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Archive for the ‘Disability Accommodation’ Category

$1.2M Bennett & Belfort Verdict Receives National Attention

Posted on: February 8th, 2018 by admin

ReservoirThe January 18, 2018, Richard DaPrato v Massachusetts Water Resources Authority $1,235,000 jury verdict has generated national media attention.  Mr. DaPrato sued the MWRA for firing him because he took medical leave for foot surgery and planned future leave.  He sued the MWRA in Suffolk Superior Court based on claims for discrimination and retaliation under the Family Medical Leave Act (FMLA (29 U.S.C. sec. 2601 et seq.)), The Americans with Disabilities Act (ADA) and under the Massachusetts Fair Employment Practices Act, M.G.L. c. 151B.

2013-david-b-photo-150x150Mr. DaPrato was represented in the litigation by Bennett & Belfort partner David E. Belfort  and senior associate Andrew S. McIlvaine .   They co-counseled with attorney Robert S. Mantell of Powers, Jodoin, Margolis & Mantell LLP of Boston.  After 7.5 days of trial and a second day of deliberations the 14 person jury found that Mr. DaPrato was deliberately retaliated against for taking medical leave for surgery and seeking future leave.  The jury’s award is broken down as follows:

$    19,777.00 Lost Back Pay

$  300,000.00  Lost Front Pay

$  200,000.00 Emotional Distress

$  715,385.00  Punitive Damages

$1,235,162.00 Total Jury Award

 

The final judgment has not yet been issued, but is expected to include pre-judgment interest, liquidated damages under the FMLA and attorneys’ fees as permitted by state and federal law.

Bennett & Belfort secures $1,235,000 Jury Verdict v MWRA

Posted on: January 18th, 2018 by admin

2013-david-b-photo-150x150A Suffolk County jury today awarded $1,235,000 to Richard DaPrato against the Massachusetts Water Resources Authority (MWRA). In reaching today’s verdict, the jury concluded that the MWRA deliberately retaliated against Mr. DaPrato  after 11 years of unblemished service by firing him for taking medical leave for surgery, and for requesting future leave.

Mr. DaPrato was represented by David E. Belfort of Bennett & Belfort PC of Cambridge and Robert S. Mantel of Powers, Jodoin, Margolis & Mantell LLP of Boston. The jury strongly rejected the Authority’s argument that Mr. Daprato violated the public trust.  Instead, the jury found that the MWRA, a public entity, violated Mr. DaPrato’s rights to medical leave under both the Family Medical Leave Act and the Massachusetts Fair Employment Practices Act (M.G.L. 151B)

The Jury awarded Mr. Daprato $320,000 in lost pay damages, including his future pension losses, in addition to $200,000 in emotional distress damages.  The Jury issued punitive damages to deter future outrageous conduct by the MWRA in an amount of $715,000.

David Belfort said, “This decision affirms the rights of employees to request and take legally protected medical leave without being subjected to adverse action.”

The final judgment, which has not yet been entered, will also include pre-judgment interest and a petition for Mr. DaPrato’s attorneys’ fees is forthcoming.  (See Jury Verdict Slip Below)

DaPrato Verdict 1.18.18_Page_1DaPrato Verdict 1.18.18_Page_2

 

WHEN IS THE DUTY TO ENGAGE IN THE INTERACTIVE PROCESS TRIGGERED?

Posted on: March 27th, 2017 by admin

In MCAD & Amanda LaPete v. Country Bank for Savings, the Massachusetts Commission Against Discrimination (“MCAD”) awarded Complainant (Amanda LaPete), a woman who was terminated while on approved leave for post-partum depression, back pay plus $50,000.00 for emotional distress stemming from her employer’s disability discrimination.  Docket No. 10-SEM-02769 (Kaplan, J., February 5, 2017).

While employed by Respondent (Country Bank for Savings), Complainant was granted 17 weeks of leave to give birth, which comprised of accrued sick and vacation time, eight weeks of maternity leave (as permitted by M.G.L. c. 149, § 105D), and an additional four weeks pursuant to the federal Family and Medical Leave Act (“FMLA”).

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Complainant suffered post-partum depression while on leave and notified Respondent of her disability.  She consistently provided Respondent with updates during her leave, including a timeframe for her return to work.  Notably, Complainant fully intended to return to work with Respondent, yet her health care provider suggested she take further time off due to persistent depression and anxiety.  Complainant requested an additional four weeks of leave, however, Respondent ignored her request and terminated her employment.

