Petition for Writ of Certiorari — Everett Industries, Inc. v. Patel

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00 950 DEC 6-2UW

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In The

Supreme Court of the Anited States

EVERETT INDUSTRIES, INC.,

Petitioner,

Vv.

DIVYABALA PATEL AND MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION,

Respondents.

On Petition For A Writ Of Certiorari

To The Massachusetts Appeals Court

PETITION FOR A WRIT OF CERTIORARI

with Appendix

*ANN M. O’ NEILL

ARTHUR P. MURPHY

MICHAEL R. BERTONCINI

MuRPHY, HESSE, TOOMEY & LEHANE, LLP

44 Farnsworth Street, 2nd Floor

Boston, MA 02210

617-479-5000

Attorneys for Petitioner

*Counsel of Record

December 7, 2000

LEGAL ADVANTAGE © 432 Walnut Street « Cincinnati, OH 45202

(800) 581-2252 \>

RN a

II.

QUESTIONS PRESENTED

Did the Massachusetts Appeals Court commit

an error of law when it rejected Petitioner

Everett Industries, Inc.’s argument that §301

of the Labor Management Relations Act (29

U.S.C. §185 et seq.) (“Section 301’) preempts

Respondent Divyabala Patel’s claim and

deprives the Respondent Massachusetts

Commission Against Discrimination of

subject matter jurisdiction over her claim?

Did the Massachusetts Appeals Court commit

an error of law in upholding the Respondent

Massachusetts Commission Against

Discrimination’s award of attorney’s fees

because the Massachusetts Appeals Court

relied upon an unconstitutional decision by the

Supreme Judicial Court of Massachusetts

which deprived Petitioner Everett Industries,

Inc. of the due process rights afforded it by the

Fourteenth Amendment to the Constitution of

the United States?

TABLE OF CONTENTS

Petition for a Writ of Certiorari ..................0.. |

IN sas 65. 0-04.ob 05.50 dare CeuSKCES a l

SE I nc a oc wk bb ce. sede bade eokuntena 2

Constitutional and Statutory

nn era eis 2

UNO: occ i csddpneunsdvecnibabedece 3

A. Procedural Background

Fe WEES PUI oa ncn snaccecsctccenec 4

2. Retroactive Application Of Attorney

MMe A Lees frog. wie ehewol ces see cen 6

Pe 7

Reasons for Granting the Writ .................... 1]

I. Review Is Warranted Because The Massachusetts

Appeals Court’s Misapplication Of This Court’s

Well-Settled Interpretation Of The Preemptive

Effect Of 29 U.S.C. §185 Conflicts With Relevant

Decisions Of This Court. .................. 1]

II.

Review Is Warranted Because The Retroactive

Application Of The Attorney’s Fees Provision Of

Mass. Gen. L. Ch. 151B Deprived Everett Of The

Due Process Rights Afforded Everett By the

Fourteenth Amendment To The Constitution of The

United States .......... Teererrrey yy cor: 18

ili

COURT RULES

Supreme Court Rules 29.6 ...............ccccccee. l

Supreme Court Rules 14.1(f) ....................... 3

atheiihcateael ee Rha teeta) CCRC! NE OIE EE POU ROAO EC Nerhe CE TRC NOD RETSR THRE cere eRe . . WEYL E nga

TABLE OF AUTHORITIES

STATUTES

panen: Gem. 6, Gh, TSE ak cuss cdaansneass 2,5,6,16,19,22

Mass.Gen.L.ch.151B, §5 ..... 3,4,6 ,16,17,18,19,20,22,23

REROD. GOR, RIO 0.55000 cheb Use aes ieee sneees 15

ed TE ov oe dle Ubi ees edi edendek een 2

29 U.S.C. §185(a) Section (301) ......... 2,4,5,11,12,14

rogth Some if FU | errr rrr errr re rey rey 14

ee eG RE RA dae c ee neda Keteeoe cee 3,19

Title VII [of the 1964 Civil Rights Act] ............ 20

CASES

Allis-Chalmers v. Lueck, 471 U.S. 202, 213, 85 L. Ed. 2d

pO | 1]

Austin v. Boston University, 372 Mass. 654, 657, 363

ee i cigs a ke eke aaa Oe 22

BIW Deceived, et al. v. Local S6, Indus. Union of Marine

and Shipbuilding Workers of America, 132 F.3d 824, 829-

ee ey a kd ad hoe ude hse eR one 12

ae ita binn 2

Blood v. Edgar’s, Inc., 36 Mass. App. Ct. 402, 408-410,

632 N.E.2d 419 (Mass. App. Ct. 1994) ........... 18,22

Bowen v. Georgetown University Hospital, 488 U.S. 204,

208, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988) ........ 18

Bradley v. School Board of the City of Richmond, 416 U.S.

696, 40 L. Ed. 2d. 476, 94 S. Ct. 2006 (1974) ........ 21

Central Illinois Public Service Company,

139 NLRB (1962), 1407, enfd. NLRB v. Central Illinois

Ca. SORE Te SIG Ge TIED) oni is i 15

Champion Boxed Beef Company v. Local No. 7, UFCW, 24

P56 OG SOOO Ce. TION oe ces ctscs ess 15

City Council of Waltham v. Vinciullo, 364 Mass. 624,

626, 307 N.E.2d 316 (Mass. 1974) ...........02 eee ya

Flibotte, et al. v. Pennsylvania Truck Lines, Inc., 131 F.3d

21, 26 (1 Cir. 1998), cert. denied 118 S. Ct. 1806 (1998)]2

Fontaine v. Ebtec Corporation, 415 Mass. 309, 320-21,

207 NE 26 FAG CGE. UGGS) ode kas ence sesnns 6,22,23

Hanscom v. Malden & Melrose Gas Light Company,

220 Mass. 1, 3, 107 N.E. 426 (Mass. 1914)) .......... 22

Hughes Aircraft Company v. United States, 520 U.S.

939, 946, 138 L. Ed. 2d 135, 117 S. Ct. 1871

2 OEE OT ae eee er wr ree ert 18,19, 20

Jackson v. Liquid Carbonic Corp., 863 F.2d 111 (1* Cir.

ie SRN oe ai! anh sti os

1988), cert. denied 490 U.S. 1107, 104 L. Ed. 2d 1021,

tpn bncneveneccecece ll

Jones v. Cassens Trans., 982 F.2d 983, 985

(6" ‘Cir. ne COREE a ee ee 12

Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S.

827, 855, 108 L. Ed. 2d 842, 110 S. Ct. 1570

ES Se et a 19

Landgraf v. USI Film Products, 511 U.S. 244, 265,

128 L. Ed. 2d 229, 114S. Ct. 1483 (1994) ........ 19,20

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399,

407, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988) .... 11,12

Litton Fin. Printing DIB. v. NLRB, 501 U.S. 190, 198,115

Oe Se Sol OT 6) 16

Manville Forest Products Corporation v. United

Paperworkers Int'l Union, Local 364, 831 F.2d 72, 75-76

i vases cs ecccccevcaccese 15

Martin v. Everett Hadix, 527 U.S. 343, 352, 144 L. Ed. 2d

347, 119 S. Ct. 1998 LH SORE 19

May Department Stores, Co. v. NRLB, 326 U.S. 376, 385,

90 L. Ed. 145, 66 S. Ct. 203 (1945) ................ 17

NLRB v. McClatchy Newspapers, 964 F.2nd 1153, 1162

re ib lb isc et cccsencssanccses 17

O'Brien v. Consol. Rail Corp., 972 F.2d 1 (1" Cir. 1992),

Vil

PRE ty

SF ical il

ABALONE RA RY ON SNe eA CO ES Op

cert. denied 506 U.S. 1054, 122 L. Ed. 2d 134, 113 S. Ct.

SOO LNOEEE ke kiss ccecnsanwice scenes euseeeiared 12

Patel v. Everett Industries, Inc., 18 MDLR 26 (1996)... . 1

Patel v. Everett Industries, Inc., 18 MDLR 182 (1996) ..1

Rivers v. Roadway Express, Inc., 511 U.S. 298, 303, 128 L.

eG. 26-27%, 144 5. Co TSI TI vc ka sb nhs deeds 20,23

School Committee of Brockton v. MCAD, 423 Mass. 7,

19, 666 N.E.2d 468 (Mass. 1996) ............... 6,7,23

Society Propagation of the Gospel v. Wheeler, 22 F. Cas.

756, 767, 2 Gall. 105 (1814)(Story, J.)) .............. 20

United Steelworkers of America v. Warrior & Gulf Nav.

Co., 363 U.S. 574, 581-82, 4 L. Ed. 2d 1409, 80

ih R: LOEF SO che Whee hindu decane sa dunsaba 12

Vill

PETITION FOR A WRIT OF CERTIORARI

Petitioner Everett Industries, Inc.' (hereinafter referred

to as “Everett”) respectfully requests this Court issue a writ of

certiorari to review the decision of the Massachusetts Appeals

Court affirming the judgment of the Superior Court for the

County of Norfolk in this case.

OPINIONS BELOW

The order issued by the Supreme Judicial Court

denying Everett’s application for further appellate review is

not reported, but is enclosed in the Appendix to this Petition

for A Writ of Certiorari (hereinafter referred to as “Appendix”

or“App.”) at Al. The decision of the Massachusetts Appeals

Court affirming the judgment of the Massachusetts Superior

Court for the County of Norfolk is not reported, but is

enclosed in the Appendix at Bl. The orders of the

Massachusetts Superior Court for the County of Norfolk also

are not reported, but are enclosed in the Appendix at C1-H4.

The January 24, 1996 decision of the Hearing Officer of the

Massachusetts Commission Against Discrimination is

reported at 18 MDLR 26 and the September 18, 1996 decision

of the Full Commission of the Massachusetts Commission

Against Discrimination is reported at 18 MDLR 182. See

App., Jl and I].

' Pursuant to this Court’s Rule 29.6, Petitioner Everett

Industries, Inc. makes the following corporate disclosure: The

Trans Lease Group, Inc., a Massachusetts corporation, is the

parent of Petitioner Everett Industries, Inc. No publicly held

company owns 10% or more of the stock of either Everett

Industries, Inc. or The Trans Lease Group, Inc.

BASIS FOR JURISDICTION

On June 29, 2000, the Massachusetts Appeals Court

affirmed the judgment of the Massachusetts Superior Court

for the County of Norfolk affirming a decision of the Full

Commission of the Respondent Massachusetts Commission

Against Discrimination (hereinafter referred to as the

“MCAD”) finding that Everett had unlawfully discriminated

against Respondent Divyabala Patel (hereinafter referred to as

Patel”) on the basis of her handicap in violation of Mass.

Gen. L. ch. 151B. Subsequently, on September 8, 2000, the

Supreme Judicial Court of Massachusetts denied Everett’s

application for further appellate review. Accordingly, this

Court has jurisdiction under 28 U.S.C. §1257(a) to review on

a writ of certiorari the judgment affirmed by the

Massachusetts Appeals Court.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution of the

United States provides in pertinent part:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

29 U.S.C. §185(a) (section 301 of the Labor

Management Relations Act, hereinafter referred to as “Section

sais Liaa

301”) provides:

Suits for violation of contracts between an

employer and a_ labor organization

representing employees in an industry

affecting commerce as defined in this chapter,

or between any such labor organizations, may

be brought in any district court of the United

States having jurisdiction of the parties,

without respect to the amount in controversy

or without regard to the citizenship of the

parties.

St. 1989, c. 722, §27 provides:

Said second paragraph of said section 5 of

said chapter 151B, as so appearing, is hereby

further amended by inserting after the twenty-

third sentence the following sentence:- In

addition to any such relief, the commission

shall award reasonable attorney’s fees and

costs to any prevailing complainant.

Pursuant to this Court’s Rule 14.1(f), Mass. Gen. L.

ch. 151B, §5 is set forth at App., infra, Ol.

STATEMENT OF THE CASE

On January 24, 1996, a hearing officer of the MCAD

rendered a decision in favor of Patel on her handicap

discrimination claim against Everett, awarding her $25,000.00

plus interest in damages for emotional distress and denying

her request for back pay. On September 18, 1996, the Full

Commission of the MCAD affirmed the decision of the

Hearing Officer and also awarded Patel attorney’s fees in the

amount of $24,368.00 and costs in the amount of $1,303.80.

Everett appealed the decision of the Full Commission of the

MCAD to the Massachusetts Superior Court for the County

of Norfolk. The Superior Court (Chernoff, J.) affirmed the

decision of the Full Commission of the MCAD on December

3, 1997. Everett and Patel then filed cross-appeals with the

Massachusetts Appeals Court. On June 29, 2000, the

Massachusetts Appeals Court issued a Memorandum and

Order Pursuant to Rule 1:28 affirming the judgment of the

Massachusetts Superior Court for the County of Norfolk.

Everett now requests that a petition for a wnt of

certiorari be issued by this Court to review the decision of the

Massachusetts Appeals Court. Specifically, Everett requests

that this Court review the Massachusetts Appeals Court’s

determination that Section 301 does not preempt Patel’s

handicap discrimination claim and the Massachusetts Appeals

Court’s holding that the amendment to Mass. Gen. L. ch.

151B, §5 allowing for the recovery of attorney's fees applies

retroactively to Patel’s claim against Everett.

A. Procedural Background.

1. Federal Preemption.

Everett first raised the federal issue of Section 301

preemption before the Superior Court for the County of

Norfolk through its motion for leave to amend its petition for

judicial review of the MCAD’s proceedings, filed with the

Superior Court on February 28, 1997. App., infra, H1. The

Superior Court for the County of Norfolk allowed Everett's

motion to amend on March 3, 1997. App., infra,G1.

Subsequently, the Superior Court for the County of Norfolk

concluded that Section 301 did not preempt Patel’s handicap

discrimination claim, ruling that

The Hearing Officer found that Everett

Industries had provided transfers in the past

and refused to do so for Patel. Furthermore,

the Hearing Officer found that this amounted

to impermissible discrimination under state

law. These findings did not require

interpretation of the collective-bargaining [sic]

agreement, but were based only on the

testimony of witnesses, and are therefore

independent of the agreement for pre-emption

[sic] purposes.

While it may be noted that both the

Hearing Officer and the Full Commission

commented that the collective-bargaining [sic]

agreement does not prohibit transfers, such a

finding does not require federal pre-emption

[sic], as the finding was not necessary for a

finding of discrimination under Massachusetts

law.

Superior Court Memorandum and Order, App., infra, F1. The

Massachusetts Appeals Court also rejected Everett's

preemption argument, stating that there was “no indication in

the hearing officer’s findings that she interpreted the CBA”

and that “the hearing officer was not required to interpret the

CBA to resolve Patel’s discrimination claim and the judge’s

ruling concerning preemption was thus correct.” App., infra,

Fl.

2 Retroactive Application Of Attorney’s Fees.

Everett argued that the retroactive application of the

ainendments to Mass. Gen. L. ch. 151B allowing the MCAD

to award to a prevailing complainant reasonable attorney’s

fees violated Everett’s due process rights guaranteed by the

Fourteenth Amendment to the Constitution of the United

States. Everett made this argument in its reply to Patel’s

motion for judgment on the pleadings, filed with the Superior

Court on April 23, 1997. In its Memorandum of Decision and

Order, the Superior Court for Norfolk County held that the

MCAD ’s award of attorney’s fees was not based upon an

error of law, stating

G.L. c. 151B, §5 was amended in January

1990 to allow the awarding of attorney’s fees

to prevailing parties. Because the complaint

in this case was filed in April 1988, Everett

Industries argues that an award of attorney’s

fees is improper, being a retroactive increase

of liability. While it is true that such an act

will generally not be given retroactive effect

without a specific provision to the contrary,

the amendment in question is an exception, as

has been conclusively and _ specifically

reiterated. School Commission [sic] of

Brockton, 423 Mass. at 16; Fontaine v. Ebtec,

415 Mass. 309, 320 (1993).

App., infra, F\. Similarly, the Massachusetts Appeals Court

made short shrift of Everett’s complaint that its constitutional

rights had been violated by the retroactive application of the

amendment to Mass. Gen. L. ch. 151B:

Everett challenges as well the award of

counsel fees as a violation of its due process

rights and, to prevail, would have us overrule

the Supreme Judicial Court’s recent decision

in School Committee of Brockton v.

Massachusetts Com'n Against Discrimination,

423 Mass. at 16, which controls in all material

respects. Suffice it to say that we will not do

so. The award stands.

App., infra, Bl.

B. Factual Background

Patel was hired by Jordan Marsh Company (“Jordan

Marsh”) in 1974 to work in Jordan Marsh’s warehouse in

North Quincy (“the warehouse”). See Mass. R. App. P. 18(e)

Separate Volume of Exhibits And Transcripts Designated For

Inclusion in The Appendix (“App.II”), 2-4.’ She was hired

into the union position of clerical processor which later

became known as merchandise processor. Ibid. Upon being”

hired by Jordan Marsh in 1974, Patel became a member of the

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, Local 25 (the

“Union”) and her employment was governed by the terms of

the collective bargaining agreement between Jordan Marsh

and the Union. App.II, 191-96.

2 Citations made to the “Mass. R. App. P. 18(e) Separate

Volume of Exhibits And Transcripts Designated For Inclusion

in The Appendix” and to the “Appendix to the Parties’ Briefs”

(hereinafter “App. III”) in this section of the petition refer to the

record on appeal before the Massachusetts Appeals Court.

On or about April 22, 1984, Jordan Marsh entered into

an agreement (the ‘““Agreement’’) with Everett. App., infra,

M1; NI. Under the Agreement, Everett agreed to become the

successor employer of the Jordan Marsh employees in the

warehouse. /bid. Everett agreed to assume the collective

bargaining agreement then currently in effect, and all

obligations thereunder, between Jordan Marsh and the Union.

Ibid.; App.II, 23, 191-93, 352-61. Everett further agreed to

recognize the Union as the bargaining agent of the employees

in the warehouse. /bid.

