It's Not Always Nice in San Diego - $6 Million Sexual Harassment Verdict
Posted
1:07 AM
by Michael Fox
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.
Labels: MDV
Texas Supreme Court Adopts 5th Circuit's View of "Similarly Situated" in a Hangover Decision
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.
What Do Benefits Cost? Check Out the Latest Study
The Lawsuit of the Future? Born Again Christian Alleges Termination for Anti-Homosexual Article
Update on Guns in Oklahoma
The Cost of a Complaint - $1.5 to the City of Honolulu
Labels: MDV
$3 Million Award to Commerce Employee on Disability Claim
Labels: MDV
Better Than Crying in Your Beer - Tell Your "Just Fired" Story Here
(Lack of) Beauty Is in the Eye of the Beholder - And Now a Protected Class?
Although I agree with S. Cotus that this is really only a retaliation case, the Court does make a statement that at least raises the possibility of "appearance" as a protected class, putting it this way: Labels: appearance
Statements in SS Disability Claim - Bars Age Claim Under TCHRA
New Appellate Right for Texas Payday Claims - Coming 9/1/05
Seinfeld Moment - Not Enough to Salvage $3 Million Jury Verdict
Labels: MDV
California Not Always Bad for Employers - No Individual Liability for Officers & Directors for Wage Claims
The Dog Days of August
A Tease of a Story - Does it Pay to Flirt?
Flirting at the office is not only taboo, but it could even take a toll on your financial future. Women who cross their legs provocatively, wear short skirts or massage a man's shoulders at work get fewer pay raises and promotions, according to Friday's USA Today. Does it pay to be a flirt? Report says no. Universities have a dual function to generate knowledge and to diffuse knowledge. The knowledge transferred in the classroom comes from scholarship, or it should come from scholarship. ... We are very, very engaged in doing research and the nature of the research we do can't help but impact what we do in the classroom.
$200,000 Attorneys' Fees Award to Defendant Washed Away - Not a Pretty Site For Anyone
Labels: attorneys fees
The Super Defense - "State Secrets" Trumps Title VII
Em ployees Paid Through 3rd Party Payroll Service Not Eligible Under ERISA Benefits Plan - 1st Cir.
One reason had to do with their claims being time barred, the Court not buying the idea of a continuing violation based on each paycheck, but running the applicable statute of limitations from their initial classification. But even beyond the timing issue all they were ultimately able to show was that they were common law employees -- which was not sufficient to bring them within the terms of the Plans. The Court hints, without deciding, that there might be other issues, such as an impact on the Plans' favorable tax status, but for these plaintiffs, this time, nothing.
Not All Bad (Even Real Bad) That Happens at Work Is Discrimination
The incidents which led to those words were graphically described: Shafer's retaliation claim had also gone by the wayside as he was unable to show that the person to whom he complained was the appropriate person or that she had told those who later terminated him. Without knowledge of his complaint, it could not have been the cause of his termination. Or as Judge Easterbrook puts it in his inimitable fashion, "post hoc ergo propter hoc is not a good way to establish causation." ("after the fact, therefore because of the fact" in case your latin is a little rusty). But not content to let it go at that, Judge Easterbrook riffing like a jazz musician goes on to nail the point:
The demographically and racially diverse jury of eight women and four men deliberated over three days following a two week trial before finding the company and the individual defendants liable on each of Dr. Scully’s claims. The jury determined that Dr. Davis had subjected Dr. Scully, over a period of months, to persistent unwanted sexual advances that he tied to his support of her advancement and increased “visibility” at the company. Dr. Scully reported her discomfort with Dr. Davis’ conduct, her fear of his retaliating against her for rejecting his advances, and the fact that he had engaged in similar conduct while serving as President of a prior biotech company to Acadia’s Human Resources Director on multiple occasions, but no investigation or inquiry was initiated.
Dr. Scully ultimately reported her concerns to her direct superior Dr. Brann, after which he promptly subjected her to adverse consequences that included his removing her from managing a valuable collaborative project, giving her a first-ever negative performance review, a paltry raise and bonus, and eventually firing her allegedly for not being able to get along with her peers. Prior to reporting Dr. Davis’ conduct, the defendants had promoted Dr. Scully and given her significant raises, bonuses and stock while repeatedly commending her as a “bright and shining star.” Despite diligent efforts to find another job after she was fired from her project manager position in June 2004, Dr. Scully was only able to land a significantly lesser-paying job in academia in June 2005.
