If You Know (or Care) What a Blawg Is ....

Posted 9:32 AM by Michael Fox

And you probably at least have an inkling if you are reading this, check out the latest project from TechnoLawyer, a compilation of sample posts and biographical information from 51 blawgs. Here's a blurb about the project:

BlawgWorld 2006: Capital of Big Ideas, a TechnoLawyer eBook designed to take you on a journey through 51 of the most influential blawgs.

For more information and to get a copy go to the Blawgworld 2006 homepage. It requires a free sign up to TechnoLawyer, which is a good thing to do with or without Blawgworld 2006.

Since Jottings is one of the 51 included in the ebook, I am not so sure I would be so bold to say that ALL are the "most influential blawgs" but it is an impressive collection that I am honored to be part of.

Comments: Post a Comment

Scope of Charge Controls Title VII Litigation, Even Following A Million $ Verdict

Posted 6:49 AM by Michael Fox

I know that I have been doing this for some time now when, for the first time, I report on the appellate outcome of a MDV that also appeared on this page. On August 3, 2003, the post was MDV: Indian Prison Guard With Long History of Unanswered Complaints Awarded $1.16 Million . Even though he was able to keep that verdict intact (although reduced by Title VII damage caps) through post-trial proceedings at the district court stage, the same did not hold true on appeal. Chacko v. Patuxent Institution (4th Cir. 11/29/05) [pdf].

The issue on which the case turned was a basic question, frequently overlooked or minimized - did the litigation exceed the scope of the initial charge of discrimination? If so, as the Chacko court found, the remedy is to dismiss the claim for failure to exhaust administrative remedies, which is what the Court did.

In doing so the Court stressed the importance of the charge and the administrative process:

The filing of an administrative charge is not simply a formality to be rushed through so that an individual can quickly file his subsequent lawsuit. Rather, Congress intended the exhaustion requirement to serve the primary purposes of notice and conciliation.

Although noting that "lawyers do not typically complete the administrative charges, and so courts construe them liberally," its holding makes clear there are limits to that liberal construction.

The Court summarized its view of the case:

Chacko's "centerpiece" at trial was that coworkers continually made derogatory national-origin remarks to him over the course of his twenty-year career, and that supervisors did not discipline these coworkers, laughed at their comments, and may have joined them. ... The sharp differences between this evidence and the allegations in Chacko's administrative charges compel the conclusion that he failed to exhaust his administrative remedies. The administrative charges at bottom alleged specific episodes of harassment. None of them mentioned coworker harassment or national-origin epithets. In contrast, Chacko's case at trial encompassed harassment over his two decades at Patuxent. It relied heavily on testimony that primarily coworkers (and not supervisors) called him national-origin epithets. The administrative charges thus dealt with different time frames, actors, and conduct than the central evidence at trial.

One problem for litigants is that the liberal construction of administrative charges and the corollary rule, acknowledge by the Court that:

A Title VII plaintiff can of course exhaust administrative remedies if a reasonable investigation of his administrative charge would have uncovered the factual allegations set forth in formal litigation.

mean there is no bright line by which one can confidently predict the outcome of the argument.

But the Court did provide one key holding when it refused to find that "specific factual allegations couched in broad terms like 'harassment' or 'hostile treatment' ... invariably encompass a limitless number of other factual worlds." The attempt to gloss over a gap between evidence at trial and the facts alleged in the charge by use of conclusory words just got a lot harder.

Comments: Post a Comment

Tuesday, November 29, 2005

4th Circuit Primer on ERISA Interpretation

Posted 4:58 AM by Michael Fox

Taking a relatively simple question of interpretation of an ERISA severance plan, the 4th Circuit covers a lot of ground in a straight forward manner. The facts were not disputed. Employee starts work in 1983 and leaves company voluntarily on May 12, 2000 to take another position. Unhappy with that job, he returned to the employer on August 7, 2000. When he was laid off in 2002, he argued he should have received severance based on 19 years of service, the company on 2. The determination was based on the Employment Commencement Date, a defined term.

Plaintiff's argue was simple. The definition was clear, plain and unambiguous:

Employment Commencement Date. "Employment Commencement Date" means the first day on which an Employee is employed by an Employer.

