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In every civil lawsuit, we have this process known as “discovery.” One side can ask the other side for the evidence or potential evidence it possesses. For the discovery process to work, there must be some minimal level of cooperation between the two sides. That requirement allows some room for unscrupulous lawyers to ignore or manipulate the discovery process. In one discrimination lawsuit in Massachusetts, that is exactly what happened.

The plaintiff’s lawyer ignored the written discovery. He then ignored two notices of deposition. The defense lawyer traveled from Massachusetts to Cleveland to depose the plaintiff, but the neither the witness nor the attorney appeared for the deposition. Only then did the plaintiff lawyer tell his client what he had been doing. In preparing the plaintiff for his deposition, he told him to lie and say he had been told by his lawyer about the two prior deposition settings. Unknown to the lawyer, Steven Jerome Moody, the plaintiff recorded the conversation. The client was offended that he was asked to lie for the lawyer. Someone filed a complaint with the Ohio Bar association.

The Ohio Bar Association suspended Mr. Moody’s license indefinitely. The lawyer claimed he was transitioning from a paper office to paper-less and had missed entering some entries into his cell phone. He said he was “puffing” to bolster his client’s confidence. The bar association and the Ohio Supreme Court did not believe him. Among Mr. Moody’s comments to his client:

  • “She sent me an interrogatory, request for production of documents, I completely ignored her ass for a few months. And I made her file a motion to compel, and then I called her and said, oh, yeah, I’ll get them to you in two weeks. And then I completely ignored her ass again.”
  • “She’s an arrogant bitch, okay?” and, “I made that bitch fly into town” for the missed deposition.
  • “Obviously, you know, you don’t want to discuss that I played a game with her, you know. But that’s basically it.”
  • “She might ask you, do you know that your attorney didn’t send any discovery, do you know that you were supposed to be here on, whatever the—she had one or two dates. Did your attorney tell you that you were supposed to be present for those depositions? Yes.”

Of course, lawyers are expected not to lie. Perhaps, it needs to be said that we also cannot ask our clients to lie for us. See ABA Bar Journal report for more information.

Every discrimination case involves some amount of he said/she said. Most acts of discrimination occur behind closed doors. So, the testimony will be all about a swearing match. But, that does not mean the two stories cannot be confirmed or denied. In a discrimination case, we would want to know, for example, the circumstances behind a demotion or a firing. Does the story make sense? Do the surrounding details support or undermine the main story line?

It is the same with Judge Brett Kavanaugh and Dr. Christine Blasey Ford. The fact that no witness appears able or competent to confirm or deny their respective stories does not mean either story is false. The details become more important in such situations. Dr. Blasey Ford remembers very few details, other than the actual assault. She does recalls, however, that she saw Mark Judge at a nearby Safeway grocery store weeks after the incident. When we look at the book written by Mark Judge, we do indeed see that he worked at a Safeway in the Summer of 1982. Mark Judge wrote a book about his recovery from alcohol abuse. It goes into great detail about his excessive drinking in high school.  So, again, Dr. Blasey Ford’s story is confirmed in another respect, that a young Brett Kavanaugh drank a lot. And, in another important detail, Mark Judge mentions that he and his friend, “Bart O’Kavanaugh” partied hard in high school. See Rolling Stone news report here. “Bart” appears several times in Mark Judge’s book.

That is how a discrimination story is confirmed or denied, on the edges, around the periphery. It is circumstantial proof. But, sometimes circumstantial proof is more trustworthy than someone’s hazy memory.

“You get a rest break every four hours,” the seasoned warehouseman told me back in the 1970’s.  He knew everything. I just assumed he was right about this, too. But, since then, I have never seen anything in law or regulation stating that workers were entitled to a 15 minute break every 4 hours. But, there is a regulation encouraging employers to provide a rest break every so often. See 29 C.F.R. Sec. 785.18.This regulation tells employers that rest breaks improve efficiency. The regulation states that rest breaks of 5 to 20 minutes are common in industry. Any such rest break must be compensated. But, no rest break is required.

