Kansas City Verdict - Another Successful "Reverse Discrimination" Claim

Earlier this month I commented that one trend we might see this year was more "reverse discrimination" claims. See, 2011 -- the Year of the Non-minority? The outcome of a suit in a Kansas City courtroom yesterday does not prove me right, but it certainly does nothing to prove me wrong.

Like many local governmental units, Kansas City faced with declining revenues dealt with the issue as is often the case by eliminating employees. In the 75 laid off were two, long service, white, female budget analysts, Jordan Griffin and Colleen Low. one in her early 50's, one in her early 60's. 

After they were laid off  they sued complaining that "younger employees or minorities with less experience and lower performance evaluations were kept on." Agreeing with their claims, the Jackson County state court jury awarded each $900,000 in punitive damages and compensatory damages of nearly $350,000 and $500,000 respectively. See, Two former workers win $2.6 million from KC.

Two things that can be drawn from the newspaper account of the story that will be all too familiar to those who try employment lawsuits.

First, the two plaintiffs both had "always received exemplary performance evaluations." And their boss had considered them "spectacular, fantastic employees." In this case those performance reviews may have been deserved, as were the comments, but anyone who has any significant experience in this area knows all too well of cases where such comments and reviews decidedly did NOT represent the true opinion of management that went into the decision making process.

Secondly, one of the things that likely offended the jury was the assertion that their manager had lied to them by telling them that they were not on the list. According to their lawyer:

He repeatedly and affirmatively lied to Jordan and Colleen. He wanted to lull Jordan Griffin and Colleen Low into a false sense of security.

While that could be true, my guess is that the manager had other more noble motivations. He testified that while he did tell them that they were not on the lay off list it was because:

• the list hadn’t been finalized,
• he was hoping they wouldn’t have to be on the list,
• that they could find jobs elsewhere in city government, and
• he was trying to protect the confidentiality of the list.

All of those reasons are certainly understandable, but it is also clear how actions that seem, even in hindsight to be reasonable, can play in the tinderbox of a court room.

And potentially underlying both of the lessons is the difficulty managers have in delivering bad news. That's one of the biggest reasons for erroneously inflated performance appraisals and why managers tell "white" lies in situations where there is at least a chance that the bad news won't have to be delivered.

I hasten to add I am by no means faulting these or any particular managers, delivering bad news is hard for most people. That and a thousand other reasons are why being a manager of people is one of the hardest jobs in America.

We should not be surprised that it sometimes leads to results such as this one. What is perhaps more amazing is how rarely it does.

Update: A Kansas City Business Journal article adds some additional information and does make it clear that this is the type of case I thought we might see more of this year. According to the article:

Jordan Griffin claimed that she applied to become Kansas City’s commissioner of revenue, a position that was vacant in 2006. Griffin alleged that the city would not consider her application or grant an interview because it hired an outside recruiter that specialized in diversity recruitment and that former City Manager Wayne Cauthen had a contract that provided financial incentives for minority hires.

See, Kansas City faces $2.66M discrimination verdict.

Trying to increase diversity, certainly a notable aspiration, and not discriminate on the basis of a protected category, both a noble aspiration and the law, is easy to talk about, but fraught with potential peril. No one ever said being an employer was easy.

Some views from our parliamentarians

I see that the MP for Cambridge, Dr Julian Huppert, secured the adjornment debate last Friday.  His speech is reported in Hansard and he took the opportunity to raise cycling with the Minister of State for Transport.  I do recommend reading his speech.  It is stunningly good and he manages to raise in a few minutes some of the issues I have been raising in this blog.  He deals with the merits of cycling, the importance of bikeability cycle training, the enforcement of cycle lanes, the poor quality of most 'shared use' cycling facilites built in defiance of the DfT's own hierachy of provision, the excessive advocacy of cycle helmets.  I particularly like this in relation to motorists who harm cyclists,
 "We must encourage the police and the Crown Prosecution Service to be more ambitious in the choice of charges and the decision to prosecute, so that judges and juries can decide whether an excuse is good enough.  Driving with a reckless disregard for the safety of fellow road users should be treated very seriously."
Mr Huppert goes on to deal with cycle parking, showers/lockers at workplaces, integration with public transport and then raises the subject, close to my heart, of cycle racing on the Highway.

