TOOMEY LEGAL

Massachusetts Business Law and Employment Law Blog

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Tam Vuong and his staffing company Labor Solutions, Inc. have pleaded guilty to sixty-six counts of violating state hour and wage laws, according to the office of the state Attorney General.  Vuong is to pay $500,000 in restitution and to serve five years probation for failing to pay the state minimum wage to hundreds of workers between 2007 and 2009. Vuong's company provided temporary employees to light industrial firms in the Worcester area, operating mainly on a cash basis;  many of its employees did not receive pay stubs.  These workers received about $6.25 to $6.50 at a point when the mandatory minimum hourly wage was $7.50.  In addition to willful failure to pay minimum wage, specific charges against Vuong included willful failure to pay overtime, willful failure to provide a pay stub, worker's compensation insurance fraud, and unemployment insurance fraud.

Posted August 23, 2010 by Travis Wade of Toomey Legal.

Teles Construction and its president, Julio Teles Fernandes, have reached a settlement with Attorney General Martha Coakley whereby they will pay approximately $44,000 in restitution to forty-four employees and a $15,000 penalty to the Commonwealth for wage and hour law violations.  Additionally, the company will be barred for three months from doing business related to public works projects in Massachusetts.  Teles Construction allegedly misclassified several employees as independent contractors and failed to pay overtime in some cases.

Posted August 19, 2010 by Travis Wade of Toomey Legal.

Augis Corp. appealed the finding of a Massachusetts Commission Against Discrimination hearing officer, claiming that the MCAD's exclusion order prohibiting calling certain witnesses to testify violated its right to due process, and secondly that the MCAD awarded damages for a form of discrimination with which Augis had not been charged.  The court found that because the exclusion order was a sanction against Augis Corp for failing to act to correct the problem it created when its attorney's illness prevented the complainant McCreath's attorney from meeting a discovery deadline that she would otherwise have met, the hearing officer was in the right to conclude that Augis had acted in bad faith and issue the order in question.  As to the second claim, Augis stated that the complainant charged it with wrongful termination, whereas the MCAD awarded damages for the creation of a hostile work environment.  The record was found to show that the mistreatment McCreath suffered on the basis of race was in fact central to his claim.  This case is Augis Corp. v. Massachusetts Commission Against Discrimination, et al.

Posted October 19, 2009 by Travis Wade of Toomey Legal.

An Australian resident named Kevin Hadfield who was employed by defendant Chesterton as a sales manager in sub-Saharan Africa brought suit under the Massachusetts Wage Act claiming that he was owed for unused accrued vacation time.  Hadfield claimed that the violation of the Wage Act occurred in Massachusetts, i.e. that the employer who did not pay him was based there, and that his employment agreement included a choice of law provision requiring the application of Massachusetts law to his claims.  The court found that it is the location of the plaintiff's work and not the site where managerial decisions occur that determines where the relevant conduct has occurred.  As to Hadfield's second argument, the court found that courts of other jurisdictions had previously determined that choice of law provisions do not defeat the presumption against extraterritoriality in wage law claims.  Being that Hadfield failed to convince the court that Massachusetts law applied to his claim, it was dismissed.  This case is Hadfield v. A.W. Chesterton Co., et al.

Posted September 28, 2009 by Travis Wade of Toomey Legal.

A respondent employer recently appealed a decision to award a complainant $122,000 in back pay and $50,000 in emotional distress damages.  Upon review of the record and the respondent's petition, no material errors of fact or law were found, and there was ample evidence to substantiate the findings of the Hearing Officer;  accordingly the Massachusetts Commission Against Discrimination affirmed the Hearing Officer's decision in its entirety and denied the appeal.  The complainant received attorney's fees in the amount of $22,137.50 as well as $542.51 in costs.  This case is McKenna v. Boston Housing Authority.

Posted February 11, 2009 by Travis Wade of Toomey Legal.

Where a judge saw "no reasonable expectation" of the plaintiff former teacher's proving her sex discrimination claim, the defendant school officials' request for summary judgment was granted.  The plaintiff, Priscilla Gimas, had also brought a wrongful termination claim which also received summary judgment, as she had already followed the prescribed arbitration process for performance-based dismissals of teachers under G.L.c. 71 §42; she was seeking reconsideration based on the fact that she did not bring it pursuant to c. 71 §42 but under common-law tort.  The court found that she did not have any such option and declined to reconsider.  This case is Gimas v. Bialy et al.

