Articles Posted in Employment Law Claims

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Overview: In Pimental v. Bristol County Sheriff’s Office, the MCAD dismissed a complaint alleging that the Bristol County Sherriff’s Office removed the Complainant from his position as affirmative action officer in retaliation for filing prior claims of discrimination. The Complainant had been disciplined for several violations, and he subsequently filed complaints alleging discrimination on the basis of race, national origin, and disability. The MCAD dismissed those complaints for lack of probably cause prior to hearing the retaliation claim.

The hearing officer dismissed this complaint after finding no causal connection between the prior allegations and the removal of the Complainant from his role as affirmative action officer. Credible evidence showed that the Complainant did not file an internal complaint with the Sheriff’s Office until after the decision was made to terminate his assignment as affirmative action officer. The hearing officer further noted that there was “no significant penalty inflicted” on the Complainant that would rise to the level of adverse action because his role as affirmative action officer came with no additional pay or relief from his regular duties.

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Pregnancy discrimination cases are rarely built on direct or “smoking gun” evidence. Instead, employment discrimination cases typically hinge on circumstantial evidence. The Supreme Judicial Court’s (“SJC”) ruling in Verdrager v. Mintz Levin, in which it reversed summary judgment thus allowing the case to proceed to trial, is a prime example of the various ways in which pretext for pregnancy and gender discrimination as well as retaliation may be inferred. The case is fact-intensive with a long, procedural history. Below is a summary of certain key facts along with a general overview of its precedential value among employment law attorneys, both in Massachusetts and in other jurisdictions.

Retaliation, Pregnancy & Gender Discrimination Allegations

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Overview: In Ke v. New England Baptist Hospital, the MCAD dismissed a complaint accusing the Respondent orthopedic hospital of unlawful termination on the basis of age, disability, race, and national origin. The Complainant was a trained cardiologist of Chinese national origin who worked as an echocardiographer after coming to the United States in 1983. She injured her back while at work in April 2010 and was terminated following an incident in May 2010 that prompted a patient complaint regarding quality of care.

The hearing officer concluded that the Respondent “articulated a reasonable belief, based on a thorough investigation, that Complainant had engaged in serious breaches of policy for which she accepted no responsibility,” which justified termination. There was insufficient credible evidence to conclude that the Respondent was motivated by discriminatory intent. Even if the termination was harsh or unfair, it was clear that the decision to terminate arose from misconduct and subsequent failure to accept responsibility rather than discriminatory animus.

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Disability discrimination claims under both the Massachusetts Fair Employment Practices Act and the Americans with Disabilities Act are among the most sophisticated claims that an employment lawyer can undertake. To maximize the chance of overcoming summary judgment and prevailing at trial, there are several technical points worth emphasizing when bringing claims for handicap discrimination, retaliation, failure to investigate, and failure to accommodate.

General Principles

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Overview: In Loewy v. Ariad Pharmaceuticals, the MCAD dismissed the complaint alleging racial discrimination and retaliation against the Respondent, a drug development company based in Cambridge. The Complainant alleged that he was unlawfully terminated for refusing to lower the performance rating of a black employee under his supervision which, in turn, would have made it easier for the Respondent to terminate that employee without the appearance of racial discrimination.

The hearing officer determined that the preponderance of credible evidence established no causal connection between the Complainant resisting the instruction to give a lower performance rating and his subsequent termination, thereby undermining the prima facie case for retaliation. The Respondent provided credible testimony that the Complainant was terminated due to concerns about his performance and a change in the company’s personnel needs.

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Overview: In Carta v. Wingate Healthcare, the MCAD found in favor of the Complainant, a 69-year-old and qualified handicapped individual who was terminated from her health care position. The MCAD awarded emotional distress damages and ordered the Respondent to conduct training of certain human resources employees after the Complainant was injured during the course of her employment and was subsequently terminated. After her injury, the Complainant returned to work on a part-time basis but was ultimately fired because she could not return to full-time work.

