Some Helpful Evidentiary Rulings For Your Next Trial

Because appeals so rarely turn on evidentiary points, it is not infrequent to have a situation where the answer is obvious, but it's hard to find a case where a court actually said it. One that comes up frequently in employment cases is testimony by a decision maker about what he or she has been told by others. The inevitable objection is hearsay.

Going back to Evidence 101, hearsay is "an out of court statement offered for the truth of the matter asserted." It's frequently the second point that is the key to admissibility, and was in Maday v. Public Libraries of Saginaw (6th Cir. 3/28/07). But it's a point some judges seem to forget in the heat of the battle.

You got a hint of where the opinion was going from the Court's topic heading — Admission of Alleged Hearsay Evidence:

In particular, Maday points to parts of Marcy Warner’s testimony on cross-examination, when she was asked by defense counsel why she had taken disciplinary action against Maday. At one point during her testimony, Warner recounted comments she had heard from several third parties about Maday, involving both Maday’s poor interactions with Library patrons and coworkers as well as Maday’s volatile reactions to some of the discipline she received. Warner also testified that she heard from people present when Curtis had suspended Maday in February 2003, that Maday had stormed out of the office and threatened to jump off a bridge. Maday’s counsel objected to this line of questioning on hearsay grounds, but these objections were overruled by the district judge, who noted that the statements were not being offered for their truth.

The district judge also had dealt with plaintiff's counsel's objections under Rule 404 and 404(b):

I don’t believe that [is] a sensible objection. Rule 404 prevents character evidence to prove conduct under limited circumstances, Rule 404(b) allows other acts to show things other than character. This evidence is offered for neither of those purposes, it’s to show the reason why the employer took the action it did in accordance with its progressive discipline policy which means something had to happen earlier.

One other area where you can never have too much authority is the relevance of evidence to counter plaintiff's mental anguish damage. After offering a portion of a social worker's record to show mental anguish, plaintiff objected when the employer offered other parts of the records:

The admitted record to which Maday particularly objects included the following notation by the social worker:

Claimant is unhappy with her attorney who told her he didn’t want to be used as a tool for her revenge. He wanted claimant to settle out of court, but claimant said they had not discussed it before.

When asked by the district court why she wanted this record admitted, [the] defense attorney stated:

[I]t’s been our contention all along . . . there are things going on in [Maday’s] life that are causing her depression other than what happened at work. One of the things is the fact that her attorney is telling her he’s not going to be used as a tool for her.

She’s depressed, it makes reference to her mood, and we’re entitled to explore and argue anything that would have impact on her mood.

The district court agreed, noting:

I believe the comment relating to the attorney is probative. There may be some damaging inferences that could be drawn, but I don’t find that the unfair prejudice is substantially outweighed by the probative value, especially given the fact that reaction to her attorney and her effort to pursue a claim against the library may be an alternate cause of her emotional state as opposed to the events that occurred when she was employed there, or arising out of her termination. The claim is that the plaintiff was terminated on account of her age and that termination gave rise to a state of—an emotional state that is compensable. This document suggests there might be some alternate source of her distress and, consequently, its relevance is manifest, and . . . not unfairly prejudicial.

You can tell from the opinion that this was not a case where things went well for plaintiff's counsel. In addition to losing on those two points, the other appellate point was a complaint about the conduct of the employer's lawyer, primarily comments (and facial expressions) directed to and about him.

That didn't work either, the Court somewhat adding insult to injury by saying that while defense counsel's "actions may have flirted with impropriety, but [probably] her demeanor and tactics negatively influenced her own client’s case as much as they might have Maday’s.”

In effect — if what you describe happened, it should have helped your case not hurt it, but you still lost. The bottom line: "[Plaintiff] received a fair trial before a jury and lost. Accordingly, we affirm."

And the final grain of salt in plaintiff's counsel's wound is simply reflected here:

Argued: March 13, 2007
Decided and Filed: March 28, 2007

Coming to a Webcast Near You - Retaliation after Burlington Northern

Proving that they must not have read the comments of the viewers very closely (maybe there weren't any?), I will appear for my 2nd State Bar of Texas sponsored webcast tomorrow afternoon entitled:

Proving/Defending a Discrimination Case: Retaliation and the New Landscape after White v Burlington Northern.

