This time it was Ithaca police officer Chris Miller who lost his claim that Ithaca discriminated against him and other non-minority officers in favor of minority policemen. That complaint did not fly with the jury, but his allegation that he was retaliated against for making it did, two million dollars worth. City to pay $2 million in discrimination case.
As always there is a lot more to this case than is covered in the brief article reporting on the jury's verdict. The Cornell Daily Sun did a four part story on the background of Miller's claim and the assertions made by him, some of which were excluded by the trial court. See part one and two here, and part three and four here.
Showing posts with label MDV. Show all posts
Showing posts with label MDV. Show all posts
Intentional Infliction of Emotional Distress, A Dangerous Cause of Action
This headline, Steelworker awarded $25 million in New York racial lawsuit might seem to come from a typical Title VII or Section 1981 case for racial discrimination.
According to the story in the Cleveland Plain Dealer, the plaintiff Elijah Turley, who is black, testified that
But it's my guess from another quote in the story that although based on racially based behavior, it was not a race discrimination claim, but instead a claim for intentional infliction of emotional distress. That's based on the quote from Turley's lawyer that the conduct was "atrocious and intolerable in a civilized society," which is language taken from the Restatement of Torts discussion of the tort of intentional infliction of emotional distress.
Texas struggled with this as an employment law tort, with approximately 10 cases passing the muster of that supposedly high standard at both the trial and appellate level only to be rejected by the Supreme Court. (One case did survive the Supreme Court's review.) Finally, the Supreme Court basically eliminated the tort from Texas employment law, finding that it was designed as a gap-filler, one that was to be used only if no other cause of action existed.
Unfortunately, for the defendants, they weren't in the Lone Star state.
According to the story in the Cleveland Plain Dealer, the plaintiff Elijah Turley, who is black, testified that
"KKK" and "King Kong" graffiti were written on the walls of the plant and a stuffed monkey with a noose around its neck was found hanging from his driver's side mirror.But it was not as if the company did nothing in response as evidence indicated that the company hired a private investigator, installed security cameras and suspended some of the employees involved in some of the incidents.
But it's my guess from another quote in the story that although based on racially based behavior, it was not a race discrimination claim, but instead a claim for intentional infliction of emotional distress. That's based on the quote from Turley's lawyer that the conduct was "atrocious and intolerable in a civilized society," which is language taken from the Restatement of Torts discussion of the tort of intentional infliction of emotional distress.
Texas struggled with this as an employment law tort, with approximately 10 cases passing the muster of that supposedly high standard at both the trial and appellate level only to be rejected by the Supreme Court. (One case did survive the Supreme Court's review.) Finally, the Supreme Court basically eliminated the tort from Texas employment law, finding that it was designed as a gap-filler, one that was to be used only if no other cause of action existed.
Unfortunately, for the defendants, they weren't in the Lone Star state.
Missed This New Jersey MDV the First Time Around
I was in Lubbock yesterday talking to their SHRM chapter about retaliation and the dangers of those cases, along with its first cousin whistleblowing, and this headline did nothing to change my mind. Former Warren Township prosecutor awarded $1.26M for whistleblower complaint.
A city prosecutor, Michele D'Onofrio won a verdict of $1.38 earlier this year when a New Jersey jury determined she had been terminated for reporting that a municipal judge had been drunk on the bench. Today's headline was about an additional $1.26 million awarded by the court for attorneys fees and costs.
Another powerful reminder that when you lose an employment law trial, at times the attorneys fees can be just as big a hit as the underlying award.
A 2007 post at the Victim of (Judicial) Greed blog, Heating Up has much more detail about the underlying suit which appears to have been against a law firm headed by a former New Jersey governor and was for sexual harassment as well as the whistleblowing complaint.
Which underscores another point, there is often much, much more to any story than appears on the initial reading, and that is particularly true in most cases of legal reporting.
A city prosecutor, Michele D'Onofrio won a verdict of $1.38 earlier this year when a New Jersey jury determined she had been terminated for reporting that a municipal judge had been drunk on the bench. Today's headline was about an additional $1.26 million awarded by the court for attorneys fees and costs.
Another powerful reminder that when you lose an employment law trial, at times the attorneys fees can be just as big a hit as the underlying award.
A 2007 post at the Victim of (Judicial) Greed blog, Heating Up has much more detail about the underlying suit which appears to have been against a law firm headed by a former New Jersey governor and was for sexual harassment as well as the whistleblowing complaint.
Which underscores another point, there is often much, much more to any story than appears on the initial reading, and that is particularly true in most cases of legal reporting.
ADA Cases Are No Longer Unwelcome in Plaintiff Counsel's Offices
Lynne Seabrook was working as an assistant registrar for Upper Iowa University focusing on its Malaysia campus when she was terminated in February 2009. She felt that the termination was because she had been diagnosed with depression, post-traumatic stress disorder and anxiety.
Based on several conversations I have had in the last few months with attorneys who regularly represent employees, the most significant aspect of that scenario was that she was not terminated two months earlier. If she had been terminated in December, 2008, before the broad amendments to the Americans with Disabilites Act became effective, she might never have been the happy beneficiary of this headline from last week's WCF Courier, Former UIU employee awarded $1.1M by civil jury.
Many of those attorneys I have talked with said while they formerly turned away ADA cases because they were such summary judgment targets, they were now giving them a much closer look.
Headlines and jury awards like this, will do nothing to discourage that view.
Based on several conversations I have had in the last few months with attorneys who regularly represent employees, the most significant aspect of that scenario was that she was not terminated two months earlier. If she had been terminated in December, 2008, before the broad amendments to the Americans with Disabilites Act became effective, she might never have been the happy beneficiary of this headline from last week's WCF Courier, Former UIU employee awarded $1.1M by civil jury.
Many of those attorneys I have talked with said while they formerly turned away ADA cases because they were such summary judgment targets, they were now giving them a much closer look.
Headlines and jury awards like this, will do nothing to discourage that view.
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:
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:
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.
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.
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:
See, Kansas City faces $2.66M discrimination verdict.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.
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.
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
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.
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.
2011 --- the Year of the Non-minority?
Predicting what a new year will bring is a time honored tradition, but much like resolutions, most predictions rarely last longer than the first flip of the calendar. So rather than a long list, let me just start with one thing that I am guessing we might see, more cases where what might be thought to be "non-minority" employees are claiming that they have been treated differently because of their race.
