Category: Age Discrimination (ADEA)

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Age Discrimination (ADEA)

State Funding as an Incentive to Discriminate

State Funding as an Incentive to DiscriminateRecently, the Gilbert Firm filed a lawsuit in federal district court in Nashville challenging funding incentives for schools which place children with disabilities in more restrictive settings than necessary; you can find the Complaint here. The lawsuit argues that Tennessee rewards local schools for more restrictive placements. This, the lawsuit contends, violates federal laws including the IDEA, Section 504, and Title II of the ADA.

The IDEA prohibits funding mechanisms which compel more restrictive environments than necessary:

20 U.S.C. §1412(a)(5): “A State funding mechanism shall not result in placements that violate the requirements of subparagraph (A), and a State shall not use a funding mechanism by which the State distributes funds on the basis of the type of setting in which a child is served that will result in the failure to provide a child with a disability a free appropriate public education according to the unique needs of the child as described in the child’s IEP.”

And so do IDEA regulations: “The State may not use a funding mechanism which distributes funds based on the type of setting in which the child will be served.” 34 C.F.R. §300.114(b)(i).

The lawsuit includes examples of how the State pays for the costs of various placements. The State’s funding formula is set forth in a BEP Funding Handbook. Under Option 5, children who need 22 hours of a “resource program,” the State will pay $2,696.47 for that child’s education. But if a school were to simply add a single hour of service (to 23 hours, not 22), the child is considered an “Option 7 child” — one who needs a “developmental class” for 23 hours per week.” By adding one hour, the school will receive $4,044.70 from the State, not $2,696.47. And if the School chooses Option 8 for the child (a self-contained classroom), the school will receive $6,741.17 — almost three times as much money as the Option 5 child. Thus, the lawsuit alleges the State is monetarily rewarding more restrictive environments, not less restrictive environments.

Already, the case has resulted in a favorable opinion from U.S. District Judge Aleta Traugher, acknowledging that funding causing more restrictive environments — if proven at trial — can violate the law:

The state is a defendant in this action and has an interest in upholding, rather than changing, its current practices…. The plaintiffs are not asking the court to conduct a thorough review of all aspects of the plaintiffs’ educational needs. Rather, they are raising the very pointed question of whether — in meeting those needs — particular systemic practices … caused the plaintiffs to be placed in more restrictive environments than necessary, contrary to federally mandated requirements.

The Gilbert Firm is a leader in special education law, tackling challenging problems across the state to benefit kids. If you believe your child is the victim of unfair segregation, or discriminatory practices, please contact us. We maintain offices in Nashville, Chattanooga, Memphis, and Jackson for your convenience.

 

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Age Discrimination (ADEA) Sex Discrimination

Sexual Harassment and Gender Discrimination Happen More Frequently Than You Might Think

Sexual Harassment and Gender Discrimination Happen More Frequently Than You Might ThinkIn early December of 2015 Fortune.com published an article about one of the witnesses in the case of Ellen Pao v. Kleiner Perkins Caufield & Byers LLC and DOES 1-20 (a gender discrimination case out of San Francisco), a woman named Trae Vassallo. What Ms. Vassallo discovered, after she delivered testimony about her own experiences with sexual harassment, was that an “overwhelming number” of women wanted to discuss their personal experiences with harassment and discrimination – enough to lead her to co-author a study of 200 women in the technology field about their experiences. Her findings show:

  • Women who have experienced an unwanted sexual advance at work: 60%
  • Women who reported that experience: 39%
  • Women who were not given career-advancing opportunities: 66%
  • Women who have witnessed sexist behavior at offsite events and conferences: 90%
  • Women who have witnessed or experienced gender bias: 88%
  • Women who have been questioned about their personal lives during an interview (marriage, children): 75%

What these statistics can tell us

Most people have what they think are good definitions of “gender discrimination” and “sexual harassment” in their heads. What studies have shown over the years, which is no surprise, is that men and women often have vastly different ideas about what those definition are. In fact, those definitions will vary widely between members of the same sex. What everyone seems to agree on is that unwanted sexual advances – touching, catcalling, repeatedly asking for dates, making sexual comments or discussing sexual content – is sexual harassment. Telling inappropriate jokes and commenting on a woman’s attire can also be forms of harassment when they are unwanted, while purposely passing over a more qualified woman for a promotion in favor of a male employee instead is a form of gender discrimination.

