NEWS
Employment Law and Practice
Lamberton again invited to join PBI Employment Law West Faculty
August 15, 2008 1:57 AM
Once again, the Pennsylvania Bar Institute has asked Charles A. Lamberton
to join the faculty for the annual Employment Law West 2-day seminar to take place in Pittsburgh in October, 2008. Mr. Lamberton will be joining veteran
employment defense attorney Patrick J. Ritchey of Reed Smith, LLC in co-presenting two classes on "Hot Topics in Employment Law."
Summary Judgment seminar exceeds expectations
April 28, 2008 12:58 PM
With over 50 attendees and a dynamic discussion among our distinguished panel of judges, the recent seminar on Local Rule 56.1 was an overwhelming success. Discussions are underway to make the program an "annual," with a different practice topic and rotating panel of judges each year. Our deepest thanks to
Judge Hardiman, Chief Judge Ambrose, Judge Conti and Judge Fischer for their
time and contributions to the program.
Lamberton to co-moderate seminar on summary judgment practice
April 21, 2008 9:36 AM
On April 24, 2008, Charles A. Lamberton will co-moderate "Local Rule 56.1 - The Judges Speak Out," a seminar on summary judgment practice in federal court. The distinguished panelists include the Hon. Thomas M. Hardiman, Judge, United States Court of Appeals for the Third Circuit, the Hon. Donetta W. Ambrose, Chief Judge, U.S. District Court, Western District of Pennsylvania, the Hon. Joy Flowers Conti, Judge, U.S. District Court, Western District of Pennsylvania, and the Hon. Nora Barry Fischer, Judge, U.S. District Court, Western District of Pennsylvania.
Lamberton joins faculty on PBI's annual "Basics of Employment Law" CLE April 21, 2008 9:44 AM
Charles A. Lamberton will serve on the expert panel for the annual "Basics of Employment Law" seminar, sponsored by the Pennsylvania Bar Institute, in June, 2008. "It's always a great honor to be invited to serve on the faculty," Lamberton said. "This seminar invariably fills the room. It's a great way to teach other lawyers who don't practice in the area full-time a little bit about each of the anti-discrimination laws. My good friends Jim Carroll and Colleen Ramage Johnston at Rothman Gordon, P.C. are also on the panel representing the plaintiffs' bar. I'm looking forward to it."
Lamberton expands mediation practice March 19, 2008 3:11 PM
Following the recent expansion of the U.S. DCT W.D.Pa.'s mandatory early Alternative Dispute Resolution ("ADR") program, Charles A. Lamberton completed an intensive 40-hour mediation certification course offered by the
District Court and the Federal Bar Association. Mr. Lamberton is available for mediations and early neutral evaluations in all employment and civil rights cases.
"Early ADR is fundamentally an effort to settle the case," Lamberton said. "Parties pick me because of my subject-matter expertise and ability to communicate with decisionmakers on both sides. They want my opinions and suggestions, and I work hard to help them reach an agreement." Lamberton said he expects his mediation practice will continue to grow as more employment and civil rights cases are filed in court. "You can argue all day long about what's causing the spike in civil rights actions. But here's a little secret. The parties don't care. They're in litigation. They've picked me to help them end their battle and move on with their lives, and I'm going to work like hell to do just that."
Echostar lawyers sanctioned under federal statute March 22, 2008 12:31 PM
A unanimous panel of the United States Court of Appeals for the 10th Circuit upheld a punitive sanction of more than $60,000.00 against Echostar's lawyers for vexatiously and unreasonably increasing the cost of litigation in a routine arbitration dispute. The 10th Circuit affirmed the sanction without requiring oral argument, a telltale sign that all of Echostar's arguments for avoiding the sanction were completely meritless. Read the excerpts from the 10th Circuit's opinion here.
Supreme Court deems EEOC Intake a Charge of Discrimination March 6, 2008 8:13 AM
The failure to file the proper form to complain about job-related discrimination does not deprive an employee of the ability to go into court later with a discrimination lawsuit, the Supreme Court recently ruled. Click on this link to read the opinion in Federal Express v. Holowecki.
