New England Biz Law Update
The Massachusetts Commission Against Discrimination has found that an Office Max sales manager who accused her company of operating an “old boy’s network” was entitled to five years of front pay and $300,000 in emotional distress damages.
The respondent, Office Max, argued that the manager’s termination was based on the fact that her sales numbers were lower than her two male colleagues and that her adherence to “teamwork and trust” were problematic.
But MCAD Hearing Officer Eugenia M. Guastaferri disagreed and awarded what is believed to be one of the largest emotional distress recoveries in the history of the commission.
“I conclude that the determination to eliminate [the sales manager’s] position and her ultimate termination resulted from unlawful retaliatory animus on Respondent’s part, and was motivated by a desire on Respondent’s part to punish her for complaining about gender disparities and for not quietly accepting less remuneration than her male colleagues,” Guastaferri wrote. “[The sales manager] has proved by a preponderance of the evidence that Respondent acted with retaliatory intent, motive or state of mind.”
The 40-page decision is Massachusetts Commission Against Discrimination, et al. v. Office Max, Incorporated.
Overcoming the presumption
Marc D. Freiberger of Freiberger & Washienko in Boston served as co-counsel to the complainant sales manager. He said his client was 61 at the time of the hearing and testified that she would have continued working for another five years.
Freiberger said that her age, coupled with her length of service at Office Max and the limited job opportunities available to her given the state of the economy, justified a five-year front pay award of more than $666,000.
“There is a presumption that you are facing a challenge when it comes to front pay, but the key here was that we were dealing with an employee who was around the age of 60 and within some proximity of retirement, who was having a difficult time finding work,” Freiberger said. “What this opinion does is validate for attorneys that if you can put that kind of evidence before the commission, then you should not assume you are limited to a one or two-year award.”
He added that the culture at Office Max was such that his client was excluded from many social events and company outings. Participation in those outings was an important way to gain exposure to higher-ups at the company, he said.
Freiberger’s co-counsel, Patricia A. Washienko, said hearing officers and judges in Massachusetts often have difficulty awarding front pay because it requires them to speculate about what an employee might earn in the future.
“This case is truly one of only a handful of significant front pay awards at the MCAD,” she said. “I think that’s because courts and the commission have run at it with the mindset that unless there is this sort of perfect storm, they are going to be disinclined to award damages for anything so speculative.”
Washienko said that the $300,000 emotional distress figure was based in large part on the credit the hearing officer gave to her client’s testimony. The decision made clear, Washienko added, that her client’s experience with Office Max damaged her reputation and took away her sense of purpose and identity.
“The emotional distress piece is really driven by a client’s testimony about how her life was affected by the discrimination and retaliation that she suffered,” Washienko said.
Ilisa S. Clark of Littler Mendelson, who represented Office Max, declined to comment. The Boston lawyer referred a reporter to company spokeswoman Julie Treon. In a statement, Treon denied any wrongdoing and said Office Max plans to appeal.
John F. Tocci, who represents employers and employees in discrimination suits, said there is a significant body of caselaw at both the Superior Court and MCAD level awarding front pay damages through the date of a worker’s anticipated retirement.
Tocci, who practices at Tocci, Goss & Lee in Boston, said the potential for such an award significantly increases when an employee nears retirement. Although a terminated employee has a duty to mitigate damages by acting in good faith to find a new job, doing so can be much harder for a worker in her 60s, he said.
“We don’t like to admit it, but there is absolutely a bias in the workplace against workers who are at or nearing retirement because of the feeling that they are not going to be a longtime employee or maybe have more health concerns,” Tocci said. “It’s a significant award here, but I am not surprised that five years of front pay was provided given the facts presented.”
Retaliatory intent
The complainant, Janice Switzer, had worked in the office supply industry for more than 15 years when Office Max acquired her company in 1999. Office Max was based out of Chicago, and Switzer was the only female direct sales manager in its Boston office.
Her $128,064 salary in 2006 was less than her two male Boston counterparts working in the same department, even though they were less experienced and less qualified.
During her employment, Switzer complained to her superiors that she was unfairly being kept out of numerous male-only networking opportunities. Unhappy about her unequal pay and disparate treatment as a female, she expressed her concerns to a supervisor in the spring and summer of 2006.
A short time later, she alleged that she was treated in a hostile manner. Later that year, the company instituted a restructuring of its sales organization, which it claimed called for the elimination of a sales position.
When Switzer’s position was selected for elimination, she filed a complaint before the MCAD. A public hearing was conducted in the fall of 2011.
‘Unflattering stereotype’
In ruling for Switzer, Guastaferri found that Office Max’s purported reasons for the termination were a pretext for its real discriminatory purpose.
The hearing officer said Switzer was a mature, intelligent, articulate professional who was committed to her career. She noted that Switzer merely sought due recognition during her employment at Office Max for her accomplishments and engaged in behavior that male managers would be praised and admired for.
“Respondent’s assessment of Complainant’s character promotes an unflattering stereotype of females who seek to advance their professional interests as overly aggressive and selfish, whereas male professionals who exhibit similar behavior are viewed as confident, hard-charging and successful,” Guastaferri wrote. “In the end, I am left to conclude that the real reason for Complainant’s termination was that she was a strong and persistent female who did not conform to the standards of behavior expected of a woman in the workplace.”
The hearing officer said the company marginalized Switzer in subtle ways, such as not including her in male golf outings and luncheons, not sending her to Chicago headquarters for meetings with high-level executives and not selecting her to attend national sales meetings.
Guastaferri added that the company was well aware of Switzer’s complaints and found a causal connection between her concerns about discrimination and the adverse actions she suffered.
“Therefore I conclude that the determination to eliminate Complainant’s position and her ultimate termination resulted from unlawful retaliatory animus on Respondent’s part, and was motivated by a desire on Respondent’s part to punish her for complaining about gender disparities and for not quietly accepting less remuneration than her male colleagues,” Guastaferri said.