Since it was unambiguous, his employment must be construed to begin in 1983, not August of 2000.

The plan's position was equally straight forward. The administrator of the plan had power to interpret the plan. When viewed in context of the entire plan, it is clear that Employment Commencement Date could reasonably be interpreted to begin at the time of the re-hire, and so the committee's determination that he was only entitled to two years should be affirmed.

The courts were split, one found the definition unambiguous (plaintiff wins) the other "at least ambiguous" (plan wins). Unfortunately for the plaintiff, it was the latter position that was taken by the appellate court, Coluci v. Afga Corporation Severance Pay Plan (4th Cir. 11/28/05) [pdf].

On its way to that finding, the Court distilled several nuggets of ERISA interpretation. On the basics of interpretation:

-- the well established Firestone principle that when a plan by its terms confers discretion on the plan’s administrator to interpret its provisions and the administrator acts reasonably within the scope of that discretion, courts defer to the administrator’s interpretation;

-- notwithstanding Firestone an administrator is not free to alter the terms of the plan or to construe unambiguous terms other than as written; and

-- reasonableness must be determined within the context of the whole plan, not just one isolated definition.

And in response to challenges that the finding of the plan administrator should be viewed under a higher standard than abuse of discretion because of conflicts of interest, the Court offered more helpful guidance:

- "the simple and commonplace fact that a plan’s administrator is also its funder is not enough to support a finding of a conflict of interest that would cause an adjustment to our deference;

-- although Afga did not hire independent employees to administer the Plan, "this fact alone does not support the presumption of a conflict of interest, or even bias."; and finally,

-- the role of the Plan's counsel at the Committee meeting did not create a conflict that would alter the Court's standard of review:
This suggestion, [that the attorney's presence created a conflict] however, misunderstands the pertinent inquiry. Whether we heighten our scrutiny depends on an administrator’s purported conflicts, not conflicts of the administrator’s counsel. Moreover, Colucci fundamentally misconstrues [the attorney's] participation in the Administrative Committee’s consideration of his appeal. An attorney who advises his clients of their fiduciary obligations does not constructively become the beneficiary’s representative.

One could find worse starting places for an overview of ERISA interpretation cases.

And the 4th Circuit wasn't the only one considering severance pay yesterday, as the Strategic HR Lawyer was noting that Severance Pay Trends = Less based on a study by the out placement firm of Lee Hecht Harrison. A trend with which, after today's decision, Mr. Coluci is all too familiar.

Monday, November 28, 2005

A New Page in Organizing - Service Employee's takes on Stanford U.

Posted 9:38 AM by Michael Fox

Although one of the reasons the Service Employee's union dropped out of the AFL-CIO and formed a new coalition was a difference over the strategy of trying to change the political framework through elected officials, it doesn't mean that the SEIU has foregone politics. Instead, they are more frequently relying on a different form of groundroot politics to try to get support for their goals from the communities or local government.

An article in the Silicon Valley/San Jose Business Journal by Laura Cutland, SEIU's strategy at Stanford carries high risks for union is a good example of this "different" political approach.

UPDATE: In a similar vein, although much closer to home, the NYT is reporting on the SEIU's drive to organize janitors in Houston, Janitors' Drive in Texas Gives Hope to Unions. According to the story the Union "used several unusual tactics in Houston, among them lining up the support of religious leaders, pension funds and the city's mayor, Bill White, a Democrat."

Wednesday, November 23, 2005

Happy Thanksgiving for One Plaintiff - MDV in Harrisburg

Posted 4:17 PM by Michael Fox

A Harrisburg federal court jury found for the former director of the Pennsylvania state agency for the blind and visually impaired as reported by the Associated Press in the Hanover Evening Sun, Federal jury awards $3.4M to blind woman.

From a quick look at stories on the internet, Christine Boone's firing had been something of a cause celebre for various advocacy groups. A story, Pennsylvania Rejects Good Services for Blind People, from the December 2003 Braille Monitor, gives you a taste.

From the start of the trial the positions were well staked out. According to the AP report on the first day of trial, Boone's lawyer claimed:

They didn't like the fact that she was pursuing things on behalf of the blind and visually impaired" in ways the agency previously had not. [Her boss] did not want to tolerate an assertive, independent blind woman.

