Failure to Accommodate Cases

Massachusetts Bay Transportation Authority vs. Boston Carmen’s Union, Local 589, Amalgamated Transit Union (and a companion case). Suffolk. March 3, 2009. June 4, 2009. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Anti-Discrimination Law, Employment, Handicap, Seniority. Contract, Collective bargaining contract. Public Employment, Collective bargaining. Employment, Discrimination. Arbitration, Arbitrable question, Collective bargaining, Judicial review. Massachusetts Bay Transportation Authority. Public Policy. An arbitrator did not exceed her powers under G. L. c. 150C, § 11 (a) (3), by hearing a grievance filed by a union against the Massachusetts Bay Transportation Authority (MBTA), in which the union alleged a violation of a collective bargaining agreement (agreement) arising from the MBTA’s grant of retroactive seniority and the corresponding hourly wage to a handicapped employee as part of a settlement agreement in a failure-to-hire employment discrimination matter, as matters such as seniority and wages were among those that both the Legislature and the agreement had identified as proper subjects of collective bargaining, and did not fall within the MBTA’s inherent management rights [23-25]; however, the well-defined and dominant public policy against handicap discrimination, as set forth in G. L. c. 151B, required that the arbitrator’s award in favor of the union be vacated, as the most meaningful remedy for such discrimination in hiring was retroactive seniority, even in the absence of an adjudication of discrimination, where, as here, the MBTA satisfied its burden of showing a substantial and reliable basis to believe that illegal discrimination had occurred, a showing that the union failed to rebut [25-30]. An arbitrator correctly concluded that a dispute arising from the actions of the Massachusetts Bay Transportation Authority (MBTA) in unilaterally eliminating a “spare inspector” list (from which certain bus drivers were given opportunities to work temporarily in a higher job classification based on seniority) and creating a new list without union consent was arbitrable [34-35]; further, a Superior Court judge correctly confirmed the arbitrator’s award, which ruled that the MBTA had violated the terms of the union’s collective bargaining agreement, where, although there was no suggestion of bad faith on the part of the MBTA, there was no factual basis to support the MBTA’s concern that the list might be based on a discriminatory practice [35-36], Civil actions commenced in the Superior Court Department on February 27 and July 31, 2006. After consolidation, the cases were heard by Diane M. Kott-myer, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Mary Jo Harris (Philip G. Boyle with her) for the plaintiff. Douglas Taylor for the defendant. Spina, J. The Massachusetts Bay Transportation Authority (MBTA) appeals from judgments of the Superior Court confirming two separate awards by the same arbitrator in cases that were consolidated by virtue of a common issue, namely, whether an arbitrator’s decision must be vacated on the ground that it violates public policy, where the arbitrator found against an employer who acted to remediate its own perceived illegal discrimination, but contrary to the terms of a collective bargaining agreement. In the first case (Wick), the MBTA settled a handicap discrimination case (refusal to hire) without consent of the Boston Carmen’s Union, Local 589, Amalgamated Transit Union (union), after a finding of probable cause by an investigating commissioner of the Massachusetts Commission Against Discrimination (MCAD). The settlement included a payment to William Wick, the claimant, in the amount of $16,000, a grant to Wick of seniority under the collective bargaining agreement that was retroactive to the date he was first offered the job, and the grant of a rate of pay under the collective bargaining agreement at the top of the progressive pay scale based on months of service. The arbitrator concluded that the grant of retroactive seniority and the corresponding hourly wage violated the collective bargaining agreement, and because there had been no finding of discrimination by the MCAD, the settlement was a “private” agreement that must yield to the collective bargaining agreement. She found against the MBTA, and the Superior Court judge confirmed the decision of the arbitrator. We conclude that a presumption of legitimacy arose from the settlement agreement that the union did not rebut by showing that the settlement was an attempt to subvert the collective bargaining agreement, and that because retroactive seniority is a presumptive remedy for discrimination in hiring, public policy requires the arbitrator’s award be vacated. In the second case, the MBTA, concerned that its “spare inspector” list (from which certain bus operators were given opportunities to work temporarily in a higher job classification based on seniority) might be based on a discriminatory practice, unilaterally eliminated the list and created a new list without union consent. Although there was no suggestion of bad faith, the arbitrator found there was no factual basis to support the MBTA’s concern of discrimination, and concluded the MBTA violated the collective bargaining agreement. We affirm the judgment in that case. I The Case of William Wick The facts are not in dispute. In 1999, William Wick applied to the MBTA for a position as rail repairer. On December 18, 1999, he was offered a position on condition that he pass a physical examination. Wick wears hearing aids, but the test was conducted without allowing him to use his hearing aids. On February 19, 2000, the MBTA notified Wick that he failed the hearing test and it withdrew the offer of employment. Wick filed a complaint with the MCAD in which he alleged discrimination (refusal to hire) based on his handicap, in violation of G. L. c. 151B, § 4 (16). In particular he alleged that he should have been accommodated by the reasonable measure of allowing him to wear his hearing aids at work. On January 13, 2001, an investigating commissioner with the MCAD found probable cause and scheduled a settlement conference. The matter did not settle and the case proceeded. On June 24, 2004, the MBTA and Wick entered into a settlement agreement whereby, in exchange for a general release, the MBTA would employ Wick as a rail repairer at the top hourly rate with seniority retroactive to December 18, 1999, the date of the MBTA’s initial