Favorite quotes about the law, part 1

Maybe it’s the frus­trated nov­el­ist in me, but I’ve been think­ing about lit­er­a­ture and law.

This arti­cle is the start of a series where, once in a while and for no par­tic­u­lar rea­son, I will focus on thought pro­vok­ing and even pro­found state­ments (by oth­ers) about the law. Some­times the quo­ta­tions will be from lit­er­a­ture, and some­times they will be from legal writ­ings, philo­soph­i­cal works, and from darn near any­thing else that makes us think about the nature of law and its rela­tion­ship to society.

So let’s begin …

Grant Gilmore had one of the great legal minds of the twen­ti­eth cen­tury, taught law at Yale, and drafted arti­cle 9 of the Uni­form Com­mer­cial Code. Espe­cially the lat­ter would not seem to sug­gest that he was a great writer, but Grant Gilmore was an extra­or­di­nar­ily elo­quent guy. So here is the clos­ing pas­sage (page 111) of his book, The Ages of Amer­i­can Law (Yale 1977), and this is absolutely my favorite state­ment about law:

The bet­ter the soci­ety, the less law there will be. In Heaven there will be no law, and the lion will lie down with the lamb. The val­ues of an unjust soci­ety will reflect them­selves in an unjust law. The worse the soci­ety, the more law there will be. In Hell there will be noth­ing but law, and due process will be metic­u­lously observed.

The bet­ter we are, the less law we need. In a per­fect world, there will be no law. Grant Gilmore prob­a­bly was think­ing about James Madi­son’s famous state­ment in num­ber 51 of The Fed­er­al­ist Papers:

But what is gov­ern­ment itself, but the great­est of all reflec­tions on human nature? If men were angels, no gov­ern­ment would be nec­es­sary. If angels were to gov­ern men, nei­ther exter­nal nor inter­nal con­trols on gov­ern­ment would be nec­es­sary. In fram­ing a gov­ern­ment which is to be admin­is­tered by men over men, the great dif­fi­culty lies in this: you must first enable the gov­ern­ment to con­trol the gov­erned; and in the next place oblige it to con­trol itself. A depen­dence on the peo­ple is, no doubt, the pri­mary con­trol on the gov­ern­ment; but expe­ri­ence has taught mankind the neces­sity of aux­il­iary precautions.

If we were all angels, no law and no gov­ern­ment would be necessary.

I under­stand that both of these flights of elo­quence from Gilmore and Madi­son are exag­ger­a­tions. We can all envi­sion rea­sons why law and gov­ern­ment would be nec­es­sary even in the best of soci­eties. But their points still ring true. Law and gov­ern­ment both exist in large part because of the imper­fec­tions in all of us. Indeed, con­sti­tu­tion­al­ism is a reflec­tion of the fact that our founders rec­og­nized the imper­fec­tions in mankind. Our founders wanted to empower the peo­ple to avoid tyranny, but they also dis­trusted the peo­ple and the power that would accu­mu­late in even a demo­c­ra­tic government.Read John Hart Ely’s Democ­racy and Dis­trust on the founders’ use of the con­sti­tu­tion to restrain the abuses of the pow­er­ful. Our founders both aspired to democ­racy and dis­trusted democracy.

Posted in Democracy, Literature | 1 Comment

We’ve moved!! (but only our URL)

We’ve moved!! Kinda. Okay, it’s not a real move of any­thing phys­i­cal. Our law firm, includ­ing the tables chairs, files, and what­ever else, are all still in exactly the same place. It’s only a move to a new URL for my blog, a move some­where in cyberspace.

But the “move” gives me cheap excuse to use one of the sil­lier pic­tures I’ve ever seen (on the right). If only real (phys­i­cal) moves were as easy as in this picture.

Any­way, I have moved my blog to its own URL, and here it is

Please update any links to this new URL. If you go to the old blog address (www.capuderfantasia.com/blog), you will get a notice that the blog has moved to its new address. This move to a new domain name devoted specif­i­cally to my blog should help with search engine opti­miza­tion and other tech­ni­cal things.

I’ve also made some cos­metic changes to the blog, and I’ll con­tinue to try to spruce it up so it looks good and makes it easy to find the stuff you’re look­ing for.

If you have any com­ments on the blog, or any sug­ges­tions, feel free to post com­ments on the bot­tom of the posts, or call or email me.

