Drew Capuder’s Employment Law Blog

I will be speaking (and presenting on article) on recent developments in retaliation under federal and West Virginia employment law on either October 29 or 30, 2010 at the annual conference of the West Virginia Employment Lawyers Association. The conference will be at Oglebay Resort and Conference Center in Wheeling, West Virginia. The final schedule is not out yet, so I don’t know whether my speech with be on October 29 or 20.

Retaliation law in recent years has been one of those developing areas, and much more often than not the movement in the case law has been in the direction of expanding protections for employees against retaliation. The US Supreme Court especially has focused on retaliation law, and has “plugged gaps” in the law for federal employees to include protection for retaliation claims, has lowered the threshold for what is actionable retaliation, and has broadened the definition of “opposition” which entitles employees to protection.

One of the dangers for employers from retaliation claims is that, after an employee complains about alleged discrimination, the employer may be guilty of retaliation even if a jury decides there was no discrimination to support the employee’s original complaint. An employee may succeed in a retaliation claim as long as his complaint was made in good faith, even if the employee was wrong about the complaint of discrimination.

In the prior 2 years at the annual conference for WVELA, I spoke and wrote articles on awards of attorneys’ fees under employment discrimination laws, and on age discrimination.

On March 17, 2010, a jury in Jackson County in West Virginia awarded Jerold John Rice Jr. roughly $2.1 million in an age discrimination case against The Burke-Parsons-Bowlby Corporation, Stella-Jones US Holdings Corporation, and Stella-Jones, Inc., tried in Judge Thomas C. Evans III’s court.

Mr. Rice was represented by Mark Atkinson and Paul Frampton at Atkinson & Polak, PLLC, and the defendants were represented by Roger Wolfe at Jackson & Kelly PLLC in Charleston, and Kevin Hyde at Foley & Lardner, LLP in Jacksonville, Florida.

Here is a quick run-down of what was awarded in the case:

• Back pay: $142,659 awarded by jury.
• Pre-judgment interest: $11,791.84 from date of termination through trial.
• Front pay: $1,991,332.00 awarded by jury (from roughly age 48 through retirement age at 67).
• Emotional distress: $0.
• Punitive damages: Jury did not answer question affirmatively which would have allowed award of punitive damages.
• Total judgment based on jury’s verdict: $2,145,782.84, plus post-judgment interest on that amount at 7% per annum.
• Attorneys’ fees: $117,235 awarded by judge (based on $450 an hour for Mark Atkinson and $300 per hour for Paul Frampton).
• Litigation expenses: $20,324.16 awarded by judge.
• Total award: $2,283,342.00 (based on jury verdict, pre-judgment interest, attorneys’ fees and expenses) plus post-judgment interest at 7% per annum.

The Rice case illustrates the risk employers face when they terminate an older, good, long-standing employee, and replace him or her with a much younger person with little or no experience for the employer.

What Happened?

Mr. Rice at the time of his termination (in 2009) was age 47 and had worked for Burke-Parsons-Bowlby Corporation for 24 years. When Mr. Rice was terminated he was the corporate controller.

Read the rest of this entry →

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 of 1967 (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.

The US Supreme Court had previously ruled, but not in a labor union setting, that arbitration agreements for ADEA claims were enforceable under the Federal Arbitration Act, 9 U.S.C. sections 3-4 (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-33 (1991)). So the real issue in Penn Plaza was whether there would be a different result because of the union contract setting and the National Labor Relations Act.

The Supreme Court in Penn Plaza, in a divided decision (5-4), held that the arbitration agreement contained in the union contract was enforceable.

The enforceability of arbitration agreements for employment disputes has been a political hot potato, and The Arbitration Fairness Act of 2009 (H.R. 1020) was introduced in the US House on February 12, 2009. The bill has 36 co-sponsors, and has been referred to the House Committee on the Judiciary. If it passes, it would essentially overrule Penn Plaza and other cases which have held that employment dispute arbitration agreements are enforceable.

Written by Drew M. Capuder (contact information)

On October 1, 2009, a jury in Charleston, Kanawha County, 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.

James Nagy filed suit in Charleston in March 2008 against West Virginia American Water Company, alleging that he was fired in March 2007 because of his age at 53, after 23 years of employment.

James Nagy was represented by Maria W. Hughes and Stephen Weber at Kay Casto & Chaney PLLC. West Virginia American Water Company was represented by Mychal Schulz at Dinsmore & Shohl LLC.

The case is pending in Circuit Court in Kanawha County, West Virginia, before Judge Jennifer Bailey-Walker.

Prepared by Drew M. Capuder (contact information)

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 of 1967 (ADEA). The plaintiff was a member of a union, and the collective bargaining agreement (union contract) required submitting age discrimination claims to binding arbitration.

The US Supreme Court had previously ruled, but not in a labor union setting, that arbitration agreements for ADEA claims were enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-33 (1991)). So the real issue in Penn Plaza was whether there would be a different result because of the union contract setting and the National Labor Relations Act.

Read the rest of this entry →

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 Breyer 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".

Read the rest of this entry →

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 Supreme Court rejected the employer’s argument and said that the evidence of other victims might be admissible, even if different decision-makers were involved. The trial court should conduct a "balancing test" for admissibility of discrimination against other employees by different supervisors, where the relevance of the other employees’ situation is balanced against unfair prejudice to the employer.

Prepared by Drew M. Capuder (contact information); Voice 304-333-5261