Opposition Brief — Everett Industries, Inc. v. Patel

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No. 00-950

IN THE athe nthe KK |

Supreme Court of the United States

OCTOBER TERM, 2000

EVERETT INDUSTRIES, INC.,

Petitioner,

DIVYABALA PATEL AND MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE APPEALS COURT FOR THE

COMMONWEALTH OF MASSACHUSETTS

RESPONDENT?’S BRIEF IN OPPOSITION

THOMAS F. REILLY

Attorney General

of Massachusetts

JUDITH S. YOGMAN

Assistant Attorney General

1 Ashburton Place, Room 2019

Boston, Massachusetts 02108

(617) 727-2200, ext. 2066

Counsel of Record

for Respondent

Massachusetts Commission

Against Discrimination

Questions Presented

1. Whether an employee’s_ state-law handicap

discrimination claim was preempted by the federal Labor

Management Relations Act, where adjudication of the employee’s

claim did not require interpretation of any provision of a

collective bargaining agreement.

2. Whether the Massachusetts Commission Against

Discrimination correctly awarded attorney’s fees under a state

statute that was enacted shortly after the administrative complaint

was filed, where the statute simply provides the same relief in an

administrative forum as would be available if the complainant had

filed suit and prevailed in court.

List of Parties

All parties appear in the caption of the case on the cover page.

Table of Contents

CpsUeGn DONNER iis SA eh aR ES i

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Sa SE Ce NW aos nin bk 6 0 kde re |

IC SC 3nd ce K AG Rd WA os ods cde eeE yon bi dee kee 2

Se Facac vig heRe Seb AS Uwe pee bade 2

satel sc Dbiaedpssnidd cs mies dsc 5

Prior Administrative and Judicial Proceedings ..... 5

RS aire ed bias Cabs dee Sk c Ode ano ac 5

Presentation and Disposition of the Federal

EE OE, POT eee ee 6

Reasons for Denying the Writ ............cccccccccccces 9

I. THE APPEALS COURT’S DECISION SIMPLY APPLIES

ESTABLISHED LEGAL STANDARDS TO THE FACTS

I ae G

A. The Preemption Issue Tums on the

Application of a Settled

Standard—Whether Adjudication of the

State-Law Claim Requires Interpretation

of a Collective Bargaining Agreement. ...... 9

ill

B. The Attorney’s Fees Issue Also Turns on

the Application of a _ Settled

Standard—Whether the Statute Attaches

New Legal Rights, Liabilities, or

Responsibilities to Events Completed

eGore Be FAMOUNO. on ci cect eeaes

THERE IS NO CONFLICT BETWEEN’ THE

CONCLUSIONS REACHED BY THE APPEALS COURT

AND THOSE REACHED BY THIS COURT AND OTHER

LOWER COURTS IN_ SIMILAR FACTUAL

RTE, 6 k's c's As boa eeaea e ea eeee

A. Where, As Here, Adjudication of a State-

Law Claim Does Not Require

Interpretation of a Collective Bargaining

Agreement, the State-Law Claim Is Not

Preempted by the Federal LMRA. .........

B. Where, As Here, the Newly Enacted Fee

Statute Simply Authorized _ the

Commission to Provide the Same Relief

that Would Have Been Available If the

Employee Had Chosen to File Her Claim

in Court, the Commission Properly

Applied that Statute to Award Fees in This

Proceeding, Which Commenced Before

the Effective Date of the Act..............

Il. BECAUSE THE ATTORNEY’S FEES STATUTE AT

ISSUE HERE Is ALREADY MORE THAN TEN YEARS

OLD, THE QUESTION OF WHETHER IT SHOULD BE

APPLIED TO PRE-ENACTMENT CASES IS NOT AN

IMPORTANT QUESTION WORTHY OF

CONSIDERATION BY THIS COURT. ............... 19

CONC cis Rete as ee 20

Table of Authorities

Cases

Ackerman v. Western Elec. Corp.,

860 F.2d 1514 (9th Cir. 1988) .................. 15

Allis-Chalmers Corp. v. Lueck,

Pipe le My ft. | eS ere pee 7, 9, 10, 14

Bradley v. School Bd. of Richmond,

GOB ULE GOOF 6 0c hadtwde ce cds ceuwars 17, 18, 19

Bruce v. Northwest Metal Product Co.,

79 Wash. App. 505, 903 P.2d 506

(Wash. App. Div. 2 1995), review denied,

129 Wash.2d 1014, 917 P.2d 575 (1996).......... 15

Bush v. Palm Beach County Canvassing Bd.,

69 U.S.L.W. 4020 (U.S. Dec. 4, 2000) ............ 9

Colorado Anti-Discrimination Comm'n v.

