WILLIAM DEROCHE vs. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another. [Note 1]

GREANEY, J. This appeal arises out of a decision by the Massachusetts Commission Against Discrimination (commission) that the Wakefield Municipal Gas & Light Department (department) unlawfully retaliated against the plaintiff for filing a complaint with the commission claiming that the department had discriminated against him on the basis of his age in violation of G. L. c. 151B, § 4 (4). The commission ordered the department to pay the plaintiff damages in the amount of $260,000, including $50,000 to compensate him for emotional distress, but failed to provide for interest on the damages. The plaintiff and the department both sought judicial review of the commission's decision pursuant to G. L. c. 151B, § 6. After a hearing in accordance with standards set forth in G. L. c. 30A, § 14, a judge in the Superior Court entered a judgment affirming the commission's determination that the department had committed retaliatory employment action and the commission's award of damages, and, in addition, declaring that interest be assessed on the damages. A second judge in the Superior Court denied the plaintiff's motion for reasonable attorney's fees and costs for services performed during the G. L. c. 30A proceedings in the Superior Court.

Both parties have appealed. The department does not contest its liability under G. L. c. 151B, but claims that the judge lacked authority to assess interest on the damages awarded the plaintiff and, further, that the award of $50,000 in damages for emotional distress is unsupported by the plaintiff's evidence. The plaintiff, in turn, asserts his entitlement to reasonable attorney's fees and costs incurred in connection with successfully defending the commission's decision before the Superior Court. We allowed the plaintiff's application for direct appellate review and, for reasons set forth in this opinion, conclude that the plaintiff is entitled to (1) no damages for emotional distress for the department's retaliatory conduct; (2) prejudgment interest, at the rate of twelve per cent per annum, assessed on the damages for back pay, calculated from May 6, 1996, the date of the retaliatory conduct, until June 1, 2005, the date judgment entered in his favor; and (3) reasonable attorney's fees and costs incurred during the appeal to the Superior Court of the commission's award in connection with those issues on which

Page 4

he ultimately prevailed. We remand the case to the Superior Court for modification of the judgment in accordance with this opinion.

The background of the case may be summarized as follows. The department is a municipal electric department established by the voters of the town of Wakefield (town), pursuant to G. L. c. 164, § 34, to operate the light plant owned by the town. The plaintiff was employed at the department from 1950 until 1993, when he retired (believing that his retirement was mandatory) at age sixty-five. The town retirement board processed the plaintiff's application for retirement without informing him that, due to a change in the public employee retirement statute, G. L. c. 32, he was not required to retire until he was seventy years of age. Approximately two years later, a manager at the department notified the plaintiff of the change in G. L. c. 32. The plaintiff responded to this unexpected news, first, by requesting a financial settlement to compensate for his premature retirement and, later, by requesting from the department reinstatement to his former position and reimbursement of lost wages and overtime pay. The plaintiff sought answers from the department and the retirement board as to how such a mistake could happen, but his attempts to pinpoint responsibility in the matter proved fruitless.

On February 15, 1996, the plaintiff filed a complaint with the commission alleging that the town retirement board and the department had "forced" his retirement, thereby unlawfully discriminating against him on account of his age, in violation of G. L. c. 151B. [Note 2] In response to the plaintiff's complaint, the department offered to reinstate the plaintiff to his former position. The plaintiff returned to work in May, 1996, but resigned, after only one day, on learning that he had been assigned to the position of lead lineworker in a line crew, which was a more dangerous and physically demanding position than the one he left in 1993, which was lead lineworker in a home

Page 5

service crew. The plaintiff then amended his complaint with the commission to add a claim of retaliation.

After a hearing, a commission hearing officer determined that the department's failure to inform the defendant that he was not required to retire at age sixty-five did not constitute discrimination under G. L. c. 151B, but that the department's conduct in assigning the plaintiff to the line crew rather than the home service crew upon his May, 1996, return to employment was adverse action in retaliation for the plaintiff's having filed a complaint with the commission. The hearing officer ordered the department to pay the plaintiff compensatory damages in the sum of $260,000, representing $210,000 in damages for back and front pay and $50,000 in damages for emotional distress. Under the authority of a decision of the Appeals Court, see Boston v. Massachusetts Comm'n Against Discrimination, 39 Mass. App. Ct. 234 (1995), the hearing officer denied the plaintiff's request to assess interest against the department. [Note 3] On appeal to the full commission, brought by both the department and the plaintiff, the hearing officer's decision was affirmed in all respects. [Note 4]

Both the department and the plaintiff sought judicial review of the commission decision, and the cases were consolidated in the Superior Court. The department challenged the commission's finding of retaliation and its award of emotional distress damages. The plaintiff appealed from that part of the order which denied the assessment of interest on the award. Prior to the hearing before the judge in the Superior Court, the commission, which had taken the position that the department's status as a public entity rendered it exempt from paying interest on damages awarded under G. L. c. 151B, joined the plaintiff's efforts to reverse its own decision on that point.

