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Election 2016: one call to make the day after

October 26, 2016:- With less than a fortnight to go until the general election, now is the time to start thinking about the day after.

In addition to choosing the state’s presidential electors, in 13 days’ time Massachusetts voters will elect the state legislature, officially known as the Great and General Court of Massachusetts. Perhaps “elect” is too strong a word given that almost 80% of the seats are uncontested, earning Massachusetts a competitiveness ranking of 44 out of 50. Nevertheless, even without the ordeal of an actual race many freshly re-elected politicians tend to experience feelings of relief and generosity of spirit, which makes Election Day + 1 an ideal time to ask them for a favor.

If you are willing to make one post-election request of your state representative and senator, please consider asking them to co-sponsor a bill to restore some balance to the Massachusetts Commission Against Discrimination (MCAD). The goal is quite modest. If enacted, this piece of legislation would require the MCAD to make sure that it only handles cases that fall within its jurisdiction. In fact it does not even go that far. It puts the onus on the respondent (the person being accused of discrimination) to file a motion to dismiss, which would automatically stay, i.e. pause, the investigation until the MCAD determines that it does, in fact, have jurisdiction.

Why is this necessary? Because, as a report by the State Auditor showed, the MCAD routinely investigates cases that are outside its statutory remit, which not only contributes to the agency’s four-year backlog but is unfair to the individuals who are haled in and investigated without justification. Click here for my article on the subject in the Massachusetts Bar Association’s Lawyers Journal.

Invidious discrimination is real, and there are enough cases that do fall within the MCAD’s jurisdiction without the agency having to spend its budget investigating cases that do not. The new legislation would restore some balance. If you would like a copy of the bill and a bill summary for legislators and their aides, email peter@petervickery.com with the words “MCAD Bill” in the subject line.

justice

 

DTA discrimination case must go to jury

The Massachusetts agency that (according to the State Auditor) gave benefits to 1,164 people who were already dead, could not account for whereabouts of 30,000 electronic benefits transfer (EBT) cards, and (according to CBS Boston, the Boston Herald, and 22 News) allows benefits recipients to use their EBT cards in places such as Hawaii, Florida, California, Puerto Rico, and the Virgin Islands, received some good news recently. The Department of Transitional Assistance (DTA) must have relished the summary judgment it obtained in an age-discrimination case. But not for long. Yesterday the Appeals Court cut short any DTA celebrations when it ruled that the case must go to the jury.

The plaintiff, Diane M. Younker, alleged that DTA discriminated against her on the basis of her age (70) when it demoted her and gave her position (director of the Revere office) to a younger employee, Paul Sutliff (53). Ms. Younker also alleged that she lacked the necessary connections, with promotions going to employees who were more political wired.

DTA said that it demoted Ms. Younker because Mr. Sutliff would be better at dealing with what it claimed to be a pressing problem confronting the Revere DTA: overcrowding in the waiting room. The congestion was simply dreadful, it would appear. Now, admittedly, the demotion occurred in 2009 — a few years prior to the revelations about the DTA’s habit of giving cash to corpses — so at that point the most important skill for a director may well have been familiarity with feng shui as opposed to the ability to distinguish the living from the dead.

What bothered the Appeals Court was Ms. Younker’s testimony that nobody from HQ ever instructed her to implement any particular changes to address the waiting-room congestion, which contradicted the deposition testimony of Assistant DTA Commissioner John Augeri. “I was never given a specific set of implementations I was supposed to institute,” Ms. Younker averred. Ms. Younker’s affidavit refuting Mr. Augeri’s testimony “raised a genuine issue of material fact,” the Appeals Court held. Because direct evidence of discriminatory animus is rare, and the “circumstantial evidence… may be viewed as supporting a conclusion that the defendant’s proffered reason is false,” it should go to the jury.

The take-away for litigants? Buttressing a motion for summary judgment in a case that hinges on discriminatory animus requires detailed, credible evidence, both documentary and testimonial.

P.S. Reports from the ongoing political-patronage trial of John O’Brien contradict claims that DTA has long been turning a blind eye to waste, fraud, and abuse. As far back as 2007 the agency even had a unit dedicated to investigating benefit fraud, but it lost one committed member to the Probation Department (where the pension was higher). Patricia Mosca told the court about the prowess she brought to her job at DTA: “I could do it in my sleep,” she testified.

P.P.S. No word yet on whether the seating arrangements at DTA’s Revere office have improved since 2009.