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

VOLUME 11, NO. 7 December 2003 Jonathan Ben-Asher, Editor Members to Vote in NELA Board Elections Filings, Trials and Settlements This fall, the NELA/NY Board of NELA/NY’s Executive Director, Shelley Directors revised NELA/NY’s Bylaws to Leinheardt, on or before December 5, In this column, we publish cases provide that the membership will vote to 2004. which NELA/NY members have fill two vacant seats on the Board each Statements in support of a candidate recently filed, tried or settled. Please year. The new procedures go into effect will be provided to each member either send information on your cases to this year, for the election of the 2004 electronically or in hard copy. In addi- Jonathan Ben-Asher at jb-a@bmbf. Board. tion, on December 10 we are holding an com. Please include the parties, Up to now, members of NELA New Open Membership Meeting, during which court, counsel for both sides, a short York’s Board of Directors have been candidates can discuss their interests and description of the underlying facts elected each December, by the current views. (6:00 p.m., at the office of Bern- and issues, and anything else which Board. In 2001, the Board revised the stein, Litowitz, Berger & Grossman, 1285 you think your colleagues would Bylaws so that Board members may only Avenue of the Americas). find particularly tantalizing. serve for five consecutive years. To put No later than December 22, 2003, Shel- Unfortunately, we have had only that change into effect, several Board ley will be sending to each member, by a few submissions for this issue. members have been ‘retiring’ off the mail or e-mail, an election ballot and Rather than concluding that NELA Board each year, in order of seniority, to instructions for voting. Members may members have stopped filing, allow for the election of NELA/NY mem- vote for up to two separate candidates for settling or winning cases, we will bers who are new to the Board. As a the Board. Ballots must be returned to assume they are feeling uncharac- result, three members of the current Board Shelley no later than January 6, 2004, in teristically shy about letting their are finishing their first year of service, order to be counted. colleagues know about their achieve- and three are finishing their second. The two candidates with the highest ments, and that this will pass in time In October, in the hope of making the number of votes will be deemed elected for our next issue. Board more inclusive, the Board of Direc- to the Board, as long as twenty-five per Bob Herbst of Beldock Levine tors approved a changed in the Bylaws cent of the membership has returned valid & Hoffman reports success in two under which two Board members will be ballots. If less than two candidates are unusual cases. In one, he settled a elected each year by the membership of popularly elected, the Board, at the Annu- single plaintiff age discrimination NELA/New York. This is how the elec- al Meeting, may choose one or more of case against Fleet Bank, on appeal, tions will work: the unsuccessful candidates to fill a seat for $1.67 million. Bob tried the case Sixty days before the Board’s Annual on the Board. Candidates who unsuc- for five weeks in New Jersey Supe- Meeting, all NELA/NY members will be cessfully sought election by the mem- rior Court (Bergen County), on asked to submit nominations for popular bership may also submit their names to behalf of a branch manager who was election; this letter went out to member- the Board for election by the Board. The terminated for age-related reasons. ship in mid November. Members may Board will meet on January 21, 2004, to The jury awarded her $1 million, either nominate themselves or nominate complete elections for the 2004 Board. and prejudgment interest and attor- another member in good standing. All We hope each of you will join in par- neys fees resulted in a judgment for nominations must be accompanied by a ticipating in the elections, and help make $1.73 million. O’Shea v. Summit statement in support of the candidate, NELA/NY a better and more vigorous Bancorp which should be no more than 600 words. advocate for employee rights. We wel- The plaintiff was terminated at Nominations and statements in support come your contributions the age of 52, after working her way of nominations must be received by the See FILINGS, page 11 A Word from Your The NELA/NY Publisher Calendar of Events The New York Employee Advocate is published quarterly by the National Employ- December 16 ¥ 6:30 Ð 9:00 p.m. January 21 ¥ 6:00 p.m. ment Lawyers Association, New York HOLIDAY PARTY Board of Directors Meeting Chapter, NELA/NY, 3 Park Ave., 29th Floor, Malika Restaurant Completion of Board Elections New York, New York 10016. (212) 317- 210 East 43rd Street Outten & Golden 2291. E-mail: nelany@nelanycom. Unso- (between 2nd and 3rd Avenues) 3 Park Avenue Ð 29th floor licited articles and letters are welcome but $25 per person includes open bar and cannot be returned. Published articles do buffet dinner. Attorneys in practice February 25 ¥ 6:30 not necessarily reflect the opinion of five years or less are guests of NELA Board of Directors Meeting NELA/NY or its Board of Directors, as the RSVP to Shelley Leinheardt. 3 Park Avenue Ð 29th floor expression of opinion by all NELA/NY members through this Newsletter is encour- January 7 ¥ 6:30 p.m. March 3 aged. © 2003 National Employment NELA NITE NELA Nite Lawyers Association/New York Inc. Topic: To be announced Sex Harassment Items for the calendar may be submitted Presented by the Sex Discrimination by calling Shelley Leinheardt: and Sexual Harassment Committee April 30 Upstate Regional Conference (212) 317-2291 Outten & Golden Fax: (212) 977-4005 3 Park Avenue Ð 29th floor Doubletree Hotel Syracuse, New York 3 Park Avenue, 29th Floor New York, NY 10016 January 15 ¥ 5:30 p.m. E-mail: [email protected] Judicial Reception May 7 Southern District of New York NELA/NY Spring Conference Editor: Jonathan Ben-Asher Yale Club of New York 500 Pearl Street Ð 8th floor Executive Board of NELA/NY: Food and drink Herbert Eisenberg (President), Arnold H. Pedowitz (Vice President) Robert M. Rosen (Vice President) William D. Frumkin (Secretary) Pearl Zuchlewski (Secretary) Adam T. Klein (Treasurer) Lee F. Bantle, Jonathan Ben-Asher, Anne Talk to a Judge without Saying “Pretext”: L. Clark, Ronald G. Dunn, Catherine K. Ruckelshaus, Darnley D. Stewart, Robert NELA/NY will hold its second reception for the judiciary on January 15, at the H. Stroup and Philip E. Taubman federal courthouse at 500 Pearl Street in Manhattan. The reception will honor judges Executive Director: Shelley Leinheardt who have given their time to speak at NELA conferences over the years. As of this printing, eight judges are expected to attend. They are: Magistrate-Judge Ronald L. Ellis, SDNY Judge , EDNY Advertise in the Judge Denny Chin, SDNY New York Employee Advocate Judge Denise L. Cote, SDNY Magistrate-Judge Steven M. Gold, EDNY Call Shelley for advertising information at (212) 317-2291. The following is our rate Magistrate-Judge Viktor V. Pohorelsky, EDNY schedule: Judge Sidney H. Stein, SDNY Full Page: $250.00 Judge Shira A. Scheindlin, SDNY Half Page: $150.00 This is a chance to chat informally with members of the bench who are partic- Quarter Page: $80.00 ularly interested in employment law issues, and who have indicated their interest Eighth Page: $45.00 in talking with us. Food and drinks will be served. The reception begins at 5:30. Advertising in our Classified Section is only $25.00 for 6 lines, plus $5.00 for each additional line.