Page 6

Considering the parties' motions for judgment on the pleadings, a judge in the Superior Court affirmed the commission's decision that the department had retaliated against the plaintiff and its award of damages. The judge, however, reversed the commission's decision with respect to the imposition of interest, based on her determination that the department is not a public entity and, therefore, not protected by principles of sovereign immunity. Accordingly, the judge denied the department's motion for judgment on the pleadings and allowed the plaintiff's motion for judgment on the pleadings with respect to the assessment of interest on the damages award of front and back pay. The department's motion for reconsideration of the judge's order was denied, and the department thereafter filed an appeal from the judge's orders. [Note 5] The judge subsequently issued a "corrected judgment on finding of the court" clarifying that the department is to pay the plaintiff the sum of $308,890.40 (the total sum awarded by the commission, representing $210,000 in front and back pay damages, $50,000 in emotional distress damages, and $48,890.40 for reasonable attorney's fees and costs, see note 4, supra), with interest in the amount of $290,119.80 (reflecting a rate of twelve per cent assessed on the total amount of damages from February 15, 1996, to June 1, 2005), and ordering postjudgment interest to accrue from and after June 1, 2005 (the date the original judgment entered). [Note 6]

The plaintiff filed a motion for attorney's fees and costs incurred in connection with the G. L. c. 30A review of the commission's decision. This motion was considered by a second judge in the Superior Court who, after a hearing, concluded that there is no statutory authority for the award of the requested fees. The plaintiff appealed from the denial of his request for

Page 7

reasonable attorney's fees and costs, and as has been mentioned, we granted the plaintiff's application for direct appellate review.

1. We first address the commission's award of $50,000 in emotional distress damages. In Stonehill College v. Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 575-577 (2004), we clarified the standards governing an award by the commission for damages to compensate a plaintiff for emotional distress caused by an employer's discriminatory conduct and enumerated factors a reviewing judge should consider in determining whether such an award may stand. A critical point expressed in our Stonehill decision was that a finding by the commission of discrimination, or retaliation, is insufficient by itself, as matter of law, to permit an inference of emotional harm. See id. at 576, citing Equal Employment Opportunity Commission: Policy Guide on Compensatory and Punitive Damages under 1991 Civil Rights Act (July 7, 1992), reprinted in Fair Empl. Prac. Man. (BNA) 405:7091-405:7102. We emphasized that emotional distress, to be compensable, must be proved by substantial evidence of the emotional suffering that occurred, as well as substantial evidence of a causal connection between the complainant's emotional distress and the respondent's unlawful act. See id. at 576-577. Factors to be considered include "(1) the nature and character of the alleged harm; (2) the severity of the harm; (3) the length of time the complainant has suffered and reasonably expects to suffer; and (4) whether the complainant has attempted to mitigate the harm (e.g., by counseling or by taking medication)." Id. at 576. The factual basis for emotional distress damages awarded by the commission must be clear on the record, and a reviewing judge must set aside (or remit to an appropriate amount) awards that are not supported by substantial evidence. See id. at 576- 577; G. L. c. 30A, § 14. An emotional distress damage award may not be imposed as a substitute for punitive damages (which the commission is not authorized, under G. L. c. 151B, § 5, to award). See id. at 575-576.

The hearing officer found that the plaintiff, his wife, and his daughter presented "sincere, credible, and compelling" testimony about the emotional impact on the plaintiff resulting from his original retirement in September, 1993. The plaintiff

Page 8

described his work at the department as "his whole life." His wife testified that the plaintiff "dreaded" the approach of his sixty-fifth birthday and was "shattered" that he had to give up his job after forty-three years when he did not feel physically or mentally ready to retire. The plaintiff's daughter used the words "despondent," "devastated," and "very depressed" to describe the plaintiff in the days leading up to his retirement. She stated that her father, on learning of the mistake that had occurred with respect to his mandatory retirement age, was "brokenhearted" and "couldn't understand and still can't understand how (a) something like this could happen and (b) no one could give him an explanation." According to his wife, the plaintiff felt "devastated" and "angry" at the manner in which the department and the retirement board "shuffled him back and forth" and described the plaintiff's outrage that he was not treated with dignity or respect after forty-three years of service to the department. The plaintiff testified that his attempts to assign responsibility, and obtain redress, for the mistake, made him feel like a "yo-yo going back and forth." When asked specifically how he felt on being assigned to the line crew, the plaintiff responded, "I just couldn't understand the line of reasoning." The department argues that this evidence does not support the commission's award of $50,000 in damages for emotional distress. We agree.

