When to Sue Your Employer

Why would you file a suit for discrimination or harassment at work? You're a peace loving person who just wants to do his or her job, and go home to enjoy the family. Besides, you ask yourself, how can I prove it?

There are three reasons to file a case for discrimination:

1) Your efforts to enter an early dialogue and resolution of your employment grievances have reached an impasse despite your best efforts to be transparent and reasonable;

2) You know the company treated you unfairly in deciding to let you go, and you strongly suspect, even if you cannot put your finger on it, that it was because you were an older worker, or that you took some time off for a serious health condition, or because you weren't a member of the "old boys" club.

3) You have obtained expert legal counsel who informed you of the strengths and weaknesses of your case, giving it to you straight. Your questions about financial costs, and risks of losing were answered forthrightly, and you're ready to make the investment.

This third reason includes an assessment of just what you have to prove in a discrimination case. The fine point here is this: indirect and circumstantial proof is sufficient. In other words, extracting an admission, or obtaining a private email or memo stating a discriminatory motive in firing someone is not a requirement of the case.

The reason is practical: discrimination is seldom a moment of pride for an employer. The manager who makes the discriminatory decision is likely unaware of his or her own bias, or is very hesitant to admit it to himself or anyone else. The sparsity of direct evidence means that many real cases of discrimination would never be presented or proven, and therefore discrimination at work would go unchecked.

As a result, the courts have designed the following basic elements of a discrimination case: a) that you are in a "protected" category; b) that you were performing your work satisfactorily; c) that there was remaining work for you to perform; d) that someone outside your "protected category" assumed your job responsibilities, and d) that you have suffered financial and/or emotional injury as a result.

It's that simple, and that incomplete. The burden of proof has been met, but the employer may overcome that proof with evidence of its own that the reason for termination was business necessity. That burden is fairly easy to meet.

The game-changer in the trial of a discrimination case is to prove that the reason is not only a lie, but likely a lie intended to cover-up a discriminatory motive. Are we back where we started with a requirement of direct proof? No. Only some additional corroborative evidence of discrimination is needed. For example, a manager may have made an off-handed comment that "Bob, you seem to be slowing down. When will you be retiring?" or maybe there is an email that refers to the need to recruit new youthful energy into the organization. These are not "direct" statements, but they are relevant to the question of discrimination, and courts have so held.

To conclude, you would file a lawsuit if your employer is stubborn in refusing to settle despite the uncertainty of "circumstantial proof" you or your attorney presents informally in an effort to reach an early settlement. As the case progresses, witnesses are interrogated, and documents collected, the employer may awaken to the risk of a significant verdict it could have avoided early in the process by listening to reason.

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Questions to Ask Your Employment Lawyer and Yourself About Your Case.

Question One: How many employment law cases have to your tried to completion?

Question Two: What systems do you have in place to manage my case?

Question Three: How active are you in professional organizations?

These are difficult questions perhaps, but with a little preface to the questions, they will seem perfectly reasonable: "I am a lay person. I am trying to select the most qualified and trustworthy advocate. May I ask a several questions about your background?"

Good lawyers will graciously and generously answer your questions. If you do not get that reception, it's best to look for another employment law practitioner. But there are also three questions you may find useful to ask yourself after your meeting with your lawyer candidate:

Question 1: Did I feel a positive, confidence inspiring connection with this person?

Question 2: Did I feel I was heard, and that he or she got the essential points?

Question 3: Did I leave feeling I understood the big picture of what this attorney would do for me, how, and when?

You don't have to like your lawyer to obtain good results, but it will make the process easier because you'll be working as a team. This "team" approach to the case is especially true in contingency cases where you and the lawyer each have a percentage stake in the outcome. A good lawyer will want that team spirit and connection as much as you. Here are three questions that your should ask both you and your lawyer before you go forward:

Question 1: Do we communicate clearly and efficiently with one another?

Question 2: Can we laugh and relax even as we discuss difficult legal issues?

Question 3: Do we exchange ideas and insights about the case freely?

These "team" based answers will give you a preview of how you and your lawyer will respond when there is an unexpected negative turn in the case (and there always is.) For example, what if the other attorney uses intimidation tactics, or a particular piece of evidence is excluded, or a critical motion is denied, or perhaps a cooperative witness disappears or changes his anticipated testimony? You need to work together at those times to develop new approaches in the heat of the situation.

Here are 3 final questions, perhaps questions at the highest level of evaluation:

Question 1: Is my lawyer able to tell the emotional story of my case?

Question 2: Is my lawyer able to connect well with other people, especially people likely to be on a jury, or sitting as judge of my case?