Ultimately, numbers like these prove that women are faced with far more challenges in the workplace than what is generally reported. There are rules and laws in place to ensure that everyone feels safe at work and are otherwise evaluated on an equal playing ground. There is simply no reason for a female endure this treatment and fail to seek assistance. In many situations, these matters can be addressed privately and confidentially. With all of the protections afforded to employers, it is critically important that these situations be handled properly. If you believe you may have been a victim of sexual harassment or gender discrimination, or are unsure how to proceed, we invite you to contact Jonathan Bobbitt or Justin Gilbert at The Gilbert Firm to reserve a consultation with a skilled employee rights attorney in our Nashville, Chattanooga, Memphis, or Jackson office locations.

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Age Discrimination (ADEA) FLSA Title VII

Employment Agreements that Limit a Statute of Limitations. Enforceable?

Employers love arbitration agreements. Employers are beginning to love agreements that have provisions that limit an employee’s statute of limitations. The Sixth Circuit just handed down a decision that addressed such an agreement from Federal Express. In that case, Boaz v. FedEx Customer Information Services, Inc., et al., the Plaintiff filed a Fair Labor Standards Act and Equal Pay Act case. Federal Express tried to convince the court to dismiss the FLSA case because it was brought more than six months after the statute of limitations.

The case involved claims under both the FLSA and the Equal Pay Act. Many people associate the Equal Pay Act with discrimination lawsuits. However, for purposes of this case, it is important to remember that the Equal Pay Act was an amendment to the FLSA. The Sixth Circuit framed the issue as follows: “Although Boaz’s claims were timely under the multi-year limitations. Under those Acts, her claims were untimely under the six month limitations in her employment agreement.”

Her employment agreement said “to the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring to that Complaint within the time prescribed by law or six months from the date of the event forming the basis of my lawsuit, whichever expires first.”

Because the lawsuit was filed after the six month limitation, Federal Express thought they had a get-out- of-jail-free card.

Fortunately for the employee, the Sixth Circuit did not agree. The Sixth Circuit said that “the issue is whether Boaz’s employment agreement operates as a waiver of her rights under the FLSA.” They noted that employees may waive their rights under Title VII. However, employees cannot waive their rights under the FLSA. Therefore, they reasoned that the six month limitation period is not valid in an FLSA case. This left the question of whether the Equal Pay Act claim was also barred. While an employee can waive a claim under Title VII, the Sixth Circuit said that the Equal Pay Act is different. The Equal Pay Act was an amendment to the FLSA. Because the statute of limitation cannot be contractually shortened for FLSA claims, it cannot be contractually shortened for Equal Pay Act claims either.

What is the takeaway? Employers can have contracts that shorten the statute of limitations for some claims, such as Title VII. However, an employer cannot have a contract that shortens the statute of limitations for a Fair Labor Standards Act case in the Sixth Circuit. Likewise, because the Equal Pay Act was an amendment to the FLSA, Equal Pay Act claims also cannot be subject to contracts that shorten the statute of limitations. The court does not say so, but presumably the Age Discrimination in Employment Act is similar to the Equal Pay Act. It also is based on the statutory construction of the Fair Labor Standards Act.

There are two other nuggets the Sixth Circuit addressed in the Boaz case. However, you will have to stay tuned for our next blog post to find out about those.

Categories
ADA & ADAA Age Discrimination (ADEA) Bankruptcy Discovery FMLA Overtime/Wage & Hour Retaliation Sex Discrimination Sexual Harassment Title VII Uncategorized Whistleblower Law

17th Annual TBA Labor and Employment Forum

Here’s a great CLE opportunity that will cover a ton of labor and employment topics.  The 17th Annual TBA Labor and Employment Forum is April 12 in Nashville.  I will be speaking about current developments in wage and hour law. 

This is my second year to speak at this event, and it’s an honor to be included among such great employment lawyers from across the state.  This year, the line-up of speakers includes  Judge Clifford Shirley, John Bode, Bob Boston, Stan Graham, and Mark Travis.  Register at http://tinyurl.com/azdyxcl

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ADA & ADAA Age Discrimination (ADEA) Bankruptcy Sex Discrimination Title VII

The Plaintiff’s Bankruptcy Schedule – A Defendant’s Windfall?

