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Special Education Law Uncategorized

We Need to Talk about Spankings and Suspensions

We Need to Talk about Spankings and SuspensionsWe have a strange relationship with the paddle in Tennessee. Some of us may remember being paddled in school ourselves, back in the day. But a lot of parents today think paddling is something best left to parents (or to be dismissed altogether) as opposed to leaving it in the hands of our educators. How you feel personally about the paddle is a discussion maybe for another day; what concerns us most now is how Tennessee’s laws for punishment – corporal or non-physical – may be twisted in ways that are blatantly unjust or discriminatory.

Let’s go to the video clip

Let’s start with physical punishment. In April of this year, NBC News interviewed a mother from Georgia whose son was paddled by the school’s principal. There was video. (Disclaimer: it’s not easy to watch, though you never see the actual spanking occur.) She claims she could do nothing to stop the paddling; the school claims all corporal punishment is with parental consent.

Tennessee, like Georgia, is one of the 19 states in the country that allow schools to use corporal punishment on their students. There are bans in certain counties and metro areas, but the legislature has not yet passed a complete ban throughout the state.

A snapshot of the racial divides for corporal punishment

There’s one other issue to address with this video, though; the little boy in the clip is white. Yet according to Brookings Institute, which looked into data supplied by the U.S. Department of Education Office for Civil Rights, black students are twice as likely to be physically punished as white students are. They report:

“While corporal punishment is used in almost every state, seven states account for 80 percent of school corporal punishment in the United States: Mississippi, Texas, Alabama, Arkansas, Georgia, Tennessee, and Oklahoma. For black students, six of these states (Mississippi, Alabama, Georgia, Arkansas, Texas, and Tennessee) plus Louisiana account for 90 percent of corporal punishment. One reason that black students are subject to more corporal punishment is that they live in those states responsible for most of the corporal punishment of all children” (emphasis ours).

Tennessee bucks this trend a bit; white students are slightly more likely to be hit than black students (1.148149 per 100 students vs. 1.020022 per 100 students). Where we fall short, it seems, is in other forms of discipline – namely, in the increased likelihood of black students facing out-of-school suspension as opposed to white students (19.35562 per 100 vs. 4.376236 per 100, respectively).

Why this number may matter more

Before you dismiss an out-of-school suspension as less serious, think about this: a student who is given an out-of-school suspension is having his or her education intentionally shorted by administrators. The DoE’s Office for Civil Rights also reports that across the country:

  • “Black girls are suspended at higher rates (12%) than girls of any other race or ethnicity and most boys;
  • Black students are suspended and expelled at a rate three times greater than white students. On average, 5% of white students are suspended, compared to 16% of black students.
  • While black students represent 16% of student enrollment, they represent 27% of students referred to law enforcement and 31% of students subjected to a school-related arrest.”

These numbers are not only applicable to students of color, either. That same DoE snapshot points out:

  • “Students with disabilities are more than twice as likely to receive an out-of-school suspension (13%) than students without disabilities (6%).
  • With the exception of Latino and Asian American students, more than one out of four boys of color with disabilities (served by IDEA) — and nearly one in five girls of color with disabilities — receives an out-of-school suspension.
  • Students with disabilities (served by IDEA) represent a quarter of students arrested and referred to law enforcement, even though they are only 12% of the overall student population.
  • Students with disabilities (served by IDEA) represent 12% of the student population, but 58% of those placed in seclusion or involuntary confinement, and 75% of those physically restrained at school to immobilize them or reduce their ability to move freely.
  • Black students represent 19% of students with disabilities served by IDEA, but 36% of these students who are restrained at school through the use of a mechanical device or equipment designed to restrict their freedom of movement.”

What we are seeing across the board, both at home and in other states, is that students of color and students with disabilities are disproportionately punished. A more definitive breakdown can be completed by accessing the information yourself here, if you would like to see how your child’s school holds up, but the numbers cannot be denied overall.

We cannot sit idly by, and simply accept that the problem is too large to fix. We need to fight on behalf of those who cannot fight for themselves. Banning corporal punishment in schools might be one way, but more than anything we need to put an end to the systemic discrimination against people of color and against people with disabilities. Until we address the underlying problem, we cannot begin to create a solution.

