Jottings By An Employer's Lawyer

Monday, August 28, 2006

More Than Just the Dog Days of August

It is hot in Texas, and my Astros have pretty well fizzled for the season, but it's more than that which has precluded posting this past week and will impact it this week as well. My paying job is keeping me busier than usual. If not before, will see you after Labor Day.

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Wednesday, August 16, 2006

New DOJ Website for Veterans

The Department of Justice has a new website, Safeguarding the Rights of Servicemembers and Veterans Homepage, assisting those who have served in the military in asserting rights under USERRA and similar statutes. It includes an on-line claim filing procedure. It also includes a link to the statute and to cases interpreting the statute.


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Tuesday, August 15, 2006

Defamation MDV on the College Campus

A trial over the dispute between two professors ended this way, Jury grants ex-professor $3.5M in HU lawsuit. One professor had passed out flyers at a Hampton University graduation saying the other demonstrated "moral defectiveness," and could "not serve as a role model for young people to emulate." The flier also described the plaintiff as a "stain on our bright, beautiful Hampton University."

The professor's breach of contract over her termination and one other defamation claim was unsuccessful.

Of course this is just the first stop, although no doubt quite a painful one for the University. One issue -- whether the university is responsible for the now deceased flyer-distributing academic. According to the University's counsel, "We have to argue this, even if it means we set new case law," she said. "We have to appeal this not only for Hampton University, but for every other employer in the state of Virginia."

A noble sentiment, assuming they prevail.


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MDV Update: Delaware Verdict Taken Away

Supreme Court decisions really do matter. See the post on the age discrimination decision in the 2nd Circuit a couple of posts below for a change in a result. And today a district court entered a take nothing judgment, not the $2 million verdict found by the jury. Judge tosses verdict in trooper case.

See my prior post, MDV in Delaware for Whistleblowing Troopers.


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9th Circuit Reverses Course on ERISA Standard of Review

While I am sure that there will be more in depth coverage of today's decision in Abatie v. Alta Life & Health Insurance Co. (9th Cir. 8/15/06)(en banc) [pdf], by those who write regularly on benefits issues, a quick word to the wise -- there's a new rule in the 9th Circuit for determining how to judge a fiduciary acting with discretion when there is a conflict of interest. Out is the Court's previous burden shifting approach of Atwood v. Newmont Gold Co., 45 F.3d 317 (9th Cir. 1995), which the Court today says was wrongly decided.

Instead the Court aligns itself with other circuits, with a conscious rejection of some's use of the "sliding scale" metaphor. And to pique the ERISA practitioners' interest, the Court also set out new rules on reviewing a fiduciary's action when procedural aspects of ERISA have been violated.

Check it out.


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The Difference Between Disparate Impact and Disparate Impact 'Lite'

Was clearly played out in the 2nd Court of Appeals yesterday as the Court revisited its 2004 decision in Meacham v. KAPL, Inc. where it found the employer guilty of age discrimination under the disparate impact theory. I had this comment at the time, If the Supreme Court Accepts Disparate Impact Under the ADEA -- Read Your Future.

Yesterday, the 2nd Circuit held that the same employer in the same case won under the disparate impact theory. Meacham v. KAPL, Inc. (2nd Cir. 8/14/06) [pdf]. In between and responsible for the two differing outcomes was the Supreme Court's decision in Smith v. City of Jackson, reported on in my post, Supreme Court - 'Adverse Impact* Lite' Theory Available Under the ADEA.

Under the full fledged disparate impact theory, if a plaintiff points out a specific employment practice that disparately impacts on a protected class and shows that there is an acceptable alternative that would not have a disparate impact -- plaintiff wins. That version of adverse impact is available for those protected by Title VII.

But age claimants, by virtue of Smith v. City of Jackson are protected only by disparate impact 'lite'. Which means according to yesterday's opinion, that when the plaintiff established a specific employment practice disparately impacted a group based on age, the burden of explaining that practice shifted to the defendant. When the defendant articulated a reason for that employment practice, the burden shifted back to the plaintiff to show that the rationale given by the employer was "unreasonable." The fact that there is an alternative that would not create a disparate impact does not matter.

Bottom line for the Meacham plaintiffs, even though they could show an alternative practice they could not show the rationale was unreasonable. Victory was snatched from them because it is disparate impact 'lite' not just disparate impact.

All is not necessarily lost since there was a vigorous dissent. Maybe the in banc court will want to give it yet another go.

*I now officially give up my campaign to assist all of us by using totally separate terms for totally separate theories of discrimination. If it were left to me, I would say "disparate treatment" and "adverse impact." But no matter how helpful that might be, I yield to the Supreme Court (and everyone else it seems) and will now use disparate impact as well as disparate treatment.

