Round Three in a Nutshell

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  • Round 1: My original suit against MSI / TLC /  Mattel ("Mattel") paid $140,860.80 to end this. Click for legal theories for round 1.

  • Round 2: MSI / TLC / Mattel's countersuit for libel. Mattel dismissed this after being litigated for over a year. Mattel's attorney dismissed this only when the judge asked them what was libelous.

  • Round 3: Silverstein's complaint against Mattel / TLC / MSI for retaliation. This is for filing and continuing their ridiculous countersuit.

Round 3 Explanation.

The brief version:

  • Silverstein bringing the original claim and speaking out about it are protected acts.

  • Mattel continuing the counterclaim for libel after the entry of judgment is retaliation. Mattel's entire counterclaim can be considered retaliation.

To show retaliation Silverstein must establish:

  • Silverstein engaged in protected activity. Bringing the original claim and speaking out about the case are protected acts under the ADA, FMLA, MGL c.151B. Silverstein's filing of a lawsuit is a protected activity. Mattel admits this is protected activity.

  • That the defendants knew that Silverstein that had done engaged in these protected activities. Mattel admits this.

  • Mattel (really only TLC/MSI at first) took a negative action against Silverstein because he engaged the  protected activity. The counterclaim against Silverstein itself is the negative action which explicitly states that Mattel (then MSI/TLC) brought this because he complained that Mattel (then MSI/TLC) violated the law and committed acts that violated the law on this website.
  • Even if Silverstein did not get a judgment in his favor, he is still protected. Retaliation is a claim that can stand on it's own, without an underlying discrimination claim. 

Mattel claims, that when filed the counterclaim, that they believed that they were libeled, therefore that had a right to file the counterclaim. Mattel agrees that suspicious timing can imply illegal motive, but argues the timing is only because a counterclaim had to occur after a lawsuit was filed against them.

Mattel is technically right, but full of bull! Even if Mattel believed they were libeled, after the judgment was entered they knew they were not libeled and should have dropped their libel counterclaim. Olophius Perry, Deputy Director of the Los Angeles District Office of the EEOC was shocked that Mattel kept going after judgment was entered. Gregory Manousos of the MCAD  was similarly shocked. Mattel is right that they could only file a counterclaim after a lawsuit was filed against them, but they ignore the fact that if they were really libeled, they could file a lawsuit without having to file a counterclaim. Mattel knew that they could file a lawsuit, not only counterclaims, for libel since they had lost a libel lawsuit against an attorney in California (Mattel v. Luce, et. al.). Mattel has not taken action against other who people libeled them.

Mattel also claims that since they did not retaliate in an employment related manner, that they are allowed to retaliate with impunity. This is also wrong. Under MGL c.151B, the ADA, and the FMLA is states that no person, not employer. If a person, as opposed to employer, is prohibited from retaliating, then how can it be claimed that only job status retaliation that is prohibited. In New York, the EEOC argued (and won) that an employer passing out fliers claiming that the women who complained of sexual harassment were prostitutes, child molesters, and drug dealers is illegal retaliation. In Passer v. American Chemical Soc., 935 F.2d 322 (D.C. Cir. 1991) the court ruled that canceling an award banquet is illegal retaliation. In Hashitmoto v.Dalton, 118 F.3d 671 (9th Cir. 1997), the court ruled that retaliation show be construed broadly.

The EEOC acknowledges this in their writings of section 8  of the compliance guide. Both the courts and the EEOC recognized that this should be construed broadly. In recognition of this, Naomi Levin, special assistant to the commissioner of the EEOC, at the National Association of ADA Coordinators Conference stated that filing a libel lawsuit against a person who complains of an ADA violation is an extreme form of retaliation that the commissioner is concerned with.

What Mattel / TLC / MSI has done to Silverstein is akin to President Clinton suing Paula Jones for libel. 

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