Litigation

2007: As a result of a 2003 retaliation claim for a senior executive seeking unpaid commissions of less than thirty thousand dollars, the client received several hundred thousand shares of a start up company which recently went public. This year the company went public, and the terminated employee realized over $500,000 in value.
 
2007: Representing a tenured faculty member who was assaulted by a fellow tenured professor, Attorney Rodgers achieved success in obtaining a plea to sufficient facts in criminal court by the professor, a finding of sexual harassment at the internal College level and a highly successful mediation of a grievance.  The College initially described the offender as harmless, but diligent advocacy, uncovering of prior incidents, and strong support from the campus police forced the offender off the campus into retirement, but the College president had resolved the sexual harassment grievance by finding sexual harassment had occurred but giving the plaintiff nothing; By filing at the criminal court, the MCAD and with the Union as well, the matter was resolved within 7 months of the incident with a confidential settlement. The client remains in her tenured position, has produced and directed a play and is finishing a book chapter.
 
2007:  Representing an illustrious scientist shunted aside after a bout of cancer, Rodgers confidentially assisted the scientist in negotiating an excellent return to premier status with sufficient financial support to enable breakthrough research to continue, in less than two months.
 
2007: Representing several managers in biotech/pharmaceutical companies who had recently brought products to market and/or successfully met all stated targets, Rodgers assisted each in reaching mutually satisfactory, confidential settlements where there was compelling evidence of either age, disability or national origin discrimination.
 
2003-2005 After two years of litigation, obtaining the first decision in a Superior Court recognizing the right to associate with a handicapped person. Curley v. Sentry Insurance, et. als. Civil Action No. 03-2825 (Middlesex, 2005, Chernoff, J)(denying summary judgment on novel claim)

2003-2005 Obtaining decision denying summary judgment under the State Whistleblowers law and a claim of Freedom of Speech, for a building inspector who refused to ignore code enforcement obligations when pressured to do so by local businessmen and politicians.

2002-2004: After two years of litigation involving 18 depositions, and over 10,000 documents, overturning false claims of fraud and misconduct which had derailed the careers of lifetime employees of a major utility, and establishing age bias by a supervisor and shoddy investigation had entitled both clients to clean records, readmission to the properties, reinstatement and/or thirty year pensions exceeding hundreds of thousands of dollars.

2002-2004: Wage and Hour cases: while many wage act cases were narrowing the definition of wages, litigating enforcement of a promise to pay $60,000 for work performed during illness of owner, who reneged upon recovery; rare enforcement of contracts and reinstatement of thousands of stock options using claims of retaliation for claims of failure to pay wages.

2000-2003 Litigating PTSD perceived disability case for three years; finding and deposing witnesses in three states and obtaining favorable expert testimony from plaintiff and defendant experts, resulting in successful mediation for a veteran with Post Traumatic Stress Disorder, where disclosure of his condition alone was perceived as a threat of violence.

Obtaining a lucrative settlement, after extensive litigation, for a 57 year-old banking executive after our investigation proved the employer's use of age through a credit reference company.

Sexual Harassment: A woman who had angina as a result of a sexual assault by biting a co-worker's vagina in a car detailing operation; the plaintiff prevailed where the perpetrator was allowed to return to work on the premises, and taunted her and followed her to her car. Confidential settlement.

Perceived Disability: A CEO of a firm fired two days before cardioversion was to be performed, despite a spotless record and recent retention bonus.

Sex segregation and retaliation: A woman office manager with 17 years and a completely positive record with a local company was not hired back after a several year absence, when young men were hired into traditional male jobs she had applied for but was denied. Evidence was uncovered that the successful applicant had pled guilty to ten counts of rape, that the supervisor said he wouldn't want his wife or daughter working down there, and that the conviction record had been whited-out on the original of the application. Evidence included finding a former manager who said the woman office manager should have been promoted to executive program, and less qualified woman transferred to office position after woman filed discrimination complaint.

Perceived Disability:  Veteran fired immediately after being asked about his Post Traumatic Stress Disorder based on report of 18 year prior incident and no intervening incidents. Motion for Access Ex Parte to Witnesses granted for all former employees and current non-supervisory employees.

Negotiated Severance: Many, including  CEO's, CFO's, two Ivy League Deans, and a tenured Professor; Complex tenure and job security issues negotiated.

With and without litigation, winning wage increases of 25% to 60% for women in universities, insurance companies and think tanks, who were being denied comparable pay;

Sex segregation and retaliation: A woman office manager with 17 years and a completely positive record with a local company was not hired back after a several year absence, when young men were hired into traditional male jobs she had applied for but was denied. Evidence was uncovered that the successful applicant had pled guilty to ten counts of rape, that the supervisor said he wouldn't want his wife or daughter working down there, and that the conviction record had been whited out on the original of the application. Evidence included finding a former manager who said the woman office manager should have been promoted to executive program, and less qualified woman transferred to office position after woman filed discrimination complaint.