Continental Airlines, Inc.,

Fe ee PE Fi eh dos cov aannsnasdicc 15

Davis v. Johnson Controls, Inc.,

21 F.3d 866 (8th Cir.), cert. denied,

es a nnn bod ob 04006) 15, 16

East Chop Tennis Club v. Massachusetts

Comm'n Against Discrimination,

364 Mass. 444, 305 N.E.2d 507 (1973) ............ 7

Evans v. Southern Pacific Transp. Co.,

213 Cal. App.3d 1378, 262 Cal. Rptr. 416

(Cal. Ct. App.), review denied (1989),

cert. denied, 496 U.S. 936 (1990) ............... 15

Flibotte v. Pennsylvania Truck Lines, Inc.,

Rig A pigi ie 2. rrr rrr yy 10, 12

Fontaine v. Ebtec Corp., 415 Mass. 309,

DUD PUR we Gee CUR cic nkccaekoansae¥inbas 8, 10

Hawaiian Airlines, Inc. v. Norris,

ee Bee | PPT Perr re Teer ere 16

Hughes Aircraft Co. v. United States

ex rel. Schumer, 520 U.S. 939 (1997) ............ 19

Hutto v. Finney, 437 U.S. 678 (1978) ............00000- 17

Jimeno v. Mobil Oil Corp.,

me Bet. oe errr 15, 16

Katz v. Massachusetts Comm'n Against

Discrimination, 365 Mass. 357,

Dae See ee Cs ia 8s oe hos a eee eo Ween 6

Landgraf v. USI Film Products,

S31 US. BAA (IGDD) 2.0 vc acceccccuces 9, 10, 16, 17, 18

Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399 (1988) ............ 7, 9, 10, 12, 13, 14

Livadas v. Bradshaw,

Sam Se LE oa csc beeen keene 13, 14, 16

viii

Local 174, Teamsters v. Lucas Flour Co.,

SOF US. FS CIN so vkn oee a eS. 7

Lydon v. Boston Sand & Gravel Co.,

175 P36 6 Claw. 1998) ok i eA 13

Martin v. Hadix, 527 U.S. 343 (1999) ..............008. 18

Martin Marietta v. Maryland Comm'n on

Human Relations, 38 F.3d 1392

Els SUE 8 as N.0 0b BN eC bca bbs vee 15, 16

Michigan v. Long, 463 U.S. 1032 (1983) ................ 9

Miller v. AT&T Network Systems,

Pe Rt Oe CO BONED oo a kee cbc bacakiae 15

O’Brien v. Consolidated Rail Corp.,

972 F.2d 1 (ist Cir. 1992), cert.

Gamal, SHUG. TUSS GFFS) oo ek ks che iaes 16

Quinn v. Southern Pacific Transp. Co.,

76 Or. App. 617, 711 P.2d 139

(Or. Ct. App. 1985), review denied,

ee A PO, FED Pe Oe APOE bec en cevieusee 15

Rice v. Sioux City Memorial Park Cemetery,

Pe Wes PEE s v.k Nowe eke ei digs fxd oe 19

School Comm. of Brockton v. Massachusetts

Comm'n Against Discrimination,

423 Mass. 7, 666 N.E.2d 468 (1996) ........ 8, 11, 18

Smolarek v. Chrysler Corp., 879 F.2d 1326

(6th Cir.), cert. denied,

AFD EE FE NAA A RS 15

United Steelworkers v. Rawson,

BOS UE FER CI 6 5 i 6 FSR ce ees 7

United Steelworkers v. Warrior & Gulf Nav. Co.,

26S UE. STR SACRA BAS 13

Statutes

Sle. CER OFS Gs as es eA Ee es 5

Mass. G4: 1518; $416) 6.3 ee ee AR 3, 5, 14, 16

Pee. (2.5... 0. SSR ee bs coe Oe a 4,5

nee: 43.5 BOE Bao 5 ea RES es 6

biaet. GL. 6. ISIS SF i i en es 4,18

a is ey Re eer emer ys We eer 4,5

Be ats SAE on S55 EN ee RS Oe ee 8

FF his 8 655 in Feo Re CEES Fe eee ee 2

G24 SL. 6 19S 5. FR SAS A 17

Rules and Regulations

803 CALE. S.C ook oes SG 16

Sup. CLR: WO. eat Be ae eo Pav da eee 10, 11, 19

ee, ERO osc dnasie dds ca a ae eka ea 11

Bb Rh. FOG) os eee eee 11

SU GE: Be ok ince os ai ee eea eee ee 6

No. 00-950

IN THE

Supreme Court of the United States

EVERETT INDUSTRIES, INC.,

Petitioner,

DIVYABALA PATEL AND MASSACHUSETTS

COMMISSION AGAINST DISCRIMINATION,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE APPEALS COURT FOR THE

COMMONWEALTH OF MASSACHUSETTS

RESPONDENT?’S BRIEF IN OPPOSITION

The respondent Massachusetts Commission Against

Discrimination requests that this Court deny the petition for a writ

of certiorari, seeking review of the Massachusetts Appeals

Court’s decision in this case.

Opinions and Orders Below

The order of the Supreme Judicial Court for the

Commonwealth of Massachusetts denying further appellate

review is reported at 432 Mass. 1109, 737 N.E.2d 468 (2000), and

is reproduced in the appendix to the petition (“Pet. App.”) at A-1.