At the Gilbert Firm, we help give a voice to the voiceless throughout Tennessee. Special education attorneys Justin Gilbert and Jessica Salonus fight the good fight on behalf of students who need justice. To reserve a consultation with Justin, Jessica, or with an attorney who helps fight discrimination throughout the state, please call 888.996.9731, or fill out our contact form. We maintain offices in Nashville, Chattanooga, Memphis and Jackson for your convenience.

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A Lesson About Lawyers’ Conduct in Depositions

Today’s blog post does not specifically involve an employment case. It is, however, about conduct that employment lawyers run into far too often. When I was a law student fifteen years ago, I worked as a research assistant for Dean Donald Polden. He was writing a book about employment law with two co-authors. That is when I became acquainted with the Honorable Mark W. Bennett of the United States District for the Northern District of Iowa. Judge Bennett was one of those co-authors. In addition to being a brilliant jurist, Judge Bennett has a very good head on his shoulders. I have followed his opinions carefully during the course of my career.

On July 28, 2014, Judge Bennett issued one of his best. The case was Security Nat’l Bank v. Abbott Laboratories, 2004 WL 3704277 (N.D. Iowa July 28, 2014). It dealt with an issue that trial lawyers wrestle with constantly. Judge Bennett addressed a case where a lawyer at one of the largest law firms in the country repeatedly interrupted his opposing counsel during a deposition and coached the witness. The lawyer repeatedly told the witness that he only had to answer questions “if you know” and constantly rephrased the examiner’s questions.

The offending lawyer’s conduct came to light during the trial, and Judge Bennett sanctioned him sua sponte.  Judge Bennett bemoaned the discovery abuses that are so frequent in civil litigation today. He harshly criticized the lawyer’s frequent interruptions during the deposition, coaching the witness, and rephrasing of questions. As a sanction, Judge Bennett got creative. He sanctioned the attorney by requiring him to write and produce a training video that addressed his improper conduct in the deposition. He ordered that it be distributed to other lawyers in his extremely large law firm. While that didn’t cost the offending lawyer a great deal of money, it was embarrassing.

The following is lengthy quote from Judge Bennett’s opinion. It explains the state of civil litigation that many of us have grown to detest. Those who are reading this blog and try civil lawsuits, like I do, will recognize it far too well. My hope is that all of us will take this more to heart. Judge Bennett wrote:

Something is rotten, but contrary to Marcellus’s suggestion to Horatio, it’s not in Denmark. Rather, it’s in discovery in modern federal litigation right here in the United States. Over two decades ago, Griffin Bell – a former United States Attorney General, United States appeals court judge, and private practitioner – observed: “The criticism of the civil justice system has reached a crescendo in recent years. Because much of the cost of litigation is incurred in discovery, the discovery process has been the focal point of considerable criticism.” How little things have changed.

Discovery – a process intended to facilitate the free flow of information between parties – is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught. As my distinguished colleague and renowned expert on civil procedure Judge Paul Grimm of the District of Maryland has written: “It would appear that there is something in the DNA of the American civil justice system that resists cooperation during discovery.” Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P.1. It persists because most litigators and a few real trial lawyers – even very good ones, like the lawyers in this case-have come to accept it as part of the routine chicanery of federal discovery practice.

But the litigators and trial lawyers do not deserve all the blame for obstructionist discovery conduct because judges so often ignore this conduct, and by doing so we reinforce –even incentivize-obstructionist tactics. Most litigators, while often inept in jury trials (only because they so seldom experience them), are both smart and savvy and will continue to do what has worked for them in the past. Obstructionist litigators, like Ivan Pavlov’s dogs, salivate when they see discovery requests and are conditioned to unleash their treasure chest of obstructive weaponry. Unlike Pavlov’s dogs, their rewards are not food but successfully blocking or impeding the flow of discovery information. Unless judges impose serious adverse consequences, like court-imposed sanctions, litigators’ conditional reflexes will persist. The point of court-imposed sanctions is to stop reinforcing winning through obstruction.

While obstructionist tactics pervade all aspects of pretrial discovery, this case involves discovery abuse perpetrated during depositions. Earlier this year, in preparation for a hard-fought product liability jury trial, I was called upon by the parties to rule on numerous objections to deposition transcripts that the parties intended to use at trial. I noticed that the deposition transcripts were littered with what I perceived to be meritless objections made by one of the defendant’s lawyers, whom I refer to here as “Counsel.” I was shocked by what I read. Thus, for the reasons discussed below, I find that Counsel’s conduct warrants sanctions.

