Women and Justice: Keywords

Domestic Case Law

Haddad v. Wal-Mart Stores, Inc. Supreme Judicial Court of Massachusetts (2009)

Employment discrimination, Gender discrimination

Here, the plaintiff worked as a staff pharmacist for the defendant for ten years.   At a subsequent point, she became temporary pharmacy manager.  Until the plaintiff was terminated thirteen months later, she was paid at a lower rate as a pharmacy manager than her male counterparts.  She was told by the defendant that she would receive the difference in pay but never did.  She complained numerous times and finally received a check for the pharmacy manager bonus that others received, but never received the thirteen months’ worth of additional pay.  Prior to her termination, the plaintiff was questioned about two prescriptions that were fraudulently written—one while she was on duty and the other was written while a male pharmacist was on duty.  The pharmacy technician immediately admitted that she falsified the prescription from when the plaintiff was on duty.  The plaintiff denied knowledge of the fraud, but she was terminated based on her failure to secure the pharmacy.  The pharmacy technician was also terminated. The male pharmacist however was not fired or disciplined for failing to secure the pharmacy area.  At the time of the plaintiff’s termination, twenty of the twenty-one managers above the pharmacy manager level were male and all pharmacy technicians were female.  The court found that the evidence was sufficient to show that the defendant discriminated against the plaintiff in terminating her.  The court reasoned that a reasonable jury could have disbelieved the defendant’s reason for terminating the plaintiff; that the plaintiff’s base wage was lower than her male counterparts, and that there was discrimination based upon the fact that the male pharmacist on duty when another prescription was falsified was not disciplined or terminated.  The court found an award of compensatory damages was supported by the evidence, but that punitive damages amounting to $1 million were not warranted because the defendant’s conduct was not so outrageous or egregious.



Lowery v. Klemm Supreme Judicial Court of Massachusetts (2006)

Sexual harassment

Here, the plaintiff volunteered at a swap shop operated by the Town of Falmouth at its waste management facility.  The defendant was the land supervisor and gatekeeper of the facility.  The defendant often visited the shop and made sexual advances toward the plaintiff for three years, despite her requests that he leave her alone.  The town subsequently terminated the plaintiff’s volunteer services and barred her from the facility.  Id. at 572.  The plaintiff sued the defendant for sexual harassment in violation of M.G.L.A. 214 § 1C.  The court found that M.G.L.A. 214 § 1C states that “[a] person shall have the right to be free from sexual harassment, as defined in chapter 151B and 151C.”  Id. at 577.  The court then noted that the definition of sexual harassment in G. L. C. 151B and 151c does not explicitly protect volunteers from sexual harassment and instead limit conduct to academic and employment contexts.  The court thus found that there is only statutory protection against sexual harassment in employment and academic contexts and there was no such protection for volunteers.  Id.  However, persons outside of this context, including volunteers, may pursue common law claims of sexual harassment.  Id. at 580-81.



Cuddyer v. Stop & Shop Supermarket Co. Supreme Judicial Court of Massachusetts (2001)

Employment discrimination, Sexual harassment

Here, the plaintiff worked for the defendant as a worker on production lines.  Since the first day she was sexually harassed by her supervisor and two foremen, as were other women workers. Although plaintiff reported some of the incidents, she did not report all because she was afraid the supervisor would make her work harder if she complained. Complaints to management were followed by periods of relief, but the sexual harassment would restart or would turn into a hostile work environment. Similar occurrences continued and the plaintiff filed the suit against the defendant for a hostile work environment. Gen. Law. C. 151B, § 5 requires a plaintiff to file a complaint with the Massachusetts Commission against Discrimination (“MCAD”) within six months of the occurrence of the discrimination to allow the MCAD an opportunity to investigate the claim and to provide the defendant with notice of potential liability. However, this requirement does not exist where the discrimination is of a continuing nature and where there is a discrete violation within the six-month period to anchor the earlier claims. Here, the plaintiff did not file a complaint with the MCAD within six months of the first occurrence. The defendant argued that the continuing violation doctrine does not apply here because the plaintiff admitted in her deposition that she considered the discrimination by other employees at the time the acts occurred. A continuing violation claim will fail if the plaintiff should have been aware that she was being discriminated against while the earlier acts which are now untimely, were taking place. Id. at 534-35. The court found though that a plaintiff may not be able to appreciate the true character of the discriminatory environment until after it has continued for some time. Further, a hostile work environment constitutes a pattern of sexual harassment, which by definition, has to take place over time. The court found the plaintiff’s claims were thus timely and not barred by the six-month requirement.



