Clients and potential clients often ask me at some point what is the value of his/her case? What little they know of its value is colored by the ubiquitous Personal Injury lawyer ads. Or, sometimes, their knowledge is influenced by what some brother-in-law knows, or thinks he knows. So, some clients, a small percentage, expect wealth and riches.

Employment cases are not car wreck cases. The employment discrimination statutes provide for specific types of damages. Title VII and the Texas law equivalent, Texas Commission on Human Rights Act, provide for lost pay and benefits, compensatory damages, punitive damages and costs of prosecuting the lawsuit which includes attorney’s fees. There is nothing more. There is not, for example, such a thing as an award for the value of the home you lost or the divorce the job loss caused. Those sorts of losses do help show emotional suffering. But, no, there will be no dollar for dollar award regarding a lost home. I wish there were. The judge cannot award anything not allowed by statute.

Lost pay and benefits include more than may meet the eye. It includes lost pay of course. It includes all lost benefits. So, save that COBRA letter that records the dollar amount paid by the employer for your medical insurance. You need a record of what the employer paid for your insurance, not for what you paid.

Lost benefits include retirement benefits. Terminations involve different calculations than failure to promote. Lost promotions or raises can affect how much a 401K would grow. Some workers can “guesstimate” how much their retirement would have grown if they had received a particular step increase. If the client cannot make an estimate, then an economist may be necessary.

Lost bonuses count. Of course, the employer will claim bonuses are never guaranteed. They may even point to policies which provide bonuses are never certain and depend on financial success each fiscal year. But, if the actual practice suggests that bonuses are likely and that failure to pay a bonus may have been motivated by discriminatory animus, then there will be a fact issue regarding bonuses. If there is a factual issue, then the issue should be be decided by a judge or jury.

Arriving at an amount for compensatory damages is complicated. Compensatory damages describes damages intended to compensate a person for emotional suffering. There is no simple way to measure emotional suffering. The actual amount to be awarded is up to a jury. Most juries do not award anything for emotional suffering.

Punitive damages are even more rare than emotional suffering type damages.

Of course, all these amounts are subject to caps. Title VII and the the TCHR Act are capped at various levels based on number of employees. The highest cap is $300,000. So, even the largest employer in the country will never see a larger award than $300,000 in compensatory damages.

Once in a blue moon, we might see a jury award a million dollars for compensatory damages. But, that amount will be reduced by a judge to the appropriate cap level.

But, no matter how small, surely it is better that an errant employer pay something for violating the law and causing so much harm.

Plaintiffs in employment cases often contend they are paid less than other, similarly situated co-workers. The Defendant then argues no, the plaintiff does not truly know that. Many times, the court will side with the employer and find that the employee is relying on speculation when s/he claims to “know.” Since, many plaintiffs are relying on hearsay when they make that sort of a claim. They often rely on water cooler talk.

In Sims v. Wells Fargo Bank, N.A., No. H-16-3212, 2018 U.S. Distilled. LEXIS 19896 (S.D. Tex. 2018), the court sided with the employee. Rochelle Sims was an African-American branch manager. A male business banking specialist transferred into Ms. Sims’ branch. In reviewing his performance, the plaintiff realized the male subordinate was paid more than she was. She did some research and saw that other male, non-African-American  branch managers were paid more than she was.

Ms. Sims spoke with HR and her supervisor about the pay gap. Her supervisor told her she should step down from the manager position. If not, Wells Fargo would “eat her lunch.” The plaintiff did that and transferred to a different branch. Soon, the male business banking specialist who had come into her old branch was promoted to branch manager. Ms. Sims filed a complaint with he EEOC and filed suit. The employer moved for summary judgment. Wells Fargo argued that Ms. Sim’s claim that she had been paid less than male, non-African-American branch managers had been based on speculation.

The court, however, noted that the employer relied on a conclusory assertion in claiming Sims was not paid more than her counter-parts. The bank offered no evidence, said the court. It relied on inadmissible hearsay to claim her pay was comparable to her male counter-parts. So, it denied summary judgment on the plaintiff’s claim regarding a pay gap. See the decision here.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex, color, religion, race, and national (ethnic) origin. Other statutes prohibit discrimination based on age and disability. But, the statute does not apply to all businesses. An employer must have 15 or more employees for Title VII to apply. For the Age Discrimination in Employment Act to apply, an employer must have 20 or more employees.  That means thousands of small employers are not covered by Title VII or the other discrimination statutes.

