Trial Court’s workplace watchdog hamstrung, lawyers say

The efficacy of the Trial Court’s Office of Workplace Rights and Compliance is being derailed by rules that often leave employees in the dark about the outcome of investigations into their complaints of discrimination, say lawyers who represent workers in bias claims against the court system.

“The complainant may never know whether a specific remediation was suggested by OWRC and rejected by a manager or adopted by a manager, in whole or in part,” Westwood attorney John F. Tocci says. “The complainant, like the subject of the investigation, is entitled only to a report summary but may never know of, or be able to infer, whether remedial steps were recommended and taken.”

What’s more, the procedures under which OWRC operates give department heads the leeway to ignore the findings of an investigation into discriminatory conduct.

“The very management which engaged in discriminatory conduct or looked the other way has the discretion to ignore the rare findings in favor of complaining employees,” says New Bedford lawyer Christopher C. Trundy.

High hopes

The Trial Court established OWRC in 2019 with the aim of ridding the court system of unlawful discrimination, harassment and retaliation.

“[O]ur office will address any questions, concerns, or complaints regarding discrimination, harassment, or need for accommodations,” OWRC promises on its website.

In addition to fielding complaints from employees, OWRC looks into complaints of discrimination and harassment from users of the court system, such as attorneys and litigants.

OWRC Director Margaret Peterson Pinkham declined an interview request to discuss the office’s performance, instead agreeing to answer questions via email. In her written responses, Pinkham touts the numbers of her office.

“Every year, on average, OWRC handles over 200 cases and assists with more than 150 Helpline calls,” Pinkham writes. “In the past five years since its inception, the office has handled about 1,000 cases and answered around 750 Helpline calls.”

The Trial Court’s latest fiscal year report shows that OWRC received 215 complaints in 2024. Of that number, 24 complaints were referred to other departments. Of the remainder, 37 complaints were withdrawn, 57 were resolved by mutual agreement, and 97 were ultimately investigated by the office. Through the course of those investigations, 37 cases were “substantiated,” meaning the alleged conduct more likely than not occurred and violated court policy.

The complainant may never know whether a specific remediation was suggested by OWRC and rejected by a manager or adopted by a manager, in whole or in part.

— John F. Tocci, Westwood

“It’s been my experience in decades of doing these case that [human resources departments] — whether in government or private entities — will simply not investigate and say [a complaint] is unsubstantiated or find a conflict in the evidence and always resolve that conflict in favor of the employer’s interests. It is rare to have an HR entity find against the employer,” Trundy says.

But Pinkham rejects the notion that her office operates as a rubber stamp, calling OWRC “an independent office that is not part of the Trial Court HR or Legal Departments” and which reports directly to the Trial Court chief justice and court administrator.

She points out that all OWRC investigators are certified through the Association for Workplace Investigations and follow national best practices for impartiality and neutrality.

“The OWRC responds within 48-hours of receiving a complaint,” Pinkham writes. “The office notifies the parties every 30 days if the investigation has not ended and provides an estimated end date. The office tracks how long every investigation takes and sends every party a Close Investigation Letter. Both the Complainant and the Respondent are provided the same Close Letter so they are aware of the status of the investigation, are provided the detailed analysis regarding the credibility of available evidence and witness statements, and are informed of the findings.”

Behind the curtain

Trundy has represented multiple clients in suits against the Trial Court, most notably former New Bedford District Court Officer Tracey L. Tavares.

Tavares claimed that she endured years of racist and sexist slurs at work. She filed a complaint with the Massachusetts Commission Against Discrimination in 2013 alleging that a colleague hatched a plan to have her attacked at her home.

In September 2016, Tavares accepted a $7,500 settlement of her claims against the Trial Court, but the settlement related only to claims arising out of her employment up to the date of the settlement.

The very management which engaged in discriminatory conduct or looked the other way has the discretion to ignore the rare findings in favor of complaining employees.

— Christopher C. Trundy, New Bedford

Between January 2018 and April 2021, Tavares filed five additional complaints with MCAD alleging that she suffered retaliatory actions while continuing to work at the court, including false accusations of misconduct, unwarranted discipline, a hostile work environment, and, ultimately, the termination of her employment in August 2020.

Tavares removed her MCAD complaints to Suffolk Superior Court, and in a 2024 decision, Judge Michael J. Pineault denied the commonwealth’s motion for summary judgment. The case is set for trial in January.