The award appears to be a classic example of what the principles set forth in our Stonehill decision were intended to discourage. The evidence presented at the hearing with respect to the plaintiff's distressed emotional state relates either to emotions experienced by the plaintiff in the months and weeks leading up to his impending retirement in 1993, or to the plaintiff's reaction after being informed of the mistake, in the fall of 1995, and lacks any causal connection with the finding of retaliation against the department. [Note 7] According to the plaintiff's testimony, his over-all health had been exemplary since 1996. The plaintiff stated that he never had to seek medical help, or take medication,

Page 9

for symptoms related to emotional distress. There was no testimony that the plaintiff experienced physical manifestations of distress, such as loss of appetite or difficulty in sleeping, or that the plaintiff was compelled to curtail his life activities in any way due to stress from the department's retaliatory action. The only evidence offered by the plaintiff on his mental state after his assignment to the line crew in May, 1996, was his testimony that he "couldn't understand" the reasoning that led to the assignment. This testimony falls far below the factual basis for an emotional distress award deemed sufficient in our Stonehill decision and cannot constitute substantial evidence to support the commission's determination that such an award was warranted. [Note 8] The commission's award of emotional distress damages, therefore, cannot stand. [Note 9]

2. We next address the department's challenge to the imposition of interest on the damages awarded the plaintiff. In Boston v. Massachusetts Comm'n Against Discrimination, 39 Mass. App. Ct. 234, 245-246 (1995), the Appeals Court recognized that G. L. c. 151B is silent on the subject of interest on awards against the Commonwealth or its instrumentalities. Relying on decisions of this court addressing the issue of interest under the Massachusetts Tort Claims Act, G. L. c. 258, see Onofrio v. Department of Mental Health, 411 Mass. 657, 659 (1992), and under the statute providing compensation to victims of violent crimes, G. L. c. 258A, see Gurley v. Commonwealth, 363 Mass. 595, 600 (1973), the Appeals Court held that interest could not permissibly be imposed on an award under G. L. c. 151B against a public entity. See Boston v. Massachusetts Comm'n Against

Page 10

Discrimination, supra. In a later case, Salem v. Massachusetts Comm'n Against Discrimination, 44 Mass. App. Ct. 627 (1998), the Appeals Court reiterated the rule, explaining that the rule "presents an application of the doctrine of sovereign immunity." Id. at 646. On appeal, the commission and the plaintiff take the position that the Boston decision, supra, was wrongly decided and that G. L. c. 151B, § 5, creates a waiver of sovereign immunity with respect to interest. The department, on the other hand, argues that (a) it is a public entity, and (b) therefore, not subject to the assessment of interest under G. L. c. 151B; but (c) to the extent that interest may be assessed, it should not be computed at twelve per cent per annum, but at the floating interest rate set forth in G. L. c. 231, § 6I, and (d) should be calculated only on that portion of the damage award representing back pay and (e) from the date of the retaliatory action and not from the date that the plaintiff filed his original complaint with the commission. [Note 10]

(a) We agree with the department that it is a public entity. The citizens of the town voted to create the department, G. L. c. 164, § 55, and the department's board of commissioners (board) is comprised of members elected by those same citizens. Id. It is the town that owns the light plant that the department operates. G. L. c. 164, § 34. The manager of the department, who has "full charge of the operation and management of the plant," is appointed by the board. G. L. c. 164, § 56.

The Legislature has specifically placed the department in the class of entities subject to the Tort Claims Act, thereby reflecting its view that the department is in that class of entities afforded the protections of sovereign immunity. See G. L. c. 258, § 1 ("[p]ublic employer" means "any . . . town . . . and any department . . . thereof . . . including a municipal gas or electric plant"). The department is subject to the requirements of G. L. c. 39, § 23B (open meeting law), and G. L. c. 66, § 10 (public records statute), which apply only to public entities. See G. L. c. 39, § 23A. See also G. L. c. 4, § 7, Twenty-sixth.

