In a poorly thought out opinion, Judge Lynnn Hughes of the Southern District of Texas ruled earlier this year that breastfeeding is not related to pregnancy.  See my prior post on this ruling.  A female employee had been fired because she was planning to breastfeed at work.  Women are protected from discrimination based on pregnancy.  But, Judge Hughes found that breastfeeding is not related to pregnancy or any particular gender.  His decision was met with some derision at the time.

Well, the Fifth Circuit Court of Appeals has overruled Judge Hughes.  The higher court found that lactation is a medical condition related to pregnancy.  See the Fifth Circuit decision in EEOC v. Houston Funding II  here.  The upper court looked at various dictionaries to reach its conclusion.  Yea, they had to some deep legal research to work this out…..

Judge Hughes is the same Houston judge who previously said that a reference to Pres. Obama and fried chicken was not related to race.  See my prior post about that case.  Judge Hughes was also overturned regarding that decision.  In that Fifth Circuit decision, the appellate court chastised Judge Hughes for his ruling. 

A recent case in the Western District of Texas illustrates the problems with EEOC deadlines.  Under Title VII, a worker must file a complaint with the Equal Employment Opportunity Commission prior to filing any lawsuit.  Once the EEOC completes its work on a "charge" of discrimination, the EEOC will issue the "right-to-sue" letter – which is usually titled "Notice of Rights and Dismissal."  The right-to-sue letter will explain that a federal lawsuit must be filed within 90 days of the receipt of the right-to-sue letter.  

Problems arise when the worker is not represented by a lawyer.  Most non-lawyers do not record the date on which they receive a letter.  So, the worker will often not know the exact date on which s/he received the right-to-sue letter.  Many workers also become discouraged looking for lawyers.  Very few lawyers in San Antonio specialize in discrimination cases.  So, if the worker meets a few lawyers who do not know the law and express skepticism, the worker may give up.  Many such workers, especially after a termination, are in a state of depression, already. 

In Prewitt v. Continental Automotive, No. 12-CV-582-DAE (W.D. Tex. 2/26/13), the court addressed three EEOC charges, two of which were too old for a lawsuit.  The court granted dismissal as to two of the three EEOC charges.  The worker filed suit about 1.5 years after the right-to-sue letters were issued regarding the first two discrimination charges.  But, the third EEOC charge, based on retaliation, was upheld by the court.  The third charge alleged some discipline and then termination.  The employee filed suit well within the necessary 90 days of the third charge. 

We do not know from the court’s decision what the first two charges were about.  Assuming it was some sort of discipline, then that discipline could not be a basis for a claim but it would still serve as explanatory evidence for the retaliation which came later.  That is, said the court, the first two charges can serve as "background evidence" for the third charge.  The facts related to the first two charges would serve as "background evidence" for the third charge based on retaliation.  

This is an important distinction.  For example, if the worker had been demoted in Charge 1 or 2, he could not make a claim for lost pay related to that demotion.  But, he could use facts related to that demotion to help explain his termination.  Otherwise, the termination would be pointless.  In the eyes of the jury, the termination would be just another termination – totally unrelated to any prior complaints about discrimination.  And in a retaliation case, the employee must point to the events that came before the termination.  That is what "background evidence" is all about.  That sort of evidence explains to the jury how the employee got to where he is. 

Usually at settlement times, clients ask me about our chances for success at trial.  What might happen at trial drives everything in a lawsuit, especially settlement.  But, predicting 6 to 12 of our fellow citizens is more art than science. Jury dynamics are often mysterious. There are so many variables in jury deliberations that that no lawyer can speak categorically about a jury outcome. But, studies of past lawsuits help. Now, there are some studies completed on federal trials and appeals.  We still lack data regarding employment case outcomes in state court.  Since, state district clerks do not maintain the data required by U.S. district clerks.

I previously wrote about one study by two Cornell law professors here. As I mentioned in 2010, that study of a select group of lawsuits for 1998 to 2006 shows the overall success rates as follows:

  • ADA – 9%
  • Title VII -11%
  • ADEA -12%
  • FMLA -20%

This 2009 study also found that while defendants (employers) and plaintiffs (employees) appeal about as often as each other, the defendant is ten times more likely to win on appeal.  The pretrial reversal rate is far higher for defendants (30%) than for plaintiffs (10%).  That is, the chances of a plaintiff reversing a bad pretrial judgment is 10%.  But if the defendant loses at the the pretrial stage,  the employer would have a 30% chance of reversing the district court.  “Pretrial” usually refers to motions to dismiss or for summary judgment.