Posted in Blog technical stuff, Drew Capuder | Leave a comment

Fifth Circuit applies hostile work environment to age claims

Courts have some­times ques­tioned whether hos­tile work envi­ron­ment claims apply to all “fla­vors” of dis­crim­i­na­tion. Hos­tile work envi­ron­ment claims most fre­quently arise in claims of sex dis­crim­i­na­tion  and race dis­crim­i­na­tion claims under Title VII of the Civil Rights Act of 1964, but age dis­crim­i­na­tion claims under fed­eral law arise under a dif­fer­ent statute, the Age Dis­crim­i­na­tion in Employ­ment Act of 1967.

The Fifth Cir­cuit directly held recently that hos­tile work envi­ron­ment claims are encom­passed by age dis­crim­i­na­tion claims under the ADEA in Dediol v. Best Chevro­let, Inc., — F.3d — (5th Cir. Sep­tem­ber 12, 2011).

Age-Based Harass­ment

Milan Dediol was a 65 year old car sales­man for Best Chevro­let. Dediol even­tu­ally quit (claim­ing con­struc­tive dis­charge) because of a series of age-biased insults and phys­i­cal threats.  Dediol claimed the fol­low­ing remarks were made by his boss, Don­ald Clay, the used car sales manager:

  • Dediol requested per­mis­sion to take off from work for the next morning—July 4, 2007—to vol­un­teer at a church event. Dediol received per­mis­sion from Clay’s assis­tant man­ager, Tommy Melady (“Melady”), but Clay over­ruled Melady in deroga­tory terms. Dediol alleges that Clay told him, “You old mother******, you are not going over there tomor­row” and “if you go over there, [I’ll] fire your f*****g ass.”
  • After his request to take off from work for the morn­ing of July 4th, Clay never again referred to him by his given name, instead call­ing him names like “old mother******,” “old man,” and “pops.” Clay would employ these terms for Dediol up to a half-dozen times a day from on or around July 3, 2007, until the end of his employ­ment. Dediol also claims that “[Clay] stole a cou­ple of deals from me[,]” and directed them towards younger salespersons.
  • Clay denied Dediol’s request for a trans­fer to sell new cars and stated, “Get your old f*****g ass over here. You are not going to work with new cars.” On many occa­sions, there were inci­dents of phys­i­cal intim­i­da­tion and/or vio­lence between Clay and Dediol. Accord­ing to Dediol, Clay would threaten him in a vari­ety of ways, includ­ing threats that Clay was going to “kick [Dediol’s] ass.” On one occa­sion, Clay took off his shirt, and stated to Dediol, “You don’t know who you are talk­ing to. See these scars. I was shot and was in jail.”
  • Ten­sions esca­lated and reached a cli­max at an office meet­ing on August 29, 2007. Dur­ing an increas­ingly volatile exchange, Clay pro­claimed, “I am going to beat the ‘F’ out of you,” and “charged” toward Dediol in the pres­ence of nine to ten employees.

Dediol even­tu­ally quit, claim­ing he was forced to quit by the dis­crim­i­na­tory and threat­en­ing remarks. After Dediol filed suit, the trial judge granted Best Chevrolet’s motion for sum­mary judg­ment, dis­miss­ing the case. Dediol appealed and the Fifth Cir­cuit reversed, con­clud­ing that hos­tile work envi­ron­ment claims are avail­able under the ADEA, and that Dediol pre­sented suf­fi­cient evi­dence to pro­ceed to trial.

Con­tinue read­ing

Posted in Age Discrimination, Constructive discharge, Hostile work environment, Result for Employee, Title VII of the Civil Rights Act of 1964 | Leave a comment

9–11 remembered

9-11 memorialEter­nal rest grant them, O Lord; and let per­pet­ual light shine upon them.” Lux Aeterna

Posted in Uncategorized | Leave a comment

US Supreme Court Rules for Employee on “Cat’s Paw” Theory

US Supreme Court BuildingThe United States Supreme Court recently unan­i­mously issued a major vic­tory for employ­ees under “USERRA”, the Uni­formed Ser­vices Employ­ment and Reem­ploy­ment Rights Act of 1994, 38 U.S.C. § 4301 et seq., on the “cat’s paw” the­ory in employ­ment dis­crim­i­na­tion claims. The deci­sion was in Staub v. Proc­tor Hos­pi­tal, — U.S. — (March 1, 2011) (opin­ion at Google Scholar). Jus­tice Scalia wrote the opin­ion for the unan­i­mous court. Jus­tice Alito wrote an opin­ion con­cur­ring in the judg­ment, which Jus­tice Thomas joined. Jus­tice Kagan did not par­tic­i­pate in the decision.