During the course of discovery in the case, Trundy says he garnered insight into the workings of OWRC through the April 2023 depositions of Cathlin Corbitt, an ADA compliance manager in the office, and Heena Trivedi, a former manager at OWRC.

“The upshot was that there is no actual ‘compliance,’” Trundy says he concluded. “Even if an investigator makes a finding, management can simply disregard the finding and OWRC has no further authority — no compliance role, in fact. The use of the word itself cannot be explained. There is no enforcement mechanism. There is no avenue for the complainant to seek a remedy. So, in the rare event that a complaint is ‘substantiated,’ it is highly likely management simply ignores the finding.”

The depositions and dozens of others he conducted in the case made clear to Trundy that the Trial Court’s internal investigation of his client’s claims fell far short of acceptable standards, he says.

“The Trial Court did not properly investigate her claims, did not protect her, and repeatedly violated their own rules for protecting people from retaliation,” he says. “What troubles me is that at no point in this process did somebody say, ‘Whoa, let’s revisit this process.’”

Flawed system?

Tocci represented Donald O’Keefe, a former assistant chief probation officer in Gloucester District Court who, in September 2022, brought a discrimination claim against the Trial Court.

In the case, which has since been resolved, the plaintiff alleged he was denied a promotion to chief probation officer because he is white.

Tocci says he has nothing but high regard for Pinkham and her staff, calling them “dedicated and experienced professionals.”

But he argues that the effectiveness of OWRC is limited by procedures governing investigations of employee complaints of discrimination.

Section 5.800 of the Trial Court Personnel Policies and Procedures Manual sets forth OWRC complaint and investigation procedures.

Section 5.805 requires the OWRC investigator at the conclusion of an investigation to file a “confidential report including a full evaluation and analysis of the evidence and [to] provide recommended findings of fact and a recommended conclusion as to whether it is more likely than not that the alleged conduct occurred, and if so, whether the conduct violated this Policy … .”

Under §5.806, the director of OWRC presents the report to the appropriate department manager and, after consultation (and perhaps further investigation), issues a final confidential report.

“The manager will maintain control of the confidential report, will not make a copy of it in any manner, and will return it or otherwise dispose of it at the direction of the Director of the OWRC,” the rule states.

The director provides to the complainant only “a summary of the facts and findings, and of the conclusion of whether it is more likely than not that the Policy was violated, and where appropriate, that remedial action was taken to stop the behavior.”

“All corrective measures are confidential,” Pinkham writes. “The OWRC can only tell the parties that the investigation has concluded and been referred to the appointing authority for appropriate next steps.”

When a complaint is against another court employee, under §5.600 “the appropriate manager shall determine and impose corrective action (which can include remedial measures and/or disciplinary action, up to and including termination).”

“Once the OWRC informs the appointing authority in the relevant court department that a violation was found, that authority determines the appropriate corrective measures,” Pinkham says. “The office checks that some appropriate action was taken as part of its compliance role, but because corrective measures must comply with the collective bargaining process, which has specific grievance steps and possible arbitration, it is difficult to track the close of the case and possible conclusion of the disciplinary process as it can take some time.”

Like Trundy, Tocci sees a flawed system.

“At the end of the day, the OWRC can only recommend remedial action if they find such remediation supported by the investigative findings,” Tocci says. “But a manager is free to ignore in whole or in part the suggested remediation.”

Clock is ticking

One problem Trundy sees in the OWRC investigation process is that court employees waiting for the resolution of their in-house complaints often inadvertently allow the clock to run out on the 300 days they have to file a discrimination complaint with MCAD.

Pinkham, meanwhile, doesn’t view that as an issue.

“We always inform the parties that they can also file with the MCAD/EEOC at any time,” Pinkham says. “Whether they file simultaneously, during, or after they have filed a complaint with OWRC, we complete our investigation independently of the external filings.”

But Trundy says OWRC’s admonitions about timelines often don’t register with the typical employee who is filing an internal complaint.

“Everybody signs [these acknowledgements], but nobody — including managers — understands them,” Trundy says. “[OWRC] will take months and months to investigate a complaint. And meanwhile the person’s legal rights are dissolving because they only have 300 days to go to MCAD. So if they rely on an internal investigation, hoping that someone will fix the problem, when they go to MCAD they’re told they missed the deadline.”

According to Trundy, employers intentionally use internal investigations to “run out the clock” on the employee’s ability to seek relief in other forums.

“It happens all the time,” he claims.