Law Offices of Paul H. Merry

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The Law Office of Paul Merry covers all aspects of employment law and offers representation in negotiation, mediation, and litigation through appeal in all federal and state courts and agencies. The office concentrates on race, age, disability, sex, religion, and national origin discrimination claims. Representation is also offered in wrongful termination suits, sexual harassment, employment torts, contracts, covenants not to compete, and separation agreements. The Law Offices of Paul H. Merry is an independent office and is not affiliated with any other law firm.

Massachusetts Lawyers Weekly

The Boston Globe

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July 10, 2006

August 17, 2009

August 17, 2009

Hybrid Mandate for Taxis Reversed:
Judge says Boston Rule Violated Act of Congress
Owners no Longer Need to Buy New Cars by 2015

By: Jonathan Saltzman


A federal judge struck down yesterday a year-old rule requiring Boston cab owners to buy new energy-efficient hybrid cars by 2015, ruling that Mayor Thomas M. Menino's initiative violated an act of Congress.

US District Court Judge William G. Young sided with taxi owners who had argued that the mandate to green the entire fleet of 1,825 licensed cabs would cost them thousands of dollars and put many out of business.

The city, Young wrote, had infringed on the Energy Policy and Conservation Act of 1975, which establishes fuel economy standards for vehicles and forbids local officials from setting up their own standards.


In an unusual introduction to his ruling, Young related that his 10-year-old grandson had heard arguments recently on the case and asked him: "Why can't Boston do what it wants with its taxis? It's for the environment."

"The answer, Cam, is that the Congress of the United States, pursuing national goals it considers important, has forbidden Boston from taking this initiative on behalf of its citizens," Young wrote.

The 17-page ruling, which resembled a recent decision by a federal judge in New York blocking a push for hybrid cabs there, delighted the Boston Taxi Owners Association, the plaintiffs.

"We think the judge made the right decision," said Paul H. Merry, the association's lawyer. "The cab operators have wanted from day one to support the city's efforts to protect the environment. But those efforts need to be conducted in a way that does not deprive people of jobs."

He said he suspects the city will appeal the ruling to the US Court of Appeals for the First Circuit, but hopes that the Menino administration will meet with cab drivers to discuss a less onerous way to improve fuel economy for taxis.

William F. Sinnott, the city's corporation counsel, said he needs to talk with the Police Department's Hackney Carriage Unit, which regulates the taxi industry, before he can say whether the city will appeal.

"We appreciate Judge Young's thoughtful consideration of the issue," Sinnott said. "We're reviewing his memorandum and order, and we will meet with our clients shortly and assess our next steps."

Sinnott said the city might agree to negotiate a settlement out of court, saying, "We're always amenable to discussions."

Merry said cab drivers might take steps to replace gas-guzzling taxis with more fuel-efficient cars if the city relaxes other rules it has recently imposed.

He said, for example, that some cab owners have had problems after installing required credit card machines in their vehicles. Some of the machines have malfunctioned, he said, requiring repairs that take hours or days.

"That costs people money," Merry said.

Raphael Ophir, a Jamaica Plain plaintiff in the lawsuit, said he and other cab drivers favor the greening of the fleet. But they objected to a rule that they had to buy new hybrids, instead of less expensive used ones, and that said that other fuel-efficient cars were unacceptable.

"Let people choose what they are comfortable with," said Ophir, 60, who owns three hackney medallions and leases them to several cab drivers. "If somebody wants to buy a hybrid, buy a hybrid. If someone wants to buy a regular Camry, buy a regular Camry."

Supporters of the rule were undeterred by Young's decision.

George Bachrach, president of the Environmental League of Massachusetts, said he hopes the city will appeal the decision or ask Congress to amend the federal law to allow local communities to impose fuel economy standards. If that fails, however, he said, market realities will ultimately result in a fleet of hybrid taxis.

"With or without government intervention, the taxi fleet will convert to energy-efficient vehicles," said Bachrach, who testified at city hearings in support of the rule. "It's in [cab drivers'] own economic interest."

Menino and Police Commissioner Edward F. Davis announced the requirement for new hybrids last August as part of an effort to improve the condition of taxis. (The city also raised fares to among the highest in the nation to offset high gas prices.) Cab owners are required to replace taxis every six years to maintain the condition of the fleet.

Traditionally, most cabs in Boston are used Ford Crown Victorias, usually former police cars outfitted with new radios, partitions, and other taxi features. Cab drivers say they can buy such cars for as little as $4,000, although the city says the price ranges from $7,500 to $10,000.

