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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

The Critical Role of Dialogue Between Mentally Disabled Tenants and their Landlords in the Interactive Process

Posted on: November 20th, 2010 by admin No Comments

There is an interesting tension in the law between the rights of disabled tenants to receive additional process when they disturb their neighbors and the rights of neighbors and landlords to maintain an orderly living environment free of interference.  Under federal and state law, landlords are prohibited from discriminating against qualified handicapped tenants because of their mental disability.  Landlords may not evict a disabled tenant if there is a reasonable accommodation – an adjustment or modification in the landlord’s rules, policies, practices, or services – that will enable the tenant to conform to the rules of his or her tenancy.  Landlords also have an obligation to provide a safe dwelling for the residents of their buildings.  These obligations may come into conflict when one tenant’s mental disability threatens other residents’ safety or quiet enjoyment of their rental units.  In this type of situation, where the simplest response seems to be evicting the ‘problem tenant,’ the landlord must strike a careful balance between the rights of the disabled tenant and the rights of the other residents. 

In situations where landlords make a good faith effort to accommodate a mental disability but no reasonable accommodation is possible, the courts typically allow evictions to proceed.  In Andover Hous. Authy. v. Shkolnik, 443 Mass. 300 (2005), one of the tenants had senile dementia, shingles, and depression, and repeatedly engaged in behavior that substantially disturbed neighbors, including loud arguing, yelling, and excessive television or radio volume, often in the middle of the night. Through a grievance process established by the landlord, the landlord and the tenants explored some possible physical modifications to the unit such as sound proofing, but no adjustments seemed to be effective.  The landlord then commenced eviction proceedings against the disabled tenant for excessive noise in violation of the terms of the lease.  The tenants claimed that the landlord had discriminated against them by failing to withdraw or delay the eviction proceedings as a reasonable accommodation for the tenant’s disabilities.  On appeal, the Supreme Judicial Court affirmed the judgment of the housing court allowing the eviction, concluding that the landlord was not required to withdraw the eviction proceedings as a reasonable accommodation because, even if eviction proceedings were withdrawn or delayed, the tenants were not able to comply with the terms of their lease by not disturbing their neighbors.       

On the other hand, the courts have held landlords liable for discrimination in situations where the landlord is aware of a tenant’s mental disability and fails to engage in the interactive process to determine if an accommodation is available which would allow the tenant to comply with the terms of the tenancy prior to commencing eviction proceedings.  For example, like the tenants in Shkolnik, one of the tenants in Boston Housing Landlord v. Bridgewaters, Slip. Op. SJC-10107 (January 7, 2009), 2009 WL 26765 had a mental disability which disturbed other tenants in the building.  While the disabled tenant was transitioning between doctors, the tenant suspended use of his medication for manic depression and assaulted his brother, who was his co-tenant in his rental unit.  During the eviction proceedings brought by the housing landlord, the tenant requested a stay as an accommodation for his mental disability, but the housing court allowed the eviction to proceed.  On appeal, the Supreme Judicial Court held that the landlord discriminated against the tenant on the basis of disability by refusing to withdraw eviction proceedings.   The Court reasoned that the eviction was discriminatory because the landlord was on notice prior to the eviction trial that the tenant was disabled, the tenant had requested a reasonable accommodation, and the landlord failed to make an individualized assessment as to whether an accommodation would allow the tenant to comply with the terms of his lease before concluding that the tenant posed a direct threat to others.

Shkolnik and Bridgewaters are similar in that they both involve tenants with mental disabilities who were subject to eviction proceedings brought by a public housing landlord.  One of those eviction proceedings was found to be lawful while the other was not.  The landlord who engaged in the interactive process in good faith was allowed to proceed with the eviction, while the landlord who failed to consider less drastic alternatives to eviction was not permitted to evict the disabled tenant.   

Unlike physical handicaps, mental disabilities are typically hidden and often undiagnosed.  The landlord’s task of ascertaining a reasonable accommodation for a mental disability only begins when the landlord knows, or should know, that a tenant has a disability.  This is clear when a tenant explains how an accommodation will assist them but is far more complex when a landlord observes behavior that might suggest mental illness.  Prior to pursuing an eviction against a disabled tenant, landlords have an obligation to engage in the interactive process to determine whether an appropriate accommodation will enable the disabled tenant to comply with the lease.  Otherwise, the landlord may be inviting allegations that it wrongfully discriminated against the tenant.