Texas Supreme Court: Did You Not Hear Me On Intentional Infliction of Emotional Distress?

When the opinion starts out,

For the tenth time in little more than six years, we must reverse an intentional infliction of emotional distress claim for failing to meet the exacting requirements of that tort.

there's no doubt about how it is going to end. Creditwatch v. Jackson (Tx. 2/25/05)[pdf]. In forceful language, the Court seems to be getting closer to the position Justice Hecht has long urged, the total abolition of the tort in Texas jurisprudence. Justice Brister's penultimate paragraph:

This tort was never intended as an easier and broader way to pursue claims already protected by our expanding civil and criminal laws. If the tort is to remain viable where ?gaps? still remain, litigants and judges cannot entertain it as a catch-all that avoids the careful balancing behind alternate legal claims.

(emphasis added) clearly indicates the Supreme Court is losing its patience.

In this case, there were allegations of sexual harassment which were time barred, the refusal of the employer to provide a reference letter or take reference calls during business hours, a policy that employees should not contact ex-employees, and finally that plaintiff's temporary roommate, also a former co-employee, was told to evict her at the threat of losing her own job. Even assuming the truth of all that, "callous, meddlesome, mean-spirited, officious, overbearing, and vindictive" as it would be -- it is not enough to meet the outrageous conduct standard required for intentional infliction of emotional distress . What it will take, for as long as the claim remains viable, is "circumstances bordering on serious criminal acts."

Two other important items, the Court pointedly "assumes" that the court of appeals was correct in finding that nothing in the TCHRA preempts other common-law causes of actions, inviting, it would seem, arguments that it does preempt some; and confirms what was implied in Zeltwanger, if the complaints are covered by other statutory remedies, the fact that those avenues are now barred (time barred in this case) does not allow them to be asserted as an intentional infliction of emotional distress claim.

Whatever sting was left in the tort of intentional infliction of emotional distress after Zeltwanger, is now even milder.

Priorities? Confined Spaces Has A Point

Jordan Barab's Confined Space is an eloquent voice on behalf of workers, particularly on safety issues. And his post about an editorial in the North Jersey Record, comparing fines proposed by Congress for cursing or sexual material on public airwaves and a fine by a former Enron executive and those issued by OSHA in a fatality make a point. And because Jordan knows his stuff and does his homework, he makes the point even better.

Governing By Publicity? Is That A Good Use of the Justice System?

I suppose there is a fine line between getting the word out about what the government is doing to enforce the laws, which could make stretched enforcement dollars go further, and trying one's case (not to mention a defendant) in the media. Not sure whether the EEOC may be crossing that line with their latest tactic of advertising their upcoming announcement of two lawsuits. Naomi Earp, Vice Chair of the Commission is taking the time to fly to Phoenix so she can personally deliver the message, and of course the press is invited to attend. According to the press release:

Naomi C. Earp, Vice Chair of the U.S. Equal Employment Opportunity Commission (EEOC), will host a press conference at the agency's Phoenix District Office on Thursday, February 24, at 12 noon, to announce the filing of two important employment discrimination lawsuits involving teen workers.

The suits involve sexual harassment of male and female teen employees, including same-sex harassment, at two different franchises of a national fast-food chain. Joining the Vice Chair to announce the filing of the two lawsuits in federal district court in Arizona and New Mexico will be EEOC Phoenix District Director Chester V. Bailey and Regional Attorney Mary Jo O'Neill. Bailey noted, "These lawsuits are expected to have far reaching effects on the youth-oriented restaurant industry."

And just to build the suspense, "No additional information about the cases will be available until the time of the press conference."

I am not totally sure what I think about this tactic, but it does make me wonder whether this is a good use of government resources (possibly, but I would bet there are better uses), whether it is fair to the defendant (no), and whether since I would normally decry a private plaintiff (or defendant for that matter) who tried to use a lawsuit for a public relations purpose, I should think any differently just because it is a government agency (I don't see why).

Naomi Earp was one of the first items I blogged about, way back on July 29, 2002. (Man, I have been doing this a long time.) And you would think given the comment in that post, she of all the Commissioners might be sensitive to the issue of accusing someone with great fanfare before their case has been adjudicated. My earlier post:

Carswell redux?

