August 27, 2015

California Court of Appeals Awards Harassed City of Los Angeles Employee $3.2 Million

A California appellate court has ruled in favor of a white employee who suffered from discrimination by his Hispanic boss. The court ordered the City of Los Angeles to give James Duffy $3.2 million for the harassment he received from his supervisor, Abel Perez.

Retaliation%2032004699-001.jpgAccording to court records, Perez told Duffy that he hated Caucasians. Three of Duffy’s Hispanic coworkers related that Perez also told them that he was biased against white people. Additionally, the court determined that Perez harassed Duffy because he was disabled.

Duffy was a gardener for the city from 1991 until 2010. In 2001, Perez began regularly calling his partially disabled subordinate insulting names and making up reasons to write him up for poor performance.

In 2004, Duffy received a workplace injury that resulted in a traumatic brain injury. The injury caused speech and cognitive difficulties for Duffy, including difficulty thinking and repetitive speech. Perez took advantage of Duffy’s added disabilities, ramping up the abuse and even hiding the man’s tools so that Perez could discipline him for not completing his work. He also forbade other employees from coming to Duffy’s aid.

Although he was eventually investigated and transferred, Perez continued to be Duffy’s indirect supervisor and maintained control over his assignments. Perez assigned Duffy harsher working conditions and began driving past Duffy as the man worked, honking his vehicle’s horn and yelling insults.

Throughout the years of abuse, Duffy made report after report. However, the abuse was never stopped. Perez, who maintains his position with the city, denies Duffy’s claims and insists he has never been disciplined by the parks department.

In spite of Perez’ protestations, however, the original court found in Duffy’s favor. The City of Los Angeles appealed the large settlement, claiming that Duffy waived his right to sue when he accepted early retirement. The city also claimed that video testimony of Duffy’s fatally ill wife taken during her deposition was inadmissible because it was hearsay.

The appellate court dismissed the city’s claims as groundless and ordered it to pay the settlement. According to Duffy’s legal counsel, the case was unusual in the realm of employee harassment cases because of the wealth of direct evidence to prove Duffy’s claims.

The case is James Duffy v. City of Los Angeles, available HERE.

August 19, 2015

Des Moines School District Settles Former Superintendent Lawsuit

A lawsuit brought by a former superintendent against her school district has been settled. Nancy Sebring, who served as superintendent of Des Moines Public Schools, received a settlement from the district's insurer before the matter came trial.

Email%20%2081091615-001.jpgSebring had accepted a new job as superintendent of Omaha schools early in 2012, and was preparing to make the move when the Des Moines Register made an open records request. Officials from the Des Moines school district responded with emails that had been sent from Sebring's work email account. Among the missives were explicit emails Sebring had sent to her married lover.

The Register publicized the emails, and the resulting scandal caused Sebring to resign from her position in Des Moines months earlier than anticipated. Moreover, the job offer from Omaha disappeared. Sebring was left without a job.

She filed suit against the district. A judge gave the go-ahead for the matter to proceed when the district protested that Sebring's lawsuit was without grounds. In fact, the district felt that their actions were in line with the state's open records laws.

Lengthy depositions had already been taken, and the case was well on its way to its October trial date when the district's insurer decided that settlement made the most sense in this situation. Fearing years of litigation and appeals, the insurer made the decision to pay $350,000 to Sebring and her attorneys.

The fact that this case did not proceed to trial leaves a great number of questions unanswered. Would the court have concluded that Sebring was in the wrong for using a work email for personal matters? Perhaps the court would have decided in Sebring's favor, arguing that her employer should have known the devastating effect releasing these emails would have had on Sebring's reputation.

While the probable outcome of this litigation will remain speculative it nonetheless provides a helpful reminder about instituting smart work email account policies. Using a work email for private matters is virtually never a good idea whether in the private sector, and especially when employed in the public sector. Just ask Hillary Clinton!

Continue reading "Des Moines School District Settles Former Superintendent Lawsuit" »

August 6, 2015

Lawsuit 101: Understanding the Litigation Process

We regularly receive requests to explain the process of litigation, which we always communicate (using dialog NOT monologue) to prospective clients during our initial consultation. We hope you will find our lawsuit synopsis helpful. Feel free to forward it to others and remember to contact us with any questions about any business or employment lawsuit.