After the new rule was adopted, cab owners pleaded unsuccessfully for the right to buy used hybrids or other fuel-efficient vehicles. That flexibility would save them money not only on the price of the vehicle, but also on the cost of insurance, which can run as high as $14,000 to $20,000 a year for a new Toyota Camry hybrid, cab owners said.

Two months ago, Boston cab drivers were buoyed when US District Court Judge Paul A. Crotty blocked a similar effort in New York. Those regulations promoted hybrid taxis by reducing the rates cab owners could charge drivers for leasing nonhybrid taxis. Mayor Michael R. Bloomberg has appealed.

Then, on July 23, Young granted the cab drivers' request for a temporary injunction after Boston refused to hold off implementation of the plan while he considered whether the hybrid rule was legal.

Mother May Sue for Sex Discrimination

By: Eric T. Berkman

A paralegal who claimed she was repeatedly denied promotions because she was a mother with small children could sue her employer for sex discrimination, a Superior Court judge has ruled in a case of first impression.

The employer, a state agency, argued that the plaintiff was really alleging discrimination based on parental status and that parents are not a protected class under Massachusetts discrimination law.

But Judge Raymond J. Brassard disagreed.

"[The plaintiff] has alleged and put forth evidence that [the defendant] denied her promotions based upon her status as a mother of small children and the stereotypical belief that she could not be both a hard worker and a good mother,” wrote Brassard, denying summary judgment on the discrimination matter but granting it in part on a statute of limitations issue.

“Accordingly, the plaintiff has set forth a prima facie case of sex discrimination under Chapter 151B sufficient to survive a motion for summary judgment,” the judge said.
The 19-page decision is Sivieri v. Commonwealth of Massachusetts, Department of Transitional Assistance, Lawyers Weekly No. 12-213-06.

A ‘step forward’

The plaintiff’s attorney, Paul H. Merry of Boston, described the decision as a “step forward” in the development of Massachusetts’ statutory policy on discrimination. “I’m very pleased that [Brassard] has articulated a policy finding that stereotypical thinking and labeling of people is a violation of our anti-discrimination laws,” said Merry. “Stereotyping in general is what discrimination is all about, and I think this decision is a very useful tool.”

The decision also sends an important message to employers to focus on the capacity and skill of their employees and job candidates rather than on “tangential matters” such as their family situation, Merry said.
“Part of what made this case work [as a sex-discrimination case] was that it would be very unusual for an employer to consider that a man with a child wouldn’t be as good a worker, while it’s often been suggested that a woman with a child isn’t as good because she’d be distracted,” said Merry. “In any event, employers need to avoid taking into account their own assumptions about the impact family might have on potential employees.”
The Attorney General’s Office, which represented the defendant, declined comment pending trial of the case.

Passed over

Plaintiff Lisa Sivieri started working as a paralegal specialist for the defendant, the Massachusetts Department of Transitional Assistance, in 1997.
The plaintiff consistently received positive performance evaluations. Within a year-and-a-half, the defendant gave her increased responsibilities, including training new hires in her unit.
During the first 10 months of employment, the plaintiff had married and begun thinking of having children.
In July 1999, when she was five months pregnant, the plaintiff applied for an opening as a training paralegal.
Though the plaintiff received an interview, the position was given to another paralegal, Cynthia Sullivan, whom the plaintiff had helped train. Sullivan had worked for the defendant for less than a year and had no children.
The plaintiff claimed she had noticed a negative attitude in her unit towards women with small children, but did not recognize the extent until after her daughter was born in November 2000.
She also said her supervisors often made negative remarks about the effect of women with young children in the workplace. Regarding the unit’s workload, the plaintiff’s direct supervisor, Debra Graham, allegedly said the unit would remain effective “as long as nobody else g[ot] pregnant.”
In the spring of 2000, Sullivan became a supervisor and received another promotion a year later.
Meanwhile, two other paralegals with less seniority than the plaintiff — and whom the plaintiff had also trained — received promotions; one had no children and the other had an 11-year-old daughter.
The plaintiff then approached Graham to find out why she was repeatedly being passed over.
Graham apparently told her that the birth of her child had led unit managers to conclude that she no longer sought a promotion. Graham also allegedly said she was surprised the plaintiff was upset about not getting promoted considering her family obligations at home.
Following this conversation, the plaintiff claims she faced increased management scrutiny, criticism of her performance and reduction of responsibilities.
This treatment, paired with the defendant’s apparent attitude toward women with young children, caused the plaintiff emotional and psychological distress with physical symptoms. The plaintiff also put off having a second child, causing a strain in her marriage.
In February 2002, on her physician’s advice, the plaintiff requested selection for a voluntary layoff from the agency.
The plaintiff filed a bias claim with the Massachusetts Commission Against Discrimination in November 2001. On May 20, 2002, she removed her MCAD complaint to Superior Court.

