NO. 99-BEM-2634

WILLIAM SILVERSTEIN, Plaintiff

v.

MICROSYSTEMS SOFTWARE, INC.,  THE LEARNING COMPANY, INC., MATTEL INC,  Respondents

RESPONSE TO RESPONDENTS' POSITION STATEMENT

William Silverstein respectfully submits this response to the respondents' position statement. Respondents not only ignore MCAD procedures, ignore the elements of a retaliation claim, but also fail to understand the principals of equitable tolling and systemic continuing violation. Furthermore, respondents attempt to confuse the Commission by misrepresenting that the issues in the instant case are the same as in the earlier case.

PRIOR LITIGATION HISTORY

"This page are the opinions of William Silverstein based on facts and information provided to him. Litigation has not been completed, yet. Complaints have been filed with the appropriate government agencies."

Following the payment of the judgment, the disclaimer read,

"This page are the opinions of William Silverstein based on facts and information provided to him. The defendants in this case have accepted and paid $140,874.80 in judgment against them."

The original claim, 97-BEM-0674 ("ROUND1"), filed with the MCAD on May 3, 1997. This claim included refusing to accommodate for a disability and retaliation for Silverstein exercising his rights under the act -- by the firing and the refusal to rehire. 97-BEM-0674 was included as part of the ROUND1 lawsuit, that was filed in September 1998. In September 1999, after mediation and discovery, the respondents accepted a rule 68 judgment in which they paid $140,874.80. The Judgment for ROUND1 was entered on September 13, 1999. The MCAD was noticed that ROUND1 was resolved on September 17, 1999.

The respondents filed the countersuit on December 8, 1998. The countersuit alleged that Silverstein libeled Mattel by making false statements, on the website, with recklessness or malice. The respondents stated,

"Via his website, Silverstein has made and published a number of false statements about MSI and TLC, including inter alia, that he was harassed at work by MSI's management because of his alleged handicap; that MSI, "owned by The Learning Company," fired him because of his alleged medical condition; that MSI is using software which belongs to Silverstein; that MSI violated and refuses to comply with the Family and Medical Leave Act, the Americans With Disabilities Act, M.G.L. c.151B and other laws, that Microsystems "fires an employee who goes to the hospital for medical treatment," and that Microsystems refuses to accommodate injured employees."

On September 17^th, four days after judgment was entered on ROUND1, Silverstein requested that MCAD close ROUND1. On September 20^th, respondents delivered a "settlement offer" which would dismiss the counterclaim, only if Silverstein removed the information on the lawsuit from his website, not speak badly of the respondents, not aid others in lawsuits against the respondents, and not discuss the respondents' employment practices. ⁽³⁾ At that point, Silverstein, through counsel, told the respondents that the continuation of this countersuit is a form of retaliation, and if respondents did not dismiss their counterclaim that Silverstein would file a new complaint for this retaliation.

ARGUMENT

I. Silverstein Only Waived Retaliation That Occurred Before October 5, 1998

The September 23^rd withdrawal that the respondents refer to was the MCAD form that wise filed as a courtesy for the MCAD. The MCAD sent this form as a result of the September 17, 1999 request for removal. Even so, the lawsuit filed in accordance with MGL c.151B § 9 effectively removed the case from the MCAD. This withdrawal does not affect the instant case.

The instant case is for the respondents' the continuing with a libel countersuit after there was clearly no basis for the continuation. The respondents' improper motive only became knowable on September 20, 1999. ⁽⁷⁾ The case withdrawn was MCAD complaint #97-BEM-0674 entered on March 7, 1997 and in the lawsuit filed with the superior court in September 1998. Prior to either filing, there was no claim of libel, thus impossible to include the libel claim as an act of retaliation in that case.

The respondents must believe that they may retaliate against a person who complains of discrimination after they have resolved a charge and then escape a new complaint by admitting that they retaliated in a complaint they resolved! Is it the position of the respondent that they may call future potential employers and advise them not to hire someone after they paid an award ordered by the MCAD? Do the respondents argue that if a person complains to the MCAD that the complainant must include retaliation, though no retaliation has occurred? Will the MCAD require, as the respondents suggest, that anyone filing a claim at the MCAD must include every possible act of retaliation that have not occurred, but might occur in the future? The respondent would like the MCAD to hold that once a company retaliates against an employee in one manner and that case is resolved with, they may forever continue to retaliate, or find other forms of retaliation, with total immunity.

II. Silverstein's Complaint is Timely

Again, the respondents are committing fraud upon the Commission by attempting to use a federal trial level decision interpreting a state statute as an authority. If the respondents bothered reading Wheatley v. American Telephone & Telegraph CO., 418 Mass. 394 (1994), they might understand statute of limitations would be triggered when the complainant knew or should have known that the retaliatory illegal act occurred.