Question 3: Is my lawyer creative, looking for tactics and approaches that may seem unusual, but that give us an edge against the opposition?

There are no perfect lawyers, just as you will not be the perfect client with the perfect case. Your goal is to find the best imperfect lawyer you can, and to be able to work with both the strengths and weaknesses of both him or her, and your particular case.

Frank Pray has devoted the last 18 years of his nearly 40 years of practice to litigating cases exclusively for employees in wrongful termination, discrimination, whistle-blower, harassment, and wage/hour cases.  As a sole practitioner, he gives his personal attention to each client, from the first meeting to the settlement or verdict.  He is an experienced trial and arbitration lawyer, and active member of the Orange County Bar Association Labor and Employment Section [2011 Section Chair].  He is also a member of the William P. Gray Inn of Court, dedicated to excellence and ethics in the practice of law, and a member of the Orange County Bar Association "Masters Division" and Solo Practitioners Section. 


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NINE BLACK ROBED MEN AND WOMEN SHARE THEIR THOUGHTS ON "CLOTHING."

To Be Paid, Or Not to Be Paid, That is the Question:  Supreme Court Wrestles With Clothing to Reach the Naked Truth.  Sandifer v. U.S. Steel Corp. (2014) 2014 DJDAR 1024.

My first thought about this U.S. Supreme Court case:  We filter out the best legal talent for high office to decide what the word “clothing” means?

Frankly, I’m inclined to write a ditty about “donning and doffing” – words so often repeated by these noble jurists that you would think the terms to have mystical significance, perhaps reaching to the level of “these penumbral rights” used by Justice Douglas in Griswold vs. Connecticut (1965) 381 U.S. 479. 

Instead of the weighty issue of whether a Planned Parenthood defendant could be prosecuted for providing contraceptives to a married couple, the issue in the recent case of Sandifer v. U.S. Steel Corp. (2014) 2014 DJDAR 1024, was the question of just what is “clothing?”  Perhaps it is like defining “the absence of clothing,” and we can say that we can know what it is by understanding what it is not.  In this way, Justice Potter Stewart to described his threshold test for obscenity in Jacobellis v. Ohio (1964) by writing famously:  “I know it when I see it.” 

Much of the business that occupies these great nine minds is the interpretation of federal statutes.  Sandifer is a look into the naked truth:  Supreme Court justices too have mundane daily work tasks that require their attention – in this case, does “donning and doffing” of work equipment qualify as “changing clothes” under Section 203(o) of the Fair Labor and Standards Act?  For those who care, the Court held that they and their lesser colleagues of the District Courts, need not spend precious juristic thought sorting out the time inserting an ear plug versus the donning of a shirt.  If the equipment was a minor part of the major time taken to “don and doff” then it was all to be treated as “clothing” under the Act.  Thus, these employees were not to be paid for getting dressed (or undressed) for work. 

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“I Come to Bury This Employee, Not to Praise Him.

In employment discrimination cases, employers, like Marc Antony, come not to praise the employee, but to bury him. Unlike Antony, they mean it.  The employer’s oration might go like this, as taken from Scene II, in “Julius Caesar:”

Your Honor, Jurors, and Plaintiff’s counsel, lend me your ears;

I come to bury this Employee, not to praise him.The evil that men do lives after them;The good is oft interred with their bones;So let it be with this Employee. The noble Plaintiff’s counselHath told you this Employee was ambitious:If it were so, it was a grievous fault,And grievously hath the Employee answer'd it.Here, under leave of the Plaintiff’s Attorney and the rest--For Plaintiff’s Counsel is an honourable man;So are they all, all honourable men--Come I to speak against this Employee’s case for wrongful termination.He was my client’s worst nightmare, unfaithful and unjust to my client, but:But the Plaintiff’s counsel says he was ambitious;And Plaintiff’s counsel is an honourable man.Plaintiff’s counsel hath won many cases and brought home the spoils,Whose ransoms did the his own bank account fill:Does this same intent to enrich the present Plaintiff seem ambitious?When that my client’s managers have cried in frustration, this Plaintiff laughed.
Yet the Plaintiff’s attorney says the Plaintiff was ambitious;
And the Plaintiff’s attorney is an honourable man.
You all did see that on the Lupercal
My client presented him warnings, and a performance improvement plan,
Which he did thrice refuse: was this ambition?
Yet the Plaintiff’s attorney says he was ambitious;
And, the Plaintiff’s attorney, he is an honourable man.
I speak not to disprove what Plaintiff’s counsel spoke,
But here I am to speak what I do know.
My client did love the Plaintiff once, not without cause:
What cause withholds you then, to vote for him?  I will tell you!
O judgment!  Give my client judgment, for truth has fled to brutish beasts,
And give us jurors who have not lost their reason. Bear with me;
My heart is there with my client, the employer,
And I must pause till it come back to me.

