Jottings By An Employer's Lawyer

Monday, October 31, 2005

Now on First - Samuel Alito -- Let the Feeding Frenzy Begin


With President Bush's nomination of baseball fan and 3rd Circuit Judge Samuel Alito this morning, the floodgates of inflammatory rhetoric have been opened. By the time we have wound our way to his likely, but by no means certain, confirmation, perhaps even after the first of the year, I fear the amount of such rhetoric we will have endured will make Hurricane Katrina's floods look like a puddle.

Unlike Judge Roberts who had a relatively small number of opinions, so few in number that we were actually able to categorize them in a short period of time, see A More Complete List of of Judge John Roberts' Labor and Employment Related Decisions, don't expect the same with Judge Alito's body of work. Not only is his period of service as a judge much longer ( fifteen years to two), but Judge Alito is nothing if not prolific, often writing concurring or dissenting opinions, in addition to those opinions where he has written for the Court. One criticism that will not stick is that he does not have a fully developed judicial philosophy, available for the perusing.

While I will take a look later at his employment law decisions, here's a sampler of initial reactions about his views in this area from those opposing his nominations.

From Howard Dean, chair of the Democratic party:
Alito's record suggests an activist judicial philosophy bent on rolling back the rights and freedoms that all Americans value. Alito has sought to limit the rights of women and people with disabilities in discrimination cases, demonstrated an open hostility to women's privacy rights even in basic reproductive health matters, has a record of hostility toward immigrants, and tried to immunize employers from employment discrimination cases. It is particularly troubling that President Bush would nominate a judge who would reverse American progress and make the Supreme Court look less like America on the same day that most Americans are honoring the life and legacy of Rosa Parks.
The final salvo is certainly a nice non-inflammatory way to start the debate.

The Alliance for Justice: Alito has voted to:

-- Invalidate part of the Family and Medical Leave Act; [Presumably a reference to Chittister v. Dep't of Community and Economic Development, a 2000 decision holding that Congress invalidly abrogated the 11th Amendment rights of states when it passed the FMLA. Although this view was not ultimately supported by the Supreme Court, see Nevada Dep't of Human Resources v. Hibbs, Chittister is more of an indication of Judge Alito's view on the vitality of the 11th Amendment as opposed to how he views the substantive provisions of the FMLA.]
-- Scuttle Congress' intentions by making it much harder for civil rights plaintiffs to prove sex and race discrimination. In one case, his colleagues noted that the federal law prohibiting employment discrimination "would be eviscerated if our analysis were to halt where (Judge Alito) suggests.

Before jumping on the "evisceration" statement made in Bray v. Mariott Hotels, 110 F.3d 986 (3rd Cir. 1996), you should read the whole opinion.

Judge Alito's summary of his dissent:

In sum, the evidence here shows (1) that the two applicants were of roughly equal qualifications with respect to the job for which they were seeking promotion and (2) that the employer may have acted unfairly in failing to follow proper internal procedures in rejecting one of the candidates. Under existing anti-discrimination law, evidence of unfairness in the selection process alone, without evidence linking the unfairness to race-based animus, should not be enough to get a plaintiff beyond summary judgment, so long as the employer's proffered legitimate reason for the employment decision remains intact. I respectfully suggest that what the majority here has done is to weaken the burden on the plaintiff at the pretext stage of the McDonnell Douglas framework to one where all the plaintiff needs to do is to point to minor inconsistencies or discrepancies in terms of the employer's failure to follow its own internal procedures in order to get to trial. I have no doubt that in the future we are going to get many more cases where an employer is choosing between competing candidates of roughly equal qualifications and the candidate who is not hired or promoted claims discrimination. I also have little doubt that most plaintiffs will be able to use the discovery process to find minor inconsistencies in terms of the employer's having failed to follow its internal procedures to the letter. What we end up doing then is converting anti-discrimination law into a "conditions of employment" law, because we are allowing disgruntled employees to impose the costs of trial on employers who, although they have not acted with the intent to discriminate, may have treated their employees unfairly. This represents an unwarranted extension of the anti-discrimination laws.
You may disagree with his viewpoint, but it hardly seems radical, at least as I would use that term.

We seem to find ourselves in a funny place, where both logically (not to mention constitutionally)it does not seem that the Senate should condemn a Supreme Court nominee merely because he is "conservative" or "liberal" based on the predilections of the appointing President, who after all obtained the right to make that appointment by winning the most recent national election. So instead, we demonize the individual and his decisions. Maybe a closer review of Judge Alito's opinion will determine he really is out of what I would consider the judicial mainstream -- that is someone whose opinions are well reasoned and based on an intellectually honest reading of precedent and the facts. I would be more than happy if that indeed were the test, honestly applied.

