As expected, Law360 reports this morning that Plaintiff Alexandra Marchuk has asked Judge Alvin Hellerstein to reconsider his ruling that Nadeem Faruqi and Lubna Faruqi, co-founders of the New York law firm Faruqi & Faruqi, be dismissed from her lawsuit as individual defendants. She also requested reconsideration of the court’s decision granting judgment to the defendants on her retaliation and defamation claims. According to the report, the case is expected to go to the jury on Monday.
I was disappointed earlier this week to see a consultant quoted in an otherwise good article in the Wall Street Journal – “Employee Theft Often Leads Small Firms to Make Bad Choices” — as advising the “bogus RIF” strategy with employees who are suspected of theft.
Talk about bad choices!
What’s the “bogus RIF” strategy? That’s when you’re really firing an employee but don’t want to admit it, so you call it a “RIF,” or a “layoff,” or a “job elimination.”
This is a terrible idea, but employers often want to do it — partly out of a desire to be kind to the employee being terminated, and partly out of an understandable desire to avoid conflict.
The defense completed its case yesterday at the trial of Alexandra Marchuk’s sexual harassment claims against the New York City law firm of Faruqi & Faruqi and partner Juan Monteverde. Prior coverage of the trial is available here, here, here, and here.
Yesterday, Mr. Monteverde testified more about the blood-stained carpet, saying he had not noticed the stains until Ms. Marchuk told him the following Monday that she had been injured during their sexual encounter in the wee hours after the firm holiday party in December 2011. Mr. Monteverde then noticed the stains, panicked, and, without verifying that they were blood stains, poured black coffee over them to cover them up.
January 27 at the Marchuk v. Faruqi sexual harassment trial: Judge Alvin Hellerstein has denied Alexandra Marchuk’s request for an adverse inference instruction based on Faruqi’s destruction of the alleged blood-stained carpet in Juan Monteverde’s office. Judge Hellerstein noted that Ms. Marchuk admitted in her trial testimony that she asked Mr. Monteverde to hide the stains. (The law firm denies that the stains were blood at all.) According to Judge Hellerstein,
“A party who participates in the destruction of evidence cannot later complain that the very evidence she helped destroy is not available for her to use at trial.”
Words to live by. Judge Hellerstein’s Order was actually issued on Monday. I haven’t yet been able to get any information about Tuesday’s proceedings, but I will update this post if and when I find anything out. I believe the trial may have adjourned until next week because the judge had a prior commitment.
NOTE: Thanks to an attorney reader, who suggested last week that I put my Faruqi trial updates in separate posts to make it easier for people to find them on Google and other search engines. I thought that was a good idea, so I’ll do that with my remaining posts. (Testimony is supposed to wrap up this week, and possibly today.) Prior coverage is available here and here.
PARENTAL ADVISORY: This is testimony in a sexual harassment case, so it’s necessarily NSFW (Not Suitable For Work. Unless you’re an employment lawyer or HR professional, in which case it’s AIADW (All In A Day’s Work).) Seriously, I’m going to use euphemisms wherever I can, but be warned that you still may find the following offensive.
Juan Monteverde, the rainmaking partner who allegedly sexually harassed brand-new associate Alexandra Marchuk, testified yesterday about the 3 a.m. “encounter” after the firm holiday party in 2011. Mr. Monteverde denied having sexual intercourse with Ms. Marchuk, saying he’d had 8-10 drinks that night and was too drunk to rise to the occasion. Nonetheless, Ms. Marchuk would not take no for an answer, according to Mr. Monteverde, at one point undressing and arraying herself in the nude on his office floor. Mr. Monteverde testified that Ms. Marchuk eventually did perform oral sex on him. He also admitted to making inappropriate jokes at work about a legal adversary named “B.J. Warehouse.” (Do I really have to tell you what about?)
Ms. Marchuk’s attorneys are seeking an “adverse inference” instruction about the carpet in Mr. Monteverde’s office. As I’ve previously reported, there was allegedly blood on his carpet as a result of the 3 a.m. “encounter.” Mr. Monteverde asked his office manager to clean the carpet the next day, and when her efforts to scrub it out failed, they called a professional who used a power washer. In 2013, Mr. Monteverde’s carpet was replaced completely, but no one else’s carpet was. Ms. Marchuk’s attorneys say that the carpet replacement, done after the lawsuit had been filed, constitutes spoliation of evidence.
Attorneys for the law firm say that Ms. Marchuk is the one who suggested on the night of the “encounter” that Mr. Monteverde “spill” coffee over the stain to cover it up. They also say that Ms. Marchuk was the one who said that the stain was blood. (I’m still not sure why Ms. Marchuk would have thought the carpet was stained with blood if you believe Mr. Monteverde’s story, but anyway.) The office manager testified last week that she thought it was a coffee stain based on what Mr. Monteverde had told her the following day. She also testified that the carpet was replaced in 2013 only because Mr. Monteverde scooted his chair across it too much, wearing it out.
