Kentucky Employment Law Blog

Sexual Harassment and Retaliation Verdicts Against AutoZone Affirmed by Sixth Circuit

The Sixth Circuit has affirmed jury verdicts on behalf of three former employees on their sexual harassment and retaliation claims.  Perry v. AutoZone Stores, Inc. (June 22, 2015). 

Plaintiff Shana Perry was sexually harassed by her supervisor Mark DeHaan.  She reported the harassment, AutoZone began an internal investigation, and, during the investigation, plaintiffs Damon Harper and Daryl Quinney made statements corroborating Perry's allegations. All three were subsequently fired.  

The jury awarded Perry $150,000 in damages for emotional distress and $400,000 in punitive damages against AutoZone; Harper was awarded $60,000 for lost wages and $100,000 in emotional distress damages; Quinney was awarded $100,000 in emotional distress damages and $23,300 for lost wages. See Verdict Form. The district judge, the late John G. Heyburn, reduced the punitive damages award to comply with Title VII's statutory cap of $300,000.  

The Sixth Circuit's opinion was per curiam and issued on behalf of Circuit Judges Martha Daughtrey, Deborah Cook and Eric Clay.  Perhaps the only surprise is that the case was argued on November 18, 2014; some would infer a more extensive analysis would come after such a delay.  

The plaintiffs were represented by Rheanne Falkner and Charles Miller of the Louisville firm of Miller & Falkner; they were lauded by Judge Heyburn for their "considerable skill and determination."

Robert L. Abell
www.RobertAbellLaw.com

 

Supreme Court to Review Overtime Class Action Suit Against Tyson Foods

The Supreme Court will review a $2.8 million judgment against Tyson Foods in an overtime class action suit. It appears the Court will consider two questions: (1) whether and how statistical evidence and methods may be used to determine damages on a class-wide basis; and, (2) whether individuals may be included in a class, even if they've sustained no damages. Read the petition for certiorari here.

My estimation is that Tyson will find the Roberts Court quite receptive to their arguments. The Republican-appointed majority on the Court has been more than solicitous of business and corporate interests and almost unfailingly hostile toward individuals and employees.  The Court is likely to use the case to virtually eliminate class actions in at least two ways: (1) it will practically eliminate the use of statistical methods, which, in turn, will practically eliminate class actions, since every class member's particularized damages would have to be proved individually just as it would in a non-class action suit; and, (2) while the second point is practically irrelevant, the Court will use it as a vehicle to restrict more generally the formation of class actions by creating some requirement erecting a barrier to being an eligible class member.

An excellent report on the Supreme Court's activity yesterday is by Lyle Denniston as SCOTUSblog.

Robert L. Abell
www.RobertAbellLaw.com

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Is A Plaintiff's Testimony Alone Enough to Sustain an Overtime Claim?

Overtime claims arise where there are no records kept of the hours the employee works, or where the records are incomplete and therefore false or are just false, as in fabricated for purposes of litigation. So it can develop that a plaintiff's claim for unpaid overtime may rest on his or her testimony alone regarding the hours he or she worked. Is this enough for a jury to find in the plaintiff's favor? "Yes" answered the Sixth Circuit recently in Moran v Al Basit LLC (June 1, 2015). 

The plaintiff, Moran, worked for a couple of different auto repair shops owned by defendant. He claimed that he worked every week 65-68 hours. The defendant offered time sheets purporting to show that Moran worked "exactly thirty hours a week, despite his schedule varying notably from week to week." Furthermore, one of defendant's agent offered that he customarily reviewed security camera footage to verify/determine the employees' work hours, which he then recorded on paper, but, as it happened, these papers could not be located by the time of suit. Moran asserted that their existence had been fabricated in any event. 

So Moran's main nearly only evidence was his word.  The district judge, Hon. Judith Levy, granted summary judgment to the defendant. The issue before the Sixth Circuit was whether Moran's word alone good enough for a jury to find in his favor:

This appeal raises one simple question: Where Plaintiff has presented no other evidence, is Plaintiff’s testimony sufficient to defeat Defendant’s motion for summary judgment? We hold that it is. Plaintiff’s testimony coherently describes his weekly work schedule, including typical daily start and end times which he used to estimate a standard work week of sixty-five to sixty eight hours. The district court characterized this testimony as “somewhat vague.” However, while Plaintiff’s testimony may lack precision, we do not require employees to recall their schedules with perfect accuracy in order to survive a motion for summary judgment. It is unsurprising, and in fact expected, that an employee would have difficulty recalling the exact hour he left work on a specific day months or years ago. It is, after all, “the employer who has the duty under § 11(c) of the [FLSA] to keep proper records of wages [and] hours,” and “[e]mployees seldom keep such records themselves.” Defendants emphasize the fact that Plaintiff’s testimony is inconsistent with the allegedly contemporaneous timesheets Defendants provided to the court. But these timesheets do not amount to objective incontrovertible evidence of Plaintiff’s hours worked. Plaintiff denies the validity of these timesheets, which were handwritten by Defendants, and contends that Defendants sanctioned his overtime work. Whether his testimony is credible is a separate consideration that is inappropriate to resolve at the summary judgment stage.

Robert L. Abell
www.RobertAbellLaw.com

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