Special Election for Senator Byrd’s Seat, and “Democracy in America” From Northern Exposure TV Series

Today is the Special United States Senate Primary Election for Senator Byrd’s seat in West Virginia.

With Democracy on my mind: Below is a video segment of the “Democracy in America” episode of Northern Exposure. When you click the play button below, you might get a copyright message so that you have to get redirected to the actual YouTube site (on which this segment is available).

This episode of Northern Exposure was a wonderful (and moving) glimpse of democracy in small town Americana, centering around the mayoral election for the fictional Cicely, Alaska. There are a number of other segments from that episode on YouTube. If you have some free time, get on YouTube and type “Northern Exposure democracy in America” to see some of the other clips. Or buy the DVD of season three of Northern Exposure, which contains the Democracy in America episode. While you’re at it, for another wonderful glimpse of small town Americana, watch the always fantastic Robert Preston in The Music Man.

Update (2015): It looks like the video linked above has been blocked on copyright grounds, so here is the Amazon link to buy season three of Northern Exposure, which included the “Democracy in America” episode.

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.

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

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

Today 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.

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

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

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

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!

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

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:

  • $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

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

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) – (C); 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(c), 825.800.

(emphasis added).

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

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

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.

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

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.

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

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!!