidence earlier “inasmuch as the [HRD], which had exclusive access to the information, acknowledged at the [prior] hearing that the information now being offered to the [commission] by the [MBTA] was timely requested but not provided,” and that the plaintiffs had not shown that they would be prejudiced by the admission of such evidence. After considering the new evidence, the commission concluded, by decision dated January 22, 2002, that the additional testimony provided by Dr. Cupingood still did not demonstrate prior discriminatory practices by the MBTA police department that would justify the use of gender-based classifications in promotion decisions. Therefore, the commission affirmed its decision of December 6, 2000. The MBTA then filed a motion for judgment on the pleadings with respect to its complaint for judicial review of the commission’s determinations relating to the gender-based promotions. By decision dated November 21, 2003, a judge in the Superior Court (second Superior Court judge) allowed the MBTA’s motion, reversing and vacating the determinations of the commission dated December 6, 2000, and January 22, 2002, and affirming the determination of the commission dated November 5, 1997, which upheld the MBTA’s gender-based promotions. The judge concluded that at the hearings before the commission on remand, the MBTA presented uncontroverted expert testimony that the statistical disparity between women in the labor force for the positions at issue and women in the MBTA police department did, in fact, exceed the benchmark of three standard deviations established by the first Superior Court judge as the measure for evaluating whether there was a “strong basis in evidence” as to past discrimination. The judge further opined that the MBTA was not required to provide direct evidence of past gender discrimination, but instead could present evidence of “gross statistical disparities” between the proportion of women hired and the proportion of women willing and able to do the work. Because the MBTA presented unrebutted statistical evidence to meet the benchmark of three standard deviations, the judge concluded that the commission was obligated to uphold the MBTA’s promotions of female police officers to the positions of sergeant and lieutenant. The plaintiffs appealed from the judgments affirming the minority and gender-based promotions, and the Appeals Court consolidated the parties’ actions. We then transferred the cases to this court on our own motion. The plaintiffs now contend that (1) the actions of the MBTA in requesting, and of the HRD in approving, special certifications based on race and gender, pursuant to Rule 10, for promotions to the positions of sergeant and lieutenant in the MBTA police department violated the plaintiffs’ rights to equal protection under the Fourteenth Amendment to the United States Constitution and arts. 1 and 12 of the Massachusetts Declaration of Rights; (2) there was no statutory authority for the HRD’s promulgation of Rule 10; and (3) the HRD and the MBTA failed to comply with the procedural requirements of Rule 10. We affirm. 3. Standard of review. General Laws c. 31, § 2 (b), requires the commission to determine, on the basis of the evidence before it, whether the appointing authority sustained its burden of proving, by a preponderance of the evidence, that there was reasonable justification for the action taken by the appointing authority. See Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 260 (2001); Cambridge v. Civil Serv. Comm’n, 43 Mass. App. Ct. 300, 303 (1997). Reasonable justification in this context means “done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.” Selectmen of Wakefield v. Judge of First Dist. Court of E. Middlesex, 262 Mass. 477, 482 (1928). See Massachusetts Ass’n of Minority Law Enforcement Officers v. Abban, supra. “In reviewing [the commission’s] action under G. L. c. 30A, § 14 (7), it was not open to the Superior Court judge to substitute [her] judgment for that of the commission.” Thomas v. Civil Serv. Comm’n, 48 Mass. App. Ct. 446, 451 (2000). The judge’s task was limited to determining whether the commission’s decision was supported by substantial evidence. See McIsaac v. Civil Serv. Comm’n, 38 Mass. App. Ct. 473, 476 (1995). Further, a judge is required to “give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” Iodice v. Architectural Access Bd., 424 Mass. 370, 375-376 (1997), quoting G. L. c. 30A, § 14 (7). “This standard of review is highly deferential to the agency on questions of fact and reasonable inferences drawn therefrom.” Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). Pursuant to G. L. c. 31, § 44, “we review the commission’s decision to determine if it violates any of the standards set forth in G. L. c. 30A, § 14 (7), and cases construing those standards.” Plymouth v. Civil Serv. Comm’n, 426 Mass. 1, 5 (1997). “[W]e are required to overturn commission decisions that are inconsistent with governing law.” Id. See Boston Police Superior Officers Fed’n v. Labor Relations Comm’n, 410 Mass. 890, 892 (1991) (considerable deference generally accorded agency decision, unless agency commits error of law). The party appealing from an administrative decision has the burden of proving its invalidity. See Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 587 (1997). 4. Constitutional claims. We generally analyze claims of constitutional violations last because they need not always be considered. See Manor v. Superintendent, Mass. Correctional Inst., Cedar Junction, 416 Mass. 820, 824 (1994). Here, however, because of the importance of the constitutional issues, which are the focus of the present appeal, we discuss them first. The plaintiffs contend that the actions of the MBTA, with the approval of the HRD, in promoting minority and female police officers through the use of special certifications under Rule 10 violated the plaintiffs’ rights to equal protection under the Fourteenth Amendment and under the cognate provisions of the Massachusetts Declaration of Rights. The thrust of the plaintiffs’ argument is that the MBTA failed to provide a “strong basis in evidence” that it had engaged in prior discriminatory practices with respect to the promotion of officers, the effects of which continue to affect its police department, such that the MBTA was justified in bypassing the plaintiffs in favor of women and minority candidates for the positions of sergeant and lieutenant. The plaintiffs assert that, at the time of the present dispute, the MBTA was in full compliance with the minority hiring practices for civil service jobs set forth in Castro v. Beecher, 334 F. Supp. 930, 944 (D. Mass. 1971), afPd in part and rev’d in part, 459 F.2d 725, 735-737 (1st Cir. 1972), as evidenced by the fact that 24.6% of all police officers employed by the MBTA police department were minorities. Further, the plaintiffs take issue with the testimony of Dr. Cupingood, who opined that the MBTA had “underutilized” women in the polic

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

