THE NEW YORK EMPLOYEE ADVOCATE Nelanational Employment Lawyers Association/New York • Advocates for Employee Rights

THE NEW YORK EMPLOYEE ADVOCATE NELANational Employment Lawyers Association/New York • Advocates for Employee Rights

VOLUME 10, NO. 1 March/April 2000 Jonathan Ben-Asher, Editor

Issue Spotting: Supreme Court Hears Arguments on Avoiding the Standard for Proving Employment Bias

“Doorknob The Supreme Court heard oral argu- together with the plaintiff’s prima facie Syndrome” ment last month in a closely-watched case case, should be enough to get a plaintiff which may settle crucial questions about to a jury. Reeves also contended that the by William D. Frumkin, Esq. proving employment discrimination under Court of Appeals acted improperly by federal law. The argument appeared to reviewing the jury’s finding de novo; In my prior career as a psychi- have gone well for the cause of employ- instead, the court should have only con- atric social worker, I frequently ee rights in Reeves v. Sanderson Plumb- sidered the non-moving party’s evidence. encountered the following syn- ing Products, Inc. No. 99-536 (March The argument was extended and live- drome during the course of psy- 21, 2000). NELA National and many ly. As recounted by NELA member Eric chotherapeutic treatment: a patient other civil rights organizations filed ami- Schnapper, who was one of the co-authors would spend an entire therapy ses- cus briefs in the case. of plaintiff’s brief, Reeves’counsel James sion discussing trivial matters such As reported last issue, Reeves presents Wade had tremendous command of the as the weather or sports, but just the issue of the proper standard for over- evidence and trial record, and “completely prior to the end of the session would turning jury verdicts under the ADEA — charmed” the Court. Wade insisted that provide critically important/ground and, by extension, other federal laws pro- a jury hearing the evidence is in the best breaking information. By that point, hibiting job discrimination. The plaintiff position to evaluate it and to determine there was no time to explore it fur- had prevailed in the District Court and if discrimination was a factor in the ter- ther. This untimely circumstance had successfully resisted defendant’s mination. has become known as the “Door- motion for JNOV. Nonetheless, the Fifth At one point, Chief Justice Rehnquist knob Syndrome” (usually the pa- Circuit overturned the verdict on what wondered whether Reeves’employer had tient’s hand is not actually on the amounted to a de novo review of the evi- simply not liked him, rather than harbor- doorknob, but pretty close). dence. ing age bias against him. Wade told Rehn- In psychotherapy, because the Essentially, the Court of Appeals looked quist that “If you’d been there, you would therapist often believes that it is at the record, stepped into the shoes of have liked him,” — and seemed to win best to “stay where the patient is,” the jury, and threw out the verdict based the point. the Doorknob Syndrome tends to on its finding that the plaintiff had only Justices Rehnquist and Ginsburg impede progress. Inevitably, when shown pretext. The court ruled that the seemed to think that Reeves had presented the therapist raises the critical infor- striking age-biased comments of plain- enough evidence to get to the jury. Jus- mation at the start of the next ses- tiff’s supervisors were not made “in the tice Souter appeared amazed by the defen- sion, the patient is often unwilling context” of his termination, and that other dant’s argument that the age-biased to discuss it again. unfavorable treatment of Reeves was not statements made by plaintiff’s supervi- As lawyers, it is usually not our significant. Despite the finding of pre- sor were “stray remarks.” (Several months job nor is it advisable to “stay where text, the court ruled that plaintiff had not before the firing, the supervisor had said the client is.” Accordingly, during demonstrated that age bias motivated the that plaintiff was “too damn old for the the course of a consultation or even decision to fire him. job” and “must have come over on the during the course of a litigation it In Reeves’brief to the Supreme Court, Mayflower.”) Defendant’s counsel argued is important to aggressively pursue he argued that even if the ADEA requires that those comments were not admissi- information from clients for the a showing of more than “pretext,” it still ble and not relevant, much to Justice does not require direct evidence of dis- Souter’s apparent puzzlement. Continued on page 13 crimination. Instead, a finding of pretext, Continued on page 3 The NELA/NY A Word from Your Calendar of Events Publisher The New York Employee Advocate is April 25 July 22 published bi-monthly by the National 4-5:25pm “Transatlantic Perspectives on Labor Employment Lawyers Association, New Current Litigation Issues in and Employment Law” York Chapter, NELA/NY, 880 Third Employment Discrimination Law Call St. John’ University of Law for more Avenue, 9th Floor, New York, New York Louis Graziano, EEOC trial attorney information 10022. (212) 317-2291. Unsolicited arti- St. John’s University School of Law (718) 990-6600 cles and letters are welcome but cannot be Room 2-25 (free of charge) returned. Published articles do not neces- For information call (718) 990-6600 September 13 sarily reflect the opinion of NELA/NY or NELA Nite its Board of Directors, as the expression of May 2 Topic & Location to be announced opinion by all NELA/NY members through 6:30 this Newsletter is encouraged. Board of Directors Meeting September 20 1501 Broadway – 8th Floor Board of Directors Meeting Items for this calendar may be submitted 1501 Broadway – 8th Floor by calling Shelley Leinheardt: May 12 (212) 317-2291 NELA/NY Spring Conference October 4 Fax: (212)317-0463 Yale Club of New York City Third Annual Gala Dinner 880 Third Avenue, 9th Floor Yale Club of New York City May 24 Hold The Date New York, NY 10022 NELA Nite E-mail: nelany@aol.com 530 Fifth Avenue October 3-14 Editor: Jonathan Ben-Asher 14th Floor (44th & 45th Sts) NELA National Fall Seminar: Topic: Emotional injuries, jury ERISA Business Editor: Robert Rosen instructions & remititur Westin Tabor Center Editorial Committee: Presented by the Sexual Harassment Denver, CO Anne Golden, Wayne Outten, Committee Arnold Pedowitz and Kipp Watson. Speaker: David Gabor October. 18 Executive Board of NELA/NY: NELA Nite Wayne Outten (President), June 14 Topic & Location to be announced Herb Eisenberg (Vice President) Board of Directors Meeting 1501 Broadway – 8th Floor December. 4 Arnold Pedowitz (Vice President) NELA Nite Robert Rosen (Treasurer) June 21-24 Topic & Location to be announced Allegra Fishel (Secretary) 11th Annual NELA Convention Anne Clark, Leonard N. Flamm, Washington, D.C. . November.3-4 William Frumkin, Olati Johnson, Adam NELA Fall Regional Conference Klein, Lisa R. Lipman, Laura Sager, Yale Club of New York City Laura A. Schnell, and Pearl Zuchlewski Note Date Change Director: Shelley Leinheardt Save The Date

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2 son tend to blame others for everything analytical skills commonly lack the objec- President’s Column or to exaggerate things? Are the client’s tivity and perspective to analyze their own by Wayne N. Outten objectives and expectations realistic and situations effectively. Thus, you can pro- reasonable? vide valuable assistance merely by help- You also begin to make judgments ing the client think through the problem, about the case: Has the employee’s boss identify possible avenues for solution, and Evaluating the or company acted unfairly? Does the decide on a course of action, all without employee have any viable legal claims? regard to the existence of grounds for a Client and the Case What evidence is available or attainable lawsuit. to support (or refute) the claims? Are there In fact, the best initial steps toward This column is the third in a series on problems with timing, such as imminent addressing many employment problems case and client evaluation. The first two deadlines or statutes of limitations? What often involve non-legal approaches, before columns dealt with the initial call from a damages has the client suffered? How or in lieu of asserting legal claims. Iden- prospective client and the conduct of the much money might be recoverable under tifying and pushing personal and politi- initial consultation. This column address- various claims and scenarios? Are miti- cal “buttons” can be the most effective es the phase in the initial consultation gation problems present? What are the way to address the problem. Of course, when you evaluate the client and the case. political and personal factors that affect if such buttons are unavailable or are During the early part of the initial con- what happened? What avenues or forums unsuccessful, the next steps can be more sultation, the client typically does most are available to address the situation? Is aggressive, including the assertion of legal of the talking. It is important for the client settlement a realistic possibility? What claims. In a future column, I will address to tell “the story;” and it is important for attorneys’ fees arrangements are appro- in greater detail the step-by-step escala- you to listen to it carefully, critically, and priate? tion approach that I typically employ. sympathetically, while occasionally guid- In evaluating “the case,” you should For now, the point is that, during the ing the process with your questions and keep in mind that not every employment initial consultation, you should not be so suggestions. (This listening phase was problem or dispute is or should be grist focused on evaluating the legal merits that addressed in the last column.) While lis- for a lawsuit. Clients come to see you you overlook ways to help the client who tening, you begin the process of evaluat- with a problem, not necessarily a case. has no legal claim, who would prefer not ing the client and “the case.” Your role can be that of a professional to pursue a legal claim, or who may be You begin making judgments about the problem-solver and dispute-resolver, not able to achieve a satisfactory resolution client: Is the person honest, rational, rea- just that of a litigator. Thus, you should without asserting a legal claim. sonable, and credible? Is this person telling evaluate the situation not just in terms of In the next column, I will continue dis- you the story in a straightforward and log- a possible lawsuit, but also in terms of cussing the evaluation phase of the ini- ical manner? Does the story make sense? what you can do to help the client with tial consultation. Is this person someone you would feel the problem. comfortable working with and represent- Such a mindset can drastically affect ing? Does the person have the intelligence, the way you evaluate the case. By train- education, articulateness, thoroughness, ing and experience, employment lawyers and analytical abilities to make a good have very good analytical skills. Many client and witness? How good was the clients, on the other hand, do not. More- client’s job performance? Does the per- over, even those clients who have good Wayne N. Outten