One other tidbit for the employment law community. Judge Alito's sister, Rosemary Alito, is a management side employment lawyer in New Jersey.

On with the show.


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Monday, October 24, 2005

Bad News on Business Ethics


You would have thought that business ethics would be on the uptick given our recent corporate past, but unfortunately not the case according to a story on the National Business Ethics Survey. For employment law practitioners, the following was certainly not a good report:
The two most common types of misconduct observed were abusive or intimidating behaviour towards employees (seen by 21 per cent) and lying to employees, customers, suppliers, and the public (seen by 19 per cent).
Both behaviors are a step toward more, not less, difficult employment litigation. Check out the whole story at the British Management Issues website.


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Monday, October 17, 2005

Misdeal - Poker Dealer Gets Second Chance According to the 5th Circuit


The fact that "it is undisputed that Jones is a well qualified poker dealer, whose dealing skills are better than the average poker dealer in Tunica County, Mississippi," means a little more when you understand that Tunica County is the self proclaimed Casino Capital of the South. Ralph Jones claimed he was never hired for a full time position as a poker dealer at the Horseshoe Casino, notwithstanding he was hired temporarily for some high profile tournaments including the World Poker Open held there. According to Jones, it was because he was African American.

The District Court disagreed, granting summary judgment to the Casino, finding there was not direct evidence of discrimination since the testimony that was offered required too many inferences to conclude that there was a discriminatory motive and some of it had been recanted. The 5th Circuit was not so troubled:
Upon extensive review of the parties’ arguments and the record in this case, and mindful of the summary judgment standard, we find that Jones has demonstrated direct evidence of discrimination. Mims stated that she inquired why an African-American poker dealer was not hired and was told, by either Lambert or his assistant, that “they hired who they wanted to hire and there [sic] were not going to hire a black person unless there were extenuating circumstances.” She was then told by Lambert, or his assistant, that “good old white boys don’t want blacks touching their cards in their face.” Sam Thomas testified that in 1995, that Lambert told him that “maybe I’ve been told not to hire too many blacks in the poker room.” It is incontrovertible that Lambert made the hiring decisions at Horseshoe and Presley as his assistant would have provided input, therefore, viewing the evidence in the light most favorable to Jones, the aforementioned evidence proves, without inference or presumption, that race was a basis in employment decisions in the poker room at Horseshoe. The evidence need not show that race was the sole basis in order to constitute direct evidence.
Jones v. Robinson Property Group, L.P. (5th Cir. 10/11/05) [pdf].

Jones had complained to the H.R. Department of the Casino that he was not being hired because of his race, which led to a face to face confrontation with the hiring manager in the H.R. office, so the potential for a viable retaliation claim also existed. Unfortunately for Jones, his failure to bring it in a timely fashion doomed that claim. That decision of the district court was affirmed by the 5th Circuit.

Although the casino escaped the path of Hurricane Katrina, its luck ran out, at least for now with respect to Mr. Jones.


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Tuesday, October 11, 2005

A (Small) Solace for the Common Scold


Although no doubt pleased that the Bronx Bombers made it as far as they did, Monica Bay, found at, but by no means described as, The Common Scold, is probably not feeling the best today. So as a small token of goodwill, let me pass on information that she is hoping to get widely known about TWO contests being sponsored by two publications she runs for ALM, Law Technology News and Small Firm Business & Law Firm Inc.

With deadlines for entry coming up soon, Monica is trying to make sure all who are interested and/or deserving have a shot. It's like playing the lottery -- if you don't buy a ticket, you can't win.

The Best Practices Award for law firms from 2 to 40, will recognize firms that have implemented "ideas and innovations" that have improved their operations. Entry deadline is October 28th.

The Law Firm/Law Department2005 Technology Awards, recognizes the best technology use - and users - in the legal profession. Deadline for entering is December 15th.

Check them out, or to paraphrase an old Texas political phrase - enter early ... and often!


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Monday, October 10, 2005

False Economy - Bring Back the Green Cards


Why doesn't the EEOC send right to sue letters by certified mail? Given that an important right expires within 90 days from the receipt of the right to sue letter, wouldn't it be nice to have some degree of certainty? Or is it cheaper to leave individual cases subject to the vagaries of the mail and the testimony of individuals? For example, just how much in government resources (not to mention the costs of the defendant, their counsel, the plaintiffs and plaintiffs' counsel) were expended in resolving Kerr v. McDonald's Corp. (11th Cir. 10/6/05) [pdf]? The basic facts were not that complicated - right to sue letters were dated December 31, 2002, suit was filed on May 15, 2003 and plaintiffs' testified that they didn't receive the RTS letters until sometime in February.

But to decide whether the suit was barred by limitations, because there was no proof certain that would have been provided by certified mail, return receipt requested, we had the filing of a lawsuit, a motion for summary judgment with its attendant briefing, a decision by the district court, an appeal to the 11th Circuit, briefing, oral argument and a 14 page opinion.

