The Commonwealth of Massachusetts Commission Against Discrimination One Ashburton Place, Boston, MA Phone: Fax:

Transcription

1 The Commonwealth of Massachusetts Commission Against Discrimination One Ashburton Place, Boston, MA Phone: Fax: Date: Paul F. Kelly, Esq. Segal Roitman, LLP Counselors At Law 111 Devonshire Street, Fifth Floor Boston, MA Re: MCAD Docket Number: EEOC/HUD Charge Number: 16C Dear Parties: FINDING OF SPLIT DECISION You are hereby notified that I have found probable cause to credit the allegations of discrimination based on Retaliation against Massachusetts Bar Association in your complaint. A copy of the disposition is enclosed. The Commission is charged by statute (G.L.C.151B, 5) to try to enforce compliance with the Commonwealth's anti-discrimination laws without resort to a public hearing. To this end, parties and counsel are required to attend a conciliation conference at the Commission's office on Conciliation is difficult or impossible unless persons with authority to settle the case are present. The officer designated to appear for a business or other entity must be familiar with the case and authorized to offer an appropriate settlement. Complainant's counsel should send a written proposal of settlement to Respondent's counsel not less than 10 days before the scheduled meeting. We also require that parties hold preliminary settlement discussions at least five days before the conciliation date. Be prepared to spend one to two hours at the conciliation session. Failure to attend the session may result in immediate certification to public hearing and/or imposition of sanctions for costs incurred by the Commission and the opposing party. Furthermore, Complainant's failure to attend may result in dismissal of the case. MCAD Docket Number 06BEM00946, SPLIT Decision Disposition Page 1

2 No continuances will be granted except upon written motion to the Conciliation Clerk with notice to the opposing party and upon a showing of good cause. Please direct correspondence to Vanessa Davila via fax at (617) LACK OF PROBABLE CAUSE FINDING Please be advised that a finding of lack of probable cause has been made regarding the allegations of Sexual Harassment, Hostile Work Environment on the basis of Sex, and Disparate Treatment on the basis of Sex against Massachusetts Bar Association in the above referenced complaint. This means that our investigation of the complaint did not reveal sufficient evidence of an unlawful act of discrimination. Therefore, the allegations of Sexual Harassment, Hostile Work Environment on the basis of Sex, and Disparate Treatment on the basis of Sex against Massachusetts Bar Association have been dismissed. APPEAL PROVISION AND PROCEDURE If the Complainant wishes to appeal the lack of probable cause finding and believes that the dismissal was incorrect, the Complainant may appeal to this Commission within ten days of receipt of this notice. Appeal of the dismissal must be made in writing by you or your attorney to the Appeals Clerk of this Commission (Attn: Nancy To). Where applicable, all employment complaints were filed by the MCAD with the Equal Employment Opportunity Commission. Our finding, which will be forwarded to its area office, JFK Federal Building, Boston, MA, will be given substantial weight provided that such findings are in accordance with the requirements of Title VII of the Civil Rights Act of 1964, the ADEA, and/or the ADA, as amended. Very truly yours, ~ Sunila Thomas-George Investigating Commissioner Cc: '. ' I Amy E Mendenhall Littler Mendelson PC. [ One International Place, Suite 2700 Boston, MA David C. Casey, Esq. Littler Mendelson, P.C. One International Place, Suite 2700 Boston, MA Marilyn C. Wellington 108 Wilson Road Nahant, MA MCAD Docket Number 06BEM00946, SPLIT Decision Disposition Page

