Alaska Employment Law

If you are old enough to remember pulp fiction — I don’t mean the movie, I mean the drugstore  literature — then the Hard Case Crime series will appeal to you.  These are “hard boiled” books, some of them reprints of old crime novels, some of them newly written, that would make Dashiell Hammett proud, or at least interested.  (If you don’t know Mr. Hammett, hop onto Amazon and buy The Thin Man and The Maltese Falcon first, and then graduate to The Dain Curse and Red Harvest.)

Part of the fun of Hard Case books is — well, they’re lurid in their own way, with delightfully sleazy cover art that mimics those seedy little drugstore paperbacks sold in the first half of the 20^th century.  Yet for the most part (I’ve read about 8 of them), they’re still well written, utterly noir.  I recently found Money Shot, by Christa Faust, a book about an ex-adult film star who ends up in a very bad circumstance, inside the trunk of a car, through no fault of her own.  She finds a hero to help her, but in the end she must be her own hero.  Justice is served, sort of, in Money Shot, but not the way you think it will be served.  Ms. Faust’s view of things is pretty bleak, and pretty surprising at the same time.  The book is rather like an accident that you inappropriately discover.

Like lots of books in the Hard Case Crime series, Money Shot is trashy but sticks in your head, mainly for its romantic brutality.  So, first of all, no complaining:  I said it was a trashy book.  However, if you like modern police procedurals, you might try any of the Hard Case Crime books.  If real pulp fiction makes sense to you, you might want to spend the $6.99 and get a little grubby.

We reviewed major employment bills on February 22nd.  Here’s what’s happened since then (bottom line: not much):

Caps on mandatory overtime for nurses: CSSB 28 (B. Davis) would set caps on mandatory overtime (generally 80 hours in a 14-day period, though with multiple exceptions), and establish an enforcement process in the Department of Health and Social Services.  Update: Senate passed 17-3 on March 27th.  The House has taken no action.  

Political expenditures by public unions: SB 77 (C. Bunde) would prohibit public unions from using agency shop fees for political contributions or expenditures unless the public employee affirmatively authorized such.   Update: No movement. 

Break times for nursing mothers: SB 113 (Ellis) would require employers of any size to provide reasonable unpaid break time each day for an employees who wish to nurse children, and, unless it would cause a hardship, a private space to do so.  Update: No movement.

Raise in minimum wage: SB 187 (Wielechowski, Thomas, & Elton) would increase the minimum wage on and after January 1, 2009, and tie it to the Anchorage CPI.  Update: No movement.

Mandatory paid sick leave:  SB 258 (by request) would require minimal paid sick leave for non-unionized employees  (1 hour for each 40 hours of work), regulate the permissible uses for such leave (including care for domestic partner), and provide for enforcement (through the Wage and Hour Act).  Update: No movement.

Not many Alaska law firms are large enough, I bet, to do formal performance reviews of their attorneys.  Maybe such reviews are common in mega-firms.  Here’s one done for the former Paul Hastings associate whose departure has recently been big news.  The attorney apparently authorized the release of the review.   H/T: Wall Street Journal Law Blog

Allegations of an unsafe work environment, unresponsive management at Big Law: a law student perspective

This morning news of a claim filed with both the EEOC and the Massachusetts Commission Against Discrimination against Boston firm Bingham McCutchen began making the rounds, and by noon the blawgosphere was in its typical frenzy. Michelle A. Moor, an ex-associate of Bingham, alleges that she was drugged at a company Christmas party. Even more disturbing than the allegation of drugging, perhaps, is the firm’s response and the slowly emerging pattern of a firm unsupportive of its female associates. Ms. Moor, for instance, reports that a fellow associate commented, in front of other Bingham attorneys, that he “enjoyed having sex with women … who were unconscious” and “knew how to get ‘roofies.’”

As Massachusetts Lawyers Weekly reports,

According to the complaint, after Moor reported the incidents to the firm, “Bingham failed to take steps to ensure Ms. Moor’s safety.” This “failure to investigate and take prompt and adequate remedial action,” the complaint alleges, “constitute[s] sex discrimination.”