offer of employment. The MBTA also agreed to pay him $16,000. The MBTA made no admission of discrimination. Wick commenced work as a rail repairer on July 1, 2004. The union had not been informed of the settlement negotiations and did not approve the settlement. The union filed a grievance on behalf of an employee who lost a bid for a posted vacancy on the day shift to Wick, asserting that the employee had greater seniority than Wick. The union claimed that in the absence of a finding of discrimination or its consent, the MBTA did not have the right unilaterally to set wages and seniority of new employees, and Wick in particular, contrary to the terms of the collective bargaining agreement. Section 516 of the collective bargaining agreement provides that seniority ratings would be established when an employee first enters a classification, e.g., rail repairer, and that employees newly entering a classification would start at the bottom of the list. Section 601 of the collective bargaining agreement establishes a progressive pay scale based on months of actual service. The MBTA rejected the grievance and the union proceeded to arbitration under the terms of the collective bargaining agreement. The union sought an order prohibiting the MBTA generally from negotiating with any individual or group to establish terms and conditions of employment without the consent of the union, even in the context of a civil rights complaint against the MBTA. The union further sought readjustment of Wick’s seniority to August, 2004, when he actually entered the department and was classified as a rail repairer, so that he would not have seniority rights greater than employees who actually worked longer than Wick. It also sought retroactive pay adjustments for fellow bargaining unit members subject to wage progression under the collective bargaining agreement between August, 2004, and August, 2006, amounting to the difference between their actual pay and the pay they would have received if their hourly rate had been at the top rate for rail repairers. The MBTA argued before the arbitrator that the grievance is not arbitrable because the MBTA has unfettered discretion under G. L. c. 161 A, § 25, to set terms and conditions of compensation and seniority for new employees. Alternatively, the MBTA argued that it did not violate the collective bargaining agreement by hiring Wick under the terms of the settlement agreement because, under § 102 of the agreement, the MBTA has “the exclusive right ... to manage its business in the light of experience, good business judgment and changing conditions.” The MBTA asserted it thus had the right to end the litigation and settle with Wick in a way that minimized its losses and made him “whole” for an alleged discriminatory failure to hire him in December, 1999, namely, give him the seniority status and the rate of pay that he would have attained had he been hired at that time. The MBTA further argued that public policy against discrimination, set forth in G. L. c. 15IB, required this result. The arbitrator concluded that the case was arbitrable because the dispute involved issues of seniority and wages, which are not management prerogatives. She also rejected the MBTA’s public policy argument, ruling that absent an adjudication of discrimination the MBTA was obligated to set Wick’s compensation and seniority conformably with the terms of the collective bargaining agreement as of the date he actually commenced work. She reasoned that because Wick’s discrimination complaint was settled by private agreement he must be regarded as having no greater rights than any other individuals that the MBTA might have hired; and that when the MBTA settled Wick’s case it could have compensated Wick for its mistake in ways other than granting him rights under the collective bargaining agreement to which he was not entitled. The Superior Court judge agreed with the arbitrator’s analysis, determined that the award did not violate public policy, and confirmed the award. Discussion. The MBTA first contends that, because it has the exclusive and inherent management right to “appoint[] and employ . . . employees and to determine the standards therefor” under G. L. c. 161A, § 25, this matter is not arbitrable. See G. L. c. 150C, § 11 (a) (3) (arbitrator’s award may be vacated if she “exceeded [her] powers or rendered an award requiring a person to commit an act or engage in conduct prohibited by state or federal law”); School Comm. of Hanover v. Curry, 369 Mass. 683 (1976). The union acknowledges in section 102 of the collective bargaining agreement that the MBTA has the exclusive right to manage its own business. The union does not dispute that under G. L. c. 161A, § 25, the MBTA may employ whom it pleases, or that it may set employment standards. Cf. School Comm. of Holbrook v. Holbrook Educ. Ass’n, 395 Mass. 651, 652, 655 (1985) (“G. L. c. 71, § 38 . . . provides school committees with exclusive authority to determine the qualifications of teachers”). Rather, the union argues that seniority and wages are matters for collective bargaining, they are covered in the collective bargaining agreement, and the MBTA unilaterally may not set the wages and seniority of new employees. There are two distinct issues before us. The first is whether the arbitrator “exceeded [her] powers” under G. L. c. 150C, § 11 (a) (3), by intruding on a nondelegable authority of the MBTA. See School Comm. of Southbridge v. Brown, 375 Mass. 502, 505-506 (1978). The second is whether arbitration of this dispute was contemplated by the collective bargaining agreement. Id. at 504. These are questions for a court to decide. Id. at 504, 506. We answer the first question in the negative, and the second in the affirmative. “[W]ages, salaries, hours, working conditions, the assignment of work schedules and work locations on the basis of seniority” are matters that the Legislature has identified as proper subjects of collective bargaining between the MBTA and the union. G. L. c. 161A, § 25. By implication, these matters do not fall within the MBTA’s inherent management rights. See School Comm. of Braintree v. Raymond, 369 Mass. 686, 690-691 (1976); Lynn v. Council 93, Am. Fed’n of State, County, & Mun. Employees, Local 193, 51 Mass. App. Ct. 905, 906 (2001). The first question was not beyond the powers of the arbitrator. Section 516 of the collective bargaining agreement expressly states: “Seniority shall be measured . . . upon first entering a classification . . . [and shall] start