The Sixth Circuit has rendered a decision regarding a veteran who sued under the Rehabilitation Act of 1973, 29 U.S.C. §791.  The Rehab act applies to federal employees who have disabilities.  The Americans with Disabilities Act was based in large part on the Rehab Act.  In this Sixth Circuit decision, the appellate court affirmed the lower court’s finding tossing out a $4.4 million verdict and instead, requiring Mr. McKelvey to return to his job at higher pay.  See the appellate court decision. 

James McKelvey lost a hand in Iraq in 2004.  He was trying to defuse a roadside bomb.  He was hired by the Tank Automotive and Armaments Command (TACOM) in 2006.  According to the evidence at trial, his supervisor and co-workers began to ridicule him.  They called him "lefty" and "cripple."  He was excluded from meetings. His supervisor assigned him menial assignments and less of it than his co-workers, even though they were "slammed" with work.  The worker complained.  His supervisor and another worker then began referring to him as a "f—ing cripple."  He went to EEO, who encouraged Mr. McKelvey to file a written complaint.  But, the veteran tried to work it out on his own.  The taunting worsened, coming every week. The employee filed a written complaint.  The atmosphere did improve somwhat.

Mr. McKelvey continued looking for a new job somewhere else.  He complained to the garrison commander in January, 2007, who told him he should just look elsewhere for a new job.  Mr. McKelvey found a new job in February, 2007 and quit his job with TACOM.  He filed suit later in October, saying he had been discriminated against.  

Two claims were dismissed or dropped.  He went to trial on the hostile work environment claim and the constructive discharge claim.  A jury found in his favor and awarded him $4.4 million as lost future pay on the constructive discharge claim.  The jury awarded no compensatory damages on the hostile work environment claim. 

After the trial ended, the employer, the Secretary of the Army, filed a motion attacking the findings.  The trial judge found in favor of the employer, finding insufficient evidence to support the constructive discharge claim.  The trial judge found that in the alternative, the proper remedy for constructive discharge is reinstatement to his old job, not future pay. 

So, on appeal, the Sixth Circuit agreed that the proper remedy for constructive discharge is reinstatement.  The legal standard for constructive discharge is that the working conditions are so bad that the employee feels compelled to resign.  The appellate court found that the conditions were very bad.  For some nine months, he was taunted and assigned menial jobs.  The garrison commander warned him to find a new job if he did not like the one he had.  The appellate court essentially found even with the interlude of better conditions, the employee did quit soon enough to satisfy the definition of "constructive discharge."  

But, regarding the front pay, the appellate court found that reinstatement is the preferred remedy.  Reinstatement should be granted in the "ordinary" case, said the three judge panel.  The appeals court said the Army had offered Mr. McKelvey a new job at higher pay under new supervisors.  The court dismissed the plaintiff’s argument that returning would be traumatic.  The court said the veteran would be working with four of six new co-workers and new supervisors.  

It is extremely rare for a trial judge to order reinstatement.  Very rarely does any employer want a worker back who has filed suit.  Just as rare is an employee who wants to go back to a poisonous atmosphere.  The point of future pay is to avoid poisonous work situations.  The court may have been more concerned about the large amount of future pay than the award of future pay itself. 

Those of us who deal with such high stress work situations frequently must wonder about the wisdom of sending Mr. McKelvey back to that job.  His lawsuit has, I am sure, attracted a lot of attention.  Emotions will be very high on both sides if/when he goes back to TACOM. 

Mr. McKelvey will receive some $100,000 in lost pay due to the higher salary.  But, I am sure he is extremely anxious about going back to where he was harassed so badly.  Constructive discharge cases are very difficult.  Courts rarely find that working conditions are so bad that a reasonable employee would feel compelled to resign.  In some ways, he is fortunate to have won a very hard claim to make.  But, as they say, be careful what you seek, because you just might get it.  The plaintiff may appeal by asking the full panel of appellate court judges to hear his appeal. 

I first posted this a year ago.  But, this advice always applies at this time of year, when we all attend holiday parties.  Many times, bad conduct at office parties contributes to sex harassment lawsuits.  For example, telling a female subordinate that you admire her breasts can be good evidence of sex harassment.  See Dan Schwarzt’s post.  

See Dan’s suggestions:  

1) Discourage excessive drinking.  Yes, employers can be held liable in some states for negligence by employees driving home form an office party.  Do not allow an Elaine dance: www.youtube.com/watch?v=5xi4O1yi6b0

2) Have the party at a restaurant or bar, where the retail establishment will assume some liability.

3) Consider providing only beer and wine. No tequila shots.  Serve plenty of food. 

4) Invite spouses and family members. Tie the party to another event, so drinking is not the only activity.  Exchange gifts, collect for a charity, have a Santa Claus. 

5) Consider making the party a lunch event. 

6) Make attendance voluntary, truly voluntary.  if it is a required event, then liability will apply.  It will then become a work function with all that entails. 