Ramsdell v. Western Mass. Bus Lines, Inc. Supreme Judicial Court of Massachusetts (1993)

Employment discrimination, Sexual harassment

Here, a female employee appealed the decision of the Commission Against Discrimination which dismissed her complaint against her employer for sexual discrimination.  The Massachusetts Supreme Court affirmed the Commission’s decision.  Under Gen .L. C. 151B, §4(1) (1990), employment discrimination on the basis of gender is prohibited.  The Massachusetts Code defines sexual harassment as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.”  Gen. L. C. 151B, §1(18) (1990). 



College-Town, Div. of Interco, Inc. v. Mass. Comm’n Against Discrimination Supreme Judicial Court of Massachusetts (1987)

Employment discrimination, Gender discrimination, Sexual harassment

Here, an employer appealed the superior court’s decision that it discriminated against an employee on the basis of sex.  A few weeks after College-Town hired the employee, Rizzi, Rizzi’s supervisor began making sexually suggestive comments to her.  Once he touched her back, and another time he put his hand over a slit in her dress and told her to fix her skirt.  On one occasion, Rizzi asked her supervisor to review her performance in a meeting and he told her that she handled it well and that he “liked the way [her] tits stood out in the red shirt.”  Once, he asked her if she was a good f----.  Rizzi then spoke to the director of manufacturing, who told her he was “not qualified to go into these things,” and refused to talk to her.  Rizzi had to wait several days before she could tell someone else at work.  A College-Town executive finally spoke with the supervisor about the allegations, which were denied.  A meeting was held to determine the truth of the allegations, which the supervisor and all other women in the department attended except for Rizzi.  She was not asked to the meeting or notified of its occurrence.  At the meeting, the supervisor explained the allegations and Rizzi’s co-workers were generally supportive of the supervisor.  College-Town made no further investigation.  Prior to that meeting, Rizzi sought a promotion to a position in another department.  After the meeting was held, Rizzi was informed she was not qualified for the promotion and College-Town hired someone with more knowledge and experience.  Soon thereafter, College-Town attempted to transfer Rizzi as tension in the office was affecting productivity and she declined.  Rizzi was never told the transfer was mandatory, and within weeks of her denial, she was discharged. The trial court found that College-Town’s supervisor created a sexually harassing work environment, it failed to remedy the situation, and it retaliated against the employee in its attempt to transfer her and discharge her once she declined the transfer.  Id. at 158.  The Massachusetts Supreme Court affirmed the decision and found that sexual harassment may constitute discrimination under Gen. L. C. 151B, §4(1), which prohibits employment discrimination on the basis of gender.



Caplan v. Donovan Supreme Judicial Court of Massachusetts (2008)

Domestic and intimate partner violence

Here, the plaintiff was a resident of Massachusetts and she sought an abuse prevention order against her nonresident partner.  The plaintiff and her partner met in Massachusetts and moved to Florida, where they had a child.  The plaintiff took the child to Massachusetts on occasion but the defendant never returned.  The plaintiff alleged that the defendant physically abused her and she fled to Massachusetts with her son.  The plaintiff alleged that prior to her escape, the defendant accused her of cheating, called her a whore, and threatened to kill her and the child.  He blocked the door when she tried to leave and when she took the phone to call the police, he ripped the phone from her hand and threw it across the room.  Once the plaintiff arrived in Massachusetts, the defendant called his friends and the plaintiff’s cell phone several times a day trying to locate her.  The plaintiff subsequently filed a complaint in court in Massachusetts seeking a protection order.  The court issued an order which granted the plaintiff custody of the child and directed the defendant not to abuse the plaintiff or the child, not to contact them, to surrender his firearms in Florida and to compensate the plaintiff monetarily.   The court found that the plaintiff was entitled to an abuse prevention order directing the defendant not to abuse her, not to contact her, to stay away from the plaintiff and her residence, granting custody of the child to the plaintiff, and ordering the defendant to stay away from the child.  However, the court found that it was a violation of the defendant’s due process rights to order an affirmative obligation on him, including paying money and handing over his firearms, as the court had no personal jurisdiction over the defendant.



