Petition for Writ of Certiorari — Wilfert Bros. Realty Co. v. Massachusetts Commission Against Discrimination

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/ Supreme Court, U.S.

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No. Q4 315 SEP - 1 2004

INTHE OFFICE OF THE CLERK

Supreme Court of the Anited States

WILFERT BROTHERS REALTY COMPANY, ETAL.,

Petitioners,

MASSACHUSETTS COMMISSION

AGAINST DISCRIMINATION, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL

COURT OF THE COMMONWEALTH OF MASSACHUSETTS

JOINT PETITION FOR WRIT OF CERTIORARI

ALBERT F. CULLEN, JR. WALTER M. FOSTER

30 Massachusetts Avenue Counsel of Record

North Andover, MA 01845 SARAH E. LENT

(978) 794-5658 SMITH & DUGGAN LLP

Lincoln North

BERNARD HAMILL 55 Old Bedford Road

36 Miller Stile Road Lincoln, MA 01773

Quincy, MA 02169 (617) 228-4400

(617) 479-4300

Counsel for Petitioners

Date: September 1, 2004

cae x ARERR

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

QUESTION PRESENTED

Under the Massachusetts Fair Employment

Practices Act, Mass. Gen. Laws ch. 151B, employees

may remove their claims of employment

discrimination to court and obtain a jury trial, but

employers defending against such claims have no

corresponding right. In 1997, the Massachusetts

Supreme Judicial Court held that this inequity

violated the Equal Protection Clause of the Fourteenth

Amendment, but eaclier this year, in the decision

below, the court reversed itself. The question

presented for review is:

Does a state statute that permits employees

claiming employment discrimination, but not

employers accused of such discrimination, to remove

the case to state court for a jury trial violate the Equal

Protection Clause of the Fourteenth Amendment?

PARTIES TO THE PROCEEDING

Petitioners (appellants below) are Wilfert Brothers

Realty Company, Keyland Corporation, John Kheary

and the Massachusetts Bay Transportation Authority.

Respondents (appellees below) are the

Massachusetts Commission Against Discrimination,

David Keeling, Brenda Raffurty and Geraldine Ross.

Stonehill College and Soo Tang Tan were parties

below, but are neither petitioners, nor respondents on

this petition.

STATEMENT PURSUANT TO RULE 29.6

Petitioner Wilfert Brothers Realty Company has no

parent company, and no publicly held corporation

holds 10% or more of its stock.

Petitioner Keyland Corporation has no parent

company, and no publicly held corporation holds 10%

or more of its stock.

Petitioner Massachusetts Bay Transportation

Authority is a body politic and corporate and a

political subdivision of the Commonwealth of

Massachusetts. Mass. Gen. Laws ch. 161A, § 2. The

disclosure requirements of Rule 29.6 are, therefore,

inapplicable to it.

QUESTION PRESENTED

TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

Statutory Context and Interpretive

III GioscneinbakinkasdiacinbetoiiuniiiSens

The Four Underlying Cases ..............

Supreme Judicial Court

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This Court Should Resolve The

Split Between Several Highest

State Courts Concerning The

Deprivation Of Fundamental Jury

Trial Rights Guaranteed By The

Fourteenth Amendment ...................

TOTES E EEE SEES

SPH HEHEHE ETEEE HEHE EEE EEE EEE EEE EEE EES

II. Permitting Employees, But Not

Employers, To Remove Claims Of

Discrimination To Court For A

Jury Trial Violates The Equal

Protection Clause Of The Federal

I 0 ce adeivuassamsbauadiol 16

III. The Federal Question Is Properly

i 18

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SETTERS CTE aE eee PH Se NE MAT Foor la

TABLE OF AUTHORITIES

CASES:

Bishop Coal Co. v. Slayers, 380 S.E.2d 238

FE. HII . aniscddksnnsshiedianniiohshakniasinamannbaians i4n

Continental Title Co. v. District Court In and For

City and County of Denver, 645 P.2d

Da Ge ROE ‘<cinsisdsinendsbicndncianhecubeseoens 14n

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ..... 20n

Dalis v. Buyer Adver., Inc., 418 Mass. 220

PIEPTED dnicenenhctunctsaxekaatsenedanbenesseeniaieiaial passim

Franklin Lodge of Elks v. Marcoux, 825 A.2d 480

SPs SEE nrisssdidchietinbiduinsninaiibetiastiovsinbnuate 14n

FUD’s Inc. v. Rhode Island, 727 A.2d 692 (R.I.

UNTTE. UvasesteséansDinssedsdcieensensusmiansaamanbbaddnsadicosaias 12

Dk DANTE RY

Gallagher v. Wilton Enters., Inc., 962 F.2d 120

EG Gils UNE cceascshcosednaininbenatdelaateniiaanmanale 15

Gipson v. KAS Snacktime Co., 83 F.3d 225 (8th

Sins, FUPUEE sdsnuiansticsiscansndinannmeasonaplackianiaa 15

Great Northern R.R. Co. v. Sunburst Oil &

a Ca, TET OB: Be scitsticsnsisnisasssictenden 19

Kentucky Human Rights Comm’n v. Fraser, 625

We Ee Gs DOMED cccdguencasschdathaininicehaas 14n

Lavelle v. Massachusetts Comm’n Against

Discrimination, 426 Mass. 332 (1997) ... passim

Lunding v. New York Tax Appeals Tribunal, 522

SA MD CRUD sndskcinnbucicanindchibianieuctebediaieuns 14

MacCormack v. Boston Edison Co., 423 Mass.

GS CR UOUED ckcckensiticesarscniatassndiasd mean 4

New York & Massachusetts Motor Serv., Inc. v.

Massachusetts Comm ’n Against

Discrimination, 401 Mass. 566 (1988) ........ 17n

North Dakota State Bd. of Pharmacy v._Snyder’s

Drug Stores, Inc., 414 U.S. 156 (1973) ........ 20n

Panama R.R. v. Johnson, 264 U.S. 375 (1924)

Plasti-Line Inc. v. Tennessee Human Rights

Comm’n, 746 S.W.2d 691 (Tenn. 1988) ........ 14

Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74

ERTMEEED sacsscnssinshnncecsnabnetantanpuacemaasigmamttinaaaae 19

: vi

State ex rel. Diehl v. O’Malley, 95 S.W.3d 82

SED, GID ccnnccsedacscbnesunieiscdadaaneeienumeeiniaets 13

Stonehill Coll. v. Massachusetts Comm’n Against

Discrimination, 441 Mass. 549 (2004)

sonccccoseseusesucscensussbiepeessunetonnneeeibanioaseeneseioule passim

Three Affiliated Tribes v. Wold Eng’g, P.C.,

GGT UB. 16S LASSE civiictitimnnminennininn 18

Univ. of Tennessee of Chattanooga v. Farrow,

No. 00-02386, 2001 Tenn. App. LEXIS

615, at *14 (Tenn. Ct. App. Aug. 16,

ED coccccecccnccccccesestevesesesecsuessensanenmnanieaaaeiens 14

Whalen v. NYNEX Info. Res. Co.,

SED WERGD. TIe CRUD cescccccssinessticsicocmctsbinenn 4

Wynn & Wynn P.C. v. Mass. Comm’n Against

Discrimination, 431 Mass 655 (2000) ........... 19

CONSTITUTIONAL PROVISIONS, STATUTES AND

RULES:

United States Constitution

Seventh Amendment ...................... 13, 14n, 15

Fourteenth Amendment ................0.00000 passim

Massachusetts Declaration of Rights

vii

United States Code

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Br Gas UE IIIT ‘Scnistsnunetdesentcnessenadinaseneen 15n

TD as Te EI ctvcncncesecesncsssnnssonsoanss 15n

42 U.S.C. B DOOD SBOE ...cccccoccsscccccccscccsces 15n

SE TR Bee 15n

Massachusetts General Laws

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WEN TE OO cecdeecttnnieciatdiskiadiaieaman . 17n

Gis Bae snetcbatinnscnbicniscinssnsctdinettantenensania passim

ie RRs EOD sanincibshctiscninendntnaencenneasteniite 3,4

Gla. IGIB, BS CAOGM) ...cccccccosccccee 2, 3,6, 10, 17

eg een passim

PETITION FOR WRIT OF CERTIORARI

Wilfert Brothers Realty Company, Keyland

Corporation, John Kheary and the Massachusetts Bay

Transportation Authority respectfully petition for a

writ of certiorari to review the judgment of the

Massachusetts Supreme Judicial Court.

OPINIONS BELOW

The opinion of the Supreme Judicial Court is

reported at 441 Mass. 549 (2004) and is reprinted at

A. la. The order of the Supreme Judicial Court

denying the petition for rehearing en banc is

unreported and is reprinted at A. 65a. The-Opinion of

the Single Justice of the Massachusetts Appeals Court

granting interlocutory appeal in Stonehill Coll. v.

Massachusetts Comm’n Against Discrimination is

unreported and is reprinted at A. 79a. The Superior

Court Report of Interlocutory Order of Wilfert Bros.

Realty Co. v. Massachusetts. Comm’n Against

Discrimination is unreported and is reprinted at

A. 85a. The Superior Court Report of Interlocutory

Order of Keyland Corp. v. Massachusetts Comm’n

Against Discrimination is unreported and is reprinted

at A. 88a. The Superior Court Report of Interlocutory

Order of Massachusetts Bay Transp. Auth. v.

Massachusetts Comm’n Against Discrimination is

unreported and is reprinted at A. 92a.

JURISDICTION

The judgment of the Supreme Judicial Court was

entered on May 6, 2004, and a petition for rehearing

was denied by the Supreme Judicial Court on June 3,

2004. A. 65a. The jurisdiction of this Court is -

invoked under 28 U.S.C. § 1257(a) (2000).

is iii aii ae ia

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Equal Protection Clause of Section i of the

Fourteenth Amendment to the United States

Constitution provides in relevant part: “No State shall

. . deny to any person within its jurisdiction the

equal protection of the laws.”

Relevant provisions of Mass. Gen. Laws, ch. 151B,

§§ 5 and 9 are reprinted at A. 67a-78a.

STATEMENT OF THE CASE

The Massachusetts employment discrimination law,

Mass. Gen. Laws ch. 151B, provides that employees

may remove their claims of employment

discrimination from the Massachusetts Commission

Against Discrimination (“MCAD”) to the Superior

Court, where they have a state constitutional right to

a jury trial, but makes no corresponding provision for

employers. See Mass. Gen. Laws ch. 151B, § 9 (2002);

A. 76a-78a.

In 1997, the Supreme Judicial Court expressly

relied upon federal constitutional law in holding that

employers have an equal protection right to a cognate

removal provision. Lavelle v. Massachusetts Comm’n

Against Discrimination, 426 Mass. 332, 337 (1997);

A. 10la-112a. In the decision below, however, the

Supreme Judicial Court reversed itself and held that

employers no longer have an equal protection right to

removal for a jury trial; A. 17a. In so doing, the

Supreme Judicial Court a fortiori interpreted the

federal constitution. Petitioners are employers seeking

to vindicate their state constitutional right to a jury

trial under federal equal protection principles.

A. Statutory Context and Interpretive

Background

Chapter 151B requires employees who maintain

that they have been discriminated against in

employment in violation of Mass. Gen. Laws ch. 151B,

§ 4, to bring their claims in the MCAD, an

administrative agency established by the

Commonwealth to hear and decide such claims.

Mass. Gen. Laws ch. 151B, § 5 (2002). A. 672-75a.

After a claim has been at the MCAD for 90 days, ~

however, an employee — but not an employer charged

I enh Se I a aa

;

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4 |

with discrimination — has the right to remove the

claim to the Superior Court. Mass. Gen. Laws ch.

151B, § 9 (2002). A. 76a-78a.

In 1994, the Supreme Judicial Court held that

employees seeking damages on the basis of a claim of

sex discrimination who exercised this removal right

were entitled to a jury trial in the Superior Court

“under art. 15 of the Massachusetts Declaration of

Rights. See Dalis v. Buyer Adver., Inc., 418 Mass. 220,

223 (1994). The court extended this principle to

claims of disability discrimination in Whalen v. NYNEX

Info. Res. Co., 419 Mass. 792, 795 (1995), and to

claims based upon all other bases of discrimination

under Mass. Gen. Laws ch. 151B, § 4, in MacCormack

v. Boston Edison Co., 423 Mass. 652, 655 (1996).

Under art. 15 of the Declaration of Rights of the

- Massachusetts Constitution, the parties in all

controversies concerning property, and in all suits

between two or more persons, have a right to a jury

trial which “shall be held sacred. .. .” Mass. CONST.

art. XV.

Four years after Dalis, an employer who had been

named as a respondent in a complaint of sex

discrimination filed with the MCAD brought an action

in the Superior Court, asserting a reciprocal jury trial

right based upon the Equal Protection Clause of the

Fourteenth Amendment. See A. 106a. The Supreme

Jadicial Court agreed and concluded that the

Fourteenth Amendment requires that:

If one side to a dispute has a

constitutional right to a jury trial,

generally the other side must have a

similar right. We are dealing here with a

fundamental right (art. 15 says the right

is sacred), and differing treatment of

complainants and respondents in respect

to the availability of that fundamental

right . . . cannot be justified.

(footnote omitted) A. 108a.

The court accordingly held that after a final

decision by the MCAD, employers have a right to

remove an administrative claim of discrimination to

Superior Court and to claim a jury trial. A. 109a.

While vindicating employers’ equal protection rights to

a jury trial, this remedy deferred to the legislative

scheme by postponing employers’ exercise of their jury

trial rights until after completion of the MCAD

process, thus permitting conciliation efforts and

administrative hearings prior to removal. See A. 109a.

In the seven years since Lavelle employers have

been requesting jury trials under the procedural

structure set forth by the court in Lavelle, and the

trial courts have been addressing a number of

procedural questions surrounding implementation of

that decision relative to the filing of the complaint, the

admissibility of the administrative decision in a de

novo proceeding, and other evidentiary issues at the

trial. These practical questions ultimately led to the

four cases below being reported to the Appeals Court

and the Supreme Judicial Court’s granting direct

appellate review and then pairing the appeals for

purposes of oral argument.

Initially, each of the four cases proceeded to the

Supreme Judicial Court on its own track. Following

oral argument in the first of the cases, however, the

Supreme Judicial Court invited the parties in all four

pending cases and any other interested parties to

submit briefs concerning the correctness of the court’s

earlier decision in Dalis v. Buyer Adver., Inc., 418

Mass. 220, that art. 15 of the Declaration of Rights of

the Massachusetts Constitution entitles employees in

employment discrimination cases to a jury trial. See

A. 58a. As the Supreme Judicial Court later explicitly

recognized in its decision on the merits, “[n]ecessarily

contained in that request was a corollary issue calling

for the parties and interested parties also to express

views on the subsequent extension of the Dalis

holding, in Lavelle, [| ] to respondents in administrative

proceedings before the MCAD pursuant to Mass. Gen.

Laws ch. 151B, § 5 [based upon the Fourteenth

Amendment of the United States Constitution].”

A. 4a. Numerous interested parties responded to the

court’s invitation and filed memoranda on various

principles at issue in the Dalis and Lavelle decisions,

focusing in large part upon possible practical

modifications to the procedure that Lavelle had

established.

B. The Four Underlying Cases

The following four cases were paired for the

argument by the Supreme Judicial Court.

Wilfert Brothers Realty Co. v. Massachusetts

Comm’n Against Discrimination and David

Keeling

In 1993, David Keeling filed a complaint for

disability discrimination with the MCAD alleging that

he was unlawfully terminated by Wilfert Brothers

Realty Company (“Wilfert Bros.”). After an

administrative hearing, the MCAD entered a decision

against Wilfert Bros. and awarded Keeling $1,450 in

lost wages and $35,000 in emotional distress

damages. Wilfert Bros. petitioned for review to the full

commission and notified the MCAD and Keeling of its

intention to seek a jury trial under Lavelle. The full

commission affirmed the decision. Wilfert Bros. then

filed a complaint in the Superior Court, requesting a

de novo jury trial or, alternatively, judicial review of

the final MCAD decision pursuant to the state

Administrative Procedure Act, Mass. Gen. Laws ch.

30A. The trial court denied motions by the MCAD and

Keeling to strike the claim for a jury trial and,

pursuant to Mass. R. Civ. P. 64, reported the following

question to the Appeals Court:

Did Wilfert Bros. Realty Co. waive its

right to a jury trial by not asserting its

claim until after the decision of the

MCAD hearing officer, but before the Full

Commission affirmed that decision,

when the decision was issued more than

three years after the claim arose?

A. 86a-87a. The Supreme Judicial Court granted

Wilfert Bros.’ application for direct appellate review.

Keyland Corp. and John Kheary v. Massachusetts

Comm’n Against Discrimination and Brenda

Raffurty

In 1994, Brenda Raffurty filed a claim with the

MCAD against Keyland Corporation and John Kheary

(together, “Keyland”) alleging that she was subjected

to sexual harassment in violation of Mass. Gen. Laws

ch. 151B. After an administrative hearing, the MCAD

entered a decision against Keyland and awarded

Raffurty $100,000 in emotional distress damages.

Keyland petitioned for review to the full commission

and notified the MCAD and Raffurty of its intention to

seek a jury trial. The full commission affirmed the

decision. Keyland then filed a complaint in the

Superior Court, requesting a de novo jury trial or,

alternatively, judicial review of the final MCAD

decision pursuant to Mass. Gen. Laws ch. 30A.

Following a decision on numerous procedural motions

relating to the jury trial of the case, the trial court,

pursuant to Mass. R. Civ. P. 64, reported the

correctness of its decision to the Appeals Court. |

A. 88a. The Supreme Judicial Court granted the

MCAD’s and Raffurty’s application for direct appellate

review. ia {

Massachusetts Bay Transp. Auth. v.

Massachusetts Comm’n Against Discrimination

and Geraldine Ross

In 1994, Geraldine Ross filed a claim with the

MCAD against the Massachusetts Bay Transportation

Authority (“MBTA”) alleging disability discrimination.

After an administrative hearing, the MCAD entered a

decision against the MBTA and awarded Ross $81,000

in lost wages and $50,000 in emotional distress

damages. The full commission affirmed the decision.

