A blockbuster race discrimination verdict against UPS was upheld by the Kentucky Court of Appeals last week, UPS v. Barber. The appeals court affirmed entirely the jury's verdict and the circuit judge's rulings.
The case was brought by a group of eight African-American men, who were all employed by UPS as "feeder drivers," which means that they drove tractor-trailers between hubs. Between 2006 and 2012 these drivers made "multiple complaints to UPS management about ongoing racial hostilities at the Lexington hub." Grievance meetings were held in 2009, 2011 and 2012 at which issues "raised included the use of racial slurs, epithets and cartoons, and the meting out of severe or unwarranted discipline based on race." A variety of retaliatory and punitive actions were taken against the drivers, while the evidence at trial showed no substantive response by UPS that led to any improvement for the issues.
A jury, after an eight day trial, awarded the drivers a total of $5,310,314.96 with the individual awards ranging from $100,000 to just over $1.5 million.
The most notable of the Court of Appeals rulings regarded the trial court's admission of evidence "introduced to show incidents of racial animus were brought to UPS's attention during meetings with UPS managers in 2009, 2011 and 2012." This evidence was correctly admitted as the Court of Appeals explained:
[The evidence] tended to undermine UPS's defense that it exercised reasonable care to prevent harassment and take corrective action when necessary. Further, this evidence showed a pattern and practice of adverse treatment, racial hostility, discrimination and retaliation - a purpose approved by our Supreme Court.
There are legal protections and remedies under both federal and Kentucky state law. A reasonable person can ask how effective they are if the problem they aim to eliminate is and remains widespread. The conclusion is obvious: not good enough.
This employment discrimination lawyer says the best solution is found in better laws that offer greater remedies. What I'm talking about is real damages: when companies pay through the nose, they may change their conduct, more or less like individuals do.
Andrea Mosby-Meacham began working as an in-house staff attorney for the defendant utility company in 2005; she dealt mainly with employment law issues. In January 2013, Mosby-Meacham developed pregnancy complications that resulted in surgery and being placed on "modified bed rest" for ten weeks, a restriction applicable to "prolonged standing or sitting and from lifting heavy objects." She made an official request for an accommodation for this condition, that "she be permitted to work from a bed either within the hospital or within her home for ten weeks." Her request was denied, although she represented that she could perform her job's essential functions with the requested accommodation. For unexplained reasons, it took the company an additional two weeks to formally notify Mosby-Meacham that her request was denied, by which time she had been working for three weeks while on "modified bed rest" and "no one from MLG&W ever told her to stop working during this time." Mosby-Meacham twice appealed unsuccessfully the denial of her accommodation request, before returning to work after ten weeks on April 1, 2013. She then worked right "up until her baby was born on April 14, 2013."
Mosby-Meacham filed suit, and a jury awarded her $92,000 on her claim of disability discrimination. The trial court, U.S. District Judge John Thomas Fowlkes, Jr., then granted her equitable relief of $18,184.32 in back pay and reinstatement of her leave benefits that she had used during the ten weeks' bed rest.
The employer's principal argument on appeal was that the jury verdict should be set aside, because Mosby-Meacham could not perform her job's essential functions while telecommuting, that her in-person presence in the office was required. This argument failed for the following reasons:
several MLG&W employees as well as outside counsel who worked with Mosby-Meacham testified that they felt she could perform all essential functions during the 10-week period working from home
although trying cases in court was listed as an essential function, Mosby-Meacham had never tried a case
similarly, although taking depositions was listed as an essential function, Mosby-Meacham had never tried a case
the job description the employer relied on was outdated and did not take into account the technological advances that had changed how Moseby-Meacham did her job
the employer did not truly engage in an interactive process with Mosby-Meacham and instead invoked a no telecommuting policy even before considering her request
It appears that the employer overestimated the reach of EEOC v Ford, believing that the Sixth Circuit would never endorse telecommuting as a reasonable accommodation, because Mosby-Meacham presented a compelling plaintiff. She had actually telecommuted a few years prior with no problem; even in the time period relevant to this case, she telecommuted for apparently about a month with the employer raising no issue and instead reaping the benefit of her work. When her bed rest was over, she returned to work and worked right up until the birth of her child, an admirable move given that she'd had three prior miscarriages. It probably also helped that she was a lawyer since it made the panel more confident that it understood her job and less concerned about injecting into the workplace in a field and job about which they knew little. Finally, Mosby-Meacham benefitted from a perceptive trial court judge who recognized the limits of EEOC v Ford's reach and did not grant the employer's motion for summary judgment, which many district judges would have done. Credit goes to Mosby-Meachem's lawyers who did a fine job themselves.
