Articles Posted in Economic Damages

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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 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 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 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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Overview: In Phillips v. Electro-Term-Hollingsworth, the MCAD found in favor of the Complainant and awarded back pay plus emotional distress damages for a sexual harassment claim against the Respondent electronic wiring manufacturer. The Complainant, who worked briefly at the Respondent company as a wire harness assembler, had asked coworkers to stop speaking graphically about sex acts in her presence. In response, those coworkers engaged in increasingly threatening behavior to which the Complainant’s superiors provided a limited and unhelpful reaction.

Even though the hearing officer found that the Complainant embellished some of her factual testimony, the officer determined that coworkers did indeed conduct repeated vulgar discussions of sexual acts within earshot of the Complainant and threatened her after she reported that conduct. The employer had a duty to inquire into the specific allegations and failed to conduct a thorough investigation. The hearing officer further concluded that the Complainant’s protected activity of reporting the harassment was the primary reason she had been threatened by termination, and the work environment was sufficiently hostile to support a constructive discharge claim.

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Overview: In Canton v. Biga Wholesale, Martin, etc., the MCAD found in favor of the Complainant, awarding back pay and emotional distress damages for claims of sexual harassment and retaliation. The Complainant, who worked in bread production for Biga’s multiple bakery entities, credibly testified that her direct supervisor began making advances toward her. The Complainant rebuffed these advances, at which point they intensified to include unwanted grabbing/kissing and an offer by the supervisor to credit the Complainant for working a shift if she went home with him. The Complainant’s supervisor subsequently reduced her hours after she continued to reject his advances. After hiring an attorney and notifying company leadership of these incidents, the Complainant was eventually laid off.

The hearing officer concluded that the Complainant was the target of a “relentless campaign” of unwanted sexual propositions and that she suffered adverse changes in the terms of her employment as a result of rejecting those advances. Furthermore, the Complainant was subjected to a hostile work environment because her supervisor’s conduct so clearly crossed the boundaries of a professional relationship. The hearing officer also found that the Complainant was laid off in retaliation to objecting to such conduct and that the actions of the company’s personnel officer in response were so egregious as to make her individually liable.

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Overview: In Lapete v. Country Bank, the MCAD found in favor of the Complainant and awarded back pay and emotional distress damages. The hearing officer determined that the Respondent bank failed to provide a reasonable accommodation for the Complainant’s disability—post-partum depression following the birth of her son via emergency C-section—and improperly terminated the Complainant instead of granting a reasonable request for a brief extension of medical leave.

Although the Complainant had been on leave for more than the 12 weeks afforded by statute and the FMLA, the Complainant met her obligation to engage in an interactive dialogue and keep the Respondent informed as to her condition. The Respondent, conversely, arbitrarily terminated the Complainant without engaging in any interactive dialogue. At the time of her termination, the Complainant was only seeking a few additional weeks of leave and not an indefinite extension. The hearing officer reasoned that sole reliance on the 12-week leave period required by the FMLA would be misguided because “Massachusetts disability law requires a more flexible approach” in determining what constitutes reasonable accommodation.

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Overview: In Gutierrez-Dupuis v. Gabriel Care, LLC, the MCAD found in favor of Complainant Dupuis on her retaliation claim, but it found against Complainant Gutierrez on her claims of retaliation and discrimination based on national origin and race. There was no credible evidence to support claims that Gutierrez was told not to speak Spanish to clients or that her supervisor mocked Gutierrez’s accent. The record also made it clear that Gutierrez was terminated for taking steps to open a competing business and not for complaining about discrimination.

As for Complainant Dupuis, however, the hearing officer arrived at the “inescapable conclusion” that the primary reason she was terminated was because she said she would serve as a supporting witness if Gutierrez filed a discrimination claim. The hearing officer reasoned that Dupuis was “fired for standing up in support of her good faith, if misguided, belief that fellow employee Gutierrez was the victim of discrimination.” She was awarded back pay and emotional distress damages.

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Overview: In Patterson v. Ahold USA, Inc., the MCAD found in favor of the Complainant and awarded back pay, front pay, and emotional distress damages for race-based discrimination. The parent company of Stop & Shop terminated the Complainant’s position in the corporate headquarters due to a reorganization and filled other open positions with white employees while passing over the Complainant, who was African-American.

Though the Respondent purported to follow a legitimate process for reorganization, the hearing officer found it quite clear from the evidence that the Respondent exercised significant discretion in selecting employees to be laid off and preserved positions for favored employees. Although there was little evidence in the record showing blatant or conscious race-based bias, that the bias was unconscious did not excuse it. The Complainant received several years of lost wages, front pay up until her 66th birthday, and damages for emotional distress.

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