Gender roles

Brassard rejected the defendant’s argument that the alleged acts did not constitute sex discrimination.
“The Supreme Court has held that ‘stereotyped remarks’ can be evidence of gender discrimination,” said Brassard, citing the court’s 1989 decision in Price Waterhouse v. Hopkins, where a female accountant, who had been denied partnership because her firm felt she did not act or dress sufficiently feminine, was able to sue the firm for allowing stereotyped attitudes to figure into its decision not to promote her.
With respect to the parenting issue, Brassard pointed out that both the 1st and 2nd U.S Circuit Courts of Appeals had found that, under facts similar to the one in this case, employment decisions based on the stereotype that women cannot be both good mothers and good workers could constitute gender discrimination under federal antidiscrimination law.
“In light of these decisions, and the legislative directive that [Chapter 151B] be applied liberally, the court finds that stereotypical remarks about the incompatibility of motherhood and employment can be evidence of gender discrimination,” said Brassard. “These types of statements reflect a discriminatory animus not towards parenthood, but towards women, based upon antiquated ideas about what a woman’s role in society should be.”
Brassard was also unconvinced by the defendant’s assertion that this case could not constitute sex discrimination because the plaintiff did not establish that male employees received promotions over her.
“Obviously gender discrimination is more blatant when it works to the advantage of male employees,” said Brassard. “However, discrimination is no less corrosive when that discrimination results in the advancement of another woman who is not a mother.”

Time bars

Brassard did accept the defendant’s argument that some of the plaintiff’s claims were time-barred by Chapter 151B’s six-month limitations period.
Since the plaintiff filed her complaint on Nov. 13, 2001, the judge noted that she couldn’t seek damages for any allegedly discriminatory acts that occurred before May 13, 2001 unless they were part of a “continuing violation.”
This meant that at least one discriminatory act had to have occurred during the limitations period, that any timely acts had to bear a substantial relationship to the untimely ones, and that the untimely ones had to have not triggered her awareness and duty to assert her rights.
The two promotion rejections the plaintiff had received during the limitations period were not time-barred, but the earlier ones were, the judge said.
“[W]hile [the timely] rejections … do have a ‘substantial relationship’ to [the plaintiff's] prior rejections, [the plaintiff] acknowledged in her deposition that she was aware of the [defendant's] pattern of refusing to promote women with children … prior to her application for the Training Paralegal position in 1999,” said Brassard, granting summary judgment in part.
“Therefore,” he continued, “[the plaintiff] could have formed a reasonable belief that the promotion denials occurring prior to May 13, 2001 were discriminatory at the time they occurred and the continuing violation doctrine does not apply.”

Employment - Handicap Discrimination


Where a defendant employer was awarded summary judgment on a plaintiff employee's handicap discrimination claim, the judgment must be vacated and a remand ordered because the plaintiff has raised trialworthy issues as to the three prongs set forth inMcDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).


Background

"Plaintiff-appellant Suzanna Sensing, who suffers from multiple sclerosis, brought suit against her former employer, defendant-appellee Outback Steakhouse, and her manager, defendant-appellee Charles Kozmits, alleging handicap discrimination in violation of the Massachusetts anti-discrimination statute, Mass. Gen. Laws ch. 151B, §4. …

"… Initially hired as a hostess, Sensing was soon promoted to the position of ‘takeaway.' A takeaway at Outback takes down customers' take-out orders by telephone, does various order preparation work, packages the orders, and delivers the orders to customers waiting in the parking lot. …

"[Kozmits] stated that before Sensing would be allowed to return to work as a takeaway, she must submit to an independent medical examination (‘IME'), at the company's expense and by a physician of their choosing, to determine whether she could safely perform that job. He indicated that while the IME was being set up, Outback might be willing to schedule Sensing for ‘light duty' work. This light duty work would be paid at approximately half the hourly rate of the takeaway role and involve approximately one-third the number of hours per week. Sensing told Kozmits that she did not know if she could financially manage doing the light duty work, but recalls not giving Kozmits a firm answer because she wanted to discuss the financial effects of doing so with her husband. Kozmits told Sensing that he would look for a physician to do the IME and would get back to her with the details as soon as he found a suitable physician to examine her. Sensing agreed, and said that she would wait to hear back from him regarding the examination.

