Articles Posted in 2016

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Overview: In Verne v. Pelican Products, the MCAD found for the Respondent manufacturer and dismissed a complaint alleging discrimination based on national origin. The Complainant alleged that she was treated differently from non-Puerto Rican employees when she received a “final” warning for sending person emails at work and that she was subjected to hostile racial comments. Her separate complaint for retaliation had previously been dismissed by the MCAD because it was untimely.

Credible evidence established that, as soon as the Respondent’s HR Director became aware that another employee used an offensive epithet, she conducted an immediate investigation and terminated the offender the same day. The Respondent similarly took remedial action in the form of written discipline after another employee uttered a taunt about the Complainant. The hearing officer concluded that there were “some minor, albeit unpleasant, interactions in the workplace which the employer took aggressive steps to monitor and control,” but it was not a hostile work environment. The Complainant similarly could not establish a case for disparate treatment because her conduct in sending inappropriate emails was far worse than that of other employees who had received less discipline.

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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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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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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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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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Overview: In Radwin v. Mass General Hospital, the MCAD found in favor of the Respondent and dismissed the complaint from a nurse researcher alleging that she was discharged from her position in retaliation for raising the issue that certain events and meetings were scheduled on or around Jewish holidays. The Complainant suggested that she was subjected to different terms and conditions of employment because of her religion.

In deciding to dismiss the complaint, the hearing officer determined that the Complainant failed to establish a causal connection between the protected activity—calling attention to events being scheduled on Jewish holidays—and her termination. Credible evidence demonstrated that there were legitimate non-discriminatory reasons for terminating the Complainant, namely, that she was “tense, high strung and impatient with those she did not perceive as her intellectual equals” and “repeatedly engaged in conduct that reflected a lack of sensitivity toward support staff.” There was no evidence that scheduling events on or near Jewish holidays was anything but an oversight or at worst insensitivity on the part of the schedulers.

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Overview: In Wilson v. MA Dept. of Transitional Assistance, the MCAD found in favor of the Respondent and dismissed the complaint alleging that employees at a state agency had engaged in discrimination on the basis of race/color and retaliation. The Complainant’s testimony relied largely on claims that several employees repeatedly referred to her as “the black girl” or “the new black girl” and that a supervisor excessively sent back her work for corrections.

The hearing officer concluded that the Complainant failed to establish that she was subjected to a racially hostile workplace or disparate treatment based on racial animus. The Complainant’s testimony was consistently deemed not credible, leading to the conclusion that “she fabricated a self-serving fictional account of racial intolerance and hostility.” Furthermore, there was no credible evidence of a causal connection between the alleged discrimination and the retaliatory behavior. The hearing officer further noted that the Respondent took prompt investigative action by opening a thorough investigation within a few weeks of the initial complaints.

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Overview: In Mayer v. Boston Children’s Hospital, the MCAD found in favor of the Respondent and dismissed the complaint accusing the hospital of terminating a sixty-four-year-old nurse due to age-based discrimination. The hearing officer found no direct evidence of discriminatory animus in stray remarks apparently made to the Complainant, such as compliments for having youthful looks and energy for a person of her age.

Although the Complainant satisfied the elements of a prima facie case for discrimination based on age, the Respondent met its burden of production by showing legitimate reasons that the Complainant’s dismissal was not discriminatory. The hearing officer credited evidence of three separate lapses in clinical performance over a five-month span, followed by a violation in hospital policy when the Complainant told a woman seeking medical care to find an adult hospital instead. The Respondent had previously terminated a twenty-seven-year-old nurse for threatening a coworker and shouting obscenities without any prior discipline, a noteworthy contrast to the Complainant’s lengthy disciplinary record.

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