Unfortunately, I don't.
What do you do when you receive a lovely (not to mention tasty) gift, this time one of Harry and David's Chocolate Towers, but the card identifying the giver is missing? Well you think back to anyone who has offered a hint that it was coming, but when that turns up nothing -- you feel badly. But in yet another (maybe only?) advantage of having a blog --- you can at least put the thanks out there -- in the faint hope that anyone kind enough to have sent such a wonderful gift might occasionally wander by Jottings, just to see what is going on.
If so, my sincerest thanks (and let me know!!).
EPLI Insurance for Sexual Harassment Challenged on Public Policy Grounds
What is now viewed as no longer a novelty in America - an insurance policy that protects a company from lawsuits based on employment practices - has been challenged by a member of the Israeli Parliament. According to the Jerusalem Post story, Gal-on Petitions JCJ on harassment:
Meretz Chair MK Zehava Gal-On petitioned the High Court of Justice on Sunday to prevent the AIG insurance company from selling an insurance policy that includes coverage for high-ranking corporate employees accused of sexual harassment.According to the Knesset Member and Chair of the Meretz political party:
The Christmas day filing was probably not the sort of gift AIG was hoping for, although given the year the company has had it may not seem like that big a deal.legitimizing such a policy reduces the danger associated with committing sexual harassment, neutralizes [the law's] preventative force, and neutralizes the law in terms of preventing sexual harassment.
Although I would be surprised if the motion was successful, for possible purchasers of such policies, if they are not going to be valid, much better to find out before paying the premiums than after the fact - as happened to the policyholder in a 5th Circuit decision earlier this year. See Check Your EPLI Policy - When Coverage For Discrimination Doesn't Mean The Most Common Type of Discrimination Claim.
A Perpetual Pain - In More Ways Than One - Performance Appraisals
As an employment lawyer who makes his living defending employers in adversary proceedings, performance appraisals are my worst nightmares. All too often there is a noticeable lack of correlation between what a manager tells you about a recently terminated employee and the employee you would expect to see based on their file of performance appraisals. At a minimum you are likely to be forced to deal with a long history of "meets requirements", which of course begs the question, at least in a jury's mind, of why it became necessary to terminate some one for performance who, after all, was meeting requirements.
As a supervisor of younger lawyers and staff people, and thus someone who is on occasion required to do performance appraisals, I can identify with all the reasons that performance appraisals turn out wishy-washy and not as good as they should be. So I am always keen for a better way to do them, or even just insights on how they might be made better. That was my frame of mind when I stumbled over an article on MindSolve's website talking about their patented Visual Profiler. While knowing nothing more about it other than what I read on the referenced link, it did seem intriguing. If nothing else, their comments on the benefits of comparative rankings are food for thought.
As a supervisor of younger lawyers and staff people, and thus someone who is on occasion required to do performance appraisals, I can identify with all the reasons that performance appraisals turn out wishy-washy and not as good as they should be. So I am always keen for a better way to do them, or even just insights on how they might be made better. That was my frame of mind when I stumbled over an article on MindSolve's website talking about their patented Visual Profiler. While knowing nothing more about it other than what I read on the referenced link, it did seem intriguing. If nothing else, their comments on the benefits of comparative rankings are food for thought.
More "New" Organizing Developments
Use of government influence as an organizing tool promises to be a continuing story in 2006 and, Case tests city's power to back union labor, from the Philadelphia Business Journal, reports on the latest battleground. For how one court has treated such attempts see 7th Circuit Overturns Local Government Mandated Labor Peace Agreements and Government Aid to Organized Labor, Chapter 2 in 7th Circuit .
Feliz Navidad
Blogging will be light or more likely non-existent for the next 10 days, as I go on holiday to the colonial city of Puebla, Mexico.
For those of you who stumble on this sight intentionally or by accident, I wish you and your family the best of the holiday season.
Safe travels and good cheer where ever you may be.
Michael Fox
For those of you who stumble on this sight intentionally or by accident, I wish you and your family the best of the holiday season.
Safe travels and good cheer where ever you may be.
Michael Fox
Even By California Standards -- $63.8 MDV Is a High Flyer
Which must be the way Doyle Baker, a 64 year old pilot must feel after completing the punitive damage phase of his successful wrongful termination and age discrimination suit against PrivatAir. Pilot awarded millions. The case had some star power as PrivatAir as Baker used to fly Demi Moore and Bruce Willis.
According to Baker's attorney he was the victim of a "conspiracy concocted by Baker's fellow workers to put him out of a job and replace him with a younger pilot." Almost half of the jury verdict was against two fellow pilots and a stewardess who were allegedly involved in the conspiracy.
According to Baker's attorney he was the victim of a "conspiracy concocted by Baker's fellow workers to put him out of a job and replace him with a younger pilot." Almost half of the jury verdict was against two fellow pilots and a stewardess who were allegedly involved in the conspiracy.
5th Circuit Makes it Clear - It is Severe OR Pervasive
Clearing up a question that existed primarily in the hopes of management side employment lawyers practicing in the 5th Circuit, the Court yesterday acknowledges that it has sent mixed messages about the correct standard to judge whether sexual harassment is actionable-- is it "severe and pervasive" or is it "severe or pervasive." Noting that Supreme Court decisions are controlling, the Circuit aligns itself squarely with the "severe OR pervasive" standard:
Contrary to being an irrelevant distinction, as [employer's] counsel asserts, the requirement that a plaintiff establish that reported abusive conduct be both severe and pervasive in order to be actionable imposes a more stringent burden on the plaintiff than required by law.Harvill v. Westward Communications,LLC (5th Cir. 12/13/05) [pdf]. Winning that point was not sufficient to win the case however, as summary judgment was affirmed on other points.
Employer's RICO Liability for Hiring of Illegal Workers
Will be the subject of Supreme Court review as yesterday it granted certiorari in Mohawk Industries v. Williams. Although I don't follow the pace of a Supreme Court practice, this one appears to be fast tracked as the case was decided at the circuit court level in June, the certiorari response was due on November 14th and less than a month later it is granted.
The 11th Circuit summarized what this case is about in its decision that will now be reviewed:
The 11th Circuit summarized what this case is about in its decision that will now be reviewed:
The plaintiffs filed this class-action complaint alleging that Mohawk’s widespread and knowing employment and harboring of illegal workers allowed Mohawk to reduce labor costs by depressing wages for its legal hourly employees and discourage worker’s-compensation claims, in violation of federal and state RICO statutes. The plaintiffs also alleged that Mohawk was unjustly enriched by the lower wages it paid, as well as the reduced number of worker’scompensation claims it paid.Williams v. Mohawk Industries, Inc. (11th Cir. 6/9/05) [pdf]. The Court allowed the action to proceed.
Although not a party, you can be sure that Wal-Mart will be watching as they have been the defendant in similar cases. See Have Wal-Mart's Lawyers Found a Smoking Gun?
It also means Carter Phillips, one of the small bar of Supreme Court practitioners that Chief Justice Roberts came from, is going to be busy. This is the 2nd week in a row that Phillips has obtained a grant of certiorari for his client in a major employment law case. See Supreme Court to Decide Major Issue - What is an Adverse Employment Action?
Religious Discrimination: The Story That Still Isn't
Notwithstanding that numerous commentators (including me) have been saying for some time now that discrimination on the basis of religion is the "next big deal", statistically it sill isn't. The story, Professions of faith, from the Boston Business Journal is more evidence: "the number of cases of religious discrimination filed so far this year in Massachusetts is 45, an eight-year low."
The potential fly in the ointment -- the Workplace Religious Freedom Act (S.667) which according to the story "seems to have more momentum" this year. We'll see.
The potential fly in the ointment -- the Workplace Religious Freedom Act (S.667) which according to the story "seems to have more momentum" this year. We'll see.
Government Aid to Organized Labor, Chapter 2 in 7th Circuit
Twice this month the 7th Circuit has considered challenges to legislative enactments designed to aid organized labor. It's a split decision as this time it ends much more to labor's liking. The 7th Circuit upholds an Illinois state law requiring a project labor agreement for state subsidized renewable fuel plants. Northern Illinois Chapter of ABC v. Lavin (7th Cir. 12/9/05) [pdf]. The difference between this and the case 2 days earlier? [see 7th Circuit Overturns Local Government Mandated Labor Peace Agreements ] In Milwaukee County a purchasing rule prescribing how employers must handle labor relations in all aspects of their business was pre-empted, but here - a conditioned subsidy was not.
Along the way, Judge Easterbrook makes a few common sense points -- the kind everyone knows, but not always said:
Along the way, Judge Easterbrook makes a few common sense points -- the kind everyone knows, but not always said:
about project agreements -- As a practical matter such agreements can
be achieved only by employers that recognize and bargain with labor unions.
conditional funding as a regulation --The question “is a condition on the receipt of a grant a form of regulation?” comes up frequently, and the answer almost always is negative.
effects of a subsidy -- The lure of a subsidy may lead firms at the margin to reach labor agreements.
reason for the subsidy -- If (as seems likely) Illinois has taken the approach in this law because state officials want to assist organized labor as well as the farmers who supply the grain to be made into ethanol and the owners of ethanol plants, that is neither a surprise nor a reason for invalidity...
why government projects cost so much - - Many a public project is bigger or more expensive than it need be, in order to enlist the support of multiple interest groups.Refreshing to hear common sense. It would be even better to hear it from members of the other two branches of government.
MDV Against "Safety Conscious" Employer
Turning an employer's safety program into a negative resulted in a $5 million plus dollar verdict against a South Dakota employer according to a recent story in the Seattle Legal-Ledger, Plaintiffs use little known theory to win bad faith insurance case.
The theory involved going after the employer which had taken a hard line position advocating that its workers compensation carrier not pay a claim. (According to the story the claim in dispute was slightly under $6,000.) In the subsequent suit for bad faith denial of the claim, the insurance carrier settled early and the claim against the employer proceeded on the theory that it had aided and abetted the commission of a tort. Given that it arose out of a workers compensation claim, which usually bars most tort claims against the employer, it will be interesting to see how this ultimatelyone plays out.
Regardless of the final resolution, how plaintiff's counsel was able to turn a company's safety program into a negative is an important lesson. According to the article the employer had "goals in place of less than one day of lost time due to injury for every 100 employees." In two years running the company paid out more than $400,000 in bonuses under the program.
The argument, apparently bought by the jury, was that the incentives led to improper actions on part of the company. Part of the evidence was that the company:
The theory involved going after the employer which had taken a hard line position advocating that its workers compensation carrier not pay a claim. (According to the story the claim in dispute was slightly under $6,000.) In the subsequent suit for bad faith denial of the claim, the insurance carrier settled early and the claim against the employer proceeded on the theory that it had aided and abetted the commission of a tort. Given that it arose out of a workers compensation claim, which usually bars most tort claims against the employer, it will be interesting to see how this ultimatelyone plays out.
Regardless of the final resolution, how plaintiff's counsel was able to turn a company's safety program into a negative is an important lesson. According to the article the employer had "goals in place of less than one day of lost time due to injury for every 100 employees." In two years running the company paid out more than $400,000 in bonuses under the program.