Posted February 10, 2009 by Travis Wade of Toomey Legal.

The Plaintiff, a former vice president for Siemens Business Services, sued for contract claims, as well as promises in connection with severance and bonuses.  The Defendant contended that the Plaintiff quit five weeks before the end of the fiscal year and presented the Plaintiff’s deposition video to substantiate their claims. The Plaintiff countered by presenting depositions, including one from his direct supervisor.  The Plaintiff stated that it was common practice and knowledge at the company that vice presidents would receive a standard six-month severance package and that leaving the company voluntary before the fiscal year would make him ineligible for an end of the year bonus. However, the Plaintiff’s last day of work was roughly one month before the end of the fiscal year.  Plaintiff argued that he did not voluntarily resign, but instead was terminated, and presented evidence pointing against voluntarily terminating his employment. The jury ultimately returned a verdict in favor of the Plaintiff in the amount of $175,120.00, which was slightly more than one year’s salary.  This case is Gerah v. Siemens Business Services, Inc.

Posted February, 5 2009 by Christopher A. Leverone of Toomey Legal.

Recently, Belmont State Representative William Brownsberger filed proposed legislation that would ban all non-compete agreements in the Bay State, potentially making Massachusetts only the second state in the United States (the other being California) to enact such a law. The law, if passed, would void all employment agreements that place conditions on an individual’s ability to obtain any type of work after a employment relationship has ceased.  Representative Brownsberger stated that his reasoning for proposing the ban was to shield average laborers from the effects of the agreements as they often do not possess important trade secrets but are nevertheless prevented by the agreements from seeking other positions within their industries, which he believes is against public policy. Also, Representative Brownsberger is concerned that Massachusetts would be a less attractive region for talented entrepreneurs and other innovators to work in if the agreements were kept in place.  The legislation is currently pending review in the Massachusetts House of Representatives.

Posted January, 27 2009 by Christopher A. Leverone of Toomey Legal.

In a recent SJC decision, the Court ruled that a trash company working on a municipal contract violated the law by calculating overtime wages using a regular hourly rate, which was less than the prevailing wage that employees must be paid. The Defendant, Waste Management, Inc., argued that they did not violate the overtime compensation statute, G.L. c. 151 § 1A, because their workers were paid at an hourly rate that was not less than the prevailing wage after deductions for all hours worked, which included overtime hours. The court stated that “Waste Management obviates the need to hire additional employees by using the ‘influence’ of overtime compensation on an employee’s gross earnings to produce an average hourly wage equal or nearly equal to the prevailing wage.“ The Court went on to say that Waste Management’s complicated payroll formula “subverts the purpose of [the law] by enabling [the company] to offer its services for less than what is customarily charged by its competitors for nonpublic works contracts.” Plaintiff’s counsel argued that overtime in these public work scenarios must be paid based solely on the prevailing minimum rate, while Defendant’s counsel disagreed, stating that Massachusetts law did not require employers to pay overtime using the prevailing wage rate and that state and federal law normally included overtime pay unless otherwise clearly excluded. Justice Spina concluded that Waste Management’s use of the base pay rate below the prevailing rate frustrated the purpose of the overtime compensation statute and ruling otherwise would ignore the statutory intent of the law advertised by the Division of Occupational Safety. This case is Mullally, et al. v. Waste Management of Massachusetts, Inc.

Posted December 30, 2008 by Christopher A. Leverone of Toomey Legal.

In a recent MCAD decision, an employer was found liable for sex discrimination after terminating a pregnant woman after she was denied maternity leave. The employer was ordered to cease and desist from any further discriminatory acts and was required to pay the aggrieved employee $25,000.00 in emotional distress damages, in addition to statutory interest.  This case is McFail, et al. v. Sylvania Lighting Services.

Posted December 9, 2008 by Christopher A. Leverone of Toomey Legal.