The opinion of the Massachusetts Appeals Court is not reported

but is reproduced at Pet. App. B-4—B-21. The opinion and order

of the Massachusetts Superior Court are not reported but are

reproduced at Pet. App. F-1—F-18. The opinion of the full

Massachusetts Commission Against Discrimination is reported at

18 MDLR 182 (Sept. 18, 1996) and is reproduced at Pet. App. I-

1—I-11. The opinion of the Hearing Officer of the Massachusetts

Commission Against Discrimination is reported at 18 MDLR 26

(Jan. 24, 1996) and is reproduced at Pet. App. J-1—J-15.

Jurisdiction

The Massachusetts Appeals Court issued its decision on

June 29, 2000. Pet. App. B-1. The Massachusetts Supreme

Judicial Court denied a timely application for further appellate

review on September 8, 2000. Pet. App. A-1. On December 7,

2000, a timely petition for a writ of certiorari was filed in this

Court. But see Presentation and Disposition of the Federal

Questions Below, infra (contesting this Court’s jurisdiction over

the attorney’s fees issue presented in the Petition).

Statutes Involved

Section 301 of the Labor Management Relations Act, 29

U.S.C. § 185(a), 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.

Massachusetts G.L. c. 151B, § 4(16), provides, in

pertinent part:

It shall be an unlawful practice:

. . . For any employer, personally or

through an agent, to dismiss from employment or

refuse to hire, rehire or advance in employment or

otherwise discriminate against, because of his

handicap, any person alleging to be a qualified

handicapped person, capable of performing the

essential functions of the position involved with

reasonable accommodation, unless the employer

can demonstrate that the accommodation required

to be made to the physical or mental limitations of

the person would impose an undue hardship to the

employer’s business. . . .

In determining whether an accommodation

would impose an undue hardship on the conduct

of the employer’s business, factors to be

considered include:—

(1) the overall size of the employer’s

business with respect to the number of employees,

number and type of facilities, and size of budget

or available assets;

(2) the type of the employer’s operation,

including the composition and structure of the

employer’s workforce; and

(3) the nature and cost of the

accommodation needed.

Physical or mental job qualification

requirement[s] with respect to hiring, promotion,

demotion or dismissal from employment or any

other change in employment status or

responsibilities shall be functionally related to the

specific job or jobs for which the individual is

being considered and shall be consistent with the

safe and lawful performance of the job.

Massachusetts St. 1989, c. 722, § 27, provides:

Said second paragraph of said section 5 of

said chapter 151B [of the Massachusetts General

Laws], as so appearing, is hereby further amended

by inserting after the twenty-third sentence the

following sentence:— In addition to any such

relief, the cornmission shall award reasonable

attorney’s fees and costs to any prevailing

complainant.

The full text of Mass. G.L. c. 151B, § 5, as amended by

St. 1989, c. 722, § 27, is reproduced at Pet. App. O-1—O-9.

Massachusetts G.L. c. 151B, § 9, provides, in pertinent

part:

If the court finds for the petitioner it shall, in

addition to any other relief and irrespective of the

amount in controversy, award the petitioner

reasonable attorney’s fees and costs unless special

circumstances would render such an award unjust.

Statement of the Case

Prior Administrative and Judicial Proceedings

This is an action for judicial review, under the state

administrative procedures act, of a decision of a state agency, the

Massachusetts Commission Against Discrimination (“the

Commission”). The Commission’s hearing officer found that

Everett Industries (“the employer’) had discriminated against

Divyabala Patel (“the employee”) on the basis of her

handicap—hand and shoulder injuries—by denying her a

reasonable accommodation—-temporary assignment to work not

involving heavy lifting—in violation of the state anti-

discrimination statute, Mass. G.L. c. 151B, § 4(16). Pet. App. J-

10—J-13. The full Commission affirmed the hearing officer’s

decision and awarded the employee attorney’s fees, pursuant to

Mass. G.L. c. 151B, § 5, as amended by Mass. St. 1989, c. 722,

§ 27. Pet. App. I-1—I-11.

The employer then filed a complaint for judicial review of

the Commission’s decision in the Massachusetts Superior Court,

pursuant to Mass. G.L. c. 30A, § 14. After the Superior Court —

affirmed the Commission’s decision in all respects, Pet. App.

F-1—F-18, the employer appealed to the Massachusetts Appeals

Court, which affirmed the Superior Court’s decision. Pet. App.

B-4—B-21. The Massachusetts Supreme Judicial Court denied

the employer’s application for further appellate review. Pet. App.

A-l.

Facts

Only two facts are material to the questions on which the

petitioner seeks review:' (1) In finding the employer liable for

handicap discrimination, the hearing officer did not rely on the

parties’ collective bargaining agreement, which she expressly

found to “contain no provisions either allowing or prohibiting

changes in work assignment to reasonably accommodate

employees with handicaps,” Pet. App. J-8; see also Pet. App. K,

L (the applicable collective bargaining agreements); and (2) the

attorney’s fees statute under which the Commission awarded fees

to the employee became effective in 1990, Pet. App. I-S—I-6 n.3,

after the underlying conduct in this case, Pet. App. I-8—I-10, and

shortly after the employee filed her complaint with the

Commission, Pet. App. J-1, but before all but 3% hours of the

legal services in question were performed.

