By Glenn C. McGovern, Attorney
Law Office of Glenn C. McGovern Metairie, La.
Last month I discussed the top ten ways to lose an employment case. I decided to follow with my top ten ways to win an employment case. Hopefully this will aid you in choosing a winning employment law case. This could also be titled "Ten ways for an employer to lose an employment case" as many favorable plaintiff verdicts arise out of an employer's negligence, which makes it easier for an employee to win.
1. Choose a case that has a safety theme. There are certain whistleblower, sexual assault and discriminations cases where a certain condition can be a threat to the community. Remember Karen Silkwood's reporting of release of plutonium exposing workers in a nuclear plant workplace? These safety cases make for powerful arguments to jurors for awarding substantial damages to send a message on liability. Examples are whistleblower cases where the corporation does illegal acts that threaten public safety, a financial whistleblower fired for reporting financial fraud that can cause damage to shareholder and taxpayers, an aviation pilot whistleblower that reports Federal Aviation Regulations that endangers passengers. Other examples are a neo-Nazi municipal supervisor who violates discrimination laws through racial intimidation of lower level employees with no action by higher-ups or human resource administrators, a corporate retail store male supervisor who sexually molests young male employees and an environmental whistleblower that report corporations that are poisoning our water supplies. The jury becomes the conscious of the community.
2. Choose a case with obvious signs of a hostile work environment - like symbols of terror. There is an upsurge in extreme violent racist groups. Many states including Louisiana have criminal statues barring crosses or nooses due to a resurgence in such symbols of terror. The Southern Poverty Law Center reported that a record number of hate groups were active in the United States in 2008 were 926, up from 888 in 2007. These included 186 separate Ku Klux Klan (KKK) groups, 196 neo-Nazi, 111 white nationalist, 98 racist skinhead, 39 Christian Identity, 93 neo-Confederate, 113 black separatist, and 90 general hate groups subdivided into anti-gay, anti-immigrant, Holocaust denial, racist music, radical traditionalist Catholic groups, and others espousing a variety of hateful doctrines. Louisiana has 22 such extremist racist groups according to the Southern Poverty Law Center. (www.splcenter.org/getinformed/hatemap#s=LA) Some are a resurgence of Nazism commonly referred to as skin-heads or neo-Nazis. This is a growing world-wide movement It is illegal in Germany, Austria, Hungary, Yugoslavia, Sweden and Austria to display a Nazi swastika or say in public phrases of the Third Reich such as "Heil Hitler" or "Sieg Heil" in German. (Gernon Stafgesetzhechin §8a). Many of these members now try to blend the workplace. The U.S. Army military has been infiltrated with member of racist hate groups as noted in the recent Pentagon investigation of the Ft. Hood shooting, entitled "Protecting the Force: Lessons from Fort Hood", p. 12, which revealed a problem with a sect of military personnel associated with hate groups. The report recommends future screening of military members for such hate group affiliations since these groups actively advocate violence. (John E. Whidbee v. Department of the Navy, EEOC Appeal No. 01A40193 (March 31, 2005)-(Navy supervisor using racial slurs and Nazi salutes when greeting employees.) There is an upsurge in nooses, burning crosses, Nazi salutes and swastikas in the work place. (Pruitt v. Howard County Sheriff's Office, No.95-1193, unpublished decision, USDC District of Maryland, CA-92-3550-N, CA-92-3551-N 1996 U.S. App. Lexus 1266 (Unrptd. 4th Cir.) 1996 FP 86-7)-(two brothers, sheriff deputies termination upheld for "Nazi-like conduct including saying "Seig Heil" and "Nazi salutes" at work.) There are 5th Circuit cases of with no compensatory damages awarded but punitive damage awards of over $125,000 per person upheld by the 5th Circuit Court of Appeals. (Abner v. The Kansas City Southern Railroad Co., No. 06-30476, Jan. 2, 2008 unreported case with nooses.) It is a crime to display a noose in public in Louisiana. (See La. criminal felony statues La. R.S. 14:40.5 nooses prohibited; La. R.S. 14:40.40.4 burning crosses prohibited.) Nooses in the workplace awards range from $100,000 to $1,000,000 according to reported cases listed on the EEOC's website. Nooses, Nazi swastikas, Nazi salutes and KKK symbols in the workplace have been held to be per se evidence of a hostile work environment. (Tamedy v. Union Pacific Corporation, 520 F. 3d 1149 (10th Cir. 2008), Vance v. Southern Bell