In Perez –Cordero v. Wal-Mart Puerto Rico, Inc. et al., the U.S. District Court for the District of Puerto Rico granted summary judgment, thereby dismissing a sexual harassment claim brought against Wal-Mart.  The male plaintiff alleged that his female supervisor subjected him to unwelcomed physical touching, overt physical and verbal sexual advances, embarrassing sexual remarks, public scolding, exclusion from meetings and trainings, threats of discipline and poor performance reviews, scrupulous examining of his work and the assignment of less desirable tasks.  The 1^st Circuit Court of Appeals overturned the lower court’s decision in favor of the male employee.                Despite the barrage of constant and varying harassment and retaliation, the plaintiff continued to do his job well despite the fact that he was suffering severe emotional distress at the hands of Santiago.   In their argument, Wal-Mart attempted to use the plaintiff’s perseverance against him.  Wal-Mart argued that the boss’ behavior could not have been severe and pervasive if the plaintiff was still doing his job well.  In support of their position Wal-Mart argued that during the time of the alleged harassment Perez-Cordero turned down a promotion, received pay for unused vacation time, and received positive performance reviews. The 1^st Circuit found that those factors did not indicate that Santiago’s behavior was not severe and pervasive as to affect the day to day work conditions.   In fact, the 1^st Circuit is unwilling to find Perez-Cordero’s perseverance at his job, despite the daily sexual harassment and retaliation he was subjected to and the distress it caused him, as a negative.  Rather, the court declared that in order for sexual harassment to be severe and pervasive so as to alter the terms and conditions of employment an employee is not required to falter as a result of the environment.  If the court had found otherwise it would essentially be punishing an employee for their unwillingness to buckle under the pressure of their tormenter; thereby requiring an employee to fail at work before a claim would become actionable.   The 1^st Circuit also reversed the District Court on the dismissal of Perez-Cordero’s retaliation claim.  The Court found that the record showed enough evidence that as a result of Perez-Cordero’s complaints the discriminatory harassment continued to increase.  The fact that some of this evidence is also applicable to Perez-Cordero’s claim of hostile work environment sexual harassment does not bar the evidence from also being considered under a separate claim of retaliation.  The same evidence may be used in assessing the sufficiency of both claims. 

Davis & Davis, P.C. only has 5 full-time attorneys, but this small firm continues to get recognition from multiple sources.  Partner Patricia Davis was selected to be one of Massachusetts ‘Super Lawyers’ for 2011.  Partner John Davis was again selected as a Rising Star.  Davis’ associate, Suzie Herold, was also selected for the honor.  David and Herold have also been recognized for their success in winning a MCAD public hearing on the theory of associational race discrimination in the workplace, a case of first impression that is being challenged on appeal.  Davis and Herold have represented many high profile clients in the past year, many of which have garnered media attention at the local and state levels, including their representation of a minor child who was taunted at an elementary school for perceptions regarding the child’s sexual orientation.

In August 2011, Partner John Davis and Associate Suzie Herold were representing a mid-sized Massachusetts corporation accused of violating the Fair Labor Standards Act (“the FLSA”) and the Massachusetts Wage & Overtime Act (MGL. c. 151, § 1A).  At one point in the litigation, the class members through their experienced attorneys valued their damages between $4-5 Million dollars.  After 18 months of litigation, the parties agreed at a private mediation, and the case settled for than $300,000.00, or 5% of the perceived value.  By settling the case for a small fraction of its potential damages at trial, Attorneys Davis and Herold were able to resolve the litigation in such a way that allowed the corporation to remain viable, thereby saving not only the jobs of the owners and upper managers, but for the company’s 140 employees as well.

Attorney John Davis has won a case of first impression in the Commonwealth of Massachusetts. Davis convinced the MCAD that his client, a Caucasian employee, was subjected to unlawful race discrimination, by his Caucasian boss, based upon racial slurs directed at the client’s fiancée, who is Jamaican. Davis accused the company’s boss of engaging in unlawful associational race discrimination and the MCAD accepted the theory and awarded Davis’ client $50,000.00 in emotional distress damages. The MCAD also issued a $10,000.00 civil penalty against the Respondents.
While employment-based associational discrimination claims have not gained significant traction in Massachusetts, Davis points out that the theory has been adopted by the MCAD relative to housing and religious discrimination, as well as a number of other jurisdictions. As expected, the decision, which was reported on the front page of Lawyer’s Weekly, fetched a number of disagreeable comments from numerous defense attorneys.