Six Warning Signs of an Impending Termination

Often when a new boss comes in or when a company simply changes hands, you find your job at risk. We would all like to know as soon as possible if our job is at risk. So, what are some good warning signs that you may be fired soon? The ABA Bar Journal borrowed some signs from the Wall Street Journal. Here are six warning signs you are about to be fired:


  1. Your supervisor avoids discussing long-term projects with you. The WSJ offered an example regarding a marketing executive who could not obtain budget approval for an upcoming trade show.  
  2. You hear rumors that your supervisor is looking for your successor. Yes, that should make anyone nervous about his/her stability. 
  3. Colleagues avoid you. They heard the rumors and apparently believe them to be true. Now, they avoid the inevitable drama. They may exclude you from meetings. 
  4. An executive coach is hired to help you. The coach may simply represent a perfunctory exercise prior to the end. 
  5. You are asked to justify your job. In one case, an executive who switched roles learned that his boss had no clue what he did in the new role. The executive was later asked toretire because the new role was not a good fit. 
  6. Your boss suddenly interferes with your handling of employees. One executive's job was eliminated after his boss started leading his meetings. 

See ABA Bar Journal report

It is always better to not lose your job. But, to be warned, is to be prepared. Do not ignore these clues. 

Punitive Damages Award Requires Evidence of Conscious Wrongdoing

I tell my clients regularly that even when a plaintiff wins, most juries do not award compensatory damages or punitive damages. Punitive damages are rare in employment cases. What would be required for a jury or judge to award punitive damages. We get a look at what is required in Rhines v. Salinas Construction Technologies, Ltd., No. 13-40473 (5th Cir. 6/25/14). In this case, the jury found in favor of the employee and awarded $2,200 in lost wages and benefits, $10,000 in compensatory damages and $50,000 in punitive damages. The employer appealed. The judge reduced the punitive damages award to satisfy the cap of $50,000 for compensatory and punitive damages. 

The Fifth Circuit opinion noted the evidence at trial showed That Mr. Rhines, African-American, was the recipient of many racial epithets. Co-workers, and later his foreman, referred to Mr. Rhines as "guero," which means white guy. His project manager referred to him as his "boy." Mr. Rhines asked the project managerto stop, but he would not. The supervisor referred to him with the n-word in English and Spanish. Mr. Rhines then complained in writing to the company office. The company did not respond. His supervisor told him not to contact the company again. Mr. Rhines asked for time off to be with his dying brother. Not receiving a response, he took time off anyway and was fired. 

The court found there was sufficient evidence of hostile work environment. The employer defended with claims they had an EEO policy. But, it turns out the company lied to the EEOC when they claimed to have appointed an investigator to look into Mr. Rhines' claims. The purported investigator testified that he had no involvement in any investigation. 

Evidence at trial also showed that the company lied when  it claimed that Mr. Rhines had never submitted a written complaint about discrimination. The supervisor admitted that he was in a hurry when he signed an affidavit saying he had not referred to Mr. Rhines with racial comments ("Guero" and "wuedo" - light skinned). T

To award punitive damages, a jury must find there was a positive element of conscious wrongdoing. The Fifth Circuit found this standard for punitive damages had been met. The false information provided to the EEOC shows such wrongdoing. The lack of a good faith effort to investigate shows such wrongdoing. And, Salinas Construction knew its workers referred to Mr. Rhines with racial comments. Yet, it submitted information to the EEOC denying the use of racial epithets. That was sufficient evidence to support the award of punitive damages. See decision here

Unfortunately, this decision will not be published beyond the court's website. It is an unpublished decision. 

Description as a "Liability" Could Constitute Direct Evidence

Alan Demyanovich worked for 20 years for Cadon Plating & Coating, which applies coatings in the automobile industry. Mr. Demyanovich developed heart problems in 1999, but returned to work and worked another ten years. In 2009, his heart condition worsened. He took substantial time off. In February, 2010, he again asked for FMLA leave. His boss believed they did not have enough employees to qualify for FMLA coverage, so he denied the request. He told Mr. Demyanovich that he was a "liability." Later that evening on Feb. 23, the boss told the worker that he was terminated.

One would think that based on timing alone there would be sufficient evidence to deny summary judgment. But, the district court granted summary judgment. The plaintiff appealed and won. The Sixth Circuit found that the stated reasons for the termination, 1) that Mr. Demyanovich was permanently disabled and 2) he was subject to termination because he had he'd been absent beyond the limit allowed by the employer, were not true. 