2 President’s Column by Herb Eisenberg, President, NELA/NY In considering what to write for this of those who would otherwise discrimi- Through our judiciary committee, we have column, my thoughts first leaned toward nate but for fear of enforcement of the reached out to the courts, and through our the state of our country—the terrible laws. When we seek to enforce the law, speakers bureau, to other advocacy situation in Iraq, the untold suffering of we act patriotically. That we derive per- groups, to better educate them about the so many here in the United States with sonal satisfaction in seeking justice for work that we do. the economy weak and so many unem- those who have been unlawfully treated, NELA lawyers have set a standard. We ployed, tax breaks for the wealthy and the and that we are able to earn a living doing educate our membership through our con- curtailment of services for those with lim- so, is a wonderful thing. ferences. In litigation, we show the judi- ited means and less privilege. I thought The founder of NELA, Paul Tobias, ciary and the defense bar that there are about the parallels between our struggles has said that with the talents and assets of plaintiffs' employment lawyers who know with opponents in litigation as employ- all NELA members combined, we now what they are doing and can make their ment lawyers and issues that have arisen have the world's largest plaintiffs' employ- clients pay big verdicts and large attorneys' in the Bush administration. ment law firm in the country. Being a fee awards. Our successful law practices The administration’s stalling with NELA member means being able to call have, in turn, made it easier for everyone regard to the 9/11 Commission’s request a colleague at any time, at any place, for else who practices in this area. As a group for documents is emblematic of its any reason, to ask for assistance on a we are now more likely to succeed, rather approach to governing. The administra- moment's notice. The assistance we get is than being stereotyped as lawyers who tion is holding back documents from the rapid and first rate. With the advent of the bring cases without merit into federal court. 9/11 Commission in the hope that the NELANY listserve, we can bounce ques- NELA lawyers shatter that stereotype. Commission’s tenure will end before the tions off each other and generally get sev- We must continue to fight for our dispute over the documents is resolved. eral good answers to our problems in less clients to vindicate their rights. Those who The administration is adept at repetition than an hour. With the constant activity of have not yet gotten involved in NELA/NY as a public relations tool: if one says some- our listserve, we each have a responsibil- must keep NELA/NY moving forward thing enough times, it becomes something ity to keep the discussion at a high level. and growing with our many committees people believe. It repeatedly argued that But our organization is more than that. and efforts to assist one another. We must going into Iraq was necessitated by the NELA has been active on behalf of its speak out in the face of injustice, and we terrorism suffered in this country. Even- members in the Council, must make our voices heard. As I write, tually admitting that there was no direct where we have attempted to reinvigorate we are 311 members strong. Our collec- link between 9/11 and Iraq does not the protections of the New York City tive voice can have a substantial impact redeem the administration’s irresponsible Human Rights Law. By helping each other through our work in public policy, legal agenda and is something people may not and working to change public policy, we education and advocacy. We owe it to our yet even know or believe. have made NELA an important resource clients, to ourselves and to our fellow I also wanted to write about the impor- for employment lawyers in New York. attorneys to get involved. tance of speaking out in the face of injus- tice and the patriotism that such discourse exemplifies. Patriotism has again been NELA Member News defined by those who tow the Bush NELA’s New Congratulations to four of our members administration line. Unfortunately, the on the birth of their children: word has been commandeered to curtail Home Rebecca Houlding and Serge Avery - son critical analysis and to justify polariza- NELA has moved, to an office Owen Samson, born April 28, 2003 tion, revenge, destruction and war. It no where our tireless Executive Direc- longer is seen as describing those who tor can stretch out a little bit. NELA’s Preston and Eileen Leschins- son Samuel cherish justice, democracy and the con- new home is: born June 9, 2003. stitution and who speak our minds in sup- 3 Park Avenue, 29th Fl. Laura Dilimetin and Adam Rubin - son port of these ideals. We must proudly wear New York, NY 10016 Noah Alexander, born October 16, 2003 the moniker of being “patriotic.” Tel: 212.317.2291 Allegra Fishel and Peter Rich - daughter The work we do as NELA lawyers Fax: 212.977.4005 Mariel Clara Fishel-Rich, born December epitomizes this old fashioned kind of patri- Please also note NELA/NY’s 7, 2003. otism. NELA lawyers make a significant new e-mail address: nelany@ impact both locally and on a national level. nelany.com On a more judicial note, Ellen Gesmer was By asserting the rights of countless indi- elected in November to the New York State vidual clients, we inhibit the misconduct Supreme Court, New York County.

