Former Amherst town employee Ellen Bokina receives $195,000 settlement resulting from discrimination



Last modified: Saturday, February 27, 2016

AMHERST — A former Amherst town employee who suffers from multiple sclerosis has won a $195,000 settlement from the town after filing a complaint more than six years ago contending that a previous town manager led a campaign of discrimination against her when he learned of her illness, and then fired her after she injured her knee in a workplace accident.

The town’s insurer recently made the payment to Ellen Bokina of Hatfield based on a finding of probable cause in January 2013 by the Massachusetts Commission Against Discrimination that the town of Amherst and former Town Manager Laurence “Larry” Shaffer discriminated against her based on the disability caused by a pre-existing medical condition.

Bokina was fired from her position as sanitarian and environmental health coordinator Aug. 19, 2009, less than a year after filing a workers’ compensation claim related to the knee injury that occurred during a fall while heading to an inspection of bedding at the Amherst Survival Center on Sept. 12, 2008.

But her termination as a town employee came just six months after Shaffer learned, from an independent medical exam to which Bokina was sent, that she had multiple sclerosis.

In her complaint, which references fatigue and muscle pain from the illness, Bokina claims Shaffer informed former health director Epi Bodhi that she should not have hired Bokina without his authorization.

A review of MCAD documents shows that Bokina contends Shaffer then began a “campaign of slander and discrimination” against her.

In a disposition written by MCAD legal intern Alexander Smith and signed by investigating commissioner Jamie Williamson, “a finding of probable cause is recommended against the town of Amherst and Mr. Shaffer for discrimination based on a disability.”

According to a litigation report presented to the Select Board earlier this month, the probable cause determination prompted Bokina to make “a settlement demand in the mid-six figures.” After a conciliation effort at MCAD, and a discovery process in which witnesses were called, the case was settled through mediation.

Costs Amherst $7,500

Peter Hechenbleikner, the town’s interim town manager, said the only cost to Amherst is a $7,500 deductible.“We would not comment on any other aspect of the settlement,” Hechenbleikner said.

The settlement agreement, signed Jan. 6 by then-interim town manager David Ziomek, states that the town continues to deny the charges “but to avoid the costs and burdens associated with further defense of the charges, the town of Amherst, Shaffer and Bokina wish to enter into this agreement to resolve all claims arising out of the employment relationship between Bokina and the town of Amherst.”

This agreement provided a breakdown of the settlement figure, with $40,000 representing lost wages, $16,000 lost benefits, $56,000 personal injuries and emotional distress damages not recognized under state law, and $83,000 legal fees and expenses.

The original complaint was filed Nov. 20, 2009, by Dan V. Bair II, an attorney with Brodeur McGan attorneys of Springfield.

Lisa Brodeur-McGan, the principal at the law firm, said Bokina, who declined to comment, faced a long and arduous process to get to the resolution of her disability and retaliation claim.

“While the settlement amount was significant, no client wishes to go through what she underwent to get such a settlement,” Brodeur-McGan said.

Saying that Bokina hopes to move on and put this matter behind her, Brodeur-McGan would not talk about the case in detail, observing there was significant medical information put forward to MCAD that led to the outcome.

Hired in 2008

Bokina was hired as sanitarian and environmental health coordinator in January 2008 after previously working as a private chiropractor.

In the 29-point complaint filed after her Aug. 19, 2009, firing, Bokina claims that “Shaffer fired me for allegedly filing a false workers’ compensation claim and lying in my cover letter to Bodhi regarding closing of my chiropractic office and insubordination.”

Bokina said she shut down her private practice in 2005 due to a family disability. The MCAD complaint states that being fired from town employment caused her to suffer severe emotional distress, due to the discrimination, and caused her to seek prescribed medication to treat the distress. The complaint also states that she lost wages and benefits as a result of her termination.

Bokina said she suffered the workplace injury on Sept. 12, 2008. In the disposition she “alleges she fell on her way to an inspection at the Amherst Survival Center. Complainant alleges it began to rain and she tripped over an uneven brick in the walkway.”

This caused a rip to her pants and a laceration to an unspecified part of her body, and abrasions, including to the palms of both hands, as well as a knee injury.

She reported this incident to Bodhi, and visited New England Orthopedic Surgeons Sept. 16, 2008, to get details about the extent of her injuries. Bokina filed a workers’ compensation claim to pay for two physical therapy appointments, and continued to work during this time.

In January 2009, Bodhi promoted her to assistant director of the Amherst Health Department.

On Feb. 4, 2009 the town asked that Bokina undergo an independent medical examination. It was after this examination that she contends Shaffer was first informed of her multiple sclerosis and began to question her injury claim.

On July 15, 2009, Bokina “alleges she was given the option of resigning or being fired by July 20, 2009.”

Her firing occurred when she did not attend an Aug. 19, 2009 meeting with Shaffer, telling him that she could not get a lawyer to accompany her. The meeting also could not be postponed a day because she had already scheduled a family sick day.

She was fired at 4:30 p.m. on Aug. 19, 2009, when she got a letter from Shaffer handed to her by former Human Resources Director Eunice Torres.

The town’s response, which is included in the disposition, contended that Bokina was hired Jan. 2, 2008, by Bodhi, but that should not have happened without approval of Shaffer. And while the town acknowledged that she fell, the medical report from New England Orthopedic Surgeons “did not contain any reference to an on-the-job injury” and provided inconsistent information about the nature of her injuries.

The town also alleged that Bokina had previously engaged in injury fraud and misrepresented the reason why her chiropractic office closed, and that her Sept. 16, 2008, visit to the doctor was scheduled before she fell.

“Respondents assert complainant was fired because she was not truthful with the town on numerous occasions, including misrepresenting the reason her chiropractic office was closed, and nature of her injury,” the disposition states.

David D’Arcangelo, director of the Massachusetts Office on Disability, said in a telephone interview Thursday that people with disabilities need to be treated equally. Municipal employees, he said, have significant protections under both Title 1 and Title 2 of the Americans with Disabilities Act.

“Generally, persons with disabilities can’t be discriminated against because of their disability,” D’Arcangelo said.

Scott Merzbach can be reached at smerzbach@gazettenet.com.




 


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