The intent behind this number of employees was to not burden smaller employers, the “mom and pop” shops. Small businesses employ a huge percentage of workers. It was felt at the time that new rules and statutes was more than the small businesses could handle. We might not feel that way, today. And, certainly, for those folks working for smaller employers who may be fired due to race, age, etc., this is not a good thing. A young man came to see me, once. He had a steady girlfriend, someone he cared about very much. But, his older female boss and sole proprietor kept “making moves” on him. She just would not stop. He was very upset. He loved his work. But, this steady pressure to cooperate was taking a toll. I had to break the bad news to him. Even with part-time employees, his employer was way short of 15 employees.

He left my office knowing he would have to quit or risk losing his job. He was not ready to give up his girl friend. And, his girlfriend was not happy with him for staying there as long as he had. We often assume today that we are entitled to a discrimination-free work place. But, that is not always true.

For those of us who deal with the Equal Employment Opportunity Commission regularly, that can be a lesson in futility. Like too many agencies, they are assigned too many cases and are expected to do too much with too little. So, it is not surprising that the EEOC folks do make their share of errors. But, the thing is their errors may deprive some hard-working victim of discrimination his or her day in court.

In Alvarado v. Mine Service, Ltd., No. 14-50668 (5th Cir. 7/30/2015), that victim of discrimination came very close to losing his day in court because the EEOC made a mistake. The EEOC let Mr. Alvarado’s complaint sit around for two years before his lawyer noticed and asked for the right-to-sue letter. The EEOC issued a letter dated June 14, 2013 allowing Mr. Alvarado to file suit. Mr. Alvarado had complained about a noose that was left on the foreman’s desk. The worker asked about the noose, and set up meetings for his Hispanic fellow workers to discuss issues with the supervisor. Mr. Alvarado was later fired for “stirring up” racial problems. Mr. Alvarado’s complaint was based on race. Yet, the June 14 notice from the EEOC referred to an age discrimination claim. The plaintiff’s claim was based on Title VII. Yet, the EEOC checked the block for ADEA.

And, even though it had a space for an EEOC official to sign it, the space was blank. It was not signed by the EEOC. And, the notice said the charge had been on file for less than 180 days, even though it actually had been on file for two years.

The plaintiff’s lawyer called the EEOC. The EEOC said they would send a new corrected notice of right-to-sue. They sent a second correct notice on July 8. The plaintiff then filed suit within 90 days of the second letter, not the first notice. Mine Service moved to dismiss saying the proper deadline started June 14 with the first letter, not the second letter. The district court agreed, finding the first letter conveyed all the necessary information, so that is when the 90 day deadline started. The lower court made an oblique reference to tolling, saying the EEOC did not mis-lead the plaintiff because the first letter was valid.

But, the court of appeals disagreed. It did find equitable tolling. The lower court had rejected the office administrator’s testimony as hearsay. She testified that the EEOC told her the first letter was incorrect. The Fifth Circuit said no, that was not offered to prove the matter asserted. It was not offered to show the letter was incorrect. It was actually offered to show the law office relied on what they were told by the EEOC. That reliance constitutes a “hornbook” law exception to the hearsay rule. Alvarado, at 7 (slip opinion). Too, noted the court, the July 8 letter said the plaintiff could file suit within 90 days of this letter.

So, now with the evidence regarding what they were told by the EEOC, the case falls within the line of cases which hold equitable tolling will extend a deadline. And, noted the court, extending the deadline 20 days will not cause any prejudice to the employer. And, this was not a case in which the lawyer was slow to act. The law firm was generally quick to react to the EEOC errors, seeking clarification and at one point, contacting the agency again when the EEOC was slow to send the second letter.

The EEOC makes plenty of clerical errors every year. They process thousands and thousands of claims every year. The courts should not allow a person’s claim to be subverted by clerical errors, especially when that claimant has been as diligent as this plaintiff was. It is refreshing to see a higher court bring some degree of common sense to the discussion.

 

 

 

 

The Supreme Court must take some delight in reversing the Fifth Circuit. In a recent decision, the U.S. Supreme Court has once again reversed the Fifth Circuit. In Johnson v. City of Shelby, No. 13-1318 (5th Cir. 11/10/2014), the Supreme Court found that the Fifth Circuit applied the recent decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), too rigorously. In Johnson, the Fifth Circuit had dismissed a civil rights claim for failure to plead the claim with adequate particularity. The Supreme Court found that the pleading was adequate regarding its legal theories of recovery. The Fifth Circuit, said the Supreme Court, had applied standards that were intended for factual pleadings to the legal statement of the cause of action.