3 The National Employment Law Project: Helping Workers and Working with NELA

The National Employment Law Project important provider of direct individual- interested in co-counseling with NELA/NY (NELP) is a national organization located ized employment and labor law services members. in New York City with close ties to many to low-income New Yorkers. NELP For questions, contact NELAmembers here and around the coun- encourages NELA attorney participation Cathy Ruckelshaus try. NELP’s Litigation Director, Cathy in the clinics. Litigation Director Ruckelshaus, is on NELA/NY’s Board, and In addition, NELP’s litigation focuses National Employment Law Project NELP has co-counseled a class action wage primarily on the rights of undocumented 55 John Street, 7th Floor and hour lawsuit with Adam Klein and Scott workers, unpaid minimum wage and over- New York, NY10038 Moss of Outten & Golden. NELP and time claims, and the rights of contingent (212) 285-3025 NELA share many common interests, and or nonstandard workers, and NELP is www.nelp.org NELP would like to encourage more NELA-NELP collaborations. First, some background. NELP has advocated for over 30 years Letter to the Editor on behalf of low-wage workers, the poor, the unemployed, and other groups that face To the Editor: significant barriers to employment and gov- I very much appreciate the thoughts expressed by Arnie Pedowitz in his lead ernment support systems. Several common column in the previous issue, which opened with the question: where are we with themes connect NELP’s work: ensuring respect to diversity in NELA/NY? that employment laws cover all workers; The question continues to be as timely as it was in the days of PELA, NELA/NY’s supporting worker organizing and alliance- predecessor. I have also grappled with many of the same questions that Arnie rais- building among key constituent groups es, with the same stumbling onto tentative conclusions. I do agree with Arnie that working with low-wage workers; helping NELA/NY is open and hospitable to all. Not the smallest reason for this is that workers stay connected to jobs and employ- Arnie is quite willing to graciously pick up the tab when the bill arrives for drinks ment benefits; and expanding employment consumed by newbies. Arnie, cheers. laws to meet the needs of workers and fam- I would suggest, in addition to what Arnie suggests in the way of affirmative ilies in changing economic conditions. action / recruitment efforts, that members consider that the issue of diversity is one NELP was created in 1969 in response of a larger constellation of social issues. Seen this way, it is evident that a sub- to the flood of employment-related ques- stantial reason for under representation in NELA/NY is the under representation tions posed by legal services attorneys to a that generally exists in the positions of social influence, such as politics, corporate clinical program at Columbia Law School. boardships and yes, our profession of law. Today, legal services attorneys and other For years, I have complained about the inaccessibility of 80 Centre Street, which advocates working with low-wage work- hosts a variety of New York County parts. But the din is so overwhelming and the ers and the unemployed, including com- reach of my voice is so limited, that the problem of architectural inaccessibility munity-based organizations, service remains. If NELA/NY were to champion the cause of making these judicial parts providers, labor unions, and others call accessible NOW, the effect of this outreach effort would exceed the impact of at NELP with many of the same kinds of ques- least one hundred bar tabs and inclusions into speaking slots. tions. In addition, advocates come forward For years, I have insisted that the Task force on Minorities in the Judiciary be with newer concerns that reflect changes commissioned to investigate the de facto under representation of judges with dis- in the U.S. economy over the past quarter abilities in our legal system. To paraphrase Rodney Dangerfield, I don’t feel as if century, including the declining value of I get the respect I deserve when I raise this issue. the minimum wage, the shift from a man- The point I’m arriving at is this : NELA/NY needs to step up its activism in ufacturing to a service-based economy, and general a whole qualitative notch NOW. If it exercised the leadership desperately the tremendous growth of the contingent needed to challenge the major areas of minority powerlessness in our society, or workforce. at least as they exist in our own profession, then increased opportunities for the In the months following the September attainment of diversity would, in my opinion, naturally surface in the context of 11th disaster, NELP helped to launch the NELA/NY’s most meaningful progressive activities. The alternative, as always first-ever workers’ rights clinics serving and as Pink Floyd might say, is to be just another brick in the wall. low income New Yorkers, in partnership In solidarity, with the Legal Aid Society and MFY Legal Kipp Elliott Watson Services.This now-thriving clinic is an