In response to her complaints, the firm moved Ms. Moor to a floor separate from her practice group (litigation). Despite telling Moor that her complaints would be investigated, the firm repeatedly ignored them, she says.  When she spoke with a senior associate about her experience, the attorney, shockingly, confided that she herself had been drugged and raped by a fellow employee of the firm.

The WSJ Law Blog reports on the firm’s response to Ms. Moor’s complaint:

In a statement, according to the Globe, Bingham said it took the associate’s allegations “extremely seriously” and conducted an “appropriate and thorough investigation,” but was unable to confirm whether the person who gave her the drug was associated with the firm. The firm also said it is providing personal safety training to its employees in response to the associate’s concerns.

For a law student who has spent the day discussing the case with others (I am currently a 3L at Northeastern University School of Law, the alma mater of both Ms. Moor and her attorney), this case raises a number of issues. First, outrage.  Outrage not only at the described behavior of the men in question, but also at the seeming unresponsiveness of the firm. The idea that offering self-defense lessons is a viable response to allegations of rape is outrageous. Does Bingham really believe that leaving associates to physically fight each other off is the appropriate response? After all, the whole point of “roofies” is to render someone unable to physically respond, making whatever self-defense skills you have learned on your lunch break at Bingham completely useless. Additionally, there is a response of shattered naivete. Many of us heading into the field of law spend an inordinate amount of time defending the much-maligned profession of law, and yet, it seems, little has changed in the world of sexist, everyone-for-himself Big Law. 

And then there are the legal questions. Primarily, what responsibility does Bingham have regarding behavior at firm parties, whether on or off company premises? What is the proper response to these allegations? Was moving Ms. Moor to a different floor appropriate?And, finally, what about that agreement the firm had Ms. Moor sign? The complaint indicates that Bingham informed her that, while she was employed at the firm, she signed an agreement stating that any disputes related to her employment would be “resolved exclusively through final and binding arbitration,” and that therefore she “cannot sue the firm in court.”  (See WSJ again.) What rights does Moor retain, and what can Bingham legitimately ask her to do? What rights do summer associates, who are not yet hired and therefore especially unlikely to file claims or lodge complaints, retain?

As a law student who has gone through the competitiveness and anxiety of on-campus interviewing for coveted summer associate positions, I fear thinking of how many people wouldn’t be as brave as Ms. Moor.  The majority of us law students are so used to focusing on achievement, getting ahead, competing, and putting up with whatever it takes to get the job.  Ms. Moor is to be commended for her persistence in attempting to get a response from Bingham. She is also to be commended for leaving the firm when she didn’t feel safe.  Time will tell whether she will be appropriately rewarded for bringing this behavior to light. Regardless, those of us entering the field of law owe her a debt of gratitude for refusing to stay quiet.

Sarah J. Schendel is a student at Northeastern University School of Law in Boston, Massachusetts.

In a Clean Water Act case, where the court will first decide liability, Judge John Sedwick has excluded the testimony of numerous defense witnesses, relying on the defendants’ summary of proposed testimony.  Sedwick ruled that most of the proposed testimony is relevant only in the penalty phase of the litigation. 

Sedwick also held that Alaska DEC officials could not testify on the requirements for a federal CWA permit.

Nancy Sonafrank and Sharmon Stambaugh are employees with the Alaska Department of Environmental Conservation. Defendants indicate that Ms. Sonafrank is expected to testify as to “water quality standards, including cyanide standards, aquatic life criteria, and the use of the WAD testing method.”  []  Ms. Stambaugh is expected to testify as “to the compliance and monitoring of Red Dog Mine wastewater discharges from the perspective of the AK Dept. of Environmental Conservation.”  []  Plaintiffs argue that the opinions of state officials on the requirements of a federal permit are not relevant as to liability under the federal Clean Water Act. The court concurs.

(Footnotes omitted.)

Adams v. TeckCominco, 2008 WL 1929979 (D.Alaska May 1, 2008).