The jury reasoned that Dr. Davis’ sexual advances compromised Dr. Scully and caused her $450,000 in compensatory damages. The jury also found clear and convincing evidence that Acadia consciously disregarded Dr. Scully’s civil right to be free of sex harassment in the work place by failing to take any of the steps provided under its own anti-harassment policy, awarding her an additional $450,000 in punitive damages against Acadia. The jury also awarded $600,000 in punitive damages against Dr. Davis personally, having found clear and convincing evidence that his treatment of Dr. Scully was malicious and/or oppressive particularly given the fact that he had been reprimanded in writing for similar conduct at his prior place of employment in the spring of 2000 but refused that directive to attend sex harassment training because he was “too busy.”
On the retaliation claim, the jury determined that Dr. Scully’s reporting Dr. Davis’ harassing conduct was a motivating reason for Dr. Brann’s decision to fire her under the pretext of an inability to get along with coworkers. For these acts, the jury separately awarded Dr. Scully $3.4 million in compensatory damages including past and reasonably anticipated future lost wages and benefits. To punish and deter such conduct in the future, the jury awarded Dr. Scully an additional $3.95 million in punitive damages against Acadia and Dr. Brann personally. The total award for compensatory and punitive damages amounted to $7.9 million.
: 12:38 PM
Posted
11:05 AM
by Michael Fox
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 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.
: 1:35 PM
: 1:36 PM
Posted
4:22 PM
by Michael Fox
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].
Interesting, in a number of instances it looks like the SBA survey suggest that cost of providing benefits is HIGHER than suggested by the BLS.
The Economists @ www.lostcompensation.com
Posted
4:04 PM
by Michael Fox
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.
Posted
2:11 PM
by Michael Fox
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.
Posted
12:15 PM
by Michael Fox
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.
Posted
12:10 PM
by Michael Fox
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.
Posted
7:28 PM
by Michael Fox
A hat tip to Bob Ambrogi for the lead on a new website for people to vent about their recent firings. Check out SimplyFired. And as Bob points out, if your story is compelling enough, there just might be a reward in your future -- Been fired? Win a Caribbean cruise.
Posted
11:55 AM
by Michael Fox
Well actually "ugly" is the new protected class according to fellow law.com blogger J. Craig Williams on his newly re-designed website (which is getting all kinds of critical acclaim from other bloggers) in his post Is *Ugly* A New Class Deserving Of Employment Discrimination Protection?. The basis for the comments is last week's California's Supreme Court decision in Yanowitz v. L'Oreal U.S.A., Inc. (California 8/11/05) [pdf].
The basic facts are simple. The plaintiff had been told by her supervisor to fire a retail employee because she was not "hot" (in the sexually attractive sense) enough. Without ever explicity challenging the order, she did not do so. Ultimately, the employer fired the supervisor. Legally, the Supreme Court was deciding whether a summary judgment granted to the employer should be upheld. But to do so, it had to get through a lot of issues:
Whew! No longer it took 61 pages to get there. For more discussion on the case see Mike McKee's article, Calif. Justices See Retaliation in Makeup Case in The Recorder. And S. Cotus at Appellate Law & Practice, warns that the case does not really create "ugly" as a protected class in his post, Cali: Another urban legend – ugliness is not an issue.
occur within the limitations period prescribed by the FEHA. [Short answer, yes.]Because a trier of fact could find from this evidence that Yanowitz believed [her supervisor's] order was discriminatory as reflecting an instance of disparate treatment on the basis of sex, we have no occasion in this case to determine whether a gender-neutral requirement that a cosmetic sales associate be physically or sexually attractive would itself be violative of the FEHA or could reasonably be viewed by an employee as unlawfully discriminatory. Courts in other jurisdictions have uniformly held that an appearance standard that imposes more stringent appearance requirements on employees of one sex than on employees of the other sex constitutes unlawful sexual discrimination unless such differential treatment can be justified as a bona fide occupational qualification. (Frank v. United Airlines, Inc. (9th Cir. 2000) 216 F.3d 845, 854-855; Gerdom v. Continental Airlines, Inc. (9th Cir. 1982) 692 F.2d 602, 608 [in bank]; Association of Flight Attendants v. Ozark Air Lines (N.D. Ill. 1979) 470 F.Supp. 1132, 1135; Laffey v. Northwest Airlines, Inc. (D.D.C. 1973) 366 F.Supp. 763, 790.) We believe it is clear that such unjustified disparate treatment also would constitute unlawful sex discrimination under the FEHA.
