All posts by Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 30 years of experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261.
Democracy, Vacancies

Special Election for Senator Byrd’s Seat, and “Democracy in America” From Northern Exposure TV Series

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Today is the Spe­cial Unit­ed States Sen­ate Pri­ma­ry Elec­tion for Sen­a­tor Byrd’s seat in West Vir­ginia.

With Democ­ra­cy on my mind: Below is a video seg­ment of the “Democ­ra­cy in Amer­i­ca” episode of North­ern Expo­sure. When you click the play but­ton below, you might get a copy­right mes­sage so that you have to get redi­rect­ed to the actu­al YouTube site (on which this seg­ment is available).

This episode of North­ern Expo­sure was a won­der­ful (and mov­ing) glimpse of democ­ra­cy in small town Amer­i­cana, cen­ter­ing around the may­oral elec­tion for the fic­tion­al Cice­ly, Alas­ka. There are a num­ber of oth­er seg­ments from that episode on YouTube. If you have some free time, get on YouTube and type “North­ern Expo­sure democ­ra­cy in Amer­i­ca” to see some of the oth­er clips. Or buy the DVD of sea­son three of North­ern Expo­sure, which con­tains the Democ­ra­cy in Amer­i­ca episode. While you’re at it, for anoth­er won­der­ful glimpse of small town Amer­i­cana, watch the always fan­tas­tic Robert Pre­ston in The Music Man.

Update (2015): It looks like the video linked above has been blocked on copy­right grounds, so here is the Ama­zon link to buy sea­son three of North­ern Expo­sure, which includ­ed the “Democ­ra­cy in Amer­i­ca” episode.

Drew Capuder, Social networking

Please help me!! I’m Tweeting, and I can’t stop!!!!!

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Okay, I got­ta admit that I’ve been skep­ti­cal about the val­ue of Twit­ter. Lawyers tend to delude them­selves into believ­ing that they think impor­tant and deep thoughts. For exam­ple: “I just read an inter­est­ing arti­cle on res ipsa loquitur and its rela­tion­ship to the Philip­pines pro­bate code. Would you please pass the Chardon­nay and the shrimp tem­pu­ra?” And let’s face it, how good are lawyers at being brief? Lawyers are almost con­gen­i­tal­ly inca­pable of express­ing them­selves in 140 char­ac­ters or less.

But my army of mar­ket­ing con­sul­tants (er, all the mar­ket­ing dudes writ­ing on the Inter­net) says Twit­ter and Face­book have real busi­ness val­ue for lawyers (every­one assumes lawyers are too anti-social to actu­al­ly use those sites for their orig­i­nal­ly intend­ed social pur­pos­es). So I’ve done some mod­er­ate­ly care­ful look­ing at Twit­ter and have decid­ed to jump on the band­wag­on. Of course, now that I am on that band­wag­on, I think Twit­ter is the great­est thing since sliced bread. Here it is, my but­ton so you can fol­low me on Twit­ter:

Follow DrewCapuder on Twitter

What am I Tweet­ing about (like most peo­ple above 23, I ini­tial­ly asso­ci­at­ed the word “Tweet­ing” with some­thing that was drip­ping down my leg)? I have only been Tweet­ing a few weeks, so I am still get­ting my sea legs. But here is a list of things I have been and expect to be Tweet­ing about:

  • Employ­ment-relat­ed legal issues. This is the main area of my prac­tice, and most of my Tweets will be on this topic.
  • Legal issues relat­ing to the med­ical indus­try (much of my employ­ment lit­i­ga­tion is in the med­ical industry).
  • Oth­er legal issues which I think may be of inter­est to my “fol­low­ers” (I feel the pow­er cours­ing through my veins).
  • Time man­age­ment and orga­ni­za­tion­al skills. Like most lawyers and busi­ness peo­ple, I am always look­ing for ways to become more effi­cient, so I can spend more time con­cen­trat­ing on deep thoughts.
  • Com­put­er and soft­ware prod­ucts & issues that might be of inter­est to lawyers and busi­ness people.
  • Media issues. I teach a class at Fair­mont State Uni­ver­si­ty on legal and eth­i­cal issues in media, and I am espe­cial­ly inter­est­ed in media bias in gen­er­al and specif­i­cal­ly relat­ing to polit­i­cal coverage.
Con­tin­ue read­ing Please help me!! I’m Tweet­ing, and I can’t stop!!!!! →
Democracy, Race discrimination

