It's Not Always Nice in San Diego - $6 Million Sexual Harassment Verdict

Hot weather, which we are having in abundance this week in Texas, always makes me think of locales with year round moderate (at least compared to Texas) weather. San Diego is right up there. But it probably didn't seem so nice to ACADIA Pharmaceuticals, Inc. and 2 of its top executives this week who were on the wrong end of a $6 million dollar sexual harassment/retaliation verdict in a state court lawsuit brought by scientist (and ex-employee) Audry Scully. There are almost no details about the trial itself in the San Diego Tribune newsite story, Scientist wins sexual harassment suit against Acadia.

As a publicly traded company, ACADIA was issued its own release which noted that one of the executives was charged with sexual harassment and the other with retaliation. A deadly combination (my comment, not the company's.) The damage was described this way:

In connection with the verdict, the jury awarded compensatory damages in the aggregate amount of $3.9 million and punitive damages in the aggregate amount of $2.2 million against ACADIA. The jury also awarded punitive damages against Dr. Davis and Dr. Brann. ACADIA maintains employment practices liability insurance in the amount of $3 million, which may be used to offset a portion of the compensatory damages as well as fees and expenses incurred in connection with this litigation.

And of course:

ACADIA, Dr. Davis and Dr. Brann strongly disagree with, and do not believe that the facts support the verdict rendered. These parties intend to contest the verdict vigorously through all available legal recourse through the trial court and the appellate courts.

And may do so very successfully; still at least for awhile San Diego must not have seemed quite so hospitable.

Texas Supreme Court Adopts 5th Circuit's View of "Similarly Situated" in a Hangover Decision

In a case of first impression for Texas state courts, the Texas Supreme Court adopts the 5th Circuit rule of what an employee must show when bringing a discrimination claim based on differing disciplinary treatment. Reversing a trial verdict that had been affirmed at the Court of Appeals, the Court today held:

We have not previously considered what it means to be "similarly situated" in an employment discrimination context. The [Texas Commission on Human Rights Act] was expressly enacted to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." Tex. Labor Code § 21.001(1). Because "t]he Legislature intended to correlate state law with federal law in employment discrimination cases," we turn to analogous federal case law for guidance. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003); NME Hosp., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999). Employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct.To prove discrimination based on disparate discipline, the disciplined and undisciplined employees' misconduct must be of "comparable seriousness." Although "precise equivalence in culpability between employees is not the ultimate question," McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (1976), the Fifth Circuit has held that to prove discrimination based on disparate discipline, the plaintiff must usually show "that the misconduct for which [he] was discharged was nearly identical to that engaged in by a [female] employee whom [the company] retained." Smith v. Wal-Mart Stores, Inc., 891 F.2d 1177, 1180 (5th Cir. 1990) (quoting Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir. 1982)). [footnotes omitted]

Ysleta Independent School District v. Monnarez (Texas 8/26/05).

The disappointed plaintiffs were two former mechanics for the school district. While enjoying a night of drinks at a bar, in anticipation of what the morning might feel like, one mechanic asked his buddy to clock in for him the next morning if he didn't make it on time. As anticipated, he was late and his buddy clocked him in. Unfortunately, it must have been a worse hangover than expected as he never made it in all day. His buddy clocked him out at the end of the day so it appeared that he worked a full day even though he never showed up. Several days later both men went to their supervisor and confessed what they had done. After it was reported up the chain of command, a review committee recommended termination.

The two sued claiming gender discrimination, alleging that female employees in the same department had also punched in for each other and not been terminated. But the difference -

In each instance in which a female employee received a written warning, the employees involved appeared for work. Moreover, testimony at trial indicated that female employees occasionally clocked-in for one another merely for the sake of convenience. Thus, the District concludes that the nature and degree of the time card violations for which female employees received written or verbal reprimands cannot be compared to the present violations. We agree. There is no evidence that the time card violations by females included a conspiracy to conceal another employee's absence from work. Thus, even though the female employees worked in the same department and were subject to the same time clock rules, there is no evidence that their respective misconduct was of "comparable seriousness."

In this case it is a $500,000 difference -- the amount awarded to the two for back wages ($117,900), mental anguish ($350,000) and attorneys' fees ($30,000.)

Today's per curiam opinion contained the statement that "Justice Willett did not participate," a recognition that as of this week the Court is again at full strength and has a practitioner who specialized in labor and employment law before taking the bench. Wednesday, Don Willett, a former colleague when we were both at Haynes and Boone, became the 2nd lawyer with a labor and employment background to be appointed to the Court. Judge Xavier Rodriguez, now a United States District Judge in San Antonio was the first.

Unlike Judge Rodriguez who was a practicing labor and employment lawyer at the time of his appointment, Justice Willett had ventured into other areas, serving first as a policy advisor to then Governor Bush, followed by a tour of duty in the White House and Department of Justice before returning home to Texas where he was chief legal counsel to Texas Attorney General Greg Abbott. Even though a bit removed from his labor and employment law days, it will be good to again have a member of the Court with real world experience in an area that is an increasing part of the docket of the Texas state courts. Congratulations to Justice Willett.

