Articles Posted in Hearing Officer

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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.

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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 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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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 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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