Saturday, December 17, 2011

EEOC Dismisses Tax Employee’s Discrimination Claims

The Equal Employment Opportunity Commission dismissed the discrimination claims of a tax employee in Augusta, Georgia.   Nancy Mims, Caucasian, brought discrimination charge based on race and age against her former employer because she was terminated from her position by the Tax Commissioner, an African American male.

According to the Augusta Chronicle, Mims’ replacement received a salary increase of more than $9,000.  Other employees received promotions and raises in what the commissioner called department reorganization.

The article can be deceptive because it suggests that the EEOC found that Ms. Mims did not have a claim.  Actually, the conclusion that the EEOC reached in her case occurs in approximately 80-85% of the cases filed with the agency.   The EEOC’s response to Ms. Mims charge indicated that it could not determine whether she had a claim.  In other words, its response was neutral.  With the dismissal of Ms. Mims’ discrimination claims, the EEOC probably issued a right to sue letter and now she has 90 days to file a lawsuit in federal or state court.  There are cases that the EEOC choose to handle themselves, but those cases do not come across their desk everyday.

Please feel free to contact me with your questions on discrimination, harassment or other EEOC related claims at (813) 413-2402.

Friday, December 16, 2011

Tampa Family Law Judge Issues Warrant for Arrest of Millionaire

Circuit Judge Caroline Tesche issued a warrant for the arrest of a Bay area businessman for failure to pay child support and alimony.   According to a story reported in the Tampa Tribune, John Stanton owes his ex-wife and son $6.5 million in alimony and child support.   A hearing was held on Thursday, December 15, 2011, and Stanton failed to appear.

The paper reported that Stanton recently filed for bankruptcy protection, listing $10-50 million in liabilities and $100-500 million in assets.  His attorney argued that he is unable to pay alimony and child support because his assets are not liquid and cannot be converted to cash quickly.

Finding that Stanton has the ability to pay, Judge Tesche sentenced him to 5 months and 29 days for contempt of court.

This case is an example of the enforcement powers that courts possess when a party fails to honor their alimony and child support obligations.  The circumstances in this case were extreme resulting in the sentence.  If you have questions regarding alimony or child support, do not hesitate to call at (813) 413-2402.

Thursday, November 10, 2011

Employment Lessons from Penn State Case

It is hard to find the correct words surrounding what occurred at Penn State and the way  it was handled by Coach Joe Paterno and those around him.  To categorize the action taken by Coach Paterno as a mistake is a tremendous understatement.   It is terrible to see him go down like that, especially after he surpassed Coach Eddie Robinson’s record a few weeks ago.  That said the Penn State case highlights lessons for business owners and managers in the handling of complaints of harassment.  The following excerpts come from the Business Management Daily.
One HR lesson is obvious: Employers can never ignore reports of misconduct or harassment by employees against anyone—co-workers, clients or anyone on the premises.“It is not a defense for you to bury your organizational head in the sand and hope that it will all be gone when you emerge into the sunlight,” says attorney Jon Hyman, a partner with Kohrman Jackson & Krantz in Cleveland … But at what point does harassment cross the line into something more serious (like assault) that requires an employer to call to the police? When should you—or must you—make that call?“’Should’ is a broader answer than ‘must,’” says Hyman. “When children are involved, as in the Penn State story, moral obligations far outweigh legal obligations. Employees should put themselves in the shoes of victim’s family.”

Friday, October 14, 2011

Do I Have a Case of Age Discrimination

Do I Have a Case of Age Discrimination What is age discrimination? Some have heard of it, but what does it look like? It goes without saying that these cases are difficult to prove because the plaintiff carries the burden of intent to discriminate. Every now and then, a case will come along that – albeit stressful for the employee – is a dream for a plaintiff’s attorney. This evening I came across the following quote “We are looking for people on the younger side.”

If true, I think the owners, in this case the Texas Roadhouse Restaurant, better pull out their check book. Although the plaintiff in the Texas Roadhouse case has the proverbial smoking gun, she still has some hurdles to overcome to prevail in court or obtain a settlement. Generally, an age discrimination plaintiff in a failure to hire case must prove: 1) that she was over the age of 40; 2) that she applied for the job and the job was open; 3) that she was denied the position; 4) that she possessed the minimum qualifications for the job; 5) that she was not hired; and the job remained open or someone younger received the job.

Unfortunately, many employees who experience discrimination do not complain. Any employee who suspects that an employer discriminated against him or her, should contact a qualified labor and employment attorney.

Tuesday, September 13, 2011

EEOC Files Disability Discrimination Lawsuit for Deaf Employee

The Equal Employment Opportunity Commission (“EEOC”) recently filed a lawsuit against the catalog company Oshkosh alleging discrimination against a deaf employee.  According to the lawsuit, the employee, who worked for the company for 13 years, was assigned to use a new software program.  Her request for training on the program in sign language was turned down.  Approximately a year later, the company fired her.  Among other things, she is seeking to recover lost wages.  See EEOC: Wisconsin Company Discriminated Against Deaf Worker.