at the bottom of the respective lists.” In addition, the progressive pay schedule in § 601 of the collective bargaining agreement requires employees to be paid initially at the lowest level of pay agreed on, with specified pay increases to be received based on the number of months actually worked. Section 100 of the collective bargaining agreement provides for arbitration of disputes over matters covered by that agreement, which includes disputes over seniority and wages. The second question was not beyond the powers of the arbitrator. Whether the MBTA conferred seniority status on Wick and agreed to pay him a starting hourly rate contrary to the terms of the collective bargaining agreement is distinct from the question of employment standards, and it constitutes a classic labor dispute that is arbitrable. See School Comm. of Holbrook v. Holbrook Educ. Ass’n, supra at 657. The arbitrator next ruled that the MBTA violated the terms of the collective bargaining agreement when it gave Wick seniority retroactive to the date of its initial offer of employment, together with a corresponding hourly rate of pay, without the consent of the union. “[W]e are strictly bound by the arbitrator’s factual findings and conclusions of law, even if they are in error.” School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 758 (2003). The MBTA argues that the arbitrator’s award must be vacated because it violates public policy. Specifically, the MBTA argues that the award requires the MBTA to continue the effects of a likely discriminatory practice in violation of G. L. c. 15 IB, § 4 (16), which proscribes handicap discrimination in employment. Although arbitration, particularly of labor disputes, is strongly favored in the Commonwealth as a matter of public policy, see School Comm. of Pittsfield v. United Educators of Pittsfield, supra at 758, an arbitral award must be vacated on proof of one of the grounds enumerated in G. L. c. 150C, § 11. Id. Section 11 (a) (3) requires the Superior Court to vacate the award of an arbitrator that “exceeded [her] powers or. . . requires a person to commit an act or engage in conduct prohibited by state or federal law.” An award that violates public policy is such an award. See Massachusetts Highway Dep’t v. American Fed’n of State, County & Mun. Employees, Council 93, 420 Mass. 13, 16 (1995). “[T]he question of public policy is ultimately one for resolution by the courts.” Id. at 16 n.5, quoting W.R. Grace & Co. v. Local Union 759, Int’l Union of the United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 766 (1983) (W.R. Grace). Before an arbitral award may be vacated as violating public policy, the policy must be shown to be “well defined and dominant, and is to be ascertained ‘by reference to the laws and legal precedents and not from general considerations of supposed public interests.’ ” W.R. Grace, supra, quoting Muschany v. United States, 324 U.S. 49, 66 (1945). That analysis has been adopted in our Commonwealth. See Massachusetts Highway Dep’t v. American Fed’n of State, County & Mun. Employees, Council 93, supra. The public policy in this case is “well defined and dominant.” It is the overriding governmental policy proscribing various types of discrimination, set forth in G. L. c. 15IB. General Laws c. 151B, § 9, states: “This chapter shall be construed liberally for the accomplishment of its purposes, and any law inconsistent with any provision of this chapter shall not apply . . .” (emphasis added). The specific antidiscriminatory policy involved in this case is set forth in G. L. c. 151B, § 4 (16), which states: “It shall be an unlawful practice: . . . (16) For any employer ... to dismiss from employment or refuse to hire ... or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.” The most meaningful remedy for discrimination in hiring is retroactive seniority. It is designed to make the injured person whole, or put him in nearly the same position he would have enjoyed if he had not been rejected from employment for discriminatory reasons. “Without an award of seniority dating from the time when he was discriminatorily refused employment, an individual. . . will never obtain his rightful place in the hierarchy of seniority according to which . . . various employment benefits are distributed.” Franks v. Bowman Transp. Co., 424 U.S. 747, 767-768 (1976). See id. at 763-766. Retroactive seniority is presumptively awarded in Title VII cases. Id. at 775 n.34, 779 n.41. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 399 (1982) (District Court may award retroactive seniority to discriminated class members in Title VII suit over objection of “innocent” union not been found guilty of discrimination). There is no reason to treat cases under G. L. c. 15 IB differently, and neither the union, the arbitrator, nor the judge suggested otherwise. The MBTA contends that the grant of retroactive seniority and the corresponding hourly wage in the settlement agreement was necessary to make Wick whole. The union acknowledges that a court or the MCAD could have ordered retroactive seniority as a remedy, but only if there had been a finding that the MBTA discriminated against Wick. See G. L. c. 151B, § 5, second par. (MCAD may order “such affirmative action ... as, in the judgment of the [MCAD], will effectuate the purposes of this chapter”); Heraty vs. Atlas Oil Co., MCAD No. 86-BEM-0123 (1994); Moreau vs. Haverhill, MCAD No. 88-BEM-0966 (1993). Cf. Franks v. Bowman Transp. Co., supra at 762-770 (retroactive seniority available remedy under § 706[g] of Title VII of Civil Rights Act of 1964). The focus of the union’s argument, and the centerpiece of the decisions of the arbitrator and the Superior Court judge, is the absence of an adjudication of discrimination, without which, they maintain, the public policy exception does not apply. Although neither a finding nor an admission of discrimination was made here, the union has cited no case that holds either must be made before the terms of a collective bargaining agreement must yield. Nor has it cited any authority for its claim that settlement of an individual complaint, as here, requires the approval of the tribunal before whom the discrimination complaint is pending as a precondition to overriding the terms of a collective bargaining agreement. An adjudication of discrimination and a tribunal’s order for retroactive seniority may indeed be outcome de

