15 LaGrange Street Corp. v. Massachusetts Commission Against Discrimination ( 2021 )

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20-P-726 Appeals Court
15 LaGRANGE STREET CORPORATION1 & others2 vs. MASSACHUSETTS
COMMISSION AGAINST DISCRIMINATION & another.3
No. 20-P-726.
Suffolk. March 19, 2021. - May 13, 2021.
Present: Vuono, Hanlon, & Shin, JJ.
Anti-Discrimination Law, Employment, Employee, Race, Damages,
Termination of employment. Employment, Discrimination,
Retaliation, Termination. Massachusetts Commission Against
Discrimination. Administrative Law, Hearing, Judicial
review, Administrative Procedure Act. Due Process of Law,
Administrative hearing, Notice. Practice, Civil,
Amendment, Judgment on the pleadings. Notice,
Administrative hearing. Damages, Emotional distress,
Attorney's fees, Back pay.
Civil action commenced in the Superior Court Department on
January 18, 2019.
The case was heard by Linda E. Giles, J., on cross motions
for judgment on the pleadings.
Jack K. Merrill for the plaintiffs.
1 Doing business as The Glass Slipper.
2 Nicholas Romano and Michael Bennett.
3 Derrick Sims, intervener.
2
Simone R. Liebman for Massachusetts Commission Against
Discrimination.
Lana Sullivan, for the intervener, was present but did not
argue.
SHIN, J. Derrick Sims filed a complaint with the
Massachusetts Commission Against Discrimination (commission or
MCAD), alleging, among other things, retaliatory termination by
his then employer, 15 LaGrange Street Corporation (doing
business as The Glass Slipper), and its managers, Nicholas
Romano and Michael Bennett (together, respondents). After a
public hearing, a hearing officer concluded that, although Sims
had failed to prove retaliation, the evidence established that
the real reason for his termination was race discrimination,
entitling him to lost wages and emotional distress damages. The
hearing officer also found the respondents liable on Sims's
separate claim of racially hostile work environment. On the
respondents' petition for review, the commission affirmed in all
respects.
The respondents now appeal from an amended judgment of the
Superior Court affirming the commission's decision on judicial
review. They argue principally that they were not put on notice
that Sims was claiming that he was terminated based on his race.
We agree. The facts set out in Sims's complaint did not give
reasonable notice of such a claim, and, while the commission had
the authority -- if not the obligation -- to issue a complaint
3
in its own name, it did not do so. We disagree, however, with
the respondents' contention that there was no substantial
evidence to support the commission's finding of a racially
hostile work environment. We thus vacate the amended judgment
in part and order the matter remanded to the commission for
redetermination of emotional distress damages and attorney's
fees.
Background. We summarize the facts found by the hearing
officer and the uncontested facts from the administrative
record.
The Glass Slipper (club) is a "gentlemen's club" in Boston.
It is managed by Romano and Bennett, who are both white, and
owned by Romano and Bennett's mother.
Sims, who is Black, began working as a bouncer for the club
in August 2010. He was terminated only a few months later on
February 27, 2011. The previous day, Sims had worked his
scheduled day shift but left his post early without finding a
replacement. As a result, when Romano arrived at the club
around 6:15 P.M., he found the front door unattended. Angry,
Romano ordered employee Danny Wong to fire Sims, which Wong did
the next day.
Sims filed his complaint, on a form made available by the
commission, in September 2011. In the section asking for the
cause of discrimination, Sims checked "race," "color,"
4
"retaliation," and "other." In the section asking for the
"particulars," Sims referred to his attached declaration, in
which he alleged that, a few months after he started working at
the club, he learned that another bouncer was sexually
assaulting the dancers. Sims further alleged that Romano
treated him less favorably than the white bouncers -- for
example, by stationing him outside, ordering him to take out
trash, and not allowing him to use the newer walkie-talkies.4
According to Sims, soon after he reported these issues to
Bennett, Wong told Sims that management wanted him gone for
"asking too many questions." Based on this, Sims "believe[d]
that the Club terminated [him] in retaliation for reporting the
discriminatory and illegal practices that were occurring."
In July 2013, after an investigating commissioner found
probable cause to credit Sims's allegations and conciliation
efforts failed, the commission certified the case to a public
hearing. Sims's complaint was attached to the certification,
but the certification did not itself identify the particular
claims to be decided at the hearing. The investigating
4 We address Sims's allegations of disparate treatment in
more detail in connection with our discussion of the evidence
supporting his claim of a hostile work environment.
