Author Archive

Jury Awards Paralegal $700,000 in Pregnancy Discrimination Case

Some time ago, Baker & McKenzie got sued for sexual harassment. That case sent shockwaves throughout lawfirms nationwide.

A case out of New York last week  (ABA Journal Online, 8/22) will not reverberate nearly that loudly but considering how some lawfirms are still perceived (fairly or unfairly) as not being “family-friendly”, the case should be of concern nonetheless.  

A jury has awarded about $720,000 in damages to an associate and paralegal who claimed they were forced out of their New York law firm because of their pregnancies.

Garden City, N.Y., tax law firm Siegel, Fenchel & Peddy will only have to pay about $266,000 if the verdict is upheld because of a punitive damages cap, the firm’s lawyer told the New York Law Journal.

Obviously, there’s always more to the story than the headlines (and, it should be noted that the lawfirm strongly denied the allegations), but I can’t help but wonder how many other lawfirms are ripe for such lawsuits because of the perception of the firm.  Given stereotypes of the hard-charging lawyer, it’s not that hard to then believe that a firm would discriminate against someone perceived to be not working as hard because of their pregnancy. 

Can I Go First? Trial Lawyers Get a Leg Up on Depositions

Critical to any lawsuit is who gets to go first in taking depositions.  Most of the time, the party that notices the deposition first, gets priority in scheduling.

That’s why a new court decision in Connecticut will send shivers through businesses because it now allows trial lawyers and their clients to always go first.  While the rule will just apply to Connecticut employers, other states may have similar rules (or imprecise practice procedural) in place.

How could this happen, particularly when procedural court rules are designed to make sure that each party has a fair chance during a case? Well, it’s an example of how imprecise language can get twisted around; in this case, the court held that the rules preventing discovery from beginning are separate from the rules allowing depositions.

In the first in-depth written decision on the point, Waterbury Superior Court Judge Jane Scholl has concluded that a plaintiff can file a notice of deposition with the initial complaint. This tactical advantage gives the plaintiff first crack at digging up — or nailing down — key information in the case.

Scholl ruled hat the Practice Book rules “do not restrict when notices of depositions may be served,” so long as the deposition takes place at least 20 days after the case has formally begun.

The decision is not sitting well with defense lawyers. This “essentially means that a defendant can never take a plaintiff’s deposition first, which seems unfair,” said David J. Robinson, one of the attorneys working on the medical malpractice case over which Scholl is presiding.

I would not be surprised to see this issue brought up to Connecticut judges as they sit and review the procedural rules. But for businesses in Connecticut, it’s going to be an uphill battle…and its going to increase the stress in defending the case when you have to submit to a deposition without even knowing all the facts that the plaintiff might allege. (CT Law Tribune, 8/25, subscription required)

Lies, Damned Lies and Court Statistics…

Hartford, CT likes to count Mark Twain as one of its native sons; for those planning your next vacation to Hartford, his old house is designed to evoke a steamship. Among the quotes attributed to him (but actually cribbed from Disraeli) is: “There are three kinds of lies: lies, damned lies and statistics.”

I wonder what he’d think of the latest statistics about case filings and dispositions in our federal courts. [Update: The statistics were just released on August 20th.]  We just got our printed version in the office on Friday (and the stats are now available here online). Could the days of “Overlawyered” be numbered with an actual decline in certain types of lawsuits? Nah, but some of the numbers sure are curious.

In Connecticut, for example, new lawsuits are down over 20 percent in the last ten years or so. Employment discrimination lawsuits are down almost 25 percent nationwide since 2000.

But as Twain hinted, stats aren’t always what they seem. While certain areas have seen decreases, others have seen increases. Wage & hour claims are up 25 percent since 2000 and claims filed in parts of Florida have skyrocketed over the last year or so.

So, is litigation up or down in federal courts? Yes and no. It just depends how you crunch the numbers.