Martin Luther King; His entire “I Have a Dream” speech

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Today is the 47th Anniver­sary of Dr. Mar­tin Luther King’s “I Have a Dream Speech” giv­en on the steps of the Lin­coln Memo­r­i­al. We are now two gen­er­a­tions removed from that speech. Worse, we live in the age of MTV, Twit­ter, and 30-sec­ond sound­bites on the evening news. So all too often, we see only bite-sized snip­pets from Dr. King’s speech, so I want­ed to post the entire speech on this video from YouTube:

Click here for a site that has the tran­script, audio, and video of the speech.

Hostile work environment, Prompt remedial action, Result for Employee, Sex Discrimination, Sexual harassment, Summary Judgment, Title VII of the Civil Rights Act of 1964

Single act may create hostile work environment, according to Seventh Circuit in Berry v. Chicago Transit Authority

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A few days ago, I post­ed my arti­cle on PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , in which the West Vir­ginia Supreme Court ruled that a sin­gle episode involv­ing mul­ti­ple uses of the N‑word could cre­ate a racial­ly hos­tile work envi­ron­ment.

The US Court of Appeals for the Sev­enth Cir­cuit just released an opin­ion in Berry v. Chica­go Tran­sit Author­i­ty, 618 F.3d 688 (7th Cir. 2010), which rais­es the sim­i­lar issue: Can a sin­gle instance of sex­u­al harass­ment cre­ate a hos­tile work envi­ron­ment? And the answer was yes, depend­ing on the circumstances.

Ms. Berry is Sexually Harassed in a Single Incident

Cyn­thia Berry was an employ­ee at the Chica­go Tran­sit Author­i­ty. She was on her break and sat at a pic­nic style table with three male co-work­ers. A fourth male co-work­er, Philip Carmichael, had fol­lowed her to the pic­nic area and ordered Ms. Berry to get up from the table. Offend­ed by Mr. Carmichael’s “com­mand­ing tone”, Ms. Berry remained seat­ed. Mr. Carmichael then sat down and “strad­dled the bench” so he was fac­ing one of the male co-work­ers at the pic­nic table, and so that Mr. Carmichael’s back was close to Ms. Berry. The oth­er three male co-work­ers got up from where they were seat­ed at the pic­nic table and moved to the oth­er end of the table. Then:

Berry says Carmichael remained where he was seat­ed and began rub­bing his back against her shoul­der. She jumped up, told him not to rub him­self against her, and sat down next to Hardy at the oth­er end of the table. At this point,
Berry says, Mar­shall began telling her to get up from the table again. Not want­i­ng Mar­shall to think he could order her around, she remained seat­ed, but began rub­bing her tem­ples to com­pose her­self. Accord­ing to Berry, she next felt Carmichael grab­bing her breasts and lift­ing her up from the bench. Hold­ing her in the air, he rubbed her but­tocks against the front of his body—from his chest to his penis—three times before bring­ing her to the ground with force. Berry land­ed off-bal­ance, with only one leg on the ground, and says Carmichael then pushed her into a fence. Upset and want­i­ng to avoid any men, she lay down in a bus for the rest of her shift.

Con­tin­ue read­ing Sin­gle act may cre­ate hos­tile work envi­ron­ment, accord­ing to Sev­enth Cir­cuit in Berry v. Chica­go Tran­sit Author­i­ty →
Attorney's Fees, Back and Front Pay Issues, Constructive discharge, Emotional Distress Damages, Employment policies, Hostile work environment, Prompt remedial action, Race discrimination, Result for Employee, Retaliation claims, WV Human Rights Act, WV Human Rights Commission, WV Supreme Court

The disastrous consequences of the N‑word in the workplace. Just ask Dr. Laura!

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Okay, this arti­cle has noth­ing to do with Dr. Lau­ra Sch­lessinger and her “rant” in which she used the N‑word repeat­ed­ly on her radio pro­gram when respond­ing to an African-Amer­i­can caller. But the ensu­ing con­tro­ver­sy (see arti­cles for and against Dr. Lau­ra), and her deci­sion to end her long-run­ning radio pro­gram, high­light the extra­or­di­nary sig­nif­i­cance of the N‑word term in Amer­i­can society.

