Employer Warned About ‘Self Interested’ Failure To Produce Computer Data

In an employment discrimination case, the critical evidence generally is in the possession of the employer, especially computer-based electronically stored information (ESI).

Clearly, the employer has little incentive to produce such evidence to a defendant who is seeking legal redress.

This issue recently arose in an age discrimination case in Florida that is being prosecuted by the U.S. Employment Opportunity Commission (EEOC) against MI 5100 Corp., doing business as Jumbo Supermarket, Inc.

In a ruling this month, U.S. Magistrate Judge William Matthewman of the Southern District of Florida said he was “greatly” concerned and “troubled” that Jumbo’s legal counsel appears to have permitted two “self-interested” non-attorneys at Jumbo to collect and produce ESI sought by the EEOC.

“When combined with [EEOC’s] assertion that only 22 pages of documents have been produced by [Jumbo] in this complicated age discrimination case, the Court seriously questions the efficacy of [Jumbo’s] search, collection and document production,” he writes.

He gave Jumbo one more chance to comply with the EEOC’s discovery requests or face the prospect of a court order granting the EEOC direct access to Jumbo’s computer system so it can obtain the data itself . Continue reading “Employer Warned About ‘Self Interested’ Failure To Produce Computer Data”

Sexual Harassment: Federal Courts are a Big Part of the Problem

A big part of the problem re. epidemic sexual harassment in the workplace involves the dismissive treatment that federal judges (of both sexes) have historically accorded to victims of sexual harassment. Here’s a story I wrote a while back that may curl the hair on the back of your neck. The story involves incompetence by a federal agency and a blood curdling lack of empathy by a female federal judge to women who were subjected to extreme sexual harassment and even assault when they attempted to improve their lot in life by becoming truck drivers. PGB

JUDGE WHACKS EEOC WITH $4.7 IN FEES AS SEXUAL HARASSMENT CASE OF FEMALE TRUCK DRIVERS CRASHES AND BURNS

AUGUST 13, 2013

It’s easy to forget that EEOC v. CRST Van Expedited, Inc. started with a 2005 sex discrimination complaint by a female truck driver trainee, Monika Starke, who said she was sexually harassed by her two “Lead Trainers.”

Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled recently that the U.S. Equal Employment Opportunity Commission must pay CRST, one of the nation’s leading transport companies, $4,694,422.14 in attorney fees and costs stemming from the case.

Judge Reade’s decision is brutally unsympathetic to the EEOC and the 255 female trainees and drivers who alleged sex discrimination and harassment against CRST. She appears to be much more concerned about the supposedly unfair burden the litigation placed on CRST.

The case began with a sex discrimination lawsuit filed by the EEOC on behalf of Starke and other similarly situated employees.

Court records show that Monika Starke alleged that one of the CRST trainers told her “the gear stick is not the penis of my husband, I don’t have to touch the gear stick so often” and “You got big tits for your size, etc. . . “ She said she told him she was not interested in a sexual relationship with him and called the CRST dispatcher to complain. “[I] was told that I could not get off the truck until the next day.” she said.

The other “Lead Trainer” allegedly forced Starke to have sex with him while traveling from July 18, 2005 through August 3, 2005 “in order to get a passing grade.”

Starke is described as a German who struggles with English. She and her husband subsequently hired a lawyer and filed for bankruptcy. They failed to mention the CRST lawsuit, prompting CRST to file a motion to prevent Starke from proceeding against CRST on grounds of judicial estoppel – a doctrine that is meant to protect the integrity of the court. Judge Reade granted the motion.

In fact, Judge Reade granted CRST’s pre-trial motions to dismiss all of the complaints of sexual harassment and discrimination filed by the EEOC against CRST.

In a dozen cases, Judge Reade said the complaints were not “severe or pervasive” enough.

In other cases, Judge Reade said CRST did not have legal (as opposed to real) notice of the harassment and the “Lead Drivers” – who evaluated the performance of the female trainees – did not fall within the court’s technical definition of supervisor in that they could not fire the trainees.

Judge Reade dismissed 67 cases because the EEOC did not attempt to conciliate or negotiate with the CRST to settle the cases – which appears to be a brand new requirement that could severely limit the EEOC in the future. Judge Reade conceded that dismissal was a “severe” sanction for these complainants.

The EEOC appealed Judge Reade’s dismissal of the case to the U.S. Court of Appeals for the 8^th Circuit.

Appeals Court

In its decision, the Eigth Circuit agreed that the “Lead Drivers” are not supervisory employees and that CRST was not vicariously liable for sexual harassment/discrimination committed by these employees.

The appellate court generally agreed female complainants claims that they were propositioned for sex by male trainers and drivers were not sufficiently severe or pervasive to support a hostile work environment claim. The Court said an individual must show “more than a few isolated incidents” to support such a claim. (It was unclear exactly how many times a worker must be propositioned for sex by a superior to qualify as being harassed.)

However, the appeals court disagreed with the dismissal of the claims of three female plaintiffs and ordered them reinstated. The court also reversed Judge Reade’s earlier grant of attorney fees to CRST in the amount of $4,560,285.11.