Powers v Post-Newsweek Stations, No. 138114; Court of Appeals No. 288582. Kelly, C.J. (concurring). Plaintiff, an African-American woman, worked for defendant WDIV-TV as an advertising account executive. She was eventually promoted to the position of sales manager. When she was not made general sales manager (GSM), she filed suit alleging that she had been discriminated against on the basis of her race and gender. The previous GSM, Matt Kell, held the position until he succumbed to cancer. While he was ill, plaintiff applied for and received short-term disability leave for depression. Plaintiff claimed that defendants discriminated against her by terminating her employment after denying her an extension of her medical leave of absence. Finally, she alleged that defendants’ conduct constituted intentional infliction of emotional distress. Defendants moved for summary disposition on the ground that plaintiff had failed to create a genuine issue of material fact concerning racial discrimination or intentional infliction of emotional distress. The trial court denied the motions. On interlocutory appeal, the Court of Appeals reversed the trial court’s ruling on the intentional infliction of emotional distress claim, but denied leave to appeal with respect to her discrimination claims. Defendants now seek leave to file an interlocutory appeal in this Court. Under the Michigan Civil Eights Act (CRA), a claim of racial or gender discrimination in employment may be made with direct or indirect evidence. Where the employee adduces direct evidence of bias, a plaintiff can go forward and prove unlawful discrimination in the same manner as a plaintiff would prove any other civil case. Where direct evidence is unavailable, to avoid summary disposition, the employee must present evidence from which the fact-finder could infer that the plaintiff was the victim of unlawful discrimination. Thus, to establish a prima facie case of discrimination, a plaintiff must present evidence that she was (1) a member of a protected class; (2) subject to an adverse employment action; (3) qualified for the position; and that (4) others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct.[] Once the employee establishes a prima facie case, the employer must articulate a nondiscriminatory reason for its actions. If the employer adduces such a reason, even if that reason later turns out to be incredible, the presumption of discrimination evaporates. Nonetheless, the evidence supporting an employee’s prima facie case may also be considered in deciding whether a genuine issue exists about whether the employer’s purported nondiscriminatory reasons constitute a pretext. Here, defendants claim that plaintiff failed to create a genuine issue of material fact that she suffered an adverse employment action in defendants’ failure to promote her to GSM. According to defendants, plaintiff failed to show that the position was open at any time before she became disabled. But plaintiff asserts that, although she was available for the job, defendant never formally offered it to anyone and took no steps to screen candidates to fill it. Plaintiff states that she was forced to assume the duties and responsibilities of the position and yet was never given the title or the pay. Plaintiff gave deposition testimony about Theodore Pearse, the head of her department, showing that he acted in a discriminatory manner. Plaintiff also testified about disparate treatment by Pearse concerning the hours that she worked and the duties that she performed. This contrasted with the favorable treatment that Pearse gave to Kell. Plaintiffs testimony establishes a genuine issue of material fact about adverse employment actions. It also raises an inference that Pearse acted out of racial animus in failing to pay plaintiff for her work as GSM and in refusing to promote her to that position. According to plaintiffs testimony, Pearse could have chosen a GSM when Kell died, but did not. If plaintiffs testimony is believed, a finder of fact could infer racial animus from Pearse’s decision not to formally promote plaintiff to the position of GSM. Defendants also argue that plaintiff failed to provide evidence of an adverse employment action with respect to her medical leave extension. They assert that she did not show that she was disparately treated compared to similarly situated employees. Defendants point out that white employees were also denied leave extensions. However, plaintiff persuasively argues that the failure to extend her medical leave resulted in the termination of her employment, which could clearly constitute an adverse employment action. Moreover, although plaintiffs employment was terminated in accord with defendants’ standard policy, an exception to that policy had been made for Kell. But, no exception to defendants’ standard policy exists for terminally ill employees. As a result, a genuine issue of fact exists concerning whether plaintiff was treated differently because of her race. Finally, defendants contend that plaintiffs retaliation claim fails as a matter of law. They assert that no one involved in the decision not to offer her the GSM position or to deny her a medical leave extension knew of the alleged protected activity. However, plaintiff claimed that Pearse was aware of her complaints of racial discrimination. Thus, if believed, plaintiffs testimony demonstrates resentment toward plaintiff by Pearse that could constitute retaliation. For these reasons, summary disposition, in favor of defendants, of plaintiffs discrimination claims was inappropriate. The case should proceed to trial. Therefore, I concur in the Court’s order denying defendants’ application for leave to appeal. MCL 37.2201 et seq. Town v Michigan Bell Tel Co, 455 Mich 688, 694-695 (1997). “Direct evidence” is evidence that, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions. Hazle v Ford Motor Co, 464 Mich 456, 462 (2001). Hazle, supra at 462-463. Town, supra at 695. Id. Id. at 696. Markman, J. (dissenting). I respectfully dissent. Plaintiff filed suit alleging multiple claims of racial and gender discrimination. The trial court denied defendants’ motions for summary disposition, and the Court of Appeals denied leave to appeal on all but one of these motions. Powers v Post-Newsweek Stations Michigan Inc, unpublished order of the Court of Appeals, entered December 11, 2008 (Docket No. 288582). Because I believe that all but one of plaintiffs remaining claims should be dismissed, I dissent. To raise an inference of discrimination, a plaintiff must establish a prima facie case by showing that (1) she belongs to a protected class, (2) she suffered an adverse employment action, (3) she was qualified for the position, and (4) the job was given to another person under circumstances giving rise to an inference of unlawful discrimination. [Hazle v Ford Motor Co, 464 Mich 456, 463 (2001).] Establishing a prima facie case, however, “does not necessarily preclude summary disposition in the defendant’s favor.” Id. at 463-464. Instead, the defendant can “articulate a legitimate, nondiscriminatory reason for its employment decision” that rebuts the inference of discrimination. Id. at 464. Once the defendant has articulated such a reason, the plaintiff can only survive summary disposition by demonstrating that the evidence would allow a reasonable trier of fact to conclude that the employer’s action was motivated by discriminatory animus and that the employer’s proffered reason was “ ‘a pretext for [unlawful] discrimination.’ ” Id. at 465-466 (alteration in original), quoting Lytle v Malady (On Rehearing), 458 Mich 153, 176 (1998). Plaintiff first claims that defendants discriminated against her by not promoting her to the general sales manager (GSM) position, which was the next level above her local sales manager position. The previous GSM, Matt Kell, held the position until he died from cancer. While Kell was sick, plaintiff applied for and received short-term disability leave for work-induced depression. She was still on short-term leave when Kell died. Defendants did not seek to fill the GSM position until approximately a year after Kell passed away. By that time, defendants had terminated plaintiffs employment because she did not return after her short-term disability leave expired. The GSM position was eventually filled by a black man. Plaintiff has failed to establish a material issue of fact regarding an adverse employment action, because the GSM position did not open until after she had effectively ended her employment by not returning when her short-term leave expired. Plaintiff has also not established an inference of a discriminatory purpose because defendants hired an individual in the same “protected class” to which she belonged. Additionally, even assuming plaintiff has established a prima facie case, defendants’ non-discriminatory reason, that defendants did not want to remove Kell from the position while he battled terminal cancer, clearly overcomes any presumption of discrimination. See Hazle, 464 Mich at 473. Plaintiff presented no evidence showing that defendants’ reason was a pretext for keeping her out of the position. Plaintiff next claims discrimination based on defendants’ decision to not extend her short-term disability leave. The thrust of her argument is that defendants’ denial of an extension was based on race because Kell, a white male, had received short-term disability extensions while he battled cancer. Kell was the only employee who received extensions beyond the period set by defendants’ policy (two other white employees also did not receive extensions). I do not believe that this raises an inference of discrimination, because the differences between plaintiffs and Kell’s medical situations were drastic. However, again, even assuming that plaintiff established a prima facie case, she did not rebut defendants’ non-diseriminatory reason for extending Kell’s benefits (that he was battling terminal cancer). Accordingly, I believe the presumption of discrimination “drops away,” Hazle, 464 Mich at 465, and plaintiffs claim cannot continue because she did not present further evidence showing that defendants’ actions were motivated by discriminatory animus. Plaintiff lastly claims that defendants retaliated against her for complaining to their general manager about the mistreatment of black employees. To establish a prima facie case of retaliation, a plaintiff must show “(1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action.” [Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 273 (2005) (citation omitted).] For one of plaintiffs claims, there are material facts in dispute regarding these elements. Plaintiff alleged that Kell’s supervisor did not discipline Kell for making plaintiffs job more difficult. A “supervisor’s decision not to take action to stop harassment” can be considered an “adverse employment action.” Meyer v Center Line, 242 Mich App 560, 571 (2000). When plaintiff complained to the supervisor regarding Kell’s behavior, he told her that Kell was upset that plaintiff had complained to the general manager about racial mistreatment and that she should leave if she did not like Kell’s behavior. I believe this arguably establishes a material dispute about whether the supervisor’s inactivity was causally connected to plaintiffs earlier complaints to the general manager. However, I do not believe that plaintiff has presented any evidence of a causal connection between her complaints and defendants’ decisions not to promote her to the GSM position and not to extend her short-term disability. Plaintiff only shows that the decision-makers for those actions had knowledge of plaintiffs past complaints, which I believe alone is insufficient to establish a causal connection between plaintiffs complaints and the alleged adverse employment actions. See West v Gen Motors Corp, 469 Mich 177, 186 (2003) (“Something more than a temporal connection between protected conduct and an adverse employment action is required to show causation where discrimination-based retaliation is claimed.”). Accordingly, I would reverse the trial court’s decision and dismiss plaintiffs claims with respect to the GSM promotion and short-term disability leave. Likewise, I would dismiss plaintiffs retaliation claim, except with respect to the portion of that claim arising out of the supervisor’s failure to correct Kell’s alleged mistreatment of plaintiff. Corrigan, J. I join the statement of Justice Markman. I respectfully disagree with Chief Justice Kelly that an inference of discrimination was raised because “no exception to defendants’ standard policy existfed] for terminally ill employees.” Ante at 988.1 do not believe any formal exception is required to explain an employer’s decision to provide an employee with extended disability care while he battled a serious cancer that would eventually cause his death.