4 NELA’s Softball Anne’s Squibs Team Triumphs by Anne Golden by Scott Moss Note: Readers are invited to send us extensive litigation and a trip to the Sec- Central Park, NYÐ On July 15th, the decisions in their cases, or in recent cases ond Circuit Court of Appeals, the plain- NELA/NY softball juggernaut marched they come across, that are of wide enough tiffs prevailed on one of three claims. In to victory over... well, over the other appeal to be discussed in these pages. awarding attorneys’ fees for work on the NELA/ NY softball juggernaut. The Send them directly to: successful claim, the court allowed a rate seven-inning game was a 18-16 slugfest, of $430 and $400 an hour for the lead possibly a result of the unseasonably low Anne Golden attorneys, each of whom had over thirty barometric pressure causing fly balls to Outten & Golden LLP years’experience in employment and civil travel unusually far. 3 Park Ave rights law. Citing, inter alia, Green v. Fifteen NELA/NY members, friends, New York, NY 10016 Torres, 2002 WL 922174 (S.D.N.Y. May and family played before an eager crowd Fax: (212) 977-4005 7, 2002), in which NELA/NY member of four at the NELA/NY Second Annual E-mail: [email protected] Robert Herbst was compensated at $400 Summer Softball Outing, on a lovely field Further note: Of course, these squibs an hour, the court acknowledged such in the Central Park north meadow. High- are by no means exhaustive, nor should rates are “on the high end” but within the lights of the slow-pitch yet fast-paced you rely upon them as a substitute for reasonable range for experienced attor- game included: Shelley “Line Drive” doing your own research and actually neys in the district. Additionally, the court Leinheardt’s (2B) first hit in decades; Pre- reading the cases. Thanks to Claire Shu- exercised its discretion to award the full ston “Wild Thing” Leschins’s (P) sus- bik, an associate at Outten & Golden LLP, hourly rate for travel time because “the penseful pitches (knuckleballs?) to all for help in the preparation of these squibs. total [travel] time is de minimis and the portions of the backstop; Scott Moss’s travel prevented the attorneys from mak- (P/2B) gloveless defense (we were short ATTORNEYS’ FEES ing more productive use of their time.” a glove); the youthful on-field presence The work of two not-yet-licensed recent New York State National Organization of law students Brad Repinsky (SS) and law graduates has been found compens- for Women v. Pataki, --- F. Supp. 2d -- Jamie Sinrich (2B/OF); and a cheering able at $100 an hour, the rate of a recent- -, 2003 WL 2006608 (S.D.N.Y. 4/30/03). section led by Anne Golden and Preston ly admitted attorney in the jurisdiction. Leona is happier by the minute. After Leshins’s wife and newborn (5 weeks!) In reviewing the fee application of the substantially trimming the punitive dam- son Sam. The other players included Brad Law Offices of Frederick K. Brewington ages award against her for sexual orien- Conover (SS), Chris Edelson (OF), Herb in a non-employment civil rights case, tation discrimination, Justice Walter B. Eisenberg (1B), Bob Felix (OF), Bob Judge (E.D.N.Y.) found Tolub of the New York County Supreme Herbst (1B), Ed Miller (3B), Linda Neilan that the graduates’ work was substantive Court significantly reduced the attorneys’ (2B), Eric Nelson (OF), Mike O'Brien and similar to the type that would be fees in the much-publicized case against (OF), Sarah Outten (2B/OF), and Brian assigned to a new associate. While law the Helmsley Corporation. Using feder- the random guy hanging around Central graduates would typically be compen- al Title VII cases as his comparators, Jus- Park who joined us (3B). sated at $50, a paralegal rate, the judge tice Tolub found the plaintiff’s attorney’s Thanks to Lieff Cabraser Heimann and found that the graduates had performed staffing assignments and number of billed Bernstein for providing the equipment legal research and case preparation; hours excessive. The court noted that in and to Outten & Golden for providing indeed, one of the graduates had billed a year and a half of litigation, the plain- beverages and snacks. more hours than anyone else except the tiffs’ attorneys in Bair v. Bois, 219 F. lead attorney. In addition to holding $100 Supp. 2d 510 (S.D.N.Y. 2002), another an hour a reasonable rate for the gradu- high-profile case, had billed 410 hours, ates, the judge granted virtually all of the while for a comparable period, counsel plaintiff’s fee application, reducing only in the Helmsley matter logged over 2,045 the requested amount of compensation hours. The court found that “the numer- for some clerical work performed by the ous conferences held with a multitude of Dues Are Due lead attorney. Duke v. County of partners constitutes a terrible waste.” Nassau, N.Y.L.J. 4/25/03, p. 1, col. 3 Additionally, in contrast to NOW v. Pata- You will be receiving an invoice (4/14/03). ki, supra, the court deemed $300 an hour for 2004 NELA/New York. Please Judge Robert L. Carter (S.D.N.Y.) has the appropriate compensation rate for an pay your dues promptly, as we approved a fee award in a class action experienced civil rights attorney. Finally, depend on member dues to fund our brought against the New York State Divi- the court disallowed the requested award activities. sion of Human Rights for violating the of costs for computerized legal research, due process rights of complainants. After deeming such costs overhead, no differ-

