Billy Ray Cyrus’ former road and farm manager has sued the country-western singer and his wife for age discrimination. The manager says Billy Ray said the manager was "old and dumb and don’t know anything about running a farm." Yea, comments about age are usually pretty good evidence of age discrimination. See report.
It looks like someone will have an achy, breaky heart…..
The first thing one defense lawyer does when he is hired for an employment case is check the employee’s Facebook account. See blog post. Eric Meyer, a defense lawyer, looks for references to the work place or the employer. He prints out any pictures. He looks for any information that refutes or refers to any allegation in the lawsuit or complaint. According to one case, EEOC v. Simply Storage Management, it does not matter whether the employee has opted for privacy or not. An employer would still have the right to request such information as part of the discovery process.
Mr. Meyer does not mention that Simply Storage concerned two female plaintiffs who claimed post-traumatic stress disorder. See my prior post on that case. So, Simply Storage should not apply to the vast majority of cases in which the plaintiff seeks nothing more than “garden variety emotional distress.” But, the case does suggest that FB entries will be discoverable in some cases.
Mr. Meyer says he will issue a subpoena if necessary. He will send a spoliation letter – meaning a letter which warns the employee from deleting anything on FB until the defense can obtain copies. The defense lawyer even says he will review the friends’ list to see who might have access to your FB website. He appears to suggest he would consider asking current employees to access your FB wall and report what they find.
There was a time when the employer had in its possession all the relevant evidence. Now, the employee may have some critical evidence, as well. That does place some responsibility upon the plaintiff employee to safeguard potential evidence.
Settling a discrimination lawsuit is never easy. The employee and employer both have to develop some understanding of evidentiary issues, personnel issues and employment caselaw within a very short amount of time. I have discussed settlement before, here, and here. The client must also come to some understanding of the opposing side and how they view the case.
In dealing with employees, some, a very small percentage come into the process with high expectations based on everything from spilled coffee cases to personal injury lawsuits with mega-million verdicts. These clients will tell me with a straight face that they want to be reasonable and not greedy, so $1 million or $100,000 is very reasonable. They need the money to pay medical bills, past due mortgage payments, etc.
But, discrimination lawsuits are not personal injury lawsuits. We cannot seek amounts for medical bills or overdue mortgage payments. Title VII of the Civil Rights Act prescribes what we can ask for: lost pay and benefits, compensatory damages (emotional suffering), punitive damages and costs of prosecuting the lawsuit. So, it really is a non-starter to ask for a higher amount to "cover medical bills." The employer will not respond to that sort of a settlement demand. The employer wants to deal in reality, not a wish list.
The employer is typically very upset they even have to even hire a lawyer. "I know Joe [Manager]. He is not sexist," many employers say. They believe every lawsuit is frivolous. So, why would someone with that view consider amounts based on personal need and not on actual value of the lawsuit? Why would an employer consider damages to which the employee is not entitled? Even making a request not grounded in reality reinforces the employer’s preconception that the lawsuit is frivolous.
A client told me once that they were sure they could obtain a larger amount. I could not dissuade him, so "fine," I thought, "let’s try an amount based on personal need, not on reality." Sure enough, two weeks later, the employer refuses to respond to an offer ten times what an average jury would award. The emloyer simply declined to make a counter-offer. The employee was shocked at the lack of response. I was not. Would anyone buy a used car for ten times the blue book value?
It is the lawyer’s job to educate clients. We are the guide through a complicated process. But, some clients do not want a guide. They think they know, already. To those clients, I eventually say, "well, then you do not need me . . . ."
Video from the scene of the Tuscon shooting shows that Judge Roll died trying to protect an aide, Ron Barber. According to videotape, the shooter, Jared Loughner, walked straight up to Congresswoman Giffords and shot her. The shooter then starts shooting indiscriminately. Roll pushes the aide down out of the way. As he does so, judge Roll is shot in the back. Roll then falls on Barber, shielding the aide from further rounds. See ABAr Bar Journal report.
Judge Roll was appointed by Pres. George H.W. Bush in 1991. He was a devout Catholic. He was on his way back from Mass on Saturday when he stoppd by the gathering at the Safeway supermarket in Tuscon.
During his career, he has issued some well-known rulings. He was one of several district court judges to find that provisions of the Brady handgun law violated the Tenth Amendment. Later, in 2009, he allowed a lawsuit by MALDEF (Mexican American Legal Defense Fund) against a local rancher to go forward. The lawsuit was filed on behalf of 16 Mecians who claimed that a rancher held them at gunpoint and threatened them. Because of this ruling, Judge Roll then became the subject of numerous talk shows. He and his family were threatened.
When some of those who made the threats were identified, he declined to press charges.
Judge Roll died a hero.
Arbitration clauses are everywhere, from employee handbooks to automobile purchases to purchases of electronics. Now, we even find arbitration clauses posted on the front door of a Whataburger. See post. The "American Mediation Association" mentioned in the post is actually a Dallas law firm.
As Workplace Prof mentions, one day we will surely see arbitration clauses on grocery store receipts…..