The employer's counsel countered:

This case is about reliability. This case is about the equality to get fired. It's about management. It's about policymaking. And it's about judgment.

I like the phrase "the equality to get fired," but it clearly wasn't enough to carry the day.

Boone apparently had more than just a disability claim since:

The jury [also] decided that Boone had proven that the two [individual defendants] made false, defamatory and stigmatizing public statements about her firing that called into question her good name, reputation and professional qualifications.

Defamation and disability, when the jury goes south on you, is obviously a dangerous combination. Of course when the jury goes south, almost anything is.

5th Circuit Adopts ERISA Estoppel, But Employee Still Loses

Posted 10:27 AM by Michael Fox

Chalk it up as a moral victory for Frank Mello, who has the honor of being the employee who got the 5th Circuit to specifically adopt the doctrine of ERISA estoppel -- which under the right circumstances might allow an employee to obtain greater benefits under an ERISA plan. Unfortunately, for Mello his circumstances were not the right ones.

Judge Edith Clement Brown, on an earlier Supreme Court short list, spelled out the elements:

To establish an ERISA- estoppel claim, the plaintiff must establish: (1) a material misrepresentation; (2) reasonable and detrimental reliance upon the representation; and (3) extraordinary circumstances. McCall, 237 F.3d at 513; Weir, 123 F.3d at 290.

Mello v. Sara Lee Corp. (5th Cir. 11/22/05)[pdf].

Mello got a second moral victory as the Court agreed with the lower court that informal communications, even those with disclaimers, can be the source of material misrepresentations.

But Sara Lee was the ultimate victor as the Court disagreed with the lower court that Mello's reliance on the admittedly erroneous communications was reasonable. The communications (which had to do on Mello's proper service date) were contrary to the express terms of the Plan. Summarizing the law from other circuits, the Court found "Mello’s claim cannot surmount the clear and consistent case law forbidding recognizing reasonable reliance on informal documents in the face of unambiguous Plan terms."

The key remains -- make sure you have clear plan documents.

Update: lazerwolf at Appellate Law and Practice makes a good appellate lawyer type point about the holding of this case:

Interestingly, the court's conclusion that Mello can't demonstrate reasonable reliance renders its purported "holding" adopting ERISA estoppel dicta. ERISA lawyers take note of this potential means of limiting this case.

The Law of Unintended Consequences - From a DOL Opinion Letter to the Demise of a Liberal Arts Education

Posted 9:21 AM by Michael Fox

Ok, so that's a little over the top -- to extrapolate from one wage and hour opinion letter to the general decline of broad based liberal arts educations. But maybe I react that way because of the deep concerns of my mother (who obtained her doctorate in her early 60's) about the growing trend to force students into "technical" training as opposed to a more broad based education.

It came to mind this morning when I read the latest opinion letter (FLSA 2005-50) issued by the DOL under the FLSA, this one opining on the application of the learned professional exemption to social workers and caseworkers. The bottom line -- the position that requires a master's degree in social work, drug and alcohol, education, counseling, psychology, or criminal justice, meets the third prong of the primary duty test under the learned professional exemption, 29 C.F.R. 541.301(a), "the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.” By contrast, the position that requires only a bachelors degree in the "social sciences" does not "constitute the 'specialized' academic training necessary to qualify an occupation for the learned professional exemption."

Although it is somewhat of a stretch, it is not too far afield to think that the result of such opinions (and the underlying regulation), will be to push employers to require more specialized fields of study at an earlier stage, which seems likely to place the liberal arts education of times past under even more pressure.

Iseek's description of a liberal arts education is typical of many:

A liberal arts education refers to studies in a college or university intended to provide general knowledge and develop intellectual capacities. A liberal arts education prepares students to work in a variety of jobs. This is different from other types of education where students develop professional or vocational skills for a specific job.

The type of education that many (including me) would believe is the best course, but clearly one that does not coincide with obtaining a learned professional exemption.

That exemption may become more important given the DOL's off-hand dismissal of the applicability of the other two primary white collar exemptions for the social worker and case worker positions:

Since the employees in question do not supervise other employees and their work is not directly related to the management or general business operations of the agency or its customers, these employees cannot qualify for either the executive or administrative exemption.