The argument, apparently bought by the jury, was that the incentives led to improper actions on part of the company. Part of the evidence was that the company:
Failed to report employees' injuries to the South Dakota Department of Labor or to the federal OSHA and actively encouraged workers to not take days off from work because of injuries. ... One former employee testified that in order to reduce the number of days lost to injury, a supervisor came and picked him up the day after a surgical procedure and had him sit in the office all day.Not the first time that allegation has been made and one that employers with safety incentive programs should be aware might be coming.
S.F. Police Officers - Christmas Party Video - Uh Oh
Courtesy of Rick Klau's tins :::, a video news story from ABC News about the SF police officer video tape made apparently for an upcoming Christmas party, which includes some of the video clips as well as a fairly painful interview with the officer who made the tape.
Christmas parties just seem to be chock full of opportunities to cause workplace problems, often for employees. The disclaimer that the video was "offensive and in poor taste" wasn't nearly enough to save the day. The scorecard -- 20 officers suspended.
Christmas parties just seem to be chock full of opportunities to cause workplace problems, often for employees. The disclaimer that the video was "offensive and in poor taste" wasn't nearly enough to save the day. The scorecard -- 20 officers suspended.
Gallup Poll on Discrimination vs. EEOC Filings
EEOC has posted preliminary data on charges filed in FY 2005, along with results of a recently conducted Gallup Poll on discrimination in the workplace, New Gallup Poll on Employment Discrimination Shows Progress, Problems 40 Years after Founding of EEOC. One sharp difference in the data noted by Chair Cari M. Dominguez:
Race discrimination was about 36% of all charges, sex discrimination 31%, retaliation about 29% and national origin about 11%. No figures were released on religious discrimination charges, which based on anecdotal evidence one would have thought might have shown a substantial increase.
When you compare our most recent EEOC charge statistics with the Gallup data, we find that a far greater percentage of Hispanics and Asians perceive themselves to be discriminated against than actually file charges. Through the continuation of strong enforcement and targeted outreach and education, the EEOC is striving to ensure that the promise of the Civil Rights Act of 40 years ago will continue to be fulfilled for succeeding generations of American workers.According to the EEOC there were just over 75,000 charges filed in the year which ended September 30th - 61% under Title VII, 20% under the ADA and 18% under the ADEA.
Race discrimination was about 36% of all charges, sex discrimination 31%, retaliation about 29% and national origin about 11%. No figures were released on religious discrimination charges, which based on anecdotal evidence one would have thought might have shown a substantial increase.
"Ride them Hard and Put Them Up Wet"
What does that phrase mean? It's a half-million dollar question apparently. Check out the details of the settlement of a sexual harassment case based on a school official's use of that phrase in the presence of some female employees. It is reported, $450K settlement after "ride them hard" remark, at one of the best legal sites around, Overlawyered.com.
According to the quote from the newspaper article the phrase is:
Thinking to confirm the meaning and have a witty link for this post, I was amazed when the first entry in my Google search was from Amazon for its 233,168th best selling book: Rode Hard, Put Away Wet: Lesbian Cowboy Erotica.
Lesbian Cowboy Erotica? What a world!
But I agree with the school board member quoted in the article -- it still sounds like nuts!
According to the quote from the newspaper article the phrase is:
A rural idiom that means someone is tired or worked hard. The phrase is taken from the need to cool down a horse after strenuous exercise. Only a mistreated horse is stabled while it is still sweating.Which is certainly what I thought, and meant, on the times I myself have slipped into "rural idiom talk." (Easy to do for someone from Sulphur Springs.)
Thinking to confirm the meaning and have a witty link for this post, I was amazed when the first entry in my Google search was from Amazon for its 233,168th best selling book: Rode Hard, Put Away Wet: Lesbian Cowboy Erotica.
Lesbian Cowboy Erotica? What a world!
But I agree with the school board member quoted in the article -- it still sounds like nuts!
Summary of Texas Workers Compensation Reforms
I haven't linked to the Workers Comp Insider in a while, certainly not because they don't continue to post great information on a regular basis -- which they do -- more my general posting sloth. Maybe the link to today's summary Texas Workers Compensation Reform will help get me back in the groove.
Judge Janice Rogers Brown - Predictions/Results
Before Judge Brown's confirmation to the Court of Appeals for the D.C. Circuit:
"Janice Rogers Brown has a record of hostility to fundamental civil and constitutional rights principles, and she is committed to using her power as a judge to twist the law in ways that undermine those principles." Joint Press Release of People for the American Way and the NAACP, posted at The Black Commentator.
"Discrimination: Brown has written a truly stunning array of opinions ruling against people filing lawsuits for discrimination." The Truth about Janice Rogers Brown, posted at the National Organization for Women.Judge Brown's first two authored opinions in employment cases.
Jones v. District of Columbia Dept. of Corrections (11/15/05) [pdf]:
"Appellant Angela R. Jones brought this action against her employer, the District of Columbia Department of Corrections (“Department”), and various individuals, alleging sexual harassment, retaliation, and several common law claims. The district court granted summary judgment against Jones as to all causes of action and denied Jones’s motion for leave to amend her complaint. We reverse the judgment of the district court as to Jones’s sexual harassment cause of action. We also reverse the order of the district court denying Jones leave to amend her complaint."
Reversed because Defendant failed to plead Farragher/Ellerth defense as an affirmative defense.Smith v. District of Columbia (D.C. Cir. 12/6/05) [pdf]:
"Gwendolyn Smith, a former employee of the District of Columbia’s Department of Mental Health (DMH), filed suit against the District, claiming she was the victim of discrimination and retaliation under the Americans with Disabilities Act (ADA). The district court granted summary judgment to the District on both claims; Smith now appeals. We find the district court properly granted summary judgment on Smith’s retaliation claim but abused its discretion by granting the District’s late motion for summary judgment on the discrimination claim. We therefore remand the case for trial on the discrimination claim."
Reversed because the Defendant filed motion for summary judgment after the deadline.In fairness, these early decisions were both on procedural issues. But most would agree the results are harsh and the one on the short end in both cases was the employer. Hardly what one would expect if you listened only to the People for the American Way, the NAACP and NOW. Maybe something to remember for the confirmation hearing of Judge Alito.
OSHA's New Advanced Search
Thanks to Professor Rick Bales at Workplace Prof Blog for the tip about OSHA's new Advanced Search Page. It's pretty slick -- a search for "Sarbanes Oxley" gets the following results by category:
Regulations 20
Federal Register 9
Directives 1
Publications 5
Testimonies 1
Unified Agenda 4
News Releases 6
Enforcement 2
Other 3
QuickTakes 3
Headlines for each category are displayed like these three Top Links:
2003 - 05/28/2003 - Procedures for the Handling of Discrimination Complaints Under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002 - 68:31859-31868
2004 - 08/24/2004 - Procedures for the Handling of Discrimination Complaints Under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002; Final Rule - 69:52103-52117
A good starting place for OSHA research.
9th Cir. KO's FLSA/FMLA Claims on Res Judicata
The first time around plaintiff filed a race discrimination claim. Two years later, "after discovery was complete, expert witness disclosures had passed and summary judgment motions were fully briefed, Mpoyo sought leave to amend his complaint to include FMLA and FLSA claims." That leave was denied and the grant of summary judgment on the race claim and the failure for leave to amend were affirmed by the 9th Circuit in an earlier appeal.
Nothing if not persistent, plaintiff refiled the FLSA and FMLA claims as a separate lawsuit. Although granting that not all elements that are considered for res judicata necessarily favored dismissal, the Court found that certainly the matters arose out of the same nucleus of operative fact:
Nothing if not persistent, plaintiff refiled the FLSA and FMLA claims as a separate lawsuit. Although granting that not all elements that are considered for res judicata necessarily favored dismissal, the Court found that certainly the matters arose out of the same nucleus of operative fact:
Because both sets of Mpoyo’s claims arise from Litton’s conduct while Mpoyo was an employee and specifically from the events leading to his termination, his claims relate to the same set of facts. Furthermore, the Title VII, FLSA and FMLA claims form a convenient trial unit that discloses a cohesive narrative of an employee-employer relationship and a controversial termination. This subsequent action “arises from the same transaction, or series of transactions as the original action” and therefore satisfies the first criterion.With that, the court felt comfortable in joining the "First, Second, Third, Fifth and Eighth Circuits" which "bar under res judicata the subsequent filing of claims denied leave to amend." Mpoyo v. Litton Electro-Optical Systems (9th Cir. 12/5/05) [pdf].
7th Circuit Overturns Local Government Mandated Labor Peace Agreements
The new union tactics that I referred to recently, A New Page in Organizing, which include pressuring local governments, don't always work. Not always because the city, county or state won't go along; sometimes they go too far. At least that is what happened in Milwaukee County, where the 7th Circuit struck down Chapter 31 of the county's general ordinances. The 2000 legislation requires certain county contractors to enter into "labor peace" agreements with any unions that request them. Metropolitan Milwaukee Association of Commerce v. Milwauke County (7th Cir. 12/5/05) [pdf].
The County sought to rely on its spending power to validate its ordinance. Unfortunately, they ran into the Judge Posner buzz-saw. First, he looked behind the holding in Wisconsin Dept. of Industry, Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 290-91 (1986), for this key principle: the spending power may not be used as a pretext for regulating labor relations. Having established this principle, Judge Posner then systematically dismantles the one argument offered by the County in defense of its ordinance -- the need to protect the county against work stoppages.
In the end he has no problem reaching this conclusion:
And a huge thank you to Mike Cernovich at Crime and Federalism for his instructions on properly linking to 7th Circuit opinions. Hopefully for the benefit of future readers, I got it right.
The County sought to rely on its spending power to validate its ordinance. Unfortunately, they ran into the Judge Posner buzz-saw. First, he looked behind the holding in Wisconsin Dept. of Industry, Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 290-91 (1986), for this key principle: the spending power may not be used as a pretext for regulating labor relations. Having established this principle, Judge Posner then systematically dismantles the one argument offered by the County in defense of its ordinance -- the need to protect the county against work stoppages.
In the end he has no problem reaching this conclusion:
On the contrary, we have seen that labor-peace agreements might well increase the frequency of service interruptions. The claim that the County is requiring labor peace agreements in order to further its interest as a buyer of services cannot withstand scrutiny. On this record, it is a pretext to regulate the labor relations of companies that happen, perhaps quite incidentally, to do some County work.The pre-emption argument was supported by an amicus brief filed by the NLRB, authorized by a 3-2 vote of the Board.
And a huge thank you to Mike Cernovich at Crime and Federalism for his instructions on properly linking to 7th Circuit opinions. Hopefully for the benefit of future readers, I got it right.
Supreme Court to Decide Major Issue - What is an Adverse Employment Action?
One of an employer's primary defenses to a retaliation claim is -- no adverse employment action. But the strength of the defense often depended on where you were. A definitive (and more uniform) answer got a step closer today as the Supreme Court granted certiorari in the 4th Circuit en banc decision White v. Burlington Northern, at the request of the employer and two of its amicus, the Equal Employment Advisory Council and the Association of American Railroads.
