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Appeals court upholds $2.6-million discrimination verdict against MBTA, in part because of crappy lawyering by the T
By adamg on Tue, 06/19/2018 - 3:15pm
The US Court of Appeals for the First Circuit in Boston today upheld the verdict in a lawsuit brought by a black Green Line driver, who said her supervisors made her life a living hell for years before they finally got her fired.
In a decision that quotes Benjamin Franklin's ditty about what happens for want of a nail, the three-judge panel said the T has mainly itself to blame for not doing enough at trial to combat Michelle Dimanche's case over her 2013 firing - by, for example, failing to have supervisors attempt to rebut her witnesses' testimony about their statements in specific instances.
The MBTA loses its appeal largely for want of its making appropriate objections and offers of proof before the trial court. The evidence was more than sufficient to support the compensatory damages award for wrongful termination and to justify the punitive damages amount.
The ruling continues:
Three of the MBTA's supervisory staff who either concurred in Dimanche's dismissal or were involved in the investigation of the January 25th altercation, had demonstrated racial animus towards her. McClellan was reported to have said that he wanted to "get her black ass." And Foster and Napoli had a long history of mocking Dimanche's Haitian accent, calling her "black bitch," threatening her, and attempting to retaliate against her for making complaints. Coupled with Dimanche's testimony that each of her four previous disciplinary infractions was fabricated, a reasonable jury could have concluded that the MBTA improperly terminated her employment because of her race.
The court agreed with the MBTA that the trial judge "committed clear error" in one ruling related to the trial - limiting to some extent what the MBTA could ask its witnesses to testify about because it had inadvertently replied to the initial lawsuit too late because of a clerical error. But, the court continued, the T failed to show how the restriction unfairly prejudiced the trial against it:
The MBTA has not shown that it was prejudiced by the imposition of the sanction. It failed to make any offers of proof at trial as to what it would have presented as evidence absent the sanction.
And it couldn't really, because the judge often ignored his own ruling, letting the T draw out statements from its witnesses that went beyond what the order would have allowed. And:
In the dozen or so times when the trial judge did limit testimony, the MBTA failed to protest or provide an offer of proof as to the excluded testimony. Without such offers of proof, it is nearly impossible for this court to find that the sanction resulted in prejudice "manifest on the face of the record."
The MBTA argues on appeal that, but for the sanction, it would have presented a targeted defense to Dimanche's allegations that McClellan and Foster -- two of the supervisors who were involved in her dismissal -- subjected her to racist comments. But the MBTA cannot point to an offer of proof as to what testimony its witnesses would have provided to undermine Dimanche's story. The MBTA could have easily sought to question McClellan and Foster (both called as witnesses at trial) about their alleged conduct, and asked the judge to modify the sanction order, but it chose not to. This omission is glaring, as the MBTA repeatedly went beyond the bounds of the sanction when soliciting witness testimony on other topics (without getting the court's prior consent).
And while the lack of an effective objection at trial and proffer is fatal, it is noteworthy that even on appeal, with the benefit of hindsight, the MBTA cannot point to any instances where it was prevented from introducing evidence that would have affected the outcome of the trial. Accordingly, we find no reversible error.
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Comments
Gee, I wonder...
Whether or not Bobby DeLeo got one of those scumbags the job that cost the T all that money and if the vote was worth it.
There are MANY black greenline drivers
And has been for many years. Her supervisors singled her out for harrassment?
How do we know she's the only one?
Maybe she's the only one who thought to sue?
But don't listen to me. A federal jury agreed with her. And if you read today's decision, you'll see a panel of federal judges saw no reason to overturn that verdict.
Disparate impact
In applying disciplinary action there could very well be a trend of singling out people and letting others slide that either intentionally or unintentionally disfavors black drivers. I'm sure there are grounds for the case.
If you're not going to read the article...
...you don't get to whine. So really, don't.
How many more will come forward
Time to raise the fares and parking lot fees. Oh wait they already have. When is the next shoe going to drop on the MBTA.
Or Perhaps, The Dismissal Was Indefensible
( which begs the question: what became of the racist supervisors? were they dismissed? )
So the incompetent bumbling
So the incompetent bumbling and witless boobery that we see daily in the T's running of their actual transit system also extends to their (in)ability to argue effectively in court.
Other than political climbing and survival, is there anything these people are actually good at?
Incompetent MBTA?
Incompetence like this? It was only the first of the MBTA's legal incompetence. "The MBTA was represented by its own in-house counsel at trial; it has different counsel on appeal." I can only assume that the MBTA gets flooded with employee lawsuits and worker's comp claims etc. so use staff lawyers to save money on the typical claims. (I know a lawyer who works for the state and flooded with wrongful termination suits.)
"The MBTA was properly served on February 20, 2015, but
failed to file a timely answer due to a clerical error. The
district court entered default for Dimanche on June 2, 2015."
>Other than political climbing and survival, is there anything these people are actually good at?
Paying worker's comp claims and lawsuits. Collecting early retirements until that's phased out.
The MBTA is also wrong for hiring cantankerous employees.:
"The event triggering Dimanche's discharge occurred on
the evening of January 25, 2013, at the MBTA Riverside Station
office. During her night shift, Dimanche got into an argument
with a co-worker, Gilberthe Pierre-Millien, who is also a black,
Haitian woman. Both women allege that the other was the aggressor
who yelled, cursed, spat, and continued the altercation from the
office into the lobby area. "
Five strikes and maybe you're out.