3 INVESTIGATIVE DISPOSITION Case Name: MCAD Docket No.: EEOC Docket No.: 16C No. of Employees: 25+ Investigator: Carmen Zayas, Compliance Officer II Recommendation: Split Decision Introduction On December 22, 2008, Complainant filed a complaint with this Commission alleging Respondent retaliated against when it terminated her employment for asserting gender discrimination and harassment, in violation of M.G.L. Chapter 15IB, Section 4, Paragraph 4 and Title VII. On March 27, 2009, Complainant amended the complaint to add claims of gender discrimination and sexual harassment, in violation of M.G.L. Chapter 15 IB, Section 4 Paragraph 1, 16A and Title VII. On October 21, 2009, the complaint was amended sua sponte pursuant to 804 CMR 1.10(6) (b) to incorporate Complainant's affidavit as part of the complaint. Complainant's Allegations : Complainant alleges she was hired as Executive Director by then MBA President Warren Fitzgerald with an employment agreement covering the period December 1, 2005 until December 1, Complainant alleges that during that time, David White was Respondent's President-Elect and a member of the Budget and Finance Committee. White's term as President commenced in September In August 2007, Complainant alleges she informed White she had asked Boston attorney, Charles Wagner to represent her in the renegotiation of her employment agreement. In October 2007, Wagner formally secured authorization to proceed as Complainant's counsel in the negotiation, with the Negotiating Committee comprised of White and two past Presidents Warren Fitzgerald and Kathleen O'Donnell. Complainant alleges that in order to negotiate fair terms for her agreement, she collected comparative data concerning the salary of other Bar Association Executive Directors and other non-profit organizations of similar size, administrative structure and purpose. Complainant states that she believed her salary was not only below comparable salaries but also substantially below the two other male Executives, the General Counsel and the insurance agency president.

4 Complainant alleges that by November 2007, White expressed to her his view that her counsel was "too aggressive" in the negotiations. Complainant believes that White's comment was related to Attorney Wagner raising the issue of gender disparity in compensation packages in the contract. Complainant alleges that by the end of December 2007, White's attitude and behavior began to change. Complainant states that White's unfair and misplaced dissatisfaction became noticeable to many people, particularly to staff who observed his behaviors towards her at the office. Complainant alleges White also began to undermine her decisions and authority in the presence of staff. Complainant alleges that in January 2008, White commented before staff that he and she should just sit down over a couple of drinks and hammer out her contract without the involvement of counsel. He then grabbed her forcefully and hugged her. Complainant alleges that on March 24, 2008, White ed her stating the contract negotiations had concluded, and directed Complainant to sign a copy and return one to his attention. Complainant did not sign the copies as she wanted all activities relative to her contract to be handled by her attorney, Wagner. Complainant alleges that she immediately contacted Wagner and that the following week she signed the authorized employment agreement. Complainant alleges White began increasing his supervisory presence and direct contact, often in Complainant's absence with staff members after the execution of the employment agreement. White showed up unannounced and it got to the point that staff would call her to alert her that White was on his way up. Complainant states staff complained that White was openly undermining her authority and directly contradicting instructions she had otherwise provided them as their supervisor. Complainant alleges that on March 27, 2008, White berated her in her office for not sufficiently supporting him and his initiatives, not having sufficient respect for him and not staying supporting him at events. Complainant claims that although she defended herself, toward the end of the meeting, she challenged White stating he didn't respect her or the position she held. Complainant alleges White concluded the meeting by standing up from his chair demanding a hug, to which she responded, "No". Complainant alleges White demanded a hug and she again refused three times. Complainant claims she told White to leave her office. Complainant alleges White's conduct at that meeting was inappropriate. Complainant alleges that in May 2008 she and Mark Doherty presented a budget proposal to the Budget and Finance Committee, which was unanimously approved and sent for final approval by the EMB. Complainant alleges that in June 2008, White announced that he had no intention of either supporting the budget or permitting the EMB to vote on it and that White changed the budget from what had been previously approved.complainant alleges White ordered her to fire a lawyer-journalist consultant and that on July 10, 2008, White ed the Officers, with a copy to her and General Counsel Martin Healy characterizing Complainant's decision not to fire the consultant as "direct disobedience of [his] directive".