Patel had been a member of the Union from 1974 up

to April 22, 1984, the date Everett entered into the Agreement

with Jordan Marsh. App.II, 191-96. Based on the terms of the

Agreement, Patel became an employee of Everett as of April

22, 1984. App.II, 352-61. The Agreement obligated Everett to

continue the employment of all employees covered by the

collective bargaining agreement and to maintain their terms

and conditions of employment. App.II, 191-93, 352-61.

Prior to Everett becoming the successor employer of

the Jordan Marsh warehouse employees, Jordan Marsh had

had a practice of no light duty assignments. App.II, 170, 200.

Everett did not change this practice. /bid. Specifically,

Everett’s policy with respect to bringing injured employees

back to work was to return them “‘to full and normal duties”.

Ibid.

After Everett became the successor employer at the

warehouse, it negotiated a successor collective bargaining

agreement with the Union effective from July 1, 1984 to June

30, 1987 (the “CBA”). App., infra, K1; App.II, 191, 196-97,

268-300. The CBA did not reference light duty. App.II, 197.

Under the CBA, the only circumstances under which Everett

could transfer employees or assign them to a new position,

including a light duty position, was in accordance with the bid

procedure for job openings. App., infra, K1; App.IL, pp.201-

202, 277-78. The seniority provisions are found in Article V,

Seniority of the CBA. Specifically, Article V, Section 4

addresses job openings and requires a bid procedure when a

position becomes open or when a new job classification is

added. Section 4 of the seniority article provides:

(a) General Openings

Whenever an opening occurs in any

job classification, except in the case of recall

following a layoff as provided in Section 3

above, and the Company determines that there

is need for continuing the job, or when the

Company determines that more regular |

employees are needed on a job, or when a new

classification is added, said openings shall be

posted on bulletin boards designated for such

purpose for bid as provided herein for a period

of three (3) working days. Regular employees

shall have the opportunity for bidding for such

vacant jobs and shall do so by signing the

notice of vacancy where posted. The posting

shall list the job vacancy, job requirement and

rate of pay. The Company shall have a period

of one (1) working day after the expiration of

the posting period in which to consider the

seniority and qualification of the bidders. The

regular employees [sic] with the greatest

bargaining unit seniority bidding for the job

who is qualified shall be awarded the job

pursuant to his bid therefore. . .°

CBA, App., infra, K1. Neither Everett nor Jordan Marsh ever

had a position in the warehouse that encompassed light duty

only. App.II, 271. Indeed, the clearly defined past practice

was no light duty. App.II, 170-200.

Commencing in March, 1987, Patel suffered injuries

at work. App.II, 27-32, 41-46, 171-75. By August, 1987,

Patel was unable to perform any of her duties. App.II, 47, 51,

$2, 54, 112. While Patel was unable to work, Everett

accommodated her by providing her an extended leave of

absence and a job guarantee. App.II, 90-91, 171-74, 181,

184-85.

In July, 1989, Jordan Marsh terminated the Agreement

with Everett. App.II, 210-11. Thereafter, all of the Everett

warehouse employees, including Patel, returned to Jordan

Marsh’s employ. At that point, Everett was no longer the

employer of Patel or any other warehouse employees. App.II,

210-12. Atno point during Everett’s employment relationship

with the warehouse employees did Everett terminate Patel’s

* Identical seniority provisions appear in the successor

contract negotiated between Everett and the Union for the

period extending from July 1, 1987 through June 30, 1990,

notwithstanding the fact that the provisions have a slightly

different numbering system. The successor agreement,

captioned Agreement By and Between Everett Industries, Inc.

and Teamsters Local Union Nos. 25 & 82 Affiliated with the

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, is set forth in the

Appendix, infra, L1. The verbatim provision set forth above

appears in Section 5.8 General Openings of Article 5.0

Seniority. /bid.

employment. App. III, 35. Patel remained on the seniority list

of employees returned to Jordan Marsh employment.

REASONS FOR GRANTING THE WRIT

I. Review Is Warranted Because The

Massachusetts Appeals Court’s

Misapplication Of This Court’s Well-

Settled Interpretation Of The Preemptive

Effect Of 29 U.S.C. §185 Conflicts With

Relevant Decisions Of This Court.

The Court should issue a writ of certiorari in this case

because the decision of the Massachusetts Appeals Court to

which Everett seeks to direct a writ of certiorari decides the

important federal question of preemption of a state handicap

discrimination claim by Section 301 of the Labor

Management Relations Act in a manner that conflicts with

this Court’s interpretation of the preemptive effect of Section

301.

Everett seeks review of the Massachusetts Appeals

Court’s rejection of its argument that the MCAD lacks subject

matter jurisdiction over Patel’s claim because it is preempted

by Section 301. Section 301 preempts state law claims which

require interpretation of a collective bargaining agreement.

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 407,

100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988) (§301 preempts

state law claim if claim requires interpretation of collective

bargaining agreement); Allis-Chalmers v. Lueck, 471 U.S.

202, 213, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985)(claim

preempted if inextricably intertwined with consideration of

terms of labor contract); Jackson v. Liquid Carbonic Corp.,

863 F.2d 111 (1" Cir. 1988), cert. denied 490 U.S. 1107, 104

L. Ed. 2d 1021, 109 S. Ct. 3158 (1989) (§301 preempts

privacy violation claim); Jones v. Cassens Trans., 982 F.2d

983, 985 (6 Cir. 1993) (§301 preempts state law sex

discrimination claim); Cf. O’Brien v. Consol. Rail Corp., 972

F.2d 1 (1* Cir. 1992), cert. denied 506 U.S. 1054, 122 L. Ed.

2d 134, 113 S. Ct. 980 (1993) (Railway Labor Act preempts

State handicap discrimination claim because collective

bargaining agreement must be interpreted to resolve claim).

Section 301 statutory preemption exists so that disputes

involving collective bargaining agreements may be resolved

throughout the nation in accordance with uniform principles

of federal labor law. Lingle, supra, at 405-06.

In Flibotte, et al. v. Pennsylvania Truck Lines, Inc.,

131 F.3d 21, 26 (1* Cir. 1998), cert. denied 118 S. Ct. 1806

(1998), the First Circuit stated that “[§301] labor-law

preemption casts a relatively wide net,” and set forth the test

for preemption:

In practice, this test boils down to whether the

asserted state law claim plausibly can be said

to depend upon the meaning of one or more

provisions within the collective bargaining

agreement.

Ibid.; see also BIW Deceived, et al. v. Local S6, Indus. Union

of Marine and Shipbuilding Workers of America, 132 F.3d

824, 829-30 (1" Cir. 1998) (citing Flibotte test for §301

preemption). It is well-settled that past practices, even where

they are not set forth in the agreement, are considered part of

a collective bargaining agreement. See United Steelworkers

of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 581-

82,4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960).

The Court should grant Everett’s petition for a writ of

certiorari because both the decision by the Hearing Officer

and the decision by the Full Commission reveal that the

Hearing Officer interpreted several portions of the CBA.

At all relevant times, the terms of [Patel’s]

employment were governed by collective

bargaining agreements negotiated by her

union, the Teamsters and [Everett]. (Joint

Exhibits 1 and 2). These collective bargaining

agreements contain no provisions either

allowing or prohibiting changes in work

assignment to reasonably accommodate

employees with handicaps. The agreements

contain provisions for bidding on job openings

in a particular job classification and permit the

employer to transfer employees from one job

classification to another on a temporary basis.

(Joint Exhibit 1)[.] The agreements do not

address transfers of employees within the

same job classification to different areas of the

facility or to different locations within the

same area.

Decision of the Hearing Officer, Finding of Fact No. 27.

App., infra, J1.

We also hold that the collective bargaining

agreement in this case did not erase nor

displace Complainant's statutory rights. The

agreement did not explicitly or implicitly bar

the requested accommodation. This is in

contrast to those situations where the

agreement either explicitly or implicitly bars

the accommodation. In those situations an

employer may assert the agreement as a

defense: the accommodation in_ those

instances may impose an undue hardship on

the employer since it may require the

employer to violate the agreement. This is not

the case here. [citations omitted].

Decision of the Full Commission. App., infra, 11. Justice and

the public interest require the Court to correct this

unwarranted intrusion by the MCAD into the field of federal

labor law.

In this case, the CBA must be interpreted in order to

determine whether Everett unlawfully failed to provide Patel

a reasonable accommodation. Whether Everett was permitted

to grant Patel the accommodation she requested - light duty -

is a question which only can be answered by construing the

relevant provisions of the CBA and past practice. The

Massachusetts Appeals Court rejected this argument and

found that the Hearing Officer’s “findings demonstrate that

she merely perused the [CBA] to determine whether the CBA

made mention of reasonable accommodations for employees

with handicaps or light duty assignments within job

classifications”. App., infra, Bl. Like the MCAD, the

Appeals Court seemingly concluded that because the CBA

was silent on the subject of “reasonable accommodation” or

“light duty”, the type of reasonable accommodation requested

by Patel in this case - light duty - was permissible. The fatal

flaw here is that such a conclusion not only ignores the

seniority provision set forth above, but it tramples the

seniority rights of more senior workers who under the CBA

had the absolute night to bid on the light duty job desired by

Patel.

Furthermore, even assuming arguendo that Section

301 allows state agencies to “peruse” collective bargaining

agreements in connection with state law claims, the CBA’s

silence on reasonable accommodation and light duty

assignments does not mean that Patel’s claims may be

resolved without interpreting the CBA. In fact, in light of the

CBA’s silence on reasonable accommodation and light duty

assignment, federal labor law requires further interpretation

of the CBA, including past practice, to determine whether the

CBA would permit Everett to grant Patel’s request for light

duty.

The Appeals Court upholds the MCAD’s facile

conclusion that because the CBA does not contain the terms

“reasonable accommodation” or “light duty”, then such

accommodation must be permissible. Again, assuming

arguendo that the CBA’s seniority provisions do not prohibit

the accommodation requested by Patel, and it is Everett's

position that they do, the contract interpretation inquiry is not

complete. It is clear that silence on taking a particular action

does not constitute permission to engage in that action.

Central Illinois Public Service Company, 139 NLRB 1407

(1962), enf’d NLRB v. Central Illinois Public Service Co.,

324 F.2d 916 (7 Cir. 1963). It is equally clear that in the

absence of applicable contractual provisions or where contract

provisions can be construed to be ambiguous, federal labor

law requires examination of past practice. Champion Boxed

Beef Company v. Local No. 7, UFCW, 24 F.3d 86, 88-89 (10"

Cir. 1994); Manville Forest Products Corporation v. United

Paperworkers Int'l Union, Local 364, 831 F.2d 72, 75-76 (5"

Cir. 1987).

In this case, regardless of the conclusion ultimately

reached, the fact-finder had to construe the CBA. The first

inquiry is whether the contract addressed the question of

establishment of light duty as an accommodation. Ifthe terms

addressing the issue of light duty are ambiguous or non-

existent, the second inquiry is whether the question is dictated

by past practice. These two inquiries, i.e., interpretation of

the CBA and, if necessary, scrutiny of past practice, are a

necessary threshold to a determination on the question of

discrimination. For only if the CBA (including past practice)

permitted the creation of light duty, and Everett failed to

accommodate Patel with light duty based on discriminatory

motives, could there have been a finding of discrimination.

Clearly, any conclusion regarding discrimination turns on the

interpretation of the CBA.

The issue of contract silence warrants emphasis.

Again, the Appeals Court and the MCAD concluded that

because the CBA was silent on whether light duty can be

provided or whether Everett can carve out a new lighter job

for Patel, then the accommodation sought must be

permissible. This flies in the face of a basic federal labor law

premise that prohibits employers from making unilateral

changes regarding the terms and conditions of employment.

See Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198, 115

L. Ed. 2d 177, 111 S. Ct. 2215 (1991). The rationale for this

fundamental rule of federal labor law has been articulated as

follows:

A unilateral change not only violates the plain

requirement that the parties bargain over

“wages, hours, and other terms and

conditions,” but also injures the process of

collective bargaining itself. “Such unilateral

action minimizes the influence of organized

bargaining. It interferes with the nght to self-

organization by emphasizing to the employees

that there is no necessity for a collective

bargaining agent.”

NLRB v. McClatchy Newspapers, 964 F.2d 1153,1162 (D.C.

Cir. 1992) (quoting May Department Stores Co. v. NLRB, 326

U.S. 376, 385, 90 L. Ed. 145, 66 S. Ct. 203 (1945).

It cannot be disputed that what Patel sought was a

change in the terms and conditions of her employment.

Accordingly, in assessing the reasonableness of Patel’s

request, the Hearing Officer had to interpret the CBA — i.e.,

the express provisions and past practice — to determine if the

change sought by Patel was either permitted or prohibited.

Indeed, the Hearing Officer engaged in such a review when

she “perused” the CBA and characterized various provisions

in Finding of Fact No. 27. See App., infra, Jl. Accordingly,

the Hearing Officer clearly interpreted the CBA and Patel’s

handicap discrimination claim thus is preempted by Section

301.

Moreover, consider the inescapable implication of the

conclusion that light duty or creation of a new lighter duty job

within the classification is permissible because the CBA does

not contain provisions prohibiting such actions: where the

CBA is silent on a particular topic, employer action is

permissible. From such a conclusion, it logically follows, for

example, that because the CBA does not prohibit an employer

from awarding wage increases over and above those which

have been negotiated, then it is permissible for an employer

to unilaterally increase wages. Such a finding also leads to

the conclusion that where a CBA is silent on a particular

action, an assessment of whether such an action is permissible

does not require an interpretation of the CBA and would

never be preempted. It cannot be disputed that even absent

contract provisions on the subject, an employer cannot

unilaterally increase pay - or award a new light duty position.

If this was the case, the entire collective bargaining process

would be undermined and further, employers and unions

would be required to delineate in collective bargaining

agreements every proscribed action.

As described above, in this case, the accommodation

requested by Patel - light duty - required an interpretation of

the seniority provision of the CBA. Such an interpretation

compels federal preemption.

Il. Review Is Warranted Because The

Retroactive Application Of The Attorney’s

Fees Provision Of Mass. Gen. L. Ch. 151B

Deprived Everett Of The Due Process

Rights Afforded Everett By The Fourteenth

Amendment To The Constitution Of The

United States.

The decision of the Massachusetts Appeals Court

affirming the award of attorney’s fees pursuant to an

amendment to state law violates Everett’s due process rights

under the Fourteenth Amendment to the Constitution of the

United States by giving retrospective effect to a statutory

amendment. This action by the Massachusetts Appeals Court

conflicts with the principle of statutory interpretation long

applied by this Court: a statute is deemed to be effective only

for the future unless contrary intent appears. See Bowen v-

Georgetown University Hospital, 488 U.S. 204, 208, 102 L.

Ed. 2d 493, 109 S. Ct. 468 (1988).

Patel filed a complaint with the MCAD on or about

April 21, 1988 alleging that Everett had unlawfully

discriminated against her in violation of Mass. Gen. L. ch

151B. On the date that Patel filed the complaint with the

MCAD, Mass. Gen. L. ch. 151B did not provide for the

recovery of attorney’s fees by a prevailing party. On January

13, 1990, before the MCAD had taken any final action on

Patel’s complaint, the Great and General Court of

Massachusetts amended Mass. Gen. L. ch. 151B, §5 to allow

prevailing parties to recover attorney’s fees. St. 1989, c. 722,

§27. The amendment did not include language making its

application retroactive. Notwithstanding the absence of any

clear legislative intent to apply this amendment

retrospectively, both the MCAD and the Massachusetts courts

awarded attorney’s fees to Patel pursuant to Mass. Gen. L. ch.

151B, §5 in connection with her action against Everett.

As this Court frequently has noted, there is a time-

honored presumption against retroactive legislation that is

deeply rooted in the Court’s jurisprudence. See Hughes

Aircraft Company v. United States, 520 U.S. 939, 946, 138 L.

Ed. 2d 135, 117 S. Ct. 1871 (1997); Landgraf v. USI Film

Products, 511 U.S. 244, 265, 128 L. Ed. 2d 229, 114 S. Ct.

1483 (1994); Kaiser Aluminum & Chemical Corp. v.

Bonjorno, 494 U.S. 827, 855, 108 L. Ed. 2d 842, 110 S. Ct.

1570 (1990) (SCALIA, J., concurring). Thus, in order to

determine whether a new statute should be applied to a

pending case, this Court has announced that it first must ask

whether the legislature has expressly prescribed the statute’s

proper reach. Martin v. Everett Hadix, 527 U.S. 343, 352,

144 L. Ed. 2d 347, 119 S. Ct. 1998 (1999) (citing Landgraf,

511 U.S. at 280). If there is no legislative directive on the

temporal reach of the statute, the Court then must determine

whether the application of the conduct at issue would result

in retroactive effect. bid. If so, the Court presumes that the

statute does not apply to that conduct. Jbid.

Nothing in the 1990 amendment to Mass. Gen. L. ch.

151B, §5 evidences a clear intent by the legislature that it be

applied retrospectively. Thus, if the 1990 amendment has a

retroactive effect, under this Court’s analysis in Landgraf,

511 U.S. at 280, the Court should presume that the

amendment will not apply to this case. This Court frequently

has cited with approval Justice Story’s “influential definition”

of impermissibly retroactive legislation:

Every statute, which takes away or impairs

vested rights acquired under existing laws, or

creates a new obligation, imposes a new duty,

or attaches a new disability, in respect to

transactions or considerations already past,

must be deemed retrospective.

Hughes Aircraft Company, 520 U.S. at 947 (citing Landgraf,

511 U.S. at 269 quoting Society for Propagation of the

Gospel v. Wheeler, 22 F. Cas. 756, 767, 2 Gall. 105

(1814)(Story, J.)). Here, the 1990 amendment to Mass. Gen.