The plaintiff directs attention to Middleborough v. Middleborough

Page 11

Gas & Elec. Dept., 422 Mass. 583 (1996), and asserts that our decision in that case compels the conclusion that the department is an institution financially and politically distinct from the town. We do not agree. The question presented in the Middleborough case was whether a town and its electric department are sufficiently independent from each other to allow a suit by the town against its electric department for losses caused by a fire. See id. at 585. We answered that question in the affirmative. See id. at 588. Our conclusion today that the department is, nonetheless, a public entity in no way undermines what was said in the Middleborough decision. The department's independence from the town includes the power to contract on behalf of itself, to enter into collective bargaining agreements, and to make its own employment decisions. It is a self-funded, profit-making entity that sets its own budget and pays its own expenses from the revenues it generates and, unlike other town departments, does not depend on appropriations from the town. Although its employees are paid through the town treasurer's office by town-issued paychecks, the department maintains a separate account with the town treasurer. The statutory framework permits the department a significant degree of autonomy from the town. However, as a legal and practical matter, the department is a department of the town and, like the town, is a public entity.

(b) The department's status as a public entity does not, however, necessarily entitle it to immunity from the imposition of interest on damages assessed against it under G. L. c. 151B. The Appeals Court recently reconsidered that question, in light of our decision in Bain v. Springfield, 424 Mass. 758 (1997), clarifying the principle of sovereign immunity and stating that "immunity is still in effect unless consent to suit has been 'expressed by the terms of the terms of a statute, or appears by necessary implication from them,' " id. at 763, quoting C & M Constr. Co. v. Commonwealth, 396 Mass. 390, 392 (1985), and held that prejudgment interest may properly be awarded by the commission against the Commonwealth under G. L. c. 151B. See Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Comm'n Against Discrimination, 65 Mass. App. Ct. 329,

Page 12

336-338 (2005). [Note 11] The question is an important one, and we consider it today for the first time. [Note 12]

The general rule of law with respect to sovereign immunity is that the Commonwealth or any of its instrumentalities "cannot be impleaded in its own courts except with its consent, and, when that consent is granted, it can be impleaded only in the manner and to the extent expressed . . . [by] statute." General Elec. Co. v. Commonwealth, 329 Mass. 661, 664 (1953), quoting Glickman v. Commonwealth, 244 Mass. 148, 149-150 (1923). The Legislature has expressly waived sovereign immunity of the Commonwealth "and all political subdivisions . . . thereof" by including them in the statutory definition of persons and employers subject to the statute. See G. L. c. 151B, § 1 (1) and (5). There is no express authorization under the statute, however, for imposition of interest on a damage award against a public employer. See G. L. c. 151B, §§ 5, 6. Nor does G. L. c. 258 (the primary statutory basis for the waiver of sovereign immunity) contain any provision permitting the recovery of prejudgment or postjudgment interest against the Commonwealth. We have repeatedly stated that the "rules of construction governing statutory waivers of sovereign immunity are stringent." C & M Constr. Co. v. Commonwealth, 396 Mass. 390, 392 (1985), quoting Woodbridge v. Worcester State Hosp., 384 Mass. 38, 42 (1981). See Broadhurst v. Director of the Div. of Employment Sec., 373 Mass. 720, 722-723 (1977). Absent statutory language that indicates by express terms a waiver of sovereign immunity, the Legislature's intent to subject the Commonwealth

Page 13

to liability may be found only when such an intent is clear "by necessary implication" from the statute's terms. See Woodbridge v. Worcester State Hosp., supra.

The fact that the Legislature did not specifically authorize interest on G. L. c. 151B damage awards against the Commonwealth, therefore, does not preclude the imposition of interest on the damages awarded the plaintiff based on the necessary implication of the statute's terms. We reasoned in Bain v. Springfield, supra, that although the statute does not definitively provide for an award of punitive damages against the Commonwealth or its subdivisions, the express provision for the imposition of actual and punitive damages against "persons" and "employers" subject to the statute, § 9, logically read in conjunction with § 1 (1) and (5), lead to the inevitable conclusion that the Legislature must have chosen to subject public employers to punitive, as well as actual, damages. We apply the same reasoning to this case.

