The Fourth Circuit Court of Appeals, in an unpublished opinion, addressed whether an employer’s pension contribution rules may constitute age discrimination under the Age Discrimination in Employment Act of 1967, in Equal Employment Opportunity Commission v. Baltimore County, 385 Fed. Appx. 322 (4th Cir. 2010). The unanimous opinion was written by Judge Dennis Shed, and was joined by Judge Roger Gregory and Arther L. Alarcon (Senior Judge on Ninth Circuit, sitting by designation).
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Can you be sexually harassed behind your back?
It might be obvious, but it seems a bit difficult to win on a claim for sexual harassment where all of the harassment occurs behind your back (and by “behind your back”, I mean situations where the harassing behavior occurs when the complaining employee is not physically present to experience or hear what is happening).
The Fourth Circuit Court of Appeals addressed this issue in Pueschel v. Peters, 577 F.3d 558 (4th Cir. 2009), in a unanimous decision written by Judge Roger Gregory in which Judges M. Blane Michael and Robert Bruce King joined.
The Fourth Circuit didn’t have much difficulty reaching the conclusion that, for any claim alleging a hostile work environment (including sexual harassment), you can’t succeed if all of the misconduct about which you complain occurred at work when you were not at work.
Twenty-Eight Years of Litigation!!!
This case grows out of an incredibly long history of litigation (including several different lawsuits and appeals (some of which were successful)) filed by Ms. Pueschel against her employer, the Federal Aviation Administration (“FAA”). The litigation started in 1981 and ended with this Fourth Circuit decision in 2009 (I am not kidding, and I am not sure this decision marks the end of all of her litigation).
Continue reading Can you be sexually harassed behind your back?
Jackson County jury awards $2.1 million in age case
On March 17, 2010, a jury in Jackson County in West Virginia awarded Jerold John Rice Jr. roughly $2.1 million in an age discrimination case against The Burke-Parsons-Bowlby Corporation, Stella-Jones US Holdings Corporation, and Stella-Jones, Inc., tried in Judge Thomas C. Evans III’s court.
Mr. Rice was represented by Mark Atkinson and Paul Frampton at Atkinson & Polak, PLLC, and the defendants were represented by Roger Wolfe at Jackson & Kelly PLLC in Charleston, and Kevin Hyde at Foley & Lardner, LLP in Jacksonville, Florida.
Here is a quick run-down of what was awarded in the case:
- Back pay: $142,659 awarded by jury.
- Pre-judgment interest: $11,791.84 from date of termination through trial.
- Front pay: $1,991,332.00 awarded by jury (from roughly age 48 through retirement age at 67).
- Emotional distress: $0.
- Punitive damages: Jury did not answer question affirmatively which would have allowed award of punitive damages.
- Total judgment based on jury’s verdict: $2,145,782.84, plus post-judgment interest on that amount at 7% per annum.
- Attorneys’ fees: $117,235 awarded by judge (based on $450 an hour for Mark Atkinson and $300 per hour for Paul Frampton).
- Litigation expenses: $20,324.16 awarded by judge.
- Total award: $2,283,342.00 (based on jury verdict, pre-judgment interest, attorneys’ fees and expenses) plus post-judgment interest at 7% per annum.
The Rice case illustrates the risk employers face when they terminate an older, good, long-standing employee, and replace him or her with a much younger person with little or no experience for the employer.
What Happened?
Mr. Rice at the time of his termination (in 2009) was age 47 and had worked for Burke-Parsons-Bowlby Corporation for 24 years. When Mr. Rice was terminated he was the corporate controller.
Continue reading Jackson County jury awards $2.1 million in age case
Was the boss “merely crude”, or was he sexually harassing her?
Sexual harassment claims frequently require judges and juries to distinguish between “merely crude” behavior, which doesn’t violate the employee’s rights, and “sexual harassment”, which does. The Fourth Circuit Court of Appeals addressed that issue in EEOC v. Fairbrook Medical Clinic, PA, 609 F.3d 320 (4th Cir. 2010) (opinion at Fourth Circuit’s site), and didn’t have a lot of trouble concluding that the conduct in issue could reasonably be viewed by a jury as sexual harassment, ruling in favor of the employee. One of the key issues was whether the conduct was “severe or pervasive” enough to constitute a “hostile work environment”. The unanimous opinion was written Judge J. Harvie Wilkinson III, joined by Judges Andre M. Davis and C. Arlen Beam (from the Eighth Circuit).