See the rest of Dan’s good suggestions. 

 

 

 

The corporate world can be harsh.  Mega Corporation takes over slightly Smaller Corporation.  New management takes over the local sales office.  For unknown reasons, new management decides they need new sales representatives and a new regional manager.  New management lays off seven people total in the local office.  Four out of the seven have just received raises and bonuses. They are all successful employees. 

To avoid the spike in the unemployment insurance rates, they notify each employee in writing that s/he is "voluntary terminated."  Its not true.  These terminations came with no warning.  But, in claiming "voluntary termination," new management make it very difficult for the newly laid off employees to obtain unemployment benefits.  They escort the victims out the door and promise to ship them their personal belongings. This all happens just a few weeks before Christmas.  

And, since the new management gave no reason for the lay off, the newly fired employees cannot claim discrimination.  In Texas, we follow the "at will" doctrine.  An employee can be fired at will for any reason.  The only exception for most people is some form of discrimination.   Since new management provided no reason for the "voluntary terminations," the employees have no viable lawsuit.  They have no clue why they were chosen for termination and not the other 15 or so employees.  If they cannot tell the judge and jury why they were fired, how can they file a lawsuit?

I spent 12 months in Iraq, a place where the terrorists tried to kill us everyday.  I was only there one tour.  The war has lasted several years.  But, I noticed my one Christmas in a war zone, the terrorists were pretty quiet Christmas day.  In Iraq, everyday was a work day.  But, on Christmas, most of us got half a day off or more, since it was relatively quiet.  I have joked in the past that it was nice the terrorists showed a little professional courtesy and let us have one semi-safe day a year.  Hate to say it, but I think the terrorists when I was there were a little more humane than some corporations I could name….

 

Many web sites today provide a forum for  patients, clients and customers to criticize professionals.  But, some professionals require their patient to sign an agreement in which they agree not to criticize the health care provider.  Now, one dental patient is suing her dentist to overturn the agreement she signed.  See ABA Bar Journal report.  

Robert Lee has sued dentist, Dr. Stacy Makhnevich, saying she would not perform dental work until the patient signed an agreement waiving te right to publicly comment about the dentist. The patient was required to agree that copyright to any public comments would belong to the dentist.  In exchange, the dentist agree to keep patient information confidential. 

Mr. Lee says he signed the agreement while he was in pain.  He was charged $800 to drain a tooth and nearly $4000 for filling the tooth.  The suit claims the tooth filling should have cost $200.  When the insurance claim dragged, Mr. Lee posted online comments about Dr. Makhnevich on Yelp and other sites advising against using the dentist.   Dr. Makhnevich then sought $100/day copyright infringement from Mr. Lee.  The patient wants to retain the ability to post critical online comments about the dentist. 

The lawsuit claims the agreement is not enforceable.  Dr. Mahknevich’s agreement promises something the dentist must do anyway, keep patient information confidential.  The agreement used by the dentist was prepared by Medical Justice Services, Inc., a North Carolina company.  The report is that MJS is now advising customers not to use the agreement. 

 Its a crazy way to run a lawsuit.  Alma Rosa Guzman was fired by the Southside Independent School District in November, 2010.  She filed a complaint with the Equal Employment Opportunity Commission.  In May, 2011, she was elected to the Board of Trustees for Southside ISD.  Now, she has received her right-to-sue letter and yes, she has filed suit against her Board. 

See San Antonio Express News report.  I first wrote about this story here.  Alma Rosa Guzman is precluded from closed board meetings about her case.  She has asked for $800,000 and then $600,000 to settle her claims.  Not knowing what her salary and benefits were, those still seem like pretty high amounts.  The Board, with Ms. Guzman abstaining, rejected those offers.  

She claims in her suit that she was paid less then males doing comparable work and that she was denied a promotion that would have been awarded to a male.  She was fired after working for Southside 30 years.  

The rest of the Board says her lawsuit is "divisive."  I bet it is.  

Every lawsuit has another side.  Now, we hear from Dakota Meyer’s former supervisor at BAE Systems OASYS Inc.  Bobby McCreight, Mr. Meyer’s former boss, filed his Answer to Medal of Honor winner Dakota Meyer’s lawsuit.  Mr. Meyer’s lawsuit accuses Mr. McCreight of defaming Mr. Meyer and costing him a new job.  Mr. Meyer had applied for a position with Ausgar Technologies.  Mr. McCreight is also a Marine veteran.  He admits he did speak with the potential new employer at Ausgar, but says he had no idea Ausgar called regarding  a job application by Mr. Meyer.  See San Antonio Express News report.  The defense contracting world is close knit.  It is possible Bobby McCreight and the potential employer at Ausgar knew each other already. 

Mr. McCreight says it is "absurd" that he ridiculed Mr. Meyer’s military service.  He says he served as a mentor to the younger Dakota Meyer.  He helped the Medal of Honor winner draft the email criticizing BAE Systems for considering sending top of the line eqipment to Pakistan, the former supervisor claims.  

