Monthly Archives: July 2010

Age Discrimination, Back and Front Pay Issues, Emotional Distress Damages, Jury verdicts, Punitive damages, Result for Employee, WV Human Rights Act

Charleston, WV Jury Awards $1.7m in Age Discrimination Case, 10–1‑09

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On Octo­ber 1, 2009, a jury in Charleston, Kanawha Coun­ty, West Vir­ginia returned a ver­dict in an age dis­crim­i­na­tion case, award­ing James Nagy a total of $1,750,450.

The Lawsuit

James Nagy filed suit in Charleston in March 2008 against West Vir­ginia Amer­i­can Water Com­pa­ny, alleg­ing that he was fired in March 2007 because of his age at 53, after 23 years of employment.

James Nagy was rep­re­sent­ed by Maria W. Hugh­es and Stephen Weber at Kay Cas­to & Chaney PLLC. West Vir­ginia Amer­i­can Water Com­pa­ny was rep­re­sent­ed by Mychal Schulz at Dins­more & Shohl LLC.

The case is pend­ing in Cir­cuit Court in Kanawha Coun­ty, West Vir­ginia, before Judge Jen­nifer Bai­ley-Walk­er.

The Verdict

That $1,750,450 ver­dict con­sist­ed of:

Award of Attorney’s Fees and Expenses

Under the West Vir­ginia Human Rights Act (which pro­hibits age and oth­er forms of dis­crim­i­na­tion in the work­place), Nagy’s coun­sel filed a motion addi­tion­al­ly request­ing attor­neys’ fees and expenses.

Judge Bai­ley-Walk­er award­ed the plain­tiff total attorney’s fees of $177,772.50, and $8,855.33 in expenses.

Appeal

The Defen­dant is in the process of appeal­ing.  The issue of attor­neys’ fees was resolved by Judge Bai­ley-Walk­er on June 8, 2010, so the appeal process is in its ear­ly stages as of the date of this arti­cle being updat­ed (July 31, 2010). As things devel­op in the appeal, I will update this article.

July 31, 2010

Family and Medical Leave Act (FMLA), Sexual orientation

FMLA now applies to leave for care of children by same-sex couples

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The Unit­ed States Depart­ment of Labor recent­ly issued an Administrator’s Inter­pre­ta­tion 2010–3 which applies leave rights under the Fam­i­ly and Med­ical Leave Act to care of chil­dren by same-sex cou­ples. The US Depart­ment of Labor issued a press release to help explain the Administrator’s Inter­pre­ta­tion. In oth­er words, employ­ees in same-sex rela­tion­ships who qual­i­fy for leave under the FMLA will be enti­tled to pro­tect­ed leave for the qual­i­fy­ing care of their children.

As the DOL’s press release suc­cinct­ly says, the “FMLA allows work­ers to take up to 12 weeks of unpaid leave dur­ing any 12-month peri­od to care for loved ones or them­selves”. (29 U.S.C. 2612; 29 C.F.R. 825.200).

What is a “son or daughter”?

The key issue was when the child fell into the def­i­n­i­tion of “son or daugh­ter” for the employ­ee seek­ing leave. When does the law rec­og­nize the child as the “son or daugh­ter” of the employee?

Administrator’s Inter­pre­ta­tion 2010–3 sets out the statu­to­ry lan­guage, and same-sex cou­ples now have the nec­es­sary rela­tion­ship to the child through the sta­tus of being “in loco par­en­tis”, which more or less means some­one who “stands in the place” of the par­ent. Here is the dis­cus­sion in the Administrator’s Interpretation:

The FMLA enti­tles an eli­gi­ble employ­ee to take up to 12 work­weeks of job-pro­tect­ed leave, in rel­e­vant part, “[b]ecause of the birth of a son or daugh­ter of the employ­ee and in order to care for such son or daugh­ter,” “[b]ecause of the place­ment of a son or daugh­ter with the employ­ee for adop­tion or fos­ter care,” and to care for a son or daugh­ter with a seri­ous health con­di­tion. See 29 U.S.C. § 2612(a)(1)(A) — ©; 29 C.F.R. § 825.200. The FMLA defines a “son or daugh­ter” as a “bio­log­i­cal, adopt­ed, or fos­ter child, a stepchild, a legal ward, or a child of a per­son stand­ing in loco par­en­tis, who is— (A) under 18 years of age; or (B) 18 years of age or old­er and inca­pable of self-care because of a men­tal or phys­i­cal dis­abil­i­ty.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122©, 825.800.

