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Archive for the ‘Interactive Dialogue’ Category

Supreme Judicial Court Affirms $2 Million Judgment upon jury verdict for Bennett & Belfort client Richard DaPrato against the Massachusetts Water Resources Authority

Posted on: June 6th, 2019 by admin

On June 5, 2019, the Massachusetts Supreme Judicial Court (SJC) affirmed our client’s Suffolk Superior Court jury verdict and judgment in an amount now exceeding $2,000,000 in the case of Richard DaPrato v. Massachusetts Water Resources Authority (MWRA) 482 Mass. 375 (2019) (click on link for SJC slip opinion: DaPrato v MWRA SJC 6.5.19 ).

Mr. DaPrato was represented both at trial and on appeal by David E. Belfort and Andrew S. McIlvaine of Bennett & Belfort, PC, of Cambridge and Robert S. Mantel of Powers, Jodoin, Margolis & Mantell LLP of Boston. Mr. DaPrato sued the MWRA for firing him because he took medical leave for foot surgery and because he planned to take additional leave in the future. Claims in the case included 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.

In the Superior Court case, the jury strongly rejected the MWRA’s argument that Mr. Daprato violated the public trust. Instead, the jury found that the MWRA, a quasi-public entity, engaged in extreme and outrageous misconduct that violated Mr. DaPrato’s rights to medical leave.

On direct appellate review by the SJC, the MWRA sought a reversal of the jury’s decision and a new trial on a myriad of grounds, including that the jury should have been instructed that an honest but unconsciously biased decision to fire a person should excuse an employer from liability for FMLA discrimination. The SJC rejected the appeal, noting that the so-called “good faith or honest belief” FMLA defense relates to avoiding mandatory liquidated damage awards rather than excusing the underlying retaliatory conduct.

The SJC’s resounding rejection of the MWRA’s appeal reinforces the position that an employer cannot automatically presume a disabled employee is violating the terms of their medical leave when they go on vacation during medical leave. At trial, DaPrato’s supervisor acknowledged that he knew DaPrato was on medical leave and testified that had previously approved DaPrato’s vacation to Mexico. DaPrato’s treating physician confirmed that DaPrato was not cleared to return to work during the leave and vacation period. The physician also testified that DaPrato’s vacation activities did not violate his post-surgical restrictions. Furthermore, DaPrato entered his annual vacation in the office calendar system, received permission to park his car at the MWRA facility during the vacation, and attended a staff meeting where he announced that he was leaving on vacation to senior managers. Nonetheless, the MWRA did not seek to review his medical records, declined to conduct an independent medical examination, and ignored the FMLA paperwork that DaPrato submitted. Perhaps most shocking, the MWRA brazenly claimed that DaPrato denied going on vacation altogether when confronted. The SJC affirmed the punitive damages award in full, commenting that it underscored the jury’s conclusion that the MWRA acted in an extreme and outrageous manner. In allowing this punitive damages award to stand, the Court cited to DaPrato’s long tenure without any discipline, the punitive award’s reasonable relationship to the compensatory damages, and the litany of pretext evidence in the record.

The SJC’s decision affirms the trial judgment issued to Mr. DaPrato after his jury trial in the following specific amounts $19,777 in back pay, $188,666 in front pay, $200,000 in emotional distress, $715,385 in punitive damages, $208,443 in liquidated damages, and $605,690 in pre-appeal attorneys’ fees. Including statutory interest of 12%, the aggregate final judgment is expected to significantly exceed $2,000,000.  See Law 360 article: Law 360 6.5.19

Congratulations to our client, Rick DaPrato, and to the entire trial team at Bennett & Belfort PC.

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

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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 Moderates Labor & Employment Law Update Panel at MBA’s 36th Annual Spring Conference

Posted on: April 15th, 2015 by admin

MBAOn Tuesday, April 14, 2015, Bennett & Belfort partner, David E. Belfort moderated the Labor and Employment Update Panel at the Massachusetts Bar Association’s 36th Annual Labor & Employment Law Spring Conference at Suffolk University Law School.  The Panelists addressed a variety of new developments, both legislative and case-related, in both labor and employment law over the last year.

Seasoned labor attorneys Ira Sills and James Pender led the panel in addressing, among other issues, the NLRB’s newly announced expedited election rules and the expanding prohibitions limiting employee communications as to the terms and conditions of employment under the NLRA – even in the non-unionized workplace.  Experienced employment law panelists, Anthony Califano and Nina Kimball, addressed a variety of major US Supreme Court decisions that came down over the last year, including relative to pregnancy accommodations.  On the very active state level, the panel highlighted new Massachusetts legislation pertaining to gender neutral pregnancy leave, paid sick leave, protections for victims of domestic violence and the new Domestic Workers’ Bill of Rights (a/k/a “Nanny law”).

36th Annual

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