The regulations do provide that if a meal break is provided, it must be free of work duties. See 29 C.F.R. Sec. 785.19. Federal regulations do not require meal breaks. See Department of Labor’s Questions and Answers about the Fair Labor Standards Act here.

Sexual harassment cases are complicated. The legal standard is that harassment by co-workers which is “severe or pervasive” will constitute a hostile work environment – if of course, management knows about the harassment and does nothing. But, what happens when the harasser is a customer? If an employer is aware of the harassment and does nothing, the employer is liable. In Gardner v. CLC of Pascagoula, LLC, No. 17-60052 (5th Cir. 6/29/2018), we see an additional twist. What happens when the person doing the harassment is a patient suffering from dementia?

The plaintiff was employed as a certified nursing assistant at an assisted living facility. She had years of experience in the field. Perhaps, that is why she was assigned to J.S., a difficult patient. J.S. was elderly. He suffered from dimentia. He would grope the female employees and become violent when they would resist. One day, he tried to grope Ms. Gardner. She resisted. He struck her breast. He struck her again, as they tried to move him. She may or may not have swung toward him deliberately missing him. She walked out, allegedly saying she was the wrong skin color. The other white nurse apparently was able to calm down J.S.

Ms. Gardner went out on worker’s compensation leave and was fired when she returned to work. The employer said her comment was racist and that she tried to hit J.S. The CNA filed suit. The employer was granted summary judgment.

There was no question J.S. frequently tried to grope women, on their thighs, breast, buttocks and their private areas. He did this daily. The appellate court found this was “severe or pervasive” harassment. J.S. was eventually moved to an all-male facility with lock-down security.

Ms. Gardner might have still lost her claim, but her supervisors were derisive toward her complaints about J.S. One of them told her to put on her big girl pants. And, as the court pointed out, another element of a sexual harassment claim is that management takes no action to stop the harassment. The court faulted management for doing nothing to even try to stop the harassment. After J.S. had punched her three times, she asked to be transferred. Management told her no. Management clearly was not even trying to fix the problem. The plaintiff presented evidence regarding what other nursing facilities had done where she worked. They would require two or more aids, try to use medications to control behavior, or simply transfer the patient to some other facility. CLC took none of steps. And, of course, long after firing Ms. Gardner, CLC did finally transfer J.S. out of the facility.

The court recognized that there may be times when it is simply not physically possible to keep an ill patient from acting aggressively. But, there were things the employer could have done this time, in this case. But, it did none of those. The Fifth Circuit reversed the grant of summary judgment. See the decisions here.

Well, the Supreme Court disagreed with me. But, only by a 5-4 vote. The Supreme Court ruled in favor of the President’s travel ban and rejected the appeal of the state of Hawaii. See the opinion in Trump v. Hawaii, No. 17-965 (6/26/2018) here. I previously wrote about that travel ban and its apparent religious bias here and here. The Supreme Court found that the President had broad authority to restrict immigration. And, this was after all the third version, the one the President referred to as a “watered down” version.

Chief Justice Roberts wrote the majority opinion. The President relied on 8 USC Sec. 1182(f), which allows the President broad authority to restrict immigration. Justice Roberts noted that the Proclamation implementing the travel ban is 12 pages long. It provided detailed reasons for the exclusions it sought.

Regarding the allegation that the executive order sought to exclude Muslims, the court noted that the Constitution provides that the government shall take no measure respecting the establishment of a religion. The court noted the many statements by Candidate and President Trump attacking the Muslim faith. In his first week as President, he referred to the first version of the ban as the “Muslim ban.” When the current immigration ban was implemented, he said it was “watered down” and that he wanted something stronger. Justice Roberts then recounted a long history, starting with George Washington, of presidents espousing religious tolerance and freedom. The Justice was clearly calling the current President to a higher standard than to espouse “Muslim bans.”