(empha­sis added).

Con­tin­ue read­ing FMLA now applies to leave for care of chil­dren by same-sex cou­ples →
Attorney's Fees, Drew Capuder, Retaliation claims

Drew Capuder will be speaking on retaliation law on Oct 29–30, 2010 at Oglebay Park in Wheeling

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I will be speak­ing (and pre­sent­ing on arti­cle) on recent devel­op­ments in retal­i­a­tion under fed­er­al and West Vir­ginia employ­ment law on either Octo­ber 29 or 30, 2010 at the annu­al con­fer­ence of the West Vir­ginia Employ­ment Lawyers Asso­ci­a­tion. The con­fer­ence will be at Ogle­bay Resort and Con­fer­ence Cen­ter in Wheel­ing, West Vir­ginia. The final sched­ule is not out yet, so I don’t know whether my speech with be on Octo­ber 29 or 30.

Retal­i­a­tion law in recent years has been one of those devel­op­ing areas, and much more often than not the move­ment in the case law has been in the direc­tion of expand­ing pro­tec­tions for employ­ees against retal­i­a­tion. The US Supreme Court espe­cial­ly has focused on retal­i­a­tion law, and has “plugged gaps” in the law for fed­er­al employ­ees to include pro­tec­tion for retal­i­a­tion claims, has low­ered the thresh­old for what is action­able retal­i­a­tion, and has broad­ened the def­i­n­i­tion of “oppo­si­tion” which enti­tles employ­ees to protection.

One of the dan­gers for employ­ers from retal­i­a­tion claims is that, after an employ­ee com­plains about alleged dis­crim­i­na­tion, the employ­er may be guilty of retal­i­a­tion even if a jury decides there was no dis­crim­i­na­tion to sup­port the employee’s orig­i­nal com­plaint. An employ­ee may suc­ceed in a retal­i­a­tion claim as long as his com­plaint was made in good faith, even if the employ­ee was wrong about the com­plaint of discrimination.

In the pri­or 2 years at the annu­al con­fer­ence for WVELA, I spoke and wrote arti­cles on awards of attor­neys’ fees under employ­ment dis­crim­i­na­tion laws, and on age dis­crim­i­na­tion.

Americans with Disabilities Act, Disability discrimination, Drew Capuder, Family and Medical Leave Act (FMLA), Hostile work environment, Sexual harassment

Drew Capuder will be speaking on disability and sexual harassment issues in Morgantown Oct. 20, 2010

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I will be speak­ing (and pre­sent­ing arti­cles)  at a sem­i­nar spon­sored by Ster­ling Edu­ca­tion Ser­vices on Octo­ber 20, 2010 in Mor­gan­town, West Vir­ginia, enti­tled “Fun­da­men­tals of Employ­ment Law”.

I will be speak­ing (and pre­sent­ing arti­cles) on “Sex­u­al, Racial, and Oth­er Harass­ment in the Work­place” and “ADA and FMLA Update”.

Here is the full agen­da, and here is the fac­ul­ty infor­ma­tion. The sem­i­nar will pro­vide around 6–8 hours of con­tin­u­ing edu­ca­tion cred­it for lawyers (I don’t know the exact num­ber, but the sem­i­nar is a full day).

You can reg­is­ter for the the sem­i­nar online. For fur­ther infor­ma­tion, you can con­tact Ster­ling, and their num­ber is 715–855-0498.

