The initial discrimination case in a nutshell.

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  • The defendants did not permit Silverstein to take time off for medical treatment. This was required under the FMLA along with being a reasonable accommodation for a disability under MGL c.151B. This is a right under the workers compensation law.
  • The defendants retaliated against Silverstein violating MGL c.152 75B and MGL c.151B and the FMLA.
  • The defendants failed to give Silverstein priority in rehiring when he was able to return to work. Since the defendants advertised his position, along with other positions that he was qualified to fill, as being open, he should have been interviewed and considered for that position. This is required by MGL c.152 75A.
  • The defendants did not consider Silverstein for any open position because he had exercised his rights under the FMLA, MGL c.151B and MGL c.152.
  • The defendants took properties that belonged to Silverstein. This was software that he had personally owned, or licensed, by Silverstein. The defendants refused to permit him to retrieve his property.
  • The defendants harassed Silverstein after he became injured and informed them of the doctors' recommendation to take time off. This violated the FMLA, MGL c.152 75B and MGL c.151B. This harassment even included monitoring Silverstein's family internet usage from home. 

Some of the Legal theories and arguments that apply to this case.

The question of FMLA coverage is a given for two reasons

  1. The FMLA count of employees issue was resolved in our favor by Walters v. Metropolitan Educational Enterprises, Inc., et al, 519 U.S. 202 (1997) for the appropriate construction of the language of 2611. (Walters endorsed the construction - known as the "payroll rule" applied by the First Circuit to in Title VII's nearly-identical language in Thurber v. Jack Reilly's, Inc., 717 F.2d 633, 634-635 (1983), and also noted, with approval, the payroll rule's adoption by the EEOC with respect to the Age Discrimination in Employment Act and the Department of Labor with respect to  2611 of the FMLA. See 519 U.S. at 206-207.)
  2. The listing of 50 continuously-employed individuals as of a day or two after MSI (now part of Mattel) claimed it had fired Silverstein strongly suggests that there is no way it can meet the correct test as of the day he was fired.
  3. In any event, the defendants act of removal to federal court stipulated that this was an FMLA-regulated situation, as under Thurber (and Douglas v. E.G. Baldwin & Associates, Inc., 15 F.3d 604 (6th Cir. 1998)) subject matter jurisdiction in the federal court did not exist otherwise. Lawyers: You may be able to keep your cases in state court while having a federal question.

The merits of FMLA violation are clear as there was a serious medical condition, as found by MSI's own IME, Dr. Craig Stirrat. Notice to the employer of the need for time off was given by Silverstein, and he waited more than a month to take time off. MSI's quibble about Dr. Gordon's letter was waived by its not giving him the required forms to fill out and neither contacting the doctor for clarification (29 CFR 825.307). An article discusses another case where an employer ignored the procedure outline in (29 CFR 825.307). Demanding that he wait more than 30 days was not permitted under FMLA.  MSI's attorney admitted to the Department of Labor that they violated the FMLA, by not informing Silverstein of his rights and responsibilities under the act (29 CFR 825.301). See Hodgens v. General Dynamics Corporation, 144 F.3d 151 (1st Cir. 1998) Bownes (for himself, Torruella and Stahl) That case makes it clear that his right to leave was absolute. It divides FMLA claims into two categories of claims: a prescriptive right to leave and a McDonnel-Douglass tested right against discrimination

  1. Therefore, prescriptive FMLA violations occurred by refusing to let him take leave and by refusing to reinstate him.
  2. Proscriptive violations occurred in firing him for taking leave (which was stipulated to in the counterclaim. and admitted to by Dick Gorgens) and in refusing to hire him in the face of his repeated re-applications while still posting his position.

Once the illegal nature of his firing is established under FMLA and/or stipulation that he was fired for being out from work while disabled, liability for punitive damages under 151B kicks in, as Dr. Stirrat's finding that the disability was job-related, together with his ability to do the job with accommodations, made him a c. 151B Qualified Handicapped Person under c. 152  75B (1). Small amounts of leave for medical treatment and schedule modifications has been recognized by both Massachusetts and Federal courts as a reasonable accommodation for a disability. The defendants recognized the disability and put limitations on Silverstein and actually countermanded orders from his treating physician.

Even if  Silverstein is not found to be a Qualified Handicapped Person under c. 151B, Silverstein is entitled to damages! The retaliation is a separate wrong from the failure to accommodate and the discrimination. In Bain vs. City of  Springfield, the court upheld the retaliation finding without a finding of discrimination.

To the extent TLC has merged MSI into it, which is pretty well indisputable, the measure of punitive damages would have to be by reference to TLC's assets. The same analysis would apply since TLC is merged into Mattel.

Since the acupuncture treatment at the hospital in China was paid for by the medical insurance company that hospital is a legal recognized health care provider as defined by the FMLA. The medical records clearly disable Silverstein for the purposes of the FMLA. Acupuncture has been recognized as a valid form of treatment by the National Institute for Health. The defendants lack of knowledge of   Silverstein's need for surgery is not a valid defense. It is well established that a complete diagnosis is not needed to trigger the protections under MGL c.151B, ADA, and FMLA.

The requested time off is a reasonable accommodation that would have allowed Silverstein was able to do his job. Arguendo, even if Silverstein was unable to work as a software engineer due to his disability, he is  qualified to fill the open technical support position. Silverstein, from developing the product, knew more about the product than the current technical support staff. Since having the treatment and the time off,   Silverstein has returned to work as a software engineer. He has been working as a software engineer at a reduced amount of compensation than if MSI had followed the law. Due to the actions of the defendants, he will always have some amount of residual pain, but is able to work.

Mattel, Microsystems Software, The Learning Company, and the rest of the defendants must be held accountable for their actions. There are legal protections for employees that they refused to follow. Even after the defendants were told by the Department of Labor to rehire Silverstein, they refused. The law requires an employer to provide reasonable accommodations. The law provides for freedom from discrimination by sex, race, religion, etc. There are laws that prevent a manager from demanding sex from a subordinate to keep from being fired. This sets a minimum standard for decency and fairness in the workplace. One does not solely work at their employer's pleasure. Your boss cannot demand sex from you by threatening to fire you. It would be easier to not publicize this case than to fight, but what would happen to the next person that is injured on the job at Mattel, The Learning Company, or MSI? What if the CEO asks one of the women for five minutes of sex in the middle of the company meeting? The defendants must be held accountable for their actions.

Why ask for money? Current law does not allow the defendants to experience the pain that they caused.  All that the law allows is that the defendants be made to pay money. If the award is large enough, then the defendants will think very hard before violating the next person. Hopefully other companies will see this and not do the same to their employees.


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