NORTHEAST METROPOLITAN REGIONAL VOCATIONAL SCHOOL DISTRICT SCHOOL COMMITTEE vs. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION.

FINE, J. This is an appeal from a Superior Court judge's denial of a motion under Mass.R.Civ.P. 60(b)(6), 365 Mass. 829 (1974), for relief from a judgment affirming the Massachusetts Commission Against Discrimination's (commission's) decision against Northeast Metropolitan Regional Vocational School District School Committee (Northeast) in a

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sex discrimination case. [Note 1] The rule 60(b) motion was brought by Northeast to enable the judge to hear and decide a previously filed motion under G. L. c. 30A, Section 14(6), for leave to present additional evidence to the commission. Relying on J.C. Hillary's v. Massachusetts Commn. Against Discrimination, 27 Mass. App. Ct. 204 (1989), the judge ruled that he had no authority to allow the motion under G. L. c. 30A, Section 14(6). We do not agree.

We set forth the procedural background. Charlotte Scott filed a complaint with the commission alleging that Northeast had engaged in sex discrimination when it hired another candidate in 1980 to serve as superintendent. An evidentiary hearing was held before a hearing commissioner on October 17, 1985. To prove her damages, Scott presented evidence of her starting salary as superintendent of the Montachusett Regional Vocational Technical School for the 1980-1981 school year and the salary paid to Northeast's new superintendent from the time he was hired until the date of the hearing. The hearing commissioner's decision in Scott's favor was issued on April 24, 1987. Damages were awarded in the amount of $48,507.

An appeal was taken by Northeast to the full commission. Northeast moved for leave to present evidence to the full commission of Scott's actual salary at Montachusett until her retirement in November, 1986. Northeast contended, and it has not been disputed, that Scott's earnings at Montachusett were greater than the salary paid to Northeast's superintendent for the same period. The commission refused to receive the evidence because it had not been presented to the hearing commissioner and, in its view, good cause for that omission had not been shown. The full commission affirmed the hearing commissioner's decision as to both liability and damages.

In September of 1988, Northeast sought judicial review in the Superior Court pursuant to G. L. c. 30A, Section 14(7), and,

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by motion under G. L. c. 30A, Section 14(6), [Note 2] leave to present to the commission the additional evidence relating to Scott's interim salary. Without acting explicitly on Northeast's motion, the judge ordered that: "(1) the [Commission's] decision, adverse to [Northeast] is vacated; (2) this matter is remanded to the Commission for further proceedings as to whether the reasons of the plaintiff (respondent there) were [pretexts]; (3) on remand the Commission shall admit evidence as to the complainant's actual salary during her tenure at Montachusett[ ] Regional Vocational Technical School and recalculate its award of damages, if it then makes an award, in accordance with such evidence; and (4) jurisdiction will be retained here in order to facilitate further proceedings, should that prove necessary."

The commission filed a notice of appeal. Northeast moved in the Superior Court to correct the record on appeal with respect to its motion under G. L. c. 30A, Section 14(6), for leave to present the additional evidence to the commission. Contending that the motion had been allowed in substance, Northeast requested that the record reflect that the motion had been allowed. The judge denied the motion to correct the record, stating that the motion under G. L. c. 30A, Section 14(6), had not been acted upon and, should the appellate court agree with the commission, "the matter is likely to be moot or illuminated for further treatment then."

In its appellate brief, Northeast referred to the undisputed fact that Scott had actually earned more than the successful

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candidate during the relevant period and that "the Commission acted arbitrarily and capriciously in refusing to accept uncontradicted evidence of official records of Scott's and [the successful candidate's] actual salary histories." In this court's decision, Northeast Metropolitan Regional Vocational Sch. Dist. Sch. Comm. v. Massachusetts Commn. Against Discrimination, 31 Mass. App. Ct. 84 (1991), we affirmed the decision of the commission as to liability. As to damages, we had this to say:

"We also conclude that the commission's award of damages was based on substantial evidence. The judge in the Superior Court determined that the complainant had failed to prove her damages because she did not prove what her salary would have been if appointed superintendent by the committee and what her salary was in her new job as superintendent of the Montachusett school after her first year of employment. The burden rested with the committee, rather than the complainant, to prove the complainant's interim earnings at the Montachusett school in mitigation of damages. J.C. Hillary's v. Massachusetts Commn. Against Discrimination, 27 Mass. App. Ct. 204, 206, 209-210 (1989). In addition, there was evidence of the new superintendent's salary at the Northeast school from September, 1980, until the hearing date; the complainant's salary at Northeast in September, 1980; the complainant's initial salary at Montachusett in 1981; and the complainant's qualifications. This evidence was adequate to justify the commission's award of back damages of $48,507."

Id. at 90. There was no mention in the opinion of either Northeast's motion under G. L. c. 30A, Section 14(6), or Northeast's claim that the commission had acted arbitrarily in refusing to consider the additional evidence.

