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: [email protected] 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 Advertise in the New York Employee Advocate Call Shelley for advertising information at (212) 317-2291. The following is our rate Attention E-mailers schedule: Full Page: $250.00 If you have an e-mail address, you should notify Shelley Leinheardt as soon as pos- Half Page: $150.00 sible. Even if you have already given Shelley your e-mail address, get it to her again, Quarter Page: $80.00 because there have been some glitches in sending and receiving messages. We will Eighth Page: $45.00 need your e-mail address if you want to use the new website.You can either e-mail Advertising in our Classified Section is her at [email protected] or call her at 212 317-2291. only $25.00 for 6 lines, plus $5.00 for each additional line. 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.

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