Supreme Court finds role for "me-too" evidence February 27, 2008 9:00 AM
The Supreme Court yesterday decided Sprint/United Management Co. v. Mendelsohn (Case No. 06-1121), a decision that is without question a victory for plaintiffs across the spectrum of civil rights statutes. The case concerns the admissibility of "other supervisor" (a.k.a. "me-too") evidence to support an inference that a particular employment decision was more likely than not infected by bias. In an opinion authored by Justice Thomas for a unanimous Court, the Court rejected Sprint's suggestion of a rigid per se rule excluding as irrelevant and/or unduly prejudicial all "other supervisor" evidence in all employment discrimination cases. The Court made it clear that "[r]elevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules." (Slip. Op. at 8). "The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry." (Slip Op. at 8-9)
Judgment entered against Harrison Township February 22, 2008 8:43 AM
We are pleased to announce the entry of judgment in favor of our client and against Harrison Township on our claims under the ADA, FMLA and PHRA. This was a major victory for our client, whom the Township terminated after 25 years of unblemished service when he took a brief period of medical leave from work.
Altmire Amendment expands FMLA protections February 11, 2008 8:17 AM
Thanks to the efforts of Pennsylvania's new Congressman from the 4th District, effective January 28, 2008, the Family and Medical Leave Act (FMLA) was amended to provide protected leave for employees who need time off to handle “exigencies” related to an immediate family member’s military service or call-up for service, and to care for a family member who is injured during military service.
Stereotype at your own risk January 31, 2008 10:21 AM
Stereotyping occurs when a perceived group characteristic is applied to a member of the group without inquiring about, or in conscious disregard of, individualized information that distinguishes the member from the perception about the group. In this video, the office worker sabotages her colleague of middle-eastern decent simply because he is middle-eastern. She is acting on her pre-existing discriminatory belief system about persons of mid-east descent, i.e., that they are Islamic fanatics and terrorists. Our elected officials and media have fed these irrational, uncritical misconceptions by constant references to "Islamo-facism," "radical Muslim extremism," and the "war on terror." The fact is that America is a country of immigrants, and employees who are immigrants - including immigrants from the middle east or those with a mid-east ancestry - are highly talented, motivated and committed to their jobs. They deserve fair treatment in the workplace, and the law entitles them to it.
Tell the truth now, save money later
Employment is terminable at any time for any reason or no reason, so long as the reason is not illegal. Thus, while it is illegal to fire someone because of disability, or because, for example, they have filed a workers' compensation claim, it is perfectly legal to fire someone because of the color of their tie or for any other irrational or patently crazy reason. If an employer simply tells the truth about the real reason for its decision, the likelihood is that the reason is legal. But when employers dissemble and point to factors that were not really part of the decisionmaking process, they invite plaintiffs' counsel to file a pretext case. Telling the truth, even when it is uncomfortable, is the least expensive way to manage legal risk when terminating employment.
EEOC sets sights on Morgan Stanley
Brokerage powerhouse Morgan Stanley requires "experienced" financial advisers to generate more business than less experienced ones. The EEOC is now asking whether the firm discriminated against older brokers who didn't meet the higher production standards. In a recent letter sent to hundreds of former Morgan Stanley brokers, the EEOC announced it is investigating several large-scale layoffs that took place in August 2005, when Morgan Stanley terminated hundreds of brokers who did not meet the higher production hurdles. As brokers gained seniority, they had to generate higher commissions and fees to remain employed. Read more here.
PPG Resisting Discovery in Age Class Action
Not unexpectedly, obtaining routine discovery from PPG on its prior reductions in force has been like pulling teeth. Kudos to my good friends and co-counsel at Obermayer Rebmann Maxwell & Hippel, LLP - Bruce C. Fox, Melissa L. Evans, Rudy A. Fabian and Kathleen Sheehan - for producing this persuasive brief in support of our motion to compel.
Twombly a Boon for Defense Bar
More motions anyone? The defense bar has seized on Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), a narrow case about how to plead conspiracy under the U.S. anti-trust laws, to justify a new breed of non-dispositive motions that are rapidly congesting federal dockets. The gist of a Twombly motion is that a plaintiff's original complaint can usually be made more specific, so the court should dismiss it and order the plaintiff to file an amended complaint. Never mind that the defendant already understands the issues, never mind that most employment discrimination complaints are painstakingly fact pled from the get go, and never mind that the Supreme Court did not intend its holding in Twombly to extend beyond anti-trust litigation (only a week after Twombly, the Supreme Court held in Erickson v. Pardus, 127 S.Ct. 2197 (2007) that Rule 8's “short and plain statement” did not require allegations of specific facts so long as the complaint gives the defendant fair notice about what the claim is and the grounds on which it rests). We suspect that judges will eventually understand Twombly motions for what they are: financial opportunities for lawyers who bill by the hour, which can rarely be justified by actual value realized for the client. In the meantime, lawyers will continue to file these make-work motions, and courts will labor under the weight of more paper.