L. ch. 151B, §5 created a new obligation with respect to a

defendant who was found by the MCAD to have engaged in

unlawful employment discrimination. That amendment

provided the MCAD, for the first time, with the authority to

award attorney’s fees to a plaintiff prevailing on an

employment discrimination claim. Thus, the scenario

presented in this case is similar to that presented in Langraf,

where this Court held that an increase in monetary liability

could not be applied retroactively even though the “normative

scope of Title VII’s [of the 1964 Civil Rights Act] prohibition

on workplace discrimination” was not altered. Rivers v.

Roadway Express, Inc., 511 U.S. 298, 303, 128 L. Ed. 2d 274,

1148. Ct. 1510(1994). Additionally, the scenarios presented

in this case is distinct from those presented in Bradley v.

School Board of the City of Richmond, 416 U.S. 696, 40 L.

Ed. 2d. 476, 94 S. Ct. 2006 and Martin because in both of

those cases attorney’s fees were already available.

Here, before deciding to defend against Patel’s claims

in 1988, Everett assessed the costs to litigate: its costs, not

Patel’s, because under the law attorney’s fees were not

available before the MCAD. The availability of attorney’s

fees before the MCAD would have dramatically changed the

cost-benefit analysis conducted by Everett at the outset of this

litigation. The decision of the Massachusetts Appeals Court

ignores the effect of the attorney’s fees provision on the cost-

benefit analysis conducted by Everett before the amendment

became effective. That such a sea change in available

remedies necessarily must effect a litigant’s cost-benefit

analysis is obviated by the effect of that change in this case:

the emotional distress damages awarded to Patel were

$25,000, while the attorney’s fees awarded by the MCAD

through the retrospective application of the amended Mass.

Gen. L. ch. 151B were $24,368. App., infra, 11; J1. Thus, the

attorney’s fees awarded by the MCAD in this case doubled

Everett’s exposure.

Everett’s due process rights were further impaired by

its reasonable reliance on the well-settled presumption against

retroactive application of statutes long-espoused by the

Massachusetts courts. Absent an express legislative directive,

the Supreme Judicial Court of Massachusetts applies

the general rule of interpretation. . .that all

statutes are prospective in their operation,

unless an intention that they shall be

retrospective appears by necessary implication

from their words, context or objects when

considered in the light of the subject matter,

the pre-existing state of the law and the effect

upon existent rights, remedies and obligations.

City Council of Waltham v. Vinciullo, 364 Mass. 624, 624,

307 N.E.2d 316 (Mass. 1974) (quoting Hanscom v. Malden &

Melrose Gas Light Company, 220 Mass. 1, 3, 107 N.E. 426

(Mass. 1914)). In fact, both before and after the 1990

amendment to Mass. Gen. L. ch. 151B, §5, Massachusetts

courts held that legislation which provides additional damages

in the form of attorney’s fees may not be given retroactive

effect unless expressly provided for in the amendment. Austin

v. Boston University, 372 Mass. 654, 657, 363 N.E.2d 515

(Mass. 1977) (prohibiting retroactive application of

amendment allowing for payment of attorney’s fees); Blood

v. Edgar's, Inc., 36 Mass. App. Ct. 402, 408-410, 632 N.E.2d

419 (Mass. App. Ct. 1994) (same). See also Fontaine v.

Ebtec Corporation, 415 Mass. 309, 320-21, 307 N.E.2d 316

(Mass. 1993).

Consistent with its longstanding presumption against

the retrospective application of statutory amendments, the

Supreme Judicial Court of Massachusetts held that other

damage remedies added to Chapter 151B by the same 1990

amendment that added the attorney’s fees provision to Mass.

Gen. L. ch. 151B, §5 could not be given retroactive

application. Fontaine v. Ebtec Corporation, 415 Mass. at

320-21. Fontaine did not address the retroactive application

of attorneys’ fees.*

* In a footnote, the Fontaine court recognized, but did not

decide, that to the extent the amendment provided only an

alternative forum for dispute it may have retroactive application.

But that was not the issue before the court and, furthermore, the

Following its decision in Fontaine, the Supreme

Judicial Court of Massachusetts inexplicably diverted from its

long line of jurisprudence disfavoring retroactive application

of statutes in School Committee of Brockton v. MCAD, 423

Mass. 7, 19, 666 N.E.2d 468 (Mass. 1996). The School

Committee of Brockton decision is not only inconsistent with

Fontaine, but exceeds the powers and functions reserved to

the judiciary. In the School Committee of Brockton case, the

Supreme Judicial Court of Massachusetts impermissibly

intruded upon the domain of the Great and General Court by

judicially legislating a statutory provision which simply does

not exist and thus giving retroactive effect to the attorney’s

fees amendment to Mass. Gen. L. ch. 151B, §5. Such

overstepping violates the due process provisions of the

Fourteenth Amendment to the Constitution of the United

States.

This Court has warned that due to the presumption

against the retroactive operation of statutes, courts should not

“presume” legislative intent to act retroactively. Rivers, 511

U.S. at 311. Where, as in this case, there is no evidence of

legislative intent that a statute be applied to cases already

pending at the time the statute was enacted, courts should not

infer such intent. The retroactive application of statutes

absent clear indication of legislative intent for such

retroactivity constitutes an unwarranted and impermissible

intrusion upon the due process rights guaranteed by the

Fourteenth Amendment to the Constitution to the United

States.

attorney’s fee amendment to Chapter 151B, section 5 did not

merely create an alternative forum for resolving Chapter 151B

claims.

CONCLUSION

For all the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

Ann M. O'Neill

Counsel of Record

Arthur P. Murphy

Michael R. Bertoncini

MURPHY, HESSE, TOOMEY & LEHANE, LLP

44 Farnsworth Street, 2" Floor

Boston, MA 02210

(617) 479-5000

Counsel for Petitioner

December 7, 2000

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT FILINGS:

Notice of Denial of

F.A.R. Application

a re ee

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT FILINGS:

Notice of Docket Entry with attached Decision,

SS a a ee

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT FILINGS:

Judgment after Rescript,

Se ee

Order of Judgment,

Handwritten Award on Petition

for Award of Attorney’s Fees,

eA Gp ast wse ees sescccees

Memorandum of Decision and Order,

I hw cap cece sce sceens

COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT FILINGS (CONTINUED):

Handwritten Order Allowing

Plaintiff's Motion for Leave

to Amend its Petition for

Judicial Review,

TE NEE i Shea ou eee G1-G2

Plaintiffs Motion for Leave

to Amend its Petition for

Judicial Review,

PE 5s a ek a EE Se ee H1-H4

COMMONWEALTH OF MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION FILINGS:

Decision of the Full Commission,

filed 9/96 sae a ae Pe ee Lig a ae pe 5 I1-I11

Decision of the Hearing Officer,

EE ik os ed Whe eek ee eS J1-J15

OTHER FILINGS:

Agreement Between Teamsters Local

Union Nos. 25 & 82 and Everett

Industries, Inc. (Division 06 & 00),

Pay 1, Tee ~ BR Ty oe ee eek K1-K53

Agreement Between Teamsters Local

Union Nos. 25 & 82 and Everett

Industries, Inc. (Division 06 & 00),

eee ee sO re L1-L52

— —— a ae

OTHER FILINGS (CONTINUED):

Letter Agreement on Jordan Marsh Stationary,

mee Ses I AE, gon oc bc been van.

Letter Agreement on Jordan Marsh Stationary,

NS isn Gn oe CE SG Ske, Su

Supreme Judicial Court for

the Commonwealth of Massachusetts

1412 Courthouse, Boston, Massachusetts 02108

(617) 557-1020

Ann M. O’Neill, Esquire

Murphy, Hesse, Toomey & Lehane

44 Farnsworth St, 2nd Floor

Boston, MA 02110

RE: Docket No. FAR-11502

EVERETT INDUSTRIES, INC.

vs.

MASSACHUSETTS COMMISSION AGAINST

DISCRIMINATION & another

NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that the above-captioned

Application for Further Appellate Review has been

considered by the Court and is denied.

Susan Mellen, Clerk

Dated: September 8, 2000

To: Ann M. O’Neill, Esquire

Jane K. Alper, Esquire

Gregory A. Manousos, Esquire

A-1

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

CLERK’S OFFICE

1500 New Court House

Boston, Massachusetts 02018

(617) 725-8106

June 29, 2000

Ann M. O'Neill, Esquire

Murphy, Hesse, Toomey & Lehane

44 Farnsworth St, 2nd Floor

Boston, MA 02110

RE: No. 1998-P-0960

EVERETT INDUSTRIES, INC.

MASSACHUSETTS COMMISSION AGAINST

DISCRIMINATION & another

NOTICE OF DOCKET ENTRY

Please take note that on June 29, 2000, the following

entry was made on docket of the above-referenced case:

Decision: Rule 1:28 (K GB LK). Notice. (See image on

file.)

B-]

Judgment Affirmed.

Very truly yours,

The Clerk’s Office

Dated: June 29, 2000

To: Ann M. O’Neill, Esquire

Jane K. Alper, Esquire

Gregory A. Manousos, Esquire

B-2

COMMONWEALTH OF MASSACHUSETTS

Appeals Court of the Commonwealth

At Boston,

In the case no. 98-P-960

EVERETT INDUSTRIES, INC.

VS.

MASSACHUSETTS COMMISSION AGAINST

DISCRIMINATION & another.

Pending in the Superior

Court for the County of Norfolk

Ordered, that the following entry be made in the

docket:

Judgment affirmed.

By the Court,

/s/ Ashley Ahear _, Clerk

Date June 29, 2000.

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

98-P-960

EVERETT INDUSTRIES, INC.

vs.

MASSACHUSETTS COMMISSION AGAINST

DISCRIMINATION and another.’

MEMORANDUM AND ORDER PURSUANT TO

RULE 1:28

A hearing officer for the Massachusetts Commission

Against Discrimination (MCAD) concluded that Everett

Industries, Inc. (Everett) had discriminated against its

employee, Divyabala Patel (Patel), on the basis of her

handicap. The officer found that Everett failed to make the

reasonable accommodation of temporarily assigning Patel to

lighter duty within her job function while her work-related

injuries healed. Patel was awarded damages for emotional

distress and interest on those damages, but her request for

back pay was denied. The Full Commission affirmed the

hearing officer’s findings and also awarded Patel retroactive

attorney’s fees and costs. Everett exercised its right to

judicial review, and a Superior Court judge affirmed the

decision of the Full Commission. Everett and Patel have

filed cross-appeals from the judge’s decision.

'Divyabala Patel.

The applicable scope of review is set forth in the

margin.’ We defer to the fact-finding function of the

Commission where substantial evidence exists to support its

findings and there is no other error of law. See G. L. c.

151B, § 6; Ramsdell v. Western Massachusetts Bus Lines,

Inc., 415 Mass. 673, 677 (1993). We affirm the judgment

of the Superior Court, as the hearing officer made no errors

of law and her factual findings were supported by

substantial evidence.

Background. We briefly set forth the basic facts

found by the hearing officer in order to give context to the

issues presented. Additional facts will be recited when

necessary to address the parties’ arguments.

In 1987, when Patel suffered her disabilities, she

held the position of "merchandise processor" in a

department store distribution center operated by Everett.

Patel and the other merchandise processors assigned to

’The scope of review for MCAD decisions is set forth in

c. 30A, § 14(7), the Administrative Procedure Act. See G.L.

c. 151B, § 6. Chapter 30A, § 14(7) provides, in relevant part,

that the court may set aside or modify the decision of an

administrative agency "if it determines that the substantial

rights of any party may have been prejudiced because the

agency decision is... c) Based upon an error of law;. . . (e)

_Unsupported by substantial evidence; (f) Unwarranted by facts

found by the court on the record. . .; or (g) Arbitrary or

Capricious, an abuse of discretion or otherwise not in

accordance with law." Substantial evidence is defined by

statute as "such evidence as a reasonable mind might accept as

adequate to support a conclusion." See G. L. c. 30A, § 1(6);

School Committee of Brockton v. Massachusetts Com'n

Against Discrimination, 423 Mass. 7, 11 (1996).

B-5

"Area D" at the center had three primary duties: 1) the

nonautomatic conveyor belt, where processors placed price

tags on smaller items of merchandise; 2) "floor work,"

which involved the processing of boxes of goods that were

too large to fit on the conveyer belt; and 3) china, which

involved the processing of heavy boxes of china.’

In early March of 1987, Patel was performing floor

work when she injured her left hand and wrist. Patel was

ordered by her physicians to remain out of work; she

returned to work in early April, 1987.4 When Patel

returned to work, she gave the warehouse manager a

doctor’s note advising that she could not use her left hand

and also informed the Area D supervisor of the same.

However, Patel was assigned to heavy floor work rather

than the "light duty" she requested.

After two weeks, Patel stopped working due to the

pain in and limitations of her injured hand. When she

returned to work at the end of April, she gave the

warehouse manager another doctor’s note and informed him

that her injury still had not healed completely. She

requested a lighter duty assignment to the conveyor belt but

was again instead assigned first to floor work and then to

pack china. Patel testified that the Area D supervisor told

her to stay home if she did not feel well.

*At that time, there were thirty to thirty-five people

working on the D side; approximately fifteen to twenty

individuals were on the conveyor belt, three individuals were

in china, and the rest were on floor work.

‘Patel eventually was diagnosed with a hairline fracture

and a bone out of place in her left wrist.

B-6

In late May of 1987, Patel injured her right hand

while packing china and was unable to-return to work until

June 3. Upon her return, she informed the supervisor and

also her crew leader for Area D that she could not perform

heavy work. Again, Patel was assigned to work on the

floor and told to stay home if she did not feel well.’

On June 9, Patel fell after being struck from behind

by a skid that slipped off a track. She injured her right

ankle and left hand. When Patel returned to work at the

end of July, she was unable to perform the heavy work

assignments due to severe pain in her shoulder, hand and

leg. She then worked for approximately one week but did

not return to work after early August.°

‘When Patel was asked by her counsel why she did not

stay home, Patel testified that "[t]he doctor say you go back,

and I want to go back desperately. I don’t want to stay home.

I need a job there." Patel also testified that at various times

she held a second job because her husband had suffered an

injury and she was then her family’s only source of income.

°Dr. Barry, one of Patel’s treating physicians, testified that

Patel had been under his care since April, 1989. He testified

that, in his opinion, when Patel performed the heavy work

after the initial injuries to her left hand and wrist, she

compensated by using her upper arm more, which caused her

pain in her left arm and shoulder. Dr. Barry also testified that

the second accident aggravated Patel’s condition and caused

the subsequently diagnosed adhesive capsulitis. Adhesive

capsulitis, or "frozen shoulder" is defined as an inflammation

of the capsule around the shoulder joint. The third accident

further worsened her prior injuries. The hearing officer also

noted that Patel is "extremely diminutive in size and stature

and appears to be somewhat frail."

B-7

Representatives from Everett’s management met with

Patel on numerous occasions at her home to discuss her

return to work. Patel informed them that she wished to

return and to be assigned lighter work within her area, or if

necessary, to be reassigned to another department until she

was able to resume the heavy duties. Everett’s management

informed her that, if she returned, she would be required to

perform the same heavy work as before her injuries and not

to expect any kind of transfers or light duty work.’

Patel’s physical problems increased over time and by

April, 1990, her treating physician found her to be totally

disabled from performing the type of work she did prior to

her injuries. Patel never returned to her position at Everett.

We turn now to the parties’ arguments.

1) Federal preemption. As a threshold matter,

Everett argues that the judge erred in ruling that Patel’s

state handicap discrimination claim was not preempted by

§ 301 of the federal Labor Management Relations Act

(LMRA), 29 U.S.C. § 185(a).* The distribution center

’Dr. Barry testified that, in his opinion, Patel could have

performed sedentary work that did not require much use of her

left arm.

*Section 301 of the LMRA states in pertinent part that

"[s]luits for violation of contracts between an employer and a

labor organization representing employees in an industry

affecting commerce . . . may be brought in any district court

of the United States having jurisdiction of the parties..." 29

U.S.C. § 185(a). Over the years, this statutory language has

formed the basis for a complex preemption jurisprudence in

federal labor law. See Lydon v. Boston Sand & Gravel Co.,

175 F.3d 6, 10 (Ist Cir. 1999). Although Everett failed to

B-8

;

employees, including Patel, are union members and their

employment is governed by a collective-bargaining

agreement (CBA). The CBA provides that employees could

only be reassigned or transferred to a new distribution

center job in accordance with certain enumerated bid and

seniority provisions for job openings. The MCAD hearing

officer found no mention in the CBA of accommodations

for handicapped or injured employees. Nor was mention

made there of temporary transfers of employees within the

same job classification to different job classifications,

different areas of the facility or to different locations within

the same area.

The “basic test" for determining whether § 301

preempts a state-law claim is whether a court, "in passing

upon the claim, would be required to interpret the collective

bargaining agreement." Flibotte v. Pennsylvania Truck

Lines, Inc., 131 F.3d 21, 26 (ist Cir. 1997), citing to

Lingle v. Norge Div. of Magic Chef, Inc. 486 U.S. 399,

405-406 (1988). Specifically, a state-law tort action "may

be preempted by § 301 if the duty to the employee of

which the tort is a violation is created by a collective

bargaining agreement and without existence independent of

the agreement . . . [or] a claim so qualifies if its resolution

arguably hinges upon an interpretation of the collective

bargaining agreement.” Flibotte, 131 F.3d at 26, citing to

United Steelworkers v. Rawson, 495 U.S. 362, 369 (1990)

raise the issue of preemption until it appealed the MCAD

decision to the Superior Court, the judge addressed the issue,

observing that the parties cannot waive a jurisdictional flaw.

See Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct.

443, 444 (1996).

B-9

and Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220

(1985).

Everett focuses on the "interpretation" rubric of

preemption, contending that the hearing officer interpreted

the CBA in order to resolve Patel’s discrimination claim

and that, even if the officer did not do so, Patel’s requests

for light duty required the interpretation of the CBA.

Everett is incorrect on both counts.