The respondents repeatedly claim that "Microsystems had a legitimate, non-retaliatory basis for filing a counterclaim." The respondents claim that Silverstein used anti-retaliation provision as defense to the counterclaim and that he should have asserted a claim for retaliation at that time. The respondents are only partially correct.

If the respondents are being truthful, that they had a legitimate, non-retaliatory reason for filing the counterclaim, then Silverstein could not file a retaliation claim at that point. The retaliation is not the filing of the counterclaim, but the continuation of the counterclaim after there was no good faith justification of their counterclaim. It was not until June 1999, when the respondents failed to produce any evidence of harm, that Silverstein could even begin to suspect the respondents retaliatory motive. Before the delivery of the "settlement agreement," Silverstein had no proof of the respondents' illegal motive in their counterclaim.

Even without an illegal motive by the respondents, the anti-retaliation provision provides Silverstein with a qualified privilege to oppose discrimination. Silverstein had an honest belief that there was discrimination and Silverstein's actions were not overly disruptive, therefore his actions in opposing discrimination are protected. Silverstein published that the respondents discriminated against him, and the respondents admit that Silverstein has an honest belief in what he published. ⁽⁸⁾ Silverstein's belief was not just honest, but reasonable. Stephen Lewis, an investigator for the MCAD, reported that he was leaning towards a finding of probable cause, so it would be reasonable that Silverstein would believe the MCAD. If the respondents did not have a reasonable belief that discrimination occurred, why would they have taken a rule 68 judgment for $125,000 against them instead of facing a jury?

Since Silverstein statements on the website are privileged, then any prosecution for the publication of these statements must fail. Respondents never dispute that Silverstein's website is a protected opposition to discrimination. The respondents' argument of good faith in filing the libel counterclaim in good faith, does not prevent Silverstein's use of privilege created by the anti-retaliation statutes as a defense. The good faith claim by the respondents only prevents Silverstein from prosecuting a retaliation claim, until there is evidence of a wrongful motive.

Respondents attempt at painting their continuing violation as just their properly following the Massachusetts Rules of Civil Procedure ("MRCP") is ludicrous. Properly following the MRCP does not include intentionally making false statements to the court, engaging in brinkmanship, and continuing with claims that are clearly baseless. ⁽⁹⁾ The respondents never argue that the after their attorney's admission that Silverstein believed what he published, that their claim was baseless. If the respondents were to correctly follow the MRCP, the respondents would have dismissed their counterclaim with prejudice, when judgment was entered, instead of attempting to extort a "settlement agreement." The respondent cannot claim a defense of properly following procedure while pressing a counterclaim that a ceased being justifiable as good faith. ⁽¹⁰⁾

III. Silverstein established his Prima Facie claim under MGL c.151B § 4 (4) (4A)(5)

Respondents fail to understand the requirements to establish a claim of retaliation. There is no dispute on the first two points (1) Silverstein engaged in a protected activity -- filing a lawsuit and speaking out against the respondents' discrimination and that (2) the respondents were aware of the actions. The respondents are greatly mistaken, if not delusional regarding the other requirements for a retaliation claim.

The respondents are attempting to confuse the Commission on the definition of retaliation under MGL c.151B by arguing the retaliation standard for Title VII. ⁽¹¹⁾ Under § 4, there is no statutory requirement in a claim for retaliation for person to suffer an adverse employment action. To the contrary, both paragraphs 4A and five starts with, "For any person" and paragraph five even goes as far to say, "whether an employer or an employee or not." Since there is no requirement for it to be an employer, it would be almost impossible to have a non-employer impose an "adverse employment action" against a non-employee. Therefore, I would only have to show that I had suffered an adverse action, not an adverse employment action. The court in Passer specifically rejects the proposition that the retaliation has to be an adverse employment action. ⁽¹²⁾

In writing their guidelines, the EEOC, clearly recognize that there is no statutory requirement that a retaliatory act be an adverse employment action. The court in both Passer and Hashimoto state that the anti-retaliation provision should be construed broadly as to achieve the legislative intent.

The respondents intentionally ignore the effect their counterclaim on Silverstein's employment. The counterclaim required Silverstein to appear for additional depositions and hearings, thus losing time from work. Silverstein was required to spend time researching and preparing his defense of the counterclaim, thus taking more time away from work. The stress from the counterclaim did affect Silverstein's employment. It is also possible that being listed as a defendant in a lawsuit from an ex-employer could interfere with Silverstein's current position or in looking for another position.

Silverstein not only established a prima facie claim, but has established that the respondents' intent on continuing the claim was wrongful. The respondents try to establish that they had a non-discriminatory reason for filing the lawsuit, but do not dispute their illegal reason for continuing with the countersuit -- to prevent Silverstein from opposing discrimination and aiding others in opposing discrimination.

The respondents bring up another red herring to attempt to confuse the Commission. One does not have to read beyond paragraph eight of the counterclaim to see the retaliatory reason for bringing the counterclaim -- that Silverstein publicly complained that they violated MGL c.151B, the ADA, and other acts that constitute violations of those laws. The only other issue, is if the counterclaim was brought or continued for an improper purpose.

