"More Energetic Person" Comment May Prove Costly

Court Reinstates Age Discrimination Suit Brought By Fired Executive

A federal appellate court recently held that a 58-year-old executive who was fired for allegedly failing to meet company expectations may sue his former employer for age discrimination. According to the Fourth Circuit Court of Appeals, a reasonable jury could find that the company discriminated against him in violation of the Age Discrimination in Employment Act (ADEA). Inman v. Klockner Pentaplast of America, Inc., No. 08-1882, Fourth Circuit Court of Appeals (October 22, 2009).

Factual Background

Dean Inman was employed by Klockner Pentaplast of America (KPA). In addition to serving as vice president of technology, Inman was a member of KPA's "steering team" (which was an executive committee comprised of the senior leadership that managed the company).

In 2001, Cinven Company and J.P. Morgan purchased KPA for more than $800 million. Their plan was to cut costs, increase profits, and resell the company in four to five years. In 2007, they sold KPA to a private equity firm for approximately $1.8 billion.

Prior to the sale, in December 2005, Inman was terminated after working for KPA for 17 years. He was replaced by David Veasey, who was 45 years old and KPA's vice president of operations. KPA claimed that it terminated Inman for failing to meet company expectations. Specifically, KPA maintained that Inman had refused to develop a plan to set measurable goals for his department, refused to support a salary freeze endorsed by the steering committee, and harassed the human resources staff regarding a change to the company's health plan.

Inman, on the other hand, claimed that during his termination meeting with Michael Tubridy, president of KPA's North and South American Operations, he was told that he "did not fit the `profile' or `model' of what is needed in a technical leader in terms of KPA's presentation to potential buyers of the company." Tubridy also allegedly stated that KPA needed a "more energetic person" as leader of the technical department.

The trial judge rejected Inman's age discrimination claim and he appealed.

Legal Analysis

The Fourth Circuit Court of Appeals found that Inman offered credible evidence to dispute KPA's stated reason for his discharge. According to the court, Inman had received bonuses every year and Tubridy even singled him out for praise at a company meeting just a few weeks before firing him. "[I]f Inman has evidence from which a jury could conclude that the real reason he was fired was his age," the court wrote, "the jury could also conclude that the deficiencies that KPA claimed existed in Inman's work were exaggerated to cover up the age-based motivation for the termination."

The court also pointed out that during an October 2005 meeting attended by Tubridy a management consultant suggested that KPA enlist young, energetic "future people." Tubridy noted the phrase "young, energ[etic]" on a paper napkin. This evidence, the court found, would allow a jury to conclude that the real reason for firing Inman was his age. As a result, the court reinstated his age bias claim.

Practical Impact

According to Matt Keen, a shareholder in Ogletree Deakins' Raleigh office: "This case reminds employers to caution managerial employees about making or even repeating comments that could be considered euphemisms for age. In this case, the court went so far as to consider the notes concerning a consultant's suggestion to enlist young and energetic people. Even though the consultant was not an employee, the court found it relevant that the president of the company found the reference to youth significant enough to write down."

Written by Ogletree Deakins

Copyright: The copyright in this article content is owned by Globe Business Publishing Ltd.

Supreme Court to Review Privacy Rights in Texting Case

Our most recent alert discusses a case recently taken on by the United States Supreme Court, involving employee privacy rights and text messaging. The Court will consider whether a police department violated the constitutional privacy rights of an employee, when it inspected the employee's text messages on his department-issued pager.

On Monday, December 14, the United States Supreme Court agreed to hear the issue of employees’ privacy rights as these relate to text messaging on employer-issued devices. In City of Ontario v. Quon, No. 08-1332, the Court will consider whether an Ontario, California, police department violated the constitutional rights of an employee when it looked into text messages the employee sent on a pager provided by the police department.

The city of Ontario claims that the employee, a Sergeant, sent hundreds of texts—many of them sexually explicit—to his wife, his girlfriend, and another officer. The police department investigated officers who regularly exceeded monthly character limits for their pagers, and as part of the investigation received transcripts of messages from the city’s wireless provider, Arch Wireless (now USA Mobility). Of the Sergeant’s 450 messages sent in one month in 2002, only 57 were related to official business.