5 Complainant alleges that on July 11, 2008, she discussed with Treasurer Valarie Yarashus and President-Elect Mclntyre the difficult situation between White and herself. Complainant alleges Mclntyre persuaded her to take a period of paid administrative leave. Complainant claims Mclntyre notified the Officers of the July 11 th meeting and that he had instructed Complainant to take a brief paid administrative leave in order for him to address and remedy what had become a "hostile working environment" for Complainant. Complainant alleges that White met this communication with flagrant opposition. Complainant claims that during the first week of her administrative leave, she was in close communication with both General Counsel Healy and with President-Elect Mclntyre. Complainant alleges that regular communications with Healy came to an abrupt end. Complainant claims she felt compelled to return to work on Monday, July 28th in order to keep her job. Complainant alleges that upon her return on July 28 1, White instructed her to attend an Officers' meeting chaired by him to discuss Mark Doherty's compensation package. Complainant alleges that when White questioned her authority in granting Doherty a bonus, she replied that as Executive Director she had responsibility for hiring and firing executive staff that report to her and it allowed her to enter into such agreements. Complainant alleges that as part of the process, and as a matter of practice she ran the bonus agreement by General Counsel Healy for his legal review before she entered into the agreement. However, Complainant alleges that Healy, in an effort to protect himself, stated he had never seen the agreement before. - v 6 i Complainant alleges she is not sure what investigation Respondent conducted prior to her return to work but that she has reason to believe that no investigation was in fact conducted. Complainant alleges that during the month of August, she reported to work every day but was effectively barred from performing the operational duties and functions of her position by White, who had usurped the day-to-day operations himself. Complainant alleges that on August 12, 2008, White announced to staff that he was conducting an evaluation of Complainant and encouraged all staff to anonymously submit comments and share any concerns with him confidentially by telephone, and asked that the staff evaluations be returned to him at his law office which was in direct violation of her new contract. Complainant alleges that White's action was retaliatory and a clear indication that White wished to terminate her employment. Complainant alleges that during the last weeks of his term; White called "emergency" EMB meetings into Executive Session so that she would be excluded and used these meetings as a forum to make accusations about her performance, veracity, and integrity, without providing her an opportunity to answer the accusations. Complainant claims that these meetings set the stage for termination. Complainant alleges that the EMB voted to retain additional counsel to conduct an investigation into "claims" associated with Complainant. Respondent commenced an investigation. Complainant alleges that as part of Respondent's investigation she met with Gallitano and his partner Carol Starkey on

6 September 16, 2008 and on October 30, 2008 and the investigation concluded on or about November 25, Complainant alleges that on December 11, 2008, while in an Officer's meeting, Attorney Crawford entered the room and that she was then asked by General Counsel Healy to step out and go with him to her office where she was handed a notice of termination. Complainant alleges that Healy informed her that the Officers directed him to terminate her employment, effective immediately. On information and belief Complainant alleges there was an EMB meeting shortly after she was escorted from the building and believes the EMB was informed of her termination but does not believe they were asked to vote to approve it. Complainant states that it was reported publicly that the EMB did not ratify the decision to terminate her employment until sometime in January Complainant alleges that the four Officers who terminated her employment did so because they viewed the investigative report providing cover to the Association with respect to the treatment it had accorded her over the past several months. Complainant alleges that the actions of White, particularly in June, July and August, were designed to either force her to resign or set the stage for termination. Complainant alleges that the investigation that was commissioned by Respondent was done solely to provide the pretext on which they are trying to hide their unlawful animus against her. Therefore, Complainant alleges that Respondent subjected her to a hostile work environment and disparate treatment based on her gender, subjected her to sexual harassment, and retaliated against her because of her complaints about gender disparity in her compensation package and for complaining about a hostile work environment based on gender. Respondent's Position Respondent denies it discriminated against Complainant. Respondent states Complainant was hired in 2004 as Executive Director under a three year employment contract which would expire on December 31, The then-president David White, former presidents Warren Fitzgerald and Kathleen O'Donnell and Complainant's then-counsel Charles Wagner negotiated the terms of the new contract. The employment contract was signed by all parties in March 2008 and made retroactive to December 1, Respondent states Complainant, personally and through her counsel, originally raised the fact of disparate incomes among upper management as early as October 2007 (during the term of her first employment agreement) based on her view that certain terms of her contract varied from those of certain male employees. Respondent argues that all of the factual bases for Complainant's MCAD complaint that allege gender discrimination on the grounds of disparate salary and employment terms are time-barred by the applicable 300- day limitations period. Respondent also argues that the Respondent's employees whom Complainant compares herself to were not similarly situated to Complainant in their job

