Tuesday, July 05, 2011

Monteiro Case: Argument over Supreme Judicial Court decision

1. Introductory.
2. The Cited Case.
3. Key language in the cited case.

1. Introductory.

I have earlier reported on the appearance of three papers in the Appeals Court case on Malvina Monteiro v. City of Cambridge. This blog report is the latest in a pretty rapid series of reports coming from those papers. Based on the recent nature of those reports, I will not go into detail here on Monteiro v. City of Cambridge.

Cambridge filed a paper. Monteiro filed a response. The Court said both papers were out of order and not properly filed.

A knowledgeable attorney then provided more detail on the papers and commented that he considered the Appeals Court action indication that the Appeals Court panel had made up its mind.

2. The Cited Case.

The correct citation of the case, taken from the docket is: PSY-ED CORPORATION & another vs. STANLEY KLEIN & another; DAVID HIRSCH & others, third-party defendants (and a companion case), SJC-10722, 459 Mass. 697
Rescript 5/12/2011 (#24) Lower Court: Middlesex Superior Court, sua sponte transfer from Appeals Court.

The rescript date is the date of publication of the report. 459 Mass. 697 is the place to look in the filing system of the decisions of the Massachusetts Supreme Judical Court to find the full case. 459 is the volume number. 697 is the page number.

I have reviewed the case and I have to agree with the knowledgeable attorney on his evaluation of the filings by Cambridge and Monteiro, without even being able to read those filings.

It strikes me as surprising that Cambridge would bother the court with filing a paper saying that this case could be considered supportive of Cambridge’s case in Monteiro v. Cambridge.

In this case, the plaintiff alleged retaliation by the filing of a civil action by the employer against the plaintiff after the plaintiff’s employment was terminated.

The decision supports Monteiro. It says that a retaliation complaint can properly be filed.

3. Key language in the cited case.

I am not going to bother you with who said what and who did what. There are more than one plaintiff and the Court for good reason distinguishes between the two.

I think the key language in the decision is quite adequate. My quote starts on page 710 of the opinion. I have also made all the comments I intend to.


b. Schive's claim of retaliation.

In reviewing a judge's decision after a jury-waived trial, "we accept the judge's findings of fact as true unless they are clearly erroneous" but "scrutinize without deference the legal standard which the judge applied to the facts." Kendall v. Selvaggio, 413 Mass. 619, 620, 621 (1992). With respect to Schive's claim of retaliation, we conclude that the trial judge applied the proper legal standards to the facts, and that his factual findings were not clearly erroneous.

The judge properly outlined the elements of unlawful conduct under § 4(4). Relying on Sahli, 437 Mass. at 702-704, he identified the dividing line between "[b]aseless" or "sham" litigation, which is not protected by the First Amendment to the United States Constitution, and those "reasonably based but unsuccessful lawsuits" that are constitutionally protected and so cannot constitute a violation of § 4(4) or (4A). He correctly pointed out that, while a causal connection must be established between protected conduct and adverse action, that connection may be shown either directly or by inference. Where the link is inferentially shown by closeness in time between an adverse action and the conduct that apparently triggered it, he stated, the triggering conduct need not be the initial filing of the complaint.

The judge ruled that Schive engaged in legally protected conduct by bringing her discrimination claim with the MCAD. He further ruled that the 1999 action [28] was an "adverse employment action" and that it was "baseless, " see Sahli, supra at 702-704, in that all claims against Schive were dismissed "on

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the grounds that admissible evidence of damages and actionable defamation was lacking." [29] He found Schive demonstrated the necessary causal link between the protected conduct and the adverse action where, in the judge's view, Valenzano testified at trial that he brought the case to "retry" Schive's MCAD claims, [30] and where the "rapid succession" of events in the fall and winter of 1999 also supported an inference of a causal connection between Schive's MCAD case and the complaint her former employer filed. [31] The trial judge concluded by ruling that "Schive

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has acted reasonably and in good faith in believing she had suffered discrimination, and reasonably responded to that belief by filing a complaint at MCAD." [32] The judge found, "[b]ased on direct and indirect evidence, " that Psy-Ed and Valenzano brought suit "because of her reasonable efforts at MCAD." [33]

c. Klein's claim of retaliation.

As noted in Part 1(c), supra, the motion judge entered summary judgment on Klein's claim for retaliation on the ground that the retaliatory acts he alleged "occurred over two years after the employment relationship between the parties terminated." Because, as we have concluded,

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a person need not be a current employee to enjoy the protection of § 4(4) and (4A), the entry of summary judgment on Klein's claim must be vacated. [34]