One example of such a case comes from Peter Thompson's Maine Employment Lawyer's Blog, Can an employer fire a white employee for using the n-word if it lets black employees say it?. The employee in question was a news broadcaster at Fox 29 in Philadelphia before he was fired for using the n-word, while black employees were not disciplined for their use. According to Thompson's blog post,
The case was brought by a white benefits manager who had an altercation with his Hispanic supervisor. The company fired both. The employee's lawyer, John Wenke, argued that:
Two cases are hardly a trend, but they are enough to get one's attention.
One example of such a case comes from Peter Thompson's Maine Employment Lawyer's Blog, Can an employer fire a white employee for using the n-word if it lets black employees say it?. The employee in question was a news broadcaster at Fox 29 in Philadelphia before he was fired for using the n-word, while black employees were not disciplined for their use. According to Thompson's blog post,
District Judge R. Barclay Surrick's 36 page opinion is a worthwhile read not only for the factual background, but for the complexity of the legal issues (which also includes a discussion of a cat's paw theory). Turning to the central issue he noted:Fox 29 argues that Mr. Burlington's comparison between his use of the n-word and black employees' use of the n-word ignores the fact that his use of the n-word offended some black employees; whereas no one took offense when the black employees used the n-word.
In El Paso, right before Christmas, a jury returned a verdict in a case that also seems to make the point. The Odessa American headline over an AP story told the story, Anglo worker wins discrimination suit.We begin by addressing an issue that does not appear to have been decided by the federal courts: can an employer be held liable under Title VII for enforcing or condoning the social norm that it is acceptable for African Americans to say “nigger” but not whites? ...Historically, African Americans’ use of the word has been ironic, satirical, or even affectionate. Id. at 28-31. Too often, however, the word has been used by whites as a tool to belittle, oppress, or dehumanize African Americans. When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it. ...Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans. See McDonnell Douglas, 411 U.S. at 800 (stating that the purpose of Title VII was “to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens”). To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a “good” race-based social norm that justifies a departure from the text of Title VII. Neither the text of Title VII, the legislative history, nor the caselaw permits such a departure from Title VII’s command that employers refrain from “discriminat[ing] against any individual . . . because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1).
The case was brought by a white benefits manager who had an altercation with his Hispanic supervisor. The company fired both. The employee's lawyer, John Wenke, argued that:
The company feared the human-resources manager, who is Hispanic, would file a discrimination lawsuit if fired, so company officials fired both Duncan and the manager. Wenke claimed the company feared the human-resources manager, who is Hispanic, would file a discrimination lawsuit if fired, so company officials fired both Duncan and the manager.The jury apparently agreed, returning a $5.8 million verdict.
Two cases are hardly a trend, but they are enough to get one's attention.
A SAD Story In So Many Very Different Ways
Commenting on lawsuits based on newspaper stories is risky business. I do it frequently and I probably should remind myself and those who read this blog of the dangers more often. It is not because newspaper reporters are incompetent or that they are not trying to do a good job, it is just that reporting a lawsuit is a very complicated piece of work that requires far more time than is available or really necessary to get some of the high points, which is about the best one can reasonably hope for. So the real question is whether or not the lack of depth which is almost inevitable, prevents even a glimpse of the why something happened, as opposed to just the results.
I say all of this based purely on my own experience. In the relatively few cases I have had which have been the subject of much publicity, I can accurately say that the stories often were less than adequate in portraying reality. The most obvious was a six week trial in a smaller Texas city which at the time had two newspapers. In most common terms, one "was for the plaintiff" and one "was for the defendant." Each day for most of the six weeks and even leading up to it, the story was the front page headline on both papers and was quite detailed, frequently running over to multiple inside pages. A neutral observer might fairly have wondered if they were even reporting on the same case. And although I was certainly not neutral, I did know what was going on and would have to admit that neither was very close to really expressing it.
Which brings me, long way round so to speak, to the report in Eau Claire Leader Telegram of Tuesday's verdict in a Madison, Wisconsin trial of a teacher's disability claim. Former Somerset teacher wins $2 million lawsuit.
If the newspaper report is accurate (see above) then all it would have taken to accommodate Renae Ekstrand's disability, depression caused by Seasonal Affective Disorder, would have been allowing her to switch classrooms to one with a window. An accommodation that another teacher would have been willing to make.
The fact that such a simple thing didn't happen, makes me think there is much more to this story.
In fact, we know there is because this case had an appellate history before going to trial. First, a district court granted summary judgment for the school district. That was partially reversed by the 7th Circuit, which rejected Ekstrand's constructive discharge claim, but sent the failure to accommodate claim back for trial, presciently holding that "we disagree with the district court that no reasonable jury could find in favor of Ekstrand's failure-to-accommodate claim."
But even in sending that claim back to trial, Judge Bauer, who authored the court's opinion offered this:
So it is easy to see why this case went to trial.
Still, the bottom line result is the same. A jury didn't like what the school district did and let it know with its $2 million plus verdict. The reporter did catch, which many don't, the distinction between verdict and ultimate recovery noting that under the ADA it would be greatly reduced by the statutory damage caps.
When I started this post, I had intended to offer my thoughts on why it is that so many MDV's involve public sector defendants, but having rambled on about the difficulties of newspaper reporting, that subject is best saved for another day.
Unfortunately, I doubt that I shall have to wait long for the opportunity.
I say all of this based purely on my own experience. In the relatively few cases I have had which have been the subject of much publicity, I can accurately say that the stories often were less than adequate in portraying reality. The most obvious was a six week trial in a smaller Texas city which at the time had two newspapers. In most common terms, one "was for the plaintiff" and one "was for the defendant." Each day for most of the six weeks and even leading up to it, the story was the front page headline on both papers and was quite detailed, frequently running over to multiple inside pages. A neutral observer might fairly have wondered if they were even reporting on the same case. And although I was certainly not neutral, I did know what was going on and would have to admit that neither was very close to really expressing it.
Which brings me, long way round so to speak, to the report in Eau Claire Leader Telegram of Tuesday's verdict in a Madison, Wisconsin trial of a teacher's disability claim. Former Somerset teacher wins $2 million lawsuit.
