Articles Posted in $1 to $50k Emotional Distress 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 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 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 Codinha v. Bear Hill Nursing Center, the MCAD found in favor of the Complainant and awarded emotional distress damages for unlawful termination based on age and disability. The Complainant, a Certified Nursing Assistant, was in her early 70s when she fell at home and broke her wrist. After a period of medical leave, the Respondent informed her that it would not be feasible for her to return to work.

The Respondent claimed that the Complainant was terminated due to concerns over her attitude and poor performance, but the hearing officer determined that this was not credible. The hearing officer noted that the timing was suspect, that coworkers had not previously complained to management about the Complainant, that there were no negative reports about the Complainant’s performance, and that her most recent evaluation was positive. In addition, the Respondent had characterized the termination as a layoff, and not as a termination for cause.

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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 Santos v. X-Treme Silkscreen & Design, the MCAD found in favor of the Complainant and awarded emotional distress damages for disability discrimination. The MCAD also amended the complaint to add as an individual the sole owner of the Respondent silk screening and embroidery company. Evidence established that the Complainant—who suffered from morbid obesity, diabetes, hypertension, and sleep apnea—was terminated on the first workday after he requested a leave of absence to undergo gastric bypass surgery.

Even though the Complainant had displayed a decline in his work performance, the hearing officer concluded that “his request for medical leave was the but-for cause of his termination.” This conclusion was motivated in part by the temporal proximity of the two events. The hearing officer declined to award back pay, however, finding that the Complainant was not forthcoming about his interim earnings and went more than a year without making a good faith effort to seek new work.

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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 Harper v. Z2A Enterprises, the MCAD found in favor of the Complainant, awarding emotional distress damages and three months of back pay in a sexual harassment claim against the operator of the Half Time Sports Bar and Grill. The Respondents failed to appear at the hearing, and an Order of Entry of Default was noted on the record.

The Complainant put forth unrebutted evidence establishing that she was sexually harassed and subjected to a hostile work environment by the conduct of her immediate supervisor. The “extremely abusive and degrading behavior” included physical assaults, verbal abuse, sexual taunts, and sexually suggestive comments in the presence of customers and subordinates. The hearing officer found that the Complainant was constructively discharged because she legitimately believed that there was no recourse but to quit.

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Overview: In Tinker v. Securitas Security Services and Hussain, the MCAD found in favor of the Complainant and awarded emotional distress damages for discrimination based on sex/gender, gender identity, and sexual orientation. The Complainant, who previously identified as a woman and a lesbian, notified the Respondent that he was transgender and was transitioning to a man. There was credible testimony that the Complainant’s direct supervisor persisted in making very offensive comments, first about the Complainant’s female gender and sexual orientation and then later about his about his transgender identity.

The hearing officer concluded that Securitas did not take seriously any of the concerns that the Complainant raised with managers. Further, denials about being on notice of the conduct were not credible because the offender was a supervisor, and an employer “is vicariously liable for unlawful harassment committed by as supervisor upon whom it confers authority.” The offending supervisor was also individually liable as the perpetrator of the harassment.

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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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