As last year, the State Bar did have the good sense to make sure that there were others who would ensure that it was a quality program. On the panel with me are:

• Malinda Gaul, San Antonio
  Gaul & Dumont
• Vicky Phipps, Houston
  Adams & Reese, and
• Rod Tanner, Fort Worth
  Tanner & Troutt

The program is designed to be interactive by encouraging participants to e-mail questions to the panel. Hope to "see" you there.

Every Day Software That Makes It Work

For about 6 weeks now, through a combination of weird circumstances, I have been transitioning from an old laptop to a new one. There were some intermediate issues to say the least — at one time I had 3 laptops in my office all of which I was using, but none of which was fully functional. I am now down to two (actually there are two more still in my office, but only until I make sure all data that I need has been copied) and getting closer to returning to normal — one computer that truly is set up to make my work life — work.

It would be nice to blame my recent lack of posting on this extended computer hell, but not entirely accurate. More importantly, what the past six weeks have taught me (other than to say thanks daily for the patience of our IT department!) is that there are certain pieces of special use software that I have picked up over the years that I have become almost totally dependent on. In fact addicted would not be too strong a word. These are all products that at least with the initial version I purchased myself, not even through the firm, so when I speak about them, it's a personal thing.

Many, although maybe not all, were recommendations by Tom Mighell, a fellow Texas lawyer and an early and great legal blogger, whose Internet Legal Research Weekly is such a fount of information that I can not imagine there is anyone in the legal field who would not benefit from getting it delivered to their mailbox every Saturday.

Among the programs that are part of my "software jones" in no particular order (except for the first) are:

• ActiveWords - Part of what drew me to the program was the fact that the founder, Buzz Bruggemann was a practicing lawyer and is an inspiration to any who dream of life beyond the billable hour. Plus how many CEO's call when you first register for their product and will drop by your office when they are in town to give you a personal hands on session?

  But the program itself is what works the magic — from anywhere on the computer screen, with a few quick keystrokes it can work wonders. Among the things it will do :

  1. it substitutes text. I type "bq" for example, I get an html phrase starting a block quote, and at the end "/bq" closes the quote, an action that comes in handy when posting to a blog;

  2. it navigates to internet locations, "ada" takes me immediately to the text of the Americans with Disabilities Act;

  3. it launches programs, "of" opens OnFolio, my newsreader of choice;

  4. it opens folders, type "Lucero" and a folder with all the key documents I have stored about that case opens immediately;

  and those just begin to scratch the surface.

  Just go check it out and play with it for a few days — you will be hooked. My only gripe — I almost cannot work on a computer without my customized ActiveWordson it. When they get a mobile version I can carry with me, life will be complete!

• Netcentrics GTD add-in - If you don't know what GTD is, then this won't mean much; but if you like the GTD approach to managing your practice and your life, AND like most of us in big firms are an Outlook user, then this program automates your process. With a newly minted version 2.5, even if you have tried it before, it might be time to look at it again.

• Speedfiler by Claritude Software - Lawyers get a ton of email - a written letter that is not a copy of something I received three days ago by email is like a visitor from the past. But what to do with all of it?

  Folders based around cases and other substantive topics is the solution for me. Getting them from the inbox to the right folder — that's where Speedfiler comes in. And it works not only for emails you receive but those that you are sending. It may not sound like much, but when in relatively quick order it informs you on opening that it has helped you file more than 10,000 items to date, you know you are on to something.

• Casemap and Notemap - Casesoft (now owned by Lexis) has a suite of products. These 2 are the ones I use most often, although I also use TimeMap and Textmap. Like with ActiveWords, I am almost afraid to describe CaseMap for fear it will seem far less amazing and powerful than it is.