I do not come to this decision lightly. Counsel’s partner, who advocated for Counsel during the sanctions hearing related to this case (and who is one of the best trial lawyers I have ever encountered), urged that sanctions by a federal judge, especially on a lawyer with an outstanding career, like Counsel, should be imposed, if at all, with great hesitation and a full appreciation for how a serious sanction could affect that lawyer’s career. I wholeheartedly agree. I am still able to count each of my sanctions I have imposed on lawyers in my twenty years as a district court judge on less than all the fingers of one hand. Virtually all of those sanctions have been imposed on (or threatened to be imposed on) lawyers from out-of-state firms.

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Sex Discrimination Title VII Uncategorized

Michael’s Take on the Hobby Lobby Case

With all the drama that comes from handing down a major decision on the last day of the term, the US Supreme Court issued the much awaited Hobby Lobby decision. Those on the right hailed it as a victory for individual liberty. Those on the left bemoaned the impact that it would have on the healthcare system. In my opinion, the truth lies somewhere in the middle.

The issue was whether a closely held corporation enjoys some or all of the religious protections of the First Amendment. Proponents of the Affordable Care Act argued that companies are not persons. Therefore, they don’t have individual rights. The Supreme Court disagreed. Writing for the majority, Justice Alito said “a corporation is simply a form of organization used by human beings to achieve desired ends.” Therefore, under the First Amendment, closely held corporations cannot be required to provide coverage for contraceptives in their health care plan if that violates their sincerely held religious beliefs.

Sounds simple, right? The implications, however, can be far-reaching. What if a company says it violates their religious beliefs to employ African-Americans? What if the company says it violates their religious beliefs to employ women? What if the company says it is against their religious belief to employ Christians? Taken to an extreme, the reasoning of the Hobby Lobby opinion could produce scary results. At least for now, the decision certainly does not go this far.  It specifically acknowleges that it is a narrow holding.

It does raise a number of questions that those who celebrate the decision might want to consider. There are those with sincerely held religious beliefs who contend it is immoral to have blood transfusions. Does that mean that life-saving blood transfusions should be unavailable to employees of companies who are owned by individuals holding such beliefs? There are religions that believe it is immoral to have virtually any medical care. What happens to their employees?

These are questions that will have to wait for another day. They will surely, at some point, make their way through the courts.

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REMEMBERING JUDGE JOHN MINOR WISDOM

This year marks the 50th anniversary of the 1964 Civil Rights Act.  From time to time this year, we’ll post an entry on this blog about heroes who transformed civil rights law generally and employment law specifically.  Today, we’ll take a moment to remember a giant in the legal profession, the late Judge John Minor Wisdom.

This month would have been the 109th birthday of the legendary Judge Wisdom, who sat on the United States Court of Appeals for the Fifth Circuit during the struggles of segregation.

Judge Wisdom, a Tulane Law graduate, was perhaps the jurist most responsible for forcing the South — kicking and screaming — to relegate segregation to the ash heap of history.  Judge Wisdom wrote the opinion that forced Ole Miss to integrate.  He managed the cases that implemented Brown v. Board of Education.  He handed down many of the employment law cases that exposed the racial animus of the Deep South from the 1960s until his death in 1999.

At the time of his death, Xavier University President Norman Francis said, “John Minor was a major force in saving the South.  We were a divided house on the verge of civil dissent.”  Despite death threats and being ostracized in his home state of Louisiana, he was willing to take unpopular positions in the most important cases of his day.  Consequently, Judge Wisdom forged a more just society in his native South.

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Donald Sterling, the Tennessee Legislature, and Civil Rights Laws

This year, 2014, should be a celebration of civil rights law. Fifty years ago the Civil Rights Act of 1964 was passed. In my view, it was the most important piece of  legislation of the 20th century. In the streets of Birmingham and in the backwoods of Mississippi, people literally died in order to see equal protection extended to all persons. That was a half century ago. The year 2014 should be a glorious celebration of those accomplishments. Instead, recent events have highlighted how far we have to go.

