Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Ninth Circuit’

Gelernter on In re Wal-Mart Wage and Hour Litigation FAA Case

Sunday, January 26th, 2014

Paul SecundaThanks to Lise Gelernter (Teaching Faculty and Director, Externship Programs at SUNY Buffalo Law School) for bringing to my attention this interesting arbitration case decided by the Ninth Circuit on December 17th of last year and providing some commentary.

The case is In Re Wal-Mart Wage and Hour Litigation or Carolyn Burton v. Class Counsel.  The Ninth Circuit’s summarizes the case thusly:

[T]he panel held that a non-appealability clause in an arbitration agreement that eliminates all federal court review of arbitration awards, including review under § 10 of the Federal Arbitration Act, is not enforceable.

Here is Lise’s commentary:

The court reasoned that if the grounds for vacatur of an award cannot be expanded by contract beyond what is permitted by the FAA §§10-11 (per Hall Street), a contract cannot eliminate the federal judicial review of arbitration awards that is available under the FAA.  The Ninth Circuit cited to a Second Circuit case that had a similar holding:

Since federal courts are not rubber stamps, parties may not, by private agreement, relieve them of their obligation to review arbitration awards for compliance with § 10(a)” of the FAA.  Hoeft v. MVL Grp., Inc., 343 F.3d 57, 63–64 (2d Cir.2003), overruled on other grounds by Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).

This creates some tension with the United States Supreme Court’s strong push for honoring almost any term of an arbitration agreement, but since these holdings are grounded in the specific terms of the FAA, perhaps they are a bit more safe from reversal or even disagreement among other circuits.

Lise points out that you can obtain this Ninth Circuit case by using the following link and selecting the Carolyn Burton case.

This article was originally printed on Workplace Prof Blog on January 20, 2014.  Reprinted with permission.

About the Author: Paul Secunda is a professor of law at Marquette University Law School.  Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law.  Professor Secunda is a frequent commentator on labor and employment law issues in the national media.  He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.

I Heart Kozinski

Tuesday, November 26th, 2013

It’s not every day that I profess my adoration for a public official so, well, publically. Especially not for a sitting Ninth Circuit Court of Appeals Judge who is often called conservative.

But I heart Kozinski. 

It’s not because of his reportedly big personality, his colorful turn of a phrase, or his willingness to take on controversial topics.  I must confess; I often disagree with his politics and his findings.

It’s that he gets it.

At least he gets it when it comes to the critical importance of vigorous discovery in civil cases to plaintiffs . . . now that he’s involved in a consumer class action suit against Nissan Motors.

What made this otherwise conservative judge see the light?  It turns out that Judge Kozinski is unhappy with his attorney’s failure to delve into Nissan’s alleged illegal behavior before entering in what Judge Kozinski suggests is a “sweetheart” settlement deal in Klee, et al. v. Nissan North America, Inc., a class action on behalf of Nissan Leaf car owners for warranty and alleged battery defects.  He was so enraged with his attorney’s failure to delve into the knowledge of Nissan regarding these alleged defects before selling the vehicles to consumers that he filed a pleading asking the Judge to deny court approval to the proposed settlement.   In his thirty page opposition, he (and his wife) passionately made the case that “extensive” and “vigorous” discovery is needed to demonstrate liability of corporate defendants.

After deriding his high-powered attorneys for failing to obtain evidence that would be necessary to prove liability at trial, such as internal memos, emails, incident reports and prior complaints, Judge Kozinski wrote: “it’s the job of the lawyers suing to find out everything the company knows and hopes to conceal.”

Judge Kozinski took the words right out of my mouth.

His observation pinpoints the controversy over changes to federal rules now being proposed that would limit discovery in all civil cases, including those involving consumer, employment and civil rights claims, filed in federal courtroom across the country.  The proposed changes to the federal rules that govern discovery would cut the number of depositions allowed by half (from 10 to 5) and limit them to six hours each.  Documents requests are slashed imposing a limit of only to 25 requests; interrogatory requests from 25 to a paltry 15 and admissions having new numeric restrictions of only 25.