Interesting to note that the NAACP is opposing the nomination of Naomi Churchill Earp, a career government worker, to the EEOC. (One small irony is that Earp is African American.) One of the complaints raised in an edition of the federal eeo advisor is that she has cost the government nearly half a million in settlements and awards of federal EEOC charges filed against her.

And the headline? I see I was sometimes cheeky, even back in the beginning:

Borrowing from Senator Roman Hruska's famous endorsement of Supreme Court nominee, G. Harrold Carswell ("Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."): Aren't those accused of discrimination entitled to a little representation on the Commission as well?

Whistling While You Wait and Walk - Should You Get Paid For It?

The Supreme Court will let us know as today they granted certiorari in two cases to decide whether employees' time spent walking from a changing room to an equipment distribution center and waiting in line for equipment is "time worked" under the Fair Labor Standards Act. Sonja Starr, has the commentary and link to the cases at SCOTUSblog. And as noted in the lead, they should be familiar with the issue since Goldstein and Howe represent the petitioners in one of the cases.

The cases will require the Court to renew its relationship with the 1947 Portal to Portal Act, the first substantive revision to the Fair Labor Standards Act, which was originally passed in 1938. Interesting that more than 50 years after the FLSA was passed, questions still exist as to what is "work" under the Act.

The two cases represent a split in the circuits, with compensation being denied in Tum v. Barber Foods (1st Cir. 2004) and awarded in IBP v. Alvarez, (9th Cir. 2003). It will be interesting to see if the 9th Circuit's usual run of luck on employment cases before the Supreme Court, which would augur for the reversal of Alvarez and upholding of Tum, holds true.

Good To Know My Instincts Are Sound - Jury Awards $2.25 Million for Violence in the Workplace

More than a year ago I commented on a decision from the 4th Circuit, remanding a case to trial on one of my less favored causes of action, intentional infliction of emotional distress. But I was forced to admit that based on the allegations set out in the Court's opinion, even I wasn't offended by the use of the doctrine in that case.

In my original post, I highlighted the facts as follows:

Gantt, a security guard obtained a restraining order against her boyfriend. Her week-end supervisor who also was her boyfriend's supervisor at another security company during the week, sent her to a job assignment knowing that she would be exposed to her boyfriend. Even after he called and threatened Gantt, the supervisor refused to remove her. After Gantt was kidnapped, raped and held captive for 6 hours by the boyfriend, she sued the company for among other things, the intentional infliction of emotional distress. The facts seem to me to be the very narrow exception that the tort was designed to cover.

Now courtesy of a press release from the National Crime Victim Bar Association, it appears that a jury when presented with the facts was not offended either. And according to the release, the jury did not even get to hear all the facts:

Due to the trial court's interpretation of the Fourth Circuit's opinion, the jury never heard about the rape and abduction. The Judge ruled that the abduction began when Sheppard [the boyrfriend] grabbed Gantt, and allowed testimony only on events that occurred up to that point. "The jury heard about Sheppard running up the driveway to the security post wielding a shotgun," said Martin. "They heard how [Gantt]was left alone there cowering and pleading for her life. That was enough for the jury to conclude that she had suffered severe emotional distress intentionally inflicted by her supervisor, and which continues today in the form of nightmares, panic attacks, and fear of Sheppard."

Although this is a rather graphic example of the confluence of violence in the workplace and an employer's responsibility, it makes clear how highly juries value safety in the workplace and an employer's responsibility to ensure it, even sometimes where the worst conduct is by a third party.

More Faltering Business Success

First it was Arthur Andersen, and now Ozark Aircraft Systems, which have taken advantage of the faltering business exception under the WARN Act. In Ozark's case, it was a federal jury that found the exception applicable. See Plane shop found exempt of notice from the Arkansas Democratic Gazette.

Maybe its the economic times, but recent history indicates that this defense may be of more use than many, including me, have thought.

But Wasn't It For The Gorilla?

What is there to say after this headline, Gorilla Caretakers Sued Over Breast-Baring Request. Apparently two female employees of the Gorilla Foundation were required to "indulge Koko's nipple fetish" by baring their breasts on occasion. Terminated after they complained about sanitary conditions, they have now brought suit against the Foundation and Francine "Penny" Patterson, the longtime trainer of Koko, a gorilla with a vocabulary of more than 1,000 signs. Koko, at least at this juncture, has not been sued.