  At one time I think Casesoft described Casemap as a spread sheet for facts which at least gives a clue. For me, I have always believed that knowing the facts is the key to handling a case well, which usually meant a chronology. With Casemap I now have a way to easily create a chronology that travels with me. With the use of pdf copies of produced documents, it means I can not only review my chronology, but also with a click of the mouse see the actual document that led to the original entry. Imagine doing your final deposition (or trial) preparation in the hotel room and having quick and easy access to every produced document in a click. And there is so much more.

  Notemap is an outlining program. If you ever used the wonderful but now gone, Grandview, this is the only thing I have found that comes close.

  TimeMap is a wonderful tool for creating visual timelines and TextMap is their deposition management program. It works, but still doesn't quite mirror the way I want to work with depositions to make it as valuable to me as the others.

• Roboform - Manages all those on line user names and passwords that I seem to have to navigate a hundred times a day.

And the scary thing is, like with all the big main stream products I use (Word, Excel, Powerpoint, Adobe), I know I am only scratching the surface with what these products can do.

There are some things that I would like that I still have not quite found the ones that are just right for me and the way I practice — the perfect off-line blogging program (knowing I am pretty much wed to the Blogger format), an easy to use wiki and a desktop search program. Feel free to make suggestions for these or other helpful tools.

Still I am thankful for what I have, and while I am sure I am leaving out a program or two that I use regularly, my heartfelt thanks to Buzz Bruggeman (Active Words), Itzy Sabo (Speedfiler), Greg Krehel and Bob Wiss (Casesoft), David Allen and whoever at Netcentrics took his theory and Outlook and made them work together, and the folks at Siber Systems (Roboform). Not having your products at my beck and call over the last 6 weeks, brought it starkly home how big a part of my work life you have become.

A "New Spring" in Labor and Employment Law?

Today's post by Professor Rick Bales at Workplace Prof Blog about Charlie Morris' letter to the NLRB advocating for a rule that would allow members-only minority-union bargaining, a "radical idea" explained more completely in his book, The Blue Eagle At Work: Reclaiming Democratic Rights In The American Work Place, prompted more general thoughts about where we are in the relatively narrow, but very important, world of labor/employment law. And more importantly, where we have been and where we may be going.

My time in this area, which now spans more than 30 years, has been tremendously impacted by two developments that occurred in the first decade after I was licensed — one that happened and one that didn't.

The one that did not happen was passage of the Labor Reform Act of 1977. As a two year lawyer, I knew it was a major battle between organized labor and business, but I can only now appreciate how different my professional life would have been if it had passed.

Notwithstanding Democratic control of the House, Senate and the White House, the Labor Reform Act died on the Senate Floor without ever coming to a vote — it was defeated by a filibuster led by (still) Senator Orrin Hatch (R-Utah). (It did pass the House. If cloture could have been invoked it would have passed the Senate and been signed by then President Carter.)
Amazingly, I can't even find a copy of the full text of the bill online (unheard of in today's internet world), but a summary of H.R. 8410 of the 95th Congress is here.

What was being proposed then may sound very familiar to those following the debate about the Employee Free Choice Act. Among other things the 1977 Labor Reform Act would have:

• Amended the National Labor Relations Act to increase the size of the National Labor Relations Board to seven members and the terms of Board members to seven years.
• Directed the Board to issue rules to protect specified employee and labor organization rights, facilitate the resolution of disputes concerning voter eligibility, and govern elections in cases in which an appeal had not been decided prior to the date of election.
• Created expedited elections where a majority of members of a bargaining unit sought recognition of a union or de-certification of an existing union.
• Specified damages where there was an unlawful refusal to bargain prior to entry into a first bargaining contract.
• Provided for expedited consideration and relief from certain alleged unfair labor practices which resulted in a deprivation of employment.
• Denied, for up to three years public contracts to persons willfully violating final orders regarding unfair labor practices.

Think how all our world's would have changed if it had passed.

The seminal event that did happen was President Reagan's firing of all air traffic controllers in the summer of 1981. Again, even though I was by that time a Board Certified Labor and Employment Lawyer, I had no idea how President Reagan's act would ultimately impact the world of work, which of course was where I worked.

