Melnychenko v. 84 Lumber Co.

Welkins, C.J.

A judge in the Superior Court ruled that Richard Raab, an employee of the defendant corporation at its West Springfield store, engaged in “sexual harassment,” as defined in G. L. c. 151B, § 1 (18), and that it did not matter what Raab’s sexual orientation was or whether Raab intended to have a sexual relationship with any of the plaintiffs, all of whom are male. The principal issue in this case is whether same-sex sexual harassment is prohibited by G. L. c. 151B, § 4 (16A), regardless of the sexual orientation of the parties. We agree with the trial judge that such conduct falls within the statutory definition of sexual harassment, and is, therefore, prohibited by G. L. c. 151B, § 4 (16A). We also consider a cross appeal from that part of the judgment that denied relief from claimed retaliatory conduct of the defendant.³

1. Chapter 15 IB of the General Laws states that it is an unlawful practice for an employer, as defined in G. L. c. 151B, § 1 (5), “to sexually harass any employee.” G. L. c. 151B, § 4 (16A). Sexual harassment as defined in G. L. c. 151B includes “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” which has “the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G.L. c. 151B, § 1 (18) (6).

The judge ruled that Raab’s “revolting and positively outrageous” conduct had the purpose or effect of unreasonably interfering with all three plaintiffs’ work performance by creating an intimidating, hostile, humiliating, and sexually offensive work environment. The judge concluded that Raab engaged in “verbal and physical conduct” of a sexual nature and that his conduct was totally unwelcome by the plaintiffs. The judge’s subsidiary findings of fact, significant portions of which we set forth in the margin,⁴ fully warranted the judge’s ultimate findings.

The defendant argues that the finding that the plaintiffs were sexually harassed was clearly erroneous. The defendant bases its argument on the facts that the plaintiffs continued to “socialize” with Raab and failed to complain of Raab’s conduct, despite complaining about other employment-related events. The judge found, however, that LaRochelle and Melnychenko did complain to the defendant’s area manager and that Quill was afraid of losing his job if he complained. The record does not lead us to the definite and firm conviction that the judge was mistaken in any of his findings. See Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992); Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996).

We come then to the question whether G. L. c. 151B, § 4 (16A), applies to same-sex sexual harassment, even where the perpetrator of the harassment may be a heterosexual. Relying heavily on Federal case law interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1994), the defendant argues that sexual harassment is only actionable as a form of sex discrimination, and that, therefore, the only form of same-sex sexual harassment that is prohibited by G. L. c. 151B is sexual harassment perpetrated by a homosexual. The dissent, sounding the same tune, seems to assume that, if we were to follow Federal law in this case, the result would be different. That is not certain. The Federal authorities are hardly in accord on the issue of same-sex sexual harassment.⁵ In any event, we arrive at our own conclusions in construing our own statute. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995); College Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 163-164 (1987); Massachusetts Elec. Co. v. Massachusetts Comm’n Against Discrimination, 375 Mass. 160, 167 (1978).

It is particularly appropriate for us to reach our own conclusions where, as here, the relevant sections of G. L. c. 15IB differ significantly from Title VII of the Federal act. Of particular importance for the disposition of this issue is the fact that the Legislature specifically defined sexual harassment and, at the same time, codified the prohibition against it. Subsection 18, defining “sexual harassment,” was inserted in G. L. c. 151B, § 1, by St. 1986, c. 588, § 2. Subsection 16A, making an unlawful practice of sexual harassment, was inserted in G. L. c. 151B, § 4, by St. 1986, c. 588, § 3. There is no parallel Federal statutory language. It is under subsection 16A that the trial judge ruled that the defendant had engaged in an unlawful practice.

Sexual harassment as defined in § 1 (18), and prohibited by § 4 (16A), is not limited to conduct of a supervisor aimed at a subordinate of the opposite sex, nor is it limited to same-sex conduct only where the harasser is a homosexual. Rather, any physical or verbal conduct of a sexual nature which is found to interfere unreasonably with an employee’s work performance through the creation of a humiliating or sexually offensive work environment can be sexual harassment under G. L. c. 151B. The judge found that Raab’s conduct fell within the statutory definition and correctly concluded that the plaintiffs were entitled to recover damages as a result.

