Articles Posted in Retaliation

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An African American man, Russell Lopes, recently won a $4 million jury verdict in a case against the Town of Brockton. Lopes’ attorneys argued that Brockton discriminated against him because of his race when it refused to hire him for a job with the Department of Public Works (DPW) and then retaliated against because he spoke out against the discrimination. At the time of the events, Brockton had a far lower percentage of non-white DPW employees than the non-white population of Brockton. Lopes’ attorneys uncovered evidence that they believed showed that Brockton had rigged its hiring process in favor of white applicants.

“When you looked at the evidence, you looked at the data, the facts and listened to the testimony, you realized Brockton had bent, twisted and broken every single rule they had in order to favor white people in the application process,” said Lopes’ attorney.

According to Lopes, he applied for a job with DPW and he had far more than the required 3-5 years of experience. He included reference letters and positive performance reviews with his job application. Nevertheless, Brockton told him that it decided not to hire him because of a lack of experience. Lopes tried to get an explanation for why Brockton said he lacked experience because he believed that he clearly had sufficient experience. He said that no one with the Town would give him an answer. So, he spoke to the press about what happened.

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Earlier this month, a federal court in Connecticut held that a jury could reasonably find that Lawrence & Memorial Hospital violated the rights of a lab tech when it failed to provide reasonable accommodations for her disability in retaliation for her filing a complaint of sexual harassment. The facts of this case, unfortunately, will sound familiar to many workers who have been similarly traumatic events.

The lab tech plaintiff who filed the lawsuit against Lawrence & Memorial Hospital, worked in a lab with a man who, she says, subjected her to some pretty significant harassment. The male co-worker allegedly acted in an abusive manner to many people in the lab. In one incident, he shoved a co-worker into the plaintiff. In another incident, he put his hand up to her face as though he was going to slap her. And in another incident, he elbowed her. Some of the harassment was also sexual, such as “blonde” jokes and nicknaming the plaintiff “bimbo.”

The plaintiff had hypertension which her doctors say was worsened because of the hostile environment she experienced at work. Her doctors believed it would be dangerous for plaintiff to continue to work in this hostile environment because her hypertension was so bad. The plaintiff complained about the harassment she experienced and also asked for changes to her working conditions to accommodate her hypertension.

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Last week, the U.S. Equal Employment Opportunity Commission (EEOC) issued new updated guidance on laws that prohibit retaliation against workers who engage in protected activities such as opposing unlawful discrimination or participating in a discrimination investigation.  The EEOC issued its previous guidance in 1998 and since that time the U.S. Supreme Court has decided seven cases in which the court addressed the anti-retaliation laws that the EEOC enforces.  So, an update of the guidance was certainly warranted.

“Retaliation is asserted in nearly 45 percent of all charges we receive and is the most frequently alleged basis of discrimination,” said EEOC Chair Jenny R. Yang. “The examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.  The public input provided during the development of this guidance was valuable to the Commission in producing a document to help employers prevent retaliation and to help employees understand their rights.”

The new guidance contains many helpful illustrative examples of protected activities.  Of course, there are many types of protected activities not illustrated but the EEOC’s guidance cover some common types.  Some examples of protected activity covered in the guidance include:  telling your employer that you witnessed acts of sexual harassment that a co-worker complained about; resisting sexual advances; refusing to comply with your employer’s instruction to engage in unlawful discrimination; and raising questions about potential pay discrimination.  Because these activities are protected, an employer may not retaliate against you for doing them.

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Yesterday, the U.S. First Circuit Court of Appeals in Boston breathed new life into a worker’s sexual harassment and retaliation case.  The worker, Xiaoyan Tang, represented herself before the trial court.  She claimed that the defendants, which included Citizens Bank and related entities, subjected her to unlawful sexual harassment and then fired her because she complained about it.  The trial court dismissed Ms. Tang’s claims.  After that, she retained counsel who successfully persuaded the First Circuit to reverse the trial court’s decision.