The judge has not made a ruling on the spoliation issue yet.
While you’re eating this dessert, I will slip in your vegetables: The spoliation issue in this case is a good reminder that spoliation does not apply only to electronic evidence like emails, or even documents, but also to “brick and mortar” evidence, like blood-stained carpets.
Thanks as always to Law360 (paid subscription required) for providing such excellent daily coverage of this trial.
Image credit: Flickr, Creative Commons license, by E M.
Last October, I posted about a consent decree entered into between Wal-Mart and the Equal Employment Opportunity Commission, in which Wal-Mart agreed to pay $72,500 to candidate for a store job in Maryland whose offer was withdrawn because she couldn’t undergo a urine test for drugs.
Now, Kmart has been hit, too, in a case involving almost identical facts at one of its stores in Maryland. Kmart has agreed to pay $102,000 and modify its drug testing policy to specifically provide for reasonable accommodations.
According to a lawsuit filed by the EEOC, Lorenzo Cook had kidney failure and could not produce a urine specimen for testing because of the disease and because he undergoes dialysis. He offered to be tested by some other method, including hair or blood. Two weeks later, Kmart told him the testing method had to be urinalysis and withdrew the job offer.
After Mr. Cook filed an EEOC charge, the EEOC filed suit on his behalf, alleging that Kmart violated the Americans with Disabilities Act by failing to engage in the “interactive process” and summarily denying his request for accommodation. The consent decree resolves the lawsuit.
Under the Consent Decree, Kmart agrees to post a revised policy on the company’s electronic recruiting and hiring system, spell out the company’s obligation to provide reasonable accommodations to employees or applicants in its alcohol and drug testing program, the accommodation process, and the person to whom a request should be directed. Kmart will also post a notice saying that it will comply with the ADA.
Common Sense Counsel: The ADA reasonable accommodation obligation applies not only to employment but also to the recruiting, application, and hiring process. If you test for drugs or alcohol, you should make sure that your policy provides for reasonable accommodation and, more importantly, that the people who make job offers and who administer the testing are familiar with ADA reasonable accommodation obligations. (If you are governed by another federal regulation, like the Department of Transportation regulations, you must comply with the latter, but you still have to make reasonable accommodations to the extent that the accommodations don’t violate your other obligations.)
Image credit: Flickr, Creative Commons license, by Hey Paul Studios.
As an employer, what can you do to protect yourself when one employee claims severe sexual harassment and the other party denies it or claims it was all consensual?
The Marchuk v. Faruqi & Faruqi trial (daily updates here) is far from over, but that case, as well as one involving CRST Van Expedited in California, provide some valuable opportunities for us to learn from other employers’ mistakes.
THE CASES IN A NUTSHELL
First, a quick recap of what each of these cases is about:
“I Have a Dream,” in its entirety. This is about 17 minutes long, but it’s well worth the time if you haven’t heard it in a while, or if you have never heard it as it was actually delivered in 1963.
Thank you, Dr. King. May you rest in peace.
The Supreme Court decided today to review the right of states to ban same-sex marriage. The Court granted certiorari in four cases, all from the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee), whose U.S. Court of Appeals had upheld state bans. Here are the issues on which the Court will hear argument:
1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
More information is available on the excellent SCOTUSblog. Oral argument is expected in the spring, and a decision sometime in June.
Guess what? You know those SEC disclosures about pending litigation that publicly held companies are required by law to make? Well, if an employer says too much, it may be “retaliating” against the litigants.
I am not making this up. International Monetary Systems, Ltd., is facing a jury trial on a retaliation claim made by a former employee. The company is going to trial because it listed the plaintiff by name on the disclosures that it was required to file by the Securities and Exchange Commission. The IMS disclosures named the plaintiff (then a charging party), and said that her EEOC charge was “meritless” and that the company “would vigorously defend.”
Plaintiff Celia Greengrass, now a real estate agent in Albuquerque, worked as an account executive for IMS in 2007 and made an internal complaint about alleged harassment by a manager. Not long after this, she quit, and she filed a charge with the Equal Employment Opportunity Commission alleging sex and national origin discrimination, and retaliation.
In March 2008, about two months after Ms. Greengrass filed her EEOC charge, the company was due to make its annual SEC filings, which require disclosure of “any material legal proceedings, including the principal parties, facts giving rise to the proceeding, and the relief sought.” (Emphasis is mine.) The chief financial officer consulted with an outside firm about whether to disclose Ms. Greengrass’s charge. Details of the consultation are not included in the court’s opinion, but the company did not disclose the charge at all, presumably because it was not thought at that time to be “material.” The company’s quarterly SEC disclosures filed for periods ending March 31 and June 30, 2008, disclosed pending matters but did not identify any parties.