The MBTA then filed a complaint in the United States

District Court for the District of Massachusetts

because Ross had alleged a federal claim under the

Americans with Disabilities Act (“ADA”). After the

Chief Judge of the District Court, in open court, stated

his intention to certify the question of the MBTA’s

right to a jury trial to the Supreme Judicial Court,

Ross’s counsel waived all federal claims which

_ resulted in the immediate dismissal of the case due to

lack of federal jurisdiction over the remaining state

law claims. The MBTA filed a complaint in Superior

Court requesting a de novo jury trial or, alternatively,

judicial review of the final MCAD decision pursuant to

Mass. Gen. Laws ch. 30A. The trial court judge

granted the MCAD’s and Ross’s motion to dismiss the

jury trial claim on the limited ground that the MBTA

was a governmental entity not entitled to a jury trial

based upon dicta set forth in footnote eight of Lavelle,

Se ee Bi _

but simultaneously, pursuant to Mass. R. Civ. P. 64,

reported the following question to the Appeals Court:

In a proceeding under Mass. Gen. Laws

ch. 151B, does a _ governmental

respondent like the MBTA have a right to

trial by jury when the complainant does

not elect a judicial determination of her

claim?

A. 93a. The Supreme Judicial Court granted the

MBTA’s application for direct appellate review.

Stonehill Coll. v. Massachusetts Comm’n Against

Discrimination and Soo Tang Tan

In 1995, Soo Tang Tan, a professor of mathematics

at Stonehill College (“Stonehill”), filed a complaint with

the MCAD alleging that Stonehill discriminated

against him on the basis of race and color. After an

administrative hearing, the MCAD found against

Stonehill and awarded Soo Tang Tan $94,387 in back

pay, an undetermined amount of front pay and

$150,000 in emotional distress damages. The full

commission affirmed the decision. Stonehill then filed

a complaint in the Superior Court requesting judicial

review of the final MCAD decision and, should its

administrative appeal be unsuccessful, a de novo jury

trial. The Superior Court denied Soo Tang Tan’s

motion to dismiss Stonehill’s de novo jury trial claim,

but ordered Stonehill to elect within 30 days to pursue

a jury trial or an administrative review. A single

justice of the Appeals Court granted Stonehill leave to

pursue an interlocutory appeal of that order, A. 79a,

and the Supreme Judicial Court granted Stonehill’s

application for direct appellate review.

Cc. Supreme Judicial Court Proceedings

In October of 2003, the Supreme Judicial Court,

sua sponte, issued an order requesting the parties in

all four pending cases and any other interested parties

to submit briefs addressing “various issues raised by

the parties as well as the additional question, not

raised by the parties, whether Dalis v. Buyer Adver.,

Inc., 418 Mass. 220 (1994) was correctly decided.”

A. 58a.

The court paired all four cases for oral argument

and received numerous briefs from the parties and

amici — none of whom argued that Dalis should be

overturned.

In the decision below, the Supreme Judicial Court

concluded that Dalis correctly held that employees

who removed their claims to Superior Court were

entitled to a jury trial under the state constitution;

however, a majority of the court found that Dalis “does

not require, as a matter of State constitutional law,

the result reached by this court in Lavelle.” Stonehill

Coll. v. Massachusetts Comm’n Against Discrimination,

441 Mass. 549, 552 (2004); A. 5a. This statement, of

course, overlooked the fact that Lavelle had been

decided as a matter of federal, not State,

constitutional law. A. 106a. The court then revisited

the equal protection question, and concluded that

Lavelle’s analysis had failed to recognize the statutory

distinction between the administrative proceedings

that take place under the statute if the employee does

not remove the case, see Mass. Gen. Laws ch. 151B,

§ 5 (2002), and the judicial proceedings, including the

constitutional right to a trial by jury, that instead take

place if the employee removes the case to Superior

Court, see Mass. Gen. Laws ch. 151B, § 9 (2002).

A. 16-17a. Accordingly, the court held, “the jury trial

holding in Lavelle should be overruled.” A. 17a.

) SS

Justice Cowin dissenting, concluded that overruling

Lavelle, while preserving Dalis, reinstated an

“unconstitutional asymmetry” that treats employees

and their employers unequally. A. 5la.

Petitioners to this Court then filed a petition for

rehearing, specifically requesting that the court

reconsider the federal constitutional rights of

employers as a basis for reversing itself. A. 59a. The

petition urged the Supreme Judicial Court to uphold

Lavelle, because the majority opinion failed to

expressly address the Fourteenth Amendment

analysis that originally formed the basis of Lavelle’s

recognition that employers must have the same right

to remove a claim to court for a jury trial as the

statute gives to employees. The court summarily

denied the petition for rehearing. A. 65a.

REASONS FOR GRANTING THE WRIT

I. This Court Should Resolve The _ Split

Between Several Highest State Courts

Concerning The Deprivation Of Fundamental

Jury Trial Rights Guaranteed By The

Fourteenth Amendment

The decision by the Supreme Judicial Court

reversing its prior decision in Lavelle creates an active

split between several highest state courts and

warrants this Court’s superintendence and guidance.

There is an ever-deepening divide between the highest

courts of various states concerning equal protection

jury trial rights of employers under state anti-

discrimination statutes which contain a one-sided opt-

out or bypass provision from the reviewing state

administrative agency. Stonehill epitomizes the need

for federal court guidance where many state courts

are struggling with the issue of whether the Equal

Protection Clause of the Fourteenth Amendment

requires equal availability of jury trial nghts to

employees claiming discrimination and to employers

accused of discrimination.

Essentially, the divide separates the highest courts

of Hawaii and Rhode Island, which recognize that

employers must be provided a jury trial under their

respective Fair Employment Practices Acts if a similar

fundamental right is given to employees, from the

highest courts of Massachusetts (post-Stonehill),

Missouri and Tennessee, which have found ways to

justify asymmetric jury trial rights.

For instance, the Hawaii Supreme Court recently

held that the Hawaii anti-discrimination statute which

provides employees before the state administrative

agency, but not employers, the option of pursuing

their claims in a court of law violates employers’

constitutional jury trial rights. SCI Mgt. Corp. v. Sims,

71 P.3d 389, 401-03 (Haw. 2003). Specifically relying

upon and adopting the Fourteenth Amendment

analysis set forth in Lavelle, the Hawaii court

concluded that an employer before the Human Rights

Commission was entitled to a jury trial with respect to

claims that seek traditional forms of legal relief in light

of the fundamental nature of the right to a jury tnal.

SCI Mgt. Corp., 71 P.3d at 402-03.

Similarly, the Rhode Island Supreme Court

concluded that the procedure provided in Rhode

Island’s Fair Employment Practices Act for resolving

employment discrimination charges was unconstitu-

tional because it deprived employers the right to elect

either a hearing before the commission or a jury trial

in the Superior Court, while granting this same right

to employees. FUD’s Inc. v. Rhode Island, 727 A.2d

692, 697-98 (R.I. 1999). Like Massachusetts and

Hawaii, the Rhode Island statute permitted only

ee ee ee ere

employees to bypass a hearing before the

administrative commission and to pursue a jury trial,

while denying employers such an option, effectively

precluding employers’ jury trial rights. Jd.!

Massachusetts has the unique distinction of being

on one side of the divide, with Hawaii and Rhode

Island, for the seven years while Lavelle remained

good law, and then helping to create a split which

adds to the results obtained by Missouri and

Tennessee. Ultimately, Missouri and Tennessee allow

the same result as the court below, although neither

state court expressly confronts or rejects federal equal

protection analysis.

Recently, the Missouri Supreme Court relied upon

Seventh Amendment federal case law to hold that jury

trial rights attach to an employment discrimination

claim under its state statute once in court. However,

even though the statute gave employees the right to

remove such cases to court it did not give employers

the right to opt-out of administrative proceedings and,

by implication, deny an employer a right to a trial by

jury. State ex rel. Diehl v. O’Malley, 95 S.W.3d 82, 89-

90 (Mo. 2003). The Missouri Supreme Court did not

expressly rest its decision on any federal equal

protection argument.

Likewise, two decisions of Tennessee courts, when

considered together, result in a similar disparity. Yet

the Tennessee courts’ decisions do not consider a

federal equal protection challenge either. Recently,

the Tennessee Appeals Court recognized that

employees who bring claims of discrimination,

pursuant to the Tennessee Human Rights Act, in state

1 The Rhode Island Legislature subsequently amended the

Rhode Island Fair Employment Practices Act to permit removal by

both parties 20 days after the state agency completes its

investigation. R.I. Gen. Laws § 28-5-24.1(c)(1) (1999).

court are entitled jury trials. Univ. of Tennessee of

Chattanooga v. Farrow, No. 00-02386, 2001 Tenn.

App. LEXIS 615, at *14-17 (Tenn. Ct. App. Aug. 16,

2001). Citing prior Tennessee precedent in Plasti-Line

Inc. v. Terrnessee Human Rights Comm’n, 746 S.W.2d

691, 692 (Tenn. 1988), the Farrow’ court

acknowledged that an employee who elects

administrative relief is not entitled to a jury trial. Id.

at 18.2

This petition presents the opportunity for this Court

to resolve the ever-deepening divide between states’

highest courts having interpreted federal equal

protection guarantees to similar state statutes in

diametrically-opposed ways. This Court’s guidance is

required to ensure uniformity of interpretation and

construction of the federal constitution as it applies to

similar state statutes. See Lunding v. New York Tax

Appeals Tribunal, 522 U.S. 287, 296 (1998); Fuller v.

Oregon, 417 U.S. 40, 42 (1974).

Fhe need for this Court’s guidance is even more

evident when one considers the various federal courts’

2 Many other states have recently addressed the availability of

jury trial rights under their state statutes. See Franklin Lodge of

Elks v. Marcoux, 825 A.2d 480, 489 (N.H. 2003) (merits of

constitutional argument asserting a jury trial right not reached

because issue was not presented below, statute subsequently

amended to permit jury trial by both parties); Bishop Coal Co. uv.

Slayers, 380 S.E.2d 238, 246 (W.Va. 1989) (relying upon Seventh

Amendment analysis and state constitutional provision, state

human rights commission award of money other than limited

incidental damages without a jury held unconstitutional);

Kentucky Human Rights Comm’n v. Fraser, 625 S.W.2d 852, 854

(Ky. 1981) (guided by Seventh Amendment and _§ state

constitutional case law, court found no jury trial right because not

recognized as existing in common law at adoption of state

constitution); and Continental Title Co. v. District Court In and For

City and County of Denver, 645 P.2d 1310, 1316-17 (Colo. 1982)

(no jury trial right under state anti-discrimination statute where

back pay considered integral part of equitable relief).

—

interpretations recognizing jury trial rights under

various States’ discrimination statutes. Several

federal courts have recognized the right to a jury trial

of claims pursuant to various state discrimination

statutes under the Seventh Amendment of the United

States Constitution. Gallagher v. Wilton Enters., Inc.,

962 F.2d 120, 123-24 (lst Cir. 1992) (Seventh

Amendment requires jury trial of claims under

Massachusetts Fair Employment Practices Act); and

Gipson v. KAS Snacktime Co., 83 F.3d 225, 230 (8th

Cir. 1996) (Missouri Human Right Act claims subject

to a jury trial pursuant to Seventh Amendment).

Indeed, employers accused of federal discrimination

claims may have no effective remedy to elect a jury

trial if the state statute traps employers in the

administrative agency even though federal statutes

afford employers a right to a jury trial3 Employees

with state claims of employment discrimination often

assert analogous federal claims and regional Equal

Employment Opportunity Commission offices devolve

initial investigation to the state agencies. If an

employee chooses to remain in the state administra-

tive agency, employers are thereby prohibited from

exercising their fundamental jury trial right in federal

anti-discrimination claims. This Court must ensure

uniformity of interpretation and construction of the

federal constitution as it applies to similar states’

statutes. Absent such uniformity, employers

effectively have a fundamental right without a remedy

to elect that right.

3 For example, the Civil Rights Act of 1991, 42 U.S.C.

§ 198ia(c)(i) provides a right to a jury trial under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(i); for age claims

under the Age Discrimination and Employment Act, 29 U.S.C.

§ 623(a)(i); and disability claims under the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12112(a).

II. Permitting Employees, But Not Employers,

To Remove Claims Of Discrimination To

Court For A Jury Trial Violates The Equal

Protection Clause Of The Federal

Constitution

The equal protection issue in this case is succinctly

described in the vigorous dissent by Justice Cowin as

follows:

[O]verruling Lavelle while preserving

Dalis creates an unconstitutional

asymmetry that empowers plaintiffs

unilaterally to extinguish respondents’

access to a jury trial merely by choosing

under which section of [Mass. Gen. Laws

ch. 151B] to proceed.

A. 5la. The dissent further notes that since parties to

employment discrimination cases are entitled to a trial

by jury under art. 15 of the Massachusetts

Declaration of Rights, “simple fairness” dic.ates that

such a right be extended to all parties, including

employers. A. 56a.

The Supreme Judicial Court reached the correct

conclusion in Lavelle when it extended jury trial rights

to employers based upon Fourteenth Amendment

guarantees. The Lavelle court held that because the

right to a jury trial is a state constitutionally

guaranteed right, employers were denied federal equal

protection of the law by virtue of their inability under

ch. 151B to opt-out of proceedings in the state

administrative agency and to obtain a jury trial on

claims against them seeking legal relief. A. 108a.

Mass. Gen. Laws ch. 151B, § 9 allows only employees

to remove the claim to Superior Court, thereby giving

unilateral control to employees over whether a jury

trial right will be available in any particular case and

depriving employers of any such right.

The decision below posits that the distinction

between procedures afforded by section 5 and section

9 of ch. 151B satisfies the equal protection dilemma.

See A. 16-17a.4 In doing so, however, the court relied

upon Panama R.R. v. Johnson, 264 U.S. 375, 392-93

(1924) which is inapposite even if, for the sake of

argument, jury trial rights with respect to civil

administrative proceedings under § 5 can be

considered separately.5 The decision below, having

imbued the distinction between section 5 and section

9 rights with constitutional significance, should not

have circumvented the implications of that logic with

respect to the legislative scheme that establishes

“private actions” by applying Panama R.R. as if the

employer or the employee in that case had a jury trial

right to begin with.

4 The decision below relied upon an earlier decision, New York

& Massachusetts Motor Serv., Inc. v. Massachusetts Comm’n

Against Discrimination, 401 Mass. 566 (1988) ("Motor Services”).

That case involved federal equal protection analysis, but did not

consider whether recognizing a fundamental right to a jury trial in

ch. 151B controversies would alter that analysis. See Id. at 580-

81. Significantly, Motor Services predatei the determination that

art. 15’s guarantee of a jury trial applies to employment

discrimination cases, and the case was decided without any

acknowledgment of that possibility. As such, Motor Services was

in no position to consider the full implications of the choice

between the section 5 and 9 remedies for violations of section 4 of

ch. 151B, and the court there did not attempt to equate judicial

review under Mass. Gen. Laws ch. 30A, § 14, with a trial on the

merits by a jury of peers.

5 In the dissent, Justice Cowin correctly observes that Panama

Railroad is inapposite because that case did not allow one side of a

legal dispute unilaterally to deprive the opponent of a fundamental

right, “the Johnson Court [ ] addressed the right of injured seamen

to elect alternative measures of redress, but not the substance of

the ‘measure of redress or either form of action.” A. 54a, quoting

Panama Railroad, 264 U.S at 392-93.

}

Accordingly, because this case raises issues

involving a fundamental right guaranteed by the

federal Equal Protection Clause, a right that is the

cornerstone of our judicial system, this Court should

exercise its discretion and grant the Petitioners’ writ of

certiorari.

III. The Federal Question Is Properly Presented

Although the court below states that its earlier

holding in Lavelle was not required “as a matter of

State constitutional law,” A. 5a, without making

express reference to the United States Constitution,

the federal question in this case is properly presented.

First and most fundamentally, even though the

court referred expressly only to “state” constitutional

requirements, the plain and undeniable fact is that

the decision below reversed the court’s prior holding

in Lavelle, a holding that was expressly and

exclusively based upon the equal protection guarantee

of the Fourteenth Amendment. A. 106a. In reversing

Lavelle’s earlier holding that employers have a federal

equal protection right to remove and claim a jury trial,

the court below necessarily held that employers do not

have such a federal equal protection right. See A. 59a.

Second, despite its purported reliance upon state

constitutional law only, the court’s rationale is so

interrelated with and influenced by federal law

principles of equal protection that the court’s decision

necessarily brings a federal dimension to the its

ruling. See Three Affiliated Tribes v. Wold Eng’g, P.C.,

467 U.S. 150, 152 (1984).

Finally, Petitioners took extra steps to preserve the

federal issue by filing a petition for rehearing

specifically addressed to the federal equal protection

rights of employers. A. 59a. In this regard, it is

noteworthy that prior to issuing the decision below,

the Supreme Judicial Court had asked for briefing on

whether Dalis should be overruled, but it had not

asked for briefing on whether Lavelle should be

overruled. See Pruneyard Shopping Ctr. v. Robins, 447

U.S. 74, 85-86 n.9 (1980) (federal claims adequately

presented even though not raised in lower state court

when highest state court renders an unexpected

interpretation of law or reverses its prior decision).

Prior to the decision below, the Supreme Judicial

Court had expressly followed Lavelle on numerous

occasions. Indeed, as recently as June 2000, the

Supreme Judicial Court noted that the right to a jury

trial was “well developed” and that the decision in

Lavelle “was the inevitable jurisprudential step that

followed Dalis.” Wynn & Wynn P.C. v. Mass. Comm’n

Against Discrimination, 431 Mass 655, 663-64 (2000).