The use of the "not directly related to the management or general business operations" is clearly a battleground for white collar exemptions in the future. A future that may well be populated by less broadly educated individuals.

Labels: FLSA

Tuesday, November 22, 2005

4th Circuit Alters 4th Prong of Prima Facie Case

Posted 9:25 PM by Michael Fox

It's not a good sign when you are seeking affirmation of the lower court and the appeals court begins by admitting its decision turns on a newly recognized theory -- more specifically here the Court held:

Because the district court did not consider whether Miles’ case falls within the different decision maker exception to the fourth prong of the Title VII prima facie case that we recognize today, we vacate the grant of summary judgment with respect to Miles’ sex and pregnancy discrimination claims.

The existing fourth prong required that after the termination "the position remained open or was filled by similarly qualified applicants outside the protected class." Here, the terminated female plaintiff was replaced by another female. Applying what appeared to be settled 4th Circuit law, the district court granted summary judgment. But in Miles v. Dell, Inc.. (4th Cir. 11/22/05) [pdf] the Court adopted an alternative method of satisfying the fourth prong:

in cases where the plaintiff can show that the firing and replacement hiring decisions were made by different decisionmakers, the plaintiff can make out a prima facie case without showing replacement by someone outside the protected class.

The facts arguably supported the new standard as plaintiff offered testimony that the person who had fired Miles, wanted to hire a male replacement but had been overruled by his superiors who required the position filled by another female. All is not totally lost for Dell on this issue as the Court sent the case back to the lower court to determine whether Miles had made a sufficient factual showing to survive even under the new standard.

There were two other claims - pregnancy and retaliation. Miles fared even better on the pregnancy claim as the Court rejected the trial court's reliance on the fact that plaintiff was terminated more than a year after she had delivered her baby. Miles was helped in part by evidence her supervisor had wanted to terminate her while she was pregnant, but had been overruled by human resources. That plus evidence that he tried to increase her quotas while she was out on maternity leave were enough to overcome any barrier raised by the timing gap.

Dell did salvage the summary judgment on the retaliation claim. Plaintiff had not checked the retaliation box on her charge, nor was it mentioned in the narrative aspect. While her lawyer did write a letter specifically mentioning retaliation 5 months after the charge was filed, the Court specifically held that was not sufficient.

Although it may not be the case, the facts as relayed by the Court make it appear that a manager who was possibly making discriminatory decisions was appropriately reigned in by upper management and human resources -- but that was not enough.

When preliminary decisions that are not carried out are enough to hold an employer liable, life just got more difficult.

Monday, November 21, 2005

Interesting Tactic, Chapter Two

Posted 9:52 PM by Michael Fox

Just yesterday, I discussed an unusual tactic where rather than filing a motion to compel arbitration in response to a state court law suit, the defendant successfully filed a federal court action to compel the arbitration. See Duplicating Effort? State Court Action - Federal Court Lawsuit to Compel Arbitration . The 6th Circuit was faced with a similar unusual technique. It started with a federal lawsuit by Palkow against CSX Transportation for gender discrimination. The jury found in favor of CSXT and the judge entered judgment accordingly. Rather than challenge the verdict in federal court, Palkow filed a second suit in state court, alleging that a witness in the first trial had committed perjury under the direction of a CSTX supervisor.

Unhappy, CSTX removed the case to the federal court that had entered the original judgment. Since there was no diversity nor federal question on the face of the state court petition, CSTX argued that the case was in reality an improper attack on the validity of the federal court judgment, thus conferring federal court jurisdiction. Palkow filed a motion to remand, which was rejected by the district court, which apparently not happy by the attack either, dismissed Palkow's claim.

On appeal to the 6th Circuit, the case turned on that principle drilled into me by Professor Bernie Ward -- federal courts are courts of limited jurisdiction. That was the argument advanced by Palkow and ultimately accepted by the 6th Circuit. Palkow v. CSX Transportation (6th Cir. 11/18/05) [pdf]. For students of federal courts, it's an interesting read.

My guess is that the arguments advanced by CSTX will ultimately prevail, but not in its chosen forum.

