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Respected judge’s view on discovery is dangerous and wrong

A highly respected judge serving on the Third Circuit Circuit Court of Appeals recently told the crowd at the 2018 Federalist Society Convention: “If I were able to do something unilaterally, I would probably institute a new federal rule that said that all cases worth less than $500,000 will be tried without any discovery.” The audience applauded. A fellow panelist, Judge Amul Thapar of the 6th Circuit, chimed in, “Can I say amen?”

These judges are wrong. Their views on discovery, if sincerely held, are dangerous. Congress chose private parties – acting as private attorneys general – to enforce the laws requiring employers to pay what they owe and to treat people equally at work. Congress enacted fee-shifting rules to ensure lawyers would accept and litigate “small” cases – cases where the economic losses are less than $500,000 – because the social policies behind the laws are so important. Many economists would also argue that a $500,000 case to someone making $50,000 a year is much more important than a $50 Million case to Comcast, Apple, Amazon or GE.

When a case begins, the employer controls the witnesses, the documents, the emails, everything. Denying discovery would make cases that are already difficult on a good day impossible to win. No lawyer would agree to represent an individual in a civil rights case if the lawyer could not request documents from the employer or take depositions.

Any rule denying discovery in cases “worth” less than $500,000 would blow a hole through some of the most important federal laws ever written, deny justice to millions of working Americans, and make America less fair and less equal.

Crediting non-discriminatory reasons

older workers are at risk for workplace discrimination.The judicial function at the summary judgment stage is to decide whether a jury could reasonably find in the employee’s favor on the claim at issue. In making its decision, a court follows certain rules. One such rule is that the record must be examined as a whole. Another is that inferences must be drawn in the employee’s favor. And another is that the court may not make credibility determinations. Too often, however, courts focus on select pieces of the record to the exclusion of others, draw inferences in the employer’s favor, and make credibility determinations that favor the employer. The result can be dismissal even where the employee has produced powerful evidence of discrimination. These dismissals frequently occur under the cover of “but-for” causation, the causation standard applicable in federal age cases and non-age cases involving retaliation (other than SOX cases).

Consider an example involving a 62 year-old employee who was terminated without warning after 30 years of good performance. The employee testifies that his relatively new 44 year-old supervisor, the decisionmaker, consistently called him an “old fart” and said he should “retire because he is old” and because he needed to “make room for new, young talent.” The employee further testifies that the decisionmaker made frequent comments such as “old people are low energy, tired and forgetful.” The decisionmaker even sent an email telling the employee to “dress younger” at work. The employer denies that these comments were made and says that it fired the employee because of insubordination, citing an incident where the employee refused to follow one of his supervisor’s instructions. The employee admits he did not follow the instruction in question, but contends that the real reason he was fired was his age.

The employer moves for summary judgment. Pointing to the undisputed evidence of “insubordination,” the employer argues that the employee cannot prove that but-for his age, he would still be employed. The court agrees and dismisses the case.

In dismissing the case, the court has violated all three rules governing summary judgment. First, it has not considered the record as a whole, but only a portion of the record favoring the employer. Second, the court has failed to draw reasonable inferences in the employee’s favor, one certainly being that age discrimination tainted the termination decision. Third, the court has made a credibility determination. It has credited the employer’s stated reason for terminating the employee – insubordination. A jury, however, would not be required to credit that reason. A jury could find it unworthy of credence for any number of reasons, including intangible ones like witness demeanor at trial. A jury could also simultaneously believe that the employee was insubordinate, but that age discrimination was the but-for cause of the termination.

When courts stray from the three rules governing summary judgment, cases that should proceed to trial instead get dismissed. Employee rights lawyers must be vigilant in protecting their clients against unjust dismissals at the summary judgment stage.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Discrimination at its essence

imagesThe Third Circuit’s recent decision in Hassan v. City of New York, — F.3d —, 2015 WL 5933354 is a welcome reminder that the Court understands the real harm inflicted by discrimination. Discrimination is not, and I repeat not, principally an economic tort. Economic losses often result from discriminatory decisions, but discrimination is more about the dignitary – some would say spiritual – injury inflicted when one is judged or treated differently because of skin color, race, age, gender or religion.

The plaintiffs in Hassan claimed that they were targets of a wide-ranging surveillance program that the New York City Police Department (the “NYPD”) began in the wake of the September 11, 2001 terrorist attacks (the “Program”). They alleged that the Program was based on the false and stigmatizing premise that Muslim religious identity “is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.” They sued “to affirm the principle that individuals may not be singled out for intrusive investigation and pervasive surveillance that cause them continuing harm simply because they profess a certain faith.” The District Court threw the case out, believing that the Program had not caused any harm. The Third Circuit reversed. Let’s take in some of what the Appellate Court had to say.

“Discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of the disfavored group as innately inferior and therefore as less worthy participants in the political community, can cause serious non-economic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group. After all, the fundamental concern of discrimination law is to redress the dignitary affront that decisions based on group characteristics represent, not to guarantee specific economic expectancies. *** Our Nation’s history teaches the uncomfortable lesson that those not on discrimination’s receiving end can all too easily gloss over the badge of inferiority inflicted by unequal treatment itself.”

Defense lawyers, neutrals and judges who rely on lost wages alone to measure the harm inflicted by discriminatory decisionmaking would do well to read Hassan and reflect on the “dignitary affront that decisions based on group characteristics represent.”

The infamous bloc of five


This is the radical bloc of the United States Supreme Court – five men with life tenure, united in their right wing religious and political views – disdainful of precedent, disdainful of regulation and disdainful of all whose beliefs differ from their own. These are the men who gutted the Voting Rights Act, who determined that for-profit corporations have souls with religious liberties that exempt them from generally applicable laws, and who ensured that corporate interest groups and moneyed elites will always control election outcomes in our Country. These men who practice their extreme brand of politics through statutory and constitutional adjudication have betrayed the American people whose representatives in the Senate bestowed on them the privilege of appointment to the Supreme Court. To Lincoln’s great vision of  government of the people, by the people and for the people, these men are death incarnate.

Everyday employment lawyers from Pittsburgh and throughout our great Nation fight the corporations to whom these five men have granted so much power at the expense of so many working men and women. We place ourselves on the front line of the timeless fight between capital and labor and work tirelessly to ensure that labor never loses its right to be free from discrimination and harassment in the workplace. In Pittsburgh, a city steeped in the traditions of organized labor, Pittsburgh employment attorneys know that the cause of their work is the cause of the working man and woman. We believe that power can, does and always will seek to increase and expand its power by taking from those of meager means, by oppressing workers and by exploiting the employer/employee relationship. We therefore hold several truths to be self-evident: that working men and women are the soul and lifeblood of the United States of America, that working men and women have an inalienable right to equal opportunities in the workplace, and that when employers oppress, stifle or discriminate against their workers, workers shall have the finest legal representation available to vindicate their rights.

We at the Lamberton Law Firm are proud to fight for workers and to help restore justice in the workplace.

Racism outrages jury, judge not so much

imagesRacist jokes supported a verdict against the employer in a  race-based hostile work environment claim under Section 1981, along with an award of compensatory and punitive damages, but judge knew better than jury what the damages should have been.  A tale of Fulmore v M & M Transport Services, Inc, April 29, 2014 (Pratt, T).

During the four years the plaintiff worked for his employer, he heard many racially offensive jokes, including use of the word “n***er,” every week. He also testified that coworkers made racial comments about President Obama, including that “the day that a black man became the president, it would be a cold day in hell, and that’s probably why it’s so cold out there today” and “when a black man becomes president, that would be when pigs fly, so that’s why we have swine flu.” He also presented evidence from coworkers regarding racial jokes and comments, including comments about President Obama having spinners on his limo and about fried chicken and watermelon being served at the inauguration. The racially offensive jokes even went to top levels, including a joke told by an executive vice president with a punch line that implicated the stereotype that African-American men want to rape white women. The employee and coworkers complained but his supervisor believed the “Obama stuff” and other complaints were “overblown.”

The jury returned a verdict in the employee’s favor for $400,000 in compensatory damages and $2,850,000 in punitive damages. The employer filed a motion for stay of execution of the judgment, which was granted; then it moved for judgment as a matter of law and for a new trial or, alternatively, remittitur of the damages award.

The employer argued that the employee failed to satisfy two elements of the HWE claim: (1) severity or pervasiveness and (2) basis for employer liability. The court noted that the evidence of racial comments and jokes fell into three categories —statements directed at the employee, statements that he overheard, and statements that he did not overhear, but that were made to other employees. It noted the many comments regarding President Obama. The jury heard “ample testimony” that those jokes were prevalent near election times. The plaintiff also testified that the word “n***er” was used on a weekly basis and that numerous offensive jokes and statements were made every week. The court noted that it did not have to “carve up” and analyze separately the incidents of harassment and while “second-hand racial comments” overheard by the employee might not be enough, alone, to rise to the level of severe and pervasive, “the frequency of the overheard statements and the jokes made directly to” the employee was sufficient evidence.

