HOW MY OWN COUNSEL, THOMAS S. GILDEA, ESQ.,
IN CONSPIRING WITH THE RESPONDENT/DEFENDANT
AND THE HEARING OFFICER, HELENE HORN FIGMAN
OF THE MASSACHUSETTS COMMISSION AGAINST
DISCRIMINATION (MCAD), DELIBERATELY MISHANDLED
AND MANIPULATED MY CASE TO ENSURE THE RESPONDENT'S/-
DEFENDANTS VICTORY AND THUS MY DEFEAT
While serving in the Greater Boston area as a Field Staff of Relief Resources, Inc., a human services organization headquartered in Hadley, western Massachusetts, I was summarily terminated on 14 March 1998. This termination was effected immediately after I had written a personal letter to my manager/supervisor in which I complained about verbal and physical abuse visited upon me by of one of the male clients to whom I had been a counselor at Adams Street in Waltham, Massachusetts. The main purpose of my letter was to prompt my manager/supervisor, Mr. Ray Castagnola, with whom I had been having a very cordial relationship, to take action to reconcile the said client and me, as he had done previously in a case of a female client who had similarly been hostile to me. Indeed, as a result of the managers intervention, the relationship between the female client and me immediately improved. This was all that I had attempted to accomplish by writing the personal letter to my manager who, nevertheless, made it official, which action led to my summary termination.
Attached please find a copy of the said letter, dated 1 March 1998 and addressed to Mr. Ray Castagnola, House Manager of 107 Adams Street in Waltham.
Action for Monetary Damages
Pursuant to M.G.L.C. 151B and Title VII of the Civil Rights Act of 1964, therefore, I brought before the Massachusetts Commission Against Discrimination (MCAD) an action for monetary damages against the Respondent (Relief Resources, Inc.), my former employer from April 02, 1997 until the Spring of 1998. This is because I was, and I still am, of the strong conviction that they retaliated against me by unlawfully terminating me for having complained in the letter I had addressed to my manager/-supervisor about racial harassment at my above-referenced assigned workplace.
Representing me in this case was Thomas S. Gildea, Esq., Attorney at Law, whose services I engaged through the Boston Bar Associations (BBAs) Lawyers Referral Service (LRS). Having reviewed the case, Mr. Gildea expressed at the outset his strong interest in and willingness to prosecute the case on my behalf on a contingency basis. He indicated that I had a solid and clear-cut case. Counsel Gildea thus assured me that because of the very nature of my case, he strongly believed we would win it.
Attorney Gildea had also intimated to me even before we received any written testimony or position statement from the Respondent that, based on his own experience as an attorney, he was very much aware of how employers were in the habit of often retaliating against their employees by wrongfully terminating them and then lying about the real motive(s) of their negative actions. He explained that employers would almost always cite, for example, an alleged poor work performance as the main reason whenever they unlawfully terminated their employees. Owing to his conviction that we would easily win the case, therefore, counsel Gildea began to conduct the case conscientiously until we reached the stage where the Investigating Commissioner advised both our parties to mediate between ourselves and to informally and voluntarily reach a settlement.
Having carefully considered all the pertinent aspects of the case, counsel Gildea advised me to settle for nearly $32,000.00 (thirty-two thousand dollars) as my damages. This amount, according to him, comprised, inter alia, the total salary I would have earned up to the date I filed the case with the MCAD had the Respondent not wrongfully terminated me, plus other fees. And I concurred.
My counsel however deliberately mishandled the case and completely prevented me from participating in the negotiating meetings, contrary to the MCADs strong directive. The result was that we did not settle the case with the Respondent. Indeed, I later discovered that my counsel had already filed in conjunction with the Respondent a claim amount of $7,500.00 without my prior knowledge and consent. Thus, our so-called failed attempt to settle the case was entirely the deliberate creation of Mr. Gildea. In fact, from the time when the settlement issue arose, I began to gain the impression that for some reason my counsel was no longer conducting the case in my interest but in the Respondents and, therefore, indirectly against me. The following reasons explain why:
Firstly, attorney Gildea suddenly stopped talking about how easily we were going to win the case; instead he would every now and then express his doubt about a positive outcome of the case by saying, If we lose , without explaining why we could lose. This tactic was ostensibly to prepare my mind for the fact that we were surely going to lose.
Secondly, on several occasions Gildea remarked that the Respondents counsel did not like him. When I asked him why, he said he did not know. Ironically, however, from my personal observation, the two counsel were becoming increasingly intimate. So, it was apparent to me that he concocted this lie solely designed to throw dust into my eyes.
Thirdly, counsel Gildea no longer had any serious discussions with me in connection with the case; nor did he involve me in any of his discussions with the Respondent, even though, as indicated, the MCADs directives clearly stipulate that the Plaintiff must be involved in any such discussions. My counsel would only make his own decisions and if it pleased him he would inform me about them and expect me to merely accept them. For instance, following a discussion he said he held with the Respondents counsel, Alan Seewald, Esq., Mr. Gildea called and informed me that he had decided to reduce the proposed claim of approximately $32,000.00 to only less than half of that amount, i.e., to $15,000.00. He then again later reduced this figure to $12,000.00, then still further to $9,500.00. Worst of all, he again told me that he actually had filed for $7,500.00, but I later discovered that even this too was a lie, for he admitted that the true figure he had had in mind was $6,200.00. This followed my request for a breakdown of this amount. I should point out that my counsel Gildea did all this without seeking my view first, let alone my approval, and without giving me any reasonable and valid explanation for his actions. He treated me with gross disrespect, if not contempt.
As indicated, I later realized that both my counsel Gildea and that of the Respondents, Alan Seewald, Esq., had indeed already filed a JOINT CERTIFICATION MEMORANDUM with the MCAD in which Gildea actually put down $7,500.00 as our proposed claim, falsely claiming in this document that I had consented to it. As he put it, Complainant is willing to settle the matter for $7500.00. Respondent has offered to settle the matter for $2500.00. He then told me that the Respondent said the maximum amount they were willing to pay was $6,000.00. This followed my rejection earlier of $4,000.00 which he first said the Respondent had offered.
