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February 24, 2012     Post-Gazette
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PagelO POST-GAZETTE, FEBRUARY 24, 2012 David J. Saliba Attorney at Law Do not retaliate when your employee files a claim for disability compensation because she got hurt on the job. DAWN SAWYER and MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION v. WIMPY'S RESTAURANT The Full Commission af- firmed an award given a former Cape Cod waitress victimized by handicap dis- crimination whose work- related injuries led to fewer and less-lucrative shifts fol- lowing her return to work and her ultimate firing for filing an MCAD complaint. The Commission rejected the Respondent's claim that the Complainant was not handicapped because her injury lasted only seven days and found the $30,000 emo- tional-damages award to be reasonable. This matter comes before us following a decision by Hearing Officer Judith E. Kaplan in favor of Complain- ant Dawn Sawyer on her claims of disability discrimi- nation and retaliatory ter- mination. Complainant filed a Complaint with the Com- mission on September 22, 2003, charging Respondent Wimpy's Restaurant with unlawful discrimination in employselosment on the ba- sis of disability. Complainant had worked as a waitress at Wimpy's Restaurant for twelve years and reported directly to the restaurant'S owners, Karen and Lawrence Siscoe from the time they became the owners in 1995. Complain- ant slipped and fell at work on two occasions: once in 1998, causing her to miss one month of work and again on June 1, 2003, causing her to be out of work until June 9, 2003, when she was cleared for light duty until return to full duty on June 16, 2003. Complainant filed claims for workers' compensation on both occa- Docket No. 03-BEM-02384 MASSACHUSETTS LAND COURT October 19, 2011, Decided sions. Following the latter injury, Mr. Siscoe confronted Complainant on two occa- sions, expressing his anger and irritation at having to complete the paperwork for her worker's compensation claim. Upon Complainant's return to work in dune of 2003, she was given fewer shifts and was not permitted to cover her co-workers' shifts, which was a custom- ary practice and something she had done frequently prior to her injury. Believing that she quali- fied for partial unemploy- ment benefits due to the sig- nificant decrease in her shifts, Complainant filed a claim for unemployment benefits on September 16, 2003. Upon receipt of the claim, Respondent told Com- plainant not to come to work for the next two weeks. On or about September 22, 2003, while she was away from work, Complainant filed a Complaint with this Com- mission alleging discrimi- nation. On October 3, 2003, Mrs. Siscoe wrote a letter to Complainant stating that she had created problems for Respondent by stating on the unemployment application that Respondent was her "former employer." The let- ter also specifically stated that because Complainant had filed a claim for dis- crimination with the Com- mission, Respondent was advised by counsel not to schedule her for work. At the end of September, Respon- dent removed Complainant from its dental and health Insurance for the month of October, effectively termi- nating her employment. The Hearing Officer also correctly concluded that Respondent is liable for retaliation for terminating Complainant's employment as a result of her filing a claim for discrimination. A review of the record reveals direct evidence of a causal connection be- tween Complainant's pro- tected activity of filing her complaint with the Commis- sion on September 22, 2003 and the adverse action Re- spondent took in effectively terminating Complainant's employment. Lastly, we affirm the Hear- ing Officer's damage awards as based on the record evidence and find no error. The award of damages for emotional distress was based on Complainant's credible testimony about how distressed she was by her termination. Complainant testified that she was anx- ious, depressed, suffered from panic attacks, felt dev- astated and cried frequently because she had no other source of support. She had worked at the restaurant for twelve years. Complainant also testified that she saw her primary care physician at the time and that he pre- scribed an anti-depressant to alleviate the stress she was experiencing from the significant reduction in her shifts and the loss of her job. The Hearing Officer con- cluded that her distress re- sulted from Respondent's actions and continued for some time. The employee was awarded compensation, an award for emotional disti-ess and an award for attorney fees. NEAA AWARDS NIGHT -- A HUGE SUCCESS by Sal Giarratani The Guglielmo family celebrates the evening together. This North End family knows well the value of the many programs offered to families calling the North End their home. Shown in photo are proud parents Giovanni and Cristiane Guglielmo with their children Giovanni Jr. and Stephanie proudly holding all their trophies. programs organized by the North End Athletic Associa- tion. This year 151 trophies were handed out to the chil- dren in these programs. NEAA Director John Romano is especially proud of both the number of children who Over 200 folks turned out at the Nazarro Community Center on Friday, February 17 for the first annual Com- bined Trophy Awards event for the children who partici- pated in the T-ball, minor league baseball and soccer participated in NEAA's vari- ous sports programs. He also acknowledged that NEAA has been around over 50 years now and that he him- self remembers his days playing on various NEAA sporting activities. As I looked around