A separate study by another Cornell professor looked at appeal rates 1988 to 1995.  This study was published in 2004.  Appeals of trial verdicts when plaintiffs win are the norm in Texas.  Since, the chances of success for employers is so high.  The Fifth Circuit is generally pro-employer.  The study looked at all appellate circuits, not just the Fifth Circuit.  Overall, plaintiffs won 41.1% of jury trials and 19.5% of judge trials.  Plaintiffs appealed 19.1% of their losses in jury trials.  They obtained reversal in 7.7% of such appeals.  The defendants appealed 22.8% of their losses and obtained reversal in 39% of their appeals.  So, the employer has a 39% chance of success when they appeal, while the employee has a 7.7% chance of success.  These numbers are much lower than other sorts of consumer lawsuits, such as contract or personal injury cases.

As the author concludes, there appears to be a “judicial effect” apart from the merits, which depresses the plaintiff’s chances of success on appeal.  The effect may be a pro-employer interpretation of caselaw or appellate court bias against plaintiffs, but there is some judicial effect, says Prof. Eisenberg.  And, I am sure the numbers for the Fifth Circuit alone would reflect an even greater disparity.  The Prof. Eisenberg study appears here.

And, in the 2009 study, the authors also found a disparity in appeals,  In the 2009 study, when a plaintiff wins at trial, defendants have a 41% chance of obtaining reversal.  While, a plaintiff (employee) only has a 9% chance of getting the trial result reversed.  As I explained to a client recently, yes, if we win at trial, then the employer will very likely file an appeal.  In the Fifth Circuit, it would be almost legal malpractice not to appeal a jury verdict for the employee.

Courts have only just started wrestling with the limits of online freedom in the workplace.  A decision from the New Jersey Supreme Court provides some guidance.  In the case of Stengart v. Loving Care Agency, the former employee left her job.  She also left behind her employer issued laptop.  On that laptop, she had sent various emails to her lawyer from a private non-work related Yahoo account.  The account was password protected.  But, the employer’s experts were able to retrieve the password and review the emails to the lawyer. 

Attorney client communications are, of course, privileged.  The company, Loving Care, had a general policy that employees waived any expectation of privacy when viewing email at work.  But, the policy did not expressly apply to private email accounts and it did not warn employees that their private passwords could be retrieved from a hard drive.   So, the New Jersey Supreme Court found that the employer’s policy did not apply to password protected private email relating to lawful matters including attorney-client privileged communication.  The emails  between the employee and her lawyer should have remained private, said the court.  The employer violated her expectation of privacy. 

The employer’s law firm did review the emails between the employee and her lawyer.  They notified the plaintiff employee but not for many months.  So, the New Jersey Supreme Court found that the defense firm violated disciplinary rules.  The court referred the defense firm to the lower court for discipline.  

 

 

 

The New England Patriots recently cut Defensive Tackle Kyle Love.  They cut him two weeks after his diagnosis with Type 2 Diabetes.  As Jon Hyman points out at Ohio Employer’s Law Blog, that cut probably violates the Americans with Disabilities Act.  The Patriots explained they cut him over concern for his "recovery time."  See Jon’s post. 

I am not counseling Mr. Love, but I expect he has had Type 2 Diabetes for some time and it was just recently diagnosed.  So, he probably needs little or no "recovery time."  But, more importantly, there are several cases (i.e., precedent) that an employer cannot or should not "protect" a person with a disability if the person does not need or has not requested "protection."  If anything, the Patriots could have offered an accommodation – if  Mr. Love requested one. 

Joseph Rakofsky sued some 74 people, who had the temerity to criticize him on the internet and other places.  I previously wrote about his lawsuit against everybody here.  He filed suit in the state of New York against everyone from the Washington Post to the ABA Bar Journal  to J-Dog84@yahoo.com.  He sued a few dozen bloggers.  As the court noted, bloggers or those who commented on the blogs had insufficient contact with the state of New York to support a lawsuit.  New York cannot have jurisdiction over persons who have not actually conducted any business in the state.  That is the rule in most, perhaps all states. 

Most of the online criticism, said the court, was pure opinion generally by lawyers discussing Mr. Rakofsky’s legal skills.  As opinion and public debate, these comments do not rise to the level of defamation.  