There’s been much publicity the last several days about the claim by the Paul Hastings attorney that the firm laid her off with, at least, great insensitivity.  Here’s the Release that Paul Hastings presented to her.   The attorney rejected the offer (which included a non-disparagement provision).

H/T: Above the Law

If an employer evaluates an employee for a disability, or tries to accommodate a possible disability, will its actions boomerang and constitute evidence that it “regarded” the employee as disabled?  The 9th Circuit says, No.

That the County was aware of Magdaleno’s PTSD diagnosis, required him to submit to a psychological evaluation, and took steps to accommodate his PTSD, is insufficient to create a triable issue of fact on the “regarded as” prong. See Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 798 (9th Cir. 2001) (“[W]hen an employer takes steps to accommodate an employee’s restrictions, it is not thereby conceding that the employee is disabled under the ADA or that it regards the employee as disabled.”); Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998) (“A request for an evaluation is not equivalent to treatment of the employee as though she were substantially impaired.”). Thus, there is no triable issue of fact as to whether the County regarded Magdaleno as having a disability. 

The panel affirmed summary judgment in favor of the employer.

Magdaleno v. Washington County, 2008 WL _______ (9th Cir. May 5, 2008)(unpub.)

FMLA adverse action:  An employee alleged that her employer retaliated against her for assertion of her FMLA by transferring her.  She, thus, had to show that the transfer was an “adverse employment action.” The 9th Circuit reversed summary judgment for the employer, because of evidence that the new sales position covered a lower-growth territory with less possibility for commissions and because the supervisors themselves didn’t perceive the two territories as equivalent.  Hochhalter v. Stephens Group, Inc., 2008 WL 1930444 (9th Cir. May 2, 2008)(unpub.) 

Due Process liberty interest:  The temporary placement of stigmatizing information in a public employee’s personnel file is not “publication” if no member of the public actually sees the information in the file.  Murdock v. Mingus Union High School District, 2008 WL _______ (9th Cir. May 2, 2008)(unpub.)

FOIA Exemption 6 and personnel information:  FOIA Exemption 6 authorizes federal agencies to withhold information from “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”  The Forest Service relied on this exemption to withhold the names of Service employees identified in an investigative report that was critical of the Service’s response to a fire.  Before balancing the private and public interests, the panel addressed the purpose to which the requestors intended to put the information: “FOIA provides every member of the public with equal access to public documents and, as such, information released in response to one FOIA request must be released to the public at large.”  Thus, it mattered not that the requestor was a (self-described) “public interest watchdog organization.” 

As to the privacy interests, the Court held that employee privacy is more protected if the employee is low level, has not been accused of official misconduct, and will be subject to embarrassment or harassment through disclosure.  The public’s interest in disclosure, on the other hand, depends on the likelihood that the information would “appreciably further” the public’s right to monitor the agency’s action.  Because the Service’s response to the fire had already been scrutinized by a number of organizations, and because additional scrutiny by the watchdog group depended precisely on further invasions of employee privacy, the Court held that the public’s interest would not be advanced by mandating the release of the individual employee identities.  

Forest Service Employees for Environmental Ethics v. United States Forest Service, 2008 WL 1902511 (9th Cir. May 1, 2008)

 If you want to see a sharp British film about a bank robbery that has a deliciously complex plot about petty thieves, British intelligence, the naughty Royals and the evil that lives in men’s hearts (until the reasonably happy ending), try The Bank Job, which is a little hard to find but well worth it.

I gather the film is based on a true story from 1971 about photographs of a member of the Royal Family that had come into the hands of a politically “bad” man, and the efforts of MI5 (British intelligence service) to recover those photographs with a very devious plan. The robbers, who think they are after money but are after something else, end up with money, that certain something else, and yet another item or two which bring down upon them not only the police (for the bank robbery) and MI5, but also a very nasty Soho clubowner, a very crooked cop and a deeply embarrassed MP.

There’s also a twist in the plot involving a ham radio operator who demonstrates how the best laid plans of mice and men gang aft agly, etc., etc.