The proposed changes, recently submitted by the Judicial Conference of the United States to Congress are now open for public comment. Public hearings, which have already begun, are being held in Phoenix, Arizona on January 9, 2014 and Dallas, Texas on February 7, 2014.  Public comments received from civil rights, consumer rights, and environmental champions argue that the rules will effectively do away with the discovery needed to enforce laws for the protection of all citizens.

On the other side, comments received from representatives of big corporate interests complain that the cost of discovery is too high, requiring a “trim” of discovery for all cases in federal court.

If these proposed changes to the federal rules of civil procedure take effect, Americans who bring consumer, employment or civil rights claims against large corporate entities will feel Judge Kozinski’s pain.   An employee who was wrongfully fired for, say whistleblowing, won’t get to find out very much and certainly not what the company hopes to conceal.  Instead, it is far more likely that companies who are intent on doing bad things and firing employees who bring unlawful practices to light will play possum until the meager discovery afforded under the proposed changes are all used up in a game of “gotcha.”

Judge Kozinski’s experience as a class member in a consumer rights case has led him to provide a vivid example of how paramount discovery is to prosecuting cases that that are brought under federal laws enacted to protect the public from false claims or faulty products.  Judge Kozinski’s experience demonstrates how important this yawn-inducing technical “fix” to the discovery rules is to the general public.  People and their elected representatives should be paying attention too.

[To learn more about how the proposed changes to the Federal Rules of Civil Procedure would harm civil right cases, read Wendy Musell's earlier blog post,Gaming the system: If you can't beat em, change the rules.]

This article was originally printed on CELA Voice on November 24, 2013.  Reprinted with permission.

About the Author: Wendy Musell is a partner at the civil rights law firm Stewart & Musell, LLP, a bi-coastal law firm located in San Francisco, California, and Freehold, New Jersey.  Stewart & Musell, LLP is a firm devoted to protecting civil rights in employment and in criminal law. Ms. Musell is committed to representing employees in public and private employment and protecting their civil rights.

Super Conservative Judge Alex Kozinski Inadvertantly Undercuts Rationale For Corporate Proposals to Narrow Discovery Under Federal Rules