The West Vir­ginia Supreme Court recent­ly dealt with the N‑word in a case that high­lights the great risks for employ­ers when that word enters the workplace.

In PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , 225 W. Va. 624, 695 S.E.2d 854, 2010 WL 2244096 (June 3, 2010) (per curi­am), the West Vir­ginia Supreme Court dealt with a claim of a racial­ly based hos­tile work envi­ron­ment under the West Vir­ginia Human Rights Act, and con­clud­ed that the West Vir­ginia Human Rights Com­mis­sion was jus­ti­fied in find­ing for the employ­ee. The deci­sion was unan­i­mous. Click here for the WV Human Rights Com­mis­sion’s deci­sion which was affirmed by the WV Supreme Court.

A Single Day, With the N‑Word Again and Again

PAR Elec­tri­cal was build­ing “giant tow­ers” for a high volt­age elec­tri­cal trans­mis­sion line. Richard Wayne Bev­elle was hired by PAR Elec­tri­cal on March 22, 2005, and, after work­ing as a “ground­man” assem­bling the tow­er bases, was assigned to load heli­copters with parts to con­struct the tow­ers (this heli­copter job was described as a “gravy job” by the Human Rights Com­mis­sion). Mr. Bev­elle is African-American.

Con­tin­ue read­ing The dis­as­trous con­se­quences of the N‑word in the work­place. Just ask Dr. Lau­ra! →
Age Discrimination, Back and Front Pay Issues, Emotional Distress Damages, Jury verdicts, Punitive damages, Result for Employee, WV Human Rights Act

Charleston, WV Jury Awards $1.7m in Age Discrimination Case, 10–1‑09

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On Octo­ber 1, 2009, a jury in Charleston, Kanawha Coun­ty, West Vir­ginia returned a ver­dict in an age dis­crim­i­na­tion case, award­ing James Nagy a total of $1,750,450.

The Lawsuit

James Nagy filed suit in Charleston in March 2008 against West Vir­ginia Amer­i­can Water Com­pa­ny, alleg­ing that he was fired in March 2007 because of his age at 53, after 23 years of employment.

James Nagy was rep­re­sent­ed by Maria W. Hugh­es and Stephen Weber at Kay Cas­to & Chaney PLLC. West Vir­ginia Amer­i­can Water Com­pa­ny was rep­re­sent­ed by Mychal Schulz at Dins­more & Shohl LLC.

The case is pend­ing in Cir­cuit Court in Kanawha Coun­ty, West Vir­ginia, before Judge Jen­nifer Bai­ley-Walk­er.

The Verdict

That $1,750,450 ver­dict con­sist­ed of:

Award of Attorney’s Fees and Expenses

Under the West Vir­ginia Human Rights Act (which pro­hibits age and oth­er forms of dis­crim­i­na­tion in the work­place), Nagy’s coun­sel filed a motion addi­tion­al­ly request­ing attor­neys’ fees and expenses.

Judge Bai­ley-Walk­er award­ed the plain­tiff total attorney’s fees of $177,772.50, and $8,855.33 in expenses.

Appeal

The Defen­dant is in the process of appeal­ing.  The issue of attor­neys’ fees was resolved by Judge Bai­ley-Walk­er on June 8, 2010, so the appeal process is in its ear­ly stages as of the date of this arti­cle being updat­ed (July 31, 2010). As things devel­op in the appeal, I will update this article.

July 31, 2010

Family and Medical Leave Act (FMLA), Sexual orientation

FMLA now applies to leave for care of children by same-sex couples

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The Unit­ed States Depart­ment of Labor recent­ly issued an Administrator’s Inter­pre­ta­tion 2010–3 which applies leave rights under the Fam­i­ly and Med­ical Leave Act to care of chil­dren by same-sex cou­ples. The US Depart­ment of Labor issued a press release to help explain the Administrator’s Inter­pre­ta­tion. In oth­er words, employ­ees in same-sex rela­tion­ships who qual­i­fy for leave under the FMLA will be enti­tled to pro­tect­ed leave for the qual­i­fy­ing care of their children.