In reality, and in the movie, the British government issued what is known as a D-Notice to the press, which officially requests that the news media stop covering the story on grounds of national security. And indeed the press did drop the story. I won’t say more, except to recommend the film.

At the Friday Annual Business Meeting, departing Bar President Matt Claman presented the Robert K. Hickerson Public Service Award to Rick Friedman; and the ALSC Pro Bono 25th Anniversary Awards to Mendel & Associates and to John Treptow.

At the Thursday evening Awards Reception and Banquet, the awards were:

Alaska Court System Community Outreach: Morgan Christen

Bryan P. Timbers Pro Bono Awards: Law Firm: Davis Wright Tremaine;  Practitioner: Phil Eide;  Lifetime Achievement Award: Ashburn & Mason

Alaska Bar Association Distinguished Service: Mary Gilson

Ledbetter:  In his presentation on U. S. Supreme Court opinions, Edwin Chemerinsky predicted that the Court would issue 65 opinions this term (down from 68 last year).  As to Ledbetter v. Goodyear, he expressed surprise that the employee hadn’t petitioned for cert on the Equal Pay Act claim, stressed that the majority hadn’t decided whether equitable tolling applies to Title VII pay claims, and noted that Ginsburg’s dissent says that 1/3 of private sector employees are under workplace rules that forbid discussion of wages/salaries (thus making it difficult to know when pay disparities exist, and suggesting that equitable tolling may be justified).  Chemerinsky also noted that the Equal Pay Act (unlike Title VII) does not require a showing of disparate intent, and thus may offer a better vehicle for pursuing pay discrimination claims.

Awards: At today’s Bench and Bar lunch, the awards went as follows: BarLayperson Service: Vivien Noll (OSPA); Rabinowitz Public Service: Seaborn Buckalew, Ret. Judge, etc.; and Bar Professionalism: Patrick Gilmore, Atty.

Civil Rights book: In his introduction of Edwin Chemerinsky, Justice Matthews said that he relied on Chemerinsky’s Federal Jurisdiction for a good guide to Section 1983 claims.

The ABA Journal has now published excerpts from Bryan Garner’s new book, co-authored with Antonin Scalia.

Garner will speak on Advanced Legal Writing and Editing at the Friday (May 2nd) morning session of the Alaska Bar Association convention, according to the Bar’s Agenda. 

Assistant Managers of Wal-Mart stores sued for unpaid overtime.   The trial court denied certification under both Rule 23(b)(2) and (3).  On interlocutory appeal, the 9th Circuit found no abuse of discretion as to Rule 23(b)(3), but held that the trial court erred as to Rule 23(b)(2).  Under 9th Circuit precedent (vs. 5th Circuit), the non-incidental nature of the damages claims does not automatically preclude Rule 23(b)(2) certification.  The panel also directed the trial court to “reconsider using Rule 23(c)(4) to certify specific issues under the Rule 23(b)(2) standard.” 

Sepulveda v. Wal-Mart Stores Inc., 2008 WL 1868333 (9th Cir. Apr. 25, 2008)(unpub.)

The Alaska Supreme Court this morning affirmed Judge Mark Rindner’s award of overtime compensation, liquidated damages, and actual fees. 

The employer admitted to misclassifying the employee (a registered nurse in a “home infusion department”) as exempt, and further admitted failing to keep accurate time records (it didn’t contest the employee’s claim that it had instructed her to write “eight hours” regardless of her daily time).  The employer also did not assert a good faith defense to liquidated damages. 

The employer did, however, claim that it had submitted sufficient evidence of the employee’s actual hours to rebut the employee’s estimates.  The Supreme Court affirmed Rindner’s rejection of that argument.