Harless wrongful discharge, Hostile work environment, Intentional infliction of emotional distress, Medical Industry Litigation, Pleading requirements, Result for Employee, Retaliation claims, Sex Discrimination, Sexual harassment, WV Human Rights Act, WV Supreme Court

Sorry boss, I didn’t know you were having sex in the office!!

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The West Vir­ginia Supreme Court recent­ly issued an opin­ion deal­ing with one of those stereo­typ­i­cal­ly awk­ward sit­u­a­tions, where an employ­ee alleged­ly stum­bles into a room where the boss is hav­ing sex with a co-work­er. The deci­sion was  Roth v. DeFe­lice­Care, Inc., 226 W. Va. 214, 700 S.E.2d 183 (June 8, 2010) (per curi­am). It was a 3–2 deci­sion, in which the 3‑vote major­i­ty con­sist­ed of Jus­tices Robin Davis, Mar­garet Work­man, and  Thomas McHugh. Jus­tices Menis Ketchum and Brent Ben­jamin dis­sent­ed, and Jus­tice Ketchum wrote a dis­sent­ing opinion.

The Facts–Sex at Work

These are the facts accord­ing to the com­plaint in the law­suit: Tri­cia Roth was a res­pi­ra­to­ry ther­a­pist work­ing at DeFe­lice­Care, Inc. in Ohio Coun­ty, West Vir­ginia, and she was about to go on vaca­tion. She was direct­ed by Leslie DeFe­lice (the male boss/owner) to come to work some­time dur­ing the week­end pre­ced­ing her vaca­tion in June 2006. She was not told a spe­cif­ic time to come to work dur­ing that week­end. When she came to work as ordered, she “observed Defen­dant [Leslie] DeFe­lice and/or Michelle Kel­ly par­tial­ly clothed and in a com­pro­mis­ing posi­tion”. Mr. DeFe­lice instruct­ed Ms. Roth to go into a con­fer­ence room and wait–meanwhile Mr. DeFe­lice and the oth­er employ­ee got all their clothes back on. Mr. DeFe­lice then talked to Ms. Roth and told her to for­get about what she had just seen, and threat­ened Ms. Ross with the loss of her res­pi­ra­to­ry ther­a­py license and the loss of her employment.

Ms. Roth then went on vaca­tion. When she got back from vaca­tion and returned to work, she had a meet­ing with Mr. DeFe­lice that did­n’t go well. Ms. Roth told Mr. DeFe­lice that she had­n’t told any­one about his sex­u­al encounter at work. Mr. DeFe­lice pro­ceed­ed to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal the­o­ries cen­ter­ing around sex dis­crim­i­na­tion and sex­u­al harass­ment, and–bada bing!–the case prompt­ly got dismissed.

Ms. Roth’s com­plaint (the doc­u­ment which starts the law­suit and describes the plain­tiff’s alle­ga­tions) focused on the sex­u­al inci­dent I have described above, but also made alle­ga­tions about oth­er sex­u­al harassment–I will dis­cuss those details below.

Con­tin­ue read­ing Sor­ry boss, I didn’t know you were hav­ing sex in the office!! →
Age Discrimination, Federal Cases (but not US Supreme Court), Fourth Circuit, Pension issues, Summary Judgment

Fourth Circuit rules that pension contribution rules may be age biased

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The Fourth Cir­cuit Court of Appeals, in an unpub­lished opin­ion, addressed whether an employ­er’s pen­sion con­tri­bu­tion rules may con­sti­tute age dis­crim­i­na­tion under the Age Dis­crim­i­na­tion in Employ­ment Act of 1967, in Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion v. Bal­ti­more Coun­ty, 385 Fed. Appx. 322 (4th Cir. 2010). The unan­i­mous opin­ion was writ­ten by Judge Den­nis Shed, and was joined by Judge Roger Gre­go­ry and Arther L. Alar­con (Senior Judge on Ninth Cir­cuit, sit­ting by designation).