(Enclosed please find the JOINT CERTIFICATION MEMORANDUM, Docket No. 98 BEM 2570, marked RECEIVED MARCH 14 2001 by the MCAD).
That my counsel had filed the above-referenced memo in which he lied that I was willing to settle for $7,500.00 before he told me about it actually shocked and disturbed me a great deal. This was partly because he still offered me no tangible reason for his unusual decision and partly because he was no longer involving me in the decision-making process; it was he alone, contrary to MCADs guidelines, who held discussions with the Respondent and he hardly asked for my input, let alone approval. In fact, from this time onwards I began to feel as though he was treating me like a stupid and ignorant illiterate man. Yet I held my peace throughout.
As I thought about my counsels whole conduct of the case, in particular about the information he gave me concerning the $7,500.00 that he falsely claimed I was willing to accept and his failure to seek my input first, I agonized over them that whole night he gave me the information. I thus telephoned him the next day and asked why he so drastically reduced our proposed amount. But his only response was that from his discussions with the Respondents counsel, he gained the understanding that they could pay only $2,500.00, which, however, they raised to $4,000.00 and finally to $6,000.00. According to Gildea, this was their maximum and final offer. He explained that any claim more than this $6,000.00 would bankrupt the Respondent. Therefore he urged me to accept it. Yet, strangely enough and, as indicated, he had already put down as our claim $7,500.00 in the joint memo he and the Respondents counsel had jointly filed with the MCAD.
When Gildea gave me the breakdown of the $7,500.00, which actually turned out to be only $6,200.00, I told him we should revert to our originally proposed claim of approx. $32,000.00, but he insisted that it was too much. He explained falsely that the approx. $32,000.00 was only an arbitrary figure he had initially suggested. He apparently forgot that he himself had given me a breakdown of this figure and that it was not arbitrary. It was only at this stage that he indicated that he had not included in the $6,200.00 punitive damages against the Respondent.
No doubt, I took seriously this inconsistency on Mr. Gildeas part and also his unwillingness and failure to involve me either in the negotiations with the Respondent and in the decision-making process as a whole. I thus expressed my strong interest in personally attending the second and the third meetings over which he said the Hearing Officer (H0) was going to preside, but he objected to it. I expressed my displeasure for not having attended the second meeting and I thus indicated my strong desire to attend the third one. For this reason, he deliberately kept unknown to me the last hearing date until the very morning of the day he was about to leave his house for the MCADs offices when he telephoned to inform me about it. I immediately expressed my strong desire to attend, but then he still insisted that there was no need for me to do so and that the hearing itself was going to last for only thirty minutes. He also intimated strangely to me that this was the day he was going to collect the settlement amount. Owing to this short notice, but more so because of his insistence that I not go, it was impossible for me to do so, anyway, even though it was clear to me that he was trying to hide something from me. My counsel thus succeeded in preventing me from attending the two crucial meetings.
In the afternoon of that day he was about to leave for the last hearing, Gildea called and strangely told me that he had returned from the hearing but that Mr. Hammond was not in attendance. What he seemed to have soon forgotten was that he had already told me that only the two counsel and the h*o were to attend the hearing and that Mr. Hammond and I could not, which was, in fact, the main reason he did not want me to go. But the main reason why he adopted this new false position was to give me the false impression that he did not collect the settlement amount he said he was going to collect that day, since Mr. Hammond failed to come to the hearing. Why Hammond did not report at the hearing Gildea did not explain to me, nor did he give me any information whatsoever either about the hearing itself or about what happened to the money he said he was going to collect. But had he not already given me the impression that it was his counsel Alan Seewald who was to bring along the money with him to the hearing, since he had already made clear to me that only the two of them were allowed to appear before the h*o and that Hammond and I were to be excluded? And why did he expect me to believe that once Hammond failed to attend the hearing he did not collect the money he had expected to collect that day? And even if it was Hammond who was to personally bring along the money to hearing that day but failed to do so, does it mean that that was the end of everything, that he could not collect it another day? Why should that have been the end of everything?
As a result of Gildeas inconsistencies and apparent lies, I became even more strongly suspicious that he and the Respondents counsel, Alan Seewald, Esq., in addition to even the h*o, were involved in some dubious and illegal deal against me. I began to sense that it was for that reason that my counsel did not want me involved in those meetings and in the negotiating processes with the Respondentall contrary to the MCADs directive. All these, coupled with the above-referenced factors, only made it extremely difficult for me to continue to trust my counsel. In fact, it was this mistrust that compelled me to reject the low settlement figure he said the Respondent had offered to pay us in the first place.
At this juncture, I confronted Mr. Gildea with my concern, pointing out that although he was my counsel I realised that he was actually fighting hard for the Respondent rather than for me. I then pleaded with him to represent me and not the Respondent. He then quipped, O.K., how much then do you want to claim? I first reminded him that he had not arbitrarily come up with the approx. $32,000.00 as he was now claiming, but that he had carefully taken into account the various factors of the case for which he allocated specific figures before arriving at the total amount. I also told him about my willingness to reduce our proposed claim to $25,000.00, provided the Respondent was willing to admit and apologize for the numerous lies they had fabricated against me. To my surprise, Gildea asked if that was Christian enough on my part for not forgiving the Respondent, probably being unaware of the fact that the question of forgiveness arises only when the offending party first acknowledges his/her wrongdoing and confesses it. I drew his attention to the fact that this was not the case with the Respondent. I reiterated the point that the Respondent must first be willing to tell the whole truth, in response to which my counsel once again adamantly retorted, You wont get it.