Presentation and Disposition of the Federal Questions Below

The first question presented in the petition—whether the

employee’s state-law handicap discrimination claim is preempted

by the federal Labor Management Relations Act (“LMRA”)}—was

not raised before the Commission. Rather, it was raised for the

first time in the Superior Court, in an amendment to the

employer’s complaint. Pet. App. H-2. Accordingly, as a matter

of state law, it should not have been considered by the lower

courts. Mass. G. L. c. 151B, § 6 (“{nJo objection that has not

been urged before the commission shall be considered by the

court’); Katz v. Massachusetts Comm'n Against Discrimination,

‘Although not relevant to what issues “properly would be

before the Court if certiorari were granted,” cf. Sup. Ct. R. 15(2),

the employer’s allegations that the employer had a practice of no

light-duty assignments, Pet. at 8, and that the employee sought

creation of a new light-duty position, Pet. at 10, are incorrect. See

Pet. App. J-7, J-6 (finding to the contrary on both points and

citing the relevant evidence in the record).

365 Mass. 357, 364, 312 N.E.2d 182, 186 (1974). This rule

applies with equal force to jurisdictional issues. East Chop

Tennis Club v. Massachusetts Comm'n Against Discrimination,

364 Mass. 444, 452, 305 N.E.2d 507, 513 (1973). However, in

this case, the Superior Court and the Appeals Court nevertheless

considered this claim on its merits, over the Commission’s

objections, based on the doctrine that jurisdictional defenses may

be raised at any time.” Pet. App. F-9, B-8—B-9 n.8.

In rejecting the preemption claim on its merits, the

Appeals Court applied the test established by this Court for

determining whether section 301 of the federal LMRA preempts a

state-law claim—i.e., whether adjudication of the state-law claim

turns on the meaning of a provision in a collective bargaining

agreement. Pet. App. B-8—B-11 (citing Lingle v. Norge Div. of

Magic Chef, Inc., 486 U.S. 399, 405-06 (1988); United

Steelworkers v. Rawson, 495 U.S. 362, 369 (1990); Allis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985)). Having

determined that the Commission’s decision did not turn on the

meaning of any provision of the applicable collective bargaining

agreements, the Appeals Court held that the employee’s state-law

claim was not preempted by the federal LMRA. Id.

The second question presented by this petition—whether

the Commission properly gave retroactive effect to a state

attorney’s fees statute—was presented first at the Commission,

Pet. App. I-S—I-6, and then in the Superior and Appeals Courts.

Pet. App. F-15—F-16, B-18. In summarily rejecting this claim,

the Appeals Court relied solely on a previous decision of the

"It is doubtful that this defense was correctly characterized

as jurisdictional, since even if the employee’s state-law claim

were preempted by the LMRA, state courts would still have

jurisdiction to adjudicate the claim but would be required to apply

federal labor law in doing so. Local 174, Teamsters v. Lucas

Flour Co., 369 U.S. 95, 101, 103-04 (1962).

Massachusetts Supreme Judicial Court, School Comm. of

Brockton v. Massachusetts Comm'n Against Discrimination, 423

Mass. 7, 16, 666 N.E.2d 468, 475 (1996), Pet. App. B-18, which,

in turn, relied on an earlier pronouncement of the same court on

that issue. Fontaine v. Ebtec Corp., 415 Mass. 309, 320-21 n.11,

613 N.E.2d 881, 889 n.11 (1993).

In the Brockton and Fontaine cases, the Supreme Judicial

Court upheld the retroactive application of this attorney’s fees

statute on the ground that, rather than create a new substantive

right or remedy, it “simply entitled complainants who pursued

their cases before the commission to a remedy commensurate

with the remedy to which they would have been entitled if they

had filed suit and prevailed in a State or Federal court.”

Brockton, 423 Mass. at 16, 666 N.E.2d at 475 (citing Fontaine,

415 Mass. at 320, 613 N.E.2d at 889). In so concluding, the

Supreme Judicial Court treated this issue solely as one of

legislative intent, Fontaine, 415 Mass. at 318, 613 N.E.2d at 887

(“Whether a statute applies retrospectively is a question of

legislative intent.”), rather than one of federal constitutional law.’

>Although the Appeals Court characterized the employer’s

objection to the attorney’s fees award as based on “due process”

grounds, Pet. App. B-18, in its brief to that court, the employer

argued only that the state legislature did not expressly make the

statute retroactive and that the Supreme Judicial Court had erred

in the Brockton case by reading such intent into the statute,

thereby overstepping the proper bounds of the judicial branch.

Employer’s Brief at 40-42. At most, this is a question of state

constitutional law, rather than federal law. It is therefore

questionable whether any substantial federal question concerning

the propriety of the attorney’s fees award was even presented to

the Appeals Court, cf 28 U.S.C. § 1257(a) (requiring that a

federal right be “specially set up or claimed”), much less decided

(continued...)