Many victims of discrimination must file bankruptcy if they cannot obtain work. 

Those bankruptcy filings can be dangerous.  The schedule of assets and liabilities presumes the new debtor will disclose a wrongful termination lawsuit as an “asset.”  Often, that does not occur.

The failure to disclose a potential lawsuit can occur for any number of reasons:  (1) the debtor not understanding that a contingent legal claim, even if not yet pursued in court, is an “asset”; (2) believing a discrimination lawsuit must be filed in court before it becomes an asset for a bankruptcy; (3) relying upon a hurried bankruptcy paralegal to fill out the forms; and (4) not even knowing a discrimination case exists at the time of the bankruptcy filing.

Why does the schedule matter so much?  Because, legally, filing bankruptcy creates an estate.  The assets of the estate, including any wrongful termination claims, no longer belong to the debtor.  They are property of the estate, and they include “all legal or equitable interests of the debtor in property as of the commencement of the case.”  11 U.S.C. § 541(a)(1).   

See the issue yet?  Yep, it’s one of standing to sue.  Filing a wrongful termination suit where the lawsuit was not first disclosed in bankruptcy can result in a legal challenge by the former employer for lack of standing to sue. 

So, what should experienced Plaintiff’s counsel do if he/she learns that a victim of employment discrimination has filed bankruptcy?

  • If the bankruptcy is still ongoing, check the bankruptcy schedules to see whether the potential lawsuit has been disclosed.  If not, amend the schedule to include the lawsuit and surrounding information.  Then, with the cooperation of the Bankruptcy Trustee, file the discrimination lawsuit.
  • If the bankruptcy already has been discharged, check the bankruptcy schedules to see whether the discrimination claim was disclosed in the first place. 
    • If it was, then the bankruptcy Trustee has chosen to “abandon” the discrimination claim and the individual regains standing to file the lawsuit. 11 U.S.C. §554(c); Auday v. Wet Seal Retail, Inc., 2012 U.S. App. LEXIS 22180 (6th Cir. Tenn. 2012).  
    • If the discrimination claim was not disclosed in bankruptcy, consider reopening the bankruptcy estate and making the claim known.  The Trustee may choose to abandon it, or may choose to pursue it.  If the Trustee makes known its intention to abandon, the plaintiff may fairly argue she has standing.  If the Trustee pursues the claim, the Trustee will likely cooperate with the filing of a discrimination suit in order to recover proceeds for creditors.  Technically, the Trustee becomes the “Real Party in Interest” in this situation, but the lawsuit is preserved and any recovery beyond the bankruptcy debt will revert to the debtor.

In summary, it pays to closely evaluate the bankruptcy schedule before filing a discrimination lawsuit.  Do not assume the bankruptcy attorney listed a discrimination lawsuit, or that the client’s ignorance of bankruptcy schedules will be a safeguard.  Instead, be proactive, fixing the schedule where necessary, even if the bankruptcy has already been discharged.

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ADA & ADAA Age Discrimination (ADEA) Retaliation Sex Discrimination Title VII Whistleblower Law

What if an employer says he didn’t know about about the protected activity?

When I was a child, I loved the show “Hogan’s Heroes.”  For those of you who were too young to recall the show, it was about some American POWs in a prison camp in Germany.  Remember, it was a comedy.  These POWs were no more imprisoned than you or I.  They had radios, tunnels, and ran missions from their “prison camp.”

How did they do this?  They had a buffoon of a prison guard named Sergeant Schultz. He surely knew of the comedy that was going on behind the walls of the prison.  Whenever he was asked, however, he would respond with one of the classic lines in TV history:  “I hear nothing; I see nothing; I know nothing.”

Employers have a habit of taking on the Sergeant Schultz character when they find themselves defending an employment discrimination claim.  “I didn’t know she had a workers compensation claim when I fired her.”  “I didn’t know that he had just reported his supervisor for race discrimination.”  “I didn’t know she had complained of sexual harassment.” In other words, they claim that the decision maker did not know about the “protected activity.”  They take the witness stand and effectively say, “I hear nothing; I see nothing; I know nothing.”

This defense is problematic  because it requires employees to prove  when a decision maker learned of protected activity, even though the employer has every incentive to hide this crucial information.  Fortunately, some courts have realized that if a decision maker will lie about one thing, they will lie about everything.