Regarding the ADA claim, the court found that the only evidence that Cadon could accommodate the worker was Mr. Demyanovich's own testimony. The lower court apparently believed that the plaintiff needed something more than his own testimony. 

But, said the Sixth Circuit, the employer could not have known on Feb. 23 that Mr. Demyanovich might be permanently disabled. Indeed, said the court, the court should look at his disability at the time of the termination, not at the time of the plaintiff's deposition. And, in actuality, the evidence suggested that the worker could perform various light-duty positions at Cadon. And, said the court of appeals, the Plaintiff has not actually dropped to a zero point attendance level, as provided in the employer's own rules. Looking at the evidence from the non-movant's point of view, as the court must, Mr. Demyanovich still had between one and two points left on the attendance point system. So, he was not actually subject to termination, yet. 

And, added the court, the term "liability" may well constitute direct evidence of intent to interfere with his FMLA eligibility. The Sixth Circuit ignored the lower court's suggestion that Mr. Demyanovich needed something more than his own testimony regarding ADA accommodation. The higher court simply found there was sufficient evidence from which a reasonable jury could conclude that Cadon could have accommodated the plaintiff's disability. The plaintiff was performing his duties satisfactorily at the time of the termination. 

See the decision in Demyanovich v. Cadon Plating and Coatings, LLC, No. 13-1015, 2014 WL 1259603 (6th Cir. 3/28/14) here

Mandatory Arbitration Used to Hide Sex Harassment

The folks at Public Justice have written a bog post about the pernicious use of mandatory arbitration by American Apparel, a major U.S. clothing manufacturer. Based on an article in the New York Times, the post recounts the story of Dov Charney, long-time CEO of American Apparel. Mr. Charney was known for such witticisms as "Masturbation in front of women is underrated." He was profiled in Jane magazine in 2004. See article. Indeed, he masturbated in front of the reporter during the interview. How compelling. 

American Apparel required mandatory arbitration agreements for all employees and models. There were at least five claims of sexual harassment by American Apparel employees and one claim that he kept a "sex slave." These women sued in court trying to break the arbitration agreement. But, each time, the court upheld the agreement. No one knows how many claims in total were paid or brought in some secret arbitration proceeding. All this was kept from investors, customers, employees and the public for years. The dirty secret about arbitration is that it is not open court. Whatever happens in arbitration stays in arbitration. 

See Public Justice blog post

Testy Responses Harm One's Case

It is never good to annoy a judge during a trial. Yet, that is what John V. Garza, former Republican state representative from San Antonio, did in federal court earlier this week. In the lawsuit concerning alleged racial gerrymandering by the Republican party, Mr. Garza testified about a conversation with other state representatives in 2011. The case alleges re-districting was motivated by racial concerns, so possible racial remarks by any of the state representatives are important. The Democrats allege that GOP lawmakers swapped low turnout districts with high turnout districts. State Rep. Joe Farias, Dem- San Antonio, alleged that John Garza said he wanted more Mexicans in his district. This conversation occurred in a meeting also attended by Rep. Ruth Jones McClendon. 

So, when Mr. Garza took the stand, Judge Xavier Rodriguez, a Republican appointee himself, asked some follow-on questions:

Mr. Garza: I deny saying that. I don't know why he would say I had said something like that.

Judge: Did you ever say such a thing like that?

Mr. Garza: I don't remember.

Judge: You do not recall anything like that?

Mr. Garza: I did not make a remark like that in state Rep. Ruth Jones McClendon's presence. 

. . . . (later) . . .

Judge: Re-stated the question, asking Mr. Garza not to qualify his answer.

Mr. Garza: I believe it is my right to to qualify it.

Judge: That answers the question for me. 

See San Antonio Express News report (account required). Judge Rodriguez is one of three judges who will decide the case. The testimony concerns important remarks. How the witness responds often says as much as the answer itself. It appears that, at least regarding this issue, Judge Rodriguez has reached certain doubts about Mr. Garza's truthfulness. All Mr. Garza had to do was answer directly. Evasion rarely profits the witness. 

Alabama Fan Fired While Working on Texas A&M Stadium

I tell potential clients all the time that they can be fired for anything - so long as the cause is not related to potential discrimination. One construction worker learned that lesson the hard way. An employee of a subcontractor who was working on the new stadium at Texas A& M was fired because he displayed the wrong flag. He flew the Alabama Crimson Tide flag atop the stadium. That was probably not a wise thing to do in the middle of Aggie country.....