Cf. Landgraf v. USI Film Products, 511 U.S. 244, 272 (1994)

(explaining that issue of retroactive versus prospective application

of federal statutes, while originally rooted in economic due

process concerns, is now largely a matter of Congressional

intent). Because the state legislature’s intent is a question of state

law, which constitutes an independent and adequate ground for

the Appeals Court’s decision on the attorney’s fees question, this

Court lacks jurisdiction to consider that question. Michigan y.

Long, 463 U.S. 1032, 1037-44 (1983); Bush v. Palm Beach

County censiy nen a: 69 U.S.L.W. 4020, 4021 (U.S. Dec. 4,

2000).

Reasons for Denying the Writ

I. THE APPEALS COURT’S DECISION SIMPLY APPLIES

ESTABLISHED LEGAL STANDARDS TO THE FACTS OF

THIS CASE.

A. The Preemption Issue Turns on the

Application of a Settled Standard—Whether

Adjudication of the State-Law Claim Requires

Interpretation of a Collective Bargaining

Agreement.

In ruling that the employee’s state-law employment

discrimination claim was not preempted by the federal LMRA, the

Appeals Court applied the test established by this Court: whether

adjudication of the state-law claim turns on the meaning of a

provision in a collective bargaining agreement. Pet. App. B-

8—B-11 (citing Lingle, 486 U.S. at 405-06; Allis-Chalmers, 471

USS. at 220). Although the employer disagrees with the result the

>(...continued)

by that court.

Appeals Court reached, it does not dispute the correctness of the

legal standard the Appeals Court applied. Indeed, in its Petition,

the employer relies on the very same decisions of this Court and

states the applicable standard in terms virtually identical to those

the Appeals Court used. Compare B-9 (“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.’ Filibotte v. Pennsylvania

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

.... J), and Pet. at 11 (“Section 301 prempts state law claims

which require interpretation of a collective bargaining agreement.

Lingle ....; Allis-Chalmers . . . .’’).

Thus, the question presented by the Petition is simply

whether the agreed-upon legal standard was correctly applied to

the circumstances of this case—i.e., what the applicable collective

bargaining agreement provided and what relationship, if any, that

agreement had to the employee’s state-law employment

discrimination claim. As such, it is not an appropriate subject for

review by this Court. Sup. Ct. R. 10 (“A petition for a writ of

certiorari is rarely granted when the asserted error consists of . . .

the misapplication of a properly stated rule of law.’’).

B. The Attorney’s Fees Issue Also Turns on the

Application of a Settled Standard—Whether

the Statute Attaches New Legal Rights,

Liabilities, or Responsibilities to Events

Completed Before Its Enactment.

The test used by Massachusetts courts in determining

whether it is impermissible to give a state statute retroactive

effect is the same as that articulated by this Court with respect to

federal statutes—whether the statute attaches new legal

consequences to past conduct. Compare Fontaine, 415 Mass. at

318-20, 613 N.E.2d at 887-88 (whether the statute creates a new

legal right or liability with respect to past conduct), and Landgraf,

511 U.S. at 280 (whether the statute impairs preexisting nights,

increases liability for past conduct, or imposes new duties with

respect to completed transactions). Based on its determination

that this fee statute, rather than create new rights or

responsibilities, “simply entitled complainants who pursued their

cases before the commission to a remedy commensurate with the

remedy to which they would have been entitled if they had filed

suit and prevailed in a State or Federal court,” Brockton, 423

Mass. at 16, 666 N.E.2d at 475, cited in Pet. App. B-18, the

Appeals Court upheld the Commission’s authority to award fees

under this statute, despite the fact that the statute was enacted

after the underlying discriminatory conduct and after the

complaint was filed at the Commission. Thus, as with the first

question presented by the Petition, the second question reduces to

whether the Appeals Court correctly applied this proper legal

standard to the particular circumstances of this case. As such, this

question is similarly unworthy of this Court’s review. Sup. Ct. R.

10.

Il. THERE Is NO CONFLICT BETWEEN THE CONCLUSIONS

REACHED BY THE APPEALS COURT AND THOSE

REACHED BY THIS COURT AND OTHER LOWER COURTS

IN SIMILAR FACTUAL SITUATIONS.

Noticeably absent from the Petition is any contention that

review by this Court is necessary to resolve a previously

undecided important federal question or to resolve any conflicts

between the Appeals Court’s decision and those of the federal

courts of appeals or the highest courts of other states. Cf Sup. Ct.

R. 10(b), (c) (listing such conflicts as among the “compelling

reasons” this Court considers in determining whether to grant a

petition for a writ of certiorari). To the contrary, as illustrated by

the cases cited by the Appeals Court and in the Petition itself,

both of the questions presented by this Petition have already been

decided by this Court and by other courts in a manner entirely

consistent with the conclusions reached by the Appeals Court in

this case.

A. Where, As Here, Adjudication of a State-Law

Claim Does Not Require Interpretation of a

Collective Bargaining Agreement, the State-

Law Claim Is Not Preempted by the Federal

LMRA.