Doctor on Doctor Harassment at Fairbrook Medical Clinic
Dr. John Kessel was the owner of Fairbrook Medical Clinic in South Carolina, and was accused by a former female doctor at the clinic, Dr. Deborah Waechter, of sexually harassing her. Dr. Kessel was Dr. Waechter’s supervisor. Dr. Waechter worked for him for 3 years and quit, allegedly over a broad range of sexually explicit statements made during most of those 3 years (I’ll discuss the specifics below).
Dr. Waechter’s Lawsuit
Dr. Waechter then filed a charge of discrimination with the EEOC, alleging that Dr. Kessel’s behavior created a “hostile work environment”, and the EEOC then filed suit on behalf of Dr. Waechter against Dr. Kessel’s clinic under Title VII of the Civil Rights Act of 1964.
After discovery was conducted. Fairbrook Medical Clinic filed a motion for summary judgment, and the federal trial judge granted it. The trial judge reasoned that the offensive conduct was “not particularly frequent,” mostly involved “the type of crude jokes that do not run afoul of Title VII,” did not cause Dr. Waechter to miss work or feel “severe psychological stress,” and did not include inappropriate touching or physical threats.
Continue reading Was the boss “merely crude”, or was he sexually harassing her?
Analysis: The “No Blood No Foul” Rule. When is an Employer’s Conduct Severe Enough to Constitute Retaliation?
I previously wrote about the Supreme Court’s retaliation decision in Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 (2006) (“Burlington Northern v. White”), in which the US Supreme Court substantially broadened the ability of employees to file retaliation claims under Title VII of the Civil Rights Act of 1964. It was a unanimous (9–0) decision.
I wanted to set out some additional thoughts about Burlington Northern, because it addresses an issue that has troubled the courts in interpreting the federal anti-discrimination laws: When is an employer’s conduct serious enough in disadvantaging an employee so that the employee has a claim under the employment discrimination laws? The answer is easy when the employer’s decision affects the employee’s pocket book, like with termination, failure to hire, demotions, and the like. The answer has been much harder when the employer’s conduct didn’t directly affect the employee’s pocket book.
NBA referees struggle with a similar issue: where is there enough physical contact on the court to justify calling a foul on a player. So let’s explore some parallels between these employment discrimination issues and the NBA’s “no blood no foul” rule.
The NBA’s “No Blood No Foul” Rule
If you watch National Basketball Association games, you might be struck by how much physical contact there is on the court and how rarely the referees call personal fouls over that physical contact. Fans of the NBA have only a partially kidding way to refer to the “standard” by which the referees decide how much contact will result in a personal foul being called. It’s the “no blood no foul” rule. In other words, the referees will allow a lot of physical contact, and will only call a foul when someone gets bloodied as a result of the contact.
Let’s assume, with our tongues in our cheeks, that there is such a rule (no blood no foul) that NBA referees apply, regardless of what is written in the Official Rules. The idea behind the “no blood no foul” rule is this: there is so much fast-paced hurley-burly contact on the basketball court, much of which makes it more exciting for the fans, that calling a foul for any physical contact (or a lower defined level of physical contact) would slow down the game for fans and make the game less enjoyable, unreasonably impede the skill of the players, and makes it impossibly hard for officials to identify “contact”. So the appearance of blood is a more “objective” indication that the contact really mattered and really constituted an unfair interference with the other player.
The Supreme Court Struggles With “When is There a Foul”?
Courts for years have struggled with the employment discrimination equivalent of the “no blood no foul” rule. For the courts, assuming unlawful discrimination occurred: when is the consequence of the discrimination serious enough and objectively discernible so that courts will recognize a claim and intervene by activating the court’s process and potentially awarding damages.
Except for situations involving hostile work environment, the courts have translated the NBA’s blood requirement into a tangible economic consequence. Thus, much in the spirit of the NBA, the courts have said economic harm must be demonstrable as a result of discrimination, or else the courts won’t entertain the claim no economic consequence, no legal violation, case dismissed.
Continue reading Analysis: The “No Blood No Foul” Rule. When is an Employer’s Conduct Severe Enough to Constitute Retaliation?
WV Supreme Court Enforces Employment Arbitration Agreement in Clites v. Clawges, 10–13-09
10–13-09: The West Virginia Supreme Court addressed the enforceability of employment arbitration agreements in State ex rel. Clites v. Clawges, 224 W. Va. 299, 685 S.E.2d 693 (2009) (opinion at Findlaw’s web site). This Clites decision is discussed in my chart of West Virginia Supreme Court decisions.
Clites Goes to Work for TeleTech and Signs an Arbitration Agreement
The plaintiff, Jill Clites, went to work for TeleTech in October 2004 as a Customer Service Representative. During new employee orientation, Clites met with a human resources representative for about 90 to 120 minutes, during which time Clites reviewed and signed a large number of documents related to the orientation. In the record before the West Virginia Supreme Court, there were disputes over whether individual documents were discussed with Clites and whether she was required to sing all the documents during the orientation session, but it appears that during that session Clites signed an arbitration agreement which TeleTech required of most or all new employees.