I once again returned to the question of the drastic reduction he made of our originally proposed claim amount and how Mr. Gildea explained that the Respondent did not have money to pay us because of the slowness of business at the time. The whole way and manner in which my counsel handled this aspect of the case gave me cause for great concern, especially his unwillingness to involve me in any of the negotiating discussions he held with the other party and in the decision-making process as a whole, all contrary to the MCADs guidelines.
With regard to my counsels contention that the Respondent lacked funds due to an alleged slowness of business the Respondent was experiencing and so could not pay anything above $6,000.00, I reminded Mr. Gildea that the Respondent was not in a type of business like retail trade whose success was contingent upon selling large quantities of goods and making profit. I reiterated the point that the Respondent is a human services organization, dealing mostly with people who permanently live in half-way houses. The turn-over of the residents in these houses is thus negligible. Unless the Respondent lost its contracts or a large portion thereof, I further explained, there was no way one could talk about slowness or fastness of business, stressing that that was not the case with the Respondent. I further explained that if there were any turnovers at all, the number of clients in a given facility, more often than not, tended to increase rather than to decrease. Besides, this particular Respondent contracted with many companies, both large and small, not only in Massachusetts, but in Connecticut and Rhode Island as well. Thus, by the very nature of the Respondents operations, there was no way one could say that their business was slow and they were thus experiencing financial difficulty at that time.
To be sure, I had already observed that unlike initially when he adopted a more serious and critical approach for winning the case, it became apparent to me that Mr. Gildea was no longer handling the case in a way and manner that a competent lawyer who really wanted to win would. Instead, for some reason known to himself, he adopted and engaged in certain questionable acts of commission and omission, all of which gave me reason to believe that he would rather have me lose than win the case.
Gildeas Acts of Commission
Tom Gildea, Esq., according to his scheme of things, perpetrated the following unfair actions to ensure my losing the case and thus the Respondents victory:
(01) Gildea conspired with the h*o, Helene Horn Figman, and with the Respondents counsel, Alan Seewald, Esq., and unbeknownst to me, illegally secretively introduced an unsigned and vaguely titled document, RESPONDENTS MEMORANDUM. Secretively because this document, which was actually the Respondents newly fabricated Work History/Position Statement on me in lieu of the original they filed with the MCAD in response to my complaint, was not formally admitted into evidence and marked as an exhibit, like all the other documents that were formally and legally admitted. This document, which was not filed with the MCAD as required by law, was at no time even mentioned during the entire hearing process. Indeed, as complainant I knew nothing about its existence until after the h*o had issued her decision against me. The h*o and my former counsel Gildea were, however, privy to it and the h*o did in fact accept and heavily utilize it. Indeed, the contents of this illegally introduced document formed the very basis of the HOs negative decision against me.
It is significant to note that the Respondent (Relief Resources) secretively introduced this document one-and-a-half years after the deadline for filing their Position Statement had elapsed and eight months after the Public Hearing proceedings at the MCAD had begun.
(02) Gildea accepted the HOs deliberately distorted and fabricated version of my testimony and that of Mr. Douglas Hammonds and incorporated it in his so-called petition for review to the Full Commission of the MCAD. By so distorting and fabricating our recorded testimonies the way she did, the Hearing Officer (h*o), Helene Horn Figman, found it plausible and easy to give judgment against me. Even though I pointed out to Mr. Gildea this apparent obstruction of justice tactic by the h*o, he did nothing about it; he instead connived and condoned her actions. (Please see below how the h*o distorted and fabricated our testimonies).
(03) Gildea deliberately decided and made sure to exclude me from some of the crucial meetings presided over by the h*o and from all the negotiating discussions with the Respondent. Gildeas explanation of his decision to exclude me was his lie that only the two counsel could attend. I protested, asking whether this was reasonable and fair, since it was my own case that was at stake. Indeed, I discovered later that my counsels claim that only the two attorneys could attend was a total lie. The MCADs directives, to the contrary, strongly advocate that complainants must participate in such meetings.
(04) Following the HOs decision against me, I told my counsel Gildea that we should petition the Full Commission (a three-member panel) for review of the case. But he immediately retorted, We have no chance [of winning]. He however asked me to write the petition brief for a review and I did. After he told me he had filed the petition with the Full Commission, I asked for a copy of it, but he lied to me, saying that what he filed was what I had written for him, so I should keep my own version as a copy for myself. I was suspicious of his statement, however, and when the Full Commission also ruled against me, his statement only greatly heightened my suspicion. I therefore requested from the MCAD a copy of the petition that my counsel had filed for review of the case. And lo and behold! The petition that my counsel Gildea actually filed with the Full Commission turned out to be exactly the HOs negative decision against me. In other words, Gildea set aside the brief I had written for him and in furtherance of his well-orchestrated machination designed to lose the caseas he had predicted that we had no chance of having the Full Commission overturning the HOs decisionhe merely submitted for review the HOs negative decision. Indeed, upon receiving the report of the HOs decision against me, counsel Gildea called me and without hiding his delight and contentment about the decision said: This is what I expected, as if a big burden had been lifted off his shoulders as a result of having lost the case.
Gildeas Acts of Omission
Tom Gildea, by design, failed to take certain crucial stepssteps that any and every scrupulous, competent and sincere counsel representing a client would ensure not to fail to takethat would have enhanced our chances of winning the case. They included the following:
(01) Gildea deliberately failed to raise objection when the h*o right from the commencement of the proceedings at our meeting on December 10, 2001, allowed focus to be shifted entirely onto the racial discriminatory rather than to the retaliatory aspect of my complaint. The MCAD had already recommended a lack of probable cause finding for the discriminatory treatment while recommending that a probable cause finding be issued for the retaliation claim. To have focused entirely on the dismissed discriminatory aspect of the case to the exclusion of that of a probable cause finding for retaliation and to have issued a decision on that again, as the h*o did, is a travesty of justice.
(It should be noted that although the h*o stated in her Decision that retaliation was the issue, yet the fact remains, as the recorded proceedings show, that her focus was almost entirely on racial discrimination instead).
(Please see the attached copy of the MCADs MEMORANDUM, RE: K. A.v. Relief Resources, DOCKET: 98-13-2570 and EEOC No. 16C983153, with a cover letter signed by Douglas T. Schwarz, Esq. See also the Decision of the Hearing Officer).
(02) Gildea deliberately failed to invite or subpoena my potential witnesses to testify to the truth at the December 10, 2001 hearing, action that would have exposed the Respondents numerous lies and distortions. Gildea invited not even a single witness on the list of no less than fifteen names I had given him, although both of us had agreed that their testimonies were crucial for winning my case. Indeed, upon Gildeas advice at the initial stages of the case, I had contacted quite a number of my potential witnesses and they were willing to testify to what they knew about me and/or my work performance and what they may or may not have witnessed on certain occasions while I was on duty. Ms. Maria Battaglia of The Center for Mental Health and Retardation Services at Adams Street, for instance, assured me she would testify if and when counsel Gildea subpoenaed her; but he never did. In fact, it was only in the morning of our final hearing, when Ms. Battaglia was to have testified, that counsel Gildea said he called from the MCAD offices that morning and left a message for her, pretending that he genuinely wanted her to testify; but even so he said he mentioned nothing in his message for Battaglia about subpoenaing her.
But how does a good, competent, sincere and serious lawyer who wants a potential witness to testify wait until about an hour or two prior to the commencement of proceedings before s/he attempts to contact the said potential witness, when the lawyer, in fact, has had a list of the potential witnesses names for not less than a year before the day of the hearing? And also how could this be when the MCAD clearly requires that such a list be submitted to them well ahead of the scheduled meeting date? (See item  on page 14 below).
(03) Gildea deliberately failed to utilize at the final hearing my Primary Care Physician (PCP), Dr. Irene Gavras letter testifying to my health condition, a letter that lawyer Gildea himself had asked for; nor did he invite the doctor personally to testify to what impact my work termination may or may not have had on my mental health, even though the doctor would have willingly done so. (The Respondents counsel had falsely argued at the hearing that my termination caused me no emotional distress because he alleged that I did not see a psychiatrist or go to hospital immediately following my termination).
(04) Gildea deliberately failed to make use of any of the Respondents witnesses, some of whose names I also placed on the list of names of my potential witnesses, which I had compiled for him. Although he had planned well ahead of time not to use any of the witnessessince he suppressed the truth that contributed to my losing the caseyet until the morning of the last hearing counsel Gildea kept assuring me that he was going to subpoena someone like Maria Battaglia who had agreed to testify, even though that would have violated MCADs guidelines about inviting witnesses.
(05) Gildea deliberately expunged (or suppressed) several pieces of evidence from our testimonies that would have strongly supported my position. In other words, my counsel obstructed justice. The following contained the most egregious examples of the Respondents glaring fabrications and distortions in connection with some of the facilities where I worked, but which pieces of evidence my own counsel Gildea intentionally suppressed:
a. 808 Memorial Drive, Cambridge: The absolute lie by the Respondent in their Position Statement that the clients here whom I was to have served on a particular date were allegedly afraid of me, even though I never saw them and they never saw me either. I had been misdirected and so I went to the wrong floor. The Respondent falsely alleged that security personnel escorted me out of the building. Jeniffer Evans, Program Manager, would have testified to the contrary, but attorney Gildea expunged this from the documents we filed with the MCAD.
b. Moody Street, Waltham: The Respondent lied in their Position Statement that I was banned from overnight shifts here because I had slept on night duty. In fact, I was the sole person on duty throughout the night in question; no one else came to work with me. So, who saw me asleep? And who reported me? The Respondent mentioned no names. The two managers there (Program Manager and the Asst. Manager) were ready to testify to the contrary. Also the Daily Incident Log-book would have shown otherwise, i.e., a good work performance report written about me. This log-book could have been subpoenaed. But Mr. Gildea refused and intentionally suppressed this information. And what evidence did the Respondent have in support of their allegation that I slept at work? They gave no evidence.
c. Norfolk Street, CASCAP, Cambridge: The Respondents allegation in their Position Statement that I was banned from all CASCAP facilities and not only from this Norfolk Street under Katie Curleys management in Cambridge is a total lie. Who banned me? The Respondent mentioned no name, although they created the false impression that it was Curley. The truth, however, is that with the exception of this small facility which she managed, Curley had absolutely no power and authority to ban me or anyone else from all CASCAP facilities as the Respondent alleged. The only person who could have banned me and any worker from all CASCAP facilities was the Executive Director of CASCAP or someone who is likewise in a top position. But nothing like that ever happened. At any rate, if it is true that I was so banned, why was I never told about it until I filed this case? Why did it only appear in their Position Statement, which was hurriedly compiled after I had filed my complaint against them? And what evidence did the Respondent have to prove this allegation?
The Respondent also lied, saying that when another Field Staff and I were sent to the same shift at this facility under Katie Curley, I was rejected while my colleague was retained to work there on the day in question. In fact, one of the Respondents Coordinator, Bob Lindner, had admitted that he had made a scheduling error and so sent us both to the same shift. My colleague was not retained to work there that day; we were both sent away. Indeed, Bob Lindner apologized to me for his error and promised they would pay me at least my transport fare.
The dog incident attributed to me was also totally false. There was practically no dog incident. [Please see (06) below].
d. River Street, Waltham: The Respondent totally lied when they said that I was banned from this facility because of (i) my poor work performance; (ii) because I allegedly used the work telephone extensively and (iii) because I allegedly was agitated about this claim & [that I] repeatedly contacted Liz [Algamal, Program Manager] to the point where she felt badgered and did not want to have any contact with Kofi [i.e., me] at all.
Liz Algamal was one of my potential witnesses, but like all the others, attorney Gildea failed to subpoena her, thus suppressing evidence.