5 SQUIBS, from page 5 missed, however, because neither party Kennedy concluded that the jury had had provided enough information for the sought to punish the insurance company ent from the investment in a legal library. court to decide whether the employer had for bad acts committed in another state that Bell v. Helmsley, 2003 WL 21057630, a qualified privilege. Mirabella v. Turn- had no nexus to the conduct at issue in the 3003 N.Y. Slip Op. 50866(U), N.Y.L.J. er Broadcasting Systems, Inc., --- F. case. After reiterating the “guideposts” 4/2/03, p. 20, col. 3 (Sup. Ct. N.Y. Cty. Supp. 2d ---, 2003 WL 21146657 articulated in BMW v. Gore, 517 U.S. 559 3/27/03). (S.D.N.Y. 5/19/03) (Barbara Jones, J.). (1996), for reviewing punitive damages awards—the degree of reprehensibility, the CONTRACT COUNTERCLAIMS disparity between actual harm and the puni- Existence of Contract A former salesperson classified as an tive damages award, and the difference A contract must have consideration. independent contractor filed claims for between the punitive damage award and The managing director of a company’s denial of benefits under ERISA and for civil penalties imposed in comparable “global institutional sales division” unpaid commissions under the New York cases—Justice Kennedy went on to com- brought in a large account which, before Labor Law and common law. When plain- ment that, “in practice, few awards exceed- it could generate its full revenue, was tiff filed an amended complaint, defendant ing a single-digit ratio between punitive ended in conjunction with an “escheat- asserted a variety of counterclaims, such and compensatory damages … will satis- ment issue.” Despite the lost account, the as trade infringement, tortious interference, fy due process.” While Justice Kennedy employer allegedly promised him a bonus and misappropriation of proprietary infor- denied that he was imposing “a bright line correlated to the amount of profit the mation. The counterclaims were based on ratio,” Justice Ginsberg’s dissent charac- account would have generated had it not events that occurred during and after plain- terized the Court’s “single-digit ratio” rec- been lost. The employer never paid, and tiff’s employment with defendant, and were ommendation as “marching orders.” She the plaintiff sued for breach of contract. known to defendant prior to the time plain- further disagreed with Justice Kennedy’s Judge Miriam Goldman Cedarbaum tiff filed this action. Plaintiff then moved characterization of the facts, finding ample (S.D.N.Y.), however, held that he lacked to amend the complaint to add news claims evidence on the record showing that the a valid contract. Because the promise to asserting that the counterclaims were company’s conduct toward the plaintiffs compensate the plaintiff as though the unlawful retaliation under ERISA and New was part of a company-wide policy that account had generated the projected rev- York Labor Law. Mag. Judge Freeman caused extreme damages within Utah. Jus- enue was made after he had brought in ruled that because the counterclaims could tices Scalia and Thomas wrote separate the client, “plaintiff’s work … could not potentially affect plaintiff’s personal and dissents rejecting the applicability of the have been bargained for in exchange for professional reputation and his ongoing due process clause to review of punitive the subsequent promise”—it was only efforts to create and maintain his own busi- damages. State Farm Mutual Automo- past consideration, which, under New ness, they could constitute adverse employ- bile Insurance v. Campbell, 538 U.S. York law, is no consideration at all. ment actions sufficient to sustain retaliation 1513, 135 L. Ed. 2d 585 (4/7/03). Arnone v. Deutsche Bank, No. 02 Civ. claims. Mag. Judge Freeman granted the 4915, 2003 WL 21088514 (S.D.N.Y. motion to amend in its entirety. Plaintiff DISCOVERY 5/13/03). was represented by NELA member Anne Judge Shira Scheindlin (S.D.N.Y.), in Implied Covenant Clark of Vladeck, Waldman, Elias & Engel- a detailed opinion, has clarified the test for In New York, every contract carries hard, P.C. Kreinik v. Showbran Photo, cost-shifting in the production of electronic with it an implied covenant of good faith Inc., 2003 WL 22339268 (SDNY discovery material. Concerned that pro- and fair dealing. An at-will employee, 10/14/03), (Mag. Judge Freeman) ducing parties have often exaggerated the however, even one who has an employ- burden associated with producing elec- ment contract, cannot rely on this covenant DAMAGES tronic data, Judge Scheindlin classified except under certain circumstances, and The Supreme Court has again muddied general types of electronic data and the an employee who has no contract cannot the waters in the debate over punitive dam- costs associated with the retrieval and pro- rely on it at all. An ex-employee who ages. Examining a Utah state jury award duction of each type. Because most elec- alleged that he was terminated so that his of $2.6 million in compensatory damages tronic data is easily retrievable at minimum employer could avoid paying him com- and $145 million in punitive damages cost, in most cases cost-shifting should not missions and bonuses lost on two grounds: against an insurance company for bad faith, apply. Two types of data, however—back- the bonuses were discretionary, and the fraud, and intentional infliction of emo- up tapes and erased, fragmented, or dam- employer’s policies did not constitute a tional distress, Justice Kennedy, writing aged data—may require expensive, time- contract anyway. The plaintiff’s slander for the Court, found the punitive damages consuming retrieval. In cases involving claim, based upon alleged statements by award unreasonable, disproportionate to such tapes and data, therefore, a court various employees of the defendant that the wrong committed, and an arbitrary should first determine what data may be he contended had dissuaded prospective deprivation of the company’s property. found by requiring the “responding party employers from hiring him, was not dis- In a fact-dependent decision, Justice See SQUIBS, next page

6 SQUIBS, from page 6 to restore and produce responsive docu- NELARS ALERT ments from a small sample” of data. Once it has been generally determined what a As many of you know, NELARS is an attorney referral service established by search will produce, the court may then con- NELA/NY in 1992. NELARS was founded asÐÐ and remains todayÐÐ a potential sider cost-shifting. The primary inquiry in referral source for NELA members, as well as other attorneys. In 2003 alone, a cost-shifting analysis is, “How important NELARS panel members earned tens of thousands of dollars in fees on cases is the sough-after evidence in comparison referred to them by NELARS. to the cost of production?” The requesting Beyond its professional mission, however, NELARS also serves an important parties should not be required to show that public purpose: to provide members of the public who have not yet secured legal the discovery would render “a gold mine” representation with quality representation from our members. Needless to say, but only that probative evidence would result NELARS’ survival depends on attorney participation. from production. Factors for the court to In our effort to constantly improve NELARS, we are soliciting NELA mem- consider when ruling on cost-shifting bers’ input as to any problems you have had with the program or things that you include: the extent to which the request is believe could be done better. You may contact NELA/NY Board Member Darn- specifically tailored to discover relevant ley Stewart directly at (212) 554-1476 with any comments or concerns. information; the availability of such infor- Roseni Plaza, a former NELARS administrator, has returned to NELARS as its mation from other sources; the total cost of new administrator. Roseni is working twenty hours per week. NELARS new office is production compared to the amount in con- at Outten & Golden, 3 Park Avenue, New York, N.Y., 29th floor, 10016. NELARS’ troversy and compared to the resources avail- phone number, as before, is 212 819-9450; the new facsimile number is 212 977-4005. able to each party; the relative ability of each Finally, if you are currently not a NELARS member, please consider joining. Please party to control costs and its incentive to do also keep NELARS in mind when you have a potential case you cannot take on. so; the importance of the issues at stake in You can obtain a NELARS information packet from NELA/NY’s Executive the litigation; and the relative benefits to the Director, Shelley Leinheardt, by calling her at 212 317-2291, or call Roseni at parties of obtaining the information. Judge 212 819-9450. Scheindlin stressed that these factors (a refined version of the factors articulated by Magistrate Judge Francis in Rowe Enter- much of the coverage referred to the record- severance pay plan because he refused to tainment v. William Morris, 205 F.R.D. ings. Justice Herbert Kramer (Supreme sign a release that included a two-year 421 (S.D.N.Y. 2002)) are not to be weighed Court, Kings County) found no violation restrictive covenant. He pointed out that equally, but all are questions to be consid- of any of the disciplinary rules prohibiting the written plan did not mention the require- ered in determining the cost- a lawyer from engaging in dishonest con- ment of the restrictive covenant. (Neither benefit of production. It is important, the duct. The court did not find the conduct party disputed that the severance pay plan judge cautioned, that the court maintain the dishonest, given the permissibility of was governed by ERISA.) The employee presumption, articulated in the Federal Rules, recording one’s own phone conversations had not seen the language of the release for production without cost-shifting. Zubu- in New York. Not only did the holding sup- before his termination. He challenged the lake v. UBS Warburg, --- F. Supp. 2d ---, port the plaintiff, but the court gave a solic- denial of benefits, arguing that the plan 2003 WL 21087136 (S.D.N.Y. 5/13/03). itous nod to all plaintiffs’ employment administrator had acted arbitrarily and lawyers when it commented that “[t]he capriciously in conditioning the payment ETHICS public at large has an interest in insuring of benefits on agreement to the non-solic- that all of its members are treated with that itation provision, as well as in refusing to An attorney who assisted his client in modicum of respect and dignity that is the amend the provision for him when the the client’s taping of a conversation with entitlement of every employee regardless administrator had agreed to amend it for her employer/harasser did not violate the of race, creed or national origin.” This well- three other employees. The district court New York Disciplinary Rules and the phrased judicial endorsement of a fair was not persuaded by his argument, but recordings were admissible. A Key Food workplace is nice support for a diverse the Tenth Circuit Court of Appeals was. It employee bringing a “racial bias suit” asked range of employment cases. Mena v. Key reversed the district court’s grant of sum- her attorney to help her record conversa- Food Stores Co-Operative, Inc., 758 mary judgment to the employer and tions in her office. The attorney put the N.Y.S.2d 246, N.Y.L.J. 3/31/03, p. 33, col. remanded the case. The plan’s mere state- client in touch with a private investigator 2 (Sup. Ct. Kings Cty. 3/20/03). ment that benefits would be conditioned who set her up with a recording device. on an “Agreement and General Release” The employee then recorded a conversa- ERISA without further describing its terms made tion with her supervisor in which he asked the restrictive covenant an “arbitration and if a job applicant was a “fucking nigger.” No Release Required for Severance Pay irrational” requirement. Cirulis v. Unum Once litigation commenced, the attorney A terminated employee was told that arraigned for press coverage of the case; he would get no payment pursuant to a See SQUIBS, next page

