Complaint against Walpole restaurant spotlights concerns over rights commission backlog

Former cook charges eatery co-owned by Ken Burns with sex discrimination

A cook who’s worked at the eatery for over 17 years has charged that the Restaurant of Burdick’s – a Walpole restaurant owned by documentary filmmaker Ken Burns – discriminated against her because of her sex and retaliated against her by not letting her return to work after she quarantined because of exposure to Covid.

Cynthia I. Chiu, who lives across the border in Bellows Falls, Vt., first filed her complaint in October 2020 before the backlogged state Human Rights Commission. But like so many such complaints, it languished for years before the commission found that she had probable cause on the discrimination charge, but not on her retaliation allegations.

Before the case could go to a HRC hearing, attorneys for the restaurant removed the case first to state court on Jan. 25 and then to federal court on Feb. 17, where she will have to relitigate the case. She is currently without a lawyer.

A bill that would prevent such removals was recently put off by the state House Judiciary Committee for another year.

Chiu alleged her troubles started about 2017 when a new employee was hired that “exhibited threatening and demeaning and inappropriate behaviors towards other employees and me,” according to her HRC filing. When Chiu complained to her supervisor, nothing was done, but after another employee did so, he was fired.

Then when the restaurant was shut down during the pandemic, she discovered that a cook with an “inferior role to myself” was making more money than she.

Chiu also said she was reluctant to return work when the restaurant reopened because there were no masks or social distancing required. In addition, she was close to someone who tested positive for Covid, and quarantined. Because of delays in testing and a lost result, she wasn’t able to return until late May. But on June 1 she received a letter saying she had resigned from her position because of infrequent contact and refusal to work. She contended that that was fired for complaining about sex discrimination.

The Restaurant at Burdick’s is owned by Burns and Goins LLC, with Ken Burns and Tom Goins as the principals, according to filings with the secretary of state. Burns said in 2019 he was a silent partner at the restaurant for some 18 years, according to Yahoo News, which described the place as a “cozy nook serving French and American fare.”

“It’s not really a labor of love because the only thing I do is lift my fork,” Burns reportedly said. The article says he mainly eats there.

Calls to the restaurant and both of its attorneys, Debra Weiss Ford and Ashley Rae Theodore of at Jackson Lewis PC in Portsmouth, were not returned by NH Business Review’s deadline. Messages left at Chiu’s residence were also not returned.

Understaffed agency

Meanwhile, Frustrations over the backlog at the HRC have been a problem for decades.

The understaffed agency is supposed to make a decision about probable cause on complaints within two years, but rarely does so, and the complaint usually ends up in court. Only about one case a year actually goes to a hearing – a process that is similar to a trial and can award damages to the plaintiff.

Many of plaintiff’s attorneys remove cases to the state and federal courts at the earliest possible moment, usually after six months. But some recent changes in the law allowed defendants to do so as well, if the commission found probable cause against them.

House Bill 362 would have ended that right of removal. Employers could still appeal an HRC decision, but only for legal errors, not to retry a case.

It’s only right, say attorneys who represent workers, that only they should get to choose their forum since they have a lot fewer resources than the employer, and sometimes can’t get a lawyer to take their case.

“It takes 20 months just to get their case assigned to an investigator,” said Megan Douglass, of the law firm of Douglass & Garvey, who testified in favor of the bill on Jan. 26 before the House Judiciary Committee. It takes even longer to get a probable cause ruling that would allow a case to be heard by the HRC.

“Employers are distorting the difficulties in the process,” added Samantha Heuring, another attorney from the same firm. “They are forum-shopping to exhaust the complainant and if you’ve proven your case, they yank you to court.”

But it’s not fair for only one party to be allowed to remove the case to court, said David Juvet, senior vice president of public policy at the Business & Industry Association of New Hampshire. Juvet agreed that the commission was understaffed, and promised that the BIA would support increasing its funding, a rarity for the organization, which doesn’t often lobby for line items in the budget.

Several attorneys. Backed Juvet up. The HRC is just supposed to weed out frivolous cases, said James Reidy an employment law attorney with Sheehan Phinney. “It’s just a step on the way. It’s not meant to be a final stop,” he said.

The commissioners are volunteers, and it’s simply not the same as a court case, he said.

And almost all plaintiffs are represented at a hearing, since they can get an attorney on a contingency basis, “whereas management employers are paying me on an hourly basis,” said Beth Deragon, an attorney and mediator with Pastori Krans who said at the hearing she represents both sides in front of the HRC, though her LinkedIn page says she primarily works for businesses. Rarely, she said, do plaintiff represent themselves.

Chiu apparently is one of the few who has done so , won a probable cause decision.

On. Feb 9, the committee voted to retain the bill, which means that it can’t be voted on by the full House until next year.