While the Ontario Police Department had formal policies addressing its right to monitor e-mail and internet use by employees, and cautioned employees that they should have “no expectation of privacy,” it did not have a formal policy on text messaging. The Sergeant, as well as several of the people with whom he messaged, brought suit, arguing that their Fourth Amendment rights had been violated by the Ontario Police Department.

The Ninth Circuit Court of Appeals ruled that the city’s review of the message transcripts constituted an unreasonable search. Its decision was based in part on an informal policy of the police department, which allowed officers to avoid inspection of their pagers if they paid for the excess charges themselves. Despite this informal policy, the lieutenant at the Ontario Police Department ordered the transcripts of the Sergeant’s messages for review.

The Ninth Circuit also held that USA Mobility turned over the transcripts in violation of the federal Stored Communications Act. Notably, while the Supreme Court agreed to hear the city’s appeal, the justices decided to not hear USA Mobility’s appeal.

The city of Ontario’s brief to the Supreme Court argued that a “lower-level supervisor’s informal arrangement” regarding payment for excessive messaging, should not hinder the police department’s official no-privacy policy. The city went on to argue that it is not objectively reasonable to expect privacy in messages sent to another workplace pager, and especially unreasonable to expect privacy in messages sent to and from an officer’s department-issued pager.

While this case only concerns text messaging in a government workplace, and thus the Court’s decision will be limited to scope of constitutional privacy rights, the potential implications of the ruling are significant. Indeed, lower courts may rely on the decision in this case to review similar privacy challenges brought by employees of private employers. And, with the explosion of social media in the workplace, any direct or indirect guidance in this area by the Court will likely influence corporate and government policies and practices—as well as employee activities —in many ways.

Oral arguments will likely be held in the spring of 2010, with a decision expected by June.

Regardless of what the Supreme Court rules, it is clear that organizations need to have well-developed policies governing employee use of company-issued computing and communication devices. These policies should clearly spell out the usage and privacy expectations for all manners of communications. Organizations should also evaluate their enforcement programs and the potential consequences of decisions as they may affect rights to review and monitor communications and data.

Written by Sabrina E. Dunlap
Nixon Peabody LLP

Copyright: The copyright in this article content is owned by Globe Business Publishing Ltd.

Section 1981: The Gift that Keeps on Giving

In seven years, Hendricks Humphries went from a Cracker Barrel assistant manager to the plaintiff in a lawsuit. The story behind the Humphries lawsuit began in 2001, when Humphries, who is African-American, pointed out that one of his supervisors used racially offensive remarks. Humphries also stated that an African-American waitress was fired for missing a shift while a Caucasian waitress committed the same offense and kept her job. Humphries worked for the restaurant chain for three years his reports of race discrimination. He received recognition and bonuses throughout his employment. Nevertheless, he was fired for leaving a store safe open shortly after he complained of race discrimination.

Humphries filed the lawsuit CBOCS West Inc. v. Humphries alleging that his employment was terminated because of his race and in retaliation for his race discrimination complaints. The significant thing about Humphries lawsuit was that his retaliation claim was brought under §1981. Prior to Humphries lawsuit, it was unclear whether §1981 allowed retaliation claims. The plain language of the statute states that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” In CBOCS West Inc. v. Humphries, the Supreme Court held that §1981’s language allows for retaliation claims.

Why is it significant that you can sue for retaliation under §1981?

1. Title VII has a $300,000 cap on damages. §1981 has no such cap on damages.

2. Title VII claims have a 180/300 day statute of limitations. §1981 has a much longer four year statute of limitations.

3. Title VII requires that employees exhaust their administrative remedies before filing their lawsuit. This means that employees must file a discrimination or retaliation charge with the Equal Employment Opportunity Commission and go through that process before they can go to court. §1981 has no such requirement. You can go straight to court.

4. Title VII does not allow employees to sue their managers, i.e., the individuals who personally inflicted your harm. Again, §1981 has no such limitation. §1981 allows you to sue the company and the individual managers. This gives employees more options strategically and financially.