Judges are usually very polite in the courtroom. A few are cantakerous and pushy. A very small percentage are outright abusive and tyrannical. US District Judge McBryde in Ft. Worth is notorious for issues. He was suspended from "judging" in 1996 for a year by the Fifth Circuit Court of Appeals. An unheard of sanction from other judges.
Now, Judge McBryde has sanctioned three lawyers and recommended criminal prosecution regarding
two lawyers who questioned his impartiality. See ABA Bar Journal report. The judge reportedly asked the plaintiff lawyer if he was being paid contingency and if so, he would not get a "house" out of the litigation. Judge McBryde says he meant the comments as a joke.
I have heard the stories about Judge McBryde. A lawyer once needed to postpone a hearing because his wife would be in surgery. The judge simply said no. He is the judge lawyers from all corners wish to avoid.
The perception among some folks is that discrimination lawsuits are almost always frivolous. Some people believe discrimination could never happen to a good worker. One of my clients illustrates the fallacy of that belief.
Sue worked hard for her employer, a major employer in San Antonio. She thrived despite disabilities such as spina bifida and depression. Sue worked in Human Resources, the experts on discrimination and personnel issues. She had an informal accommodation that whenever her depression worsened, she would work from home. That is what her employer did when they were sick anyway – they worked from home. So, her "accommodation" was already part of the corporate culture. All the salaried employees would work from home on sick days.
Sue’s depression worsened at the same time each year, which coincided with the time of the year when her family suffered a huge family crisis some years before. The employer, Acme Brick, was understanding. Her boss was the HR Direcotor. Acme Brick went through many HR directors. The HR directors all had a good undertanding of the law allowing accommodation. Sue was the "star" employee. The HR Directors would praise Sue at management meeting as the "right hand woman" in HR. Sue produced the payroll every two weeks with no errors, ever. After about a year, she got her third new HR Director, Bob. Bob praised Sue at the management meeting In April. He gave her a raise in June.
One day in July, a co-workers told Sue that Bob seemed to be hiring his former co-workers from a prior job. Sue doubted it but pulled up Bob’s resume to see where Bob had worked in the past. Bob walked in, saw his resume on Sue’s computer screen and yelled at her. He then walked out. A week later, Sue called in sick. She said she would work from home, as always. But later that day, Bob had her access to the work sever pulled. Now, Sue could do no work from home. In an email later that day, Bob told Sue her absences were becoming a problem. Sue offered to take FMLA leave, unpaid leave. Bob did not respond.
Sue was on good terms with a member of the board. She told Jack what had happened. Jack assured her she would not lose her job. He said they had some issues with Bob. So, Jack asked Sue to quietly check Bob’s background and see if there were any issues. Sue agreed to do so.
Driving to work the next day, Sue had a flat tire. She called Bob to let him know. Her spina bifida kept her from performing manual labor. She she had to wait for her husband to come help with the tire. Over the noise of Loop 410 traffic, Bob fired Sue. Sue could barely hear him over the noise. Bob said her attitude was an issue.
So, only a month after giving her a raise, Bob fired her for "attitude and performance" issues. Bob had only been the Director for some three months. He had never counseled Sue verbally or in writing.
Sue then spoke with Jack. Jack said he could do nothing. He offered a small severance payment. But, Sue loved Acme Brick. She wanted her job.
Eventually, she filed with the Equal Employment Opportunity Commission. Acme Brick coded Sue as not "rehireable." Sue applied for countless HR jobs. But, HR was the one area where managers knew what "unhireable" meant. She could not get a job or an interview. With her spina bifida, she might qualify for Social Security. But, she wanted to work. Now, a lawsuit became more important to the former "star" employee.
As one client told me, one day you’re the stud. The next day, you’re the dud.
Credit checks are becoming a discriminator in selecting job applicants. The Equal Employment Opportunity Commision has taken notice. The EEOC filed suit against Kaplan Higher Education Corporation. See report. Since 2008, Kaplan has rejected applicants based on their credit scores.
The issue for the EEOC is that relying on credit score will adversely impact minorities. That adverse impact coupled with a lack of a business necessity makes the lawsuit viable. Credit score has little relevance to a persons qualifications. It might have some relevance to character issues, but there are other ways to assess character. So, yes, it could be an interesting lawsuit. Here is the EEOC’s news release regarding the lawsuit.
In every employment lawsuit, depositions are taken. A court reporter transcribes the testimony and sends the transcript to the witness for review. Under federal rules, the witness has 30 days to review and submit any changes. The changes are supposed to reflect changes to what was asked or answered, not changes to actual substance. Changes generally address typos, not substance.
Clients ask me all the time how many corrections can they make to their deposition. In an employment case, the deposition of the alleged victim is critical. The employee must be able testify to the discrimination. So, any changes to the deposition transcript are important. What if the employee finds her deposition answers are not quite right? I have never had that problem. In my experience, the issue has always been typos or perhaps, somewhat incomplete explanations.
