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Friday, May 11, 2018

Painstakingly Slow Harassment Investigation Sends Case to Jury

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Keoshal Hankins worked as a sales associate a Dollar General store in Mississippi. In a sexual harassment lawsuit filed on her behalf by the Equal Employment Opportunity Commission (EEOC), Hankins claimed that she was subjected to repeated sexual harassment by her store manager, which included multiple propositions for sex and unwanted and offensive physical contact. Hankins alleged that she reported this harassment to the assistant store manager, as well as to lead sales associate who, in turn, relayed her complaints to Dollar General’s district manager and a senior human resources manager, according to a judge's order.

Dollar General’s response was “painstakingly slow”, eventually terminating the store manager approximately four months after initiating its investigation into his conduct.  By that time, Hankins had been fired, the judge’s order noted.

Dollar General sought to summarily dismiss of Hankins’ EEOC lawsuit, contending that she could not show that the manager’s sexually harassing conduct was “severe or pervasive.” In responding to Dollar General’s arguments that the alleged harassment in this case was insufficiently severe, Hankins provided the court a list of twenty-six rude, crude & profane comments, propositions, text messages, and physical touching, not appropriate to be printed in a public newspaper. A co-worker saw one of the store manager’s sexually profane text messages to Hankins, and two other workers in the same store had previously reported problems with the same store manager, the order noted.

Faced with this rather overwhelming response, the judge observed that Dollar General did not contest the factual basis for any of Hankins’ twenty-six items in its reply brief, and it simply reiterated, in a footnote, its position that the harassment allegedly suffered by Hankins was neither “severe nor pervasive.” On Tuesday, a federal judge in Oxford, Mississippi found the evidence sufficient to send Hankins to a jury.

Common Sense Counsel: The only thing worse than not reacting to complaints of workplace harassment is a painstakingly slow investigation. When you conduct your next respectful workplace training, consider these seven tips: 1) include all protected classifications; 2) provide “suitable for work” examples; 3) explain various reporting channels; 4) make sure you are using a legally compliant policy; 5) investigate promptly under the attorney client privilege; 6) take prompt remedial; and 7) take prompt corrective action. And last, a valuable lesson one of my law school professors taught me, “don’t get your honey where you get your money,” for anyone thinking that a workplace romance is a good idea.

Click Here to read the full case. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901.

Wednesday, May 2, 2018

"Printer-Gate" Backfires on Charter



Seven Charter Communications workers at Charter’s call center in Louisville, Kentucky were each given a Hewlett-Packard (HP) computer printer by Charter’s Louisville office administrative assistant, according to a recent court decision. Each testified that they believed her distribution of the printers was authorized by Charter management. Charter, however, considered each employees’ acceptance of the printers to be a violation of its policy against removing company property without authorization, and it terminated most of the employees involved.

Image result for bad printer clip artApproximately one month after the employees were fired, a Charter Human Resources Manager gave a PowerPoint presentation during a Charter leadership conference. On a slide with the heading “Leadership and Judgment,” he referred to “Operation Green-light, Buzz-kill, Printer-gate.” He then encouraged employees in the training to “act with Integrity and Character.” The notes for his oral presentation accompanying the slide stated: “Let’s get the elephant in the room out in the open, how many of you have heard of these Operation codes for things that weren’t right! All examples of poor judgment. Not bad people, people we know and love but they made the wrong choices.” Green-light referred to an incident in which a Charter employee allegedly used a company credit card for personal benefit and was terminated as a result. Buzz-kill involved the alleged sale of illegal drugs on Charter property by Charter employees; those employees were also terminated.

Upon hearing about the Charter Human Resource Manager’s training presentation, the fired employees sued Charter for defamation on the ground that Charter made false statements alleging misconduct relating to the distribution of HP ink jet printers. They contend that the use of the term “Printer-Gate,” particularly in conjunction with references to employee theft and drug-dealing, implied that their actions were criminal.  Charter sought a summary dismissal on the grounds that “Printer-Gate” is not defamatory and that any implication of wrongdoing was true.

In Kentucky, defamatory language is broadly construed as language that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with them. Additionally, in Kentucky a person need not be specifically identified in the defamatory matter itself so long as it was so reasonably understood by the person’s friends and acquaintances familiar with the incident. Under the law, certain statements are actionable per se, meaning that they give rise to a conclusive presumption of both malice and damage, including false accusations of theft.     