What is the “Cat’s Paw” Scenario?

Drew's kitty-cat, HannaSo, what the heck is the “cat’s paw” the­ory? Does it explain why my cat, pic­tured at the left, is star­ing so intently at you?

First, to define “cat’s paw” in a non-legal con­text, the Webster’s Online dic­tio­nary defines a “cat’s paw” as: “A per­son used by another to gain an end.” The term arises out of a fable in which a a shrewd mon­key tricks a cat into pulling roast­ing chest­nuts out of a fire—the cat gets its paw burned, and the mon­key gets the chest­nuts and scam­pers away unhurt.

Con­tinue read­ing

Posted in Evidence issues, Medical Industry Litigation, Result for Employee, Title VII of the Civil Rights Act of 1964, US Supreme Court, USERRA | Tagged | Leave a comment

Legislative Update: Pending bill would expand sick leave rights for West Virginia employees

SickHouse Bill 2770, which was recently intro­duced into the West Vir­ginia House of Del­e­gates, would cre­ate the “Flex­i­ble Leave Act” to allow employ­ees to take already earned paid leave, and to use that leave for paid time off for an ill­ness of the employee or the employee’s “imme­di­ate fam­ily”. The bill does not give employ­ees any addi­tional paid leave—it only allows them to take their paid leave that they have already earned under their employ­ers’ poli­cies, and allows the flex­i­bil­ity (hence the name, “Flex­i­ble Leave Act”) to take leave that may have been intended for another pur­pose, such as earned vaca­tion time, and apply it for the dif­fer­ent pur­pose of their own or an imme­di­ate fam­ily member’s illness.

On Jan­u­ary 24, 2011, Del­e­gates Caputo, Fra­gale, Hat­field, Mar­tin, and Moye intro­duced House Bill 2770, which is being referred to the Com­mit­tee on Energy, Indus­try and Labor, Eco­nomic Devel­op­ment and Small Busi­ness then Finance. You can keep track of the progress of the bill by going to the Bill Sta­tus page and enter­ing 2770 in the “Enter Bill Num­ber” field. For infor­ma­tion on the bill’s spon­sors, or on any other mem­bers of the Sen­ate, you can go to the House Mem­bers page and pick the mem­ber from a drop-down list. For those of you who are inter­ested in find­ing out more about the leg­isla­tive process, the Leg­is­la­ture has a “How a Bill Becomes Law” page.  The Leg­is­la­ture also has a very nice photo gallery of the Capi­tol Build­ing.

Con­tinue read­ing

Posted in Family and Medical Leave Act (FMLA), Labor Unions, Pending legislation, WV Legislation | Leave a comment

Legislative Update: West Virginia legislature may give employers more time to cut final paycheck

MoneyPend­ing West Vir­ginia leg­is­la­tion would, if passed, extend the time employ­ers have to issue a ter­mi­nated employee’s final pay­check, from the cur­rent 72 hours after dis­charge to the next reg­u­lar pay day.

On Jan­u­ary 28, 2011, Sen­a­tors Palumbo and Klempa intro­duced Sen­ate Bill 339, which is being referred to the Labor and Finance Com­mit­tees. You can keep track of the progress of the bill by going to the Bill Sta­tus page and enter­ing 339 in the “Enter Bill Num­ber” field. For infor­ma­tion on the bill’s spon­sors, or on any other mem­bers of the Sen­ate, you can go to the Sen­ate Mem­bers page and pick the mem­ber from a drop-down list.

Sen­ate Bill 339 would amend the WV Wage Pay­ment and Col­lec­tion Act, which deals in part with the oblig­a­tion of an employer to issue a final pay­check to an employee within a cer­tain period of time.  The Wage Pay­ment and Col­lec­tion Act cur­rently sets two dif­fer­ent dead­lines, depend­ing on whether the employee resigned or was dis­charged.

  • Sec­tion 21–5-4(b): If an employee is dis­charged, the employer must pay the employee all earned wages within 72 hours after the discharge.
  • Sec­tion 21–5-4©: if the employee resigns, the employer must pat the employee all earned wages by the next reg­u­lar pay­day, either through “reg­u­lar chan­nels” or, if the employee requests, by mail. There is this addi­tional vari­a­tion where the employee resigns: if the employee pro­vides “at least one pay period’s notice of inten­tion to quit”, then the employer must pay the employee all earned wages “at the time of quit­ting” (which is the final day worked after giv­ing notice).

