Hulk Hogan v. Two Alleged Age Discrimination Victims

A review of the New York Times today provides a stark demonstration of the arbitrary way that society assesses damage to individuals.

There is a front page story about a Florida jury verdict ordering Gawker.com to pay wrestler Hulk Hogan $115 million in damages for publishing a grainy security video depicting Hogan having sex with a friend’s partner. Of that amount, $55 million was for economic harm and $50 million was for emotional distress. (Hogan subsequently was awarded an additional $25 million in punitive damages.)

Another story, featured in the business section, chronicles the demoralizing travails of Julianne Taaffe, 60, and Kathryn Moon, 65, who taught English as a second language (ESL) at Ohio State University for decades until they were forced to retire as a result of an alleged campaign of illegal age discrimination and harassment.

The maximum damage award permitted under the Age Discrimination in Employment Act (ADEA)  is a total of two-times the amount of monetary damage suffered by the plaintiffs.  The ADEA does not permit plaintiffs to recover damages for emotional distress or punitive damages,  though these damages are permitted under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin. So if Taaffe and Moon’s case ever gets to a jury  the most they could recover is whatever salary and benefits they lost, possibly doubled.

And while the evidence against OSU is what some would call overwhelming, it is far from certain that Taaffe and Moon’s lawsuit ever will reach a jury.  Taaffe and Moon were forced to sue five Ohio State University (OSU) officials individually rather than the university because the U.S. Supreme Court in 2000 ruled that  the concept of  sovereign immunity prevents an award of monetary damages in federal lawsuits against state agencies (including universities).   OSU has filed a motion to dismiss the lawsuit on the grounds that the ADEA does not permit plaintiffs to sue individual government employees.

Taaffe and Moon claim in the lawsuit that OSU systematically drove out older teachers in the university’s English as a Second Language Program. [Read more…]

Why do journalists have more ethics than U.S. Supreme Court Justices?

When I beganUS Supreme Court my career as a newspaper  reporter in Connecticut, I was occasionally offered a junket or an opportunity to get something of value without earning it or paying for it.

Reputable news reporters  (as opposed to lifestyle and travel  reporters) didn’t accept junkets. To do so was widely considered to be unethical because it affected one’s objectivity or the appearance of one’s objectivity. We knew that a reader would not trust a reporter who, for example, accepted a free trip to the Bahamas from the mayor of the city that s/he was covering.

This is one reason that I find it so galling that members of the highest court in our land, the U.S. Supreme Court, have no compunction about accepting junkets. They do it all the time.

Justice Antonin Scalia died suddenly last month at  a Texas hunting lodge, where he was staying for free as a guest of a Texas businessman.

According to USA Today,  the nine justices took more than 1,000 reported trips paid for by outside sources from 2004 to 2014.  Scalia was  the most traveled, with more than 23 trips on average a year, followed by Justice Stephen Breyer, with 17. Chief Justice John Roberts took the least, fewer than five per year.  Scalia and Justice Clarence Thomas spoke at separate Federalist Society events in the Palm Springs area sponsored by Charles Koch,  who has poured millions into conservative causes. Scalia  attended events sponsored by the conservative Federalist Society more than 20 times over about a decade in resort towns that include Park City, Utah, and Napa, Calif. Breyer traveled to London, Luxembourg and Sun Valley in 2014 with groups picking up the tab. Whether or not this is an actual ethics violation, it doesn’t look good.  It undermines trust in the judiciary.

If poorly paid newspaper reporters  pass up freebies for the sake of professionalism, why don’t  highly paid U.S. Supreme Court justices? Even if it’s not required, why don’t they?  Perhaps it’s because federal judges, including U.S. Supreme Court Justices, have lifetime tenure. Maybe it really  doesn’t matter to them whether or not people think they are objective. They can’t be fired.  Which is a very good reason for term limits for federal judges.

Impossible Hurdles for Age Discrimination Plaintiffs

One wonders how the plaintiffs might have persuaded  the federal appeals court panel that they were the victims of age discrimination absent a futuristic device that reads an  employer’s mind.

A three-judge panel of the U.S. District Court of Appeals for the Third Circuit in Philadelphia recently granted a pre-trial motion to dismiss an age discrimination lawsuit because the plaintiffs failed to prove the employer’s stated reason for firing them was a pretext or a  lie.

Assistant District Attorneys Edward Gallen, 65, and Robert Miller, 57, were fired shortly after the 2011 election of District Attorney Tom Hogan in Chester County, Pennsylvania.   Hogan requested the termination papers prior to taking office. He fired the men for “poor performance.” He then made public statements that he planned to reorganize the office and establish a “modern” prosecutor’s office.

The appeals court panel ruled that “no reasonable factfinder should infer an intent to discriminate in hiring based on age from Hogan’s platitude about modernizing the District Attorney’s Office.”