7 to the Deputy Commissioner and enclosed the Director’s ‘smoking gun’ letter with their appeals. The Deputy Commissioner September 30, 2003 upheld the Director’s decision. Judge Fred- erick J. Scullin (N.D.N.Y.), however, found Dear NELA/NY members: that the Deputy Commissioner had deci- sionmaking authority and that his refusal W e are pleased to share with our colleagues a recent to permit the plaintiff to retest demonstrat- decision in which we were involved, which appeared today ed deliberate indifference to her First Amendment rights. NELAmember Richard on page 18 of the New York Law Journal. A. Maroka represented the Plaintiff. Lath- Since the decision refers to a subject which is frequently rop v. Onondaga County, 220 F. Supp. 2d 129 (N.D.N.Y., 9/12/02). involved in sexual harassment cases, we thought it would be of interest to our members. JURISDICTION Tisi v. Verizon New York, Inc. NYLJ, Diversity Jurisdiction A former employee with a breach of September 30, 2003, p.18 contract claim saw his state complaint removed to federal court based upon diver- Regards, sity jurisdiction which he argued did not Murray Schwartz Davida S. Perry exist. The plaintiff contended that the employer was a New York citizen for diver- Schwartz & Perry sity purposes, since its principal place of Phone: (212) 889-6565 business (he contended) was New York, based upon the company’s website and its Email: [email protected] representations to employee recruiting data- bases and consumer reporting agencies. The court (Richard C. Casey, S.D.N.Y.) disagreed and denied the motion to remand SQUIBS, from page 7 diction. The court further commented that to state court. The court found that com- Corp. Severance Plan, 21 F.3d 1010 (10th the plaintiff had not demonstrated a threat plete diversity existed as to all parties based Cir. 3/5/03). of irreparable harm warranting an injunc- upon the “nerve center” test, which iden- tion. Levich v. Liberty Central School tifies the place where overall policy orig- FIRST AMENDMENT District, --- F. Supp. 2d ---, 2003 WL inates. Most of its top executive officers 1957495 (S.D.N.Y. 4/23/03). A world history high school teacher were located in Connecticut, most of its brought an action alleging a violation of Public Employees “Executive Council” and its “Line of Busi- his first amendment rights when his school The Northern District of New York has ness Leaders” were there, and most of the district disciplined him for a letter he had found the Central New York Police Acad- members of the Board of Directors worked written to school parents stating that he was emy liable under a Monell ¤ 1983 claim from the Connecticut office. The compa- unqualified to teach the American history arising out of one municipal decision. The ny was incorporated in Pennsylvania. course to which he had been assigned. Judge plaintiff was a Police Academy student “Removal was therefore proper as no Conner (S.D.N.Y.) refused to exercise when she brought a claim of discrimina- defendant is a citizen of New York.” jurisdiction in accordance with Younger v. tion against the Academy. At the time she Arnold v. Towers Perrin, --- F. Supp. 2d Harris, 401 U.S. 37, 91 (1971). Younger filed her claim, the plaintiff was awaiting ---, 2003 WL 1878421 (S.D.N.Y. 4/15/03). instructs a federal court to abstain from retesting on her “defensive tactics skills.” exercising jurisdiction when there is an Upon gaining notice of her claim, howev- PROCEDURE ongoing state proceeding involving an er, the Academy refused to let her retest, Minimum Number of Employees important state interest, and the plaintiff thus foreclosing her ability to graduate the The Supreme Court recently consid- will have adequate opportunity for judicial Academy and begin work as an officer. In ered the question of whether four physi- review of his constitutional claims. Stress- the letter announcing that the plaintiff would cian-shareholders who constituted a ing the school district’s interest in main- not be retested, the Director of the Acade- medical clinic’s board of directors should taining order, as well as the plaintiff’s my explained that the Academy’s adverse be counted toward the 15-employee min- opportunity to have his constitutional claims decision was based on the plaintiff’s filing imum required for ADA jurisdiction. With- heard through an Article 75 proceeding, the of a discrimination claim. The plaintiff and court chose to abstain from exercising juris- her husband wrote several letters of appeal See SQUIBS, next page