Pittsburgh Court Certifies National Disability Class Action
Last night at about 7:00 p.m., the Honorable Joy Flowers Conti of the United States District Court of the Western District of Pennsylvania issued a 204 page Opinion and Order certifying a nationwide disability class action against United Parcel Service, Inc. for its repeated, pervasive patterns and practices of discrimination against persons with disabilities. The UPS class may include tens of thousands of former UPS employees who required medical leave and then were not allowed to return to work. Judge Conti's thoughtful, well-reasoned and thoroughly researched opinion may very well be the longest opinion to ever issue from the District Court. It plainly demonstrates what those who have practiced before her have known for several years: not only is she a balanced, even-tempered and hard-working jurist, she is a true scholar of the law. The plaintiffs are represented by my excellent friend and colleague Christian Bagin, Esq. of Wienand and Bagin in Pittsburgh, the class action firm of Scott+Scott of Connecticut and San Diego, and the Equal Justice Foundation of Ohio.
Lamberton to Co-Present Employment Arbitration Seminar
Nationally recognized Mediator and Arbitrator Robert Creo has invited Mr. Lamberton to co-present a seminar on the arbitration of employment disputes. The seminar was held in June, 2007 and received very positive feedback from all attendees. Mr. Lamberton was honored to work with one of the Country’s leading authorities on Alternative Dispute Resolution.
Lamberton to Lead Inaugural Meet and DIscuss
Charles A. Lamberton will lead the first Meet and Discuss session of the Labor and Employment Law Section of the Allegheny County Bar Association. These meetings are modeled on the monthly meetings of Pittsburgh NELA, which is a group of lawyers whose practice, like mine, focuses solely on representing plaintiffs in employment and civil rights cases. The LES meetings will include members of the defense bar, whose input and insights on cases are invaluable. Local lawyers are invited to attend these lunchtime meetings to share their thoughts, ask questions and generally discuss anything related to our field of practice. The meetings are intended to promote collegiality among the bar, stimulate creative thinking and help develop a shared understanding of the "rules of the game" in our field. I anticipate the meetings will be a lot of fun and benefit everyone who participates. The meetings will be held at noon on the third Thursday of each month, in the Academy Room at the ACBA's offices on the 9th Floor of the City-County Building, and the first meeting will be held at noon on Thursday, Feb. 22. The topic of discussion at that meeting will be the new ADR program in federal court, specifically as it relates to labor and employment cases.
Lamberton Named Pennsylvania Super Lawyer
The Lamberton Law Firm is pleased to announce that founding member Charles A. Lamberton has been named a Pennsylvania Super Lawyer. This distinction is conferred on only 5% of the practicing bar in each State. Each Super Lawyer is chosen by their peers as being among the best in the profession. The top 5% are named Super Lawyers based on votes from attorneys throughout the state who nominated the best lawyers they have personally observed in action. An attorney-led research staff reviewed the nominees’ credentials, licensure, and standing with the Bar, and assigned points based upon defined evaluation criteria. A Blue Ribbon panel of attorneys scored the top vote-getters, who were divided into 64 areas of practice. I am deeply honored to have been recognized as among the best employment lawyers in Pennsylvania.
6th Circuit Slams Keane
In Asmo v. Keane, Inc., No. 05-3818 (6th Cir. 12/18/06), the Sixth Circuit reversed an entry of summary judgment for the defendant on a record where the decisionmaker conspicuously failed to say "Congratulations" after the plaintiff announced her pregnancy. The court also cited the plaintiff's culture evidence, as well as the employer's articulation of changing reasons for terminating the plaintiff, as evidence of pretext. And, in what I think is a critical part of the decision, the court ruled that the plaintiff only needed to discredit "some" of Keane's articulated reasons, not all of them, or even a majority of them, to survive summary judgment. This case is well worth a read for its pretext analysis.