Petitioners, therefore, could not have reasonably

expected that the validity of the federal constitutional

basis for Lavelle would be questioned. As such,

Petitioners seized the first opportunity to address the

federal question in a petition for rehearing which the

court summarily denied. See Great Northern R.R. Co.

v. Sunburst Oil & Refining Co., 287 U.S. 358, 366-67

(1932) (jurisdiction even though petition for rehearing

summarily denied without reference to federal

question). In the petition for rehearing, Petitioners

argued that since Lavelle was correct to hold that

employers have Fourteenth Amendment rights to

remove ch. 151B claims to Superior Court and, thus,

to elect a jury trial, the decision below, in reversing

Lavelle, necessarily held that employers have no such

Fourteenth Amendment rights, at least implicitly and

certainly erroneously. See A. 59a. There was no

failure to preserve this issue for this Court’s review. ©

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ALBERT F. CULLEN, JR. WALTER M. FOSTER

30 Massachusetts Avenue Counsel of Record

North Andover, MA 01845 SARAH E. LENT

SMITH & DUGGAN LLP

BERNARD HAMILL Lincoln North

36 Miller Stile Road 55 Old Bedford Road

Quincy, MA 02169 Lincoln, MA 01773

(617) 479-4300 (617) 228-4400

Counsel for Petitioners

Date: September 1, 2004

6 Stonehill is both final and not susceptible to further review,

making it ripe for review by this Court. See Cox Broad. Corp. uv.

Cohn, 420 U.S. 469 (1975); North Dakota State Bd. of Pharmacy v.

Snyder’s Drug Stores, Inc., 414 U.S. 156, 163 (1973).

APPENDIX TABLE OF CONTENTS

APPENDIX A

Stonehill College v. Massachusetts Commission

Against Discrimination, 441 Mass. 549

RED cakscrcnsarccocncceccscenssesesncessensscsssseesccecesence la

APPENDIX B

Massachusetts Bay Transportation Authority v.

Massachusetts Commission Against

Discrimination, SJC-09002 — Order and

Announcement, October 16, 2003 ............. 58a

APPENDIX C

Petitioner’s Petition for Rehearing, May 28,

SUITE ccikisctusbswndnctenssiacavesinnoddenssvnbyncsssscntensncese 59a

APPENDIX D

Massachusetts Bay Transportation Authority v.

Massachusetts Commission Against

Discrimination SJC-09002 —- Denial of

Petition for Rehearing, June 3, 2004 .......... 65a

APPENDIX E

Fourteenth Amendment of the United States

IIE nccerescsscvecccescncsccsccsceseceosenseneces 66a

APPENDIX F

Massachusetts General Laws, c. 151B, §§ 5 and

APPENDIX G

Stonehill College v. Massachusetts Commission

Against Discrimination, Appeals Court

May 8, 2003 Order and Superior Court

Order dated March 20, 2003 .................c000. 79a

APPENDIX H

Wilfert Bros. Realty Co. v. Massachusetts

Commission Against Discrimination,

Superior Court Report of Interlocutory

Order dated April 30, 2003 ........c.ssccesecseeees 85a

APPENDIX I

Keyland Corp. v. Massachusetts Commission

Against Discrimination, Superior Court

Report of Interlocutory Order dated May

Sls STEED. biidnbvnccenniceciegiascuassanmstiaanulanomies 88a

APPENDIX J

Massachusetts Bay Transportation Authority v.

Massachusetts Commission Against

Discrimination, Superior Court

Memorandum of Decision and Report of

Interlocutory Order dated February 19,

SEUUEIEE sda nnsaincapioshnbenidibiininakeuaineapamaiaigeabeniniin 92a

Lavelle v. Massachusetts Commission Against

Discrimination, 425 Mass. 332 (1997) ......

APPENDIX A

441 Mass. pp. 549-661

STONEHILL COLLEGE vs. MASSACHUSETTS COMMISSION

AGAINST DISCRIMINATION & another. !

WILFERT BROTHERS REALTY Co. vs. MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION & another.?

KEYLAND CORPORATION & another? vs. MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION & another.*

MASSACHUSETTS BAY TRANSPORTATION AUTHORITY vs.

MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION &

another.5

Bristol. Middlesex. Dukes. Suffolk. February 3, 2004.

— May 6, 2004.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA,

CowINn, SOSMAN, & CORDY, JJ.

Massachusetts Commission Against Discrimination.

Anti-Discrimination Law, Employment, Race,

Handicap, Sex, Termination of employment.

Employment, Discrimination, Retaliation, Sexual

harassment, Termination. Civil Rights, Termination of

employment. Practice, Civil, Jury trial. Constitutional

Law, Jury, Equal protection of laws, Retroactivity of

judicial holding. Jury and Jurors. Common Law.

Emotional Distress. Damages, Emotional distress.

This court affirmed the correctness of its holding in

Dalis v. Buyer Advertising, Inc., 418 Mass. 220

(1994), that art. 15 of the Massachusetts

Declaration of Rights entitles plaintiffs with sex

1 Soo Tang Tan.

2 David Keeling.

3 John Kheary.

4 Brenda Raffurty.

S Geraldine Ross.

discrimination in employment claims filed in the

Superior Court pursuant to G.L. c. 151B, § 9, toa

trial by jury. [559-561]

This court concluded that respondents who have been

determined by the Massachusetts Commission

Against Discrimination in an _ administrative

proceeding under G.L. c. 151B, § 5, to have

committed discriminatory acts in employment are

entitled to administrative review, under G.L. c. 30A,

of that decision only, overruling in part the decision

in Lavelle v. Massachusetts Commission Against

Discrimination, 426 Mass. 332 (1997), that such

respondents are entitled to a jury trial de novo on

the discrimination claims asserted against them.

[561-570] SOSMAN, J. concurring. CowIN, J.

dissenting.

This court declined to overrule case law allowing

emotional distress damages to be awarded in

employment discrimination cases and _ other

employment cases before the Massachusetts

Commission Against Discrimination [570-575], but

announced that a finding of discrimination or

retaliation, by itself, would no longer be sufficient to

permit an inference of, or a presumption of,

emotional distress [575-577].

CIVIL ACTION commenced in the Superior Court

Department on November 27, 2002.

A motion to dismiss was heard by David A.

McLaughlin, J.

A proceeding for interlocutory review was heard in

the Appeals Court by Charlotte A. Perretta, J. The

Supreme Judicial Court granted an application for

direct appellate review.

CIVIL ACTIONS commenced in the Superior Court

Department on February 27, April 9, and June 25,

2002, respectively.

Questions of law were reported by Peter W. Agnes,

Jr., Charles T. Spurlock, J., and Margaret R. Hinkle, J.

The Supreme Judicial Court granted requests for

direct review.

M. Robert Dushman for Stonehill College.

Robert L. Quinan, Jr., Assistant Attorney General, &

Beverly I. Ward & Steven S. Locke (Wendy A. Cassidy,

J. Lynn Milinazzo-Gaudet, & Simone R. Liebman with

them) for Massachusetts Commission Against

Discrimination.

Nancy S. Shilepsky (Patricia A. Washienko with her)

for Soo Tang Tan.

Robert S. Mantell for David Keeling & another.

Albert F. Cullen, Jr., for Wilfert Brothers Realty

Company.

Amy L. Hanson (James F. Rogers, II, with her) for

Brenda Raffurty.

Bernard J. Hamill (David A. Robinson with him) for

Keyland Corporation & another.

Walter M. Foster (Sarah E. Lent with him) for

Massachusetts Bay Transportation Authority.

The following submitted briefs for amici curiae:

Christine Hughes, Arthur G. Telegen, Anjali Parekh

Prakash, Richard L. Alfred, Sally L. Adams, & James

M. Paulsén for New England Legal Foundation &

others.

Joel P. Suttenberg for Jewish Alliance for Law and

Social Action.

James S. Weliky, Laura M. Unflat, & Robert S.

Mantell for Massachusetts Employment Lawyers

Association.

Anne L. Josephson, Sarah Wunsch, Ellen J. Zucker,

Nadine Cohen, & James S. Weliky for American Civil

Liberties Union of Massachusetts & others.

Thomas F. Reilly, Attorney General, & John E.

Bowman, Jr., Assistant Attorney General, for the

Attorney General.

David A. Robinson for town of Agawam.

Martin J. Rooney for Acushnet Housing Authority &

others.

GREANEY, J. These cases arise under G. L. c. 151B.

In each case, the Massachusetts Commission Against

Discrimination (MCAD oor commission) entered

decisions finding the respondents liable for

employment discrimination: and awarded relief

including damages for emotional distress. The

respondents have sought judicial review of the

MCAD’s decision pursuant to G. L. c. 151B, § 6, in

accordance with standards set forth in G. L. c. 30A, §

14, and also have sought jury trials in the Superior

Court, pursuant to this court’s decision in Lavelle v.

Massachusetts Comm’n Against Discrimination, 426

Mass. 332 (1997) (Lavelle). In three of the cases, a

judge in the Superior Court reported a question or

questions, seeking clarification of various procedural

ané evidentiary issues relating to the respondents’

requests for jury trials. In the fourth case (Stonehill

College -vs. Massachusetts Comm’n _ Against

Discrimination), the respondent appeals from an order

by a judge in the Superior Court directing it to elect

either judicial review under G. L. c. 30A of the MCAD

decision, or a jury trial pursuant to Lavelle, thus

denying the respondent’s right to have both. We

granted applications for direct appellate review and

invited interested parties to submit briefs concerning

an issue not raised by the parties below, the

correctness of this court’s holding in Dalis v. Buyer

Advertising, Inc., 418 Mass. 220, 223 (1994) (Dalis),

that art. 15 of the Declaration of Rights of the

Massachusetts Constitution entitles plaintiffs with sex

discrimination claims filed in the Superior Court

pursuant to G. L. c. 151B, § 9, to a trial by jury.

Necessarily contained in that request was a corollary

issue calling for the parties and interested parties also

to express views on the subsequent extension of the

Dalis holding, in Lavelle, supra, to respondents in

administrative proceedings before the MCAD pursuant

to G. L. c. 151B, § 5 (§ 5 proceedings).

We conclude that Dalis was correctly decided. We

further conclude that the Dalis decision does not

require, as matter of State constitutional law, the

result reached by this court in Lavelle. That result is

problematic, and, for reasons set forth in this opinion,

we conclude that Lavelle must be overruled in part.

Accordingly, as of the date of this opinion,

respondents who have been determined by the

commission in § 5 proceedings to have committed

discriminatory acts in employment in violation of G. L.

c. 151B are entitled to administrative review, under. G.

L. c. 30A, of that decision only. We also conclude that

emotional distress damages should continue to be

awarded by the MCAD in appropriate cases and

comment on various factors that govern such awards.

Stonehill College vs. Massachusetts Commission

Against Discrimination.

On April 27, 1995, Soo Tang Tan, a professor of

mathematics at Stonehill College (Stonehill) filed a

complaint with the MCAD charging Stonehill with

unlawful discrimination based on his race and color in

violation of G. L. c. 151B, § 4 (1). After a public

hearing, an MCAD hearing officer determined that

Stonehill had discriminated against Soo Tang Tan in

violation of G. L. c. 151B, and awarded him back pay,

front pay, and $150,000 in damages for emotional

distress. The commission affirmed the hearing officer’s

decision in all respects. Stonehill then filed a

complaint in the Superior Court seeking judicial

review of the MCAD decision and, should its

administrative appeal be unsuccessful, a jury trial de

novo on the discrimination complaint. A Superior

Court judge denied Soo Tang Tan’s motion to dismiss

the latter but ordered Stonehill to file an election

within thirty days as to its chosen avenue of relief. The

judge reasoned that a respondent appealing from an

unfavorable MCAD decision is entitled to an

administrative appeal or a jury trial de novo, but not

both. A single justice of the Appeals Court granted

Stonehill leave to pursue an interlocutory appeal of

the judge’s order, and this court allowed Stonehill’s

application for direct appellate review.

Wilfert Brothers Realty Co. vs. Massachusetts

Commission Against Discrimination.

On January 20, 1993, David Keeling filed a

complaint with the MCAD alleging that he was

unlawfully terminated by Wilfert Brothers Realty Co.

(Wilfert Brothers) after incurring a knee injury during

the course of his employment. After a public hearing,

an MCAD hearing commissioner entered a decision

finding Wilfert Brothers liable for handicap

discrimination in violation of G. L. c. 151B, § 4. The

commission ordered Wilfert Brothers to pay Keeling

lost wages and $35,000 in emotional distress

damages.® Wilfert Brothers filed a petition for review of

the MCAD decision by the full commission and, at the

same time, served notice to the MCAD and to Keeling

of its intention to seek a jury trial. The MCAD decision

was affirmed by the full commission.’ Wilfert Brothers

then filed a complaint in the Superior Court,

requesting judicial review of the final decision and

order of the MCAD, or, alternatively, requesting a jury

trial on Keeling’s claims of discrimination. A judge in

the Superior Court denied motions filed by the

commission and Keeling to dismiss (or strike) the

claim for a jury trial and reported to the Appeals Court

6 Other relief awarded by the Massachusetts Commission

Against Discrimination (MCAD or commission) against Wilfert

Brothers Realty Co. were orders to cease and desist handicap

discrimination in the workplace and to submit a plan for

antidiscrimination training for its employees.

7 In addition to the relief ordered by the hearing commissioner,

the full commission awarded Keeling attorney’s fees and costs.

the question set forth below. This court allowed

Keeling’s application for direct appellate review.

Keyland Corporation vs. Massachusetts Commission

Against Discrimination.

On November 29, 1994, Brenda Raffurty filed a

claim with the MCAD asserting that Keyland

Corporation and John Kheary (together, Keyland)}

subjected her to sexual harassment in the workplace

in violation of G. L. c. 151B. After a public hearing, an

MCAD hearing commissioner entered a decision in

favor of Raffurty. Orders entered against Keyland

included an order to pay Raffurty $100,000 in

emotional distress damages. Keyland filed a petition

for review by the full commission and notified the

commission and Raffurty of its intention to seek a jury

trial. The full commission affirmed the hearing

commissioner’s decision. Keyland then filed a

complaint in the Superior Court seeking both judicial

review and a jury trial de novo on Raffurty’s

discrimination claims. At a hearing on the MCAD’s

motion that Keyland must elect either judicial review

or ajury trial, Keyland assented to the dismissal of its

claim for judicial review. Subsequent motions and

hearings followed on issues relating to MCAD’s

standing to participate in the case as a party

defendant. In a memorandum of decision and order,

the motion judge addressed numerous procedural

issues raised in the case and ordered that the trial

would be conducted de novo, with the burden on

Raffurty to establish discriminatory conduct on the

part of Keyland and Kheary. The judge further ruled

that the decision of the MCAD would be inadmissible

8 “Did Wilfert Brothers Realty Co. waive its right to a jury trial

by not asserting its claim until after the decision of the MCAD

hearing officer, but before the “ull Commission affirmed that

decision, when the decision was issued more than three years

after the claim arose?”

as prima facie evidence of discrimination in the

proceedings before the jury and that the MCAD would

not be allowed to intervene as a party in the case. The

judge then reported the correctness of his decision to

the Appeals Court,? and we granted Raffurty and the

commission’s application for direct appellate review.

Massachusetts Bay Transportation Authority vs.

Massachusetts Commission Against Discrimination

On May 2, 1994, Geraldine Ross filed a claim with

the MCAD alleging discrimination on the part of her

employer, the Massachusetts Bay Transportation

Authority (MBTA), in violation of G. L. c. 151B, § 4 (16) ©

(handicap).!° After a public hearing, a MCAD hearing

officer entered a decision finding that the MBTA had

failed reasonably to accommodate Ross_ and,

9 The questions reported are 4s follows:

“1. Did Kheary and Keyland waive their right to a jury trial

by not asserting their claim until after the decision of the

MCAD Hearing Officer, but before the Full Commission

affirmed that decision, when the decision was issued more

than three years after the claim arose?

“2. If Kheary and Keyland did not waive their right to a

jury trial, is the trial de novo? Specifically:

“a) Does the defendant (the complainant in [the] previous

MCAD hearing) have the burden of proof?

“b) Is the MCAD’s decision admissible?

“c) Is discovery warranted?

“d) Does the MCAD have a right to intervene?”

10 The original complaint filed with the MCAD alleged that Ross

had been denied the opportunity to obtain a full-time position as a

fare collector on the basis of her sex (female) and her race and

color (African American). The complaint later was amended, by the

MCAD investigating commissioner, to include the claim of

handicap discrimination, and Ross withdrew her claims of sex and

race discrimination at the time of the public hearing on her

claims.

moreover, that the MBTA’s policy of “denying part-

time injured surface line employees the right to ever

become full time employees” arbitrarily discriminated

against an entire category of disabled employees. The

decision was affirmed by the full commission and the

MBTA was ordered to pay Ross lost wages and

emotional distress damages in the amount of $50,000.

The MBTA filed a complaint in the Superior Court,

seeking judicial review of the commission’s decision

and asserting its right to a jury trial. A judge in the

Superior Court concluded that the MBTA, as a

governmental entity, is not entitled to a trial by jury

under either art. 15 or the Lavelle decision and

dismissed that claim. Recognizing that the issue was

one of substantial importance, the judge reported the

question: “In a proceeding under G. L. c. 151B, does a

governmental respondent like the MBTA have a right

to trial by jury when the complainant does not elect a

judicial determination of her claim?”!! We granted the

MBTA’s application for direct appellate review.

1. It will be useful to furnish some legal

background. In Dalis, this court held that art. 15

protects a plaintiffs right to a trial by jury on a claim

of employment discrimination based on sex.!2 This

principle was extended to claims of handicap

11 This court noted, in Lavelle v. Massachusetts Comm’n

Against Discrimination, 426 Mass. 332, 337 n.8 (1997), that “[a]

governmental respondent’s right to a jury trial, if any, has

implicitly been waived in G. L. c. 151B, at least where a

complainant does not elect a judicial determination of her claim.”

The intended scope of this comment has been the focal issue of

the parties in the above case and the subject of numerous briefs of

amici, arguing, on either side, that governmental entities who are

respondents in a § 5 proceeding before the MCAD are, or are not,

entitled to have a jury decide the claims against them.

12 The court further held that the plaintiff was entitled to a jury

trial on her other allegations of violations of G. L. c. 93, § 102

(equal rights act), and G. L. c. 149, §§ 105A-105C (wage

discrimination based on gender), and § 105D (maternity leave act).

See Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 226-228

(1994).