Iamele v. Asselin Supreme Judicial Court of Massachusetts (2005)

Domestic and intimate partner violence

Here, the plaintiff and the defendant lived together and had a son together. The defendant physically abused the plaintiff for two to four years. The plaintiff had previously obtained a protection order against the defendant under Gen. Law C. 209A, which expired. The day after the order expired, the defendant called the plaintiff and was highly agitated and threatening. The plaintiff sought a renewal of the order. Prior to the hearing regarding the extension of the order, the plaintiff stated that the defendant made several phone calls to the plaintiff attempting to reconcile and then becoming mean. Many of these calls occurred while the plaintiff was at work and caused her to lose her job. The plaintiff feared the defendant would kill her without the order. The defendant’s attorney at the hearing argued he only contacted the plaintiff to re-establish his relationship with his son. The judge refused to grant the extension, finding that the plaintiff is “clearly in fear no matter what” and providing no reasoning for the refusal. Upon appeal the court found that the plaintiff needed to make a showing similar to what is required to obtain an initial protection order, by a preponderance of the evidence. The court noted that it should consider the defendant’s violations of protective orders, ongoing child custody or other litigation likely to bring hostility, the parties’ demeanor in court, the likelihood the parties will encounter each other in their usual activities, and if there are significant changes in the parties’ circumstances. Here, the court remanded the case because the trial judge did not define the burden the plaintiff needed to meet to warrant an extension and he did not explain which part of the plaintiff’s case was insufficient to warrant the extension.



Aguilar v. Hernandez-Mendez Massachusetts Appeals Court (2006)

Domestic and intimate partner violence

Here, the defendant appealed an abuse prevention order that was issued against him for the benefit of his father’s girlfriend. The plaintiff and her two teenage daughters lived with the defendant’s father. The defendant lived there as well for about two years until he moved out. Once he moved out though, he still had keys to the apartment, still received mail there, took showers there, spent the night there on occasion, and had the ability to let himself inside without making prior arrangements with his father or the plaintiff. The plaintiff obtained a restraining order against the defendant because he threatened her for over a year that he would pay someone to kill her if she did not leave his father. He also came to the apartment several times uninvited and pushed the plaintiff. He also threatened and pushed her two children. The court granted an extension of a protective order as it concluded that the defendant and the plaintiff were former household members. The defendant argued that he and his father’s girlfriend were not considered “household members” under Gen. L. C. 209A, § 1, and as a result, the court could not issue a protective order against him as to his father’s girlfriend. The court disagreed and found that a household member does not have to be a family member. The court affirmed the extension.



Com. v. Boucher Supreme Judicial Court of Massachusetts (2002)

Sexual violence and rape

Here, the defendant had pled guilty to rape of a child and assault and battery on a child.  Before he was about to be released from custody at the completion of his sentences, the State filed a petition to commit him as a sexually dangerous person under Gen. L. C. 123A, §§1, 12, as someone who has been convicted of a “sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility.”  Id. at 275.  The trial judge dismissed the State’s petition as it found the State failed to show beyond a reasonable doubt that the defendant was likely to commit new sexual offenses unless confined.  The court found that the State had to show a risk of committing a new offense of at least fifty percent, or, more likely than not.  The State appealed.  Here, the court was faced with defining the word “likely” as used in Gen. L. C. 123A, § 1 in defining a sexually dangerous person as someone “likely to engage in sexual offenses if not confined to a secure facility.”  Id. at 274.  The court noted that to determine what is “likely,” the court must consider the seriousness of the threatened harm, the relative certainty that the harm will occur, and the possibility of successful intervention to prevent the harm.  Id. at 276.  Further, “likely” indicates more than a mere possibility or probability, but it is not bound to a statistical definition such as “at least fifty percent.”  Id. at 277.  Further, the statute does not indicate it has to mean more likely than not.  As such, the court found the trial court erred in its interpretation of “likely” and it remanded the case.