The Massachusetts anti-discrimination statute, M.G.L. c.151B, prohibits discrimination by an employer based on disability.  To prove a case of disability discrimination for failure to provide a reasonable accommodation, complainant must show: (1) that she is “handicapped”; (2) that she is a “qualified handicapped person” capable of performing the essential functions of her job; (3) that she needed a reasonable accommodation to perform her job; (4) that Respondent was aware of her handicap and the need for a reasonable accommodation; (5) that Respondent was aware, or could have been aware, of a means to accommodate her handicap; and (6) that Respondent failed to provide Complainant the reasonable accommodation.  Hall v. Laidlaw Transit, Inc., 25 MDLR 207, 213-214 (2004).

In Country Bank for Savings, the MCAD Hearing Officer ruled that Complainant established sufficient evidence to prove a prima facie case of disability discrimination for failure to provide a reasonable accommodation by demonstrating that she: 1. was handicapped for purposes of the statute; 2. was qualified to perform the essential functions of her job; 3. required a reasonable accommodation; and 4. adequately kept Respondent informed of her need for an accommodation while out on leave.  The MCAD also found that Complainant’s finite request for extended leave was a reasonable accommodation so that she could cope with her post-partum depression.

The MCAD found that Respondent’s termination of Complainant without engaging in an interactive dialogue about the request for extended leave was a violation of the employer’s duty under the statute.  Importantly, the Hearing Officer stressed in her decision that an employer is not shielded from liability simply by allowing an employee leave under the FMLA.  Rather, the employer has an affirmative responsibility to engage in the interactive process when the employee is preparing to return from leave.

Notably, there was no persuasive evidence that Complainant’s request for extended leave would cause the Respondent an undue burden on its operations or finances.

This decision highlights the requirement that employers understand the timing of when their obligation to engage in the interactive process is triggered.  Though a company’s obligation is clear when an employee explicitly requests an accommodation, employers must also engage in the interactive process when they have reason to believe an employee needs a reasonable accommodation absent a specific request citing to the statute.

 

 

Handling Psychiatric Disabilities in the Workplace

Posted on: October 6th, 2016 by admin

2013 David B photo

Bennett & Belfort, partner, David E. Belfort, along with MBA Labor and Employment Section Council Vice-Chair Attorney Meghan H. Slack, co-chaired a September 29, 2016, panel at the Massachusetts Bar Association entitled “Handling Psychiatric Disabilities in the Workplace.”

 The panelists included, Attorney Laurence J. Donoghue of Morgan, Brown & Joy and Attorney Susan Fendell of the Mental Health Legal Advisors Committee.

 The lively discussion covered a wide range of topics impacting employees with psychiatric disabilities and their employers.  The panelists debated wide ranging issues from hiring to separation, including reasonable accommodations, Family Medical Leave Act (FMLA) and violence in the workplace.

Attorney Belfort Chairs Massachusetts Bar Association Legislative Roundtable on Employment related bills with Three Massachusetts State Legislators

Posted on: December 22nd, 2015 by admin

Bennett & Belfort, P.C. partner, David E. Belfort , co-chaired, along with Margaret Paget and John Tocci a November 24, 2015 round table discussion at the  Massachusetts Bar Association entitled “Legislative Updates on Employment Law with State Legislators” .

2013 David B photo

The legislative panelists included Rep. John Scibak, Chairman, Joint Committee on Labor and Workforce Development, Sen. Michael J. Barrett, Vice Chair, Joint Committee on Labor and Workforce  Development and Rep. Kenneth I. Gordon, Vice Chair, Joint Committee on Election Laws and primary sponsor of H1718 .  

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The panelists engaged in a lively discussion in a packed room, providing helpful insights into the legislative process and their views on the likelihood that various pending employment legislation would become law.

David 11.24.15 Panel

The panelists addressed the following bills:

  •  H1769 – The Pregnant Workers Fairness Act
  •  H1718 – An Act Establishing Family and Medical Leave and Temporary Disability Insurance
  •  H1771 – An Act Addressing Workplace Bullying and Harassment
  •  H786  –  the Mental Health Parity Bill, and
  •  H1757 – An Act addressing Non-discrimination Training in the Workplace
  •  S1024 – An Act to establish a living wage for employees of big box retail stores and fast food chains.
  •  Various Minimum Wage initiates.