S.14 - Otherwise Known As Flogging a Dead Horse

Having seen it work so spectacularly as an election issue in the 2004 elections, some Democratic senators just can't let go of the idea that the white collar regulation reform is evil incarnate, have now offered S. 14, Fair Wage, Competition, and Investment Act of 2005. The proposal would require courts to engage in some mind numbing statutory construction to determine exactly what the status of the current law would be, and as we have discussed before, all for very little benefit to workers. Why anyone, even those who favor rolling back the new rules think this is a good approach, is beyond me.

The legislation would also raise to $30,732 a year the minimum salary for an individual to be exempt under the executive, administrative and "managerial" exemptions. That is interesting since I am not aware of any "managerial" exemption that currently exists. My guess is the drafter meant "professional" not "managerial". The new regulations raised the amount to $23,600. The proposed legislation in addition to raising it another $7,000 would also index the minimum salary so it would increase annually based on the Employment Cost Index.

The proposed legislation, in addition to keeping the "good fight" alive on the white collar changes, also would raise the minimum wage, initially to $5.85 an hour, with additional steps to $6.55 and $7.25 over a 2 year period.

The third change to existing employment laws would be to change the definition under WARN so that the loss of work by 50 employees would now be considered a mass layoff and trigger the requirement for the 60 day WARN Act notice. Currently, the trigger under that section of the statute is either (i) 33% of the employees and at least 50 employees, or (ii) 500 employees.

The Act covers a broad variety of other topics as well, but my guess is that with the possible exception of some change in the minimum wage, the other 2 provisions discussed above won't make much headway.

Child Labor Law Information from the DOL Amid the Wal-mart Rhubarb

That is rhubarb of the heated dispute, not vegetable variety. Since everyone else has been covering the alleged sweetheart deal between the Department of Labor and Wal-mart, with more heat than light I would say, and since I have not had a chance to review either the agreement or the full context, I am withholding any substantive comments. I must say however that the one interview of Representative George Miller (with Wolf Blitzer) who seems to have designated himself as the point person against the deal, was not encouraging that light really is the purpose of the discussion. His frequent mention of "filing of grievances" with the DOL, among other things, left me wondering whether he really understood exactly what the Department of Labor does with respect to the enforcement of the FLSA. And it somehow seems strange to be so bent out of shape about prior notice to the employer, when the EEOC is required by the Congressionally passed Title VII to give an employer 10 days notice when a charge of discrimination is filed. It also is not clear to me that Representative Miller was aware that an employee is not required to file a charge with the DOL before pursuing a claim under the wage and hour laws. But maybe I expect too much of those sitting on the committees responsible for oversight of such legislation.

Notwithstanding all of that, the child labor laws are obviously important and one that a lot of employers may unwittingly violate. Basically the law sets up a matrix of certain jobs that can only be done by individuals of a certain age, and restrictions on the times and hours that 14 and 15 years old may work any jobs. Perhaps some good will come out of this controversy as more people become aware of just what those restrictions are. In a positive vein, the DOL has issued a press release highlighting the laws and included a new section on Child Labor Laws on their elaws advisory system which provides information in an understandable format. If you have employees under 18 you should check them out to make sure you are in compliance.

While on the whole they make sense, there are no doubt sons and daughters on ranches and farms whose loving parents regularly assign them chores that would violate the child labor laws if they were applicable. And as someone whose first job was as a delivery boy for a pharmacy when I was 15 (having got my driver's license at 14), a clear violation of the child labor laws as they exist today, I don't immediately assign ill will and malice to someone who may not be aware of all the restrictions.

Maybe He Was A Bad Singer

Thanks to a regular reader from San Francisco who caught this on the Courthouse News Service website:

The EEOC has sued Johnson Controls for sexual harassment in Lansing Federal Court in a complaint alleging a coworker serenaded a woman's buttocks when she wore pants with an American flag on a back pocket. When she complained, a supervisor allegedly told her she brought it on herself by wearing provocative clothing.

Maybe the complaint had more information on just how one serenade's another's body parts, but maybe not. Which would be just as well.

Happy "Holiday Invented By A Greeting Card Company", Make That, Valentine's Day

If you are not as cynical as Jim Carrey's character from Eternal Sunshine of the Spotless Mind, you are probably celebrating or planning to celebrate or wishing you were celebrating with that special someone. Of course, it also day that lends itself to love at work related stories, and since that's what I write about here, work that is, here are a few of the stories that may or may not make you think twice about what happens at work.