If the newspaper report is accurate (see above) then all it would have taken to accommodate Renae Ekstrand's disability, depression caused by Seasonal Affective Disorder, would have been allowing her to switch classrooms to one with a window. An accommodation that another teacher would have been willing to make.
The fact that such a simple thing didn't happen, makes me think there is much more to this story.
In fact, we know there is because this case had an appellate history before going to trial. First, a district court granted summary judgment for the school district. That was partially reversed by the 7th Circuit, which rejected Ekstrand's constructive discharge claim, but sent the failure to accommodate claim back for trial, presciently holding that "we disagree with the district court that no reasonable jury could find in favor of Ekstrand's failure-to-accommodate claim."
But even in sending that claim back to trial, Judge Bauer, who authored the court's opinion offered this:
Ekstrand v. School District of Somerset(7th Cir. 10/6/09).From the sparse record in this case I assume that the School District of Somerset has high standards. Its Web site proclaims its motto: Learning Today to Succeed Tomorrow. In a district like this, parents quite naturally take an interest in who is teaching their children. And I can't imagine that many parents would be too pleased to have their first-graders in a classroom taught by a teacher who, to quote the court's opinion, suffered from “fatigue, anxiety, hypervigilance, tearfulness, racing thoughts, and trouble organizing tasks” plus “inability to concentrate ․ retrieve words, make decisions ․ focus on the needs of her students ․ hypersomnia ․ panic attacks, uncontrollable crying, inability to eat, and thoughts of suicide” in the fall of 2005. While I can imagine that an employer like UPS might be able to accommodate a delivery person with these kind of issues, I have a hard time understanding how a school district could do the same for a first-grade teacher. This makes me wonder if Ms. Ekstrand, in the context of teaching, could ever establish that she was a “qualified individual with a disability” under the ADA in the fall of 2005 or that an accommodation that would be necessary to ameliorate her condition would be “reasonable.” This issue deserves, I suggest, a close look on remand.
So it is easy to see why this case went to trial.
Still, the bottom line result is the same. A jury didn't like what the school district did and let it know with its $2 million plus verdict. The reporter did catch, which many don't, the distinction between verdict and ultimate recovery noting that under the ADA it would be greatly reduced by the statutory damage caps.
When I started this post, I had intended to offer my thoughts on why it is that so many MDV's involve public sector defendants, but having rambled on about the difficulties of newspaper reporting, that subject is best saved for another day.
Unfortunately, I doubt that I shall have to wait long for the opportunity.
If You Have a Choice, Would You Bifurcate Punitive Damages?
That was a question I was discussing with a colleague Friday just before we gave a seminar presentation on Things that Employers Do to Make Juries Mad, and Pay for it with Big Verdicts. Fortunately in our case it was purely hypothetical.
But I was reminded of it when I saw today's report of a follow up punitive damage award of $4.8 million, after an earlier award of $3.4 million in compensatory damages. See, Former Rite Aid Employee Wins $4.8 Million Punitive Damages Award.
The award to Maria C. Martinez came in a disability and retaliation case, with the retaliation following her complaint that she had been sexually harassed.
The Beverly Hills Courier story says the defense counsel urged the jury not to award punitive damages, saying they "had already sent the chain store a strong message with the compensatory award." The sad fact is that is pretty much all there is to say.
In Texas state courts, the defendant gets to make the election. Unless there are strong and unique reasons not to, I opt against bifurcation. Basically, I don't want to be in the position of the defense attorney, having to come back after the jury has already hammered you, and your message is "now we get it." A hard sell when you have pushed hard to win on liability.
The clearest benefit is that you get to keep out the net worth of the company in the trial on the merits, but unless it is a stealth company, most jurors know that you are big.
I don't think that small benefit comes close to the cost of losing the opportunity of having it all settled in one bite, where if you have any jurors on your side, they probably have the best opportunity to effect a reasonable compromise.
And another factor I had not really considered is the anger of the jury. Sure, they are angry with you, because they found against you, including the issue, usually some sort of malice, that will justify punitive damages. But it's not that anger I am talking about.
It is the anger that they had to come back and do it again. Since jurors are not told about the possibility of punitive damages (at least in Texas), they are not aware when they answer that magical question a certain way they have just insured another day or two of jury service. Not exactly something that most of them are excited about.
Maybe that's why it only took one-half hour of deliberations to more than double the amount awarded.
But I was reminded of it when I saw today's report of a follow up punitive damage award of $4.8 million, after an earlier award of $3.4 million in compensatory damages. See, Former Rite Aid Employee Wins $4.8 Million Punitive Damages Award.
The award to Maria C. Martinez came in a disability and retaliation case, with the retaliation following her complaint that she had been sexually harassed.
The Beverly Hills Courier story says the defense counsel urged the jury not to award punitive damages, saying they "had already sent the chain store a strong message with the compensatory award." The sad fact is that is pretty much all there is to say.
In Texas state courts, the defendant gets to make the election. Unless there are strong and unique reasons not to, I opt against bifurcation. Basically, I don't want to be in the position of the defense attorney, having to come back after the jury has already hammered you, and your message is "now we get it." A hard sell when you have pushed hard to win on liability.
The clearest benefit is that you get to keep out the net worth of the company in the trial on the merits, but unless it is a stealth company, most jurors know that you are big.
I don't think that small benefit comes close to the cost of losing the opportunity of having it all settled in one bite, where if you have any jurors on your side, they probably have the best opportunity to effect a reasonable compromise.
And another factor I had not really considered is the anger of the jury. Sure, they are angry with you, because they found against you, including the issue, usually some sort of malice, that will justify punitive damages. But it's not that anger I am talking about.
It is the anger that they had to come back and do it again. Since jurors are not told about the possibility of punitive damages (at least in Texas), they are not aware when they answer that magical question a certain way they have just insured another day or two of jury service. Not exactly something that most of them are excited about.
Maybe that's why it only took one-half hour of deliberations to more than double the amount awarded.
Dealing a $2 Million Dollar Verdict in the California Wine Country
Sexual comments and jokes, including a Levitra pen that apparently grows in length, followed by a complaint with no follow up and then a termination were what a Sonoma County jury apparently believed was the hand Shannen De La Cruz , a minimum wage card dealer, had been dealt. $2 million harrassment verdict against Petaluma card room
Although it is easy to imagine how the comments contained in the newspaper story could have been made and taken by everyone as funny, it is equally clear that as it came across in the court room, the jury was offended, not amused.
