Thursday, November 12, 2009

Paper Weight Trumps Weight of the Evidence???

That expression "couldn't see the forest for the trees" assumed new meaning in a recent blockbuster case, Nazir v. United Airlines (2009 Cal.App. LEXIS 1659). The meaning might be that the forest was ravished by the paper tonnage needed to support the exchange of court filings in the case.

Ah...text and sub-text. First the text: A Motion for Summary Judgment by the Employer to obtain "summary adjudication" (Trial by Paper) of issues raised by the employee: discrimination, retaliation, and intentional infliction of emotional distress. The Trial Court granted the motion. So far, nothing unusual.

Except . . . a bulldog plaintiff's attorney appealed, and the resulting "subtext" was anything but usual. The Court of Appeal excoriated the defense firm, and particularly the defense attorney who had been admonished for similar behavior before. ("excoriated": to be taken to the wood shed). The Court of Appeal had little nice to say about the Trial Court for that matter, pointing out that its blanket sustaining of 763 of 764 evidentiary objections by the Defendant, viewed together with its overruling of all of the employee's 47 objections had, well, the appearance of, shall I say it, bias. Here's some interesting data cited by the Court that should bring all tree huggers to the front lines: The employer's motion consisted of 1056 pages, including 196 pages of "separate statement", while the employee's opposition was about 3,000 pages long! The employee's opposition included a "separate statement" of 1894 pages. What does all this mean? Not much, stated the Court of Appeal, because the content was largely trivial and unrelated to the core issues of the case. What disturbed the Court of Appeal was that "looking at the forest", basic issues of discrimination and retaliation are not susceptible to determination by paper war.

Therein is the value of the case for employees. The lengthy decision is replete with language that discourages the granting of summary judgment in discrimination and retaliation cases. The Court of Appeal affirmed procedural safeguards for the employee who might otherwise have to hire his own team of loggers to produce an opposing mountain of paper.

As Shakespeare noted, and I think the Nazir Court would join: "Brevity is the soul of wit".

"If the pink slip doesn't fit,
get redressed!"
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Tuesday, November 10, 2009

Dear Union: "Do me no favors!"

Dear Union: "Do me no favors!" Unions that explicitly include discrimination in their list of covered disputes to be resolved by Arbitration clauses found in their collective bargaining agreements are not necessarily helping their membership. The reality is that weak unions fail to carry the cases of their membership through the grievance exhaustion process necessary to get to arbitration, with the result that major rights are lost. The Supreme Court has rather dismissively stated that the employee who thus loses his rights against the employer can then pursue a "Failure of Duty of Fair Representation" against the Union. This cause of action is virtually non-existent for a number of reasons, one of which is the high standard of proof imposed on the employee, and the other is the lack of an attorney fees provision for the prevailing employee. If you are a Union employee, and realize how lax your Union generally is in "fighting back", discourage your Union leadership from including discrimination in its list of violations included within the scope of your collective bargaining agreement.

To read more about the recent U.S. Supreme Court case on this point: