On August 27, 1974, Lorraine Young, a black woman, filed a complaint with the Massachusetts Commission Against Discrimination (commission), alleging that, because of her race, she had not been hired as a nurse's aide by Buckley Nursing Home, Inc. (Buckley), in violation of G.L.c. 151B, § 4(1). After attempts at conciliation failed, the case was heard by a single Commissioner who, in a decision dated June 27, 1980, found that Buckley had discriminated against Young. The Commissioner ordered Buckley to pay Young damages in the amount of $6,986 (plus interest) for lost wages and $2,000 for emotional distress, and to develop a minority recruitment program. On November 12, 1982, the full commission made modifications to the single Commissioner's decision and affirmed his decision as modified. A judge of the Superior Court reviewed and upheld the commission's decision.
The facts, as found by the single Commissioner and modified by the full commission, may be summarized as follows. Buckley operates a nursing home in Holyoke. On February 27 and 28 and March 1, 1974, Buckley ran advertisements in a local
Another applicant, who had applied in response to an earlier advertisement, was hired for the advertised position on March 1, 1974, and started work on March 4, 1974. During the week of March 4, Young called the nursing home twice and asked to speak to the acting supervisor who had interviewed her. Although she could not identify the person with whom she spoke, she could told that the person who was leaving had asked to work for another week, so the position would not be filled until the following week. Young called the nursing home again the following week and was told that the position had been filled.
From April 12 through April 15, 1974, Buckley ran another advertisement for nurse's aides for the evening shift. Young called in response to that advertisement, spoke to the director of nurses, and was told that her application was on file and that she would be called as needed. No one from Buckley ever made contact with Young.
From March 1, 1974, through July 1, 1974, Buckley hired four full-time and one part-time nurse's aides for the evening shift. On the upper right hand corner of Young's application, there is a hand-written notation "no openings," even though during the relevant time periods there were openings and other persons were hired for the evening shift. That notation does not
The standard practice which Buckley followed in selecting nurse's aides was as follows. After an applicant was interviewed, her written application was placed in a stack on the desk of the nursing home's administrator. When an opening became available, the administrator looked through the applications and chose the applicant he considered best qualified in relation to the other applicants available at the time. Newspaper advertisements were run periodically to replenish the supply of available applicants.
That procedure was not followed with respect to Young's application. Despite testimony to the contrary, the commission found that there was discussion about Young's race and that Buckley decided not to hire her on that basis. To camouflage their position, nursing home personnel first told Young that the position would not be filled for a week, and then, when she persisted, decided to tell her that there were no openings and made that notation on the front of the application as a reminder. The commission thus concluded that Buckley's asserted reason for not hiring Young (that she was not the best qualified applicant for the job) was a pretext and that she would have been hired but for her race.
Buckley argues three principal issues: (1) that particular findings important to the commission's decision are not supported by substantial evidence and that the findings, considered as a whole, are inadequate to establish that Buckley's reason for not hiring Young was a pretext; (2) that the commission applied the wrong standard in determining that Buckley's hiring decision was discriminatory; and (3) that the damages awarded were beyond the scope of the commission's authority and were not warranted by the evidence.
1. Under the State Administrative Procedure Act, we must 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. G.L.c. 30A, § 14(7). Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130,
(a) The commission found, contrary to testimony by supervisory personnel at the nursing home and its administrator, that there was discussion in evaluating Young's application about her race and that the discussion influenced the hiring decision. Buckley attacks this finding as unsupported by the evidence.
There was testimony that Young was initially interviewed by the acting supervisor of nurses, who had no authority to make hiring decisions. The director of nursing testified that when the acting supervisor interviewed an applicant, the usual practice was for her (the director of nursing), the acting supervisor, and the nursing home's administrator to discuss the application when it was given to the administrator.
