Fourth Circuit rules that pension contribution rules may be age biased

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).

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

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?

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.

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?

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

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

Chart of West Virginia Supreme Court Decisions on Employment Issues

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.

President Obama Nominates Sonia Sotomayor for Supreme Court

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

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

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.

Employment Law News and Analysis