The Answer claims that everything Mr. McCreight said to the potential employer was true.  It states that Mr. Meyer failed to consistently follow through on his physical therapy and failed to attend schooling required by BAE Systems.  

Mr. McCreight says in his Answer that he never used the word "mentally unstable" when discussing Dakota Meyer.  He says he would never use those are words to describe a fellow veteran.  I would hope so.  As a veteran, I am also aware that the public sometimes expects some irrational behavior from us.  It does not help to feed into this stereotype.  

Yet, the Answer cites a book by Bing West, which refers to Mr. Meyer.  "The Wrong War" describes Dakota Meyer as wound too tight and willing to fight anyone.  

I have not read Mr. McCreight’s Answer.  But, I have to wonder why he found it necessary to criticize Dakota Meyer, even if he did it via a book written by a well-known military author.   And, I am still scratching my head that when the President called Dakota Meyer to congratulate him on the MOH, Mr. Meyer felt he had to ask the President to call him on his lunch break.  I have represented many nervous employees.  But, cannot recall such a situation where an employee’s job position was so tenuous that a call from the President on something as important as the Medal of Honor might cause them problems.  

Every lawsuit has another side.  It seems to me so far that Mr. McCreight has an uphill climb in this defamation lawsuit. 

Tort reform comes up in Texas every couple of years.  "Million dollar lawsuits are ruining the Texas economy," I have heard off and on since the 1970’s.  Tort reform does tend to attract Republican support.  I agree there is always room for improvement, but the claims are often overblown.  The "lemon law king" of Wisconsin agrees.  A Milwaukee lawyer, who styles himself the "lemon law king," has vowed not to represent Repubicans anymore.  See ABA Bar Journal report. 

Wisconisn recently passed a law limiting attorney’s fees in that state.  The law was apparently passed in part because Mr. Megna was awarded $150,000 in attorney’s fees on a $12,500 damages settlement with a car dealership.  The dealership had been accused of performing unauthorized repairs on a truck.  Republican critics claimed his fee was excessive.  The sponsor of the new statute is Republican. 

Gov. Walker recently signed into law a measure that would cap attorney’s fees at no more than three times the damages awarded.  Mr. Megna responded that it is unfair to cap attorney’s fees for consumer lawyers, but not for the corporate attorneys who unnecessarily prolong lawsuits. 

What is good for the goose ought to be good for the gander.  If reform works for one side, it ought to work for the other.  But, he is right that so-called "tort reform" always seems to actually mean "plaintiff lawyer" reform.  I do not disagree with Mr. Megna in principle.  But, really, isn’t his reaction a bit overblown, too?

The matter has been litigated for a month.  Criminal defense lawyers and others would gather and watch the motion for new trial filed in the case of Kathleen Pierce.  She was convicted of embezzlement last January.  But, her lawyer challenged the District Attorney’s unheard of warrant served during the trial.  The DA believed that Ms. Pierce’s lawyer, Tony Reyes, was using documents which were "stolen" from Ms. Pierce’s employer.  The Assistant DA prosecuting the case asked to see the documents.  Mr. Reyes said she would see them as the case progressed, because he would use some of them as evidence.  The DA became convinced the documents were stolen from Ms. Pierce’s employer.  Ms. Pierce was on trial for embezzling from her employer. 

The Assistant DA procured a search warrant and served it on Mr. Reyes while the jury was out of the court room.  The search warrant accused Mr. Reyes of participating in some crime.  The DA physically siezed the papers from Mr. Reyes’ briefcase.  Ms. Pierce was convicted.  Mr. Reyes filed a motion asking for a new trial, saying the incident upset him so much that he could not effectively represent Ms. Pierce after the siezure.  The judge finally agreed after a month of testimony.  Judge Ray Angelini overturned the conviction.  See San Antonio Express News report. 

It is very unusual for a DA to search a defense attorney’s personal possessions during a trial.  The incident has galvanized the local criminal defense bar.  The several days of testimony filled the court room with defense lawyers and others watching the proceedings.  

And, the legal issue is were the documents actually stolen from her employer?  Mere possession of an employer’s documents do not make them stolen.  Many employers have policies against taking work records home.  But, many employers do not observe that policy.  Often, such policies are ignored.  If so, then work records may be taken home.  

The DA says hey were stolen.  But, were they really stolen? What an employer say about its policies is important.  More important is what the employer actually does. 

According to a recent article in Psychology Today, women do ask for raises and promotions in numbers equal to or greater than men.  It has become accepted among some social scientists that women ask less than men.  The thinking has been that women are still paid less than men in most jobs, because many women hesitate to ask for better pay and opportunities.  This report in Psychology Today, however, finds just the opposite, that women ask for better pay and promotions slightly more often than men do.  See Law Professor report.  Women ask for raises 63% to 54% for men.  Women ask for promotions 19% to 17% for men, according to the study.