Unless you have been hiding under a rock, you are aware of the statements that Los Angeles Clippers owner Donald Sterling made. I will not repeat them here. They don’t merit being repeated. Needless to say, they were despicable. They disparage African Americans, and all minorities, in a way that we do not tolerate in the United States. Unfortunately, such cognitive bias is not as rare as we would like to think. It is everywhere. United State Supreme Court Justice Anthony Kennedy once observed:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.

At home in Tennessee, I wish I could report that we are doing better. Unfortunately, on the 50th anniversary of the 1964 Civil Rights Act, the Tennessee General Assembly took a step backwards. Instead of strengthening our civil rights laws, the Tennessee General Assembly recently passed a bill that significantly weakens civil rights protections in Tennessee. The legislation did away with certain remedies available to victims of civil rights abuses, and limited the amount of money they could receive in a draconian manner. For instance, under the current legislation, a victim of a rape in the work place could be limited to $25,000 in compensation in some instances.

In fifty years, we have made a lot of progress. Unfortunately, we still have a long way to go.

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Julius Chambers

We have lost a giant in our profession.  Our firm joins attorneys across the country in mourning the loss civil rights lawyer Julius Chambers.  Mr. Chambers argued eights cases before the U.S. Supreme Court, graduated first in his class at the University of North Carolina Law School, and founded the first racially integrated firm in North Carolina.  According to the Charlotte Observer, “enemies set his law office on fire, bombed his Charlotte home and his car. They also torched his father’s shop in his hometown of Mount Gilead.”  Still, he remained steadfast, soft spoken, and the consummate professional.  Future generations will continue to benefit from his work.

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Supreme Court Defines “Supervisor”

In October, I wrote about a U.S. Supreme Court case called Vance v. Ball State University,  which  would decide who was a “supervisor” for purposes of sexual and racial harassment law.  Here’s the link:  http://www.tennesseeworkplacelaw.com/2012/10/02/whos-the-boss-the-supreme-court-to-define-supervisor-for-purposes-of-supervisor-sexual-harassment-liability/

First, why is this important?  Sexual and racial harassment law draws a distinction between “supervisor harassment” and “co-worker harassment.”   Law nerds reading this post know the importance of this distinction. Suffice it to say, it’s easier for a victim to win if the harasser was a “supervisor.”  If you’re interested in learning more about this distinction, shoot me an email, and I’ll explain.  Now, back to the Supreme Court.

The Supreme Court handed down its decision last month.  This is the first of three blog posts that examines the case.   In the Vance case,  the Court narrowed the definition of what constitutes a “supervisor” in racial and sexual harassment.

Maetta Vance, an African-American  catering specialist at Ball State University, sued her employer for racial discrimination and retaliation.  However, the Court held that the person she accused was a co-worker and not a supervisor. 

The Supreme Court ruled that in order for the University to be strictly liable for “supervisor harassment,” the offender must have the authority to “hire, fire, demote, transfer, or discipline” Plaintiff.

It is clear from this recent case that a supervisor must have greater powers, including formal authority to take tangible employment actions, including the authority to “hire, fire, demote, transfer, or discipline” another worker in order for a person to be considered a “supervisor.”

None too happy with the majority’s opinion, Justice Ginsburg read her dissenting opinion from the bench. As she read, Justice Alito responded with rolled eyes.   This garnered a fair amount of well-deserved criticism in the press.

In her dissent, Justice Ginsburg said the decision “has imposed a heavier burden for victims of workplace harassment and discrimination seeking justice in our courts…this decision makes it far easier for employers to evade responsibility for discrimination and harassment in the workplace.” She went on to say that the majority’s opinion “is blind to the realities of the workplace” and “ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the nation’s workplaces.”

This all sounds like bad news for plaintiffs.  There were, however, two bits of good news hidden in the Court’s opinion.  For those, you’ll have to stay tuned for our next two blog posts.

 

 

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Collective Bargaining Agreements and the Limitation on Judicial Remedies

          Suppose a union employee is unhappy with her union representation or the arbitration procedures and wants to pursue her employment law claims in federal court.  Can she do both?

          Well, it depends on the precise language in the collective bargaining agreement (CBA).