10a

discrimination in Whalen v. NYNEX Info. Resources

Co., 419 Mass. 792, 795 (1995), and to all damage

claims under G. L. c. 151B, § 4, in MacCormack v.

Boston Edison Co., 423 Mass. 652, 655 (1996). The

plaintiff in Dalis filed suit in the Superior Court,

pursuant to G. L. c. 151B, § 9, claiming that her

employer had discharged her because she had become

pregnant and demanding a jury trial. This court

recognized that the plaintiffs sex discrimination claim

was a “suit between two persons which clearly set|]

forth a controversy concerning property” and, thus,

fell “squarely within the language of art. 15.” Id. at

223. The court determined that the plaintiffs claim

was not within art. 15’s exception for claims that had

been addressed by the court’s equity jurisdiction, as it

existed in 1780, in either subject matter or the nature

of the remedy sought, and, instead, analogized the

claim “to common law actions sounding in both tort

and contract.” Id., citing Gallagher v. Wilton Enters.,

Inc., 962 F.2d 120, 122-123 (1st Cir. 1992). -

Four years after Dalis, a respondent named in a

complaint of sex discrimination filed with the MCAD

(Lavelle) brought an action in the Superior Court,

asserting that, based on the principles stated in Dalis,

and on principles of equal protection, he likewise was

entitled to a jury trial. See Lavelle, supra at 333. A

judge in the Superior Court dismissed the complaint

as premature, on the ground that Lavelle had not

exhausted his rights before the commission. On

appeal, however, this court considered the merits of

Lavelle’s claim and concluded that “[t]he reasoning of

this court in its Dalis opinion identifying the

constitutional right of a complainant to have a trial by

jury applies equally to a respondent such as Lavelle. If

one side to a dispute has a constitutional right to a

jury trial, generally the other side must have a similar

right.” Id. at 337.

Having perceived an equal protection infirmity in G.

L. c. 151B, the Lavelle court emphasized the

lla

importance of deference to the statutory scheme

established in G. L. c. 151B, which vests substantial

authority in the commission to decide complaints and

pointedly does not allow a respondent to avoid a full

administrative proceeding by removing a case to the

Superior Court. Accordingly, the court fashioned a

remedy that expanded the removal rights afforded

complainants in § 9 to respondents — albeit

postponed until after the full MCAD proceedings had

ended — “until the Legislature, if it elects to do so,

provides another solution.” Id. at 338. The court

stated:

“A right in a respondent to obtain a jury trial

only after the commission has taken final

action is the best available option. In this way

the commission will be involved in the matter

as fully as possible and as the Legislature

directed. Many disputes will be settied by the

commission and will not need to _ be

adjudicated. Persons representing themselves

will not be forced into unfamiliar court

surroundings but will be heard instead in less

intimidating agency proceedings. Courts, in

turn, will not be unnecessarily inundated with

gender-based discrimination lawsuits

demanded by respondents, perhaps in some

instances for tactical reasons. Also, the

commission may decide in favor of the

respondents on the merits, thereby ending the

matter. G. L. c. 151B, § 9, first par. Moreover,

although the commission may decide in favor of

the complainant, it might only grant traditional

equitable relief. In such a case, a respondent

would have no right to a jury trial. Additionally,

an unsuccessful respondent may conclude that

an appeal based on the agency record (G. L. c.

151B, § 6) provides an adequate avenue of relief

from the agency decision. We adopt this

12a

solution recognizing that it gives certain

respondents two chances to prevail, before the

commission and then in court, while a

complainant unsuccessful before the

commission may not proceed to court for a new

hearing (G. L. c. 151B, § 9, first par.), but may

seek judicial review only on the agency record

(G. L. c. 151B, § 6). We also recognize that there

will be practical problems in extending a jury

trial right to a respondent, including the

preparation ofa complaint to be filed in court ~-

by or on behalf of a complainant. Other

questions may arise concerning the process we

have described, but we decline to anticipate

and answer them now.”!3

Id. at 338-339.

None of the complainants in the four cases under

review elected to bring a private action under G. L. c.

151B, § 9. In each case, after a full § 5 administrative

proceeding, the commission has determined that the

respondent engaged in unlawful discriminatory

employment practices. Various remedial orders,

including orders for the payment of damages for

emotional distress, have been entered against each

respondent. The respondents have each filed a

complaint in the Superior Court seeking to have the

commission’s decision overturned or, alternatively,

seeking a jury trial de novo. Although each case

presents unique issues relative to the respondents’

13 The Lavelle decision did not decide at what point in the

MCAD proceedings a respondent should assert its intention to

request a jury trial but suggested the possibility that “to avoid a

claim of waiver, [Lavelle] must assert [his right to a jury trial]

before the commission holds a hearing on the complaint, perhaps

at the same point in the proceedings that G. L. c. 151B, § 9,

permits a complainant to elect a judicial, rather than a

commission, determination of the complaint.” Lavelle, supra at

335.

eee

13a

asserted rights to a jury trial,!* together the cases call

into question the validity of Dalis, and the

determination in Lavelle that a respondent in a G. L.

c. 151B employment case has a right to a jury trial.

Before deciding the specific points of law raised in

each case, we first consider whether a respondent

who, after a full administrative proceeding has been

determined to have violated the provisions of G. L. c.

151B prohibiting discrimination in employment,

should be entitled to set aside the MCAD decision and

orders entered against them and have the same claims

decided by a jury in the Superior Court. The position

of the respondents on this issue is, essentially,

identical: Dalis and Lavelle were correctly decided, and

the principles established therein entitle each

respondent to a jury trial de novo on _ the

discrimination claims asserted against them. The

position taken by the four complainants and by the

MCAD on this issue is that Dalis was correctly decided

and Lavelle is incorrect and must be overruled in part.

2. There is no flaw in the reasoning or conclusion in

Dalis. Article 15 “preserves ‘the common law trial by

jury in its indispensable characteristics as established

and known at the time the Constitution was adopted’

in 1780.” Department of Revenue v. Jarvenpaa, 404

Mass. 177, 185-186 (1989), quoting Opinion of the

Justices, 237 Mass. 591, 596 (1921). “The common

law to which the Justices were referring in their 1921

opinion was not only the common law (judge-made

14 One common issue raised in each case below is whether the

respondents, by waiting to request a jury trial until after the

public hearing and the entry of the commission’s decision in favor

of the complainant, have waived their asserted rights to a jury

trial. See note 13, supra. See also note 23, infra. The commission

subsequently addressed this issue by regulation, see 804 Code

Mass. Regs. § 1.20 (5) (1999) (providing that the right to jury trial

must be preserved “in writing, and provided to the Commission

and the Complainant within 30 days after Certification to Public

Hearing”), which did not become effective until January 1, 1999,

and so does not apply to the four respondents before us.

l4a

law) of England but also, in general, the English

statutes in force at the time of emigration, certain

other English statutes and (‘ancient usages.’

Commonwealth v. Knowlton, 2 Mass. 530, 534-535

(1807).” Department of Revenue v. Jarvenpaa, supra at

186.

Independent research indicates that, from the late

1700’s until midway through the 1800’s, common law

in both England and the American States provided for

an employee’s cause of action against an employer for

wrongful discharge or breach of employment

contract.15 See Feinman, The Development of the

Employment at Will Rule, 20 Am. J. Legal Hist. 118,

118 (1976). In the 1797 Massachusetts case of White

vs. Currier, 5 Dane’s Abr. 110 (1824), for example, an

employee who argued “he was prevented by the act of

God from fulfilling his [employment] contract” was

awarded the sum of twenty-eight dollars as quantum

meruit payment from his employer for four months of

labor. These causes of action were commonly tried

before a jury. See also, e.g., Tufts v. Plymouth Gold

Mining Co., 14 Allen 407, 412 (1867); Revere v. Boston

~ Copper Co., 15 Pick. 351 (1834).

Although a violation of G. L. c. 151B is not a tort,

we have, on many occasions, identified tort-like

aspects of a G. L. c. 151B discrimination claim

15 As the Supreme Court of Connecticut observed in Magnan v.

Anaconda Indus., Inc., 193 Conn. 558, 561-562 (1984):

“In the sixteenth century a statute enacted in England

prohibited an employer from discharging an employee

‘unless it be for some reasonable and sufficient cause of

matter... .’ Statute of Labourers, 5 Eliz. C. 4 (1562),

reprinted in 6 Pickering’s Statutes 159-60 (1763).

Although the statute was eventually repealed, English

courts continued to hold that a contract of employment for

an indefinite duration was presumptively for a term of one

year; see 1 Blackstone, Commentaries 335 (1832); 25

Halsbury’s Laws of England 480-81 (3d Ed. 1958); and

permitted the employee to maintain a cause of action for

breach of the employment contract.”

15a

brought in the Superior Court. See, e.g., Thomas v.

EDI Specialists, Inc., 437 Mass. 536, 539 (2002);

Conway v. Electro Switch Corp., 402 Mass. 385, 387

(1988). The Supreme Court of the United States has

recognized that “[aJn action to redress racial (or

gender) discrimination may . . . be likened to an action

for defamation or intentional infliction of mental

distress.” Dalis, supra at 224, quoting Curtis v.

Loether, 415 U.S. 189, 195-196 n.10 (1974). Following

the Supreme Court’s lead, Federal courts have

analogized wrongful discharge and employment

discrimination cases to common law _ wrongful

discharge actions. See Lebow v. American Trans Air,

Inc., 86 F.3d 661, 668-669 (7th Cir. 1996); Waldrop v.

Southern Co. Servs., 24 F.3d 152, 156 (11th Cir.

1994); Pandazides v. Virginia Bd. of Educ., 13 F.3d

823, 829 (4th Cir. 1994); Gallagher v. Wilton Enters.,

Inc., 962 F.2d 120, 122-123 (1st Cir. 1992); Smith v.

Barton, 914 F.2d 1330, 1337 (9th Cir. 1990), cert.

denied, 501 U.S. 1217 (1991).

In addition to the legal nature of the plaintiffs claim

in Dalis, the remedies sought in the case

(compensatory and exemplary damages, interest and

costs, and attorney’s fees) were predominantly legal

rather than equitable in nature. See Conway v. Electro

Switch Corp., supra (recognizing that, implicit in

language of § 9 allowing “civil action for damages or

injunctive relief, or both,” was “a plain legislative

intent to afford victims of discrimination the legal

remedy of compensatory damages”). We note that the

right to seek punitive damages, granted to

complainants, like Dalis, who choose to pursue their

claim under G.-L. c. 151B, § 9, “traditionally [has]

been viewed as a legal remedy that must be imposed

by a jury.” Lebow v. American Trans Air, Inc., supra at

669. That G. L. c. 151B, § 9, also allows a plaintiff to

seek injunctive relief as well as damages, “thus mixing

a traditionally equitable remedy with a traditionally

legal remedy, ‘may not compromise [the] constitutional

l6a

right to a trial by jury.” Rosati v. Boston Pipe Covering,

Inc., 434 Mass. 349, 352 (2001), quoting Dalis, supra

at 227 (in context of G. L. c. 149, § 27). Indeed it is

hardly controversial that art. 15 guarantees plaintiffs

who pursue discrimination claims in the Superior

Court the right to have their claims decided by a

jury.'© See Gallagher v. Wilton Enters., Inc., supra at

124 (“Conway [v. Electro Switch Corp., supra,]

constitutes an authoritative basis for concluding that

[actions under G. L. c. 1515, § 9, are] analogous to an

eighteenth-century legal cause of action providing

legal remedies”). Indeed, no party in any of the four

cases under review asserts otherwise.

3. We now confront the main holding in Lavelle.

The decision, in most of its aspects, reaffirms Dalis

and much of what was said in Lavelle with respect to

Dalis is correct. Based on arguments now made by the

parties, and not made in Lavelle, however, we

conclude that Lavelle incorrectly applied the holding

in Dalis by mistakenly assuming that G. L. c. 151B

procedures under § 5 and § 9, are, essentially, the

16 Arguments presented in the concurring and dissenting

opinions suggest that the holding in Dalis, supra at 223, discussed

above, cannot be reconciled with our earlier decision in Nei v.

Burley, 388 Mass. 307, 315 (1983), in which we concluded that

claims under G. L. c. 93A are primarily equitable and do not give

rise to an art. 15 right. In both decisions, this court employed the

traditional methodology for determining a _ constitutional

entitlement to a jury trial, namely, by asking whether the claims at

issue are analogous to historical common-law causes of action.

See Dalis, supra at 221-225; Nei v. Burley, supra at 313-315. Our

decision in Nei is not part of this case and, as indicated above, no

party in this case submits that Dalis was wrongly decided.

Analysis of inconsistencies in the court’s reasoning in Dalis and in

Nei, therefore, should wait for another day. It should be noted,

however, that the decision whether a new statutory cause of action

meets the test fashioned to determine the right to a jury trial

under art. 15, is not one that can be made with scientific

certitude. Rather, the decision directs an inquiry that examines

historical antecedents as reasonably viewed in a contemporary

setting with attention to the preference, in most instances, for the

grant of a jury trial.

17a

same. Based on that erroneous assumption, the

Lavelle court reasoned that respondents in a § 5

administrative proceeding are similarly situated, with

respect to art. 15, as plaintiffs in a § 9 action in the

Superior Court, and so concluded that to deny such

respondents the right to a jury trial would be to deny

them equal protection under the law.

Adherence to the principle of stare decisis provides

continuity and predictability in the law, but the

principle is not absolute. No court is infallible, and

this court is not barred from departing from prevjous

pronouncements if the benefits of so doing outweigh

the values underlying stare decisis. See Franklin v.

Albert, 381 Mass. 611, 617 (1980); Lewis v. Lewis,

370 Mass. 619, 628-629 (1976). After reflection, we

conclude that the constitutional analysis set forth in

Dalis does not apply to parties in a § 5 proceeding.

The Lavelle court’s pronouncement to the contrary

circumvents the comprehensive scheme set out by the

Legislature for the resolution of discrimination claims

and (unintentionally) undermines the commission’s

authority to fulfil its mandate of protecting citizens of

the Commonwealth from discriminatory employment

decisions and punishing unlawful discrimination in

the workplace. See Knight v. Avon Prods., Inc., 438

Mass. 413, 424 n.6 (2003); Fontaine v. Ebtec Corp.,

415 Mass. 309, 322 (1993); Lynn Teachers Union,

Local 1037 v. Massachusetts Comm’n Against

Discrimination, 406 Mass. 515, 523 (1990); Rock v.

Massachusetts Comm’n Against Discrimination, 384

Mass. 198, 206 (1981). Accordingly, we conclude that

the jury trial holding in Lavelle should be overruled.!7

Our reasons are as follows.

17 We acknowledge that in Wynn & Wynn, P.C. v.

Massachusetts Comm’n Against Discrimination, 431 Mass. 655,

664 (2000), we spoke approvingly regarding Lavelle. Based on

incorrect assumptions that have been identified above, the

relevant portions of Wynn & Wynn are no longer to be considered

the law.

18a

(a) The discrimination claim considered in the Dalis

case had been filed in the Superior Court pursuant to

G. L. c. 151B, § 9. There was no suggestion by the

Dalis court, nor did any party in that case argue, that

the art. 15 analysis also would apply to discrimination

claims heard in proceedings conducted entirely within

the MCAD pursuant to G. L. c. 151B, § 5. The

differences between administrative proceedings

conducted pursuant to § 5, and a private right of

action under § 9, are significant. We highlight but a

few.

While the main object of a judicial proceeding under

§ 9 is to recover damages for the individual victim of

unlawful discrimination, see Conway v. Electro Switch

Corp., supra at 387, the primary purpose of an

administrative proceeding before the MCAD is to

vindicate the public’s. interest in_ reducing

discrimination in the workplace by deterring, and

punishing, instances of discrimination by employers

against employees. See Thomas v. EDI Specialists, Inc.,

437 Mass. 536, 541-542 (2002); College-Town, Div. of

Interco, Inc. v. Massachusetts Comm’n Against

Discrimination, 400 Mass. 156, 170 (1987). The MCAD

was established to enforce the Commonwealth’s

antidiscrimination laws. The complainant, thus, may

be a party to a § 5 proceeding and may present

testimony at the public hearing, but it is the MCAD,

and not the complainant, that prosecutes_ the

discrimination claim. See G. L. c. 151B, § 5. In direct

contrast, the commission typically takes no further

action once a complainant elects a judicial

determination of a discrimination claim. A plaintiff in

an action filed pursuant to § 9 seeks to recover

damages to compensate for the injury done him, and,

to that end, a successful plaintiff may be awarded

actual and punitive damages. See G. L. c. 151B, § 9.

While a successful complainant in an administrative

proceeding may, in appropriate cases, be awarded

damages for emotional distress, the commission is

19a

empowered to fashion equitable remedies designed

chiefly to protect and promote the broader public

interest in eradicating systemic discrimination.!8® See,

e.g., Chief Justice for Admin. & Mgt. of the Trial Court v.

Massachusetts Comm’n Against Discrimination, 439,

Mass. 729, 736-737 (2003). “The primary

responsibility to determine the scope of [G. L. c. 151B]

has been entrusted to the MCAD, not to the courts.”

Rock v. Massachusetts Comm’n Against Discrimination,

supra at 206. See Lynn Teachers Union, Local 1037 v.

Massachusetts Comm’n Against Discrimination, supra

at 523.

(b) The respondent in Lavelle (and the respondents

in the four cases under review) was a party in an

MCAD proceeding. The complainant in Lavelle (and

the complainants in the four cases under review)

chose not to proceed through the courts but opted

instead for an administrative hearing and judicial

review of the commission’s decision on his claims.

That the Legislature has provided complainants, and

not respondents, the right to choose the forum in

which their claim will be heard does not pose an equal

protection problem.!9 This point was resolved by this

18 On a finding that a respondent has engaged in any unlawful

practice under G. L. c. 151B, § 4, the commission “shall issue and

cause to be served on such respondent an order requiring such

respondent to cease and desist from such unlawful practice...