7 responsibilities, experience and seniority. Respondent asserts that there was not actually a material difference in salary between Complainant and at least one of the other employees. Respondent states that one of Complainant's key job duties was to prepare and recommend a budget for the organization. The budget put together and recommended by Complainant for Fiscal Year 2008 proposed a deficit of $850,000 and as such, was rejected by the MBA Executive Management Board. As a result, the Budget and Finance Committee then began to investigate and prepare a revised budget. When White delved into budget details, Complainant often refused to provide him with information and documents that he needed and requested. Respondent states that in open defiance of White's request, Complainant withheld the contract of the controller who she had recently hired, and later when White was able to obtain that contract, Complainant lied about the circumstances surrounding the re-hiring of the controller. The controller had been a former employee who left and was rehired a few months later by Complainant at almost double his prior salary together with a bonus clause that rewarded the controller with additional money if he brought the actual budget in lower than the proposed budget. Due to the highly inflated nature of the proposed budget, this caused leadership concern, and raised a conflict issue regarding the contract terms that appeared to give the Complainant and/or the controller the ability to increase his compensation by manipulating proposed budgets. When confronted with this contract, Complainant declared first that she was not required to have anyone review or approve such a contract. She then later stated that she had shown it to and discussed it with the MBA's general counsel in advance. Neither statement was true. Respondent asserts on July 11, 2008, President-elect Edward Mclntyre wrote an which described a possible claim by Complainant against Respondent based on White's actions towards her. Respondent asserts that in July 2008, outside counsel and Mr. Wagner spoke about possible claims by Complainant. Wagner assured Respondent that Complainant had no interest in pursuing any claim against it and merely wanted to return to her job. Complainant had been placed on paid administrative leave by Mclntyre due to her alleged stress. Complainant returned to work early August 2008, when Mr. White asked her to perform certain duties and supply him with information; Complainant again raised the specter or a possible claim of discrimination. Upon.learning that there was a possibility that Complainant might assert gender discrimination or even harassment complaints, Respondent states that it hired an independent law firm, Conn Kavanaugh Rosenthal Peisch & Ford, LLP to commence a complete, thorough, and detailed investigation of her claims. That outside investigation involved in-depth interviews with over 20 potential witnesses identified by the Complainant, including Complainant and her counsel, Charles Wagner. Respondent states in mid August 2008 it hired Tom Gallitano to conduct a full investigation of Complainant's claims. Thomas Gallitano, Co-Chair of Conn Kavanaugh's Employment Law Practice Group, and his associate conducted two separate interviews with the Complainant: one was held at the commencement of the investigation, and one at the end of the investigation to provide Complainant with an opportunity to add additional

8 information. September 16, 2008 Gallitano asked Complainant directly whether she believed she had been subjected to adverse treatment related to her employment on the basis of any protected classification, and whether she had been subjected to any sexual harassment. Complainant stated she did not believe any of the conduct she had complained of at the MBA was due to any protected classification and that she did not believe that any of the conduct was sexual harassment. She confirmed that her claim against the MBA was solely for retaliation for what she believed was a suggestion of gender discrimination raised by her attorney during the contract negotiations that had ended March The investigation concluded that there was no basis for the. Complainant's assertions of retaliation or harassment. Respondent states that prior to, concurrent with and independent of the investigation, it received ongoing complaints about Complainant's ability to do her job and conducted a thorough investigation. While Gallitano conducted his investigation (starting august 2008) Complainant's job performance, treatment of staff and honesty which consisted of staff interviews, review of the budget, and review of exit interviews, communications, and discussions with witnesses were investigated. Both Mr. Mclntyre and Ms. Yarashus recused themselves from the process involving the investigation of Complainant's complaints and job performance. Those duties were then left to the other four "unconflicted" or "non-recused" MBA officers, which included the Treasurer, Secretary and two Vice-Presidents. Respondent states the four "unconflicted" officers who had not been recused from the process began to conduct their own investigation of the complaints they had been receiving from MBA staff and others concerning the Complainant, i.e., the working conditions created by Complainant; her poor performance; her attempts to manipulate opinion; her retaliatory treatment of staff if they did not concur with her position in her dispute with the MBA; her false statements and irresponsibility exhibited with regard to the budget and the controller's contract; and her refusal to communicate with the MBA's General Counsel. In addition, a number of employees resigned from the organization and their exit interviews were replete with stories about a dysfunctional organization and the poor leadership of the Complainant. Those reports and interviews ultimately led to a long list of charges against Complainant with respect to her poor job performance. As a result, Respondent provided Complainant with a notice of intent to terminate on December 11, 2008 in accordance with her employment contract and discreetly but necessarily escorted her from the building. The allegations contained in the affidavit which served as Complainant's opposition to the MBA's motion to dismiss the MCAD Complaint are wholly contested by the MBA. Respondent asserts that Complainant's claims of sexual harassment are completely unfounded. Complainant and her partner were close social acquaintances and friends of Mr. and Mrs. White. Complainant attended the Whites' wedding with her partner, and they socialized together on numerous occasions. Respondent further asserts that the White and Murphy affidavits show that it was usually Complainant who initiated physical contact with people in the workplace by giving them hugs or a hug and a kiss.

