15 LaGrange Street Corp. v. Massachusetts Commission Against Discrimination

NOTICE: All slip opinions and orders are subject to formal

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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.