The employee arrived at her hours by estimating the number of professional visits (based on mileage records), and then multiplying that number by an average length of each visit, and then adding time for administrative tasks associated with each visit.  Rindner found that the employee had met her burden under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), and adopted that formula.  The employer, in turn, sought to meet its burden under Barios v. Brooks Range Supply, Inc., 26 P.3d 1082 (Alaska 2001), by showing that the employee’s nursing and progress notes didn’t support the employee’s estimates.  Based on the “ample evidence” of the “general inaccuracy” of the notes, and the supervisor’s concession that her oversight of the employee was “very loose,” the Supreme Court held that the employer’s countervailing evidence was “neither precise enough nor conclusive enough to show that [the employee’s] wage claim is unreasonable.”  Op. at 10.  

The Court (per Justice Eastaugh), thus, affirmed an OT award of $32,000 in wages, $7,000 in prejudgment interest, another $32,000 in liquidated damages, and $156,000 in fees and costs.  The employee, presumably, will also get actual fees and costs for the appeal.

Geneva Woods Pharmacy, Inc. v. Thygeson, Op. No. 6255 (Alaska Apr. 25, 2008)

Richard Maki and David Shoup of Tindall Bennett in Anchorage represented the employee.  Stanley Lewis of Birch Horton, also of Anchorage, represented the employer.

Judge Frank Easterbrook, from the 7th Circuit, relies on empircal studies and writes about how to determine credibility:

The belief that many people form from watching television and movies—that this can be done by careful attention to a witness’s demeanor—has been tested and rejected by social scientists. Looking for mannerisms, hesitations, and perspiration is the method of the lie detector without the polygraph machine. In a large-scale test of liedetecting abilities, in which people told matched pairs of true and false stories, a television audience (which had access to the speakers’ demeanor) did no better than chance at separating truth from fiction, while newspaper readers spotted the lie 64% of the time and people listening to the radio got it right 73%. Richard Wiseman, Quirkology: How We Discover the Big Truths in Small Things 50–81 & references at 287–90 (2007). In other words, if you want to find a liar you should close your eyes and pay attention to what is said, not how it is said or what the witness looks like while saying it. See Stephen Porter & John C. Yuille, The Language of Deceit: An Investigation of the Verbal Cues to Deception in the Interrogation Context 20 L. & Human Behavior 443 (1996); Michael J. Saks, Enhancing and Restraining Accuracy in Adjudication, 51 L. & Contemp. Probs. 243, 263–64 (Aut. 1988). And even then the error rate is high.

So what gives the liar away? Wiseman’s book recounts what is known about this subject. The major clue, apart from factual gaffes and inconsistencies that amount to confessions, is the amount of detail. “When it comes to lying, the more information you give away, the greater are the chances that some of it will come back to haunt you. As a result, liars tend to say less, and to provide fewer details”. Id. at 58–59. What’s more,  “[l]iars often try to distance themselves psychologically from their falsehoods, and so they tend to include fewer references to themselves, and their feelings, in their stories.” Id. at 59. Truth-tellers have normal amounts of memory failure. But “[w]hen it comes to relatively unimportant information, [liars] seem to develop super-powered memories and often recall the smallest of details. In contrast, truthtellers know that they have forgotten certain details and are happy to admit it.” Id. at 59–60. In a nutshell: details matter, and the story’s periphery may expose a liar.  

Mitondo v. Mukasey, 2008 WL _______ (7th Cir. Apr. 24, 2008)

Judge Ralph Beistline has approved the parties’ stipulated protective order in an FMLA case.  The parties categorized sensitive information as either “Confidential Information” or “‘Attorneys’ Eyes Only’ Information,” though the significance of one category over the other is not clear, since the treatment of the information seems similar if not identical.

Judicial aproval of a stipulated protective order is not automatic.  For earlier treatment (in fact, a judge’s partial rejection) of a stipulated protective order, see Judge Sedwick’s opinion in Urich v. Fraize, 2008 WL 801970 (D.Alaska Mar. 24, 2008), discussed in an earlier posting.  In that opinion, Judge Sedwick rejected the defendant’s proposed protective order as unnecessarily restrictive (no reason to require plaintiff to file motion before using information supplied by defendant), but did require plaintiff to seal and mark as “confidential” certain material he might file in court, and to return all information after the close of litigation.  

