A 5th Circuit Nugget for Assault Claims

Of all the so called employment law torts, one of the most simple and sometimes most difficult to deal with on summary judgment is assault. I once had a case where we were able to get several causes of action dismissed on summary judgment, but not sexual harassment and an assault claim against an executive arising out of a conference call that was being conducted by the plaintiff and the executive over a speaker phone. Fortunately at trial we were able to prevail on all claims.

But if I had that case again today, I would have at least some good support for why the assault claim should never have gone to trial.

At the end of a First Amendment case brought by a professor who has been suspended from teaching duties (but was still being paid), the 5th Circuit affirmed summary judgment on his assault claim in the following paragraph:

This leaves only DePree’s assault claim against Appellee Niroomand. Under Mississippi law, assault occurs where a person “(a) . . . acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.” [cite omitted] According to DePree, Niroomand “aggressively walk[ed] toward [DePree], yelling at [him], repeatedly referring to [him] as a ‘son-of-abitch,’ and shaking papers in his face creat[ing] an apprehension in [DePree] of an imminent harmful or offensive contact.” Appellee Niroomand contends that DePree’s apprehension was not reasonable. We agree. Taken in context, these statements and actions could not create a reasonable apprehension of imminent, harmful contact. DePree and Niroomand had squared off in similar past confrontations without offensive contact. Nothing in the current claim suggests DePree could have reasonably feared Niroomand just because he cursed and rattled papers in DePree’s face. No triable fact issue of an assault arose here.

DePree v. Saunders (5th Cir. 11/13/09). [pdf]

At some point, that is going to be a handy reference.

Wage & Hour: Not Just Collective Actions Anymore

Wage and hour compliance issues remain one of the potentially most dangerous areas for employers. Most of the attention has been focused on collective actions brought by a new generation of plaintiffs' lawyers who frequently focus on only those types of claims.

However, this press release last week from the Department of Labor, Grandville, Mich., restaurant operators ordered to pay more than $2 million in back wages and damages is a sobering reminder that there is a newly invigorated government agency that is conducting investigations and seeking back wages and penalties on behalf of employees.

The restaurants in question were 5 Chinese restaurants operated by a husband and wife team. It will take a lot of kung pao chicken to cover that fine.

Earlier this fall, the ABA Journal reported that the DOL had hired 250 new investigators for the Wage and Hour Division. Feds to Ramp Up Enforcement of ‘Rampant’ Wage-and-Hour Violations. And all of this activity is occurring without a permanent head of the group as President Obama's nominee for Administrator of the Wage and Hour Division, Lorelei Boylan withdrew her nomination last month. Lorelei Boylan Withdraws her Nomination for Wage and Hour Administrator.

While this may sound like a broken record (for those of you who still understand that reference), there's no likelihood that this problem is going away any time soon.

Can the NLRB Function With 2 Members?

Well obviously only in a very limited manner, and according to the DC Circuit, not at all. Three Circuits, the 1st, 2nd and 7th say it can, and now the Supremes will tell us. Justices to decide validity of two-member NLRB decisions.

Currently Obama's three Board member nominees have passed committee muster, but John McCain has placed a hold on one of the nominees, SEIU attorney, Craig Becker. NLRB Nominee Gets Mixed News From Senators My understanding is that Senator Harkin will not submit the other two candidates for a full Senate vote until a resolution is reached over Becker.

I assume that there is some way that this will all get worked out under the curious protocols of the Senate. It does seem to me though that an outsider looking at the whole way we deal with the NLRB membership, including long periods of time with less than a full Board, and the way that precedent is an almost non-existent concept even when we have a functioning Board, would have to say that it's not much way to run a railroad.

For some insight into just how the Senate nomination process works (or doesn't) check out, Fractured Nomination Process Leaves Regulatory Posts Vacant.

5th Circuit On Continuing Violations

Decisions related to the timeliness of a claim are most complicated when it involves hostile environment harassment, which almost always occurs over a period of time. Although the rule is fairly simple according to the US Supreme Court's decision in National R.R. Passenger Corp. v. Morgan, “so long as any act contributing to that hostile environment takes place within the statutory time period," it can get sticky in the application.