There was evidence tending to show that Young was treated differently from other applicants. When she made a telephone call to ascertain the status of her application, she was told that the job would not be filled for another week when, in fact, another applicant had already been hired and had started work. In response to later telephone calls, Young was told she would be called as needed. The notation "no openings" appeared mysteriously at the top of Young's application, even though all the nursing home personnel responsible for interviewing and hiring denied putting the notation there. That notation did not appear on any other application of the more than forty submitted in evidence. In addition, there was statistical evidence indicating that Buckley, during the relevant time period, had an extremely low percentage of minority employees.
(b) We also find support for the commission's finding, now challenged by Buckley, that, at the conclusion of Young's interview with the acting supervisor of nurses, Young was told that she would be called when and if there were any available positions. Young emphatically testified that the acting supervisor said she would call her. The acting supervisor testified that she had told Young that "she would hear from us if we were in need. She was qualified to do the job."
(c) Finally, on this aspect of the case, Buckley argues that the subsidiary facts found by the commission are legally insufficient to support its ultimate conclusion that the proffered reason for not hiring Young was a pretext for Buckley's discriminatory actions.
The applicable standards are discussed in the decision in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. at 139, and are set forth in the margin.
It is obvious that the single Commissioner disbelieved Buckley's explanation, finding, in substance, that Buckley's standard practice of hiring the applicant it considered best qualified, in relation to other available applicants, was not followed in Young's case because of her race.
2. Buckley argues that even if there is substantial evidence establishing that its decision not to hire Young was motivated by discrimination, that decision nevertheless should not be disturbed because Young was not the best qualified applicant for the job and would not have been hired even if she had not been the victim of discrimination. By its argument, Buckley seeks to bring into play the so-called dual motive standard. We agree that that standard is relevant to this case
Under the dual motive standard, once the employer has articulated a lawful reason for its hiring decision, the employee bears the burden of persuasion on two distinct points: (1) that the reason was not an actual, independent force in the decision, and (2) that the reason was not supported by the facts. Trustees of Forbes Library, supra at 566 n. 5, citing Smith College, supra at 231-232. We have already concluded in part 1 of this opinion that substantial evidence supports the commission's decision that Young's qualifications did not play a role in Buckley's hiring decision (and thus were not the real reason for the decision). The remaining question is whether Buckley's avowed reason has support in the facts.
The nursing home administrator who made the hiring decisions testified that both Barbara M. and Monica L. had relevant experience preferable to that of Young and were hired for that reason.
3. We reach Buckley's three arguments pertaining to the award of damages.
(a) General Laws c. 151B, § 5, as amended through St. 1976, c. 463, § 3, empowers the commission to "take such affirmative action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back
The Bournewood case, supra, has further indicated (at 317 n. 11) that the standards governing an award of damages for emotional distress in proceedings under G.L.c. 151B are not so stringent as those applicable to actions of tort for the intentional infliction of emotional distress. Indeed, in Bournewood, a retaliation case, it was stated (at 317) that "the finding of [discrimination] alone permit[s] the inference of emotional distress as a normal adjunct of the [employer's] actions." It necessarily follows that in c. 151B cases an award of emotional distress damages can be sustained even in the absence of physical injury or psychiatric consultation.
The commission found, based upon extensive testimony by Young, that while she was under severe emotional strain at the time of her application to Buckley because of a serious accident suffered by her daughter, she suffered emotional distress as the result of Buckley's discriminatory treatment. There
(b) We conclude that the commission acted properly in declining to offset Young's welfare benefits from the back pay award.
"As a general rule, a tortfeasor's liability to an injured person shall not be reduced by the amount of compensation received by the injured person pursuant to an insurance policy.... Commonly referred to as the `collateral source rule,' the doctrine requires that `the damages ... must be paid by one who has caused the insured's disability.' Shea v. Rettie, 287 Mass. 454, 458 (1934). It is based on the rationale that if there is to be a `windfall,' such benefit should accrue to the injured party rather than to the wrongdoer." Jones v. Wayland, 374 Mass. 249, 262 (1978).