Attorney Belfort Invited Panelist in MCLE’s Top 25 Employment Cases Seminar

Posted on: March 17th, 2015 by admin

2013 David B photo On February 25, 2015, Bennett & Belfort P.C. partner David E. Belfort served as a panelist for an MCLE seminar entitled “Top 25 Keys Cases Every Employment Litigator & Counselor Must Know.” Joining Attorney Belfort on the panel were his esteemed colleagues Attorneys Andrea C. Kramer (Chair) of Hirsch Roberts Weinstein LLP and Nina J. Kimball of Kimball Brousseau LLP.

The panelists reviewed 25 key cases in Massachusetts employment law and highlighted issues central to effective employment litigation in the Commonwealth, including a detailed discussion of foundational and developing case law in the field.  Attorney Belfort was charged with discussing cases relating to discrimination damages and wage and hour disputes.  There was a rigorous discussion as to a number of other relevant topics, including:  proving liability in discrimination cases; retaliation and whistleblower protections; the continuing violation doctrine and Cat’s Paw Theory; and disability and reasonable accommodation law. 

There was a lively dialogue regarding associational discrimination: an evolving and active area of employment law in which the individual experiencing discrimination is not a member of a protected class, but is related to (or associated with) someone who is.  The panelists also discussed the interesting procedural history and standards of appellate review of these central cases – often involving the interplay between various tribunals such as the Supreme Judicial Court’s review of lower Courts’ decisions or the Trial Court’s review of MCAD (Massachusetts Commission Against Discrimination) decisions.  One theme was the fight among litigants as to what standard of review governed each circumstance.  While in some cases the Courts conduct a “de novo” review (completely new trial on the merits) in others there is only a limited 30A administrative review available.  This 30A process is conducted without a jury, is a far more deferential standard to the underlying Agency decision, and considers only facts already in the record.

Here is a list, by general topic, of the top 25 Massachusetts cases that were covered in the Seminar:

 

Discrimination Law – General

1.         Abramian v. President & Fellows of Harvard College, 432 Mass. 107 (2000)

2.         Lipchitz v. Raytheon Co., 434 Mass. 493 (2001)

3.         College-Town Div. of Interco v. MCAD, 400 Mass. 156 (1987)

4.         Thomas O’Connor Constructors, Inc. v. MCAD, 72 Mass. App. Ct. 549 (2008)

5.         Mole v. Univ. of Massachusetts, 442 Mass. 582 (2004)

6.         King v. City of Boston, 71 Mass. App. Ct. 460 (2008)

7.         GTE Products Corp. v. Stewart, 421 Mass. 22 (1995)

8.         Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611 (1983)

9.         Haddad v. Wal-Mart, 455 Mass. 91 (2009)

10.       Stonehill Coll. v. MCAD, 441 Mass. 549 (2004)

11.       City of Boston v. MCAD, 39 Mass. App. Ct. 234 (1995)

12.       Massachusetts Elec. Co. v. MCAD, 375 Mass. 160 (1978)

13.       Flagg v. AliMed, Inc., 466 Mass. 23 (2013)

 

Disability Accommodation, Interactive Dialogue, and Leaves of Absence

14.       Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443 (2002)

 

Harassment

15.       Muzzy v. Cahillane Motors, Inc., 434 Mass. 409 (2001)

16.       Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001)

 

Wage & Hour Law

17.       Okerman v. VA Software, 69 Mass. App. Ct. 771 (2007)

18.       Boston Police Patrolmen’s Ass’n, Inc. v. City of Boston, 435 Mass. 718 (2002)

19.       Camara v. Attorney General, 458 Mass. 756 (2011)

20.       Smith v. Winter Place LLP, 447 Mass. 363 (2006)

21.       Crocker v. Townsend Oil Co., 464 Mass. 1 (2012)

22.       Depianti v. Jan–Pro Franchising Int’l, Inc., 465 Mass. 607 (2013)

23.       Lipsitt v. Plaud, 466 Mass. 240 (2013)

 

Common Law Claims

24.       Hobson v. McLean Hosp. Corp., 402 Mass. 413 (1988)

25.       Fortune v. National Cash Register Co., 373 Mass. 96 (1977)

 

The webcast of this program can be accessed through the MCLE website (http://www.mcle.org/product/catalog/code/2150165WBA).

MCLE Top 25