The Christian Science Monitor, To date, or not to date, talks about the problems when a relationship goes sour between workmates. The World Peace Herald offers the following: Advice: Think before asking co-worker to be your valentine and features this quote, "Office romances are not generally good for your career track. Executives who are serious about their careers need to think about business first; courting Alice in accounting isn't the best way to maintain that killer instinct." Not much doubt about the general tone of that article.

Referring to sexual harassment as the "evil twin" of office romance, the South Bend Tribune offers a look at both the positives and negatives in Mixing business, pleasure. And finally a look from abroad, Scoop, an Auckland, NZ publication offers Love around the water cooler with some questions and answers from the Trades Union Congress, which includes this worldy viewpoint, "Everyone’s entitled to a private life and having an affair with a colleague is not normally a sacking offence."

Whether you found your Valentine at work, or elsewhere, or are still looking, Happy Valentine's Day.

New Labor Blog: Unions - Firms - Markets

I am tardy in recognizing a new blog in the labor/employment arena, Unions - Firm - Markets, which describes its aspiration as "Chronicling and Analyzing the Changing Relationships, Structures, and Power of Unions, Firms, and Markets in the 21st Century." The author, Mathias Bolton, is a research analyst for a Labor Union in NYC and in the process of finishing a Masters Thesis in the field of Industrial Relations. Before his academic endeavors he was a rank and file union activist.

About the only thing good about my procrastination is that I was able to add the new url of the blog, www.unionsfirmsmarkets.com, directly to my listing of labor related blogs. Welcome.

Wal-mart and Unions - The Canadian Story

Wal-mart's union problems north of the border have been well chronicled, but a good source is Canadian management side employment lawyer, Michael Fitzgibbon, whose post Wal-Mart Announces Closure of Jonquiere Store also has links to his earlier posts on the subject.

His comment, "the fight is probably just beginning," sounds right on the money to me.

Impact of Sexual Orientation On Your Paycheck

Professor Gely, from the Labor Prof Blog, has a link to an abstract of a recent study surveying more than 50,000 Californians who self-identified based on their sexual orientation and how that affected their earnings. Although I haven't read the article itself, the abstract seems to have some contradictory statements. This statement:

Apart from the well-documented marriage premium, the author finds no statistically or economically significant independent effect of a gay or lesbian sexual orientation on earnings.

Does not seem to square with this one:

Researchers using the 1988-96 General Social Survey (GSS) have found that behaviorally gay/bisexual men earn 15-30% less, and behaviorally lesbian/ bisexual women earn 20-30% more, than similar heterosexuals.

If the latter is true, in addition to seeming to disprove the first statement, it would be interesting to know why.

Another One for the "Judges Fly Too" File

Just a few days ago I mentioned here that you could frequently predict the outcome of an employment law suit in the aviation industry by thinking of which outcome would come down on the side of "most safety conscious." Today's case in point, a magistrate judge's determination summed up in this Springfield News-Leader headline, Ruling: Pilot was fired for bar visit, not religion.

The EEOC which brought the suit, alleged the firing of Shanif Hussein two days after 9/11 was because he was a Muslim and a backlash to the 9/11 attacks. Not according to the airline, Hussein was fired for violating its rule against pilots being in bars in uniform. Contemplating a flight with an inebriated pilot - that's an easy one.

"All I Wanted Was a Free Magazine"

But what the president of decorating company nearly got was a full blown relationship with a union, including an obligation to pay fringe benefits into a union fund. When it didn't and the Trustees sued, it didn't take the courts long to untangle the would be magazine reader from the union agreement.

Somehow a one page free membership application to the Chicago Painting and Decorating contractors Association ended up on the desk of the CEO and sole owner of LaCosta, Inc., a company that provides painting and janitorial services. Just above the signature line was the following:

I have read, understand, and agree to abide by the Constitution and By-Laws of the Chicago Council/PDCA and the Current Labor Management Agreement between Painter's District Council No. 14 and PDCA (copies available on request).

Although she didn't, if the owner of LaCosta had obtained those agreements before she faxed the application back, she would have found that she was delegating her bargaining rights to the Chicago PDCA.