Having informed the city of its factual basis, the plaintiff need do nothing more than “stave off threshold dismissal for want of adequate statement of their claim,” said the higher court. See the Supreme Court opinion here. See the pleading at issue here. Note that the Complaint does not even cite a particular statute regarding the theory of recovery. The Complaint refers to Title VII as basis for jurisdiction. But, the right of action could just as well include 42 U.S.C. §1983 or Title VII itself. Both statutes provide for protection from employment discrimination. The Complaint does discuss denial of procedural due process, suggesting the basis is intended to be §1983.

The higher court does explain that the federal rules do not countenance dismissal for imperfectly pleaded legal theories of the claim. The Supreme Court suggests the Fifth Circuit panel was “confused” by the Complaint. That is judge-speak for the Fifth Circuit panel mis-understood the Complaint. And, later in the brief opinion, the Supreme Court indicates the Fifth Circuit panel was too “punctilious” in dismissing this claim and should have allowed the plaintiff to amend his pleading. See Fifth Circuit opinion here.

The Supremes reached this result in a 9-0 per curium decision, indicating the Fifth Circuit’s opinion had little basis. It is strange that the appellate court did not allow amendment of the Complaint. The lower court granted summary judgment, apparently finding the claim should have been prosecuted under §1983. Instead, the plaintiffs had pressed their claim as a direct violation of the Fourteenth Amendment. After losing the summary judgment motion, the plaintiffs asked to amend their complaint to specifically plead §1983. In short, the plaintiff asked for a re-start. The district court said no. The Fifth Circuit agreed.

And, among the warnings that citing §1983 is not a mere formality, justice was lost. The courts essentially allowed the two individual plaintiffs to suffer because their lawyer overlooked a formalistic requirement.

 

 

 

The Fifth Circuit previously overturned summary judgment in Johnson v. Maestri-Murrell Property Management, LLC, (5th Cir. 2012). I wrote about that decision here.  The remarkable thing about that summary judgment was the lower court ignored direct evidence of discrimination. The district court’s decision seemed to be result-oriented. See the Fifth Circuit decision here

The Fifth Circuit remanded the case back to the district court in upstate Louisiana. Well, remarkably, that same Louisiana U.S. district court granted summary judgment, again. See the second Fifth Circuit decision overturning summary judgment here. In the second appeal in Johnson v. Maestri-Murrell Property Management, LLC, the Fifth Circuit faulted the lower court for not following its remand order. That is judge-speak for the district court judge messed up big time. 

One error cited by the appellate court was the lower court again did not acknowledge the direct evidence of discrimination. Direct evidence is that evidence which shows discriminatory bias without need of any inference. When management said they would not hire a black manager, that is direct evidence of discrimination. It is one thing for a district court to reach that result. It is entirely different when a lower court disregards the appellate court’s finding that the evidence was direct. That omission by the lower court suggests the lower court is following some agenda other than routine respect of precedent. 

Like the plaintiff in Johnson, I have to question the impartiality of the district judge in this matter. He seems to have pre-determined views of the merits of Ms. Johnson’s lawsuit. I find it unfortunate that this Fifth Circuit decision will not be published. 

Last August, Gov. Rick Perry vetoed a statute that would have amended the state version of Title VII the way Congress amended Title VII to allow women to sue for discrimination in their pay. See my posts here. The state version of Title VII is known as the Texas Commission on Human Rights Act.  This is the state statute that prohibits discrimination based on gender. 

There is no good reason not to amend the TCHRA as Title VII was amended. Since its inception, the TCHRA has always tracked the wording of Title VII. State case law has long been based on federal case law regarding Title VII. We learned later that Gov. Perry was influenced by lobbyists when he vetoed the proposed statute.  

Now, the San Antonio Express News has referred to a lawsuit where such an amendment would have made a difference.  In a lawsuit by a professor against Prairie View A&M, the plaintiff sued on the basis of discrimination in her pay. She claimed she was paid less than male co-workers performing the same work. Her lawsuit, however, was based on the TCHRA. The Texas Supreme Court ruled against the professor. The decision by the Texas Supreme Court specifically said the court cannot legislate changes in the TCHRA.  If the state legislature wanted to amend the TCHRA, it should do so via the legislative branch, not the judicial branch. See San Antonio Express News report

Yes, indeed.  That is what the backers of the bill said when Gov. Perry vetoed their bill with no warning. 