In Stewart v. Mississippi Transport Commission (5th Cir. 10/21/09) [pdf] the Court dealt with such a claim. The plaintiff had been harassed by her supervisor. After an investigation they had been separated, but 16 months later when her new boss retired, the old boss replaces him. He begins offensive conduct again. When she complains they are again separated. The question for the Court was whether or not the sexual harassment claim should include the events before the first separation. Ultimately, two members of the Court held that they should not be.


In reaching that conclusion, they referred to 3 limitations on the continuing violation rule also found in Morgan:

1. the plaintiff must demonstrate that the “separate acts” are related, or else there is
   no single violation that encompasses the earlier acts;


2. the violation must be continuing; intervening action by the employer, among
   other things, will sever the acts that preceded it from those subsequent to it,
   precluding liability for preceding acts outside the filing window; or


3. the continuing violation doctrine is tempered by the court’s equitable
   powers, which must be exercised to “honor Title VII's remedial purpose ‘without
   negating the particular purpose of the filing requirement.

Here, it was the second exception that was fatal to plaintiff's claim -- the Court considered the employer intervention of separating the two, which did cause the earlier harassment to stop, an intervening action. When it viewed the events of the last incident of harassment (absent the circumstances of the first harassment), the majority found that they were not sufficiently severe or pervasive.

Interestingly, the newest member of the 5th Circuit, and the last Bush appointment, Judge Haynes dissented on this point from Chief Judge Edith Jones' opinion.

Apologies, Both Past and Future For Not Posting

Posts have been exceedingly light recently as I have been both getting ready for vacation (which of course means posts will be non-existent until my return) and have spent the last several days preparing for and testifying yesterday before the Senate Judiciary Committee against overturning the Gross v. FBL Services decision of the Supreme Court this summer which nixed the mixed motive instruction for ADEA cases.

The future of mandatory arbitration was also a subject and frankly got a lot more attention than Gross. Senator Franken, one of the members of the Committee has taken that on as a major issue and that took up a lot of the hearing. For any who have an interest in seeing the hearing, there is a link to the webcast on the Committee's website.

More normal posting will hopefull arise following when I return and dig out from 2 weeks plus of accumulated email!

The Employment Law Case That Just Keeps On Going

Lawsuits that stretch out over the years are not all that uncommon, but the tale that started with a discrimination law suit that was settled in 1997, just had another major development, a $4.9 million dollar malpractice verdict against the attorneys who represented the initial claimant in her earlier successful malpractice claim against her original attorneys. 12 Years of Persistence Rewarded With $4.9 Million Verdict in Malpractice Case.

If I understood it all, here's a little bit more about the sequence:

• Jackie Young, is part of a group that sued BellSouth for racial discrimination. Plaintiff's counsel was the firm of Ruden McClosky.
• In that case each plaintiff, including Young, received about $5,000 each.
• Those plaintiffs later learned that their attorneys had received $120,000 a year for 4 years, entered into a consulting agreement with BellSouth and agreed not to file any more employment cases against the company for one year.
• The original plaintiffs hired Becker & Poliakoff to sue the Ruden McClosky firm for malpractice.
• That case was settled for $8 million in 2002 with the proceeds split between 54 plaintiffs.
• During the settlement negotiations of that case, Becker & Poliakoff sued BellSouth on behalf of Young alleging continuing discrimination. That suit was dismissed when Becker & Poliakoff failed to respond to BellSouth's motion to dismiss.
• Young did not find about the dismissal for a year, she claimed because Becker & Poliakoff did not want to jeopardize the settlement of the first malpractice claim and their $2.6 million dollar fee.
• Now a verdict has been returned in the 2nd malpractice case, this one by Young against Becker & Poliakoff for the way her individual case was handled. The verdict $4.9 million.

It of course will be appealed.

Amazing.

EEOC's Year End Rush - 2009 Version

Ross Runkel comments on recent litigation activity at EEOC announces 32 suits in past seven days. Although I don't know the numbers in recent years, I do know that there is always a rush to file lawsuits by the EEOC before the government year ends on September 30th. See my post of a year ago, It's the Last Week in September, So Be Ready for EEOC vs. ...