Simply cross-examining witnesses would have exposed all these blatant lies. Because attorney Gildea did not want the truth exposed, however, not only did he fail to invite the potential witnesses, like Maria Battaglia, Jennifer Evans, Fran Bleu, Katie Curley and Liz Algamal, whose list of names I had furnished him at least a year prior to the hearing date, but he merely suppressed all four crucial pieces of information by expunging them from the document he filed with the MCAD. He did the same thing with the appeal (review) document also, in spite of the fact that I earnestly entreated him to include them, if he wanted justice to be done and to win the case. In fact, Gildea merely ignored my entreaty and gave me no explanation for his expunction of the records of these incidents from the documents.
The h*o, Helene Horn Figman, likewise ignored all these incidents to which I referred in my written testimony. (Please see attached my written testimony).
(06) Gildea deliberately failed to react one way or another when the h*o completely ignored Bob Lindners testimony that it was another Field Staff, and not I, who had earlier complained to Katie Curley that this other Field Staff was afraid of dogs. According to Bob, Curley must have confused this other staff with me. Yet it was my alleged fear of dogs that Ms. Curley cited as her reason for her decision not to allow me back to work again at Norfolk Street. This dog incident, as the h*o termed iteven though there was absolutely no incident whatsoever involving the dogwas also one of the factors she cited for her conclusion that I was a high maintenance worker. Please note that the h*o reached this conclusion without first cross-examining the Respondent or me to determine the validity or otherwise of the allegation.
(07) Gildea intentionally ignored all the reports of my good work performance for which the Respondent themselves had often praised me. In fact, it was precisely because of my good work performance that Ms. Keri Lee of the Respondents Cambridge office had invited me to help give an orientation to newly employed field staff in the first place. Miss Genie Bush, Eastern Regional Coordinator, who was based at the Respondents headquarters, remarked in the presence of Ms. Lee about how everyone at the head office in Hadley, i.e., the President and the Directors, including Doug Hammond and Bob Lindner, had often favorably talked about me, e.g., about the fact that any time there was an emergency and a staff member called to report that s/he could not work and I was called upon, I did not hesitate to step in for the person. As Ms. Bush joyously and contentedly expressed it when we both met one day in person for the first time at the Respondents Cambridge office: Oh, youre K! Everybody in the office loves you. Theyre always saying so many good things about you.
(08) Gildea deliberately failed to raise objection to and to challenge with available evidence Respondents false claim that I was a poor worker. What was the relevance of this point, anyway, when the Respondent all along denied ever terminating me and insisted instead that it was solely my failure to contact them within 30 days that led to their inactivation of my schedules file?
Please note, as indicated, that with the HOs encouragement, this point was dwelt on at length and emphasized at the hearing to the extent that it appeared as if I was rather the one on trial. Even the h*o cited this as one of her decisions against me. (Please see the attached decision).
(09) Gildea deliberately failed to note and/or raise objection to the Respondents introduction of a new lie to the effect that partly because I was banned from and partly because I myself refused to work at many of their facilities, it became impossible for them to find me an assignment, for the facilities where I could have worked were limited. The Respondent, in fact, introduced this point only at our last and final hearing. It was not in their original Position Statement/Work History.
Once again it must be reiterated that the Respondent all along maintained that they never terminated me but that they merely placed me on inactive status, because I had failed to contact them for one month for an assignment.
(10) Gildea deliberately failed to raise objection when the h*o not only did accept this anomaly [(09) above], but also admitted it at this late stage as a part of the Respondents testimony. In fact, as indicated, the h*o surprisingly cited this also as a reason for her decision against me, even though it was not in their Position Statement.
(11) Gildea deliberately failed to draw attention at the hearing to the fact that the Respondent had deliberately excluded my Work History when I applied for copies of the contents of my personnel file. The Respondents statement in their cover letter in response to my request for the contents of my personnel file that a complete copy of the contents of [my] personnel file was being forwarded to me was a deliberate lie.
(Attached please find a copy of the Respondents letter dated July 2, 1998, signed by Robin OFarrell, Director of Human Resources, and addressed to me. Please note that the Respondents motive for the lie was that they had at this time not fabricated their lies against me and so did not have those negative reports about me in their Work History prior to my request for the contents of my personnel file and so they needed time to prepare such. In fact, in answer to the HOs question at the public hearing as to when this Work History was compiled, the Respondents President, Mr. Douglas Hammond, testified that it was compiled only after I had filed this case against the Respondent and applied for copies of the contents of my personnel file. The entries in the Work History were supposed to have been contemporaneous, but they were apparently not. For example, a past tense was used. This fact, coupled with Hammonds admission that the Work History on me was compiled after this case had started raises a very serious question. Yet the h*o merely ignored this anomaly.
(12) Gildea deliberately failed to raise the issue of my salary increment to counter the Respondents lie that my work performance was poor: if my work and character were so bad as they were now portraying me: (i) why did they see fit to give me a pay raise at least twice? (ii) why did they continue to tolerate me and even offer me work well over and above the regular 40 hrs. per week schedule? (iii) why did they ask such a bad worker like me to help give orientation to newly recruited field staff? How could such a poor work performer be asked to teach newly recruited staff?
(13) Gildea deliberately failed to cross-examine the Respondents President, Mr. Douglas Hammond, to determine the truth, thus failing to expose their lie that I slept at work at League School in Newtonville and that a man called to report this to them. The truth is that I worked with no man on the day in question; I saw only female staff and was assigned to a section in which one of the women was in charge. Even then we both did not work together as she also had children separately assigned to her.
Please note how the h*o concocted her own version by saying: The principal of the League School called Hammond to complain that Complainant had fallen asleep, leaving the children unsupervised. As a result, he would not allow Complainant to be reassigned to the facility (p. 3). In fact, I was assigned to only one child throughout the shift. It is therefore a total lie that I felt asleep and left the children" unsupervised.