In a recent Massachusetts Supreme Judicial Court case, the Court vacated a Superior Court’s dismissal of a sex discrimination claim brought pursuant to the Massachusetts Equal Rights Act (“MERA”), determining that “an employee may assert a sex discrimination claim under MERA where an employer is not within the ambit of G.L. c. 151B” which is contrary years of lower court rulings.  In the majority decision, Justice Roderick L. Ireland reasoned that “[T]here is nothing in the plain language of [MERA] that excludes small employers from its application,” and “Moreover, there is nothing in the plain language of [151B] stating that, where it does not apply, aggravated parties are excluded from using other statutes to vindicate their right to be free from employment discrimination.” In the dissenting opinion, Justice Robert J. Cordy countered that if the Massachusetts Legislature intended for the language of 151B to mean what the majority claimed, it would have amended the statute accordingly stating, “[T]he court rejects (without a mention) more than fifteen years of thoughtful decision made by judges in the Superior Court who have regularly dealt with the question and concluded otherwise.” Justice Cordy continued by writing, “While a comprehensive search for and review of such decisions would be difficult to undertake, the only decisions I have discovered that are consistent with this court’s view were authored in 1993 and 1996 by the judge in this case, who has since conformed his with what appears to be the prevailing if not a uniform view to the contrary.”  The court in the case is sending a clear message to small business employers that they must make sure they are providing workers a workplace that is free from discrimination. This case is Thurdin v. SEI Boston, LLC.

Posted November 28, 2008 by Christopher A. Leverone of Toomey Legal.

A verdict was found in favor of a plaintiff police officer who claimed she was sexually harassed by fellow police officers on a union-sponsored trip. The court also found that the union engaged in a campaign of retaliation following a police investigation and subsequent discipline of a number of male officers. The case was heard in September-October of 2007 and the jury awarded the plaintiff $2,232,500 and was later upheld by the 1_st U.S. Circuit Court of Appeals in September 2007. This case is Dixon v. International Brotherhood of Police Officers/National Association of Government Employees, et al.

Posted October 19, 2008 by Christopher A. Leverone of Toomey Legal.

The Appeals Court recently ruled that a former employee could bring a hostile work environment claim against his former employer in Superior Court even though he did not mention the race-bias claim in his complaint to MCAD. The defendant employer argued that since the former employee did not specifically plead the claim with MCAD, he failed to exhaust administrative remedies and should have been barred from Superior Court.  However Appeals Court Judge William J. Meade disagreed stating, “[T]he underlying facts regarding [the plaintiff’s] hostile work environment claim were set forth with sufficient specificity such that the MCAD may reasonably have been expected to uncover the existence of additional facts giving rise to potential liability on that theory.” The court went on to say that although the words ‘hostile work environment’ did not appear in the complaint, “the plaintiff alleged specific underlying facts describing a work environment in which he was persistently subjected to racially abusive comments and other conduct throughout the course of his employment that implicitly were severe and pervasive enough to interfere with the performance of his work. No more was required.” This case is Windross v. Village Automotive Group, Inc.

Posted October 14, 2008 by Christopher A. Leverone of Toomey Legal.

On July 13, 2008, a new law went in to effect which makes violations of Massachusetts wage and hour laws, including unintentional violations, subject to mandatory tremble (triple) damage awards with no defenses available.  The law, titled “An Act to Clarify the Law Protecting Employee Compensation”, is a complete reverse from a 2005 SJC case, which held that tremble damages would only be awarded to punish willful conduct, thus making the damages punitive in nature.  However, the law is unsettled as to whether it has a retroactive effect and whether all wage and hour violations (filed or otherwise) would be subject to mandatory treble damages.

Posted September 22, 2008 by Christopher A. Leverone of Toomey Legal.

During a recent event, MCAD Commissioner Martin B. Ebel announced that his office plans to prosecute MMLA cases in a gender-neutral fashion, meaning that the MMLA will apply to both men and women and that now men will be allowed to apply for MMLA maternity leave benefits. The surprising and interesting decision is a complete turnaround from previous MCAD interpretations of the statute which explicitly states that only female employees be given eight weeks of unpaid leave when they give birth or adopt a child.

Posted September 3, 2008 by Christopher A. Leverone of Toomey Legal.

In a recent Massachusetts Commission Against Discrimination decision, it was found that a complainant’s charge of discrimination based on national origin and retaliation lacked probable cause and was dismissed for lack of proof. The Commission noted that the complainant was able to establish that she was a member of a protected class, as she was Puerto Rican, but was unable to establish that she was adequately performing her job and that she was subjected to either a hostile work environment or subjected to disparate treatment by virtue of the fact that she was Puerto Rican.  The Commission went on to mention that the plaintiff’s testimony was contradictory, inconsistent, vague and not credible and that there was no evidence to support her assertion that she reported the discrimination to anyone within the company or that she was terminated. The complainant’s charge of discrimination stemmed from her allegations that she was subjected to a hostile work environment and as a result, her hours were cut because she was Puerto Rican, as opposed to the respondent’s assertion that she underperformed her employment duties. The case is MCAD, et al. v. Healthcare Services Group, Inc.