The dissent is correct in noting that c. 15 IB concerns unlawful discrimination. The Legislature, in language not found in the Federal act, has defined sexual harassment so as to be included within “[discrimination on the basis of sex . . . .” G. L. c. 151B, § 1 (18). Verbal or physical conduct of a sexual nature, even if it does not include “sexual advances” or “requests for sexual favors,” comes within the statutory definition of sexual harassment. Id. Thus, sexual harassment as defined in § 1 (18) is by legislative direction a form of sexual discrimination. Contrary to the dissent’s view, nowhere is discrimination because of a victim’s sex made an essential element of a sexual harassment claim in Massachusetts.⁶

The judge also ruled that Melnychenko and Quill had proved that the defendant had interfered with their right to be free from unreasonable, substantial, or serious interference with privacy, as stated in G. L. c. 214, § IB. To avoid duplicative damages the judge awarded only one dollar to each on this claim. He based his conclusion on the facts set forth in the latter half of paragraph 9 of his findings and quoted in note 4 above. The defendant argues only that it should not be liable because Raab’s conduct in making certain announcements in the workplace about Melnychenko’s and Quill’s sexual conduct was outside the scope of Raab’s employment. There is no merit to this contention. See College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 165-167 (1987). Raab’s misconduct occurred at the defendant’s place of business while he held a supervisory position. There was, moreover, evidence that the defendant received complaints about Raab’s treatment of LaRochelle and Melnychenko.

2." We turn now to Melnychenko’s appeal from the judge’s determination that the defendant is not liable to him for retaliatory conduct forbidden by G. L. c. 15 IB. ⁷ To present the basis of the claim of retaliation, we set forth additional findings by the judge.

In October, 1990, the plaintiff Quill left the defendant’s employment. Shortly thereafter, Quill told Melnychenko that he was going to file a complaint about Raab’s conduct and asked Melnychenko to provide Quill’s attorney with an affidavit concerning events at the defendant’s store. Not long after Melnychenko provided a supporting affidavit, the defendant’s general counsel “asked him to come to the defendant’s corporate headquarters in Pennsylvania and meet with the defendant’s general counsel and chief operating officer. The defendant’s officers expressed disappointment that Melnychenko had given Quill’s attorney an affidavit without telling them because it exposed the company to liability. They told Melnychenko not to speak with either Quill or his attorney. The officers also told Melnychenko “that they would not be able to protect him or to guarantee his physical safety” at the company’s West Springfield store and that he should, therefore, accept reassignment. Melnychenko agreed and reported to the defendant’s Orange Park, Florida, store about one week after the meeting in Pennsylvania. Approximately one month later, Melnychenko wrote a hostile letter to the company’s chief operating officer complaining that the company had not fulfilled certain promises to him.

About the same time, the defendant’s. Florida area manager offered Melnychenko a temporary promotion to the position of merchandising manager because Melnychenko had been doing a good job at the Orange Park store. The area manager told Melnychenko that, when the temporary job was completed, he would be in line for a comanager’s job. Because there were no guarantees, Melnychenko refused the promotion.

Thereafter, the area manager received reports that (a) Melnychenko had been telling other company employees that the general counsel was a liar and that the company had broken its promises to him and (b) Melnychenko was giving a bad impression to customers. The area manager reported these facts to the chief operating officer, who concluded that Melnychenko was never going to be content as long as he worked for the defendant and advised the area manager that Melnychenko’s employment would have to be terminated. The judge made a specific finding concerning Melnychenko’s termination: The defendant “has proven by clear and convincing evidence that Melnychenko was terminated, not in retaliation for his having given the affidavit to Quill’s attorney, but because he had become a disgruntled employee who was openly expressing his negative feelings about [the company] to both customers and fellow employees and therefore was no longer an asset to the company.”