Telephone and Telegraph Company, 863 F.2d 1503, (11th Cir. 1991)-($1,000,000 damage award and stating the noose is a symbol of terror for minorities like a swastika). EEOC v. Helmerich Payne Int'l Drilling Co., N. 3:03-CV-6911 ID Misc. 2001-($290,000 awarded for multiple plaintiffs for hangman nooses). Arandondo er al. MPD and Chief Dolan, USDC District of Minnesota awarding $740,000, at $168,000 per plaintiff on average, for evidence of association of white police officers with the KKK.) In 2007 there were 36 race harassment filings with the EEOC for nooses in the workplace noted in EEOC v. Helmerich Payne Int'l Drilling Co. cited supra. There have been cases in our area with nooses and Nazi salutes in the municipal workplace. Terrance Lee v. Parish of Jefferson, U.S.D.C.E.D. #08-4738 12/10/09)-(settled with pictures of noose sealed in record). These racist symbols in the workplace are not new, but growing trend due to social, economic, immigration and political changes worldwide. These symbol of terror cases are good visual cases for juries with large awards reported. (Vance v. Southern Bell Telephone and Telegraph Company, 983 F 2d 1573, (11th Cir. 1993)-( noose over workstation of African-American woman awarded $1,000,000.00 compensatory and punitive damages upheld on second trial on remand.)
3. Chose a case where the employer violates the Golden Rule. This is probably the most important factor to look for assuming you can survive summary judgment and get to the jury. Employment law cases frequently involve big corporations that cross the line of human decency. No one wants employees to be treated badly. Juries will punish employers who cross that line. I'll give an actual example. Years ago I was co-counsel on an employment law case that illustrated this. It involved a hard working, personable, well-liked, African-American employee who had a good work record. He had gone to school at night and worked his way up to a position of great financial responsibility with a large utility company subsidiary. He was fired and knowingly falsely charged with a criminal misdemeanor by the employer. He worked for a large parent utility company. The employer fired him by having company security guards take his badge, make him put his office cubical belongings in a box while they watched and escorted him to his car in front of co-workers. His car had a flat tire with no spare, so he walked home in the night in tears trying to make sense of what happened-he had no clue what happened. The false misdemeanor criminal charges were not dropped but the company pressured the local city attorney for over two years despite the fact the paramour of his wife pled guilty and confessed to jumping his utility house meter while he was not home. Then on date of trial, the defense attorneys had him arrested in court for an old NSF check charge for his wife's (not his) NSF check. Luckily, the trial judge allowed us to continue the jury trial for one day, so we could bail him out and goes to trial next day. It was an all white jury. After the opening statement of plaintiff, two of the jurors were crying. But better yet, the foreman asked to read a statement after delivering the verdict. The foreman said," Let this be a lesson to big corporations that they cannot treat little people this way." The jury was not a great pick demographically by any means. Two engineers, an insurance agent and no minority members. But it did not matter. They were outraged by the blatant violating of the Golden Rule and issued a $283,000.00 judgment that was sustained on appeal.
4. Choose a case with defective/inept human resource department. Look for a case with a bad human resource administrator or defective discrimination/retaliation policy that is not actually implemented, (a "paper HR policy"). Such improper handling of known acts of discrimination in the work place combined with acts of retaliation against employees who complain of discrimination make for good damage awards. I call these inept HR administrators "dinosaurs". They inept ones are always non-degreed, not certified, unqualified, long term employees and appear as uncaring or even racist in depositions. I had one case where it came out the defendant's HR administrator would not let African-American employees to pick him up in front of his home when his car was in the shop. The same HR administrator failed to open an investigation in a violent racial harassment of an employee, but did have a meeting with staff to discuss whether his Jeri curls hairstyle would damage the poker tables with chemicals falling from his hair. No such fears arose from all the white blonde females poker dealers with dyed hair. The owner took the 5th Amendment in his video deposition. A hostile working environment for sure.
