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Fool me once

August 1, 2017

petervickery

August 1, 2017:- In 2010, Alberto Rodriguez sued his employer, a freight transportation company, for employment discrimination. Although the employer denied any wrongdoing, the case settled for $10,000.00.

In 2010, Alberto Rodriguez sued his employer, a freight transportation company, for employment discrimination. Stop me if you’ve heard this one before.

In fact, second time around the outcome was different. By the time of the pay-out from employer 1 (Roadway Express) Alberto Rodriguez was already working for employer 2 (UPS) in Springfield, Western Massachusetts. After 11 months, UPS fired him, and a few days later Mr. Rodriguez filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging employment discrimination. Earlier this year the MCAD dismissed the case. Among the various reasons the MCAD hearing officer gave for ruling against Mr. Rodriguez was this one:

In her deposition in the Roadway Express lawsuit (which, during his deposition in the UPS case, Mr. Rodriguez denied ever having filed), Mrs. Rodriguez stated that she had overheard a cellphone conversation via Bluetooth in which the employer used ethnic slurs against her husband. In her deposition in the UPS case, Mrs. Rodriguez testified that she had overheard a cellphone conversation via Bluetooth in which the employer used ethnic slurs against her husband. The hearing officer found this similarity not only “striking and suspicious” but “so far-fetched as to be wholly implausible.”

Fool me once, shame on me, as the saying goes. Fool me twice? For the second part of that aphorism (the less traditional version) delivered by internationally-acclaimed business guru Michael Scott, click here.

The lessons for employers facing charges of discrimination?  First, consider taking depositions, so that you can compare and contrast the deposition testimony with the deponent’s testimony at the hearing. It is not only discrepancies that can be helpful; so can consistencies, especially those that strike a reasonable objective listener as implausible. Second, even if the MCAD issues a probable-cause finding that paves the way for a public hearing, as happened in the Rodriguez v. UPS case, if the facts are on your side and you can prove them, consider resisting the understandable impulse to settle and, instead, stand firm.

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