SUPREME COURT, from page 1 text plus.” Schnapper predicts that the Court will reinstate the verdict and reit- Wade also argued that the Fifth Circuit erate the standard of St. Mary’s Honor We’ve Moved acted improperly by reviewing all the evi- Center v. Hicks, 509 U.S. 502 (1993). NELA/NY has moved to new dence in the record, rather than just the In Hicks, the Court held that the jury’s offices. Our new address is: plaintiff’s. Otherwise, Wade explained, disbelief of the employer’s rationale, 880 Third Avenue the court “is open to consider evidence together with the elements of the prima 9th Floor that the jury did not believe.” facie case, may permit a jury to infer inten- Phone: (212) 317-2291 According to Schnapper, the Court tional discrimination. Facsimile: (212) 371-0463 appeared to have been motivated to hear the case by its interest in defining “pre- —Jonathan Ben-Asher

3 Mentor or Be Mentored tions from NELA/NY members, either ested in becoming a mentor, either as a on a particular topic of substantive law, topic panelist, or as a one-on-one advisor, NELA/NY’s Mentoring Program has or in an area of law office practice or man- we welcome your participation. If you been operating for 3 years. While many agement. The second is a “Big Brother / interested in being a mentor or mentee, members participate in this worthwhile Big Sister” matching program, to connect please contact Shelley Leinheardt at venture, many more are welcome. new NELA members and practitioners to NELA/NY, and she will be happy to talk The Mentoring Program is designed seasoned employment practitioners on a to you further. primarily to help attorneys who have less longer term basis. The goal is to give than five years experience practicing mentees regular access, as needed, to more employment law. (As a result, it is not experienced practitioners for guidance in Law Day limited to those who are less than five handling cases and managing a practice. years out in practice.) There is no cost to participate in this National Law Day is May 1st , and The program has two aspects. One is Program — on either end. If you are inter- events that week are a chance for NELA a panel of experts willing to field ques- members to educate the public about their rights as employees. On May 1 through May 4, the Association of the Bar of the City of New York, through its Legal Refer- Filings, Trials and Settlements ral Service, is sponsoring ten public information booths in street-fair style to We continue with our feature, begun last issue, spreading the word about new facilitate public access to attorneys. In cases, trials and settlements by NELA/NY members. past years these events have drawn hun- This installment is slimmer than the previous, probably because most people dreds of people and received much cov- were counting their attorneys fees from last issue’s cases. For next month’s issue, erage by the media. send your news to Jonathan Ben-Asher, by e-mail at [email protected] or by fax This year booths will be set up in Union (212) 509-8088. Let us know the forum of the case, the parties, the judge, names Square Park in Manhattan (Wednesday of counsel, recovery (by category) a very brief summation of the nature of the claims May 3); Brooklyn (Tuesday, May 2, at and significant facts, experts used, and anything else you would like to share. Borough Hall); Bronx (Monday, May 1, James N. McCauley filed a case against Rubbermaid-Cortland, Inc. and outside Supreme Court); and Queens Rubbermaid, Inc., alleging that his client was fired in violation of the FMLA (Thursday, May 4, Queens Civil Court). after taking time off because of a serious chronic health condition. The plaintiff The booths will be open 11:00 a.m. until contended that defendant never gave her and other employees notice of their 2:00 p.m. FMLA rights. As a result, she did not ask to have her time off designated as If you are interested in participating, FMLA leave, and she exceeded her allowable absences under the employer’s please contact (to see if space is still avail- policy. When she learned about her FMLA rights after being fired, she request- able) Kristin Leitch, Public Relations and ed reinstatement, which the employer denied. The plaintiff alleged that Rubber- Marketing Coordinator of the Legal Refer- maid illegally failed to properly designate her absences as FMLA-qualifying ral Service at (212) 382-6756, or kleitch leave, and unlawfully counted that leave under its absence policy. As a result of @abcny.org. a confidential settlement pursuant to court-ordered mediation, the court issued a judgment dismissing the case by reason of settlement. Riker v. Rubbermaid- Cortland, Inc. and Rubbermaid, Inc., NDNY, No. 99-CV-277 (NAM-GID). Phyllis Gelman and Lindsay Nicely Feinberg finally resolved, after a pro- Dues Are Past Due longed battle, a disability discrimination and sexual harassment case brought Many members have not yet paid your against Prudential Insurance. The plaintiff alleged that she was sexually harassed dues for the year 2000. If we don’t receive at work, and then had a nervous breakdown due to the harassment and her fear your dues by May 8th, we will have to of returning to a hostile environment. The plaintiff also contended that Pruden- drop you from our directory of Active tial failed to accommodate her disability. The District Court (New Jersey) dis- Dues Paying Members, which means you missed all the plaintiff’s claims on summary judgment (Title VII, ADA and the will no longer receive the New York New Jersey Law Against Discrimination), holding that Faragher and Ellerth Employee Advocate or any other mem- the plaintiff had unduly delayed complaining to management. On plaintiff’s ber benefits. appeal, the Third Circuit reversed, holding that the Faragher and Ellerth do not Don’t get left out in the cold. Send in govern cases under the New Jersey LAD. On remand to the District Court, the your dues today to NELA/NY. parties reached a confidential settlement. NELA/NJ member Lisa Manshel, who wrote an amicus brief on appeal, was also instrumental in the case. Styles v. Pru- dential Insurance Co. of America, Inc. (3rd Cir. 1999) The deadline for articles and letters for our next issue is May 12, 2000.

4 Sexual Harassment Committee by Lawrence Solotoff and Eugenie Gilmore

The Sexual Harassment Committee uals and corporations. It has a number of submissions from NELA members. Please continues to be active and productive. In significant advantages over other remedies include a short description of your case, our February meeting, Linda Geiger Kern for sexual harassment victims, including some words about closing arguments, and discussed Smith v. Norwest Financial no requirement for administrative exhaus- the outcome of the case. Acceptance, Inc., 129 F.3d 1408 (10th tion; unlimited compensatory and punitive The next meeting will be held May 9, Cir. 1997). In that case, the court held that damages; no minimum number of employ- 2000, at 6:00 p.m. The Committee meets six sexually harassing comments direct- ees, and a four year statute of limitations. on the second Tuesday of each month, pro- ed at the plaintiff over a twenty three The Supreme Court will decide this term viding there is no conflict with a major hol- month period were sufficiently severe and whether the Act is constitutional. iday. All meetings begin promptly, and end pervasive to create a hostile work envi- The Committee will be presenting a promptly at 7:30 p.m. All members, guest ronment. Of significance to the court was NELA Nite on May 24. David Gabor will attorneys and future members are welcome. the relatively small size of the office, the discuss assessing the value of emotional Gene Prosnitz will be presenting a case fact that the comments were overheard injuries, jury instructions and remittitur, of interest at our April meeting (to be dis- by co-workers and the fact that the com- based on his review of approximately 2, cussed next issue); Robert Felix and Euge- ments were made directly to the plaintiff. 800 jury awards. nie Gilmore will speak on May 9,. and At our March meeting, Lawrence The Committee has also begun work on Antonia Kousoulas will discuss litigating Solotoff discussed the Violence Against its Jury Instruction project. We are inter- claims against state agencies on June 13. Women Act. The VAWAprovides for a pri- ested in collecting jury instructions on sex- Meetings scheduled for July 11, 2000 and vate cause of action against both individual harassment issues, and welcome beyond remain open for volunteers.