In the matter before Beistline, the stipulation met the criteria set out in Sedwick’s opinion.

Kinney v. Holiday Companies, 3:07-cv-00147-RRB (D.Alaska Order of Apr. 23, 2008)

Ken Legacki of Anchorage represents the plaintiff.  Wendy Leukuma and William Evans of Dorsey & Whitney, also in Anchorage, represent the defendants.

Tim Dooley and Peter Partnow’s materials presented at the April 9th Employment Law Section meeting, entitled EMPLOYMENT LITIGATION IN ALASKA: FEDERAL COURT OR STATE COURT?  WHAT’S A LITIGATOR TO DO?, are available here.

The Senate yesterday defeated the bill to overturn the ruling in Ledbetter v. Goodyear Tire (2007), by failing to invoke cloture.  Senators Obama and Clinton voted Yea on cloture; Senators Stevens and Murkowski voted Nay on cloture.  Senator McCain did not vote, but expressed his disapproval of the underlying bill.

After a court trial in a Federal Tort Claims Act case, Judge Ralph Beistline has issued a Memorandum Decision finding that the government was not negligent.  Hazel  Crawford had complained that the Air Force had failed to maintain the sidewalk and curb outside the Base Exchange at Eielson Air Force Base southeast of Fairbanks, and that its negligence had caused her to fall and severely injure herself.  Beistline had earlier entered summary judgment for the government, but had been reversed by the 9th Circuit.  Now, on trial after remand, Beistline has found no negligence.

Beistline held:

The Court is also unable to conclude the height of the curb constituted a hidden danger against which the Government was required to warn. The curb, at the sight of the fall, was roughly 9 to 10 inches above the asphalt. While this might appear higher to some then normal, it is not in violation of any building or safety codes. The walkway appears, by the photographs, to be following the natural contour of the land and does not stand out as a dangerous condition. And of particular significance, no evidence was presented at trial of any falls or complaints about the area in question during the roughly 13 years that it existed prior to Plaintiff’s fall or at any time since. This, despite the fact that Plaintiff’s expert [forensic engineer Jay Richard Smith] described the walkway as a high traffic area.  The Government had no reason whatsoever to believe that a dangerous condition existed at this location.

The sidewalk itself, at the site of this incident, was not dangerous or in disrepair. The pock marks Plaintiff refers to in the concrete are typical of sidewalks throughout the state.

Crawford v. U. S., 2008 WL 1776948 (D.Alaska Apr. 17, 2008)

Crawford has moved for reconsideration.

Tim Cook of Anchorage represented the plaintiff.   Susan Lindquist, Anchorage AUSA, represented the government.

Kohring recusal:  Judge Sedwick’s recent order rejecting Victor Kohring’s motions for new trial and for recusal has been published at 2008 WL 1746700.

Opinion on rehearing in AirLog v. Throop:  The Alaska Supreme Court recently rejected plaintiffs’ motion for rehearing, and somewhat modified the opinion issued last December.  Lee Holen will do an analysis of the modified opinion.  (Disclosure: I represent the plaintiff class.)

Programming: Many thanks to Lee Holen for the last two weeks of blogging.  I hope she got the bug and will continue.

A Westours bus driver has lost the various wage issues that remained on remand after the Supreme Court’s earlier decision in Hallam v. Holland Am. Line, Inc., 27 P.3d 751 (Alaska 2001).

Law of the case: The Court (per C. J. Fabe) first held that Judge Michael Thompson was not obligated to follow Judge Larry Weeks’ earlier decision on pyramiding (more on that later).    While the “law of the case doctrine” is a matter of judicial policy that does not even constrain a judge to follow his or her earlier ruling, it is simply not even applicable when a new judge enters the case and re-examines a ruling by the previous judge.  Id. at 7.

