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American Legion Post 12 v. Susa11/30/2005
Ct. 275, 30 L.Ed.2d 267 (1971) (customer preference for female flight attendants was not a valid defense to the employer's discriminatory refusal to hire males)[.]" (Decision at 22.)
Ultimately, after considering the evidence in its entirety, the Commission determined that "it was clear that ancestral origin discrimination" was a factor in the decision to terminate complainants Cote and Pacheco. (Decision at 23.)
As previously stated, this Court may not substitute its judgment for that of the agency on issues of fact, or with regard to credibility determinations, where substantial evidence exists to support the agency's findings. Furthermore, in the absence of fraud, the Commission's findings of fact are conclusive upon this court if in the record there is any competent legal evidence from which those findings could properly be made. Here, the evidence in the record, as cited by the Commission's decision, was such that a reasonable mind could conclude that Ms. Cote and Ms. Pacheco were terminated because of their ancestral origin rather than because "business went down." Therefore, the Commission's decision was not clearly erroneous.
C. Retaliatory Discharge
In addition to finding that Ms. Cote and Ms. Pacheco were discriminated against because of their ancestral origin, the Commission concluded that all three complainants-Ms. Potter, Ms. Cote and Ms. Pacheco-were unlawfully terminated by the Legion in retaliation for opposing its discriminatory employment practices. Again, the Legion argues that this finding was arbitrary and clearly erroneous in light of the reliable, probative, and substantial evidence on the record.
A claim for unlawful retaliatory discharge follows the same burden-shifting framework as discussed above although the elements of the prima facie case are different. To make out a prima facie case for retaliatory discharge, one must establish that "(1) [he or] she engaged in protected conduct; (2) [he or] she experienced an adverse employment action; and (3) there was a causal connection between the protected conduct and the adverse employment action." CaleroCerezo v. United States Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004) (citing GU v. Boston Police Dep't, 312 F.3d 6, 14 (1st Cir. 2002)).
With respect to Ms. Cote and Ms. Pacheco, they met their burden of presenting a prima facie case for retaliatory discharge by establishing that they complained about the ancestral origin and sexual harassment of the patrons, they were fired, and they were terminated shortly after complaining about individuals who refused to be served by them because they were Italian. Furthermore, despite the Legion's insistence that these women were fired because of poor business, this Court finds that there was substantial evidence on the record to support the Commission's conclusion that they were terminated in retaliation for their complaints. The Commission found:
he termination came soon after complainant Cote lodged a complaint about [a member's] use of an ethnic epithet towards her. [The member's] refusal to enter the club as long as she was employed was a response to Mr. Kettelle's attempt to deal with [the member's] ethnic slurs. As complainants Cote and Pacheco refused to accept sexual harassment or ethnic harassment, their relationship with the discriminating members soured . . . espondent ultimately terminated complainant Cote and Pacheco because there were members who would not be served by them. (Decision at 23.)
Although no one specifically testified that Ms. Cote and Ms. Pacheco were fired as a result of their complaining about the patrons' use of ethnic slurs, there was reliable, probative and substant
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