Joanne Silvestris vs. Tantasqua Regional School District (and a companion case). Hampden. March 7, 2006. May 18, 2006. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Cordy, JJ. Anti-Discrimination Law, Employment, Sex. Employment, Discrimination. Limitations, Statute of. School and School Committee, Compensation of personnel. Practice, Civil, Findings by judge. An action brought by female teachers (plaintiffs) against a regional school district (defendant), claiming violations of the Massachusetts Equal Pay Act, G. L. c. 149, § 105A, was not barred by the applicable six-month limitations period contained in G. L. c. 151B, § 5, where the statute was tolled by operation of 804 Code Mass. Regs. § 1.10(2) (1999), when the plaintiffs entered into grievance proceedings with the defendant concerning the alleged discriminatory act within six months of the conduct complained of, and subsequently filed a complaint with the Massachusetts Commission Against Discrimination within six months of the outcome of those proceedings. [764-770] Female teachers (plaintiffs) were not entitled to prevail on their claims under the Massachusetts Equal Pay Act, G. L. c. 149, § 105A, against a regional school district (district), alleging that the plaintiffs’ starting salaries were set lower than those of male teachers because the plaintiffs were given less credit for prior work experience, where the evidence demonstrated that the superintendent of the district allocated credit for prior work experience without any well-defined and articulated criteria, and that such allocation did not have a disproportionately discriminatory impact on women. [770-777] Civil actions commenced in the Superior Court Department on June 28, 2000. The cases were heard by Judd J. Carhart, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Maria E. DeLuzio (Karen W. Peters with her) for Tantasqua Regional School District. Cornelius J. Moriarty, II, for for Joanne Silvestris & another. The following submitted briefs for amici curiae: Danielle Y. Vanderzanden & Douglass C. Lawrence for Associated Industries of Massachusetts. Thomas F. Reilly, Attorney General, Catherine C. Ziehl, & Zoe Butler-Stark, Assistant Attorneys General, for the Attorney General. Sara Smolik, Robert Mantell, & Elizabeth A. Rodgers for National Employment Lawyers Association, Massachusetts Chapter. Valerie A. Goncalves vs. Tantasqua Regional School District. Spina, J. Joanne Silvestris and Valerie Goncalves (collectively, plaintiffs) are teachers in the technical division of Tantasqua regional high school (Tantasqua). On July 14, 1999, each filed a discrimination charge against the Tantasqua regional school district (school district) with the Massachusetts Commission Against Discrimination (MCAD), claiming that the school district had violated the Massachusetts antidiscrimination statute, G. L. c. 15IB, and the Massachusetts Equal Pay Act (MEPA), G. L. c. 149, § 105A, by “failing to pay [them] salary and benefits equal to what male employees received from work of comparable character.” Eleven months later, Silvestris and Goncalves each filed a complaint against the school district in the Superior Court, alleging only that the school district’s conduct in paying them less than their male colleagues constituted wage discrimination in violation of MEPA. The thrust of the plaintiffs’ allegations was that, when they were hired by the superintendent of schools for the school district (superintendent), their starting salaries were set lower than the starting salaries of male teachers in the technical division because they were given less credit for their prior work experience. In its answer to each complaint, the school district asserted, as an affirmative defense, that the plaintiffs’ actions were barred by the applicable statute of limitations. In response to a motion of the school district, agreed to by the plaintiffs, the two actions were consolidated. The plaintiffs then amended their complaints to add claims alleging that the school district’s conduct in establishing their starting salaries had violated G. L. c. 15IB and the Massachusetts Equal Rights Act (equal rights act), G. L. c. 93, § 102. The school district again raised the statute of hmitations as an affirmative defense in its answers. The parties presented their evidence to the judge in a jury-waived trial. At the close of all the evidence, the plaintiffs’ claims under the equal rights act were dismissed pursuant to Mass. R. Civ. R 41 (b) (2), 365 Mass. 803 (1974). After the judge made findings of fact and conclusions of law pursuant to Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996), he entered judgment for the school district with respect to the plaintiffs’ claims under G. L. c. 151B, and stated that, after a further hearing on damages, judgment would enter for the plaintiffs on their MEPA claims. He concluded that the plaintiffs’ charges had been timely filed with the MCAD, and that the school district had engaged in wage discrimination in violation of G. L. c. 149, § 105A, by failing to give the plaintiffs credit for their prior work experience in a manner that was comparable to the way in which male teachers had been given credit for prior work experience. The judge subsequently awarded damages in the amount of $60,370 to Silvestris, damages in the amount of $115,811.44 to Goncalves, and attorney’s fees and costs in the amount of $42,893.08. The school district appealed from the judgment in favor of the plaintiffs on their MEPA claims, including the allowance of liquidated damages and the assessment of legal fees, and the cases were transferred from the Appeals Court on our own motion. The school district now contends that (1) the plaintiffs’ MEPA claims were barred by the statute of limitations; (2) the judge’s findings that the plaintiffs were paid less than their male colleagues for prior experience were clearly erroneous; (3) the judge erred in calculating the plaintiffs’ damages by awarding back pay to their dates of hire, rather than limiting back pay to the six months preceding the filing of their MCAD charges and by using the maximum salary level when calculating their back pay; and (4) the judge erred in calculating the amount of attorney’s fees by failing to take into consideration the fact that the school district prevailed on two of the plaintiffs’ three claims, and by fading to deduct allegedly vague, duplicative, and unreasonable fees. For the reasons that follow, we now vacate the judgment in favor of the plaintiffs on their wage discrimination claims and direct the entry of judgment for the school district on those claims. 1. Statutory framework. General Laws c. 149, § 105A, states, in pertinent part: “No employer shall discriminate in any way in the payment of wages as between the sexes, or pay any person in his employ salary or wage rates less than the rates paid to employees of the opposite sex for work of like or comparable character or work on like or comparable operations; provided, however, that variations in rates of pay shall not be prohibited when based upon a difference in seniority. Any employer who violates any provision of this section shall be liable to the employee or employees affected in the amount of their unpaid wages, and in an additional equal amount of liquidated damages.” The purpose of this statute is “to remedy pay inequities between male and female employees in comparable positions.” Jancey v. School Comm. of Everett, 421 Mass. 482, 497 (1995), S.C., 427 Mass. 603 (1998). 2. Factual background. Teacher salaries at Tantasqua are governed by the provisions of a collective bargaining agreement (agreement). The agreement states, in relevant part: “Initial salary levels of teachers new to the [school district] shall be set by the [superintendent in accordance with existing salary schedules.” The superintendent assigns each new teacher a level and year designation from the salary schedule set forth in an appendix to the agreement, which is based on a matrix reflecting educational achievement and years of experience. Level I covers one through three years of experience, Level II covers four through nine years of experience, and Level in covers ten and more years of experience. A teacher would progress through the levels in increments equal to the number of years taught. For example, the designation “Level I, Year 1” would signify that a teacher was in his or her first year of teaching, whereas the designation “Level II, Year 5” would signify that a teacher was in his or her fifth year of teaching. While an entry-level teacher could expect to reach the maximum salary category of “Level III” in ten years, a new teacher who began at a higher level (due to prior experience) could expect to reach the maximum salary category sooner, depending on the level and year designation assigned by the superintendent. In June, 1993, Silvestris applied for a newly created position at Tantasqua as an allied health teacher in the technical division. The job was designed to prepare students for careers in nursing. Silvestris had experience in this field prior to applying for the Tantasqua position. In 1972, she received an associate’s degree in nursing from Springfield Technical Community College, passed the State licensing examination, and became a registered nurse. For the next six years, Silvestris worked as a nurse at Holyoke Hospital and provided instruction to student nurses. In 1980, she took a position with the Westover Job