Earlier the same day this decision was being handed down I was agreeing to give a speech for the Advanced Employment Law Seminar of the State Bar of Texas on "Piercings, Makeup and Appearance - The Changing Face of Discrimination Law." It appears that there will be a lot of issues to comment on. Feel free to pass on any suggestions for inclusion in the paper.
Posted
6:47 PM
by Michael Fox
The 5th Circuit applies the Supreme Court's decision in Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), to affirm the reversal of a jury verdict in an age discrimination claim. Both the trial court and the 5th Circuit considered the plaintiff's statements to be a "disavowal" of his claim of disability that he made to the Social Security Administration in his claim for benefits, not an "explanation." The difference - in this case - the difference between winning and losing. McLaren v. Morrison Management Specialists, Inc. (5th Cir. 8/8/05) [pdf].
Posted
9:25 AM
by Michael Fox
If you have handled a Texas Payday Act claim, you know that one frustration has been that your only appeal from the initial hearing examiner's determination was to state court, unlike an unemployment claim which permits an appeal t0 the three member Texas Workforce Commission. That discrepancy was changed by the last legislature when it passed S.B. 1408. Effective for payday act claims filed after September 1, 2005, there is now a right of appeal to the Texas Workforce Commission. Given the size of claims that are potentially filed under the Payday Act, such as commissions, this is a good step.
Posted
9:29 PM
by Michael Fox
When Gary Webber had a knee problem he requested several accommodations from his employer, International Paper. Among those which were given were:Permission to work from his home, reduced work hours, special parking privileges, reassignment from a third-floor to a first-floor office, and the installation of a “glide chair” which would permit Webber to ride from his first-floor office to the third-floor engineering department.
At some point however, one of his supervisors referred to the chair as “the Costanza chair,” a reference to a character from a popular television sitcom (Seinfeld) who used a glide chair to feign a work disability.
When a company wide reduction in force of 3,000 included engineers at his facility, Webber was one of two engineers let go. Although the company argued that he was let go because he was the only one of the engineers who did not have an engineering degree and thus did not have the capacity to do the work the others did, he alleged it was discrimination and sued. A jury agreed, awarding him $3 million.
Unfortunately for Webber, the trial court disagreed and granted his employer's motion for judgment as a matter of law. And now on appeal, the 6th Circuit agrees that even the Seinfeld moment and comment was not enough to revive his jury verdict. Webber v. International Paper (1st Cir. 8/9/05) [pdf].
Among other things that doomed the case was the failure of Webber even to establish a prima facie case. Although noting that at the trial stage mere failure to establish a prima facie case is not alone sufficient to sink a case, it is part of the equation in determining whether there is enough evidence to support a verdict. Here, the answer -- there not enough.
Thanks to Ross Runkel at the Employment Law Memo for the heads up on the case.
Posted
6:02 PM
by Michael Fox
Much to the relief of many high level employees who were concerned about the possibility of personal liability under California wage and hour laws, they were let off the hook today (at least generally) in a unanimous opinion by the California Supreme Court. Reynolds v. Bement (Cal. 8/11/05) [pdf]. As you would expect, Michael and Mark Walsh at their fine website The California Wage and Hour Weblog, were quick with an in depth report of the case, Supreme Court Rules that Officers and Directors Are Not Personally Liable for Wage Violations.
This appears to be one case where the California wage and hour law is now actually less favorable for employees than the Fair Labor Standards Act.
Of course, if one wants to cynically persist that California is always anti-employer, one could view the decision as a victory for a certain class of employees, albeit high level ones, rather than employers. And in support of a more critical view one could note that one Justice actually wrote a concurring opinion encouraging the Legislature to correct its errant ways in not making officers and directors liable. But in a day and time when civility seems to be in much shorter supply than criticism, let those of us on this side of the docket opt, at least for today, for the kinder/gentler view of the law of California.
Posted
2:48 PM
by Michael Fox
Are not really the reason for lack of posting the past few days. Instead, I was in Chicago this past weekend for the great honor of being inducted as a Fellow into The College of Labor and Employment Lawyers on the 10th anniversary of that group's founding -- and then a couple of long days of witness interviews in the Chicago area, another day's worth back here in Austin, a seminar planning meeting today ... you get the picture. Once I dig out normal posting will resume.