Well, in Norelus v. Denny’s, No. 94-02680-CV (S.D. Fla.), the plaintiff employee made 868 changes to her deposition transcript. A junior associate even helped write explanations for the changes (e.g., "recollection refreshed"). What happened afterwards is subject to dispute, but is the subject of an 11th Circuit deision in which the appellate court sanctioned the plaintiff’s law firm almost $400,000. See No. 07-14077 (11th Cir. 12/28/10).
The plaintiff was a Haitian immigrant. She worked at a Denny’s in Miami and alleged she was sexually harassed constantly and raped by two managers. Her deposition lasted eight days, which is very unusual. She reviewed her deposition, as most plaintiff employees do, and made 868 changes, which is also very rare. I think the most changes any of my clients have ever made was some 20 to 30 changes.
According to the dissent, the plaintiff lawyer then sent the errata sheet with 868 changes to the defense attorney, not to the court reporter. In testimony later, Karen Amlong, the plaintiff’s lawyer, said she wanted the truth to be know about the client’s testimony.
As the dissent explains, this is an important distinction. If Ms. Amlong wanted the errata sheet to be made part of the deposition, then it had to be sent to the court reporter. Not doing that, it appears the plaintiff lawyer had other goals in mind. The dissent believes she felt ethically bound to reveal possible perjury by her client. The nature of the changes (changing no answers to yes; providing details she could not previously recall during the deposition a few weeks prior) does suggest the client lied in her deposition, in the changes or both. So, some lawyers would believe they have a duty to reveal those apparent lies. The ethical rules are not clear. The dissent believes Karen Amlong deliberately, if indirectly, revealed those lies to the defense attorney.
At this point in the lawsuit, the defense lawyer moved for sanctions. He implied, without directly stating it, that Ms. Amlong submitted the 868 changes to the court reporter. Thus began some $378,738 in attorney’s fees by the defense. That is the amount of the court’s sanction. So, as the dissent explains, the defense lawyer could have avoided the $378,738 if they had been more honest.
The 11th Circuit decision is curious. The majority opinion takes some nasty swipes at the dissent. A second judge concurred in everything but the part that attacks the dissent. It takes two judges to reach a ruling. So, essentially, the "majority" decision includes one and one-half judges.
The majority opinion discusses the Amlongs’ actions constantly throughout a very lengthy decision. But, so far as I can tell, the majority decision never mentions the name of the defense attorney who also appears to have committed errors. The majority decision is some 74 pages long.
The "errata sheet" was submitted just before trial. The trial judge, upon being informed of all the changes, ordered a third deposition of the employee at the employee’s expense. The plaintiff testified poorly, unable to recall certain facts. The plaintiff bcame sarcastic with the defense attorney, who then stopped the deposition.
The plaintiff refused to pay the costs of the third deposition and the judge dismissed the case. The resulting litigation has been all about these defense lawyers trying to recoup their attorney fees.
It is curious to me that the plaintiff’s lawyer stayed with the client even after the 868 changes. To me, those changes, some completely different from her deposition testimony, appear to indicate perjury. Some lawyers would have withdrawn from such a case once perjury became apparent. I am told that few lawyers go to the trouble of representing Haitian immigrants. Translation of the Creole dialect is very difficult.
The Amlongs are well-known attorneys. They previously represented Ms. Faragher in the well-known Faragher v. City of Boca Raton decision. That was a US Supreme Court decision that cleared up confusing law regarding sexual harassment cases. That case required some hutzpah, since the state of sexual harassment law prior to the Faragher decision was very confused.
The dissent makes more sense to me. If the lawyer sent the errata sheet to the defense attorney, and not to the court reporter, then clearly the plaintiff’s lawyer was trying to alert the defense to her client’s apparent perjury. That is no small step for any lawyer to take, possibly exposing Ms. Amlong to a complaint by her own client. I am sure Ms. Amlong felt considerable angst when she sent that list of 868 changes to the defense attorney.
The sanction, $378,738, is huge for a small, mom and pop law firm. I am sure the plaintiff’s law firm will seek en banc consideration. En banc review means they will ask the entire 11th Circuit to hear their case. This deicision issued Dec. 28, was issued by a three judge panel. The 11th Circuit has some ten other judges. They might view the case differently.
Clients and witnesses do not need to recall every detail of every event. They do need to recall enough facts to be credible. If they make wholesale changes to a deposition, then that does suggest perjury somewhere. The young associate who actually provided legal terminology (‘recollection refreshed") to support some changes made things worse for the Amlongs.
The purpose of reviewing a deposition is not to ensure the transcript accurately reflects reality. The purpose of reviewing a deposition transcript is to ensure the transcript accurately reflects the reality as it was conveyed in that deposition on that one day.
Dan Schwartz, an employer’s lawyer, wrote a piece about social media. He presents talks on social media and is often asked "is it legal" to "friend" a subordinate? Dan replies, and I agree, that it may be legal, but it may not be prudent. A teacher who "friends" students and employers who friend employees can present awkward situations.
Requests by the employer to "friend" a subordinate could be misinterpreted and could cause the employee to feel pressure. As Dan says, it is better to set these parameters now than after a lawsuit. See Dan’s post for more information.