There is no indication in the hearing officer’s

findings that she interpreted the CBA. Instead, the officer’s

findings demonstrate that she merely perused the agreement

to determine whether the CBA made mention of reasonable

accommodations for employees with handicaps or temporary

assignments within job classifications.” Everett itself

admits that the CBA is "silent" on these points. Robert

lantosca, the vice-president of Everett’s parent company and

the one who negotiated the CBA, testified that the CBA was

silent on those issues. "[W]hen the meaning of contract

terms is not the subject of dispute, the bare fact that a

collective- bargaining agreement will be consulted in the

course of state-law litigation plainly does not require the

*The hearing officer’s findings state that "‘[t]hese

collective bargaining agreements contain no provisions either

allowing or prohibiting changes in work assignments to

reasonably accommodate employees with handicaps. The

agreements contain provisions for bidding on job openings in

a particular job classification and permit the employer to

transfer employees from one job classification to another on

a temporary basis . . . The agreements do not address

transfers of employees within the same job classification to

different areas of the facility or to different locations within

the same area."

B-10

claim to be extinguished." Livadas v. Bradshaw, 512 U.S.

107, 124 (1994) (citation omitted).

Turning to Everett’s second argument, Everett insists

that Patel requested a "newly created light duty position"

when she asked to be temporarily assigned to light duty

while her work-related injuries resolved. Under the CBA,

management cannot unilaterally transfer employees to new

positions without thereby violating the job-bidding

procedures in the CBA. Everett argues that the issue of

whether Everett discriminated against Patel by refusing to

assign her to lighter work is "inextricably intertwined" with

the CBA’s seniority provision. Therefore, Everett argues,

the rights and obligations of the parties to the CBA,

specifically the employee seniority clauses, must be

construed in order to evaluate its conduct.

The flaw in Everett’s reasoning is that Patel did not

request a new position when she returned to work after

sustaining injury. She simply asked to be assigned

temporarily to lighter duty, the conveyor belt, within the job

of merchandise processor. She neither requested a transfer

to a different job nor a permanent assignment to light duty

work. As discussed above, the hearing officer found that

the CBA had no impact on her request. There must be a

"real interpretive dispute" to preempt state law claims.

See Lydon, 175 F.3d at 10 (citation omitted) (emphasis

included). The hearing officer was not required to interpret

the CBA to resolve Patel’s discrimination claim and the

judge’s ruling concerning preemption was thus correct.

2) Evidence of employee transfers. Since the CBA

included no mention of temporary light duty assignments,

the MCAD hearing officer heard testimony as to whether

the distribution center supervisors in fact permitted

B-11

employees to be assigned lighter duties on a temporary

basis. Everett asserts that neither it nor the union’s

predecessor employer had engaged in such a practice and

contends that Patel’s testimony to the contrary was

unreliable. It argues that the officer’s finding that such

assignments were common was therefore not based on

substantial evidence.

Everett’s contention rests on its characterization of

Patel’s testimony as unreliable hearsay and its observation

that she presented no other witnesses to substantiate her

claims. In administrative proceedings, however, "hearsay

evidence can be received and may constitute substantial

evidence if it contains sufficient indicia of reliability and

probative value." School Committee of Brockton v.

Massachusetts Com’n Against Discrimination, 423 Mass. 7,

15 (1996); see also G. L. c. 151B, § 5 (MCAD not bound

by the strict rules of evidence prevailing in courts).

Patel’s testimony was probative of whether Everett

failed to accommodate her handicap. Patel had worked at

the distribution center since 1974. She testified that she

witnessed and was informed of specific incidents of

supervisors assigning merchandise processors to both light

duty and different duties, that these assignments were made

because of health problems and personality conflicts, and

were both temporary and permanent assignments.’® She

Patel testified that a processor named Joannie Ryberg

was taken off floor work and transferred to the conveyor belt

after complaining of back pain. Another woman named Elaine

was assigned to the conveyor belt because she was tall and

disliked constantly bending over to lift boxes. Lee Buckley

was also transferred to another side because of health

B-12

mayne ‘(teen i Faia TE sca oy

a a

provided employee and supervisor names, the reason for

each assignment, and the area or duty to which each

employee was reassigned. Everett had the opportunity to

cross-examine Patel and present its own evidence to the

contrary." Nothing in the record suggests that Patel’s

testimony in this regard was unreliable.

Everett makes much of the contrary testimony by its

own witnesses. Robert Iantosca, a vice president of

Everett’s parent company who negotiated the CBA, and

Paul Meleedy, one of the managers who visited Patel at her

home, both testified that there was no practice of light duty

assignments at all. Raymond Taylor, a former distribution

problems. Joanne Sherman was transferred from one side of

the distribution center to another and told Patel it was because

of issues with her supervisor. Janet Hunter was transferred

from Patel’s side to another side after quarreling with a

coworker and supervisor, which Patel observed. Patel testified

that other transfers had occurred but that she was unsure of the

reasons for them, and that she had never heard anyone

referring to "bidding" on a job.

Everett attempts to discredit Patel by arguing that Patel

was using her injury to transfer to a new job, pointing to a

union grievance that Patel filed in 1986. In that grievance,

Patel stated that her supervisor and her co-workers harassed

her and singled her out for harder work. The distribution

center manager, Raymond Taylor, testified that he informed

Patel that she could only be transferred pursuant to the

procedures outlined in the CBA. Everett ignores that Patel

sustained a work-related injury a year after filing this

grievance. _Patel’s grievance, moreover, supports her

testimony that certain employees were assigned to more

favorable tasks at the supervisor’s discretion.

B-13

center manager who testified on behalf of Everett, also

testified that there was no light duty policy.

Taylor, however, also made numerous statements

that undercut Everett’s position in this regard. Taylor

testified that supervisors had the authority and discretion

under the CBA temporarily to assign merchandise

processors to different tasks within their areas based on

such factors as the day’s work volume, priority shipments,

emergencies, or a particular employee’s experience in a

particular task. Taylor further testified that supervisors

assigned people to different tasks in Area D on a daily

basis.

It was not unreasonable for the hearing officer to credit

the testimony of Patel and certain testimony given by

Taylor. "The commission, and not the court, is the sole

judge of the credibility and weight of evidence before it."

School Committee of Brockton, 423 Mass. at 15 (citation

omitted). The officer may well have thought the Everett

witnesses were preoccupied with the label of "light duty,"

ignoring daily realities of life at Everett, or she may have

found implausible the notion that injured employees were

never accommodated with lighter jobs but employees with

personality conflicts and personal preferences were so

accommodated. We are in any event satisfied that there

was substantial evidence to support the hearing officer’s

finding that there existed at Everett a practice of assigning

merchandise processors temporarily to different and lighter

duties.

3) Determination of Qualified handicapped status.

Everett next suggests that the hearing officer erred as a

matter of law in concluding that Patel was a "qualified

handicapped person" as defined by G. L. c. 151B, §

1(16).'? Everett points to Patel’s receipt of total disability

benefits while she was unable to work and argues that she

is precluded from claiming discrimination for a failure to

accommodate her as a qualified handicapped person. Everett

misconstrues both the applicable law and the facts.

One who makes no claim that she is totally disabled

during the time she requests an accommodation and one

who demonstrates her ability to work if afforded the

requested accommodation is not precluded from bringing a

discrimination claim. See Labonte v. Hutchins & Wheeler,

"Chapter 151B, § 1(17) states, in relevant part, that a

"handicap" is (a) a physical or mental impairment which

substantially limits one or more major life activities of a

person; (b) a record of having such impairment; or (c) being

regarded as having such impairment." Major life activities

include performing manual tasks and working. See c. 151B,

§ 1(20). A "qualified handicapped person" is defined as a

"handicapped person capable of performing the essential

functions of a particular job or who would be capable of doing

so with reasonable accommodation to his handicap." G. L. c.

151B, § 1(16); Beal v. Bd. of Selectmen of Hingham, 419

Mass. 535, 541-542 (1995).

In addition, temporary disabilities that have not

resolved constitute a handicap within the meaning of c. 151B,

§ 1(17). See Dartt v. Browning-Ferris Industries, Inc., 427

Mass. 1, 16-17 (1998). Compare with Hallgren v. Integrated

Fin. Corp., 42 Mass. App. Ct. 686, 688-689 (1997) (temporary

injury with no residual disability not a handicap within

meaning of c. 151B). When Patel returned to work after her

first injury, she was still experiencing the residual effects of

her disability. Patel therefore was a qualified handicapped

person as defined by c. 151B.

B-15

424 Mass. 813, 818-820 (1997), citing to D’Aprile v. Fleet

Servs. Corp., 92 F.3d 1, 4-5 (ist Cir. 1996). Because

Everett views the evidence as demonstrating that Patel was

either totally disabled or cleared to work without

accommodation, it seeks to distinguish Patel from the

Labonte plaintiff who was able to work with

accommodations. This contention is without merit.

The hearing officer credited, but Everett would have

us ignore, Patel’s testimony that she had brought doctors’

notes ordering light duty each time she returned to work

and that she continued to request light duty each time

Everett’s representatives visited her home. "[The] request

for accommodation . . . was evidence that the plaintiff was

not claiming to be totally disabled." Labonte, 424 Mass. at

819. The fact that Patel worked for periods of time even

though she was assigned to heavy duties supports Patel’s

claim that she was not totally disabled when she returned.

Patel’s medical records indicate that she had the ability to

perform light duty during these periods. Compare with

Beal, 419 Mass. at 539-543 (plaintiff's claim of total

disability upon being asked to return to work removed issue

of fact as 10 whether she could have performed essential

elements of job). It was only as a result of Everett’s refusal

to accommodate her disability that Patel was rendered

totally disabled from her job as a merchandise processor.

"The plaintiff's evidence was that he was disabled to

perform the job without reasonable accommodation, but

quite able to perform the job given some reasonable

accommodation." Labonte, 424 Mass. at 820 (plaintiff

found to be qualified handicapped individual).'* There

"Furthermore, Patel is presumed to be a qualified

handicapped person pursuant to G. L. c. 152, § 75B(1), of the

B-16

was no error in the hearing officer’s determination that

Patel was a qualified handicapped individual as defined by

c. 151B.

4) Light duty as reasonable accommodation.

Everett argues that it was arbitrary and Capricious for the

hearing officer to conclude that light duty was a reasonable

accommodation for Patel. In support of its argument,

Everett claims that it offered Patel a reasonable

accommodation by suggesting that she go home if she did

not feel well and, further, that it was not required to give

her the requested accommodation of light duty.

Everett misreads the relevant issue presented. The

question is whether the accommodation requested was

reasonable and whether it imposed an undue hardship on

Everett. See G. L. c. 151B, § 4(16); Beal, 419 Mass. at

539-540. Patel’s request for light duty was eminently

reasonable. As discussed above, Patel asked for a

temporary assignment to a certain job function and the

evidence showed that such assignments were routine. Since

Everett makes no argument on appeal that assigning Patel

workers’ compensation statutes. "Any employee who has

sustained a work-related injury and is capable of performing

the essential functions of a particular job, or who would be

capable of performing the essential functions of such job with

reasonable accommodations, shall be deemed to be a qualified

handicapped person under the provisions of chapter [151B] ."

G. L. c. 152, § 752(1).

B-17

to light duty would have constituted an undue hardship, we

need not consider this issue further.'*

5) Damages for emotional distress. The hearing

officer awarded Patel $25,000 in damages for emotional

distress. Everett contends that the hearing officer’s finding

that Patel had suffered emotional distress was unsupported

by substantial evidence and that any emotional upset

suffered by Patel was not due to Everett’s actions. For

substantially the reasons cited in MCAD’s brief at pages

32-34, this argument is without merit.

6) Interest assessment. Patel was awarded interest

on the $25,000 award, which Everett contends was

excessive insofar as delays in the proceedings were not

attributable to Everett. For substantially the reasons set

forth in MCAD’s brief at pages 34-36, the interest award

will stand.

7) Attorney’s fees. Everett challenges as well the

award of counsel fees as a violation of its due process rights

and, to prevail, would have us overrule the Supreme

Judicial Court’s recent decision in School Committee of

Brockton v. Massachusetts Com’n Against Discrimination,

423 Mass. at 16, which controls in all material respects.

Suffice it to say that we will not do so. The award stands.

8) Patel’s cross-appeal. Patel appeals the hearing

officer’s decision not to award her back pay, contending

‘Everett again raises the issue that the hearing officer

relied upon inadmissible hearsay in concluding that light duty

was a reasonable accommodation. As discussed above, the

hearing officer was entitled to accept such testimony.

B-18

that she is entitled to the difference between the workers’

compensation payments she received and the wages she

would have earned, including raises, had Everett not

engaged in its discriminatory conduct. The hearing officer

found that Patel’s wage losses were made whole and the

requested differential was unwarranted. There was no error.

An MCAD hearing officer has broad discretion to

fashion remedies to effectuate the goals of c. 151B. See

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

(1988). An award of back pay is not required by c. 151B

upon a finding of discrimination. See c. 151B, § 5 (relief

granted may or may not include back pay).'* Such an

award may be granted if it is deemed appropriate under the

circumstances. See Buckley Nursing Home, Inc., v. Mass.

Com‘n. Against Discrimination, 20 Mass. App. Ct. 172, 184

(1985). However, a back pay award should not make a

complainant "more than whole." Conway, 402 Mass. at

388; see also J.C. Hillary’s v. Massachusetts Com’n Against

Discrimination, 27 Mass. App. Ct. 204, 207 n. 5 (1989). It

thus lies within the officer’s discretion to determine whether

a complainant has been made whole.

‘Patel argues that when unlawful employment

discrimination is found, there is a presumption that the victim

is entitled to back pay. Patel points to federal court decisions

interpreting the provisions of Title VII. "We may look to the

interpretations of . . . the analogous Federal statute; we are

not, however, bound by interpretations of the Federal statute

in construing our own State statute." Blare v. Husky Injection

Molding-Systems Boston, Inc., 419 Mass. 437, 441 (1995),

quoting from College Town. Div. of Interco. Inc. y.

Massachusetts Com’n Against Discrimination, 400 Mass. 156,

163 (1987). Our courts have not held yet that such a

presumption is required and we decline to do so in this case.

B-19

The hearing officer found, and Patel does not

dispute, that Patel received $106,000 in non-taxable

workers’ compensation benefits for total disability from

March, 1987, through October, 1990. Patel also collected

partial disability benefits from November, 1990, through

December, 1992, when her workers’ compensation case was

lump-summed in the amount of $43,000. Patel was found

to be totally disabled and unable to work at all in April,

1990.'° She admitted that she did not seek alternative

employment until 1991 despite the fact that her physicians

permitted her to perform lighter work for several years

beforehand. The evidence amply supports the conclusion

that Patel was made whole.

Patel argues, however, that Everett had the burden

of demonstrating her failure to mitigate her damages but did

not do so and that it was an abuse of discretion for the

hearing officer to forego this mitigation inquiry.'’ Patel

‘Patel argued that she should receive the

wage-compensation differential for the years in which she was

totally disabled since Everett was responsible for her total

disability. However, the hearing officer determined that it

would be inequitable to hold that Everett’s discri-minatory

action was entirely responsible for Patel’s total disability. Her

initial injuries were a result of her normal duties and the third

injury was an accident. The second injury and aggravation of

the first was due to Everett’s failure to accommodate her

disability. The hearing officer determined that all of her

injuries contributed to her total disability and this finding is

borne out by the medical evidence in the record.

'7An employer meets its burden of proof of mitigation of

damages if it proves that a) one or more discoverable

B-20

eee ee a ee ee

cites to no authority in support of her contention that the

provisions of c. 151B require such an inquiry. Moreover,

since the hearing officer found that Patel had been made

whole by the sum total of payments that she received, any

back pay award to Patel thus would have made her more

than whole. Because it was neither mandatory nor

necessary for the hearing officer to assess the mitigation

issue, the hearing officer therefore did not abuse her

discretion in bypassing it.

Judgment affirmed.

By the court (Kass, Greenberg

& Lenk, JJ.),

/s/ Ashley Ahear

Clerk

Entered: June 29, 2000

Opportunities for comparable employment were available in a

location as convenient as, or more convenient than, the place

of former employment, b) the improperly discharged employee

unreasonably made no attempt to apply for any such job, and

Cc) it was reasonably likely that the former employee would

obtain one of those comparable Jobs. See Black v. School

Comm. of Malden, 369 Mass. 657, 661-662 (1976).

B-21

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. SUPERIOR COURT

CiviL ACTION

No. 96-2174

EVERETT INDUSTRIES, INC.,

Plaintiff,

vs.

DIVYABALA PATEL AND MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION,

Defendant(s).

JUDGMENT AFTER RESCRIPT

This action was appealed to the Appeals Court, the

issues have been duly heard and the Appeals Court having

duly issued a rescript;

IT IS ORDERED AND ADJUDGED:

Judgment Affirmed.

Dated at Dedham, Massachusetts this 21st day of

September, 2000.

TRUE COPY /s/ Mon K. Hickey

Attest: ; ea Assistant Clerk

DepuWy Assistant Clerk of

0°

| C-1

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. SUPERIOR COURT

CIVIL ACTION

No. 96-2174

EVERETT INDUSTRIES, INC., oS Ley J.

Plaintigf, /~/°/ ag, 2

vs. se 8

DIVYABALA PATEL AND MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION,

Defendant(s).

ORDER OF JUDGMENT

December , 1997

CHERNOFF, J.

In accordance with the Memorandum of Decision

and Order dated December 3, 1997, it is hereby ordered and

adjudged that:

1. Defendant Divyabala Patel shall have judgment

against plaintiff Everett Industries in the amount of

$25,000.00 in damages for emotional distress under M.G.L.

c. 151B. To this sum, the Court adds $28,750.00 in

interest, representing interest to the date of the

Memorandum of Decision and Order accruing year by year

on the damages attributable to Patel’s emotional distress for

a total amount of $53,750.00

D-1

yA Plaintiff Everett Industries shall be obligated

to pay Patel her attorney’s fees in the amount of $24,368.00

and costs in the amount of $1,303.00. To these amounts

the Court adds interest on the award of attorney’s fees in

the amount of $3,411.00 and interest on the award of costs

in the amount of $182.00, representing interest accrued

from the date of the Decision of the Full Commission on

September 18, 1996 until the date of the Memorandum and

Order of the Court for a total award of $29,264.00.

