The 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?
So, 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 US Supreme Court Rules for Employee on “Cat’s Paw” Theory
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 Cleveland jury awards $900,000 against hospital in age discrimination case
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. Continue reading Back from the USSR: FMLA Retaliation, 4th Circuit Decision in Dotson v Pfizer
A few days ago, I posted my article on PAR Electrical Contractors, Inc. v. Bevelle , in which the West Virginia Supreme Court ruled that a single episode involving multiple uses of the N-word could create a racially hostile work environment.
The US Court of Appeals for the Seventh Circuit just released an opinion in Berry v. Chicago Transit Authority, – F.3d –, – WL — (7th Cir. August 23, 2010), which raises the similar issue: Can a single instance of sexual harassment create a hostile work environment? And the answer was yes, depending on the circumstances.
Ms. Berry is Sexually Harassed in a Single Incident
Cynthia Berry was an employee at the Chicago Transit Authority. She was on her break and sat at a picnic style table with three male co-workers. A fourth male co-worker, Philip Carmichael, had followed her to the picnic area and ordered Ms. Berry to get up from the table. Offended by Mr. Carmichael’s “commanding tone”, Ms. Berry remained seated. Mr. Carmichael then sat down and “straddled the bench” so he was facing one of the male co-workers at the picnic table, and so that Mr. Carmichael’s back was close to Ms. Berry. The other three male co-workers got up from where they were seated at the picnic table and moved to the other end of the table. Then:
Berry says Carmichael remained where he was seated and began rubbing his back against her shoulder. She jumped up, told him not to rub himself against her, and sat down next to Hardy at the other end of the table. At this point,
Berry says, Marshall began telling her to get up from the table again. Not wanting Marshall to think he could order her around, she remained seated, but began rubbing her temples to compose herself. According to Berry, she next felt Carmichael grabbing her breasts and lifting her up from the bench. Holding her in the air, he rubbed her buttocks against the front of his body—from his chest to his penis—three times before bringing her to the ground with force. Berry landed off-balance, with only one leg on the ground, and says Carmichael then pushed her into a fence. Upset and wanting to avoid any men, she lay down in a bus for the rest of her shift.
Continue reading Single act may create hostile work environment, according to Seventh Circuit in Berry v. Chicago Transit Authority
Okay, this article has nothing to do with Dr. Laura Schlessinger and her “rant” in which she used the N-word repeatedly on her radio program when responding to an African-American caller. But the ensuing controversy (see articles for and against Dr. Laura), and her decision to end her long-running radio program, highlight the extraordinary significance of the N-word term in American society.
The West Virginia Supreme Court recently dealt with the N-word in a case that highlights the great risks for employers when that word enters the workplace.
In PAR Electrical Contractors, Inc. v. Bevelle , — W. Va. –, — S.E.2d –, 2010 WL 2244096 (June 3, 2010) (per curiam), the West Virginia Supreme Court dealt with a claim of a racially based hostile work environment under the West Virginia Human Rights Act, and concluded that the West Virginia Human Rights Commission was justified in finding for the employee. The decision was unanimous. Click here for the WV Human Rights Commission’s decision which was affirmed by the WV Supreme Court.
A Single Day, With the N-Word Again and Again
PAR Electrical was building “giant towers” for a high voltage electrical transmission line. Richard Wayne Bevelle was hired by PAR Electrical on March 22, 2005, and, after working as a “groundman” assembling the tower bases, was assigned to load helicopters with parts to construct the towers (this helicopter job was described as a “gravy job” by the Human Rights Commission). Mr. Bevelle is African-American.
Continue reading The disastrous consequences of the N-word in the workplace. Just ask Dr. Laura!
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.
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.
That $1,750,450 verdict consisted of:
- $150,000 for humiliation,
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.
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
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., – W. Va. –, — S.E.2d –, 2010 WL 2346248 (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!!