Ms. Tang claims that her supervisor at Citizens Bank, David Nackley, sexually harassed her.  The trial court held that no reasonable jury could determine that she experienced sexual harassment because, among other reasons, the alleged harassment was not sexual in nature.  The First Circuit found that the trial court committed one of the Cardinal sins in assessing the merits of a sexual harassment claim:  it failed to consider context.  For example, Mr. Nackley allegedly made an odd comment about Tang’s “ass” and his “ass” getting together.  The trial court found that this comment, while perhaps boorish and unprofessional, would have been just as offensive to a man as to a woman.  The First Circuit rejected this reasoning because the trial court ignored the context of the case which included Mr. Nackley making sexual innuendos and doing other things indicating that he was coming on to Ms. Tang sexually.

The trial court also failed to address Ms. Tang’s retaliation claim.  Ms. Tang claimed that Citizens Bank fired her in retaliation for a complaint that she made about Mr. Nackley’s discriminatory behavior.  Perhaps because she represented herself before the trial court, Ms. Tang’s court complaint did not contain a specifically enumerated retaliation claim and that may be why the trial court did not discern a retaliation claim from the court complaint.  However, the First Circuit held that Ms. Tang’s court complaint contained the allegation that Citizens Bank retaliated against her because of the discrimination complaint that she submitted to Citizens Bank.

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This week, the U.S. First Circuit Court of Appeals affirmed a jury verdict in a long running retaliation case involving the termination of a sky cap who worked at Logan Airport. The sky cap at issue in the case, Joseph Travers, was the named plaintiff in a class action lawsuit against Flight Services & Systems, Inc. (“FSS”). That class action involved allegations that FSS did not pay sky caps all of the wages they were owed under federal and Massachusetts law. Travers alleged that FSS fired him in retaliation for his role in bringing the class action against FSS. This type of retaliation is unlawful under federal and Massachusetts law. Based on the evidence presented at trial, it appeared as though FSS fired Travers to send a message to other sky caps that if they joined the class action they, too, might get fired in retaliation.

We previously reported on this case because this is the second time the case has come before the First Circuit. The first time the case came before the First Circuit, the trial court had ruled in favor of FSS and dismissed Travers’ claim because the trial court did not believe a reasonable jury could find in favor of Travers. The First Circuit reversed the trial court’s decision and, as a result, Travers was entitled to a jury trial. After the trial, the jury ruled in favor of Travers and awarded him $90,000 in back pay, $450,000 in front pay, and $400,000 in compensatory damages for emotional distress—a total of $940,000.

Under Massachusetts law, Travers was entitled to three times his back pay and, thus, the trial court trebled the back pay award to $270,000. However, the trial court decided to reduce the compensatory damages award to $50,000 and to eliminate the front pay award. Thus, after the trial court reduced the jury’s verdict, the final damages verdict was $320,000. In addition to this $320,000, the trial court awarded Travers $176,185 to pay his attorneys’ fees.

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Today a jury in Portland’s federal court returned a verdict against Rumford Hospital and in favor of the Maine Employee Rights Group’s client Catherine Prescott. Attorneys Peter Thompson and Chad Hansen represented Ms. Prescott at trial.

We previously reported on this case when the court denied Rumford Hospital’s motion for summary judgment. Ms. Prescott, formerly Ms. LaFlamme, worked as a nurse at Rumford Hospital. The case centered around Ms. Prescott’s need for medical leave as a reasonable accommodation for her disability, a herniated disc in her back that required surgery.

The Americans with Disabilities Act (ADA) and the Maine Human Rights Act (MHRA) require employers to provide reasonable accommodations to employees with disabilities. One type of reasonable accommodation is medical leave. In this case, Rumford Hospital let Ms. Prescott take an extended medical leave of over a year due to her herniated disc and related surgery but it fired her before she was able to return to work. When she was able to return to work, Rumford Hospital also refused to rehire her. The jury determined that Rumford Hospital failed to reasonably accommodate Ms. Prescott’s disability, discriminated against her because of her disability, and unlawfully retaliated against her. The jury awarded Ms. Prescott $35,685 for back pay and compensatory damages.

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This week a jury in Suffolk County Superior Court found that the City of Boston discriminated against city employee Chantal Charles because of her race. Charles, a black woman of Haitian descent, worked as a senior administrative assistant in the City’s Treasury Department. She alleged that the City and the City’s First Assistant Collector-Treasurer, Vivian Leo, discriminated against her when they denied her promotions, pay raises, overtime pay, and compensation for performing the duties of a supervisor. Charles also alleged that the City retaliated against her after she filed a complaint with the Massachusetts Commission Against Discrimination.

