Articles Posted in 2018

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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 Swenson v. Moini, the MCAD found in favor of the Respondent and dismissed the complaint alleging gender-based discrimination and sexual harassment. The Complainant, the bookkeeper and office manager within a dental practice, claimed that a partner at the practice had created a hostile work environment through sexual harassment. The Complainant ultimately waived her claim against the corporation and pursued the allegations against the individual Respondent only.

In dismissing the complaint, the hearing officer determined that the allegations of hostile work environment sexual harassment were untimely. Furthermore, the conduct was not objectively offensive and therefore did not support a hostile work environment claim. Moreover, the Complainant failed to show that she was particularly distressed or offended by the Respondent’s behavior, as she continued to work for the Respondent for several years and did not complain.

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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 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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Before proceeding to trial, an employment discrimination case in court must survive a hurdle in the procedural process known as summary judgment, which is governed by Federal Rule of Civil Procedure (FRCP) 56 and Massachusetts Rule of Civil Procedure (MRCP) 56. As discussed here, the process is different when an employment discrimination case remains under the jurisdiction of the Massachusetts Commission Against Discrimination.

Under federal law, three Supreme Court decisions handed down in 1986, referred to as The Trilogy, examined the summary judgment standard. In Anderson v. Liberty Lobby, the Supreme Court characterized the summary judgment inquiry as “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” In doing so, the Supreme Court delineated the province of the jury:

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