Although most often applied to benefits paid by insurance, the collateral source rule applies to other kinds of payments or benefits conferred by a source other than the defendant, including welfare benefits. See Restatement (Second) of Torts § 920A comments b and c (1977). In Shea v. Rettie, supra at 458, the court applied the collateral source rule to disability income payments which the plaintiff, a police officer, was entitled to receive under his employment contract with the city. Because there was no common relationship between the city and the defendant who had caused the plaintiff's injury, the court refused to deduct the disability payments from the plaintiff's damages. Ibid. In Jones v. Wayland, supra at 262, the collateral source rule was held not to apply where the party found liable was not responsible for the injury, or where the party found liable has itself established a fund to be drawn on in the event of its liability to another person. In Jones, the town was permitted to deduct from payments made under G.L.c. 41, § 111F, to the plaintiff, a police officer who had been
We see no reason why the collateral source rule should not be applied in the circumstances of this case. Buckley has an "obligation ... to make good for all the damage [it] has caused." Politano v. Selectmen of Nahant, 12 Mass. App. Ct. at 746. Although the failure to deduct benefits may allow Young a double recovery (back pay and welfare),
Buckley argues that no back pay should have been awarded, asserting that Young's own testimony establishes that she did not diligently seek alternative employment. If it fails in this argument, Buckley contends that the award should have ended on June 25, 1975, the date the first advertisement appeared for a comparable position in the Holyoke area.
The major flaw in Buckley's arguments arises from its misconception of where the burden of proof lies in a case of this kind on the issue of mitigation. The burden of proof on mitigation is on the employer. Ryan v. Superintendent of Schs. of Quincy, 374 Mass. 670, 673 (1978). "A former employer meets its burden of proof of `mitigation of damages' if the former employer proves that (a) one or more discoverable 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 (c) it was reasonably likely that the former employee would obtain one of those comparable jobs." Black v. School Comm. of Malden, 369 Mass. 657, 661-662 (1976).
The commission properly applied this standard in setting the back pay award. The commission first determined that the appropriate geographical area in which Young was required to
On the issue of comparable positions, Buckley introduced newspaper advertisements covering the period from April 2, 1975, through the end of December, 1979.
Keeping in mind that "[t]o require that the former employer prove conclusively that the former employee would have obtained employment in a comparable job would impose an impossible burden on a former employer," Black v. School Comm. of Malden, 369 Mass. at 662, the commission determined that
In a discriminatory treatment case, statistical evidence may be probative on the question of motive to show the presence or absence of discrimination. See Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 228 n. 9 (1978). Unlike disparate impact cases, there is no need for formal labor market statistics. In Springfield Bd. of Police Commrs. v. Massachusetts Commn. Against Discrimination, 375 Mass. 782 (1978), evidence that two black officers on a large municipal police force had been promoted was deemed relevant to the issue of the employer's lack of discriminatory intent in not promoting the plaintiff. Similarly here, the fact that Buckley had no minority employees on its work force at the time when Young applied for the job is relevant to the issue of Buckley's motivation. The labor market statistics which the commission judicially noticed, even if technically objectionable, were not essential to establish the probative value of Buckley's own employment statistics.
We reject Buckley's argument that the single Commissioner erred in disregarding testimony that Buckley offered a position to Young's daughter in 1978 and was prepared to offer a job to Young in 1979, until a reference check proved negative. Although proof of nondiscriminatory treatment is generally admissible to establish lack of discriminatory intent, see Springfield Bd. of Police Commrs. v. Massachusetts Commn. Against Discrimination, 375 Mass. 782 (1978), the single Commissioner could properly have disregarded the 1978 and 1979 events as too remote from the question whether Buckley discriminated against Young in 1974.
We also reject Buckley's argument which seeks to exclude a three-month period from the back pay award because of a medical problem suffered by Young. The evidence concerning that problem was inconclusive and contradictory and was apparently ignored (with justification) by the commission.
Finally, we reject Buckley's contention that the award should have been cut off on June 25, 1975, the date the first advertisement for a comparable position appeared in a newspaper. Buckley offered nothing to show that Young could reasonably have obtained that particular position if she had applied for it.