5. Choose a case where there is employer retaliation. Juries hate employers who retaliate against people who testify for others in a discrimination investigation or who report sexual harassment or discrimination. Retaliation violates the Golden Rule. Instead of a 55%-65% statistical chance of success with a sexual harassment claim or racial discrimination claim there is a 98% per cent chance of success in an employment retaliation case. This is based on Jury Verdict Research studies. It is actually easier to win a retaliation case then a racial discrimination case. You can have a very weak discrimination case and a very strong retaliation case that will save the day.
6. Choose a case with quid pro quo sexual harassment. A victim of sexual harassment that is threatened with loss of a job or bodily harm if they do not grant have sex with the supervisor can be a large quantum case. Verification and credibility is critical. Often verification is available through e-mails, other victims or DNA sampling of clothing of the victim that is preserved. With expert medical witness supporting ED damages testimony, these can be seven figure quantum cases.
7. Choose a case with medical expenses for mental anguish. Employment case quantum relationship is different than for personal injury cases. If you have $2000 in medicals for a personal injury case, you may get $8000 for mental anguish. But, in a sexual harassment case, with $2000-$4000 in psychological related medical expenses it is not uncommon to get a $150,000 mental anguish award or more. You can prove mental anguish damages with good corroborative independent layman testimony, but it is tougher. Look for cases with extensive medical treatment as a result of the harassment. Post traumatic stress syndrome cases can result in $250,000 plus judgments. There are some cases that allowed emotional distress damages can be awarded with no expert testimony but lay witness correlative testimony and plaintiff's testimony of physical problems, illness and lack of sleeping such as Rodriguez-Torres v. Caribbean Forms Manufacturer, Inc., 399 F. 3d 52 (1st Cir. 2005)-$250,000 in emotional damages upheld with no medical expert testimony)
8. Choose a good plaintiff through careful screening and evaluation. Employment case are tough to win so you need what I call a "squeaky clean plaintiff" to get a good result. This means no criminal history background, no prior psychological history and no prior EEOC or discrimination complaints or suits. Choose a plaintiff that you can count on to be a working, committed partner with you working on the case together. I always tell prospective employment law clients that I cannot win the case alone. I need their help to win. I explain I will expect them to do certain things like contacting witnesses to open the door for me to get affidavits from them. Witnesses today do not trust lawyers. They are very nervous about testifying in any suit but especially in an employment lawsuit. They fear being blackballed, labeled and hurt in future employment searches in the same industry. This is especially true in the hospitality, medical, hotel and oil industries. They fear retaliation for related corporations or industry. They fear giving a deposition and going to court. Single parents and minority group witnesses are especially hard to get cooperation from due to economic circumstances. I tell the client that we have to work together like a marriage or partnership. I will ask clients to contact witnesses before I talk to them and get an affidavit. It is difficult to do it any other way. The client may have to literally pick them up and drag them in the office. The client can have more influence then a cold-calling stranger-attorney. This is very important. If you don't really like the client and get along very well you should not take the case.
9. Choose a plaintiff with large front pay and back pay claims. Quantum is a function of loss wages and medical expenses so large wage claims with an economist also calculating the loss of benefits can make for a good result. You can even have cases where there is a loss of chosen profession due to the multiple mental breakdowns. I had an outrageous racial discrimination case with an African-American poker dealer who could no longer function with sufficient motor skills to be a skilled poker dealer.
10. Choose a case with good visual evidence. In the age of Apple iPhones you can often have cases with great visual and audio evidence. Often the harasser will send text messages. Enlargement exhibits of these usually sexually degrading messages really capture the jury's attention. Another recent example is a security camera showing the male supervisor pressing his crushing his body against a young male employee who had just accused him of sexual battery of himself and other males. Another example is a voice recording of an older male supervisor asking if an 18 year old female, "are you good in bed?" The impact of this audio and visual evidence overwhelming to juries. They help immensely to create outrage and a substantial damages. I have another case with Internet posted digital pictures and video clips of female bare-breasted employees in the workplace obtained from iPhones by employees and customers then posted on the social websites like MySpace and Facebook.
I hope this helps you in your selection of you next employment case and you obtain a record damage award. These cases are not easy. Handling civil rights and employment law cases are one of the many good things we have a duty to do as trial lawyers. You are usually the victim's last resort. These cases are really important in protecting workers and for the betterment of society. I really believe that. There is much work to be done.