Recently, a federal district judge in Kentucky ruled that the fired employees involved in “Printer-Gate” had presented sufficient evidence to put their cases before a jury on their defamation claims against Charter.

Common Sense Counsel: One of the most dangerous fired employees is one to whom the ex-employer delivers the ammunition. Creating a post-discharge training session, based on fired employee alleged misconduct, is just begging for a lawsuit. These 4 Tips are taken straight from my Litigation Landmines Training. When an Employee leaves remember; 1) Keep Situation Confidential; 2) Even with Peers; 3) Respect Privacy; and 4) Refer Questions to Human Resources.

Kruti Desai v. Charter Communications

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and can be contacted at teden@constangy.com or 334-246-2901 and blog at www.alabamaatwork.com with link to full court opinion.

Friday, March 2, 2018

Split in the Federal Circuits on Sexual Orientation Bias




Donald Zarda worked for Altitude Express as a skydiving instructor. Following one jump, a customer complained that Zarda had disclosed his homosexuality and other personal details during the jump. Zarda was fired soon thereafter. He sued Altitude Express claiming sex discrimination under Title VII, gender and sexual orientation discrimination under New York state law, and violation of state and federal wage and hour laws. Zarda is deceased but his lawsuit lives on through the two executors of his estate who have replaced him as plaintiff. At trial on his state law discrimination claim, the jury found that Zarda had not proved that his sexual orientation was a determining factor in his termination.

On appeal, Zarda claimed that Title VII protects against sexual-orientation discrimination and that part of his case should not have been dismissed. The U.S. Court of Appeals for the Second Circuit recently signaled in the fall that it might overrule its precedent holding that Title VII’s ban on sex discrimination does not include sexual orientation discrimination.

On February 26, the 2nd Circuit Court of Appeals ruled as follows: “We convened this rehearing en banc to consider whether Title VII prohibits discrimination on the basis of sexual orientation such that our precedents to the contrary should be overruled. We now hold that sexual orientation discrimination constitutes a form of discrimination ‘because of . . . sex,’ in violation of Title VII, and overturn its prior 2005 decision to the contrary. With this decision, the Second and Seventh Circuits have held that Sexual Orientation discrimination is prohibited by Title VII.  The Eleventh Circuit and 11th Circuit Justice Bill Pryor in Evans v. Georgia Regional Hospital says No, it isn't. Next stop the U.S. Supreme Court to resolve a split in the Circuits.

Common Sense Counsel: while the battle lines are drawn between Trump v Obama policy agendas, there is still no substitute for training your supervisors in effective and defensible termination and harassment prohibitions in all forms - to include gender identification and sexual orientation. Also, the new claim of “failing to conform to gender stereotypes” appears to be gaining traction in the 11th Circuit Court of Appeals.

Specifically, train your supervisors not to use loose words like “attitude” or “company culture” or “sexuality” or similar phrases that lack defined meaning in employment law, as the courts may assign meaning you do not like. Train all employees that it is about respect in the workplace and being able to work with others in a civil and cooperative manner are essential job functions. In fact, make respectful behavior and diversity and inclusion part of your statement of values. Update your harassment prevention/professional conduct policy, investigative notebook and harassment prevention training to include all forms of disrespectful conduct and protected status individuals. 


Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, February 23, 2018

Who has your Company's Dirty Laundry?



Manheim Remarketing hired Qunesha Bowen as an automobile detailer, and three years later promoted her to arbitration manager. Bowen replaced a male arbitration manager who was paid $46,350 during his first year as arbitration manager. But Bowen’s starting salary was set at $32,000 and her salary did not reach $46,350 until her sixth year as arbitration manager.

After learning about the pay disparity with her male predecessor, Bowen sued Manheim in Federal Court under the Equal Pay Act and Title VII. Bowen offered in support of her claims: (1) documents and testimony about her performance and salary history; and (2) affidavit testimony from Manheim’s HR Manager. The Court Order detailed the alleged facts below:

Bowen offered documents and testimony showing that, although she was an effective arbitration manager, her salary for a few years was below the minimum salary for arbitration managers and it was consistently well below the midpoint salary for arbitration managers. Manheim paid Bowen $37,001.60 in 2007; $41,000 in 2008; $46,075.63 in 2010; and $46,075.63 in 2011. But under Manheim’s compensation guidelines the midpoint salary for an arbitration manager was $49,400 in 2007; $52,900 in 2008; $55,500 in 2010; and $56,500 in 2011.

