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Overview: In Osorio v. Standhard Physical Therapy, Bulega, Tambi, the MCAD found in favor of the Complainant and awarded back pay plus emotional distress damages on her claims of sexual harassment and retaliation. There was credible evidence that Respondent Bulega, the business manager at the physical therapy office, began harassing the Complainant by smacking her behind several times a week, putting his hand down her shirt, snapping her underwear, making vulgar statements, and sending suggestive text messages. In addition, the Complainant once found Respondents Tambi and Bulega watching pornographic videos in the front area of the office.

The hearing officer found the Complainant’s testimony to be “extremely believable,” noting that she was clear and consistent throughout the proceedings. The evidence showed that the Complainant had been subjected to humiliating, unwelcome sexual harassment for a protracted period. Additionally, there was “no doubt” that the Respondents were on notice of the Complainant’s protected activity of complaining about sexual harassment but terminated her anyway, with a clear causal connection between those events. The hearing officer also found Respondents Bulega and Tambi individually liable.

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Overview: In Martins v. Isabel’s Pizza DBA Papa John’s Pizza, the MCAD found in favor of the Complainant and awarded emotional distress damages with 13 weeks of back pay. The Complainant, who at the time was a high school student working as a pizza-maker for a Papa John’s franchise, brought claims of sexual harassment and constructive discharge against the franchise operator. She had received increasingly sexually suggestive text messages from her manager; eventually, the manager cornered her at the end of a night shift and groped her.

The manager was fired and was subsequently charged with indecent assault and battery, which resulted in a plea deal. Shortly after the incident, the Complainant learned that two of the manager’s cousins had come to the business looking for her, which she interpreted as a threat. The hearing officer determined that the events were clearly sufficiently severe and pervasive to create a hostile work environment and that the Respondent was vicariously liable. Additionally, the potential threat of workplace violence coupled with the employer’s insufficient response meant that the Complainant had been constructively discharged.

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Overview: In Swenson v. Moini, the MCAD found in favor of the Respondent and dismissed the complaint alleging gender-based discrimination and sexual harassment. The Complainant, the bookkeeper and office manager within a dental practice, claimed that a partner at the practice had created a hostile work environment through sexual harassment. The Complainant ultimately waived her claim against the corporation and pursued the allegations against the individual Respondent only.

In dismissing the complaint, the hearing officer determined that the allegations of hostile work environment sexual harassment were untimely. Furthermore, the conduct was not objectively offensive and therefore did not support a hostile work environment claim. Moreover, the Complainant failed to show that she was particularly distressed or offended by the Respondent’s behavior, as she continued to work for the Respondent for several years and did not complain.

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Overview: In Dateo v. Springfield BBQ LLC dba Famous Dave’s BBQ, the MCAD found in favor of the Complainant, awarding back pay and emotional distress damages after finding that the Complainant’s hours as a bartender and waiter were reduced and given to young women. The Complainant had decades of experience as a successful bartender and was hired by the Respondent restaurant when he was 48 years old. In an effort to “put a new face to the bar,” the Respondent altered the staff so that the bartenders and waitstaff consisted of the Complainant and six women who were all under 30 years old.

The Complainant successfully established a prima facie case of discrimination based on age and gender, and the Respondent failed to rebut the case because it declined to participate in the MCAD hearing. The Respondent similarly defaulted on the claim of retaliation. The hearing officer awarded lost wages for a 21-month period and emotional distress damages.

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Overview: In Robar v. Int’l Longshoremen’s Association, Local 1413-1465, Fortes, the MCAD found in favor of the Complainant and awarded emotional distress damages for her claims of gender-based discrimination and retaliation. The Complainant, a woman with experience and certification in forklift operation, alleged that the Respondents refused to hire her as a forklift operator due to her gender and non-member status with the union.

The hearing officer found direct evidence of gender discrimination underscoring the fact that the union never hired women to operate the forklifts. The Respondents failed to refute this evidence, providing ostensibly false reasons for their actions. There was also evidence that the Respondents denied union membership to the Complainant because she had not worked enough hours but admitted several men who did not meet that requirement. The Complainant failed to put forth a prima facie case for retaliation, however, because the events in question lacked temporal proximity and the alleged harm was hypothetical. In addition to emotional distress damages, the hearing officer imposed a civil penalty against the Respondent union.

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Overview: In Babu v. Aspen Dental Management, the MCAD found in favor of the Complainant, awarding back pay and emotional distress damages for claims of employment discrimination and retaliation. The Complainant, a Romanian immigrant and trained dental assistant, alleged that she was subjected to harassment because of her accent and was retaliated against for objecting to the officer manager’s sexualized behavior towards male patients. The Complainant had consistently received very positive employment reviews in her eight years at Aspen Dental practices prior to the incident in question but was ultimately terminated fourteen months after filing her MCAD complaint.