ICU Nurse Reinstatement Upheld by 1st Circuit

Posted 9:19 PM by Michael Fox

A hospital challenged the order of an arbitrator reinstating an ICU nurse discharged for failing to properly account for dispensing controlled substances as being against public policy. It only took two sentences to make clear what the end result was going to be. First, "Defendant-appellee Massachusetts Nurses Association (the MNA) is the authorized collective bargaining representative of the nurses who toil there." If more was needed to make the pending outcome clear -- "[o]ver her estimable quarter-century career, Dufault developed a reputation as an industrious, highly skilled nurse" -- was enough to make it clear to me what was coming. Mercy Hospital, Inc. v. Massachusetts Nurses Association (1st Cir. 11/21/05).

Sure enough, the Court found the district court had properly affirmed the arbitrator's holding of reinstatement. Interestingly, one of the undisputed explanations offered by the nurse to explain her conduct was that she had taken drugs to prepare an intravenous drip, even though the doctor's order had called for the drug to be administered by injection. Not such a big deal according to the arbitrator:

The arbitrator also credited testimony that although it was not good practice, a nurse might deviate from a doctor's orders and administer medication intravenously rather than by syringe as a time-saving device.

Didn't seem to bother the Court either. But it would be interesting to see how a similar "deviation" would be treated if it were a malpractice claim against the hospital as opposed to an employee termination.

Sunday, November 20, 2005

Duplicating Effort? State Court Action - Federal Court Lawsuit to Compel Arbitration

Posted 5:34 PM by Michael Fox

Ross Runkel reports on a tactic used in a West Virginia matter, End run around state court. Rather than moving to compel in state court, the employer sued (successfully) to compel arbitration in federal court. The 4th Circuit has now affirmed. American General Life v. Wood (4th Cir. 11/14/05) [pdf].

Ross has some comments about the move, including the clearly rhetorical question -- What? They don't trust the state courts?

Labels: arbitration

Job Tracker - The AFL-CIO's Latest

Posted 5:12 PM by Michael Fox

As if out to prove the merits of the old saying, competition is a good thing, the AFL-CIO fresh off of losing some of its largest member unions, has just created an information source for employees, Job Tracker which purports to review certain compliance records of over 60,000 employers. Data is supposed to be tied to government records, although my initial spin found several companies accused of exporting jobs based on a Lou Dobbs report.

Certainly labor supporters such as Jordan Barab at Confined Space are enthusiastic, Corporate America Beware: AFL-CIO Creates Key To Who's Been Naughty and Who's Been Nice. And it would probably be wise for employers to check out their own ratings, just to see what employees, potential employees and others may be seeing. Frankly, put in the context of the size of most employers' operations, not to mention the individual cases that may be listed, I think the results may be a lot less damning than many would think, and others would hope. Of course information in context is not always the goal.

3 out of 4 Employees Looking to Move?

Posted 4:01 PM by Michael Fox

That number sounds high to me, but then I didn't do the research. According to the management-issues story, U.S. employers face retention melt-down, SHRM and CareerJournal.com did, and that's what they found. Although money is a factor, another substantial reason for considering moving on -- simply being ready for a new experience. That's a hard one to rectify.

If there's a silver lining to this possible cloud -- employees who leave voluntarily rarely sue.

Thanks to the ever valuable TPWS for the link to story.

"Uncontrolled" Diabetes - And Summary Judgment for the Employee in the 5th Circuit

Posted 2:06 PM by Michael Fox

For some time now lawyers representing both employers and employees have seen "actual disability" cases under the ADA as difficult to make. But just as nature abhors a vacuum so does the law, and more cases are being brought under the "perceived disability" prong. That trend will only quicken following last week's decision in Rodriguez v. Conagra (5th Cir. 11/14/05) [pdf]. The 5th Circuit, not known as pro-employee, not only reverses summary judgment for the employer, but finds the plaintiff was entitled to liability as a matter of law.

Rodriguez worked as a manual labor for Conagra through a staffing agency. Based on his productivity, he was offered a permanent job subject to passing a physical. At the physical, based on a urine sample that showed a high sugar level and his failure to recall the name of his doctor or the medication he took to control his diabetes, the examing doctor termed his diabetes "uncontrolled." Based on that information, the company declined to hire him.