Good work should be made of sterner stuff:

An employee’s performance, like a new lover, is first seen unblemished, and flaws are but charming accouterments, until the day a new supervisor or manager enters the picture with a bias to grind.  Then those little omissions, those slight deviations, that accidental entry, are the mountain peaks of error, rising like the Tetons. All to this purpose: to establish that the victim deserved what she got:  she was incompetent, defective in the extreme, unworthy of her job.  Certainly, no discrimination was at play.

Which brings us to the case of Cheal v. El Camino Hospital (Jan. 31, 2014) 2014 DJDAR 1331 (6^th App. District – Santa Clara County).  I cite this case because it reveals the world of Summary Judgment in discrimination cases, and because it reveals the heavy hand of some trial judges unwilling to clear the smoke of a “thousand insults” thrown at the employee in the moving papers.  The Cheal court described this “smoke” as “the deluge of statements, counterstatements and objections, that mark modern summary judgment practice.” 

Cheal is a droning of details deep into the daily work performance of a hospital dietician, or “menu tech” whose job was to prepare daily menus for hospital patients in compliance with doctor orders.  The Defendant filed 77 alleged “undisputed statements of fact” to support its motion of summary judgment, most of them going to Cheal’s work deficiencies.  The Court of Appeal, God bless them, somehow found the time and interest, to wade through these, and to then examine the merits of each against the “triable issue of fact” standard.  Most of the decision is written as a microscopic account of how Cheal put the truth of Defendant’s performance charges in issue. 

Here is what is useful to the employee from this decision (as well as instructive to the Defendant Employer bringing the motion):

    Proof that the Plaintiff’s work performance was not satisfactory to the employer is not the relevant question or standard.  [For surely, the employer in its motion will always “beg the question” that the performance was not satisfactory.]  The question is:  what level of competence did the employer truly require as the operating standard for all employees?  The related secondary question is:  what level of performance relative to this standard did the employee actually provide? 

2.     A smart employee’s attorney opposing the motion will obtain evidence that other employees in like circumstances committed a higher rate of error, but were not disciplined in like manner AND that these “favored” employees were outside Plaintiff’s “protected category.” 

3.     The employee must attack the Defendant’s “smoke screen” of “counselings” and “coachings” for what they often are:  casual remarks made in passing that no reasonable employee would consider a criticism or warning.  Further, the Cheal Court cited evidence that the “coaching” was presented in the MSJ as disciplinary action when there was no evidence to support that the infraction incurred as charged. 

4.     It is critical that in the MSJ, and of course, at the time of the employer-employee disciplinary exchange itself, the employee expose the lack of truth behind the performance criticism.  The Cheal court relied heavily in its decision on rebuttal evidence that the infraction did not occur or was not as severe as represented in the moving papers.  For example, one contention was that Plaintiff erroneously failed to stamp a patient’s menu sheet as “pudding thick” with the result that the patient received food that was “honey thick.”  Surrounding this issue was a complex web of other issues:  a) why did the employer not have a stamp for “pudding thick,” if the employer thought the designation so critical; b) the defendant’s manager relied on statements by a speech therapist who informed her that the patient had been fed “honey thick” over 3 days, but when deposed, the speech therapist denied making that statement; c) there was evidence that the error was committed not by the plaintiff, but by another employee; and d) that the error was not attributable to any fault of the Plaintiff who did not have the opportunity to check the accuracy of the other employee’s work. 

Just summarizing this single factual dispute on the matter of “cause to terminate” is mind-numbing, and frankly boring.  Part of me wants to scream “who cares?” The answer is:  the Court of Appeal cares, then so must the Plaintiff and the Plaintiff’s attorney.  The Cheal Court devoted pages of detailed recitation of the evidence for this issue, as well as 3 other similar detailed and complex clusters of factual dispute concerning “performance competency.” 

5.     The Cheal court raised an important point of evidence where the decision maker utters a hearsay statement to a co-worker or friend indicative of bias:  the statement may be admissible as a “declaration against interest,” where the “interest” in question is the risk of losing one’s employment if the employer learns that a manager harbors such discriminatory attitudes.  In this case, Cheal’s manager said to a friend (turned Plaintiff’s witness) over a private dinner that the manager favored younger, pregnant women.  Cheal was neither younger, nor pregnant.  Hence, the statement was useful, but subject to Defendant’s objection in the MSJ as hearsay.  The Plaintiff sought to have the statement to be a “party admission” because authorized by the Company, or on the basis of Evidence Code Section 1224 [a vicarious admission].  The Cheal court rejected these approaches, and independently found that the statement was admissible because the manager made the statement knowing the statement put her employment at risk.  Therefore Evidence Code Section 1230 [“declaration against interest”] applied as an exception to the hearsay rule.  This is the first case to make such an evidentiary holding in California.  It will be a useful tool for Plaintiff’s attorneys’ in future Summary Judgment motions. 