But, the court would not go so far as to assign bias to the executive order itself. Wearing blinders a bit, the Justice claimed the executive order itself is neutral in regard to the Muslim faith. Of coarse, that conclusion strikes me as naive. The court chose to ignore the President’s own stated bias in effecting this travel ban.

Justice Kennedy issued a concurring opinion, simply to remind the Prudent that he, like all federal officials, took an oath to defend and support the Constitution. Without naming Pres. Trump by name, he was clearly warning the President that he must adhere to the principle of the Constitution even in regard to travel restrictions.

Four justices dissented. This was a close vote. But, the vote to watch belongs to Justice Kennedy. He is the swing vote. He supported the President’s executive order, this time. But, he sent a warning to the executive branch. I am doubtful the President will notice. But, his lawyers will.

 

In a recent decision, the Fifth Circuit overruled Judge Lynn Hughes, again. The Fifth Circuit reversed Judge Hughes’ grant of summary judgment on several claims. The claims started when Karen D’Onofrio left Vacations to Go, the largest seller of ocean-going cruises in the world. Karen was a sales representative for Vacations. After a couple of years with Vacations. Karen’s husband sustained an injury to his back. About that same time, Michael, her husband, decided he would purchase a franchise with OneCruise, a competitor of Vacations. Karen took some time off to care for Michael. While she was out, she attended a training for OneCruise. She had planned to service her customers while out on FMLA leave. But, she failed to respond to emails. Customers complained. So, Vacations moved her customers to in-house sales reps.

Vacations then erroneously sent an email to customers, including Michael, that Karen no longer worked for Vacations. She had in fact been locked out of her online customer accounts. Karen, believing she had been fired applied for unemployment benefits. After several months, Vacations emailed Karen asking when she would return to work. Karen replied that she would not return, because she thought she had been fired.

Karen sued Vacations in state court for FMLA violations and hostile work envfironment. Vacations counter-sued for breach of a non-compete agreement and added Michael as a defendant. Vacations also sued for fraud, conversion of confidential information, and tortious interference with existing and prospective business relations. The company also removed the suit to federal court and Judge Hughes. Karen moved to voluntarily dismiss her FMLA claims, which Vacations opposed. The district court denied her motion to dismiss. Michael moved to be dismissed form the case, which motion the judge never addressed. Judge Hughes stayed discovery, as he often does. Vacations then moved for summary judgment, which the district court granted.

On appeal, the Fifth Circuit first addressed the evidence for the motion for summary judgment. The employer’s affidavits, noted the appellate court, were conclusory. Various Vacations employees submitted affidavits that concluded Karen had a valid non-compete agreement in place and she had violated it. That was a legal conclusion, said the court. Employees also speculated as to the damages, and did not explain how they arrived at their assessment of the damages. The employees did not even claim to have firsthand knowledge of the damages. The plaintiff’s objections to the affidavits should have been sustained, said the court. They were not competent evidence for summary judgment.

The Fifth Circuit found the district court had granted summary judgment on Karen’s hostile work environment claim without giving her notice that such a claim was before the court. The distrioct court granted summary judgment as to her hostile work environment claim sue sponte from the bench.

The district court quashed discovery, but would allow discovery by specific order. There was no order in which Judge Hughes allowed Karen to conduct discovery as to her hostile work environment claim. With no discovery on the claim, she was not prepared when the court ruled from the bench that it would grant summary judgment as to her hostile work environment claim. The court reversed the granting of summary judgment as to Karen’s hostile work environment claim.

The appellate court did affirm summary judgment as to Karen’s FMLA claim. Vacations had given her a choice. She could work from home and service existing customers or she could take a straight FMLA leave with no work. She chose to work from home. That choice prevents any claim that Vacations interfered with her FMLA rights.