The litigation process generally involves four (4) phases. The length of each phase varies with the legal and factual complexities of each case.

DT%2019867194%20scale-001.jpgThe initial phase takes place before anything is filed in court. The attorney meets with the client to determine the facts of the claim being advanced by the client or the client's defense to a claim brought by another. In either case, it is essential that the client meet with the attorney at the earliest opportunity as valuable rights may be lost by delay. Once the attorney meets with the client, the attorney will review any documents relevant to the matter, research the applicable law and possibly speak to witnesses in order to chart a course which is in the best interest of the client.

The next phase involves the filing of an initial pleading in court. Typically, this is the filing of a Complaint or an Answer to a Complaint. The discovery process begins, which may include serving the other side with written questions, called Interrogatories, obtaining evidence which may be in the possession of the adversary or some other party and taking depositions, the oral questioning of parties and witnesses.

Once this phase has been completed, the case is ready to be tried. A trial may be in front of a Jury or a Judge and can vary in length depending upon the number of witnesses and quantity of exhibits offered. Under our system of jurisprudence, the plaintiff has the burden of proof. The plaintiff's case goes first. The defendant then has an opportunity to respond to the plaintiff's case with witnesses and evidence to support the defense. If the defendant has brought a Cross-Complaint, it is tried in the same manner. Otherwise, the plaintiff has an opportunity to put on a rebuttal case to counter the evidence offered by the defendant and, on occasion, a defendant may offer a sur-rebuttal to reply to the evidence offered by plaintiff in the rebuttal case.

The final phase of litigation involves the post-trial matters including motions to vacate or correct the judgment, appeals and efforts to collect on the judgment.

Continue reading "Lawsuit 101: Understanding the Litigation Process" »

July 31, 2015

AutoZone Sued by EEOC for Racial Classifying

The EEOC has sued AutoZone, a Fortune 500 company which employs some 65,000 people. At the center of the litigation is the firing of sales manager Kevin Stuckey.

AutoZone%20Logo-001.jpgStuckey, who is African-American, was employed at a Chicago AutoZone store in 2012. The EEOC alleges that AutoZone decided to institute a Hispanics only employment rule for that location because the neighborhood's predominate population was Hispanic and those customers might be more comfortable dealing with sales personnel of their own race. Accordingly, Stuckey was ordered to begin reporting to a different location in another part of Chicago. Stuckey refused the transfer, and AutoZone fired him.

In court, AutoZone argued that the EEOC did not have the necessary evidence to back up their allegations. Moreover, the retail giant says the EEOC has not proven that there was an adverse employment action.

The EEOC is relying upon the Civil Rights Act of 1964, Title VII of which makes it illegal to use race to segregate or classify employees. Attorneys for the EEOC argue that AutoZone's assertion that the decision to transfer Stuckey was based solely on sales figures and job performance is unsubstantiated. Although AutoZone claims that sales and performance were the only factors in the decision to transfer Stuckey, they have refused to produce the documents that would support this defense.

Statements allegedly made by Stuckey himself may undermine the EEOC's position. AutoZone produced a statement in which Stuckey claimed that he couldn't remember whether or not he had asked for a transfer to another location. Stuckey's testimony, and any supporting documentation produced by AutoZone, may seal the fate of this EEOC lawsuit.

This matter is still in its early stages. It's likely that both sides will demand to review pertinent documents and seek to depose several witnesses. The judge appointed to the case has already ordered that AutoZone must provide a list of all employees working at the two stores in question. AutoZone is also required to detail any transfer details for all of these employees. However, the judge denied the EEOC request to review compensation records for managers at both locations.

July 17, 2015

US Court of Appeals Court Reverses NLRB Ruling RE: AT&T

In a ruling that businesses are sure to welcome, a court has ruled that employers can prevent employees from wearing clothing that criticizes the company.