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Sunday, August 13, 2006

Establishing Pretext - A Plain and Important Test

It's a retaliation case that cites to Burlington Northern v. White, but that is only window dressing because the case turns on the employee's ability to establish pretext. Too often courts fail to make clear just what that takes for purposes of avoiding summary judgment. That was not the case in Yindee v. CCH Inc. (7th Cir. 8/11/06) [pdf]:

[O]nce a non-retaliatory explanation has been articulated, the plaintiff must show that this explanation is a pretext for discrimination. To do this the employee must establish that the explanation is a lie, which permits a jury to infer that the tale has been concocted to conceal an unlawful truth. ... It is not enough to demonstrate that the employer was mistaken, inconsiderate, short-fused, or otherwise benighted; none of those possibilities violates federal law. ... Poor personnel management receives its comeuppance in the market rather than the courts. [emphasis added, internal cites omitted]

For those interested in keeping score, the employee didn't hit the standard. At best:

[Her boss] may have acted precipitately. He may have been wrong in denigrating Yindee’s skills or productivity. But on this record a reasonable jury could not find that he lied to the court about his reasons. Yindee has not created a material dispute about the pretext question, so CCH is entitled to prevail as a matter of law.
The direct language of Judge Easterbrook set out in bold above, is, or should be, at the heart of any motion where pretext is an issue -- did the employer lie?

[O]nce a non-retaliatory explanation has been articulated, the plaintiff must show that this explanation is a pretext for discrimination. To do this the employee must establish that the explanation is a lie,

A "pretext" is not a lie, it is (in this CONTEXT) a truth used to deceive.

"The word pretext is derived from the Latin Praetextus, meaning outward display. The word Praetextus was used to describe the outer weave of a fabric, which was something in the front and used as border or disguise. It was formed by juxtaposing Prae with texere (textile)."

The lawyer who recently won almost a mil against his (Pasadena CA) firm was pretextually fired for attending a funeral which in some way supposedly violated the firm's policy, but the jury saw that the real reason was his need to be treated for an illness.

the typical pretext employers use is a truth the employer seizes upon to cover (see above) their real reason.

For instance-- a habitually tardy employee gets pregnant.. the employer calls us and says "can I fire her?"

Of course, we said "no" but the truth was the 'ee was tardy AND the desire to fire her arose from her her pregnancy.

so-- this test is B O G U S.
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Timing May Not Be Everything, But It Does Mattter

Plaintiffs found that out the hard way last week as their claims were dashed because of their failure to file timely charges. In Haynes v. Level 3 Communications, LLC (10th Cir. 8/8/06) [pdf] a charge of discrimination was filed within 300 days of Haynes' termination, but unfortunately for her there was no basis for finding her termination discriminatory, since employees placed on PIP's, like plaintiff, were selected for the RIF. (The Court also disagreed with the trial court's reading of its precedent about the impact of PIP's, saying it was joining other circuit courts to consider the issue and holding that merely placing an employee on a PIP was not an adverse employment action.) All other discriminatory actions were beyond the 300 days limit -- case dismissed.

A similar fate, although somewhat more complicated, occurred in MacDonald v. Grace Church Seattle (9th Cir. 8/11/06) [pdf]. McDonald actually filed her charge of discrimination within 300 days, but was tripped up because it was not filed within 180 days. Although normally, she could have relied on the 300 day time period because Washington is a normally a deferral state, it didn't work here because Washington's state statute does not cover non-profit religious organizations. If the state law doesn't cover the subject or the employer, it does not extend the time for filing.

Never underestimate the importance of timing.

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Tuesday, August 08, 2006

Statistics 101 in the 10th Circuit

Well perhaps not 101, but since cases that are determined solely on the results of the statistical analysis don't come along all that often, you can be sure all the number crunchers will be carefully reading the decision in Carpenter v. The Boeing Co. (10th Cir. 8/7/06) [pdf].

After certifying a class of women who claimed that Boeing's practice of allowing supervisor's discretion in selecting employees for overtime disparately impacted women, the district court granted summary judgment to Boeing. On appeal, the 10th Circuit agreed. While the study of the plaintiffs' expert did establish statistically significant differences in the amount of overtime received by men and women, it failed because it did not include all the factors that would determine who was eligible for overtime. Without an adequate comparison, the statistics were ultimately meaningless.

A good reminder if you are in a statistical battle.

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Lawyer Wins MDV -- For Himself

It is generally thought that lawyers are not the most sympathetic of plaintiffs, which is probably true. But when it is a lawyer suing his law firm for wrongful termination -- Jury Awards Lawyer $1.1 Million in Wrongful Termination Suit. But at least it was a 9-3 verdict.