For why the Supreme Court might need to sort things out, you need look no further than the listing of the opinions of the various judges of the 6th Circuit in the underlying case:
Although this is the type of case where employers might think whether it is Judge or Justice Alito could make a favorable difference, before assuming so they should probably read Judge Alito's opinion, reversing summary judgment for the employer, in Mondzelewski v. Pathmark Stores, Inc,162 F.3D 778 (3rd Cir. 1998)[pdf]:
For why the Supreme Court might need to sort things out, you need look no further than the listing of the opinions of the various judges of the 6th Circuit in the underlying case:
GIBBONS, J., announced the judgment and majority opinion of the en banc court on all issues. The entire en banc court joined Parts I (Background) and III (Attorney's Fees) of the majority opinion. Part II (Adverse Employment Action) of the majority opinion was joined by BOGGS, C. J., and KRUPANSKY, BATCHELDER, GILMAN, ROGERS, SUTTON, and COOK, JJ., and Part IV (Punitive Damages) was joined by MARTIN, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, and COOK, JJ. CLAY, J. (pp. 36-51), filed a separate concurring opinion joining Parts I, III, and IV of the majority opinion and writing separately as to Parts II and V, in which he was joined by MARTIN, DAUGHTREY, MOORE, and COLE, JJ. SUTTON, J. (pp. 52-85), filed an opinion concurring in Parts I - III and dissenting from Parts IV and V, in which he was joined by BOGGS, C. J., and KRUPANSKY, BATCHELDER, and ROGERS, JJ.In what was shaping up as a lack luster term for Supreme Court action on employment law matters, this ups the ante, particularly for those in the 5th Circuit which has long used the "ultimate employment action" test -- by far the most employer favorable. See Mattern v. Eastman Kodak, 104 F.3d 702 (5th Cir. 1997).
Although this is the type of case where employers might think whether it is Judge or Justice Alito could make a favorable difference, before assuming so they should probably read Judge Alito's opinion, reversing summary judgment for the employer, in Mondzelewski v. Pathmark Stores, Inc,162 F.3D 778 (3rd Cir. 1998)[pdf]:
We readily agree with the District Court's observation that assignment to a 9:00 a.m. to 5:00 p.m. shift "cannot be considered an extreme hardship given most of this country's workers are governed by that shift." Mondzelewski, 976 F. Supp. at 284. But the critical question for present purposes is not whether Mondzelewski suffered an "extreme hardship," but whether his terms, conditions, or privileges of employment were altered. Nothing in the ADA suggests that employers are prohibited from taking only those retaliatory actions that impose an "extreme hardship." To be sure, the relatively mild nature of Pathmark's allegedly retaliatory conduct may not be without legal or practical significance, but it is not dispositive with respect to the narrow legal question now before us regarding 42 U.S.C. § 12203(a).Ross Runkel at Ross' Employment Law Memo was my first alert to this important issue; SCOTUS as always has a concise summary.
Houston Janitor Story - A Labor Side Summary
As he often does, Jordan Barab of Confined Space, provides a comprehensive summary of developments from the organized labor perspective, this time about the recent organization of janitors in Space City, Organizing Victory in Houston (Texas?).
Mitigation - A Look at the Defense North of the Border
Michael Fitzgibbon of the always thoughtful, Thoughts from a Management Lawyer, looks at the affirmative defense of mitigation -- a reduction in a plaintiff's damages because of their failure to take appropriate steps to prevent the damage from occurring. In employment cases that usually means the fired employee's back pay award should be reduced because he or she made insufficient efforts to obtain comparable work. In his post, Mitigation in Employment Law, Michael notes a recent case reducing back pay by 20% in part because:
She did not request a letter of reference from her former employers, in circumstances where there is no indication that they would not have willingly done so. Such a request, even if perfunctory, seems, in my view, a reasonable first step for anyone who is seriously entering the job market. ....Michael points out that mitigation is an affirmative defense, which puts the burden on the employer to show the plaintiff could have done more. In America, it's usually a jury question, although it not clear from the opinion that is true in Canada. Given that you only get to the question of mitigation if there is a finding of liability, which means the jury has already opted for the plaintiff's version not your's, easy to see why it often can be a high hurdle.
The Profit Motive and Discrimination
Businesses don't discriminate -- not because they are good -- but because they want to make money. That at least is the point economist Thomas Sowell makes in his reflections on the death of civil rights hero Rosa Parks, Rosa Parks and history. Two paragraphs go to the heart of the history lesson on why it was not business, but politics that led to Jim Crow seating on public transportation:
Thanks to A Constrained Vision for the link, which was posted there in a much more timely manner.
These owners may have been racists themselves but they were in business to make a profit -- and you don't make a profit by alienating a lot of your customers. There was not enough market demand for Jim Crow seating on municipal transit to bring it about.
It was politics that segregated the races because the incentives of the political process are different from the incentives of the economic process. Both blacks and whites spent money to ride the buses but, after the disenfranchisement of black voters in the late 19th and early 20th century, only whites counted in the political process.The money quote -- here literally:
Black people's money was just as good as white people's money, even though that was not the case when it came to votes.I certainly don't think the profit motive is the only reason employer's don't discriminate, don't tolerate harassment etc. But before assuming employers are inclined to "do wrong" vis-a-vis their employees, it might be good to remember that often would mean working against their own financial best interest, not something that many are inclined to do.
Thanks to A Constrained Vision for the link, which was posted there in a much more timely manner.
An Honest Blogger - Happy Blogiversary to Disability Law
As a small amount of controversy swirls the small world of legal related blogs concerning the publication I mentioned yesterday, Blawgworld 2006, see Even Schaeffer's post and the on-going commentary, I found the author of Disability Law's post concerning its founding one year ago particularly pertinent:
I don't do lots of navel-gazing, but yesterday was the one year anniversary of this blog. I started the blog while hopped up on painkillers from wisdom-tooth removal, and I've always thought that maybe it was just a lapse in judgment. But I've really enjoyed it, and I hope folks have found it useful. I look forward to keeping this up for yet another year.While I can certainly identify with the idea that starting down the path of blogging is perhaps irrefutable evidence of a "lapse of judgment", obviously both from my own reading and those who are commenting about Disability Law, it has been a beneficial lapse.
I May Have to Change the Name of This Blog
If I keep saying complimentary things about the SEIU, but here's another. Check out the SEIU sponsored contest described in today's LA Times story, Union's Latest Idea: Organize a Contest. The basic idea - a $100,000 top prize contest for the best "'common sense' solutions to the nation's most pressing problems." You can check out the contest, and the already submitted ideas at the cleverly named Since Sliced Bread.com.
Although the deadline for submission is next Monday, your ability to participate in selecting the best ideas will continue:
If the contest happens to promote the SEIU as smart thinking and creative, they have earned it, at least for this project.
A hat tip to Workplace Issues Today, from the good folks at Cornell who every day keep me informed of things, like this, that I have missed elsewhere.
Although the deadline for submission is next Monday, your ability to participate in selecting the best ideas will continue:
Since Sliced Bread is so serious about finding and rewarding good ideas a panel of respected thinkers and community leaders will choose 21 finalists and public voting will determine the top three ideas. The winner receives a grand prize of $100,000 and our commitment to work to make the idea a reality. The two runners-up take home $50,000. All 21 ideas will be featured in a book to be published in 2006.As the LA Times story points out some of the 16,399 (as of this posting) ideas submitted are "wacky," but the simple act of asking is a good example of common sense itself. Clearly the outpouring of response says something about the pent up demand for real solutions to problems -- as opposed to partisan rhetoric designed to inflame and secure support within one's own base, (regardless of whether that base sits on the right or left of the political map) offered under the guise of being a solution.
If the contest happens to promote the SEIU as smart thinking and creative, they have earned it, at least for this project.
A hat tip to Workplace Issues Today, from the good folks at Cornell who every day keep me informed of things, like this, that I have missed elsewhere.
The Importance of Paralegals - An Interesting Look at Employee Absenteeism
Although prepared for a different purpose (to show the value of investing in programs for employee health) a recent Wharton study, Multiplier Effect: The Financial Consequences of Worker Absences, ranks paralegals as the #1 most costly person to have absent out of 35 job types considered. The reason -- the multiplier effect:
Not a bad thing to have when impressing on employees, or perhaps even a jury, how costly workers absences are.
Thanks to the TP Wire Service for the link.
Many paralegals, for example, serve as the "memory and legs" of lawyers in a law firm by helping to keep tabs on deadlines and making sure filings are delivered in a timely fashion, says Wharton professor of health care systems Mark V. Pauly. So, when a paralegal is sick, the loss in productivity can be large as replacements struggle to learn about the absent worker's cases. That's not as true, however, with fast food cooks, waiters and hotel maids. Because employees in those fields tend to perform discrete, measurable tasks and work individually, managers don't struggle as much to replace sick workers.The concept -- the multiplier reflects the cost to the firm as a proportion of the absent worker's daily wage. The multiplier for a paralegal -- 1.93. If you're intrigued about the concept, check out the full research paper, How to Present the Business Case for Healthcare Quality to Employers[pdf].
Not a bad thing to have when impressing on employees, or perhaps even a jury, how costly workers absences are.
Thanks to the TP Wire Service for the link.
Ever Wonder What Your Employees Think of Your On Line Sexual Harassment Training?
At least Boise State doesn't have to worry what one of its employees, Professor Peter Wollheim, thinks. Dr. Wollheim from the school's department of communication has an unusual research area -- patterns of family disinheritance, based on interviews with people who have been written out of wills -- and also has a tongue in cheek review of the school's anti- harassment training.
You get the general idea from the lead for his article in the Boise Weekly, When Bureaucrats Rule Sex:
You get the general idea from the lead for his article in the Boise Weekly, When Bureaucrats Rule Sex:
Lock the door. Bring out the candles. Dim the lights. Cue up the Luther Vandross. If we're doing this at home, we can pour ourselves some slightly chilled Chardonnay. Oh baby, it's time. Let's do this sitting up. I promise, it'll rock your world. And if we do it in Cascade, we might just feel the Earth move.My guess is that Dr. Wolleheim's colleagues and students will think it a lot more humorous than the H.R. department, given quotes like this:
But from the employee perspective, Holly Borden, the comely director of Boise State's Office of Affirmative Action, has all the FAQs to get us in the mood--including the popular non-question: "The quality of the training is poor and insults my intelligence.Sounds to me like a fellow with tenure -- and someone that it would be fun to have a drink with.
BIG Truckdrivers - One Wins, Another Sues
I am not quite sure what Interstate Distributor Co. transports but one thing is clear -- it has some big guys behind the wheel. According to a story in The Oregonian, Second obese trucker files suit, two of them have taken offense at being suspended and sued their employer.
John McDuffy,6 foot, 550 pounds, has already gone to trial and got a verdict for $9,000 in back wages and $100,000 in damages. Now David Mankey, 5 foot 6, 450 pounds, is suing for his suspension which occurred three weeks before the first trial. Although the story doesn't make it clear what the actual cause of action is, McDuffy's lawyers say they have been told by two legal information services that "the verdict appears to be among the first in the nation awarded for obesity discrimination."
The story caught my eye as I am gathering cases and other material for an early February speech for the Advanced Employment Law Seminar for the Texas State Bar:
If you have other thoughts or ideas about what might fit in such a presentation, please pass them on.
John McDuffy,6 foot, 550 pounds, has already gone to trial and got a verdict for $9,000 in back wages and $100,000 in damages. Now David Mankey, 5 foot 6, 450 pounds, is suing for his suspension which occurred three weeks before the first trial. Although the story doesn't make it clear what the actual cause of action is, McDuffy's lawyers say they have been told by two legal information services that "the verdict appears to be among the first in the nation awarded for obesity discrimination."