Joseph R. Everett vs. The 357 Corp. & another. Norfolk. December 2, 2008. April 13, 2009. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Anti-Discrimination Law, Handicap, Employment. Americans with Disabilities Act. Practice, Civil, Judgment notwithstanding verdict. Massachusetts Commission Against Discrimination. Jurisdiction, Administrative matter, Superior Court, Primary jurisdiction. Administrative Law, Primary jurisdiction. Brief summary of the statutory scheme governing the scope of discrimination claims filed in the Superior Court pursuant to G. L. c. 151B and the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. [599-602], and the limitations of a complaint filed with the Massachusetts Commission Against Discrimination on a subsequently filed civil action in Superior Court [602-603]. In an action brought in Superior Court by a plaintiff alleging that his former employer discriminated against him in violation of the Americans with Disabilities Act, the judge erred in denying the employer’s motion for judgment notwithstanding the verdict, where the Superior Court lacked subject matter jurisdiction on the only claims for which the jury awarded damages to the plaintiff, given the plaintiff’s failure to file a predicate complaint regarding those claims with the Massachusetts Commission Against Discrimination (MCAD) or to demonstrate that those claims were encompassed by an earlier MCAD filing, were reasonably related to that earlier filing, or were within the scope of allegations that the MCAD could reasonably be expected to uncover in investigating that earlier filing. [603-608, 611-613] Discussion of the doctrine of primary jurisdiction and its application in an employment discrimination case involving the issue of the employee’s medical qualifications, under regulations of the United States Department of Transportation, to drive commercial motor vehicles. [608-611] Civil action commenced in the Superior Court Department on February 11, 2000. The case was tried before Charles M. Graban, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Gary M. Feldman for the defendants. Jeffrey M. Feuer (Lee D. Goldstein with him) for the plaintiff. Beverly I. Ward, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Nina Joan Kimball, for Charles Hamilton Houston Institute for Race & Justice & others, amici curiae, submitted a brief. Trans-Lease Group. Trans-Lease Group, a holding company, provides administrative services to The 357 Corp. (collectively, the company). Marshall, C.J. The plaintiff, Joseph R. Everett, brought suit in the Superior Court alleging that his former employer, The 357 Corp. and Trans-Lease Group (collectively, the company), discriminated against him in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. (2000 ed.), and the Massachusetts antidiscrimination statute, G. L. c. 151B, when it did not permit him to return to work as a commercial truck driver after his discharge from a psychiatric hospital in 1996. In his complaint and pretrial pleadings, Everett asserted that he was seeking damages for wrongful actions occurring “in February 1997 and thereafter.” As we describe below, on February 14, 1997, in conformity with regulations promulgated by the Federal Motor Carrier Safety Administration of the United States Department of Transportation (DOT), the company’s physician declined to certify Everett as medically qualified to drive a commercial motor vehicle. At trial, Everett changed his theory of liability to cover alleged acts of discrimination occurring only in 1999, expressly and repeatedly waiving all claims of discrimination by the company before 1999. The company vigorously contested the “waiver” of the earlier claims at every step. See infra. After the close of evidence, again over the company’s vigorous objection, Everett moved to amend his complaint to conform to the evidence by asserting, among other things, a claim for damages based solely on his 1999 claims. The judge submitted both the 1996-1997 claims and the 1999 claims to the jury. The jury found that the company had acted lawfully in connection with Everett’s 1996-1997 termination, but had discriminated against Everett by refusing to reinstate him in 1999. They awarded Everett damages in the amount of $757,701 on the 1999 claims. The trial judge then allowed Everett’s motion to amend, and subsequently awarded Everett fees and costs in the amount of $370,678.58. The company appealed, and we transferred the case here on our own motion. Of the several grounds to vacate urged by the company, we consider only the dispositive issue whether the judge erred in permitting Everett’s 1999 claims to go to the jury where, as we shall explain, he did not file a complaint with the Massachusetts Commission Against Discrimination (MCAD) related to those claims. We conclude that Everett’s failure to file a predicate complaint with MCAD deprived the court of subject matter jurisdiction on the only claims for which the jury awarded Everett damages, his 1999 claims. G. L. c. 151B, §§ 5, 9. The company’s motion for judgment notwithstanding the verdict on that ground should have been allowed. We set aside the jury verdict and the award of fees and costs, and remand the case to the Superior Court for the entiy of a judgment of dismissal. 1. Factual background. We recite the relevant facts as the jury could have found them and, where relevant, include additional uncontested material. See Pardo v. General Hosp. Corp., 446 Mass. 1, 3 (2006). a. The events of 1996 and 1997. This dispute has its origins in 1996. In late January or early February of 1996, Everett, who had been employed as a commercial truck driver by the company since 1986, was suspended for one month for sending an inappropriate letter to a woman coworker. Fearing that his job was in jeopardy, Everett contacted Dr. Lillian Sober-Ain, a clinical psychologist, for mental health treatment. Dr. Sober-Ain diagnosed Everett as suffering from an adjustment disorder with depressed mood, and posttraumatic stress disorder with delayed onset. Everett returned to work but, as he testified at trial, when he did so, he was “very nervous,” and “I thought I was being followed by different people, groups of people, whether it be the company, or that girl.” Everett’s mother testified that, when her son returned to work, “he started telling us” that the women who were “involved in his being suspended were following him to his work places.” Everett’s mother also testified that, in June, 1996, while Everett was visiting his family, she became concerned because “he was very upset and yelling about these girls,” saying “they’re following me again.” He would “sometimes” ran outside in the dark, stating that “he heard something,” “thought somebody was trying to do something to his car,” and said that he “heard voices.” His mother testified that her son began “to seem a little paranoid.” A physician recommended by Everett’s union was consulted by the family, who were told that Everett “could be a danger to himself or others and should be in the hospital.” Everett’s family persuaded him to receive treatment at Cape Cod Hospital, and then involuntarily committed him to Bournewood Hospital. See G. L. c. 123, § 12. Everett remained an inpatient at Boumewood Hospital for two weeks, during which time he was diagnosed with paranoid schizophrenia. His treating physician at that hospital testified that Everett’s condition was a “lifelong” illness. On his discharge on July 9, 1996, Everett was given prescriptions for antipsychotic medications, including Haldol and Cogentin. Following his discharge from Boumewood Hospital, Everett sought to return to work with the company. Consistent with Federal regulations governing the commercial trucking industry, the company required Everett to be medically evaluated to determine whether he remained physically and mentally qualified under DOT regulations to drive heavy commercial vehicles on the public roads. Dr. David M. Roston, a psychiatrist at Atlantic Health Group, conducted the evaluation. On July 18, 1996, based on his examination, Dr. Roston refused to issue Everett a medical examination certification of fitness to drive a commercial motor vehicle (DOT certificate) at that time. Dr. Roston also recommended to the company that Everett “undergo an independent psychiatric evaluation.” On September 26, 1996, at the company’s request and expense, Everett was evaluated by psychiatrist Dr. Roy Lubit. Using criteria established by the DOT, 49 C.F.R. § 391.41(b)(9), Dr. Lubit concluded that “I cannot certify this individual as healthy to drive.” Dr. Lubit stated that he had “discussed this issue with Dr. Roston who agrees.” Everett then sought an examination by a doctor of his own choosing, Dr. James R. Bieber. On January 25, 1997, Dr. Bieber evaluated Everett to determine whether “he is able to return to his job of driving a truck while on medication.” Dr. Bieber concluded that Everett “is able to return to the work of driving a truck,” noting, however, that Everett should be “carefully” monitored, and that either emotional or physical stress “could lead to another decompensation.” Dr. Bieber’s report made no reference to DOT qualification requirements. Dr. Roston reviewed Dr. Bieber’s report and the mental health qualification requirement of 49 C.F.R. § 391.41, and on February 14, 1997, reported to the company that, although Everett was responding well to his medications, “he has the risk of future psychotic episodes which could interfere with his ability to safely operate a truck.” In light of the requirements of the DOT regulations, he again declined to issue the DOT certificate. The company refused to permit Everett to return to work. In February, 1997, Everett, through his union, filed a grievance seeking reinstatement. In connection with the grievance, Everett and the company sought a mutually agreed-upon third-party medical evaluation of Everett by an expert, whom Everett’s business agent termed at trial “a neutral third party.” The parties agreed to have Dr. Lubit serve in that role. In a June 26, 1997, report that again cited DOT regulations, Dr. Lubit concluded: “I cannot state that [Everett’s] psychiatric problems will not be a problem. They are a continual risk to his driving and I would be unable to qualify him.” DOT regulations require drivers who wish to overturn adverse medical evaluations to appeal from the decision to the DOT. While the administrative appeal is pending, the driver is deemed not medically qualified to operate commercial motor vehicles. 49 C.F.R. § 391.47(f) (where driver and motor carrier disagree about medical certification, “the driver shall be deemed disqualified until such time as the [DOT] makes a determination” [emphasis added]). See Carolina Freight Carriers v. Pennsylvania Human Relations Comm’n, 99 Pa. Commw. 428, 436 (1986) (“where there is a conflict in the medical evidence a driver will remain unqualified until the federal government decides to the contrary” [emphasis in original]). Everett did not file an appeal with the DOT at any time to review the adverse conclusion of the mutually agreed-upon medical specialist, Dr. Lubit. He did, however, through his union, file a request to arbitrate his grievance. The arbitration panel dismissed Everett’s claim. On July 3, 1997, one week after Dr. Lubit had declined a second time to certify Everett as medically qualified to drive a commercial motor vehicle, Everett filed a charge of discrimination with the MCAD, which also was filed with the Equal Employment Opportunity Commission (EEOC). He asserted, among other things, that in June, 1996, he “went on a medical leave of absence,” that he was “well enough to return to work in July, 1996 but [the company] refused to allow me to return,” and that the company “has refused to return me to work because of my perceived disability, even though I am capable of performing the essential elements of my driver’s position.” On December 11, 1998, after an investigation, see 804 Code Mass. Regs. § 1.13(7) (1993); G. L. c. 151B, § 5, the MCAD issued a Lack of Probable Cause (LOPC) determination, and closed its investigation. At some point — no appeal date is indicated in the record — Everett administratively appealed from the LOPC determination; a hearing on his appeal was held on February 9, 1999. 