Regarding the breach of a non-compete agreement, the Fifth Circuit found the agreement to be overbroad. The agreement had no limits, which means it was, in effect an industry wide agreement. Texas law forbids industry wide non-compete agreements. It had no geographic limit and it applied to any job for any competitor. The agreement would apply not just to any other cruise line, but to any travel company. The non-compete agreement applied too broadly, said the Fifth Circuit. The Fifth Circuit remanded this claim back to the district court for proceedings to determine the geographic limits Karen worked and the customers she serviced. The court could not determine what the limitations of the non-compete agreement were without more information about to whom she sold the product.

Regarding Vacations’ other claims, the Fifth Circuit found there was substantial issue of fact, such that summary judgment was not appropriate. The district court also incredibly awarded attorney’s fees against the D’Onofrios in the amount of $174,000. The higher court reversed that award. Judge Hughes has been reversed yet again.

See the decision in D’Onofrio v. Vacation Publications, No. 16-20628 (4/23/2018) here.

For federal employees, they have a different process to trial. A federal employee can file a verbal complaint with his/her local EEO office. When that process is completed, the federal employee then has 45 days to submit a written complaint. The Agency then conducts an investigation. The Agency does not come to any conclusions about whether discrimination occurred. But, the EEO investigator does gather statements from all (or most of) the pertinent witnesses. When that process is completed, the federal employee can file suit in U.S. district court, or request a less formal hearing in front of an EEOC Administrative Law judge. In theory, the EEOC judge process should be quicker and cheaper than U.S. district court. But, the EEOC process is not quick anymore.

According to statistics provided by the EEOC, for the time period FY 2009-FY 2017, the total time of the EEOC process has increased every year. The numbers below apply to the San Antonio Field Office. The Texas region has been short of a few judges for several years now. But, much of the country is also short of Administrative Judges. Median processing time refers to one-half being greater than that number and one-half being smaller than that number. The first category addresses those rare cases in which a federal employee reaches the point of having a trial in front of an EEOC judge and wins.

Written Decision/Finding of Discrimination

  • 2009: 5 cases/ 285 days median processing time
  • 2010: 2/626 days
  • 2011: 0
  • 2012: 0
  • 2013: 1/612 days
  • 2014: 0
  • 2015: 1/1128
  • 2016: 0
  • 2017: 0

The next category applies to the majority of cases. These are the federal EEOC complaints that have proceeded to a trial in front of an EEOC Administrative Judge in which the employee lost.

  • 2009: 68 cases/296 days median processing time
  • 2010: 4/227
  • 2011: 27/199
  • 2012: 28/221
  • 2013: 14/332
  • 2014: 6/279
  • 2015: 1/146
  • 2016: 2/1644
  • 2017: 3/1181

So, the median processing time for employees who lose their trial in front of an EEOC Administrative Judge has increased from 227 days in 2010 to 1181 days in 2017. And, since 2013, there has been significant drop-off in the number of EEOC complaints that have reached the trial stage. And, starting in 2016, the length of time to reach a trial and lose has exploded.

Some cases do settle. The number of settlements is not as significant as they might seem. In many federal settlements, no money changes hands. Many federal employees are happy to settle for nothing more than a transfer to a new department or to a new job. These numbers reflect how many cases settled and how many days it took to reach that settlement.

  • 2009: 81 cases/210 days median processing time
  • 2010: 55/137
  • 2011: 54/134
  • 2012: 69/182
  • 2013: 77/241
  • 2014: 57/246
  • 2015: 56/177
  • 2016: 78/215
  • 2017: 40/294

So, many cases settle within the first 7-10 months of the life of a written complaint. That suggests if your case does not settle within that time, then the process will require  years before reaching a resolution.

 

Online legal help has grown tremendously in the past 10 years. But, the truth is many of those websites are providing legal advice – without a law license. In lawyer talk, we call that unauthorized practice of law. Unauthorized practice of law was developed to protect consumers from charlatans, person who claim legal knowledge, but lack it. I am not sure what to think about the online legal service providers.

