The Eastern District of Pennsylvannia, US district court, finds under the old ADA (ie, prior to the Jan 1, 2009 amendments) high blood pressure is not a disability which requires accommodation.  Nmako v. Acme Markets.    The employee had requested accommodation for migraine headaches, emotional stress and high blood pressure.  The physician had told the employee that if he lost weight, worked no more overtime and took a diuretic, then he could manage his high blood pressure.  Under the pre-amendment ADA, therefore, his illness was not a disability.  Because under prior precedent, when treated, his hypertension did not limit his major life activities.  

Now, of course, the 2009 amendment changes this completely.  Now, we look at illnesses under their "un-treated" state.  

 Why some people cannot get a job: "found ur id on;line and found that u ans evil hr question.  i am struck with a question in interview of "why my grades are so low".  and also cant find an ans where a positive mindset is going to be created in mind of the interviewer. i am a law graduate."  

This was a a question posed to Evil HR lady who writes a blog on Human Resources.  Go to link to see her response.  Evil HR lady actually is pretty friendly.  She provides some sage advice to some young job seeker.  Scroll way down to the bottom to an entry for Feb. 8, 2010.  

 

 It is not often that the EEOC even issues a subpoena to an employer for records.  It is more rare still for the employer to resist that subpoena.  But, local San Antonio law firm, The Malaise law firm is doing just that.  According to Russ Cawyer, an employer attorney who blogs on employment law, the EEOC sought records regarding all employees during a certain time frame.  They would need such information in order to interview witnesses.   Malaise agreed to produce the names of the employees.   But, the employer refused to provide contact information for each employee.  Eventually, the EEOC had to file suit in US district court to enforce its subpoena.  

I would expect this to be tough battle for the Malaise law firm.  EEOC investigative records are confidential.  So, arguing that producing records would violate an employee’s right to privacy will have limited effect.  In reviewing the early letters, it appears that Todd Malaise initially represented his firm himself in resisting the EEOC’s demands.  There are numerous letters going back and froth between the employer and the EEOC.  Later, the firm hired employment attorneys to resist the subpoena.  

The EEOC always has too many investigations for too few investigators.  If they must spend so much time on one case, that helps explain why they spend so little time on all their other files. 

 Mike Maslanka, generally a defense lawyer, offers a good point about employee handbooks.  All large employers have them.  They provide concise, easy-to-read rules.  But, employee handbooks generally do not provide a purpose for the rule.  They do not explain why a particular rule is necessary, or even better, why the rule provides a benefit to the employee.  For example, every handbook explains that the employee is at-will and and can quit anytime.  That means, the employer can terminate the employee at any time.  Mike suggests employers explain how that benefits both parties.  One could, for example, insert a sentence explaining that this flexibility allows either party to seize available opportunities.  A handbook could also explain the rules regarding hostile work environment ensure that the best employees are allowed to be productive. 

In the US Army, we called this process "task plus purpose."  Every mission should provide the purpose of a particular mission to a soldier.  If you explain  the purpose of a particular task or mission, you provide that soldier the flexibility to react to changing circumstances.  For example, do not just tell a captain his men must seize a particular objective.  Tell him his troops must secure an objective in support of another attack.  That way, if the objective is secured before the captain gets there, he will know that he should react by supporting the attack in some other way.  This sort of flexibility allows nimble reaction to a fluid situation.  He will not have to wait until he can call the general on the radio to obtain new guidance. 

But, this flexibility also incorporates the Captain into the overall strategy.  He is not just a cog, but an integral part of the plan.  If you bring the Captain and his troops into the overall battle plane, they will treat it as their own plan.  Any employee needs to feel part of the overall strategy.  They need to buy into the overall plan, not just their small part of it.  

But, the disconnect in this scenario is that some employers do not want the employees to feel they have a voice in company strategy.  Some employers believe that in giving employees a voice in how to sell product or how best to fabricate machinery, they may seek a voice in other areas, as well.  If so, that view is short-sighted.  

