Articles Posted in Retaliation

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On April 20, 2022, the United States District Court for the District of Maine entered a Judgment in favor of Erin Papkee and against her former employer MECAP d/b/a Milk Street Capital, a real estate investment company in Portland, Maine, and Scott Lalumiere, the primary shareholder and manager of MECAP. Leading to this Judgment, on February 18, 2022, the Court granted the majority of Plaintiff’s Motion for Summary Judgement and concluded that MECAP and Lalumiere violated the plaintiff’s rights under both the Maine Whistleblowers’ Protection Act (MWPA), 26 M.R.S. §§831 et seq., as enforced through the Maine Human Rights Act (MHRA), 5 M.R.S. §§ 4551 et seq., and the anti-retaliation provision of the Fair Labor Standards Act (FLSA). These laws prohibit retaliation against employees who make reports to their employer or a government entity in good faith including reporting conditions or practices that they reasonably believe to be a violation of law, reporting conditions or practices that they reasonably believe to violate wage and hour laws such as when an employee is incorrectly paid as a contractor or misclassified, and bringing claims in court to enforce their rights under these laws.

 

In ruling in Ms. Papkee’s favor on summary judgment, the Court found that Ms. Papkee engaged in protected activity under the MWPA and FLSA when she objected to and opposed Lalumiere’s alleged attempt to defraud the court in a separate lawsuit and was forced to resign in retaliation for this protected activity.  The Court also found Ms. Papkee was subjected to unlawful retaliation when MECAP and Lalumiere brought baseless retaliatory counterclaims against her in response to her initial lawsuit.

 

In its April 20, 2022 Order, the Court awarded Ms. Papkee her lost wages which totaled $113,250. The Court also awarded Ms. Papkee $37,500 in compensatory damages for the stress and hardship she suffered as a result of the unlawful termination, and $4,968 in consequential damages. The Court also awarded Ms. Papkee $37,500 in punitive damages. Punitive damages are awarded to punish an employer-defendant when the evidence reflects that they knowingly or recklessly violated an employee’s protected rights.  In addition, the Court awarded Ms. Papkee attorneys fees in the amount of $25,500 for a total judgment of $218,718.  Ms. Papkee is represented by Chad Hansen and Ryan McClure of the Employee Rights Group.

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Earlier this month, the U.S. First Circuit Court of Appeals held that a trial court in Puerto Rico erred when it determined that a worker failed to present sufficient evidence to support her claims of ageist harassment and retaliation.  The trial court had thrown the worker’s case out because the trial judge did not think a jury could reasonably find that the company had violated the worker’s rights.  The First Circuit found that the trial court inappropriately prevented this case from going to trial.

The worker presented evidence to the trial court that her managers called her “vieja,” which means old in Spanish; “useless;” “worthless;” that she should apply for social security; and that she should quit because she was so old.  She told the trial court that this happened on a daily, or near daily, basis for over a year.  The trial court held that the worker failed to present specific enough information for a jury to find in her favor because she did not provide specific information about each instance during the period she was harassed, such as which person made comments on each particular date.  The First Circuit rejected the trial court’s reasoning, holding that it “would be unreasonable to expect the average worker in an allegedly perpetually abusive environment to keep track of her abuse to that degree of detail.”

The First Circuit also reversed the trial court’s decision to dismiss the worker’s claims of retaliation and “constructive discharge.”  After the worker complained to the U.S. Equal Employment Opportunity Commission (EEOC) and a similar agency in Puerto Rico about the harassment, one of the company’s owners began to threaten to fire her because she had filed her complaint.  The worker said that these threats occurred on almost a daily basis.  She wound up taking medical leave because of the depression and anxiety these threats caused.  When she returned, the threats continued until she eventually quit.

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In the face of a number of employment discrimination lawsuits against Tesla, the company published an email from CEO Elon Musk that one of the lawsuits referenced. Musk’s email covers a lot but the part that struck us was the following:

“We have had a few cases at Tesla where someone in a less represented group was actually given a job or promoted over more qualified highly represented candidates and then decided to sue Tesla for millions of dollars because they felt they weren’t promoted enough. That is obviously not cool.”

Musk’s message to his company seems to express to his employees that it is “not cool” when an employee files a discrimination lawsuit against the company that Musk believes lacks merit. The example Musk uses in his email sounds like a meritless claim but the line between what is and is not a valid claim of discrimination almost always depends on your perspective. Managers at Tesla who are inclined to retaliate against employees that accuse them of discrimination likely feel emboldened by Musk’s message. If one of these managers punished an employee who complained that the manager discriminated against him, telling the employee it was “not cool” to file such a complaint, the manager could clearly point to Musk’s email and say, “I was just saying the same thing as Mr. Musk.”  This is not the type of message the leader of a company should send to their employees.

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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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