Please help me!! I’m Tweeting, and I can’t stop!!!!!

Okay, I gotta admit that I’ve been skep­ti­cal about the value of Twit­ter. Lawyers tend to delude them­selves into believ­ing that they think impor­tant and deep thoughts. For exam­ple: “I just read an inter­est­ing arti­cle on res ipsa loquitur and its rela­tion­ship to the Philip­pines pro­bate code. Would you please pass the Chardon­nay and the shrimp tem­pura?” And let’s face it, how good are lawyers at being brief? Lawyers are almost con­gen­i­tally inca­pable of express­ing them­selves in 140 char­ac­ters or less.

But my army of mar­ket­ing con­sul­tants (er, all the mar­ket­ing dudes writ­ing on the Inter­net) says Twit­ter and Face­book have real busi­ness value for lawyers (every­one assumes lawyers are too anti-social to actu­ally use those sites for their orig­i­nally intended social pur­poses). So I’ve done some mod­er­ately care­ful look­ing at Twit­ter and have decided to jump on the band­wagon. Of course, now that I am on that band­wagon, I think Twit­ter is the great­est thing since sliced bread. Here it is, my but­ton so you can fol­low me on Twit­ter:

Follow DrewCapuder on Twitter

What am I Tweet­ing about (like most peo­ple above 23, I ini­tially asso­ci­ated the word “Tweet­ing” with some­thing that was drip­ping down my leg)? I have only been Tweet­ing a few weeks, so I am still get­ting my sea legs. But here is a list of things I have been and expect to be Tweet­ing about:

  • Employment-related legal issues. This is the main area of my prac­tice, and most of my Tweets will be on this topic.
  • Legal issues relat­ing to the med­ical indus­try (much of my employ­ment lit­i­ga­tion is in the med­ical industry).
  • Other legal issues which I think may be of inter­est to my “fol­low­ers” (I feel the power cours­ing through my veins).
  • Time man­age­ment and orga­ni­za­tional skills. Like most lawyers and busi­ness peo­ple, I am always look­ing for ways to become more effi­cient, so I can spend more time con­cen­trat­ing on deep thoughts.
  • Com­puter and soft­ware prod­ucts & issues that might be of inter­est to lawyers and busi­ness people.
  • Media issues. I teach a class at Fair­mont State Uni­ver­sity on legal and eth­i­cal issues in media, and I am espe­cially inter­ested in media bias in gen­eral and specif­i­cally relat­ing to polit­i­cal coverage.

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Posted in Drew Capuder, Social networking | Leave a comment

Martin Luther King; His entire “I Have a Dream” speech

altToday is the 47th Anniver­sary of Dr. Mar­tin Luther King’s “I Have a Dream Speech” given on the steps of the Lin­coln Memo­r­ial. We are now two gen­er­a­tions removed from that speech. Worse, we live in the age of MTV, Twit­ter, and 30-second sound­bites on the evening news. So all too often, we see only bite-sized snip­pets from Dr. King’s speech, so I wanted to post the entire speech on this video from YouTube:

Click here for a site that has the tran­script, audio, and video of the speech.

Posted in Democracy, Race discrimination | Tagged | 2 Comments

Single act may create hostile work environment, according to Seventh Circuit in Berry v. Chicago Transit Authority

Chicago Transit AuthorityA 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.


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Posted in Hostile work environment, Prompt remedial action, Result for Employee, Sex Discrimination, Sexual harassment, Summary Judgment, Title VII of the Civil Rights Act of 1964 | Leave a comment

The disastrous consequences of the N-word in the workplace. Just ask Dr. Laura!

Articles on hostile work environment, Drew Capuder's Employment Law BlogOkay, 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.

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Posted in Attorney's Fees, Back and Front Pay Issues, Constructive discharge, Emotional Distress Damages, Employment policies, Hostile work environment, Prompt remedial action, Race discrimination, Result for Employee, Retaliation claims, WV Human Rights Act, WV Human Rights Commission, WV Supreme Court | 1 Comment

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

Kanawha County, West Virginia, CourthouseOn 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:

  • $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

Posted in Age Discrimination, Back and Front Pay Issues, Emotional Distress Damages, Jury verdicts, Punitive damages, Result for Employee, WV Human Rights Act | Leave a comment

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

Same-sex couples now have protected FMLA leave for care of childrenThe 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).

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Posted in Family and Medical Leave Act (FMLA), Sexual orientation | Leave a comment

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

Speaking Announcement 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.

Posted in Attorney's Fees, Drew Capuder, Retaliation claims | 1 Comment

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

Click here for info on the seminar 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.

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

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

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

Edvard Munch, The Scream, click for Wikipedia article 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

Posted in 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 | Tagged | 1 Comment

Fourth Circuit rules that pension contribution rules may be age biased

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, –F.3d. — (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).

Posted in Age Discrimination, Federal Cases (but not US Supreme Court), Fourth Circuit, Pension issues, Summary Judgment | Leave a comment