Posted August 27, 2008 by Christopher A. Leverone of Toomey Legal.

A Suffolk County Superior Court judge recently granted defendant employer summary judgment in a suit where the defendants were charged with racial discrimination, failure to promote and wrongful termination, as the court found that the discharge of the employee was legitimate.  The court based its decision on the fact that the plaintiff had not provided evidence as to why he was qualified for the promotion and did not allege that he was treated differently than other applicants.  Moreover, the defendant employer provided evidence that the plaintiff was uncooperative, generally upset with his employer, failed to work constructively with his fellow co-workers and failed to resolve his employment issues by failing to attend meetings and failure to accept his superior’s criticism.  The case is Broomes v. Blue Cross Blue Shield of Massachusetts, et al.

 Posted August 21, 2008 by Christopher A. Leverone of Toomey Legal.

In a recent MCAD decision, the City of Fall River was ordered to pay counsel fees and costs totaling $23,379.31 in conjunction with a sexual harassment and retaliation claim, which the city appealed.  The city’s appeal was denied because it was found that the hearing officer did not make erroneous findings as to when the respondent became aware of the sexual harassment and as to whether a fire chief retaliated against the complainant.  Further, the damages awarded, including emotional distress damages, were justified.  This case is MCAD, et al. v. City of Fall River.

Posted August 11, 2008 by Christopher A. Leverone of Toomey Legal.

A Massachusetts Commission Against Discrimination hearing officer recently awarded a woman $200,000 (plus statutory interest) in emotional distress damages in a sexual harassment lawsuit.  The hearing officer found that there was evidence that indicated the female employee was subjected to persistent and severe sexual harassment resulting in serious psychological damage.  As an additional result, the employer was ordered to conduct basic annual training sessions concerning sexual harassment for all employees, including supervisors. The case is Abel v. Keissling Transit Inc., et al.

Posted August 6, 2008 by Christopher A. Leverone of Toomey Legal.

In a recent Massachusetts Commission Against Discrimination decision, a woman terminated from her employment because she was pregnant was awarded back pay plus $35,000 in emotional distress damages.  The MCAD hearing officer concluded that the respondents could not prove that they terminated the woman’s employment for any reason other than her being pregnant and that the “respondents’ actions were motivated primarily by unlawful discriminatory animus and not by lawful considerations as it contends.” As a result, one of the respondents was found individually liable for unlawful discrimination under c. 151B on the basis of gender, as he was the ultimate decision maker with respect to terminating the woman’s employment.  This case is MCAD, et al. v. Pandiscio, et al.

Posted July 17, 2008 by Christopher A. Leverone of Toomey Legal.

The 1_st U.S Circuit Court of Appeals affirmed a lower court’s determination that a defendant employer should be granted summary judgment on a plaintiff employee’s claims of disability discrimination, failure to accommodate and hostile work environment. The court reasoned that the plaintiff failed to present direct evidence of discrimination based on her emotional disability and that she failed to establish that she was a qualified individual able to perform the essential functions of her job, either with or without a reasonable accommodation. The court concluded that any workplace hostility plaintiff was subjected to was based solely on her irregular attendance record and her inability to perform the required duties of her position and not on any disability, perceived or otherwise. The case is Rios-Jimenez v. Secretary of Veterans Affairs, et al.

Posted June 18, 2008 by Christopher A. Leverone of Toomey Legal.

Woman Who Refused Sex With Boss Awarded Nearly $1.4 Million

A Hampden Superior Court jury recently awarded a woman nearly $1.4 million in a verdict after they found that she was a victim of sexual harassment and retaliation by being terminated from her employment after she brought the harassment to her company’s attention.  The jury awarded the woman damages which covered retaliation, back pay, future pay and emotional distress.  The jury also found the woman’s supervisor personally liable for sexual harassment and retaliation and ordered him to pay $50,000.  The verdict stemmed from acts, including touching and suggestive comments, as well as the population of a list where the plaintiff was selected for layoff, but could keep her job if she slept with her supervisor.  The plaintiff refused, reported the harassment and was subsequently laid off.  The case is Barszcz v. Smurfit-Stone, et al.