The defendant’s general counsel gave the area manager a written termination agreement and told him to offer Melnychenko $5,000 if he would sign it. That agreement provided that Melnychenko could “not counsel or assist in the prosecution of claims against [the company], whether those claims are on behalf of [Melnychenko] or others, unless [Melnychenko] is under a court order to do so.” The agreement also provided that, “if any inquiries are made concerning [Melnychenko’s] termination . . . [Melnychenko] . . . will respond by indicating . . . that [Melnychenko] . . . was treated fairly by [the company] . . . and that [Melnychenko] has every reason to believe [the company] thinks highly of [Melnychenko].”

The area manager told Melnychenko that “he was being terminated because he was ‘bad mouthing’ the company, and was adversely affecting the morale of store employees. He gave the termination agreement to Melnychenko and offered him $5,000.00 to sign it. Melnychenko read the agreement, and said that he was not sure he could sign because he had already given an affidavit about things that had happened in the West Springfield store. He asked if he could bring the agreement home and show it to others for their advice. [The area manager] responded that he could not, and that he had to make his mind up then and there. Accordingly, Melnychenko refused to sign the agreement, and did not receive the $5,000.00. His employment with [the company] was terminated on that day.”

Melnychenko, in presenting his claim of retaliatory conduct, relies on two definitions of unlawful practices in G. L. c. 15 IB, § 4. Under § 4 (4), it is unlawful for any employer “to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or assisted in any proceeding under [§ 5].” Section 4 (4A) makes it an unlawful practice “[f]or any person to coerce, intimidate, threaten or interfere with another . . . person for having aided or encouraged any other person in the exercise or enjoyment of any . . . right granted or protected by this chapter.” In his ultimate findings and rulings the judge did not distinguish between the two subsections. Indeed, he did not cite § 4 (4).

Melnychenko argues that the company violated § 4 (4) by firing him. He had the burden of proving that the company’s decision to fire him was based on its desire to retaliate against him for assisting Quill or for his complaining about Raab’s conduct. Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995). The judge found that the defendant did not terminate Melnychenko either in retaliation for anything that he did, or to impede or interfere with Quill’s claim. He further found that “Melnychenko was fired because he was openly accusing [the company’s chief operating officer] of being a liar, he had written a highly inappropriate letter to [the chief operating officer], he was adversely affecting the morale of other store employees, and [the chief operating officer] understandably believed that, no matter what else [the company] did for him, Melnychenko was never going to be happy with [the company]. Accordingly, [the chief operating officer], with no input from [the company’s legal counsel], decided that Melnychenko had to be terminated.”

Certainly, these findings present a nondiscriminatory reason for firing Melnychenko. Although there was evidence warranting the conclusion that the firing was retaliatory, that evidence did not compel such a finding. We, therefore, decline to overrule the judge’s conclusion that retaliation was not a determinative factor in Melnychenko’s discharge.

Melnychenko argues further that the defendant violated § 4 (4A) by its treatment of him during and following the meeting in Pennsylvania. At that meeting, two officers of the company complained that Melnychenko had given an affidavit to Quill’s lawyer and told Melnychenko not to talk with Quill or his lawyer about this matter. They said that the company could not protect Melnychenko if he remained employed at the West Springfield store and that he should accept a transfer to another store. Later, in Florida; the company offered Melnychenko $5,000 to sign the termination agreement containing provisions barring Melnychenko from assisting in the prosecution of his own or anyone else’s claim against the company and mandating that he would represent, contrary to his opinion, that he had been well treated by the company.

The judge concluded that the transfer to Florida, to which Melnychenko agreed, was done to remove him from an obviously unworkable situation and to rehabilitate Melnychenko’s career with the company. The judge stated: “I further find that [the general counsel’s] attempt to obtain Melnychenko’s signature on a termination agreement in exchange for $5,000.00 was merely a clumsy and poorly thought out effort to protect [the company] from liability. As misguided as the effort might have been, I do not attribute any sinister or file-gal motives to [the general counsel], and I conclude that it did not constitute a violation of G. L. c. 151B.”⁸