9 Summary of Investigation and Analysis Sexual Harassment: In order for Complainant to make a prima facie case of sexual harassment discrimination, she was subjected to sexual advances, requests for sexual favors and/or other verbal or physical conduct that could reasonably be perceived to be of a sexual nature, the conduct was unwelcomed and that the unwelcomed conduct was sufficiently severe or pervasive as to affect a term or condition of employment and/or unreasonably interfered with her work performance and/or created an intimidating, hostile or offensive work environment. Complainant alleges that in the weeks and months prior to September 2007, the commencement of David White's term as President, he would make suggestive and/or sexually charged comments about the appearance of one of the women in his office, what she was wearing and how she looked. Investigation reveals that the alleged sexual comments were made 479 days prior to filing this instant complaint. Complainant has failed to provide any proof that she was subjected to a sexually hostile work environment within the statutory filing period, and therefore there is no evidence of a continuing violation. Pursuant to Chapter 15IB and the Commission's regulations, a complaint must be filed with the Massachusetts Commission Against Discrimination (MCAD) within 300 days after the alleged unlawful conduct. Complainant's allegations of sexual harassment occurring within 300 days of filing are vague and unrelated to White's alleged 2007 comments. Complainant alleges that in January 2008, White stated that he and she should just sit down over a couple of drinks and hammer out her contract without the involvement of counsel then grabbed her forcefully and hugged her. On March 27, 2008, Complainant alleges White concluded a meeting by standing up from his chair demanding a hug, to which she responded, "No". White again demanded a hug and she again refused three times and Complainant told White to leave her office. Complainant alleges this was the first time she recalls being put in the position of having to aggressively remove herself from a situation in which someone in a position of authority over her was intimidating her by use of physical and inappropriate contact. Although Complainant alleges White hugged her forcefully and demanded additional hugs during salary negotiations, Complainant has failed to establish that White's conduct was sexual although the behavior would appear to be inappropriate if true as alleged they do not rise to the level of sexual harassment. During the course of the investigation, Complainant was asked to elaborate on her sexual harassment claims and she failed to do so. Respondent asserts and Complainant fails to rebut that prior to the negotiations of her salary, the parties were friendly and normally hugged each other, Complainant attended White's wedding and socialized outside of work. Investigation reveals based on Respondent's external investigation into the possibility of Complainant filing a gender and retaliation claim, Complainant stated in her interview that she did not believe that any of White's conduct was sexual harassment but that her claim was solely for retaliation for

10 what she believed was a suggestion of gender discrimination raised by her attorney during contract negotiations that ended March Therefore a lack of probable cause is recommended at to the claim of sexual harassment. Disparate Treatment: In order for Complainant to establish a claim of disparate treatment based on gender (female), she must show that she is a member of a protected class; that she was performing her job to the satisfaction of the employer, and she was being treated differently from similarly-situated workers who are not in the same protected category. Complainant is a female; therefore, she is a member of a protected class. Complainant alleges she collected comparative data concerning the salary of other Executive Directors in bar associations and other non-profit organizations of similar size, administrative structure and purpose. Respondent states Complainant's disparate treatment in comparison with similarly-situated male employees, the male employees with whom she attempts to compare herself are not even remotely similarly situated. General Counsel Martin Healy, one employee named as a comparison, has been employed by Respondent in multiple capacities with many differing responsibilities for over twenty years including General Counsel and interim Executive Director. Complainant had been employed by Respondent for less than four years at the time of her termination. Even assuming that Healy was similarly situated to Complainant was being paid a higher salary and benefits than Complainant; this is not evidence which supports Complainant's allegations of gender discrimination which focus on White as the biased individual. In Complainant's rebuttal to her amended complaint, investigation reveals that Complainant states that her charge does not include pay equity claim. Her allegations of disparate treatment are based on White and Respondent engaging in gender discrimination by gender stereotyping. Complainant alleges that by November 2007, White stated her counsel was "too aggressive" in the negotiations. Respondent does not dispute that through Complainant's counsel, Complainant originally raised the fact of disparate incomes among upper management to Respondent as early as October 2007 (during the term of her first employment agreement) based on her view that that certain terms of her contract varied from those of certain male employees. Complainant alleges White treated her more as his personal assistant rather than as the Executive Director and further that White viewed any disagreement as a challenge to his authority, even when she acted within the authority granted by Respondent's bylaws and with the support of other executives. Complainant alleges that similarly situated males were not treated in a like fashion and that White's repeated requests for "hugs and off-color humor were indicative of an attitude which stereotypes and trivializes women." There is no evidence to support that White subjected Complainant to any adverse action prior to her contract negotiations in late Instead, investigation reveals White gave Complainant highly positive performance evaluations during 2006 and 2007 which negates an inference of gender discrimination. Hostile Work Environment: In order for Complainant to establish a prima facie case of hostile work environment based on sex (female), she must show that she is a member of a

