Massachusetts Employment Law Letter

Massachusetts employee’s retaliation claim sticks

In a second Public Hearing, the Massachusetts Commission Against Discrimination (MCAD) considered a case where the employee’s claim of discrimination was not viable, but her retaliation claim survived. Like federal employment discrimination laws, the Massachusetts antidiscrimination statute, Chapter 151B, prohibits Massachusetts employers from retaliating against employees for complaining about or opposing discrimination or harassment in the workplace.

Increasingly, employees (and their attorneys) are using the prohibition against retaliation as a sword instead of a shield, making false or frivolous complaints of discrimination to cloak themselves in the protection of the antiretaliation statute in the hopes of preventing anticipated – and oftentimes justified – discipline or termination. This decision by a hearing officer at a public hearing illustrates some of the pitfalls employers should try to avoid when facing this situation.

Running for cover?

In February 2008, Veronica Vargas, who is of Puerto Rican decent and speaks Spanish, was hired by Saybolt LP as an administrative assistant in its Chelsea office. In August 2008, Jeffrey Seeley became Vargas’ manager.

From the start, Vargas and Seeley did not work well together. Seeley was immediately dissatisfied with the poor quality of her work product, and quickly became frustrated by her apparent inability to follow simple instructions. According to Vargas, Seeley dismissed her requests for assistance and was gruff, unprofessional, and generally difficult to communicate with.

On October 14, 2008, Vargas sent an e-mail to Suzanne Lang, an HR manager, requesting Saybolt’s ethics hotline number. In phone and email communications with Lang. Vargas did not report any derogatory comments or other discriminatory activity by Seeley in phone and e-mail communications with Lang the next day. Instead, she sought guidance on improving their working relationship and communication. However, Vargas twice expressed concern that she would be retaliated against for her complaints.

On October 30, 2008, Vargas made a discrimination complaint against Seeley. Specifically, she told Lang that (1) Seeley referred to her as “Spanish girl” and suggested she resign, (2) she felt unsafe and uncomfortable being in the same office with him, and (3) his conduct constituted discrimination and harassment. The next day, Vargas filed an MCAD discrimination charge against Saybolt and Seeley.

‘Investigation’ followed by termination

In response to Vargas’ complaint, Lang immediately confronted Seeley, who denied the allegations and expressed frustration with Vargas’ performance. Lang tried to schedule a teleconference with Vargas and Seeley, but the teleconference never happened because Vargas did not report to work on the appointed dates. In fact, Vargas started missing work a lot, which she attributed to the tense work environment and lack of respect from Seeley. She insisted that she was not resigning, and she accused Seeley of threatening to retaliate against her and disclosed that she had retained counsel. At that point, Lang got her supervisor, John Barbarise, and the company’s legal separtment involved.

On November 12, 2008, Barbarise sent Vargas an e-mail explaining that Saybolt needed her and Seeley to work together in a respectful, professional, and courteous manner. Barbarise notified Vargas that he was placing her and Seeley on paid leave until November 20, when they would be interviewed separately by Mark Elvig Saybolt’s in-house counsel.

The next day, Barbarise issued Vargas a written warning and accused her of violating Saybolt policy and being insubordinate and uncooperative. (Apparently, Vargas had allowed non-employees to enter the employer’s facility.) Significantly, the warning did not mention her work performance. In addition, Elvig said nothing about her performance when he interviewed her on November 20, and he never followed up with her regarding the results of his investigation. Meanwhile, Vargas’ attendance worsened. On January 9, 2009, Saybolt terminated her employment, ostensibly for performance and attendance issues.

Discrimination claim fails, but retaliation claim succeeds

On October 7, 2009, Vargas filed a second MCAD charge alleging that Saybolt terminated her employment in retaliation for filing the discrimination charge. After an investigation, the MCAD dismissed her discrimination charge for lack of probable cause, but the commission found probable cause for her retaliation claim. After a public hearing in August 2012, a hearing officer found in Vargas’ favor and awarded her damages, concluding that she was terminated in retaliation for filing a discrimination charge against Seeley.

The hearing officer emphasized that whether discrimination had occurred was not the issue. As long as Vargas had “a good[-]faith belief that she was the victim of discrimination,” she could prevail on her retaliation claim regardless of whether or not Seeley’s behavior was motivated by discriminatory intent. Vargas bore the burden of establishing a causal connection between her discrimination complaint and her termination. The hearing officer found that such a connection could be inferred not just from Saybolt’s words and actions but also from its omissions.

The hearing officer found it telling that Vargas was not notified of specific performance deficiencies or attendance issues until she was terminated or given a performance review or improvement plan, contrary to standard Saybolt policy. Additionally, the hearing officer noted that Saybolt did not discuss the results of its investigation with Vargas and that HR did not have any verbal communication with her after she complained of discrimination. As the hearing officer put it, once Vargas complained of discrimination, Saybolt demonstrated little interest in helping her succeed in an environment that was extremely difficult and inhospitable. Instead, it immediately began compiling information related to her performance and building a case for termination.

Takeaways

Based on the hearing officer’s decision, it is impossible to tell what Vargas’ motivation was when she accused Seeley of discrimination. However, it is hard to believe that she did not know that her performance was deficient and that her job would be at risk if she failed to improve. Employees sometimes file discrimination complaints to gain the protection of antiretaliation statutes in an effort to save their jobs. Such complaints change the landscape for employers dramatically regardless of whether they are made in good faith.

So, what can employers learn from this case? Most important, understand that retaliation claims can be based not only on what you do after a complaint is filed, but also on what you fail to do. To minimize your risk of liability, keep the lines of communication with complaining employees open and active, and conduct prompt and thorough investigations into complaints regardless of whether an employee has had performance problems. Communicate and reinforce your expectations when performance issues arise, and follow your policies and procedures, especially when it comes to issuing discipline or taking other adverse actions. When in doubt, consult employment counsel to discuss the best way to minimize risk.