3. Plaintiff Everett Industries shall be obligated

to pay Patel her attorney’s fees for work done in connection

with her defense of the appeal of this action pursuant to an

Order to be issued separately by the Court following

submission of the petition for fees under M.G.L. c. 151B.

4. As explained more fully in the Court’s

Memorandum and Order of December 3, 1997, judgment

shall be entered for plaintiff Everett Industries and

defendant Massachusetts Commission Against

Discrimination on Defendant Patel’s Motion for Judgment

on the Pleadings as to Her Counterclaim and Cross-Claim

on Damages.

SO ORDERED,

/s/ Paul A. Chernoff

Paul A. Chernoff

Justice of the Superior Court

Dated: December 31, 1997 ATR

Qitest:

Dep dt) Assistant Clerk

D-2

Fe se ee Ee ee ee

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. SUPERIOR COURT

CIVIL ACTION

No. 96-2174

ers: ~

EVERETT INDUSTRIES, INC., 9 8". fei y

Plaintiff, ee RG Y,

CLORE ny te

vs. NOT OLK COUMTY

DIVYABALA PATEL AND MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION,

Defendant(s).

PETITION FOR AWARD OF ATTORNEY’S FEES

Divyabala Patel petitions this Court for an award of

attorney’s fees in the amount of $11,227.50 for work

reasonably expended in opposing successfully Plaintiff's

Petition for Judicial Review of a decision of the

Massachusetts Commission Against Discrimination. That

decision found that Everett Industries, Inc. had

discriminated against Patel by failing to provide her with

reasonable accommodation for her disability and awarded

her $25,000 in damages for emotional distress.

G.L. c. 151B §5 provides that "the Commission shall

award reasonable attorney’s fees and costs to any prevailing

complainant." G.L. c. 151B §9 provides for an award of

attorney’s fees and costs to a plaintiff who prevails at trial

"unless special circumstances would render such an award

unjust."

E-]

Although the law does not expressly provide for an

award of attorney’s fees to a complainant who successfully

opposes a petition for judicial review under G.L. c. 151B

§6 and G.L. c. 30A §14, it is well-sealed that appellate

courts may award attorney's fees for appellate

net oe

sso"

wr) po?

(P41./96

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. SUPERIOR COURT

CIVIL ACTION

No. 96-02174

EVERETT INDUSTRIES, INC. -/7; /

es FI

—orrie & FILE,

j4f3G7 fA] 7 a7

VS. CLERK OF THE /

NORFOLK COUNTY

DIVYABLAL PATEL AND MASSACHUSETTS COMMISSION

AGAINST DISCRIMINATION

MEMORANDUM OF DECISION AND ORDER ON

PLAINTIFF’S MOTION FoR JUDGMENT ON THE

PLEADINGS For JUDICIAL REVIEW OF

ADMINISTRATIVE AGENCY PROCEEDING AND

DEFENDANT DIVYABALA PATEL’S MOTION FoR

JUDGMENT ON THE PLEADINGS AS To HER

COUNTERCLAIM AND CRrOosS-CLAIM ON DAMAGES

Pursuant to G.L. c. 151B, § 6, G.L. c. 30A, § 14

and Superior Court Standing Order No. 1-96, the Plaintiff,

Everett Industries brought this action seeking judicial

review of a September 1996 decision of the Full

Commission of the Massachusetts Commission Against

Discrimination in favor of the Defendant Divyabala Patel

(Patel) on a claim of employment discrimination against

Everet* Industries, her former employer. This case is before

the Court on Everett Industries’ motion for judgment on the

pleadings on the appeal and Patel’s motion for judgment on

F-]

the pleadings on the counterclaim and cross-claim. The

Full Commission upheld the decision of the hearing officer

that Everett Industries pay Patel $25,000.00 plus interest for

unlawfully discriminating against Patel by not providing her

with a reasonable accommodation during her period of

handicap. The Full Commission also awarded $24,368.00

in reasonable attorney’s fees and $1,303.00 for reasonable

costs. Pate! seeks an order for back pay. For reasons set

forth below, the Full Commission’s decision is hereby

AFFIRMED.

PROCEDURAL HISTORY

On April 21, 1988, Patel filed a complaint with the

Massachusetts Commission Against Discrimination(MCAD)

alleging that Everett Industries discriminated against her on

the basis of her handicap by failing to accommodate her

injury. On January 24, 1996, a Hearing Officer of the

MCAD rendered a decision in favor of Patel. On February

7, 1996, pursuant to 804 CMR 1.16, Everett Industries filed

a timely Notice of Appeal from the Hearing Officer’s

decision. In late September 1996, the MCAD, by decision

of the Full Commission, affirmed the Hearing Officer’s

decision in favor of Patel. On October 18, 1996, Everett

Industries filed this appeal to the Superior Court seeking

review of MCAD’s decision pursuant to G.L. ch. 151B,

G.L. c. 30A and Superior Court Standing Order 1-96.

FACTS

The following facts are based upon the January 25

and 26, 1995 public hearing and the findings of Hearing

Officer:

F-2

Patel began work for the Jordan Marsh Distribution

Center (the Warehouse) as a merchandise processor in 1974.

Prior to 1978 Patel’s jobs did not involved lifting cartons,

pushing metal carts or other heavy work. In 1978 Patel was

assigned to Area D, aka D Side. D Side was divided into

three areas - the conveyor belt, the china department and

the floor. As part her duties, Patel began each day working

on the conveyor belt where she stood and priced items.

The work required no lifting or carrying heavy boxes or

pushing merchandise. Later in the day she would work in

the china department which involved lifting buckets of

china from conveyor belts, carrying the buckets to a

packing table, wrapping and packing the china in cartons,

lifting the heavy cartons onto skids and pushing the skids to

the shipping area. During this period of time there were

thirty to thirty-five merchandise processors on the D side.

Fifteen to twenty worked on the conveyor belt and three

worked in the china department. Upon Patel’s request, her

supervisor agreed to assign her to the china department only

when additional help was needed.

In 1984, Everett Industries entered into a contract

with Jordan Marsh whereby Everett Industries became the

employer of the merchandise processors at the Warehouse.

Everett Industries assumed the collective bargaining

agreement then in existence between the union representing

the Warehouse workers (Teamsters) and Jordan Marsh.

After Everett Industries became Patel’s employer,

Jordan Marsh merchandise controller Bob McKay, the

person responsible for directing and assigning work to Patel,

usually assigned Patel to the floor and sometimes to the

china department. Floor work consisted of processing

boxes of merchandise too large to fit on the conveyor belt.

F-3

Patel was required to open the boxes, remove the

merchandise, mark the pieces with labels, process the

purchase order, place the boxes onto the skids and push the

skids to the dock. At some point McKay was transferred

and Patel’s new supervisor, Sam Ragucci, did not change

her assignment.

In early March 1987, Patel injured her left hand and

wrist while attempting to remove a box containing luggage

from a skid stacked high with boxes. Her treating physician

asked her to refrain from using her hand and advised her to

stay out of work. Patel received worker’s compensation

from March 4, 1987 through March 31, 1987.

Upon returning to work, Patel gave the Warehouse

Manager, Paul Feeney, a doctor’s note advising that Patel

should not use her left hand. Patel also informed Ragucci

that she could not use her left hand. Disregarding the

limitations imposed by Patel’s injury and her physician’s

note, Everett Industries assigned Patel to do heavy floor

work. After two weeks she again left work because she

could not perform her assigned duties with an injured hand

and because she continued to experience pain. Patel

returned to work in late April, 1987. She tendered a

doctor’s note to Feeney and told him that her injury had not

completely healed. Feeney stated that he would discuss this

with Patel’s supervisor, Ragucci.

Ragucci continued to assign Patel to floor work. In

response to Patel’s request to be assigned to the conveyor

belt on D Side until her hand healed, Ragucci told Patel that

she should stay home if she did not feel well. Thereafter

Ragucci assigned Patel to pack china. In May 1987, less

than a month after her return, Patel injured her right hand

F-4

and was out of work from May 23 through June 3, 1987.

Upon returning to work, Patel again spoke to her

supervisors, informing them that she did not want to do the

heavy floor work she had been doing.

On June 9, 1987, Patel was again injured while

doing floor work when she was hit by a skid. She injured

her right leg and left hand. As a result, of this injury, Patel

required medical treatment and physical therapy and was

out of work until the end of July, 1987. She received total

disability worker’s compensation from June 10, 1987

through July 29, 1987.

Patel again returned to work at the end of July, 1987

and worked for about one week. She experienced severe

pain in her shoulder and hand, and was unable to perform

the required heavy work. Patel did not return to work after

early August 1987. According to Patel’s treating physicians,

Patel was capable of working in a non-strenuous job that

did not involve stress to her left hand and arm. Everett

Industries’ representatives, Paul Meleedy and Dave

Connelly, visited Patel at home to discuss her returning to

work. Patel informed them that she wanted to return to

work and asked them to reassign her to a different

department or assign her lighter work within her area. The

representatives told Patel that if she returned to work she

would be required to perform the same heavy work and

would not be transferred to another lighter-duty department

or be assigned light duty work.

Dr. Peter Barry, Patel’s treating rheumatologist

testified that, in his opinion, when Patel returned to heavy

work after the initial injury to her left hand and wrist, she

tried to compensate by using her upper arm more, which

F-5

caused her to have forearm and left shoulder pain. Dr.

Barry also testified that her second work accident may have

further aggravated her condition and caused the condition of

adhesive capsulitis or frozen shoulder diagnosed in early

1988. As of April 1990, Dr. Barry testified, Patel was

totally disabled from any occupation.

There was evidence that numerous employees had

been granted transfers or reassigned to different departments

for a variety of reasons, including health-related problems,

disagreements with the supervisor and argument with a

co-worker and warehouse manager. Raymond Taylor, a

manager at the Warehouse, testified that management had

discretion under the union contract to assign merchandise

processors on D Side to different tasks.

Patel suffered from emotional distress as a result of

Everett Industries’ refusal to return her to a light-duty

assignment. Being the sole wage earner in her family at the

relevant time, she worried about her family and ner

children’s future. The Hearing Officer noted that she was

genuinely upset when she cried during her testimony.

Patel received total disability worker’s compensation

benefits from August 4, 1987 when she ceased working for

Everett Industries through October 31, 1990. From March

1987 through December 1992, Patel received a total of

$106,000 in non-taxable worker’s compensation benefits.

At all relevant times, the terms of Patel’s

employment were governed by the collective bargaining

agreement negotiated by Teamsters and Everett Industries.

Between July 1987, when she stopped working for

Everett Industries through July 1989, when Jordan Marsh

resumed control of the Warehouse, Pate! lost $42,640 in

lost wages. Patel made no attempt to obtain other

employment during this entire period.

On appeal, the Full Commission affirmed the above

findings of fact and made the following findings on the

record:

After a 1987 injury, Patel requested a reasonable

accommodation by assigning her work that did not involve

heavy lifting. Such work was available. Her request was

denied. As a result of returning to work following this

initial injury, she resumed heavy work packing china or

unpacking and processing heavy items. This resulted in her

left hand and wrist not fully healing and in the course of

time, she suffered further injuries. She then stopped

working and started collecting compensation benefits.

DISCUSSION

Pursuant to G.L. c. 151B, § 6, the decision of the

hearing commissioner must be reviewed in accordance with

the standard of review set forth in G.L. c. 30A, § 14(7).

J.C. Hillary's v. Massachusetts Commission Against

Discrimination, 27 Mass. App. Ct. 204, 206-207, review

denied, J.C. Hillary’s v. Massachusetts Commission Against

Discrimination, 405 Mass 1202 (1989).

In reviewing a state administrative decision under

G.L. c. 30A, § 14, the court may set the decision aside,

modify it or compel any action unlawfully withheld or

F-7

unreasonably delayed if it determines that the substantial

rights of any party may have been prejudiced because the

agency decision is --

(a) In violation of constitutional provision; or

(b) In excess of the statutory authority or jurisdiction of

the agency; or

(d) Made upon unlawful procedure; or

(e) Unsupported by substantial evidence; or

(f) Unwarranted by facts found by the court on the

record as submitted or as amplified ...; or

(g) Arbitrary or capricious, an abuse of discretion, or

otherwise not in accordance with law. G.L. c. 30A,

§§ 14(7)(a) - 14(7)(g).

The party appealing an administrative decision bears

the burden of demonstrating the decision’s invalidity.

Merisme v. Board of Appeals on Motor Vehicle Liability

Policies & Bonds, 27 Mass. App. Ct. 470, 474 (1989);

Faith Assembly of God v. State Building Code Commission,

11 Mass. App. Ct. 333, 334-335 (1981), citing Almeida Bus

Lines, Inc. v. Department of Public Utilities, 348 Mass. 331,

342 (1965). In reviewing the agency decision, the court is

required to give due weight to the agency’s experience,

technical competence, specialized knowledge, and the

discretionary authority conferred upon it by statute. G.L. c.

30A, § 14 (7); Flint v. Commission of Public Welfare, 412

F-8

Mass. 416, 420 (1992); Seagram Distillers Co., v. Alcoholic

Beverages Control Commission, 401 Mass. 713, 721 (1988);

Quincy City Hospital v. Labor Relations Commission, 400

Mass. 745, 748-749 (1987). The reviewing court may not

substitute its judgment on questions of fact for that of the

agency. Southern Worcester County Regional Vocational

School District v. Labor Relations Commission, 386 Mass.

414, 420-421 (1982), citing Olde Towne Liquor Store, Inc.

v. Alcoholic Beverages Control Commission, 372 Mass. 152,

154 (1977). "A court may not displace an administrative

agency’s choice between two conflicting views, even though

the court would justifiably have made a different choice had

the matter been before it de novo." Southern Worcester,

386 Mass. at 420. New claims may not be raised on appeal

if they were not raised at the administrative appeal. M.H.

Gordon & Son, Inc. v. Alcoholic Beverages Control

Commission, 386 Mass. 64, 73 (1982); Shamrock Liquors,

Inc. v. Alcoholic Beverages Control Commission, 7 Mass.

App. Ct. 333, 335 (1979).

I. The Full Commission had subject matter

jurisdiction.

Since the parties may not waive a jurisdictional flaw,

this Court will decide on this issue although it was not

raised in the proceedings below. See Tardanico v. Aetna

Life & Casualty Company, 41 Mass. App. Ct. 443 (1996),

review denied, Tarcianico v. Aetna Life & Casualty

Company, 423 Mass. 1114 (circa 1996). Everett Industries

argues that the Full Commission lacked subject matter

jurisdiction over Patel’s discrimination claim since that

claim was pre-empted by Section 301 of the federal Labor

Management Relations Act, 29 U.S.C. § 185.

F-9

"A state rule that purports to define the meaning or

scope of a term in a [union] contract suit ... is pre-empted

by federal labor law." Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 210 (1985). "Thus, questions relating to what the

parties to a labor agreement agreed ... must be resolved by

reference to uniform federal law." /d. at 211. However, §

301 "does not grant the parties to a collective-bargaining

agreement the ability to contract for what is illegal under

state law. In extending the pre-emptive effect of § 301

beyond suits for breach of contract, it would be inconsistent

with congressional intent under that section to pre-empt

state rules that proscribe conduct, or establish rights and

obligations, independent of a labor contract." /d. at 212.

Where the remedy being sought is provided for by state

law, and the court’s decision does not turn on the meaning

of any provision of a collective-bargaining agreement, the

state-law remedy is independent of the collective-bargaining

agreement in that it does not require construing the

agreement. Lingle v. Norge Division of Magic Chef, 486

U.S. 399, 407 (1988).

"[Section] 301 pre-emption merely insures

that federal law will be the basis for

interpretingcollective-bargainingagreements,

and says nothing about the substantive rights

a State may provide to workers when

adjudication of those rights does not depend

upon the interpretation of such agreements.

In other words, even if dispute resolution

pursuant to a _ collective bargaining

agreement, on the one hand, and state law,

on the other, would require addressing

precisely the same set of facts, as long as the

state-law claim can be resolved without

F-10

interpreting the agreement itself, the claim is

‘independent’ of the agreement for § 301

pre-emption purposes."

Id. at 409-410.

In this case, the issue is simply whether or not

Everett Industries discriminated against Patel. In making its

determination that Everett Industries’s practices were

discriminatory, the Hearing Officer cited the testimony of

Patel and Raymond Taylor. a manager at the work site.

Decision of the Hearing Officer at 12, 13.

The Hearing Officer found that Everett Industries

had provided transfers in the past and refused to do so for

Patel. Furthermore, the Hearing Officer found that this

amounted to impermissible discrimination under state law.

These findings did not require interpretation of the

collective-bargaining agreement, but were based only on the

testimony of the witnesses, and are therefore independent of

the agreement for pre-emption purposes.

While it may be noted that both the Hearing Officer

and the Full Commission commented that the collective-

bargaining agreement does not prohi!yit transfers, such a

finding does not require federal pre-emption, as the finding

was not necessary for a finding of discrimination under

Massachusetts law.

II. The Full Commission’s conclusion that Patel was

a qualified handicapped person was not based

upon an error of law.

Everett Industries argues that because Patel received

disability benefits as a totally disabled person, she cannot be

an otherwise qualified handicapped person under G.L. c.

151B. This coniention is without merit.

In a recent case, Labonte v. Hutchins & Wheeler,

424 Mass. 813 (1997), the Supreme Judicial Court

distinguished a situation where handicap discrimination

precedes a claim of total disability from that where a person

claims to be totally disabled, is discharged, and then claims

handicap discrimination. The Court concluded that receipt

of total disability benefits does not per se preclude an

individual from claiming to be an otherwise qualified

handicapped person. Labonte, 424 Mass. at 819, 820.