[and] to take such affirmative action, including but not limited to,

hiring, reinstatement or upgrading of employees, with or without

back pay, or restoration to membership in any respondent labor

organization, as, in the judgment of the commission, will

effectuate the purposes of this chapter.” G. L. c. 151B, § 5. As of

July 1, 2003, the commission also may impose civil administrative

penalties, ranging from $10,000 to $50,000, depending on the

number of discriminatory practices a respondent was adjudged to

have committed in the past. See St. 2003, c. 26, §§ 438, 715.

19 The forum selection issue is by no means the only

asymmetrical provision of the statutory scheme. Section 5 directs

the MCAD to assist complainants presenting a case (but not to

help employers defend) and permits attorney’s fees and.costs to be

awarded to successful complainants only. See New York & Mass.

Se eee eT eee

20a

court in New York & Mass. Motor Serv., Inc. v.

Massachusetts Comm’n Against Discrimination, 401

Mass. 566 (1988).

In that case, we found no merit in the argument

that the procedures outlined in §§ 5 and 9 deprived an

employer of its fundamental right to a trial because a

complainant may transfer the controversy to the

Superior Court for a judicial adjudication of the

discrimination claim while an employer may not. See

id. at 580-581. Our reasoning was premised on the

fact that, because, pursuant to § 6, all orders of the

commission are subject to judicial review, the

respondent in a claim of employment discrimination

“is not faced with a denial of access to the judicial

system, but rather with a postponement of judicial

adjudication at the complainant’s option until after

the commission has _ issued a _ preliminary

determination and ordered a remedy based on its

findings of fact.” Id. at 580. We concluded that “[a]ny

effect on the rights or privileges of employers as a

class is limited to the differences between initial

judicial adjudication of a discrimination claim, and a

claim that reaches the court after an administrative

hearing and determination.” Id.

protection analysis set forth in the New York & Mass.

Motor Serv. decision. The Lavelle court rested its

decision on the fact that, since Dalis, the statute’s

“differing treatment of complainants and

respondents,” in cases where complainants opt to

pursue their claims within § 5 proceedings, by default,

extinguishes any corresponding right to a jury trial

that would have been available to a respondent had

the complainant chosen to pursue a private action in

the Superior Court. Lavelle, supra at 337.

Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination,

401 Mass. 566, 580 n.13 (1988) (noting other contexts in which

control over access to courts resides in one party).

2la

We emphasize that G. L. c. 151B itself does not

grant a complainant in an employment discrimination

case the right to a jury trial. The statutory scheme

merely grants an alleged victim of employment

discrimination the threshold opportunity to choose

one of “two largely independent avenues for redress of

violations of [G. L. c. 151B], one through the MCAD

(G. L. c. 151B, §§ 5-6), and the other in the courts (G.

L. c. 151B, § 9).” Brunson v. Wall, 405 Mass. 446, 452

(1989), quoting Christo v. Edward G. Boyle Ins.

Agency, Inc., 402 Mass. 815, 817 (1988). It is

reasonable, and constitutionally permissible, to

provide a complainant with a choice of enforcement

options. The United States Supreme Court has long

recognized:

“There are many instances in the law where

a person entitled to sue may choose between

alternative measures of redress and modes of

enforcement; and this has been true since

before the Constitution. But it never has been

held, nor thought so far as we are advised, that

to permit such a choice between alternatives

otherwise admissible is a violation of due

process of law. In the nature of things, the right

to choose cannot be accorded to both parties,

and, if accorded to either, should rest with the

one seeking redress rather than the ‘one from

whom redress is sought.

Panama R.R. v. Johnson, 264 U.S. 375, 392-393

(1924).

This is the case even where, as here, one choice

would allow the matter to be tried to a jury and one

choice would not. See Paro v. Longwood Hosp., 373

Mass. 645, 648-652 (1977) (no merit to challenge that

screening procedure of medical malpractice tribunal

statute, G. L. c. 231, § 60B, violates equal protection

or art. 15). Should the complainant choose to remain

22a

within the MCAD, then both parties are subject to the

formal administrative process, and neither has a right

to a jury trial. See Doherty v. Retirement Bd. of

Medford, 425 Mass. 130, 137 (1997); Zora v. State

Ethics Comm’n, 415 Mass. 640, 652 (1993).

Alternatively, if the complainant chooses to bring her

claim to the Superior Court, then either party may

elect a jury trial under the express terms of Mass. R.

Civ. P. 38 (b), 365 Mass. 800 (1974), and under case

law applying art. 15.20 See Rosati v. Boston Pipe

Covering, Inc., 434 Mass. 349, 351 (2001); Farnham v.

Lenox Motor Car Co., 229 Mass. 478, 481 (1918).

Within either forum, then, both parties have identical

art. 15 rights.

One observation is in order with respect to

principles of equal protection. Following Lavelle, a

respondent in a § 5 proceeding may wait until after an

unfavorable MCAD decision to elect between judicial

review pursuant to § 6 and a de novo jury trial on the

merits. A complainant aggrieved with an MCAD

decision, on the other hand, plainly has no

corresponding strategic advantage. See Brunson v.

Wall, supra at 452-453 (concluding that complainant

who chose to pursue administrative remedy before

MCAD cannot later invoke alternative remedy afforded

by § 9). A persuasive argument, thus, could be

advanced that Lavelle’s purported remedy for G. L. c.

151B’s perceived constitutional infirmity violation has

created an even more inequitable situation. Moreover,

it departs from the Legislature’s clear intent that both

“parties would be bound by an MCAD decision,

subject only to judicial review,” Brunson v. Wall, supra

20 Section 9 actually authorizes a complainant to “bring a civil

action for damages or injunctive relief or both in the superior ~

probate court” alleging injury from a practice unlawful under G. L.

c. 151B. Indisputably, no constitutional right to a jury trial

attaches in the Probate and Family Court. See Edgar v. Edgar, 403

Mass. 616, 618-619 (1988), S.C., 406 Mass. 628 (1990); Fuller v.

Sylvia, 240 Mass. 49, 52-53 (1921).

23a

at 452, and is at odds with the doctrine of collateral

estoppel and “the strong and oft-stated public policy of

limiting each litigant to one opportunity to try his case

on the merits.” Id. at 453, quoting Haran v. Board of

Registration in Med., 398 Mass. 571, 575 (1986). As

recognized in Lavelle, supra at 338, the solution

adopted by the Lavelle court “gives. certain

respondents two chances to prevail.”

(d) The constitutional analysis in Dalis does not

support the proposition that art. 15 rights vest

whenever an allegation of a G. L. c. 151B employment

violation is lodged with the MCAD, regardless of the

forum in which the claim is to be tried. It is true that

the language of art. 15 “sweeps broadly.” Dalis, supra

at 222. Formal proceedings conducted within the

MCAD pursuant to § 5, however, are civil

administrative proceedings, created by statute and of

a type unknown at common law, initiated, directed,

and limited by the commission, on behalf of the

Commonwealth, against a named respondent. Unlike

private actions pursuant to § 9, MCAD proceedings

“do not involve a suit between two or more persons in

the sense provided for by art. 15, nor do they involve a

controversy concerning property as that phrase is

used in art. 15.” Zora v. State Ethics Comm'n, 415

Mass. 640, 652-653 (1993) (referring to proceedings to

adjudicate civil violations of G. L. c. 268A). See

Doherty v. Retirement Bd. of Medford, 425 Mass. 130,

137 (1997), quoting Curtis v. Loether, supra at 194

(art. 15 inapplicable to administrative proceedings

because jury trials “incompatible with the whole

concept of administrative adjudication”).

On a finding of employment discrimination, the

commission has broad authority to “take such

affirmative action, including but not limited to, hiring,

reinstatement or upgrading of employees, with or

without back pay, or restoration to membership in any

respondent labor organization, as, in the judgment of

the commission, will effectuate the purposes of this

ee Se

24a

chapter” (emphasis supplied). G. L. c. 151B, § 5. In

Bournewood Hosp., Inc. v. Massachusetts Comm’n

Against Discrimination, 371 Mass. 303 (1976), this

court held that implicit in this broad grant of

authority, especially where retaliation is shown, is the

ability to award damages for emotional distress, which

is the natural and probable consequences of such

retaliation. See id. at 315-316. (In Part 5 of this

opinion we reconsider and reaffirm the Bournewood

holding as well as that of Buckley Nursing Home, Inc.

v. Massachusetts Comm’n Against Discrimination, 20

Mass. App. Ct. 172 [1985], in which the Appeals Court

extended Bournewood to permit the commission to

award damages for emotional distress in cases of

employment discrimination not involving retaliation.

See id. at 182.) We authorized an order for payment of

such an award as a logical incident to the “significant

delegation of discretion and authority by the

Legislature” to the MCAD to fashion remedial relief

and affirmatively to enforce the Commonwealth’s

antidiscrimination laws. Bournewood Hosp., Inc. v.

Massachusetts Comm’n Against Discrimination, supra

at 316. It cannot seriously be doubted that the

primary thrust of the relief afforded by the MCAD is

equitable in nature and oriented toward vindicating

important rights not easily valued in monetary terms.

The authority of the MCAD to order, in appropriate

cases, secondary relief in the form of damages to the

complainant for emotional distress does nothing to

transform a § 5 proceeding into a “controversy

concerning property” requiring a jury trial under art.

15. See Parker v. Simpson, 180 Mass. 334, 353-355

(1902); Commonwealth v. Mongardi, 26 Mass. App. Ct.

5, 8 (1988). An award of monetary relief does not

always implicate, a fortiori, an art. 15 right to a jury

trial. See Opinion of the Justices, 309 Mass. 571, 601-

602 (1941); Opinion of the Justices, 309 Mass. 562,

968 (1941). Indeed, the Lavelle court expressly

recognized that, were equal protection not an issue in

aac ee lemme aia

25a

the case, authority “would support the disposition of

this kind of statutory discrimination claim in an

administrative agency, with judicial review based only

on the agency record. See Department of Revenue v.

Jarvenpaa, 404 Mass. 177, 188 (1989); Opinion of the

Justices, 309 Mass. 571, 601-602 (1941); Opinion of

the Justices, 309 Mass. 562, 568 (1941). Cf. Doherty v.

Retirement Bd. of Medford, [supra at 137]; Pernell v

Southall Realty, 416 U.S. 363, 383 (1974) (Seventh

Amendment to the United States Constitution);

Kentucky Comm’n on Human Rights v. Fraser, 625

S.W.2d 852, 854 (Ky. 1981) (same); Plasti-Line, Inc. v.

Tennessee Human Rights Comm’n, 746 S.W.2d 691,

693-694 (Tenn. 1988) (same under _ State

Constitution); Romero v. J & J Tire, JMH, Inc., 238

Mont. 146, 151 (1989) (no jury trial right in

discrimination case heard by administrative agency;

Seventh Amendment and State Constitution).” Lavelle,

supra at 339.2!

4. The question remains concerning the retroactive

applicability of our acknowledgment that Lavelle

wrongly applied Dalis. Our holding in Dalis was

retroactive in that it entitled the plaintiff in that case

to a jury trial. See Dalis, supra at 228. In MacCormack

v. Boston Edison Co., 423 Mass. 652, 656-658 (1996),

this court applied the Dalis decision retroactively to all

plaintiffs in other cases similarly situated, with

damage claims under G. L. c. 151B, § 4, pending in

the Superior Court. That decision recognized that

“considerations of constitutional principle with rare

exceptions require retroactive application. A

constitutional decision is not a legislative act but a

21 In reaching our decision, it is not necessary to determine

whether we should, for purposes of art. 15 analysis, adopt the

“public rights” doctrine, advanced by the United States Supreme

Court when considering claims of a right to a trial by jury in

matters assigned for resolution to an administrative agency. See

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51-53 (1989); Atlas

Roofing Co. v. Occupational Safety & Health Review Comm’n, 430

U.S. 442, 455 (1977).

26a

determination of rights enacted by the Constitution,

so that all persons with live claims are entitled to have

those claims judged according to what we conclude

the Constitution demands.” Id. at 657, citing Desist v.

United States, 394 U.S. 244, 258-259 (1969) (Harlan,

J., dissenting).

-It is true that our decision today extends no new

constitutional rights and, viewed in terms of its

practical import, curtails what, in reliance on Lavelle,

has been assumed by many to be a respondent’s State

constitutional right to a trial by jury. We conclude,

nevertheless, that it is appropriate that retroactive

effect of our decision today be given to all cases that

are still open on direct review. Principles of equity and

fairness dictate that complainants who have been

found by the full commission to have been illegally

discriminated against not be forced to relitigate their

claims in the Superior Court. We have considered the

three factors enumerated in McIntyre v. Associates Fin.

Servs. Co. of Mass., 367 Mass. 708, 712 (1975), for

guidance in deciding when an exception to the general

rule of retroactivity might be warranted.22 There is

nothing in the record, or in the briefs submitted by the

parties, to persuade us that the McIntyre criteria are

sufficiently satisfied.25

22 The three factors are: “(1) whether a new principle has been

established whose resolution was not clearly foreshadowed, (2)

whether retroactive application will further the rule, and (3)

whether inequitable results, or injustice or hardships, will be

avoided by a holding of nonretroactivity.” McIntyre v. Associates

Fin. Servs. Co. of Mass., 367 Mass. 708, 712 (1975).

23 There is no need to address the waiver issue raised in the

four cases under review. We note, however, that our decision in

the Lavelle case issued after the cases had been certified for public

hearing and after the complainants’ options to institute private

actions in the Superior Court had lapsed. All four respondents,

nevertheless, waited until after the completion of the public

hearings and the subsequent determinations by the MCAD of G. L.

c. 151B violations, before giving notice of their intention to seek a

de novo jury trial. For this reason alone, considerations of

hardship weigh heavily in favor of the four complainants.

27a

5. Keyland Corporation asks us to overrule

Bournewood Hosp., Inc. v. Massachusetts Comm’n

Against Discrimination, supra, and Buckley Nursing

Home, Inc. v. Massachusetts Comm’n Against

Discrimination, supra, which hold that damages for

emotional distress in employment discrimination

cases may be recovered on a finding of discrimination

by the commission under G. L. c. 151B, § 5. We

conclude that these decisions should not be overruled

and express our views on considerations that the

commission should apply in making such awards. .

(a) The Bournewood decision, which allowed

recovery of emotional distress damages in employment

cases before the MCAD involving retaliation, has been

the law for twenty-eight years. The Buckley decision,

which allowed such damages in other employment

cases before the MCAD in a finding of discrimination,

has been the law for nineteen years. The Bournewood

decision points out that the commission’s authority

under G. L. c. 151B, § 5, as has been quoted above,

allows it to fashion remedies that involve “affirmative

action, including, but not limited to, [certain specified

remedies] as, in the judgment of the commission, will

effectuate the purposes of this chapter’ (emphasis

supplied). Bournewood, supra at 307, 315-316,

quoting G. L. c. 151B, § 5, as amended through St.

1969, c. 751, §§ 10-12. The decision emphasizes that

the broad power of the commission, as articulated in §

5, and read in conjunction with the mandate in G. L.

c. 151B, § 9, liberally to construe the provisions of c.

-151B “for the accomplishment of the purposes

thereof,” namely, the commission’s over-all mission,

provides a “statutory basis” for the commission to

award compensatory damages, which encompassed

emotional distress damages in a retaliation case. Id. at

316. The Buckley decision applied the reasoning in

Bournewood in extending the commission’s right to

award emotional distress damages to other

employment cases where a finding of discrimination is

28a

made. The Bournewood and Buckley decisions have

been consistently applied by this court and the

Appeals Court in upholding awards by the

commission of emotional distress damages in

employment discrimination cases. See Wynn & Wynn,

P.C. v. Massachusetts Comm’n Against Discrimination,

431 Mass. 655, 657 & n.3, 675 (2000) (upholding

award of $50,000 for emotional distress damages in

sex discrimination case); College-Town, Div. of Interco,

Inc. v. Massachusetts Comm’n Against Discrimination,

supra at 169 (upholding award of $10,000 for

emotional distress damages in sexual harassment and

retaliation case); Borne v. Massachusetts Comm’n

Against Discrimination, 58 Mass. App. Ct. 306, 319-

321 (2003) (upholding compensatory damages award

in the aggregate of $424,000 for nine plaintiffs, noting

that “injury which underlay the compensatory

damages was emotional distress”); Talbert Trading Co.

v. Massachusetts Comm’n Against Discrimination, 37

Mass. App. Ct. 56, 57, 64-65 (1994) (upholding award

of $10,000 for emotional distress damages in

handicap discrimination case); Franklin Publ. Co. v.

Massachusetts Comm’n Against Discrimination, 25

Mass. App. Ct. 974, 975 (1988) (upholding award of

$10,000 for emotional distress damages in sex

discrimination case). Awards of damages for emotional

distress to compensate the victim, when made by the

commission under § 5, derive from the commission’s

statutory mandate to fashion relief to accomplish the

statute’s broad purpose and, as such, are an

incidental, but interdependent component of any

effective method of eradicating unlawful

discrimination. See Restatement (Second) of Torts §

903 comment a (1979) (differentiating between

compensatory damages when there has been harm to

pecuniary interests of person versus where there has

been bodily harm or emotional distress, explaining

that, with respect to the latter harms, “the law cannot

restore the injured person to his previous position .. .

29a

[and such harm is] not in any way analogous to a

pecuniary loss, and a sum of money is not the

equivalent of peace of mind”).

The Legislature obviously has been aware of the

Bournewood and Buckley decisions. Legislative history

discloses that several attempts have been made,

unsuccessfully, to modify the impact of these

decisions. See, e.g., 2001 House Doc. No. 3042

(proposing in G. L. c. 151B, § 5, to limit awards for

emotional distress damages to no more than $50,000);

2001 House Doc. No. 1911 (proposing to require

“person claiming to be aggrieved by an alleged

unlawful practice or alleged violation of [c.] 151B” to

present “expert professional evidence” of emotional

distress damages); 1999 House Doc. No. 3969

(proposing to require “person claiming to be aggrieved

by an alleged unlawful practice or alleged violation of

[c.] 151B” to present “expert professional evidence” of

emotional distress damages); 1999 House Doc. No.