Corps, where she taught students in the nursing assistants program and coordinated job-related training for students already under the direction of employers. In 1986, Silvestris began a new job at Holyoke Community College as a job developer, working with business leaders to establish employment opportunities for business, computer science, and secretarial science students. Silvestris remained at Holyoke Community College for two years. During this same time period, she attended Westfield State College, from which she received a bachelor of science degree in occupational education in 1991. Silvestris also obtained a vocational teaching certificate in the field of allied health. After interviewing for the position at Tantasqua in June, 1993, with the director of its technical division, Silvestris met with the superintendent, David Roach, to discuss her educational background, her prior work experience, and her salary. According to Silvestris, the superintendent said that she would receive credit for her teaching time at the Westover Job Corps because it involved the nursing assistants program and because the students there were generally the same age as high school students. However, she would not get credit for her time at Holyoke Community College because that was postsecondary experience. Further, according to Silvestris, the superintendent told her that the school district did not give credit for prior work experience “in the trade.” On July 19, 1993, the superintendent notified Silvestris that she would be hired for the 1993-1994 school year, that she would be placed in the “vocational certificate plus bachelor’s degree” education category, and that her starting salary would be established at “Level n, Year 6.” This meant that she was given credit for five years of experience. Silvestris accepted a contract with the school district. At the time she was hired, there were six male teachers and no female teachers in the technical division, and she had the highest starting salary of any teacher who had been hired for the technical division to that point in time. Silvestris’s ongoing job responsibilities were essentially the same as those of her male colleagues, although she was charged initially with the task of developing the allied health program for the freshmen and sophomore classes and securing its certification by the Department of Public Health and the Department of Education. In 1997, Silvestris reached “Level III” status, the highest classification, and she has remained in that salary category. In June, 1995, Goncalves applied for a position at Tantasqua as an allied health teacher in the technical division. Like Silvestris, she had experience in the field of nursing prior to applying for this position. In 1975, she received a bachelor of science degree in nursing from Fitchburg State College, passed the State licensing examination, and became a registered nurse. For the next four years, Goncalves worked as a nurse at Ludlow Hospital. In 1979, she took a position as a registered nurse at Mercy Hospital in Springfield where she provided direct patient care and supervised nursing students. In 1984, Goncalves began a new job working as a nurse in a private medical office. She left private practice in 1994 and joined the staff of the Hampden County house of correction, where her duties included providing patient care and performing health screenings for newly admitted inmates. In addition, Goncalves taught, for one year, at the Lower Pioneer Valley Educational Collaborative, where she prepared students for certification as nursing assistants and home health aides. Goncalves also obtained a vocational teaching certificate in the field of nursing. After interviewing for the position at Tantasqua with both the outgoing and incoming directors of its technical division, Goncalves met with the superintendent, Rosemary Joseph, to discuss her educational background, her prior work experience, and her salary. According to Goncalves, the superintendent initially told her that she would not be given credit for her prior work experience and, therefore, would be offered a salary commensurate with that of an entry-level teacher. Goncalves did not accept this offer. Subsequently, the outgoing technical director notified Goncalves that she would be hired for the 1995-1996 school year, that she would be placed in the “bachelor’s degree” education category, and that her starting salary would be established at “Level n, Year 4.” This meant that she was given credit for three years of experience. Goncalves accepted a contract with the school district. At the time Goncalves was hired, Silvestris was the only other female teacher in the technical division. Goncalves’s ongoing job responsibilities were essentially the same as those of her male colleagues, although she initially was charged with the task of developing the new allied health program for the junior and senior classes and securing its certification by the Department of Public Health and the Department of Education. In 2001, Goncalves reached “Level III” status, and she has remained in that salary category. In August, 1998, the school district hired Gary Manuel as a technology teacher at Tantasqua for the 1998-1999 school year. He had four years of prior teaching experience at a public middle school and eighteen years of work experience as a general contractor. Manuel was placed in the “master’s degree plus 30” education category, and his starting salary was established at “Level II, Year 8.” Around this time, the plaintiffs spoke with their male colleagues in the technical division, including Manuel, about whether their years of trade experience had been credited toward teaching experience, thereby enabling them to start at higher salaries. Based on these conversations, the plaintiffs came to believe that, when they were hired, they were started at lower salary levels than male colleagues with purportedly comparable backgrounds. Consequently, on September 22, 1998, the plaintiffs wrote a letter to the president of the Tantasqua Teachers’ Association (association) expressing their concern that they had been subjected to sexual discrimination when their initial pay grades were established. In particular, they asserted that when they were hired, there was no mention of their prior work experience counting toward teaching experience. After receiving the September 22, 1998, letter, the association scheduled a “Level Two” grievance hearing with the superintendent, the purpose of which was to hear the plaintiffs’ complaint and their proposed remedy. At this point, the plaintiffs did not know the starting salaries of the other teachers in the technical division, their levels of educational achievement, or their prior work experience. The grievance hearing was held in November, 1998, and was attended by the plaintiffs, a representative from the association, a representative from the Massachusetts Teachers Association, the superintendent, and the school district’s legal counsel. According to the superintendent, the plaintiffs declined to proceed with the hearing when they learned of the presence of the school district’s legal counsel. The association subsequently requested from the superintendent, on several occasions, the personnel records of all of the teachers in the school district. In May, 1999, the plaintiffs received a document listing the names of nine teachers in the technical division (including themselves), their degree statuses, their positions, their dates of hire, their level and year designations, and their starting salaries. Once they had this specific information, the plaintiffs commenced the present actions. 