Pyramiding:  If a non-exempt employee for a covered employer works a 9-8-8-8-8 workweek, is she or he entitled to two hours of OT (counting the 9th hour on the first day as 1 hour exceeding 8/day and 1 hour exceeding 40/week)?  The Corut rejected that “double counting” or “pyramiding” as contrary to the Labor Department’s longstanding interpretation, a declaration from the Alaska Legislature of its disagreement with the theory, case law elsewhere, and, most interesting, its own decision in an earlier unpublished opinion (see next).  The Court also rejected a contract claim asserting the same pyramiding theory.

Reliance on unpublished opinions: Three days before it issued this opinion, the Supreme Court issued Order No. 1654, amending Appellate Procedure Rule 214(d) to read: “[i]f a party believes . . . that an unpublished decision has persuasive value in relation to an issue in the case, and that there is no published opinion that would serve as well, the party may cite the unpublished opinion.”  See Op. at 8, n.20.

Late Payment damages:  The Court, finally, rejected Hallam’s claim for a Late Payment penalty under AS 23.05.140 because he hadn’t made a “demand.”  Rather than relying solely on AS 23.05.140(d), which expressly though left-handedly requires a demand, the Court stressed that Westours had a “regular established [and contractually spelled out] practice” of paying the missing wages (here, an end-of-season incentive bonus) on a day later than that required by the statute, and that deferment of a bonus payment “does not implicate the interests that the legislature sought to protect” in AS 23.05.140 (presumably,  keeping bread on the ex-employee’s table).

Hallam v. Holland America Line, Inc., Op. No. 6252 (Alaska Apr. 18, 2008)                                     

John Casperson and William DeVoe of Holmes Weddle in Seattle represented plaintiff Hallam.  Stephen Rummage and Eric Jenkins of Davis Wright in Anchorage represented Holland America, et al.

In what creates a split between the federal circuits,  a man who was fired after his fiance filed a discrimination charge against his employer was allowed to proceed with a suit for retaliation.  The 3rd, 4th, and 8th Circuits have decided to the contrary.  Thompson v. North American Stainless, ____F3rd___, No. 07-5040 (6th Circuit, March 31, 2008).

The plaintiff and his fiance were employees of North American Stainless, and their relationship was common knowledge at the company.  In Sept of 2002, the fiance filed an EEOC discrimination claim against Stainless.  Five months later, the EEOC gave the company notice of her charge.  Thompson was fired three weeks after that.  He sued, claiming he had been fired due to retaliation.  The U.S. District Court granted summary judgment for the employer, but in a 2 - 1 decision, the 6th Circuit reversed.

The court noted that a literal reading of TVII anti-retaliation language suggests it applies only to employees who engage in protected activity, but that such a reading would defeat the plain purpose of the law.  There is no doubt that an employer’s retaliation against a family member after the employee filed a charge with a commission would dissuade “reasonable workers” from filing such claims.  The 6th Circuit decision flows from Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), which broadened the standard under which employees can sue for workplace retaliation.  This definition of retaliation goes beyond demotions and discharges.  Any employer action against an employee who engages in protected activity that is “materially adverse” to the employee so as to discourage a reasonable individual from engaging in the activity can amount to retaliation. 

Management side attorneys believe the ruling is an improper application of  TVII and predict a flood of litigation; in fact, workplace retaliation claims have increased generally.  There was a dissent by Judge Richard Allen Griffin, who would have strictly interpreted TVII and accuses the majority of rewriting the law.  But the concept of associational retaliation, recognized by the 6th Circuit in this case, is an increasingly utilized concept in disability law, for example, where a parent with a disabled child may be treated differently.  And in ruling, the  court pointed out that of greater concern would be a holding to the contrary.  The decision urged by the employer would permit companies to retaliate with impugnity against employees who have filed charges by targetting their family members.  Further, the employee still bears the burden of proving a causal connection between the protected activity and the firing of the third person.

H/T Lawyers USA

In Hernandez v. City of Vancouver, Mark Tanninen, No. 06-35713, filed April 14, 2008, the Ninth Circuit issued a memorandum opinion reversing summary judgment for the employer.  Hernandez, a native and citizen of Mexico, asserted claims of disparate treatment, retaliation, and hostile work environment under 42 U.S.C. Sections 1981 and 1983.  He also alleged city officials conspired to cover up his discrimination claims in violation of section 1985(3).