T%20Shirt%20Question%20Mark%2050357862-001.jpgA Washington, D.C., federal appeals court reversed the National Labor Relations Board (NLRB) 2011 ruling that AT&T was wrong to discipline employees who wore anti-AT&T shirts to service calls in customers' homes.

Originally, the NLRB ruled that the employees’ right to wear the shirts outweighed AT&T’s right to protect its reputation. The ruling tied the hands of employers to manage their own reputations in crucial ways. For example, under the ruling, employees who dealt directly with the public could express their dissatisfaction with management through messages on their clothing. Additionally, employers could no longer prohibit union messages on employees’ apparel.

However, the appeals court disagreed, citing the need for common sense in legal decisions. The recent decision pointed out that banning union messages has always been allowed when the messages can reasonably be expected to damage customer relationships or the company’s image.

In the AT&T case, the company disciplined service technicians for wearing shirts that identified them as prisoners of AT&T, even bearing an inmate number on the front. The NLRB ruling found that AT&T failed to show enough evidence that the shirts damaged the company’s relationships with customers.

The appeals court sided with the lone dissenting member of the NLRB, agreeing that it was unreasonable to require AT&T to prove actual harm from the shirts. Additionally, it ruled that the banned shirt was different from other casual shirts that the company permitted. The court also agreed that a shirt that looked from the front like a prison-issued garment was particularly inappropriate in a community that had recently experienced a violent home invasion by an escaped prisoner.

The new ruling is a step in the right direction, but employers should be cautious about managing employee clothing. The NLRB has ignored circuit court rulings that opposed them in the past. Until the Supreme Court weighs in on the matter, employers who choose to lock horns with the NBLR should be prepared to take their battle to court.

Continue reading "US Court of Appeals Court Reverses NLRB Ruling RE: AT&T" »

July 10, 2015

EEOC Issues New Enforcement Guidance on Pregnancy Discrimination

A U.S. Supreme Court decision made in March 2015 has led the EEOC to issue a new enforcement guidance with respect to pregnancy discrimination. The amendments may impact employers going forward, and it's best to be aware of the changes now in order to avoid possible future complaints that could lead to lawsuits.

Pregnant%20at%20work%202822222%20%282%29.jpgPart-time worker Peggy Young sued UPS, her employer, for not providing her with reasonable accommodations in relation to her pregnancy. Her doctor wanted her to follow certain lifting restrictions. Young asserted that other workers who had been injured received accommodations similar to those she was requesting, such as light duty, but that she was denied. Her case was decided via summary judgment by a lower court, so Young took the matter to the U.S. Supreme Court. The justices ruled that UPS had committed discrimination against Young because of her pregnancy. Accordingly, the summary judgment was vacated and the case continues on.

The EEOC felt it would be beneficial to issue a new enforcement guidance on pregnancy discrimination. Much of the document remains unchanged since the July 2014 update, which was the first revision to have been made in 30 years. The amendments relate to the treatment of workers who are pregnant and include a portion that addresses light duty work for such employees.

The changes are relatively minimal and leave much of the July 2014 revision unedited. For instance, there is no change on the stance about the illegality of firing or refusing to hire someone because they are pregnant and forced leave policies are still prohibited. Similarly, employers are still required to treat both male and female employees equally when considering parental leave.

Keeping up with EEOC changes is important for human resources personnel and for anyone within an organization who may make employment related decisions. A single misstep can have serious consequences, exposing an organization to long, costly litigation that may damage its reputation. Supervisors and managers may want to consult with an employment attorney regarding these EEOC updates to ensure that they are fully understood before being confronted by these issues in the workplace.

July 1, 2015

Happy 4th of July

Fireworks%2039914849-001.jpgThe team at Sylvester, Oppenheim & Linde and wish all of our Clients, friends, business associates and blog readers a very safe and extremely fun 4th of July Holiday!

In observance of Independence Day our office will be closed Friday July 3rd.

Enjoy your holiday, stay cool and keep your pets indoors!

June 26, 2015

Ohio School District and Family Settle Bullying Lawsuit

A lawsuit filed by an Ohio family on behalf of their bullied daughter has been settled. The family sued the Green Local School District in 2011, alleging that their daughter had been systematically bullied over the course of years at school.