The Wikipedia entry under "Patco Strike", even with a couple of missing supporting citations, has a good summary of the basic events:

On August 3, 1981 the union declared a strike, seeking better working conditions, better pay and a 32-hour workweek. In doing so, the union technically violated an oft-overlooked 1955 law {5 U.S.C. (Supp. III 1956) 118p.} that banned strikes by government unions. However, several government unions (including one representing employees of the Postal Service) had declared strikes in the intervening period without penalties. Ronald Reagan, however, declared the PATCO strike a "peril to national safety" and ordered them back to work under the terms of the Taft-Hartley Act of 1947. Only 1,200 of the more than 12,000 controllers returned to work[citation needed]. PATCO thought it could cause the national air system to grind to a halt and use that as a bargaining tool. Reagan gave union members 48 hours to return, knowing that Transportation Secretary Drew Lewis had secretly trained replacements and the airplanes kept flying at 80% of normal[citation needed].

On August 5, following their refusal, Reagan fired the 11,359 striking air traffic controllers who had ignored the order, and permanently banned them from federal service. They were replaced initially with nonparticipating controllers, supervisors, staff personnel, some nonrated personnel, and in some cases by controllers transferred temporarily from other facilities. Some military controllers were also used until replacements could be trained. It proved the most stunning defeat for unions in 60 years.

Although the real impact of President Reagan's action has been debated (for a good summary of that debate see Professor Michael J. Hayes 2006 speech, The PATCO Strike: Assessing Its Impact 25 Years Later) there is no question that it is widely perceived as setting a different tone for management/labor relations over the ensuing years.

A third development, not as clearly connected to labor and employment law has also been significant — President Reagan's approach to appointing federal judges. (For a good description and analysis see Professor David O'Brien's article, Why Many Think that Ronald Reagan's Court Appointments May Have Been His Chief Legacy.) In short, President Reagan appointed not only conservative judges matching his political philosophy, but relatively young lawyers, who with lifetime appointments would continue their central role on the bench long after his presidential term expired.

As an example, two judges still on active status on the 5th Circuit, Chief Judge Edith Jones and Judge Jerry Smith, were both associates at big firms in Houston when I began practice as one in 1975. They were appointed by President Reagan in 1985 and 1987, at the ages of 36 and 41.

It is difficult to overstate the impact that the federal judiciary, shaped by Reagan and post-Reagan appointments, has had on the interpretation of federal, and by analogy, state employment laws in the last twenty-five years.

As I have commented in this space before, most things in the law are cyclical — with a pendulum effect of correcting and over-correcting. It has been an uncommonly long cycle in labor and employment law where the general overall direction has not changed. But if there is a change in store, and certainly there is change in the wind, it behooves employers and those who represent them, to be aware, now.

There may or may not be a Prague-like spring change in store for employment and labor law. But for the first time in many, many years, it is not unthinkable.

HealthSouth on the MDV Employment Law Docket

Not sure whether I missed this, or it wasn't reported until someone picked it up from an SEC filing last week end. HealthSouth which has seen its share of litigation in the last few years, disclosed one more adverse result, when it reported a $1.9 million dollar verdict last October favoring its former head of security and the body guard of its former CEO, Richard Scrushy.

The Everything Alabama website has the story, Ex-security chief wins suit, which indicates that the basis for the former state trooper James Goodreau's claim was "a lifetime job guarantee." The job, but obviously not the claim, ended when he was terminated, along with Scrushy, after the Board of Directors took control of the company.

According to the report the case is now on appeal to the Alabama Supreme Court. Without seeing more, I can only guess that somehow the statute of frauds is involved somewhere.

Discrimination Survives, Retaliation Fails - 5th Circuit

We have become so use to talking about cases where an employer wins the discrimination claim but loses on retaliation that it is almost shocking to see the reverse. But that's one of the "great things" about employment law — almost anything can happen.

Which is probably what the folks at Dr. Pepper are thinking after reading today's opinion from the 5th Circuit in Burrell v. Dr. Pepper/7 Up Bottling Group (5th Cir. 3/20/07) [pdf].

When Burrell was passed over for the position as Vice President of Purchasing, even though having served well as what the 5th Circuit called the "stopgap vice president" until a new VP was brought on board, he felt as if perhaps the decision was based on his race.