NELA/NY’s Spring Conference Fund Raising News By Robert M. Rosen NELA/NY will hold its Spring Conference on Friday, May 12 at the Yale Club of New York City, 50 Vanderbilt Avenue at 44th Street. Don’t miss this great opportunity The Third Annual, extremely popular for to learn about the latest developments in employment law and winning strategies and welcomed NELA Fund-Raiser, for the for your clients and your practice. year 2000, is well along. We will be hold- The Conference will include: ing the event in October, with the date to • Federal and State Law Update (John A. Beranbaum and Lizbeth S. Schalet) be firmed up soon. We are looking for cases to salute for • Use of ERISA in Employment Cases (Edgar Pauk and Robert J. Bach) the event. If you know of a case that you • Current Issues under the Fair Labor Standards Act and New York Labor Law (Patri- feel would be of interest to our commit- cia McConnell) tee, please submit it to Shelley Leinheardt • Current Ethical Issues Concerning Fee Arrangements in Employment Cases, includ- at the new NELA office, at 880 Third ing the Resolution of Cases and the Interplay between Attorneys’ Fee Awards and Avenue, New York, New York 10022, or Contingent Fees (Rosalind S. Fink) by fax (212)371-0463. • How to Navigate Your Client Through the Maze of the ADA, FMLA, and Dis- Our committee this year has expanded, ability Benefit Plans: Through Both the Plaintiff’s Perspective and Management’s and now includes Gerry Filippatos, Bill Perspective (Jay P. Levy-Warren and Laura H. Allen); and Frumkin, Colleen Meenan, JoAnne Simon, Shelley Leinheardt, and our ex officio and ips and Pointers on Advising Clients and Negotiating Employment Contracts • T valiant leader, Wayne Outten. The Com- (James D. Esseks and Wayne N. Outten). mittee meets approximately every three The Keynote Speaker at lunch will be Barbara Underwood, Principal Deputy Solic- weeks by telephone conference call and itor General, United States Department of Justice. The conference will conclude with inches forward towards the gala event. a cocktail party. This program qualifies for 6 CLE credits, one of which is for ethics Again, we are going to ask for your and professionalism. support, so please be prepared for our Registration is $180 for NELA/NY members ($210 if you sending in your check nudging you. As part of that, please let us after April 28), and $210 for non-members ($230 after April 28). Many thanks to the know of vendors who you think would be members of our conference committee for all their work in planning this even. interested in advertising in our journal. For more information, call Shelley Leinheardt at (212) 317-2291. Watch the Employee Advocate for future developments.

5 Ask Ms. Pretext

Ms. Pretext is here to answer all your ing protected class or contract? Was the Dear Ms. Pretext, questions about employment law and client fired after many on the job boo- I’m just starting out in this plaintiff’s workplace etiquette. From this month’s boos? — Ms. Pretext calls these clients employment business. How will I know mailbox: “sleepy surgeons.” Or perhaps your client when I have a good case? —Idealist actually wrote that detailed narrative you Dear Idealist, Dear Ms. Pretext, requested, and you were reading it? Final- Don’t furrow your brow too much over My friends and I started an Internet ly, did you see this person gratis? this one. Here are my rules: company last year in our garage. Now we have 3,000 employees. Most of them are Dear Ms. Pretext, 1.Twenty minutes into an initial consul- okay, but some are from the typewriter I’m a Human Resources manager. Our tation, show the client the door. If you age. At 10:00 p.m. they’re like, “I need to company policy is to protect sexual need to learn more, attend your client’s get home to my family.” We want to ditch harassers as much as we can. How can I deposition. them but worry that a lawsuit might mess do this and not get served with process? 2. Always assume the worst. In today’s up our IPO. Any tips? —Prurient economy, most employers discharge — Overachiever Dear Prurient, solely for discriminatory reasons. I’m As in Chinese cooking, preparation is sure your client falls into something. Dear Overachiever, key. My recommendations: No problem. The next time one of these 3. Remember, your client is the best judge slowpokes waves his Medicare card at 1. Have a good, thick employee handbook. of the settlement value of his case. you, just chuckle. Smart planning can help Update it incoherently in dribs and Defer to him on this one. your company shed dead leaves and raise drabs. Make sure no one knows where profits, so you and your friends can buy the new pages go. Distribute it on Christ- Dear Ms. Pretext, more expensive junk for your lifestyle. mas, Yom Kippur and Ramadan. My co-worker winked at me at a com- Take these steps: 2. The manager charged with listening to pany party. Do I have a case? 1. Older employees shun e-mail. It gets employee gripes about workplace pas- —Offended them nervous. Make them use it for every sion should travel a lot, and not speak Dear Offended, task. When they fumble, out they go. English. Yes. 2. Evaluate, evaluate. Any employee can 3. When interviewing a sexual harass- Send your questions to Ms. Pretext c/o be made to look faltering on a good ment victim, leer supportively. Jonathan Ben-Asher, at [email protected] HR form. Set unattainable goals. Check off “below expectations” everywhere. 3. Discharge — constructively! Older Representing Employees Living in Employer- workers need stability, hate change. That’s why they listen to Carole King. Owned Housing by Jonathan Weinberger Shifting responsibilities, wacky quo- tas and frequent demotions will nudge What do you do if your client is an employee of an employer who provides hous- out company turtles, pension or no pen- ing in connection with employment and the employer says both “you're fired” and “get sion. Be patient and believe in your off the premises”? dream. This situation comes up in the case of building superintendents, university and hospital employees, and in certain corporate settings. Does the tenant-employee who claims Dear Ms. Pretext, that the firing was motivated by discrimination have to leave immediately? No. I am a plaintiff’s employment lawyer. The employer cannot merely lock the employee out. As a residential landlord, the Yesterday I was meeting with a new client employer will have to commence a holdover proceeding in landlord-tenant court to evict for a consultation, and I fell asleep. Do I the employee. The New York City Civil Court has jurisdiction in these proceedings to have a problem? entertain answers and counterclaims alleging discrimination. —Ferberized If you have filed a charge with an administrative agency, you may be able to obtain Dear Ferberized, a stay of the landlord-tenant proceeding pending the resolution of the administrative For some reason, when these things claim. Boca Broadway Realty v. Naim, NYLJ 6/8/95, p. 31, col. 5 (App. Term 1st happen, we like to blame ourselves. A Dept); Ennismore Apartments v. Gottlieb, NYLJ 9/24/92, p. 24 col. 5 (App. Term better question would be: why was this 1st Dept); Mora v. Debartolo, NYLJ 2/8/95 p.27 col. 2. If a stay is not granted, you client not meeting your needs? Was he can conduct discovery regarding the claim. Rose Associates v. Kaiser, NYLJ 7/11/94 or she an “at will” noodnik, with no lurk- p. 27 col. 3, (App. Tm 1st Dept) and obtain a jury trial.