Bully%20Stop%20Violence%2053127538-001.jpgThe 2011 complaint alleges that the student suffered abuse that included epithets like "dirty Jew" and being knocked into the lockers. Allegations of shoving, tripping and kicking are also made in the complaint. Other incidents involved a stabbing with a pencil and the creation of a hate-filled Facebook page. Two students in the district also created a kill list that prominently featured the victim's name.

The student's parents took their concerns to various school officials. Working their way up the chain of responsibility, they eventually became aware that the district was unlikely to take any real action on the case. The district had an anti-bullying policy, but the attorney for the family says that they seemed to have problems actually taking action when the policy was violated. Attorney Ken Meyers asserted that students caught bullying were only given the lightest of penalties.

The family felt that they weren't truly being heard. They pulled the student from her school and filed a lawsuit. After three years of fighting the lawsuit the district finally agreed to pay a settlement of half a million dollars. The money will be jointly provided by the school district and their insurer.

A statement from the school district announced the settlement, commenting that they "are pleased the lawsuit is now behind" them. It goes on to say that "the Board of Education condemns bullying without reservation," and that students are encouraged to report instances of bullying to administrators. Nonetheless, the district must submit to a U.S. Department of Education review of its policies as a part of the settlement. They have also agreed that teachers will receive enhanced response training.

It's always disappointing when cases like these can't be resolved in the initial stages. It's an expensive lesson for this school district, but hopefully they will be better equipped to respond to future instances of bullying.

Continue reading "Ohio School District and Family Settle Bullying Lawsuit " »

June 19, 2015

Will Lawsuits Force Uber and Lyft to Reclassify Drivers as Employees?

Thousands of consumers across the country have benefited from the ride services provided by companies like Uber and Lyft. They love the convenience and affordability of using these companies for their transportation needs. The arrangement is beneficial for the people who choose to be drivers as well. Their work hours are flexible, and they are free to work as much or as little as they like.

Driver%20Uber%2013410617-001.jpgUber and Lyft categorize their drivers as independent contractors rather than employees. Essentially, these companies see themselves as a conduit between customers who need transportation and drivers who are willing to offer them a ride. They don't dictate the hours that a driver works, nor do they specify how drivers must dress or what type of car they drive.

This is an attractive business model for many technology-driven, app based start-up companies. These organizations may have few assets, and classifying workers as independent contractors relieves them of the responsibility to make Social Security contributions, carry unemployment and worker's compensation insurance and pay for employee expenses like gas and maintenance.

Some Uber and Lyft drivers are banding together to demand that they be reclassified as employees. They have filed lawsuits that are aimed at achieving this goal, which would force the companies to bear considerable expenses. The expenses are so sizable that some analysts say that the businesses would simply have to fold if the courts find in favor of the plaintiffs. In essence, Uber and Lyft would have to pay enormous fines for the misclassification of employees. Additionally, they would be responsible for paying employees a minimum wage and overtime.

Proponents of the shared economy model say that the laws being applied to it are simply outdated. Because no laws currently speak specifically to regulation of peer-to-peer services and whether workers should be employees or independent contractors it's virtually impossible to make a fair and legally just conclusion.

UPDATE: Since publishing this post, a California Labor Commissioner has ruled that at least one Uber driver should be classified as an employee (WSJ article). Labor Commissioner rulings such as this rarely have any influence in lawsuits like the ones currently in front of two federal judges.

June 11, 2015

Parents, Student Sue District Over Prayers at School Events

A question regarding whether or not prayer is appropriate in public schools has led to a lawsuit in Indiana. Jim and Nicole Bellar, along with their son who is identified as J.B., filed the lawsuit in the U.S. District Court in Hammond. The complaint alleges that the school violates the First Amendment rights of J.B. and other students by praying before various events.

team%20huddle.pray%2011360771-001.jpgJ.B. is a sophomore at River Forest Jr./Sr. High School in Hammond. The school is administrated by the River Forest Community School Corp., and prayers are allegedly a regular practice at school events. The Bellars say that J.B. has been forced to pray before participating in various sporting events. Prayers were also conducted at the graduation ceremony where J.B.'s older sister was graduated last year. The Bellars regularly attend the school district's board meetings, and prayers are said before each session.