Mr Huppert is a Liberal Democrat, the sooner he is given a job at the Department for Transport the better.

Disappointingly, at least one motoring organisation, apparently intent on seeing the sharing of roadspace as a battleground rather than a matter for cooperation, has taken exception to Mr Huppert's words.  This is not a party political blog, nonetheless it is rare to find a parliamentarian of any political party talking so much unadulterated sense and Mr Huppert gets my full support.

The response from the Minister of State, Theresa Villiers, was less impressive though she did point out that "Cycling can also help us to address the obesity problems that cost the NHS and wider society around £20 billion annually".  She did not disagree with Mr Hibbert's comments about reducing the stigma attached to cycling by lowering the apparent dangers.  She should really have a quiet word with her colleague in government, Eric Pickles MP, Secretary of State for Communities and Local Government, who attended a conference last week on 'Urban Planning and Liveable Cities.'

Asked a sensible question by Mark Ames of ibikelondon Mr Pickles gave a very silly response (transcript here).  He did not seem too intent upon reducing the stigma some associate with cycling by refering to pedalling in rubber knickers up and down the place to go to work.  I agree cycling need not be long or arduous and does not of itself require special clothing (and I include a helmet in that).  Everyday cycling in ordinary clothes is much to be encouraged.  However if you are going to go far or fast (and looking at Mr Pickles he may not need to be going too far or fast to sweat profusely into his cotton Y-fronts) you will soon learn that lycra (so far as I am aware a synthesised product containing no rubber) is vastly more practicable than cotton or wool.  I cannot imagine that anybody save Mr Pickles would dream of trying to cycle dressed in rubber.

As for his comment that even he might venture out eventually if we make it just a little bit safer; there is no kind way to say this Mr Pickles, but Ms Villiers's response applies to you.  You are endangering your health far more by not cycling than you ever would by 'venturing out'.

If only we had a few more who did not just talk the talk but ventured out properly as Dr Huppert does, we really might start to make progress.

 So, two parliamentarians, guess which one 'ventures out' on a bicycle.

MMA Body Slam of $3.2 Million

$3.2 million is the total jury award to former Tapou T sales representative, Michelle Thomas, from a Los Angeles state jury. The jury first awarded $840,000 in compensatory damages, and then after finding the acts of the employer were with malice, added an additional $2.4 million. Jury Awards $2.4 Million in Punitive Damages to Ex-Employee of Apparel Firm

Although the newspaper article calls it a wrongful termination claim, the facts emphasized in the article were that Thomas was not paid the commissions she was promised, had to work 70 to 80 hours a week without overtime compensation, had to pay out of pocket for cable subscriptions that would allow her to watch the Tapou T show which airs on the Versus network, and one that particularly seemed to be galling that

she was roundly criticized by a supervisor for not watching one required program on her birthday.

I must admit that I had never heard of Tapou T and don't know a whole lot more about Mixed Martial Arts fighting, much less that there was a reality tv show about developing new fighters. And so my headline reference to body slam is probably an inappropriate reference that goes back fifty years ago when I watched professional wrestling from the Dallas Sportatorium with my grandfather.

At least back then, body slams were a big thing. Regardless of whether its an MMA term or not, it's likely that Tapou T is feeling pretty slammed today.

Retaliation in the Supreme Court - Danger Zone for Employers

If there is one area of Supreme Court jurisprudence that employees can certainly not complain about it is the law of retaliation Today's decision in Thompson v. North American Stainless (S.Ct. 1/24/11) certainly does nothing to change that. A unaminous Court (with Justice Kagan not sitting) held that an employee who had been fired for his fiancee's protected activity was also protected by Title VII.

