Articles Posted in Retaliation

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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.

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Yesterday, the U.S. District Court for the District of Massachusetts held that a reasonable jury could find that Palmer Fire District Number One, Palmer Water District Number One, and two public officials (collectively “Palmer Fire and Water”) subjected former employee Lisa Koss to a sexually hostile work environment and then retaliated against her when she complained about the sexual harassment she experienced.

Koss alleges that her former supervisor, William Cole, sexually harassed her.  Among other things, he allegedly leered and stared at her in a sexual manner while making comments such as “I wish I had somebody like you at home…baby I could make your head spin.”  He allegedly made other crude sexual comments to her as well, such as when Koss was eating a banana Cole said, with a smirk on his face, “I’ve never seen anybody eat a banana like you before.”  On another occasion, Cole allegedly grabbed Koss’s shirt and tried to look down it to see if she was wearing a bra.  Other instances of sexual harassment occurred in the workplace as well between 2008 and August 2012, when Koss stopped working for Palmer Fire and Water.

Koss complained to Palmer Fire and Water management about Cole’s sexual harassment and she alleges that management retaliated against her because of her complaint.  After Koss filed her sexual harassment complaint, her hours were cut by more than half and she was later fired.

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The Maine Employee Rights Group (MERG) has filed a lawsuit against Huhtamaki, Inc.  The lawsuit alleges that the company discriminated against MERG’s client Barry Kot because he has epilepsy and retaliated against him because he spoke out against the company’s discrimination.

Huhtamaki is a large Finnish corporation with about 14,400 employees and operations all over the world.  It manufactures consumer and specialty packaging.

In August of 2013, Huhtamaki offered Mr. Kot a job as a Machine Operator at its Waterville location.  Mr. Kot was well qualified for this job having worked as a machine operator for another company between 2007 and 2012 and doing other similar jobs as well.

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Yesterday, the U.S. First Circuit Court of Appeals held that a reasonable jury could conclude that Flight Services & Systems, Inc. unlawfully retaliated against a former skycap, Joseph Travers, because he complained about Flight Services’ violation of wage & hour laws. Travers had served as a named representative of a class of skycaps who sued Flight Services for, among other things, failure to pay minimum wage. By all accounts, Travers was the lead named plaintiff in that class action.

In response to the class action, the CEO of Flight Services told Travers’ supervisor to “get rid of” Travers and “talk [Travers] into dropping the lawsuit.” Travers’ supervisor told Travers to be careful because “the company would be coming after him.” Flight Services subsequently did “get rid of” Travers when it fired him in September of 2010.

Despite this directive from the CEO to “get rid of” Travers because of the class action lawsuit Travers spearheaded, the trial court in this case found that no jury could reasonably find that Flight Services fired Travers in retaliation for his opposition to the company’s violations of wage & hour laws. The trial court held that a reasonable juror would have to accept the company’s explanation that it fired Travers because it received a complaint that he solicited a tip from a customer, in violation of company policy. The First Circuit held that the trial court was wrong for a variety of reasons, including the fact that the CEO, even though he was not directly involved in the decision to fire Travers, let his subordinates know that he wanted Travers fired because of the class action lawsuit.

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The U.S. District Court in Massachusetts recently ruled in favor of John H. Ray III, a former associate of the law firm Ropes & Gray, on his retaliation claims against the law firm. After Ray filed a charge against the firm with the U.S. Equal Employment Opportunity Commission (EEOC) alleging race discrimination, partners with the firm refused to provide him with recommendation letters. Ray needed these recommendation letters as he searched for another job because the firm had refused to make him a partner and, as a result, terminated his employment. The EEOC found that Ropes & Gray had not discriminated against Ray on the basis of his race. However, the EEOC did find that the firm retaliated against Ray because he filed a charge of discrimination against it. After the EEOC made its findings, Ropes & Gray provided the legal media website Above the Law with the EEOC’s finding on the discrimination charge–but not the retaliation charge–seemingly for the purpose of depicting Ray as someone who filed a frivolous complaint.

The court held that a jury could reasonably conclude that Ropes & Gray retaliated against Ray when (a) the partners in the firm decided that they would no longer provide Ray with letters of recommendation and (b) the firm provided Above the Law with information on the EEOC’s finding with respect to only the discrimination complaint, and not the retaliation complaint.

This case illustrates how employers will sometimes retaliate against workers who accused them of discrimination even after the workers no longer work for them. Some of the more common types of post-termination retaliation include challenging claims for unemployment compensation and providing false and derogatory information about the worker in response to a request for a reference. If a former employer has retaliated against you for filing a discrimination complaint, you should contact an experienced employment lawyer to learn more about your rights.

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A case in New York City illustrates one reason why it is important to retain an experienced attorney to represent you if you have to file a lawsuit against an employer who has violated your rights. In this case, a former attorney named Alexandra Marchuk sued her former firm, Faruqi & Faruqi, for sexual harassment. Ms. Marchuk claims that a senior partner in the firm, Juan Monteverde, made unwanted sexual advances toward her and also once forcibly had sex with her in the firm’s offices. The firm, in response, sued Ms. Marchuk for defamation. In its lawsuit against Ms. Marchuk, Faruqi & Faruqi claims that she has made false accusations in her lawsuit that have damaged the firm’s reputation.