(I was greatly shocked when my counsel was called upon to cross-examine Hammond and he asked only about a couple of questions and declared: I have nothing further to say. Expecting that Gildea was going to thoroughly cross-examine the Respondents president Hammond after the latters counsel had finished leading him in evidence, I reminded my counsel through notes I exchanged with him about the lies the latter had continued to tell even under oath, but he refused to make use of the opportunity. This apparently was in conformity to his design to let me lose the case).
(Please see the enclosed copy of our handwritten notes we both exchanged.). Likewise, contrary to the HOs suggestion, my counsel failed to lead me in evidence later when, immediately after the Respondents counsel had cross-examined me, I made a request to make some comments as a follow-up to my testimony. By thus failing to cross-examine Hammond, Mr. Gildea indeed ensured that the whole truth never came out. By this act of omission, my own counsel obstructed justice, thus hurting my case. It is not surprising, therefore, that with the HOs deliberate lies, distortions and fabrications, the decision went against mea result my counsel apparently worked hard to have.
It must be noted that when Gildea deliberately suppressed evidence by expunging those important aspects of my testimony that would have strengthened my case, I protested and then entreated him to include them, but he ignored me and sent the petition without incorporating them.
(Please see copy of my e-mail message in which I urged him to include those crucial points).
Also, Gildea never explained to me why he expunged those incriminating points against the Respondent. (Please see item (05) on pages 6 and 7 above). But from my observation of the way he prosecuted the case as a whole, from the time when we reached the stage where we had to decide on the claim amount, as indicated, he apparently did not want me to win the case but to lose it instead. Surely, this must have been to his own advantage financially, one way or another.
Please note again that throughout the case Gildea became increasingly intimate with the Respondents counsel while doing everything to prevent me from attending important meetings with them connected with the case.
(14) Gildea deliberately failed to subpoena the River Street manager, Liz Almagal, and this facilitys telephone records, which would have proved that the Respondents allegation that I used the work telephone extensively was an absolute lie.
(15) Gildea deliberately failed to challenge and/or correct the HOs intentional distortions of facts and fabrications. The h*o deliberately distorted and in some cases fabricated her own version of the case. She has no excuse for doing so, because all the testimonies and cross-examinations were recorded and were available to her. That she chose to distort and/or fabricate aspects of my testimony, and thus giving a negative connotation to my actions shows her own prejudice, which is based not on fact or justice, but on her own agenda. I pointed out this to Mr. Gildea, but he merely ignored me and included the HOs false versions in the petition for review.
(16) Gildea deliberately failed to raise objection when the Respondents counsel at the hearing lifted from a three-page letter I had addressed to my former manager of Adams Street only a sentence or two that he considered negative. As the Respondents counsel introduced his point: Listen to the tone of the letter. By so selectively reading my letter (i.e., by focusing on only a negatively sounding statement I made in the letter about the abusing client), the Respondents counsel completely took it out of context and thus distorted its very spirit, especially when he gave the false impression that the whole letter was negative. To get the true tone of the letter would require that the entire letter be read. Yet my counsel raised no objection.
(17) Gildea deliberately failed not only to call my potential witnesses but also to serve the MCAD with a list of the witnesses names, day time telephone numbers and a summary of what each witness knew about my case well ahead of the hearing date, as the MCAD directives required. Of the list of nearly twenty names of potential witnesses I had given to counsel Gildea, he actually listed only three of the witnesses names, whom he did not invite, anyway. Similarly, he failed to utilise written statements submitted by some of my witnesses, e.g., those by my Primary Care Physician (PCP), Dr. Irene Gavras, and a former co-worker, Sharon Wyman. Indeed, when I handed over Ms. Wymans letter about me to counsel Gildea, the Respondents counsel raised objection to its use and the former easily acquiesced. And the h*o also surprisingly upheld the objection, even though the MCAD has clearly advocated for such. (Please see MCADs paper entitled, Facts About The Initial Investigative Conference).
(18) Gildea deliberately failed to raise objection, and the h*o upheld it, when the Respondents counsel claimed at the hearing that the abusive client at the Adams Street facility had every right to be rude to me and to give me an unnecessary hard time at work as he did. My counsel seemed to have seen nothing wrong with the clients abusive behavior towards me.
(19) It is abnormal and a perversion of justice that the h*o, who had apparently been so much against me and had indeed ruled against me, was again made a member of the three-member appeal panel (MCADs Full Commission) that also ruled against me, while I wasnt similarly given the opportunity to present my case to this panel. In fact, the appeal panel merely adopted the HOs negative Decision. Again, my counsel raised no objection to this apparent miscarriage of justice.
(20) Gildea deliberately failed to argue against the HOs apparent gloss over the lie that I did not contact the Respondent for a period of thirty days to require an assignment.
(21) Gildea deliberately failed to lead me to explain the main purpose of my letter to my manager, namely, that it was meant to be a personal and not official letter, which however the manager made official by mailing it to Ms. Cathy Harper of The Center for Mental Health. (This letter was the cause of my summary dismissal).
Deliberate Distortions and Fabrications by the Hearing Officer (h*o)
Not only did the h*o, Helene Horn Figman, Esq., conspire with my own counsel Tom Gildea and that of the Respondent, Alan Seewald, Esq., against me in this case; he also distorted crucial aspects of our testimonies and fabricated her own version of events to suit her own agenda, which was to rule against me. The following are some of her distortions and fabrications:
(01) Complainant testified that he had a difficult experience there restraining a suicidal runaway since he had not been trained in the use of physical restraints.
This is distortion by the h*o. By putting it the way she did, the h*o gave the impression that I was at fault because I had failed to take this course. I did not say anything like that. What I said, in fact, was that what courses a staff should or should not take were determined by the Respondent and not by staff themselves. The Respondent also paid the required fees for the courses. In other words, the Respondent never asked me to take a restraint training course, for it was not among their required courses. Any suggestion that I failed to receive restraint training is totally false. (Please see page 11 above).