One of the three employees whose case was reinstated was Sherry O’Donnell, who spent seven days on the road with a male co-driver who asked her on three to five occasions to drive naked; refused her request to stop at a truck stop so she could go to the bathroom, ordering her instead to urinate in the parking lot; and, “in a culminating incident grabbed O’Donnell’s face while she was driving and began screaming that ‘all he wanted was a girlfriend.’ Regarding this third incident, O’Donnell testified that Sears grabbed her face so vigorously that it caused one of her teeth to lacerate her lip.”

Her lead trainer began screaming that ‘all he wanted was a girlfriend.’ He grabbed her face so vigorously that he caused one of her teeth to lacerate her lip.

The other complainant, Tillie Jones, testified that during a two-week training trip, her Lead Driver, wore only underwear in the cab and on several occasions rubbed the back of her head, despite her repeated requests that he stop. He allegedly referred to Jones as “his bitch” five or six times and, when Jones’s complained about his slovenly habits, ordered Jones to clean up the truck, declaring “that’s what you’re on the truck for, you’re my bitch. I ain’t your bitch. Shut up and clean it up.” Like many of CRST’s Lead Drivers, Jones said he routinely urinated in plastic bottles and ziplock bags while in transit, leaving his urine receptacles about the truck’s cab for her to clean up.

The appeals court ruled the EEOC established material issues of fact regarding the harassment that O’Donnell and Jones allegedly suffered. “We hold that the district court erred in concluding, as a matter of law, that the harassment they suffered was insufficiently severe or pervasive,” the court said.

Finally, the Court rejected Judge Reade’s finding that the EEOC itself was barred by the doctrine of judicial estoppel from proceeding on Monika Starke’s behalf, noting the EEOC had not misrepresented any facts to the court. That brought Ms. Starke case back into the litigation.

After the appeals court’s decision, CRST agreed to pay Ms. Starke $50,000 to settle Ms. Starke’s case, which most people would interpret as a victory for Ms. Starke.

The EEOC decided it could not proceed with respect to O’Donnell complaint, citing the “law of the case.” This presumably refers to Judge Reade’s ruling that the EEOC was required to directly engage in “conciliation” with CRST on each complaint.

Which left Ms. Jones as the sole surviving plaintiff.

Even though the appeals court ruled in the EEOC’s favor with respect to several issues, Judge Reade ruled CRST was the ‘prevailing party” in the case and was entitled to almost $5 million in fees and costs.

The final award to CRST is actually larger than the earlier award because Judge Reade included fees and costs expended by CRST related to the appeal.

Judge Reade was appointed to the federal court in 2002 after being nominated by President George W. Bush.

Urban Outfitters “Asks” Salaried Workers to Volunteer

Can an employer ask a worker to “volunteer” to work on weekends?

This concept is being tested by the affluent retailer Urban Outfitters, Inc., which asked salaried employees at the company’s Philadelphia corporate headquarters to “volunteer” to work six-hour shifts on weekends throughout October at the company’s new fulfillment center about 50 miles outside Philadelphia. Urban Outfitters operates under the Anthropologie, Bhldn, Free People, Terrain and Urban Outfitters brands. Somewhat ironically, the company announced in August that its total net sales had increased in the second quarter by 7% over the prior year to a record $867 million.

A memo leaked to Gawker states that “volunteers” will “work side by side with your [fulfillment center] colleagues to help pick, pack and ship orders for our wholesale and direct customers.” The memo continues: “In addition to servicing the needs of our customers, it’s a great way to experience our fulfillment operations first hand. Get your co-workers together for a team building activity!”

Salaried workers are exempt from the protection of the Fair Labor Standards Act of 1938, which established the 40-hour work week and regulates the payment of wages and overtime. They can be forced to work uncompensated overtime. But it’s a different thing to ask workers – even salaried workers – to volunteer. The FLSA prohibits for-profit employers from permitting any individual to “suffer or permit to” work without compensation. The definition of “volunteer” is to work without compensation. So it stands to reason that for-profit employers cannot ask any employee to “volunteer” to work.

The situation demonstrates the problems facing workers who are exempt from the FLSA – especially poorly paid white-collar workers.

Urban Outfitters’ CEO; Richard Hayne’s net worth is approximately $1.35 billion (according to the Forbes billionaires list) but many white-collar workers are not so lucky. They are barely paid enough to put food on the table. The FLSA’s “white collar” exemption applies to employees whose job duties primarily involve executive, administrative, or professional duties and who earn a salary of at least $455 per week or $23,660 a year. This poverty-level paycheck is particularly brutal for single parents (mainly women) who must schedule and pay for child care. And, let’s face it, an employer’s request for volunteers is inherently coercive. Only a courageous worker can pass up an opportunity to experience the fulfillment center “first hand” in a “team building activity”?

Last summer, the U.S. Department of Labor (DOL) announced a proposed rule to amend the FLSA “white-collar” exemption to eventually eliminate the exempt status of an estimated 21.4 million“white -collar”employees. The DOL’s proposed regulations dramatically increase the minimum salary threshold for exempt status workers to $970 per week or $50,440 per year. This represents the 40^thpercentile of earnings for all full-time salaried workers throughout the United States.