The Appeals Court’s ruling on the preemption issue is

consistent with prior decisions of this Court and those of federal

courts of appeal and other state appellate courts on this issue. In

resolving this issue, the Appeals Court applied the “basic test”

articulated by this Court and consistently followed by the federal

courts of appeals and state appellate courts—‘“whether [the

adjudicator], ‘in passing upon the [state-law] claim would be

required to interpret the collective bargaining agreement.’

Flibotte v. Pennsylvania Truck Lines, Inc., 131 F.3d 21, 26 (1st

Cir. 1997), citing to Lingle v. Norge Div. of Magic Chef, Inc.[,]

486 U.S. 399, 405-406 (1988).” Pet. App. B-9.

As recognized by the Appeals Court, “There is no —

indication in the hearing officer’s findings that she interpreted the

{collective bargaining agreements]” in adjudicating the

employee’s state-law employment discrimination claim. Pet.

App. B-11. Rather, the hearing officer expressly found, based on

testimony of the employer’s own witness, that the collective

bargaining agreements were silent on the relevant points: “The[]

collective bargaining agreements contain no provisions either

allowing or prohibiting changes in work assignment to reasonably

accommodate employees with handicaps. ... 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.” Pet. App. J-8; see also Pet. App.

K, L (the applicable collective bargaining agreements).

The fact that the hearing officer consulted the collective

bargaining agreements solely to satisfy herself of tneir irrelevance

cannot, in itself, satisfy the test for LMRA preemption. Where, as

in this case, “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 [state-law] claim to be extinguished.” Livadas v.

Bradshaw, 512 U.S. 107, 124 (1994). Rather, as recognized by

the Appeals Court, “There must be a ‘real interpretive dispute’ to

preempt state law claims.” Pet. App. B-11 (quoting Lydon v.

Boston Sand & Gravel Co., 175 F.3d 6, 10 (1st Cir. 1999)).

Alternatively, the employer contends that, in the absence

of any relevant express provisions in the collective bargaining

agreement, the Commission was required to rely on unwritten

terms implied by past practice. Pet. at 15. While past practice

may well guide an arbitrator in resolving disputes under a

collective bargaining agreement, cf United Steelworkers v.

Warrior & Gulf Nav. Co., 363 U.S. 574, 581-82 (1960) (practices

of the shop or industry properly looked to for that purpose), such

implied terms have no place in LMRA preemption analysis. The

union’s acceptance of terms limiting its members’ statutory right

to be free from discrimination would constitute a waiver of its

_ Members’ state-law rights. As this Court noted in Lingle, such a

waiver cannot be lightly inferred but, rather, requires “clear and

unmistakable” evidence. 486 U.S. at 410 n.9. In this case, even

if past practice were considered, it would yield no such

unequivocal result, given the conflicting testimony from the

employer’s own witnesses as to what its past practice was

concerning temporary reassignments. Compare J-7 (detailing

“evidence that numerous employees had been granted transfers or

reassigned to different departments for a variety of reasons”) and

J-9 (employer’s senior vice president “testified that [employer]

never provided light duty for workers who were injured on the

job”).

Although the hearing officer did consider evidence of the

employer’s past reassignment practices, she did so solely as a

means of determining whether it would have been “unreasonable

or would have imposed an undue burden upon the company” to

accommodate this employee’s disability by permitting her to do

light-duty work on a temporary basis, as would otherwise be

required by state law. Pet. App. J-11. The fact that the same

evidence might also be relevant in construing the provisions of a

collective bargaining agreement is beside the point. “[E]ven if

dispute resolution pursuant to a collective-bargaining agreement,

on the one hand, and a 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 interpreting the agreement itself,

the claim is ‘independent’ of the agreement for § 301 pre-emption

purposes.” Lingle, 486 U.S. at 409-10; Livadas, 512 U.S. at 123

(same).

Rather than require interpretation of the collective

bargaining agreement, so as to warrant preemption under the test

articulated by this Court, adjudication of the employee’s state-law

handicap discrimination claim turned exclusively on “purely

factual questions,” Lingle, 486 U.S. at 407, about the nature of

her disability, her qualification to perform the essential functions

of her job with a reasonable accommodation, and the feasibility

of providing such an accommodation, Pet. App. J-2—J-14, I-

2—I-4,-F-2—-F-12, B-11—B-18, the essential elements of a

handicap discrimination claim under Mass. G.L. c. 151B, § 4(16).

This is therefore not a case where the state-law claims and

the collective bargaining agreement are “inextricably

intertwined.” Allis-Chalmers, 471 U.S. at 213. Instead, the

employee’s claim here is premised solely on her independent

statutory right not to be discriminated against on the basis of a

disability and is therefore not preempted. Cf. id. at 212 (“{Ijt

would be inconsistent with congressional intent . . . to pre-empt

state rules that proscribe conduct, or establish nghts and

obligations, independent of a labor contract); Lingle, 486 U.S. at

412-13 (using state-law anti-discrimination claims as example of

independent state-law claims that are not preempted by section

301); Colorado Anti-Discrimination Comm'n v. Continental

Airlines, Inc., 372 U.S. 714, 724 (1963) (finding no preemption

of a state anti-discrimination statute by the federal Railway Labor

Act).