Printed in the "Opinion Digest" Employment News Gauthier v. Town of Dracut, et al. (Lawyers Weekly No. 12-212-05) (19 pages) (Fishman, J.) Attorneys were Elizabeth A. Rodgers, Joseph L. Tehan Jr., Philip S. Nyman and Gregg S. Haladyna (Fishman, J.) (Middlesex Superior Court) (Civil Action No. 03-2826) (June 22, 2005).

Termination - Whistleblower Act

Where a plaintiff claims that he was terminated from his position as a building inspector because he refused to participate in the defendant town's alleged favor-laden and inconsistently-administered system of code enforcement, I find that the plaintiff has stated an actionable claim against the town under the Massachusetts Whistleblower Statute.

Accordingly, I deny the town's motion to dismiss Count I of the plaintiff's complaint.

'Whistleblower' Count

"In Count I, [plaintiff Ernest] Gauthier clams that the defendants retaliated against him after he refused to comply with their demands that he improperly perform his code-enforcement duties. Gauthier contends that, by firing him, the defendants retaliated against him for his failure to issue permits and violations that were legally unsupportable. The defendants argue that Gauthier cannot establish the requisite causal connection between his enforcement of the relevant codes and his termination. They also claim that Gauthier was fired as a result of his abrasive personality.

"To succeed on his claim under the Whistleblower Act, Gauthier must show that he engaged in protected activity of which the employer was aware, that he suffered an adverse employment action, and that there was a causal connection between the protected activity and the adverse action. ... The term 'protected activity' embraces an employee's refusal to participate in a practice, policy or activity which he reasonably believes violates the law. ... Although this issue is addressed further in the discussion of the constitutional claims below, it is noted at this juncture that, for summary judgment purposes, the plaintiff has made a sufficient showing to satisfy the 'protected activity' prong of the first element of a claim under the Whistleblower Act.

"Of the three elements to be satisfied, Gauthier easily satisfies the balance of the first, as well as the second. The record is replete with evidence that Gauthier took his job seriously and endeavored to evenly administer the codes for which he was responsible. The record further indicates that Gauthier reasonably believed that issuing the permits in question (or taking the adverse actions supposedly sought by [selectman Warren] Shaw) would have been in violation of law. [Town manager Dennis E.] Piendak and the town terminated Gauthier, certainly an adverse employment action. The defendants' primary argument in favor of their motion for summary judgment on this count is that Gauthier has proffered no evidence that there was a causal connection between his refusal to accede to Piendak and Shaw's requests and that adverse employment action.

"Gauthier has adequately alleged and provided affidavit evidence to the effect that he was terminated in retaliation for his code enforcement activities regarding [a] used car lot, the signage at [Paul] Paquin's business, the refusal to issue permits to [a tavern] and his enforcement activities at the Severance [Trucking] depot. While some of those incidents are remote in time from Gauthier's actual termination, the record shows that they occurred in something of a linear progression, culminating when Piendak finally fired Gauthier. The actual motives of town officials Piendak and Shaw are disputed questions of material fact inappropriate for resolution at summary judgment. The defendant town of Dracut's motion for summary judgment on Count I of Gauthier's complaint must therefore be denied."

Other counts

I also decide today: that the defendant town should be granted summary judgment with respect to Counts II and III (alleging violations of Article XVI and X of the Massachusetts Declaration of Rights); that the defendant town should be denied summary judgment with respect to Count IV (alleging violations of the Massachusetts Civil Rights Act) to the extent that Count IV claims interference with the plaintiff's free speech rights; that codefendants Shaw and Piendak should be granted summary judgment with respect to Counts II and III and also with respect to Count V (alleging wrongful discharge); and that codefendants Shaw and Piendak should be denied summary judgment with respect to Count IV (alleging interference with advantageous relations) and with respect to Count IV to the extent that Count IV claims interference with the plaintiff's free speech rights.

Ongoing cases:

Whistleblower : alerted DYS to adolescents in danger due to serious fire hazards and incidents in home for children under state care. Immediately fired. DYS substantiated complaint. Complaint available.

Failure to pay overtime: House parent at residential school not paid promised overtime. Complaint and response to Motion to Dismiss available.

Perceived Disability: Veteran fired immediately after being asked about his Post Traumatic Stress Disorder based on report of 18 year prior incident and no intervening incidents. Motion for Access Ex Parte to Witnesses granted for all former employees and current non-supervisory employees.

 

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