Clites Goes To Work For TeleTech And Signs An Arbitration Agreement
The plaintiff, Jill Clites, went to work for TeleTech in October 2004 as a Customer Service Representative. During new employee orientation, Clites met with a human resources representative for about 90 to 120 minutes, during which time Clites reviewed and signed a large number of documents related to the orientation. In the record before the West Virginia Supreme Court, there were disputes over whether individual documents were discussed with Clites and whether she was required to sing all the documents during the orientation session, but it appears that during that session Clites signed an arbitration agreement which TeleTech required of most or all new employees.
Clites remained employed at TeleTech until July 12, 2007, when she was terminated. She then filed suit for sexual harassment and retaliation. Clites alleged she complained about the sexual harassment, that TeleTech failed to take appropriate corrective action, and that TeleTech retaliated against her for the complaint by firing her.
Clites Files Suit In West Virginia Circuit Court
Clites filed suit in West Virginia Circuit Court in Morgantown. TeleTech then invoked the arbitration agreement by filing a motion to dismiss the lawsuit and by filing a separate lawsuit in federal court arguing that Clites waived her rights to a jury trial by signing the arbitration agreement. In essence, TeleTech argued that Clites gave up her right to file suit and obtained a jury trail by signing the arbitration agreement, and that her only remedy was to file an arbitration proceeding (with the American Arbitration Association) pursuant to the arbitration agreement.
I have prepared a chart containing a summary of West Virginia Supreme Court decisions significantly affecting employment law. The chart starts on January 1, 2009, with decisions issued after that date. The chart contains hyperlinks to the opinions, both on the West Virginia Supreme Court’s web site, and on Findlaw. If you click on the photos of each Justice, that will take you to the biography page for that Justice on the Supreme Court’s web site. Finally, the chart contains hyperlinks to this blog.
Click the line below to open the chart, which is an Adobe Acrobat PDF:
On October 1, 2009, a jury in Charleston, West Virginia returned a verdict in an age discrimination case, awarding James Nagy a total of $1,750,450. That verdict consists of:
$200,450 for past lost wages and benefits,
$900,000 for future lost wages and benefits,
$150,000 for humiliation,
$150,000 for emotional distress, and
$350,000 in punitive damages.
Under the West Virginia Human Rights Act (which prohibits age and other forms of discrimination in the workplace), Nagy’s counsel will file a motion additionally requesting attorneys’ fees and expenses.
Within a few hours of President Obama’s announcement, the CATO Institute and The Heritage Foundation had significant articles devoted to attacking the nomination. Rush Limbaugh this afternoon called Judge Sotomayor a “racist”. Sean Hannity called her a “radical” who had made “outrageous” and “amazing” statements. The liberal sites raced out articles attacking the attackers and defending Judge Sotomayor (Talking Points Memo and The Huffington Post).
The first item that has been circulating about Judge Sotomayor is a statement she made about appellate courts making “policy” during a panel discussion at Duke University in 2005 (note: this clip is lengthier, and provides much more context, than the clips played on most news sites):
4/1/09: The US Supreme Court ruled that “pre-dispute arbitration agreements” in collective bargaining agreements (union contracts) are enforceable, in Penn Plaza PLLC v. Pyett, 129 S. Ct. 1456 (2009) (5-4 decision).
This was an age discrimination case under the Age Discrimination in Employment Act, (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.
3/10/09: In the West Virginia Legislature, HB 3032, introduced on March 10, 2009, would give employees the right to review their personnel files. The legislation has not been passed, and in prior legislative sessions, essentially the same bill was introduced without having been passed.
Many people have the incorrect understanding that, in West Virginia, an employer is legally required to allow an employee to review the employee’s personnel file. There is currently no such legal requirement, but the pending HB 3032 will change that if it is passed.
Appointments to these federal judicial positions require the confirmation by the US Senate. The Democrats control at this time 58 votes in the Senate, through 56 Democrats and 2 Independents (Joe Lieberman, CT; Bernie Sanders VT) who caucus with the Democrats. If Al Franken eventually is declared the winner in Minnesota, which is expected, the democrats will have 59 votes. President Obama only needs 51 votes to confirm one of his judicial nominations. If the Republicans chose to filibuster any of President Obama’s nominations, the Democrats need 60 votes for cloture to cut off the filibuster and force a vote (cloture requires a three-fifths vote of the voting Senators). If the Democrats will be starting with 59 votes, they will likely frequently be able to “peel off” a Republican or two to break the filibuster.
