Bennett & Belfort, P.C. partner, David E. Belfort, was recently asked to comment on two separate cases for “Massachusetts Lawyers Weekly” (‘MLW’). One of the cases related to the proof analysis applied to employment discrimination cases under the Federal Rehabilitation Act, and the other focused on a rare large jury verdict secured under the Massachusetts Payment of Wages statute’s retaliation provisions.
In the August 20, 2012 issue of MLW, Mr. Belfort was quoted in Lisa Keen and Thomas E. Egan’s front page article entitled, “ ‘But-for’ causation needed to prove retaliation claim” The article related to the recent case of Palmquist v. Shinseki where the U.S. Circuit Court of Appeals found that the plaintiff, who claimed to be aggrieved under the retaliation provisions of the Rehabilitation Act of 1973, was not entitled to a “mixed-motive” instruction, which is applied when there is evidence of both legitimate and illegitimate reasons for an employer’s adverse employment action. Instead, the court required a finding that the alleged retaliation be the “But-for“ or determinative cause of the employer’s action in order for a plaintiff to recover any damages. Mr. Belfort commented that the Court’s declining to apply a mixed motive analysis in Rehabilitation Act retaliation cases renders the purpose underlying these discrimination protections excessively burdensome. The core of the statute, he explained, is aimed at eradicating discrimination and retaliation for complaints of bias – this decision, albeit narrow, ignores evidence of bias and discriminatory motives if competing motivations for the job action exist.
Mr. Belfort’s assessment was also sought for the September 17, 2012 MLW article entitled, “Small Wage Act Retaliation Claim Results in Big Verdict,” relating to a Superior Court action filed against the Attleboro Housing Authority by an employee claiming retaliation under the Massachusetts Wage Act. Attorney Belfort commented that “[h]ere, a dispute over $2,300 in unpaid wages turned into an award of more than $475,000.” In Fernandez v. AHA (Bristol Superior Court), the jury found that the Employee’s complaints about not being paid just $2,300, or .50 cents an hour, led to his dismissal. After triple damages, costs, interest and attorney’s fees, the judgment amounted to almost half a million dollars. “From a policy perspective, Belfort said, the suit should underscore for employers the necessity to treat employees without regard to their wage complaints.” This case is currently up on appeal.
These two articles highlight the fact that plaintiffs are increasingly relying on retaliation claims to secure remedies. We will continue to monitor developing trends relative to retaliation cases so stay tuned.