What Do Benefits Cost? Check Out the Latest Study

Released this month is a study funded by the Small Business Administration, Office of Advocacy. The purpose:

This study examines the cost of the benefits that employers provide to their workers and how these costs vary with company size. It focuses on benefits that employers voluntarily provide: health insurance, private pension plans, paid vacation, and sick leave.

If you want to check out how your benefit costs stack up, check out Cost of Employee Benefits in Small and Large Businesses [pdf].

The Lawsuit of the Future? Born Again Christian Alleges Termination for Anti-Homosexual Article

Being an employer has never been easy, but in a world where personal communication on a wide spread basis is not only easy, but done daily by hundreds of thousands of individuals who are also often employees, and where there are increasingly hard-line positions on matters of politics, idealogy and religion, you know that conflicts are going to come and employers may often find themselves in the middle. Although looking at it solely from the outside, that may well be what happened in a case where a former Allstate employee alleges he was terminated for writing an essay "denouncing same-sex marriage and the 'destructive nature ... of the homosexual lifestyle.' " See the Chicago Tribune story, Did fiery essay get author fired?

J. Matt Barber says he was fired three days after his supervisors confronted him with his article, The Gay Agenda v. Family Values. The company says he was not fired for his off work expression of his personal views but because he used company "resources for his personal journalistic activities." His suit filed earlier this year in Chicago alleges his termination was religious discrimination.

While the facts and even the underlying legal basis are in dispute, what is not is that Allstate has been the recipient of what I am sure is unwanted attention based first on the article and then on Barber's termination. According to the Tribune story, the Human Rights Campaign, a gay and lesbian advocacy group in Washington, D.C., received complaints about the article and in turn asked Allstate whether it endorsed Barber's views. Following his termination, Barber's cause has been taken up by the American Family Association, which says its members have sent more than 246,000 emails to Allstate supporting Barber and demanding he be re-hired with backpay. Barber is represented by David Gibbs, III of the Florida-based Christian Law Association.

This volatile mix will only become more difficult if legislation that has been introduced for the last several Congresses by those on opposite ends of the political spectrum ever becomes a reality. See my earlier post, Workplace Religious Freedom Act - Consensus On Neither the Right Nor Left.

Update on Guns in Oklahoma

The folks over at the Workers Comp Insider have an update on the battle between some Oklahoma employers and recent legislation which prevents employers from barring employees from bringing guns to work (abeit that they have to be kept in their locked vehicles). Check out Guns at work, which has some great links to other stories, as a follow up to my earlier post, Who's Packing in the Car?

In response to WCI's request for employer's input, I can only speak as an employer's lawyer, but I am hard pressed to see any upside for an employer in this law. Violence at work is still, fortunately, not all that common. But it only takes once if it is at your place of business to make it the very most important thing in the world.

The Cost of a Complaint - $1.5 to the City of Honolulu

At least that is the amount that a federal jury decided painter Tom Sun should get after he claimed he was retaliated against for speaking out about the safety preparations for painting a city facility, the Blaisdell Center. Although he was not fired or suspended he alleged he was "written up, falsely accused of violence, denied medical leave and denied work." Hard to tell from the KITV 4 story, City Painter Awarded $1.5 Million in Federal Court, exactly what got the jury so upset.

But according to the story on the trial in yesterday's BNA Daily Labor Report ($ subscription required), the jury was impacted by the number of safety violations at the Blaisdell Center and the fact that children attending summer programs at the Center might have been endangered as well. The plaintiff's counsel, Venetia Carpenter-Asui, said she thought the jury wanted -- "to send a message to the City" -- words that should strike terror in any potential defendant still of the view that juries only decide on "the merits" viewed through a legal framework. Easy to see how it could happen here since the legal arguments were strong enough that summary judgment had been granted three years ago, although reversed on appeal.

If nothing else, the verdict, which will be appealed again, is a good reminder -- if anyone still needs one -- that retaliation cases, even when employees are not terminated, resonate with juries in a powerful and potentially expensive way.

$3 Million Award to Commerce Employee on Disability Claim

Been awhile since the last MDV report, but last Thursday a Washington D.C. jury returned a $3 million dollar verdict in favor of Lisa Bremer, formerly the FOIA officer for the Department of Commerce. She retired in 2003 after her supervisor ended an agreement that allowed her to work at home two days a week. She sued under the Rehabilitation Act of 1973 alleging disability discrimination. She was diagnosed in 1991 as having MS and uses a wheelchair. See the Washington Post story, Employee $300,000, Commerce $0.

It's not clear if the $300,000, [sic] was just an omission of the final three zeroes, or an acknowledgement that $300,000 is the limit for compensatory damages, not withstanding that the jury awarded ten times that. Yet another MDV where the defendant is a governmental agency.