If I had any hope for an employer favorable decision, I had thought it would come from the strict constructionists, who could read the language of Title VII:

because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

to mean that Congress had said it was the individual who actually engaged in the protected activity that was protected, since it did not read because "he, or someone he is close to" had done certain acts. Which is what the en banc 6th Circuit had done.

I thought that they might have also noted that Congress knows how to expand the zone when it wishes, e.g. the Americans with Disabilities Act which contains a specific provision for association type discrimination where of course Title VII does not.

But when I saw today's opinion was authored by Justice Scalia, I knew it was not to be.

As of now, employers have an unclear line (conceded by Justice Scalia) about what relationship will be considered sufficient to extend one employee's concerted activity to another:

Applying the Burlington standard to third-party reprisals, NAS argues will place the employer at risk any time it fires any employee who happens to have a connection to a different employee who filed a charge with the EEOC.

Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in Burlington because Title VII’s anti-retaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.

The easy way to look at today's decision is that the zone of protected activity is now expanded beyond the protection of the one who engages in the activity. Just how far and under what circumstances that zone will reach will be fought out in the courts. A battle that no doubt starts today.
 
The guidelines, to the extent we have them are this:

We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington,  “the significance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutorytext and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] theuncertainties and unfair discrepancies that can plague ajudicial effort to determine a plaintiff’s unusual subjective feelings.”

I am afraid those 'guidelines' leave a lot of "filling in" for the lower courts to do.  

So I was right -- the "strict constructionist view" controlled, just not the way I had hoped. Which may just show that even when one is "strictly construing" legislative wording, it is possible for judges to "make" not just "interpret" the law. Imagine that.

Imperial Winter Series Race 9: Saturday 22nd January

Quite a large field of at least 40 riders turned out for today’s 3rd cat race. At the sign in Lucy kindly promised me no wind, which turned out to be a half kept promise. The wind was merely strong, rather than last week’s gale, and came from the North so forming a headwind up the finishing straight. A seasonal 6ºC. Perhaps because of the better conditions, and perhaps partly also because I took the precaution of taking the train to work yesterday, I had a much better race. There were some spirited attacks including a solo attempt in the last two laps. I often get this wrong but I do not think anyone stayed away. We must have been doing a reasonable pace as we lapped the 4th cat race twice today, not something that’s happened on the races I have done in this series so far. Came in within the bunch.  No crashes.
26.65 miles in 1:06:09. Average speed 24.17 mph. Max 32.3 mph
As I was leaving my fellow cycling blogger Skippy found me and we had a quick chat, curtailed by the fact I had to get home to walk the dog before dark. He is clearly doing good work finding sponsorship for paralympic athletes.  It was a pleasure to meet him in the flesh. He had struggled to find the circuit so it may be worth pointing to directions here (with added bonus of a rear shot of one of my clubmates!). Hillingdon is a good place to start racing especially if you first get yourself there for some Thursday evening Prime Coaching sessions in the summer months to get used to bunch riding at speed and the layout of the circuit.

Transport Policy again

The Department for Transport has just laid before Parliament a report entitled Creating Growth, Cutting Carbon; Making Sustainable Local Transport Happen.  It includes the following information:

"According to the Retail Price Index, the cost of buying a car fell by 29% in cash terms between 1999 and 2009, while general RPI inflation over the same period was 29%. However, the cost of car maintenance, petrol and oil, and tax and insurance all increased markedly faster than general inflation. The "combined" cost of motoring (covering purchase price and running costs) fell by 11% relevant to the general rate of inflation. Over the same period rail fares rose by 43% and bus and coach fares rose by 58% "

Meanwhile the Automobile Association, reported inevitably in the Daily Mail, are complaining again about petrol prices:

'Sooner or later, politicians will have to face reality - more and more drivers cannot afford these prices. They are pushing up inflation and taking money from other consumer spending.'

The inexorable rise in the number and mileage of motor vehicles, with the inevitable associated congestion and pollution, is surely related to the fall in the costs of motoring both in real terms and more particularly in comparison to public transport.  The costs continue to fail to cover the 'externalities'.

