Mack Molding seeks suit dismissal

Former employee alleges labor law violations, intimidation by firm

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BENNINGTON — Attorneys for Mack Molding argue that a suit filed by a former employee should be dismissed because of alleged "bad faith" actions by the plaintiff, which allegedly caused unwarranted legal costs and delays during the discovery process.

Attorneys Frederick David Harlow and Timothy Copeland represented the Arlington-based firm during a hearing Thursday on defense motions in Bennington Superior Court Civil Division.

They contended that Angela Gates and her attorney, Siobhan McCloskey, had "abused" the judicial process and the accepted rules of attorney conduct by withholding discovery materials requested by Mack Molding, misleading the defense attorneys, and by intruding upon attorney-client discussions involving company officials.

Dismissal is an extreme remedy, Harlow said, "but it is called for here."

McCloskey countered that the company had offered "no evidence" or "statement under oath" to support its allegations of unwarranted delays causing inflated attorney fees, or concerning improper or misleading conduct regarding the discovery phase.

She said the company was in fact making that argument while itself engaging in improper behavior, such as intimidating or retaliating against another former employee, Gates' husband, after she filed suit in November 2016.

Donald Gates ultimately was fired as well, and McCloskey said she has filed a motion to have him added to his wife's suit.

The suit lists several alleged violations of fair employment practices and family leave statutes, and that there existed a "pattern of discrimination and retaliation" against Angela Gates and other employees over a number of years.

Gates was employed by the company for nearly 20 years, as was her husband.

The firm's attorneys have filed responses denying the allegations and motions seeking to have the suit dismissed.

Multiple allegations

In the suit,  Gates alleges she was "willfully and maliciously subjected" by the company to wrongful actions, including "interference with medical leave rights;" "retaliation for exercising medical leave rights;" "disability discrimination;" as well as retaliation for filing a worker's compensation claim; age discrimination, gender discrimination, equal pay violations; "breach of an implied employment contract and covenant of good faith and fair dealing;" and non-payment of certain wages.

Gates seeks compensation for alleged emotional stress, damage to her personal relationships, "damages to her reputation, finances and business;" lost back pay and other wages; lost benefits, and "costs; interest; and reasonable attorney's fees."

Mack Molding denies the allegations and/or the details as presented by the plaintiff.

The attorneys on Thursday gave Judge David Barra "quite a bit to think about and ponder," he said at the conclusion of the nearly 90-minute hearing.

He took the arguments under advisement and indicated he would rule in approximately a month on the motion issues.

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Seeking dismissal

Arguing for dismissal of the suit, court sanctions against the plaintiff and the awarding of legal costs sustained by Mack Molding, Harlow said other responses by the court might be to exclude testimony from Donald Gates.

Harlow said Gates used his continued employment to seek out company information favorable to his wife's lawsuit and at one point lied to a Mack employee who asked if he was recording a meeting.

"The company is seeking a fair playing field" concerning the discovery process in the suit, Harlow said.

McCloskey argued that neither dismissal nor sanctions against her or the plaintiff are warranted and that their conduct was reasonable.

In one instance, she said that Donald Gates, having recorded an interview with a Mack Molding official, was acting in self-defense after Gates began to feel he was being retaliated against by the company after his wife had filed suit.

During another incident, Harlow contended that Donald Gates had improperly recorded a private conversation about the lawsuit involving senior Mack officials, intruding upon attorney-client privilege.

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McCloskey said that occurred only because Gates was carrying a recorder in his pocket because he felt intimidated. She said it also was a result of his being in the office area only because the company had recently required him to report on his work activities on a regular basis.

The recording was made from a hallway outside the room with the officials, McCloskey said, not as the defense contended near a vent area, and that was possible because the walls there were known to be thin and more than one conversation could be overheard at once.

Harlow also said the plaintiff and her attorney repeatedly delayed handing over or were misleading concerning discovery materials requested by the defense, especially concerning what Harlow said were multiple recordings.

At one point, McCloskey said that Angela Gates felt that turning over to the company a recording requested by Mack lawyers would have resulted in her husband being fired, and at the time he was the primary supporter of the family.

Harlow also contended that McCloskey once used information gained from a recording that hadn't been disclosed to the defense as an "ambush tactic" with a Mack employee while deposing that worker.

McCloskey said the recording indicates that the employee in fact answered untruthfully to her questions about a meeting with Donald Gates.

Harlow also asked that the testimony of the Mack employee who was recorded by Donald Gates be excluded from the suit, along with testimony from him.

McCloskey argued that testimony from the Mack employee and from Donald Gates is key to the suit and should be allowed.

According to McCloskey on Thursday, company officials in fact "tried to ambush" Donald Gates during interviews, such as by ignoring his request to have his lawyer present or by allegedly reading a list of questions prepared by a company lawyer to get his responses.

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She said the recordings are valuable as they could avoid a situation of his word versus that of the company about what was actually said.

Relating to alleged retaliation, she said, there was "a smoking gun" in one of the recordings. At one point, she contended, company officials could be heard on a recording talking about methods of retaliation against Donald Gates.

Series of incidents

The suit alleges violations of the Vermont Fair Employment Practices Act and Vermont Parental and Family Leave Act, among the allegations.

Work incidents cited include several surrounding a two-week leave of absence in 2013 during which the company allegedly did not inform Gates she qualified for family medical leave benefits. It also refers to a knee injury Gates said she sustained outside of work in 2015, which resulted to a lingering injury.

She states that upon her return to work in 2015, she asked for accommodation on her job, primarily concerning lifting requirements. However, Gates alleges she was assigned to work on a job "which was known to be a difficult job and on which she was not working on before her leave."

The suit also lists other alleged similar incidents involving former employees of the company.

Gates said that after three days in the more strenuous job, she was in pain and was sent home by another worker.

In October 2015, according to the suit, she was cleared by a doctor to work four hours per day as a molder but was told her position had been filled, which Gates disputes. She said she was forced to work as a finisher at a pay cut and lost her seniority in the molding department.

By May 2016, after several months of working in the finishing department full time, she was treated for pain and requested lighter duty employment with Mack.

The suit contends the company has "a deliberate and continuous pattern" of placing employees in a more strenuous job in an effort to discriminate against them or retaliate for having filed a worker's compensation complaint, requested accommodation on the job, or having taken medical leave.

The suit also alleges gender discrimination, in which certain lower-paying positions allegedly are mostly filled by women, while most higher-paying and/or supervisory jobs are filled by men.

And it is alleged that the company has a pattern of wrongfully firing older workers and replacing them with younger workers. Gates contends she was fired seven months prior to becoming eligible for a full pension and that others have been fired close to the date they would have been eligible for full retirement benefits.

The company denies the allegations.

Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien


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