Boston Lawyer Blog

The First Circuit Reaffirms that Prior Conduct Can Prove Current Sexual Harassment or Other Discriminatory Harassment

Published on: August 23, 2019 | by Ana Muñoz

On August 21, 2019, the U.S. Court of Appeals for the First Circuit released a decision that reaffirms that a hostile work environment claim can span many years, so long as some of the acts that are part of the broader pattern of harassment occurred within the statute of limitations period. In Nieves Borges v. El Conquistador Partnership, the First Circuit reversed a grant of summary judgment for a defendant, holding that the district court erred in excluding past evidence of sexual harassment in evaluating the plaintiff’s claims. The Court emphasized that “so long as one instance of harassment falls within the statutory limitations period,” “the entire period of the hostile environment may be considered by a court for the purposes of determining liability.”  In other words, past conduct is part of the broader pattern of harassment at issue and is therefore relevant to assessing the nature of an employer’s bad behavior.

The plaintiff in  Nieves Borges took a long time to report the harassment he faced.  This is, of course, not unusual in employment discrimination cases in which a worker who experience sexual or other types of harassment fears losing his or her job.  The plaintiff had worked at his company as a food service manager for twenty-two years when he was terminated in July of 2015. During that time, a high level manager (the Director of Human Resources) had harassed the plaintiff for more than a decade:  According to the plaintiff that harassment included unwanted touching and frequent episodes in which the manager would look the plaintiff up and down while pressuring him to go out for drinks. In 2007, the alleged harasser went so far as to proposition the plaintiff over lunch. After that time, the alleged harasser bothered the plaintiff intermittently, even asking him to socialize several times in 2014, but never propositioned him again. But the plaintiff did not report his supervisor’s behavior until 2014, years after the pattern began and well after the most severe incident. At summary judgment, the district court refused to consider the older incidents, because none of the acts that occurred after 2014 rose to the level of sexual harassment. The district court also held that to prove his claim that he was subjected to a hostile environment the plaintiff had to demonstrate that the conduct he faced was both severe and pervasive.

Exclusionary Rule Safe in Massachusetts – For Now

Published on: April 30, 2019 | by Ana Muñoz

Last week, the Supreme Judicial Court reaffirmed that in Massachusetts, evidence unlawfully obtained from a police search will be excluded in criminal trials even in cases in which the police had good reason to believe the search was legal. That ruling buttresses a longstanding difference between federal law and Massachusetts law. In federal court, prosecutors can insulate police errors by arguing the police had a good faith basis to use an illegal tactic, and therefore evidence should not be suppressed. Not so in Massachusetts – at least for now.
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Commonwealth v. Gomez: A Conditional Victory for Defendants

Published on: August 31, 2018 | by Ana Muñoz

Earlier this month, the Supreme Judicial Court held that a defendant has a right to enter a “conditional plea.” A conditional plea allows a defendant to plead guilty but preserves the defendant’s right to appeal some of the trial court’s rulings on legal issues. If the defendant wins the appeal, the plea becomes unenforceable; it is essentially void. For defendants who have legal defenses to charges – like, for example, a motion to suppress, or a challenge to the government’s interpretation of the reach of a particular criminal provision – a conditional plea is often the only meaningful way for defendants to challenge a lower court’s ruling. CONTINUE READING ›

Doe v. Boston College: The First Circuit Allows an Accused Student’s Claims to Proceed to Trial, But Dodges the Big Questions

Published on: August 6, 2018 | by Ana Muñoz

Until this spring, the First Circuit had not decided many major student discipline cases in over thirty years. In June, the Court handed down its long-awaited decision in Doe. v. Trustees of Boston College.

The case concerns an alleged sexual assault that took place on a dance floor in 2012. A female student – “A.B” – was assaulted at a party on a boat sponsored by a Boston College student organization; she felt someone put fingers up her skirt and touch her without her consent. She identified Doe as the assailant. But Doe denied the charges – and eventually presented video evidence that suggested another student – J.K. – had committed the act. Indeed, the video was so convincing that the Middlesex County District Attorney dropped the criminal charges against Doe. Yet, after a series of procedural irregularities, a Boston College disciplinary panel found Doe responsible for the assault and he was suspended from the college. Two years later, the school agreed to review the case after his parents asked the President to look into it, but ultimately declined to change its conclusion. Doe and his parents sued.

Massachusetts Appeals Court explains Who’s The Boss under the Wage Act

Published on: February 21, 2018 | by Ana Muñoz

It’s not as easy as it used to be to answer the question of who’s the boss. Many employees survive on a patchwork of part-time jobs; the gig economy is growing fast enough to double in the next few years. Indeed, a recent study released by Upwork and the Freelancers Union predicts that most workers will be freelancers by the years 2020. As facts in the workplace evolve, so must the law.

