Manager alleged she was fired for not being ‘one of the boys’

Verdict: $1,000,000

Case: Theresa Garafolo v. Healthcare Services Group, Inc.,
No. 07-cv-11165

Court: U.S. District Court, Southern District
Judge: Paul Crotty
Date: 4/23/2009

Plaintiff Attorney(s):
William Sipser, Tuckner, Sipser, Weinstock & Sipser, LLP, New York, NY
Jack Tuckner, Sipser, Weinstock & Sipser, LLP, New York, NY

Defense Attorney(s):
Jeffrey L. Braff, Cozen O’Conner, Philadelphia, PA

Facts & Allegations:
On Aug. 1, 2005, plaintiff Theresa Garafolo, 64, a manager of a nursing home’s clothing and laundry services, began working for a third-party service provider, Healthcare Services Group Inc., which had been hired by her employer, the Bronx-based Kings Harbor Multicare Center nursing home. Garafolo became Healthcare Service Group’s only female manager.

Garafolo claimed that she quickly became subjected to unwelcome, discriminatory conduct and statements by Healthcare Services Group’s employees. Garafolo was fired on March 21, 2006. She was replaced by a male worker in his mid-40′s.

Garafolo sued Healthcare Services Group. She alleged that she was subjected to discrimination that was based on her age and gender, in violation of Title VII of the Civil RIghts Act of 1964, the Age Discrimination in Employment Act of 1967 and the New York City Human Rights Law. She further alleged that she was also subjected to retaliatory termination.

Garafolo claimed that she was fired because she was not sufficiently aggressive and assertive to blend with Healthcare Services Group’s younger male management team. She contended that she was told that she had to be more like “one of the boys.”

Garafolo also claimed that the company maintained a generally discriminatory view of its female employees. She contended that one male superior told her that “women were better suited for office work” and that men should supervise work areas while she should be “upstairs cleaning the toilets”. She also contended that she was ridiculed because of her weight and told on take off on Thanksgiving so she could cool and bring in prepared leftovers for her boss. She claimed that she was fired in response to her complaints.
Defense counsel contended that Garafolo was fired because her performance was not acceptable. He also contended that Garafolo did not submit any complaints about being subjected to discrimination.

Injuries/Damages:
Garafolo claimed that she was subjected to discrimination that was based on her age and gender. She further claimed that she was also subjected to a retaliatory termination. She contended that she suffered residual emotional distress that included embarrassment, humiliation and sleeplessness.
Garafolo sought recovery of her past and future lost earnings and compensatory damages. Judge Paul Crotty also charged the jury to consider punitive damages.

Result:
The jury found that Garafolo was not subjected to age-based discrimination, that she did not submit any complaints regarding discriminatory acts and that, therefore, she was subjected to retaliation. However, it also found that she was subjected to gender-based discrimination. It determined that her damages totaled $1 million.

Theresa Garafolo-
$65,000 past lost earnings
$85,000 future lost earnings
$775,000 punitive damages
$75,000 compensatory damages
$1,000,000

Trial Details
Trial length: 4 days

Jury deliberations: 1 day
Jury Composition: 3 male, 5 female

Post-trial: Defense counsel has expressed an intention to move for reduction or vacatur of the punitive damages.

Planning your maternity leave? Here are 10 ways to protect your rights at work, before and after your baby’s birth.

FAMILY PHYSICIAN Nicolle Overstreet, D.O., was fired on Oct. 10, 2007, nine days after she told the owner of the medical practice that she was pregnant. “I was stunned,” says Overstreet. She knew her boss’s claim that he could no longer afford her didn’t add up, so she filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), where pregnancy discrimination cases have reached a record high.

While Overstreet’s scenario may seem unthinkable, “what employers will do when they anticipate a hit to the bottom line is incredible,” says New York women’s rights attorney Jack Tuckner. To maximize your legal rights, follow these 10 pieces of advice.

1. Know the federal laws: As part of the Pregnancy Discrimination Act of 1975, pregnancy-or- childbirth- related leave must be covered by short-term disability insurance if your company has such a plan. Women generally receive partial pay; how long they receive it depends on the state and insurance policy.

The federal Family Medical Leave Act (FMLA) guarantees employees of companies with 50 or more workers upto 12 weeks of unpaid leave to care for a newborn. However, you must have been employed at the company during the previous 12 months and worked at least 1,250hours during that time. You also must give your employer written notice at least 30 days before your leave. You may use any accrued vacation time, sick days and/or disability insurance available to fund part of your leave.

2. Research state policies: Depending on where you live, you may be legally entitled to longer unpaid leave and/or paid lave. However, “don’t depend on your employer’s human resources departjent to be up-to-date,” says Tuckner. Your state’s department of labor is a better source. For a general overview, visit nationalpartnership.org and click on “Our Work,” then on “Family and Medical Leave.”

3. Tell your boss first: Your cubicle-mate may be your best friend, but don’t tell her you’re pregnant until you’ve alerted the higher-ups. “it’s a sign of respect,” Tucker says. “plus it protects you in case your boss hears through the grapevine and states to discriminate against you before you think he even knows.”

4. Don’t apologize: Don’t let your employer rib you of the joy of being pregnant, advises Ellen Bravo, former director of 9to5, National Association of Working Women and author of Taking on the Big Boys or why feminism Is Good for families, Business and the Nation (Feminist Press). “Be happy and prepared,” she says. “Discuss arrangements to help cover your workload while you’re gone, and let your boss know when you intent to return.”

5. Confirm in writing: After you tell your boss the good news, follow up the same day with an email or memo outlining what you discussed and any next steps. Be sure to “cc” your human resources contact and inquire about paperwork you’d like to get rolling. A paper trail is crucial in case you need to file pregnancy-discrimination complaint later on.

6. Voice your concerns: If you notice you’re being treated differently now that you’re pregnant, speak up. “People often let things go because they’re afraid to make trouble,” Bravo says. “You don’t always win if you stad up for yourself, but you never win if you don’t.”

Unlike Overstreet, most workers who file discrimination complaints aren’t fired. Rather, they’re taken off assignments, excluded from meetings and given the cold shoulder- all illegal. “if you’re on your way up and that momentum is halted once you reveal you’re pregnant, your rights are being violated,” Bravo says. Share your frustration with your boss, your boss’s boss and human resources.

7. Call for help: Not sure what paperwork you need to fill out or whether your company is acting appropriately? For free advice, call 9to5’s Job Survival Hotline at 800-522-0925 or email a trained staffer at hotline@9to5.org. You can also contact the EEOC at 800-669-4000, or visit the agency online at eeoc.gov.

8. Ask dad to take time off: New dads are also protected under the FMLA, although fewer fathers than mothers take advantage of it. “The practice will become mre culturally acceptable only if more men request parental leave,” Bravo says.

9. Leave contact info: Make sure you’re reachable in case you’re urgently needed. “It’s not a great idea to say , ‘Don’t call me, ever!’” Tuckner says, “But companies also need to act reasonably, and its not reasonable to be dealing with work issues every day while you’re on leave.”

10. Ease back in: “You’re not weal if you need to come back and work 10 to 4 for a few months,” says Bravo. Or perhaps you’d like to return to a four-day workweek or a job-sharing situation. “Knowing your value, and work with your manager to find solution that fits both your needs,” she says. For more information on flexible work arrangements, visit workoptions.com