Americans are generally independent.  We will follow orders or direction but we want to know why. Our military forces for 200 years have always needed some degree of explanation before following direction.  The new generation, the so-called "millenial" generation, seeks this understanding even more so.  An employer who ignores these facets of our national character does so to their detriment.  

 My friend Gene Lee wrote a good post about how long discrimination lawsuits can take.  He refers to statistics showing that from start to finish, the average lawsuit will take 22 months.  That sounds about right for the San Antonio area, also.  Here in South Texas, we can file the typical discrimination lawsuit in state or federal court.  The length of litigation time is about the same for either venue. 

As Gene explains, the discovery process will take months, sometimes years.  In employment cases more than other cases, the relevant "evidence" is mostly in the hands of the employer.  So, as one might expect, employers resist providing evidence whenever possible.  "Discovery" is the process we use to obtain relevant evidence.  Discovery includes written questions and requests for documents.  It also includes depositions.  Discovery is often the heart of the case for both sides in an employment suit. 

Depositions are the biggest cost in any lawsuit.  Gene Lee also put together a nice post about the costs of a lawsuit.  As Gene explains, you do not have to depose every critical witness, but it sure helps to depose anyone and everyone.  

And, of course, as Gene explains in both posts, after everything is done and you win, the employer side will almost always appeal in an employment case.  Employers fare very well in appellate court.  So, they have strong incentive to contest any jury wins.  The appeal itself here in South Texas will require another 1-2 years to complete.  If one must appeal to the Texas Supreme Court, that would take significantly longer.  I recently saw an article about a party who actually sued the Texas Supreme Court because they had heard his appeal four years ago and still had not issued a ruling.  Ouch!

 No one supports frivolous lawsuits.  But, few have done as much to stop supposed frivolous lawsuits as has Bob Perry.  The huge home builder from Houston, Texas has donated tens of millions of dollars to political contests largely to oppose consumer lawsuits.  He funded the SWIF boat for truth campaign against John Kerry.  He helped George Bush become governor of Texas.  His pet issue throughout all these donations has been arbitration.  The Texas Residential Construction Commission was created largely due to his support of key state legislators.  Due in no small part to Bob Perry’s largesse, binding arbitration is now a fact of life for most Texans from employees to home buyers to automobile owners.  

One particular lawsuit by one of his home buyers has dragged on for over a decade.  Bob Perry was determined not to let this case go to a jury.  He wanted it to go to arbitration.  It did go to arbitration, where Bob and Jane Cull were awarded $800,000 by the arbitrator.  Yes, some consumers do win in arbitration.  Mr. Perry was not satisfied.  He found a way to make binding arbitration not so binding.  He appealed twice and lost until he came to the Texas Supreme Court.  The Texas Supreme Court is a very friendly venue for large corporations and for Bob Perry.  The Texas Supremes came out for their man.  Bob Perry had donated $21 million to the Texas Supreme Court between 2006 and 2009.  Every member of the court had accepted money from Bob Perry.  Yet, not one member of the Texas Supreme Court recused themselves from his case.  In a close 5-4 decision, the Texas Court disallowed the arbitration award and sent it to trial in 2008.  I am sure this is the only Texas case that has ever gone to arbitration but was overturned on appeal in the past ten years. 

So, yes, Bob and Jane Cull’s case then went to a jury, an actual trial in 2010.  The Cull’s told the jury how the attic caved in and the foundation heaved and how Bob Perry refused to fix it.  On March 1, 2010, the jury responded.  They awarded the Cull’s $58 million, including $44 million in punitive damages.  Bob Perry will surely appeal.  He has already described this jury verdict as "jackpot justice." 

The Cull’s originally bought their dream home, their planned retirement home in 1996.   Now, in 2010, with years more for appeals, they will not get their home fixed anytime soon.  But, this "jackpot justice" jury award will surely help them if Bob Perry decides to discuss settlement. 

 

 I spoke about depositions in general a couple of weeks ago.  Now, let’s talk about employee depositions in a San Antonio employment lawsuit.  The plaintiff employee deposition is critical to success for any employment lawsuit.  The plaintiff employee must be able to show the opposing attorney and the employer that the employee can testify, can present well to a jury and tell a coherent story.  It is not as easy as it sounds.

