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.
Age Discrimination, Attorney's Fees, Back and Front Pay Issues, Emotional Distress Damages, Jury verdicts, Punitive damages, Result for Employee, WV Human Rights Act

Jackson County jury awards $2.1 million in age case

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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 →
Federal Cases (but not US Supreme Court), Fourth Circuit, Medical Industry Litigation, Result for Employee, Sexual harassment, Summary Judgment

Was the boss “merely crude”, or was he sexually harassing her?

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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

Stethoscope 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? →
Result for Employee, Retaliation claims, Title VII of the Civil Rights Act of 1964, US Supreme Court

Analysis: The “No Blood No Foul” Rule. When is an Employer’s Conduct Severe Enough to Constitute Retaliation?

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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.

National Basketball Association 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? →
Arbitration, Result for Employer, WV Human Rights Act, WV Supreme Court

WV Supreme Court Enforces Employment Arbitration Agreement in Clites v. Clawges, 10–13-09

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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

WV Capitol Building 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 →
WV Human Rights Act, WV Supreme Court

Chart of West Virginia Supreme Court Decisions on Employment Issues

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WV Supreme Court Justices, click here to open chart of employment decisions

 

 

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.

US Supreme Court, Vacancies

President Obama Nominates Sonia Sotomayor for Supreme Court

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Sonia Sotomayor 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 →
Age Discrimination, Arbitration, Labor Unions, Pending legislation, Result for Employer, US Supreme Court

Arbitration Agreements in Union Contacts are Enforceable; US Supreme Court in Penn Plaza v. Pyett

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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 →
Pending legislation, WV Legislation

West Virginia Legislature May Force Employers to Give Employees Access to Their Personnel Files

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WVLegislature 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.

Federal Courts, Vacancies

Fourth Circuit Vacancies; President Obama Will Have 4 of 15 Judicial Positions to Fill

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Lewis F Powell Jr. Courthouse, Richmond, Virginia 2/1/09: The US Fourth Cir­cuit Court of Appeals hears appeals from fed­er­al dis­trict courts in West Vir­ginia, Vir­ginia, Mary­land, North Car­oli­na, and South Car­oli­na. The Fourth Cir­cuit has 15 judges when all of the judi­cial posi­tions are occu­pied. How­ev­er, 4 of the 15 judge posi­tions are cur­rent­ly vacant. That means that Pres­i­dent Oba­ma will be able to appoint those 4 judges.

Appoint­ments to these fed­er­al judi­cial posi­tions require the con­fir­ma­tion by the US Sen­ate. The Democ­rats con­trol at this time 58 votes in the Sen­ate, through 56 Democ­rats and 2 Inde­pen­dents (Joe Lieber­man, CT; Bernie Sanders VT) who cau­cus with the Democ­rats. If Al Franken even­tu­al­ly is declared the win­ner in Min­neso­ta, which is expect­ed, the democ­rats will have 59 votes. Pres­i­dent Oba­ma only needs 51 votes to con­firm one of his judi­cial nom­i­na­tions. If the Repub­li­cans chose to fil­i­buster any of Pres­i­dent Oba­ma’s nom­i­na­tions, the Democ­rats need 60 votes for clo­ture to cut off the fil­i­buster and force a vote (clo­ture requires a three-fifths vote of the vot­ing Sen­a­tors). If the Democ­rats will be start­ing with 59 votes, they will like­ly fre­quent­ly be able to “peel off” a Repub­li­can or two to break the filibuster.

Fed­er­al court of appeals nom­i­na­tions are usu­al­ly made from lawyers with sig­nif­i­cant pri­or judi­cial expe­ri­ence. So the pool of lawyers to be con­sid­ered will like­ly by the cur­rent fed­er­al dis­trict judges, and, less like­ly, cur­rent state court judges.

Giv­en Pres­i­den­tial his­to­ry since 1980, the sub­stan­tial major­i­ty of fed­er­al judges are appointees of Repub­li­can Pres­i­dents (20 years of Repub­li­can pres­i­den­cy ver­sus 8 years of Demo­c­rat presidency).

Fourth Circuit MapOf the cur­rent 11 judges on the Fourth Cir­cuit, 6 were Repub­li­can appointees and 5 were Demo­c­ra­t­ic appointees (although Judge Gre­go­ry was a “hybrid” hav­ing orig­i­nal­ly been appoint­ed by Pres­i­dent Clin­ton and then re-appoint­ed by Pres­i­dent George W. Bush). You can view a chart on Wikipedia that sets out the line­up of cur­rent judges and the Pres­i­dents who appoint­ed them

Assum­ing Pres­i­dent Oba­ma fills all 4 cur­rent vacan­cies, then we will have a realign­ment on the Fourth Cir­cuit to: 9 Demo­c­rat appointees, and 6 Repub­li­can appointees.

Labor Unions, Vacancies

NLRB Vacancies: The Potential for Big Changes in Labor Union Law

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NLRB Logo 2/1/09: The Nation­al Labor Rela­tions Board (NLRB) con­sists of 5 mem­bers, and the NLRB issues impor­tant deci­sions on a broad range of labor union issues.

There are cur­rent­ly only 2 mem­bers, so there are 3 vacan­cies. Wilma Lieb­man is con­sid­ered lib­er­al and pro-union. Peter Carey Schaum­ber is con­sid­ered con­ser­v­a­tive and pro-management.

Pres­i­dent Oba­ma will be able to fill the 3 vacan­cies, with a like­ly sig­nif­i­cant shift in labor law in the Unit­ed States.