The discrimination alleged was of a continuous

nature dating from April 1987 through August 1987. The

findings of the Full Commission show that Patel repeatedly

requested lighter duty work, which was readily available, as

a result of her injuries. It was only on the fifth occasion of

Patel leaving work because of her injuries that she claimed

that she was totally disabled and unable to return to work.

On several prior occasions, Patel requested lighter work

after returning from medical leave. Each time she was

denied lighter work. She was capable of working if she had

been given reasonable accommodation. Based on Labonte,

Patel was not automatically ineligible to raise a

discrimination claim merely because she started claiming

total disability benefits.

ee ee ae eo eT

Il. The Full Commission’s factual determinations

were supported by substantial evidence.

Everett Industries objects to the findings of fact of

the Hearing Officer and the Full Commission, claiming that

there did not exist substantial evidence to warrant such

findings.

"Substantial evidence" means such evidence as a

reasonable mind might accept as adequate to support a

conclusion. G.L. c. 30A, § 1. A determination by the court

as to the correctness of an agency’s decision is to be made

upon consideration of the entire record, inducing evidence

to the contrary. Cohen v. Board of Registration in

Pharmacy, 350 Mass. 246 (1966). In administrative

hearings, hearsay evidence may be presented and may

constitute substantial evidence. School Commission of

Brockton v. Massachusetts Commission Against

Discrimination, 423 Mass. 7, 15 (1996). As the agency is

the sole judge of the credibility and weight of the evidence

before it, and not the reviewing court, the court will defer

to the fact-finding function of the agency where there is

substantial evidence in support of its findings. /d.; Buckley

Nursing Home, Inc. v. Massachusetts Commission Against

Discrimination, 20 Mass. App. Ct. 172 (1985). The court

will defer to the agency’s right to draw reasonable

inferences, Ramsdell v. Western Massachusetts Bus Lines,

415 Mass. 673 (1993), and will overturn findings only if the

agency’s reliance on the evidence was unreasonable as a

matter of law. School Commission of Brockton, 423 Mass.

at 15.

The Hearing Officer’s findings were based on an

assessment of the weight and credibility of witnesses’

F-13

testimony, as well as on reasonable inferences drawn from

the evidence. After review of the entire record, this Court

concludes that the Hearing Officer’s findings, as affirmed

by the Full Commission, were supported by substantial

evidence and that there was no error of law.

A. The emotional distress award was

supported by substantial evidence.

The standards for an award of damages for

emotional distress under G.L. ch. 151B are not so stringent

as those that apply in actions of tort for intentional

infliction of emotional distress. Buckley Nursing Home

Inc., 20 Mass. App. Ct. at 182. "The finding of

discrimination alone permits the inference of emotional

distress as a normal adjunct of the employer’s actions."

Labonte, 424 Mass. at 823. In Chapter 151B cases,

emotional distress damages may be awarded in the absence

of physical injury of psychiatric consultation. /d.

The Hearing Officer found that Patel suffered from

emotional distress as a result of not being able to work due

to Everett Industries’ refusal to accommodate her handicap.

Patel testified that she worried about the financial position

of her family as a result of the discrimination. She also

testified that her health had been diminished. Conversely,

the Hearing Officer also noted that there were contributory

causes to her crying on the stand. Based on this testimony,

the Full Commission’s conclusion that Patel was

emotionally distressed as a result of losing her health and

job because of Everett Industries’ failure to provide

reasonable accommodations for her handicap was a

reasonable inference clearly supported by substantial

evidence.

F-14

B. The interest assessment was supported by

substantial evidence.

Everett Industries argues that the interest award is

unduly excessive since the proceedings were delayed due to

Patel’s dissatisfaction with her lawyer It is well established

and uncontested here that the MCAD has authority to award

interest on damages from the date of the original complaint.

College-Town, Division of Interco, Inc. v. Massachusetts

Commission Against Discrimination, 400 Mass. 156,

169-170 (1987). It has been recognized that there is "force"

to an argument such as Everett Industries makes here. City

of Boston v. Massachusetts Commission Against

Discrimination, 39 Mass. App. Ct. 234, 245 (1995).

However, there is also evidence that the delay was

occasioned by Everett Industries request that the hearings

not proceed while they obtained tax records. Where it is

not clear that inexcusable delay in the proceedings was

caused solely by the prevailing party, reversal of an interest

award is not warranted. See New York and Massachusetts

Motor Service, Inc. v. Massachusetts Commission Against

Discrimination, 401 Mass. 566, 584; see also College-Town,

supra at 170 (MCAD’s broad remedial authority extends to

interest). Accordingly, this Court will uphold the interest

awarded to Patel in the proceedings below.

V. The award of attorney’s fees was not based upon

an error of law.

G.L. c. 151B, § 5 was amended in January 1990 to

allow the awarding of attorney’s fees to prevailing parties.

Because the complaint in this case was filed in April 1988,

Everett Industries argues that an award of attorneys fees is

improper, being a retroactive increase of liability. While it

F-15

is true that such an act will generally not be given

retroactive effect without a specific provision to the

contrary, the amendment in question is an exception, as has

been conclusively and specifically reiterated. School

Commission of Brockton, 423 Mass. at 16; Fontaine v.

Ebtec Corp., 415 Mass. 309, 320 (1993).

VII. Failure to award Patel back pay was not based

upon an error of law.

Patel argues that the Full Commission erred in not

awarding her back pay. In so doing, she argues that a

victim of employment discrimination is presumptively

entitled to back pay and that denial of back pay frustrates

the purposes of Chapter 151B. Furthermore, Patel claims

that the Full Commission’s finding that she failed to

mitigate damages should not be held against her in assessing

whether an award of back pay is justified.

Federal courts have recognized a strong presumption

in favor of an award of back pay. See e.g. Albemarle

Paper Co. v. Moody, 422 U.S. 405, 421 (1975) (back pay

should be denied only where doing so does not frustrate the

purposes of the statuie); Costa v. Markey, 706 F.2d 1,7 (Ist

Cir. 1982), cert. denied, Costa v. Markey, 464 U.S. 1017

(1983) (successful plaintiff in discrimination — suit

presumptively entitled to back pay); McCormick V. Attala

County Board Of Education, 541 F.2d 1094, 1095 (Sth Cir.

1976) (presumption of back pay where discrimination

proven). But see Los Angeles Department of Water &

Power v. Manhart, 435 U.S. 702, 719 (1978) ("The

Albemarle presumption in favor of retroactive liability can

seldom be overcome, but it does not make meaningless the

district courts’ duty to determine that such relief is

F-16

appropriate." (emphasis added)). The MCAD has broad

authority to determine damages that best effectuate the

purposes of 151 B. See G.L. c. 151B, § 5. The statute

explicitly authorizes the MCAD to "take such affirmative

action, including but not limited to, hiring, reinstatement or

upgrading of employees, with or without back." /d.

(emphasis added).

The Hearing Officer found that Patel had "been fully

compensated" for her lost wages by the workmen’s

compensation benefits she received. It has been held that

unemployment compensation may be deducted from back

pay awards because back pay is not punitive in nature but

that the goal is to restore the prevailing plaintiff to its

rightful economic status. Thurber v. Jack Reilly's Inc., 521

F. Supp. 238 (D. Mass. 1981), aff'd Thurber v. Jack

Reilly's Inc., 717 F.2d 633 (1st Cir. Mass. 1983). This

rationale may or may not apply to insurance, disability, or

workmen’s compensation benefits, depending on the

applicability of the collateral source rule. See Shea v.

Rettie, 287 Mass. 454, 457-459 (1934) (collateral source

rule applies, back pay liability of employer not diminished

by insurance proceeds); D'Archangelo v. Loyer, 215 A.2d

520, 523 (Vt. 1965) (applying holding in Shea, supra to

proceeds from disability benefits); Goldstein v. Gontarz,

364 Mass. 800, 809 (1974) (proceeds from outside sources

do not decrease defendant’s liability). This issue, however,

. need not be reached because the Full Commission found

that Patel had failed to seek alternative employment.

The Full Commission found that Patel was a

qualified handicapped person up until April 1990 when.

according to her physician, she became totally disabled. It

was also found that Patel did not seek alternative work, in

F-17

mitigation of her damages, during the time prior to her total

disability.

These findings were not clearly unsupported by

substantial evidence. The Full Commission’s conclusion

that Patel was not entitled to additional damages was

therefore within its discretion as effectuating the purposes

of the statute.

ORDER

The decision of the Full Commission of the

Massachusetts Commission Against Discrimination is

AFFIRMED in all respects.

/s/ Paul A. Chernoff

Paul A. Chernoff

Justice of the Supreme Court

Dated: December 3, 1997

F-18

A 3, 1997 ¥

\ Io.

geal? cee

Li nr

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. SUPERIOR COURT

CIVIL ACTION

No. 96-2174

EVERETT INDUSTRIES, INC., RECEIVED & F!.°9

Plaintiff, ft er

vs ad CLERK Ot fHE t/ "eis

NORFOLK CUciit

DIVYABALA PATEL AND MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION,

Defendant(s).

PLAINTIFF’S MOTION FOR LEAVE TO AMEND ITS

PETITION FOR JUDICIAL REVIEW OF ADMINISTRATIVE

AGENCY PROCEEDING PURSUANT TO MASS. GEN. L.

CH. 151B, § 6, Mass. GEN. L. CH. 30A, § 14, AND

SUPERIOR COURT STANDING ORDER NO. 1-96

The Plaintiff, Everett Industries Inc. ("Everett

Industries"), hereby moves this court pursuant to Mass. R.

Civ. P. 15(a), for leave to amend its Petition for Judicial

Review and as grounds therefore states the following':

Plaintiff's First Amended Petition for Judicial Review of

Administrative Agency Proceeding Pursuant to Mass. Gen. L.

ch. 151B, §6, Mass. Gen. L. ch. 30A, §14, and Superior Court

Standing Order No. 1-96 is attached hereto.

G-1

l. On or about October 19, 1996, Everett

Industries filed Plaintiff's Petition for Judicial Review of

Administrative Agency Proceeding Pursuant to Mass. Gen.

L. ch. 151B, §6, Mass. Gen. L. ch. 30A, §14, and Superior

Court Standing Order No. 1-96.

z Defendant Divyabala Patel filed an Answer,

Counterclaim and Cross-Claim of Divyabala Patel on or

about November 18, 1996.

a Defendant Massachusetts Commission

Against Discrimination filed its Answer on or about

November 14, 1996.

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, Ss. SUPERIOR COURT

CIVIL ACTION

No. 96-2174

EVERETT INDUSTRIES, INC.,

Plaintiff,

vs.

DIVYABALA PATEL AND MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION,

Defendant(s).

PLAINTIFF’S MOTION FOR LEAVE TO AMEND ITs

PETITION FOR JUDICIAL REVIEW OF ADMINISTRATIVE

AGENCY PROCEEDING PURSUANT TO Mass. GEN. L.

CH. I51B, § 6, MAss. Gen. L. CH. 30A, § 14, AND

SUPERIOR COURT STANDING ORDER No. 1-96

The Plaintiff, Everett Industries Inc. ("Everett

Industries"), hereby moves this court pursuant to Mass. R.

Civ. P. 15(a), for leave to amend its Petition for Judicial

Review and as grounds therefore states the following’:

‘Plaintiff's First Amended Petition for Judicial Review of

Administrative Agency Proceeding Pursuant to Mass. Gen. L.

ch. 151B, §6, Mass. Gen. L. ch. 30A. $14, and Superior Court

Standing Order No. 1-96 is attached hereto.

H-]

l. ‘On or about October 19, 1996, Everett

Industries filed Plaintiff's Petition for Judicial Review of

Administrative Agency Proceeding Pursuant to Mass. Gen.

L. ch. 151B, §6, Mass. Gen. L. ch. 30A, §14, and Superior

Court Standing Order No. 1-96.

2. Defendant Divyabala Patel filed an Answer,

Counterclaim and Cross-Claim of Divyabala Patel on or

about November 18, 1996.

3. Defendant Massachusetts Commission

Against Discrimination filed its Answer on or about

November 14, 1996.

4. This Court issued a tracking order which

provides for a pretrial conference on March 17, 1997.

5. The parties have agreed to an amended

briefing schedule.

6. Everett Industries is seeking to amend its

Petition by adding Count VI which provides that Mrs.

Patel’s handicap discrimination claim is preempted by

section 301 of the Labor Management Relations Act, 29

U.S.C. § 185, and that accordingly, neither the Commission

nor this Court have jurisdiction over Mrs. Patel’s claim.

: Everett Industries is further seeking to amend

its Petition by amending Paragraphs 12, 23, 26, 30 and 54

to provide further factual clarification for the parties and the

court.

8. Mass. R. Civ. P. 15(a) expressly provides

that motions for leave to amend should be "freely given [by

the court] when justice so requires".

9. "[L]eave should be granted unless there are

good reasons for denying the motion", Mathis v. Mass.

Elec. Co., 409 Mass. 256, 565 N.E.2d 1180, 1185 (1991).

10. Here, no good reasons exist to deny the

motion. The factual clarification is set forth in the record.

Count VI asserts an issue of law relating to the subject

matter jurisdiction of Mrs. Patel’s claims. Defendant will

be able to adequately respond to Patel’s claims. Defendants

will be able to adequately respond to this issue of law.

Allowing the amendment is consistent with Mass. R. Civ.

P. 12(h) which provides "[w]henever it appears by

Suggestion of a party or otherwise that the court lacks

jurisdiction of the subject matter, the court shall dismiss the

action". The lack of subject matter jurisdiction may be

raised at any time up to final judgment on appeal, in any

way, by any party, or by the court sua sponte.

WHEREFORE, for all of the foregoing reasons,

Everett Industries respectfully requests the Court to grant

Plaintiff's Motion for Leave to Amend its Petition for

Judicial Review of Administrative Agency Proceeding

Pursuant to Mass. Gen. L. ch. 151B, §6, Mass. Gen. L. ch.

30A, §14, and Superior Court Standing Order No. 1-96.

H-3

Respectfully Submitted,

for the Plaintiff,

EVERETT INDUSTRIES, INC.

by its attorney,

DATED: February 7, 1997

/s/ Ann M. O'Neill

Ann M. O'Neill, BBO# 554021

MURPHY, HESSE, TOOMEY & LEHANE

300 Crown Colony Drive

Quincy, MA 02269-9126

(617) 479-5000

CERTIFICATE OF SERVICE

| hereby certify that a true copy of the above

Plaintiff's Motion for Leave to Amend its Petition for

Judicial Review of Administrative Agency Proceeding

Pursuant to Mass. Gen. L. ch. 151B, §6, Mass. Gen. L. ch.

30A, $14, and Superior Court Standing Order No. 1-96 was

served upon Jane K. Alper, Disability Law Center, Inc., 11

Beacon Street, Suite 925, Boston, MA 02108 the attorney

of record for Defendant Divyabala Patel by hand on

February 7, 1997 and Gregory A. Manousos, Counsel,

Massachusetts Commission Against Discrimination, One-

Ashburton Place, Boston, MA 02108, by hand on February

7, 1997.

/s/ Ann M. O'Neill

Ann M. O'Neill

H-4

COMMONWEALTH OF MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION

DIVYABALA PATEL,

COMPLAINANT

v. 88-BEM-0451

EVERETT INDUSTRIES,

RESPONDENT.

DECISION OF THE FULL COMMISSION

This matter came before us following a decisiot of the

hearing officer in favor of the complainant. Respondent

then filed a timely appeal. Complainant cross-appealed on

the reward of damages

The responsibilities of the Full Commission are

outlined by statute, the Commission’s Rules of Procedure

(804 C.M.R. 1.00 et. seq.) and relevant case law. It is the

job of the Full Commission to review the record of

proceedings before the hearing officer. G.L. c. 151B, s.5.

Findings of fact must be supported by substantial evidence

which is defined as "...such evidence as a reasonable mind

might accept as adequate to support a finding..." Katz v

MCAD, 365 Mass. 357, 365 (1974); G.L. c. 30A. At such

hearings, it is the responsibility of the Commission to

evaluate the credibility of witnesses and/or to weigh the

evidence when deciding disputed questions of fact.

1-]

In the matter before us, complainant alleged and

prevailed claims of discrimination on the basis of a

temporary disability.

It has long been held that the Full Commission will

defer to findings made by the hearing officer, so long as

those determinations are premised upon substantial

evidence. See e.g., School Committee of Chicopee v.

MCAD, 361 Mass. 352 (1973); Bowen v. Colonnade

Hotel, 4 MDLR 1007, 1011 (1982). Respondent has not

offered any valid reason why we should depart from this

long established principle, and we see no reason to do so.

Also, it has been the role of the Full Commission to

determine whether the decision now appealed was rendered

in accordance with the law, or whether the decision was

arbitrary or capricious, an abuse of discretion, or was

otherwise not in accordance with the law. See 804 C.M.R.

1.16(8) (f).

With this in mind, we first turn to the Respondent’s

contentions.

First, Respondent argues that Complainant can not

establish a prima facie case since she was totally disabled

during the period in question. However, we have reviewed

the record carefully and agree with the hearing officer’s

determination. In that regard we note as follows:

- After a 1987 injury, Complainant requested a

accommodation by assigning her wofk that did not

involve heavy lifting.

- Such work was available

[-2

- Her request was denied.

- As a result of returning to work following this

initial injury, she resumed heavy work packing

china or unpacking and processing heavy items. This

resulted in her left hand and wrist not fully healing

and in the course of time, she suffered further

injuries. She then stopped working and started

collecting compensation benefits.

We hold today that receipt of workers’ compensation or

disability benefits does not per se exclude an individual

from the definition of a "qualified handicapped person".

This is in accord a variety of holdings in other

jurisdictions.

In the case before us, the complainant took legal

positions in her injury compensation actions and in the

instant case which were entirely consistent. That is,

Complainant did not claim that she was disabled from all

work, but only that she could not perform the heavy tasks

to which she was assigned. This is an important factor in

cases such as this one and we affirm the hearing officer’s

rulings in this regard. See e.g., Ward v. Westvaco, supra.