But for now, it appears that salaried workers at Urban Outfitters who don’t want to risk their jobs by refusing to “volunteer” will be spending their weekends packing overpriced clothing into cardboard boxes.

It should be noted the FLSA does permit individuals to volunteer in the non-profit sector for religious, charitable, civic or humanitarian organizations and to perform volunteer services for a state or local government agencies. Indeed, the U.S.Department of Justice has the gall to retain licensed attorney volunteers for up to a year at a time to work as unpaid prosecutors along-side Assistant U.S. Attorneys who earn a starting salary of more than $75,000. Instead of leading the nation, it seems the federal government, including the Office of Personnel Management, is intent upon perpetuating hiring practices that are sadly antiquated and even discriminatory .

Chamber Renews Assault on EEOC

It is hard to believe but the U.S. Chamber of Commerce has accused the U.S. Equal Employment Opportunity Commission (EEOC) of overreaching in enforcing our nation’s employment discrimination laws. Hard to believe because the opposite is true.

Due to budget and staff cuts, the EEOC is litigating the fewest number of cases in modern history –148 in 2013 compared to 314 in 2009 and 416 in 2005. The EEOC has practically ignored the epidemic of age discrimination that has persisted since the start of the Great Recession in 2007. The EEOC received 21,396 complaints of age discrimination in 2013 but filed only seven lawsuits that year with claims under the Age Discrimination in Employment Act.

All of this makes it supremely ironic that the Chamber, which describes itself as “Standing Up for American Enterprise,” is urging the Congress to treat the EEOC as if it is a rogue agency that is bent on crushing the last vestiges of free enterprise in America. Continue reading “Chamber Renews Assault on EEOC”

Is the EEOC’s Strategic Plan Enforceable?

Hostile Courts Present Obstacle to Success

The U.S. Equal Employment Opportunity (EEOC) has come under attack in recent weeks in federal courts, raising questions about its ability to implement its new strategy of filing systemic lawsuits.

Earlier this month, Judge Roger Titus of the U.S. District Court for the EEOC District of Maryland dismissed a nationwide pattern or practice lawsuit brought by the EEOC that alleged that Freeman, Inc., a service provider for corporate events, unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants. See EEOC v. Freeman, No. 09-CV-2573 (2013),

In another case, EEOC v. CRST Van Expedited, Inc., Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled that the Commission must pay CRST, one of the nation’s leading transport companies, a judgment of $4,694,422.14 stemming from a lawsuit filed by the EEOC alleging sex discrimination on behalf of trainee Monika Starke and other similarly situated employees. She had earlier dismissed the lawsuit.

In their decisions, the judges eviscerate the performance of the EEOC, the federal agency that is responsible for enforcing the nation’s discrimination laws.

All of this occurs in a climate that is not favorable to workers’ rights. The U.S. Supreme Court is the most anti-employee court in modern history and has issued decisions this year making it more difficult for workers to win class action and discrimination cases. Research also shows that discrimination cases are dismissed at a higher rate in federal court than other types of cases.

Freeman

In the Freeman decision, Judge Titus points to the seeming irony of the EEOC’s goal of prohibiting background checks in hiring. He notes the EEOC conducts criminal background investigations as a condition of employment for all positions and conducts credit background checks on approximately 90 percent of its positions. Judge Titus acknowledged that credit and criminal background checks adversely affect some groups more than others but maintained that these checks are essential. According to Judge Titus:

“Because of the higher rate of incarceration of African-Americans than Caucasians, indiscriminate use of criminal history information might have the predictable result of excluding African-Americans at a higher rate than Caucasian. Indeed, the higher rate might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States …”

Judge Titus also bashed the expert report prepared by Dr. Kevin R. Murphy, the EEOC’s statistical expert. He excluded it as evidence in the case on the grounds that Murphy used an incomplete and inaccurate database. The EEOC blamed Freeman for failing to produce sufficient information during discovery.

CRST

In the CRST case, Judge Reade castigated the EEOC for failing to properly identify potential class members. She expressed concern that the EEOC subjected CRST to a “moving target’ of prospective plaintiffs.”

Judge Reade dismissed more 67 potential class members from the lawsuit because the EEOC failed to “conciliate” or attempt to reach a settlement in those cases –even though the EEOC took the position that this was not required.

Fair?

Whether or not these federal judges were fair to the EEOC, the dismissals are disconcerting. They represent a huge expenditure of scarce federal resources to combat a huge national problem – employment discrimination and harassment. The number of lawsuits filed by the EEOC has declined dramatically over the years, from a high of 465 in 1999 to 155 in 2012.

The EEOC last year approved a Strategic Enforcement Plan to promote more strategic use of agency resources.

The EEOC’s budget has generally increased in recent years – until last year. The EEOC’s budget was $341,900 million in 2009; $367,303 million in 2010; $385,303 in 2011; and $ 373,711 in 2012.