the gym, I saw many parents gleaming at their children's proud accomplishments. It takes involved parents to raise children properly and it also takes community leaders such as Tommy McDonough, John Romano, and Danny Toscano to name just a few to make the NEAA a valuable ongoing resource of strength for the neighborhood children and the neighborhood's future growth. I DIAMONDS 1 ROLEX ESTATE JEWELRY Bought & Sold Jewelers Exch. Bldg. Jim (617) 263-7766 Fac reviewing the HOME - DIERKS BENTLEY (CD) Capitol Nashville Country superstar Dierks Bentley delivers his sixth al- bum for Capitol Nashville and it features a dozen tracks that take him back into country mainstream. His successful dalliance with bluegrass mu- sic on his previous CD shows Dierk's versatility, "Home" kicks off with the raucous "Am I The Only One," leading to "Gonna Die Young," toast- ing via "Tip It On Back," sa- luting the US with the title cut "Home," polishing up thoughts of marriage with "Diamonds Make Babies," and marks the midpoint with the driving beat of "In My Head." Bentley has eight No. 1 singles, all of which he wrote -- on 'Home," he co- wrote six. The seductive "Breathe You In" steps off the second half-dozen, followed by "The Woods," the honest vo- cals on "When You Gonna Come Around" features Little Big Town's Karen Fairchild, plus the cracker "5-1-5-0," the spirited "Heart Of A Lonely Girl," the tender, "Thinking Of You." Dierks proving, it's good to be Home! RAMPART - MOTION PICTURE SOUNDTRACK (CDI Lakeshore Billy Hough is known for his lounge act in Provincetown, and on the  "Rampart" soundtrack, he contributes three interesting songs -- the Petula Clark hit "Downtown," his personal tune "Venice" and the truthful "You Can't Put Your Arms Around A Memory." Dickon Hinchliffe of the U.K. band Tindersticks provided the movie score that includes: "Go Forth," "Hart- shorn On The Beach," "What Now?" and "Go Forever." Leonard Cohen's "Famous Blue Raincoat" fills out the soundtrack, along with Gang Gang Dance's "Afoot," Gonzalez & Zuninga's Mexi- can-flavored "Lupe Se Llama," Control Machete's self-titled Mexican hip-hop track, trailed by Latin hip-hop art- ists Delinquent Habits' "Tres Delinquents." Mexican rock- ers Molotov serve up "Parasito" and the foreign tongue of EB Black with "Dale Brinquitos." South of the bor- der delights abound! TIM McGRAW - EMOTIONAL TRAFFIC (CD) Curb Tim McGraw releases Emo- tional Traffic, his first studio album since 2009s 'Southern Voice.' Jam-packed with a dozen country classics, the album has charted "Felt Good On My Lips (#1)," and the pretty "Better Than I Used To Be." Country legend McGraw has scored 32 # 1 singles and 60 plus major career indus- try awards that include mul- tiple Grammy, CMA, ACM and People's Choice Award wins. The proof is in his music, in- cluding the heavenly "Halo," the comeback message of "Right Back Atcha Baby," the formula "One Part, Two Part," Tim teamed up with Martina McBride and the Warren by bob morello the rest Brothers to pen the strong "I Will Not Fall Down," and the romantic "The One." McGraw scores with "Touchdown Jesus," praising "The One That Got Away," the uplifting "Hey Now," the painful "Only Human," and ends with the pleading "Die By My Own Hand." Excellent CD! THE BEST OF ARETHA FRANKLIN - KNEW YOU WERE WAITING (CD) Arista-Legacy Aretha Franklin, "The Queen of Soul" showers her fans with a 16-track album of hits that display her legacy covering 1980-1998. Opening with the ballad "United To- gether," Aretha rolls out hits -- including the George Benson duet "Love All The Hurt Away," a pair of Luther Vandross songs -- "Jump To It" and "Get It Right," plus the driving "Freeway Of Love," the tasty "Who's Zoomin' Who," and joins The Eurhythmics for "Sisters Are Doin' It For Themselves." The beat goes on with "Another Night," the explosive "Jumpin' Jack Flash" with Keith Richards, the toe-tappin' "Jimmy Lee," a dynamite duet with George Michaels performing "I Knew You Were Waiting (For Me)," and Elton John is on board for "Through The Storm." The late Whitney Houston joins Aretha on the high-energy "It Isn't, It Wasn't, It Ain't Never Gonna Be," trailed by the fi, nal collaboration, as Michael McDonald vocalizes on "Ever Changing Times," winding down via "Willing To Forgive" and "A Rose Is Still A Rose." A collection of gems! BRYAN AND THE HAGGARDS - STILL ALIVE AND KICKIN' DOWN THE WALLS Hot Cup Records Saxophonist Bryan Murray and the Haggards (Jon Irabagon, Jon Lundbom, Moppa Elliott and Danny Fischer) released this, their second album on Hot Cup Records, on which they re- imagine Merle Haggards compositions and his perfor- mances. The group opens with three Haggard-penned tunes, the first two being ren- ditions of Merle's "Ramblin' Fever," "Seeing Eye Dog" and the third is the jazzy "Twinkle Twinkle Lucky Star." Wynn Stewart's "Sing a Sad Song" shows the tender side of Murray as his saxophone cries out for love, followed by another pair of Haggard tunes -- the fast-flowing "Mixed Up Mess of a Heart" and the wail- ing sound of "Turnin' Off a Memory" in which it is very easy to feel the pain Haggard felt when writing this song. The legendary Bob Wills authored "San Antonio Rose" and the boys do it justice, while performing it with a new, if not standard twist. Closing out the eight-track CD is "If We Make It Through December," probably the sad- dest Christmas song you've heard. Check out the tradi- tional structures with non- traditional juxtapositions of Bryan and the Haggards -- it's well worth the listen! ........ . ........ ..... ... ,,,, .,.,, .,-,., ]iT.:[E ; FT:';,T,!riT-!:7i,llii;/lllr13li]i,llllllI r'f'#!!.llll !,!iaillttllll - ---D{