That is what the at-will doctrine is all about. A worker can be fired for any reason. See San Antonio Express News report

Everyday Attendance is not Always Required


Is attendance at one's job an "essential function" of the job? That is a critical issue if a worker encounters illnesses and treatment that require time away from work. If everyday attendance is required for every job, then an injured worker who needs time off would not be protected by the ADA. Because, that injured person could not attend work everyday. It is a catch-22. The person needs time off to get better. But s/he would not be entitled to time off, because s/he needs time off. 

Under the amended version of the ADA, we will see more and more accommodation issues. There already is substantial pred]cedent finding that everyday attendance may not be a required function of every job. I previously wrote about some of those cases here

The Sixth Circuit Court of Appeals reversed summary judgment for the employer in one such case, finding that attendance is not always required. In EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 4/22/14), the district court found that the worker was not a qualified individual with a disability, because of her excessive absenteeism. The lower court then declined to look behind the employer's claim that everyday attendance was a required function of the job. The lower court would not second-guess the employer's "business judgment."

The worker, Ms. Harris, had asked to telecommute, that is, to work from home. The higher court rejected an automatic assumption that every job would require daily attendance. The appellate court found that with today's technology, many workers can be just as productive working from home. The real question, said the higher court, was whether physical presence was truly required at the Ford facility. Physical presence is very much a fact question. Ford argued that Ms. Harris' physical presence was essential for the group dynamic of the resale buyer team. Teamwork was important, said the employer. 

The Sixth Circuit acknowledged that courts are limited in their ability to judge business needs. But, neither should the court abdicate its responsibility to personnel boards. The courts should not blindly accept the plaintiff's story. But, the employer's business judgment is just one more factor in the inquiry. 

The EEOC presented substantial evidence that face-to-face interactions were not always essential. Ms. Harris' own testimony was that much work was done via teleconferences. Ms. Harris would need to conduct occasional site visits, but Ford's evidence did not indicate she could not do so from home. And, it appeared that Ford had allowed telecommuting in the past for resale buyers, although for a shorter time frame that requested by Ms. Harris. This would be enough evidence, said the Sixth Circuit, to find genuine issue of factual. If the facts are in dispute, then summary judgment is not proper. The court reversed the summary judgment previously granted by the lower court. See decision here

Eleventh Circuit Reverses Summary Judgment

The Eleventh Circuit helps shed some light on the effects of the ADA Amendments Act, effective in 2009. In Mazzeo v. Color Resolutions International, LLC, No. 12-10250, 2014 WL 12740470 (11th Cir. 3/31/14), Anthony Mazzeo suffered a herniated disc and torn ligaments in his back at the age of 46. He worked as a sales and technical representative for CRI. He discussed his condition with his supervisor three times. He told his boss that he would need surgery in 2009. He said he would miss two weeks of work and would be restricted in what he could do for months. Mr. Mazzeo later provided a specific date for the surgery. The very next day, the supervisor started paperwork to terminate Mr. Mazzeo. CRI claimed Mr. Mazzeo was laid off due to decreased revenue.

Ten days after Mr. Mazzeo's termination, CRI offered a position to a 23 year old recent college graduate. CRI claimed he was hired to replace a different employee. But, the supervisor testified that at least at first, the college graduate was hired to service Mr. Mazzeo's former sales area. 

The court addressed whether Mr. Mazzeo suffered from a disability. The treating physician had submitted an affidavit for summary judgment. The lower court had found that doctor's affidavit to be "conclusory" and lacked detail regarding how Mr. Mazzeo's impairment affected his daily life activities. The lower court cited a pre-ADAAA case to say that there could not be a disability where a doctor's note provided lifting restrictions but the employee said he could work. 

The appellate court disagreed. The Eleventh Circuit noted that pre-ADAAA cases did not apply. Unlike the pre-ADAAA case, the plaintiff Mazzeo testified regarding his limitations and explained how they affected his major life activities. And, the doctor's affidavit explained how the impairment developed. The affidavit explained the origin of the impairment, how the pain affected the employee and the limitations on the major life activities caused (as required by the ADAAA) by the condition and the pain. This was sufficient detail, said the higher court, for summary judgment. There was no deposition of the treating physician and there was no rebuttal testimony from a physician selected by the employer. So, the affidavit was unrebutted testimony. 