The Appeals Court’s ruling on the preemption issue is

consistent not only with the decisions of this Court on LMRA

preemption but also with those of federal courts of appeals and

state courts of last resort on that issue. Like the Massachusetts

Appeals Court, many federal and state appellate courts have

rejected arguments that state-law handicap discrimination claims

are preempted by the LMRA. See, e.g., Jimeno v. Mobil Oil Corp.,

66 F.3d 1514, 1524-28 (9th Cir. 1995); Martin Marietta v.

Maryland Comm'n on Human Relations, 38 F.3d 1392, 1399-

1402 (4th Cir. 1994); Smolarek v. Chrysler Corp., 879 F.2d 1326,

1332-35 (6th Cir.) (en banc), cert. denied, 493 U.S. 992 (1989);

Ackerman v. Western Elec. Co., 860 F.2d 1514, 1517 (9th Cir.

1988); Miller v. AT&T Network Systems, 850 F.2d 543, 545-50

(9th Cir. 1988); Bruce v. Northwest Metal Product Co., 79 Wash.

App. 505, 512, 903 P.2d 506, 511 (Wash. App. Div. 2 1995),

review denied, 129 Wash.2d 1014, 917 P.2d 575 (1996); see also

Evans v. Southern Pacific Transp. Co., 213 Cal. App.3d 1378,

1383-88, 262 Cal. Rptr. 416, 419-22 (Cal. Ct. App.), review

denied (1989), cert. denied, 496 U.S. 936 (1990) (no preemption

under the RLA); Quinn v. Southern Pacific Transp. Co., 76 Or.

App. 617, 623-24, 711 P.2d 139, 144 (Or. Ct. App. 1985), review

denied, 300 Or. 546, 715 P.2d 93 (1986) (same).

The few courts that have reached the opposite conclusion

have done so based on express links, absent here, between the

state-law claims and the applicable collective bargaining

agreements. For example, in Davis v. Johnson Controls, Inc., 21

F.3d 866 (8th Cir.), cert. denied, 513 U.S. 964 (1994), the court

found preemption based on the fact that, under state regulations,

one factor that must be considered in determining whether an

accommodation is reasonable under the state handicap

discrimination law is “the authority to make the accommodation

under the terms of any bona fide agreement.” Id. at 868. Cf

Mass. G.L. c. 151B, § 4(16); 804 C.M.R. § 3.01(5)(e) (containing

no such provision). See Martin Marietta, 38 F.3d at 1401

(distinguishing Davis on that ground); Jimeno, 66 F.3d at 1528

(same). Similarly, in O’Brien v. Consolidated Rail Corp., 972

F.2d 1 (1st Cir. 1992), cert. denied, 506 U.S. 1054 (1993)

(involving the RLA rather than the LMRA and decided before

Livadas and before this Court’s clarification of the RLA

preemption standard in Hawaiian Airlines, Inc. v. Norris, 512

U.S. 246 (1994)), the court found preemption based on the

collective bargaining agreement’s express provisions governing

the method by which an employee’s fitness to perform his job is

determined and describing the employer’s obligations to

accommodate disabled employees. O’Brien, 972 F.2d at 5. Cf

Pet. App. K, L (containing no such provisions). The O’Brien

court also relied heavily on the fact that the employee had filed a

grievance under those very provisions. /d.

B. Where, As Here, the Newly Enacted Fee

Statute Simply Authorized the Commission to

Provide the Same Relief that Would Have Been

Available If the Employee Had Chosen to File

Her Claim in Court, the Commission Properly

Applied that Statute to Award Fees in This

Proceeding, Which Was Commenced Prior to

the Effective Date of the Act.

The Appeals Court’s decision upholding the

Commission’s authority to award attorney’s fees to the employee

in this case is entirely consistent with this Court’s holdings on

retroactive application of statutes in general and of attorney’s fees

statutes in particular. As this Court clarified in Landgraf, the

generally applicable presumption against statutory retroactivity

applies only where the newly enacted statute “would have

genuinely ‘retroactive’ effect,” 511 U.S. at 277, in the sense that

it “attaches new legal consequences to events completed before

its enactment.” Jd. at 270. Where the new statute is not

retroactive in that sense, “[e]ven absent specific legislative

authorization, application of new statutes passed after the events

in suit is unquestionably proper in many situtations.” Jd. at 273.

Repeatedly, this Court has identified the application of

newly enacted attorneys’ fees statutes as among the situations in

which application of new statutes to pending cases is appropriate.