Many of the defendants asked for sanctions against Mr. Rakofsky saying he filed a frivolous lawsuit.  If ever there was a frivolous lawsuit, surely this would be it.  But, the state district court found that some facts were included in the legal opinions voiced about Mr. Rakofsky.  See The New York Superior court order here.  So, in the end, it was much ado about nothing.  Mr. Rakofsky invested a small fortune in filing fees and service expense in serving papers on defendants across the country.  The plaintiff gets nothing and the defendants get nothing. 

And, I still do not know if Mr. Rakofsky ever effected service on J-Dog84@yahoo.com…..

A frequent question arises regarding when an employee is an independent contractor and when is he just a regular employee.  Many employers have moved to using independent contractors instead of employees.  The status of independent contractor can save the employer significant amounts of money in employment taxes, social security payments, etc.

But, the IRS understands that employers have an incentive to stretch the truth regarding an employee’s status.  Department of Labor understands this and the courts understand this.  So, every entity has some test to determine whether an employee is truly independent.  Kevin Christensen has written a nice summary of the different tests to determine whether an employee might be considered an independent contractor at his California Employment Blog.  You can also look at a helpful summary provided by the DOL.  

Among the most important factors is 1) the degree and nature of control of the work by the supervisor.  If the supervisor simply asks that a wall outlet be installed, then that employee performing the work may be a true independent contractor.  But, if the same supervisor instructs the employee to use 220 gauge Romex, specifies where and how to tie into existing wiring and provides the Romex wire and tools, then that so-called independent contractor may actually be an employee.  

Another important factor is 2) how integral is the work to the business.  If the business is a bakery, then it seems unlikely they would also be in the business of installing new wall outlets.  A baker is more likely to let the electrician decide how he wants to install a new wall outlet. 

Another important factor is 3) the extent to which the employer provides the equipment and materials of the purported independent contractor.  If a stationery supplier hires truck drivers via a third party, but provides the truck, then it is less likely that the third party is the true employer.  That is, if a) ABC Stationery Supplies provides the truck, b) XYZ Trucking Co. claims to be the true employer but does nothing other than issue a pay check, then it appears that the truck driver is actually employed by ABC Stationery.  As the DOL notes, context is everything.  These tests depend a great deal on individual facts.  

Perhaps the least relevant factor is how is the alleged employee paid.  Obviously, a true independent contractor would be paid by the project, not by the hour.  But, the courts recognize that employers have incentive to "fudge" paychecks. 

The independent contractor distinction is very important. if an employer mis-classifies an employee as an independent contractor, then that employer could become liable for unpaid overtime for a time period of years. 

In a recent opinion, the Texas Supreme Court clarified one key aspect of whistle blower complaints.  The Texas Whistleblower statute applies to government employees only.  See Tex. Govt.C. Sec. 554.001, et seq.  The statute protects an employee who reports a possible violation of law.  The report or question must be to an "appropriate law enforcement authority."  Tex. Govt. C. Sec. 554.002.  Some court decisions have allowed reports to the employer in certain situations, such as if the employer has an office that is responsible for internal enforcement of the law in question.

But, now, according to the Texas Supreme Court, "appropriate law enforcement authority" means the entity that actually "promulgates regulations" or "enforces" the law in question or "pursues criminal violations."  In Texas A&M Kingsville v. Moreno, the employee reported a violation of the law regarding tuition waivers to the President of the University, and to the Texas Higher Education Coordinating Board.  Her supervisor, Dr. Saban, was claiming a tuition waiver for his daughter, to which he was not entitled.  Dr. Saban became angry, and accused Ms. Moreno of butting into his personal business.  But, the school required the supervisor to pay back the school the amount of the discounted tuition.  TAMU-K essentially agreed with Ms. Moreno. 

Twenty-one days later, Dr. Saban personally terminated Ms. Moreno.  She filed suit.  The employer moved for summary judgment, which was granted.  On appeal, the summary judgment was reversed.  TAMU-K appealed. 

The president has the authority to enforce the law within the university, noted the Supreme Court. The Supreme Court addressed her report to the HECB in a footnote.  In that footnote, the Court found that Ms. Moreno did not report a violation of law.  She merely asked questions about whether what Dr. Saban was doing satisfied the requirements of the tuition waiver law.  According to the Supreme Court, she did not mention the name of Dr. Saban or otherwise indicate her supervisor was violating the law. Yet, in her brief, the employee said the opposite, that she reported Dr. Saban’s apparent improper use of tuition waiver to an official with the HECB. 

In resolving a motion for summary judgment, the court is supposed to accept the employee’s version of the facts.  The Texas Supreme Court seems to have ignored that fundamental principle.   See decision here.  The Court appears to agree that the HECB would constitute the appropriate law enforcement authority for purposes of tuition waivers.  