Finding the essential issue to be whether further extending the Complainant’s part-time work schedule was a reasonable accommodation, the hearing officer reasoned that that the Respondent did have a further obligation to the Complainant. The prognosis for the Complainant’s recovery was unclear, and so termination was premature. The evidence ultimately did not support a finding that the Complainant could have worked full time, however, so she was not entitled to lost wages beyond what she had already been compensated by worker’s compensation and a third-party lawsuit recovery relating to her injury.

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Overview: In Savage v. Massachusetts Rehabilitation Commission, the MCAD found in favor of the Complainant and awarded substantial back pay and emotional distress damages for employment discrimination based on a disability. The Complainant had a history of dyslexia, attention deficit disorder, and chronic depression prior to being hired by the Respondent, a state agency. These disabilities were made apparent to the Respondent through the Complainant’s initial self-identification and several subsequent disclosures to various supervising staff.

The hearing officer found that the agency failed to engage in meaningful communication with the Complainant and failed to fashion meaningful accommodation for his disabilities. The officer further concluded that the Complainant’s training director “seemed more intent on terminating Complainant’s employment as quickly as possible while he was on probation to avoid dealing with the collective bargaining rights that would adhere once he became a non-probationary employee.” The Complainant had also been subjected to a hostile work environment due to demeaning, bully, and intimidating conduct by the training director.

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Race discrimination in the workplace is unlawful under Title VII of the Civil Rights Act of 1964. Race discrimination claims, like other employment law claims, are subject to strict statute of limitations filing deadlines. Subject to certain very limited exceptions, the failure to file within the applicable deadline will forever bar a victim of employment discrimination from recovering damages – which can include financial loss, emotional distress, and punitives.

In Green v. Brennan, the United States Supreme Court decided when the filing period for a constructive discharge begins to run. There, the plaintiff, Marvin Green, worked for the Postal Service for 35 years. In 2008, he applied for a promotion and was passed over. Green alleged that he was denied the promotion because of his race and that he suffered retaliation thereafter. In 2011, two of Green’s supervisors accused him of delaying the mail; a criminal offense which prompted an investigation by the Office of the Inspector General (OIG). During the investigation, the supervisors provided Green with a letter re-assigning him to off-duty status. Although the OIG ultimately concluded that no further investigation was required, the supervisors maintained to Green that “the OIG is all over this” and that the criminal charge “could be a life changer.”

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Overview: In Chase-Eason v. Crescent Yacht Club, the MCAD found in favor of the Complainants, awarding back pay to one of them and emotional distress damages to both. Complainant Eason was subjected to unwanted touching and vulgar comments that were sufficiently severe to alter the conditions of her employment and create a hostile work environment. Even though she did engage in bawdy banter, she “did not waiver in her efforts to protest the behavior directed against her.” The fact that some harassment occurred when Complainant Eason was off duty did not negate the employee/supervisor relationship.

The hearing officer similarly concluded that Complainant Chase was subjected to unwanted touching and hostile language sufficiently severe to constitute harassment. Both Complainants were entitled to emotional distress damages. Complainant Eason, who was terminated, was also entitled to back pay; Complainant Chase, who quit voluntarily, was not.

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Age discrimination continues to garner public attention as older workers challenge traditional notions of what is deemed a “normal” retirement age. Like other forms of employment discrimination claims, it is rare to find direct or “smoking gun” evidence of age discrimination. Rather, age bias claims are typically proven through circumstantial evidence. Specifically, under the McDonnell Douglas framework, employees who suffer age discrimination must first establish what is known as a prima facie case by showing that they: (1) are at least 40 years old, (2) possess the qualifications to do the job, (3) experienced some type of of adverse employment action (e.g., termination, demotion, failure to promote), and (4) were replaced by someone who is “substantially younger.”

In Knight v. Avon Products, the Massachusetts Supreme Judicial Court defined “substantially younger” as an age disparity of at least five years. In addition, the Supreme Court in O’Connor v. Consolidated Coin Caterers made clear that satisfying the fourth element does not require the replacement to be under 40 years old. As such, a 65 year old employee would still meet his or her burden under the fourth prong if the replacement is 60 years old or younger.

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