General Laws c. 151B, § 5, empowers the commission to "take such affirmative action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay . . . as, in the judgment of the commission, will effectuate the purposes of this chapter." This language "represents a significant delegation of discretion and authority by the Legislature to the administrative agency established to enforce the Commonwealth's anti-discrimination laws." Bournewood Hosp., Inc. v. Massachusetts Comm'n Against Discrimination, 371 Mass. 303, 316 (1976). We have interpreted this language to permit the commission to award prejudgment interest (against private employers) in conformity with G. L. c. 231, § 6B, [Note 13] on a back pay award from the commencement of the proceedings, on the basis that such an award furthers the goal of remedying the wrongs of discrimination and making complainants whole for their injuries. See New York & Mass. Motor

Page 14

Serv., Inc. v. Massachusetts Comm'n Against Discrimination, 401 Mass. 566, 583 (1988); College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 170 (1987). See also Loeffler v. Frank, 486 U.S. 549, 557-558 (1988) (prejudgment interest traditionally considered part of back pay remedy because necessary to make victim whole); Stonehill College v. Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 570-575 (2004) (reaffirming commission's broad authority to award "make whole" relief). Because G. L. c. 151B, § 5, authorizes the remedy of prejudgment interest, and public employers are, by virtue of § 1 (1) and (5), subject to the mandates of the statute, we are satisfied that the Legislature has expressed its intention, manifest through a natural and ordinary reading of the statute, that sovereign immunity with respect to the imposition of interest on a G. L. c. 151B damage award has been waived. See Trustees of Health & Hosps. of Boston v. Massachusetts Comm'n Against Discrimination, supra at 338- 339. This conclusion is in accordance with the broad authority granted the commission by the Legislature to order a full range of remedies that will further the purpose of eradicating the evil of discrimination, authority which provides overarching guidance for this court in virtually all of our decisions involving discrimination cases, most recently in Gasior v. Massachusetts Gen. Hosp., 446 Mass. 645, 653-656 (2006). [Note 14]

(c) This court long ago approved the commission's assessment of interest on back pay awards in conformity with the

Page 15

statutory rate of twelve per cent provided for in G. L. c. 231, § 6B. See New York & Mass. Motor Serv., Inc. v. Massachusetts Comm'n Against Discrimination, supra at 583-584; College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, supra at 169-170. Our approval was based, primarily, on the Legislature's grant of broad discretionary authority to the commission to fashion remedies for victims of discrimination. See College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, supra. See also Conway v. Electro Switch Corp., 402 Mass. 385, 390-391 & n.7 (1988) (observing that commission's twelve per cent interest award was appropriate exercise of agency discretion). Modification of the commission's award to impose the twelve per cent rate was well within the authority of the judge, pursuant to G. L. c. 30A, § 14, where the commission had denied interest based on an error of law. [Note 15]

(d) We also have spoken clearly on the issue of the interest on front pay awards in discrimination cases. In Conway v. Electro Switch Corp., supra at 390, we stated that there was "no justification for adding interest to damages which, by definition, are for losses to be incurred in the future." We decline to revisit this issue. While the plaintiff is entitled to prejudgment interest on the back pay damage award, he is not entitled to prejudgment interest on the front pay award. [Note 16]

(e) The commission awarded the plaintiff back pay damages

Page 16

from May 6, 1996, the date the department assigned him to the line crew. The judge ordered that interest be assessed on this award from February 15, 1996, the date the plaintiff filed his original complaint of discrimination with the commission. The department contends that there is no justification for calculating interest from a date that precedes the unlawful retaliatory act. We agree. The commission has broad authority and discretion to fashion appropriate remedies to make victims whole for their damages, including the imposition of interest to "compensate a damaged person for the loss of use or the unlawful detention of money." Conway v. Electro Switch Corp., supra at 390. As has been stated, the judge also had broad authority, pursuant to G. L. c. 30A, § 14, to modify the commission's award to include interest assessed against the department. The statute to which the commission has looked for guidance in determining the appropriate rate of interest provides for prejudgment interest to be calculated "from the date of commencement of the action." G. L. c. 231, § 6B. We have, accordingly, upheld awards by the commission of interest on back pay damages calculated from the date of the filing of the original complaint with the commission, even where much of the back pay had not accrued until after that initial date. See New York & Mass. Motor Serv., Inc. v. Massachusetts Comm'n Against Discrimination, supra at 583; College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, supra at 169-170, citing Gill v. North Shore Radiological Assocs., 385 Mass. 180, 182-183 (1982) (G. L. c. 231, § 6B, to be "taken literally"). In this case, however, we see no justification for calculating interest on an award of back pay over a period of time that predates entirely that period of time for which the back pay was awarded. See Conway v. Electro Switch Corp., supra at 390. We conclude, therefore, that the assessment of interest on the award of back pay should commence on the date the back pay began to accrue, May 6, 1996.