Fortunately, all is well that ends well. Even though sued for failing to contribute to the Union pension plan, the Court ultimately found that the manner in which she came to sign the agreement "bordered on deception" and did not come close to meeting the standard of "unequivocal intention to be bound by group collective bargaining." Trustees of the Chicago Painters and Decorators Pension, Health and Welfare Funds v. LaCosta, Inc. (7th Cir. 2/10/05) [pdf]. Still a costly magazine subscription, that's for sure.

"Solely Because" In Bankruptcy Retaliation Proviso, Means Solely

This is a decision Justice Clarence Thomas, a great literalist, would love. When the statute says it is impermissible to fire an employee who has been a debtor "solely because" he has filed for bankruptcy and the employee's argument is that the statute should not be read literally, but should be read like Title VII, to require that it only be a substantial factor, guess who is going to win? Bet on the literal reading.

Which is exactly what the Court found in White v. Kentuckiana Livestock Market, Inc. (6th Cir. 2/9/05) [pdf]. Even though the employer fired an employee (and his wife who was also employed by the same employer) 3 days after they filed for bankruptcy, and even though the employer responded to the unemployment claim prominently mentioning the employee's bankruptcy, first the bankruptcy judge, then the district court and now the 6th Circuit were convinced that the plaintiff's offer to help the employer defraud on taxes, had also played a role in the decision. With something else a part of the decision, it could not have been "solely" based on their having filed bankruptcy, hence no violation.

Although here it was not fatal to the employer's defense, it is a good example of the importance of what is often the first response to the question why an employee was fired -- the unemployment claim. Many a defensible case has been made considerably more difficult (read more expensive as well) because of a hasty, not completely informed response to an unemployment claim.

Title VII Jury Instructions - 6th Circuit Weighs In On Role of Pretext

For a quick study on how much weight establishing pretext carries, review the competing instructions offered in Williams v. Eau Claire Public Schools (6th Cir. 2/10/05) [pdf].

The bottom line from the Court:

In sum, because William's proposed instructions do not inform the jury that in order to return a verdict in her favor it must not only find Eau Claire’s articulated reason false, but it must also believe Williams’s claim that Eau Claire was in fact motivated by considerations of gender, Williams’s instructions are not a correct statement of the law.

Never forget, the ultimate issue is -- has the plaintiff established intentional discrimination.

Arthur Andersen, Wins One, Finally

Prior to the spring of 2002 few things probably seemed more secure than a job at Arthur Andersen, one of the worlds largest and at the time most successful accounting firms. But the ill winds of Enron were blowing and soon were to bring not only it down, but Andersen as well For an abbreviated version of the facts that led to the endgame for AA, you can check out today's decision in Roquet v. Arthur Andersen, LLP (7th Cir. 2/9/05) [pdf].



The necessity for replaying those painful days was a WARN Act claim brought by employees who first received notice of lay-offs on April 8, 2002, approximately 3 weeks after the firm itself was indicted by the DOJ for its Enron related actions. The legality of that indictment will soon be determined by the Supreme Court, but the practical impact has long been felt. Still Andersen was able to salvage some pride today, and save a little coin for the creditors, as a divided 7th Circuit holds that Anderson could avail itself of an exception to the WARN Act for "business circumstances that were not reasonably foreseeable as of the time that the notice would have been required."



In a vigorous dissent, Judge Wood argues that the majority was, without saying so, holding that under this exception it was an all or nothing rule, if you did not have to give notice on the 60th day before the layoff, then no notice was required. Judge Wood would have required that it be given as soon as the loss was foreseeable, a date she would peg at 38 days before the notice was actually given (although she would have voted to remand the matter to the district court for a final determination.) The all or nothing rule she argues would be contrary to the rule in the 8th Circuit, as well as the 3rd and 5th.



I think Judge Wood is right as a matter of law, but loses this one on a factual basis as the Court majority believed that the date the notice was given was early enough under the circumstances.



While I am sure that those charged with making the decision on the WARN Act issue for Andersen are pleased that their judgment call (if in fact it was a conscious decision) was validated; for a company long gone, I doubt that there will be much in the way of rejoicing.

Technical Knock Outs Don't Always Stay Out

In today's world where employment arrangements are not always straight forward and simple, who you sue can be a somewhat technical question. Michael Flowers, a counselor hired by Columbia College Chicago, was assigned to a public high school, which had contracted with Columbia College to provide guidance counseling services. The principal of the school refused to allow Flowers to wear a headcovering which he claimed was required for religious reasons. He filed a complaint with the EEOC naming the school system as his employer. The school system objected to the College, which in turn ended Flowers employment.