Judge Bounces Motion to Strike
It is common in the prosecution of employment discrimination cases to encounter frivolous motions to strike portions of the plaintiff's briefs and pleadings. Such motions are filed by fee-hungry defense firms seeking to generate billable hours and stall the litigation. They waste time and resources, and benefit no one except the lawyers representing the defendant. Recently, Judge Easterbrook of the 7th Circuit issued a scathing opinion in which he openly declared that motions to strike are sanctionable and should not be filed. This opinion should be cited whenever opposing a motion to strike. The case is Custom Vehicles, Inc. v. Forest River, Inc., No. 06-2009 (7th Cir., 9/25/06).
Workers Score Supreme Court Win
The Supreme Court has made it easier for workers in most parts of the country to sue employers for retaliating against them when they complain about sexual harassment or other discrimination. The court ruled that employees may collect damages even in cases where the retaliation does not involve getting fired or losing wages. The decision expands the legal rights of millions of workers who are covered by Title VII of the 1964 Civil Rights Act, the main federal law against job discrimination, and their employers. Source: Charles Lane, Washington Post
Request for Assistance Triggers ADA Duty of Reasonable Accommodation
The Third Circuit Court of Appeals has ruled that employees in need of reasonable accommodation under the ADA need not request a particular accommodation to trigger an employer's duty to engage in the interactive process. The case is Armstrong v. Burdette Tomlin Memorial Hosp., 438 F.3d 240 (3rd Cir. 2006).
Language for every case
An employment rights lawyer must be prepared to explain why it is reasonable to infer discrimination from an employer's dishonesty and dissembling. "If they have nothing to hide, why have they lied?" is a fair question in every discrimination case and should always be posed to the jury. Counsel should also explain why "circumstantial evidence" is reliable and worth crediting. Circumstances don't lie, they don't forget and they're never biased. Counsel should encourage the jury to apply its logic, reason and life experience to the question of discrimination. Tell it to use its sniff test. Does what the employer is saying make sense? Is it consistent with the employer's actual behavior in the past? Below is some useful language that can be adapted to any plaintiff's filing, especially where there is a need to educate a judge about the subtleties of a discrimination analysis.
The ultimate issue in a discrimination case is whether the defendant had discriminatory motive at the time of the adverse employment event. Marzano v. Computer Science Corp., Inc., 91 F.3d 497, 509 (3rd Cir. 1996) (“Employment discrimination cases center around a single question: Why did the employer take an adverse employment action against plaintiff?”). Because “[d]efendants of even minimal sophistication. . . neither admit discriminatory animus [n]or leave a paper trail demonstrating it,” discriminatory motive is difficult to prove. Aman v. Cort Furniture Rental, 85 F.3d 1074, 1083 (3rd Cir. 1996). Its existence must usually be inferred from the circumstances. Circumstantial proof of discriminatory motive is not only highly common, it is also very reliable.
"Anti-discrimination laws and lawsuits have "educated" would-be violators, [such that] employers’ and employees’ open use [of] derogatory epithets … appear[s] to be declining. Regrettably, however, this in no way suggests that discrimination … is near an end. Discrimination continues to pollute the social and economic mainstream of American life, and is often simply masked in more subtle forms. It has become easier to coat various forms of discrimination with the appearance of propriety, or to ascribe some other less odious intention to what is in reality discriminatory behavior. In other words, while discriminatory conduct persists, violators have learned not to leave the proverbial "smoking gun" behind. *** Courts today must be increasingly vigilant in their efforts to ensure that prohibited discrimination is not approved under the auspices of legitimate conduct, and a plaintiff's ability to prove discrimination indirectly or circumstantially must not be crippled because of crabbed notions of relevance or excessive mistrust of juries." 85 F.3d at 1083.
Where an employer's story is shown to be “weak, implausible, inconsistent, incoherent or contradictory,” or “foolish, imprudent or incompetent by comparison to its usual mode of operation,” discrimination can readily be inferred. Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir. 2000); Keller v. Orix Credit Alliance, 130 F.3d 1101 (3d Cir. 1997); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326 (3d Cir. 1995); Fuentes v. Perskie, 32 F.3d 759, 765 (3rd Cir. 1994). Once the credibility of the employer's story has been impeached, a fact finder is entitled to infer discriminatory motive. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000). As always, inferences about the employer's state of mind must be drawn from the record as a whole, for just as “[a] play cannot be understood on the basis of some of its scenes but only on its entire performance, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario.” Aman, 85 F.3d at 1085.
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