2840 (proposing in G. L. c. 151B, § 5, to limit awards

for emotional distress damages to no moré than

$25,000); 1997 House Doc. No. 2262 (proposing to

require “person claiming to be aggrieved by an alleged

unlawful practice or alleged violation of [c.] 151B” to

present “expert professional evidence” of emotional

distress damages). In the meantime, the Legislature

has strengthened the commission’s authority by

affirmatively granting the power to award attorney’s

fees and costs. Compare Bournewood, supra at 307-

308 (rejecting claim that commission had authority

under G. L. c. 151B, § 5, as amended through St.

1969, c. 751, §§ 10-12 [authorizing commission, after

finding that employer has violated G. L. c. 151B, § 4,

to issue a cease and desist order and “take such

affirmative action, including, but not limited to, hiring,

reinstatement or upgrading of employees, with or

without back pay”] to award attorney’s fees, noting

that under “American Rule,” “attorney’s fees are not

ordinarily recoverable in the absence of statute, court

— —— SS

30a

rule, enforceable contract or stipulation providing

therefor”), with St. 1989, c. 722, § 27 (amending

second paragraph of G. L. c. 151B, § 5, to add: “In

addition to any such relief, the commission shall

award reasonable attorney’s fees and costs to any

prevailing complainant”). See also Fontaine v. Ebtec

Corp., supra at 320- 321 n.11 (noting St. 1989, c. 722,

§ 27 “entitles plaintiffs who pursue their cases before

the commission to a remedy commensurate with the

remedy to which they would be entitled if they filed

suit, and prevailed, in a State or Federal court”).24 The

most recent amendment to G. L. c. 151B, § 5, St.

2003, c. 26, § 438, effective July 1, 2003, St. 2003, c.

26, § 715, authorizes the commission to impose civil

administrative penalties, ranging from $10,000 to

$50,000, on respondents determined by the

commission to have engaged in unlawful

discrimination.?5 (Prior to this legislation, the MCAD

24 We note that, pursuant to an amendment to G. L. c. 151B, §

3, by St. 2003, c. 26, § 437, and effective July 1, 2003, the

commission may now retain “reasonable attorney’s fees and costs

awarded to a prevailing complainant, under [§ 5], when one of its

attorneys presents the charge of discrimination before the

commission on behalf of the prevailing complainant.”

25 Section 438 of St. 2003, c. 26, provides:

“If, upon all the evidence at any such hearing, the

commission shall find that a respondent has engaged in

any such unlawful practice, it may, in addition to any

other action which it may take under this section, assess

a civil penalty against the respondent:

“(a) in an amount not to exceed $10,000 if the

respondent has not been adjudged to have committed any

prior discriminatory practice;

“(b) in an amount not to exceed $25,000 if the

respondent has been adjudged to have committed one

other discriminatory practice during the 5-year period

ending on the date of the filing of the complaint; and

“(c) in an amount not to exceed $50,000 if the

respondent has been adjudged to have committed 2 or

more discriminatory practices during the 7-year period

3la

was statutorily authorized to impose civil penalties

only in housing discrimination cases. See St. 1989, c.

722, § 29.) It is too soon to assess with any accuracy

whether, and how often, civil penalties will be imposed

by the MCAD, pursuant to St. 2003, c. 26, § 438, asa

means of effectuating the purposes of G. L. c. 151B.

We take the addition of this potentially formidable

administrative weapon against discriminatory

practices further to suggest legislative acceptance of

the Bournewood and Buckley decisions and the

commission’s authority to award emotional distress

damages as a means of enforcing its broad powers, at

least until the Legislature chooses to speak directly on

the subject.

We note that in Federal employment discrimination

cases under Title VII of the Civil Rights Act, see 42

U.S.C. §§ 2000e-2, 2000e-3, 2000e-5, 2000e-16

(2000), and the Americans with Disabilities Act (ADA),

see 42 U.S.C. §§ 12117(a), 12112 (2000), in cases

involving intentional discrimination,2 the Equal

Employment Opportunity Commission (EEOC), the

Federal agency charged w.th enforcing § those

discrimination laws, may seek (on behalf of the

“complaining party” or complainant) compensatory

damages, including damages for emotional distress.

See EEOC Compl. Man. § 60.6 (CCH 2004). If a

complainant elects to pursue such a case in Federal

ending on the date of the filing of the complaint.

Notwithstanding the aforesaid provisions, if the acts

constituting the discriminatory practice that is the object

of the complaint are committed by the same natural

person who has been previously adjudged to have

committed acts constituting a discriminatory practice,

then the civil penalties set forth in clauses (b) and (c) may

be imposed without regard to the period of time within

which any subsequent discriminatory practice occurred.”

26 Compensatory damages may not be awarded in cases

involving disparate impact. See 42 U.S.C. § 198la (a) (1), (2)

(2000).

32a

court,2? pursuant to the Civil Rights Act of 1991,

which amended both Title VII and the ADA, a

prevailing complainant may be awarded compensatory

damages, including damages for emotional distress

(although those damages: are limited in amount

depending on the size of the employer). See id. at §

60.5. See also 42 U.S.C. § 1981la (a) (1) & (2), (b)

(2000).

With respect to State counterparts, some State

discrimination statutes authorize their enforcement

agencies to remedy unlawful acts with an award of

compensatory damages, including emotional distress

damages. The statutory basis for such an award may

be expressly stated, see, e.g., Cal. Gov’t Code § 12970

(a) (Deering 2004 Supp.) (authorizing fair employment

and housing commission, if it finds an unlawful

practice has been committed, to “take action,

including, but not limited to ... damages for

emotional injuries . . . [such as] emotional pain,

suffering, inconvenience, mental anguish, loss of

enjoyment of life, and other nonpecuniary losses”); La.

Rev. Stat. Ann. § 51:2261 (West 2003) (authorizing

commission on human rights, on finding of an

unlawful practice, to take “affirmative action”

including payment to complainant representing

“compensation for humiliation and embarrassment”);

Minn. Stat. § 363A.29 (4)(a) (2003 Supp.) (authorizing

administrative law judge, on finding of unfair

discriminatory practice, to award compensatory

damages, including “damages for mental anguish or

suffering”); R.I. Gen. Laws § 28-5-24 (LexisNexis 2003)

(authorizing commission for human rights, on finding

intentional discrimination, to award compensatory

27 Although a Title VII complainant cannot initially commence a

civil action in Federal court, a complainant retains the right to file

such an action after filing a charge with the EEOC and regardless

whether the EEOC finds “reasonable cause” to support a

complainant’s charge of discrimination. See 42 U.S.C. § 2000e-5

(b), (c), (e) (2000); 29 C.F.R. §§ 1601.19, 1601.28 (b) (2003).

33a

damages without proof from complainant “that he or

she has_ suffered physical harm or physical

manifestation of injury”), or may be a matter of

interpretation of a broad remedial provision, see, e.g.,

N.J. Stat. Ann. § 10:5-17 (West 2002) (authorizing

director of division of civil rights, on finding unlawful

employment practice, to “take such affirmative action,

including, but not limited to, [certain specified action]

as, in the judgment of the director, will effectuate the

purpose of this act”), as interpreted in Hernandez v.

Region Nine Hous. Corp., 146 N.J. 645, 653 (1996),

and cases cited (explaining that, under N.J. Stat. Ann.

§ 10:5-17, director has “broad remedial authority to

cure unlawful discrimination,” including the authority

to award compensatory damages and “damages for

pain and suffering or personal humiliation”); N.Y.

Exec. Law § 297 (4) (c) (McKinney 2001) (authorizing

commissioner of human rights, after finding unlawful,

discriminatory practice, to award “compensatory

damages”), as interpreted in Freudenthal v. County of

Nassau, 99 N.Y.2d 285, 291 (2003) (explaining that,

under N.Y. Exec. Law § 297 [4] [c], commissioner may

award compensatory damages that include damages

for “mental anguish and other forms of pain and

suffering”). ,

(b) Some concern has been expressed on the

amount of emotional distress damages that the

commission has been awarding in employment

discrimination cases and the basis for such awards.

We take this occasion to state some views on the

subject.

We stress that emotional distress damages should

not be improperly considered, or awarded, as a

substitute for punitive damages.28 Emotional distress

damage awards, when made, should be fair and

28 Pursuant to G. L. c. 151B, § 9, “the court” may award

punitive damages to a prevailing petitioner who opted to proceed

in the Superior, Probate, or Housing Court instead of before the

commission.

34a

reasonabie, and proportionate to the distress suffered.

Each award should be case specific and should not be

determined by formula or by precise reference points.

While evidence in the form of some physical

manifestation of the emotional distress, or evidence in

the form of expert testimony, is not necessary to

obtain an award, such eviderce certainly would be

beneficial. An award must rest on _ substantial

evidence and its factual basis must be made clear on

the record. Some factors that should be considered

include: (1) the nature and character of the alleged

harm; (2) the severity of the harm; (3) the length of

time the complainant has suffered and reasonably

expects to suffer; and (4) whether the complainant has

attempted to mitigate the harm (e.g., by counselling or

by taking medication). See Restatement (Second) of

Torts § 905 comment 1 and § 912 (1979). In addition,

complainants must show a_ sufficient causal

connection between the respondent’s unlawful act and

the complainant’s emotional distress. See id. at § 917.

Emotional distress existing from circumstances other

than the actions of the respondent, or from a

condition existing prior to the unlawful act, is not

compensable.

In view of the foregoing principles, we conclude that

a finding of discrimination, or retaliation, by itself, is

no longer sufficient to permit an inference of, or a

presumption of, emotional distress. This approach is

espoused by the EEOC. See EEOC: Policy Guide on

Compensatory and Punitive Damages Under 1991

Civil Rights Act (July 7, 1992), reprinted in Fair Empl.

Prac. Man. (BNA) 405:7091-405:7102 (stating that

“[elmotional harm will not be presumed simply

because the complaining party is a victim of

discrimination”). To be compensable, emotional

distress must be proved.

Judges acting under G. L. c. 30A in reviewing

emotional distress damage awards by the commission

should keep the above in mind. Judges, of course, are

35a

aware that this aspect (as well as all others) of the

commission’s decision must be _ supported by

substantial evidence and may not be arbitrary or

capricious. See G. L. c. 30A, § 14 (7). Awards that are

not sufficiently supported should be set aside or may

be remitted to a sum deemed by the judge to be

sufficient compensation in keeping with the evidence

before the commission and the applicable burden of

proof.

6. In view of what has been said and held above, it

is not necessary to answer the questions reported by

the judges in three of the cases. In each of the four

cases, the respondent’s request in the Superior Court

for a jury trial is struck. The four cases are to be

deemed as cases filed in the Superior Court for review

and decision under G. L. c. 30A, on the records

prepared before the commission in the G. L. c. 151B, §

9, proceedings. On this basis, the four cases are to

stand for further proceedings in the Superior Court.

So ordered.

SOSMAN, J. (concurring). I concur in the court’s

decision to overrule Lavelle v. Massachusetts Comm’n

Against Discrimination, 426 Mass. 332 (1997) (Lavelle),

and I agree with the court’s reasons for doing so.

While I also concur in the court’s decision not to

overrule Dalis v. Buyer Advertising, Inc., 418 Mass.

220 (1994) (Dalis), I have grave reservations as to

whether that case was correctly decided, and therefore

do not join in today’s endorsement of the reasoning of

Dalis. Instead, my concurrence with that portion of

today’s opinion is based solely on stare decisis.

The tests for analyzing a claim of a right to trial by

jury under art. 15 of the Massachusetts Declaration of

Rights are well known. Where the suit is “between two

or more persons” (as is the case in all employment

36a

discrimination suits), or the matter is a “controvers[y]

concerning property,” art. 15 accords a jury trial

“except in cases in which it has heretofore been

otherways used and practiced.” Art. 15. That

exception “incorporates the experience of its drafters,

who sought to retain the ordinary forms and

administration of the English common law (with which

they were most familiar), while allowing future

generations to create new forms of actions and

proceedings which, for practical reasons, might not

require, or be appropriate for, decision by a jury.”

Commonwealth v. Mongardi, 26 Mass. App. Ct. 5, 8

(1988), citing Parker v. Simpson, 180 Mass. 334, 351-

355 (1902). To assess the applicability of the exception

in art. 15, we consider whether the present cause of

action is “analogous” to some form of claim previously

recognized at common law (see Dalis, supra at 223), as

opposed to being “a wholly new cause of action” (see

Department of Revenue v. Jarvenpaa, 404 Mass. 177,

188 [1989]), and we consider whether the remedies

sought are “predominantly legal” as opposed to

“equitable” (see Dalis, supra at 226). The problem

stems from the fact that these tests are not being

consistently applied, perhaps due in part to their very

imprecision. Ii is far from clear how closely linked to

some common-law claim a modern day claim must be

to qualify as “analogous,” and, as today’s decision

readily illustrates, the precise same types of damages

can be characterized as a “legal” remedy in one case,

only to be characterized as “equitable” in another. As a

result, the identical test yields inconsistent results,

and our art. 15 jurisprudence cannot be harmonized

with intellectual honesty.

The Dalis court opined that employment

discrimination claims are “analogous to common law

actions sounding in both tort and contract.” Dalis,

supra at 223. Today’s decision, citing to a history of

common-law actions for “wrongful discharge or breach

of employment contract,” similarly concludes that

37a

there is an appropriate analogy between an

employment discrimination claim under G. L. c. 151B

and those common-law contractual causes of action.

Ante at 559-561. However, G. L. c. 151B sweeps far

more broadly than breach of contract actions by

discharged employees — it creates a cause of action

for persons who had no contractual relation with the

defendant, premised on the defendant’s refusal to

enter into a contract in the first place (e.g.,

discriminatory refusal to hire, or refusal to promote).

See G. L. c. 151B, § 4 (1) (unlawful for employer' “to

refuse to hire or employ or to bar or to discharge from

employment” on grounds of race, color, religious

creed, national origin, sex, sexual orientation, genetic

information, or ancestry). See also Whalen v. NYNEX

Info. Resources Co., 419 Mass. 792, 794-795 (1995)

(job applicant not offered job accorded right to jury

trial on handicap discrimination claim under Dalis).

Neither Dalis nor today’s decision cites any precedent

for the proposition that the common law recognized

any cause of action for wrongful refusal to enter into

an employment contract.

Claims for retaliation under G. L. c. 151B (which, in

light of Dalis, also now enjoy a right to trial by jury,

see MacCormack v. Boston Edison Co., 423 Mass. 652,

655-656 [1996]), are also not predicated on any

employment contract between the parties. Indeed,

they can be brought by persons who were never

employed by the defendant employer, based solely on

retaliation for having assisted some _ other

complainant, and they may be brought against

defendants who are not employers or even agents of

employers. See G. L. c. 151B, § 4 (4A) (unlawful for

“any person” to retaliate against any “other person for

having aided or encouraged any other person in the

exercise or enjoyment” of any right protected by G. L.

c. 151B). See also G. L. c. 151B, § 4 (4) (prohibiting

retaliation by ‘any person, employer, labor

organization or employment agency” against “any

AE RRR NO, sea ES IORI RN aa : |

;

38a

person because he has opposed any practices

forbidden under [G. L. c. 151B] or because he has filed

a complaint, testified or assisted in any proceeding

under [G. L. c. 151B, § 5]”). Retaliation claims can

also be predicated on acts occurring after an

employment contract has ended. Actions based on

conduct occurring after a contract has been

terminated do not constitute, nor are they even

analogous to, claims for breach of contract. Although

there is a preexisting employment contract between a

plaintiff and a defendant employer in some G. L. c.

151B claims, there is no requirement that such a

contract be proved, and there is no such contract in

many of the fact patterns that comprise actionable

employment discrimination claims under G. L. c.

151B.

Both Dalis and today’s decision also invoke the

notion that claims under G. L. c. 151B have some

“tort-like aspects.” Ante at 560. See Dalis, supra at

223. However, as today’s decision acknowledges, “a

violation of G. L. c. 151B is not a tort.” Ante at 560.

Indeed, subsequent to Dalis, this court has shied

away from the notion that G. L. c. 151B claims are

akin to tort claims. In Thomas v. EDI Specialists, Inc.,

437 Mass. 536, 538- 539 (2002), this court concluded

that G. L. c. 151B actions did not sound in tort, and

were not to be treated as tort claims, for purposes of

any right to contribution under G. L. c. 231B. This

court has also held that wage discrimination claims

are not “torts” for purposes of G. L. c. 258, the

Massachusetts Tort Claims Act. Jancey v. School

Comm. of Everett, 421 Mass. 482, 500-501 (1995)

(“acts of discrimination — whether intentional or

unintentional — do not thereby become torts’).

Dalis cites to one prior case from this court for the

proposition that G. L. c. 151B claims are “analogous”

to common- law tort actions. Dalis, supra at 223,

citing Conway v. Electro Switch Corp., 402 Mass. 385,

39a

388 (1988).1 In that case, this court was asked to

determine whether a court could award “front pay” to

a G. L. c. 151B plaintiff who had proved that her

termination was due to sex discrimination. Noting that

1 Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994) also

cites to Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 122-123

(1st Cir. 1992), in support of this proposition. That case relies on

and cites to various Federal cases that have, in differing contexts,

made some comparisons between various statutory causes of

action and “tort” claims. First and foremost is Curtis v. Loether,

415 U.S. 189, 195 (1974), which held that a claim for unlawful

discrimination in housing under Title VIII of the Civil Rights Act of

1964 “sounds basically in tort.” The Court endorsed the reasoning

of the court below, which recognized that the prohibition against

racial discrimination in housing “could be viewed as an extension

of the common-law duty of innkeepers not to refuse temporary

lodging to a traveler without justification,” as Title VIII now

imposed that same duty on “those who rent apartments on a long-

term basis.” Id. at 195-196 n.10. The Court noted further that a

claim of racial discrimination “may also be likened to an action for

defamation or intentional infliction of mental distress,” both of

which were ‘still developing” under tort law. Id. Ironically,

however, the Court went on to distinguish Title VIII claims for

housing discrimination from Title VII claims for employment

discrimination, declining to opine whether there was any right to

jury trial for Title VII claims. Id. at 196-197. Ultimately, the Court

held that there was not any right to a jury trial for Title VII claims.

See Lehman v. Nakshian, 453 U.S. 156, 164 (1981); Great Am.

Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 375 & n.19

(1979).

In ° similar vein, Gallagher v. Wilton Enters., Inc., supra at 123,

cites Pons v. Lorillard, 549 F.2d 950, 954 (4th Cir. 1977), affd, 434

U.S. 575 (1978), which likened an age discrimination claim to “an

action in tort.” The Supreme Court’s affirmance, however, rested

instead on statutory grounds, concluding that Congress

intentionally conferred a right to jury trial for such claims, again

taking pains to distinguish such claims from claims brought under

Title VII. Lorillard v. Pons, 434 U.S. 575, 580-585 (1978).

The remaining two cases cited in Gallagher v. Wilton Enters.,

Inc., supra, are not discrimination cases. See Hill v Winn-Dixie

Stores, Inc., 934 F.2d 1518, 1524 (11th Cir. 1991) (claim by worker

who was constructively discharged after missing work for jury

duty); Santiago-Negron v. Castro-Davila, 865 F.2d 431, 440-441

(1st Cir. 1989) (42 U.S.C. § 1983 claim for politically motivated

firing).

40a

the Legislature had amended G. L. c. 151B, § 9, to

allow “a civil action for damages or injunctive relief or

both,” the court opined that the statute now allowed

recovery for “compensatory damages.” Conway v.

Electro Switch Corp., supra at 387. Noting that the

purpose of such damages was to “make[] the aggrieved

party whole,” the court saw no reason to conclude that

“damages for loss of pay must be limited to the period

preceding the date of judgment.” Conway v. Electro

Switch Corp., supra at 388, quoting Bournewood

Hosp., Inc. v. Massachusetts Comm’n Against

Discrimination, 371 Mass. 303, 315 (1976). In its sole

reference to the concept of “tort,” the court then

observed: “[T]he law of the Commonwealth has

traditionally allowed, as an element of tort damages,

compensation for the loss of capacity to generate

prospective earnings.” Conway v. Electro Switch Corp.,

supra at 388, citing Mitchell v. Walton Lunch Co., 305

Mass. 76 (1940).? In other words, the court’s reference

to “tort damages” was solely to illustrate the

fundamental proposition that an award of damages to

make someone whole sometimes needs to consider

consequences extending into the future, and not just

damages that have already been suffered. The court

did not observe some conceptual analogy between the

elements of a common-law tort claim and a claim for

employment discrimination, but merely noted that the

recovery in both claims would logically include

compensation for loss of future earnings. Unless the

court means to say that any form of statutory violation

that can cause a form of damage that can also be

caused by some type of common-law tort has therefore

become “analogous” to a tort action, I fail to see what

is so “tort like” about a G. L. c. 151B claim.

2 The case of Mitchell v. Walton Lunch Co., 305 Mass. 76 (1940),

involved a claim for personal injuries stemming from a restaurant

manager’s physical assault on a patron. The damages sought

included a diminution in earning capacity as a result of those

injuries. Id. at 77-78.

4la

The difficulty in applying this test in a consistent

fashion is most vividly illustrated by this court's

decision in Neiv. Burley, 388 Mass. 307 (1983) (Nei), a

case that Dalis lamely attempts to distinguish and

that today’s decision deliberately avoids. Ante at 561

n.16. In Nei, this court held that there was no right to

a jury trial on claims brought pursuant to G. L. c.

93A. The reasons articulated in Nei for concluding

that there is no right to a jury trial for G. L. c. O3A

claims are equally applicable to G. L. c. 1518 claims.

Nei points to the fact that “although certain consumer

violations are perhaps rooted in commen law claims,

the Legislature left the terms sufficiently open-ended

to embrace causes of action for which there are no

common law analogues.” Id. at 313. The same is

certainly true of G. L. c. 151B — some discrimination

claims are “rooted” in theories of contract (in essence

reading the prohibitions of G. L. c. 151B into the

parties’ employment contract and ther allowing suit

for “breach” of that contract), but many others arise in

situations where there was never any form of contract

or agreement between the parties.® Nei goes on to

observe that “any analogies between common law

claims for breach of contract, fraud, or deceit and

claims under c. 93A are inappropriate because c. 93A

dispenses with the need to prove many of the essential

elements of those common law claims.” Id. The same

is true of G. L. c. 151B — the elements of an

employment discrimination claim do not require proof

of the elements of breach of contract, negligence,

misrepresentation, assault and battery, defamation, or

any other common-law claim. If anything, G. L. c. 93A

3 By comparison, in Rosati v. Boston Pipe Covering, Inc., 434

Mass. 349, 351 (2001), we held that G. L. c. 149, § 27, effectively

set the “contract price” for employment contracts on public

construction projects, thereby making a claim under the statute

“fundamentally a contract claim for wages owed under an

employment contract.” By their nature, all employee claims for an

employer’s violation of that statute involved a breach of an actual

contract.

ca cieedeeneemeiemmacnpriemnticinrntnnancoen

42a

claims are, in many cases, directly grounded in and

entirely duplicative of common-law claims for

misrepresentation. Many others are based on a breach

of contract, with some egregious. circumstance

surrounding that breach providing the further

ingredient of “unfairness” to make out a G. L. c. 93A

claim. While G. L. c. 93A extends beyond mere

common-law claims, it nevertheless has a _ very

substantial degree of overlap with the common law, an

overlap that is far more extensive than that presented

by G. L. c. 151B.

The result in Nei is also inconsistent with the

notion that such statutory claims are like torts simply

because the statute imposes a “duty,” with the civil

claim characterized as an action for “breach” of that

“duty.” If that were all it took to make something “tort

like,” then surely we would recognize that G. L. c. 93A

merely expanded common-law duties to impose a

“duty” to refrain from “unfair” or “deceptive” conduct.

Nei adopts no such reasoning, and it is a reasoning

that would make violation of any _ statutory

requirement a specie of “tort.” |

Instead of that analysis, Nei observed that G. L. c.

93A “created new substantive rights in which conduct

heretofore lawful under common and statutory law is

now unlawful.” Nei, supra at 315. This observation

mirrors that made in other cases, namely, that the

jury trial right of art. 15 does not extend to wholly new

causes of action created by the Legislature. See

Department of Revenue v. Jarvenpaa, 404 Mass. 177,

188 (1989) (“If a wholly new cause of action is created,

a jury trial right does not attach to that claim”);

Commonwealth v. Guilfoyle, 402 Mass. 130, 135

(1988) (no right to jury trial in civil rights enforcement

action, noting that “[aJt common law, there was no

cause of action for violations of civil rights”); Opinion of

the Justices, 309 Mass. 562, 568 (1941) (proposed

legislation granting employees right to sue employers

who failed to provide workers’ compensation

43a

insurance held constitutional, despite lack of

provision for jury trial, because legislation “would not

provide a new remedy to enforce a common law

liability, but rather, in the exercise of the police power,

would attach new incidents to the relationship of

employer and employee,” noting that “[nJo such right

in an employee as the right to [workers] compensation

was known to the law at the time the Constitution was

adopted”); Commonwealth v. Mongardi, 26 Mass. App.

Ct. 5, 8 (1988) (no right to jury trial on civil motor

vehicle infractions, noting that newly decriminalized

motor vehicle citation process was “essentially sui

generis, and does not express a civil claim, right or

remedy which was recognized at common law as

requiring a jury trial”). Surely the same is true of

claims under G. L. c. 151B — at the time the

Constitution was adopted, there was no cause of

action for anything remotely resembling employment

discrimination — indeed, the most blatantly

discriminatory practices were both lawful and

widespread. “No such right in an employee as the right

[to be free from discrimination] was known to the law

at the time the Constitution was adopted,” and G. L. c.

151B has now “attach[ed] new incidents to the

relationship of employer and employee.” Opinion of the

Justices, supra. Something that was perfectly lawful at

common law has now been declared unlawful, and an

entirely new cause of action has been created to

redress violations. If there are no jury trials in G. L. c.

93A actions because G. L. c. 93A “created new

substantive rights in which conduct heretofore lawful

under common and statutory law is now unlawful,”

Nei, supra at 315, then surely the same reasoning

should apply to G. L. c. 151B, which, to an even

greater degree than G. L. c. 93A, “created new

substantive rights in which conduct heretofore lawful

under common and statutory law is now unlawful.”4

4 It is, of course, quite possible that it is Nei, and not Dalis,

that was wrongly decided, and that the inability to harmonize the

44a

Turning to whether the types of relief available in G.

L. c. 151B claims are “predominantly legal” as

opposed to “equitable,” Dalis, supra at 226, the picture

is again clouded. With the adoption of the

Massachusetts Rules of-Civil Procedure, we have long

since merged “equitable” and “legal” proceedings, see

Mass. R. Civ. P. 2, 3°35 Mass. 733 (1974), and perhaps

our grasp of the « ‘nctions between the two has

become more shaky than it was in an earlier era when

those distinctions were crucial for many purposes.

Whatever the reason, we have now come to label

identical forms of relief as both “equitable” and “legal,”

thus making it possible to characterize them either

way we wish for purposes of analyzing the right to a

jury trial. Today’s decision invokes both labels in this

inconsistent manner. In explaining its support of the

Dalis decision, the court today opines that the

damages sought in court by G. L. c. 151B plaintiffs

are “predominantly legal rather than equitable,” ante

at 560, yet, in denying respondents any right to a jury

trial as part of the MCAD’s own proceedings, the court

justifies the same damage award rendered in those

proceedings as coming within the MCAD’s “power to

fashion equitable remedies,” ante at 563. See ante at

568 (“primary thrust of the relief afforded by the

MCAD is equitable in nature”). But what are the

differences between these remedies, and are they

stark enough to justify the conclusion that there is a

right to jury trial in one form of proceeding but not in

the other?

Both proceedings involve some components of relief

that are unambiguously recognized as “equitable” —

two is not attributable to anything wrong in Dalis. However, where

our jurisprudence on the subject is sufficiently muddled to have

produced these two irreconcilable cases, we should not flatly

announce that “|t]here is no flaw in the reasoning or conclusion in

Dalis,” ante at 559, while postponing “[a]nalysis of inconsistencies

in the court’s reasoning in Dalis and in Ne? to “another day.” Ante

at 561 n.16.

45a

e.g., orders that a MCAD complainant or court

plaintiff be reinstated to her former position, or that a

perpetrator of sexual harassment be reassigned to

keep him apart from the complainant or plaintiff. As to

the components of monetary awards, however, the

lines become blurred. In Dalis, the court considered

an award of monetary damages “for economic losses

as well as for mental anguish” as the “legal remedy of

compensatory damages.” Dalis, supra at 224, quoting

Conway v. Electro Switch Corp., 402 Mass. 385, 387

(1988). However, in today’s opinion, the court opimes

that the MCAD’s award of emotional distress damages

constitutes “remedial relief,” “equitable in nature,”

“deriv[ing] from the {MCAD’s] mandate to fashion

relief.” Ante at 563, 568, 571. If compensating a

plaintiff for what she has lost as a result of unlawful

employment discrimination (including lost pay and

lost peace of mind) is “equitable in nature” when

awarded by the MCAD, how do those same losses

become the “legal remedy of compensatory damages”

when sought by a plaintiff in court? In Conway v.

Electro Switch Corp., supra at 387-388, the court

identified “front pay” as part of “the legal remedy of

compensatory damages” that a plaintiff could claim

under G. L. c. 151B, yet also specified that “front pay”

could be awarded by the MCAD. See Wynn & Wynn,

P.C. v. Massachusetts Comm’n Against Discrimination,

431 Mass. 655, 676-677 (2000) (MCAD hearing officer

declined to award front pay where evidence on issue of

how long complainant would have remained at firm

was speculative). Is front pay, a part of the

compensation that makes a discrimination victim

whole, to be treated as a “legal remedy of

compensatory damages,” Conway v. Electro Switch

Corp., supra, or is it (when awarded by the MCAD)

part of the “equitable” relief that today’s decision

identifies as the “primary thrust” of MCAD

proceedings? Ante at 568.

46a

Given the MCAD’s broad authority to fashion

remedies for discrimination, see G. L. c. 151B, § 5, the

MCAD’s power to award monetary relief to a

complainant includes all of the “compensatory” (and

therefore “legal” remedies) that a plaintiff could obtain

in court. See Bournewood Hosp., Inc. v. Massachusetts

Comm’n Against Discrimination, 371 Mass. 303, 315-

316 (1976). The only component of a monetary award

that may be obtained in a court proceeding but that

(until recently) could not be ordered by the MCAD is

punitive damages. See G. L. c. 151B, § 9, third par.s

Does that sole difference (that has now itself

disappeared) justify labeling damage awards obtained

in court proceedings under § 9 as “legal” while labeling

monetary awards obtained by way of MCAD orders as

“equitable”?

Today’s decision overruling Lavelle rests on the

premise that MCAD proceedings, including the

monetary awards granted therein, are predominantly

“remedial” and “equitable” (as opposed to “legal”) in

nature. Ante at 560, 567-568. The monetary awards

themselves, the court opines, are merely “a logical

incident” to the MCAD’s equitable powers, just a form

of “secondary relief.” Ante at 567, 568. Cf. Lavelle,

supra at 337 (“Damages for pain and suffering,

emotional distress, and economic loss except perhaps

back wages are not traditional forms of equitable relief

and may not easily be treated as incidental to

equitable relief’). If these damages are “equitable”

5 Effective July 1, 2003, even that difference was effectively

abolished. See St. 2003, c. 26, § 438, amending G. L. c. 151B, § 5

(giving MCAD authority to impose civil penalties in employment

discrimination cases).

6 Comparison to G. L. c. 93A is again instructive. The multiple

damage provisions of § 9 and § 11 are punitive in nature, see Kapp

v. Arbella Mut. Ins. Co., 426 Mass. 683, 686 (1998), quoting Yeagle

v. Aetna Cas. & Sur. Co., 42 Mass. App. Ct. 650, 655-656 (1997),

yet the mere presence of punitive damages in that statutory

scheme has not sufficed to confer a right to jury trial in G. L. c.

93A cases. See Nei v. Burley, 388 Mass. 307, 311-315 (1983).

47a

when awarded by the MCAD, they do not lose their

“equitable” flavor when awarded by a court. Thus, the

second premise on which Dalis rests, namely that the

damages awarded by courts in G. L. c. 151B cases are

“legal” as opposed to “equitable” in nature, is also

open to considerable question.

In my view, G. L. c. 151B has created an entirely

new cause of action, unheard of at common law, that

awards relief predominantly equitable in nature,

namely, a combination of injunctive relief and

monetary restitution to make the victim whole: As

such, administrative proceedings before the MCAD do

not violate any party’s art. 15 right to a jury trial, and

court proceedings instituted by a victim of

discrimination do not implicate art. 15 rights either. I

am thus inclined to the view that Dalis was wrongly

decided, or, at the very least, that it cannot be

reconciled with Net.

I am also of the view that, at least until more recent

times, the Legislature had “practical reasons” for

believing that this new cause of action would not be

“appropriate” for “decision by a jury.” Commonwealth

v. Mongardi, 26 Mass. App. Ct. 5, 8 (1988). Laws

prohibiting workplace discrimination against racial

and ethnic minorities, women, and homosexuals were

enacted precisely because prejudices against, or

stereotypical assumptions concerning, those persons

were so widespread and deeply held. When the

Legislature first authorized private suits to redress

discrimination in 1974 (see St. 1974, c. 478), the

Legislature could reasonably have been of the view

at plaintiffs asserting their rights under G. L. c.

151B would face reluctance or even downright

hostility from jurors, whereas judges would be better

able to uphold and enforce the law as written. (By way

of historical reference to illustrate the point, 1974 was

the first year of court-ordered busing to desegregate

the Boston public schools, a time of terrible racial

strife within the city.) That discrimination claims were

48a

to be handled either by the MCAD under § 5 or by “the

court” under § 9 reflected not only the equitable

nature of those newly created clainis but also the

practical reality of the times, namely, that jurors’

sympathies would too often lie with the perpetrators,

not with the victims, of discrimination.

It is for these reasons that today’s uncritical

reaffirmance of the analysis in Dalis strikes me as

potentially troublesome. In the future, the Legislature

may wish to address some other pervasive social

problem, and may again want to create a new cause of

action as part of the remedy for that problem, but may

also have sound reasons for believing that juries

would not be hospitable to such claims or would

otherwise not be well suited to decide them. If the

reasoning of Dalis prevails over that of Nei, it would be

extremely difficult for the Legislature to create a new

cause of action without simultaneously conferring a

right to a jury trial, a right that could, in some cases,

operate to undermine the very remedy the Legislature

wanted to fashion. -

However, a decision to overrule a prior case must

be based on more than a mere academic disagreement

with its analysis. By their nature, cases heard by this

court regularly involve difficult issues where there is

much to be said for both sides. Whatever result the

court reaches thus remains open to justifiable

criticism in future years. It is the “octrine of stare

decisis that comes to the rescue and aliuws us to

avoid endless revisiting of what were, and will always

remain, difficult legal issues. “Stare decisis is a

salutary principle, because in most matters a settled

rule on which reliance can be placed is of more

importance than the precise form of the rule.”

Kabatchnick v. Hanover-Elm Bldg. Corp., 328 Mass.

341, 346-347 (1952). “While perhaps it is more

important as to far-reaching juridical principies that

the court should be right, in the light of higher

civilization, later and more careful examination of

49a

authorities, wider and more thorough discussion and

more mature reflection upon the policy of the law,

than merely in harmony with previous decisions... it

nevertheless is vital that there be stability in the

courts in adhering to decisions made after ample

consideration. Parties should not be encouraged to

seek re-examination of determined principles and

speculate on a fluctuation of the law with every

change in the expounders of it.” (Citation omitted.)

Mabardy v. McHugh, 202 Mass. 148, 152 (1909).

Thus, in order to overrule a prior case, it is*not

enough that some or all of the Justices of this court

have some intellectual or academic disagreement with

the earlier analysis of the issue. There must be

something more, above and beyond such a

disagreement, that would justify some exception to the

doctrine of stare decisis. Here, whatever my concerns

as to the soundness of the reasoning in Dalis, I see no

problem or injustice that results from continued

adherence to the holding of that case. While I doubt

that there is a constitutional right to jury trials in G.