The law must reflect the everyday reality of all Americans.  If the law is not grounded in reality, it is no longer "the law."  It becomes something oppressive.  Judge Tate, a long-time judge on the Fifth Circuit, used to say that an appellate decision should make sense to a barber in Ville Platte, Louisiana.  He meant that any decision should be "explainable" to an average person.  The recent decision in EEOC v. Boh Brothers Construction Co., L.L.C., No. 11-30770 (5th Cir. 9/27/13), reflects the reality I understand.  But, I am struck by the two dissents.  The decision is en banc, meaning the entire court heard the case.  The en banc decision overturns the previous decision by a smaller panel of judges.  

In EEOC v. Boh Brothers, the EEOC represented Kerry Woods, an iron worker in New Orleans.  His supervisor, Chuck Wolfe, harassed Mr. Woods because, in Mr. Wolfe’s view, Mr. Woods was not masculine enough.  The EEOC accused the employer of creating a hostile work environment.  The jury found in favor of the plaintiff and awarded compensatory and punitive damages.  Mr. Wolfe supervised a crew of five.  He was vulgar and ribbed his men constantly.  Within a year, Mr. Woods became the supervisor’s primary target.  Mr. Wolfe referred to Woods as "pu–y," "princess," "fa-ot," to or three times a day.  About two or three times a week, when Mr. Woods would bend down to pick something up, supervisor Wolfe would approach him from behind and simulate anal sex.  Mr. Woods felt embarrassed and humiliated.  The supervisor would urinate during work and wave to Woods and smile while doing so.  

According to Mr. Wolfe, some of the teasing started when Mr. Woods said he brought wet wipes with him for lunch.  According to the supervisor, the co-workers teased him about that.  Mr. Wolfe said if you bring that to work, then you should not tell anyone.  He said it was feminine to use wet ones. 

The iron worker complained to the foreman who did nothing.  Within a few months, Mr. Woods asked to see a co-workers’ time sheets.  Mr. Wolfe said that was a terminable offense.  He said Mr. Woods did not fit in.  He was "different."  The supervisor said he was "done with" Mr. Woods.  The iron worker was then transferred.  Mr. Woods then complained to the general superintendent.  The superintendent investigated, found the supervisor’s conduct to be unprofessional, but did not rise to the level of sex harassment.  

A few months later, Boh Brothers laid off Mr. Woods.  He filed a complaint with the EEOC alleging sex harassment.  The jury found in his favor.  The employer appealed.  The first panel overturned the jury verdict, saying there was insufficient evidence to support the jury result.  

The plaintiff then appealed to the en banc court, which upheld the jury verdict.  The majority found that there was sufficient evidence to show that the supervisor harassed Mr. Woods because of his sex, because he was not "manly" enough.  The supervisor, said the majority,  was engaging in sex stereotyping.  Supervisor Wolfe specifically said he targeted Mr. Woods’ masculinity.  The majority opinion noted it had to draw all inferences in favor of the plaintiff.  The majority noted that the seminal decision regarding same sex harassment, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), states that the courts cannot impose a "code of civility" on the workplace.  The court must also display some sensitivity to the social context of the alleged harassment.  But, as the majority noted, this analysis is necessarily fact specific.  Social context is a jury issue, not a judge issue.  

There are three dissents to this decision, but two which cause me some concern.  Two dissents reflect a lack of respect for the role of the jury.  And, in my opinion, these two dissents seek to impose on the jury a wrong-headed view of the all-male workplace.  

In Judge Jones’ dissent, she acknowledges the supervisor’s vulgar and crude remarks.  She claims there is no "hard" proof that the supervisor’s conduct was motivated by gender.  Okay, but the jury was persuaded there was just such evidence.  Judge Jones is drawing no inference in favor of the jury verdict.  In the judge’s view, the majority decision imposes a "speech code" on the public.  In her view, these epithets were not related to sex.  The judge persists in according no deference to the jury’s view that the speech did indeed concern sex.  The judge adds that "everyone" knows what sex stereotyping is.  Opinion, at 48.  She argues that in Mr. Woods’ workplace, crude sexual epithets are very common.  Again, the judge is substituting her opinion for that of the jury.  In our legal system, the jury has the responsibility to find or recognize social norms.  In the civil legal system, used in such countries as France and most of Europe, a well-trained judge has the duty to recognize social norms.  But, in our legal system, inherited from England, that duty belongs to a jury of our peers.  