There was evidence that would have warranted a finding that the company attempted to “interfere” with Melnychenko for having aided Quill in the exercise of his rights protected by G. L. c. 151B.⁹ The company was unsuccessful, however, in its attempt to dissuade Melnychenko from helping Quill. Melnychenko did not sign the termination agreement which was certainly designed to interfere with the presentation and adjudication of unfair practices claims under G. L. c. 151B. The company’s instruction to Melnychenko not to speak with Quill or his attorney, and the attempt to obtain a termination agreement from Melnychenko, might have been acts designed “to coerce, intimidate, threaten, or interfere” with Melnychenko for having aided Quill. But these attempts by the defendant sought to control Melnychenko’s future conduct, and the portion of § 4 (4A) on which Melnychenko relies concerns retaliation for past assistance to a person, such as Quill, who is seeking to exercise a right under G. L. c. 151B. Melnychenko makes no showing that the defendant retaliated against him for his past assistance to Quill in a way that caused him more harm than is reflected in the damages already awarded to him. We need not, therefore, consider whether G. L. c. 151B applies to the company’s conduct in dealing with Melnychenko in Pennsylvania and Florida.

3. The judgment is affirmed. Counsel for Melnychenko and Quill are entitled to reasonable attorney’s fees and costs in connection with the defendant’s appeal. See G. L. c. 151B, § 9; Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989). LaRochelle’s brief is verbatim the same as the brief submitted by the other plaintiffs. The question of attorney’s fees and costs for LaRochelle shall be decided by a single justice of this court. Id.

So ordered.

3 We transferred the defendant’s appeal and the cross appeal to this court on our own motion.

4 “9. Melnychenko, Quill and LaRochelle had each worked for 84 Lumber for approximately two weeks when Raab started to harass them. He grabbed all three of them by their genitals, and fondled their buttocks. He squeezed their chests, rubbed them in areas of the body commonly thought private, and touched them ‘everywhere.’ He exposed himself to Melnychenko and Quill on at least three occasions, and asked them to give him a ‘blow job.’ ... He told Melnychenko that if Melnychenko did not give him a ‘blow job,’ he could start looking for other work. He also told other store employees that he and Melnychenko were engaging in sex. On several occasions Raab bear hugged Melnychenko and Quill from behind, and pretended to be having anal intercourse with them. He told other employees that he had been having sex with Quill, and one day he announced over the store public address system that Quill had given him a ‘blow job.’ One day, Quill was suffering from hemorrhoids, and was having a hard time walking. He told Raab about his problem, and asked to be allowed to go home early. Raab refused to allow him to go home. Instead, Raab announced over the store public address system that Quill ‘had been fucked too hard’ on the previous evening. He also kicked Quill on his buttocks on at least four occasions that day, causing Quill considerable pain. In addition, Raab told other employees that he was sexually involved with Quill’s girlfriend, and that she ‘likes it up the ass.’

“10. Another store employee, Eliasel Roque (hereafter ‘Roque’), frequently joined with Raab in these hijinks. He also grabbed, squeezed and rubbed Melnychenko and Quill in private areas of their bodies. On one occasion, Raab exposed himself, and Roque forced Quill’s head to within a foot of Raab’s penis, as if Roque were about to force Quill to perform oral sex on Raab. On most occasions when Roque did these things, Raab was present.

“13. I find that Raab’s actions were not true romantic overtures to the plaintiffs, and that they were not inspired by lust or sexual desire. He did not wish to engage in serious sexual relationships with any of them. In some cases, I find that Raab intended his actions to constitute nothing more than ‘horse play.’ On other occasions, however, I find that Raab was physically violent and sadistic, that he intended to degrade and humiliate the plaintiffs, and that he acted purely out of malevolence and spite; he knew that his actions bothered the plaintiffs greatly, and in several cases he behaved as if he derived pleasure from the plaintiffs’ discomfort. In any event, I find that all of Raab’s physical touchings and sexual innuendos were unwelcome by the plaintiffs, and that his conduct had the effect of unreasonably interfering with the plaintiffs’ work performance by creating an intimidating, hostile, humiliating and sexually offensive work environment.

“15. The sexual harassment of Quill was constant. It began approximately two weeks after he started work, and occurred almost daily. On some occasions, it happened 3 or 4 times in one day. In Melnychenko’s case the harassment started approximately two weeks after he was hired and continued throughout the period that he worked in the West Springfield store. He was harassed approximately 2 times per week. In the case of La-Rochelle, the abuse was much less frequent. It did, however, become more frequent over the course of time.” (Emphasis in original.)