6 Anne’s Squibs by Anne Golden

Note: Readers are invited to send us The New York State Court of Appeals $151,611. NELA/NY member Leonard decisions in their cases, or in recent cases has affirmed the confirmation of an arbi- N. Flamm, et al., represented the plain- they come across, that are of wide enough tration reinstating a corrections officer who tiffs. White v. White Rose Food, ___ F. appeal to be discussed in these pages. had been suspended for flying a Nazi flag Supp. ___, 2000 WL 148511 (E.D.N.Y. Send them directly to: at his home to celebrate the anniversary 2/7/00). of Hitler’s declaration of war on the Unit- Anne Golden ed States. The officer was charged with Partial Success Outten & Golden LLP violating employee manual provisions After a tortured journey to the Second 1740 Broadway against off-duty conduct “reflect [ing] dis- Circuit Court of Appeals and back to New York, NY 10019 credit upon the Department or its person- Judge Denise Cote (S.D.N.Y.), a plaintiff Fax: (212) 977-4005 nel” and against affiliation with a group who alleged sexual harassment and Equal E-mail: [email protected] that would interfere with performance of Pay Act violations got attorneys’ fees of Further note: Of course, these squibs workplace duties. Defendants pressed safe- only about 13.5% of the initial lodestar are by no means exhaustive, nor should ty arguments, but lost at arbitration pur- amount. The jury had returned a verdict you rely upon them as a substitute for suant to a collective bargaining agreement. for her on both claims, in which she doing your own research and actually After a split decision at the Appellate Divi- received $90,000 for the sexual harass- reading the cases. sion, the Court of Appeals unanimously ment under the New York State Human Thanks to Scott Moss, an associate affirmed. Courts may vacate an arbitral Rights Law (but not under Title VII) and with Outten & Golden LLP, for his assis- award only where it “violates a strong pub- $20,000 for the EPA violation. The state tance with these squibs. lic policy, is irrational or clearly exceeds Human Rights Law does not provide for a specifically enumerated limitation on an attorneys’fees. The Court of Appeals had ARBITRATION arbitrator’s power.” Here, only public pol- held that the plaintiff was not a prevail- icy grounds were at issue, and the Court ing party under Title VII, Bonner v. Guc- Judge Deborah A. Batts (S.D.N.Y.) has found no sufficiently “well-defined” pub- cione, 178 F.3d 581, 601 (2d Cir. 1999), confirmed an NASD arbitration panel’s lic policy jeopardized by the arbitral award. and had remanded for an adjusted attor- award of over $140,000 to a stock bro- New York State Correctional Officers neys’ fee award. The district court found kerage employee based on common law & Police Benevolent Ass’n, Inc. v. State, that the two claims on which the plaintiff claims. The employee, after his termina- 163 L.R.R.M. (BNA) 2239, 1999 N.Y. had prevailed were not “inextricably tion, claimed fraudulent inducement to Slip. Op. 10737, 1999 WL 1220305 intertwined,” justifying a fee for work accept the job, termination in violation of (12/21/99). done on both, and further found that the an employment contract, and tortious inter- EPA claim had taken less work and less ference and defamation in the derogatory ATTORNEYS’ FEES time. Judge Cote, who had awarded text in his U-5 termination form. Judge $634,970.88 in fees in 1997 before the Batts initially remanded to the arbitral Hourly Rate Second Circuit appeal, on remand award- panel to clarify the rationale for its award Judge Spatt strikes again, citing his ed only $190,000 for all the work done of a precise compensatory damages own previous decisions cutting down on the case from beginning to end. Bon- amount, but then approved the award attorneys’hourly rates in order to contin- ner v. Guccione, ___ F. Supp. 2d ___, under the very deferential review stan- ue to do so. In a class action in which the 2000 WL 12152 (S.D.N.Y. 1/6/00). dards applicable to confirmations of arbi- plaintiffs prevailed on “duty of fair rep- tral awards. Most of the over $40,000 in resentation” claims, the plaintiffs applied Pro Se Plaintiff compensatory damages represented six for $436,396.12 in fees (including a 50% A pro se plaintiff, who was a prevail- months of lost salary, based on the panel’s enhancement for the risk of contingent- ing party in an action under the Privacy finding of a year-long term of employ- fee litigation), based on hourly rates for Act to obtain and amend documents in ment in ambiguous documents. The the two senior counsel of $325 and $315 his CIA personnel file, was entitled to $100,000 in punitive damages were based per hour. Judge Arthur D. Spatt (E.D.N.Y.) receive his attorneys’ fees and litigation on malicious defamation in the U-5 ter- found that a “reasonable hourly rate” for costs under that statute, said the D.C. Cir- mination form, which the panel ordered those attorneys was only $200 per hour, cuit Court of Appeals. The fees were for revised to eliminate various accusations. that many of the hours expended were consultations with licensed outside coun- Acciardo v. Millennium Sec. Corp., ___ “unnecessary and excessive” or vague, sel. The plaintiff, a computer scientist F. Supp. 2d ___, No. 99 Civ. 3371 (DAB), and that no multiplier was justified. After employed by the CIA, had discovered that 2000 WL 177793 (S.D.N.Y. 2/15/00). all the chopping, slicing, and dicing, the his personnel file contained allegations court came up with a final fee award of

7 of sexual harassment, which he said were DISABILITY DISCRIMINATION EQUAL PAYACT false and inaccurate. Although some cases Alcoholism and Rehabilitation Alicensed engineer of Polish ancestry hold that pro se litigants cannot recover A New York City corrections officer who saw her jury verdict on liability taken attorneys’fees, in part to further the statu- who was a recovering alcoholic brought away by a grant of judgment as a matter tory policy of encouraging litigants to an Article 78 action challenging his ter- of law from Judge John Gleeson (E.D. retain counsel, the court noted that the mination as being based on disability dis- N.Y.) got it back from the Second Circuit plaintiff was trying to recover fees for the crimination. Even though he had violated Court of Appeals. She alleged that, work of attorneys, not for his own work. an agreed-upon one-year probationary because of her gender and national ori- “[W]e find nothing in the statute or the period, said Justice Simeon Golar (Sup. gin, she was subjected to insults, jokes, case law that requires an attorney to file Ct. Queens Cty.), he could not be termi- and harassment, passed over for promo- a formal appearance in a case in order to nated based upon excessive absences, late- tion, paid less than a similarly situated claim fees,” said the court; all that is nec- nesses, and AWOLs that had all occurred male colleague, and then terminated. The essary is a genuine attorney-client rela- before he entered a rehabilitation program court dismissed almost all of her claims tionship. However, most of the requested that he successfully completed. After com- but allowed one part of her Title VII claim fees were denied in this case based on pleting it, he had returned to work for and part of the EPA claim to go to trial. inadequate substantiation. Blazy v. Tenet, more than a month without any time or The employer had argued that its pay deci- 194 F.3d 90 (D.C. Circuit 10/26/99). attendance violations, but he was then dis- sions had been made pursuant to a valid charged for the time and attendance prob- merit pay increase policy (although it CLASS ACTIONS lems, which he argued were all related to failed to produce documentary evidence Settlement Approval his alcoholism, that predated his entry into at trial) and pointed out that the plaintiff A settlement was approved in a class rehab. Judge Golar granted the Article 78 had received only average evaluations action filed by the United States against petition and vacated the termination, and that the man to whom she compared the New York City Board of Education ordering the petitioner reinstated with full herself got better evaluations. The jury alleging that various hiring procedures back pay and all benefits. The petitioner found for her on one EPA claim but was for school custodians had a disparate was represented by NELA/NY member told that damages would be determined impact on blacks, Hispanics, Asians, and Arthur H. Forman. Matter of Singleton by the court, which instead then granted women. The challenge focused on recruit- v. Kerik, ___ N.Y.S.2d ___ (Sup. Ct. JMOL to the employer on that claim. The ment efforts and written examinations that Queens Cty. 2/18/00). court of appeals held that the EPA’s “merit allegedly left many candidates excluded system” defense was narrowly construed from any position, from civil service sta- Direct Threat and protected an employer only if it proved tus, or from full seniority. The settlement An employer defending an across-the- certain criteria, which the court referred included the following: targeted minori- board safety policy that tends to screen to as a “heavy burden.” Here, it did not ty recruitment advertising; elimination of out disabled workers faces only the “busi- carry that burden, and the jury’s verdict challenged examinations; consultation ness necessity” standard, not the “direct was supported by the evidence. The opin- with designated experts before any use of threat” standard, the Fifth Circuit has ion was written by Judge Miner and joined new examinations; new positions or ruled. In the wake of the oil spill by the by Judges Kearse and Leval. Rydu- retroactive seniority for 97 minority or Exxon Valdez, a tanker whose chief offi- chowski v. Port Authority, ___ F.3d ___, female individuals; and periodic compli- cer was treated for alcoholism, Exxon 2000 WL 136834 (2d Cir. 2/8/00). ance reports to the United States. Magis- imposed a company-wide rule barring trate Judge Robert M. Levy rejected all employees who had substance abuse FLSA OVERTIME treatment from certain safety-sensitive objections, finding that race-conscious Scope of “Interstate Commerce” remedies were appropriate because they and little-supervised positions — which amounted to about ten percent of Exxon Coverage were narrowly targeted to the prima facie Judge John E. Sprizzo (S.D.N.Y.) has showing of statistical disparity and that jobs. Reversing the District Court’s application of “direct threat” analysis held that a church employee may be cov- the negative impact on those outside the ered by FLSA overtime provisions even class was minimal and unobjectionable, to Exxon’s defense showing, the panel held that the “direct threat” standard though only a portion of the employer’s as outsiders had no impinged-upon pro- and employee’s work involved interstate United States v. New York applied only to actions targeting particu- tected interest. commerce — the FLSA’s jurisdictional trig- City Bd. of Educ., ___ F. Supp. 2d ___, lar employees, whereas the “job-related and consistent with business necessity” ger. Although the church engaged in some No. 96-CV-374 RML, 2000 WL 217671 qualifying commerce (e.g., renting its facil- (E.D.N.Y. 2/9/00). standard applied to across-the-board rules. EEOC v. Exxon Corp., ___ F.3d ___, ities to outsiders for special events), the No. 98-11356, 2000 WL 149559 (5th Cir. quantum would not reach the threshold of 2/11/00). $500,000 unless the church devoted some of its non-commercial funds to those activities — a question not resolvable on