One factor that certainly did not help the company was the testimony of four other women, including one who had settled her own case. Making that testimony probably even more powerful, she was the human resources chief to whom De La Cruz had reported the harassment. The unresolved issue of how much "me too" evidence should be admitted is an on-going danger of these types of cases.
Although with $5 million year in revenues it's hard to think of the casino on the receiving end of the jury verdict as a really small business, it is certainly no colossus. And what would tend to get almost any small business owner's attention is that the jury verdict amounts to 2/3 of the company's net worth.
Now as I repeatedly mention in reports of MDV's, there is a long way between jury verdict and payment and it is highly likely that any amount ultimately paid, if any, will be considerably less. But that a jury knowing the employee's financial net worth, felt it appropriate to give 2/3 of it to one ex-employee, has to be a sobering thought when contemplating placing one's fate in the hands of a jury.
Although it is easy to imagine how the comments contained in the newspaper story could have been made and taken by everyone as funny, it is equally clear that as it came across in the court room, the jury was offended, not amused.
One factor that certainly did not help the company was the testimony of four other women, including one who had settled her own case. Making that testimony probably even more powerful, she was the human resources chief to whom De La Cruz had reported the harassment. The unresolved issue of how much "me too" evidence should be admitted is an on-going danger of these types of cases.
Although with $5 million year in revenues it's hard to think of the casino on the receiving end of the jury verdict as a really small business, it is certainly no colossus. And what would tend to get almost any small business owner's attention is that the jury verdict amounts to 2/3 of the company's net worth.
Now as I repeatedly mention in reports of MDV's, there is a long way between jury verdict and payment and it is highly likely that any amount ultimately paid, if any, will be considerably less. But that a jury knowing the employee's financial net worth, felt it appropriate to give 2/3 of it to one ex-employee, has to be a sobering thought when contemplating placing one's fate in the hands of a jury.
The Difference Between Cloth and Leather Gloves? Just Over a Million Dollars
At least that is the thought one might take from a jury verdict at the end of May in Maine state court. As reported by Michael Afthim's counsel, Peter Thompson and Associates in their blog, Maine Employment Lawyer, his complaints about the working conditions of the men he supervised led to his termination and subsequent suit under the Main Whistleblowers' Protection Act.
According to his counsel:
A year earlier, the Maine Human Rights Commission had passed on filing a lawsuit in the case. See Commission Meeting Minutes of June 29, 2009. Although I am not sure of the significance since I don't know about Maine's process, apparently there had been no written objection filed to the investigator's report. Commission Meeting Minutes of April 13, 2009.
With the current popularity of whistleblowing in legislatures including Congress, and quite frequently with juries, this is a story that may frequently be repeated.
According to his counsel:
CUMBERLAND COUNTY MAINE JURY AWARDS WHISTLEBLOWER $1,015,000 IN DAMAGES.Mr. Afthim became concerned about a number of safety issues in the warehouse that he ran including the lack of ventilation, the company's decision to use cheaper cotton gloves instead of splinter resistant leather gloves, and the insufficient staffing on the second shift. Mr. Afthim noted that the ventilation was so poor in the warehouse that his employees were inhaling significant amounts of dust and dirt. Mr. Afthim made multiple reports and complaints to ALR's management about the ventilation issue but ALR did nothing. Mr. Afthim also noted that the company's switch to cotton gloves from leather gloves was leading to significant splinters for his employees who spent their days constructing and repairing wooden pallets. Mr. Afthim also brought this concern to ALR without an adequate response. Mr. Afthim then noticed that due to understaffing that the workers on the second shift were rushing to keep up with their duties and he became very concerned that this would inevitably lead to a serious injury such as a fall or an accident with the fork lift.
A year earlier, the Maine Human Rights Commission had passed on filing a lawsuit in the case. See Commission Meeting Minutes of June 29, 2009. Although I am not sure of the significance since I don't know about Maine's process, apparently there had been no written objection filed to the investigator's report. Commission Meeting Minutes of April 13, 2009.
With the current popularity of whistleblowing in legislatures including Congress, and quite frequently with juries, this is a story that may frequently be repeated.
As ENDA Lingers in Congress, a MDV in Maine
Just recently I was having what is a frequent conversation about what I do for a living, basically -- how interesting it is. And how although I am now 35 years into the practice I am still amazed at the new situations and the complexity of issues that I see, or as in this case read about.
And this one really does not even qualify very high on an unusual scale, except that it does reflect how often employers have to battle human nature.
The facts leading up to a $1,047,000 verdict from a Maine jury for Edward Russell are apparently these: Russell had filled in at least four times as General Manager for Express Jet at the Portland airport when the position was vacant. When he applied for the position on a permanent basis and did not get it, he sued arguing it was because he was gay.
So far, straight enough (no pun intended). The complicating factor is that in 2003-04 there had been a complaint from three female employees who had unsuccessfully applied for an open supervisory position. At the time, all of the Express Jet managers at the facility were gay men. The women complained that the gay general manager would only hire other gay men.
The theory of the case for the plaintiff -- the company did not want another gay man in the position. Toss in a few untoward comments and it all ends up to $1 million dollar plus verdict, which as the article notes will be reduced by some amount due to damage caps. See, Man wins gay discrimination suit, from the Portland Press Herald.
Discrimination is of course an individual act, and if his sexual orientation was the reason for his not being promoted, Russell clearly was entitled to recover.
But before one gets all righteous about how the wrong the company was, it is easy to imagine a circumstance, where an employer could, justifiably or not, be saying to themselves -- you're damned if you do, and you're damned if you don't.
I said my job was interesting, I never said it was easy. Each piece of legislation, valid as it may be, just makes it more so.
And this one really does not even qualify very high on an unusual scale, except that it does reflect how often employers have to battle human nature.
The facts leading up to a $1,047,000 verdict from a Maine jury for Edward Russell are apparently these: Russell had filled in at least four times as General Manager for Express Jet at the Portland airport when the position was vacant. When he applied for the position on a permanent basis and did not get it, he sued arguing it was because he was gay.
So far, straight enough (no pun intended). The complicating factor is that in 2003-04 there had been a complaint from three female employees who had unsuccessfully applied for an open supervisory position. At the time, all of the Express Jet managers at the facility were gay men. The women complained that the gay general manager would only hire other gay men.
The theory of the case for the plaintiff -- the company did not want another gay man in the position. Toss in a few untoward comments and it all ends up to $1 million dollar plus verdict, which as the article notes will be reduced by some amount due to damage caps. See, Man wins gay discrimination suit, from the Portland Press Herald.
Discrimination is of course an individual act, and if his sexual orientation was the reason for his not being promoted, Russell clearly was entitled to recover.
But before one gets all righteous about how the wrong the company was, it is easy to imagine a circumstance, where an employer could, justifiably or not, be saying to themselves -- you're damned if you do, and you're damned if you don't.
I said my job was interesting, I never said it was easy. Each piece of legislation, valid as it may be, just makes it more so.
When "inside" Witnesses Support the Other Side -- Recipe for an MDV
In a speech I have given about trying employment law suits, one of the first points is that not all lawsuits should be tried. And one of the things that would make me look twice is if there were a key witness, who appeared to have really good inside knowlege, who is not supporting my story.
That seemed to be what happened in the case of an Egyptian born Muslim doctor, who was supported by his immediate supervisor, but claimed discrimination and retaliation from another doctor. See, Medical center ordered to pay Egyptian-born doctor $3.6 million for discrimination. (Actually the headline is ahead of itself as the jury verdict was just returned last Wednesday in federal court in Dallas and the presiding judge has yet to enter a judgment.)
The defendant was the prestigious Texas Southwestern Medical Center. It apparently staffed Parkland's Hospital's AID Clinic, which is where Dr. Naiel Nassar worked. The key witness was his direct supervisor at the AIDS clinic who said that statements made by the head of his Department at Southwestern described a "disconnect between [her] statements and the reality of Dr. Nassar's work." He also at least implied there was a religious bias, since the witness noted the head of the department made it clear that she was Jewish and thought he (the witness) was as well (he was Christian.)
To compound problems, after Dr. Nassar resigned, the same witness said he recommeneded a Pakistani born Muslim to replace Dr. Nassar but the same director "offered the man the job at an unattractively low salary and ultimately hired a less qualified white doctor for more money."
Obviously, that's one side of the story and a bit of the other was the medical school's statement after the verdict that the record introduced at trial showed letters of support and recommendations for Dr. Nassar from the same director of his department being accused of discrimination and retaliation.
Thinking the evidence will support a view that your main was actually a supporter of the Plaintiff, not someone who discriminated against them, could seem fool hardy, but is easier to understand since Dr. Nasser was not fired, but resigned.
Unfotunately, it is hard for both stories to co-exist no matter how they are spun. It might also be one where you would anticipate that an "insider" witness' testimony might carry some additional weight.
If the defendant is the one who has not accurately predicted the view that a jury will take when faced with a binary choice, the result far too often is a large adverse award.
In a case where the positions are diametrically opposed, the jury that rules against your position has found you not only discriminated, but also that you have lied to them about it. An unfortunate double bind, that any employment lawyer practicing on the defense side should know and fear.
That seemed to be what happened in the case of an Egyptian born Muslim doctor, who was supported by his immediate supervisor, but claimed discrimination and retaliation from another doctor. See, Medical center ordered to pay Egyptian-born doctor $3.6 million for discrimination. (Actually the headline is ahead of itself as the jury verdict was just returned last Wednesday in federal court in Dallas and the presiding judge has yet to enter a judgment.)
The defendant was the prestigious Texas Southwestern Medical Center. It apparently staffed Parkland's Hospital's AID Clinic, which is where Dr. Naiel Nassar worked. The key witness was his direct supervisor at the AIDS clinic who said that statements made by the head of his Department at Southwestern described a "disconnect between [her] statements and the reality of Dr. Nassar's work." He also at least implied there was a religious bias, since the witness noted the head of the department made it clear that she was Jewish and thought he (the witness) was as well (he was Christian.)
To compound problems, after Dr. Nassar resigned, the same witness said he recommeneded a Pakistani born Muslim to replace Dr. Nassar but the same director "offered the man the job at an unattractively low salary and ultimately hired a less qualified white doctor for more money."
Obviously, that's one side of the story and a bit of the other was the medical school's statement after the verdict that the record introduced at trial showed letters of support and recommendations for Dr. Nassar from the same director of his department being accused of discrimination and retaliation.
Thinking the evidence will support a view that your main was actually a supporter of the Plaintiff, not someone who discriminated against them, could seem fool hardy, but is easier to understand since Dr. Nasser was not fired, but resigned.
Unfotunately, it is hard for both stories to co-exist no matter how they are spun. It might also be one where you would anticipate that an "insider" witness' testimony might carry some additional weight.
If the defendant is the one who has not accurately predicted the view that a jury will take when faced with a binary choice, the result far too often is a large adverse award.
In a case where the positions are diametrically opposed, the jury that rules against your position has found you not only discriminated, but also that you have lied to them about it. An unfortunate double bind, that any employment lawyer practicing on the defense side should know and fear.
The Note From the Jury That You Didn't Want
At least if you are on the defense side: Novartis Jury Asks About 'Range' of Damages . The note comes in a sex discrimination case brought by twelve named plaintiffs againt Novartis.
Although it does indicate that the jury is beyond liability, any one who has been waiting (im)patiently in a court room while a jury deliberates, knows that it is quite difficult to tell what is going on based on just a single request.
Some of it depends on the wording of the charge. If the questions are not predicated, then a damage question may or may not mean anything on damages.
And you never know, the range they could be contemplating could be from zero to $1,000. Or not.
In any event, although not that easy to do, the basic answer is to wait and see.
Updated 4:44 p.m. CDST: Yep, it was not a particularly good sign. According to the report from Bloomberg, Novartis Must Pay Punitive Damages in Sex-bias Case, $3.4 million for the 12 named plaintiffs. This case has a lot of procedural steps still to resolve including a punitive damage hearing which I think will be tomorrow, and a second finding of compensatory damages on behalf of the class. Where in those steps the appeal, which Novartis has already promised, comes I don't know.