Con­tinue read­ing

Posted in Liquidated damages, Pending legislation, WV Legislation, WV Wage Payment and Collection Act | Leave a comment

Legislative Update: Insurance industry seeks amendment to West Virginia Human Rights Act

Insur­ance com­pa­nies have been urg­ing the West Vir­ginia Leg­is­la­ture to pass leg­is­la­tion to over­turn the West Vir­ginia Supreme Court’s deci­sion in Michael v. Appalachian Heat­ing, LLC, 701 S.E.2d 116 (June 11, 2010). In Michael, the West Vir­ginia Supreme Court held that the West Vir­ginia Human Rights Act pro­hib­ited dis­crim­i­na­tion by an insur­ance com­pany in set­tling claims cov­ered by an insur­ance policy.

The Michael Decision

Gen­er­ally, the Human Rights Act pro­hibits dis­crim­i­na­tion (1) in the work­place, (2) in places of pub­lic accom­mo­da­tion (like hotels, shop­ping cen­ters), and (3) in con­nec­tion with trans­ac­tions involv­ing hous­ing and real estate (like rent­ing apart­ments and buy­ing houses).

But at issue in Michael was sec­tion 5–11-9(7) of the Human Rights Act, which was not lim­ited to those three cat­e­gories of activ­ity. Here is the rel­e­vant lan­guage in sec­tion 5–11-9(7)(A);

It shall be an unlaw­ful dis­crim­i­na­tory prac­tice [based on race, reli­gion, color, national ori­gin, ances­try, sex, age, and disability] …

(7) For any per­son, employer, employ­ment agency, labor orga­ni­za­tion, owner, real estate bro­ker, real estate sales­man or finan­cial insti­tu­tion to:

(A) Engage in [1] any form of threats or reprisal, or to [2] engage in, or hire, or con­spire with oth­ers to com­mit acts or activ­i­ties of any nature, the pur­pose of which is to harass, degrade, embar­rass or cause phys­i­cal harm or eco­nomic loss or [3] to aid, abet, incite, com­pel or coerce any per­son to engage in any of the unlaw­ful dis­crim­i­na­tory prac­tices defined in this section .…

In sub­part (7)(A) above I have brack­eted the three spe­cific causes of action (legal the­o­ries) which the Supreme Court said are dis­cernible in sub­part (7)(A). I have also bolded the sec­ond cause of action, which was the key cause of action at issue in the Michael case.

Con­tinue read­ing

Posted in Pending legislation, Race discrimination, Retaliation claims, WV Human Rights Act, WV Legislation | 2 Comments

Cleveland jury awards $900,000 against hospital in age discrimination case

Ellen Simon, an attor­ney in Cleve­land who authors the excel­lent blog, Ellen Simon’s Employee Rights Post, recently tried an age dis­crim­i­na­tion claim for plain­tiff Glo­ria Parks (a phle­botomist) against Cleveland’s Uni­ver­sity Hos­pi­tals Case Med­ical Cen­ter.

Ms. Parks had worked for the hos­pi­tal for 30 years when she was fired over a med­ical mis­take involv­ing her­self and another much younger employee. The hos­pi­tal fired Ms. Parks, but not the much younger employee.

The jury returned a ver­dict in favor of the plain­tiff (Ms. Parks) for $450,000 for her eco­nomic loss and $450,000 for “other com­pen­satory dam­ages”, accord­ing to Ms. Simon’s blog arti­cle. Based on the lim­ited infor­ma­tion I have so far, it looks like the “other com­pen­satory dam­ages” was an award for emo­tional dis­tress, The jury did not award puni­tive dam­ages.

So the ver­dict totals $900,000, and Ms. Simon will file a request for attor­neys’ fees’ fees and expenses. While it is not clear from the arti­cle so far, I sus­pect the case was asserted for age dis­crim­i­na­tion under Ohio’s Fair Employ­ment Prac­tices Act (and not the fed­eral ADEA).

Con­tinue read­ing

Posted in Age Discrimination, Back and Front Pay Issues, Emotional Distress Damages, Evidence issues, Liquidated damages, Medical Industry Litigation, Result for Employee | Leave a comment

Back from the USSR: FMLA Retaliation, 4th Circuit Decision in Dotson v Pfizer

Retal­i­a­tion law is one of the most devel­op­ing (and dan­ger­ous) areas of employ­ment law. I recently spoke at the West Vir­ginia Employ­ment Lawyers Association’s annual con­fer­ence on retal­i­a­tion law, and I wanted to go back and dis­cuss an impor­tant Fourth Cir­cuit deci­sion on the Fam­ily and Med­ical Leave Act of 1993, 29 U.S.C. § 2601 et seq.