That’s exactly what happened last fall in Gallagher v. Chambers, a case decided by the Massachusetts Appeals Court. There, the Court clarified the test for identifying an employer under the Massachusetts Wage Act. Previously, courts had applied a common-law set of factors that led to inconsistent results in lower courts, which in some cases dismissed corporate defendants even though those entities benefitted from a plaintiff’s work. In Gallagher, a home health aide sued to recover for unpaid overtime wages. She named as defendants both her former customer – who had overseen her work on a daily basis – and the agency that had helped her find the placement and processed her paychecks. That raised the question of whether both were really her “employers” for purposes of the Wage Act. The Appeals Court took the opportunity to refine the rule for answering that question.

BPD Attempts to Intimidate College Students Ahead of Rally, But Students Should be Able to Peacefully Protest

Published on: August 18, 2017 | by Ana Muñoz

Yesterday, Boston Police Commissioner William B. Evans sent a message of warning to Boston-area college students ahead of a planned “Free Speech” rally and numerous counter-protests. He told college students “please act in a way that would make your school, your family, and your city proud and please respect our neighborhoods. Student behavior off campus will be regarded the same as if it were on campus.”

College students are subject to the laws of Massachusetts just like any other person in the state. If college students engage in illegal behavior at Saturday’s rallies, they can be arrested and prosecuted. But college students are also subject to the student conduct rules of their respective universities. Under Massachusetts law, those handbooks form the basis of a contractual relationship between the student and the college. Both students and colleges must abide by the rules set forth in the handbook; schools cannot punish students for behavior that is not prohibited by their policies. While Commissioner Evans can encourage students to act responsibly, he cannot dictate that schools expand those rules to cover off-campus actions if they do not already do so. CONTINUE READING ›

In Cardno ChemRisk v. Foytlin, the SJC Slaps Down Attack on Protected Speech

Published on: April 3, 2017 | by Ana Muñoz

At a time of increasingly public protests, the Supreme Judicial Court recently reaffirmed its commitment to protecting speech here in Massachusetts. Under Masschusetts’s Anti-Strategic Litigation Against Public Participation law (“Anti-SLAPP”), defendants can move to dismiss a lawsuit filed against them if that lawsuit targets their attempt to influence a government body or seek help from one. It had always been clear that when a person attempts to influence the government on their own behalf – in other words, to vindicate their own interests – the statute protected that activity. But in Cardno ChemRisk v. Cherri Foytlin et al., the Court made clear that the statute extends to citizens’ right to advocate not just for themselves, but also for others.

Massachusetts is one of twenty-eight states with Anti-SLAPP protection. These statutes buttress a basic constitutional right: The First Amendment of the United States Constitution protects the right “to petition the Government for a redress of grievances.” That means that every person has a right to influence government bodies – by, for example, protesting in the town square or testifying at a hearing – without fear of reprisal. But citizens’ protests can often frustrate powerful, non-governmental interests. And when they do, those powerful interests may use courts to try to stop or stifle the speech. Anti-SLAPP statutes protect citizens from those suits. CONTINUE READING ›

A Texas Court Blocked Overtime Pay for Massachusetts Workers – What Now?

Published on: December 21, 2016 | by Ana Muñoz

In late November, a federal district court in Texas enjoined the Department of Labor from implementing and enforcing a new rule that would have made it more difficult for employers to claim that workers do not qualify for overtime pay. But the Texas court may not have had the power to apply its order nationwide, and Massachusetts employees may still be able to collect overtime under the new rule.

Under the Federal Labor Standards Act, every employee must be paid a minimum hourly wage. Employees are also entitled to overtime pay at one and a half times that rate for all hours worked above forty per week. However, the statute exempts certain types of jobs from the requirement to pay overtime. One of those exemptions is for any work done in a “bona fide executive, administrative, or professional capacity,” and is sometimes referred to as the “white collar exemption.” The statute grants the Department of Labor the authority to issue rules defining what exactly qualifies as a “white collar” job. Since 1940, the Department has defined the exemption, in part, by setting a minimum salary cap under which all workers must be paid overtime – in other words, anyone paid less than that set figure cannot qualify as an exempt “executive, administrative, or professional” employee. In 2014, after extensive notice and comment from outside stakeholders, the Department of Labor raised the salary cap from $23,660 to $47,476. The rule was set to go into effect on December 1, and experts estimated that more than 4 million additional workers would now qualify for overtime pay. CONTINUE READING ›