First, the District Court finding that it lacked subject matter jurisdiction over Hernandez’s retaliation claim because it was not specifically alleged in Hernandez’s EEOC charges, was reversed.  The Ninth Circuit noted that the court’s subject matter jurisdiction extends over all allegations of discrimination that either fall within the scope of the EEOC’S actual investigation or reasonably could be expected to grow out of the charge of discrimination.  Josephs v. Pacific Bell, 443 F.3rd 1050, 1062 (9th Cir. 2006).  Hernandez’s retaliation claim had not materialized at the time of the EEOC complaint because the alleged retaliatory challenge had not yet taken place.  But it could reasonably have been expected to grow out of his charges of hostile environment, so the court had jurisdiction.

Moving on with the McDonnell Douglas analysis, the court engaged in a review of the prima facie case and reversed the trial court’s finding that the performance element of the p.f. case had been missing in Hernandez’s evidence.  (See entry from April 14, where the D.C. Circuit pointed out that whether the employee has met the p.f. case should not be an issue by the time of the summary judgment motion or trial, particularly where the other two stages of the McDonnel Douglas paradigm have been presented–the employer’s legitimate explanation for the action and the employee’s evidence of pretext–as they had been in Hernandez’s case.)  

Here, the Ninth Circuit reversed the trial court’s summary judgment in its entirety, finding questions of fact existed on all Hernandez’s claims.   Some of the evidence found sufficient to raise issues of fact (and ignored by the trial court) included uniformly positive job evaluations, co-worker affidavits stating Hernandez was scrutinized more closely due to his race, his forced transfer to avoid termination, disparate treatment between Hernandez and a Caucasian co-worker involved in the same incident, and anti-Hispanic racist remarks.  On the retaliation claim, the court held that temporal proximity between the protected activity and the adverse action was sufficient circumstantial evidence to allow the claim to go to trial.  Hernandez had filed a complaint in March of 2002, started receiving a series of verbal and written reprimands in June, and was transferred (the alleged adverse action) in December 2002. 

An Affidavit by Hernandez’s attorney was admitted, in particular two out of court statements that the employer challenged as hearsay.  The first was a conversation that the attorney had with the individual defendant in which Defendant Tanninen admitted that Hernandez was subjected to racial discrimination; this was allowed as a party admission pursuant to Fed. R. Evid. 801(d)(2)(A).  The second was a statement by a co-worker about racial insinuations he overheard,  which were admitted as evidence of the employer’s racially-tinged motives.

Much to my dismay, our illustrious blog administrator is traveling in Poland at the moment, and he left me in charge of the site.   I have not and could never live up to Will Schendel’s amazing blogging, and I am looking forward to his return, particulary since I just went through an office move while trying to blog now and then.

But my thoughts often turn to travel, and an interesting article about breaking away from the law office and practicing remotely can be found here.  I am not sure if Will is doing any work while he is gone, I hope not, but I am quite sure he is lurking on the blog! 

I recently spent about five weeks in Vietnam and Cambodia, and I want to do more of this “breaking away.”  I took off during December, when no one seems to practice law except in emergencies, and the first part of January.  I am lucky to have great staff to take care of things, and a lawyer who was willing to sign pleadings (mostly for extensions).  As a Christmas present, each staff person (of 2) got an extra week off, alternating during the time I was gone. 

All of the hotels I stayed in had computers and internet in the lobbies, so I was able to check in with the office two or three times a week, approve and edit pleadings and discovery, strategize with clients via email, and write a few letters; an added benefit was that for once, I kept a travel journal because it was so convenient.  Checking in now and then seemed a small price to pay to traveling for over a month.  On one occassion in Siem Reap, Cambodia, my hotel lost its internet connection  so I walked to a nearby cyber cafe and paid less than a dollar an hour for a computer with a very fast connection.  The article I referenced above gave me more ideas for making this breaking away thing a way of life and the practice of law!

H/T Findlaw, The Practice Paper