5
commissioner also waived the certification conference,5,6 noting
that the parties could raise all relevant issues at the
prehearing conference with the hearing officer.
In November 2013 the parties submitted a joint prehearing
memorandum to the hearing officer. In his summary of the
claims, Sims reasserted the allegations in his complaint that
Romano treated him less favorably than white bouncers and that
Wong told Sims that he was being fired for asking "too many
questions." Sims then identified his claims as
"discriminat[ion] . . . based on the color of his skin" and
"retaliat[ion] . . . for complaining about Mr. Romano's racist
behavior and the sexual harassment and assault towards the
dancers." The respondents, for their part, noted that the
complaint "apparently asserts that [Sims] was . . . terminated
. . . because of his race." They argued, however, that there
was no evidence to support any such claim and that it should not
therefore be certified to a public hearing. They also argued
that the case "require[d] a certification conference" and that
waiver of that requirement was improper under the regulations.
5 "The Investigating Commissioner, upon his/her own motion
if the circumstances so warrant or upon notification by the
parties that discovery . . . is complete or unnecessary, shall
schedule a conference to determine Certification of Issues to
Public Hearing." 804 Code Mass. Regs. § 1.20(1) (1999).
6 We cite the version of the regulations that was in effect
throughout the commission proceedings.
6
No certification conference was ever held, and at no point
did the commission issue a complaint in its own name identifying
the issues certified to the hearing.7 Thus, unsurprisingly, at
the start of the hearing in March 2014, the respondents' counsel
asked for clarification, stating that he "was unclear on
precisely what the claims were." Sims's counsel replied:
"We have a hostile work environment claim based on race.
And that was up until the time of the termination and that
race played some role in the decision to terminate, but the
second claim is also the retaliation for reporting the
sexual harassment.
"So there's essentially two claims. A hostile work
environment based on race up until the time of termination
and then the termination being based on retaliation."
Consistent with this characterization, Sims's counsel averred in
her opening statement that "[Sims] was fired in retaliation for
asking questions about what they were going to do about [the
other bouncer] bothering the girls."
7 "When the Investigating Commissioner believes that the
public interest requires a certification of issues to public
hearing, she or he shall issue a complaint in the name of the
Commission, pursuant to [G. L.] c. 151B, § 5. Following the
Certification Conference . . . , and based upon the submissions
of the parties at the Conference, and the record, the
Investigating Commissioner shall issue an Order, constituting
the Complaint of the Commission pursuant to [G. L.] c. 151B,
§ 5. The Order shall be in writing, served upon all parties and
counsel of record, in hand or by certified mail, which . . .
Certifies, to a Public Hearing . . . each and every issue to be
considered at Public Hearing, including . . . Complainant's
allegations of discrimination . . . ." 804 Code Mass. Regs.
§ 1.20(3) (2004).
7
After three days of testimony, the hearing officer issued a
written decision in March 2015. The hearing officer concluded
that Sims failed to prove retaliation, finding his testimony
that he complained to Bennett and others about the alleged
sexual harassment of the dancers to be "vague and unconvincing"
and "not . . . believable, particularly given the egregious
conduct he [was] alleging occurred." The hearing officer
instead credited Bennett's testimony that Sims never made a
complaint. She also credited Romano's testimony that he was
unaware of the sexual harassment allegations.
In addition, the hearing officer credited Romano's
testimony that Sims left the front door uncovered on February
26, 2011. She did not credit Sims's testimony that he secured a
replacement before leaving, nor did she credit his testimony
that Wong told him Romano wanted him fired for asking too many
questions. Rather, the hearing officer credited Wong's
testimony that Romano told him to fire Sims because he had
abandoned his post.
Nonetheless, the hearing officer found that the
respondents' proffered reason for firing Sims was a pretext --
not for retaliation, but for race discrimination:
"While Romano may have been angry that [Sims] was not at
his post on the evening in question, because there was a
problem generally with other bouncers arriving late for
their shifts, I conclude that [Sims's] termination was
motivated by discrimination based on his race. Romano
8
acted precipitously and I conclude that he would not have
fired [Sims] for a first-time incident if [he] were not
[B]lack."
In support for this conclusion, the hearing officer cited Sims's
good work history, the lack of "evidence of white bouncers whose
employment was terminated," the "strong evidence of Romano's
pervasive racist attitude that created a racially hostile work
environment," and Romano's "cavalier and dismissive attitude" at
the hearing. Also finding the respondents liable for creating a
hostile work environment, the hearing officer awarded Sims
$25,000 in emotional distress damages and $20,000 in lost wages.
The respondents petitioned for review to the commission.
They argued, among other things, that Sims never claimed that
his termination was racially motivated and that no such claim
was certified to the hearing. The commission disagreed,
concluding that Sims made allegations of race discrimination in
his complaint and the respondents "were on notice that a claim
of race discrimination could well encompass a claim of unlawful
termination based on race." Rejecting the respondents' other
arguments, the commission upheld the hearing officer's decision
and awarded Sims $32,130 in attorney's fees and $4,948.29 in
costs. The Superior Court judge affirmed, and this appeal
followed.
Discussion. Our review of the commission's decision is
governed by G. L. c. 30A, § 14 (7), which requires us to
9
determine whether a party's substantial rights were prejudiced
because the decision was in violation of constitutional
provisions, based on an error of law or unlawful procedure, or
unsupported by substantial evidence. See G. L. c. 151B, § 6;
Wheelock College v. Massachusetts Comm'n Against Discrimination,
371 Mass. 130, 133 (1976). We review the judge's decision de
novo. See Doe, Sex Offender Registry Bd. No. 523391 v. Sex
Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019).
1. Adequacy of notice. While "[d]ue process does not
require that notices of administrative proceedings 'be drafted
with the certainty of a criminal pleading,'" the notice must be
"sufficient for persons whose rights may be affected to
understand the substance and nature of the grounds upon which
they are called to answer." Langlitz v. Board of Registration
of Chiropractors, 396 Mass. 374, 377 (1985), quoting Higgins v.
License Comm'rs of Quincy, 308 Mass. 142, 145 (1941). See
LaPointe v. License Bd. of Worcester, 389 Mass. 454, 458 (1983);
Highland Tap of Boston, Inc. v. Commissioner of Consumer Affairs
& Licensing of Boston, 33 Mass. App. Ct. 559, 571 (1992). The
Massachusetts Administrative Procedures Act (act) likewise
requires "sufficient notice of the issues involved to afford
[parties] reasonable opportunity to prepare and present evidence
and argument." G. L. c. 30A, § 11. See Strasnick v. Board of
Registration in Pharmacy, 408 Mass. 654, 660 (1990);
10
Vaspourakan, Ltd. v. Alcoholic Beverages Control Comm'n, 401
Mass. 347, 353 (1987). Furthermore, "[i]n all cases . . . where
subsequent amendment of the issues is necessary," the act
provides that "sufficient time shall be allowed after . . .
amendment to afford all parties reasonable opportunity to
prepare and present evidence and argument respecting the
issues." G. L. c. 30A, § 11 (1).
We conclude here that Sims's complaint, even read
indulgently, did not provide fair notice of a claim of racially
motivated termination. Although an MCAD complaint need not
"state the specific legal theory on which the claim for recovery
is based," Windross v. Village Automotive Group, Inc., 71 Mass.
App. Ct. 861, 866 (2008), it must contain "a concise statement
of the alleged discriminatory acts," 804 Code Mass. Regs.
§ 1.10(5) (2004). Nowhere in his complaint, however, did Sims
allege that he was terminated because of his race. Sims does
not argue otherwise, and neither he nor the commission point to
any facts set out in the complaint that support a different
reading. See Highland Tap of Boston, Inc., 33 Mass. App. Ct. at
571-572, quoting Foster from Gloucester, Inc. v. City Council of
Gloucester, 10 Mass. App. Ct. 284, 289-290 (1980) ("The notice,
'taken in conjunction with the hearing, [was not] sufficient to
accomplish substantial justice' [because] it 'misled a licensee
as to the possible grounds for revocation which he should be
11
prepared to meet at the public hearing'"). Cf. Windross, supra
at 867 ("Although the words 'hostile work environment' do not
appear in the complaint, [complainant] alleged specific
underlying facts describing a work environment in which he was
persistently subjected to racially abusive comments . . .").8
Moreover, while the lack of notice could have been cured,
either by Sims or by the commission, at some later point in the
proceedings, that did not occur. Sims and the commission
suggest that the respondents were put on notice by Sims's
deposition testimony that race "could have factored into" the
termination and he "would never take that out of the equation."
But we are unaware of any authority supporting the proposition
that deposition testimony can suffice to give notice of a claim
without a corresponding amendment of the complaint. Indeed,
Sims failed even to identify the claim in the joint prehearing
memorandum. Cf. Boston v. Massachusetts Comm'n Against
Discrimination, 47 Mass. App. Ct. 816, 820 (1999) ("MCAD's
8 We note that Windross, on which Sims relies, arose in a
different procedural posture: the complainant there had removed
his MCAD complaint to Superior Court, and the question was
whether he had exhausted his administrative remedies by raising
a claim of hostile work environment in the complaint. See
Windross, 71 Mass. App. Ct. at 862-863. That question, unlike
the one before us, did not implicate any due process concerns.