Moreover, Hogan fired a total of four assistant district attorneys in their 50s and 60s, including Gallen and Miller, and then hired five younger attorneys in ages ranging from 27 to 42.  The appeals court panel agreed that “on the surface” this looked bad but said it fell short of what was needed to show age discrimination.  The court said the plaintiffs failed to show that Hogan had refused to hire more experienced attorneys who were older.

The third circuit panel said the plaintiffs were required to “point to some evidence, direct or circumstantial, from which a factfinder could reasonably either disbelieve the employer’s articulated legitimate reasons … or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s actions.”

The ruling raises a question about whether it is even possible for an age discrimination plaintiff to withstand a motion for summary judgment in the third circuit without direct evidence, such as a memo from a supervisor stating that employee is being fired because s/he is too old.

Is it realistic today to expect savvy employers to commit their illegal intentions to paper?

Technically, it’s not supposed to be a high bar for plaintiffs to withstand a motion for summary judgment, which is a pretrial motion filed by the employer to dismiss the case prior to trial  because “there is no genuine dispute as to any material fact.”  Under federal rules, judges are required to give the plaintiffs (not the employer) every benefit of the doubt. Traditionally, it has been thought that questions of intent and decisions about a witness’ credibility are best left to juries, not to  federal judges who have lifetime tenure and don’t have to worry about a new guy taking office and firing them because they’re too old.

The decision was issued by Judge Thomas Ambro,  Chief Judge Thomas  A. McKee and  Senior Circuit Judge Anthony Joseph Scirica.  It seems worth noting that Scirica is 76 and voluntarily accepted semi-retired status in 2010, at which time he began collecting a fat government pension plus his earnings as a part-time federal judge.

The third district covers Delaware, New Jersey and the Eastern, Middle and Western districts of Pennsylvania.

NH Court Extends Liability for Sexual Harassment

working.oldtypewriterA somewhat  notorious case that illustrates the difficulty of holding sexual harassers to account is in the news again..

The New Hampshire Supreme Court ruled this month that an employee can be held liable for “aiding and abetting an unlawfully discriminatory practice committed by an employer” under the state’s anti-discrimination statute (RSA 354-A:2).

The ruling came in a case involving Fuller Oil Co. of Hudson, N.H. and its owner Frederick J. Fuller.

The company settled an EEOC sexual harassment complaint (without admitting liability) in 2005 by agreeing to pay five women a total of $750,000 and to institute company wide training in sexual harassment prevention. At the time, an EEOC official characterized Mr. Fuller as a “serial” sexual harasser.

In 2013, another EEOC sexual harassment complaint was filed charging Fuller with forcing office worker Nicole Wilkins to quit in 2011 when he allegedly grabbed and squeezed both of her breasts from behind while pinning her against her desk. The EEOC said the alleged assault was the culmination of a growing number of unwanted and inappropriate sexual comments and incidents of touching by Fuller. After Wilkins threatened to file an EEOC complaint, Fuller allegedly retaliated by firing Wilkins’ friend and co-worker, Beverly Mulcahey, for poor performance.

Fuller was subsequently arrested for the incident but settled that case by pleading no contest to a reduced charge of simple assault.

The company apparently refused to settle that case so the EEOC in 2014 filed a lawsuit charging both the company and Fuller with sexual harassment and retaliation. Fuller sought unsuccessfully to dismiss the case on the grounds that his behavior amounted to a single crude gesture and was not objectively offensive. The oil and propane company went bankrupt, which had the effect of staying the lawsuit against the company. Fuller’s attorney then argued that Fuller could not personally be held liable under New Hampshire’s anti-discrimination law for either sexual harassment or retaliation. A U.S. District Court judge asked New Hampshire’s highest court to interpret the state’s anti-discrimination law and decide whether it permits an individual employee to be held liable for aiding and abetting employment discrimination and  retaliation by the employer. New Hampshire’s high court answered “yes” this month.

The New Hampshire court noted the anti-discrimination law  provides that “any act of aiding, abetting, inciting, compelling or coercing another to commit an unlawful discriminatory practice, or attempting to do so, or obstructing or preventing any person from complying with the [law] is itself an unlawful discriminatory practice.”  The Court ruled that absolving individual employees from liability for aiding and abetting employment discrimination is “plainly inconsistent with the stated intent” of the law, which is to “eliminate and prevent discrimination in employment.” Furthermore, the court said individual employees can be held liable for retaliation.

The N.H. high court’s ruling permits Wilkins and Mulcahey to seek monetary damages from Fuller individually for aiding and abetting his former company’s alleged unlawful acts.

 

New Hampshire court adds ominous side note – state’s anti-discrimination law exempts employers with six workers or less.

The N.H. court’s ruling contains an ominous side note. The court noted that New Hampshire’s anti-discrimination law only applies to employers with six or more employees. The court said it is only logical to conclude that if an employer is exempt from the law, individual employees of the employer also are exempt from liability.  So God help workers who work for a New Hampshire company with fewer than six employees.

The case is U.S. Equal Employment Opportunity Commission, et al. v. Fred Fuller Oil Company, et al., Case No. 2015-0258 (Feb. 23, 2016).