804 Code Mass. Regs. § 1.15(7)(d) (1999). On May 4, 1999, the investigating commissioner affirmed the LOPC determination “[b]ased upon information presented at the appeal hearing and a review of the evidence adduced in investigation . . . .” b. The events of 1999. In the meantime, and notwithstanding that both Dr. Roston and Dr. Lubit had refused to certify him as medically qualified in conformity with DOT regulations to drive commercial motor vehicles, Everett drove heavy commercial trucks for other employers. To obtain these jobs, beginning in 1997, Everett acquired at least five DOT certificates from various physicians. At trial Everett testified that he did not disclose to any of the certifying physicians his previous psychiatric history either during any medical examinations or on the forms required for each examination. To the contrary, when asked directly, he informed each examining physician that he had “no” history of a psychiatric disorder. See note 8, supra. Before January 12, 1999, the company had no knowledge that Everett had acquired these DOT certificates and was driving commercial vehicles for other employers. On that date Everett initiated a second union grievance against the company, in which he sought “[t]o be put back to work as a driver” with “his seniority and lost wages and benefits since January 12, 1999 ” He asserted, through a union representative, that he had “new” evidence to support his request. The “new” evidence included, among other things, a personal affidavit, a driver’s road test, a seniority list from the company dated September 9, 1998, that included his name, Dr. Bieber’s evaluation of January 25, 1997, a letter from one employer stating that he had been qualified to serve as a “lead driver,” a physical examination form from another employer, several DOT certificates obtained since 1997, and an affidavit from a union doctor attesting that “it appears that Joe Everett is in remission” from his emotional problems and his “case appears to be one in which any disabilities he incurred are now resolved and he has returned to normal baseline functioning” sufficient to “resume” his duties with the company. The company raised as a “point of order” to the 1999 grievance that the issue of Everett’s medical qualification had been definitively resolved in the 1997 grievance, and that, based on the 1997 conclusions of Dr. Lubit and Dr. Roston, as upheld in the 1997 grievance proceeding, Everett was not DOT-certified to drive a commercial motor vehicle. The 1999 arbitration panel dismissed Everett’s grievance. See EEOC v. Allied Sys., Inc., 36 F. Supp. 2d 515, 522 (N.D.N.Y. 1999), quoting Campbell v. Federal Express Corp., 918 F. Supp. 912, 918 (D. Md. 1996) (motor carrier “not required to accept the determination of . . . a physician for one of [the motor carrier’s] competitors. ‘As a matter of law, [the motor carrier] was not bound to accede to determinations made by medical professionals retained by its competitors; [the motor carrier] was entitled to rely on the determinations made by its medical professionals’ ”). 2. Procedural background. We recount the procedural background in some detail, as befits the jurisdictional issue in this case. On February 11, 2000, approximately thirteen months after filing his second grievance and almost three years to the day from Dr. Roston’s final rejection of Everett’s DOT qualifications on February 14, 1997, Everett filed a complaint in the Superior Court. See G. L. c. 15IB, § 9 (establishing three-year statute of limitations for filing discrimination claims pursuant to G. L. c. 15IB). The allegations of the complaint are ambiguous. Everett specifically referenced discrimination by the company “[s]ince February 14, 1997,” the date of Dr. Roston’s letter reviewing and rejecting Dr. Bieber’s opinion that Everett was medically certified to drive commercial trucks; it also referred to the MCAD’s LOPC determination of December 11, 1998. The complaint alleged that the company “failed and refused to re-employ Everett” or to offer him reasonable accommodation “even in the face of Mr. Everett’s exemplary truck driving record with other companies” since February 14,1997. The Superior Court complaint did not allege that any act of discrimination had occurred in 1999, did not allege that in 1999 Everett had presented the company with “new” evidence about his mental health, and did not allege that the company had failed to rehire Everett in 1999 in the face of such “new” evidence or otherwise. The complaint included a generally worded request for damages as a “result of [the company’s] discriminatory actions.” Fairly read, the complaint alleged that Everett had not been returned to work by the company on February 14, 1997, that his complaints of discrimination had been investigated by the MCAD and their basis found lacking in probable cause, and that Everett nevertheless had suffered damages for the alleged wrongs encompassed within the MCAD investigation that had ended in 1998. There was no allegation that the company did or did not do anything on January 12, 1999, or thereafter. On July 31, 2000, the company moved to dismiss the complaint for failing to comply with the applicable statute of limitations, which period, the company argued, commenced in July, 1996, when Everett sought to return to work after his hospitalization. Everett opposed the motion. He argued that, while “it was not clear in July 1996 that [the company’s] refusal to allow Mr. Everett to return to work stemmed from a discriminatory animus,” such animus was evident by February 14, 1997, when the company’s refusal to reemploy him was based on a discriminatory perception that he was still mentally disabled. Thus, Everett continued, he had properly alleged a continuing violation, that “save[d]” what might otherwise have been the time-barred 1996 event. See Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 531-532 (2001); 804 Code Mass. Regs. § 1.10(2) (1999) (describing continuing violation doctrine). Neither party mentioned any events in 1999, either in their memoranda or in their reply memoranda; the entire focus of the motion was whether the 1997 event anchored the 1996 event and brought it within the statute of limitations by way of the continuing violation doctrine. The company’s motion to dismiss was denied. After lengthy and acrimonious discovery disputes not material to our decision, in April, 2005, the case proceeded to trial. In the October, 2004, joint pretrial statement of expected evidence, Everett asserted that his theory of liability was that the company’s “continuing” refusal to allow him to return to work due to an “unjustified” perception that he still had a disability in “February, 1997 and thereafter” constituted discrimination in violation of the Massachusetts and Federal antidiscrimination statutes. At the commencement of, and continuing throughout, the trial, however, Everett took the position that the only issue for resolution by the jury involved events that had occurred in January, 1999. His theory of liability now rested on the fact that in January, 1999, he had submitted to the company (in connection with his second grievance) new evidence that he had been working safely as a DOT certified commercial truck driver for other companies since 1997, and that the company refused for discriminatory reasons to recognize his qualifications and to rehire him at that time. The company vigorous