The story caught my eye as I am gathering cases and other material for an early February speech for the Advanced Employment Law Seminar for the Texas State Bar:
The Changing Face of Discrimination: Piercings, makeup and mannerisms are now more than just a matter of personal taste as courts begin to grapple with issues that differ greatlyfrom those in the early days of discrimination law.Obesity may or may not fit, but successful claims would certainly be a change to the legal scene.
If you have other thoughts or ideas about what might fit in such a presentation, please pass them on.
If You Know (or Care) What a Blawg Is ....
And you probably at least have an inkling if you are reading this, check out the latest project from TechnoLawyer, a compilation of sample posts and biographical information from 51 blawgs. Here's a blurb about the project:
Since Jottings is one of the 51 included in the ebook, I am not so sure I would be so bold to say that ALL are the "most influential blawgs" but it is an impressive collection that I am honored to be part of.
BlawgWorld 2006: Capital of Big Ideas, a TechnoLawyer eBook designed to take you on a journey through 51 of the most influential blawgs.For more information and to get a copy go to the Blawgworld 2006 homepage. It requires a free sign up to TechnoLawyer, which is a good thing to do with or without Blawgworld 2006.
Since Jottings is one of the 51 included in the ebook, I am not so sure I would be so bold to say that ALL are the "most influential blawgs" but it is an impressive collection that I am honored to be part of.
Scope of Charge Controls Title VII Litigation, Even Following A Million $ Verdict
I know that I have been doing this for some time now when, for the first time, I report on the appellate outcome of a MDV that also appeared on this page. On August 3, 2003, the post was MDV: Indian Prison Guard With Long History of Unanswered Complaints Awarded $1.16 Million . Even though he was able to keep that verdict intact (although reduced by Title VII damage caps) through post-trial proceedings at the district court stage, the same did not hold true on appeal. Chacko v. Patuxent Institution (4th Cir. 11/29/05) [pdf].
The issue on which the case turned was a basic question, frequently overlooked or minimized - did the litigation exceed the scope of the initial charge of discrimination? If so, as the Chacko court found, the remedy is to dismiss the claim for failure to exhaust administrative remedies, which is what the Court did.
In doing so the Court stressed the importance of the charge and the administrative process:
The Court summarized its view of the case:
But the Court did provide one key holding when it refused to find that "specific factual allegations couched in broad terms like 'harassment' or 'hostile treatment' ... invariably encompass a limitless number of other factual worlds." The attempt to gloss over a gap between evidence at trial and the facts alleged in the charge by use of conclusory words just got a lot harder.
The issue on which the case turned was a basic question, frequently overlooked or minimized - did the litigation exceed the scope of the initial charge of discrimination? If so, as the Chacko court found, the remedy is to dismiss the claim for failure to exhaust administrative remedies, which is what the Court did.
In doing so the Court stressed the importance of the charge and the administrative process:
The filing of an administrative charge is not simply a formality to be rushed through so that an individual can quickly file his subsequent lawsuit. Rather, Congress intended the exhaustion requirement to serve the primary purposes of notice and conciliation.Although noting that "lawyers do not typically complete the administrative charges, and so courts construe them liberally," its holding makes clear there are limits to that liberal construction.
The Court summarized its view of the case:
Chacko's "centerpiece" at trial was that coworkers continually made derogatory national-origin remarks to him over the course of his twenty-year career, and that supervisors did not discipline these coworkers, laughed at their comments, and may have joined them. ... The sharp differences between this evidence and the allegations in Chacko's administrative charges compel the conclusion that he failed to exhaust his administrative remedies. The administrative charges at bottom alleged specific episodes of harassment. None of them mentioned coworker harassment or national-origin epithets. In contrast, Chacko's case at trial encompassed harassment over his two decades at Patuxent. It relied heavily on testimony that primarily coworkers (and not supervisors) called him national-origin epithets. The administrative charges thus dealt with different time frames, actors, and conduct than the central evidence at trial.One problem for litigants is that the liberal construction of administrative charges and the corollary rule, acknowledge by the Court that:
A Title VII plaintiff can of course exhaust administrative remedies if a reasonable investigation of his administrative charge would have uncovered the factual allegations set forth in formal litigation.mean there is no bright line by which one can confidently predict the outcome of the argument.
But the Court did provide one key holding when it refused to find that "specific factual allegations couched in broad terms like 'harassment' or 'hostile treatment' ... invariably encompass a limitless number of other factual worlds." The attempt to gloss over a gap between evidence at trial and the facts alleged in the charge by use of conclusory words just got a lot harder.
4th Circuit Primer on ERISA Interpretation
Taking a relatively simple question of interpretation of an ERISA severance plan, the 4th Circuit covers a lot of ground in a straight forward manner. The facts were not disputed. Employee starts work in 1983 and leaves company voluntarily on May 12, 2000 to take another position. Unhappy with that job, he returned to the employer on August 7, 2000. When he was laid off in 2002, he argued he should have received severance based on 19 years of service, the company on 2. The determination was based on the Employment Commencement Date, a defined term.
Plaintiff's argue was simple. The definition was clear, plain and unambiguous:
The plan's position was equally straight forward. The administrator of the plan had power to interpret the plan. When viewed in context of the entire plan, it is clear that Employment Commencement Date could reasonably be interpreted to begin at the time of the re-hire, and so the committee's determination that he was only entitled to two years should be affirmed.
The courts were split, one found the definition unambiguous (plaintiff wins) the other "at least ambiguous" (plan wins). Unfortunately for the plaintiff, it was the latter position that was taken by the appellate court, Coluci v. Afga Corporation Severance Pay Plan (4th Cir. 11/28/05) [pdf].
On its way to that finding, the Court distilled several nuggets of ERISA interpretation. On the basics of interpretation:
And the 4th Circuit wasn't the only one considering severance pay yesterday, as the Strategic HR Lawyer was noting that Severance Pay Trends = Less based on a study by the out placement firm of Lee Hecht Harrison. A trend with which, after today's decision, Mr. Coluci is all too familiar.
Plaintiff's argue was simple. The definition was clear, plain and unambiguous:
Employment Commencement Date. "Employment Commencement Date" means the first day on which an Employee is employed by an Employer.Since it was unambiguous, his employment must be construed to begin in 1983, not August of 2000.
The plan's position was equally straight forward. The administrator of the plan had power to interpret the plan. When viewed in context of the entire plan, it is clear that Employment Commencement Date could reasonably be interpreted to begin at the time of the re-hire, and so the committee's determination that he was only entitled to two years should be affirmed.
The courts were split, one found the definition unambiguous (plaintiff wins) the other "at least ambiguous" (plan wins). Unfortunately for the plaintiff, it was the latter position that was taken by the appellate court, Coluci v. Afga Corporation Severance Pay Plan (4th Cir. 11/28/05) [pdf].
On its way to that finding, the Court distilled several nuggets of ERISA interpretation. On the basics of interpretation:
-- the well established Firestone principle that when a plan by its terms confers discretion on the plan’s administrator to interpret its provisions and the administrator acts reasonably within the scope of that discretion, courts defer to the administrator’s interpretation;
-- notwithstanding Firestone an administrator is not free to alter the terms of the plan or to construe unambiguous terms other than as written; and
-- reasonableness must be determined within the context of the whole plan, not just one isolated definition.And in response to challenges that the finding of the plan administrator should be viewed under a higher standard than abuse of discretion because of conflicts of interest, the Court offered more helpful guidance:
- "the simple and commonplace fact that a plan’s administrator is also its funder is not enough to support a finding of a conflict of interest that would cause an adjustment to our deference;
-- although Afga did not hire independent employees to administer the Plan, "this fact alone does not support the presumption of a conflict of interest, or even bias."; and finally,
-- the role of the Plan's counsel at the Committee meeting did not create a conflict that would alter the Court's standard of review:One could find worse starting places for an overview of ERISA interpretation cases.This suggestion, [that the attorney's presence created a conflict] however, misunderstands the pertinent inquiry. Whether we heighten our scrutiny depends on an administrator’s purported conflicts, not conflicts of the administrator’s counsel. Moreover, Colucci fundamentally misconstrues [the attorney's] participation in the Administrative Committee’s consideration of his appeal. An attorney who advises his clients of their fiduciary obligations does not constructively become the beneficiary’s representative.
And the 4th Circuit wasn't the only one considering severance pay yesterday, as the Strategic HR Lawyer was noting that Severance Pay Trends = Less based on a study by the out placement firm of Lee Hecht Harrison. A trend with which, after today's decision, Mr. Coluci is all too familiar.
A New Page in Organizing - Service Employee's takes on Stanford U.
Although one of the reasons the Service Employee's union dropped out of the AFL-CIO and formed a new coalition was a difference over the strategy of trying to change the political framework through elected officials, it doesn't mean that the SEIU has foregone politics. Instead, they are more frequently relying on a different form of groundroot politics to try to get support for their goals from the communities or local government.
An article in the Silicon Valley/San Jose Business Journal by Laura Cutland, SEIU's strategy at Stanford carries high risks for union is a good example of this "different" political approach.
UPDATE: In a similar vein, although much closer to home, the NYT is reporting on the SEIU's drive to organize janitors in Houston, Janitors' Drive in Texas Gives Hope to Unions. According to the story the Union "used several unusual tactics in Houston, among them lining up the support of religious leaders, pension funds and the city's mayor, Bill White, a Democrat."
An article in the Silicon Valley/San Jose Business Journal by Laura Cutland, SEIU's strategy at Stanford carries high risks for union is a good example of this "different" political approach.
UPDATE: In a similar vein, although much closer to home, the NYT is reporting on the SEIU's drive to organize janitors in Houston, Janitors' Drive in Texas Gives Hope to Unions. According to the story the Union "used several unusual tactics in Houston, among them lining up the support of religious leaders, pension funds and the city's mayor, Bill White, a Democrat."
Happy Thanksgiving for One Plaintiff - MDV in Harrisburg
A Harrisburg federal court jury found for the former director of the Pennsylvania state agency for the blind and visually impaired as reported by the Associated Press in the Hanover Evening Sun, Federal jury awards $3.4M to blind woman.
From a quick look at stories on the internet, Christine Boone's firing had been something of a cause celebre for various advocacy groups. A story, Pennsylvania Rejects Good Services for Blind People, from the December 2003 Braille Monitor, gives you a taste.
From the start of the trial the positions were well staked out. According to the AP report on the first day of trial, Boone's lawyer claimed:
They didn't like the fact that she was pursuing things on behalf of the blind and visually impaired" in ways the agency previously had not. [Her boss] did not want to tolerate an assertive, independent blind woman.The employer's counsel countered:
This case is about reliability. This case is about the equality to get fired. It's about management. It's about policymaking. And it's about judgment.I like the phrase "the equality to get fired," but it clearly wasn't enough to carry the day.
Boone apparently had more than just a disability claim since:
The jury [also] decided that Boone had proven that the two [individual defendants] made false, defamatory and stigmatizing public statements about her firing that called into question her good name, reputation and professional qualifications.Defamation and disability, when the jury goes south on you, is obviously a dangerous combination. Of course when the jury goes south, almost anything is.
5th Circuit Adopts ERISA Estoppel, But Employee Still Loses
Chalk it up as a moral victory for Frank Mello, who has the honor of being the employee who got the 5th Circuit to specifically adopt the doctrine of ERISA estoppel -- which under the right circumstances might allow an employee to obtain greater benefits under an ERISA plan. Unfortunately, for Mello his circumstances were not the right ones.
