Articles Posted in Hearing Officer Betty E. Waxman

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.

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.

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.

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.

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.

Overview: In Rodriguez v. UPS, the MCAD found in favor of the Respondent and dismissed the complaint alleging discrimination based on race and national origin as well as retaliation. The Complainant, a driver and dock worker, claimed that he was subjected to harassing behavior by coworkers, including name-calling and criticism. Although the claims would have been enough to establish a prima facie case if proven, the hearing officer determined that the Complainant was not a credible witness and therefore did not establish a claim.

The hearing officer noted that the Complainant had charged a coworker at a prior company with similar discrimination and lied under oath when he said that he did not file a similar lawsuit against that employer. Furthermore, witnesses contradicted much of the Complainant’s factual testimony. The Complainant’s “unconvincing demeanor,” his “evasions about past matters,” and “the plethora of credible witnesses testifying against him” sufficiently undermined his claims.

Overview: In Bloomfield v. MA Department of Correction, the MCAD found in favor of the Respondent and dismissed the complaint from a DOC Sergeant alleging a racially-motivated hostile work environment, retaliation, and discrimination based on disability from diabetes. Many of the Complainant’s allegations fell outside the applicable statute of limitations, including some charges dating back to 1990. Those charges that were not untimely were neither credible nor sufficient to support the claims.

The hearing officer reasoned that the one-year gap between the protected activity of filing an MCAD charge and the Complainant’s subsequent termination was too long in this case to support an inference of causation. Additionally, there was credible evidence showing that the penalties imposed on the Complainant “were valid, job-related responses to misconduct, not punishments for complaining about discrimination.” The Complainant was disciplined for making false claims of misconduct against other employees and for lying about sleeping while on duty, not for making allegations of discrimination.

Overview: In Tsigas v. Department of Correction, the MCAD found in favor of the Respondent and dismissed the Complainant’s disability discrimination claim. The factual record established that the Complainant was not a handicapped individual as defined by statute, as his medical history presented “an array of conflicting symptoms that cannot be tied to a single disabling condition.” Furthermore, even if the Complainant had established he was handicapped, his inability to attend work consistently would disqualify him from performing the essential function of his role.

The hearing officer concluded that the Complainant’s termination was not due to disability but was instead because of extensive absenteeism. The Complainant was “lackadaisical in obtaining the medical clearances necessary to return to work,” and his “absences were numerous and poorly defined as to causation.”

Overview: In Pavoni v. Wheely Funn Inc., the MCAD found in favor of the Respondent and dismissed the complaint alleging quid pro quo sexual harassment and retaliation against a roller skating rink owner. The Complainant did establish a prima facie case based on the temporal proximity between her rejection of the business owner’s advances and her termination, which were less than four apart. The Respondent’s staff provided credible testimony, however, that the Complainant had chronic problems with tardiness, frequent breaks, and inattentiveness.

The hearing officer further found that the owner did not “behave like a scorned suitor” after finding out that the Complainant did not reciprocate his feelings, but instead “assured her that her rejection of a personal relationship would not affect her job, turned his attention to dating other women, and promptly met his current wife.” Failure to meet job expectations was what ultimately led to the Complainant’s termination.

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.