8 SQUIBS, from page 8 out the four, the minimum was not met and EMPLOYMENT MEDIATOR there was no ADA coverage. The Court referred to the common-law element of control to resolve this issue in the case of ROBERT LEWIS a professional corporation. (This was the touchstone advocated by the EEOC as ami- cus curiae, in accordance with its guide- EXPERIENCED — INNOVATIVE — SUCCESSFUL lines.) In an opinion by Justice Stevens, with Justices Ginsburg and Breyer dis- “Bob Lewis has proven to be a natural. senting, the Court remanded for more evi- With his demonstrated understanding dence because the district court’s findings appeared to support the conclusion that the of employment laws, policies and practices, four physicians were more masters than and his ability to communicate effectively, servants, but evidence in the record might contradict those findings or support a con- he has proven to be a very effective mediator. trary conclusion under the EEOC’s stan- He is a breath of fresh air to the World of Mediation.” dard. Clackamas Gastroenterology Associates, P.C. v. Wells, 123 U.S. 1673, —Michael Bertty, ADR Program Coordinator, EEOC, NY 155 L. Ed. 2d 615 (4/22/03). Summary Judgment In a class action brought by African Award for distinguished professional achievement by Labor American and Latino New York City Employment Law Committee, Nassau County Bar Association. police officers against the NYPD for, inter alia, discriminatory disciplinary enforce- ment, Judge Lewis A. Kaplan (S.D.N.Y.) dismissed the claims of certain named • Appointed mediator by EEOC plaintiffs, to the extent that these claims were adjudicated in prior Article 78 pro- • U.S. District Courts, Eastern & Southern Districts of New York ceedings. The named plaintiffs in ques- • Supreme Court, State of New York tion had all been dismissed from the N.Y.P.D. for alleged misconduct. They had • Cofounder, Jackson Lewis LLP all challenged their dismissals in Article • Member, National Employment Lawyers Association - NELA/NY 78 proceedings. Several of the plaintiffs had specifically raised the issue of dis- • Counsel, NYS Employees Council 50, AFSCME, AFL criminatory animus in their Article 78s. In the case of these plaintiffs, Judge Kaplan found that the Article 78 proceedings— proceedings to determine if a state agency’s (516) 482-1448 [email protected] decision is arbitrary and capricious—had fully litigated and decided the issue of dis- crimination. These plaintiffs consequent- RACE DISCRIMINATION impacted Hispanics. The Post Office con- ly were precluded under the Statistics ceded that data on the number of promo- Rooker-Feldman doctrine from raising the The preference articulated in Wards tion applicants was unavailable. issue of discriminatory discipline in the Cove Packing Co. v. Atonio, 490 U.S. Consequently, the plaintiff produced a sta- federal proceeding. Two the plaintiffs, 642 (1989), that claims of disparate impact tistical analysis comparing the total num- however, had not argued discriminatory in hiring and promotion be supported by ber of Hispanic postal workers in the state motivation during their Article 78 pro- an analysis of the number of minority to the number of Hispanic postal work- ceedings. These plaintiffs were not pre- job/promotion applicants, is not a man- ers in the Post Office’s top pay grades. cluded from litigating the issue of date that such statistics are always nec- The district court granted the defendant’s discriminatory disciplinary enforcement essary to maintain such a claim. A motion for summary judgment because before the district court. Latino Officers Hispanic postal worker brought a dis- the plaintiff had not presented evidence Association v. The City of New York, parate impact suit against the Post Office, regarding the promotion application pool. 235 F. Supp. 2d 771, 2003 WL 1701221 claiming that the Post Office’s promotion The Second Circuit Court of Appeals (S.D.N.Y. 3/31/03). practices in Connecticut disparately See SQUIBS, next page

9 LAW FIRM OF SCOTT M. RIEMER

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

❏ Administrative Remedies 60 East 42nd Street ❏ Trials and Appeals 47th Floor ❏ Class Actions New York, New York 10165 ❏ Co-Counsel Services Telephone: (212) 297-0700 Telefax: (212) 297-0730

SQUIBS, from page 9 facie case because “Title VII does not pro- SEXUAL HARASSMENT hibit discrimination based solely on one’s reversed and remanded, explaining that Hostile Environment choice to work part time” (emphasis Wards Cove permits statistical analysis Without discussing whether construc- added). Furthermore, the court found that of “otherwise-qualified applicants” when tive discharge is a tangible employment the plaintiff had failed to make out a dis- statistics on the actual applicant pool are action, which would make the Faragher/ parate impact claim because she did not unavailable. Malave v. Potter, 320 F.3d Ellerth affirmative defense unavailable to compare the promotion rate of female par- 321 (2d Cir. 2/20/03). a defendant, Judge Gerald E. Lynch ents to male parents, but instead compared (S.D.N.Y.) granted summary judgment to the promotion rate of individuals taking SEX DISCRIMINATION the employer in a case where a manager’s flex time (presumably all women) to other sexual harassment drove a female employ- In an uncharacteristically harsh deci- employees. This case is notable because ee out of her job. It did so after finding, as sion, Judge Robert L. Carter (S.D.N.Y.) it found no inference of discrimination in a threshold matter, that the harassment was has held that an employee’s claims—that the employer’s practice—a more extreme severe or pervasive enough to alter the her employer did not promote her because rationale than the alternative holding that plaintiff’s terms and conditions of employ- she is a mother and that her employer had the practice was arguably discriminatory ment. Then, however, the court did not a practice of denying promotions to moth- but had a legitimate business purpose. even discuss whether the affirmative ers—failed as a matter of law. The plain- Additionally, the court construed the defense was available or not but appeared tiff, a staff attorney for a financial services responsibilities of motherhood as a choice, simply to assume that it was. Noting that group, had consistently advanced in her rather than viewing the constraints of the the employer had a written sexual harass- company until she took advantage of a employment environment that conflict ment policy and that the employee refused flex-time schedule after the birth of her with motherhood as colorable discrimi- to cooperate with Human Resources’inves- second child. The company likewise failed nation. Capruso v. Hartford Financial tigation of her complaint, the court found to promote other female attorneys who Services Group, --- F. Supp. 2d ---, No. unavailing her concern about violation of took part-time and flex-time schedules 01 Civ. 4250, 2003 WL 1872653 her privacy or the reaction of co-workers, after having children. Acknowledging all (S.D.N.Y. 4/10/03). or her concern that “creating any kind of these facts, the court still concluded that the plaintiff failed to make out a prima See SQUIBS, next page