Posted
10:59 AM
by Michael Fox
Some stories are just best left alone --
The study was apparently done by Tulane Professor of Organizational Behavior in the Freeman School of Business, Arthur Brief, although the article is not totally clear on his role. A quick search of Tulane's website found no reference to the study itself, even in an article datelined today about the research being conducted at the Freeman School, The Business of Research, Scholarly research in the classroom.
Professor Brief is quoted in the article however on his view of the role of research:
It would be interesting to see the full study as it touches on an important topic that deserves more than a salacious teaser from USA Today, or admittedly, this post.
Posted
12:53 AM
by Michael Fox
Sometimes litigation takes on a life of its own, and at some point -- way past the rational stage-- it all gets laid out for the whole world to view and perhaps ask the question -- where did this go so wrong? This is such a case. The defendant won summary judgment in a disability case primarily on the theory that there was no evidence that the person making the discharge decision had any knowledge of the alleged disability. That decision was affirmed on appeal by the 11th Circuit.
But before that decision was issued, the defendant had sought to recover its attorneys fees under the heavy burden of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), which requires a showing that the case was frivolous. Initially successful, the district court awarded approximately $200,000 in attorneys fees --- apportioning $10,000 to the plaintiff and $190,000 to the plaintiff's counsel. But that was to be, or so I would think, a pyrrhic victory.
Because it was back to the 11th Circuit, which today spent 42 pages -- concurring, once again as to just how weak the plaintiff's case was, but finding that it did not fall over that fine line into frivolousness. Cordoba v. Dillard's Inc. (11th Cir. 8/4/05) [pdf].
Not content to stop at that determination, the Court turned to the manner in which the counsel for the defendant had handled the case noting among other things in its five page "postscript":We note that Dillard’s might have avoided much of the expense of defending Cordoba’s claims had it conducted this litigation differently. By our calculations, it appears that more than $75,000 of the fees and expenses awarded were incurred before Groo’s deposition was completed. Moreover, more than $50,000 in fees were related directly to discovery regarding Cordoba’s alleged disability, another $23,000 was expended procuring expert testimony regarding her condition, and the bulk of Dillard’s memorandum of law in support of its motion for summary judgment focused on the question whether Cordoba’s heart condition was a disability under the ADA. All this work ultimately proved unnecessary.
Following an extended discussion of why the motion for summary judgment had not been filed earlier, the Court concluded:But if, as we think is more likely, the district judge is somewhat more flexible than Dillard’s represented at oral argument, then the unnecessary cost and expense is attributable instead to Dillard’s failure to move for summary judgment on the knowledge issue as soon as was practical—whether because it misjudged the district judge’s likely response to such a motion or because Dillard’s itself did not perceive Cordoba’s claims to have been as frivolous as it now argues they were.
Ouch.
About the kindest thing that was said was a footnote from the Court:This observation is, of course, made in hindsight. We would not ordinarily fault a litigant for having failed to move for summary judgment at the precise point, identified after the fact, that such a motion would likely have been granted. But given that Dillard’s now argues that Cordoba’s case was completely frivolous, we think it is fair to ask in hindsight why Dillard’s did not seek to bring this to the court’s attention at an earlier point in time.
Hindsight. If only we could possess it at the beginning.
: 7:18 AM
And it's very rarely "obvious" how much a case can be settled for.
The sky's the limit for a plaintiff's initial demand, so it's very easy for the plaintiff's attorney to send a signal that settlement for a reasonable amount is not possible early in the game.
If the lawyer's any good, the fee goes a long way to reducing the amount of the ultimate settlement. In which case the interests of lawyer and client are aligned.
Early dispositive motions are risky. It's very easy for the plaintiff to convincingly beg for more discovery, and if that is granted the defense has shown its hand too soon.
Posted
9:23 PM
by Michael Fox
Or at least if you are fortunate enough to represent the CIA in a claim brought by a covert operative. This operative, Jeffrey Sterling (my source: the 4th Circuit Court of Appeals) sued claiming that he had been discriminated against in the way he was treated compared to non-African American covert operatives. After engaging in a little successful forum shopping, the CIA successfully sought to have the claim dismissed based on the state secrets doctrine. On appeal, the 4th Circuit summed up the action of the trial court:It noted that for Sterling to pursue his claim, he would have to disclose the nature and location of his employment and the employment of those similarly situated. Yet Sterling’s duties and those of his colleagues — and even the names of most of his supervisors and colleagues — were classified, rendering comparative proof of discrimination impossible. After a thorough review, the court concluded that the state secrets doctrine operated to preclude this suit because it barred the evidence that would be necessary to state a prima facie claim. State secrets, the court held, were critical to the resolution of core factual questions in the case, and therefore the doctrine justified dismissal.