8 summary judgment. The court did grant when a deposition taken after the dismissal mate association.” The defendants’argu- plaintiff partial summary judgment on one provided support for the plaintiff’s con- ment that she would have been fired for issue, however: that the employee’s limit- tinuing violation and equitable estoppel her error absent any retaliatory motive ed involvement in interstate commerce — theories. (The deposition was taken was insufficient for summary judgment, between 14 and 30 orders of custodial and because some of the claims had survived in light of various indicia of pretext, such other goods for the church over several the dismissal.) The plaintiff had filed his as the greater leniency given others who years — was sufficient to render his entire complaint more than 300 days after his made such errors. Sowards v. Loudon employment covered under the FLSA. termination, alleging age and national ori- County, ___ F.3d ___, No. 98-6768, 2000 Boekemeier v. Fourth Universalist Soc., gin discrimination and retaliation under WL 134965 (6th Cir. 2/8/00). ___ F. Supp. 2d ___, No. 96 Civ. 1459 federal, state, and city law; an amended (JES), 2000 WL 194800 (S.D.N.Y. 2/15/00). complaint added other state-law claims. RESTRICTIVE COVENANTS The district court, on the Rule 59(e) Scope of “Motor Carrier Exception” / motion, concluded that the events after A preliminary injunction enforcing a Independent Contractor vs. Employee the plaintiff’s discharge — failure to rein- restrictive covenant against an insurance Judge Colleen McMahon (S.D.N.Y.) state — might turn out to be sufficiently “producer” (salesman) was denied because has held that, as to employees who were related to the claims in the EEOC charge the five-year ban on soliciting the plain- bakery products distributors, a baked goods to extend the limitations period, and that tiff company’s clients failed the BDO Sei- producer was exempt from FLSA over- the plaintiff’s allegation that the defen- dman v. Hirshberg reasonableness time rules under the motor carrier excep- dants repeatedly told him that they would requirement. The court also found that, tion. The employees drove truck shipments recall him from administrative leave when despite the contract’s recitation that the of English muffins from the producer’s a position became available deterred him defendant employee was privy to confi- distribution depots to retailers. Even though from filing a timely charge, so that they dential information, “[c]ustomer lists in baked goods, not transport, was the defen- should be equitably estopped from rais- the insurance industry are not generally dant’s primary business, the employees’ ing limitations as a defense. According- considered to be confidential.” There was transportation activities were sufficient to ly, although some claims remained no irreparable injury because “money subject them to regulation by the Secre- dismissed on other grounds, those that damages could be calculated without great tary of Transportation, which under the had been dismissed on limitations grounds difficulty if defendant obtained business FLSA exempts their employer from FLSA were revived and further discovery was from plaintiff’s confidential lists.” The requirements. A silver lining to the defense ordered. NELA/NY member Arthur M. court did not consider “blue penciling” grant of summary judgment is that Judge Wisehart represented the plaintiff. Bis- the agreement to save some relevant McMahon explicitly found factual issues sonette v. Marine Midland Bank, __- portion. Bender Ins. Agency, Inc. v. concerning the plaintiffs’status as employ- F. Supp. 2d ___, No. 98 CV 944 Treiber Ins. Agency, Inc., N.Y.L.J. ees or independent contractors, even though (N.D.N.Y. 3/2/00). 2/7/00, p. 27, col. 4 (Sup. Ct. Nassau a prior non-FLSA action found them to be County) (Praga, J.). independent contractors, because “the stan- PUBLIC EMPLOYMENT dard for determining ‘employee’ status A preliminary injunction enforcing a under the FLSAdiffers from that under the Disability Discrimination restrictive covenant against the seller of a common law or ERISA” and is more See Matter of Singleton v. Kerik, dis- company that produced digital prints was expansive. McGuiggan v. CPC Int’l, Inc., cussed under “Disability Discrimination.” granted despite the plaintiff’s breach of ___ F. Supp. 2d ___, No. 97 Civ. 7241 the sale contract. The defendant, who had (CM), 2000 WL 146022 (S.D.N.Y. First Amendment Retaliation remained as the corporation’s president, 1/31/00). In the Sixth Circuit, a female jailer sur- quit, alleging that the contract explicitly vived summary judgment with a Section declared the plaintiff’s tardy installment 1983 claim of First Amendment retalia- payment a “material breach” voiding the PROCEDURE tion. The plaintiff, holder of the office of restrictive covenant. The court noted that EEOC “jailer,” worked under the elected coun- the contract provided a grace period for See EEOC v. Die Fliedermaus, ty sheriff. She was terminated after she the plaintiff to cure tardy payments, so L.L.C., discussed under “Sexual Harass- supported her husband’s election chal- the defendant’s repudiation was prema- ment,” below. lenge to the sheriff; the defendants coun- ture. The court found, without factual tered that she was fired for the serious inquiry, that the plaintiff would “pre- Limitations; Continuing Violation error of failing to notice outstanding war- sumptively suffer irreparable harm to the Judge Norman A. Mordue (N.D.N.Y.) rants against an individual who was arrest- goodwill they purchased if [the defen- was persuaded to change his mind and ed and then released. The claim survived dant] is permitted to disregard the restric- un-dismiss several claims on a Rule 59(e) summary judgment because supporting tive covenant.” Aloni v. Unidigital Inc., motion (“to alter or amend a judgment”) her husband’s campaign was protected N.Y.L.J. 2/24/00, p. 30, col. 3 (Sup. Ct., based on newly discovered evidence, activity as “political association” and “inti- IA Part 49, N.Y. County) (Cahn, J.).

9 RETALIATION culpability. Robinson v. Instructional ganizations. There was testimony that the Mixed-Motive Cases Sys., Inc., ___ F. Supp. 2d ___, No. 96 company employed a double standard and What appears to be undisputed direct Civ. 8356 (CBM), 2000 WL 64885 that, although the company had claimed evidence may not suffice for partial sum- (S.D.N.Y. 1/26/00). to have discharged the plaintiff in a “reduc- mary judgment for the plaintiff, the Dis- tion in force,” she actually was replaced trict of Columbia Circuit has held. The SANCTIONS by a man. Not surprisingly, the court of appeals applied Price Waterhouse v. NASA supervisor who terminated the The Second Circuit Court of Appeals plaintiff had admitted that her letter accus- Hopkins, 490 U.S. 228 (1989) and found has reversed another order sanctioning an that the plaintiff had also made out a prima ing the defendant of discrimination was attorney. This time the sanction ($1,000) “the straw that broke the camel’s back.” facie case under a non-mixed-motive was imposed by Judge Jed S. Rakoff analysis. Bellaver v. Quanex Corp., 200 This was enough to convince the District (S.D.N.Y.) upon counsel for a plaintiff (no Court that retaliatory animus at least F.3d 485, 81 [BNA] F.E.P. Cas. 1260 (7th surprise there) in a non-employment case, Cir. 1/18/00). “played a part” in the termination deci- based upon the attorney’s having moved sion, mandating mixed-motive liability. for reconsideration of an order granting At the trial for damages, after the defen- summary judgment to the defendant. Being SEXUAL HARASSMENT dant had presented part of its case, the an evenhanded and fair-minded judge, Hostile Environment Sexual District Court entered judgment as a mat- Judge Rakoff had also sanctioned the Harassment ter of law for the plaintiff, finding it suf- defendant’s counsel ($5,000) for some- An EEOC action against a bar and its ficiently clear that NASA would not have thing else, but the judge had then amend- owners, based on numerous sexual harass- terminated her but for the retaliatory ani- ed his order to provide that it was to be ment and race discrimination charges by mus. The circuit panel reversed the plain- paid not to the plaintiff but to the Clerk female employees (followed by retalia- tiff’s summary judgment and remanded of the Court. The case involved a minor tion charges and the arrests of manager- for trial, finding that even if the letter’s medical malpractice claim. After the grant ial employees for egregious retaliatory discrimination accusations were protect- of summary judgment, in a conference conduct), was not dismissed pending ed activity and the letter was “the straw call with the judge’s law clerk, both “good faith” conciliation efforts. The court that broke the camel’s back,” the letter lawyers expressed an intention to move (Robert W. Sweet, S.D.N.Y.) declined to contained many things other than the pro- for reconsideration, but only the plain- dismiss the individual intervenor employ- tected discrimination charge, making it tiff’s attorney did so, although the clerk ees’cases for failure to get notices of right unclear whether the protected activity or said his arguments did not seem “rea- to sue, declined to dismiss a black employ- some other portion of the letter was the sonably likely” to meet the local rules’ ee’s Section 1981 claim based on an argu- motivation for the termination. Borgo v. standards for such motions. The court of ment that the statute did not apply to Goldin, ___ F.3d ___, No. 98-5503, 2000 appeals held that Judge Rakoff had not employees at will, declined to dismiss the WL 198942 (D.C. Cir. 3/3/00). made the necessary specific factual find- retaliation claims, and found that the com- ings to support imposition of sanctions pany’s vicarious liability for intentional Relief and added in a footnote that, although pre- tort had been properly pleaded. Howev- A plaintiff who lost all her discrimina- motion conferences with judges are use- er, it dismissed constructive discharge tion claims at summary judgment never- ful, it did not encourage “the practice of claims for failure to prove the employ- theless prevailed at trial on retaliation having litigants confer on the merits of er’s intent to force the employees to quit, claims, winning back pay, compensatory cases with law clerks or other chambers and it dismissed claims for intentional damages and attorney’s fees. In part personnel.” Eisemann v. Greene, ___ infliction of emotional distress because because the plaintiff effectively mitigat- F.3d ___, 2000 WL 197428 (2d Cir. that tort was a claim of “last resort” when ed and in part because widespread layoffs 2/17/00). no other would serve, and here a defama- covered her job, the plaintiff’s financial tion claim was available. Finally, the court losses were limited, and total damages SEX DISCRIMINATION declined to dismiss the New York City were $23,000: $1,500 in lost severance Human Rights Law claims based on fail- pay; $1,500 in loss of two additional weeks A woman who brought a mixed-motive ure to serve the complaint on the city of work; $14,000 in lost opportunity to Title VII action after she was fired for Commission on Human Rights and the be rehired; and $6,000 in compensatory being “aggressive and sometimes abra- Corporation Counsel. EEOC v. Die Flie- damages for mental anguish. The Court sive,” while (she alleged) men who exhib- dermaus, L.L.C. [sic], ___ F. Supp. 2d also awarded prejudgment interest and ited the same traits were not fired, stated ___, NYLJ 12/20/99, p. 38, col. 3 attorney’s fees limited to the retaliation a claim in the Seventh Circuit. The dis- (S.D.N.Y. approx. 12/10/00). claim (not the dismissed discrimination trict court had granted summary judgment claims), but refused to allow punitive dam- to the employer; the court of appeals See also Ackerman v. National ages to go to the jury, finding little sup- reversed and remanded in a case with Financial Systems, discussed below port under Kolstad v. American Dental good language about prohibition of dis- under “Summary Judgment.” Association for a finding of the requisite crimination even during economic reor-