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RETHINK: ARE YOU YOUR JOB?

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Imagine: Greater Productivity With Less Stress

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Ebenezer Scrooge Is Rebuked, and Tiny Tim Gets His Referral Fees.

In a battle over one-third of $13.5 million, let the gamesmanship begin. Two Orange County law firms were engaged in a battle to share class action attorney fees. The battle was between the referring class-action attorney and the prosecuting class-action attorneys.   The key rules of the gamesmanship were: 1) Rule of Professional Conduct 2-200 and 2) Rule of Court 3.769.

Rule 2-200 requires that an attorney  to provide full disclosure to his client  of any proposed fee sharing agreement and  that he obtain his client’s  prior written consent for the fee splitting.   Rule 3.769 requires that as part of a class action settlement, the trial court, in order to award attorneys fees, must be provided with the full retainer agreement between the attorney and the class.

In the case of a class action, the named class representives ordinarily would sign the Rule 2-200 fee splitting agreement on behalf of the class.  In this case,  matters became complicated when the referring attorney settled a separate individual whistleblower case against the same employer-defendant named in the class action.  The referring attorney as part of the settlement of the separate individual whistleblower case agreed to confidentiality of all matters learned in the individual litigation. 

Now the class-action attorney, after several years of assuring the referring attorney that the referral fee was to be paid, asserted that a fee arrangement with the referring attorney would risk creating a “conflict of interest” between the attorneys and the class clients.  That is, presumably, the defendant employer would assert that the class attorneys should be disqualified from representing the class because they were in violation of the confidentiality agreement of the referring attorney. 

  

The exact nature of the conflict is not spelled out in the Court of Appeal decision, but the confidentiality clause was prospective only, that is, information shared with the class action attorneys by the individual plaintiff attorney before the settlement could not be the basis for a conflict of interest.

This latter point is of some relevance because it tended to show that the class-action attorneys were using a bogus reason to lock out the referring attorneys claim for fees. The tactic used by the class-action attorneys was to  dismiss the originally filed class-action which used the names of the class representatives  provided by the referring attorney.  The class-action attorneys then refiled the class-action using the names of different class-action representatives, hoping thereby to defeat the referring attorneys lien for fees.

The class action attorneys' ploy was simply this: there can be no referral fee paid because there was no signed agreement to split fees as required by rule 2-200. Consequence: the class-action attorneys were roughly  $4 million richer. One wonders if this diligent assertion  of Rule 2-200 was motivated by a noble desire to comply with the high purposes of Rule 2-200 to protect the public from conflicts of interest, or, was simple old-fashioned greed?

 The Court of Appeal, Justices Rylaarsdam, Aronson, and newly appointed Presiding Justice Ikola unanimously held for the referring attorney.   The Justices basically recognized that the procedural tactics of the class-action attorneys had unjustly prevented the referring attorney from notifying the court of its fee sharing arrangement. The court found that the reason the contract was not signed was due simply to switching class-action representatives. The Court of Appeal noted that this kind of “bait and switch” tactic would discourage class-action referrals, and that would be harmful to the public. That is, attorneys should be encouraged to refer cases to specialists within various areas of law.   The Court stated that class-action attorneys cannot wield Rule 2-200 as a sword to obtain unjust enrichment. 

 I am personally happy with this Court of Appeal ruling.  In my opinion, the Court simply refused to allow an ethical rule to be used for unethical purposes.

For the full decision, see:  Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler 2012 DJDAR16991 [Filed Dec. 19, 2012]



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Making Space for Creativity in the Practice of Law

My experience with the "Creativity Crash Course" at the Stanford Online has motivated me to make some changes in my law office environment: 1) converted my entire hardware and software to Mac, 2) shifted to cloud based backup, and shfited to a fully wireless network 3) have gone fully paperless, 4) use wireless dictation and Dragon transcription, 4) dumped my rectangular desk and all file cabinets for a single round desk and a stand up laptop work station, and 5) added new artwork that communicates calm and "openness." The overall idea: greater productivity through more physical and emotional space and an invitation to collaborate and "move" while working.
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