Updated May 25, 2010S: A little late to the party on reporting this, but by now everyone is probably well aware that the punitive damage award was $250 million. The NYT story is here. As it notes, the company still has to deal with claims for compensatory damages from almost 6,000 class members. Bloomberg Businessweek quotes the plaintiffs' counsel as saying they believe that figure could ultimately reach close to one billion dollars.
Unlike many trials, the actual tactics and trying of this lawsuit have gotten a fair amount of attention and press, including a link to the defense counsel's final argument at the liability phase. See for example, I’d Like Some Sex With That Drug Order, by Ann Woolner at Bloomberg.com and ‘Beyond Tone Deaf’: A Scathing Look at Novartis’s Defense Strategy, from the WSJ law blog.
I don't have a category for multi-million dollar verdicts, and of course this is a class case, but still I think it clearly belongs in the MDV category.
Although it should go without saying, these are at this point verdicts, and there are still many hurdles before Novartis will be foreced to pay the first dollar to any of the named plaintiffs or class members.
Although it does indicate that the jury is beyond liability, any one who has been waiting (im)patiently in a court room while a jury deliberates, knows that it is quite difficult to tell what is going on based on just a single request.
Some of it depends on the wording of the charge. If the questions are not predicated, then a damage question may or may not mean anything on damages.
And you never know, the range they could be contemplating could be from zero to $1,000. Or not.
In any event, although not that easy to do, the basic answer is to wait and see.
Updated 4:44 p.m. CDST: Yep, it was not a particularly good sign. According to the report from Bloomberg, Novartis Must Pay Punitive Damages in Sex-bias Case, $3.4 million for the 12 named plaintiffs. This case has a lot of procedural steps still to resolve including a punitive damage hearing which I think will be tomorrow, and a second finding of compensatory damages on behalf of the class. Where in those steps the appeal, which Novartis has already promised, comes I don't know.
Updated May 25, 2010S: A little late to the party on reporting this, but by now everyone is probably well aware that the punitive damage award was $250 million. The NYT story is here. As it notes, the company still has to deal with claims for compensatory damages from almost 6,000 class members. Bloomberg Businessweek quotes the plaintiffs' counsel as saying they believe that figure could ultimately reach close to one billion dollars.
Unlike many trials, the actual tactics and trying of this lawsuit have gotten a fair amount of attention and press, including a link to the defense counsel's final argument at the liability phase. See for example, I’d Like Some Sex With That Drug Order, by Ann Woolner at Bloomberg.com and ‘Beyond Tone Deaf’: A Scathing Look at Novartis’s Defense Strategy, from the WSJ law blog.
I don't have a category for multi-million dollar verdicts, and of course this is a class case, but still I think it clearly belongs in the MDV category.
Although it should go without saying, these are at this point verdicts, and there are still many hurdles before Novartis will be foreced to pay the first dollar to any of the named plaintiffs or class members.
MDV with a Twist: Union v. Union
A San Francisco jury has just returned a verdict in a lawsuit brought by the SEIU against a rival union, the National Union of Healthcare Workers. This is the next step in what has been a long battle between the SEIU and the faction that that broke away from it to form a new union. For some of the background, check out A Battle for Labor's Future by Dan Clawson which was published in Z Magazine in June, 2009.
BeyondChron writer Randy Shaw, in his own words, "rushed right from the courtroom to get out this story, and some of my numbers on the verdicts may be slightly off," on story that is headlined, BREAKING: SEIU Wins $1.5 Million Verdict in Trial Against NUHW.
I have not followed this internecine fight, but from the tone of Shaw's article it seems he is taking the NUHW side. Noting that the $1.5 million was far less than the $25 million SEIU sought, he also takes the view that the suit had four purposes and perhaps the strongest reason was merely personal. He thinks the suit failed in that goal. With respect to the other three goals he attributes to the SEIU for this litigation, he had this to say:
Update (4.12.10): Thanks to Rick Bales at Workplace Prof Blog for picking up that Randy Shaw has revised his story to indicate that the collectible verdict will be not quite 3/4 of an MDV as reflected in his revised story, which the above link should still reach. Of course, verdicts are just a jury's answer and the real number doesn't appear until the Court enters a judgment after consideration post-trial motions.
BeyondChron writer Randy Shaw, in his own words, "rushed right from the courtroom to get out this story, and some of my numbers on the verdicts may be slightly off," on story that is headlined, BREAKING: SEIU Wins $1.5 Million Verdict in Trial Against NUHW.
I have not followed this internecine fight, but from the tone of Shaw's article it seems he is taking the NUHW side. Noting that the $1.5 million was far less than the $25 million SEIU sought, he also takes the view that the suit had four purposes and perhaps the strongest reason was merely personal. He thinks the suit failed in that goal. With respect to the other three goals he attributes to the SEIU for this litigation, he had this to say:
His view of the real winner from the case is also interesting:The first three [goals] were to deplete NUHW resources by forcing its leaders to spend time and money defending themselves, send a message to hospital and home care workers facing elections that NUHW cannot not be trusted, and turn the Rosselli leadership team into a cautionary example for other SEIU locals that are considering publicly questioning President Stern’s agenda. None of these goals were achieved by the verdict.First, NUHW has far more organizing resources today than at any point since the trusteeship began. NUHW’s organizing was not impeded by the trial. Second, the verdicts say nothing about workers not being able to trust NUHW. To the contrary, the verdicts punished former SEIU-UHW leaders for providing too much loyalty to members. Had NUHW leaders gone along with the transfer of home health care workers out of the local without a vote, the trusteeship would not have been imposed and many would not have jury awards against them today.Significantly, Sal Rosselli, long described by SEIU as the leader who single-handedly pushed SEIU-UHW over the edge, did not get an award much larger against him than the others (the award against Rosselli was $70,600, Borsos, Lewis, Martin was $66,600, Goldstein $73,850, with Cornejo and others at $36,600. Paul Kumar won a defense verdict). Third, as for the lawsuit deterring internal SEIU criticism, since the lawsuit began two major SEIU locals -- 888 in Boston and 1021 in the San Francisco Bay Area -- have elected reform slates.