3. Statute of limitations. The school district first contends that the judge erred in failing to conclude that the plaintiffs’ MEPA claims were barred by the applicable statute of limitations. It asserts that the plaintiffs were required to file their complaints with the MCAD within six months of the alleged discriminatory act. See G. L. c. 15IB, § 5. However, the plaintiffs did not file their charges with the MCAD until July 14, 1999, which, according to the school district, was too late. The school district further contends that the judge erred in determining that the trigger for the statute of limitations was April, 1999, when the plaintiffs’ suspicions of discrimination were confirmed by documentary evidence as to the starting salaries of teachers in the technical division. Relying on Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001), the school district asserts that the trigger for the statute of limitations should have been the date that the plaintiffs were aware, or reasonably should have been aware, of the alleged discriminatory action. In the school district’s opinion, the plaintiffs knew of their claims in September, 1998, when they spoke to their male colleagues about their starting salaries and, then, when they wrote a letter to the association expressing their concerns. Thus, the school district argues that it was in September, 1998, that the statute of limitations began to run on the plaintiffs’ claims, and their charges should have been filed with the MCAD by March, 1999. The plaintiffs agree with the school district, as do we, that the governing statute of limitations was six months. When they filed their charges with the MCAD, the plaintiffs alleged that the school district had discriminated against them in violation of both G. L. c. 151B and G. L. c. 149, § 105A, by failing to pay them in a manner that was comparable to their male colleagues. Accordingly, the plaintiffs’ claims fell within the purview of the statute of limitations set forth in c. 151B. General Laws c. 151B, § 5, requires that a complaint alleging wrongful conduct be filed with the MCAD within six months after the alleged act of discrimination. See Cuddyer v. Stop & Shop Supermarket Co., supra at 531; School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 423 Mass. 7, 10 (1996); Jancey v. School Comm. of Everett, 421 Mass. 482, 497-498 (1995). The filing of a timely charge of discrimination with the MCAD is a prerequisite to the filing of such an action in the Superior Court. See Cuddyer v. Stop & Shop Supermarket Co., supra at 531 n.11; Andrews v. Arkwright Mut. Ins. Co., 423 Mass. 1021 (1996); Charland v. Muzi Motors, Inc., 417 Mass. 580, 583-584 (1

Michael Mammone vs. President and Fellows of Harvard College. Middlesex. January 4, 2006. May 12, 2006. Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Employment, Discrimination, Termination. Anti-Discrimination Law, Employment, Handicap, Termination of employment. Practice, Civil, Summary judgment. Federal Rehabilitation Act. Massachusetts Commission Against Discrimination. Words, “Qualified handicapped person.” This court concluded that a handicapped employee suffering from bipolar disorder, who was terminated for egregious workplace misconduct that was sufficiently inimical to the interests of his employer that it would have resulted in the termination of a nonhandicapped employee, was not a qualified handicapped person within the meaning of G. L. c. 151B, and therefore was not entitled to the protection of that statute, where the reasoning of Garrity v. United Airlines, Inc., 421 Mass. 55 (1995), which held that non-handicapped and handicapped employees who engage in egregious workplace misconduct are subject to the same standard, was not limited to cases involving misconduct resulting from drug or alcohol dependence, and where no legislative intent to create different protections against discrimination to persons based on the form of their disability could be discerned. [665-680] Greaney, J., dissenting. Civil action commenced in the Superior Court Department on March 26, 2003. The case was heard by Ralph D. Gants, J., on a motion for summary judgment, and entry of judgment dismissing the plaintiff s complaint was ordered by Raymond J. Brassard, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Betsy L. Ehrenberg {.Rebecca G. Pontikes with her) for the plaintiff. John P Coakley {Richard J. Riley with him) for the defendant. The following submitted briefs for amici curiae: Beverly I. Ward & John Lozada for Massachusetts Commission Against Discrimination. Susan Stefan for Center for Public Representation & others. Cordy, J. On March 7, 2003, Harvard University terminated the seven-year employment of Michael Mammone. Mammone, who suffers from bipolar disorder and claims that he was terminated due to his mental disability, brought suit against the President and Fellows of Harvard College (university) under the Commonwealth’s employment discrimination statute, G. L. c. 151B, § 4 (16), and Equal Rights Act, G. L. c. 93, § 103. Relying principally on this court’s decision in Garrity v. United Airlines, Inc., 421 Mass. 55 (1995) (Garrity), a judge in the Superior Court granted the university’s motion for summary judgment, concluding that, because of his misconduct in the workplace, Mammone could not reasonably expect to prove that he was a “qualified handicapped person,” a required showing for protection under both statutes. A “qualified handicapped person” is one “who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.” G. L. c. 151B, § 1 (16). In granting summary judgment, the judge found that the workplace misconduct that led to Mam-mane’s termination was egregious and sufficiently inimical to the interests of his employer that it would have resulted in the termination of a nonhandicapped employee. In these circumstances, the judge concluded, it would be impossible for Mammone to show that he was “capable of performing the essential functions” of his job. Mammone appealed, and we transferred the case to this court on our own motion. Mammone contends that the reasoning of Garrity — that a handicapped employee who engages in egregious workplace misconduct can be held to the same standard as a nonhandicapped employee who engages in similar misconduct — should be strictly limited to cases involving misconduct resulting from drug or alcohol dependence (as opposed to other handicaps). We conclude otherwise. Nothing in the language we used in Garrity suggests that our holding was meant to be so narrow, and we do not discern any legislative intent to create a distinction that would provide different protections against discrimination to persons suffering from one form of handicap (alcoholism) than the protections provided to persons suffering from other disabilities. Because we conclude that Garrity applies to all employment discrimination cases brought under G. L. c. 151B, § 4 (16), and G. L. c. 93, § 103, regardless of the type of handicap underlying the workplace misconduct, we affirm the grant of summary judgment. 1. Factual background. We recount the facts in their light most favorable to Mammone. See, e.g., Joslyn v. Chang, 445 Mass. 344, 345 (2005); Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass 117, 120 (1991), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). Mammone worked as a staff assistant at the university’s Peabody Museum (museum) from January, 1996, until his termination on March 7, 2003. He was usually stationed at the museum’s receptionist desk in the main lobby. Among other responsibilities, Mammone was required to direct individual visitors and tour groups to destinations inside the museum, as well as answer any questions such guests might have. In this position, Mammone had significant contact with the public. Mammone suffers from bipolar disorder. This mental disease manifests itself in occasional periods of mania (of which paranoia, agitation, hyperactivity, and irrationality are symptoms) and occasional periods of depression. Although Mammone was diagnosed with bipolar disorder in 1987, there is no evidence that, previous to the incidents at issue in this case, his mental disease ever negatively affected his ability to perform his workplace duties. Indeed, there is scant evidence that any of Mammone’s supervisors or coworkers knew of Mammone’s health problems before the events in question. During the course of his employment, Mammone received both annual salary increases and positive formal reviews from supervisors. In the middle of August, 2002, Mammone apparently experienced a manic episode. This episode led to workplace misconduct that eventually resulted in his termination. On August 18, Mammone established a website to decry what he believed were the low wages the university pays some of its employees. On August 20, while on duty at the museum, he began to