Moreover, he showed that the environment was objectively severe or pervasive. While there was no physical behavior, he testified that the comments were not isolated and continued throughout his employment. “The content of the comments are certainly offensive, such as frequent use of the word ‘ni**er,’ calling an African-American driver ‘Buckwheat’ and ‘Buttwheat,’ and the myriad of distasteful jokes including those told by” an executive VP at annual meetings. There was evidence that the employee and other African-American drivers felt “uncomfortable and embarrassed” to the point that they withdrew from the environment.

The employee and others complained to the supervisor about the racial jokes and statements, including use of the “N word” and the Obama remarks. The supervisor testified that another dispatcher told him about the “Obama stuff” and he spoke to one employee about it, but he did not say that he told him to stop the comments. He also testified that “it was overblown.” Thus, the court explained, a rational jury could find that the employer was on notice. Moreover, there was no evidence that the supervisor told anyone to stop the behavior or that any disciplinary actions were taken. Indeed, the employee contended that any talks the supervisor had with the employees only incited them to make more racially charged statements, such as “These motherf***ers are always complaining” and “[t]hese ni***rs always complain.” Comments other than jokes were made frequently and multiple employees complained to the supervisor. For example, two other employees had complained about one employee being called “Buckwheat” and “Buttwheat,” and others complained about the route assignments.

Furthermore, the employer could not “ignore the undisputed evidence” that its own executive vice president made a racially offensive joke at an annual meeting. Added to that, the record was “sparse” regarding the employer’s anti-harassment policy and its implementation. A rational jury could conclude that the employer was “negligent in its discovery and response to the alleged racial harassment.” For all of these reasons, the court found that the record supported the jury verdict and denied the motion for judgment as a matter of law.

An award of punitive damages was warranted, the court ruled. Liability was imputed to the employer where evidence supported the conclusion that the supervisor knew about the harassment and would have known about the employer’s antidiscrimination policies. A punitive damages verdict could have reasonably been based on evidence that the employer “did not engage in good faith efforts to implement” that policy. Under that policy, when a complaint is made, a “prompt investigation” was supposed to commence, including interviews and prompt remedial action. Nevertheless, “[t]he record is nearly void of evidence regarding any efforts to implement the policy.” In fact, the behavior continued after the employee left the company. A coworker even received a video via text from a dispatcher depicting “a cornflakes cereal box titled ‘coonflakes’ and when opened, played the song ‘jiggaboo, jiggaboo where are you.’” Moreover, the fact that the executive vice president told “egregiously offensive jokes at company-wide events on an annual basis” suggested that “the company as a whole does not in good faith follow or implement its antidiscrimination policies.” In fact, the court noted, “[t]he entire management team’s condoning of racially offensive jokes is particularly offensive and creates an environment that is severe and pervasive.”

The Court nonetheless found that the actual compensatory and punitive damages awards were excessive. The Court cut the pain and suffering damages to 1/8 the jury’s award, and cut the punitive damages award by nearly 93% to $250,000.00.  The Court told the plaintiff that if he didn’t accept these lower numbers, the Court would order a new trial.

Broadening the Bench

When it changed its rules last November, the Senate ushered in a new era of opportunity for judicial nominations. Now that only a simple majority is required to break filibusters on district and circuit court nominations, the time is ripe to fill a growing a number of judicial vacancies with judges who are not only exceptionally well-qualified, but who also reflect the full diversity of the legal profession.

A truly diverse judiciary is comprised of judges who have been advocates for clients across the socio-economic spectrum, seeking justice on behalf of everyday Americans. Historically, federal judges have been drawn overwhelmingly from the ranks of prosecutors and corporate lawyers. As a recent report by the AAJ details, the federal judiciary is currently lacking in judges with experience (a) working for public interest organizations; (b) as public defenders or indigent criminal defense attorneys; and (c) representing individual clients—like employees or consumers or personal injury plaintiffs—in private practice. This imbalance deprives the courts of crucial perspectives and reduces public trust in the justice system.

So now it’s time to broaden the bench. Without the threat of a filibuster, and with more than 50 judicial vacancies currently waiting for a nominee, we have an extraordinary opportunity to increase experiential diversity on the federal courts. Importantly, the responsibility for this change extends beyond the President and the Senate, and lies with all those interested in the health of our justice system. To increase the professional diversity of our courts, encourage: (a) Lawyers with public interest backgrounds to seek out and apply for federal judgeships, (b) Advocacy groups, lawyers, and others who work on judicial nominations to actively recruit judicial candidates with public interest and civil rights backgrounds, (c) State judicial selection commissions and Senators to encourage lawyers with professionally diverse backgrounds to apply for judicial vacancies, and, in recommending nominees, to consider whether a candidate’s experience would add needed professional diversity to the judiciary, and (d) President Obama to make professional diversity a priority, and to work with home-state Senators to ensure that professional diversity improves across the entire federal judiciary.