We do not decide whether a more lenient pleading standard might
be appropriate in the exhaustion context.
12
counsel filed a joint prehearing memorandum that discussed"
claim in question).
The clarification given by Sims's counsel at the start of
the hearing also did not suffice to provide notice. Sims and
the commission focus on counsel's statement that "race played
some role in the decision to terminate" while neglecting to
mention her ensuing statement, which made clear that Sims was
raising two claims: "[a] hostile work environment based on race
up until the time of termination and then the termination being
based on retaliation." From this, and from counsel's opening
statement, the respondents would reasonably have thought that
the sole basis for Sims's claim of unlawful termination was
retaliation. The respondents' counsel made no statement
indicating a contrary belief. Thus, this is not a case where a
claim not raised by the pleadings was tried by consent, as Sims
and the commission contend. See Highland Tap of Boston, Inc.,
33 Mass. App. Ct. at 571 (notice inadequate where licensee
"could properly assume [from it] that the hearing would be
concerned with alleged violations related to mismanagement of
the premises," and "[a]t the hearing, [licensee's] attorney
expressed his understanding that the proceedings were to be
limited to such questions"). Cf. Boston, 47 Mass. App. Ct. at
820 (issue not raised by pleadings tried by consent where
employer's counsel observed at hearing that "complaint had not
13
been amended, but did not request, as he could have, additional
time to address the . . . issue").
Citing its mandate to eradicate employment discrimination,
the commission argues that it was within its authority to find
that Sims's termination was racially motivated -- even if Sims
himself did not raise that claim -- because the "MCAD process
allows the Commission to follow where the facts lead it." The
problem with this argument is that the commission never
exercised its authority to define the issues to be decided at
the public hearing. Although the regulations allow amendments
to a complaint "by the Investigating Commissioner at any time
prior to" certifying the matter to a hearing, 804 Code Mass.
Regs. § 1.10(6)(b) (1999), at no point did the investigating
commissioner here amend Sims's complaint to include additional
allegations of discriminatory practices.9 Furthermore, despite
the seemingly mandatory language of 804 Code Mass. Regs.
§ 1.20(3) (2004), the investigating commissioner did not hold a
certification conference or issue an order identifying the
claims certified to the hearing.10 See Temple Emanuel of Newton
9 The investigating commissioner amended the complaint once
to clarify that Sims was "alleging retaliation for reporting
sexual harassment, but [was] not making a claim of sexual
harassment."
10 The commission represented at oral argument that this was
not unusual, as the certification conference is routinely
waived.
14
v. Massachusetts Comm'n Against Discrimination, 463 Mass. 472,
478 (2012). The hearing officer also did not issue a
certification order, despite the respondents' request that she
do so. Yet, as the regulations provide, the certification order
"constitute[s] the Complaint of the Commission." 804 Code Mass.
Regs. § 1.20(3) (2004). See Sirva Relocation, LLC v. Richie,
794 F.3d 185, 193 (1st Cir. 2015) (certification to public
hearing is "functional equivalent of filing a formal
complaint").
While the commission "is allowed to relax the application
of the regulations where necessary in the interests of justice,"
it must not do so where it would "prejudice[] the substantial
rights of a party." Boston, 47 Mass. App. Ct. at 819 n.6. See
804 Code Mass. Regs. § 1.01 (1999). We grant that there may be
cases where a certification conference and certification order
will not be necessary to protect the substantial rights of the
parties, for instance, where there is no dispute as to the
substance of the claims. But where, as here, neither the
complainant nor the commission has put the respondent on notice
of a claim in advance of the hearing, the prejudice is
manifest.11 The commission's contention that it had the
11To give one example, the hearing officer relied on the
lack of "evidence of white bouncers whose employment was
terminated," noting that, "[w]hile Bennett testified that he had
terminated numerous other employees, he could not specify their
15
authority to amend the certified issues after the presentation
of evidence cannot be squared with the requirements of due
process and the act. See G. L. c. 30A, § 11. Cf. Vaspourakan,
Ltd., 401 Mass. at 354 ("by the time of the de novo hearing
. . . , any defect which might have existed in the notice was
cured, because the licensee had detailed notice of all the facts
supporting the charges . . ."); LaPointe, 389 Mass. at 458(although notice was deficient, "[t]hat deficiency . . . was
cured at the first meeting with the board . . . when [licensee],
with his counsel present, received precise notice of the subject
matter of the proceedings").