But, disregarding the non-movant’s version of the facts is a significant error.  The employee has evidence that Dr. Saban prevaricated.  Dr. Saban claimed that the A&M Chancellor, Mike McKinney, told him to terminate Ms. Moreno.  But, Mr. McKinney denied telling him to do so and said he would not do that.  Ignoring the non-movant’s version of facts when the employee impeaches the key witness for the employer is an egregious error by the Court.  Indeed, to obtain the tuition waver, Dr. Saban completed a form in which he falsely claimed to be teaching more than part-time.  He had to know this representation was false when he made it. 

On several levels, the Supreme Court committed error in this decision.  Worse, these are the sort of errors that should have been apparent to the Court.  The Court issued this decision without oral argument,  a step usually reserved for cases in which the answer seems apparent.  This is not such a case.  The facts and the legal issues are complicated.  The Court devoted less attention to this suit than it deserved.  

The nonpartisan Government Accountability Office looked into the Wage and Hour Division.  Wage and Hour is the division of  the Department of Labor that investigates violations of the Fair Labor Standards Act.  When your employer fails to pay you your wages, you can file a claim with Wage and Hour Division.  Unofrtumnately, GAO found wage and Hour provides very poor service.

GAO had fictitious employers and employees call Wage and Hour with various questions.  They found Wage and Hour provides inaccurate information, it discourages wage claimants from filing a claim and even ignored a fictitious report of child labor at a meat packing plant.  See the complete GAO report here.  Read Chris McKinney’s take on the report here.  As Chris says, you may be better off filing a lawsuit with an employment lawyer than relying on Wage and Hour Division.  

Many times an employer’s stated reasons for an unlawful discharge will change over time.  The first occasion an employer offers its reasons is when it fires the employee.  But, often, a supervisor will not provide any reasons at the termination.  Or, there may not be an actual face-to-face meeting when the employee is terminated. The next time an employer would have to explain its reasons for the termination is the "position statement" to the EEOC.  When a complainant files a charge of discrimination, the EEOC requires the employer to explain the circumstances of the termination.  This explanation is known as the "position statement."  

In a large corporation, the position statement is typically prepared by a Human Resources representative or the general counsel.  It is important to get the facts straight, because that position statement is part of the file forever.  It can be used to impeach the employer.  That is what occurred in Miller v. Raytheon, No. 11-10586 (5th Cir. 5/2/13).  In this case, Mr. Miller worked for Raytheon or a predecessor company for almost 30 years.  Under a new boss, he received a poor evaluation in 2007.  Mr. Miller was included in a RIF in 2008 under questionable circumstances.  He was then reviewed for other positions at Raytheon.  He was offered no other positions, even though he was qualified for several.  At a meeting with HR, he was told Raytheon could not offer him any position due to the one poor job evaluation. 

On his own, Mr. Miller applied for four positions at Raytheon but was not selected.  Mr. Miller filed a charge of discrimination with the EEOC based on age.  The employer provided a position statement to the EEOC which claimed Raytheon had a policy in which it would "search every corner of the earth" and "exhaust all opportunities to place" an individual before releasing him in a RIF.  The letter erroneously said Mr. Miller had not applied for any positions at Raytheon after he was laid off.  

Even though the position statement was sent after the layoff, the employee was allowed to use this letter at trial.  The jury found in favor of Mr. Miller and awarded him some $17 million. 

The employer moved for judgment as a matter of law seeking to overturn the jury verdict.  But, in the opinion, the Fifth Circuit said the letter presented circumstantial evidence of pretext and cited caselaw finding that evidence of dissembling alone can show discrimination.  The court noted the discrepancies in the letter.  At trial, the employee also provided evidence that two younger employees were eligible for the RIF but were not laid off.  "In totality," said the Court, this was sufficient evidence on which the jury could choose not to believe the employer’s explanation.  

The Court agreed with the employer that each piece of evidence in isolation might not support the jury verdict.  But based on the accumulation of evidence and the credibility determinations of the jury, this was sufficient evidence.  See decision here. 

It is rare enough that the Fifth Circuit affirms a jury verdict.  It is even more rare when the evidence is largely circumstantial.  The Court made the right call for the right reasons.  The court should indeed look at the "totality" of the evidence.  In fact, in most cases, the employer tries very hard to look at each piece of evidence in isolation.  But, terminations do not happen in a vacuum.  At least this time, the Fifth Circuit agrees.