          If the CBA “clearly and unmistakably” waives the employees’  right to file certain types of claims in court, the employee may be forced to accept arbitration on those claims.  That was the holding of 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S. Ct. 1456, 173 L. Ed. 2d 398 (2009).  In a 5-4 decision written by Justice Thomas, the Court looked to the precise language of the CBA.  In Penn Plaza, the CBA stated:

“[There] shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disability Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code . . . or any other similar laws, rules or regulations.  All such claims shall be subject to grievance and arbitration procedures . . . as the sole and exclusive remedy for violations.” (emphasis added).  

          Note that this CBA did two things:  (1) it defined the specific statutes; and (2) it stated that arbitration was the sole and exclusive remedy for those particular statutes.  This type of language was enough to foreclose any judicial lawsuit.

          Note, too, that Penn Plaza does not mean that mere mention of non-discrimination language in a CBA, or even the listing of federal statutes in the CBA is sufficient to foreclose judicial remedy.  Where a CBA explicitly lists certain statutory claims, it must be contained within the context of a grievance resolution procedure, not as part of a compliance provision.  Simply put, a CBA which includes a provision preventing discrimination against employees under a federal statute is not the same as requiring union members to arbitrate such statutory claims. See Bratten v. SSI Services, Inc., 185 F.3d 625 (6th Cir. 1999).  A contractual promise to abide by certain civil rights laws does not satisfy the “clearly and unmistakably” requirement of Penn Plaza.   

          Bottom Line: If a CBA “clearly and unmistakably” requires union members to arbitrate certain statutory claims, then the employee’s claims are subject to grievance and arbitration procedures. But, when a CBA falls short of satisfying this high standard, an employee is free to pursue his or her claims through the judicial system. 

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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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Overtime/Wage & Hour Uncategorized

Rule 68 Offers of Judgment in FLSA Collective Actions: Is it Really an Offer?

When an employee files a collective action under Fair Labor Standards Act, she is trying to recover unpaid wages for herself and other workers who find themselves in the same pickle.

An astute defense lawyer might tell his client, “Pay her!” This is not necessarily altruism.  It might just be a sneaky little litigation tactic.

An “Offer of Judgment” under Rule 68 of the Federal Rules of Civil Procedure is where a defendant offers to have judgment taken against it.  If the plaintiff refuses, she must “beat the offer” at trial or have to pay costs.  This works well in most single party cases.  However, it creates some interesting (and unintended) complications in an FLSA collective action.

In a very good decision, the Sixth Circuit decided to sort all of this out so lawyers wouldn’t be left scratching our heads.  See O’Brien v. Ed Donnelly Enterprises, 575 F.3d 657 (6th Cir. 2009).  The Sixth Circuit said:

  1. If a defendant makes an offer of judgment for everything (or more) that the plaintiff is claiming, then the plaintiff’s claim is moot.  The court should just enter judgment and move on to other things.  It doesn’t matter whether the plaintiff formally accepts it.
  2. If the case is a collective action, however, the defendant cannot get rid of the case by offering only the lead plaintiff everything she is entitled to.  The Sixth Circuit said, “a Rule 68 Offer of Judgment cannot moot a lead plaintiff’s FLSA claim when the lead plaintiff timely moves for collective certification, because the motion relates back to the lead plaintiff’s filing of the complaint.”
  3. If the court ultimately denies the motion for collective certification, then no harm is done.  If the defendant had previously made an Offer of Judgment for the full amount the lead plaintiff is owed, then “the lead plaintiff represents only herself, and her claim is moot.”  She still gets her money.

Thanks to the O’Brien court, this has been the law in the Sixth Circuit (which includes Tennessee) for the last three years.  Recently, the Third Circuit addressed this issue and reached a result that was similar in most respects.  All of the courts, however, do not agree.  If you’ve read this blog very much, you know that it’s hard to get judges to agree on anything.

The United States Supreme Court has now decided they need to take a look at this issue.  They granted certiorari in the case from the Third Circuit, Genesis Healthcare Corp. v. Symczyk.    Oral argument is December 3.

This will be the first procedural FLSA case the Supreme Court has tackled in some time.  It will be interesting to see how the court handles this specific issue.  On a broader scale, it will give us the first look at the way the Roberts court views the procedures that have developed in FLSA collective actions.    Stay tuned.