Among the evidence gathered was the following on EEOC's procedure for sending a right to sue letter:

Both RTS letters were signed by Webb and dated 31 December 2002. General EEOC practice is to mail them out the day they are dated, or within the following two days, at the latest. Because such letters are mailed by a clerk, however, the exact date of mailing is not confirmable. Evidence in the record about specific EEOC office procedures related to the preparation and mailing of RTS letters and the closure of files sheds some light on the issue. First, as a rule, files are not submitted for closure until the RTS letters have been sent out. Second, the normal practice of the EEOC is to send out RTS letters to the charging party and the respondent at the same time. Finally, the majority of RTS letters are sent out tri-folded in regular white business envelopes. Investigation files are returned to charging parties by a wholly different department, in large manilla envelopes marked “CRTIU,” and only after the file has been closed. See 29 C.F.R. § 1610.17(g) (request for copy of investigation file in an ADEA case will be denied unless case has been closed).

And there's more detail on the EEOC procedures if you care to look at it. All of which you can be sure required considerable time (and angst) to procure in suitable form for presentation to the trial court.

And of course then there is the time that this issue remained up in the air. The two plaintiffs were terminated from McDonald's in October of 2001. The lawsuits filed in May 2003, the appeal filed in August, 2004 and now finally a decision in October, 2005, four years after the terminations. Of course there is still the possibility of rehearing, rehearing en banc and cert. to the Supreme Court, so let's not call it wrapped up too soon.

And this was not a straight forward case for the defendant. The Court summarized its holding as follows:

In this appeal, we were called upon to consider whether, under the test established in our circuit, actual knowledge on the part of a complainant that the EEOC has terminated its investigation of her claim, as evidenced by her request for an RTS letter, may be sufficient to cause the time for filing to begin running within a reasonable time after written notice of complainant’s right to sue has been mailed. Based on our review of the law in our circuit, we have concluded that it is, and that the ADEA complaint filed by Kerr and Green Smith was untimely.

The cost of the green cards that could have avoided all of this? $4.42 each according to the following example at the U.S. Postal Service website:
First-Class Mail with Certified Mail and Return Receipt
First-Class Mail will get the title to its destination in 1 to 3 days. Certified Mail with Return Receipt will give Maria proof that she mailed the title and will return a card to her with the date the title was delivered and the signature of the person who received it.
First-Class Mail $0.37
Certified Mail +$2.30
Return Receipt +$1.75
Total $4.42
Two plaintiffs - $10 vs. all the costs above. Doesn't take many of these to pay for a lot of right to sue letters.

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While On An Extended Blogging Hiatus


I have been remiss in congratulating George Lenard and his blogging colleagues, Michael Harris and Catherine Collingwood, who have upgraded what was already a marvelous site, George's Employment Blawg, to even better things.

I also missed out on welcoming Professor Rick Bales, Professor at the University of Northern Kentucky Chase School of Law who has taken over as editor of the LaborProf Blog, and retitled it to fit more accurately the broader area that he intends to address, The Workplace Prof Blog. From his bio, it appears that Professor Bales began his legal career here in Texas, working for Baker & Botts and Baker & Hostetler.
While September and early October blogging was light, I have not been totally remiss in communicating as I did teach 4 sessions of Essential Employment Law for the University of Texas CLE division (Austin, Dallas, Houston and San Antonio), a presentation on retaliation and whistleblowing for the Texas Advanced Paralegal Seminar and a presentation on How Employers Make Juries Mad - And Pay for It With Big Verdicts for my firm's Indianapolis' office's first full day seminar.

And managed to practice a little law as well.


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Sunday, October 02, 2005

Whistling in the High Desert - Worth $4.75 Million


In the town of Prescott, self described as "only 90 miles, but a world away, from metropolitan Phoenix," the county seat of Maricopa County -- a former Maricopa County employee was awarded $4.75 million under the Arizona Employment Protection Act. The verdict came after just 3 hours of deliberation to conclude a 2 week trial.

The complaint of Michael Walters, an environmental analyst, as reported in the Arizona Republic:
[He] discovered in 1996 that county administrators used fictional liability figures in reports submitted to bond underwriters and others [and] was fired after informing Deborah Larson, the chief financial officer, of the mistake and threatening exposure unless the mistake was corrected.
Although the County initially claimed he was terminated for different reasons, including pornography found on his computer, it didn't pursue that argument at trial.

According to Walters, "After nine years of sleepless nights, I'm going to get my first good night's sleep. The truth came out." My guess is that the same was not true for the folks from the County, particularly if as the Tuscon Citizen reported, the County's insurance policy has a $5 million deductible.

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