This, from a briefing note prepared by the Institute of Fiscal Studies, continues to hold true:

"Why, in theory, should a government be concerned to change consumer behaviour through the use of fuel duty? The argument is that the costs of motoring exceed the private costs faced by an individual motorist. There are environmental costs, noise costs, road-damage costs and congestion costs which people may not factor into their decision about whether and how much to drive. This means that the costs to society of motoring exceed the costs to the individual, which will lead to a level of motoring that is both inefficiently high and inefficiently cheap from a social perspective. The duty is therefore a way of forcing the private motorist to take account of these social costs."

I am assuming the list of external costs does not include death, personal injuries and medical costs on the (slightly dubious) assumption that these externalities are covered by motor insurance.  Certainly I would add additional external costs relating to obesity and lack of fitness due to no longer moving ourselves around in the manner we evolved (or were designed if you prefer) to accomplish without the assistance of fossil fuels.

I do not claim to know the price of fuel at which these externalities are properly taken into account but I am very sure the level must exceed that at which at least some AA members have to think about whether they should be saving money by using public transport, car sharing or even a bicycle.  I see no evidence that our society is moving away from motorised transport as being overwhelmingly the default option for moving ourselves around.

I see a test of government mettle looming.

Postscript:  for a more in depth analysis of fuel costs try the Road Danger Reduction Forum who recommend an increase in petrol duty

One thing you learn very rapidly as a cyclist is the dramatic effect of air resistance which is proportional to the square of air speed.  One way to save petrol is therefore to drive at a slower speed.  There are even better reasons to do this, of course, and I have now set myself a voluntary limit of 20 mph in built up areas.  I find this has virtually no effect on the time it takes me to drive anywhere but it certainly does attract aggression from a few other motorists.

A Ray of Sanity in the FLSA Collective Action Morass: Half-pay in Misclassification Cases

Given the overwhelming number of FLSA collective actions that continue to be filed, it is hard to find very much encouraging news, but one ray of sanity is the 4th Circuit's opinion in Desmond v. PNGI Charles Town Gaming, (4th Cir. 1/18/11) [pdf].

The issue was the not inconsequential question of how do you calculate damages in a misclassification case. Here, the employees were thought to be exempt under the administrative exemption, but the court held otherwise.

Plaintiffs of course seek a 150% premium (time and one-half) of the newly computed hourly rate, while defendants argue that overtime has already been calculated in. and so the premium should only be 50% or half-pay. The counter by the plaintiffs is that it gives the defendants the benefits of a fluctuating work week calculation, without having to comply with the regulations.

Noting that it was joining four other circuits and the DOL itself, the Court found the correct way of calculating damages in such cases to be set out by the Supreme Court in Overnight Motor Transportation Co. v. Missel (1942), one of the Court's early FLSA decisions. 

According to the court

The First, Fifth, Seventh, and Tenth Circuits all have determined that a 50% overtime premium was appropriate in calculating unpaid overtime compensation under 29 U.S.C. § 216(b) in mistaken exemption classification cases, so long as the employer and employee had a mutual understanding that the fixed weekly salary was compensation for all hours worked each workweek and the salary  provided compensation at a rate not less than the minimum wage for every hour worked.

Although there may be examples of where individuals were badly served by misclassification, in most cases, it is a case of individuals paid higher than most employees,who clearly understood that they were not receiving any pay for overtime, and were willing to work under those terms. Thus in many respects, any  recovery under the FLSA really is a windfall for them.

The 4th Circuit decision does not eliminate the penalty for misclassification, but it does at least rein it in, so that it is more appropriate.

One other lesson to be learned from this case is how it started.  It has been a highly contested (and no doubt expensive) case. Yesterday's decision is the second time it has been in the 4th Circuit and the second time it has been sent back to the district court for additional action.

Its genesis was when three racing officals were discharged because they unaminously declared the wrong horse to have won a race.  It certainly was not the first, nor will it be the last, case where an employee unhappy with his discharge, which may be perfectly legal makes it to counsel who can not help with the "presenting problem," but can help in other ways.