A plaintiff’s employment lawyer said to me, “I don’t know why anyone fools around with Title VII anymore. §1981 is so much better.” I certainly see his logic. But, Title VII still has one big advantage over §1981 . . . the EEOC’s administrative process. Your employer must provide a written position statement and supporting documentation when you file a discrimination or retaliation charge with the EEOC. This requires that they commit to a position much earlier and with a lot less knowledge about your claims than they would if you went straight to court under §1981. And, the law allows you to obtain the information your employer provided to the EEOC thereby allowing you to educate yourself on your employer’s position/defenses very early in the case. That is priceless. However, once your employer has committed its position to writing, Title VII loses its advantage and §1981 appears to be the stronger cause of action.

I am not saying that you should abandon Title VII retaliation claims. Rather, the lesson of CBOCS West Inc. v. Humphries is that employees should not overlook the Supreme Court’s tremendous gift of §1981 retaliation claims, i.e., unlimited damages, longer statute of limitations, and more individuals to hold accountable.

Workplace Violence - 8 Tips For Spotting Early Warning Signs

by Jeffrey Miller

One of the greatest threats facing both employees and the companies they work for, is workplace violence. It has become the leading cause of death for women and the second leading for men, following closely behind motor vehicle accidents. In fact, the best estimates now being reported show that 1-in-4 employees will be the victim of workplace violence this year alone.

While the media is quick to highlight the most deadly attacks that occur, the fact is that most employees will be lucky enough to only suffer from simple assaults. However, this is not to downplay the almost 400,000 aggravated assaults, 51,000 rapes and sexual assaults, 84,000 robberies, and nearly 1,000 homicides reported each year. I simply want to acknowledge that the average employee will not have to worry about death so much as being intimidated, struck, or threatened to comply with the assailant either through force or the threat of violence.

Spotting Early Warning Signs

As with all self-defense situations, correct action requires proper understanding so that we can know where to direct our awareness. Knowing what to look for will allow us to notice when something may be brewing and thereby allow us to take preemptive measures to prevent the danger from ever manifesting at all. After all, the ultimate goal of any reality-based protection program should be to set things up so that danger never touches you at all.

Workplace violence situations can be seen to have three aspects or characteristics that work together to produce the damage that inevitably results. Assaults always stem from a causal-based conditioning and never "come out of nowhere." These three parts or aspects are:

1. The assailant or perpetrator of the assault,

2. The preexisting or conditioning factors that cause the assailant to see violence as a justifiable means for attaining their goals, and

3. An environment that allows for or permits the violent act to be committed without intervention, deterrence, or resistance.

Assaults never happen in a vacuum. They, like everything else, are the products of cause and effect. And, once set into motion - once these three factors are present - the force or conditions will play themselves out sooner or later.

In her book, "Risky Business: Managing Employee Violence in the Workplace", Dr. Lynne McClure describes eight categories of high-risk behaviors that may indicate the need for management intervention. She says these high-risk behaviors are everyday behaviors that occur in certain patterns. While the following clues are just that, possible warning signs, they will give management and employees enough of a basic understanding to cue in on the possibility of danger brewing on the horizon. The warning signs that may signal an impending workplace violence issue include:

* Actor behaviors: The employee acts out his or her anger with such actions as yelling, shouting, slamming doors, and so on.

* Fragmentor behaviors: The employee takes no responsibility for his actions and sees no connection between what he does and the consequences or results of his actions. As an example, he blames others for his mistakes.

* Me-First behaviors: The employee does what she wants, regardless of the negative effects on others. As an example, the employee takes a break during a last minute rush to get product to a customer, while all other employees are working hard.

* Mixed-Messenger behaviors: The employee talks positively but behaves negatively. As an example, the employee acts in a passive-aggressive manner saying he is a team player, but refuses to share information.

* Wooden-Stick behaviors: The employee is rigid, inflexible, and controlling. She won't try new technology, wants to be in charge, or purposefully withholds information.

* Escape-Artist behaviors: The employee deals with stress by lying and/or taking part in addictive behaviors such as drugs or gambling.

* Shocker behaviors: The employee suddenly acts in ways that are out of character and/or inherently extreme. For instance, a usually reliable individual fails to show up or call in sick for work. A person exhibits a new attendance pattern.

* Stranger behaviors: The employee is remote, has poor social skills, becomes fixated on an idea and/or an individual.