It’s well-settled law that an employee can prove that the employer acted with an illegal motive if she can show that the “reason” an employer gives for the termination is a big fat lie.  In other words, if an employer claims that he fired a pregnant lady because was late to work, but the employee can prove that she arrived on time, then the jury can “infer” that the real reason was her pregnancy.  This is called a “pretext.”  Again, that’s a fancy legal word for “big fat lie.”

Employees and their attorneys should use pretext evidence where an employer is claiming he does not know of the protected activity.  “Pretext evidence” can also be used to estabish an employer’s knowledge of protected activity.  If an employee can show that an employer is lying about material matters in case, the jury should be able to infer that he knows about the protected activity and is trying to cover up the discrimination.

 Wise judges have reasoned that if the employee can show that the reason given by the employer for her termination is not true, then the jury can conclude both that the true motivation was illegal andthat the employer knew about the protected activity. See e.g. Cunningham v. Black & Decker, No. 05-1297 T-An.  (W.D. Tenn. 2008); (holding that the jury could conclude that an alleged decision maker knew of the protected activity where his credibility has been impeached on other matters);  see also Allen v. Chicago Transit, 317 F.3d 699‑700 (7th Cir. 2003)(When a witness is impeached on material matters,  his credibility becomes an issue for the jury.  It is well-settled that summary judgment is not appropriate on employment discrimination cases in light of such evidence);  O’Malley, Grenig & Lee, Federal Jury Practice and Instructions § 15.06 (5th ed.2000) (model text of “falsus in uno, falsus in omnibus” as a jury instruction); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2726, at 446 (3d ed. 1998) (“Clearly, if the credibility of the movant’s witnesses is challenged by the opposing party and specific bases for possible impeachment are shown, summary judgment should be denied and the case allowed to proceed to trial”).

 The moral of the story?  Be sure your lies will find you out.

 

 

Categories
ADA & ADAA Age Discrimination (ADEA) Retaliation Whistleblower Law

Allegations of Discrimination and Retaliation at the University of Tennessee: Employment Law Meets College Athletics

There’s a lot more action in the courtroom than on the football field at the University of Tennessee these days. This blog is the first in a series of periodic posts that will explore allegations of illegal employment practices in the U.T. Athletics Department.

Nearly two decades ago, I was an undergraduate at U.T.  As part of a course project, I was on a team of students who did an organizational evaluation of the Women’s Athletics Department.  UT was one of the few universities that separated its men’s’ and women’s’ athletics departments.  I had the opportunity to meet former women’s athletics director Joan Cronan, who was extremely gracious to me and my fellow students.  I also met Debbie Jennings, who struck me as a no-nonsense but deeply committed sports information director. 

At the time, President Joe Johnson was admired and respected by students, faculty, and alumni.  Joan Cronan presided over arguably the most successful women’s athletic program in the country.  And Pat Summitt was . . . well, she was Pat Summitt.

Much has now changed.  The women’s athletic program has merged with the men’s program.  Dave Hart, a new athletic director, is steering the ship.  Pat Summitt has retired under increasingly unclear circumstances.  And Debbie Jennings was forced to resign and has filed a discrimination and retaliation case against the university.

For an overview of the circumstances, you can read this link: http://www.govolsxtra.com/news/2012/oct/03/debby-jennings-suit-amended-to-include-pat/

The strange case of Jennings, Hart, and Pat Summitt is the stuff of law school examinations.  While playing out dramatically in the newspapers, it also reaches across the pantheon of contemporary employment laws.

How strong are Debbie Jennings age and sex discrimination claims?

Can she use statistical evidence, such as the change in the gender make up of employees, as evidence of illegal discrimination? 

Was Pat Summitt protected from termination under the Americans with Disabilities Act?

Was Debbie Jennings protected from termination if she stood up for Summitt?

Can the athletics director’s past actions be used in against him in this case?

These questions involve the intersection of:

–           the Age Discrimination in Employment Act,

–           the Americans with Disabilities Act,

–          the use of statistical evidence in discrimination cases,

–          whistleblower laws,

–          use of “prior inconsistent statements” under evidence law, and

–          use of “other act” evidence under Fed.R.Evid. 404(b).

Law nerds who care nothing about sports are giddy about this case.

Stay tuned.  More posts to follow.