Mr. Mazzeo testified that his back affected him playing golf and sex. But, noted the court, the questions that elicited that answer did not contain a time reference. It is unclear from the deposition transcript whether he referred to the time before the operation or after. Indeed, said the court, many of the deposition questions addressed the time period after the operation, not his unmitigated state before the operation. The higher court noted that the EEOC regulations provide that a condition need not prevent or severely restrict a major life activity in order to be considered "substantially limiting." A condition should be viewed in its active state, not in its improved or mitigated state. The doctor said the condition limited Mr. Mazzeo in bending, walking, sleeping, and lifting more than ten pounds. This is sufficient evidence to make out a prima facie case for purposes of summary judgment. 

(Note that the court is willing to include the doctor's comments. It is, therefore, viewing Mr. Mazzeo's possibly harmful answers in light of the additional testimony from the doctor. Too many courts have disregarded the illuminating testimony from a doctor, because an employee carelessly and in very general terms said he could "work.")

The recent college graduate was 23 years old. Mr. Mazzeo was 46 years old. Does that age disparity qualify as age discrimination? The court assumed it did and answered a different question. Did the plaintiff make a sufficient showing of age discrimination? Yes, said the court. The testimony whether the college graduate replaced Mr. Mazzeo was inconsistent. The higher court correctly noted that such possible inferences should be drawn in favor of the non-movant. 

Note also the timing issues presented by the court. Laying off an employee the very day after he has notified his employer he will need surgery substantially weakens any case. Timing is very important in all employment lawsuits. Surely, the court was annoyed by this apparent reprisal. 

The court reversed the grant of summary judgment. See decision here

Fifth Circuit Overrules Summary Judgment, Again




The Fifth Circuit previously overturned summary judgment in Johnson v. Maestri-Murrell Property Management, LLC, (5th Cir. 2012). I wrote about that decision here.  The remarkable thing about that summary judgment was the lower court ignored direct evidence of discrimination. The district court's decision seemed to be result-oriented. See the Fifth Circuit decision here

The Fifth Circuit remanded the case back to the district court in upstate Louisiana. Well, remarkably, that same Louisiana U.S. district court granted summary judgment, again. See the second Fifth Circuit decision overturning summary judgment here. In the second appeal in Johnson v. Maestri-Murrell Property Management, LLC, the Fifth Circuit faulted the lower court for not following its remand order. That is judge-speak for the district court judge messed up big time. 

One error cited by the appellate court was the lower court again did not acknowledge the direct evidence of discrimination. Direct evidence is that evidence which shows discriminatory bias without need of any inference. When management said they would not hire a black manager, that is direct evidence of discrimination. It is one thing for a district court to reach that result. It is entirely different when a lower court disregards the appellate court's finding that the evidence was direct. That omission by the lower court suggests the lower court is following some agenda other than routine respect of precedent. 

Like the plaintiff in Johnson, I have to question the impartiality of the district judge in this matter. He seems to have pre-determined views of the merits of Ms. Johnson's lawsuit. I find it unfortunate that this Fifth Circuit decision will not be published. 

Buddies Wherever I Go

I am an Iraq veteran. I served in Iraq from 2005 to 2006. Some 140,000 other brothers and sisters served in Iraq with me. I am told there were some 1.5 million total who served in Iraq. Wherever I go, I find a bond with fellow Iraq and Afghanistan vets. We share the bond of having pledged our lives to each other.

When I was in Iraq, I would travel by ground convoy or by helicopter, whichever was available. On Many helicopter taxis, I could not help but notice that I was traveling with some 10-12 soldiers completely unknown to me, but for whom, in a pinch, I would lay down my life. Those days have not entirely ended. When I ask a bartender for "military discount," he apologizes, even though we have never met and I am 1000 miles from home. The bartender assures me he will give me a free beer on the next round. I do not know the bartender anymore than I knew those nameless folks with whom I once shared a helicopter ride. But, he served in Iraq. We trade stories about the heat. 

Even now, years later, I would risk much for a bartender I had just met. He is not just a bartender. He represents my buddies, the folks I knew so well for 18 months. He represents the buddies I lost to an IED or an indirect round. People lament the veterans at Memorial Day and appreciate our service on Veteran's Day. But, will they ever appreciate the singular experience of risking everything for the brother on your right, or the sister on your left?