However, it was the affidavit of Manheim’s HR Director concerning her investigations into sex-based pay disparities at Manheim that turned the tide in Bowen’s favor:
  •  Comments from a 2007 employee survey that the HR Director conducted indicated that female employees were treated differently than male employees, (2) female employees were denied particular positions, and (3) a “good ole’ boy” system existed at Manheim.
  •  The 2007 survey results prompted the HR Director to conduct an investigation into sex- based disparities at Manheim where she gathered all of Manheim’s job postings and examined who applied and who interviewed for posted positions. Based on that review, she concluded that Manheim was excluding women from certain positions. While discussing a female employee’s application for an assistant general manager position with the general manager, she was told that Manheim would be “the laughing stock” of the community if it made such a hire and that he would never allow a female to work as a mechanic.
  •   In 2009, Manheim’s payroll administrator then ran a report comparing women’s and men’s pay and prior pay increases. This investigation revealed that women’s pay was “thousands of dollars less than men’s pay for the same jobs.”
  •    The HR Director reported her findings about sex-based pay disparities to the general manager, but he refused to address the disparities.

This week the 11th Circuit Court of Appeals in Atlanta ruled that there was sufficient evidence to send Qunesha Bowen’s Equal Pay and Title VII case before a jury.

Common Sense Counsel: Employee Engagement Surveys are wonderful tools in the right hands but can be deadly to an organization when used by a frustrated HR Director. First, never conduct an employee engagement survey unless you, in good faith, plan to take action that will make a difference. Second, always conduct surveys and investigations of a sensitive nature under attorney-client privileged direction, or your company’s dirty laundry just might make the news!

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com

Friday, February 16, 2018

How to Breach a Gag Agreement




On the heels of Dear Dr. LOVELESS Valentines HR Edition last week, the burning question this week is; does Stormy Daniels get to spill the beans on her alleged affair in 2006 with Donald Trump? Despite the fact that she was under a non-disclosure agreement? Maybe yes, and maybe no. It may depend on what the agreement actually said.

Quick recap: In 2016, The Wall Street Journal reported that porn star Stormy Daniels was paid $130,000 during the 2016 presidential campaign to keep quiet about an alleged sexual relationship with Donald Trump that took place in 2006. The WSJ story blew up again more recently. Ms. Daniels had talked about the alleged relationship before 2016, but she'd kept quiet since entering into the agreement.

This week, President Trump's personal legal counsel, Michael Cohen, disclosed that he (Mr. Cohen) is the one who paid the $130,000 to Ms. Daniels, out of his own funds, and that neither the Trump Organization nor the Trump campaign paid it, either directly or indirectly. (Yeah, I know.)

So now Ms. Daniels is saying she is no longer bound by the NDA in her agreement because Mr. Cohen violated it first. Is she right?

To be able to answer that question, we'd have to see the NDA. If it says only that neither party (or their representatives) will discuss the agreement or the situation that resulted in the agreement, with no exceptions, then she may be correct.

But many NDAs (including all that are drafted by me) make an exception for truthful disclosures that are required by law, or are disclosed pursuant to a subpoena or a government investigation. This is important because some say that the payoff to Ms. Daniels may have violated federal election laws. Although Mr. Cohen released a statement to The New York Times, it was apparently in connection with his formal response to a complaint about the payoff that was filed with the Federal Election Commission. The FEC complaint has been in the news since at least January, so that cat has been out of the bag for a while.

If Mr. Cohen made the media statement in connection with his response to an FEC investigation, and if the FEC investigation had already been made public by someone other than himself or anyone on the Trump team, and depending on the applicable exceptions (if any) to the NDA, then Mr. Cohen may not necessarily have breached the NDA. Which means that Ms. Daniels might still be bound by it, too.

Ms. Daniels claimed on Valentine’s Day to have a "Monica Lewinsky dress" that she is going to have DNA-tested. You will recall that the stained navy-blue GAP cocktail dress of Ms. Lewinsky is still considered one of the most famous articles of evidence in history.  Ms. Daniels claims that the shimmering gold mini dress with a plunging neckline was kept in pristine condition after her alleged 2006 sexual encounter with Trump at the Lake Tahoe hotel suite. Ms. Daniels is reportedly planning on having the dress forensically tested to search for any DNA that proves she isn’t lying about her tryst with Trump, including samples of skin, hair or … anything.