Judge Edith Clement Brown, on an earlier Supreme Court short list, spelled out the elements:
Update: lazerwolf at Appellate Law and Practice makes a good appellate lawyer type point about the holding of this case:
Judge Edith Clement Brown, on an earlier Supreme Court short list, spelled out the elements:
Mello v. Sara Lee Corp. (5th Cir. 11/22/05)[pdf].To establish an ERISA- estoppel claim, the plaintiff must establish: (1) a material misrepresentation; (2) reasonable and detrimental reliance upon the representation; and (3) extraordinary circumstances. McCall, 237 F.3d at 513; Weir, 123 F.3d at 290.
Mello got a second moral victory as the Court agreed with the lower court that informal communications, even those with disclaimers, can be the source of material misrepresentations.
But Sara Lee was the ultimate victor as the Court disagreed with the lower court that Mello's reliance on the admittedly erroneous communications was reasonable. The communications (which had to do on Mello's proper service date) were contrary to the express terms of the Plan. Summarizing the law from other circuits, the Court found "Mello’s claim cannot surmount the clear and consistent case law forbidding recognizing reasonable reliance on informal documents in the face of unambiguous Plan terms."
Update: lazerwolf at Appellate Law and Practice makes a good appellate lawyer type point about the holding of this case:
Interestingly, the court's conclusion that Mello can't demonstrate reasonable reliance renders its purported "holding" adopting ERISA estoppel dicta. ERISA lawyers take note of this potential means of limiting this case.
The Law of Unintended Consequences - From a DOL Opinion Letter to the Demise of a Liberal Arts Education
Ok, so that's a little over the top -- to extrapolate from one wage and hour opinion letter to the general decline of broad based liberal arts educations. But maybe I react that way because of the deep concerns of my mother (who obtained her doctorate in her early 60's) about the growing trend to force students into "technical" training as opposed to a more broad based education.
It came to mind this morning when I read the latest opinion letter (FLSA 2005-50) issued by the DOL under the FLSA, this one opining on the application of the learned professional exemption to social workers and caseworkers. The bottom line -- the position that requires a master's degree in social work, drug and alcohol, education, counseling, psychology, or criminal justice, meets the third prong of the primary duty test under the learned professional exemption, 29 C.F.R. 541.301(a), "the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.” By contrast, the position that requires only a bachelors degree in the "social sciences" does not "constitute the 'specialized' academic training necessary to qualify an occupation for the learned professional exemption."
Although it is somewhat of a stretch, it is not too far afield to think that the result of such opinions (and the underlying regulation), will be to push employers to require more specialized fields of study at an earlier stage, which seems likely to place the liberal arts education of times past under even more pressure.
Iseek's description of a liberal arts education is typical of many:
That exemption may become more important given the DOL's off-hand dismissal of the applicability of the other two primary white collar exemptions for the social worker and case worker positions:
It came to mind this morning when I read the latest opinion letter (FLSA 2005-50) issued by the DOL under the FLSA, this one opining on the application of the learned professional exemption to social workers and caseworkers. The bottom line -- the position that requires a master's degree in social work, drug and alcohol, education, counseling, psychology, or criminal justice, meets the third prong of the primary duty test under the learned professional exemption, 29 C.F.R. 541.301(a), "the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.” By contrast, the position that requires only a bachelors degree in the "social sciences" does not "constitute the 'specialized' academic training necessary to qualify an occupation for the learned professional exemption."
Although it is somewhat of a stretch, it is not too far afield to think that the result of such opinions (and the underlying regulation), will be to push employers to require more specialized fields of study at an earlier stage, which seems likely to place the liberal arts education of times past under even more pressure.
Iseek's description of a liberal arts education is typical of many:
A liberal arts education refers to studies in a college or university intended to provide general knowledge and develop intellectual capacities. A liberal arts education prepares students to work in a variety of jobs. This is different from other types of education where students develop professional or vocational skills for a specific job.The type of education that many (including me) would believe is the best course, but clearly one that does not coincide with obtaining a learned professional exemption.
That exemption may become more important given the DOL's off-hand dismissal of the applicability of the other two primary white collar exemptions for the social worker and case worker positions:
Since the employees in question do not supervise other employees and their work is not directly related to the management or general business operations of the agency or its customers, these employees cannot qualify for either the executive or administrative exemption.The use of the "not directly related to the management or general business operations" is clearly a battleground for white collar exemptions in the future. A future that may well be populated by less broadly educated individuals.
4th Circuit Alters 4th Prong of Prima Facie Case
It's not a good sign when you are seeking affirmation of the lower court and the appeals court begins by admitting its decision turns on a newly recognized theory -- more specifically here the Court held:
There were two other claims - pregnancy and retaliation. Miles fared even better on the pregnancy claim as the Court rejected the trial court's reliance on the fact that plaintiff was terminated more than a year after she had delivered her baby. Miles was helped in part by evidence her supervisor had wanted to terminate her while she was pregnant, but had been overruled by human resources. That plus evidence that he tried to increase her quotas while she was out on maternity leave were enough to overcome any barrier raised by the timing gap.
Dell did salvage the summary judgment on the retaliation claim. Plaintiff had not checked the retaliation box on her charge, nor was it mentioned in the narrative aspect. While her lawyer did write a letter specifically mentioning retaliation 5 months after the charge was filed, the Court specifically held that was not sufficient.
Although it may not be the case, the facts as relayed by the Court make it appear that a manager who was possibly making discriminatory decisions was appropriately reigned in by upper management and human resources -- but that was not enough.
When preliminary decisions that are not carried out are enough to hold an employer liable, life just got more difficult.
Because the district court did not consider whether Miles’ case falls within the different decision maker exception to the fourth prong of the Title VII prima facie case that we recognize today, we vacate the grant of summary judgment with respect to Miles’ sex and pregnancy discrimination claims.The existing fourth prong required that after the termination "the position remained open or was filled by similarly qualified applicants outside the protected class." Here, the terminated female plaintiff was replaced by another female. Applying what appeared to be settled 4th Circuit law, the district court granted summary judgment. But in Miles v. Dell, Inc.. (4th Cir. 11/22/05) [pdf] the Court adopted an alternative method of satisfying the fourth prong:
in cases where the plaintiff can show that the firing and replacement hiring decisions were made by different decisionmakers, the plaintiff can make out a prima facie case without showing replacement by someone outside the protected class.The facts arguably supported the new standard as plaintiff offered testimony that the person who had fired Miles, wanted to hire a male replacement but had been overruled by his superiors who required the position filled by another female. All is not totally lost for Dell on this issue as the Court sent the case back to the lower court to determine whether Miles had made a sufficient factual showing to survive even under the new standard.
There were two other claims - pregnancy and retaliation. Miles fared even better on the pregnancy claim as the Court rejected the trial court's reliance on the fact that plaintiff was terminated more than a year after she had delivered her baby. Miles was helped in part by evidence her supervisor had wanted to terminate her while she was pregnant, but had been overruled by human resources. That plus evidence that he tried to increase her quotas while she was out on maternity leave were enough to overcome any barrier raised by the timing gap.
Dell did salvage the summary judgment on the retaliation claim. Plaintiff had not checked the retaliation box on her charge, nor was it mentioned in the narrative aspect. While her lawyer did write a letter specifically mentioning retaliation 5 months after the charge was filed, the Court specifically held that was not sufficient.
Although it may not be the case, the facts as relayed by the Court make it appear that a manager who was possibly making discriminatory decisions was appropriately reigned in by upper management and human resources -- but that was not enough.
When preliminary decisions that are not carried out are enough to hold an employer liable, life just got more difficult.
Interesting Tactic, Chapter Two
Just yesterday, I discussed an unusual tactic where rather than filing a motion to compel arbitration in response to a state court law suit, the defendant successfully filed a federal court action to compel the arbitration. See Duplicating Effort? State Court Action - Federal Court Lawsuit to Compel Arbitration . The 6th Circuit was faced with a similar unusual technique. It started with a federal lawsuit by Palkow against CSX Transportation for gender discrimination. The jury found in favor of CSXT and the judge entered judgment accordingly. Rather than challenge the verdict in federal court, Palkow filed a second suit in state court, alleging that a witness in the first trial had committed perjury under the direction of a CSTX supervisor.
Unhappy, CSTX removed the case to the federal court that had entered the original judgment. Since there was no diversity nor federal question on the face of the state court petition, CSTX argued that the case was in reality an improper attack on the validity of the federal court judgment, thus conferring federal court jurisdiction. Palkow filed a motion to remand, which was rejected by the district court, which apparently not happy by the attack either, dismissed Palkow's claim.
On appeal to the 6th Circuit, the case turned on that principle drilled into me by Professor Bernie Ward -- federal courts are courts of limited jurisdiction. That was the argument advanced by Palkow and ultimately accepted by the 6th Circuit. Palkow v. CSX Transportation (6th Cir. 11/18/05) [pdf]. For students of federal courts, it's an interesting read.
My guess is that the arguments advanced by CSTX will ultimately prevail, but not in its chosen forum.
Unhappy, CSTX removed the case to the federal court that had entered the original judgment. Since there was no diversity nor federal question on the face of the state court petition, CSTX argued that the case was in reality an improper attack on the validity of the federal court judgment, thus conferring federal court jurisdiction. Palkow filed a motion to remand, which was rejected by the district court, which apparently not happy by the attack either, dismissed Palkow's claim.
On appeal to the 6th Circuit, the case turned on that principle drilled into me by Professor Bernie Ward -- federal courts are courts of limited jurisdiction. That was the argument advanced by Palkow and ultimately accepted by the 6th Circuit. Palkow v. CSX Transportation (6th Cir. 11/18/05) [pdf]. For students of federal courts, it's an interesting read.
My guess is that the arguments advanced by CSTX will ultimately prevail, but not in its chosen forum.
ICU Nurse Reinstatement Upheld by 1st Circuit
A hospital challenged the order of an arbitrator reinstating an ICU nurse discharged for failing to properly account for dispensing controlled substances as being against public policy. It only took two sentences to make clear what the end result was going to be. First, "Defendant-appellee Massachusetts Nurses Association (the MNA) is the authorized collective bargaining representative of the nurses who toil there." If more was needed to make the pending outcome clear -- "[o]ver her estimable quarter-century career, Dufault developed a reputation as an industrious, highly skilled nurse" -- was enough to make it clear to me what was coming. Mercy Hospital, Inc. v. Massachusetts Nurses Association (1st Cir. 11/21/05).
Sure enough, the Court found the district court had properly affirmed the arbitrator's holding of reinstatement. Interestingly, one of the undisputed explanations offered by the nurse to explain her conduct was that she had taken drugs to prepare an intravenous drip, even though the doctor's order had called for the drug to be administered by injection. Not such a big deal according to the arbitrator:
Sure enough, the Court found the district court had properly affirmed the arbitrator's holding of reinstatement. Interestingly, one of the undisputed explanations offered by the nurse to explain her conduct was that she had taken drugs to prepare an intravenous drip, even though the doctor's order had called for the drug to be administered by injection. Not such a big deal according to the arbitrator:
The arbitrator also credited testimony that although it was not good practice, a nurse might deviate from a doctor's orders and administer medication intravenously rather than by syringe as a time-saving device.Didn't seem to bother the Court either. But it would be interesting to see how a similar "deviation" would be treated if it were a malpractice claim against the hospital as opposed to an employee termination.