Reprimand only for politically biased, racist, sexist federal judge

A judicial oversight body which found hundreds of biased, racist and sexist emails authored by a sitting United States District Court Judge would have let the judge remain on the court and continue to hear cases, despite his admitted political bias, racist and sexist views.

Montana’s chief federal judge retired in May after admitting he had forwarded a racist e-mail about President Obama from a courthouse computer. But now an investigation by a court disciplinary council in San Francisco has revealed that Judge Richard Cebull sent hundreds of racist, sexist and politically inflammatory e-mails on the same computer over a four-year period.

The Judicial Council of the Ninth U.S. Circuit Court of Appeals originally approved the report on March 15, 2013, with public release scheduled two months later. Yet when Cebull announced his retirement May 2 after the furor over his Obama e-mail, the council, chaired by Chief Judge Alex Kozinski, dismissed its disciplinary proceedings, and withheld its report and issued a statement saying only that it had found “similarly inappropriate e-mails” sent by Cebull. Fortunately, on Friday, the U.S. Judicial Conference’s Committee on Judicial Conduct ordered that the report be made public.

A former Montana attorney and federal magistrate, Cebull was appointed to the court by President George W. Bush in 2001 and became Montana’s chief federal judge in 2008.

The Great Falls Tribune first uncovered the Obama e-mail that Cebull had forwarded to a group of friends in February 2012, with an introduction that said, “Hope it touches your heart like it did mine.” It read: “A little boy said to his mother, ‘Mommy, how come I’m black and you’re white?’ His mother replied, ‘Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark.”

Cebull issued an apology after the newspaper reports and acknowledged the message was racist. He said he had forwarded it because “I am not a fan of our president.”

In its now-public report, the Ninth Circuit Judicial Council said a subsequent search of court computer tapes dating from 2008 found hundreds of disparaging e-mails sent by Cebull to “personal and professional contacts and court staff.” Many messages were political and expressed “disdain and disapproval for liberal political leaders” or commented on legislation on topics like gun control and civil rights, the report said. It said a significant number included jokes or commentary disparaging African Americans, Native Americans, Latinos – especially illegal immigrants – and women, and a few were anti-gay.

The council said Cebull had done nothing illegal that would justify his impeachment but reprimanded him for actions that undermined “public trust and confidence in the judiciary.” A council majority voted to bar him from receiving new cases for 180 days and order him to undergo training in ethics and racial awareness. Two council members – U.S. District Judge Claudia Wilken of Oakland, the Bay Area’s chief federal judge, and U.S. District Judge Anthony Ishii of Fresno – voted to go further and ask Cebull to retire, “in recognition of the severity of his violations and the breadth of the public reaction.”

Elizabeth Warren decries lack of professional diversity on federal courts

From Think Progress/ Justice By Nicole Flatow on Jun 18, 2013 at 1:30 pm

Sen. Elizabeth Warren (D-MA) brought renewed attention to the critical battle over nominees to the federal courts Thursday evening, in remarks that blasted the “corporate capture” of the federal courts, and called on those concerned with the political system to care as much about the make-up of the courts as of the legislature.

Observing courts’ increasing tendency to side with corporate interests and narrow individuals’ access to justice, Warren flagged a glaring skew in the professional experience of federal judges, the vast majority of whom have experience either as corporate attorneys or prosecutors. Warren lamented that only three percent of federal appeals court judges have substantial legal experience working for a nonprofit organization, and a similar percentage have worked in some capacity to enforce civil rights, according to an American Constitution Society report. And while President Obama has been responsible for some of the most notable exceptions to this trend, recent accounts show that the federal courts continue to be dominated by the same sorts of professional backgrounds.

She pointed to Judge Edward Chen, a rare judge with recent experience working at an organization that enforces civil rights. She explains:

At his induction ceremony, Judge Chen was quoted as saying that he never considered withdrawing his name from consideration because, as he explained, “I believe that someone should not be disqualified from the bench simply because they once represented the voiceless and unpopular, rather than the wealthy and the powerful.” Judge Chen is right.