IV. Respondents' Continuation of their Counterclaim against Silverstein Is Retaliation.

The respondents are correct, "A retaliation claim must be based up retaliatory conduct due to the complainant's opposition to practices that are forbidden under G.L.c 151B." The respondents are only partially correct in showing that I have the burden of proving that Microsystems's acts were based on their desire to retaliate against me. The respondents are not telling the rest of the story.

The respondents omit Mattel's actions and The Learning Companies actions. The respondents forget is that under MGL c.151B § 4 that it is illegal to:

"4A. For any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter."

The respondents are guilty of violating this section by continuing with their libel counterclaim, after the entry of judgment. After judgment was entered, the respondents continued the counterclaim to coerce Silverstein into stopping his opposition of discrimination and using his website/case to encourage others to assert their own rights under MGL c.151B. ⁽¹³⁾ Once judgment was entered, the respondents had no justifiable good faith reason to continue a libel claim.

Once judgment was entered, the case should have been over. The language of the judgment was clear, "JUDGMENT IS HEREBY ENTERED against the defendants in the above- captioned case in favor of the plaintiff. [emphasis added]." Though a counterclaim can exist without the original claim, the judgment was entered in the case, not the claim. Even so, it is impossible for the respondents to receive a judgment for libel, claiming to be libeled by a website that detailed the lawsuit that the respondents lost. The respondents knowing that they could not support the libel claim, dismissed their counterclaim when asked by a judge as to what was libelous.

To successfully prosecute a libel claim, the respondents would have to show that the statements on the website were not just false, but that Silverstein knew that the statements were false. The respondents, in a fax on September 21, 1999, admitted that Silverstein believed what he published. The respondents would also have to show that what they complained of were statements of fact, not opinions. In Friedman v. Boston Broadcasters Inc. the court made it clear that opinion accompanied by the facts that the opinion is based on is not actionable. ⁽¹⁴⁾ Even so, the entry of judgment established the truth of Silverstein's statements and the reasonableness of his opinions. Though respondents argue that a rule 68 judgment does not establish the truth of the site, the judgment and payment of such, would provide any thinking person with reasonable belief of the truth of Silverstein's statements. ⁽¹⁵⁾ Since Silverstein had reasonable belief that the statements were true, then the website site was a protected act under the anti-retaliation laws.

In EEOC v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983) it was held writing letters to the customer of the employer were protected acts. This case differs from the instant case in that in Crown, the plaintiffs lost the original discrimination complaint. The court in Payne court held that picketing was a protected activity. Not only did the MCAD investigator lean towards a finding of probable cause in Silverstein's original complaint, but Silverstein received a substantial judgment in his favor on his discrimination claim. ⁽¹⁶⁾ The respondents could hardly claim that Silverstein's website could hardly be considered more disruptive than picketing or sending letters directly to the respondents' customers.

The adverse action is the continuation of the prosecution of the counterclaim beyond the point that it became wholly unjustifiable. The respondents agree that suspicious timing may serve as alternative proof of a causal connection, but one only needs to read the counterclaim to see the causal connection. The respondents claim that their libel counterclaim had to be filed after Silverstein initial complaint, therefore the timing was solely dictated by MRCP. The respondents would like the commission to ignore that they were aware of the statements on Silverstein's website more than 20 months before Silverstein filing his lawsuit. ⁽¹⁷⁾ If Silverstein did libel the respondents, neither state nor federal rules prevented the respondents from filing a lawsuit for libel before Silverstein filed his suit. ⁽¹⁸⁾

The respondents argue that Microsystems believed that the website contained libelous materials and Silverstein never disputed that belief. ⁽¹⁹⁾ Again, that validates Silverstein's position that the continuation of the counterclaim is the wrongful act. The respondents never dispute that after Silverstein's first two days of deposition that there was no doubt of Silverstein's belief in his website. The respondents refused to provide any evidence to dispute the validity of any of Silverstein's claims. ⁽²⁰⁾

Silverstein asked for respondents for any evidence showing harm, none was provided. Silverstein asked for payroll information to support their contention that they were exempt from the requirement of the FMLA, they refused. Silverstein asked for personnel records to show that he had not been subject to disparate treatment, none were provided. When Silverstein asked the respondents for which statements were libelous, they remained silent. When a judge asked the respondents what was libelous, the respondents dismissed the case.

The respondents call this action nonsense. The respondents' action bringing us to this point is nonsense! Their actions in continuing their countersuit after paying $140,874.80 in a judgment is nonsense! Mattel claiming that a sham lawsuit, used solely to silence someone complaining of discrimination, is an absolute privilege is nonsense. ⁽²¹⁾ The EEOC recognized that the respondents' behavior is a disturbing trend in extreme retaliation. ⁽²²⁾ The respondents must be punished and prevented this from doing this to others.