We also hold that the Commission may upon a

review of all the facts and circumstances, find that the

‘Anzalone v. Allstate Insurance Co., 5 AD Cases 223

(ED La. 1995); Daffron V. McDonnell Douglas Corp.,

874 S.W.2d 482 (Mo. 1994) , Overton v. Reilly, 977 F.2d

1190 (7th Cir. 1992) ; Ward v. Westvaco Corp., 859

F.Supp. 608 (D.Mass. 1994;) and, many others.

[-3

essential functions of a particular position may contain

functions which are at variance with a formal job

description. The formal description is important evidence on

the question of what functions are "essential" to a particular

position but is not dispositive of the issue. It has been our

experience that duties of a position may mutate with time,

may be enhanced or diminished according to the needs of

the shop and other forces as well and that a formal job

description may “lag behind" the reality of the actual

activities attendant to the job as it is actually performed in

the shop. We will always examine the formal description,

and give it due weight, but it is not error for a hearing

officer to search through the facts and history of the events

within the workplace to determine, de facto, the essential

functions of a position. We find that an function cannot be

“essential” if it is also not an "actual" function.

We also hold that the collective bargaining

agreement in this case did not erase nor displace

Complainant's statutory rights. The agreement did not

explicitly or implicitly bar the requested accommodation.

This is in contrast to those situations where the agreement

either explicitly or implicitly bars the accommodation. In

those situations an employer may assert the agreement as a

defense: the accommodation in those instances may impose

an undue hardship on the employer since it may require the

employer to violate the agreement. This is not the case here.

See e.g., Heraty v. Atlas Oil Co., 15 MDLR 1143, 1164

1-4

(1993); Emerick v. Libby Owens Ford Co., 875 F.Supp 393

(ED Tex. 1995)?

We have also examined the findings of fact made by

the hearing officer and her award of damages. It is quite

clear that there is substantial evidence in the record to

support her findings and further that the award of damages

here is well within the range of discretion afforded the

finder of fact.

With regard to Complainant's cross appeal, we have

examined the record and find that the hearing officer’s

award of damages was well within the range of discretion

afforded to her, and that said award was premised upon

substantial evidence. We find no errors of law in the

award.

Therefore, the decision of the hearing officer is

affirmed in all respects.

Having affirmed the decision sf the hearing officer

which found for the Complainant, we conclude that the

Complainant has prevailed in this matter. Respondent

argues though that the Complainant is not entitled to

attorneys fees given that the conduct complained of

occurred prior to 1990.’

‘This position has been adopted by the EEOC with

regard to the Americans with Disabilities Act. See

Technical Assistance Manual. 11-16 (1994).

"St. 1989, ¢.722, s.27 amended G.L. c.151B by

providing that the Commission "shall" award reasonable

1-5

This argument was rejected dispositively by the SJC

in Fontaine v. EBTEC, 415 Mass. 309, 613 N.E.2d 881

(1993). There, the Court stated as follows:

The plaintiff has brought to our attention a decision

of the MCAD giving retro-spective effect to St.

1989, c.722, s.27 ...See Charles T. Brown v. City of

Salem Police Dept... This legislation simply 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 of federal court. As

legislation providing an adequate alterative forum

for remedying the impairment of an existing legal

right, ...the statute was appropriately given

retrospective application by the commission.

Fontaine, supra at 320, n.11.

As a prevailing complainant, Patel is therefore

entitled to an award of reasonable attorneys fees and costs.

In order to qualify as a "prevailing party" Complainant must

have succeeded on some significant issue raised by the

complaint in a manner which achieves some of the relief

she has sought. See e.g., Texas State Teachers Assn. v.

Garland Independent School Dist., 489 U.S. 782 (1989).

Though Complainant may be aggrieved on the issue of

damages, we find that Complainant has nonetheless

prevailed in this matter.

attorneys fees to prevailing complainants. This provision

was effective March 14, 1990.

1-6

The determination of what is a reasonable fee is one

that the Commission approaches utilizing its discretion and

its understanding of the litigation of a claim of

discrimination in the administrative forum of the

Commission Against Discrimination. In rendering a deter-

mination of what is a reasonable fee, the Commission has

adopted the lodestar methodology for fee computation. See

Fontaine v. EBTEC Corp, 613 N.E.2d 881, 891 (1993);

Baker v. Winchester School Committee, 14 MDLR 1079

(1992); Brown v. City of Salem 14 MDLR 1365 (1992).

This methodology requires the Commission to undertake a

two step analysis: first, the Commission will calculate the

number of hours reasonable expended to litigate the claim

and then multiply that number by an hourly rate considered

to be reasonable; Secondly, the Commission will then

examine the resulting figure, known as the ",odestar", and

will adjust it either upward or downward or not at all

depending on various factors.

Calculations of the hours reasonably expended

involves separating out work done in relation to the

individual doing the work (e.g., senior partner, junior

associates, paralegal) eliminating time beyond that

consistent with a standard of reasonable efficiency and

productivity; subtraction of hours which appear to be

duplicative, unproductive, excessive, or otherwise

unnecessary to prosecution of the claim; and, elimination of

hours insufficiently documented. See generally Grendel's

Den v. Larkin, 749 F.2d 945 (Ist Cir. 1984); Miles vy.

Samson, 675 F.2d 5 (1st Cir.1982); Furtado v. Bishop, 635

F.2d 915 (1st Cir. 1980); Baird v. Belloti, 616 F.Supp.6

(D.Mass 1984); and, Brown v. City of Salem, supra.

The Commissions efforts to determine the number

of hours reasonably expended will involve more than

simply adding all hours expended by all personnel. The

Commission will carefully review the Complainant’s

submission and will not simply accept the proffered number

of hours as "reasonable". See e.g., Baird v. Belloti, supra.

In this matter, Complainant's counsel submitted an

initial request and a supplemental request. The two

submissions listed work performed over a period of several

years:

Year Hours Rate (S/hr)

Worked

1988 i 175

199] 5.3 175

1992 t Pe 175

1993 16.2 225

1994 10.4 225

1995 80.1 225

1996 16.0 225

Respondent's, remaining objections are to the requested rate

and the number of hours expended.

We have examined the rate and Respondent’s

argument and find that the rate is well within the range of

rates common to the marketplace within which the

complainant sought counsel. Respondent's argument that a

less senior individual should have handled the bulk of the

hours does not take into account the right of the

Complainant to select counsel to do the necessary work, and

it assumes the availability of less costly counsel without

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demonstrating that such counsel was in fact available. We

therefore find as reasonable, the rates of $175/hr and

$225/hr for the periods in question.

We have examined the hours expended and

Respondent’s arguments. We are mindful of the fact that

the overall net awarded damages, with interest, are roughly

$50,000 and the fee requested about half that. Respondent

appears to argue that since Complainant was not successful

on her back pay claim some reduction is necessary,

however, Respondent does not point to any particular

activity as repetitive, duplicative or unnecessary. Given this

and given further that the issue of liability (upon which

Complainant did prevail) and the issue of back pay (upon

which the complainant did not prevail) are quite

intertwined, we are reluctant to adjust the fee downwardly

in any significant manner. In this regard we also note that

Respondent’s counsel defended this matter vigorously, and

in a highly competent and professional manner. It has been

our experience that where a respondent’s attorney asserts an

aggressive defense, complainants’ attorneys have to work

harder to prove their case. This is what happened in the

litigation before us. It was a hard fought case.

Still, consideration must be taken of the damages

awarded as compared to the fee request. In the instant case

the comparison would yield the following:

I. Fees

1988 $ 612.50

199] 927.50

1992 1,312.50

1993 3,645.00

1994 2,340.00

1995 18,022.50

i 1996 3,600.00

eS age ee 30, 460.00

I] Damages:

Award: | $25,000

Interest: 12% Simple (1% per month for the

period April 1988 to July 1996 (98

months). This translates to an overall

interest amount of 98% of the award,

or $24,500 in interest.

Total Recovery: $49,500.

It appears to us that though the award of fees is not grossly

disproportionate to the overall recovery, it represents a

figure which is in excess of 60% of the amount awarded.

We believe that in the instant case a 20% reduction would

be equitable. This would bring the overall fees awarded to

$24,368.00. We believe this is a reasonable figure and

decline to adjust it further.

We also award costs in the amount of $1,303.80 as

such appear to us to be reasonable and were not objected to

by Respondent.

ORDER

For the reasons set forth above, we hereby affirm the

findings of fact. conclusions of law and the Order of the

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en See et

hearing officer and issue the following order of the Full

Commission:

(1) We affirm and incorporate all aspects of the

order of the hearing officer:

(2) We award reasonable attorney’s fees in the

amount of $24,368.00 and reasonable costs in the amount

of $1,303.80

This order represents the final action of the

Commission for purposes of G.L. c.30A. Any party

aggrieved by this final determination may contest the

Commission’s decision by filing a complaint seeking

judicial review, together with a copy of the transcript of

Proceedings. Such action must be filed within 30 days of

receipt of this decision, and must be filed in accordance

with G.L. ¢.30A, ¢.151B, s.6. and the 1996 Superior Court

Standing Order on Judicial Review of Agency Actions.

Counsel should also note that any such action must name as

a necessary party, the prevailing party in this matter.

SO ORDERED this —__ day of September, 1996,

/s/ Michael Duffy

Michael T. Duffy, Chairman

/s/ Dorca I. Gomez

Dorca I. Gomez. C ommissioner

/s/ Charles E. Walker

Charles E. Walker, Jr.. C ommissioner

COMMONWEALTH OF MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION

DIVYABALA PATEL,

COMPLAINANT

V. ~ §$8-BEM-0451

EVERETT INDUSTRIES,

RESPONDENT.

DECISION OF THE HEARING OFFICER

Appearances:

Jane K. Alper, Esquire, for Complainant

Susan J. Rider and Ann M. O’Neill,

Esqs. for Respondent

I. PROCEDURAL HISTORY

On April 21, 1988, Divyabala Patel filed a complaint

with this Commission in which she charged that Respondent

discriminated against her on the basis of handicap, by

failing to accommodate her injury. A probable cause

finding was issued and efforts to conciliate the matter

failed. The case was certified for public hearing and a

hearing was held before me on January 25 and 26, 1995.

The parties have submitted proposed findings of fact and

conclusions of law. Having reviewed the submissions of

the parties and the entire record, I make the following

findings of fact, conclusions of law, and order.

J-]

Il. FINDINGS OF FACT

1. In 1974, Complainant Divyabala Patel was hired

as a merchandise processor at the Jordan Marsh Distribution

Center in North Quincy. (Tr. | 22) The Distribution Center

is divided into separate work areas, known as Area A, Area

B, the small package area, the security area, ready-to-wear,

outbound and Area D. (Tr. 1 27) Merchandise processors

were assigned work by merchandise controllers.

2. Initially, Complainant was assigned mainly to

Area B, where she worked at a conveyor belt and used a

plastic gun to mark the price tickets on small items of

merchandise such as baby clothes, purses and wallets. On

occasion she was assigned to the small package area where

she also worked at a conveyor belt marking items such as

cosmetics, jewelry, and radios. Occasionally Complainant

was assigned to the ready-to-wear area where she priced

clothing on hangers using a plastic gun. None of these jobs

involved lifting cartons, pushing metal carts or other heavy

work. (Tr. I 27-31) I note that Complainant is extremely

diminutive in size and stature and appears to be somewhat

frail.

3. Approximately ten months after commencing

employment with Respondent, Complainant was

permanently assigned to Area A. Her duties in Area A

were to price merchandise such as shirts and women’s

underwear using a plastic gun. She worked in Area A for

approximately one year. (Tr | 31-32)

4. Sometime around 1978, Complainant was

assigned to Area D, also referred to as "D side". "D side"

J-2

was divided into three areas: the conveyor belt, the china

department and the floor.

5. As part of her duties on "D side", Complainant

began each day working on the conveyor belt, where she

stood and priced items. Later in the day she was assigned

to the china department.

6. Complainant’s duties on the conveyor belt

involved pricing cookware, greeting cards, chocolates and

other items in small boxes with gummed labels. The work

required no lifting or carrying heavy boxes or pushing

merchandise carts or wheeled metal carts, called skids.

(TR 1 34-35)

7. The work in the china department involved

lifting buckets of china from conveyor belts, carrying the

buckets to a packing table, wrapping and packing the china

in cartons, lifting the heavy cartons onto skids, and pushing

the skids to the shipping area. During this period of time

there were thirty to thirty five merchandise processors on

the "D side". Fifteen to twenty worked on the conveyor

belt and three worked in the china department. (Tr. |

37-38)

8. While assigned to this area. Complainant lodged

a complaint with her supervisor, John Mitchell, asserting

that she was the only employee required to pack china. As

a result, Mitchell agreed to permit her to work primarily on

the conveyor belt and to assign her to the china department

only when additional help was needed. (Tr. I 41)

9. In 1984, Respondent, Everett Industries, entered

into a contract with Jordan Marsh whereby Everett became

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the employer of the merchandise processors at the Jordan

Marsh Warehouse. Respondent assumed the collective

bargaining agreement then in existence between the union

representing the warehouse workers (Teamsters) and Jordan

Marsh. (Tr II 76; Ex. R 3) From April 1984 until the end

of 1985, Raymond Taylor was Start-Up Manager for

Everett Industries at the warehouse. He was responsible for

the day to day operation of the warehouse, including

supplying the employees required to do the job at the

warehouse. In July 1989, Jordan Marsh resumed operations

as the employer of the warehouse employees.

10. After Respondent became Complainant’s

employer, Jordan Marsh merchandise controllers continued

to direct and assign work to the merchandise processors. At

about this time, Bob McKay became complainant’s

merchandise controller. McKay usually assigned Com-

plainant to the floor and sometimes to the china department.

(Tr. I 43) At some point McKay was transferred to "A

side" and Complainant’s new supervisor, Sam Ragucci, did

not change her assignment. (Tr I 44-46)

11. Floor work consisted of processing boxes of

merchandise too large to fit on the conveyor belt.

Complainant was required to open the boxes, remove the

merchandise, mark the pieces with labels, process the

purchase order, place the boxes onto skids and push the

skids to the dock. (Tr.I 43-44)

12. In early March, 1987, Complainant was

attempting to remove a box containing luggage from a skid

stacked high with boxes. The boxes fell causing

Complainant’s left hand and wrist to be injured by the

metal bar of the skid. (Tr. 47-49, Ex. C-1)

J-4

13. Complainant was treated by a physician, who

told her her wrist was fractured and advised her to stay out

of work and not to use her hand for a time. She received

worker’s compensation for her injury from March 4, 1987

through March 31, 1987. (Tr. 1 50-51)

14. Upon returning to work in early April, 1987,

Complainant provided Warehouse Manager, Paul Feeney,

with a doctor’s note advising that she should not use her

left hand. She also informed Ragucci that she could not use

her left hand. (Tr,I 54)

15. Disregarding the limitations imposed by

Complainant’s injury and her physician’s note, Respondent

assigned Complainant to do heavy floor work. After two

weeks, she again left work because she could not perform

her assigned duties with an injured hand and because she

continued to experience pain. During this time she

underwent physical therapy. (Tr. I 55)

16. Complainant returned to work in late April,

1987. She again tendered a doctor’s note to Feeney and

told him that her injury was not completely healed and that

her hand was still swollen. Feeney stated he would discuss

this with her supervisor, Ragucci. (Tr. I 57)

17. Ragucci continued to assign Complainant to

floor work. She requested to be assigned to the conveyor

belt on "D side’ until her hand healed. Ragucci told her

that if she didn’t feel well she should stay home. (Tr. |

57-59) Thereafter he assigned her to pack china.

18. In May, 1987, less than a month after her

return, Complainant injured her right hand while packing

J-5

china and was out of work from May 23 through June 3,

1987. (Tr I, 59-60)

19. When Complainant returned to work, she spoke,

to Ragucci and to Dorothy O’Brien, the leader in "D

section”, informing Ragucci that she did not want to work

the floor. Ragucci told her she had to work the floor and

assigned her to unpack merchandise from boxes on a skid.

(Tr. I, 61-62)

20. Complainant was injured again on June 9, 1987

when she was hit by a skid while doing floor work. She

fell, injuring her right leg and left hand. As a result of this

injury, Complainant required medical treatment and physical

therapy and was out of work until the end of July, 1987.

She received total disability worker's compensation from

June 10, 1987 through July 29, 1987. (Tr.1. 63-64)

21. Complainant returned to work at the end of July

and worked for about one week. She experienced severe

pain in her hand and shoulder and was unable to perform

the required heavy work. She did not return to work at all

after early August, 1987. (Tr. | 66-67)

22. After Complainant had ceased working,

representatives of Respondent, including Paul Meleedy and

Dave Connelly visited her home on a number of occasions

to discuss her status and the possibility of her returning to

work. She informed them that she wanted to return to work

and asked them to reassign her to a different department or

assign her lighter work within her area. Complainant was

told that if she returned to work she would be required to

perform the same heavy work as was previously assigned to

J-6

—se

her, and she would not be assigned to light duty or be

transferred to another department. (Tr.77-79)

23. There was evidence that numerous employees

had been granted transfers or reassigned to different

departments for a variety of reasons. Two of Complainant’ s

co-workers on "D side" Joan Ryburg and a women named

Elaine, were assigned work on the conveyor belt after

complaining of health-related problems. Joanne Sherman

was transferred from "A side" to "ready-to-wear" because of

disagreements with her supervisor. (Tr.1 82) Lee Buckley

was transferred from "B side" to "A side" because of health

problems. Pat Struzio was transferred from outbound to the

small package area. Janet Hunter was transferred from "D

side" to "A side" because of an argument with a co-worker

and the warehouse manager. Mary Panacci was transferred

against her will from "D side" to "A side". (Tr. 82-87)

24. According to Complainant’s treating physicians,

during the summer and fall of 1987, she would have been

able to work in a non-strenuous job that did not involve

stress to her left hand and arm. (Joint Exhibits 13, 17, 23.

