New England Biz Law Update
A municipal attorney who accused a city solicitor of harassment, unequal pay, Wage Act violations, and unethical conduct did not waive her claims by also filing a whistleblower suit, a U.S. District Court judge in Massachusetts has ruled.
Plaintiff Cheryl A. McCormick, a former assistant city solicitor in Revere, Massachusetts, claimed that City Solicitor Paul Capizzi subjected her to constant harassment and humiliation, ensured she was paid less than male colleagues, and interfered with her request to take family leave.
The plaintiff also claimed her signature was forged on a tax bill certification she had refused to sign because it included unethically exorbitant fines assessed against a particular property and that nothing was done when she complained.
McCormick, who was terminated after putting the defendant city of Revere on notice of her bias and harassment claims, further alleged that her personal property was ransacked after her firing, her personal email account was hacked, and she was not paid the wages owed to her in a timely manner.
McCormick sued for gender discrimination and retaliation under Chapter 151B, and violation of the Massachusetts Equal Pay Act, Wage Act and Family Medical Leave Act.
She also sued the city under the Massachusetts Whistleblower Statute, G.L.c. 149, §185(d), alleging that the city unlawfully retaliated against her for complaining to Capizzi, HR and other officials about her treatment.
The defendants argued that her claim under the whistleblower statute preempted her other claims.
The statute states that anyone initiating a retaliation claim under the law waives available rights and remedies “for the actions of the employer … under any other contract, collective bargaining agreement, state law, rule or regulation, or under the common law.”
Judge Indira Talwani disagreed with the defendants.
“The waiver provision is inapplicable to McCormick’s [FMLA] claims … because the FMLA is a federal statute [and] McCormick’s claims against Capizzi are also not barred, as these are not claims against the City,” Talwani wrote in denying the defendants’ motion.
The judge also said that McCormick’s state law claims against the city for gender discrimination under Chapter 151B, and violation of the Massachusetts Equal Pay Act and Wage Act – all unrelated to any retaliation – were also allowed.
Further, the judge ruled that Capizzi could face individual liability under the Equal Pay Act as McCormick’s “employer.”