Rarely do parties say nice things about each other during the heat of litigation and it does seem quite likely that testimony taken from this trial is apt to appear in future union campaigns.The chief beneficiary of this trial is likely to be hospital owners USC University Hospital in East Los Angeles, who will use the jury verdict as part of their ongoing strategy to convince workers to vote for “no union.” Management will not only make the case that an independent jury has confirmed that workers cannot trust NUHW’s leadership to protect members, but will also argue that workers should avoid being caught in the middle of inter-union disputes so rancorous that they end up in federal court.
Update (4.12.10): Thanks to Rick Bales at Workplace Prof Blog for picking up that Randy Shaw has revised his story to indicate that the collectible verdict will be not quite 3/4 of an MDV as reflected in his revised story, which the above link should still reach. Of course, verdicts are just a jury's answer and the real number doesn't appear until the Court enters a judgment after consideration post-trial motions.
Name, Rank and Serial Number: A Good Policy, But You Have to Follow It
That's the message I would take from the latest MDV report. Credit Agricole was sued by a former employee, William Raedle, who alleged that his former supervisor cost him a job as a financial analyst when he told Raedle's potential employer that he had "mental issues" and what the BusinessWeekarticle refers to as "other disparaging remarks," including difficulty working with others. Credit Agricole Loses Trial Over Poor Job Reference.
The net result a $2.4 million dollar verdict from a New York federal jury that deliberated for just 5 hours following a week long trial.
Of course, if anyone knows that a verdict is not the same as money it is Mr. Raedle, as an earlier trial had also resulted in a favorable verdict, but it had been set aside by the District Judge, who said allowing it to stand would result in a "serious injustice".
It is unclear from the article exactly what the what the legal cause of action that was the basis of Raedle's complaint. Although in this situation it is often defamation, here it appears it could have been tortious interference with a potential business relationship.
What is also clear is that Credit Agricole, like many companies, had a policy that was only to confirm that a person had been employed there, without giving a performance evaluation.
Writing a policy is rarely the hard part; implementation, every day by every one, is. Some days, it is a million dollar problem.
Update 4.16.10: As a good illustration that a jury verdict is just a step along the way to what ultimately an employer will have to pay and what an employee and their attorney will actually receive, the trial court this week granted judgment as a matter of law to the defendants on the punitive damage award, striking $800,000. However, the other side of the story, the Court has not ruled on plaintiff's request for approximately $609,000 in costs and attorneys fees. I would be surprised if there are not other motions pending by the defendant that could ultimately impact other portions of the award as well. And, of course when the trial court finally enters its judgment, there's always the appeal. See $2.4M Award For Ex-Credit Agricole Analyst Trimmed, at Employment Law 360. ($)
The net result a $2.4 million dollar verdict from a New York federal jury that deliberated for just 5 hours following a week long trial.
Of course, if anyone knows that a verdict is not the same as money it is Mr. Raedle, as an earlier trial had also resulted in a favorable verdict, but it had been set aside by the District Judge, who said allowing it to stand would result in a "serious injustice".
It is unclear from the article exactly what the what the legal cause of action that was the basis of Raedle's complaint. Although in this situation it is often defamation, here it appears it could have been tortious interference with a potential business relationship.
What is also clear is that Credit Agricole, like many companies, had a policy that was only to confirm that a person had been employed there, without giving a performance evaluation.
Writing a policy is rarely the hard part; implementation, every day by every one, is. Some days, it is a million dollar problem.
Update 4.16.10: As a good illustration that a jury verdict is just a step along the way to what ultimately an employer will have to pay and what an employee and their attorney will actually receive, the trial court this week granted judgment as a matter of law to the defendants on the punitive damage award, striking $800,000. However, the other side of the story, the Court has not ruled on plaintiff's request for approximately $609,000 in costs and attorneys fees. I would be surprised if there are not other motions pending by the defendant that could ultimately impact other portions of the award as well. And, of course when the trial court finally enters its judgment, there's always the appeal. See $2.4M Award For Ex-Credit Agricole Analyst Trimmed, at Employment Law 360. ($)
Ohio MDV for Disability, Race, FMLA and Retaliation
Covering about as many bases as you can, Charlene Thirion, a former employee of Bedford Heights, Ohio sued the village over her termination saying it was because of her race, disability (anxiety and depression according to the news article), and retaliation when she protested against the disability and race discrimination. And just in case, there was also an FMLA violation.
The net result, a pretty good jury verdict for her, Twinsburg woman wins $1.83M verdict against Bedford Heights.
Update 3.17.10: Peter Krause's story in the Cleveland Plain Dealer gives some more detail about the trial and allegations, including making it clear that this was a case of "reverse discrimination." Thirion, who is white, alleged that the Mayor and a City director, both of whom were black and the white city attorneys discriminated against her. In a slight twist on the cat's paw theory, plaintiff's counsel is quoted:
The net result, a pretty good jury verdict for her, Twinsburg woman wins $1.83M verdict against Bedford Heights.
Update 3.17.10: Peter Krause's story in the Cleveland Plain Dealer gives some more detail about the trial and allegations, including making it clear that this was a case of "reverse discrimination." Thirion, who is white, alleged that the Mayor and a City director, both of whom were black and the white city attorneys discriminated against her. In a slight twist on the cat's paw theory, plaintiff's counsel is quoted:
"We believe the attorneys were doing what the mayor directed them to do," said Thirion attorney Chris Thorman of Thorman & Hardin-Levine in Cleveland.
Caught in Between -- Another MDV
When you see this kind of headline, I Spy With My Little Eye... Hotel Baker Gets $3 Million from Starwood you know that it is no doubt a complicated story. That it came at the end of a more than three week jury trial in federal court in NYC, confirms that.
Moises Mendez, a baker had complained about being "bullied" (that word again) based on national origin and also some surgical scars. But as the article points out, it was not only the verbal taunts that led to the award, but also the fact that the hotel had installed a camera in the kitchen where he worked.
Mendez of course (and apparently the jury) saw it as spying on him. On the other hand, the hotel said the camera was “supposed to protect Mendez from harassment and was approved by his union.” Its hard from the limited reports to know what was really going on, but it is quite easy to see that this was not your usual situation.
And since I have not had the chance to point it out lately, a gentle chide to the headline writer, for "Gets $3 Million". Mendez has not received anything. What he has is a jury verdict, that still needs to go through a considerable process even before it becomes a judgment in favor of him. Even then, Mendez will not "get"anything, until the end the often long appellate process. To quote my former professor Pappy Jones (again), "there is no cash register at the back of the courtroom."