Clites remained employed at TeleTech until July 12, 2007, when she was terminated. She then filed suit for sexual harassment and retaliation. Clites alleged she complained about the sexual harassment, that TeleTech failed to take appropriate corrective action, and that TeleTech retaliated against her for the complaint by firing her.
Clites Files Suit In West Virginia Circuit Court
Clites filed suit in West Virginia Circuit Court in Morgantown. TeleTech then invoked the arbitration agreement by filing a motion to dismiss the lawsuit and by filing a separate lawsuit in federal court arguing that Clites waived her rights to a jury trial by signing the arbitration agreement. In essence, TeleTech argued that Clites gave up her rights to file suit and to a jury trial by signing the arbitration agreement, and that her only remedy was to file an arbitration proceeding (with the American Arbitration Association) pursuant to the arbitration agreement.
Continue reading WV Supreme Court Enforces Employment Arbitration Agreement in Clites v. Clawges, 10–13–09
Chart of West Virginia Supreme Court Decisions on Employment Issues
I have prepared a chart containing a summary of West Virginia Supreme Court decisions significantly affecting employment law. The chart starts on January 1, 2009, with decisions issued after that date. The chart contains hyperlinks to the opinions, both on the West Virginia Supreme Court’s web site, and on Findlaw or on Google Scholar. If you click on the photos of each Justice (in the chart, not on the image above), that will take you to the biography page for that Justice on the Supreme Court’s web site. Finally, the chart contains hyperlinks to this blog.
Click the line below to open the chart, which is an Adobe Acrobat PDF:
WV Supreme Court Employment Decisions
(click here to download the free Acrobat Reader, if you don’t already have it installed on your computer).
This chart is copyright protected by Drew M. Capuder and Capuder Fantasia PLLC. You have permission to distribute this chart only if you distribute the chart unedited by anyone other than Drew Capuder. In other words, you may distribute this chart only in its original form as downloaded from Drew Capuder’s Employment Law Blog.
President Obama Nominates Sonia Sotomayor for Supreme Court
President Obama today announced (CNN story and video) his nomination of Sonia Sotomayor, currently a Judge on the Second Circuit, to fill the position on the US Supreme Court to be vacated by the resignation of Justice David Souter.
Within a few hours of President Obama’s announcement, the CATO Institute and The Heritage Foundation had significant articles devoted to attacking the nomination. Rush Limbaugh this afternoon called Judge Sotomayor a “racist”. Sean Hannity called her a “radical” who had made “outrageous” and “amazing” statements. The liberal sites raced out articles attacking the attackers and defending Judge Sotomayor (Talking Points Memo and The Huffington Post).
The first item that has been circulating about Judge Sotomayor is a statement she made about appellate courts making “policy” during a panel discussion at Duke University in 2005 (note: this clip is lengthier, and provides much more context, than the clips played on most news sites):
Continue reading President Obama Nominates Sonia Sotomayor for Supreme Court
Arbitration Agreements in Union Contacts are Enforceable; US Supreme Court in Penn Plaza v. Pyett
4/1/09: The US Supreme Court ruled that “pre-dispute arbitration agreements” in collective bargaining agreements (union contracts) are enforceable, in Penn Plaza PLLC v. Pyett, 129 S. Ct. 1456 (2009) (5–4 decision).
This was an age discrimination case under the Age Discrimination in Employment Act of 1967 (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.
The US Supreme Court had previously ruled, but not in a labor union setting, that arbitration agreements for ADEA claims were enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26–33 (1991)). So the real issue in Penn Plaza was whether there would be a different result because of the union contract setting and the National Labor Relations Act.
Continue reading Arbitration Agreements in Union Contacts are Enforceable; US Supreme Court in Penn Plaza v. Pyett
West Virginia Legislature May Force Employers to Give Employees Access to Their Personnel Files
3/10/09: In the West Virginia Legislature, HB 3032, introduced on March 10, 2009, would give employees the right to review their personnel files. The legislation has not been passed, and in prior legislative sessions, essentially the same bill was introduced without having been passed.
Many people have the incorrect understanding that, in West Virginia, an employer is legally required to allow an employee to review the employee’s personnel file. There is currently no such legal requirement, but the pending HB 3032 will change that if it is passed.
You can review the full text of the bill, and monitor its status on the Legislature’s site.
Update 8/1/10: As of this date, the West Virginia Legislature has not passed this bill. There is still no general requirement forcing employers to show employees their personnel files.