10 LAW FIRM OF SCOTT M. RIEMER

PRACTICE FOCUSED ON: J LONG TERM DISABILITY J PENSION J HEALTH CARE, and J SEVERANCE LITIGATION UNDER ERISA

J Administrative Remedies 144 East 44th Street J Trials and Appeals New York, New York 10017 J Class Actions Telephone: (212) 297-0700 J Co-Counsel Services Telefax: (212) 808-9808

Retaliatory Harassment way. Morris v. Oldham County Fiscal if an employer has a legal duty to inves- The Sixth Circuit (joining the Second Court, 201 F.3d 784 (1/20/00). tigate, then investigating could not have and several others) has held that harass- breached a duty owed to the person ment motivated by retaliatory animus vio- Rights of Alleged Harasser accused. There is plenty of good dicta in lates Title VII. The plaintiff’s sexual Now that employers are finally begin- the opinion about the employer’s duties harassment claims lost on summary judg- ning to take allegations of sexual harass- under Title VII — good for persons who ment for lack of sufficient severity/per- ment seriously, we are seeing more and allege harassment, though not good for vasiveness: dirty jokes in the plaintiff’s more prospective clients who have been alleged harassers. The court also found presence; a sexual advance upon her when fired based on allegations that they sexu- that the plaintiff had no cause of action she complained about her evaluations; ally harassed someone else. In some cases, for defamation or for tortious interference once referring to plaintiff as “Hot Lips”; the factual allegations fall short of sexual with contract. Malik v. Carrier Corp., and commenting several times on her harassment but seem to have been used ___ F.3d ___, 81 [BNA] F.E.P. Cas. 1275, clothing. For purposes of the Faragher/ by the employer as an excuse to fire the 15 [BNA] I.E.R. Cas. 1551, 2000 WL Ellerth affirmative defense, the panel alleged harasser, either because it wanted 85200 (2d Cir. 1/26/00), found no tangible employment action in to get rid of him for other reasons, because a single job evaluation that was only a person fired for cause gets no severance, Summary Judgment slightly lower (downgraded from “excel- or because firing the employee is easier In denying summary judgment to a lent” to “very good”) and which had no than doing a good-faith investigation. Do harassment defendant, Judge Arthur D. other tangible repercussions. The panel these individuals have a cause of action? Spatt (E.D.N.Y.) emphasized that factu- did find retaliatory harassment, however, Not according to the Second Circuit Court al disputes concerning harassment alle- in various actions undertaken after the of Appeals. At trial, the plaintiff was award- gations should go to the jury. One plaintiff complained: visiting her office ed $400,000 by the jury for negligent defendant argued, and the plaintiff admit- and calling her on the telephone numer- infliction of emotional distress during ted, that the plaintiff had not viewed that ous times despite warnings not to do so; the investigation. The district court (Ger- defendant’s behavior as offensive until “making faces” at her; destroying the tele- ard L. Goettel, D. Conn.) granted a remit- after it stopped. Extensively quoting and vision she occasionally watched at work; titur to $120,000, which the plaintiff citing the Second Circuit’s decision in and going to her home to give her “the accepted; but then the court of appeals Gallagher v. Delaney, Judge Spatt noted finger” and to throw nails on her drive- took it all away. The court reasoned that, that whether behavior is harassing or

11 offensive is the sort of question that judges Jacobs and McLaughlin. Galabya v. New clear that the defendant knew of the plain- ordinarily should not take from the hands York City Board of Education, 202 F.3d tiff’s then-existing inability to work for of juries. Whether harassers were “super- 636 (2d Cir. 2/7/00). mental health reasons but made no fur- visors” and whether the plaintiff “unrea- ther inquiry before the termination. Dur- sonably” failed to take advantage of Reaffirming the principle that summa- rant v. Chemical/Chase Bank/ internal procedures also were factual ques- ry judgment is ordinarily inappropriate in Manhattan Bank, N.A., ___ F. Supp. 2d tions precluding summary judgment. Ack- a discrimination case where intent and ___, No. 97 Civ. 1609 (LAK), 2000 WL erman v. Nat’l Fin. Sys., 81 F. Supp. 2d state of mind are in dispute, the Second 122216 (LAK) (S.D.N.Y. 2/1/00). 434 (E.D.N.Y. 1/31/00). Circuit has reversed a grant of summary judgment to an employer that had attempt- First Amendment SEXUAL ORIENTATION ed to use the “same actor” defense. The The Northern District of New York court of appeals held that, where seven (Frederick J. Scullin, Jr., J.) acted prema- “Sexual Stereotyping” years had passed between the plaintiff’s turely in granting summary judgment to Judge John T. Elfvin (W.D.N.Y.) denied hiring and firing by the same decision- the Department of Veterans Affairs, said a 12(b)(6) motion to dismiss where the maker, and where his performance was the Second Circuit Court of Appeals, vacat- plaintiff alleged that she was stereotyped objectively good and he was replaced by ing the judgment and remanding the case. and harassed based on rumors that she was someone considerably younger and not The plaintiff, ironically, was a manage- a lesbian. While pure sexual orientation significantly less expensive, summary ment employee who was reassigned to a discrimination may not violate Title VII, judgment should not have been granted, non-management position after an inves- the court held, the plaintiff could state a especially when the employer gave dif- tigation confirmed that he had made racist claim that “because she is a woman in a fering reasons for the discharge at differ- remarks, discriminated based on race in male-dominated work facility and did not ent times. The opinion was written by hiring, and psychologically abused his staff. exhibit her femininity in a stereotypical Senior Circuit Judge Richard J. Carda- His complaint alleged that he was being manner, she was exposed to conditions of mone (author of Gallo v. Prudential Res- punished, as a public employee, for pro- employment that her male co-workers idential Services, L.P.) and joined by tected speech on a matter of public con- were not.” Judge Elfvin explicitly cited Circuit Judge Dennis G. Jacobs and cern (affirmative action). Before the Price Waterhouse v. Hopkins as prece- S.D.N.Y. Judge Colleen McMahon, sit- plaintiff had had a chance to conduct any dent for recognizing as gender discrimi- ting by designation. NELA/ NY member discovery, the Department moved for and nation the sort of sexual stereotyping that Ethan A. Brecher represented the plain- was granted summary judgment. The court would lie at the heart of many sexual ori- tiff. Carlton v. Mystic Transportation, of appeals, in an opinion by Judge Joseph entation discrimination claims. Samborski Inc., ___ F.3d ___, 81 [BNA] F.E.P. Cas. M. McLaughlin, joined by Judges Kearse v. West Valley Nuclear Servs. Co., 1999 1449 (2d Cir. 1/28/00). and Katzmann, held that “[o]nly in the WL 1293351 (W.D.N.Y. 11/24/99). rarest of cases may summary judgment be Disability Discrimination granted against a plaintiff who has not SUMMARY JUDGMENT An employer may be liable for failing been afforded the opportunity to conduct Age Discrimination to inquire whether a reasonable extension discovery.” Hellstrom v. U.S. Depart- Not surprisingly, a pro se plaintiff-appel- of disability leave time would accom- ment of Veterans Affairs, ___ F.3d ___, lant who drew a hostile panel for his Sec- modate a disabled employee currently 2000 WL 51973 (2d Cir. 1/24/00). ond Circuit appeal has seen a grant of unable to work, Judge Lewis A. Kaplan summary judgment against him affirmed. (S.D.N.Y.) held in denying an ADA defen- Multiple Grounds Pleaded Judge Eugene H. Nickerson had granted dant summary judgment. The plaintiff In a case that may illustrate the perils of summary judgment for the employer, 1998 was out on disability leave, first for a leg “everything but the kitchen sink” pleading, WL 960304 (E.D.N.Y. 12/10/98), on the injury and then for depression for which Judge Constance Baker Motley (S.D.N.Y.) ground that the plaintiff had failed to show she was hospitalized. After roughly a year granted summary judgment against three that his transfer from one school to anoth- of total leave, the defendant terminated psychiatrists at Mount Sinai Hospital. On er and then another was an “adverse the plaintiff, giving eight days’ notice. largely the same facts, all three claimed age employment action,” so that he had failed Judge Kaplan focused on the defendant’s discrimination; two claimed gender dis- to make out a prima facie case. The court failure to meet its summary judgment bur- crimination; one claimed national origin; of appeals affirmed on the same ground. den to establish that the plaintiff’s par- and two claimed breach of employment In so doing, it narrowed the definition of ticular diagnosed depression was not a contract. All three resigned in the face of “adverse employment action”: “[A] trans- qualifying disability and to “establish[] various adverse actions such as refusal to fer is an adverse employment action if it that [the plaintiff] would have been unable promote, loss of office space, general results in a change in responsibilities so to return to work if the bank had extend- ostracism, etc.; they claimed, in addition to significant as to constitute a setback to the ed her leave instead of firing her.” discrimination in the form of various dis- plaintiff’s career.” The opinion was writ- Although the plaintiff had not formally crete adverse actions, constructive discharge ten by Judge Parker and joined by Judges requested accommodation, here it was and discriminatory harassment. The Court