And, on a personal level, I find her contention to be simply wrong.  I served in the U.S. Army and Army Reserve for 28 years, most of that time in the Infantry.  The Infantry is definitely an all-male environment.  I also worked in several civilian all-male workplaces, from warehouses, to road crews to one month digging ditches for a sprinkler company.  "Crude sexual epithets" were not the norm, at all.  In fact, the sort of harassing exhibited by Chuck Wolfe would get him "run off" or fired from any construction crew I was a part of.  The judge is right that things are more crude on a work crew.  But, too much harassing causes tension.  Tension decreases efficiency.  Decreased efficiency on a work crew will not be tolerated.  Judge Jones displays a simplistic, paternalistic view of the all-male work environment.  Worse, she minimizes the evidence presented at trial.  

For one week, I once worked for Sears delivering major appliances.  My driver and my boss was one of those "crude" persons Judge Jones describes.  His name was Robert or Roberto.  It was hard to hear him in the loud truck.  The cab was not air conditioned, so the windows were always down.  Being the college kid I was, I would always respond with "pardon me" when the noise was too loud.  He loved that.  He would guffaw loudly and proclaim, "no pardon needed!"  I knew even then that, if I had made crude sexual epithets toward other workers, Robert would have "run" me off or had me  fired.  He just would not have tolerated unnecessary tension.  Tension decreases efficiency.  And, yes, even blue collar folks have some manners. 

Judge Smith’s dissent is similar.  He ascribes the majority’s opinion to the realm of "political correctness and social engineering."  Opinion, at 62.  Judge Smith remarkably cites evidence to contradict the jury’s finding.  Judge Smith states that according to certain NFL players, using wet ones is not feminine.  Judge Smith misses the point.  The point is not what is "truly" masculine, but what Chuck Wolfe believed was masculine.  His information is not pertinent.  This information was not part of the trial.  Judge Smith’s dissent strikes me as more political than legal.  The judge concludes that the "hypersensitivity" exhibited by the trial verdict will hasten "cultural decay" and undermines at-will employment.  Again, I do not understand how we get to "cultural decay" in a Title VII lawsuit.  This sounds more like a political argument than a legal one.  See opinion here

But, in the end, neither Judge Jones or Judge Smith can explain how a jury, with no apparent stake in the outcome of the trial, arrived at a completely different conclusions about all-male workplaces and blue collar manners. 

It was a busy day for the Supreme Court, yesterday.  The high court decided a second employment case regarding retaliation cases.   Congress amended Title VII in 1991 to add many new facets.  It also added that to show discrimination, a plaintiff needed to show that discrimination was a "motivating factor."  Did that change also apply to retaliation claims?  That question has been litigated ever since the amendments first went into effect.  In Univ. of Texas Southwestern Medical Center v. Nassar, No. 12-484 (6/24/13), the Supreme Court ruled in another 5-4 decision that the appropriate standard for Title VII retaliation claims is "but for" analysis.  That is, would the employer have taken the adverse employment action "but for" the retaliatory motive?  

"But for" is generally considered a more rigorous standard of proof.  But, really, this decision may make no difference to most claimants.  The difference between "but for" and "motivating factor" is hazy.  It is a subjective analysis and may make little difference to most juries.   See Supreme Court decision here.  See Scotus blog for an excellent discussion of the competing theories of proof. 

The Fifth Circuit has granted an en banc hearing request concerning a same sex discrimination case.  In the lower court, a jury found in favor of the employee regarding a same sex discrimination case.  On appeal, the Fifth Circuit vacated the jury result and found in favor of the employer.  Now, on additional appeal, the entire panel of the Fifth Circuit will consider the case.  

En banc hearings are rare.  In a normal appeal to the Fifth Circuit, a three judge panel hears the case.  three judges out of the some 15 total judges on the Fifth Circuit.  in an en banc hearing, all of the some 15 judges will now hear the appeal.  That does not mean the initial decision of the Fifth Circuit will be reversed.  But, that could happen.  

Same sex discrimination cases are rare.  There is no statute like Title VII that expressly protects gay persons from discrimination.  See the decision here