Monday, November 18th, 2013
PaulBlandWeb-172

Last week, an outburst by Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, one of the most conservative and generally pro-corporate judges in the country, showed that the corporate arguments in favor of amending the federal rules to make it harder for individuals to prove their cases are unfair and unwise.
Judge Kozinski didn’t make the statements in a judicial decision, but instead in a pleading while representing himself in objecting to a class action settlement some lawyers brought against Nissan involving an alleged defect in some cars.  Among the judge’s objections to the settlement were that it was the “job of the lawyers suing [Nissan] to find out everything the company knows and hopes to conceal.”  This strong statement sharply contrasts with the general argument that corporations are making to the Committee considering changes to the federal rules, where the Chamber of Commerce and its allies are all arguing that plaintiffs conduct too much discovery as it is and that it should be made much harder for them to do so.  The truth, as Judge Kozinski’s argument makes clear, is that if corporate America gets its way, plaintiffs’ lawyers won’t be able to “do their jobs” in representing their clients.
So what is going on with the discovery rules?  Why are Judge Kozinski’s angry opinions in this one case against Nissan of greater interest?  The answer is one of the latest initiatives in the series of corporate efforts to close the courthouse doors to individuals who have been cheated by, polluted upon, discriminated against, or otherwise been illegally dinged by corporations.  There are a set of proposals to sharply narrow the discovery available under the Federal Rules of Civil Procedure.  The dynamic driving this campaign is that the burden of proof is on plaintiffs bringing a case, but the corporations possess and control nearly all the documents that relate to most cases.  So if you can make it harder for plaintiff’s to ask for evidence, you can make it harder (or often impossible) for them to prove their cases, and push them right out of court.
The Chamber of Commerce and its various buddies say that narrowing discovery is necessary because it’s supposedly unfairly expensive for corporations to search through their computers for evidence relating to law breaking.  In fact, as Public Justice has argued in some detail, the costs have been exaggerated, and in any case the biggest cause of costs and problems is that corporations stonewall and cover up inconvenient evidence—not that cheated consumers (or workers or pollution victims, etc.) ask for too much information.  But will a lack of serious data get in the way of an exceptionally well financed Chamber effort to help wrongdoers hide the ball?  No one knows yet, but the last several rounds of “reforms” have always turned out to be heavily tilted in favor of corporate interests.
But Judge Kozinski’s lambasting the plaintiffs’ lawyers in his objections to a settlement involving Nissan are way off-message for corporate America.  The background is that Judge Kozinski was a member of a class in a case against Nissan where the plaintiffs and the defendants reached a proposed settlement.  The way class actions work, a settlement has to be approved by a court, and in the vast majority of cases, class members have a choice between being part of the settlement (and getting their share of whatever relief is provided under the deal), opting out of the settlement (which means that the class member has the choice of bringing their own case in an effort to do better than the settlement), or objecting to the settlement.  Judge Kozinski objected to this settlement.  And one of his biggest gripes is that he is mad that the plaintiffs didn’t take enough discovery.  His argument is that the deal is very suspect if the plaintiffs didn’t do enough work to find out a lot about how badly the corporation actually behaved.  There are cases where this can be a very good point; I don’t know enough about the settlement to say whether he is right or wrong here.
While he says a lot of colorful things (Judge Kozinski hasn’t become one of our more famous judges by lacking in personality), the best thing he says is this gem: “It’s the job of the lawyers suing them to find out everything the company knows and hopes to conceal.”  That sounds about right to me – good lawyers need to get to the bottom of what really happened in a case, and if a corporation acting illegally gets away with concealing key evidence, then that increases the risk that the people harmed won’t be made whole.
So how can Judge Kozinski’s point about the importance of searching discovery be squared with the corporate campaign to make it harder and harder to take discovery?  The answer is obvious.  Judge Kozinski’s statement that lawyers have to dig through the concealment to get to the truth is completely inconsistent with the campaign to make it harder for plaintiffs to take discovery.
The obvious corollary of the judge’s comment is that proposals to limit discovery conflict with the campaign to choke off a good deal of the discovery available to individuals.  In the judge’s own words, if plaintiffs’ lawyers can’t find out “everything the corporation knows and hopes to conceal,” then they can’t do their job.
I can see why corporations that break the law want to make it impossible for lawyers for human beings to do their job.  I hope the Federal Rules Advisory Committee won’t agree with them on this round.

This article was originally printed on Public Justice on November 18, 2013.  Reprinted with permission.

About the Author: F. Paul Bland, Jr. is a Senior Attorney at Public Justice since 1997, is responsible for developing, handling, and helping Public Justice’s cooperating attorneys litigate a diverse docket of public interest cases.

Few And Far Between: Court Decides Female on Male Hostile Environment Sexual Harassment Case

Wednesday, October 20th, 2010

Assumption That Men Welcome Sexual Harassment Is Sex Stereotyping In Violation Of Title VII

You don’t often see sexual harassment cases in which the woman is the aggressor and the man is the victim. Many people (including some judges) don’t interpret those facts to constitute sexual harassment in violation of Title VII. That’s why the recent case of EEOC v. Prospect Airport Services from the Ninth Circuit Court of Appeals is so important.

What Happened In The Case

Rudolpho  Lamas worked for Prospect Airport Services at McCarran International Airport in Las Vegas. He worked as a passenger assistant helping passengers who needed wheelchair assistance.

Lamas, a recent widower, started working for Prospect in April of 2002. That fall, Sylvia Munoz, a married co-worker began making sexual advances to Lamas. Munoz repeatedly:

  • propositioned him for sex
  • asked him out
  • wrote him love notes which were sexually explicit
  • performed gestures simulating fellatio when he walked by
  • recruited co-workers who were telling him that she loved him and wanted him
  • approached him in the parking lot at work and gave him a sexually suggestive photograph

Lamas never made overtures towards Munoz and told her and their co-workers over and over that he was not interested – but she didn’t stop.

Lamas complained to his boss but nothing was done. He talked to his next supervisor up the chain, Dennis Mitchell, and gave him one of the “love” notes. Mitchell told Lamas that he “did not want to get involved in personal matters.” Eventually Mitchell told Munoz that he knew she was “pursuing a coworker … and the coworker wanted the advances to stop.”

But Munoz did not stop and the harassment continued. He testified that every time he walked by her there was something — a gesture, licking her lips suggestively, asking if he “wanted to have some fun”, performing “blow job imitations” – and that it was embarrassing and causing constant pressure at work.