But, Raj Abhyanker knows what to think. He has sued several of those legal service providers, LegalZoom, FileMyLLC, and others. Mr. Abhyanker practices patent and copyright law. As he points out, those online providers can provide services without incurring expenses for continuing legal education, for malpractice insurance, and the many other expenses actual lawyers incur. The online legal providers have an advantage. Mr. Abhyanker says bar associations are unwilling to push the issue. But, the bar associations all know these providers are providing legal advice, meaning they could be prosecuted. See ABA Bar Journal report.

I think bar associations are holding back also because at least so far, there have been no significant scandals arising from these providers. Until or unless they cause harm to consumers, it is hard to criticize them. They are indeed providing legal advice, but much more cheaply than seeing a lawyer. In most of the world, civil law countries have an institution known as “notaries.” In a civil law country, a notary provides the more routine and mundane legal services more cheaply. In France or Mexico, you can see a notary to draw up a contract for you, and it will cost much less than seeing a solicitor. In the U.S., we do not have an equivalent of the notary. We have notaries, but they cannot draw up legal, binding contracts. There ought to be a cheaper way to obtain the more mundane, routine, legal services.

Part of the reason bar associations hang back from going after these online providers is that they do fill a niche.

Many federal judges avoid employment cases partly because they involve so much detail. But, it is in those details that a circumstantial case is won or lost. And, most employment cases depend on circumstantial evidence. in Robinson v. Jackson State, No. 16-60760 (5th Cir. 12/4/2017) (unpublished), the Fifth Circuit dived into those details and provided some helpful lessons. The lower court granted a motion JNOV (not withstanding the verdict) after the close of jury trial. That means the judge overturned the jury verdict.

Fredrick Robinson noticed a supervisor, Dr. Fuller, eyeing a secretary in a provocative way. Dr. Fuller, the new athletic director, fired the secretary. The athletic director then fired Mr. Robinson and another employee about  month after they were both interviewed by the EEOC. Robinson and the other employee were the only employees to corroborate the secretary’s allegations.

At trial, Dr. Fuller did not admit to knowing that Robinson had been interviewed by the EEOC. The school attorney who was present for the EEOC interviews denied telling Dr. Fuller about the witnesses and who they were. So, it was a classic case. The official who terminated Mr. Robinson denied she knew Mr. Robinson assisted with the EEOC investigation. If the supervisor does not know you assisted the EEOC, then that supervisor cannot be guilty of reprisal because you assisted the EEOC. So, Mr. Robinson’s case hinged on what Dr. Fuller knew and when she knew it.  The jury found in favor of Plaintiff Robinson and awarded $7,100 in lost pay, $25,000 in compensatory damages, and $75,000 in punitive damages.

The district judge then granted JNOV on that issue, finding there was no evidence that Dr. Fuller knew about the participation in the EEOC process before she decided to fire the two employees.

On appeal, the Fifth Circuit noted the timing. Robinson and the other witness were both fired one month after testifying to the EEOC. Jackson State attorneys knew about Robinson and the other worker. And, the purported reasons for firing Robinson were weak. Mr. Robinson was a trainer. The department was already below the require number of trainers when she fired Mr. Robinson. Dr. Fuller’s explanation shifted over time. And, Dr. Fuller did not comply with procedures for terminating an employee.

In reviewing the matter, the higher court noted that the McDonnell-Douglas burden shifting paradigms did not apply, once the jury heard the case. The court noted that in a relation case, it is important to show the decision maker had knowledge of the opposition to discrimination conduct. If Dr. Fuller truly did not know Mr. Robinson had spoken its the EEOC, then her action is firing the trainer could not have been retaliation. The plaintiff argued that the court should accept a “general; corporate knowledge” test as used in the Second Circuit. The Fifth Circuit, however, declined, noting that the circuit had always required “actual” knowledge by the decision maker. The court noted that the plaintiff provided some evidence of the Dr. Fuller’s knowledge. He attitude toward the trainer changed dramatically after he spoke with the EEOC. Prior to the EEOC interviews, the president of the university has explicitly threatened anyone who opposed Dr. Fuller with termination. The school’s two lawyers were aware of the interviews. Dr. Fuller met with both attorneys prior to her own interview with the EEOC and she continued to meet with them afterward. It wasps aid the court, not unreasonable for the jury to infer that Dr. Fuller knew about Robinson’s testimony.