Warren Snider, a 51 year old associate at the Pasadena, California firm of Laquer Urban Clifford & Hodge LLP, notified the firm he was undergoing a 48 week course of treatment for liver disease which might cause him to miss the 150 hour per month billing requirement, although he thought he should be able to average 135 to 140. According to the story from the Metropolitan News Enterprise, four months into his treatment program he was terminated for attending his father-in-law's memorial service in Northern California.

The jury found the firm failed to accommodate Snider and wrongfully terminated him. It awarded him his earnings through age 62, almost an even million dollars, and $105,000 for emotional distress. He had offered to settle for $450,000.

When I first started the practice of law 30 years ago, it was almost unheard of that a law firm would appear in court in any role other than as counsel for one of the parties. Now, with malpractice claims multiplying and the practice of law talked about even by the practitioners themselves as "a business", it is no surprise that law firms as employers are finding themselves in a very different court room role.


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Friday, August 04, 2006

Employment Law On the Edge

If you are looking for CLE from your desktop, check out a live web broadcast sponsored by the State Bar of Texas next Wednesday, August 9th. Kathy Butler of Butler & Harris in Houston, a truly great employee's lawyer, and I will be discussing a number of different issues (as well as making our web broadcast debuts).

Here's a brief description of Employment Law On the Edge from the Bar's website:

As society changes, employment law is forced to adapt. From piercings to gender changes, religious beliefs versus diversity programs, to new forms of communications, employment law is at the forefront of social change. Employment lawyers now operate in a new workplace, where employees may well be or want to be:

  • Pierced and tattooed
  • Changing genders
  • Living an alternative life style, or opposing them
  • Writing about what's going on at work
  • Challenging longstanding beliefs and practices

For details on registration go here.

I would say hope to see you there, but given the mode of presentation that won't work, it's a one way street -- you can see us, we won't be able to see you. We will be taking questions by email so please join in.

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The Rogue Supervisor, OSHA and the Burden of Proof

Those three items sum up the important aspects of today's decision by the 5th Circuit, W.G. Yates & Sons Construction Co. v. Occupational Safety & Health Review Commission (5th Cir. 8/4/06) [pdf]. Judge Jolly succinctly sets out the factual background:
In this case it is not disputed that Olvera was a supervisory employee, that his own conduct is the OSHA violation, and that he knew his conduct was violative of the law and of company policy.
The question -- with nothing more, had the Secretary proved a willful violation of OSHA?

Noting that the circuits are split, the 5th Circuit takes a slightly different approach, holding that in such cases the Secretary has the burden of showing that the conduct of the foreman should be imputed to the employer. It is not imputable where "the employer’s safety policy, training, and discipline are sufficient to make the supervisor’s conduct in violation of the policy unforeseeable."

Justice Reavley dissents and would place the burden on the employer to show that the acts were unforeseeable as an affirmative defense.

Rather than being a "what's the difference" type of opinion; the placement of the burden of proof often determines who wins and who loses. Having the burden placed on the shoulders of OSHA gives employers with good safety programs protection from strict liability, even when it is a supervisor who breaks the rules.

A compliment should go to W.G. Yates and Sons Construction Co. for taking this matter up. This was not a decision that it makes "economic sense" to appeal since the penalty in question was $5,000. However, establishing the principle of where the burden lies is important for all who litigate these issues. Given the split in the circuits it may even be the case that puts the issue before the Supreme Court.

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Thursday, August 03, 2006

Dismissal of Case Because of Statements to Press Upheld by Michigan S.Ct.

Wading into a thicket with constitutional dimensions, the Michigan Supreme Court in a 4-3 decision affirmed the dismissal of a sexual harassment case after plaintiff's counsel publicized certain evidence that the Court had excluded. Maldonado v. Ford Motor Co. (Mich. 7/31/06),

A hat tip to Julie Creswell of the NYT for her story which provides background information if you are not ready to wade through the 70 page opinion. The evidence that was being publicized included a 1995 conviction for indecent exposure, later expunged, against a supervisor accused of exposing himself to women who worked at a Ford plant. Apparently 4 lawsuits arose out of the supervisor's alleged conduct.