In fact he shared with his superior a copy of the book, Roberts v. Texaco: A True Story of Race and Corporate America, and two articles detailing the class action lawsuit brought against Coca Cola, saying he felt his experiences at Dr. Pepper mirrored those of the plaintiffs in those cases. Still he continued with the job, earning not only a raise, but a bonus and an invitation to an annual meeting of high achieving employees.

But when the new VP arrived, so did problems between the two of them. It culminated in a lengthy review of Burrell's performance, done at his request, to which he wrote a lengthy 3 page rebuttal. According to the 5th Circuit:

The performance evaluation response authored by Burrell begins by characterizing Koester's [the new VP] initial evaluation as an inappropriate and unprofessional attack and questions Koester's ability to give an accurate evaluation. The response goes on to attribute the negative review to Koester’s “biased perception” of Burrell’s on-the-job performance. Throughout his response, Burrell accuses Koester of being ill informed and unqualified to critique his performance.

While the response includes significant supporting facts and examples, Burrell made clear his lack of respect for Koester's authority, asserted no responsibility for their bad relationship, and made no provisions for future changes. Both the evaluation and the response demonstrate the failed working relationship between Burrell and Koester. Notably, neither document contains any mention of a racial or retaliatory basis for their disagreements.

On the same day that rebuttal was delivered, Burrell was terminated.

In the suit that followed, the district court granted summary judgment for Dr. Pepper on both the discrimination claim for failing to select Burrell as the new VP of Purchasing and retaliatory termination for his protected activity.

Today's result — summary judgment on retaliation, affirmed; summary judgment on discrimination on the promotion claim, reversed.

Although the result — retaliation losing, while discrimination wins - is unusual, more attention will probably be directed to the discrimination claim as the Court explains what it was that led it to believe that Burrell had established a triable issue on pretext. The Court gives its views of how the evidence, including what it believed to be shifting explanations for the hire, gave rise to a triable issue of fact.

One thing that caught my eye is the importance the court attributed to consistency of the company's explanation:

While Dr. Pepper offers an explanation for the difference between the reason for promoting Koester over Burrell it offered to the EEOC (“purchasing experience”) and the one offered to this court (“purchasing experience in the bottling industry”), its brief does not attempt to explain how either explanation is consistent with its arguments to the district court which were framed in terms of Burrell’s insufficient “bottling” experience.

Although you can see the difference, there is also a lot of similarity in those three phrases:

• purchasing experience,
• purchasing experience in the bottling industry,
• Burrell’s insufficient “bottling” experience

While the Court gives additional reasons for its holding, when you consider the number of times that you could be potentially be called upon to explain the reason for a termination -

• to the employee,
• unemployment proceedings,
• EEOC or state agency,
• district court pleadings and discovery
• and appellate briefing

the potential chance of damage caused by a lack of precision or a subtle change of emphasis are enough to get an employer's attention.

While Burrell's discrimination claim may still be alive, it is not to say it didn't take a hit as well. Given a now legitimized termination, it would seem at a minimum that even assuming that liability could be established, which of course is by no means certain, a large element of economic damages, would seem to have gone disappeared along with the retaliation claim.

"Labor lawyers see gray storm gathering" — Great Headline, Not Much More

The Dallas Business Journal has one of the better headlines I have seen recently, unfortunately, the story doesn't add much. The article describes the coming "perfect storm" (a now well overused cliché) as follows:

• Baby boomers, whose ages range from about 42 to 60, make up the largest group in the workplace, with 77 million men and women in the United States, nearly double the population of Gen X, which makes up 44 million and whose members are just beginning to hit their 40s.
• As baby boomers climb the corporate ladder, they become more expensive to employ.
• As employers look at ways to keep costs down, they'll look at reducing their biggest expense: people.

And an obligatory quote that juries are sympathetic to older workers because they can identify with people who look like them. Yawn.

But just because there is not a lot of substance to the story, doesn't mean there is not a lot of truth to it. And you have to agree, it is a great headline.