After Setting Fires, Firefighter Wants Job Back

In 1997, Erie, Pa. hired its first female firefighter. Nearly a decade later, she was quietly fired after setting fire to her father’s house as part of a suicide attempt.  In fact, the Erie Civil Service Commission wrote at the time that: “Her setting a fire … is the single most significant act a fire fighter may not commit.  The act of establishing a fire in a residence is wholly incompatible with the role of the fire fighter, despite the mitigating circumstances of [her] psychological state.”  Now, she has brought her appeal public in a filing in local courts earlier this year. (GoErie.com, 3/24)

Paycheck Fairness Act Takes Center Stage

Can anyone have seriously imagined that a retired worker from Goodyear would rise to national prominence over a case she lost at the U.S. Supreme Court regarding statute of limitations? And yet, at tonight’s Democratic National Convention, Lilly Ledbetter will take center stage for a few minutes.

No doubt we’ll hear about the Paycheck Fairness Act bill because she’s not endorsing anyone for President.  “Equal Pay for Equal Work” has been one of the talking points of the week.   

There’s been lots of talk of late about the act, which arose from the Ledbetter case (though there was also a Lilly Ledbetter Fair Pay Act bill out there as well). One of the bill’s co-sponsors, Rosa DeLauro commented on it on the Huffington Post late last week and I summarized the latest debate about the bill in a post as well.  Businesses and others have been critical of the act, even though it passed the U.S. House of Representatives last month  (Heritage WebMemo, 7/30; Examiner, 8/6; OpenMarket, 8/6). 

What’s missing from the debate about the bill, unfortunately, is a discussion about what the bill is about and should be about.   It’s not really about pay equity — after all, we already have the Equal Pay Act for that. It’s really about allowing indivdiuals to recover much more in the way of damages than they could otherwise recover (though you’d be hard-pressed to make heads or tails of it from the seemingly technical language used).   And frankly, there’s nothing wrong with advancing that goal if there was a fair debate on the merits.

But unfortunately, the public debate on the bill seems to fall into the classic stereotypes that each side rolls out with a piece of new legislation.  Proponents of the bill suggest that those who are for the bill are FOR pay equity, and those opposing the bill are AGAINST pay equity, which is just hyperbole.  Opponents of the bill have used hyperbole of their own, ignoring the fact that corporations have had to comply with the Equal Pay Act for years and that many are well-suited to address such claims.    

It’s hard to see how some changes will have any real impact on employers.  For instance, one part changes the language regarding a “factor other than sex” defense that an employer can raise to a “bona fide factor other than sex”.   While one can debate the theorhetical differences in language, the real-world effect of the change is probably minimal for employers.  After all, do employers really make salary decisions and think “well, I can explain the differences with reason, but is it a ‘bona fide’ reason”?  And small businesses will be excluded from the act, in the same way that they are excluded from coverage under the Fair Labor Standards Act.

On the other hand, proponents of the bill gloss over the fact that removing some caps on compensatory and punitive damages — as the bill proposes — could have a significant effect on employers and the likelihood of lawsuits (one need only look at the rise of Title VII litigation after the Civil Rights Act of 1991 was passed for a historical perspective). 

Proponents also ignore the fact that the punitive damages portion of the bill would mark a change in philosophy regarding punitive damages (to see the changes in context, click here).  For example, one change would allow punitive damages to be awarded even when no intentional discrimination has been proved — which contradicts the traditional notion that punitive damages should be issued to punish the defendant for some type of malice or reckless behavior. 

The political reality is that some version of this bill is going to get passed and employers need to keep a watchful eye on the bill.  We’ll see in the upcoming weeks whether a compromise is eventually fashioned (much like the compromise being done for the ADA Amendments Act of 2008) or whether this is just political posturing in an election year.  Either way, here’s (perhaps foolishly) hoping that the debate on the bill’s merits gets more substantive than just slogans.

(At Point of Law, Walter Olson’s other site, Carter Wood provides his insights into tonight’s happenings as well.)