12 ISSUE SPOTTING, from page 1 the employee is salaried but is docked amend the complaint. Be conscientious pay in the form of partial vacation or in moving to amend once you feel that simple reason that (as is often the case sick days, which may constitute a waiv- you have met your obligations under in psychotherapy), clients may not be er of an FLSA exemption. Fed. R. Civ. P. 11. Do not to lose the aware of the true reason that they have It is up to you to explore these issues opportunity to pursue what may have sought professional assistance. with the client who may not believe them become a more viable cause of action For example, when clients mention to be relevant. It is your job to ask the than the one which initially drew your in a consultation that they believe they right questions. Ultimately, what you interest to the case. In other words, do have been terminated because of a per- wish to avoid is the client mentioning not get locked into your initial view sonality conflict with their supervisor, something important toward the end of of the case! we all explore whether discrimination a consultation in a Doorknob Syndrome If you are just entering the employ- may have been the true reason for the scenario. If you are primarily focused ment law field and do not feel that you termination. The usual questions we on discrimination, you may miss the have sufficient expertise to deal with address include whether the client has opportunity to explore other viable caus- certain issues which arise, for example, been treated disparately, whether there es of action. under ERISA or the FLSA, you should is any direct evidence of discrimination, The need to spot issues should not consider that NELA’s very purpose is whether any evidence exists to challenge end even after you have filed your com- to enable its members to network and negative performance evaluations, and plaint. During the course of litigation to seek advice from each other. It may whether any evidence exists to support you may obtain information distilled very well be that you have unearthed a a retaliation claim. from documents or through deposition large class action that you do not feel As the client tells his or her story, which may lead you into areas not able to handle, but that another NELA you may be looking for evidence of dis- addressed in the complaint. These may member may be interested in working crimination. Meanwhile, your focus include a variety of common law caus- on with you. The consummate employ- should be much broader. Many clients es of action, such as defamation or ment lawyer will aggressively pursue may have been terminated and not fraudulent inducement, or they may take any and all potential causes of action offered severance while similarly situ- the form of ERISA claims. Such newly when assessing a case. Employment ated co-employees have received sev- discovered evidence will enable you to practitioners should develop at least a erance. The pattern and practice of amend your complaint and pursue the basic understanding of common law paying severance may constitute an litigation in a direction that you never claims, employee benefits, wage and ERISA welfare plan which may pro- even considered when you initially met hour laws, and traditional labor law vide a cause of action that the client the client. issues, to recognize any possible cause never contemplated. Likewise, if the You should be open to this possibil- of action that may be presented. client is an hourly employee, you should ity and realize that the Doorknob Syn- A very aggressive, exploratory explore whether there are any Fair Labor drome can rear its ugly head if you learn approach can help us all to wipe out the Standards Act violations pertaining to of information during the course of lit- Doorknob Syndrome in our lifetime! overtime. This may even be the case if igation but wait until the eve of trial to took on a generally dismissive tone, based Pregnancy Discrimination no retaliation when the defendant termi- on the insufficiency of the facts to show Applying various Title VII doctrines nated the plaintiff for criticizing her super- constructive discharge or harassment, and restrictively, the Seventh Circuit upheld visors and co-workers and threatening to on the lack of any focused theory of dis- summary judgment for a pregnancy dis- quit unless her salary was raised, because crimination: “Allegations which fall short crimination and retaliation defendant. The at that meeting, she had not made explicit of showing age discrimination, coupled plaintiff alleged pregnancy discrimination that her comments related to discrimina- with allegations which fall short of show- in her sub-par salary and retaliation in her tion allegations. Miller v. American Fam- ing gender discrimination, joined by alle- termination after her salary complaints. The ily Mut. Ins. Co., ___ F.3d ___, No. gations which fall short of showing national panel found no “direct evidence” of preg- 99-1537, 2000 WL 174623 (7th Cir. origin discrimination cannot be somehow nancy discrimination in her manager’s state- 2/16/00). synergistically totaled to add up to one pre- ment to the plaintiff, during a discussion vailing discrimination claim.” Mark v. Mt. about one raise, that “[y]ou just have to stop Race Discrimination Sinai Hosp., ___ F. Supp. 2d ___, Nos. 97 having kids and I’ll get you up to mid-range Four black employees with consoli- Civ. 1947 (CBM), 97 Civ. 4841 (CBM), [salary] in a couple of years,” because that dated cases against the same employer 97 Civ. 4774 (CBM), 2000 WL 219970 discussion was unrelated to prior salary lost a summary judgment motion in Judge (S.D.N.Y. 2/18/00). decisions and related only to one raise that Larimer’s courtroom (W.D.N.Y.). One was relatively high. The panel also found had been terminated, the others passed