Judge Weiner, in a spirited opinion, relied heavily on the fact that the case was a perceived disability claim which, in his view, completely eliminated the employer's argument that it based its decision on the belief that his diabetes was "uncontrolled." In Judge Weiner's view -- since there was no actual disability, there was nothing that could have been "controlled."

Although many strong supporters of the ADA have decried its effectiveness, this case does show one aspect that works well. The requirement that physical examinations occur only after a job offer has been made, designed to shine a spotlight on any decision that turns on a medical condition - certainly did so here.

A hat tip to the Disability Law blog, which had it right, if perhaps understated, Good Fifth Circuit Diabetes Case, when it reported the case early last week. Rodriguez was not alone in this case as amicus briefs were filed by a group of amicus, AARP, Advocacy, Inc., American Diabetes Association and Coallition of Texans with Disabilities, see their brief here; and a brief by the EEOC. The link to the briefs are collected on the Employment Discrimination page of the website of American Diabetes Association, along with information on other diabetes related cases the Association is following.

Labels: ADA

Friday, November 18, 2005

Statistics and the ADA - Not a Winner for Plaintiff

Posted 4:52 PM by Michael Fox

Re-emphasizing the Supreme Court's standard that establishing disability under the ADA must meet an "exacting standard," the 4th Circuit holds an employee who needed to lift 75 pounds to do his job, and had a 30 pound lifting restriction following a back injury, was not disabled as that term is defined in the Americans with Disabilities Act.

The plaintiff had tried using a statistical finding by a vocational counselor to show he had a substantial impairment in the major life of activity of working:

The vocational consultant estimated that Taylor’s work experience and educational background qualified him for 3,281 job titles out of the 12,741 job titles listed in the Department of Labor’s Dictionary of Occupational Titles. According to the consultant, Taylor’s injury excluded him from 1,871 job titles, or 57 percent of the job titles for which he would have been qualified absent his injury. These figures translate into disqualification from 370,000 jobs in the Baltimore-Washington metropolitan area. Despite his impairment, Taylor remained able to perform the work involved in 1,410 job titles, or over 130,000 jobs in the region.

The Court assumed without deciding that working is a major life activity, but found the district court's grant of summary judgment for the employer in light of these statistics plus evidence that the plaintiff could engage in a "range of daily activities requiring endurance, flexibility, and some strength" was not wrong. Taylor v. Federal Express Corp. (4th Cir. 11/16/05) [pdf].

Responding specifically to the argument that the district court had not given appropriate deference to the consultant's finding, the Court instead held:

Taylor admittedly retains the ability to engage in a wide range of daily activity and to work in over 100,000 jobs in his geographic region, a reasonable juror could not find that his impairment substantially limits his ability to work.

Labels: ADA

Monday, November 14, 2005

EEOC v. Fox News and the Art of Punitive Pleading

Posted 9:57 AM by Michael Fox

Couldn't have been a happy day at Fox News when the EEOC's complaint based on the conduct of one of its vice presidents, Joe Chillemi, was served. See a copy of the complaint, which is replete with "quotes" attributed to Chillemi that are both course and sexist, here. The blogosphere is full of condemnatory articles about Fox and its view/treatment of women.

Without in any way defending the conduct as appropriate, I can't help but wonder if the justice system really benefits from such specific pleadings. I know the argument that the pain caused Chillemi and Fox News by reciting in vivid detail his allegedly inappropriate conduct in a public pleading serves as a powerful message to other employers in the workforce to clean up their acts to ensure they don't receive the same fate. Hard to argue, in fact I sometimes point out the possibility of such a danger in anti-harassment training that I do. And if, as some reports indicate, at least some of the comments have been confirmed as accurate by counsel for Fox News, then it is even harder to argue against the pleading.

And of course this pleading is quite tame compared to many I have seen, such as the complaint against Fox commentator Bill O'Reilly, which are salacious not just crude. See my post from a year ago, Mackris v. O'Reilly - A Sexual Harassment Complaint. Still, and although I know this boat sailed a long time ago, I can't help but wonder if the days when such a pleading would have been seen as scandalous rather than helpful, were not better days.