Duplicating Effort? State Court Action - Federal Court Lawsuit to Compel Arbitration
Ross Runkel reports on a tactic used in a West Virginia matter, End run around state court. Rather than moving to compel in state court, the employer sued (successfully) to compel arbitration in federal court. The 4th Circuit has now affirmed. American General Life v. Wood (4th Cir. 11/14/05) [pdf].
Ross has some comments about the move, including the clearly rhetorical question -- What? They don't trust the state courts?
Ross has some comments about the move, including the clearly rhetorical question -- What? They don't trust the state courts?
Job Tracker - The AFL-CIO's Latest
As if out to prove the merits of the old saying, competition is a good thing, the AFL-CIO fresh off of losing some of its largest member unions, has just created an information source for employees, Job Tracker which purports to review certain compliance records of over 60,000 employers. Data is supposed to be tied to government records, although my initial spin found several companies accused of exporting jobs based on a Lou Dobbs report.
Certainly labor supporters such as Jordan Barab at Confined Space are enthusiastic, Corporate America Beware: AFL-CIO Creates Key To Who's Been Naughty and Who's Been Nice. And it would probably be wise for employers to check out their own ratings, just to see what employees, potential employees and others may be seeing. Frankly, put in the context of the size of most employers' operations, not to mention the individual cases that may be listed, I think the results may be a lot less damning than many would think, and others would hope. Of course information in context is not always the goal.
Certainly labor supporters such as Jordan Barab at Confined Space are enthusiastic, Corporate America Beware: AFL-CIO Creates Key To Who's Been Naughty and Who's Been Nice. And it would probably be wise for employers to check out their own ratings, just to see what employees, potential employees and others may be seeing. Frankly, put in the context of the size of most employers' operations, not to mention the individual cases that may be listed, I think the results may be a lot less damning than many would think, and others would hope. Of course information in context is not always the goal.
3 out of 4 Employees Looking to Move?
That number sounds high to me, but then I didn't do the research. According to the management-issues story, U.S. employers face retention melt-down, SHRM and CareerJournal.com did, and that's what they found. Although money is a factor, another substantial reason for considering moving on -- simply being ready for a new experience. That's a hard one to rectify.
If there's a silver lining to this possible cloud -- employees who leave voluntarily rarely sue.
Thanks to the ever valuable TPWS for the link to story.
If there's a silver lining to this possible cloud -- employees who leave voluntarily rarely sue.
Thanks to the ever valuable TPWS for the link to story.
"Uncontrolled" Diabetes - And Summary Judgment for the Employee in the 5th Circuit
For some time now lawyers representing both employers and employees have seen "actual disability" cases under the ADA as difficult to make. But just as nature abhors a vacuum so does the law, and more cases are being brought under the "perceived disability" prong. That trend will only quicken following last week's decision in Rodriguez v. Conagra (5th Cir. 11/14/05) [pdf]. The 5th Circuit, not known as pro-employee, not only reverses summary judgment for the employer, but finds the plaintiff was entitled to liability as a matter of law.
Rodriguez worked as a manual labor for Conagra through a staffing agency. Based on his productivity, he was offered a permanent job subject to passing a physical. At the physical, based on a urine sample that showed a high sugar level and his failure to recall the name of his doctor or the medication he took to control his diabetes, the examing doctor termed his diabetes "uncontrolled." Based on that information, the company declined to hire him.
Judge Weiner, in a spirited opinion, relied heavily on the fact that the case was a perceived disability claim which, in his view, completely eliminated the employer's argument that it based its decision on the belief that his diabetes was "uncontrolled." In Judge Weiner's view -- since there was no actual disability, there was nothing that could have been "controlled."
Although many strong supporters of the ADA have decried its effectiveness, this case does show one aspect that works well. The requirement that physical examinations occur only after a job offer has been made, designed to shine a spotlight on any decision that turns on a medical condition - certainly did so here.
A hat tip to the Disability Law blog, which had it right, if perhaps understated, Good Fifth Circuit Diabetes Case, when it reported the case early last week. Rodriguez was not alone in this case as amicus briefs were filed by a group of amicus, AARP, Advocacy, Inc., American Diabetes Association and Coallition of Texans with Disabilities, see their brief here; and a brief by the EEOC. The link to the briefs are collected on the Employment Discrimination page of the website of American Diabetes Association, along with information on other diabetes related cases the Association is following.
Rodriguez worked as a manual labor for Conagra through a staffing agency. Based on his productivity, he was offered a permanent job subject to passing a physical. At the physical, based on a urine sample that showed a high sugar level and his failure to recall the name of his doctor or the medication he took to control his diabetes, the examing doctor termed his diabetes "uncontrolled." Based on that information, the company declined to hire him.
Judge Weiner, in a spirited opinion, relied heavily on the fact that the case was a perceived disability claim which, in his view, completely eliminated the employer's argument that it based its decision on the belief that his diabetes was "uncontrolled." In Judge Weiner's view -- since there was no actual disability, there was nothing that could have been "controlled."
Although many strong supporters of the ADA have decried its effectiveness, this case does show one aspect that works well. The requirement that physical examinations occur only after a job offer has been made, designed to shine a spotlight on any decision that turns on a medical condition - certainly did so here.
A hat tip to the Disability Law blog, which had it right, if perhaps understated, Good Fifth Circuit Diabetes Case, when it reported the case early last week. Rodriguez was not alone in this case as amicus briefs were filed by a group of amicus, AARP, Advocacy, Inc., American Diabetes Association and Coallition of Texans with Disabilities, see their brief here; and a brief by the EEOC. The link to the briefs are collected on the Employment Discrimination page of the website of American Diabetes Association, along with information on other diabetes related cases the Association is following.
Statistics and the ADA - Not a Winner for Plaintiff
Re-emphasizing the Supreme Court's standard that establishing disability under the ADA must meet an "exacting standard," the 4th Circuit holds an employee who needed to lift 75 pounds to do his job, and had a 30 pound lifting restriction following a back injury, was not disabled as that term is defined in the Americans with Disabilities Act.
The plaintiff had tried using a statistical finding by a vocational counselor to show he had a substantial impairment in the major life of activity of working:
The plaintiff had tried using a statistical finding by a vocational counselor to show he had a substantial impairment in the major life of activity of working:
The vocational consultant estimated that Taylor’s work experience and educational background qualified him for 3,281 job titles out of the 12,741 job titles listed in the Department of Labor’s Dictionary of Occupational Titles. According to the consultant, Taylor’s injury excluded him from 1,871 job titles, or 57 percent of the job titles for which he would have been qualified absent his injury. These figures translate into disqualification from 370,000 jobs in the Baltimore-Washington metropolitan area. Despite his impairment, Taylor remained able to perform the work involved in 1,410 job titles, or over 130,000 jobs in the region.The Court assumed without deciding that working is a major life activity, but found the district court's grant of summary judgment for the employer in light of these statistics plus evidence that the plaintiff could engage in a "range of daily activities requiring endurance, flexibility, and some strength" was not wrong. Taylor v. Federal Express Corp. (4th Cir. 11/16/05) [pdf].
Responding specifically to the argument that the district court had not given appropriate deference to the consultant's finding, the Court instead held:
Taylor admittedly retains the ability to engage in a wide range of daily activity and to work in over 100,000 jobs in his geographic region, a reasonable juror could not find that his impairment substantially limits his ability to work.
EEOC v. Fox News and the Art of Punitive Pleading
Couldn't have been a happy day at Fox News when the EEOC's complaint based on the conduct of one of its vice presidents, Joe Chillemi, was served. See a copy of the complaint, which is replete with "quotes" attributed to Chillemi that are both course and sexist, here. The blogosphere is full of condemnatory articles about Fox and its view/treatment of women.
Without in any way defending the conduct as appropriate, I can't help but wonder if the justice system really benefits from such specific pleadings. I know the argument that the pain caused Chillemi and Fox News by reciting in vivid detail his allegedly inappropriate conduct in a public pleading serves as a powerful message to other employers in the workforce to clean up their acts to ensure they don't receive the same fate. Hard to argue, in fact I sometimes point out the possibility of such a danger in anti-harassment training that I do. And if, as some reports indicate, at least some of the comments have been confirmed as accurate by counsel for Fox News, then it is even harder to argue against the pleading.
And of course this pleading is quite tame compared to many I have seen, such as the complaint against Fox commentator Bill O'Reilly, which are salacious not just crude. See my post from a year ago, Mackris v. O'Reilly - A Sexual Harassment Complaint. Still, and although I know this boat sailed a long time ago, I can't help but wonder if the days when such a pleading would have been seen as scandalous rather than helpful, were not better days.
Without in any way defending the conduct as appropriate, I can't help but wonder if the justice system really benefits from such specific pleadings. I know the argument that the pain caused Chillemi and Fox News by reciting in vivid detail his allegedly inappropriate conduct in a public pleading serves as a powerful message to other employers in the workforce to clean up their acts to ensure they don't receive the same fate. Hard to argue, in fact I sometimes point out the possibility of such a danger in anti-harassment training that I do. And if, as some reports indicate, at least some of the comments have been confirmed as accurate by counsel for Fox News, then it is even harder to argue against the pleading.
And of course this pleading is quite tame compared to many I have seen, such as the complaint against Fox commentator Bill O'Reilly, which are salacious not just crude. See my post from a year ago, Mackris v. O'Reilly - A Sexual Harassment Complaint. Still, and although I know this boat sailed a long time ago, I can't help but wonder if the days when such a pleading would have been seen as scandalous rather than helpful, were not better days.
Unemployment Decision Not Preclusive in Texas - By Statute
Plaintiff argued he should be entitled to a partial summary judgment for liability on his discrimination claim because he prevailed on his unemployment claim when the Texas Workforce Commission did not find he was terminated for misconduct. The Court of Appeals rejected the argument with short shrift:
Nothing wrong with the result on this point, or on the case as a whole, which affirmed summary judgment for the employer on plaintiff's discrimination claim. However, this is one of those times in which you wished the Court had said a little more, just to make sure that anyone reading the opinion didn't get the idea that if the TWC unemployment decision had "addressed discrimination" it could have had preclusive effect. That idea, which would of course raise the importance of TWC unemployment proceedings to a whole different level, is precluded by the Texas Labor Code:
The issue decided by the TWC did not, however, in any way address discrimination. Therefore, Piazza’s argument concerning “doctrine preclusion” is without merit.Piazza v. Cinemark USA, Inc. (Tex. App. - Eastland 10/27/05) [pdf].
Nothing wrong with the result on this point, or on the case as a whole, which affirmed summary judgment for the employer on plaintiff's discrimination claim. However, this is one of those times in which you wished the Court had said a little more, just to make sure that anyone reading the opinion didn't get the idea that if the TWC unemployment decision had "addressed discrimination" it could have had preclusive effect. That idea, which would of course raise the importance of TWC unemployment proceedings to a whole different level, is precluded by the Texas Labor Code:
§ 213.007. COLLATERAL ESTOPPEL DOCTRINE INAPPLICABLE. A finding of fact, conclusion of law, judgment, or final order made under this subtitle [unemployment proceedings] is not binding and may not be used as evidence in an action or proceeding, other than an action or proceeding brought under this subtitle, even if the action or proceeding is between the same or related parties or involves the same facts.So before anyone gets too excited that this decision might open a door to the use of TWC decisions, check the statute.