(02) The false impression that clients could use work telephones while Field Staff could not. In fact, it was rather the very opposite. While staff could and did use the official telephone, clients were prohibited from doing so. The clients had or, where necessary, were supposed to have, their own telephones.
(03) The false impression that it was inappropriate for me to have written a letter directly to my program manager rather than to the Respondent. No, this was the appropriate thing to do. In fact, every Field Staff was expected to document every incident that occurred while on duty. Thus, apart from writing an incident report, I also reported every incident in the Daily Log-book. It was only when my manager wasnt taking action on my complaint about the abuse being visited upon me by the client that I wrote to him, the purpose being merely to prompt him to take action on the complaints I had made to him. I did this because of my cordial relationship with him. I had no idea he was going to make this letter official by sending it to his superior, since it was a personal, unofficial one I had written him.
The impression created both by the Respondent and the h*o, Helene Horn Figman, at the final hearing that I had acted improperly by not immediately and directly reporting to the Respondent the harassment case but to my program manager instead was false. I did correctly follow the officially laid down procedure. The stage where I would have formally reported the case to the Respondent would have been only if my manager completely failed to take action regarding my report. But that was not the case; I did not have the chance to do so. I wrote a personal letter to my manager and the next day I was summarily terminated.
It must be remembered, however, as already indicated, that I did verbally and informally mention in my written statement to Mr. Bob Lindner, a coordinator at the Respondents headquarters, that one of my clients at Adams Street had been abusing me.
Evidence showed that the Respondent themselves deliberately fabricated most of the charges they leveled against me, especially the most serious ones. And the fabrications occurred only after I had filed my complaint with the MCAD against them. That my entire Work History was compiled after I had lodged the complaint against the Respondent was admitted at the final hearing by Doug Hammond, the Respondents President.
(Attached please see the second page of Gildeas Petitioners Rebuttal to Respondents Position Letter, Re: K. A. v. Relief Resources, No. 98132570, of January 15, 1999, and addressed to Mary Garippo, MCAD Investigator).
(04) Hammond spoke at length with [Katie Curley, CASCAP Program Manager of the Norfolk Street facility in Cambridge] on Complainants behalf and she agreed to have Complainant re-assigned to her facility. However, during a subsequent assignment at Norfolk Street, Complainant was involved in an incident with one of the residents dogs. As a result, the manager cancelled Complainants next scheduled shift and request that Respondent send a different field staff worker. [Complainant] was angry to find out that he was being replaced and engaged in a heated discussion with staff at Norfolk Street. [See (05) c., pp. 5f. above].
All this is in stark contrast to the actual testimony the Respondent gave. In other words, this is the HOs own concoction and distortion.
Hammond did not testify that he spoke at length to the Program Manager on my behalf and that she agreed to re-assign me to her program. Nor did he say that I was involved in an incident with dogs [sic] though Hammond also gave the false impression when he said in his Work History on me that I could not cope with a residents dog. The truth is that there was practically no incident involving any dog whatsoever. [Please see (05) c. and (06) above for the facts.].
(05) Complainant concluded that the residents behavior towards him was racially motivated because there were no other Blacks in the shift.
This is nonsense! I gave no such testimony. Where is the logic? Here is another example of the HOs fabrication and distortion. I did say that the clients behavior was racially motivated. But that is not the issue here. The issue was retaliation and retaliation only, as the MCAD had already ruled. It is thus irrelevant to inject any racial issue into this case. (Please see page 5 above for details).
(06) The h*o distorted the truth and fabricated her own version when she stated: The Complainant, K. A. (Complainant) is an African male who was born and raised in Ghana. His studies at the University of Ghana included theology and business. He served as Ghanas director of the national campaign for Christ. He holds a doctor of Philosophy from Boston University.
I nowhere testified that I studied business at the University of Ghana, nor was I director of the national campaign for Christ. What I testified to was that I hold a Dip.Th. from the University of Ghana, a Bachelor of Arts from The International University, a master of Theology and a doctor of Ministry from Southern Methodist University as well as a doctor of Philosophy degree from Boston University. I also testified that I was the National Representative of Campus Crusade for Christ, International, in Ghana. That the h*o can distort my testimony the way shes done here only underlines my point that she deliberately intended to rule against me.
These are only six examples of the HOs concocted and/or distorted versions of our testimonies. All the testimonies, written and oral, were available to the h*o. She therefore had no excuse for her distortions and fabrications, unless she was determined to rule against me, as she in fact did.
As demonstrated above, it is apparent that that I lost the above-referenced retaliation case at the MCAD because of the deliberately incompetent way and manner in which my counsel, Thomas S. Gildea, conducted it. Mr. Gildea deliberately engaged in a number of acts of commission and omission throughout the hearing, calculated to ensure the Respondents victory and my defeat. In other words, Gildea withheld many pieces of crucial evidence from the MCAD and its Hearing Officer, Helene Horn Figman, Esq., who apparently upheld or merely ignored many of Mr. Gildeas anomalies. Mr. Gildea chose to and did make and take certain crucial decisions without my prior knowledge and consent, which decisions were, no doubt, detrimental to my case.
Secondly, although it was the said h*o who first ruled that the Respondent did not engage in unlawful retaliation [against me] in violation of M.G.L. c. 151B, s.4(4), yet she again formed a part of the MCADs Full Commission (a three-member panel, the h*o being the third member) who also ruled against me by dismissing my case. While she was the one who presented her negative decision to the Full Commission about my case, I was not similarly given the opportunity to appear before it to present my version of it. Is that justice? Is that fair?
Thirdly, it is interesting to note that while the h*o apparently informed the Full Commission that she had ruled against me regarding my complaint of unlawful retaliation against the Respondent, yet during the hearings over which she presided, the issue of retaliation was hardly mentioned at all, let alone discussed, as both the h*o and my counsel shifted focus almost entirely onto my alleged poor work performance issue. This gave the wrong impression that the Respondent had argued that they had terminated me because of my poor work performance. In fact, the Respondent even vehemently denied throughout the hearings that they had terminated me at all. To the contrary, they falsely argued, it was I myself who did not call their office to schedule work assignments for a period of one month.