32)

25. In early 1988, Complainant was diagnosed with

“adhesive capsulitis" or "frozen shoulder", an inflammation

of the capsule surrounding the shoulder joint. (Tr. II 10:

Joint Exhibits 3, 35, 37, 39) Dr. Peter Barry, a

rheumatologist, has been treating the Complainant since

April 1989. He testified that in his opinion when

Complainant returned to heavy work after the initial injury

to her left hand and wrist, she tried to compensate by using

her upper arm more, which caused her to have forearm and

left shoulder pain. Complainant’s second work accident

J-7

occurring in June 1987, in which she fell on her left side,

may have further aggravated her condition and caused the

condition of adhesive capsulitis. Dr. Barry testified that as

of April, 1990, Complainant was totally disabled from any

occupation. (Tr. II, 23-24)

26. Complainant received total disability worker's

compensation benefits from August 4, 1987 when she

ceased working for Respondent through October 31, 1990.

From the period of March 1987 when Complainant was first

injured on the job until December of 1992, when her

workers’ compensation claim was "lumped summed", she

received a total of $106,000 in non-taxable worker’

compensation benefits.

27. At all relevant times, the terms of

Complainant’s employment were governed by collective

bargaining agreements negotiated by her union, the

Teamsters and Respondent. (Joint Exhibits 1 and 2) These

collective bargaining agreements contain no provisions

either allowing or prohibiting changes in work assignment

to reasonably accommodate employees with handicaps. The

agreements contain provisions for bidding on job openings

in a particular job classification and permit the employer to

transfer employees from one job classification to another on

a temporary basis. (Joint Exhibit 1) The agreements do

not address transfers of employees within the same job

classification to different areas of the facility or to different

locations within the same area.

28. Pursuant to the collective bargaining agree-

ments, the employer retains exclusive right "to assign

employees to jobs, to transfer and to decide what work is to

J-8

be done, and when it is to be done, who will do it..."

(Ex.J-1 and J-2.)

29. Paul Meleedy was Respondent’s senior vice

president for insurance at Trans Lease Corp. Respondent’s

parent corporation. He testified that Respondent never

provided light duty for workers who were injured on the

job, and he denied that he ever told Complainant he would

look into light duty for her. (TR.II, 62)

30. Raymond Taylor testified that management had

discretion under the union contract to assign merchandise

processors on "D side" to different tasks. (Tr II, 140)

31. Complainant’s lost wages from July 1987 when

she stopped working for Respondent through July, 1989,

when Jordan Marsh resumed control of the warehouse were

in the amount of $42,640. (Tr. I-95). Complainant made

no attempt to obtain other employment during this entire

period. (Tr. I 90,91) She testified that she was completely

disabled after she stopped working for Respondent and,

therefore, made no attempt to seek alternative employment

for over four years thereafter. She applied for no jobs of

any kind until "late 1991". (Tr. I 90-91).

32. Complainant suffered from emotional distress as

a result of Respondent’s refusal to return her to a

light-duty assignment. She worried about her family and

her children’s future, since she was the sole wage earner in

her family at the time. (Tr. I 93) Complainant wept when

testifying about her emotional state and appeared genuinely

upset, although she testified about a number of concerns

that did not involve treatment related to her handicap

J-9

III. CONCLUSIONS OF LAW

G.L. c. 151B sec. 1 (17) defines a handicapped

individual as one who has a "physical or mental impairment

which substantially limits one or more of such person’s

major life activities, has a record of such impairment, or is

regarded as having such an impairment." Major life

activities include such activities as "caring for oneself,

performing manual tasks, walking, seeing, hearing,

breathing and working.

Complainant has demonstrated that she is a

handicapped individual within the meaning of c. 151B. She

sustained an injury to her hand in March, 1987, which

substantially limited her ability to perform manual tasks

including those required by her job. Moreover,

Complainant qualified for, and received workers’

compensation for that injury. As a result of receiving such

benefits, she is presumed to be handicapped, pursuant to

G.L. c. 152 sec. 75B, which provides that any "employee

who has sustained a work-related injury and is capable of

performing the essential functions of a particular job, or

who would be capable of performing the essential functions

of such job with reasonable accommodations, shall be

deemed to be a qualified handicapped person under the

provisions of chapter [151]B.". Complainant sustained

subsequent work related injuries which further incapacitated

her and significantl; limited her ability to perform certain

job related tasks, particularly heavy work.

A qualified handicapped person is one who is

capable of performing the job with reasonable

accommodation. Complainant was capable of performing

the essential functions of the job of merchandise processor

J-10

with a reasonable accommodation. Following her initial

injury, Complainant returned to Work and was instructed by

her physician not to use her left hand. Complainant

that her injury be temporarily accommodated was denied.

feasible. Hogue v. MOS Inspection, Inc., a

3 AD Cases 1793, 1796 (D. Colo., 1995), Respondent has

(1991); Henchey v. Town of North Greenbush, 83] F. Supp.

960 (N.D.N.Y. 1993); Masterson y Runyon, __ F. Supp.

«unt * AD Coon 1573 (E.D. Pa.1994): Valdez y.

Albuqueraue Public Schools, _ F. Supp. __, 4 AD Cases

40 (D.N.M. 1994). The Commission’s own Guidelines

Provide that... “Accommodations may take many forms

including changes in work schedules and assigned tasks.

J-11

modification of job requirements..." 8 MDLR 2003,2008,

(1986).

Respondent’s assertion that it was prohibited from

reassigning Complainant because of the collective

bargaining agreement in effect at the time, was unsupported

by the testimony of the company’s own witness, Raymond

Taylor, who confirmed that Respondent had discretion

under the contract to assign employees to particular tasks

within their area. Taylor’s testimony was particularly

significant, given that this was the crux of the matter.

Moreover, do not accept Respondent’s assertion that lifting

heavy boxes and other strenuous activities required of

Complainant were essential functions of the job of

merchandise processor because such tasks are delineated in

the job description. (Ex. R-2). The job description is not

dispositive if there is other evidence to the contrary.

Henchey v. Town of North Greenbush, 2 AD Cases 1232,

1237 (N.D.N.Y. 1993).

-Since state law does not define what constitutes

"essential functions" Complainant urges the Commission to

look to the EEOC’s regulations under Title I of the

Americans with Disabilities Act of 1990 for instruction and

guidance on this matter. The regulation at 29 C.F.R. s.1630

(n)(2) provides that a job function may be essential if: (i)

the reason the position exists is to perform that function;

(ii) the function is essential because of the limited number

of employees available to perform that function; and/or (iii)

the function is so highly specialized that the incumbent in

the position has been hired to perform that function. It is

clear from the evidence in the record that the limited duties

Complainant was unable to perform as a result of her injury

do not define the position of merchandise processor as

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ee ee a On ae ee

“aa ° a

articulated by the criteria set forth in the regulations. While

the particular job functions Complainant was temporarily

unable to perform may have been essential functions of

merchandise processors as a group, not every processor was

required to perform every function delineated in the job

description simultaneously. This is particularly true given

the large number of employees available to perform the

tasks within the job classification, the variety of tasks

performed by merchandise processors, and the fact that

Complainant, in the past, had not performed the functions

in question. Since Complainant was a qualified

handicapped individual and the accommodation she sought

was reasonable, I therefore conclude that Respondent’s

failure to accommodate her temporary handicap constituted

unlawful discrimination.

IV. REMEDY

Upon a finding of unlawful discrimination, the

Commission is authorized to grant remedies to effectuate

the purposes of G.L. c. 151B, section 4. Such remedies

may include an award of back pay or other out of pocket

expenses, damages for emotional distress and attorney's

fees.

Complainant ceased working entirely in August of

1987 asserting that she was no longer able to continue

performing her assigned tasks due to the extreme pain she

was suffering. In April of 1990, according to her physician,

she was rendered totally disabled. At this point

Complainant was no longer a qualified handicapped

individual because she could not perform any of the

essential functions of the job, even with a reasonable

accommodation. Complainant did not seek any alternative

J-13

work for a period of more than four years, applying for no

jobs until late 1991. In addition she collected workers’

compensation benefits until October, 1990 and received a

lump sum payment in December 1992. I conclude that

under the circumstances, Complainant has been fully

compensated for her lost earnings and has not demonstrated

that she is entitled to an additional award of damages for

lost wages.

However, Complainant did suffer emotional distress

as a direct consequence of Respondent’s conduct.

Complainant’s distress was apparent and she wept as she

spoke of how Respondent’s treatment impacted her

emotionally. I conclude that Complainant suffered from

emotional distress as a direct result of Respondent’s failure

to accommodate her. Her distress was compounded by her

worsening medical condition, which was exacerbated by

Respondent’s unlawful conduct. Nonetheless, it is evident

from Complainant’s testimony that other factors unrelated

to treatment she received because of her handicap also

contributed to her emotional state. I conclude that

Complainant is entitled to an award of damages for

emotional distress in the amount of $25,000.

V. ORDER

Based on the foregoing Findings of Fact and

Conclusions of Law, | enter the following order:

(1) Respondent shall cease and desist from

discriminating against employees on the basis of handicap.

(2) Respondent shall pay to Divyabala Patel the

amount of $25,000 in damages for emotional distress plus

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ee ee ee ee Oy eee eine ee er ee eee a ey ee ee ey

interest thereon at the statutory rate of 12% per annum from

the date the complaint was filed until such date as payment

is made or until such date as this obligation is reduced to a

court judgment and post judgment interest begins to accrue.

Any party aggrieved by this decision may file a

notice of appeal to the Full Commission within ten days of

receipt of this decision. An appeal to the Full Commission

also requires the filing of a petition for review which must

be filed within 30 days of receipt of this decision.

SO ORDERED, this 24th day of January, 1996.

/s/ Eugenia M. Guastaferri

Eugenia M. Guastaferri

Hearing Officer

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AGREEMENT

- BETWEEN -

TEAMSTERS LOCAL UNION NOS. 25 & 82

affiliated with the

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA

and

EVERETT INDUSTRIES, INC. (DIVISION 06 & 00)

For The Period

JULY 1, 1984 to JUNE 30, 1987

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INDEX

ARTICLE 1 RECOGNITION l

ARTICLE I UNION SECURITY AND CHECK

OFF

ARTICLE __ II SHOP STEWARDS

ARTICLE IV LEAVE OF ABSENCE

ARTICLE V SENIORITY

ARTICLE VI MAINTENANCE OF STANDARDS 9

ARTICLE VI GRIEVANCE AND ARBITRATION

PROCEDURE 10

ARTICLE IX MANAGEMENT 1]

Ww WN bd

ARTICLE X PICKET LINES 12

os ARTICLE XI SAFETY AND ACCIDENTS 12

ARTICLE XII SANITARY CONDITIONS 12

ARTICLE XIII LOSS OR DAMAGE 12

ARTICLE XIV WORK ASSIGNMENTS 12

ARTICLE XV SEPARATION FROM

EMPLOYMENT — 13

ARTICLE XVI UNIFORMS 13

ARTICLE XVII WORKMEN’S COMPENSATION | 13

ARTICLE XVIII EXAMINATION AND

IDENTIFICATION FEES 13

ARTICLE XIX MILITARY SERVICE 14

ARTICLE XX UNION BULLETIN BOARD 14

ARTICLE XXI UNION ACTIVITIES 14

ARTICLE XXII VISITS TO PREMISES 14

ARTICLE XXIII MEAL AND REST PERIODS 15

ARTICLE XXIV WAGES 15

ARTICLE XXV WORKWEEK 15

ARTICLE XXVI VACATIONS 17

ARTICLE XXVII HOLIDAYS 18

ARTICLE xxvii LIE DETECTOR TEST 19

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ARTICLE XXIX FUNERAL LEAVE 19

ARTICLE XXX JURY DUTY PAY 19

ARTICLE XXXI NO STRIKE OR LOCKOUT 20

ARTICLE XXXII COURT APPEARANCE 20

ARTICLE —- Xxx AUTHORIZED SICK TIME PAY 20

ARTICLE XxxIvV SEPARABILITY AND SAVINGS

CLAUSE 20

ARTICLE XXXV PENSIONS 21

ARTICLE xXxxvi HEALTH AND WELFARE 23

ARTICLE —- Xxx vil NONDISCRIMINATION 24

ARTICLE —- XxxvilI DURATION, TERMINATION

MODIFICATION 25

SCHEDULE A WAGE RATES EFFECTIVE

JULY 1, 1984 26

SCHEDULE A WAGE RATES EFFECTIVE

JULY 1, 1985 af

SCHEDULE A WAGE RATES EFFECTIVE

JULY 1, 1986 28

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AGREEMENT

This Agreement is made and entered into this Ist day

July, 1984, between Everett Industries, Inc. (Division 00 &

06) 62 Everett Street, Westwood, MA 02090, hereinafter

referred to as the "Employer, and Teamsters Local Union

Nos. 25 & 82, affiliated with the International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and Helpers of

America, hereinafter referred to as the "Union."

SCOPE OF AGREEMENT

All operations and work covered herein shall be

performed exclusively by employees covered by the

Agreement. -

(a) This Agreement shall be binding upon the

parties hereto, their successors, administrators,

executors and assigns. In the event the entire

operation is sold, leased, transferred, or taken

over by sale, transfer, lease or assignment,

receivership, bankruptcy proceedings such

operation shall continue to be subject to the

terms and conditions of this Agreement for the

life thereof. It is understood by this section

that the parties hereto shall not use any leasing

device to a third party to evade this Agreement.

The Employer shall give notice of the existence of

this Agreement to any transferee, purchaser, lessee,

assignee, etc. of the operation covered by this Agreement.

Such notice shall be in writing with a copy to the Union not

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less than thirty (30) days prior to the effective date of sale

or transfer.

ARTICLE I

RECOGNITION

The Employer recognizes the Union as the exclusive

representative of the employees in the classifications set

forth below for the purpose of collective bargaining with

respect to wages, hours, and conditions of employment.

At Squantum Facility:

General Warehouse Worker Furniture Cabinet Makers

Incinerator Attendant Furniture Cabinet Finishers

Porter Major Appliance Repair Person

Merchandise Processor Major Appliance Repair Person

(Apprenticeship)

Working Lead

Maintenance:

Maintenance Mechanic (Licensed)

Maintenance Mechanic A

Maintenance Mechanic B

Maintenance Mechanic (Apprentice)

ARTICLE II

UNION SECURITY AND CHECK OFF

Section 1. Union Security

All employees who are members of the Union as of

the effective date of this Agreement or on the date of the

execution of this Agreement, whichever is later, shall

remain members of the Union in good standing as a

condition of employment. All employees who are hired

after the date of the execution of this Agreement shall

become and remain members in good standing of the Union

as a condition of employment on and after the thirty-first

day following the beginning of their employment or on and

after the thirty-first day following the execution of this

Agreement, whichever is later. The failure of any person

to become and remain a member of the Union after required

time shall obligate the Employer, upon written notice from

the Union to such effect, and to the further effect that

Union membership was available to such person on the

same terms and conditions generally available to other

members, and that such member has failed to tender the

uniform dues and initiation fees required as a condition

for the acquisition or retention of membership in the Union,

shall obligate the Employer to discharge such person in five

(5) working days after receiving such written notice.

Section 2. Check Off

The Employer, upon request by the Union and receipt

by the Employer of signed authorization by the regular

employees, agrees to deduct dues from the pay of the

employees covered by this Agreement, and agrees to remit

to the Union such deductions. No deductions shall be made

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Se ees Se Ee eee eT abe

which are prohibited by law. The written authorization by

the regular employee shall be furnished to the Employer in

a form acceptable to the Employer.

Section 3. Credit Union

The Employer agrees to deduct certain specified

amounts each week from the wages of those regular

employees who shall have given the Employer written

authorization to make such deductions. The amounts

deducted shall be remitted to the Teamster’s Local 25

Federal Credit Union, 548 Main Street, Charlestown, 02129,

once a week. The Employer shall not make deductions and

shall not be responsible for remittance to the credit union

for any deductions for those weeks during which the regular

employee has no earnings or in those weeks in which the

regular employees earnings shall be less than the amount

authorized for deduction.

ARTICLE Ill

SHOP STEWARDS

The Employer recognizes the right to the Union to

designate shop steward and alternates from among the

regular employees in the bargaining units set forth in this

Agreement.

The authority of shop steward and the alternates so

designated by the Union shall be limited to, and shall not

exceed, the following duties and activities:

1. The investigation and presentation of grievances

in accordance with the provisions of the

Collective Bargaining Agreement;

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2. The collection of dues when authorized by

appropriate local union action;

3. The transmission of such messages and

information which shall originate with, and are

authorized by the local union or its officers,

provided such messages and information

(a) have been reduced to writing; or

(b) if not reduced to writing, are of routine

nature and do not involve work

stoppages, slowdowns, refusal to handle

goods, or any other interference with the

Customers business.

Shop steward and alternates have no authority to take

strike action or any other action interrupting the Customers’

business.

The steward may request relief from his/her duties at

any time to investigate and settle grievances and to present

them to management. His/her supervisor will grant such

relief promptly except when doing so might unduly

interrupt operations or when the privilege is being abused.

The steward will be paid at their regular straight-time

hourly rate for time !ost from work while attending

grievance meetings. The company reserves the right to

discontinue the policy of paying for time lost if in the

opinion of the company, the time spent in presentation of

grievance is being abused.

Except as provided herein the steward shall be

expected to carry out the duties assigned to him by

management.

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ARTICLE IV

LEAVE OF ABSENCE

Leave of absence without pay may, in the discretion

of the Employer, be granted to regular employees for a

period up to three (3) weeks, which may be extended for

a like period of up to three (3) weeks in the discretion of

the Employer. Union officials shall, upon written

application by the Union and the regular employee, be

given leave of absence in writing without pay up to three

(3) weeks in each calendar year for the purpose of attending

. a Union Convention, conference or Union Executive Board

meeting. No regular employees may engage in other

employment during such leave. Failure to return on t

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