There are currently only 2 members, so there are 3 vacancies. Wilma Liebman is considered liberal and pro-union. Peter Carey Schaumber is considered conservative and pro-management.
President Obama will be able to fill the 3 vacancies, with a likely significant shift in labor law in the United States.
1/26/09: In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 129 S. Ct. 846 (2009), the US Supreme Court unanimously ruled that an employee engaged in protected activity under Title VII’s retaliation provision by answering an employer’s questions in connection with a sexual harassment investigation started by company rumors about a male supervisor. Justice Souter wrote the majority opinion, joined by Roberts, Stevens, Scalia, Kennedy, Ginsburg, and Breyer. Justice Alito wrote an opinion, concurring in the judgment, joined by Justice Thomas.
Ms. Crawford Responds to an Investigation into Sexual Harassment
Here is what happened: Rumors started circulating about sexually inappropriate behavior by a male supervisor, Gene Hughes, at “Metropolitan Government of Nashville and Davidson County” (“Metro”). A human resources employee started investigating, and asked Vicky Crawford whether she had seen any inappropriate behavior by Mr. Hughes. Crawford responded yes, and described several instances of sexually inappropriate behavior. For example, Ms. Crawford had asked Mr. Hughes “what’s up”, and he responded by grabbing his crotch and saying “you know what’s up”. On another occasion, Mr. Hughes grabbed Ms. Crawford’s head and pulled it toward his crotch. The human resources employee talked to two other employees who similarly reported sexually harassing behavior from Mr. Hughes.
5-27-08: The US Supreme Court in Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008) ruled that the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., prohibited retaliation against federal employees who had complained about age discrimination, even though the federal employee section of the ADEA did not expressly prohibit retaliation. This was a 6-3 decision. The majority opinion was written by Justice Alito, in which Justices Stevens, Kennedy, Souter, Ginsburg, and Brewer joined. Justices Roberts, Scalia, and Thomas dissented, with dissenting opinions being written by Justices Roberts and Thomas.
The Gap In the Federal Employee Section of the ADEA
This was the problem under the ADEA: The ADEA’s main section, in prohibiting discrimination against employees 40 and older, only deals with private industry employees and state government employees. I will call this section of the ADEA, the “private and state employee sections”.
February 26, 2008: The United States Supreme Court handed down its opinion in Sprint/United Management Co. v. Mendelsohn, 128 S. Ct. 1140 (2008) (FindLaw site opinion). The issue in this federal age discrimination case (ADEA) was whether the plaintiff could present evidence to the jury about other alleged older discrimination victims, where the decision made to terminate the other individuals was not made by the same decision-maker that terminated the plaintiff.
The employer (Sprint) contended that evidence of other alleged age discrimination victims was not admissible where the decision-makers for those other victims were different from the decision-makers who took action against the plaintiff.
The plaintiff was a pilot, Rao Zahid Khan, who alleged that his co-workers subjected him to frequent derogatory and insulting comments about his national origina and religeon (he was Arabic). The West Virginia Supreme Court ruled that Colgan Air (a) was not liable for harassment because it had policies and procedures prohibiting harassment and took swift and decisive action after learning about the harassment, and (b) was not liable for retaliation because Colgan Air terminated the employee (Mr. Khan) for a legitimate and non-discriminatory reason–he failed to pass a mandatory FAA proficiency test for pilots.
Ledbetter’s Claims of Sex Discrimination and Lower Pay, and the Trial Result
Ledbetter filed a charge of sex discrimination with the EEOC in 1998 and then later in the year retired. She claimed that, years earlier in her career at Goodyear, male supervisors gave her bad performance reviews compared to what men received. She claimed that Goodyear awarded raises based on those performance reviews, so that her pay raises were reduced as a result of the discriminatory performance reviews.
The Supreme Court broadened retaliation claims in 2 ways:
First: Retaliatory conduct is not limited to employer’s action at the workplace, and it is not limited to action taken while the plaintiff is still working for the employer.
