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Verdict reflects trend in employment disputes

Bar: retaliation claims easier to win than bias

Although an accusation of workplace discrimination can do serious damage to a company’s reputation, the claim that an employer illegally retaliated against a former employee can really cost it in the courtroom.

The case of Kiely v. Teradyne, Inc., which recently concluded with a Superior Court jury in Massachusetts awarding $1.1 million in punitive damages, illustrates the point.

In a trial presided over by Judge Geraldine S. Hines, plaintiff Deborah Kiely accused her longtime employer of both discriminating against her as a female and retaliating against her for filing a complaint with the Massachusetts Commission Against Discrimination when it did not rehire her after she was laid off in November 2006.

Even though the jury found at the end of the two-week trial that the defendant employer, Teradyne, was liable for retaliation, it decided that Kiely had failed to prove her discrimination claim.

Boston lawyer Inga S. Bernstein, who represented the plaintiff, said the split verdict is part of a growing trend in employment disputes in Massachusetts.

“It’s been my experience that it’s often easier to convince a jury of a retaliation claim than a discrimination claim,” Bernstein said. “My totally unscientific theory is that people understand the impulse to retaliate — if someone does something that makes you angry, you hold it against them — and they can understand that employers and their managers may do that, too.”

Jonathan D. Rosenfeld of WilmerHale in Boston represented the defendant. He could not be reached for comment prior to deadline.

Easier for jurors

Jonathan J. Margolis, who was not involved in the case, said it is common knowledge in the employment bar that it is far more difficult to prove discrimination than retaliation.

“Jurors can understand the idea that when an employer is accused in a lawsuit or MCAD complaint of wrongdoing, they may respond by striking back at the plaintiff,” said Margolis, an attorney at Rodgers, Powers & Schwartz in Boston. “In many ways, it’s a lot easier for a jury to reach that kind of a conclusion than it is to find that a defendant, who’s been in the courtroom throughout the trial and been on the witness stand, is a bigot.”

Retaliation claims like the one in Kiely also better lend themselves to large jury verdicts because they involve the type of intentional wrongdoing needed to justify punitive damages, Margolis said.

“To prevail on one of these, you have to be able to show the jury that there was some level of bad conduct,” he said. “The intent to retaliate is often the requisite bad conduct needed to legally justify a punitive damage finding.”

Management-side employment attorneys say they, too, have witnessed the strength of the retaliation claim.

“Don’t discount that retaliation claim, because quite often it’s the tail that wags the dog,” said Lynn A. Kappelman of Boston’s Seyfarth Shaw in Boston. “Even if [the plaintiff has] a hard-to-win discrimination case, it’s often the retaliation claim that is so hard for management to defend.”

As a result, Kappelman urges her clients to make sure they can trace the termination, demotion or adverse employment decision to events that took place before the employee filed the complaint.

Gary J. Oberstein of Nixon Peabody said discrimination claims usually involve a degree of generality and inference, which can be difficult for jurors to follow. Retaliation claims, on the other hand, tend to be more straightforward and easier for a jury to piece together.

“It is oftentimes natural for the fact-finder to presume that the employer did not want to work with someone who was in the process of, or had already, sued them,” the Boston attorney said.

Consequences of complaining

The plaintiff in Kiely worked as a technician in the defendant’s 11-person repair department until she was laid off in 2006.

During her 24 years at the company, the plaintiff said, she was a model employee who always received excellent performance reviews.

As part of her 2008 complaint, she alleged that Teradyne retaliated against her by failing to rehire her for two technician positions that became available after she filed her MCAD gender discrimination complaint. Instead, the company opted to rehire two male technicians who had also been laid off, the plaintiff alleged.

At trial, Bernstein, who handled the case with Emma Quinn-Judge, asked the jury to infer from trial testimony that Teradyne was poor in promoting women at the company.

She argued that the shrinking number of female technicians comprising the workforce at Teradyne was evidence of that pattern. In 2000, nearly 20 percent of the company was female. Six years later that number had plummeted to 10 percent, she said.

When the company conducted the layoffs, Kiely was the only one to actually lose her job, as Teradyne rehired the male employees, Bernstein added.

“There’s unconscious bias. People make assumptions about who people are because of their gender and their background all the time. That is what happens. And is it hard to prove?  Yes,” said Bernstein, who practices at Zalkind, Rodriguez, Lunt & Duncan.

In the end, it was the indisputable sequence of events that pushed the jury to see Teradyne’s failure to rehire Kiely as retaliatory and not discriminatory, the plaintiff’s lawyer said.

When Kiely learned on Nov. 6, 2006, that she was being laid off, a supervisor emailed her to say she was one of “the best of the best” and offered to help with future job recommendations, Bernstein said. However, after Kiely filed her MCAD complaint later that month, management chose not to recommend her for rehire.

“So Deb Kiely on November 6 is the ‘best of the best,’” she said. “And by December 4 she’s nothing. Not worth mentioning.”

The company has filed a motion for judgment notwithstanding the verdict, which is pending before Hines.

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