Some Lessons to Be Learned from the Brits on a Minimum Wage Law

As talk of a new minimum wage continues to rumble through Congress, the Brits have acted. See the BBC News story, Minimum wage up to £5.52 an hour. While there is no talk of raising the U.S. rate that high, there is at least one way we should emulate the British.

Namely — lower rates tied to age. Although the new top British rate is the equivalent of $10.60 an hour, there are separate rates for those aged 18-21 ($8.80) and 16-17 ($6.57). That bright line makes much more sense than the half-hearted attempts to achieve something similar under the FLSA.

One thing the Brits don't do that we should — tie the rate to a reasonable index to avoid these periodic lurches that don't do anyone any good except for politicians who get have a partisan issue to rally around and an opportunity to "look good" in the eyes of their constitutents by "giving them" a raise.

The Brits at least remove it from the political process by a half step, putting it in the hands of the government's "Low Pay Commission," a name that you have to admire regardless of your point of view.

The Case of A Different Decision Maker — A Lesson Reinforced

Even after a court adopts a new standard it takes awhile for the nuances to play out. Late in 2005, the 4th Circuit found that there were certain times when a discrimination plaintiff would be excused from meeting the standard 4th element of a prima facie case, that he or she was replaced by someone outside the protected category. This "exception" exists when there are different decision makers. See 4th Circuit Alters 4th Prong of Prima Facie Case . There, even though a female plaintiff was replaced by a female, the exception came into play because it was a different management team.

18 months later, the 4th Circuit had a different variation. Female plaintiff was replaced by a male, however the replacement choice was made by a new management team. The court noted the district judge, who had granted summary judgment because of the plaintiff's failure to establish a prima facie case, was correct in finding in its earlier decision the

"implicit understanding that the sex (here, male) of the person chosen by a second decisionmaker to fill the female plaintiff’s vacant position does not assist in creating a presumption of gender bias on the part of the first decisionmaker, who fired the plaintiff."

But, and here it was a decisive but, the district court erred in not recognizing that the different decision maker completely relieved the plaintiff from the obligation of meeting the 4th element of the prima facie case. Lettieri v. Equant, Inc. (4th Cir. 3/5/07)[pdf].

An Unbiased Academic Look at Mandatory Arbitration

Well maybe not — given that the topic for presenters to the January 2008 Section to Contracts of the Association of American Law Schools is entitled: How Bad Are Mandatory Arbitration Terms?”. Check out the full details at the ContractsProf Blog if you are interested in presenting.

I would never say that there are not two sides to the question of mandatory arbitration, but it does seem that the ivory tower types are not being asked to approach the issue with an open mind.

A hat tip to the good Professor Ross Runkel at his Ross' Arbitration blog which is, as usual, up to the minute on the latest developments in arbitration.

MDV in Oklahoma - $61 Million Worth

A hat tip to the Daily Labor Report which alerted me to a substantial Oklahoma City verdict in February. A claims manager for Progressive Halcryon Insurance brought a claim for hostile environment, gender discrimination and retaliation. The jury must have viewed them equally — finding $350,000 in compensatory for each of the three claims, which alone would have qualified it as an MDV. But the jury wasn't through — topping it with a $60 million punitive damage award. The reports I found, see Jury says a Tulsa deserves millions [sic]from the Tulsa News World and Tulsan Wins Gender Discrimination Lawsuit from KOTV, don't have the sort of facts that sometimes jump out in these cases, although it was clear that there were some credibility questions such as whether she declined a lower position that was offered to her.

There may well have been some other factors that inflamed the jury, but it's a good reminder that when you lose on liability in an employment case, that means you have lost the credibility battle, and too often that in at least one jury's eyes you stand doubly condemned — not only are you a discriminator, but a liar. And that's a volatile combination.

The stories make the good point that the maximum that can be awarded out of that $61 million of damage is $300,000 because of the caps on Title VII recovery. However, counsel for plaintiff is optimistic that there is $200,000 in back pay, $600,000 in front pay to go with the $300,000 and of course attorneys fees. As we have seen it also could be that it will ultimately end up to be nothing, which still still doesn't remove the lesson.