The Inbox - February 15, 2013

This week in suits by suits:

• St. Louis-based Reliance Bank founder Jerry Von Rohr sued the bank for more than $400,000 in back pay and benefits, seeking a declaratory judgment that the bank is not prohibited from paying his severance package under the federal government's Troubled Asset Relief Program (TARP), which otherwise limits payments of so-called "golden parachutes."
• Maximillian Coreth, former managing director for Lehman Brothers, appealed a bankruptcy court's dismissal of his $19.6 million breach of contract lawsuit against Barlcays Capital Inc. to the U.S. Court of Appeals for the 2nd Circuit.  Coreth is arguing that Barclays assumed the obligations under his employment contract with Lehman Brothers when Barclays purchased Lehman Brothers in September of 2008.  Barclays successfully argued to the bankruptcy court and the U.S. district court that its Asset Purchase Agreement did not grant third-party beneficiaries any rights.  We'll discuss this case (and these important issues) in depth in the coming days.
• A federal district court judge split the baby in a lawsuit brought by former Detective William Hawkins against the Washington, D.C. Metropolitan Police Department, upholding the Department's general policy regarding its employees' disclosures of information to the media under the First Amendment, but found that the policy was unconstitutional as applied to Hawkins when he was disciplined for speaking to the Washington Post in 2009.
• A Texas state appellate court held that the architectural firm Nortex Foundation Designs, Inc. of Fort Worth, Texas wrongfully terminated a draftsman, Adam Young, who objected to copying designs that he felt infringed upon others' copyrights, holding that Young could not be fired for refusing to follow orders for which he had a "good faith belief" to be criminal.
• In a pair of excellent articles we think will be of interest to many of our readers, the Harvard Law School Forum on Corporate Governance and Financial Regulation (1) tackled the critical question:  "How Costly Is Corporate Bankruptcy for Top Executives?" and (2) hosted a survey piece by Richard J. Sandler, a partner at Davis Polk, entitled "Recent Developments in Executive Compensation Litigation."  Both are well worth a read.
• A former schoolteacher, Teresa Kemmer, has sued the Cumberland, Tennessee County Board of Education in federal court, alleging sexual harassment and retaliation pursuant to Title VII of the Civil Rights Act of 1964.  Ms. Kemmer's complaint alleges, among other things, that after she reported the alleged harassment to her supervisor, she requested to transfer schools but was told "that if she wanted a job she needed to stay where she was."
• Finally, here's one that's just bizarre.  In October of 2012, Oxbow Carbon executive Kirby Martensen filed a federal lawsuit against his former employer billionaire William Koch; he's supposedly the "quiet" one, unlike his more high-profile brothers Charles and David (although William donated $2 million to a Republican Presidential candidate Mitt Romney's "Restore Our Future" SuperPAC in 2012).  Martensen's lawsuit alleges that Koch kidnapped him, imprisoned him at Bear Ranch in Aspen, Colorado, and interrogated him in the company of a Gunnison County deputy allegedly on hand to "make sure he didn't run away."  Koch is back in the news after having filed a motion to dismiss in mid-January of this year; Martensen says that local police officers support his version of events.  You can bet we'll continue to monitor this case.

Is A Bad Job Interview Evidence Of Discrimination? (Part 1)‎

A necessary part of life that no one particularly enjoys is the job interview: it’s tricky for the interviewee and taxing for the interviewer.  Unless the interviewer gets a thrill out of asking why manhole covers are round or testing the applicant’s knowledge of medieval saints. 

We’ve written about questions that shouldn’t be asked on interviews, because they can suggest a discriminatory basis for the employer’s failure to hire the job applicant.  But can an interview that doesn’t include potentially discriminatory questions – just the failure to hire the applicant after the interview itself – provide the basis for the rejected applicant to allege discrimination?    

Hiring executives may be interested to know the answer to this question, which was the central issue in an opinion in Hill v. Virginia Department of Transportation, released by a federal court in Virginia at the end of January.  Read More ›

Iowan Dentist's Firing of Assistant Because of Her Perceived Threat to His Marriage Was Not Unlawful Gender Discrimination, But Was it Unlawful Sexual Harassment?

Between baking cookies, assembling toys and driving to the in-laws, you may have missed the Iowa Supreme Court’s decision on December 21 that a male dentist was not liable to his former female assistant of ten-and-a-half years – admittedly the best assistant he ever had – for gender discrimination.  The dentist fired the assistant after:  he complained that her clothing was too tight, he told her that she would know her clothes were too revealing if she saw his pants bulging, he texted her to ask how often she experienced an orgasm, he observed that the apparent infrequency in the assistant’s sex life was “like having a Lamborghini in the garage and never driving it,” and he was confronted by his wife, who believed the assistant was a “big threat” to the dentist and wife’s marriage and demanded that the assistant be terminated, which he then did by reading a prepared statement to the assistant in the presence of his church pastor.   Read More ›

Virginia Is For... Plaintiffs? Virginia's Supreme Court Finds Managers, Supervisors May Be Personally Liable for Firing an Employee

On Thursday, a 4-3 majority of the Virginia Supreme Court held in VanBuren v. Grubb that individuals such as supervisors or managers could be sued as individuals and held personally liable for the common law tort of wrongful termination (also known as wrongful discharge) in addition to whatever corporate liability the employer may have.