11 protected class; subjected to harassing conduct; the conduct was unwelcome; the conduct was sufficiently severe or pervasive to cause the work environment to become hostile, intimidating or humiliating to an objectively reasonable person and that the conduct affected the Complainant's ability to work or altered the terms and conditions of employment. Complainant is a female; therefore, she is a member of a protected class. Complainant alleges that by the end of December 2007 White's attitude and behavior changed. Complainant alleges White undermined her decisions and authority in the presence of staff. Complainant has made multiple allegations of being subjected to harassment and a hostile work environment by then President White during her salary negotiations and after the signing of her contract in March 2008 including requesting hugs, undermining her ability and authority as the Executive Director and showing up unannounced. Complainant alleges that her staff complained that he would contradict her orders and would call her to warn her that he had just entered the building. Complainant alleges she was accused of causing White's medical problem which led him to the emergency room by his wife Denise Murphy. Complainant alleges that on March 27, 2008, White berated her in her office for alleged poor performance which he identified as not sufficiently supporting him and his initiatives, not having sufficient respect for him and not staying by him supporting him at events then wanting to end the argument by requesting a hug three times which Complainant refused each time and asked that he leave her office. Respondent asserts that whenever Complainant was asked to do something that she did not want to do, or provide information that she felt she was not required to give to then President White, vague allegations of either discrimination or retaliation surfaced. Respondent asserts Complainant often refused to provide White with information and documents that he needed and requested. In open defiance of White's request, Respondent asserts Complainant withheld the contract of the controller who she had recently hired, and later when White was able to obtain the contract, Complainant lied about the circumstances surrounding the rehiring of the controller. Investigation reveals animosity between Complainant and White in the midst of and following the contract negotiations and that the animosity escalated during the period of November 2007 through Complainant's termination the following year in December Even if White did subject Complainant to a hostile work environment, Complainant fails to establish his conduct was related to her gender. Retaliation: In order to establish a prima facie case of retaliation Complainant must show she engaged in protected activity, that her employer was aware of the protected activity and that she suffered an adverse employment action after she engaged in that conduct and that there is a causal connection between the protected conduct and the adverse employment action. There is no dispute that Complainant participated in a protected activity when through her attorney Charles Wagner, she complained of disparate treatment on the basis of gender. Complainant has made multiple allegations of being subjected to harassment and hostile work environment by then President White in retaliation during her salary contract