"At the time of the altercation,
Dimanche had already received four disciplinary warnings and a
five-day suspension imposed by Tamieka Thibodeaux, the Division
Chief of Light Rail Operations. Under the MBTA's policies, a fifth
infraction COULD lead to termination."
Dimarche seems to be a pro at working the legal system.
"In April 2010, Dimanche filed a workers' compensation claim for
the emotional distress she suffered as a result of Napoli's
harassment. The administrative law judge awarded Dimanche
temporary incapacity benefits. She appealed for double damages.
While the appeal was pending, the MBTA settled the case. Dimanche
also filed a racial discrimination suit in state court based on
the same allegations. That suit was dismissed WITH prejudice in
June 2011 after Dimanche's counsel filed a motion to withdraw the
matter."
Did you miss this part?
That was Dimanche's own testimony.
The whole sentence is:
There is no mention of any evidence or other persons backing up her claim that those were fabricated.
Also there is no mention of whether or not she attempted to fight the "fabricated" infractions when they occurred. To let one fake accusation go by, maybe. But all four?
Admittedly, I have no idea what happened here but just this in and of itself is really odd.
It doesn't quite work that way
She asserted under oath that the charges were fabricated. The T offered no counter argument. That allowed the claim to be established as a fact. If the lawyers for the T offered any testimony about the charges, the fact could have been doubted. But they didn't, so here we are.
Exactly.
Exactly.
The common theme throughout this whole mess is the T did almost nothing to properly defend themselves, object, counter, or even respond with a minimum level of attentiveness (missing filing deadlines?) in court.
An appeals court will only consider arguments where an error at trial court is being alleged, and the objection to such was "properly preserved" - this typically means, at trial, the lawyers making an objection, filing a motion that got denied, or similar. If the lawyers sit on their hands during the entire trial, they can't expect an appeals court to correct anything for them.
I am confused...
Was justice aproved and inforced or were the lawyers for the scumbags at a loss from the beginning?
Why does the T have a staff of lawyers?
Why does the T have a staff of MBTA in-house lawyers? With all of the top law firms in Boston, wouldn't it be best to put the T's legal work out to bid? Everything from slip and falls, to crashes and employment issues could be handled by lawyers who are experts in each specialty. It sounds like the T's lawyers had limited trial court experience or understanding of human resource matters. I agree with an earlier comment, probably a politician's friend or cousin needing a lawyer job.
The same goes for every agency having a spokesman these days, usually a former reporter needing a job. I realize it's basically an insurance policy so active reporters will go easy on
former reporters"spokesmen" but at well over six figures, every department head and politician should be able to speak to the media.With the media in decline, perhaps someday one of our colleges or universities will do a study on the cost benefit of in-house lawyers/spokesmen or private firms.
In-house counsel is far cheaper than outside representation
With enough legal work to keep one or more employee lawyers busy, its far cheaper than paying $300-$400 or more per hour for each lawyer from a firm working on a case. Lawyer employees get paid much less than cops collecting overtime and details. Even cities and many towns have one or more staff lawyers.
MBTA lawyers are cheaper until $2.6 mil settlements
Of course it's cheaper up front for the T to have a full department of lawyers but obviously in this case and others, they are incompetent or "crappy" as Adam wrote. $2.6 mil would pay for a lot of good private lawyers with no MBTA pension or benefits. Again, one of the colleges should study this.
You wouldn't hire a divorce attorney for a criminal case. Apparently the T sent attorneys to a human resource case who didn't even know the basics.
As far as the four disciplinary actions against the employee, isn't the T fully covered by video and certainly by witnesses/passengers? If they were false charges, have we fired the supervisors? If they were justified, may we see the video or witness testimony. Sounds like a disaster, much like the Registry.
Having in house is the usual
Public and private, for any decently sized organization. I'd estimate any organization over 100 people has a General Counsel (GC), and in certain industries that's much lower.
GCs are by definition, legal generalists. Again that's perfectly common in law, both public and private. When a specialty is needed, outside counsel is brought in. That gets expensive fast so is avoided unless really necessary. The joke about billable hours is common for a reason.
Losing is also a thing that happens in court without the lawyer being bad. Off hand, the memorandum looks competent.
Now I dont know the specifics of this case or the MBTA law department, but damning the MBTA for having lawyers and losing a case? That doesn't fit.
Goodwin Proctor
Kevin P. Martin, who is the leads attorney on the appeal is an attorney at Goodwin Proctor. So the MBTA has a contract with them as outside counsel for employment law matters. For a variety of reasons (complex litigation can result in large losses), many public agencies farm out their employment litigation work to outside firms.
An early filing in the lower case is signed by the Assistant GC at the MBTA, so it's possible the lower court trial was handled solely by in-house counsel and they bungled it, but the jury decision doesn't note the trial attorneys.
Regardless, the T is self-insured, but they most likely have additional coverage for large losses like this.
They didn’t just make her
They didn’t just make her life a living hell, T riders deal with it too!
T- Lawyers
Not only does the T have a staff of inside lawyers who formed a union to protect themselves against themselves they spend millions of taxpayers money on high priced outside legal counsels.
They were probably too late
They were probably too late replying to the initial lawsuit because they took the T. Makes me late for things all the time.