MRW Blog

Messing, Rudavsky & Weliky, P.C. Wins Important Victory in Supreme Judicial Court

On May 12 of this year, Messing, Rudavsky & Weliky, P.C. (“MR&W”) won a major victory in Massachusetts’s highest court. The Supreme Judicial Court of Massachusetts ruled for MR&W’s client, Kimberly Schive, in a decision that expands the coverage of the state’s law prohibiting retaliation against employees who have claimed employment discrimination.

Until the Court decided our case, many Massachusetts lower court judges had ruled that retaliation claims could succeed only where the employer changed an employee’s situation for the worse at the workplace, while the individual was still employed.  This case, Psy-Ed Corp. v. Klein and Schive, changed that understanding.  The Court held that acts of retaliation outside the workplace setting, against former employees, are also forbidden by the law.

Our client, who lost her hearing as a teenager, was an associate editor for Exceptional Parent Magazine, published by Psy-Ed Corporation.  In 1996, Psy-Ed terminated her employment in the context of a corporate move.  A few months later, Ms. Schive filed a discrimination complaint at the Massachusetts Commission Against Discrimination (“MCAD”), alleging that during her employment, she had faced a hostile environment including having to attend meetings without the assistance of a sign language interpreter.  She also claimed that the employer terminated her because of bias.

The MCAD process took years.  In the fall of 1999, Ms. Schive tried to settle her claims against Psy-Ed through mediation.  The effort failed after Ms. Schive revealed to Psy-Ed an affidavit submitted to the MCAD on her behalf by Dr. Stanley Klein, the magazine’s editor and her former boss.  Then, in December 1999, the MCAD made a finding of “probable cause” in Ms. Schive’s favor.

Just two weeks later, Psy-Ed sued both Ms. Schive and Dr. Klein, claiming that they both had defamed Psy-Ed and conspired to interfere with its business.  Ms. Schive denied all Psy‑Ed’s claims, and told the court she believed Psy-Ed had sued her to retaliate for her discrimination claims.  She eventually won on all her claims in the trial court, which awarded her $125,000 in emotional distress damages in 2007.

Psy-Ed appealed, arguing that since Ms. Schive left Psy‑Ed’s employ in 1996, a lawsuit brought in 1999 could not be considered “retaliation,” since it had nothing to do with her job.  Moreover, Psy-Ed pointed out that the MCAD had dismissed Ms. Schive’s case (which it had, for technical reasons, without a hearing).

This May, more than fourteen years after Ms. Schive began her case at the MCAD, and twelve years after her employer sued her in retaliation, the state’s highest court handed Ms. Schive a victory.  It affirmed the lower court decision in favor of Ms. Schive on her claim of retaliation.  Perhaps most significant, the Supreme Judicial Court established several important new points of law, which will help other individuals who find themselves in Ms. Schive’s situation in the future.  The Court ruled that:

  • An employer’s acts of retaliation against a former employee (who at some point made a claim of discrimination) are unlawful, even if the acts of retaliation do not involve work or workplace conditions;
  • Bringing a baseless lawsuit, or a lawsuit that is not “genuine,” against a former employee who had previously complained about discrimination, constitutes unlawful retaliation by the former employer;
  • An MCAD finding of “probable cause” in favor of a former employee may provide the link showing that an employer took action against a former employee to retaliate for the employee’s MCAD complaint.

To read the entire decision, click here.

To watch the oral argument at the Supreme Judicial Court, click here, go to “archives” for January 2011, and click on SJC No. 10722.  Dahlia Rudavsky is the last lawyer to argue.

The victory was especially sweet since it was so long in coming – nearly fifteen years from when the case began.  We hope that future cases can be resolved more quickly, now that the law of retaliation has been interpreted in an expansive way.

Posted: June 8, 2011 | Author: Dahlia Rudavsky | Categories: Uncategorized

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