The hearing officer credited the Complainant’s testimony that she confronted her supervisor about flirting with a patient in the office over the supervisor’s denial. Under a disparate treatment analysis, the hearing officer found direct and indirect evidence of national origin discrimination. The justifications put forth by the Respondent for the discipline against the Complainant and for her eventual termination were found to be illegitimate after close scrutinization. There was a causal connection between the protected activity of complaining about the supervisor’s demeanor and the subsequent adverse employment actions, which had included a demotion in pay and title.

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Overview: In Cromartie v. West River Pharmacy & Blitchington, the MCAD found in favor of the Respondent pharmacy and one of its supervisors, dismissing the complaint. The Complainant, a black woman working as a medical records technician, alleged that she had been discriminated against because of her race and color and retaliated against for filing an internal complaint. Specifically, the Complainant alleged she was subjected to disparate treatment that included the assignment of more work than coworkers and disparaging treatment by supervisors.

The hearing officer concluded that the Complainant failed to establish a prima facie case because she did not show that she was adequately performing her job. There was considerable evidence establishing that the Complainant made frequent errors that could have placed patients in danger. Furthermore, the Complainant did not establish that similarly situated coworkers not in her protected class were treated differently. There was credible evidence that white, Asian, and Latino employees had been disciplined and/or terminated for similar mistakes.

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Massachusetts employers can not refuse to accommodate handicapped employees who are lawfully prescribed medical marijuana to treat or alleviate a medical condition. Stated differently, continued use of medical marijuana as a reasonable accommodation request is not facially unreasonable. In Barbuto v. Advantage Sales, the Massachusetts Supreme Judicial Court (SJC) reversed the Superior Court’s decision granting summary judgment to the employer and reinstated the employee’s handicap discrimination claim under the Fair Employment Practices Act (M.G.L. c. 151B, §4). There, the plaintiff, Cristina Barbuto, receive a valid prescription for medical marijuana to treat the debilitating symptoms caused by Crohn’s disease. According to the decision, due to this medical condition, Ms. Barbuto has little or no appetite, finds it difficult to maintain a healthy weight, and typically uses marijuana for medicinal purposes in small quantities two or three times per week. The record also makes clear that Ms. Barbuto did not use marijuana daily, nor would she consume it before or during work.

Ms. Barbuto’s employer, Advantage Sales & Marketing, required her to submit a urine sample as part of the hiring process. After learning of this requirement, Ms. Barbuto was up front with her future supervisor about her diagnosis of Crohn’s disease and her medical marijuana use. The decision further reports that her future supervisor responded that this “should not be a problem,” which he later confirmed with others at the company. After completing her first day of work, Ms. Barbuto received a call from a human resources representative, who informed her that she was terminated for testing positive for marijuana. In doing so, Ms. Barbuto was allegedly told that the company did not care if she used marijuana to treat her medical condition because “we follow federal law, not state law.”

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Overview: In Morrison v. Wilder Brothers Tire Co., the MCAD found in favor of the Respondent auto repair business and dismissed the complaint filed by its former operations manager. The Complainant, who suffered from ADHD, mild autism, and depression, alleged that he was terminated one day after providing a letter stating that he needed a leave of absence due to an episode of severe depression.

In dismissing the complaint, the hearing officer reasoned that the Complainant’s deteriorating performance and attitude provided a legitimate, non-discriminatory reason for the termination. The hearing officer credited testimony from the owner of the business that he made the decision to terminate the Complainant after the Complainant failed to show up for work over the weekend and not after receiving the request for a leave of absence shortly thereafter. The hearing officer was “not entirely unsympathetic” to the Complainant’s request for a leave of absence but concluded that the Respondent no longer had an obligation to accommodate his disabilities due to an ongoing failure to satisfy the requirements of the job.

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Overview: In Joyce v. CSX Transportation, the MCAD found in favor of the Complainant, awarding six years of back pay and considerable emotional distress damages for a disability-based discrimination claim. The 66-year-old Complainant, who was a conductor with the Respondent transportation company, suffered from cognitive disabilities such as ADHD and depression. He charged his employer with denying him a reasonable accommodation in requiring him to use an administrative computer system with which he had a great deal of difficulty.

In finding a failure to accommodate, the hearing officer reasoned that the Complainant’s requests for accommodation were fairly straightforward. The Respondent’s assertion that it had no knowledge of the Complainant’s disabilities was deemed not credible. The hearing officer held the Respondent liable under the “cat’s paw” theory of discrimination, finding a supervisor with discriminatory animus who influenced the decision to take disciplinary action against the Complainant, action which was deemed pretext for discrimination.

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