# Petition for Writ of Certiorari — Everett Industries, Inc. v. Patel > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1491%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 531 U.S. 1147 ## Text 00 950 DEC 6-2UW a ee nnblbinbl Lie CLERK 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? i : 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] il 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. vl 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 ae 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. l 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. 7 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. 10 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 11 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 13 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 14 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 15 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- 16 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 17 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 18 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. 19 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 20 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 21 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 22 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. 23 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 24 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, ee 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 oe 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 a "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 5 , P : . F ; 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 oO 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. ee 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 (c) Based on an error of law, 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 ya 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1491%3A1. Public record. Not legal advice.