Tonya Lindsey, an African-American woman, began working in healthcare for UK in 1990. She claimed that she was passed over for a promotion on three separate occasions on account of her race and gender. She later added a retaliation claim as well, one arising, as Lindsey pleaded her complaint, from the actions of her supervisor, Lisa Turner. Turner actually became Lindsey's supervisor after Lindsey had filed the discrimination suit.
The Fayette Circuit Court granted a summary judgment to the defendants, a decision that appeared to leave Lindsey's case in the shallows at best. Turner, a couple of months later, filed a cross-claim against UK and claimed, among other things, that "she was pressured by her superiors to closely scrutinize Lindsey so that Lindsey could be fired" and that he succumbed to this pressure out of fear for her own job. This caused the circuit court to vacate the summary judgment. To shorten the story, Turner later dismissed her cross-claim, and the circuit court granted summary judgment again to the defendants and this time on all claims.
The Court of Appeals reversed as to the retaliation claim, and invoked the "cat's paw" in so doing. Turner had not known of Lindsey's discrimination suit, but her assertion that she had been directed to dig up dirt, so to speak, on Lindsey and her further assertion that she feared for her job if she did not do so created a fact issue as to whether Turner was simply the unwitting and proximate cause of an unlawful retaliatory intent by the higher-ups at UK. The Court explained as follows:
This is known as the "cat's paw" theory of liability. A plaintiff alleging liability under the cat's paw theory seeks "to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision." Thus, even if Turner herself lacked discriminatory intent, UK many nonetheless be liable if Turner's decision to recommend Lindsey's termination was caused by one of its agents acting with a discriminatory intent.
Lindsey was represented by the now-late William C. Jacobs. Bill Jacobs was one of Kentucky's great lawyers; he represented the plaintiff in the landmark Kentucky sexual harassment case, Meyers v. Chapman Printing, 840 S.W.2d 814 (Ky. 1992), and represented the plaintiff in a case that changed the way public library systems are funded in Kentucky, LFUCG v. Hayse, 684 S.W.3d 301 (Ky. App. 1984).
States, particularly in the South, have abandoned or nearly abandoned efforts to enforce their wage and hour laws that require payment of overtime and/or the minimum wage, as reported in Politico, Minimum Wage Large Unenforced.
The case arose in the Boyle County Sheriff's office when Sheriff Marty Elliott first demoted and then fired a long-time deputy, Warren Lanham, following complaints by grand jury members about Lanham's case work to Boyle Circuit Judge Hon. Darren Peckler. Lanham claimed that his rights were violated, because he was not allowed the due process steps provided for in the Police Officers' Bill of Rights. The circuit court ruled for the sheriff, but the Court of Appeals ruled for Lanham, thus bringing the case to the Supreme Court.
Is an employee who declines to remain employed and facilitate healthcare fraud constructively discharged? This is the question presented to the Sixth Circuit by Sue Smith v. LHC Group, which was argued yesterday to a panel of Judge Gilbert Merritt, Judge Karen Nelson Moore and Judge John Bush. Robert L. Abell represents the plaintiff and appellant, Sue Smith; take a listen:
Pittington prevailed at trial against his former employer on claims that he was retaliated against for his involvement with his wife's sexual harassment complaint in violation of both Title VII and Tennessee law. The jury wasn't too generous though; it did not award Pittington any compensatory or punitive damages and only $10,000 in back pay, which was only about 25% of what Pittington requested. After the district court refused his motion to order a new trial on damages, Pittington appealed. The Sixth Circuit reversed and ordered the district court to revisit or retry the damages issue.
Pittington's proof at trial regarding backpay was not too specific. The defense attorney suggested to Pittington at trial that he had received a pay raise in defendant's employ to $10.50 per hour, although Pittington himself was not too sure about that. In any event, Pittington's lawyer argued to the jury using an hourly rate of $10.50 multiplied by 40 hours per week (the defense attorney, in addition to suggesting to Pittington that he got a pay raise, also solicited testimony that Pittington sometimes worked more than 40 hours per week) while deducting lesser wages that Pittington earned at other jobs between the time of his firing and trial for a total of $40,632.50. This was enough, the Sixth Circuit ruled, to establish Pigginton's backpay damages with sufficient reasonable certainty, which is all that is required.
The mistake made by the district court, the Court explained, was to assert that it was Pigginton's burden to show that he had acted diligently to mitigate his damages sustained by reason of the former employer's wrongdoing. The Court explained: "Such critiques were unfounded, as Pittington, did not bear the burden of producing evidence as to his efforts at mitigation." So the district court, Hon. Pamela Lynn Reeves of the Eastern District of Tennessee, blew the issue, going at it from exactly the wrong direction.