On October 22, 1991, Northeast filed the instant motion under Mass.R.Civ.P. 60(b)(6) to enable the Superior Court judge to rule on Northeast's previously filed motion under G. L. c. 30A, Section 14(6). In his memorandum and order, the judge stated that, in his view, he was required by J.C. Hillary's v. Massachusetts Commn. Against Discrimination, supra, to deny the motion.

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Ordinarily, G. L. c. 30A, Section 14(6), would authorize a Superior Court judge, in his discretion, to order an agency to reopen an administrative proceeding for consideration of additional evidence so long as that evidence "is material to the issues in the case, and . . . there was good reason for failure to present it in the proceeding before the agency." See note 2, supra. Compare Fanion v. Director of the Div. of Employment Sec., 391 Mass. 848, 851-852 (1984); Benmosche v. Board of Registration in Med., 412 Mass. 82, 88 (1992). Moreover, consistent with the structure of the statute, a Superior Court judge's authority under Section 14(6), to reopen an administrative proceeding, would be independent of his authority under G. L. c. 30A, Section 14(7), to set aside an agency decision. The question before us is whether the judge in this case was precluded by this court's decision in J.C. Hillary's v. Massachusetts Commn. Against Discrimination, supra, from exercising his discretion under G. L. c. 30A, Section 14(6).

In J.C. Hillary's, a sex discrimination claim was made and, after hearing, the commission found liability and damages. Upon judicial review under G. L. c. 30A, Section 14(7), a judge determined that the commission's decision was correct and that the commission did not abuse its discretion in refusing to reopen the hearings to receive additional evidence of damages. However, noting that J.C. Hillary's counsel's failure to introduce evidence of the complainant's actual interim earnings was due to inexperience and that recovery of the damages awarded would amount to a windfall, the judge remanded the case to the commission for the sole purpose of taking additional evidence of the complainant's interim earnings. The only issue on appeal from that decision was whether J.C. Hillary's should have been given a second opportunity, to avoid a miscarriage of justice, to present evidence of mitigation of damages. The commission's rules of procedure authorized it to order that additional evidence be

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taken based upon the same criteria of materiality and good cause found in G. L. c. 30A, Section 14(6). Because the judge had concluded that the commission did not abuse its discretion in refusing to reopen the hearings to receive the evidence, this court held that G. L. c. 30A, Section 14(7) did not vest in him "a roving commission to undo that with which he disagree[d]." J.C. Hillary's v. Massachusetts Commn. Against Discrimination, 27 Mass. App. Ct. at 207. The only mention of G. L. c. 30A, Section 14(6), in that opinion is a reference to the fact that a motion under that section had been denied before trial by a judge who was not the trial judge, that the statutory standards for granting such a motion are the same as those contained in the commission's regulations, and that the motion was not included in the record on appeal. Id. at 208 n.7.

The instant case was presented to the Superior Court judge in essentially the same posture as the J.C. Hillary's case, and it involved the same agency, with the same procedural rules, and essentially the same issue relating to interim earnings not presented at the original hearing. The commission would read J.C. Hillary's broadly so as to deprive a Superior Court judge, in such circumstances, of any discretion to act under G. L. c. 30A, Section 14(6). It is not impossible to construe the J.C. Hillary's decision in that fashion. Thus, it could be argued that we would simply have approved the Superior Court judge's exercise of discretion under Section 14(6) if, in the particular circumstances, he had authority to act under that section. We read the opinion in that case more narrowly, however, in light of the specific language used. The J.C. Hillary's decision was explicitly based on the review, under G. L. c. 30A, Section 14(7), of an agency's decision refusing to receive additional evidence, and not on the court's independent authority under G. L. c. 30A, Section 14(6), to order the agency to reopen its proceedings to take additional evidence. Thus, in the particular situation facing the trial judge in J.C. Hillary's and in the situation in this case as well, the judge retained authority to exercise his discretion under G. L. c. 30A, Section 14(6).

To justify the exercise of such authority, particularly at this late stage in the proceedings, a substantial showing must be made. Compare Fanion v. Director of the Div. of Employment Sec., 391 Mass. at 851 (claimant's request under G. L. c. 30A, Section 14[6], "amounts to no more than a request

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to retry her claim on a different theory and with counsel") Benmosche v. Board of Registration in Med., 412 Mass. at 88. Denial of the motion under G. L. c. 30A, Section 14(6), in this case would not be an abuse of discretion. On the other hand, there is an interest on the part of the public in preserving funds earmarked for education, and that interest would be affected adversely by requiring substantial compensation out of those funds to a discrimination victim who suffered no actual loss. On the record before us we cannot say that allowance of the motion would be an abuse of discretion.

Accordingly, we vacate the denial of Northeast's motion for relief from judgment and remand the matter to the Superior Court for further proceedings on the motion under G. L. c. 30A, Section 14(6).

So ordered.