The employee has to get past some of the pain, enough to testify without breaking down.  Too many tears will impede a story.  And, as Mike Maslanka shows in a recent post, the plaintiff employee must be able to look at his/her case with enough objectivity to admit possible error on his/her part.  Mike mentions one if his favorite questions to ask (in a deposition, I am sure) "what errors on your part helped lead up to the termination?"  No one is perfect, so if you answer, "none," you risk appearing dishonest.  If you admit to too many mistakes, or to some very significant mistakes, then you risk losing your entire case.  

The plaintiff employee deposition will go as long as several hours and as short as a couple of hours.  It is emotionally draining for every client I have had.  It can get intense.  The plaintiff employee must re-live the very horrible experience of losing a job through no fault of his or hers.  I have had many clients cry either during the deposition itself or during a break.  

Some clients do not hold up, at all.  Some plaintiff employees are suffering from various issues that cause them to be easily lead by opposing counsel.  One former client admitted to opposing counsel that he complained about discrimination on Tuesday, even though he and I both knew it was Monday.  if it was Monday, then he had a good retaliation claim.  If it was Tuesday, then he had no retaliation claim.  Why would he say Tuesday?  I may never know, other than he was simply easily lead on cross-examination.  

Employers will often ask the same question two or three times.  The same question.  But, it is an important question.  "State all facts on which you believe you were the victim of discrimination."  If the plaintiff employee omits one or two key facts, then s/he may lose the right to allege those key facts in the lawsuit.  

Another "catch-22" is that nice is important,  Any witness risks offending the jury if the witness is too rude or pushy.  Niceness does count.  But, if the witness or plaintiff employee do not "fight" for their position in a deposition, then they risk the opposing lawyer defining their story.  The plaintiff employee must be "nice" to some degree, but s/he also needs to fight for her answer, sometimes. 

Cross examination is all about one word answers.  Opposing counsel wants the plaintiff employee to answer yes or no.  But, some questions require explanation.  "Isn’t it true you never called in when you were sick?’  Yes, but…..  "Yes, but the employer did not require employees to call in if they were ill more than one day.  We did not have to call in everyday if we were out more than one day."    The explanation fills in a huge gap about why the employee did not call in.  At some point, the employee plaintiff must provide this key fact.  The risk is that in not providing a key fact, the plaintiff lawyer may not be able to use that key fact when the judge decides summary (ie, quick) judgment.  

So, yes, the plaintiff employee deposition is very important.  

 The EEOC was hit with an award of $4.5 million in attorney’s fees by a federal district court in Iowa.  That is, the EEOC was ordered to pay $4.5 million to the winning side in their lawsuit.  Workplace Prof has discussed the award.  Turns out the EEOC filed suit on behalf of one woman and unspecified other women in a sex harassment case.  The employer was a trucking company with many different locations.  So, as the lawsuit progressed, the EEOC added other female plaintiffs as they came forward.  The women were in different locations working for various male supervisors and co-workers.  The EEOC then turned the initial lawsuit into a "pattern and practice" case.  

Eventually, the district court dismissed claims on behalf of some women and issued summary judgment against the rest of the women.  So, the EEOC lost on all claims.  At some point, there were 67 women with claims still pending but into which claims the EEOC did not investigate and did not attempt conciliation.  Thus, the EEOC created a huge burden for the court and the employer, said the court.  

As Law Professor explains, its a case of darned if you, darned if you don’t.  If you add the new clients, then you do have a pattern of sex harassment.  But, many women filed their charges after the lawsuit had been filed.  So, yes, it would appear to the employer that the lawsuit would never end, as new plaintiffs joined and deadlines were extended.  The EEOC could have chosen not to add the women to the one lawsuit, but then lawsuits would have been pending against the employer for years and years.  

Its a case also of the EEOC simply does not perform actual investigations 99 times out of 100.  Yet, they do have the power to complete investigations.  More is expected of them.  But, because they have so few investigators, they accomplish very little.  Most US district court judges are aware of the EEOC’s limitations.  But, the EEOC’s limitations essentially make more work for the federal court system.