distribute flyers summarizing and advertising his website. He also engaged coworkers in loud and animated conversations regarding his website and its content. He frequently used his personal laptop computer to access and update his website during his shift. According to his own testimony, Mammone would sing along with, clap to, and dance to protest songs from his website while stationed at the receptionist desk. On August 22, Mammone’s supervisor, Michele Piponidis, informed him, both orally and in writing, that he should not use his laptop computer at work. The next day Mammone sent an electronic mail message to Piponidis refusing to follow her instructions. He continued to bring his laptop computer to work, and to use it in the manner described above, until the date of his termination. Mammone’s manic episode appeared to reach its zenith between August 29 and September 4. On August 29, when he could not find the keys to his house, he began to believe that a conspiracy had formed against him. That night, Mammone stayed at a local YMCA. However, because he believed persons at the YMCA were also involved in the conspiracy, he telephoned the police the next morning. Although Mammone thereafter was brought to a hospital for overnight examination, he did not meet the criteria for involuntary civil commitment and was thus released at his own insistence on August 31. On September 3, subsequent to the Labor Day holiday, Mammone returned to work, his mania only worsening. That day, a staff member of the museum’s public programs office explained to Piponidis that Mammone’s “belligerent attitude is not only affecting [the museum’s] staff, but also visitors to the museum.” That night, Mammone was contacted by his union representative, who left him with the impression that Piponidis was seeking to meet with Mammone and a representative of the university’s office of labor and employee relations for the purpose of terminating his employment. On the morning of September 4, 2002, Mammone arrived at work in brightly colored, traditional East Indian dress and adorned with necklaces, bracelets, and rings. While at his desk, he telephoned the police, his mother, his sister, and an attorney with the American Civil Liberties Union (ACLU) and spoke to each person “very loudly.” When Piponidis approached him and asked him to join her in a private conference room, Mammone refused. He dismissively flicked his hand at her, saying, “Psst, get away from me, you’re evil.” Piponidis left the lobby and returned with both Mary Reynolds, the museum’s human resources administrator, and two university police officers. The officers informed Mammone that Piponidis and Reynolds wanted him to leave the museum and attend a meeting at the university’s office of labor and employee relations the following day. When Mammone refused the officers’ request, they explained that if he did not leave after five warnings, he would be arrested for trespassing. After the officers’ second warning, Mammone left his desk and sat on the floor in the middle of the lobby. After another three warnings, the officers handcuffed Mammone and placed him under arrest. Because he refused to move, the officers were forced to drag Mammone from the museum. During his arrest, he was told by the police not to return “here.” Mammone was charged with trespassing and disorderly conduct and arraigned in the Cambridge Division of the District Court Department. Immediately after his arraignment, Mammone walked back to the museum area to assure his friend, who had witnessed the incident, that he was unharmed. Mammone waited outside the museum for the end of his friend’s shift. Then, before the end of the workday, Mammone entered the lobby of a second university museum, the Museum of Natural History, which was adjacent to and internally connected with the museum. Mammone did not believe that the arresting officer’s admonition not to return “here” included any location other than the museum itself. Using a telephone in the lobby of the Museum of Natural History, Mammone telephoned the ACLU. During this conversation, Piponidis saw Mammone, approached him, and instructed him to leave the building. Mammone ended his telephone call, left the telephone booth, pointed at Piponidis (and Reynolds, who had joined Piponidis in the lobby close to the telephone booth), and stated, “You fucking whack bitches are going down.” Mammone then walked past the women and left the building. Reynolds followed Mammone and hailed a nearby university police officer, who told Mammone to leave the university’s campus. On that same day, after Mammone’s arrest, but before the confrontation in the Museum of Natural History, Piponidis had written and sent to Mammone a “final written warning,” see note 15, supra, summarizing his problematic workplace misconduct and indicating that this misconduct had “become progressively more and more disruptive” and was “completely unacceptable.” The next day, September 5, Piponidis sent a superseding letter to Mammone, informing him that his return to the museum after his arrest, his subsequent conduct toward Piponidis and Reynolds, and the conduct described in the previous letter was grounds for immediate discharge and that this discharge was “effective at the end of business . . . September 4, 2002.” At some point over the next few days, Mammone’s union representative convinced officials at the university not to “process [Mammone’s] termination immediately so that [he] could apply for short-term disability [benefits].”, Piponidis then wrote a third letter to Mammone which superseded the September 5 letter, confirming that the university would “delay the effective date of [his] termination ... to allow [him] an opportunity to apply for Short-term Disability . . . benefits.” The letter explained that Mammone’s employment would terminate “effective the day the . . . benefits end.” Mammone first applied for disability benefits on September 9, 2002. Based on a September 12 examination, Dr. Irving Allen, a psychiatrist at the university’s health services, informed the university’s disability claims unit that Mammone could not work due to a bipolar disorder and recurrent depression, and that this incapacity would likely last between thirty and ninety days. Mammone’s application was granted on September 23. On October 22, Dr. Allen recommended another sixty days of disability benefits, explaining that Mammone’s “irritability . . . and agitation persist.” On December 12, Dr. Allen requested that Mammone be given an additional sixty days of benefits, noting that, while Mammone was “making significant improvement,” he was “not stable enough to return to work.” A similar request was successfully made by Dr. Allen on January 30, 2003. In clinician notes dated February 14, 2003, Dr. Allen reported marked improvement, but added that Mammone was “feeling depressed” and that “[t]here are still tinges of mania . . . .” On March 5, 2003, Mammone’s disability benefits expired. On March 7, 2003, his termination became effective. Although a jury could have found that Mammone was well enough to return to work on that date, there was no evidence that Dr. Allen or anyone else ever informed the university that this was the case. On December 9, 2002, approximately three months after Mammone began receiving short-term disability benefits, an attorney informed the university in writing that she had been retained to represent Mammone in a discrimination action against the university. Her letter noted that the university had offered Mammone “[n]o reasonable accommodation, such as time off in which to get better . . . .” 