But Judge Chen’s nomination process exemplifies why there are not more judges like him. Chen was first nominated in August, 2009. Chen, not just a former ACLU lawyer but also one of the first Asian Pacific American nominees on the court, received the highest possible rating of unanimously well qualified from the American Bar Association, and had experience as a magistrate judge. His nomination was nonetheless subject to relentless obstruction and an “unseemly smear campaign,” with the Senate sending his nomination back to President Obama for three sessions in a row. Obama stood behind his nominee, and, after the vacant court seat had sat empty for more than two years, Chen was eventually confirmed in May 2011. The successful confirmation required not just the commitment of Obama, but also of Chen. Most nominees cannot tolerate the toll on their career imposed by several years of nomination limbo and Senate scrutiny. And the White House does not have the political capital to push through very many Chens, meaning most of his nominees have had similar professional experience to that of his Republican predecessors. Other nominees, like Rhodes Scholar and award-winning teacher Goodwin Liu, never made it through this obstruction at all.

In her address to the progressive legal community at the American Constitution Society’s national convention, Warren calls for “a new generation of judges, judges whose life experience extends beyond big firms, federal prosecution, and white collar defense.”

While professional diversity has lagged, Obama has made unprecedented progress in contributing to race, gender, and sexual orientation diversity on the federal courts. But combating the corporate chokehold on the ideological leanings of nominees may prove an even more difficult challenge.

What Arlington v. FCC means for employment law

The Supreme Court’s decision in Arlington v. FCC is helpful both to employees and to the United States Equal Employment Opportunity Commission.  In Arlington, a six justice majority held that federal courts owe “Chevron deference” to how an administrative agency interprets its own jurisdiction.  “Chevron deference” essentially means that a court must defer to an agency’s interpretation of a statute, even if the court believes the agency made a mistake.  So long as the agency’s interpretation is not “arbitrary or capricious” – that is, patently contrary to the statute itself – its interpretation has the full force and effect of law.  Chevron deference has been around for a long time, but Arlington is the first Supreme Court case to hold that agency interpretations of agency jurisdiction are entitled to it.

Why should employees (and employers) care about the case?  Because it means the EEOC can largely determine the scope of its enforcement jurisdiction over the civil rights laws.  Lots of employment cases rise and fall on the application of EEOC regulations to the facts.  When those regulations support employees, employers often challenge them as having exceeded the scope of the EEOC’s regulatory jurisdiction. Arlington means that federal courts can no longer review such challenges from scratch (or in legal terms, de novo).  Rather, they must afford substantial deference to the EEOC’s decision that it had the power to issue the regulation.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Woman fired because boss gets erection

A dentist acted legally when he fired an assistant that he found attractive simply because he and his wife viewed the woman as a threat to their marriage, the all-male Iowa Supreme Court ruled Friday.

The court ruled 7-0 that bosses can fire employees they see as an “irresistible attraction,” even if the employees have not engaged in flirtatious behavior or otherwise done anything wrong. Such firings may be unfair, but they are not unlawful discrimination under the Iowa Civil Rights Act because they are motivated by feelings and emotions, not gender, Justice Edward Mansfield wrote.

An attorney for Fort Dodge dentist James Knight said the decision, the first of its kind in Iowa, is a victory for family values because Knight fired Melissa Nelson in the interest of saving his marriage, not because she was a woman.

Nelson, 32, worked for Knight for 10 years, and he considered her a stellar worker. But in the final months of her employment, he complained that her tight clothing was distracting, once telling her that if his pants were bulging that was a sign her clothes were too revealing, according to the opinion.

He also once allegedly remarked about her infrequent sex life by saying, “that’s like having a Lamborghini in the garage and never driving it.”

Knight and Nelson – both married with children – started exchanging text messages, mostly about personal matters, such as their families. Knight’s wife, who also worked in the dental office, found out about the messages and demanded Nelson be fired. The Knights consulted with their pastor, who agreed that terminating Nelson was appropriate.

Knight fired Nelson and gave her one month’s severance. He later told Nelson’s husband that he worried he was getting too personally attached and feared he would eventually try to start an affair with her.

Nelson filed a lawsuit alleging gender discrimination, arguing she would not have been terminated if she was male. She did not allege sexual harassment because Knight’s conduct may not have risen to that level and didn’t particularly offend her.

Knight argued Nelson was fired not because of her gender, but because her continued employment threatened his marriage. A district judge agreed, dismissing the case before trial, and the high court upheld that ruling.

Mansfield noted that Knight had an all-female workforce and Nelson was replaced by a woman.

He said the decision was in line with state and federal court rulings that found workers can be fired for relationships that cause jealousy and tension within a business owner’s family. One such case from the 8th Circuit Court of Appeals upheld a business owner’s firing of a valued employee who was seen by his wife as a threat to their marriage. In that case, the fired employee had engaged in flirtatious conduct.

Mansfield said allowing Nelson’s lawsuit would stretch the definition of discrimination to allow anyone fired over a relationship to file a claim arguing they would not have been fired but for their gender.




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