NJ Whistleblower Wins $1.2 Million Verdict -- Punitives Still to Come
What could be worse than losing a $1.2 MDV whistleblowing lawsuit? How about having to wait until November 28 to have a determination of how much in punitive damages might be awarded? That's the uncomfortable position of C & S Wholesale Grocers is in following last Friday's verdict in a whistleblower retaliation claim brought by a former refrigeration mechanic. Steven Sommese claimed that his employer condoned refrigerant leaking into the atmosphere in violation of the Clean Air Act. His story, which apparently the jury believed, was that he was retaliated against and ultimately terminated for calling this to his employer's attention. See Jury gives Dover man over $1.2M in the Asbury Park Press.
Under Texas state procedure the defendant can request to bifurcate the issue of punitive damages but most defendants do not. The thought of having to wait 3 weeks for the other shoe to drop, is just one good reason.
Under Texas state procedure the defendant can request to bifurcate the issue of punitive damages but most defendants do not. The thought of having to wait 3 weeks for the other shoe to drop, is just one good reason.
While I Was Vacationing, the Supremes Were Whistling At Work
It would have been kind of the Supreme Court to have waited to hand down their first employment law decision of the term until I returned from the beauty of the wine country. Fortunately, my colleagues at Ogletree, Deakins were hard at work and you can check out their analysis here, When Walking and Wages Collide.
One thing the case may tell us is that life under the Roberts court will be at a faster pace. Yesterday's decision in IBP v. Alvarez comes merely one month after the case was argued. And for those looking for any insight into how Chief Justice Roberts would either differ from or influence the court on employment law matters, hard to read much from this case since it was a unanimous opinion. Interestingly, the opinion, which would have been assigned by Chief Justice Roberts, was written by Justice Stevens, the senior member of the Court and a solid member of the "liberal" wing. For those who try to figure out what such minutiae mean, it could be the sign of a true consensus builder at work, or it could just be happenstance.
One thing the case may tell us is that life under the Roberts court will be at a faster pace. Yesterday's decision in IBP v. Alvarez comes merely one month after the case was argued. And for those looking for any insight into how Chief Justice Roberts would either differ from or influence the court on employment law matters, hard to read much from this case since it was a unanimous opinion. Interestingly, the opinion, which would have been assigned by Chief Justice Roberts, was written by Justice Stevens, the senior member of the Court and a solid member of the "liberal" wing. For those who try to figure out what such minutiae mean, it could be the sign of a true consensus builder at work, or it could just be happenstance.
The Habit of Blogging
Is as easily lost as other "good" habits it seems. After going for more than two years with consistent postings, I seem to have fallen "out of the habit" since early this fall. Although there are, as always, excuses for why, ultimately it proves little more than that I am indeed a creature of habit. And once a habit is "lost", inertia is difficult to overcome. And since I am writing this in a lovely cottage deep in the wine country (with a 'borrowed' wireless connection that is none too strong) it is unlikely that this is the week I will regain it.
But will all good intentions on my return to Austin next week, hopefully I will restart the"blogging habit." In the meantime, I will be fortifying my resolve at the various wineries in Sonoma and Napa, plus speaking on Thursday at the LEAP Seminar at the Silverado Resort.
Cheers.
But will all good intentions on my return to Austin next week, hopefully I will restart the"blogging habit." In the meantime, I will be fortifying my resolve at the various wineries in Sonoma and Napa, plus speaking on Thursday at the LEAP Seminar at the Silverado Resort.
Cheers.
Now on First - Samuel Alito -- Let the Feeding Frenzy Begin
With President Bush's nomination of baseball fan and 3rd Circuit Judge Samuel Alito this morning, the floodgates of inflammatory rhetoric have been opened. By the time we have wound our way to his likely, but by no means certain, confirmation, perhaps even after the first of the year, I fear the amount of such rhetoric we will have endured will make Hurricane Katrina's floods look like a puddle.
Unlike Judge Roberts who had a relatively small number of opinions, so few in number that we were actually able to categorize them in a short period of time, see A More Complete List of of Judge John Roberts' Labor and Employment Related Decisions, don't expect the same with Judge Alito's body of work. Not only is his period of service as a judge much longer ( fifteen years to two), but Judge Alito is nothing if not prolific, often writing concurring or dissenting opinions, in addition to those opinions where he has written for the Court. One criticism that will not stick is that he does not have a fully developed judicial philosophy, available for the perusing.
While I will take a look later at his employment law decisions, here's a sampler of initial reactions about his views in this area from those opposing his nominations.
From Howard Dean, chair of the Democratic party:
One other tidbit for the employment law community. Judge Alito's sister, Rosemary Alito, is a management side employment lawyer in New Jersey.
On with the show.
Unlike Judge Roberts who had a relatively small number of opinions, so few in number that we were actually able to categorize them in a short period of time, see A More Complete List of of Judge John Roberts' Labor and Employment Related Decisions, don't expect the same with Judge Alito's body of work. Not only is his period of service as a judge much longer ( fifteen years to two), but Judge Alito is nothing if not prolific, often writing concurring or dissenting opinions, in addition to those opinions where he has written for the Court. One criticism that will not stick is that he does not have a fully developed judicial philosophy, available for the perusing.
While I will take a look later at his employment law decisions, here's a sampler of initial reactions about his views in this area from those opposing his nominations.
From Howard Dean, chair of the Democratic party:
Alito's record suggests an activist judicial philosophy bent on rolling back the rights and freedoms that all Americans value. Alito has sought to limit the rights of women and people with disabilities in discrimination cases, demonstrated an open hostility to women's privacy rights even in basic reproductive health matters, has a record of hostility toward immigrants, and tried to immunize employers from employment discrimination cases. It is particularly troubling that President Bush would nominate a judge who would reverse American progress and make the Supreme Court look less like America on the same day that most Americans are honoring the life and legacy of Rosa Parks.The final salvo is certainly a nice non-inflammatory way to start the debate.
The Alliance for Justice: Alito has voted to:
-- Invalidate part of the Family and Medical Leave Act; [Presumably a reference to Chittister v. Dep't of Community and Economic Development, a 2000 decision holding that Congress invalidly abrogated the 11th Amendment rights of states when it passed the FMLA. Although this view was not ultimately supported by the Supreme Court, see Nevada Dep't of Human Resources v. Hibbs, Chittister is more of an indication of Judge Alito's view on the vitality of the 11th Amendment as opposed to how he views the substantive provisions of the FMLA.]
-- Scuttle Congress' intentions by making it much harder for civil rights plaintiffs to prove sex and race discrimination. In one case, his colleagues noted that the federal law prohibiting employment discrimination "would be eviscerated if our analysis were to halt where (Judge Alito) suggests.
Before jumping on the "evisceration" statement made in Bray v. Mariott Hotels, 110 F.3d 986 (3rd Cir. 1996), you should read the whole opinion.
Judge Alito's summary of his dissent:
In sum, the evidence here shows (1) that the two applicants were of roughly equal qualifications with respect to the job for which they were seeking promotion and (2) that the employer may have acted unfairly in failing to follow proper internal procedures in rejecting one of the candidates. Under existing anti-discrimination law, evidence of unfairness in the selection process alone, without evidence linking the unfairness to race-based animus, should not be enough to get a plaintiff beyond summary judgment, so long as the employer's proffered legitimate reason for the employment decision remains intact. I respectfully suggest that what the majority here has done is to weaken the burden on the plaintiff at the pretext stage of the McDonnell Douglas framework to one where all the plaintiff needs to do is to point to minor inconsistencies or discrepancies in terms of the employer's failure to follow its own internal procedures in order to get to trial. I have no doubt that in the future we are going to get many more cases where an employer is choosing between competing candidates of roughly equal qualifications and the candidate who is not hired or promoted claims discrimination. I also have little doubt that most plaintiffs will be able to use the discovery process to find minor inconsistencies in terms of the employer's having failed to follow its internal procedures to the letter. What we end up doing then is converting anti-discrimination law into a "conditions of employment" law, because we are allowing disgruntled employees to impose the costs of trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly. This represents an unwarranted extension of the anti-discrimination laws.You may disagree with his viewpoint, but it hardly seems radical, at least as I would use that term. We seem to find ourselves in a funny place, where both logically (not to mention constitutionally)it does not seem that the Senate should condemn a Supreme Court nominee merely because he is "conservative" or "liberal" based on the predilections of the appointing President, who after all obtained the right to make that appointment by winning the most recent national election. So instead, we demonize the individual and his decisions. Maybe a closer review of Judge Alito's opinion will determine he really is out of what I would consider the judicial mainstream -- that is someone whose opinions are well reasoned and based on an intellectually honest reading of precedent and the facts. I would be more than happy if that indeed were the test, honestly applied.
One other tidbit for the employment law community. Judge Alito's sister, Rosemary Alito, is a management side employment lawyer in New Jersey.
On with the show.
Bad News on Business Ethics
You would have thought that business ethics would be on the uptick given our recent corporate past, but unfortunately not the case according to a story on the National Business Ethics Survey. For employment law practitioners, the following was certainly not a good report:
The two most common types of misconduct observed were abusive or intimidating behaviour towards employees (seen by 21 per cent) and lying to employees, customers, suppliers, and the public (seen by 19 per cent).Both behaviors are a step toward more, not less, difficult employment litigation. Check out the whole story at the British Management Issues website.
Misdeal - Poker Dealer Gets Second Chance According to the 5th Circuit
The fact that "it is undisputed that Jones is a well qualified poker dealer, whose dealing skills are better than the average poker dealer in Tunica County, Mississippi," means a little more when you understand that Tunica County is the self proclaimed Casino Capital of the South. Ralph Jones claimed he was never hired for a full time position as a poker dealer at the Horseshoe Casino, notwithstanding he was hired temporarily for some high profile tournaments including the World Poker Open held there. According to Jones, it was because he was African American.
The District Court disagreed, granting summary judgment to the Casino, finding there was not direct evidence of discrimination since the testimony that was offered required too many inferences to conclude that there was a discriminatory motive and some of it had been recanted. The 5th Circuit was not so troubled:
Jones had complained to the H.R. Department of the Casino that he was not being hired because of his race, which led to a face to face confrontation with the hiring manager in the H.R. office, so the potential for a viable retaliation claim also existed. Unfortunately for Jones, his failure to bring it in a timely fashion doomed that claim. That decision of the district court was affirmed by the 5th Circuit.
Although the casino escaped the path of Hurricane Katrina, its luck ran out, at least for now with respect to Mr. Jones.