2. Discussion, a. Standard of review. A moving party will prevail on summary judgment, where the party opposing the motion bears the burden of proof at trial, only if the moving party demonstrates, by reference to the material described in mie 56 (c), unmet by countervailing materials, that the nonmoving party has no reasonable expectation of proving an essential element of the case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). It is sufficient that the moving party demonstrate that “proof of [a required] element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). b. The Garrity decision. In Garrity, a terminated United Airlines customer service representative, Mary Garrity, brought a discrimination claim against her former employer under G. L. c. 15IB. We affirmed the grant of summary judgment in favor of the defendant airline because we concluded that Garrity could not reasonably expect to prove that she was a qualified handicapped person, as defined in G. L. c. 151B, § 1 (16). Id. at 63. Because establishing that she was “qualified for the position from which she was fired” is a requirement of a prima facie case under G. L. c. 151B, Garrity’s inability to do so was fatal to her claim. See id. at 60, 63. Garrity suffered from alcoholism. As part of her employment, she was asked to distribute “chits” to passengers, which could be exchanged for free drinks during flight. When some passengers declined the chits, Garrity, irresistibly compelled by her disease, kept them for herself. After her shift, she boarded a United Airlines flight, paying a significantly reduced employee fare. On the flight, Garrity exchanged the chits for free drinks, “became intoxicated and began drawing attention to herself and to the fact that she was a United Airlines employee.” Id. at 57. Garrity “demanded excessive service and attention” and complained to and in front of passengers “about how United ‘screws us.’ ” Id. United Airlines terminated Garrity for “violating company policies by accepting ‘drink chits’ from customers, using those chits while flying on a United pass . . . and for becoming intoxicated” while on the flight. Id. at 59. In affirming summary judgment, we reasoned that a disabled individual cannot be a qualified handicapped person “if he commits misconduct which would disqualify an individual who did not fall under the protection of the statute” (i.e., a non-handicapped employee). See id. at 62-63, quoting Wilber v. Brady, 780 F. Supp. 837, 840 (D.D.C. 1992). We noted that “[n]othing in c. 151B suggests a legislative intent that a lower standard of qualifying conduct should apply to handicapped employees than applies to those without handicap.” Garrity, supra at 63. Garrity confirmed the commonsense notion that an employee is not “qualified” for a particular job — i.e., cannot perform the essential functions of that job, even with reasonable accommodation — if he or she takes part in “egregious misconduct” in the workplace. See id. at 62-63, quoting Little v. Federal Bur. of Investigation, 1 F.3d 255, 258-259 (4th Cir. 1993) (“ ‘[A]n employer . . . must be permitted to terminate its employee on account of egregious misconduct, irrespective of whether the employee is handicapped.’ ... [A] handicapped employee who engages in conduct significantly inimical to the interests of his employer and in violation of the employer’s rules ... is not a ‘qualified handicapped person’ within the meaning of G. L. c. 151B”). c. Applicability of Garrity to the present case. Mammone’s workplace misconduct, which took place over the course of two weeks, was at least as egregious and inimical to his employer’s interest as was the misconduct for which Garrity was terminated. Mammone intentionally disregarded his supervisor’s instructions regarding the use of his personal computer during work. Instead of acting as the professional face of the museum to visitors, he created numerous unprofessional disturbances for the public to witness at the exact location where they would decide whether to purchase admission to the museum. He exhorted his coworkers to do the same. During his shift, Mammone distributed flyers summarizing and advertising a website critical of the university and his supervisors. Certainly this misconduct was as inimical to his employer’s interests as were Garrity’s complaints to customers and employees about United Airlines, her demands for excessive service and attention from flight attendants, and her drawing of attention to herself as an unprofessional United Airlines employee. Mammone’s misconduct on September 4, however, was by far the most egregious of his actions. First, he abusively dismissed his supervisor’s request to meet with her to discuss his behavior. Then he refused a request made by his supervisor and the museum human resources administrator to leave the museum and attend a meeting at the university’s office of labor and employee relations the next day. Finally, he refused five lawful police orders to leave the premises, chose to become a trespasser, and forced the police to create a spectacle by physically carrying him out of the museum. Later that day, on his return to the museum area, Mammone used objectively abusive, threatening, and sexually derogatory language to his supervisor and the human resources administrator, violating all reasonable standards expected at a place of business and public accommodation. Cf. Hamilton v. Southwestern Bell Tel. Co., 136 F.3d 1047, 1052 (5th Cir. 1998) (Americans with Disabilities Act [ADA] does not protect employee’s “emotional or violent outbursts,” such as “get that f_ing finger out of my face” or “[y]ou f_ing bitch!,” even if such misconduct attributable to employee’s posttraumatic stress disorder); Maes v. Henderson, 33 F. Supp. 2d 1281, 1283, 1286, 1289 (D. Nev. 1999) (where “Postal Service dem

Richard Gasior vs. Massachusetts General Hospital. Suffolk. January 3, 2006. May 11, 2006. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, S osman, & Cordy, JJ. Employment, Discrimination. Anti-Discrimination Law, Handicap, Termination of employment, Damages. Damages, Under anti-discrimination law, Punitive. Statute, Construction. Practice, Civil, Survival of action. Survival of Action. This court concluded, pursuant to the Massachusetts survival statute, G. L. c. 228, § 1, that a claim that an employee was wrongfully dismissed in violation of G. L. c. 151B, § 4 (16), survives the employee’s death [648-653], as do all of the remedies available to the employee under G. L. c. 151B, including punitive damages [653-656], Civil action commenced in the Superior Court Department on June 19, 2001. A motion to dismiss was heard by Bonnie H. MacLeod, J., and a question of law was reported by her. The Supreme Judicial Court granted an application for direct appellate review. Shannon Liss-Riordan for the plaintiff. Frank E. Reardon {John R Puleo with him) for the defendant. The following submitted briefs for amici curiae: Jonathan J. Margolis & Robert S. Mantell for Massachusetts Employment Lawyers Association. Beverly I. Ward for Massachusetts Commission Against Discrimination. Marshall, C.J. We consider in this case whether an employee’s claim of unlawful employment termination in violation of G. L. c. 15IB, § 4 (16), survives the employee’s death and, if so, what damages may be awarded. The employee, Richard Gasior, filed a complaint against his employer, Massachusetts General Hospital (MGH), claiming it had violated G. L. c. 15IB, § 4, and the Massachusetts Equal Rights Act (MERA), G. L. c. 93, § 103, by refusing to permit him to return to work as a plumber after an authorized medical leave of absence. While the case was pending, Gasior died for reasons unrelated to his authorized medical leave. MGH thereupon moved to dismiss the action on the grounds that Gasior’s discrimination claim did not survive his death, and that his MERA claim was barred by the exclusivity provision of G. L. c. 151B. A judge in the Superior Court denied MGH’s motion to dismiss the discrimination claim insofar as Gasior claimed compensatory damages, but allowed its motion as to that claim insofar as he claimed punitive damages. She also allowed MGH’s motion as to Gasi- or’s MERA claim. On a joint motion of the parties, the judge then reserved and reported to the Appeals Court pursuant to Mass. R. Civ. R 64, as amended, 423 Mass. 1410 (1996), so much of her ruling as concerned Gasior’s discrimination claim: “Does an employment discrimination claim under G. L. c. 151B, § 4, survive the plaintiff’s death pursuant to G. L. c. 228, § 1, insofar as the plaintiff claims compensatory but not punitive damages?” We granted Gasior’s application for direct appellate review. We address the narrow question presented by the circumstances of this case, not the broader question reported by the judge. See McStowe v. Bornstein, 377 Mass. 804, 805 n.2 (1979) (“Reported questions need not be answered . . . except to the extent that it is necessary to do so in resolving the basic issue”). We conclude that a claim that an employee was wrongfully dismissed in violation of G. L. c. 151B, § 4 (16), survives the employee’s death. We therefore affirm so much of the order as denied MGH’s motion to dismiss. We further conclude that all of the remedies available to the employee under G. L. c. 15 IB survive his death. We therefore vacate so much of the judge’s decision that allowed MGH’s motion to dismiss as to punitive damages. 