According to the Bellars the prayers all invoke God or Jesus Christ and are decisively Christian in nature. J.B. complained to his football coach about being asked to pray before games. The student was told to simply stay quiet during the prayers and was also instructed that he had to remained huddled with his teammates.

When that protest fell on deaf ears, J.B. and his father went to the district's athletics director. Eventually they took their complaint to the principal and district leaders, all to no avail. At one point J.B. was told by administrators that he should improve his cooperation with the requests of his coaches.

The Indiana ACLU stepped in to assist the Bellar's quest. While administrators turned a blind eye to the requests of the Bellar family to discontinue the prayers, it is unlikely that they can similarly ignore a lawsuit in the U.S. District Court.

If the Bellars prevail with the lawsuit, then the school district will be forced to give up its practice of holding prayers before events. They may also be asked to pay nominal damages and compensatory damages to the plaintiffs. As ACLU attorney Gavin Rose says, the prayers "represent a serious and flagrant affront to the First Amendment."

June 5, 2015

We are Always Looking for One or Two More Good Clients . . . Even When Business is Great

One of the questions I hear frequently is about whether we are accepting new clients.

While the short answer is “Yes”, here is some additional information which many people find interesting.

Great%20Fit%20Gears%2039896521-001.jpgOur law firm, Sylvester Oppenheim & Linde is committed to client service and quality legal representation for each and every client. That means that we only accept clients who we feel are a good match for our expertise, experience and areas of practice.

I learned a long time ago that we can’t be all things to all clients, but we can be all things to some clients: and those are the ones we welcome and serve in an exemplary manner.

The purpose of this blog is to provide helpful information to anyone who reads it. On our website, you will find another example of our “Be of Service” attitude by reading our Home Page Article “Eleven Questions to ask BEFORE Hiring a Business Attorney”. You will also find a list of our practice areas on that page.

Our clients tell us that they appreciate our honesty, accessibility and guidance. And we appreciate our clients.

Back to the question. The answer is: “Yes, we are always looking for one or two new good clients.” If you have a legal issue, I invite you to call and let’s find out whether we are a great fit for each other. I can be reached at 818-461-8500 or via the Contact form on this page.

Richard Oppenheim

May 29, 2015

Compton Unified School District Challenged to Improve Educational Access

Public schools that are located in disadvantaged neighborhoods must deal with a complex problem every day. A number of their students is affected by trauma. Often this trauma is the result of being the victim of violence or witnessing violence. Sometimes the student is dealing with overwhelming poverty and unstable living conditions. Some must cope when a parent becomes incarcerated or passes away.

Psychology%20Brain%2081318172-001.jpgOne of the outcomes of this trauma is poor academic performance. Students who suffer this "complex trauma" have much greater chances of being suspended. Their grades are poor, and their attendance is spotty. Many of them never graduate. Some of them go directly from school into the jail system.

A recent lawsuit filed against the Compton Unified School District seeks to address these issues. The complaint argues that these students are suffering from complex trauma, which should be recognized as a disability. They cite evidence that children who live with trauma show different physical development in their brains and bodies as a result of this trauma. Thus, they should be considered a protected class.

Many of the children who experience trauma have behavioral problems or are overwhelmed by the conditions in which they live. The lawsuit argues that Compton Unified has not attempted to provide adequate accommodation for these students. It points out that students with obvious physical disabilities are given accommodations to make learning possible for them, and that students dealing with trauma should be similarly treated.

This lawsuit is just beginning. It seems clear that winning it will require a great deal of effort. While recognizing that the problem exists is an important first step, Compton Unified would have to come up with a comprehensive program to improve academic access for these children. The lawsuit suggests that the school district should provide mental health support for these students. Moreover, staff members should receive training that enables them to recognize trauma and deal effectively with it. A shift away from punishment for issues caused by trauma is also suggested.

Time will tell if Compton Unified will begin treating students affected by trauma as a protected class.