This is not a case of a simple one time comment, as highlighted by a footnote in the Court's opinion:
The following is a list of the publications stemming from plaintiff’s counsel’s September 11, 2001, press release, many of which refer to Bennett’s excluded conviction:
  • (1) The Associated Press wire story, September 12, 2001, referencing the excluded conviction;
  • (2) an article in the Detroit Free Press, September 13, 2001, referencing the excluded conviction;
  • (3) an article by the United Press International, October 10, 2001, referencing the excluded conviction;
    (4) The Associated Press wire story, October 10, 2001, referencing the excluded conviction;
  • (5) a Fox 2 news broadcast held at the law office of Scheff and Washington, October 10, 2001, referencing the excluded conviction and providing a closeup of the conviction papers;
  • (6) a WDIV news broadcast, October 10, 2001, referencing the excluded propensity evidence; and
  • (7) an article in the Oakland Press, October 11, 2001, referencing the excluded conviction.
The Court saw it as a question of a court's power to police the justice system:
The issue in this case pertains to the extent of a trial court’s authority to govern the conduct of counsel and their clients in court proceedings. Where the Michigan Constitution authorizes us to make rules to govern court proceedings, the authority to enforce those rules inescapably follows. At the heart of preserving an organized polity, we must attend to relevant issues, including concerns over belligerent, antagonistic, or incompetent lawyering. To this end, we affirm the authority of trial courts to impose sanctions appropriate to contain and prevent abuses so as to ensure the orderly operation of justice.
The Court was not unaware of the constitutional dimension, but found the lower court's order a "narrow and necessary limitation aimed at protecting potential jurors from prejudice," not a violation of the First Amendment. A contention vigorously disagreed with by the three dissenters. Given this issue, the U.S. Supreme Court may very well be asked to weigh in.

Regardless of whether it is or not, it is an important opinion for anyone involved in a case that is being "tried in the press" or for lawyers reflecting on how we should behave. I admit a visceral opposition to such conduct, feeling strongly that lawsuits should be tried in the court room not the press. That view was re-enforced after a videotape that was the centerpiece of several harassment lawsuits I was defending was first hyped, then played on the local tv news during sweeps week, a period known more for sensationalism than serious journalism.

It is also an important case as a reminder of how lawyers are viewed and for reflection on how it is that we carry out our role in the justice system. Unfortunately, the conduct of counsel on neither side escapes unscathed in the opinions.

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Dick Haynes, 1931 - 2006

For 16 years I was fortunate enough to be a partner at the law firm of Haynes and Boone. I still have the original document entitled the Merger of the Law Practices of Haynes and Boone and McGown & McClanahan. I have always been taken by the humility of the way it is styled since McGown & McClanahan was a group of five lawyers in San Antonio and Haynes and Boone even then was 130+ lawyers and well on its way to becoming the regional, even national powerhouse that it has become today.

I am reminded of that document because of the death this week of the founder of the firm, Dick Haynes, following a long illness. Humility, courtesy and professionalism were just three of his many attributes and they were all reflected in that document and transaction. Meeting and participating in the negotiations of the "merger" with Dick was a real highlight in my career as a lawyer. When I was in the room with Floyd McGown, Roy McClanahan and Dick I was truly in the presence of three lawyers who were what every lawyer should hope to be.

One of my greatest disappointments was that the week end before the merger was effective Dick was felled by a stroke which prevented him from returning to the day to day practice of law. Nevertheless as the email released by the firm yesterday said:
Dick had and will continue to have a tremendous influence on our firm. His integrity, ethics and high standards of professionalism have been a driving force behind our culture.
The full email from the firm is below.

We thought you would want to know about the recent death of our co-founder and name partner, Dick Haynes. He died peacefully yesterday afternoon at a local hospital after a long illness.

Dick had and will continue to have a tremendous influence on our firm. His integrity, ethics and high standards of professionalism have been a driving force behind our culture.

Services will be at 3:00 p.m. on Monday, August. 7, at the Church of the Incarnation, 3966 McKinney Avenue, Dallas, Texas 75204-2099. There will be a reception immediately after the service at the church.

Dick's family prefers no visitors right now, but looks forward to seeing his many friends and colleagues at the service and reception.

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Curiosity Killed the Cat and the Unemployment Claim

When people ask employment lawyers why we do what we do, inevitably one of the reasons is because of the stories. Truthfully, you can't make some of this stuff up.

If you doubt me, just check out the Des Moine Register story, Man fired for getting gassed on spilled ethanol at work, about a contested claim for unemployment insurance where the fired employee had a .72 blood alcohol level (9 times the legal limit in most states) after he drank ethanol that had spilled into a holding tank.

The exchange between the hearing examiner and the employee:
"Why would you drink fuel?"
"I don't have a good explanation for that," he replied. "Curiosity?"
Unlike some unemployment hearings, this one ended up with more than a little common sense:

"The employer has a right to expect employees not to drink the fuel," [the hearing examiner] ruled. "Just because some of the ethanol leaked onto the floor is not a good reason for the claimant to drink automobile fuel."
A funny story -- on the other hand, another lesson you learn when you do employment law is that every story has two sides. In this case the employee was a recovering alcoholic, who among other things had been convicted twice for driving while intoxicated. It doesn't excuse the conduct nor should it change the result, but it's a good reminder that before jumping to conclusions you need to make sure that you understand the whole story. The conclusions may stay the same, but you may view it in an entirely different perspective than you did.

A thanks to my colleagues Marie Hejl for finding the story and Rose Jennings for passing it on.

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