The District Court disagreed, granting summary judgment to the Casino, finding there was not direct evidence of discrimination since the testimony that was offered required too many inferences to conclude that there was a discriminatory motive and some of it had been recanted. The 5th Circuit was not so troubled:
Upon extensive review of the parties’ arguments and the record in this case, and mindful of the summary judgment standard, we find that Jones has demonstrated direct evidence of discrimination. Mims stated that she inquired why an African-American poker dealer was not hired and was told, by either Lambert or his assistant, that “they hired who they wanted to hire and there [sic] were not going to hire a black person unless there were extenuating circumstances.” She was then told by Lambert, or his assistant, that “good old white boys don’t want blacks touching their cards in their face.” Sam Thomas testified that in 1995, that Lambert told him that “maybe I’ve been told not to hire too many blacks in the poker room.” It is incontrovertible that Lambert made the hiring decisions at Horseshoe and Presley as his assistant would have provided input, therefore, viewing the evidence in the light most favorable to Jones, the aforementioned evidence proves, without inference or presumption, that race was a basis in employment decisions in the poker room at Horseshoe. The evidence need not show that race was the sole basis in order to constitute direct evidence.Jones v. Robinson Property Group, L.P. (5th Cir. 10/11/05) [pdf].
Jones had complained to the H.R. Department of the Casino that he was not being hired because of his race, which led to a face to face confrontation with the hiring manager in the H.R. office, so the potential for a viable retaliation claim also existed. Unfortunately for Jones, his failure to bring it in a timely fashion doomed that claim. That decision of the district court was affirmed by the 5th Circuit.
Although the casino escaped the path of Hurricane Katrina, its luck ran out, at least for now with respect to Mr. Jones.
A (Small) Solace for the Common Scold
Although no doubt pleased that the Bronx Bombers made it as far as they did, Monica Bay, found at, but by no means described as, The Common Scold, is probably not feeling the best today. So as a small token of goodwill, let me pass on information that she is hoping to get widely known about TWO contests being sponsored by two publications she runs for ALM, Law Technology News and Small Firm Business & Law Firm Inc.
With deadlines for entry coming up soon, Monica is trying to make sure all who are interested and/or deserving have a shot. It's like playing the lottery -- if you don't buy a ticket, you can't win.
The Best Practices Award for law firms from 2 to 40, will recognize firms that have implemented "ideas and innovations" that have improved their operations. Entry deadline is October 28th.
The Law Firm/Law Department2005 Technology Awards, recognizes the best technology use - and users - in the legal profession. Deadline for entering is December 15th.
Check them out, or to paraphrase an old Texas political phrase - enter early ... and often!
With deadlines for entry coming up soon, Monica is trying to make sure all who are interested and/or deserving have a shot. It's like playing the lottery -- if you don't buy a ticket, you can't win.
The Best Practices Award for law firms from 2 to 40, will recognize firms that have implemented "ideas and innovations" that have improved their operations. Entry deadline is October 28th.
The Law Firm/Law Department2005 Technology Awards, recognizes the best technology use - and users - in the legal profession. Deadline for entering is December 15th.
Check them out, or to paraphrase an old Texas political phrase - enter early ... and often!
False Economy - Bring Back the Green Cards
Why doesn't the EEOC send right to sue letters by certified mail? Given that an important right expires within 90 days from the receipt of the right to sue letter, wouldn't it be nice to have some degree of certainty? Or is it cheaper to leave individual cases subject to the vagaries of the mail and the testimony of individuals? For example, just how much in government resources (not to mention the costs of the defendant, their counsel, the plaintiffs and plaintiffs' counsel) were expended in resolving Kerr v. McDonald's Corp. (11th Cir. 10/6/05) [pdf]? The basic facts were not that complicated - right to sue letters were dated December 31, 2002, suit was filed on May 15, 2003 and plaintiffs' testified that they didn't receive the RTS letters until sometime in February.
But to decide whether the suit was barred by limitations, because there was no proof certain that would have been provided by certified mail, return receipt requested, we had the filing of a lawsuit, a motion for summary judgment with its attendant briefing, a decision by the district court, an appeal to the 11th Circuit, briefing, oral argument and a 14 page opinion.
Among the evidence gathered was the following on EEOC's procedure for sending a right to sue letter:
And of course then there is the time that this issue remained up in the air. The two plaintiffs were terminated from McDonald's in October of 2001. The lawsuits filed in May 2003, the appeal filed in August, 2004 and now finally a decision in October, 2005, four years after the terminations. Of course there is still the possibility of rehearing, rehearing en banc and cert. to the Supreme Court, so let's not call it wrapped up too soon.
And this was not a straight forward case for the defendant. The Court summarized its holding as follows:
But to decide whether the suit was barred by limitations, because there was no proof certain that would have been provided by certified mail, return receipt requested, we had the filing of a lawsuit, a motion for summary judgment with its attendant briefing, a decision by the district court, an appeal to the 11th Circuit, briefing, oral argument and a 14 page opinion.
Among the evidence gathered was the following on EEOC's procedure for sending a right to sue letter:
And there's more detail on the EEOC procedures if you care to look at it. All of which you can be sure required considerable time (and angst) to procure in suitable form for presentation to the trial court.Both RTS letters were signed by Webb and dated 31 December 2002. General EEOC practice is to mail them out the day they are dated, or within the following two days, at the latest. Because such letters are mailed by a clerk, however, the exact date of mailing is not confirmable. Evidence in the record about specific EEOC office procedures related to the preparation and mailing of RTS letters and the closure of files sheds some light on the issue. First, as a rule, files are not submitted for closure until the RTS letters have been sent out. Second, the normal practice of the EEOC is to send out RTS letters to the charging party and the respondent at the same time. Finally, the majority of RTS letters are sent out tri-folded in regular white business envelopes. Investigation files are returned to charging parties by a wholly different department, in large manilla envelopes marked “CRTIU,” and only after the file has been closed. See 29 C.F.R. § 1610.17(g) (request for copy of investigation file in an ADEA case will be denied unless case has been closed).
And of course then there is the time that this issue remained up in the air. The two plaintiffs were terminated from McDonald's in October of 2001. The lawsuits filed in May 2003, the appeal filed in August, 2004 and now finally a decision in October, 2005, four years after the terminations. Of course there is still the possibility of rehearing, rehearing en banc and cert. to the Supreme Court, so let's not call it wrapped up too soon.
And this was not a straight forward case for the defendant. The Court summarized its holding as follows:
The cost of the green cards that could have avoided all of this? $4.42 each according to the following example at the U.S. Postal Service website:In this appeal, we were called upon to consider whether, under the test established in our circuit, actual knowledge on the part of a complainant that the EEOC has terminated its investigation of her claim, as evidenced by her request for an RTS letter, may be sufficient to cause the time for filing to begin running within a reasonable time after written notice of complainant’s right to sue has been mailed. Based on our review of the law in our circuit, we have concluded that it is, and that the ADEA complaint filed by Kerr and Green Smith was untimely.
First-Class Mail with Certified Mail and Return Receipt
First-Class Mail will get the title to its destination in 1 to 3 days. Certified Mail with Return Receipt will give Maria proof that she mailed the title and will return a card to her with the date the title was delivered and the signature of the person who received it.
First-Class Mail $0.37
Certified Mail +$2.30
Return Receipt +$1.75
Total $4.42Two plaintiffs - $10 vs. all the costs above. Doesn't take many of these to pay for a lot of right to sue letters.
While On An Extended Blogging Hiatus
I have been remiss in congratulating George Lenard and his blogging colleagues, Michael Harris and Catherine Collingwood, who have upgraded what was already a marvelous site, George's Employment Blawg, to even better things.
I also missed out on welcoming Professor Rick Bales, Professor at the University of Northern Kentucky Chase School of Law who has taken over as editor of the LaborProf Blog, and retitled it to fit more accurately the broader area that he intends to address, The Workplace Prof Blog. From his bio, it appears that Professor Bales began his legal career here in Texas, working for Baker & Botts and Baker & Hostetler. While September and early October blogging was light, I have not been totally remiss in communicating as I did teach 4 sessions of Essential Employment Law for the University of Texas CLE division (Austin, Dallas, Houston and San Antonio), a presentation on retaliation and whistleblowing for the Texas Advanced Paralegal Seminar and a presentation on How Employers Make Juries Mad - And Pay for It With Big Verdicts for my firm's Indianapolis' office's first full day seminar.
And managed to practice a little law as well.
I also missed out on welcoming Professor Rick Bales, Professor at the University of Northern Kentucky Chase School of Law who has taken over as editor of the LaborProf Blog, and retitled it to fit more accurately the broader area that he intends to address, The Workplace Prof Blog. From his bio, it appears that Professor Bales began his legal career here in Texas, working for Baker & Botts and Baker & Hostetler. While September and early October blogging was light, I have not been totally remiss in communicating as I did teach 4 sessions of Essential Employment Law for the University of Texas CLE division (Austin, Dallas, Houston and San Antonio), a presentation on retaliation and whistleblowing for the Texas Advanced Paralegal Seminar and a presentation on How Employers Make Juries Mad - And Pay for It With Big Verdicts for my firm's Indianapolis' office's first full day seminar.
And managed to practice a little law as well.
Whistling in the High Desert - Worth $4.75 Million
In the town of Prescott, self described as "only 90 miles, but a world away, from metropolitan Phoenix," the county seat of Maricopa County -- a former Maricopa County employee was awarded $4.75 million under the Arizona Employment Protection Act. The verdict came after just 3 hours of deliberation to conclude a 2 week trial.
The complaint of Michael Walters, an environmental analyst, as reported in the Arizona Republic:
According to Walters, "After nine years of sleepless nights, I'm going to get my first good night's sleep. The truth came out." My guess is that the same was not true for the folks from the County, particularly if as the Tuscon Citizen reported, the County's insurance policy has a $5 million deductible.
The complaint of Michael Walters, an environmental analyst, as reported in the Arizona Republic:
[He] discovered in 1996 that county administrators used fictional liability figures in reports submitted to bond underwriters and others [and] was fired after informing Deborah Larson, the chief financial officer, of the mistake and threatening exposure unless the mistake was corrected.Although the County initially claimed he was terminated for different reasons, including pornography found on his computer, it didn't pursue that argument at trial.
According to Walters, "After nine years of sleepless nights, I'm going to get my first good night's sleep. The truth came out." My guess is that the same was not true for the folks from the County, particularly if as the Tuscon Citizen reported, the County's insurance policy has a $5 million deductible.
Turn Out the Lights - MDV Against Power Company
Just down the road in the Bexar County Courthouse, a San Antonio jury on Friday returned a $5 million sexual harassment verdict against its own city owned power company, CPS Energy. Not a lot of details, but with a $2 million award against the company and a $3 million award against the alleged harasser, it is clear that the jury was less than happy with either of their conduct.
Yolanda Oliverri who worked as a meter reader for 23 years alleged that she had been subject to "unwelcome sexual advances, including comments and touching. ... [which]began in October 2000 and continued through February 2003, when she was transferred to another department." According to the story, even though other employees corroborated her story, the utility found her allegations were unsubstantiated.
That highlights one of the toughest parts of any workplace investigation -- the credibility assessment. Getting it wrong, or at least wrong as the jury ultimately sees it, which may be what happened here, can be an expensive proposition.
It was a 3 week trial, followed no doubt by a much longer appeal.
Yolanda Oliverri who worked as a meter reader for 23 years alleged that she had been subject to "unwelcome sexual advances, including comments and touching. ... [which]began in October 2000 and continued through February 2003, when she was transferred to another department." According to the story, even though other employees corroborated her story, the utility found her allegations were unsubstantiated.
That highlights one of the toughest parts of any workplace investigation -- the credibility assessment. Getting it wrong, or at least wrong as the jury ultimately sees it, which may be what happened here, can be an expensive proposition.
It was a 3 week trial, followed no doubt by a much longer appeal.
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