12 negotiations and after the signing of her contract in April These allegations against Respondent include White's unwanted requests for hugs, undermining her ability and authority as the Executive Director, and showing up announced. Respondent states that Complainant had performance issues with budget, the hiring and firing of employees. Investigation reveals that there is no indication that Complainant was acting outside the scope of her duties under the employment contract when she chose not to fire a consultant and chose to rehire Mark Doherty. Respondent assert and Complainant rebuts that Complainant's alleged poor performance issue with budget. Investigation reveals that Complainant along with Mark Doherty and White had shared responsibilities in balancing Respondent's budget. Investigation reveals that Respondent's bylaws Article VI, 10 state: "An Executive Director shall be appointed by the Executive Management Board and shall be the Association's chief administrator who will be responsible for managing the day to day affairs of the Association and shall hire such professional and clerical staff as are funded by the Budget and Finance Committee." On July 11, 2008, Complainant alleges after discussing her difficult situation with Treasurer Yarashus and President-Elect Mclntyre, Mclntyre notified the Officers what had transpired and that he had instructed Complainant to take a brief paid administrative leave in order for him to address and remedy what had become a "hostile working environment" for Complainant. Complainant alleges that this communication was met with flagrant opposition from President White, which only caused the situation to go from bad to worse. Complainant alleges that on August 12, 2008, in direct violation of her new contract which required any performance evaluation of her to be completed and presented to her by May 1st, White announced to staff that he was conducting an evaluation. Investigation reveals that White encouraged all staff to anonymously submit comments about Complainant and share any concerns with him confidentially by telephone, and asked that the staff evaluations be returned to him at his law office. Investigation reveals that the Employment Agreement that she signed in late March 2008 provided that her annual assessment was to be conducted by the Officers of the Association (not the staff), and be presented to her "no later than May 1 st of each Association year." Investigation reveals based on the evidence, White violated Article VI, 10 of the Employment contract when he distributed the evaluation to all staff of the MBA who were not the "Officers of the Association" and sought performance feedback from employees who were not "Officers of the Association". At the very least, White's approach to the 2008 evaluation was inconsistent with the evaluations of Complainant he conducted in 2006 and 2007, when he sought evaluations only from the Officers. Complainant alleges that Treasurer Yarashus announced on August 18, 2008, that Complainant was contemplating suit against the organization and that she would drop her claims if the evaluation process was dropped and she received assurances that her job was secure. White then called his final "emergency" EMB meeting into executive session on August 21, 2008 and caused Respondent to hire the law firm to investigate Complainant's 10

13 claims. According to Complainant, White was ensuring that his views concerning her would dominate. Respondent states that upon learning that Complainant might assert gender discrimination or harassment complaints, Respondent took prompt remedial action and in mid August 2008, engaged an independent law firm, Conn Kavanaugh Rosenthal Peisch & Ford, LLP; who completed a thorough and detailed investigation of her claims in November 25, Respondent states that the investigation concluded that there was no basis for Complainant's assertions of retaliation or harassment but the investigation strongly suggested Complainant had interposed her complaints for the sole purpose of delaying and preemptively derailing what she believed to be her imminent termination for cause. Respondent states the investigation entailed (starting August 2008) Complainant's job performance, treatment of staff and honesty which consisted of staff interviews, review of the budget, and review of exit interviews, communications, and discussions with witnesses were investigated. Respondent states that prior to, concurrent with and independent of the Conn Kavanaugh investigation, Respondent had received ongoing complaints about Complainant's ability to do her job, her divisiveness, her dishonesty, her refusal to provide important information to leadership, her responsibility for lack of staff morale and her attempts to retaliate against staff who believed to be unsupportive of her dispute. Investigation reveals that Respondent has failed to show that any of these alleged complaints against Complainant were received prior to White's soliciting performance reviews from all staff of Complainant or that Respondent addressed any of its alleged dissatisfaction with Complainant's performance. Investigation reveals that based Kavanaugh's investigation, several individuals whom were interviewed commented that it appeared to them that White was engaging in a "witch hunt" and that his purpose was to "build a case" to terminate her employment. The evidence supports this theory. Whether White's treatment of Complainant during and after her contract negotiations and Respondent's eventual termination of Complainant were in retaliation for her complaint of gender discrimination is material issue in dispute more suitable for a fact finder to determine at public hearing. Conclusion A finding of a Split Decision is recommended. Probable Cause is recommended against Massachusetts Bar Association for discrimination based on hostile work environment and retaliation. Lack of Probable Cause is recommended against Massachusetts Bar Association for discrimination based on sexual harassment and disparate treatment on the basis of sex. ik^ Carmen M. Zay'as \/ -' Lila Roberts Investigator x J Enforcement Advisor. 11

14 Disposition Pursuant to section 5 of M.G.L. c. 151B of the Massachusetts General Laws, and in conformity with the foregoing findings, I have this day determined that a Split Decision is being rendered on this case. Probable Cause exists for crediting the allegations of retaliation against Respondent. Pursuant to Section 5 of M.G.L. c. 15 IB, the parties will be afforded an opportunity to participate in a conciliation conference at the Commission. Pursuant to section 5 of M.G.L. c. 15 IB of the Massachusetts General Laws, and in conformity with the foregoing findings, I have this day determined that a Lack of Probable Cause is being rendered on the allegations of sexual harassment and.hostile work environment based on sex, disparate treatment on the basis of sex. Complainant will be afforded the opportunity to appeal the decision.. Sunila Thomas-George /\ Date Investigating Commission! 7//W//.12