Dot­son v. Pfizer: Adop­tion and the FMLA

The deci­sion is Dot­son v. Pfizer Inc., 558 F.3d 284 (2009), and involved alle­ga­tions of retal­i­a­tion stem­ming from leave taken for an inter­na­tional adop­tion from Russia.

The jury awarded $1,876 in dam­ages on the FMLA inter­fer­ence claim and $331,429.25 on FMLA retal­i­a­tion claim. The judge then awarded $333,305.25 in statu­tory liq­ui­dated dam­ages, $375,000 in attor­neys’ fees, and $14,264.88 in court costs. Both sides appealed. The Fourth Cir­cuit rejected all aspects of the employer’s appeal, but found the trial court made a mis­take in refus­ing to award the plain­tiff pre-judgment interest.

Employ­ees Don’t Have to Expressly Invoke the FMLA on Leave Requests

Part of the sig­nif­i­cance of the Dot­son case is that the Fourth Cir­cuit held that the employee, to invoke rights under the FMLA, need only tell the employer of the need for leave that is cov­ered by the FMLA –the employee need not expressly invoke the FMLA as the basis or jus­ti­fi­ca­tion for the leave. The employer then has the duty to exam­ine the sit­u­a­tion and deter­mine whether the requested leave impli­cates the employee’s FMLA rights. Here is an illus­tra­tion of the 2 dif­fer­ent pos­si­ble require­ments that were in issue in Dot­son:

  • Employee’s posi­tion on notice: Employee says: “Boss, I need some time off for the inter­na­tional adop­tion my wife and I are involved in. We have a meet­ing with the adop­tion agency tomor­row after­noon, and I’d like to take the after­noon off.” This is the only notice that the employee con­tended was nec­es­sary in order to invoke FMLA rights, and the Fourth Cir­cuit agreed, based on a review of the case law and the applic­a­ble reg­u­la­tions. After the employee makes this request, the ball is in the employer’s court to fig­ure out whether the leave is cov­ered by the FMLA.
  • Employer’s posi­tion on notice: Employee says: “Boss, I am request­ing FMLA leave. I need some time off for the inter­na­tional adop­tion my wife and I are involved in. We have a meet­ing with the adop­tion agency tomor­row after­noon, and I’d like use my FMLA leave to take the after­noon off.” This is the notice the employer con­tended was nec­es­sary. The employer con­tended that, at least in the set­ting of adop­tion leave, the employee must specif­i­cally tell the employer that the employee wants to take FMLA leave. The Fourth Cir­cuit rejected this argu­ment, and rejected the need for the employee to specif­i­cally invoke the FMLA.

Part of the fur­ther sig­nif­i­cance of Dot­son is that the prin­ci­ples of notice dis­cussed above apply to a retal­i­a­tion claim under the FMLA. Dot­son asked for and was given leave for his adop­tion, and he got fired shortly after return­ing to the United State from Rus­sia on his adop­tion. He filed suit and won on the con­tention that Pfizer fired him in retal­i­a­tion for him tak­ing FMLA leave. Pfizer con­tended: “hey, we can’t be liable for FMLA retal­i­a­tion, because he never told us he was tak­ing FMLA leave–he only said he wanted time off for the adop­tion.” The logic of that argu­ment is, “we can’t be liable for retal­i­a­tion where he didn’t specif­i­cally invoke the FMLA right”. The trial court and the Fourth Cir­cuit both dis­agreed with the employer, and held that a retal­i­a­tion claim may be viable even where the employee only said he wanted time off for the adoption–without specif­i­cally invok­ing the FMLA.

Lessons from Dot­son v. Pfizer

So the request from the employee for cov­ered time off (such as for an adop­tion), with­out expressly invok­ing the FMLA, raises two issues for employers:

  • The employer must assess the request for time off and deter­mine whether it invokes the rights under the FMLA.
  • The employer must be aware of the fact that, once it deter­mines that the request for time off is cov­ered by the FMLA, any adverse action taken against the employee could give rise to a retal­i­a­tion claim, even where the employee never men­tioned the FMLA in con­nec­tion with request­ing the time off.
Posted in Family and Medical Leave Act (FMLA), Fourth Circuit, Interest, Liquidated damages, Result for Employee | Leave a comment