As a practical matter, this gives plaintiffs and their lawyers additional leverage when bringing suits that contain a cause of action for wrongful termination in Virginia by being able to name the former employee’s boss as a co-defendant.  From the boss's perspective, this decision means that you, personally, could be named as a defendant and ultimately forced to satisfy a judgment for improperly firing an employee from your own pockets -- not just your company's.  It also means that employers and their executives who operate in Virginia need to review their D&O insurance coverage with this potential exposure in mind.

In short:  whether you're an executive or an employer, you need to know about this case and its implications on the employment relationship. Read More ›

Managers v. Dollar Tree Stores - A Tale of Two Cases with Four Lessons About Pay Discrimination Claims Under Title VII and The Equal Pay Act

Here’s the tale of  two cases with four lessons about Title VII and the Equal Pay Act when it comes to claims that an employer (in this case, Dollar Tree Stores) pays employees (in this case, Dollar Tree Store Managers) less because of their gender.  As we’ve said previously, claims for pay discrimination can be brought under both laws. 

The first case was filed in 2008 in federal court in Alabama by Cynthia Ann Collins and Beryl Dauzat against Dollar Tree alleging that the company violated the Equal Pay Act by paying them and other female Store Managers less compensation than male Store Managers doing the same work.  In 2009, the court certified an opt-in collective action under Section 216(b) of the Fair Labor Standards Act (or, the “FLSA,” of which the Equal Pay Act is a part), allowing all women who were classified as Store Managers for Dollar Tree between 2006 and 2009 to join the lawsuit.  Under the court’s order, notice of the lawsuit was sent to all Dollar Tree Store Managers employed by the company between 2006 and 2009.  To join the lawsuit, a woman would have to complete and sign a form and send it to the court no later than the deadline expressly consenting to become a party to the lawsuit and authorizing the named plaintiffs and their counsel to act as her agents in prosecuting her Equal Pay Act claims against Dollar Tree.  About 350 women joined the lawsuit. Read More ›

The Inbox

This week's latest in Suits by Suits:

• A trombonist and former leader of the Glenn Miller Orchestra is in the mood for some litigation.  Gary Tole, who is white, has sued the orchestra’s production company claiming that he was fired in retaliation for him promoting and hiring African Americans and Hispanics.  Among other things, Tole alleges that the president of the company questioned his hiring of two African American musicians, saying at the time to Tole that “[T]his is the Glenn Miller Orchestra, not the Count Basie Orchestra,” or words to that effect.

The Lilly Ledbetter Fair Pay Act Basics

When we promised yesterday that we would have more on the Lilly Ledbetter Fair Pay Act of 2009 later this week, we hadn’t realized that Ms. Ledbetter would be speaking to the Democratic National Convention about it last night.  As Ms. Ledbetter reminded the crowd last night, the law named after her was the first bill that President Obama signed into law. 

In a nutshell, the Ledbetter Act was Congress’s response to the U.S. Supreme Court’s holding in Ledbetter v. Goodyear Tire & Rubber Co., Inc., that Ms. Ledbetter, a nearly 20-year employee of Goodyear, did not timely file an EEOC charge against Goodyear alleging that, in violation of Title VII, Goodyear paid her less because of her gender. Read More ›

Texas Supreme Court Says that the Lilly Ledbetter Fair Pay Act Didn't Change Texas Law

On Friday, the Texas Supreme Court dismissed a suit brought by Dr. Diljit K. Chatha, a professor at Prairie View A&M University, against the University (there was a dissenting opinion). 

Dr. Chatha, who is of Indian national origin, claimed that she was paid less than other professors because of her race and nationality.   The Texas Supreme Court found that Dr. Chatha’s claims were “jurisdictionally barred” because she did not file a complaint under the Texas Commission on Human Rights Act (TCHRA) within 180 days of the University promoting her to full professor in 2004, which was when Dr. Chatha was informed of the University’s allegedly discriminatory pay decision.  Instead, Dr. Chatha filed the complaint about two years later. Read More ›

‎“Wow, all these pregnant girls, what are we going to do with them?”‎

For the second time during this quiet week in late August, pregnancy is in the headlines. 

The first time, of course, involved Rep. Todd Akin, a candidate for the U.S. Senate from Missouri who claimed – and then swiftly retracted – that women who are “legitimately raped” don’t get pregnant.  That’s led pregnancy – and abortion politics – to dominate news coverage. 

But here’s another story with pregnancy at its core: this week, a federal judge in Manhattan ruled that a former buyer for fashion house Gucci can move forward with her case alleging that the luxury-goods company fired her after she became pregnant.  Read More ›

Religious Accommodation Under Title VII: Is It The Happiest Place On Earth If You Can’t Wear Your Hijab?

We continue our examination of the many things today's CEOs need to keep in mind -- things they may not have taught in business school.  Today, it's the sometimes hot-button issue of the role of religion in the workplace, this time with a look at a recently-filed lawsuit that’s drawn considerable public attention.  (See also here and here.)

Now, most businesses have some sort of dress code, including Zuckerman Spaeder.  When a company’s employees routinely interact with customers and the public – say, a retail store or restaurant – many employers go beyond a simple dress code in an effort to establish a company-wide uniform “look.”  Perhaps no place on earth goes quite as far as Disneyland, where employees are considered “cast members” and – even when not dressed as a giant cartoon mouse – are asked to reflect certain “themes” throughout the park.

So what happens when one of those “cast members,” a young Muslim woman working as a hostess at a Disney café, requests the right to wear a hijab, the traditional Muslim headscarf? Read More ›