Update (3.11.10): Apparently, the statement that the union approved of the camera was retracted. See this update from the Daily News.
Moises Mendez, a baker had complained about being "bullied" (that word again) based on national origin and also some surgical scars. But as the article points out, it was not only the verbal taunts that led to the award, but also the fact that the hotel had installed a camera in the kitchen where he worked.
Mendez of course (and apparently the jury) saw it as spying on him. On the other hand, the hotel said the camera was “supposed to protect Mendez from harassment and was approved by his union.” Its hard from the limited reports to know what was really going on, but it is quite easy to see that this was not your usual situation.
And since I have not had the chance to point it out lately, a gentle chide to the headline writer, for "Gets $3 Million". Mendez has not received anything. What he has is a jury verdict, that still needs to go through a considerable process even before it becomes a judgment in favor of him. Even then, Mendez will not "get"anything, until the end the often long appellate process. To quote my former professor Pappy Jones (again), "there is no cash register at the back of the courtroom."
Update (3.11.10): Apparently, the statement that the union approved of the camera was retracted. See this update from the Daily News.
The Aftermath of a Supreme Court Decision: Another MDV
Cases that make it to the Supreme Court are important for the precedent they set and for most of us that's what we got in last January's decision in Crawford v. Metropolitan Government of Nashville. In fact, I said at the time, "certainly not the hardest case for the Supreme Court to decide, nor was the decision unexpected." Supreme Court Unaminous in Retaliation Case.
But there are also parties to Supreme Court cases that have a much more personal interest. When the Supreme Court reversed the 6th Circuit's decision affirmation of summary judgment against Vicky Crawford's retaliation claim, she no doubt was looking forward to her day in court.
She got it last week and today, the jury made it two January's in a row that were good for Crawford. Federal jury awards former Tenn. schools employee $1.5M for wrongful termination.
The Tennessean had some more information last Friday as the case was sent to the jury. Former Nashville worker's termination lawsuit go suit to jury. Crawford claimed that she was terminated for participating in a sexual harassment investigation, the employer said she was "once a good employee but her job performance had been slipping for some time and she was fired for poor performance."
The investigation was of the Employee Relations Director and according to court documents, Crawford after being assured that nothing would happen to her, told investigators the Director "would ask to see her breasts, grab his crotch saying, "You know what's up," and on one occasion pulled her head to his crotch."
One item reported in the earlier story is the sort of thing that you know can be problematic for an employer. The same HR office who assured Crawford of no retaliation. on the same day that she turned in her report on the investigation (finding there were no witnesses to the alleged harasser's behavior), also sent a letter to the company's internal audit department informing them of problems in the payroll department run by Crawford.
However, the employer had some powerful arguments as well. It was two months later that Crawford was put on administrative leave and she was not terminated until after an outside audit found serious problems, including 25 uncashed checks lying around her department.
And that's just what is available from the necessarily brief and abbreviated newspaper reports. If anyone needs a New Year's reminder that when a case goes to a jury anything can happen, consider it sent.
And, of course, Ms. Crawford whose termination was way back in 2003, may find that there is a difference between a verdict and a judgment, and of course there is always the possibility that the case is headed back on appeal.
But there are also parties to Supreme Court cases that have a much more personal interest. When the Supreme Court reversed the 6th Circuit's decision affirmation of summary judgment against Vicky Crawford's retaliation claim, she no doubt was looking forward to her day in court.
She got it last week and today, the jury made it two January's in a row that were good for Crawford. Federal jury awards former Tenn. schools employee $1.5M for wrongful termination.
The Tennessean had some more information last Friday as the case was sent to the jury. Former Nashville worker's termination lawsuit go suit to jury. Crawford claimed that she was terminated for participating in a sexual harassment investigation, the employer said she was "once a good employee but her job performance had been slipping for some time and she was fired for poor performance."
The investigation was of the Employee Relations Director and according to court documents, Crawford after being assured that nothing would happen to her, told investigators the Director "would ask to see her breasts, grab his crotch saying, "You know what's up," and on one occasion pulled her head to his crotch."
One item reported in the earlier story is the sort of thing that you know can be problematic for an employer. The same HR office who assured Crawford of no retaliation. on the same day that she turned in her report on the investigation (finding there were no witnesses to the alleged harasser's behavior), also sent a letter to the company's internal audit department informing them of problems in the payroll department run by Crawford.
However, the employer had some powerful arguments as well. It was two months later that Crawford was put on administrative leave and she was not terminated until after an outside audit found serious problems, including 25 uncashed checks lying around her department.
And that's just what is available from the necessarily brief and abbreviated newspaper reports. If anyone needs a New Year's reminder that when a case goes to a jury anything can happen, consider it sent.
And, of course, Ms. Crawford whose termination was way back in 2003, may find that there is a difference between a verdict and a judgment, and of course there is always the possibility that the case is headed back on appeal.
MDV the Malicious Prosecution Way
There are a myriad of ways that employers end up in front of a jury. One of the less frequent, but as seen by the result, no less dangerous, is a case for malicious prosecution. They usually arise like the facts in a federal court in Virginia last week. Clyde Bennett, a night shift foreman was fired and charged with grand larceny in connection with the embezzlement of computer equipment.
When that charge was later dropped, he filed a lawsuit against his former employer for malicious prosecution. According to the report from the Richmond Times Dispatch, the jury took less than half an hour to deliver its message. Jury awards $3.2 million to local trucking company employee.
Because the legal standards are relatively high, this verdict is likely to have a long way to go before it becomes a judgment that has to be paid. But it is a good reminder that any time one of the actions that an employer is considering is filing a criminal charge against an employee, that there is at least the potential for what at the time would seem preposterous -- that it could be the employer that ends up the defendant.
When that charge was later dropped, he filed a lawsuit against his former employer for malicious prosecution. According to the report from the Richmond Times Dispatch, the jury took less than half an hour to deliver its message. Jury awards $3.2 million to local trucking company employee.
Because the legal standards are relatively high, this verdict is likely to have a long way to go before it becomes a judgment that has to be paid. But it is a good reminder that any time one of the actions that an employer is considering is filing a criminal charge against an employee, that there is at least the potential for what at the time would seem preposterous -- that it could be the employer that ends up the defendant.
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