Common Sense Counsel: Be careful what you sign and be careful what you say. And save the evidence.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Tommy’s Law Partner Robin Shea is Dr. Loveless and the Stormy Daniels story author.

Monday, February 5, 2018

Why Quash the FISA Surveillance Warrant?

As a follow-up to the OA News AP Sunday article “Trump claims memo totally vindicates him,” the FISA Memo released last week revealed what some might call prosecutorial misconduct by the FBI or DOJ attorneys who signed the FISA surveillance warrant application on Trump advisor Carter Page. The FISA Court is actual composed of seven rotating United States Court District Judges from various regions of the country all appointed by U.S. Supreme Court Chief Justice John Roberts for a seven year term. Once a quarter, for one week, one of the seven will come to the Washington to hear a FISA warrant application for surveillance related to national intelligence. From news reports, four different FISA Court Judges heard FISA applications concerning Carter Page, most likely presented by the same FBI or DOJ attorneys. If in fact, as alleged in the FISA Memo, the FBI or DOJ attorneys failed to fully disclose to the FISA Judge that the source was not creditable, bias, political opposition research, etc. then all four FISA warrant applications can be retroactively challenged on a Motion to Quash. At that point all four District Court Judges who ruled could meet collectively to hear the Motion to Quash. If granted, all the “Fruits of the Poisonous Tree” in any manner related to the improperly granted FISA surveillance warrants would become of no legal significance.  A Federal District Judge who believes an attorney was concealing facts or bias of a source, especially in a probable cause hearing, can take a number of steps to correct the injustice. It appears the FISA Memo was released to give the FISA Court a process to begin that Motion to Quash challenge, or cause Chief Justice John Roberts to take the bull by the horns in his capacity as the FISA Court judicial appointing authority, to shine a bright light sua sponte (on his own accord).  If that happens, look for an argument by the Trump and DOJ lawyers that the Robert Muller appointment was one fruit of that poisonous tree.


Tommy Eden is an attorney who lives in Auburn and a guest Columnist to the OA News. 

Friday, February 2, 2018

Vertigo Disability – How to Win a Difficult Case


Susan Morris-Huse worked at Geico as a TCR I Supervisor, an individual who supervises the processing and settling of claims in a telephone claims unit. She was diagnosed with Meniere’s Disease, a disease of the inner ear, in the mid 2000s and for about a decade took intermittent disability leave when the disease. It would flare up causing her “random attacks of vertigo, and nearly chronic bouts of dizziness and imbalance,” according to her lawsuit filed in Federal Court in Tampa.

After undergoing a procedure in 2013, her doctor wrote to Geico recommending that Huse be allowed to work from home because she could not “reliably drive long distances and do things that required walking up and down stairs.” Geico, in response, arranged for her to carpool with co-workers, allowing her to avoid climbing stairs and providing her a few offices spaces for her to rest should her symptoms act up, but did not let her work remotely.

Huse returned to work using the ride-share system and was able to make her shifts for several months until she transferred to a different office where she did not have to drive as far to work. But she could not work after June 2015 and went on long term disability. In 2016 Huse filed suit alleging that Geico did not accommodate her disability under the ADA. The Federal Judge ruled on Tuesday that the accommodations Geico provided Huse were reasonable, even if they weren’t the accommodations she preferred, and dismissed her lawsuit.

Common Sense Counsel: The ADA requires employers to provide “reasonable accommodations” that allow workers to overcome disabilities and perform their jobs so long as these accommodations do not impose an “undue hardship” on the business. The Judge held in this case it was enough that Geico arranged for her to get rides with co-workers and did not require that she climb stairs. The Judge added that telework was not a reasonable accommodation in this case because Huse’s job required that she provide in-person guidance to the workers she supervised and monitor their calls using software available only at Geico’s offices; ruling that “The undisputed evidence demonstrates that Huse held an interactive job, that used technology available only at the office locations, and which required her to have a regular, physical presence.” The federal judge’s analysis of Huse’s written Geico job description as a TCR I Supervisor was critical to the favorable outcome for Geico in this case. Never underestimate the value of a well drafted, legally compliant job description, and wise legal counsel on patiently handling disabled workers. Preventive preparation and patience can keep you from getting dizzy when the lawsuit arrives.


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Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork Geico was represented by Tommy’s Partner’s Angelique Groza Lyons and Sean Douthard.