Posted June 5, 2008 by Christopher A. Leverone of Toomey Legal.

NESC Noncompete Agreement Upheld In Superior Court

A Middlesex Superior Court judge found that a former employee of the National Engineering Services Corp. ("NESC") violated a non-competition provision of his employment contract by working for a co-defendant in competition with NESC within 50 miles of NESC's operations.  The judge ordered a preliminary injunction preventing the former employee from working for the competitor for the next six months.  The judge found that, even if the defendant’s employment with the co-defendant competitor was restricted to hiring and training recruiters, performing such services would be considered competition with NESC.  However, the record showed that the defendant’s employment for the co-defendant was not limited to hiring and training, but included contacting, soliciting and servicing accounts and customers with which NESC had done business during the eighteen months before the defendant left NESC.  As stated by the judge, “The court finds that the irreparable harm that NESC is likely to suffer by Grogan’s competitive activities in violation of the non-compete provisions of the employment agreement outweighs the risk of harm that Grogan will suffer if enjoined from such activities for a period of six months from the date of this order. …” The case is National Engineering Services Corp. v. Grogan, et al.

Posted May 13, 2008 by Walter J. Toomey, Esq. of Toomey Legal.

Staring May Create A Hostile Work Environment In Sexual Harassment Cases

A secretary in Grafton, Massachusetts was recently successful in an appeal of summary judgment granted in the federal district court in her sexual harassment case. The secretary alleged that she suffered from a hostile work environment created, in part, by her supervisor staring at her breasts. Her employer argued that the staring was not severe and pervasive, as required in a valid sexual harassment claim, and not of a sexual nature. The 1st Circuit Court of Appeals disagreed, stating, "[W]e accept, as a general proposition, that not every such claim premised on staring or leering in the workplace automatically presents a questions for the jury. [...] We cannot reasonably accept, however, that a man's repeated staring at a woman's breasts is to be ordinarily understood as anything other than sexual." The Court then remanded the case for trial. The case was Billings v. Town of Grafton, et al..

Posted March 3, 2008 by Walter J. Toomey, Esq. of Toomey Legal.

Student-on-Student Sexual Harassment Recourse Limited to Title IX

Parents who brought a sexual harassment claim against a school district alleging insufficient protection of their child from peer-to-peer sexual harassment were denied the ability to pursue recovery under Section 1983. The 1st Circuit Court of Appeals decided that Title IX of the Civil Rights Act precluded such a recovery. The case was Fitzgerald, et al. v. Barnstable School Committee, et al.. Plaintiffs' counsel criticized the ruling as a cutback on civil rights, as the standards of oversight required under Section 1983 are generally considered more strict than those required under the Title IX framework. Plaintiff's counsel also argued that Title IX was insufficient as a remedy because it did not afford a private action against individual school officials, but the court disagreed.

Posted October 17, 2007 by Walter J. Toomey, Esq. of Toomey Legal.

Noncompete Agreements in the Divorce Context

Superior Court Judge Fremont-Smith recently decided an interesting noncompete agreement case arising from a covenant not to compete formed as part of a separation agreement in a divorce. The ex-husband operated a funeral home in Wilmington and the ex-wife worked there, though not as an employee. As part of the separation agreement, the wife signed a noncompete agreement preventing her from competing in the funeral home business in Wilmington for as long as the ex-husband ran his business there. The ex-wife was represented by counsel when she signed the noncompete agreement. The Judge considered the noncompete agreement to be more akin to a noncompete used in the sale of a business than a noncompete in the employment context, and therefore applied a more liberal analysis in determining its enforceability. The Judge held that the ex-wife had developed significant good will with industry contacts, and that good will was a protectible business interest. The Judge also noted that the ex-husband had bargained for the noncompete agreement by giving up the marital home, assuming its mortgage, and making support payments to the ex-wife. In light of these facts, the Judge enforced the noncompete agreement and prevented the ex-wife from competing in Wilmington.

Posted August 23, 2007 by Walter J. Toomey, Esq. of Toomey Legal.