10 FILINGS, from page 1 Phil Taubman settled a race discrimi- CLASSIFIED AD nation case against the City of New York up from secretary to branch manager in for $135,000. Jones v. City of New York three years. She spent another 8 years as Chelsea area law firm needs (S.D.N.Y). The plaintiff was a 41 year old one of the most successful branch man- litigation paralegal to oversee African-American woman who worked as agers in the bank, which has over 100 State Court collection docket and a corrections officer. Ms. Jones had a con- branches, at one point being named Branch provide support in arbitration and sensual sexual relationship with a fellow Manager of the Year. After the merger of other proceedings 4 days a week 7 employee, who had a higher rank. After Summit Bank and United Jersey Bank, two hours a day. Candidate must have she ended that relationship, the employee 36 year old women were appointed her strong skills - WP 9.0, Excel, began to relentlessly pursue her, sexually Regional Manager and Area Manager. Access required. Please fax harass her, touch and spit at her, and threat- Plaintiff argued that these women wanted resumes to Sophia 212 627-8182 en her with discipline and retaliation. She to replace her with a 28 year old. They there- or email to [email protected]. attempted to transfer positions, but her fore took her from formal warning to final requests were denied. The Department of warning to termination in 90 days. Plain- Corrections refused to investigate, claim- tiff also introduced statistical evidence sexually harassed during their pre-employ- ing the issues were not EEO matters. Plain- showing that the post-merger reduction in ment physical exams. The harassment tiff’s union also refused to help her. force resulted in disproportionate termina- ranged from improper questions and com- Eventually she prevailed on the District tions of branch managers over 50. ments to touching of the breasts and gen- Attorney’s office to arrest the employee. Bob reports that the plaintiff’s entire italia without gloves. Bob’s firm She was eventually transferred to another identity and source of self-esteem was her represented eight of the plaintiffs. facility, but because of the stress related to job with Summit Bank. Accordingly, her Plaintiffs filed at the EEOC, and wait- the harassment, took sick leave for almost treatment and termination was devastating ed for it to evaluate the matter. To preserve a year. A jury found the employee inno- to her. She could not recover, could not the state law claims, plaintiffs later filed cent of the criminal charges, and he quit take another banking or corporate job, and claims of assault, battery and malpractice. the Department. DOC’s EEO office final- hardly mitigated. The plaintiff’s economist The EEOC filed an action in the Eastern ly investigated. It found plaintiff’s allega- testified that her lost earnings were $1 mil- District, and plaintiffs intervened, trans- tions to be credible, concluded that other lion, but the jury only awarded $250,000 ferring the state law claims there. The women had complained of assaults by the in economic loss, finding that she did not EEOC then canvassed 1000 or so current employee, and found that an investigator mitigate. The jury also awarded her and former Lutheran employees and found had been removed from the case because $750,000 in emotional distress damages. over forty more potential plaintiffs. After of his efforts to look into it. The EEOC Plaintiff’s experts included the statistician, mediation with mediator Linda Singer, the found probable cause. Plaintiff did not have the economist, a vocational psychologist case settled for just under $5.5 million, of lost earnings, but based her claim for pain and her treating therapist. which Bob’s eight clients received just and suffering on medical evidence of Post- Bob also reports that in conjunction with under $2 million. Lutheran was represented traumatic Stress Disorder, including psy- the EEOC, his firm settled a sexual harass- by Betsy Plevan of Proskauer, Rose. chotherapy and medication, and many ment case against Lutheran Medical Cen- Givant, et al. v. Lutheran Medical Cen- medical issues related to the harassment. ter on behalf of over 50 women who were ter

SQUIBS, from page 10 The Second Circuit Court of Appeals, ticulars of each employee’s work day and however, has held that constructive dis- was the senior employee on the site. Under waves” could cause retaliation or hurt her charge is not a tangible employment action those circumstances, the court held that he opportunities within the company. The for purposes of Faragher/Ellerth analy- was the plaintiff’s “supervisor” and the plaintiff also said she believed that upper sis. Caridad v. Metro-North Commuter employer could be held vicariously liable, management condoned sexual harassment R.R., 191 F.3d 283, 294 (2d Cir. 1999), because the power over her that the employ- because her manager had joked that cert. denied, 529 U.S. 1107 (2000). It fol- er gave him enabled him to create or main- employees should get any sexual harass- lowed that unfortunate principle again tain the hostile environment. Since the ment “out of [their] systems” before sched- recently in a case whose primary analysis employee had quit instead of taking a trans- uled sexual harassment training took place; concerned whether a mechanic in charge fer and had not given the employer time the court found this equally inadequate to of other mechanics was the “supervisor” to investigate or act on her complaint, how- support a reasonable belief that using the of one of them (the plaintiff) such that the ever, all her claims except hostile envi- company’s complaint policy would be inef- employer was vicariously liable under Title ronment were properly dismissed (by Judge fective. Breeding v. Cendant Corpora- VII. The decision was written by Judge , S.D.N.Y.). Mack v. Otis tion, --- F. Supp. 2d ---, 2003 WL 1907971 Robert D. Sack and was joined by Judges Elevator Co., 326 F.3d 116, 2003 WL (S.D.N.Y. 4/17/03). Wilfred Feinberg and Richard Cardamone. 1860722 (2d Cir. 4/11/03). The mechanic in charge directed the par-

11 Workers Compensation & Social Security Disability

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