"After consulting with her husband, Sensing concluded that she could not afford to take the light duty position and that it made more sense for her to apply for unemployment. …"


Issues

"Although the district court did not reach this issue, appellees argue that we can affirm summary judgment on the independent ground that Sensing cannot establish she suffers from a ‘handicap' within the meaning of Chapter 151B. …

"We note that Sensing's position that she was only limited in major life activities during the ‘flare-up' periods of her episodic MS condition is not inconsistent with being ‘handicapped' within the meaning of Chapter 151B. … Nonetheless, we need not decide this issue. Whether or not Sensing can establish that she is actually ‘handicapped' within the meaning of §1(17)(a), Sensing argues, and we agree, that she may separately be found ‘handicapped' under §1(17)(c) on account of being ‘regarded [by her employer] as having such impairment.' …

"Sensing has proffered sufficient evidence to permit a jury to find that despite her ‘handicap,' she was nevertheless able to perform the ‘essential functions' of the takeaway job, at least with reasonable accommodation. …

"Sensing has put forth three alternative claims that could, if substantiated, support a finding of an adverse employment action. First, she argues that appellees actually or constructively discharged her because of her status as a person with MS by removing her from their work schedule and making it impossible for her to comply with the condition it imposed for restoration to work. Second, she argues that even absent a finding of discharge, appellees' actions nevertheless amounted to discriminatory adverse employment actions within the meaning of the statute. Third, Sensing argues that the appellees' failure to accommodate her disability constituted an adverse employment action.

"Only the first of these theories was directly addressed in the district court's opinion. However, appellees are not entitled to summary judgment on this issue if a reasonable jury could conclude, based on the facts in the record construed in the light most favorable to Sensing, that Sensing could satisfy the third prong under any one of these theories. We hold that a jury could so find under either of the first two theories, and thus, the district court erred in holding that Sensing failed to make out a prima facie case. …

"Appellees assert a legitimate interest in on-the-job safety that was furthered by removing Sensing from the work calendar and requesting that she submit to an IME. … At least one court has held that employers may, consistent with Chapter 151B, require an employee returning from medical leave to submit to an examination to determine competency for work. … Thus, Outback requiring Sensing to submit to an IME and the accompanying temporary demotion, if in fact motivated exclusively by legitimate and immediate concern about Sensing's ability to perform the takeaway job safely, would constitute a permissible non-discriminatory justification under Chapter 151B. …

"A reasonable jury could find that Kozmits' removal of Sensing from the work schedule was predicated, at least in part, on impermissible discrimination, as Sensing alleges, rather than a permissible legitimate concern about her ability to perform the job safely. A jury might reach this conclusion by finding, for example, that appellees had insufficient justification for removing Sensing from the work schedule for reasons of safety alone. While it is true that appellees have provided affidavits from Sensing's coworkers that call into question Sensing's ability to perform her takeaway job safely, Sensing had also been evaluated at least three times by her own physicians and provided Outback with three notes confirming their expert medical opinions that she could, in fact, perform the takeaway job. Had appellees questioned whether these physicians had an adequate basis for their opinions, they could have contacted the physicians directly, but chose not to do so. Appellees also did not require Sensing to undergo an IME after her return from a month long medical leave in November 2004, but did so on this occasion after Sensing missed only one and a half shifts. Moreover, Kozmits' stated concern that Sensing could cost the restaurant thousands of dollars of liability if she were to fall may be interpreted as speculation as to risk of future injury, a prohibited form of discrimination under the MCAD guidelines, rather than legitimate concern about Sensing's present ability to safely perform the essential functions of her job. Finally, the fact that Outback never contacted Sensing to provide her with the information necessary to actually undergo the IME, as Kozmits promised to do, coupled with Kozmits' arguably unreasonable, unverified assumption, within days of his conversation with Sensing, that Sensing was abandoning her job, raises a question as to whether appellees actually sought to allow Sensing to return to work, provided she could do so safely, or whether the articulated concerns about safety were actually pre-textual, the real reasons for her removal being discriminatory animus.

"… The question of whether Outback's actions were motivated by legitimate safety concerns or alternatively, impermissible discriminatory animus is a factual dispute that could be resolved in favor of either party, thereby precluding summary judgment."


Sensing v. Outback Steakhouse of Florida, LLC, et al. (Lawyers Weekly No. 01-240-09) (39 pages) (Torruella, J.) (1st Circuit) Appealed from a decision by Young, J., in the U.S. District Court for the District of Massachusetts. Paul H. Merry, for the plaintiff-appellant; John F. Welsh, with whom Jennifer Belli and Bello, Black & Welsh were on brief, for the defendants-appellees (Docket No. 08-1865) (Aug. 11, 2009).