It can no longer be seen as a luxury or add-on to include procedures and training for dealing with workplace violence in your company's health and safety system. The costs, financially as-well-as to productivity, employee stress, and more, are far too great. Understanding and awareness are always the first step in to developing an effective plan. But, a solid, intelligently throughout and administered plan includes procedures, strategies, and techniques for, not only prevention and intervention, but deterrence and defensive action as well. The safer employees feel at all levels of an organization, the more relaxed the atmosphere and the greater the productivity.

Remember: Safety and protection is not a choice. It's a responsibility!

Jeffrey Miller is the founder and master instructor of Warrior Concepts International. He is the author of "The Karate-Myth" and the Danger Prevention Tactics video, among others. For more info, subscribe to his ezine here.

Employment Retaliation: Important Answers to Your Questions

What Constitutes Retaliation?

Retaliation in the employment context exists when an employer takes some adverse action against an employee for complaining of harassment or discrimination or assisting others in their complaints of harassment and discrimination. Retaliation also exists when an employer takes adverse action against an employee who reports illegal conduct by his or her employer (i.e., whistle-blowing).

You know that you have been unlawfully retaliated against when you can demonstrate that (1) you engaged in some type of protected activity, such as complaining of discriminatory or harassing treatment, whistle-blowing against the company for some illegal activity the company is engaged in, or assisting another employee in a similar kind of complaint; (2) the employer has taken adverse action against you, such as demotion, termination, or other conduct that adversely impacts your ability to work; and (3) you can show that the employer’s claimed “legitimate” reason for taking the adverse action against you is untrue and that the real reason was, at least in part, because you engaged in the protected activity.

If any adverse employment action is taken against you because you have complained or cooperated with another employee who has complained, or reported what you understand and believe to be illegal activity by your employer, your employer may be subject to liability for violating provisions of the California Fair Employment and Housing Act, the California Labor Code, or other state law and analogous federal law. Whether your complaints of discrimination or harassment are found to be valid is unimportant. Once you complain about what you believe to be discrimination or harassment and your employer takes adverse action against you, your employer is subject to liability regardless of whether discrimination and harassment in fact occurred.

I’ve suffered retaliation. What should I do?

Be aware that, whenever possible, you have a responsibility to inform your employer of the retaliatory treatment (this usually does not apply if the retaliatory treatment is a termination). Doing so is important because the law requires that your employer investigate all claims of retaliation and take immediate and appropriate action to remedy the situation.

What if the retaliation continues?

Before any lawsuit can be filed against an employer for harassment, discrimination, or retaliation, an employee must file a complaint with either the federal or state authority charged with investigating such complaints. Although the intended result of such a complaint is to give the employer time to remedy its conduct prior to being sued, in many cases, it is simply a formality that must be taken care of prior to a lawsuit.

You should contact either the California Department of Fair Employment and Housing (DFEH), which is the state agency that investigates retaliation complaints related to discrimination or harassment, or the Equal Employment Opportunity Commission (EEOC), which is the federal equivalent of the DFEH that investigates retaliation related violations of federal civil rights law (Title VII) in employment. There are other agencies, such as the California Office of the Labor Commissioner, that investigate retaliation complaints related to whistle-blowing.

Do I need a lawyer?

If your complaint goes nowhere, you can still strike back in court. The complaint process, both within companies and through the federal and state agencies charged to investigate complaints, can leave employees empty-handed and feeling unsatisfied. Both Title VII of the federal Civil Rights Act of 1964 and the California state Fair Employment and Housing Act give employees a right to sue an employer for violations of their rights. If violations of the law are shown, the employee’s recovery may include his or her past lost wages and benefits, future wage loss, emotional distress damages, the attorney fees and punitive damages. Punitive damages are calculated in part on the earnings of the company.

Karine Bohbot is a partner at Bohbot & Riles, a women-owned firm in Oakland, California. Ms. Bohbot received her J.D. from UC Hastings College of Law and has been practicing employment law for the last 11 years. She specializes in employment discrimination cases. She has successfully represented employees against a wide variety of businesses and government entities, in matters of race, national origin, sexual orientation, pregnancy, age, disability and gender discrimination, cases of sexual and racial harassment, retaliation, whistle-blowing and wrongful termination. Ms. Bohbot can help you strike back against discrimination in the workplace. For more information about Ms. Bohbot or her practice, contact Bohbot & Riles at (510) 273-3111 or e-mail Ms. Bohbot at kbohbot@strikebacklaw.com.