Following the EEOC investigation of his retalition charge, Flowers, acting pro se, filed a lawsuit against the school system. The federal district judge dismissed the case as frivolous before service was made, because on its face it was clear that the college was his employer not the school district. Accepting that knock down, Flowers sued again, this time against the College. The result? The second case was knocked out when the Court found he had failed to state a claim on which relief can be granted, a ruling the 7th Circuit construed as holding, "Title VII allows an employer to sack a person who complains about discrimination elsewhere." Getting off the canvas a second time, Flowers appealed to the 7th Circuit, which has (at least from his point of view) set things right, by making it clear that the case can go forward and be heard on the merits. Flowers v. Columbia College Chicago (7th Cir. 2/8/05) [pdf].



The Court did not come close to buying the College's argument (accepted by the trial court) that since the complaint was made against someone that did not employ him, it was not protected activity. To do that would, in the Court's view, completely dismantle Title VII retaliation protection based on corporate structuring.



It also dismantled the College's argument that the action was not protected because it was frivolous:

[T}he College insists that Flowers’s original charge was baseless because made against the Chicago school system, which did not employ him. Yet identifying the “employer” in a borrowed-servant situation can be difficult. Flowers was in a bind: had he charged the College with failing to accommodate his religion, the College could have blamed the high school and insisted that it was in no position to do anything; had Flowers filed the charge against the school system (as he did), it could have replied (as it did) that the College was his only employer. Perhaps both entities usefully could be deemed employers in such a situation, [cites omitted] but even if the College was the only statutory “employer” it hardly seems a firing offense for Flowers to have thought otherwise. If a gaffe on a technical issue allowed the employer to show the worker the door, the anti-retaliation provision would be diluted to the point of uselessness. ... Technical mistakes in pursuing charges that may well have a good substantive footing do not render those charges so unfounded that the employer may reply with a discharge. It is not as if Flowers had filed his initial charge against Verizon or Boeing. The high school was, if not his “employer,” at least using his labor.

When speaking, I have been known to say (somewhat tongue in cheek), "anyone can win on the facts, but it takes a good lawyer to win on a technicality." Flowers is a good reminder that pursuit of a victory on a technicality may end up being not much more than an expensive detour, because as the 7th Circuit clearly showed, not all cases thrown out on TKO's, stay out.

St. Louis Blues

Besides being a song and my current (today) location, is also how I am feeling about my lack of blogging recently. Too much road (make that air) time in the last 10 days, hopefully will be back in more normal stride in the next couple of days.

3rd Circuit Breaks Tie - Narrow Reading of Pre-emption Under Airline Deregulation Act

Can an employee of an air carrier sue under a state whistleblower act, or are they limited to the provisions under the Airline Deregulation Act and its Whistleblower Protection Program? As a general rule, plaintiffs would prefer the state court action, and the 3rd Circuit has joined the 11th in finding that the state action is not pre-empted. Gary v. The Air Group, Inc. (3rd Cir. 2/3/05) [pdf].



The 8th Circuit has taken a different view, but the district court's reliance on that decision is disapproved by the 3rd Circuit as it allowed a pilot's complaint that he was terminated for complaining that another pilot was unsafe, to proceed under the New Jersey Conscientious Employee Act. This may just fall in that category of decisions I have long called, "judges fly too," as it seems courts often take the most favorable view of whatever side is arguing for the safest course of action. And having lived on airplanes for the last week, I can't say that I disagree with them.

A $300,000 Loss Turns Into $2.3 Million From Santa Clara Jury

The Memphis Business Journal headline tells the tale of the latest MDV, Jury orders FedEx to pay $2M in its follow up story on what a Santa Clara, California jury did in the punitive damage phase of a sexual harassment case brought by 2 employees. The jury had earlier awarded $300,000 and $30,000 to the two for compensatory damages.



In Texas state court, the defendant controls whether to ask for bifurcation of liability and punitive damages. Most defendants quickly came to the conclusion that given the choice, you were better with a jury that was mad at you (which if they get around to awarding punitive damages they almost certainly are) only having one bite at the apple.