93A Claims May Be Viable Where Misappropriation Claims Fail

Judge Stahl of the 1st Circuit Court of Appeals recently upheld the decision in Incase, Inc. v. Timex Corp., where it was decided that 93A may offer relief to a plaintiff where a more traditional misappropriation claim fails. In that case, the plaintiff reportedly failed to take sufficient steps to establish and protect the secrecy of certain information it considered to be a confidential trade secret. The plaintiff was therefore unable to support its claim for misappropriation of trade secrets, but was able to support its claim against the defendant for violation of 93A. The defendant's conduct in the case was considered "sufficiently unscrupulous to sustain a Chapter 93A claim", but no punitive damages were awarded because there was "no evidence presented of coercion, fraud, abusive litigation, or similar behavior by [the defendant]." This decision serves to remind employees, independent contractors and competitors alike that misappropriation may still be punished even where the strict legal standards for trade secret protection cannot be met.

Posted June 11, 2007 by Walter J. Toomey, Esq. of Toomey Legal.

Town Settles Sexual Harassment Lawsuit for $50,000

Selectmen in the town of Holland, Massachusetts have recently released details pertaining to the settlement of a sexual harassment lawsuit filed by a former part-time police officer against the town. The Plaintiff reportedly accused the Police Chief, Kevin P. Gleason of sexual harassment. The lawsuit alleged that the Plaintiff was terminated for no reason after Gleason made unwanted sexual advances, while the town alleged that she had been terminated for not reporting to duty. The town stated that the decision to settle the case for $50,000 was a business decision made by its insurance company, based on economic considerations.

Posted May 29, 2007 by Walter J. Toomey, Esq. of Toomey Legal.

Companies Rethinking Trade Secret Protection In Wake Of Coke Scandal

After former Coca-Cola secretary Joya Williams was convicted of conspiring to steal trade secrets from the world's largest beverage maker, other companies have begun to review their own internal security with an eye on trade secret protection. Ms. Williams was sentenced to serve 8 years in federal prison by Judge J. Owen Forrester, who stated, "This is the kind of offense that cannot be tolerated in our society." "I can't think of another case in 25 years that there's been so much obstruction of justice." The government claimed Williams stole confidential documents and samples of products that hadn't been launched by Coca-Cola and gave them to others as part of a conspiracy to sell the items to Pepsi. The conspiracy was foiled after Pepsi warned Coca-Cola that it had received a letter in May 2006 offering Coca-Cola trade secrets to the "highest bidder." While the story ended well for Coke, many smaller companies don't have the resources and influence required to attract such a potent governmental response. These companies must rely primarily on their own internal trade secret programs and enforce their employment agreements and seek unfair competition remedies civilly when breaches occur. Fortunately for most small companies, these measures are sufficient.

Posted May 23, 2007 by Walter J. Toomey, Esq. of Toomey Legal.

Skycaps Challenge Service Charge As Tip Law Violation

In 2005, American Airlines instituted a service charge of $2 per bag on bags handled at the curbside. American's skycaps collect, but American retains, the resulting revenues. Few passengers have tipped the skycaps in addition to paying the new fee, and the skycaps have since filed a lawsuit accusing American of diverting tip revenue to itself in violation of the Massachusetts Tips Law, Mass. Gen. Laws ch. 149, Sect. 152A. American filed a motion to dismiss the complaint, arguing that the skycaps' claims are preempted by the Airline Deregulation Act of 1978, which would prevent the application of Massachusetts law. In deciding that Massachusetts law does apply to the skycaps' claims, the court considered that, if consumers knew that tips were for employers, then presumably consumers would not give tips in the first instance. In this way, a law that states that voluntary tips are for employees has only a very attenuated relationship, if at all, to airline prices, routes, or services. Accordingly, the court held that the Airline Deregulation Act does not expressly preempt the skycaps' claim under the Massachusetts Tips Law. The case is DiFiore, et al. v. American Airlines, Inc.

Posted May 22, 2007 by Walter J. Toomey, Esq. of Toomey Legal.