Co-workers began to speculate that Lamas was a homosexual — so in addition to having to deal with Munoz’s remarks and gestures, Lamas had to face co-workers remarks suggesting that he was gay. Lamas complained to four different Prospect management officials about the harassment, but nothing was done to stop it. Munoz kept up the behavior.

Lamas felt helpless, was crying, and consulted a psychologist about his distress. His performance began to suffer. Lomas was demoted because of “complaints about job performance “and his “negative attitude.” A few months later, in June of 2003, Lamas was fired.

The District Court Decision

Munoz filed a lawsuit in the federal district court in Nevada for sexual harassment. The district court concluded as a matter of law that Munoz’s conduct was not severe and pervasive enough to amount to sexual harassment for a reasonable man.

In its decision grating judgment against Lamas, the district noted that most men would have “welcomed” the behavior, but Lomas admitted that due to his Christian background he was embarrassed instead. It also noted that Munoz never filed a written report complaining about the conduct.  Lamas appealed.

The Ninth Circuit Court Of Appeals Reverses

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, which includes sexual harassment in the form of a hostile work environment. Both sexes are protected under the law.

In a hostile environment sex harassment claim, the plaintiff must prove that he or she:

  • was subjected to verbal or physical conduct of a sexual nature
  • which was unwelcome
  • and sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment

In addressing the each of the elements and burden of proof as applied to this case, the Court found the following:

Conduct of a sexual nature

Whether Lamas was subjected to “verbal or physical conduct of a sexual nature” is an “easy question” according to the court.

Munoz propositioned him for sex. Munoz wrote to him that she dreamed of him in a bath, that she gave good “body wash,” and that she wanted him sexually. She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes. His proposition was for sex, not a cup of coffee together. After she recruited coworkers to pressure Lamas, they mocked him suggesting he was homosexual.

Welcomeness

In addressing whether the conduct was welcome or not the Court stated:

It cannot be assumed that because a man receives sexual advances from a woman those advances are welcome. …. This is a stereotype and welcomeness is inherently subjective, so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual advances.

Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.

… Lamas unquestionably established a genuine issue of fact regarding whether the conduct was welcome.

Severe or Pervasive

It is well established that sporadic use of abusive language, gender-related jokes, and occasional teasing will not, standing alone, establish a hostile environment sexual harassment claim.

As stated above, in order to establish a violation, an employee must prove that the unwelcome sexual conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

Whether a working environment is objectively abusive is determined only by looking at all of the circumstances which may include:

  • the frequency of the discriminatory conduct
  • its severity
  • whether it’s physically threatening or humiliating
  • whether it unreasonably interferes with an employee’s work performance

No single factor is required. In this case, the Court found that:

Monoz’s continued advances created an environment that Lamas reasonably perceived as hostile and abusive. Lamas’ emotional testimony about his co-worker statements about Munoz’s interest in him, his complaints to his supervisors and Prospect managers, as well as his complaints to the EEOC and State of Nevada all evidenced pervasiveness amounting to an abusive work environment.

Prospect Airport’s Response

An employer is liable for an employee’s sexual harassment of a co-worker if it knew, or should have known, about the harassment and failed to take prompt and effective remedial action. According to the Court:

The record established that a jury could reasonably find that Prospect knew about the harassment, and that its response was inadequate. Lamas complained to his employer, but Prospect’s responses were ineffectual, and known by Prospect to be ineffectual. … Prospect’s actions were not enough to establish an affirmative defense for Prospect.

With that, the case was reversed.

Take Away

What was really interesting about the case was the district court’s reaction to the evidence — that is, this was not a case of sexual harassment because Lamas’ reaction to the sexual advances was not the same reaction most men would have.  Other judges may have a tendency to view the evidence the same way.

This opinion clearly addresses the problem of erroneously stereotyping men in the context of a sexual harassment case in which the man is the victim. It doesn’t come up all that often, but when it does, this new opinion for the Ninth Circuit should be very helpful to male employees who find themselves in a similar situation.

images: www.rollingrains.com www.stencilease.com

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Your Rights Job Survival The Issues Features Resources About This Blog