Hampshire. Civil action commenced in the Superior Court on January 29, 1975. The case was heard by Hayer, J. The Supreme Judicial Court granted a request for direct appellate review.
Hennessey, C.j., Braucher, Kaplan, Wilkins, & Liacos, JJ.
Massachusetts Commission Against Discrimination. Anti-Discrimination Law, Tenure, Prima facie case, Burden of proof.
The opinion of the court was delivered by: Wilkins
In a proceeding before the Massachusetts Commission Against Discrimination, the complainants, two female college instructors who had been denied tenure, were required to prove that there were no independent, nondiscriminatory reasons for the denial. [226-227]
In a proceeding before the Massachusetts Commission Against Discrimination, the commission erred in failing to require the complainants, two female college instructors who had been denied tenure, to prove that the college officials had a discriminatory motive in denying them tenure. [227-228]
In a proceeding before the Massachusetts Commission Against Discrimination, evidence of sex discrimination prior to July 24, 1969, the effective date of G. L. c. 151B, could not be relied on to support an inference of actual discrimination in 1971 and 1972, when the actions from which the complaints arose occurred. [228-229]
Where a complainant in a proceeding before the Massachusetts Commission Against Discrimination proves a prima facie case of unlawful discrimination, the burden is shifted to the respondent to produce a lawful explanation for the treatment accorded the complainant; if, however, the reason given for the respondent's action is the real reason and is nondiscriminatory, the commission has no authority to grant relief from that action. 
In April, 1972, Maurianne Adams and Mary Carruthers, *fn2 then assistant professors of English at Smith College (Smith), a private liberal arts college for women, each filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging unlawful discrimination in that she had not been recommended for tenure because of her sex. G. L. c. 151B, § 4. The result of these adverse tenure decisions was that Smith did not renew their teaching contracts which expired at the end of the 1972-1973 academic year.
Proceedings based on these complaints have followed a lethargic course, which might attract the attention of a modern Charles Dickens. A hearing on the complaints was held before a single commissioner of the MCAD on twelve days between January 16 and May 16, 1973. On December 30, 1974 (more than nineteen months after the close of the hearing), the single commissioner filed findings of fact and Conclusions of law ruling in favor of Adams and Carruthers and ordering their reinstatement with tenure at the higher rank of associate professor and with back pay. *fn3 Almost a year later, on November 19, 1975, the full commission, acting on Smith's administrative appeal, affirmed the decision of the single commissioner with minor modifications. Smith then filed a petition for review. A Judge of the Superior Court heard the case in the spring of 1977, *fn4 and, on July 18, 1977, he ruled in favor of Smith and directed the MCAD to dismiss the complaints with prejudice. We granted the parties' joint application for direct appellate review.
The delay in the resolution of these complaints is particularly unfortunate because we conclude that the proceedings must be returned to the MCAD for further consideration. Although the single commissioner made certain errors in her decision which were not corrected by the full commission, we do not agree with the Judge that the complaints should be dismissed without affording the MCAD the opportunity to reconsider the evidence (and, in its discretion, to receive any additional evidence) and to make findings under proper legal standards.
Our function is to review the decision of the MCAD in accordance with the standards of review expressed in G. L. c. 30A, § 14. G. L. c. 151B, § 6. The Conclusions of the Superior Court Judge carry no special weight in our deliberations, although they will, of course, be considered. Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 132-133 (1976). Courts must defer to an administrative agency's fact-finding role, including its right to draw reasonable inferences from the facts found. Id. Although the trial Judge recognized the guiding legal principles, he failed to adhere to them in some respects. In a number of instances, he appears to have weighed the evidence and reached his own Conclusions on the facts. The temptation to do so is great where the record contains substantial factual support for a result not reached by the agency, and where the agency decision contains seemingly prejudicial factual errors *fn5 and lacks a balanced analysis of the evidence. *fn6
Our focus must be on the action of the agency, and we must, therefore, disregard factual Conclusions advanced for the first time in the MCAD's brief here and must view critically any legal theory now claimed to be supportive of the agency decision which was not part of the reasoning expressed in the MCAD's decision. In the circumstances of this case, we deal with the findings of fact made by the single commissioner and with her ultimate Conclusions and rulings, as the latter were modified by the full commission. *fn7
Adams was appointed an instructor in English at Smith in 1964, after an outstanding record as a student. In 1967, after receiving her doctoral degree, she was promoted to the rank of assistant professor in the English department. In 1970, she was given a three-year contract as an assistant professor. In the late winter of 1972, the English department, acting through its available tenured members, voted, seven-to-one, not to recommend Adams for ...