Labels: EEOC

Sunday, November 13, 2005

Unemployment Decision Not Preclusive in Texas - By Statute

Posted 2:58 PM by Michael Fox

Plaintiff argued he should be entitled to a partial summary judgment for liability on his discrimination claim because he prevailed on his unemployment claim when the Texas Workforce Commission did not find he was terminated for misconduct. The Court of Appeals rejected the argument with short shrift:

The issue decided by the TWC did not, however, in any way address discrimination. Therefore, Piazza’s argument concerning “doctrine preclusion” is without merit.

Piazza v. Cinemark USA, Inc. (Tex. App. - Eastland 10/27/05) [pdf].

Nothing wrong with the result on this point, or on the case as a whole, which affirmed summary judgment for the employer on plaintiff's discrimination claim. However, this is one of those times in which you wished the Court had said a little more, just to make sure that anyone reading the opinion didn't get the idea that if the TWC unemployment decision had "addressed discrimination" it could have had preclusive effect. That idea, which would of course raise the importance of TWC unemployment proceedings to a whole different level, is precluded by the Texas Labor Code:

§ 213.007. COLLATERAL ESTOPPEL DOCTRINE INAPPLICABLE. A finding of fact, conclusion of law, judgment, or final order made under this subtitle [unemployment proceedings] is not binding and may not be used as evidence in an action or proceeding, other than an action or proceeding brought under this subtitle, even if the action or proceeding is between the same or related parties or involves the same facts.

So before anyone gets too excited that this decision might open a door to the use of TWC decisions, check the statute.

Wednesday, November 09, 2005

NJ Whistleblower Wins $1.2 Million Verdict -- Punitives Still to Come

Posted 8:10 PM by Michael Fox

What could be worse than losing a $1.2 MDV whistleblowing lawsuit? How about having to wait until November 28 to have a determination of how much in punitive damages might be awarded? That's the uncomfortable position of C & S Wholesale Grocers is in following last Friday's verdict in a whistleblower retaliation claim brought by a former refrigeration mechanic. Steven Sommese claimed that his employer condoned refrigerant leaking into the atmosphere in violation of the Clean Air Act. His story, which apparently the jury believed, was that he was retaliated against and ultimately terminated for calling this to his employer's attention. See Jury gives Dover man over $1.2M in the Asbury Park Press.

Under Texas state procedure the defendant can request to bifurcate the issue of punitive damages but most defendants do not. The thought of having to wait 3 weeks for the other shoe to drop, is just one good reason.

Labels: MDV

While I Was Vacationing, the Supremes Were Whistling At Work

Posted 10:41 AM by Michael Fox

It would have been kind of the Supreme Court to have waited to hand down their first employment law decision of the term until I returned from the beauty of the wine country. Fortunately, my colleagues at Ogletree, Deakins were hard at work and you can check out their analysis here, When Walking and Wages Collide.

One thing the case may tell us is that life under the Roberts court will be at a faster pace. Yesterday's decision in IBP v. Alvarez comes merely one month after the case was argued. And for those looking for any insight into how Chief Justice Roberts would either differ from or influence the court on employment law matters, hard to read much from this case since it was a unanimous opinion. Interestingly, the opinion, which would have been assigned by Chief Justice Roberts, was written by Justice Stevens, the senior member of the Court and a solid member of the "liberal" wing. For those who try to figure out what such minutiae mean, it could be the sign of a true consensus builder at work, or it could just be happenstance.

Monday, November 07, 2005

The Habit of Blogging

Posted 10:11 AM by Michael Fox

Is as easily lost as other "good" habits it seems. After going for more than two years with consistent postings, I seem to have fallen "out of the habit" since early this fall. Although there are, as always, excuses for why, ultimately it proves little more than that I am indeed a creature of habit. And once a habit is "lost", inertia is difficult to overcome. And since I am writing this in a lovely cottage deep in the wine country (with a 'borrowed' wireless connection that is none too strong) it is unlikely that this is the week I will regain it.

But will all good intentions on my return to Austin next week, hopefully I will restart the"blogging habit." In the meantime, I will be fortifying my resolve at the various wineries in Sonoma and Napa, plus speaking on Thursday at the LEAP Seminar at the Silverado Resort.

Cheers.

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