Flight Attendant Awarded $510K in Sexual Harassment Lawsuit

A former Hawaiian Airlines flight attendant has reportedly been awarded $510,000 by a Circuit Court jury in a sexual harassment case involving a pilot and the airline. The former attendant reported to her supervisors that the pilot grabbed her buttock while passengers were leaving the plane after an interisland flight. According to the woman's attorneys, her supervisors didn't take any action to protect her. The attendant claimed the company failed to take her complaint seriously when she reported that the pilot had sexually harassed her and that he was not adequately reprimanded for his actions. The lawsuit also claimed that the pilot repeatedly harassed her and tried to rub her back. The jury awarded $120,000 in compensatory damages to the flight attendant, $250,000 in punitive damages against Hawaiian Airlines and $140,000 in punitive damages against the pilot. The company and pilot would also cover attorneys' fees for the former flight attendant.

Posted May 13, 2007 by Walter J. Toomey, Esq. of Toomey Legal.

Judge Confirms 93A Does Not Apply in Employee Noncompete Cases

The recent Middlesex Superior Court ruling in Coworx Staffing Services LLC v. Coleman, et al. once again confirmed that Massachusetts General Law Chapter 93A does not apply to the employment relationship. The plaintiff former employer in that case brought suit against its former employee's new employer, claiming that the new employer violated Chapter 93A when it induced the employee to breach her noncompete agreement. Judge MacLeod-Mancuso granted a motion for summary judgment filed by the defendant because the conduct that the plaintiff claimed was a violation of 93A arose from the noncompete agreement as part of the employment relationship, and therefore 93A did not apply.

Posted April 21, 2007 by Walter J. Toomey, Esq. of Toomey Legal.

Sexual Harassment Victim Awarded $2.8 Million

According to the Fall River Herald News, Kim Pelletier, a former truck driver for the Somerset Highway Department, was recently awarded $2.8 million in her suit against the town. Pelletier filed her sexual harassment lawsuit back in 2003, claiming that she had been sexually harassed for over a decade at work. Pelletier claimed that she had filed complaints internally, but the harassment continued until she stopped working for the town. The $2.8 million was awarded after a jury trial.

Posted April 18, 2007 by Walter J. Toomey, Esq. of Toomey Legal.

New Judges Named to the Business Litigation Session

Superior Court Chief Justice Barbara J. Rouse recently announced that Judge Ralph D. Gants will replace Judge Allan van Gestel in the Business Litigation Session when he officially retires in January. Judge Gants will preside over the first session. He will be joined by judges Margot Botsford and Judith Fabricant in the second session.

Posted March 29, 2007 by Walter J. Toomey, Esq. of Toomey Legal.

More Men Are Reporting Sexual Harassment At Work

Defying assumptions about sexual harassment in the workplace, a record percentage of men reported being harassed by male colleagues last year, according to the Equal Employment Opportunity Commission. Cases filed by men made up 15.4 percent of the 12,025 sexual harassment charges in fiscal year 2006, compared to 14.3 percent in 2005 and 11.6 percent a decade ago, according to the EEOC.

Read more in Robert DiGiacomo's article for Yahoo! HotJobs.

Posted March 12, 2007 by Walter J. Toomey, Esq. of Toomey Legal.

New Massachusetts Commission Against Discrimination Procedures Allow Pre-Determination Discovery

The Commissioners of the Massachusetts Commission Against Discrimination recently re-evaluated and modified their procedures for conducting investigations in discrimination claims in Massachusetts.  The new Standing Order requires that each recommendation for probable cause or lack of probable cause be reviewed by an agency attorney.  The Commission will also try to involve an agency attorney at the inception of each case to ensure the investigation complies with law and policy.  The Investigating Commissioner will determine, on a case-by-case basis, whether to issue pre-determination discovery orders.  The Investigating Commissioner will consider requests by the parties, requests by MCAD staff, and the fairness of granting discovery.  When a discovery order issues, the parties will have 90 days to conduct their pre-determination discovery and 30 days after the close of the discovery period to submit written memoranda of fact and law.  The Commission may conduct additional discovery in its own name at any time after accepting the complaint, and the parties may request that the Commission obtain certain information through its discovery requests..  The complainant is now required to send a copy of her rebuttal to the respondent.  The Commission is also now limiting written requests for extensions of time to a maximum of 25 days, unless grave circumstances require additional extensions.

This new Standing Order revives claimants' ability to conduct discovery before a probable cause determination is made. That ability had been taken away by procedural changes occurring during the Romney administration. This change back to allowing pre-determination discovery will likely cause mixed reactions. Generally speaking, the change is good news for claimants and bad news for respondents.

Posted March 1, 2007 by Walter J. Toomey, Esq. of Toomey Legal.