A holding that the Court affirmed. Sterling v. Tenet (4th Cir. 8/3/05) [pdf].
Noting that the Supreme Court had recently re-examined the viability and breadth of the doctrine, the Court added its own explanation as to why the doctrine exists, and is particularly applicable in civil cases:The threat of "graymail" likewise counsels courts to be cautious about risking exposure of sensitive materials. Graymail is a practice where "individual lawsuits [are] brought to induce the CIA [or another government agency] to settle a case (or prevent its filing) out of fear that any effort to litigate the action would reveal classified information that may undermine ongoing covert operations." Tenet, 125 S. Ct. at 1238. Unlike a criminal case, where the government can drop the charges if it fears that litigation presents unacceptable security risks, civil claims put the plaintiff in the driver’s seat. See Reynolds, 345 U.S. at 12. The state secrets privilege provides a necessary safeguard against litigants presenting the government with a Hobson’s choice between settling for inflated sums or jeopardizing national security. Were judges to fail to take care to avoid unnecessary risks of disclosure when the privilege is invoked, the incentives for graymail would correspondingly increase.
Not so cool for plaintiffs, but great for taxpayers. Nice defense to have in your bag of tricks.
Posted
7:00 AM
by Michael Fox
Three employees hired by GTE (now Verizon) but placed on the payroll of a 3rd party payroll service were ineligible for benefits under the Company's ERISA plans because they applied only to those "paid directly" by GTE. According to the allegations: Plaintiffs received the same training, performance reviews, and access to GTE facilities as other employees; were invited to corporate functions, staff meetings, and committee service just as other employees were; and were explicitly instructed to identify themselves to outsiders as "GTE employees" rather than as temporary employees. In short, according to the complaint, Plaintiffs were "thoroughly integrated in GTE's workforce."
But after all was said and done their claim for violations of ERISA still fell short. Edes v. Verizon Communications, Inc. (1st Cir. 8/2/05) [pdf].
Posted
1:01 AM
by Michael Fox
Judge Easterbrook of the 7th Circuit, who was otherwise being taken to task today for a podium comment, see f/k/a's post, Frank Easterbrook calls juries "twelve high school dropouts", was straight forward in his explication of the law of the workplace as he affirmed summary judgment for an employer, even though concluding: If Shafer is describing events accurately, he has a solid claim against Dill under state tort law for both assault and battery. What he lacks, however, is a claim against Kal Kan for sex discrimination. The district court has protected Shafer’s tort claim by dismissing it without prejudice. The judgment dismissing the Title VII claim on the merits is affirmed.
Shafer v. Kan Kan Foods, Inc.(7th Cir. 8/1/05) [pdf]. Dill, who earlier had remarked that Shafer has a “cheerleader ass” that “would look real nice on my dick,” forced Shafer’s face down to his crotch (while clothed), moving his groin to give the impression that Shafer was performing fellatio. A few weeks later, in the same company, Dill grabbed Shafer’s hand and moved it to his crotch
Although those might well be a violation of state tort law, Shafer could not show that they were done by the employer, as Dill, the tormentor was a co-worker not an employee; nor that the incidents were severe or pervasive as required to establish sexual harassment. In the Court's view, Shafer had not established that Dill's conduct "reflected more than personal animosity or juvenile behavior."
(again while clothed) while moaning as if Shafer were masturbating him. The force was enough to put Shafer in fear that Dill would break his arm. The next month Dill approached Shafer in the locker room when Shafer was not wearing a shirt and pulled a handful of hair from Shafer’s chest, causing considerable pain. Finally, in August 2001 Dill bit Shafer in the neck hard enough to raise welts, though not to penetrate the skin. All four episodes appear to be designed to demonstrate physical domination.Shafer insists that, because he was a good worker, and the others involved were not cashiered, his complaints must have caused his discharge. That approach would turn the federal judiciary into a body of employment arbitrators asking whether personnel decisions are supported by “just cause.” The lack of “just cause” would establish that forbidden discrimination or retaliation was the real cause. That’s not what federal law says. The burden of persuasion is the plaintiff’s.
It may not be Miles Davis, but it's pretty damn good, and certainly music to an employer's lawyer's ears.
: 9:03 AM
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