The defendant-employer failed, the Court explained further, to offer, as was its burden, "evidence indicating that substantially equivalent positions ... were available and that [Pigginton] failed to use reasonable care and diligence in seeking such positions." So it was the employer's burden to show Pigginton had unreasonably failed to mitigate the damage done by its wrongdoing, and merely suggesting criticisms by way of cross-examination was not enough.
Notwithstanding the Sixth Circuit's ruling, plaintiffs would be well-advised to present themselves evidence of how they labored to mitigate the harm done by the defendant's wrongdoing. Doing so, as a general matter, presents them as a hard-worker and serves to buttress a claim for compensatory damages for emotional distress and mental anguish. Pigginton's proof as to backpay was barely sufficient and only because the defendant's was nonexistent did Pigginton prevail in the Sixth Circuit. Notably, the jury awarded him no emotional distress damages.
An employee is wrongfully discharged under Kentucky law where a substantial factor for the termination is the employee's refusal to violate the law in the course of employment. This is an exception to the at-will employment doctrine that the Kentucky Supreme Court recognized in 1983 in the case of Firestone Textile v. Meadows, 666 S.W.2d 730 (Ky. 1983). In recent years, the notion had taken hold and been advanced in a number of federal district court rulings and non-precedential decisions by the Kentucky Court of Appeals. The Sixth Circuit rejected this argument recently in Alexander v. Eagle Mfg., which, alas, is itself a non-precedential decision.
The plaintiff, Alexander, became aware of allegedly fraudulent business practices going on by at least some employees at his company. He protested the actions and stated his intention to report them the following day to the company's human resources department. He was fired before he got a chance to do so. In response, Alexander contacted the HR department and explained why he'd been fired and later contacted the head of the company, all to no avail.
Alexander filed suit in federal court alleging a tort claim of wrongful discharge. The district court granted the employer's motion to dismiss.The basis for Alexander's claim was that he was discharged for refusing to violate various Kentucky laws – KRS 517.020 (deceptive business practices); KRS 517.050 (falsifying business records); KRS 514.040 (theft by deception) and several provisions of Kentucky's Uniform Commercial Code. The district court ruled that Alexander could not establish his wrongful discharge claim, because he was never affirmatively requested to violate any law.
Alexander argued that the basis for his claim was "that he witnessed unlawful activity within the company, objected to it, and proactively refuse to participate in it." The Sixth Circuit surveyed the case law and did not find that any precedential case had established an explicit request from the employer that the employee violate the law as an additional element for the tort of wrongful discharge in Kentucky. This is correct; there is no such case.
Therefore, the court concluded that an explicit request by the employer that the employee violate a law was not and would not be required under Kentucky law, explaining as follows:
Presumably, the policy behind this exception [to the doctrine of at-will employment] is to prevent an employee from having to choose between losing his job and breaking the law. The policy is implicated, of course, when an employer affirmatively requests that the employee violate the law. But it is also implicated when an employee learns of illegal activity and, although not directly invited to participate by his employer, knows he will inevitably become complicit in the illegality by performing his normal work responsibilities. We think it likely that the Kentucky Supreme Court would apply this exception to not only the former situation, but also the latter.
Unfortunately, however, for Alexander, none of this helped him, because it was not apparent from his complaint, according to the court, that he would have inevitably been forced to participate or become complicit in any illegal activity. Also, his complaint does not "plausibly suggest that the activity Alexander observed was anything more than an isolated incident. "In short, although his coworkers may have been engaging in illegal activity, Alexander, himself, was never affirmatively asked to violate the law, nor did his position make it inevitable that he would be forced to do so."
The Sixth Circuit did offer some meaningless solace to Alexander observing that his situation was "an inequity" and that "we do not condone Eagle's alleged conduct," while also encouraging the Kentucky General Assembly to enact a whistleblower statute that might be applicable to Alexander's situation.
Do not, repeat, do not hold your breath as to that last one.
Still, the Sixth Circuit does offer some coherent and helpful analysis of the wrongful discharge tort under Kentucky law.
in 2002, 404 civil jury trials were held; in 2016, there were 93 civil jury trials
in 2002, 2063 bench trials were conducted; in 2016 only 1,279
Kentucky's appeals court have seen concomitant declines:
in 1997, 1,662 civil appeals were filed in the Court of Appeals; in 2016, only 1,275
in the decade 1997-2006, the Kentucky Supreme Court granted discretionary review in 849 cases (84.9 per year), rendered full opinions in 3,059 cases (305.9 per year)
by contrast in the decade 2007-2016, the Court granted discretionary review in in 764 cases, and rendered full opinions in only 2,226 cases.
I don't really have a good explanation for this, although part of it is that the litigation process especially for individuals can seem eternal to the point that it renders pursuing a full remedy not truly feasible or sensible. By this I mean: there is true value in settling and concluding a case and moving on with their lives, rather than have it chained to them for another three to five years.