L. c. 151B cases, juries are now perfectly competent to

decide such cases. Trials of employment

discrimination claims customarily hinge on

assessments of witness credibility and motive, issues

that jurors are particularly well equipped to resolve.

Adherence to Dalis also has the pragmatic benefit of

making State law employment discrimination claims

under G. L. c. 151B procedurally consistent with Title

VII claims under Federal law, which can also be tried

to a jury. See 42 U.S.C. § 1981a (c)(1) (2000).” There

have been no particular problems encountered in

7 Prior to the Civil Rights Act of 1991, Pub. L. No. 102- 166,

105 Stat. 1071, the Supreme Court had stated that there was no

right to a jury trial in Title VII cases. See Lehman v. Nakshian, 453

U.S. 156, 165 (1981). The 1991 Act effectively overturned that line

of precedent. See Pub. L. 102-166, § 102 (codified in 42 U.S.C. §

1981alc][1] [2000]). See also Tyler v. Bethlehem Steel Corp., 958

F.2d 1176, 1181 (2d Cir.), cert. denied, 506 U.S. 826 (1992).

50a

having juries decide these claims, and, after more

than a decade’s experience with such jury trials post-

Dalis, there is no reason to think that any such

problems lurk on the horizon.® As today’s decision

points out, none of the parties before us (and none of

the amici) has asked us to overrule Dalis, which

suggests that litigants and practitioners on both sides

are content with the status quo. I am disinclined to fix

something that is not broken, even if I would have

constructed it differently in the first place.

Nor do I see any unfairness in overruling Lavelle

while continuing to adhere to the holding in Dalis. In

my view, Dalis gives both sides something that they

are not actually entitled to, namely, a right to a jury

trial on § 9 claims. That both sides have that

undeserved benefit under this court’s analysis of § 9

does not make it unfair to give them only what they

are entitled to in proceedings under § 5. As is

customary, it is the claimant who chooses the forum

in which to pursue her claim, and the procedures

available to both parties in whichever forum is chosen

are abundantly fair to both sides. If this court has

incorrectly added yet another procedural option in one

forum, that additional option has not created any

imbalance or unfairness that I can see.

I am thus satisfied that today’s decision properly

overrules Lavelle, but it is stare decisis, and stare

decisis alone, that convinces me to adhere to the

holding in Dalis.

8 By comparison, the court’s overruling of Lavelle in today’s

decision is well justified. Beyond the errors in its analysis, the

Lavelle decision has literally wreaked havoc with the conduct of

MCAD proceedings, undercut the MCAD’s role in enforcing G. L. c.

151B, caused substantial delay in the resolution of discrimination

claims, and produced a plethora of difficult substantive and

procedural questions as to the interplay between the MCAD

proceedings, the MCAD’s decision, and a subsequent jury trial.

When an erroneous decision has, in the vernacular, “created a

monster,” as Lavelle has done, stare decisis does not stand in the

way of our correcting that error.

Sla

COWIN, J. (dissenting). Our decision in Dalis v.

Buyer Advertising, Inc., 418 Mass. 220 (1994) (Dalis),

stated that, pursuant to art. 15 of the Massachusetts

Declaration of Rights, plaintiffs in G. L. c. 151B

actions could demand a jury trial. In Lavelle v.

Massachusetts Comm’n Against Discrimination, 426

Mass. 332 (19977) (Lavelle), we conferred a reciprocal

right on respondents. I am not persuaded by the logic

underlying Dalis, particularly in view of the fact that

antidiscrimination suits were totally unknown at

common law. However, I could accept the conclusion

in Dalis in tandem with the holding in Lavelle to

prevent a denial of equal protection. But overruling

Lavelle while’ preserving Dalis creates an

unconstitutional asymmetry that empowers plaintiffs

unilaterally to extinguish respondents’ access to a jury

trial merely by choosing under which section of the

statute to proceed. Therefore, I respectfully dissent.

The right to a jury trial is fundamental. Aetna Ins.

Co. v. Kennedy, 301 U.S. 389, 393 (1937). Spence v.

Reeder, 382 Mass. 398, 411 (1981). Article 15

preserves that right “[iJn all controversies concerning

property, and in all suits between two or more

persons,” but makes an exception for those types of

cases that would have been resolved in equity courts,

as opposed to common-law courts, before 1780. See

Parker v. Simpson, 180 Mass. 334, 355 (1902). In

Dalis, supra at 223, this court concluded that the art.

15 night to a jury trial attaches to sex discrimination

claims under G. L. c. 151B, § 9, because those claims

are purportedly “analogous to common-law actions

sounding in both tort and contract.”

However, Dalis was inconsistent with our earlier

decision in Nei v. Burley, 388 Mass. 307 (1983), in

which we concluded that an action for “unfair or

deceptive acts or practices” under the consumer

protection act, G. L. c. 93A, did not give rise to a jury

trial right. The Nei decision was predicated in part on

the fact that G. L. c. 93A, while it often involves

52a

actions analogous to common-law tort and contract

claims, is not limited by those traditional legal

theories and sometimes “embrace[s] causes of action

for which there are no common-law analogues.” Id. at

313. Similarly, G. L. c. 151B encompasses many

claims that are not analogous to common-law contract

or tort actions.! As a practical matter, neither

consumer protection nor sex discrimination causes of

action would have been familiar to a court in 1780;

both may be analogous to traditional claims, but both

also exceed the scope of that tradition.2 The court’s

references to early cases involving wrongful discharge

and breach of employment contract claims prove

nothing in this regard. The existence of such cases

‘does not speak to whether employment discrimination

was actionable at common law.

Assuming Dalis was correctly decided, however,

and a jury trial right attaches to § 9 claims, that right

must be equally available to plaintiffs and

respondents.? See Lavelle, supra at 338. See also

FUD’s, Inc. v. State, 727 A.2d 692, 697 (R.I. 1999).

However, Dalis left respondents without this right. In

a G. L. c. 151B action, it is the plaintiff who decides

1 For example, G. L. c. 151B, § 4, prohibits employers from

refusing to hire members of protected classes, owners of land from

refusing to sell or lease to protected classes, and retailers from

refusing to extend credit because of a person’s age.

2 The Legislature can authorize a jury trial to one aggrieved by

the violation of a statute even where art. 15 does not demand it.

Whalen v. Nynex Info. Resources Co., 419 Mass. 792, 794 (1995);

Nei v. Burley, 388 Mass. 307, 312 (1983). However, aside from

explicitly authorizing jury trials for claims of age discrimination in

employment in G. L. c. 151B, § 9, the Legislature did noi exercise

this power with regard to other perts of the statute. See Nei v.

Burley, supra at 314 (refusing “to imply a right to a jury trial”

under G. L. c. 93A in absence of explicit legislative recognition of

such right). |

3 For the sake of clarity, I use the term “plaintiffs” to refer both

to “complainants” proceeding under G. L. c. 151B, § 5, and to

aggrieved persons seeking a civil remedy in court under G. L. c.

151B, § 9.

$3a.

whether to pursue an administrative remedy under §

9, or to proceed under § 9 in the civil courts, thereby

taking advantage of the jury trial right granted in

Dalis. Under this regime, plaintiffs had the unilateral

power, by choosing § 5, to deprive the respondent of a

jury trial.

Lavelle, supra at 338, remedied this inequity by

concluding that when a plaintiff elects to proceed

under G. L. c. 151B, § 5, the respondent must be

entitled to demand a jury trial at some point in the

proceeding. This conclusion was based on ‘two

overarching concepts. First, pursuant to the reasoning

in Dalis, we concluded that, because the

Massachusetts Commission Against Discrimination

(MCAD), in a § 5 proceeding may award damages that

go beyond traditional areas of equity, such as pain

and suffering, emotional distress, and economic loss,

the “sacred” and fundamental art. 15 right to a jury

trial was necessarily invoked. Id. at 337. Second,

because Dalis concluded that art. 15 granted the right

to a jury trial to plaintiffs, equal protection demanded

that “[ijf one side to a dispute has a constitutional

right to a jury trial . . . the other side must have a

similar right.” Id. If the first proposition was a proper

statement of constitutional law, the second was

necessary to avoid a different constitutional violation.

A fundamental right, even if erroneously availabie,

must be available to both parties.

4 The court notes that Lavelle itself recognized that certain

respondents might secure “two chances to prevail,” one before the

MCAD and again before a jury. Lavelle v. Massachusetts Comm’n

Against Discrimination, 426 Mass. 332, 338 (1997). The Lavelle

court reasoned that this potential inequity (one that did not

implicate constitutional concerns) was a temporary expedient to

prevent an immediate constitutional violation, until such time as

the Legislature acted to provide another solution. Jd. at 338-339.

That immediate constitutional violation, it bears repeating, was

securing for the plaintiff both the fundamental right to a jury trial,

and the ability unilaterally to deprive the respondent of that same

right.

54a

The court characterizes the advantage it confers on

plaintiffs as a product of a mere choice of forum or

avenue for redress, citing Panama R.R. v. Johnson,

264 U.S. 375, 392-393 (1924); New York & Mass.

Motor Serv., Inc. v. Massachusetts Comm’n Against

Discrimination, 401 Mass. 566, 550-581 (1988); and

Paro v. Longwood Hosp., 373 Mass. 645, 648-652

(1977). Ante at - . None of these cases allowed one side

of a legal dispute unilaterally to deprive the opponent

of a fundamental right. In New York & Mass. Motor

Serv., Inc. v. Massachusetts Comm’n Against

Discrimination, supra at 579-580, the respondent

claimed _ that the statutory scheme of G. L. c. 151B

violated equal protection because it allowed plaintiffs,

by electing an administrative remedy under § 5, to

force respondents into a proceeding that did not

adhere to the strict rules of evidence, required proof

by “substantial evidence” instead of a “fair

preponderance,” and permitted respondents only

judicial review under the standard of G. L. c. 30A. In

that case, we found no merit to the respondent’s

claim, but we went out of our way to point out that we

were not addressing a fundamental right. Jd. at 580-

981. See Lavelle v. Massachusetts Comm’n Against

Discrimination, supra at 336. Similarly, the Johnson

Court, supra at 392-393, addressed the right of

injured seamen to elect alternative measures of

redress, but not the substance of the “measure of

redress or either form of action.” In Paro v. Longwood

Hosp., supra at 648-651, the plaintiffs challenged a

statute which required medical malpractice claimants

who cannot convince a tribunal that their claims

“raise a legitimate question of liability,” G. L. c. 231, §

60B, to post a bond before pursuing their claims in

the courts. Once again, we explicitly stated that “[n]Jo

claim is made in this case that a fundamental interest

. .is involved ... .” Id. 650. Unlike those cases, here

we are dealing with one party’s ability to deprive

—

55a

another party of a constitutionally guaranteed,

fundamental right.

Th? court also goes to great lengths to distinguish §

9 “private actions” from § 5 “civil administrative

proceedings,” the “prinary purpose of [which] is to

vindicate the public’s interest.” Ante at 563, 567. This

distinction is artificial. Nowhere in G. L. c. 151B, or in

our prior cases, is it established that the vindication of

the public’s interest in prosecuting discrimination

claims in general is the “primary purpose” to be

promoted over the vindication of the private interests

of those adversely affected by that discrimination. The

cases cited by the court for this proposition, Thomas v.

EDI Specialists, Inc., 437 Mass. 536, 541-542 (2002),

and College Town, Div. of Interco, Inc. v. Massachusetts

Comm’n Against Discrimination, 400 Mass. 156, 170

(1987), state only that the MCAD has broad authority

to remedy and reduce discrimination in the workplace.

Ante at 563.

Irrespective of debates over the abstract purpose of

antidiscrimination laws, in reality, proceedings under

G. L. c. 151B, § 5, are just as much cases between two

parties as are civil actions proceeding under G. L. c.

151B, § 9. The court cites Zora v. State Ethics Comm’n,

415 Mass. 640, 652-653 (1993), for the proposition

that administrative proceedings before the MCAD “do

not involve a suit between two or more persons.” Ante

at 567 But Zora addressed G. L. c. 268A, a statutory

scheme that authorizes actions only by the State

Ethics Commission, and makes no provision for

private actions. By contrast, when a plaintiff elects to

proceed under G. L. c. 151B, § 5, the matter is for all

intents and purposes a private suit in which a private

plaintiff seeks private remedies. The MCAD does not

initiate the suit; it merely puts its resources behind

the plaintiff's claims in those cases where it finds that

there is “probable cause” to credit those claims. The

plaintiff advances the identical substantive claims

under § 5 as he or she would under § 9; the plaintiff is

56a

able to request the same remedies as under § 9 (with

the exception of punitive damages); and prevailing

plaintiffs are often (in fact, almost always according to

the MCAD’s supplemental brief) awarded remedies

that exceed the scope of equitable relief. Further, the

plaintiff retains control over important aspects of the

case. If the MCAD wishes to settle but the plaintiff

does not, the plaintiff is entitled to remove the case to

the civil courts. 804 Code Mass. Regs. 1.18 (4) (1998).

The plaintiff also may unilaterally remove the

complaint from the commission after ninety days,

regardless of the public’s interest in the case. G. L. c.

151B, § 9.

Despite these indicia of a private action at law, the

court insists on labeling proceedings under § 5 as

somehow more administrative and equitabl:: in nature

than private actions. But this denomination is belied

by the court’s simultaneous concern about the

amount of emotional distress damages routinely

awarded by the commission to plaintiffs. Ante at 575.

The court's attempt to rein in those amounts by

suggesting guiding principles and factors is tellingly

reminiscent of the type of instructions that would be

given to a jury at a trial. But even assuming arguendo

that, in cases proceeding under § 5, the MCAD is not

participating in a private action but primarily acting to

vindicate public rights, there is still no permissible

basis for granting the right to a jury trial only to one

side of a dispute simply by declaring that the process

is “administrative,” at least while the proceeding may

result in an order that compels a respondent to pay,

sometimes substantially, for the plaintiffs alleged

losses.

Today the court, in the name of vindicating the

Stat2’s antidiscrimination policy, visits discrimination

on an entire class of citizens, those who find

themselves respondents at the MCAD. If we are to

have Dalis, simple fairness dictates that we have

Lavelle. Our continued tinkering with this statute is,

57a

respectfully, making bad matters worse, and therefore

I dissent.

58a

APPENDIX B

SUPREME JUDICIAL COURT

for the Commonwealth

Case Docket

MASSACHUSETTS BAY TRANSPORTATION

AUTHORITY vs. GERALDINE ROSS & another

SJC-09002

10/16/2003

#17

ORDER (By the Court): This case will be reargued at

the Court’s February, 2004, sitting. The parties may,

if they wish, file supplemental briefs or memoranda on

or before January 15, 2004, on the question whether

Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994),

was correctly decided. See attached copy of amicus

announcement. (Notice to counsel.)

10/16/2003

#17.5

ANNOUNCEMENT: These cases (SJC-9002, -9081,

-9100, -9112) involve a variety of issues regarding the

assertion of jury trial rights by parties that were

respondents in proceedings before the Massachusetts

Commission Against Discrimination. See Lavelle v.

MCAD, 426 Mass. 332 (1997). Amici are invited to

address the various issues raised by the parties as

well as the addition..1 question, not raised by the

parties, whether Dalis v. Buyer Advertising Inc., 418

Mass. 220 (1994) was correctly decided. Arguments

are scheduled for Feb. 2004. (Distributed to list on

file.)

59a

APPENDIX C

May 28, 2004

The Honorable Margaret H. Marshall

Chief Justice

Supreme Judicial Court

Commonwealth of Massachusetts

One Beacon St., Room 303

Boston, Massachusetts 02108

Re: Stonehill College v. MCAD, et al. No. SJC-

09112; Wilfert Bros. Realty Co. v. MCAD, et al.

No. SJC-09081; Keyland Corp. v. MCAD, et al.

No. SJC-09100; MBTA v. MCAD, et al. No.

SJC-09002

Dear Chief Justice Marshall:

Appellants, Stonehill College, Massachusetts Bay

Transportation Authority, and Appellees Wilfert

Brothers Realty Co., Keyland Corporation (collectively

referred to as “respondent employers”) respectfully

petition for rehearing, pursuant to Mass. R. App. P.

27, of this Court’s consolidated decision issued May 6,

2004, in the above-referenced cases on the grounds

that the Court has overlooked certain significant

points of law. Specifically, the respondent employers

seek a rehearing on the ground that the Court has

overlooked the federal basis for its prior decision in

Lavelle v. MCAD, 426 Mass. 332 (1997). Respondent

employers urge this Court to allow a rehearing to

address and clarify its grounds for overruling that

portion of Lavelle which deprives employers of their

Fourteenth Amendment jury trial right as recognized

in Lavelle.

In Stonehill College v. MCAD, 441 Mass. 549

(2004), this Court holds “the Dalis decision does not

require, as a matter of State Constitutional law, the

60a

result reached by Lavelle.” Id. at 552. Compare

Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)

(discussing when state court decisions rest upon

adequate and independent’ state grounds).

Accordingly, this Court holds, “the jury trial holding in

Lavelle should be overruled.” Id. at 562.

Unfortunately, this Court overlooks that its equal

protection holding in Lavelle was based solely upon

federal constitutional law under the Fourteenth

Amendment. pate:

This Court in Lavelle expressly recognized that the

respondent, James Lavelle, founded his equal

protection argument solely upon the Fourteenth

Amendment and not upon a variety of possible state

constitutional grounds. See Lavelle, 426 Mass. at

336, n.6. Thus, this Court recognized the jury trial

rights of employers defending against chapter 151B

allegations as a matter of federal law. Indeed, as

recently as June, 2000, this Court noted that the right

to a jury trial was well developed and that the decision

in Lavelle, “was-_the inevitable jurisprudential step that

followed Dalis and MacCormack.” Wynn & Wynn P.C.

v. MCAD, 431 Mass. 655, 663-64 (2000). A fortion,

any reversal of Lavelle must correctly apply and

interpret federal constitutional doctrine.

Notably, this Court recently had the opportunity to

evaluate equality safeguards of the Massachusetts

Constitution in the opinion of Goodridge

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