In 1992, Congress passed the Americans with Disabilities Act to help eliminate discrimination against people with disabilities.  In 2008, the ADA was amended to expand the reach of the ADA.  In Florida, similar protections are available under the Florida Civil Rights Act.   In the context of employment law, the ADA states that in making hiring and employment decisions, it is illegal to discriminate against anyone because of disability.  To prove his case, an ADA plaintiff must show that he/she has a disability as defined by the statute, that he was qualified for the position in question, that an adverse decision was made – i.e., refused employment, discharged, not promoted - and that his disability was a substantial or motivating factor that prompted the employer to take action.  On the other hand, an employer can present defenses to prove that disability was not at issue.

Anyone who believes they experienced discrimination as a result of their disability should contact a labor and employment attorney to evaluate the strength of their claims.  If you have specific questions about disability discrimination, do not hesitate to contact Rich Bradford at (813) 413-2402.  Bradford & Bradford's practice areas include, Wills, Trusts, Probate, Estate Planning, Civil Litigation, Employment Law and Family Law.   

Tuesday, May 17, 2011

Male Restaurant Employee Escapes Summary Judgment in Harassment Case

A Tampa man filed a lawsuit against a local International House of Pancakes or IHOP for damages related to sexual harassment. He claimed that while working at IHOP as a cook, a female co-worker grabbed his genitals. He further claimed that the restaurant manager witnessed the incident. Additionally, he claimed that his co-worker grabbed him on one other occasion. His lawsuit was filed under Title VII of the Civil Rights Act and the Florida Civil Rights Act. In the lawsuit, he sought compensatory damages for emotional pain and suffering and humiliation.

At the close of discovery, the restaurant moved for summary judgment. Among other things, IHOP argued that the harassment was not sufficiently severe and pervasive to support a claim of hostile work environment sexual harassment. IHOP also argued that even if the harassment were severe and pervasive, it had taken prompt remedial action when it learned of the harassment.

The Court disagreed and denied the motion for summary judgment. The Court ruled that:

Although the frequency of the conduct was only twice, the severity of the conduct is far greater. The conduct in this case was physically threatening and humiliating, unlike the myriad of cases that involve “brushing” or “touching.” Grabbing the crotch area of either sex certainly conveys a message that extends beyond workplace crudity, which, in large part under the case law, requires one to ignore.

The Court further ruled that a fact issue existed as to whether the restaurant exercised reasonable care and corrected the sexually harassing behavior in a timely manner, thus avoiding vicarious liability. Because the Court denied summary judgment, the employee could have presented his case to a jury. See court's decision here.

This case highlights a number of lessons for employers. Employers must have an anti-harassment policy in place that allows employees to report instances of harassment. Next, employers must ensure that all employees are aware of the policy. Also, management must know how to respond to allegations of harassment and investigations must be well documented.

As a side note, a couple of years ago the EEOC reported that restaurants were the single largest source of sexual harassment claims. I am not surprised.

Any employee who feels that he/she is being harassed should be familiar with the company policy and know who to contact to stop the harassment. Employees should understand that what they may perceive to be sexual harassment, may not be sexual harassment in the eyes of a court. To be clear on these issues an employee should consult with qualified labor and employment counsel.

If you have any questions about harassment or other employment law issues, give me a call at (813) 413-2402. Bradford & Bradford's practice areas include, Wills, Trusts, Probate, Estate Planning, Civil Litigation, Employment Law, and Family Law.

Saturday, April 30, 2011

Tampa Bay Business Journal Reports Increase in Retaliation Claims

Yesterday the Tampa Bay Business Journal reported that there has been an increase in retaliation charges with the Equal Employment Opportunity Commission (EEOC). The report noted that in 2010, 36.3% of the charges filed with the EEOC involved claims of retaliation. This compares with 29.5% of the charges included claims of retaliation. The EEOC reported that there were more retaliation claims in 2010 than race, sex, national origin, age, or disability discrimination claims.

In its report, the Business Journal interviewed Georgia Marchbanks, the new director of the EEOC’s Tampa Field Office who stated:

Part of the problem occurs when an employee files a discrimination claim that may have no merit. Supervisors tend to get angry and subconsciously or consciously treat the employee differently.

Marchbanks added that employers should properly train first line managers to avoid retaliation claims.

Retaliation occurs far too often. Again, the employee believes that he is being subjected to discrimination or harassment and complains to management or human resources. Next, the employee, who by the way has strong evaluations and never experienced disciplinary action, is receiving counseling statements on a regular basis. Eventually, this stellar employee is fired with his co-workers scratching their heads.

Retaliation claims can be very dangerous for an employer. Discrimination and harassment claims are difficult to prove given the possibility of summary judgment. If retaliation is present, an employee can breath life into a lawsuit that otherwise would have been dismissed if the employee pleaded the case solely as a discrimination or harassment action.

For specific questions on Labor and Employment Law, please call at (813) 413-2402. Bradford & Bradford's practice areas include, Wills, Trusts, Probate, Estate Planning, Civil Litigation, Employment Law, and Family Law.