In a report on the City’s workforce issued earlier this year, analysts reportedly found that the Treasury Department is one of Boston’s least diverse departments with white workers constituting over two-thirds of the department. This report appears to have supported the arguments that Charles’ lawyers made at trial. They argued that Charles was the victim of a pattern of discriminatory treatment in the Treasury Department.

The jury awarded Charles $390,000 in economic damages, $500,000 for emotional distress, and $10 million in punitive damages. In a press release, Charles’ lawyers said that the “scope of the punitive damages award shows that the jury found the City and Ms. Leo’s conduct was outrageous and egregious.”

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At the last meeting of the Maine Human Rights Commission (MHRC), the Commissioners found reasonable grounds to believe that Hartford Installations, a company based in Damariscotta and South Portland, discriminated against a former employee because of his race and retaliated against him when he complained of the discrimination. The former employee, Jaime Guevara, is an immigrant from El Salvador.

According to a news report about the case, Mr. Guevara claimed that when Hartford Installations sent him to a job in Pennsylvania for three months, a project manager in Pennsylvania called him racist names like “Mexican, midget, and lazy.” This project manager also refused to pay Mr. Guevara all of the wages he earned because the project manager allegedly thought “Mexicans do not deserve to get paid so much.” Mr. Guevara complained to another project manager about this discriminatory treatment but that project manager refused to do anything to stop the discrimination.

When Mr. Guevara returned to Maine from the job in Pennsylvania, he says that he complained again to the company about how the project manager in Pennsylvania had discriminated against him. In response, he claims that the company reduced his hours. Mr. Guevara says that the company told him it reduced his hours because of what happened in Pennsylvania. The company later demoted Mr. Guevara and cut his pay by 25% allegedly because of his discrimination complaints.

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Yesterday, a federal court in Massachusetts held that the retaliation case of a former Brockton, Massachusetts police officer may go to trial.  The former officer, Ken Williams, alleges that the City of Brockton and officials from the Brockton police department violated his First Amendment rights when they retaliated against him for speaking out on a matter of public concern.  The matter of public concern that Williams spoke out about was alleged racial discrimination against a person who another Brockton police officer arrested.

In November 2007, Brockton police officers arrested an African American businessman named Jose Semedo.  During the arrest, one of the police officers, Lon Elliott, allegedly uttered racial epithets toward Semedo and mocked him using racially offensive gestures.  Semedo later spoke to Williams about what happened and Williams advised Semedo to file a complaint against Elliott with the Brockton Police Department. Semedo filed a complaint, as Williams advised, and an internal affairs investigation against Elliott ensued.  After the conclusion of the investigation, Williams also testified at a disciplinary hearing against Elliott which ultimately resulted in Elliott’s termination.

Williams claims that he experienced retaliation because he advised Semedo to file his racial discrimination complaint and because Williams testified against Elliott at his disciplinary hearing.  The retaliatory acts include the defendants’ denial of his request for work-related medical leave which forced him to retire.  The federal court denied the defendants’ motion for summary judgment on these claims and held that they should go to trial.

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Earlier this month, the U.S. District Court for the District of Maine held that a reasonable jury could conclude that the Greenville School Department (“School Department”) unlawfully discriminated against Bruce Hanson because of his disabilities and because he requested reasonable accommodations for those disabilities.  Mr. Hanson, who is represented by the Maine Employee Rights Group, worked as the maintenance supervisor for the School Department for 11 years until he was terminated on March 14, 2012.

In June 2011, Mr. Hanson requested medical leave from the School Department’s Superintendent, Beth Lorigan, because he had prostate cancer.  In response to his request for medical leave, Superintendent Lorigan told Mr. Hanson that it might be a good time for him to retire.  A week later, without giving Mr. Hanson any notice of her intention to do so, which violated Maine public meeting laws, Superintendent Lorigan met with the School Committee, criticized Mr. Hanson’s job performance, and recommended that Mr. Hanson either retire or be terminated.

In July 2011, Superintendent Lorigan offered Mr. Hanson the options of either early retirement or termination.  Mr. Hanson rejected these options and, instead, took medical leave.  Mr. Hanson went out on medical leave in August 2011.  While out on medical leave, he informed the School Department that, in addition to his prostate cancer, he had heart disease and, as a result, he would need to get medical clearance to return to work.  He received this medical clearance in February 2012.