As the DOL’s press release suc­cinct­ly says, the “FMLA allows work­ers to take up to 12 weeks of unpaid leave dur­ing any 12-month peri­od to care for loved ones or them­selves”. (29 U.S.C. 2612; 29 C.F.R. 825.200).

What is a “son or daughter”?

The key issue was when the child fell into the def­i­n­i­tion of “son or daugh­ter” for the employ­ee seek­ing leave. When does the law rec­og­nize the child as the “son or daugh­ter” of the employee?

Administrator’s Inter­pre­ta­tion 2010–3 sets out the statu­to­ry lan­guage, and same-sex cou­ples now have the nec­es­sary rela­tion­ship to the child through the sta­tus of being “in loco par­en­tis”, which more or less means some­one who “stands in the place” of the par­ent. Here is the dis­cus­sion in the Administrator’s Interpretation:

The FMLA enti­tles an eli­gi­ble employ­ee to take up to 12 work­weeks of job-pro­tect­ed leave, in rel­e­vant part, “[b]ecause of the birth of a son or daugh­ter of the employ­ee and in order to care for such son or daugh­ter,” “[b]ecause of the place­ment of a son or daugh­ter with the employ­ee for adop­tion or fos­ter care,” and to care for a son or daugh­ter with a seri­ous health con­di­tion. See 29 U.S.C. § 2612(a)(1)(A) — ©; 29 C.F.R. § 825.200. The FMLA defines a “son or daugh­ter” as a “bio­log­i­cal, adopt­ed, or fos­ter child, a stepchild, a legal ward, or a child of a per­son stand­ing in loco par­en­tis, who is— (A) under 18 years of age; or (B) 18 years of age or old­er and inca­pable of self-care because of a men­tal or phys­i­cal dis­abil­i­ty.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122©, 825.800.

(empha­sis added).

Con­tin­ue read­ing FMLA now applies to leave for care of chil­dren by same-sex cou­ples →
Attorney's Fees, Drew Capuder, Retaliation claims

Drew Capuder will be speaking on retaliation law on Oct 29–30, 2010 at Oglebay Park in Wheeling

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I will be speak­ing (and pre­sent­ing on arti­cle) on recent devel­op­ments in retal­i­a­tion under fed­er­al and West Vir­ginia employ­ment law on either Octo­ber 29 or 30, 2010 at the annu­al con­fer­ence of the West Vir­ginia Employ­ment Lawyers Asso­ci­a­tion. The con­fer­ence will be at Ogle­bay Resort and Con­fer­ence Cen­ter in Wheel­ing, West Vir­ginia. The final sched­ule is not out yet, so I don’t know whether my speech with be on Octo­ber 29 or 30.

Retal­i­a­tion law in recent years has been one of those devel­op­ing areas, and much more often than not the move­ment in the case law has been in the direc­tion of expand­ing pro­tec­tions for employ­ees against retal­i­a­tion. The US Supreme Court espe­cial­ly has focused on retal­i­a­tion law, and has “plugged gaps” in the law for fed­er­al employ­ees to include pro­tec­tion for retal­i­a­tion claims, has low­ered the thresh­old for what is action­able retal­i­a­tion, and has broad­ened the def­i­n­i­tion of “oppo­si­tion” which enti­tles employ­ees to protection.

One of the dan­gers for employ­ers from retal­i­a­tion claims is that, after an employ­ee com­plains about alleged dis­crim­i­na­tion, the employ­er may be guilty of retal­i­a­tion even if a jury decides there was no dis­crim­i­na­tion to sup­port the employee’s orig­i­nal com­plaint. An employ­ee may suc­ceed in a retal­i­a­tion claim as long as his com­plaint was made in good faith, even if the employ­ee was wrong about the com­plaint of discrimination.

In the pri­or 2 years at the annu­al con­fer­ence for WVELA, I spoke and wrote arti­cles on awards of attor­neys’ fees under employ­ment dis­crim­i­na­tion laws, and on age dis­crim­i­na­tion.