1. Background. The issue for our consideration is the correctness of the interlocutory order entered in the Superior Court on MGH’s motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). See McStowe v. Bornstein, supra. Although MGH challenges some of the factual allegations in Gasior’s complaint, in particular the circumstances of Gasior’s efforts to return to work as a plumber, we review the question under the settled standard of review for a motion to dismiss pursuant to rule 12 (b) (6): “We take as true ‘ “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor ...” Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). In evaluating the allowance of a motion to dismiss, we are guided by 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.” Nader v. Citron, 372 Mass. 96, 98 (1977) ....’” Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 (2004). Under the “generous principles” that govern our review, Connerty v. Metropolitan Dist. Comm’n, 398 Mass. 140, 143 (1986), we summarize the facts alleged in the unverified complaint. Gasior worked as a plumber for MGH for nineteen years, beginning in 1981. In February, 2000, he began an authorized medical leave of absence because of a heart condition. A physician approved Gasior’s return to work in August, 2000. Gasior claims that from that time forward he was able to perform the essential functions of his job as a plumber “with or without reasonable accommodation,” and that despite repeated attempts to return to his job as a plumber, MGH refused to permit him to return to work at that time, notwithstanding that MGH had posted several openings for plumbers. In June, 2001, after exhausting his administrative remedies by filing a claim with the Massachusetts Commission Against Discrimination, Gasior filed a complaint in the Superior Court. He requested relief consisting of reinstatement, back pay, front pay, lost benefits, emotional distress damages, punitive damages, and attorney’s fees and costs, and any other relief to which he might be entitled. At some point while his action was pending, Gasior became terminally ill. He filed motions to advance his trial date, but died in September, 2003, one week before the trial was scheduled to begin. 2. Survival of the discrimination claim. We first discuss the survival of Gasior’s G. L. c. 151B claim under the Massachusetts survival statute, G. L. c. 228, § l. We then turn to the issue of the relief that may be available. The Massachusetts survival statute, G. L. c. 228, § 1, provides in pertinent part that, “[i]n addition to the actions which survive by the common law,” certain enumerated claims, including certain specifically identified tort claims, survive the death of a party. A claim of employment discrimination in violation of G. L. c. 151B, § 4 (16), is not a claim among those specifically enumerated in the statute. To remain viable after Gasior’s death, therefore, the claim must fall within one of the enumerated tort claims or be deemed an action that survives “by the common law.” G. L. c. 228, § 1. Generally speaking, at common law contract claims, including those based on an implied contract, survive the death of a party. See Rendek v. Sheriff of Bristol County, 440 Mass. 1017 (2003); McStowe v. Bornstein, supra at 806-807, and cases cited. We have not previously decided whether a claim of discrimination pursuant to G. L. c. 151B survives a plaintiff’s death. In other circumstances, in assessing whether a claim survives a party’s death, we have observed that “[w]hat constitutes a contract claim has not been rigidly defined.” Rendek v. Sheriff of Bristol County, supra at 1017. We have also recognized the close relationship between some employment discrimination claims and actions for what we have characterized as breaches of contract. See id. at 1017-1018 (claim for unlawful termination in violation of G. L. c. 35, § 51, is “contractual, or quasi contractual,” and therefore survives plaintiff’s death, because statute “control[s] a critical term of the employment — permissible grounds for termination”). See also Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 582 (2004) (Sosman, J., concurring) (“some discrimination claims are ‘rooted’ in theories of contract [in essence reading the prohibitions of G. L. c. 151B into the parties’ employment contract and then allowing suit for ‘breach’ of that contract]”). In this case, we are presented with a specific question of alleged discrimination: does the claim of a plaintiff who has an established employment relationship with the defendant and who alleges that he was wrongfully dismissed or not reinstated by his employer, survive the plaintiff’s death? The answer turns in part on the nature of the employment relationship. Gasior claimed that he had a “good work record” and received “positive performance evaluations” while working at MGH, but his complaint is otherwise silent as to any other aspect of his employment relationship with MGH. Gasior has not, for example, alleged the existence of an employment contract for a definite period, or that he was a member of a union protected by any collective bargaining agreement that might govern his termination. We therefore assume, without deciding, that he was an at-will employee at MGH. See Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988). See also S.C. Moriearty, J.F. Adkins, L.F. Rubin, & D.J. Jackson, Employment Law § 2.3, at 94 (2d ed. 2003) (“Presumptively the employment relationship is at-will, meaning that either party may terminate the relationship at any time, with or without cause”). Although we have not characterized every at-will employment relationship as itself constituting a form of contract — such a relationship could, for example, be viewed as a contract of successive performances of indefinite duration — we have had no difficulty in concluding that an at-will employment relationship contains implied terms, the breach of which is actionable. See, e.g., DeRose v. Putnam Mgt. Co., 398 Mass. 205, 210 (1986) (permitting at-will employee to recover damages on a breach of contract theory for discharge in violation of public policy); Fortune v. National Cash Register Co., 373 Mass. 96, 101 (1977) (written contract for at-will employment “contains an implied covenant of good faith and fair dealing, and a termination not made in good faith constitutes a breach of the contract”). See also Jackson v. Action for Boston Community Dev., Inc., supra at 9 (recognizing that prohibition against discrimination in employment contained in G. L. c. 151B, § 4, restricts employer’s ability to discharge at-will employee). Here, the relevant provisions of G. L. c. 15 IB controlled a term of Gasior’s employment at MGH: that term prohibited MGH from dismissing or refusing to reinstate him because of invidious, discrimination. See G. L. c. 151B, § 4 (16). Because Gasior has alleged that MGH did not permit him to return to work after his medical leave in violation of this implied contractual term of his employment relationship with MGH, his claim is among those that survive “by the common law.” See Rendek v. Sheriff of Bristol County, supra. See also United States v. Burke, 504 U.S. 229, 247-248 (1992) (Sauter, J., concurring) (Tide VB’s statutory ban on employment discrimination “easily envisioned as a contractual term implied by law”); Hishon v. King & Spalding, 467 U.S. 69, 74 (1984) (“Once a contractual relationship of employment is established, the provisions of Title VII attach and govern certain aspects of that relationship”). Our holding that a claim by an employee that he suffered invidious discrimination when he was dismissed or not reinstated by his employer survives his death is consistent with the decisional law of the majority