13 over for promotion, and one of those indi- Sex Discrimination CLASSIFIED ADS viduals had voluntarily resigned. The court A teacher at a Catholic parochial school, found that none of the plaintiffs had pre- whose contract was not renewed after she POSITION AVAILABLE sented enough evidence to give rise to a became pregnant, saw her sex discrimi- Well known Nassau County plain- genuine issue of fact concerning whether nation complaint dismissed by an Ohio tiff’s employment law firm seeks a the employer’s proffered reasons for its district court but reinstated by the Sixth third/fourth year associate to handle actions were a pretext for discrimination. Circuit Court of Appeals. (The plaintiff a varied federal and state employ- The first plaintiff’s early good evaluations and her fiance got married before the baby ment law litigation practice. did not disprove his later poor ones, and was born, but the administrators of the Applicant must have experience allegedly racist statements by a non-deci- school counted backward from 9 and fig- in taking and defending depositions sionmaker were held to be irrelevant, as ured out that they had had sex before they and defending summary judgment were comments about his dreadlocks. Dis- were married.) The court noted that, while motions. Some trial and adminis- crepancies in treatment between him and Title VII exempts religious organizations trative experience is helpful. You white employees were not considered by for discrimination based upon religion, it must be computer literate in Win- the court because he did not show that they does not exempt them with respect to all dows 98 and Word Perfect 7. Good were similarly situated. Another plaintiff discrimination, quoting a 1985 Fourth research and writing skills are cru- was ultimately promoted, which “greatly Circuit case that held, “Title VII does not cial, as is knowledge of WESTLAW. undercut” his allegations, and the court confer upon religious organizations a Our firm is seeking a self starter also found the employer’s rationale per- license to make [hiring decisions] on the interested in building their own suasive and said it would not second-guess basis of race, sex, or national origin.” practice while handling the firm’s an employer’s personnel decisions. The Framing the question as whether the cases with a minimal amou.nt of court found similar problems with all the school made decisions about nonrenew- supervision. other evidence presented by all the plain- al of contracts based upon pregnancy, Fax resume and salary require- tiffs and dismissed all their complaints. which would violate Title VII, or as a gen- ments to: 1-516-593-0683. All faxes Hines v. Hillside Children’s Center, 73 der-neutral enforcement of the school’s will be held strictly confidential. If F. Supp. 2d 308 (W.D.N.Y. 9/28/99). premarital sex policy, which would not, you have a writing sample you the court held that this was “primarily a would like to include, please do so. A group of individuals who alleged a factual battle.” If the school uncovered racially hostile environment also lost on premarital sexual activity only through summary judgment before Judge Shira pregnancies, then only women would be GROWING FIRM Scheindlin (S.D.N.Y.). The court found that, caught, and the effect was to discriminate. SEEKS MERGER although they alleged nine incidents of Cline v. Catholic Diocese of Toledo, ___ Prominent Nassau County harassment, “only two . . . include arguably F.3d ___, 81 [BNA] F.E.P. Cas. 1171, employment law firm seeks to racist comments.” The other comments 1999 WL 1256186 (6th Cir. 12/28/99). expand its practice through growth generally involved shouting and cursing, and new opportunities. The firm all concededly perpetrated by a white super- Sexual Harassment wishes to merge with an experi- visor against minority employees, but with- Judge Jed S. Rakoff’s (S.D.N.Y.) grant enced employment law attorney out any overtly racial remarks or overtones. of summary judgment to an employer was who is a sole practitioner, or a two The two comments involving race were affirmed in part and vacated in part by the person firm, with gross billing of at made by the same supervisor. One of the Second Circuit Court of Appeals. The least $175,000 and is presently self employees filed a union grievance which plaintiff had had a physical altercation sustaining, but seeks growth and alleged “abusive, intimative [sic], threat- with a co-worker who had verbally depth. Attorney(s) must be fully ening, and harassive [sic] language” but harassed her, and both were terminated. experienced in federal and state did not mention race. While the court agreed She alleged that the company condoned employment law litigation and have that evidence of discrimination is seldom her supervisor’s unwelcome touching of first seated a federal or state employ- overt, this evidence did not even support a her, failed to promote her because of her ment trial to verdict. reasonable inference of racial discrimina- race, and retaliated against her for defend- Our firm’s computer system is tion. Curtis v. Airborne Freight Corp., ing herself against the co-worker’s sexu- state of the art and we are fully ___ F. Supp. 2d ___, 2000 WL 20701 al harassment and physical assault. The computerized in WESTLAW for (S.D.N.Y. 1/11/00). court of appeals affirmed summary judg- research. We have one of the most ment with respect to the retaliatory ter- unique law office settings on Long Retaliation mination because the plaintiff had not Island. If you are interested in estab- See Miller v. Am. Family Mut. Ins. shown that she was similarly situated to lishing a dialogue, please fax your Co., ___ F.3d ___, No. 99-1537, 2000 other employees with whom she com- interest to 516 593-0683. WL 174623 (7th Cir. 2/16/00), under pared herself; it also affirmed dismissal “Pregnancy Discrimination.” of her disparate impact claim and denial

14 of class certification. It vacated and rant workers that their restaurant would remanded, however, her claim based on CLASSIFIED ADS close for a substantial period if its lease sexually and racially hostile work envi- was renewed. The closing was required ronment. Notably, the court found that the SPACE AVAILABLE for renovations that would occur upon district court, in its decision below find- Outten & Golden LLP is beginning renewal, but the defendant did not notify ing that she had no case, had misstated to look for office space in midtown, the workers until December 10, 1998, after the facts alleged by the plaintiff. Cruz v. with the expectation of moving into signing the lease renewal, that the restau- Coach Stores, Inc., ___ F.3d ___, 2000 new offices between July 1 and rant would close in about a month. This WL 122117 (2d Cir. 1/20/00). December 31, 2000. The firm expects violated the WARN Act requirement of 60 to lease 7,000 to 10,000 square feet, days notice for any “plant closing” that A plaintiff who was sexually harassed but will need only about 4,000 to causes a six-month “employment loss” for by her supervisor defeated summary judg- 5,000 square feet for its own purpos- at least 50 employees of a business with ment in Judge Arthur D. Spatt’s courtroom es at the outset. Thus, several thou- at least 100 employees. Judge Michael B. (E.D.N.Y.) based on Faragher, Ellerth, sand square feet of space will Mukasey (S.D.N.Y.) found inapplicable and Judge Jack B. Weinstein’s Second Cir- probably be available for sublet to the exception for a “business circumstance cuit decision in Gallagher v. Delaney, 139 solo lawyers and/or small firms. The that is not reasonably foreseeable,” which F.3d 338 (2d Cir. 1998). Although some space is expected to be Class Aspace requires a “sudden, dramatic, and unex- claims against the individuals involved with amenities such as kitchen, library, pected action or condition outside the were dismissed, the claim against her conference rooms, plus a reception- employer’s control.” Trial will proceed as employer based upon vicarious liability ist. The rent will probably be in the to damages. Hotel Employees & Restau- survived, with the court considering the $50 per square foot range. Anyone rant Employees Int’l Union v. RAROC, employer’s claims of Faragher-Ellerth interested in such space should call Inc., No. 99 Civ. 3078 (MBM), 2000 WL affirmative defenses and ruling that they Gerry Filippatos at 212-245-1000 204537 (S.D.N.Y. 2/22/00). presented a jury question, not appropriate for summary judgment. Ackerman v. POSITION WANTED WORKERS’ COMPENSATION National Financial Systems, ___ F. Supp. Experienced union and plaintiffs’ 2d ___, NYLJ 2/8/00, p. 37, col. 6 labor and employment lawyer, with The New York State Court of Appeals (E.D.N.Y. approx. 1/25/00). substantial litigation background, has held, once and for all, that Workers’ excellent academic record, and Compensation benefits are available for Whistleblower Law strong research and writing skills is mental and emotional injuries on the job A doctor who reported a colleague in seeking full-time, part time, per diem as well as physical ones. A claimant, who the burn center of the hospital where he or hourly employment. Please con- had been the manager of a supermarket, worked as behaving in a mentally dis- tact Louise. Telephone: (212) 543- was diagnosed with panic disorder and turbed manner and providing “question- 2466; fax: (212) 781-9979; E-mail: hospitalized after a series of negative able treatment” to burn victims under his [email protected] changes in his working conditions. Two care, and who was then stripped of his seasoned co-managers had been replaced faculty appointment at Cornell Universi- with allegedly incompetent individuals, ty Medical College and transferred to and the store’s night crew were assigned Appellate Division, however, noted that Jamaica Hospital with a pay cut, stated a to the day shift, so that shelves had to be the hospital did not provide any affidavits claim under New York’s private-sector restocked during busy daytime hours, cre- or documentation to support its claim that whistleblower law, N.Y. Labor L. 740, ating increased pressure on everyone. Those there was no substance to the plaintiff’s said the Appellate Division, First Depart- changes were reversed while the claimant allegations, “asserting that any material ment. The lower court (Franklin Weiss- was absent on his medical leave. Of course, relating to its investigation is privileged.” berg, J., Sup. Ct. N.Y. Cty.) had granted Workers’Compensation benefits are ridicu- Accordingly, the court said, it had not car- summary judgment to the employer, hold- lously small. The implication of this deci- ried its burden of proof on the summary ing that the plaintiff had failed to state a sion is that an employee who cannot prove judgment motion. Dr. Jerome Finkel- prima facie case: he was not transferred that his employer intentionally broke down stein v. Cornell University Medical Col- or demoted immediately after his com- his mental or emotional condition in order lege, ___ A.D.2d ___, N.Y.L.J. 2/3/00, p. plaint, and the employer had stated a legit- to get rid of him for discriminatory rea- 27, col. 4 (1st Dep’t approx. 1/15/00). imate nondiscriminatory reason for its sons is relegated to the Workers’ Com- actions. (The employer claimed that the pensation Law for his remedy; Workers’ tensions between the plaintiff and his WARN ACT Comp still does not cover intentional torts. Matter of De Paoli v. Great A&P Tea allegedly disturbed colleague were dis- A defendant violated the Worker Adjust- Co., ___ N.Y.S.2d ___, N.Y.L.J. 2/25/00, rupting the hospital’s Burn Unit, where ment and Retraining Notification Act p. 26, col. 1 (Ct. Apps. 2/24/00). they were the only two physicians.) The (“WARN Act”) by failing to notify restau-

15 Workers Compensation & Social Security Disability

PETER S. TIPOGRAPH, ESQ. SHER, HERMAN, BELLONE & TIPOGRAPH, P.C.

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and

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We have proudly represented the injured and disabled for over thirty years.