Trainspotting? Man Jumps from Train, then Sues

A U.S. District Court judge threw out the lawsuit of an Amtrak railroad passenger who claimed he injured himself when he jumped from a train that he had boarded in error.  If you guessed that alcohol would somehow be involved, you are correct.  You can download the whole decision here.

The facts are even more interesting with confusion from the plaintiff as to who sold him his ticket and how he boarded the wrong train, proving once again that you can’t make this stuff up. The Court’s decision has the details:

On the evening of May 19, 2005, the plaintiff consumed approximately five large tequila-based margarita cocktails [note to court: don’t all margaritas have tequilla?] at a New Haven restaurant before walking to the New Haven Railroad Station. …

The plaintiff testified that the ticket agent told him that the train was on track number eight, that it was already there, and that it was the last train  so he “better hurry.” Without looking at the announcement board in the train station, the plaintiff walked to platform eight and boarded out-of-service Metro-North train number 1570. The train’s doors then closed and the train traveled for between seven and fifteen minutes before stopping at the New Haven Train Yard.

When the train doors opened, the plaintiff noticed that the train was not stopped at a platform, and he walked throughout the train and yelled for assistance but was unable to find anyone. Unable to see the ground below the train, the plaintiff jumped from the train car and injured his ankle. He then called 911 with his cell phone. Metro-North police responded, and the plaintiff was transported to Yale New Haven Hospital.

And then, of course, he sued….

Is It In the Job Description?

And you thought you had a tough day at work.

Apparently, that pales in comparison to the day that one undercover cop had from Texas. His job was so rough, he claims that he had to have sex with a prostitute during a sting operation.  Unfortunately for him, his superiors didn’t think it was required. After being suspended, he’s brought suit challenging his discipline. At trial, here is his, ahem, money quote: “If you are asking if I had an orgasm, yes. It was a job, sir,” the cop said. “I didn’t have pleasure doing this. I was paid to do it.” (Beaumont Enterprise, 8/21)

Wrestlers Slam WWE and Claim: We’re Not Independent Contractors

What would Andre the Giant have thought about a new lawsuit just removed to federal court on Friday?  Three wrestlers, Scott Levy (better known as Raven), Christopher Klucsarits (known as Chris Kanyon) and Michael Sanders (“Above Average” Mike Sanders), have brought a class-action lawsuit against the Connecticut-based World Wrestling Entertainment, Inc. company alleging that they have been misclassified as “independent contractors” instead of employees. They are seeking unspecified “financial benefits” that would have come with being an employee.  WWE has denied the claims in a 10-Q filing but has not filed a formal response yet.   Of course, Overlawyered has chronicled lawsuits like this before — previous a group of strippers also claimed that they were not independent contractors.   (You can read more about the claims and download the lawsuit directly at my site here.)

Guest Blogger: May The Schwartz Be With You

Ever wonder who that “Schwartz” is listed under the “Other Law Blogs” links on the right of this page is? (Go ahead and check, I’ll wait.)

Well, it’s none other than me, Dan Schwartz, your guest blogger for the week.  I’m honored to be guest-blogging here for the week — nearly one year after I started my very own Connecticut Employment Law Blog.  When I’m not blogging, I’m a lawyer for Pullman & Comley, a terrific medium-sized firm that represents lots of businesses in Connecticut and beyond.   I’m a mere cub next to Overlawyered’s grizzled vets, but I’ll try to keep up with the pace this week.

So what do I blog about? Well, the blog’s title is that obvious, but it’s a little more than that too.  Crazy laws and strange cases are always ripe for discussion, but so does the item that passes beneath the radar.  Too often, employment cases are given short shrift with important details left out.   Litigation is much more complex than just winners and losers and sometimes the “loser” of the case may actually be the “winner” if they’ve done better than a settlement demand, for instance.

What’s on the agenda this week? You’ll just have to check back.  But keep forwarding those tips, suggestions and feedback.  And my sincere thanks to Walter and the Overlawyered team for the opportunity.