Finally, not only did the h*o rule against me; she fabricated and/or deliberately distorted both my testimonies and those of the Respondents in favor of the latter. Apparently, only in this way did she find it legally plausible to give her decision against me. And she was able to do this with my counsels total acquiescence, connivance and condonation.
All this, to my mind, represents nothing but a gross miscarriage of justice both by my counsel Thomas S. Gildea and the h*o, Helene Horn Figman, both of whom had clearly conspired with the Respondent against me.
United States District Court, District of Massachusetts, Boston
Following the unjust dismissal of my case by the Massachusetts Commission Against Discriminations Full Commission on 12 June 2003, I filed a complaint of retaliation against Relief Resources (Defendant) at the U. S. District Court in Boston on 16 January 2004. My complaint was that the Defendant, in violation of Title VII of the Civil Rights Act of 1964 and of M.G.L. c. 151B, retaliated against me by summarily terminating me as a result of a letter I wrote to my supervisor about being racially-harassed at The Center for Mental Health facility at Adams Street in Waltham.
The case was presided over by Justice Douglas Woodlock of the U. S. District Court in Boston. Initially, the judge gave us (Plaintiff and Defendant) the opportunity to mediate the case between ourselves. I accordingly submitted a settlement proposal on 02 September 2004 to the Defendant, but they (Defendant) rejected it. I therefore was compelled to proceed with the case at the U. S. District Court and filed a Motion for Summary Judgment on 14 February 2005. In response, the Defendant also filed a Motion for Summary Judgment to which I responded by filing on 01 April 2005 an Opposition to Memorandum in Support of Defendants Motion for Summary Judgment.
On 05 August 2005, Judge Douglas Woodlock heard our motions and strangely granted the Defendants Motion for Summary Judgment and denied mine. Strangely because Judge Woodlocks ruling was based almost entirely on the racial discrimination aspect of the case that was dismissed by the MCAD at the very initial stages of my complaint to that body.
Indeed, as already indicated, as a result of their investigations in response to my initial complaint to the MCAD, three of the latters Investigators, viz., J. Lynn Milinazzo Gaudet, Esq., Sunila Thomas George, Esq. and Douglas T. Schwarz, Esq., concluded that they found a probable cause to credit [my] allegation of retaliation. At the same time, however, they also recommended a lack of probable cause finding for the discriminatory treatment.
Secondly, my complaint to the U. S. District Court about the Defendant was about retaliation and not about racial discrimination, that the Defendant summarily terminated me as a result of my personal letter to my manager at Adams Street. Judge Woodlock, making reference to my said letter, argued, inter alia, The claim here is a very particular one. It is a claim of retaliation in connection with what is asserted to be an effort to advance protected activity, that is, the protected activity of raising and resolving issues of employment discrimination on the basis of race. There is no direct evidence of racial discrimination in place here. I say direct evidence as a kind of catch-all for the type of evidence that shows directly some racial animosity by some relevant factor
Judge Woodlock further argued: What must be established to establish an actionable claim is that the defendant here was aware of unwelcome or racial conduct or speech affecting the terms and conditions of his employment, and, second, that there was knowledge of that by the employer a the time in which the employer would be expected to take some action.
Turning to the question of the plaintiffs knowledge that this was a hostile environment as defined by reasons of race, I look at the letter itself. The letter itself is on the question of race somewhat ambiguous. It says at page 3, Im strongly of the opinion that the person who we come to call Steves negative attitude to me can be traced to his background, and then it adds, which Im not surprised to find to be racist. That is not an assertion that it is racist, it is an insertion he will not be surprised if further inquiry, the background turns out to be racist. So even at that point, one cannot say that the plaintiff had identified this as a hostile work environment based upon racial activity, racist activity, excuse me.
You know, I credit Dr. As suggestion that there is embedded in that verbal abuse the kind of verbal abuse that is frequently associated with racism, but it is not explicit nor is it explicitly called out in this letter in a fashion that would make the employer aware that what was being raised was a hostile work environment employment discrimination claim against them.
There is no question that we can find here mistreatment of Dr. A. by Steve. I think its possible to find mistreatment of Dr. A. by the Center for Mental Health. I think it is possible to find that the defendant here did not necessarily conduct its decisions concerning adverse employment in an empathetic, sympathetic fashion, although thats still a disputed issue of fact. There is much there, but unless one is to say that any physical or verbal abuse directed at a member of a protected class is, would be, per se, emotionally racially motivated, then the plaintiff here has not met that prima facie responsibility that he has under the claims he raises of showing that he engaged in protected activity in respect of his employer.
Under these circumstances, I simply cannot find that the plaintiff has made out his prima facie case of discrimination, and for those reason, which Ive dictated into the record in order to provide the parties with an appropriate resolution of them, I am granting the motion of the defendant for summary judgment and denying that of the plaintiff.
Thus Justice Douglas Woodlock dismissed my case on 05 August 2005.while granting the Defendants Motion for Summary Judgment.
Plaintiffs/Appellants Petition for Review: United States Court of Appeals for the First Circuit, Boston, Massachusetts
Believing that Justice Douglas Woodlock seriously erred in his decision against me and thus in favor of the Defendant on 05 August 2005, since he focused almost entirely on the racial discrimination aspect of the case that had been dismissed by the MCAD and which, in fact, was not my complaint in the first place, I filed an appeal with the U. S. Court of Appeals for the First Circuit in Boston, MA, on 03 September 2005.
On May 5, 2006, the Court of Appeals, comprising a three-member panel of Circuit Judges, who gave only their last names as Lynch, Lipez and Howard, affirmed the summary judgment of the District Court and dismissed my appeal, ignoring the true facts of