The first, and most general, reason that it is permissible to apply

newly enacted fee statutes to already pending cases—even after

those cases have been tried—is that “[a]ttorney’s fee

determinations . . . are ‘collateral to the main cause of action’ and

‘uniquely separable from the cause of action to be proved at

trial.”” Landgraf, 511 U.S at 277 (quoting Hutto v. Finney, 437

U.S. 678, 695 n.24 (1978) (upholding the application of the Civil

Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988, to pending

cases on that ground)). As explained by this Court, an attorney’s

fees remedy “does not compensate the plaintiff for the injury that

first brought him into court,” Hutto, 437 U.S. at 695 n.24, thereby

attaching new legal consequences to past conduct. “Instead, the

award reimburses him for a portion of the expenses he incurred

in seeking [judicial] relief.” Jd. In other words, a fee statute does

“no[t] . . . change the substantive obligation of the parties,”

Bradley v. School Bd. of Richmond, 416 U.S. 696, 721

(1974)—here, to provide reasonable accommodations to disabled

employees.

A second reason, stemming from the first, is that, because

a fee statute does not “make unlawful conduct that was lawful

when it occurred,” Landgraf, 511 U.S. at 281-82, a party who acts

unlawfully is already on notice that its conduct may subject it to

monetary or other liability. It is therefore unlikely that a party

will be able to show that “the obligation under [the new fee

statute], if known, . . . would have caused [it] to order its

[prelitigation] conduct so as to render . . . litigation unnecessary

and thereby preclude the incurring of such costs,” making

retroactive application of the statute inequitable. Bradley, 416

U.S. at 721; cf Landgraf, 511 U.S. at 282 (upholding, on this

ground, retroactive application of compensatory damages remedy

to conduct that was already prohibited by Title VII) .

In this case, the employer does not even claim that prior

knowledge of its fee obligation would have altered its underlying

discriminatory conduct, only its conduct in litigating this case.

Pet. at 21. As to that conduct, if the employer wanted to limit his

fee liability, it could have settled the case as soon as the fee

statute was enacted, thereby avoiding all but $490 of the fees

ultimately awarded. Pet. App. I-9 (indicating that only $490—

$612.50 minus a 20 percent reduction—of the total $24,368 fee

award was attributable to services performed prior to the

enactment of the fee statute in 1989). At most, this argument

would invalidate the application of the fee statute to the 3% hours

of services that were rendered before the statute’s enactment. Cf

Martin v. Hadix, 527 U.S. 343, 360-62 (1999) (invalidating

application of fee statute to services performed before the

statute’s effective date but finding “no retroactivity problem”

with applying the statute to services performed after the statute’s

effective date).

A third rationale recognized by this Court—and the one

expressly applied by the Massachusetts Supreme Judicial Court

in upholding the retroactive application of the fee statute at issue

here—is that, even before the Commission was authorized to

award fees, fees were available to successful discrimination

complainants who chose to litigate their claims in court rather

than in an administrative forum.* Brockton, 423 Mass. at 16, 666

“Under Mass. G.L. c. 151B, § 9, a person claiming to be

the victim of illegal discrimination may, 90 days after filing a

complaint with the Commission, file an action in court. “If the

(continued...)

N.E.2d at 475, cited in Pet. App. B-18. Under similar

circumstances—where fees were already available under a

different legal theory—this Court upheld the application of a new

fee statute to already pending actions, on the ground that the new

statute “merely serves to create an additional basis or source for

the (defendant]’s potential obligation to pay attorney’s fees. It

does not impose an additional or unforeseeable obligation upon

it.” Bradley, 416 U.S. at 721; cf. Hughes Aircraft Co. v. United

States ex rel. Schumer, 520 U.S. 939, 951 (1997) (upholding

retroactive application of a statute that “affect[s] only where a suit

may be brought, not whether it may be brought at all’’).

Ill. BECAUSE THE ATTORNEY’S FEES STATUTE AT ISSUE

HERE IS ALREADY MORE THAN TEN YEARS OLD, THE

QUESTION OF WHETHER IT SHOULD BE APPLIED TO

PRE-ENACTMENT CASES IS NOT AN IMPORTANT

QUESTION WORTHY OF CONSIDERATION BY THIS

Court.

A central consideration applied by this Court in

determining whether to grant a petition for a writ of certiorari is

whether the question presented is “important,” Sup. Ct. R. 10, not

merely to the parties involved but to the public at large. Rice v.

Sioux City Memorial Park Cemetery, 349 U.S. 70, 79 (1955).

The attorney’s fee question presented here cannot be deemed

important in either sense.

Even as to the parties themselves, the amount at issue,

which may be as little as $490, as discussed above, is certainly

‘(...continued)

court finds for the petitioner it shall, in addition to any other relief

and irrespective of the amount in controversy, award the

petitioner reasonable attorney’s fees and costs unless special

circumstances would render such an award unjust.” Jd.

not large enough to render the case “important” on that ground.

More to the point, the question presented—concerning the

application of this statute to cases filed before its enactment in

1990, now more than ten years ago—is unlikely to be of any

continuing significance to many, if any, other current litigants.

For that reason as well, the Petition, at least on the attorney’s fees

issue, should be denied.

Conclusion

For the above reasons, the petition for a writ of certiorari

should be denied.

Respectfully sumbitted,