of courts that have considered analogous questions. See, e.g., Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630 (1984) (former employee’s claim that employer refused to permit him to return to work following a disabling accident, in violation of § 504 of the Rehabilitation Act of 1973, survives his death); Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 n.3 (4th Cir. 1985) (former employee’s claim that he had been terminated in violation of Age Discrimination in Employment Act [ADEA] survives his death as matter of Federal law); Hawes v. Johnson & Johnson, 940 F. Supp. 697, 704 (D.N.J. 1996) (former employee’s claim of constructive discharge in violation of the ADEA and the New Jersey law against discrimination survives his death as a matter of Federal common law and under State survival statute, respectively); Duart v. FMC Wyo. Corp., 859 F. Supp. 1447, 1451 n.2 (D. Wyo. 1994) (former employee’s claim that he had been terminated from employment in violation of the ADEA survives his death); Shkolnik v. Combustion Eng’g, Inc., 856 F. Supp. 82, 88 (D. Conn. 1994) (former employee’s claim that he had been terminated from employment in violation of the ADEA survives his death); Anspach v. Tomkins Indus., Inc., 817 F. Supp. 1499, 1510 (D. Kan. 1993) (former employee’s Title VII claim survives his death under State survival statute); Small v. American Tel. & Tel. Co., 759 F. Supp. 1427, 1430 (W.D. Mo. 1991) (former employee’s claim that he was discriminated against and ultimately terminated because of his race, in violation of Title VII and 42 U.S.C. § 1981, survives his death under State survival statute); Oliver v. United States Army, 758 F. Supp. 484, 485 (E.D. Ark. 1991) (former employee’s claim that his employer failed to accommodate his disability in violation of the Rehabilitation Act, leading him to terminate his employment, survives his death pursuant to State survival statute); Worsowicz v. Nashua Corp., 612 F. Supp. 310, 312 (D.N.H. 1985) (former employee’s claim that he had been terminated from employment in violation of the ADEA survives his death); Pedreyra v. Cornell Prescription Pharmacies, Inc., 465 F. Supp. 936, 939 (D. Colo. 1979) (former employee’s claim that she was terminated in violation of Title VII survives her death pursuant to State survival statute). We conclude that Gasior’s claim that MGH violated G. L. c. 151B, § 4 (16), by dismissing or refusing to reinstate him following an authorized medical leave, survives his death. We turn next to the issue of damages. 3. Survival of punitive damages. Relying on Harrison v. Loyal Protective Life Ins. Co., 379 Mass. 212, 216-217 (1979), the judge concluded that Gasior could recover compensatory damages, but that there was “no doubt” that Gasior’s claim for punitive damages abated because it is “punitive rather than compensatory in nature.” We recognize that the purpose of punitive damages has been described as punishment and deterrence, rather than compensation of an injured party, see, e.g., Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-267 (1981), citing Restatement (Second) of Torts § 908 (1979), and — in the context of G. L. c. 151B — as not merely vindicating personal rights, but comprising part of a scheme to vindicate a “broader public interest in eradicating systemic discrimination.” Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 563 (2004). Consistent with the broad remedial purposes of G. L. c. 151B, which both mandates that the provision concerning remedies available to the victims of discrimination be construed liberally for the accomplishment of the statute’s purposes, G. L. c. 151B, § 9, and acts as a deterrent to those employers who engage in invidious discrimination, we conclude that to the extent a deceased plaintiffs discrimination claim survives him, he should have available to him all of the remedies provided under the antidiscrimination statute. This includes punitive damages. See G. L. c. 15IB, § 9 (petitioner may be awarded “actual and punitive damages”); Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 611, 624 (2005) (punitive damages may be awarded for employment discrimination in violation of G. L. c. 151B). We see no reason to distinguish as to statutory remedies between a plaintiff who has suffered the indignities of unlawful discrimination (if proved) and who survives, and a similarly aggrieved plaintiff who is deceased, simply because the exigencies of court scheduling may delay the granting of relief until after the plaintiffs death. As Gasior noted, individuals claiming unlawful discrimination must first exhaust their administrative remedies, see G. L. c. 151B, § 9, and their cases sometimes take years to reach resolution. It would cause grave injustices to those plaintiffs who have embarked on the often burdensome and expensive journey to vindicate their rights if the full scope of their damages were to evaporate simply because of the fortuity of death. Our conclusion is consistent with the broad remedial purposes underlying this Commonwealth’s antidiscrimination statutes, which we have repeatedly emphasized in construing G. L. c. 151B. See, e.g., Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 390 (2005) (statutory limitations on tort liability of charitable entities do not “shield charitable institutions from the full effects of liability under G. L. c. 151B”); Bain v. Springfield, 424 Mass. 758, 763 (1997) (Commonwealth and its political subdivisions are liable for damages for violations of G. L. c. 151B); Conway v. Electro Switch Corp., 402 Mass. 385, 387 (1988) (damage award for lost future earnings and benefits, or “front pay,” available pursuant to G. L. c. 151B, § 9). The Legislature has provided for a broad range of remedies, including the availability of punitive damages, to those who suffer invidious discrimination. See G. L. c. 151B, § 9. In determining whether Gasior’s estate should be deprived of damages to which he himself would have been entitled had he survived, “we need not look beyond the words of the statute where the language is plain and unambiguous.” State Bd. of Retirement v. Boston Retirement Bd., 391 Mass. 92, 94 (1984). Our decision that Gasior may have access to all of the remedies available under G. L. c. 15IB is also consistent with the Legislature’s determination that the “remedies provision contained in § 9 expressly states that it should be ‘construed liberally for the accomplishment of’ the purposes of G. L. c. 151B and that ‘any law inconsistent with any provision [of G. L. c. 15 IB] shall not apply.’ ” Ayash v. Dana-Farber Cancer Inst., supra at 391-392, quoting G. L. c. 151B, § 9. 4. Conclusion. A claim that an employee was wrongfully dismissed in violation of G. L. c. 151B, § 4 (16), survives the employee’s death, as do all of the remedies available to him under G. L. c. 151B. We affirm so much of the judge’s order as denied MGH’s motion to dismiss, and vacate so much of her order as allowed MGH’s motion as to punitive damages. The case is remanded to the Superior Court for entry of an order consistent with this opinion. So ordered. following Richard Gasior’s death, his attorney moved to substitute Gasi- or’s estate as the plaintiff. The motion is pending resolution of this appeal. For ease of reference we shall refer to the plaintiff as Gasior. As noted above, Gasior also alleged that MGH had violated his rights under the Massachusetts Equal Rights Act (MERA), G. L. c. 93, § 103. The judge allowed MGH’s motion to dismiss as to that claim, but did not report that aspect of her order to the Appeals Court. We therefore do not consider it. We acknowledge the amicus briefs filed by the Massachusetts Commission Against Discrimination and the Massachusetts Employment Lawyers Association. General Laws c. 228, § 1, provides: “In addition to the actions which survive by the common law, the following shall survive: — “(1) Actions under chapter two hundred and forty-seven; “(2) Actions of tort (a) for assault, battery, imprisonment or other damage to the person; (b) for consequential damages arising out of injury to the person and consisting of expenses incurred by a husband, wife, parent or guardian for medical, nursing, hospital or surgical services in connection with or on account of such injury;