Americans with Disabilities Act, Disability discrimination, Drew Capuder, Family and Medical Leave Act (FMLA), Hostile work environment, Sexual harassment

Drew Capuder will be speaking on disability and sexual harassment issues in Morgantown Oct. 20, 2010

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I will be speak­ing (and pre­sent­ing arti­cles)  at a sem­i­nar spon­sored by Ster­ling Edu­ca­tion Ser­vices on Octo­ber 20, 2010 in Mor­gan­town, West Vir­ginia, enti­tled “Fun­da­men­tals of Employ­ment Law”.

I will be speak­ing (and pre­sent­ing arti­cles) on “Sex­u­al, Racial, and Oth­er Harass­ment in the Work­place” and “ADA and FMLA Update”.

Here is the full agen­da, and here is the fac­ul­ty infor­ma­tion. The sem­i­nar will pro­vide around 6–8 hours of con­tin­u­ing edu­ca­tion cred­it for lawyers (I don’t know the exact num­ber, but the sem­i­nar is a full day).

You can reg­is­ter for the the sem­i­nar online. For fur­ther infor­ma­tion, you can con­tact Ster­ling, and their num­ber is 715–855-0498.

Harless wrongful discharge, Hostile work environment, Intentional infliction of emotional distress, Medical Industry Litigation, Pleading requirements, Result for Employee, Retaliation claims, Sex Discrimination, Sexual harassment, WV Human Rights Act, WV Supreme Court

Sorry boss, I didn’t know you were having sex in the office!!

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The West Vir­ginia Supreme Court recent­ly issued an opin­ion deal­ing with one of those stereo­typ­i­cal­ly awk­ward sit­u­a­tions, where an employ­ee alleged­ly stum­bles into a room where the boss is hav­ing sex with a co-work­er. The deci­sion was  Roth v. DeFe­lice­Care, Inc., 226 W. Va. 214, 700 S.E.2d 183 (June 8, 2010) (per curi­am). It was a 3–2 deci­sion, in which the 3‑vote major­i­ty con­sist­ed of Jus­tices Robin Davis, Mar­garet Work­man, and  Thomas McHugh. Jus­tices Menis Ketchum and Brent Ben­jamin dis­sent­ed, and Jus­tice Ketchum wrote a dis­sent­ing opinion.

The Facts–Sex at Work

These are the facts accord­ing to the com­plaint in the law­suit: Tri­cia Roth was a res­pi­ra­to­ry ther­a­pist work­ing at DeFe­lice­Care, Inc. in Ohio Coun­ty, West Vir­ginia, and she was about to go on vaca­tion. She was direct­ed by Leslie DeFe­lice (the male boss/owner) to come to work some­time dur­ing the week­end pre­ced­ing her vaca­tion in June 2006. She was not told a spe­cif­ic time to come to work dur­ing that week­end. When she came to work as ordered, she “observed Defen­dant [Leslie] DeFe­lice and/or Michelle Kel­ly par­tial­ly clothed and in a com­pro­mis­ing posi­tion”. Mr. DeFe­lice instruct­ed Ms. Roth to go into a con­fer­ence room and wait–meanwhile Mr. DeFe­lice and the oth­er employ­ee got all their clothes back on. Mr. DeFe­lice then talked to Ms. Roth and told her to for­get about what she had just seen, and threat­ened Ms. Ross with the loss of her res­pi­ra­to­ry ther­a­py license and the loss of her employment.

Ms. Roth then went on vaca­tion. When she got back from vaca­tion and returned to work, she had a meet­ing with Mr. DeFe­lice that did­n’t go well. Ms. Roth told Mr. DeFe­lice that she had­n’t told any­one about his sex­u­al encounter at work. Mr. DeFe­lice pro­ceed­ed to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal the­o­ries cen­ter­ing around sex dis­crim­i­na­tion and sex­u­al harass­ment, and–bada bing!–the case prompt­ly got dismissed.

Ms. Roth’s com­plaint (the doc­u­ment which starts the law­suit and describes the plain­tiff’s alle­ga­tions) focused on the sex­u­al inci­dent I have described above, but also made alle­ga­tions about oth­er sex­u­al harassment–I will dis­cuss those details below.

Con­tin­ue read­ing Sor­ry boss, I didn’t know you were hav­ing sex in the office!! →