A Handful of Gender-Neutral Harassment and A Pinch of Gender-Based Harassment And What Do You Have?

A trial, according to the 10th Circuit. In a lawsuit brought by several female employees of the New Mexico Boys' School, the 10th Circuit affirmed the summary judgment on most claims, but salvaged a portion of the sexual harassment claims of some of the plaintiffs. It found itself faced with the following question, "[Can] Plaintiffs use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct in opposing summary judgment? And the answer:

Our precedents say that they can. "Facially neutral abusive conduct can support a finding of gender animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly gender-discriminatory conduct." O'Shea, 185 F.3d at 1097. This is because what is important in a hostile environment claim is the environment, and gender-neutral harassment makes up an important part of the relevant work environment. Conduct that appears gender-neutral in isolation may in fact be gender-based, but may appear so only when viewed in the context of other gender-based behavior.

Chavez v. State of New Mexico (2/2/05) [pdf]. Reading the opinion gives you several examples of how what someone no doubt thought was "cute behavior" in the workplace, sounds much more sinister in the context of the court room.

Using "Motivating Factor" Not "But For" Instruction - Plain Error According to 5th Circuit

When a party fails to object in the trial court, the appellate court is limited to reviewing a mistake for "plain error." In the 5th Circuit that means they must show:

1) that an error occurred; 2) that the error was plain, which means clear or obvious; 3) the plain error must affect substantial rights; and 4) not correcting the error would seriously impact the fairness, integrity, or public reputation of judicial proceedings. The plain error exception is designed to prevent a miscarriage of justice where the error is clear under current law.

What that usually means is -- you lose. But not always. And today's decision in Septimus v. University of Houston (5th Cir. 2/2/05) [pdf] is such a case.



Refereeing a dispute that erupted within the UH's General Counsel's office, the 5th Circuit reversed a jury verdict in favor of a former in house attorney who claimed she had been retaliated against for engaging in protected conduct. The reason for the reversal? The Court utilized a "motivating factor" rather than a "but for" standard in the jury instruction on retaliation. If anyone doubted that "motivating factor" was an easier test for plaintiffs, today's decision puts that to rest, at least as viewed from the 5th Circuit's perspective:

This court has consistently required a “but for” standard for proving causation on a Title VII retaliation claim brought under the pretext framework. Thus, the disputed jury instruction amounts to plain error that should have been clear or obvious. Even when the jury instructions are viewed in their entirety, the substitution of the phrase “motivating factor” for “but for” causation causes us to doubt substantially whether the jury was properly guided in its deliberations. Septimus was held to a lower standard in proving the causation element of her retaliation claims – the ultimate question in this case – and therefore substantial rights of the University were prejudiced.

And to just really ruin Septimus' day, the Court also affirmed the trial court's grant of summary judgment on her non-retaliation claims.

EEOC Suit Binding on Named Individuals, And A Poke in the Eye to the Louisiana State Courts

Federal courts are, at least in theory, often times deferential to the state courts, but last week the 5th Circuit was less than, when it remanded a case to the trial court with instructions to enter a permanent injunction enjoining two attempted perpetual plaintiffs from proceeding with their state court age discrimination suit. Vines v. University of Louisiana at Monroe (5th Cir. 1/28/05) [pdf]. The case dealt with an unusual legal issue -- is the EEOC in privity with the individual charging parties on whose behalf it files a lawsuit? Answering that yes, the Court went on to untrack the 2 former professors state court lawsuit against the university.



An earlier federal suit, brought on their behalf by the EEOC, challenging a university policy prohibiting re-employment of retirees on a regular full time basis had ended in summary judgment for the university. Although the EEOC initially appealed, it voluntarily dismissed the case. At that point, the 2 retired (and apparently with time on their hands) professors, filed in state court. The challenge to the suit on the grounds of res judicata/collateral estoppel was successful in the state trial court, but reversed on appeal. When the appeals court refused an en banc hearing, as did the state Supreme Court, the University turned again to the federal courts, filing a motion to enjoin the individuals.

Although the district court denied the motion, the 5th Circuit did not. Winding its way through both the perils of the Anti-Injunction Action and the arguments against privity, the Court found that the Louisiana appeals court decisions were not on the merits and thus not entitled to full faith and credit, and that the arguments against privity were not valid. The EEOC had represented the professors' interests, and the end of that case, should have been the end of it. And now it is.