Finally, we disagree with Sims's and the commission's
assertions that the respondents' own filings and examination of
the witnesses show that they were on actual notice of a claim of
race-based termination. The portions of the record cited do not
support their assertions. Also, given that Sims indisputably
raised a claim of hostile work environment based on race, it is
hardly noteworthy that the respondents examined the witnesses
about the allegations of race discrimination at the club.12
names, race or color." Putting aside whether this was a proper
allocation of the burdens of proof, the respondents would not
have known of the need to offer such evidence if they were not
on notice that Sims was claiming termination based on race.
12Given our conclusion that notice was inadequate, we need
not address the respondents' arguments that the commission's
16
2. Hostile work environment. The respondents challenge
the commission's resolution of the hostile work environment
claim solely on the basis that it was unsupported by substantial
evidence. Substantial evidence is "such evidence as a
reasonable mind might accept as adequate to support a
conclusion." G. L. c. 30A, § 1 (6). This is a deferential
standard, under which "[a] court may not displace an [agency's]
choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the
matter been before it de novo." Labor Relations Comm'n v.
University Hosp., Inc., 359 Mass. 516, 521 (1971).
To prove a hostile work environment claim, Sims "needed to
establish that the conduct alleged was sufficiently severe and
pervasive to interfere with a reasonable person's work
performance." Muzzy v. Cahillane Motors, Inc., 434 Mass. 409,
411 (2011). See Windross, 71 Mass. App. Ct. at 868-869. "The
point at which a work environment becomes hostile or abusive
does not depend on any 'mathematically precise test.'" Billings
v. Grafton, 515 F.3d 39, 48 (1st Cir. 2008), quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 22 (1993). Rather, the fact
finder must consider the totality of the circumstances, which
"may include the frequency of the discriminatory conduct; its
findings on pretext and lost wages were unsupported by
substantial evidence.
17
severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance." Harris, supra
at 23.
The hearing officer made the following findings: Romano
refused to acknowledge Sims or address him by name, while
greeting the nonblack bouncers by name, shaking their hands, and
talking to them; Romano always stationed Sims outside, sometimes
reassigning him there after Wong had already assigned him to a
different location; Romano told a white bouncer that he did not
want "colored people" using the newer walkie-talkies; Romano
limited the number of Black dancers who could work the night
shift; Sims once heard Romano yell, "[G]et that [B]lack bitch
off the stage right now"; and Romano referred to the Black
dancers as "niggers." While we agree with the respondents that
the finding regarding the walkie-talkie incident was based on
hearsay,13 a reasonable mind could accept the remaining findings
as adequate to support a conclusion that Sims was subjected to a
racially hostile work environment. See Augis Corp. v.
Massachusetts Comm'n Against Discrimination, 75 Mass. App. Ct.
13Sims and the commission raise no argument to the
contrary. Instead, they argue that the commission is not bound
by the rules of evidence and can admit hearsay that has
sufficient indicia of reliability. They fail to explain,
however, why the hearsay was reliable.
18
398, 408-409 (2009) (single instance of supervisor calling
complainant "fucking nigger" sufficient to support liability);
Windross, 71 Mass. App. Ct. at 869-870 (jury could have found
hostile work environment based on evidence that coworkers made
racist comments toward plaintiff and ignored and ridiculed him).
The respondents point out that Romano did not direct some of the
acts at Sims, but the commission could have considered Romano's
harassment of others, known to Sims, as "part of the environment
in which [Sims] worked." Cuddyer v. Stop & Shop Supermkt. Co.,
434 Mass. 521, 541 (2001). Moreover, contrary to the
respondents' contention, that Sims was able to get his work done
despite the harassment did not preclude a finding of liability.
See Billings, 515 F.3d at 51.
Conclusion.14 So much of the amended judgment as affirms
the commission's finding that Sims was unlawfully terminated on
the basis of race and awards attorney's fees and costs is
vacated. The matter shall be remanded to the commission for
redetermination of emotional distress damages and attorney's
fees, both adjusted to reflect that Sims prevailed only on his
claim of hostile work environment. The remainder of the amended
14 Because the award of emotional distress damages was based
in part on the finding of race-based termination, it must be
redetermined on remand. We therefore do not address the
respondents' argument that the award was unsupported by
substantial evidence.
19
judgment, affirming the commission's finding that Sims was
subjected to a racially hostile work environment, is affirmed.
So ordered.