On March 17, 2010, a jury in Jackson County in West Virginia awarded Jerold John Rice Jr. roughly $2.1 million in an age discrimination case against The Burke-Parsons-Bowlby Corporation, Stella-Jones US Holdings Corporation, and Stella-Jones, Inc., tried in Judge Thomas C. Evans III’s court.
Mr. Rice was represented by Mark Atkinson and Paul Frampton at Atkinson & Polak, PLLC, and the defendants were represented by Roger Wolfe at Jackson & Kelly PLLC in Charleston, and Kevin Hyde at Foley & Lardner, LLP in Jacksonville, Florida.
Here is a quick run-down of what was awarded in the case:
- Back pay: $142,659 awarded by jury.
- Pre-judgment interest: $11,791.84 from date of termination through trial.
- Front pay: $1,991,332.00 awarded by jury (from roughly age 48 through retirement age at 67).
- Emotional distress: $0.
- Punitive damages: Jury did not answer question affirmatively which would have allowed award of punitive damages.
- Total judgment based on jury’s verdict: $2,145,782.84, plus post-judgment interest on that amount at 7% per annum.
- Attorneys’ fees: $117,235 awarded by judge (based on $450 an hour for Mark Atkinson and $300 per hour for Paul Frampton).
- Litigation expenses: $20,324.16 awarded by judge.
- Total award: $2,283,342.00 (based on jury verdict, pre-judgment interest, attorneys’ fees and expenses) plus post-judgment interest at 7% per annum.
The Rice case illustrates the risk employers face when they terminate an older, good, long-standing employee, and replace him or her with a much younger person with little or no experience for the employer.
Mr. Rice at the time of his termination (in 2009) was age 47 and had worked for Burke-Parsons-Bowlby Corporation for 24 years. When Mr. Rice was terminated he was the corporate controller.
Continue reading Jackson County jury awards $2.1 million in age case
Sexual harassment claims frequently require judges and juries to distinguish between “merely crude” behavior, which doesn’t violate the employee’s rights, and “sexual harassment”, which does. The Fourth Circuit Court of Appeals addressed that issue in EEOC v. Fairbrook Medical Clinic, PA, 609 F.3d 320 (4th Cir. 2010) (opinion at Fourth Circuit’s site), and didn’t have a lot of trouble concluding that the conduct in issue could reasonably be viewed by a jury as sexual harassment, ruling in favor of the employee. One of the key issues was whether the conduct was “severe or pervasive” enough to constitute a “hostile work environment”. The unanimous opinion was written Judge J. Harvie Wilkinson III, joined by Judges Andre M. Davis and C. Arlen Beam (from the Eighth Circuit).
Doctor on Doctor Harassment at Fairbrook Medical Clinic
Dr. John Kessel was the owner of Fairbrook Medical Clinic in South Carolina, and was accused by a former female doctor at the clinic, Dr. Deborah Waechter, of sexually harassing her. Dr. Kessel was Dr. Waechter’s supervisor. Dr. Waechter worked for him for 3 years and quit, allegedly over a broad range of sexually explicit statements made during most of those 3 years (I’ll discuss the specifics below).
Dr. Waechter’s Lawsuit
Dr. Waechter then filed a charge of discrimination with the EEOC, alleging that Dr. Kessel’s behavior created a “hostile work environment”, and the EEOC then filed suit on behalf of Dr. Waechter against Dr. Kessel’s clinic under Title VII of the Civil Rights Act of 1964.
After discovery was conducted. Fairbrook Medical Clinic filed a motion for summary judgment, and the federal trial judge granted it. The trial judge reasoned that the offensive conduct was “not particularly frequent,” mostly involved “the type of crude jokes that do not run afoul of Title VII,” did not cause Dr. Waechter to miss work or feel “severe psychological stress,” and did not include inappropriate touching or physical threats.
Continue reading Was the boss “merely crude”, or was he sexually harassing her?