This is an example of an employer “playing hardball.” If Ms. Marchuk did not have competent counsel to represent her, she could not only lose her case but also be required to pay for damages that Faruqi & Faruqi incurred as a result of her lawsuit. It is unclear how Ms. Marchuk’s attorney will respond to Faruqi & Faruqi’s lawsuit against her but one option is to file another lawsuit against Faruqi & Faruqi for retaliation. It is unlawful for an employer to retaliate against a current or former employee because she has complained of sexual harassment. Faruqi & Faruqi’s lawsuit could be a form of retaliation and, in fact, a retaliation claim in Ms. Marchuk’s case may be easier for her to win than her underlying sexual harassment case.

If your employer has violated your rights, don’t try to go it alone. Contact an experienced employment lawyer to learn more about your rights and your options.

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Yesterday, the First Circuit Court of Appeals ruled against Correctional Medical Services, Inc. (“CMS”) in favor of a former employee who alleged that CMS unlawfully retaliated against her. The former employee, Katherine Kelley, began working as a nurse for CMS at the Maine State Prison in the spring of 2007. In July, 2007, Kelley shattered her pelvis during a horseback riding accident. After she recovered from her shattered pelvis, Kelley was limited in her ability to walk, among other things. Due to these limitations, she requested various accommodations so that she could perform her job at the prison. Her supervisor, Theresa Kesteloot, repeatedly expressed hostility towards Kelley because of the accommodations she requested. Ultimately, Kesteloot fired Kelley after she became frustrated with Kelley’s requests for accommodations.

Under the Americans with Disabilities Act and the Maine Human Rights Act, an employer may not retaliate against an employee who requests an accommodation for a disability. The First Circuit held that a jury could reasonably find that Kesteloot engaged in this type of retaliation when she fired Kelley.

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The former Human Resources Director for Sunbury Medical Associates, in Bangor, claims that the CEO of the firm told her that she should only hire “young women with big boobs.” Afterwards, the CEO allegedly continued to express this desire and make hiring decisions designed to fulfill it. The former HR Director, Barbara Mann, claims that when she complained that the CEO’s hiring preferences constituted age and sex discrimination, Sunbury fired her in retaliation. An investigator for the Maine Human Rights Commission (MHRC) has recommended that the MHRC find reasonable grounds to believe that Sunbury fired Mann in retaliation for her complaints.

According to Mann, the CEO said more than once that he liked it when Mann hired women who were “cute and had big boobs.” The CEO also allegedly hired some waitresses to work for the firm. Mann recalls that one of the waitresses wore a low cut sweater that exposed her cleavage on the day that the CEO introduced her to the office. According to Mann, the CEO called her into his office and told her that he did not like her reaction when he introduced the new employee who was wearing the low cut sweater. Mann claims she just told him that the new employee should be required to wear “appropriate business attire.” Later, Mann says she told the CEO that some of the women in the office wore revealing clothes to get his attention and that it made her uncomfortable when he would look at their breasts.

Shortly after Mann complained about the CEO looking at the breasts of the women wearing revealing clothes in the workplace, Sunbury hired an attorney to conduct an investigation. The attorney issued a report in June 2011 which concluded that Mann’s complaints were baseless. Just three months after the attorney issued his report, Sunbury fired Mann who had worked for the firm for 8 years.

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Today, the U.S. First Circuit Court of Appeals, which has jurisdiction over Maine and other New England states, affirmed a Massachusetts trial court’s decision to hold HEI Hospitality liable for unlawfully retaliating against its former senior vice-president. HEI fired the former senior vice-president, Lawrence Trainor, a few hours after he complained that it was discriminating against him because of his age (he was in his 60’s at the time). Under federal and Massachusetts law, it is not only illegal for an employer to discriminate against an employee because of his age; it is also illegal to retaliate against an employee who complains of age discrimination–even if no age discrimination occurred. That is exactly what the jury found in this case. It found that HEI did not discriminate against Trainor because of his age but that it did retaliate against him for opposing what he thought constituted age discrimination.

The First Circuit’s opinion also contains important holdings on the issues of front pay, attorney fees, and damages for emotional distress. With respect to front pay, the First Circuit held that an award of liquidated damages, designed to punish an employer for its unlawful retaliation, does not foreclose an award of front pay. This is because front pay is designed to compensate the victim of retaliation for wages that he would have earned in the future had the employer not violated his rights–not to punish the employer.

With respect to attorney fees, when a plaintiff in an employment discrimination case prevails at trial, the employer is typically required to pay the plaintiff’s reasonable attorney fees. HEI argued that the fees in this case should be reduced because Trainor only prevailed on his retaliation claim, not his age discrimination claim. The trial court and the First Circuit disagreed with HEI because the age discrimination and retaliation claims were so intertwined that all of the work that Trainor’s attorney performed on the case was necessary for both claims.

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