The court noted rightly that it relied on Robinson’s testimony that Dr. Fuller started avoiding him after the interview with the EEOC. But, his testimony that he believed she was aware of his interview solely because of that change toward him was speculation. That is, his observation of her behavior was admissible. But, his conclusions about that behavior was not admissible.

The parties disputed whether the attorney’s knowledge should be imputed to the school. The court would not go there. But, it did note  in a footnote that there was sufficient evidence to infer knowledge on the art of Dr. Fuller from the school’s attorneys.

The court makes an important point that a change in attitude is relevant. But, for the plaintiff to infer the motive for that change is speculation on his part. When the jury makes the inference, that is traditional fact-finding. It is a shame this decision is not published, because that is an important point, rarely made. See the decision here.

I talked the other day about a recent book from the University of Chicago Press:  Rights on Trial: How Workplace Discrimination Perpetuates Inequality. See my poor post here. The authors went to federal records and interviewed individual plaintiffs to study how well discrimination lawsuits achieve the simple aim of rectifying discrimination in the workplace. The authors included Ellen Berrey, professor of sociology, Robert L. Nelson, research chair in the legal profession and professor of sociology, and Laura Beth Nielsen, professor of sociology. See my prior post here in which I discuss the success rates of plaintiffs in various types of discrimination lawsuit.

The authors also looked at the process of simply finding a lawyer. One in four discrimination claimants do not find a lawyer. Rights, at p. 109. They found that African-American plaintiffs suffer disproportionately when looking for lawyers. Finding a lawyer is important. Without a lawyer, the chances that a case will be dismissed is about 59%. With a lawyer throughout the process, the chances of dismissal are about 12%. Rights, at 112.

The authors note correctly that finding a lawyer who practices employment law is time consuming. Persons who have just lost their jobs are strapped for time as it is. Add to that the possibility that the terminated person has children, perhaps a spouse with a disability, and it becomes almost impossible to find the time necessary time to look for lawyers. Finding employment is paramount, after all.

Some plaintiffs reported they were asked to pay for a lawyer, one was quoted a fee of $500 and one a fee of $2700. Recognizing that the potential plaintiffs did not complete understand the lawyer selection process, the authors interviewed some 20 plaintiff lawyers, ranging from sole practitioners to large firms and pro bono lawyers. The lawyers estimated they accepted less than 10% of the cases that came to their doors. They all generally focused on how a case would “play” to a jury or judge. As I do, these lawyers looked for clients who seemed more serious about their allegations. Rights, at p. 122.

One long-time lawyer reported that he looked for clients who were not “accusatory” or “whiny” doing the first meeting. The importance of the first meeting looms large in the decision of most lawyers regarding whether to accept a case or not. All the lawyers preferred clients who seemed to be prepared for a lawsuit, with documents on hand. Rights, at p. 124. The lawyers generally operated on a contingency basis with some fee paid up front. Some relied on a payment plan from the client. One lawyer mentioned that there needed to be a certain amount of lost pay at stake before he would accept a case. He sought wage earners of at least $36,000 per year before he would consider such a case. Rights, at p. 126.

In the end, the authors found only some 10% of plaintiffs find lawyers. Criteria for a case being accepted included client’s truthfulness, demeanor, and work ethic. Also important was a complicated formula seeking significant amounts of lost pay at stake. Rights, at p. 128. All I can say is “yep.”