3. We turn to the issue of the plaintiff's entitlement to reasonable

Page 17

attorney's fees and costs incurred in pursuing an administrative appeal, and in defending against the department's administrative appeal, of the commission's final decision to the Superior Court. Neither § 5 nor § 6 of G. L. c. 151B specifically authorizes an award of reasonable attorney's fees and costs for an administrative appeal. Section 5 provides for the commission to award reasonable attorney's fees and costs to any prevailing complainant before it, and § 6, which provides for an administrative appeal pursuant to G. L. c. 30A, is silent on attorney's fees altogether. In Wynn & Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, 431 Mass. 655, 675- 677 (2000), we held that a prevailing plaintiff is entitled to reasonable attorney's fees incurred both in proceedings before the commission and in connection with the employer's appeal to this court from the decision of a judge in the Superior Court affirming the commission's decision. Although the plaintiff in that case had been awarded attorney's fees by the Superior Court judge in connection with the administrative appeal, that award was not challenged on appeal, and therefore, we had no occasion to consider the question whether such an award was proper. See id. at 658 n.5. Considering that question now, we have difficulty understanding why a plaintiff would be able to recover reasonable attorney's fees and costs incurred in proceedings before the commission, see G. L. c. 151B, § 5, and reasonable attorney's fees and costs incurred in appellate proceedings before an appellate court, see Wynn & Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, supra at 677, yet be denied the ability to recover reasonable attorney's fees and costs incurred in the middle, yet necessary, step of administrative review before the Superior Court. Such a result would appear consistent with neither logic nor law. See Yorke Mgt. v. Castro, 406 Mass. 17, 19 (1989) (prevailing plaintiff entitled to appellate attorney's fees in action under G. L. c. 93A, § 9, because "statutory provisions for a 'reasonable attorney's fee' would ring hollow if it did not necessarily include a fee for the appeal"). See also Twin Fires Investment, LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 432-433 (2005) (prevailing plaintiff entitled to appellate attorney's fees and costs under G. L. c. 93A, § 11).

Page 18

The Appeals Court recently considered the identical issue as presented here and held that "[e]ntitlement to an award of attorney's fees is . . . inherent in a claim brought under [G. L. c. 151B] and extends to appellate fees." Lowell v. Massachusetts Comm'n Against Discrimination, 65 Mass. App. Ct. 356, 357 (2006). We agree with the Appeals Court and now conclude that the language of G. L. c. 151B, § 5, providing that a prevailing party before the commission is entitled to reasonable costs and attorney's fees, supports an award of reasonable attorney's fees and costs to a prevailing plaintiff in an administrative appeal pursuant to G. L. c. 151B, § 6. To hold otherwise would discourage private attorneys from pursuing claims beyond the administrative stage of the proceedings and contravene the legislative purpose of vindicating the rights of victims of unlawful discrimination. See McLarnon v. Jokisch, 431 Mass. 343, 350 (2000) (prevailing appellants in action under G. L. c. 231, § 59H, entitled to recover reasonable appellate attorney's fees or statute's provisions regarding award of fees would "ring hollow"). [Note 17]

The plaintiff's motion in the Superior Court requesting reasonable attorney's fees and costs for work done in that court was entirely appropriate. A judge in that court may consider the motion and award that amount of the requested attorney's fees and costs that he or she deems reasonable. [Note 18] The plaintiff is, of course, entitled to compensation only for those attorney's fees

Page 19

and costs incurred in connection with those issues on which he prevailed in the Superior Court.

4. We remand this case for modification of the judgment entered against the department in a manner consistent with parts 1 and 2 of this opinion as follows:

(a) striking the award for damages for emotional distress;

(b) striking the award for prejudgment interest on the damages awarded for back and front pay and entering an award for prejudgment interest on the damages awarded for back pay only, from May 6, 1996, until June 1, 2005.

We also vacate the separate judgment entered denying the plaintiff's request for reasonable attorney's fees and costs incurred in connection with his administrative appeal to the Superior Court, and remand the matter to the Superior Court for proceedings in accordance with part 3 of this opinion. [Note 19]

The plaintiff has requested in his brief an award of appellate attorney's fees and costs in connection with this appeal. He is entitled to such an award, based on the time and funds reasonably expended on those issues on which he ultimately prevailed before this court. He may file a petition for reasonable attorney's fees and costs in accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004).

So ordered.