5 Some Federal courts have either explicitly held, or simply assumed, that same-sex harassment claims are permissible under Title VII without reference to the question of sexual orientation. See, e.g., Quick v. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996) (same sex sexual harassment may be actionable under Title VII without regard to sexual orientation of harasser); Morgan v. Massachusetts Gen. Hosp., 901 F.2d 186, 192 (1st Cir. 1990) (assuming male employee had cause of action under Title VII for sexual harassment against male coworker); Tanner v. Prima Donna Resorts, Inc., 919 F. Supp. 351, 354-355 (D. Nev. 1996) (holding that “same-sex sexual harassment claims are actionable under Title VII” as matter of law, and furthermore that “the sexual preference of the harasser is irrelevant to a Title VII claim”); Nogueras v. University of P.R., 890 F. Supp. 60, 63 (D.P.R. 1995) (where female employee alleged that she was harassed by female supervisor and coworker, court simply held that “same-sex harassment is an unlawful employment practice” under Title VII and that “[djefendants’ gender is irrelevant” [emphasis in original]); Polly v. Houston Lighting & Power Co., 825 F. Supp. 135, 137 (S.D. Tex. 1993) (reviewing decisions of other Federal courts, and “assuming, without deciding, that Title VII does apply to sexual harassment of a male by his male coworkers”). See also Cummings v. Koehnen, 556 N.W.2d 586, 590 (Minn. Ct. App. 1996) (Minnesota Human Rights Act “prohibits unwelcome verbal or physical conduct or communication of a sexual nature that creates an intimidating, hostile, or offensive work environment, without regard to the harasser’s or victim’s gender or sexual orientation”).

Other Federal courts have barred all same-sex sexual harassment claims under Title VII, while some have permitted these claims where the claimant can demonstrate that the alleged harasser is a homosexual. Compare Oncale v. Sundowner Offshore Servs., Inc., 83 F.3d 118, 120 (5th Cir. 1996) (same-sex harassment never actionable under Title VII), cert. denied, 117 S. Ct. 2508 (1996) and Garcia v. Elf Atochem N. Am., 28 F.3d 446, 451-452 (5th Cir. 1994), with Wrightson v. Pizza Hut of Am., 99 F.3d 138, 141 (4th Cir. 1996) (“claim under Title VII for same-sex ‘hostile work environment’ harassment may lie where the perpetrator of the sexual harassment is homosexual”).

6 In Smith v. Brimfield Precision, Inc., 17 M.D.L.R. 1089 (1995), a commissioner of the Massachusetts Commission Against Discrimination stated that:

“It is of significant import that G. L. [c.] 151B, §§ 1 (18) and 4 (16 A) define and prohibit sexual harassment in the workplace without reference or regard to gender. These provisions exist in addition to the prohibitions of sex discrimination outlined in G. L. [c. 151B, § ] 4 (1). Given the above, I find it consistent with the language and intent of the statute to find that a claim of same-gender harassment will lie under G. L. [c.] 151B.” (Emphasis supplied.)

Id. at 1096. In arriving at this conclusion in a case factually comparable to the one before us, the commissioner noted the disagreement among the Federal courts on this issue, and ruled that to exclude same-sex harassment from the protection of c. 151B would be “unduly restrictive.” Id.

7 Quill also appealed from this ruling. Because Quill had already left the company’s employment when the alleged retaliation against Melnychenko occurred and he makes no showing that his case was adversely affected by the alleged retaliation, his appeal lacks merit.

LaRochelle’s brief presents the same issue. He did not cross-appeal, and his brief makes no attempt to explain how he was harmed by any alleged retaliation against Melnychenko.

8 Section 4 (4A) does not require proof of either a sinister or an illegal motive.

9 Melnychenko does not rely on G. L. c. 151B, § 4 (5), concerning, in part, an employer’s attempt to abet or compel the doing of an act forbidden by G. L. c. 15 IB.