Why do we hate us? Women prefer working for men, study says

Posted by Robin E. Shea on October 28, 2011

Assistant with boss.jpgDon't these people look happy?

I shouldn't touch this poll with a 10-foot pole, but I just can't help myself.

According to a study recently reported in the ABA Journal, a large percentage of legal assistants prefer working for men (35 percent for male partners, and 15 percent for male associates), and 47 percent had no preference. For those of you who are math-challenged,

35 + 15 + 47 = 97 percent.

100 - 97 = 3 percent.

Yes, that leaves 3 percent. Only 3 percent preferred working for a woman, and she had to be an associate. No one preferred working for a female partner.

Ouch, baby. Very ouch.

I am sure that none of this applies to me, so I was able to read the comments in a very unemotional, non-detail-oriented, manner -- almost as if I were a guy. According to the assistants who were surveyed, women are too emotional, too detail-oriented, demeaning to clerical employees, have too much to prove, and -- don't need their assistants enough. (That last one cracked me up.)

The professor who conducted the study was quick to point out that the assistants' own sex biases may be playing a role in this. She also noted that male partners are still in charge, and that female lawyers do still sometimes have to "prove" themselves in a way that male lawyers do not.

At the same time, I would not be surprised if some fundamental differences between men and women contributed to (caused?) this result.

OK, I'm shutting up now. What do you think? No need to restrict yourself to the legal profession. Do you think that men and women generally prefer working for men, and why do you think that is?

NOTE TO MY ASSISTANT: If you decide to comment, please be sure to say I am the most awesome boss you ever had, notwithstanding my gender!  :-)   

PHYSICIAN, HEAL THYSELF! Good lessons for employers from AMA case

Posted by Robin E. Shea on October 19, 2011

It could be that the purpose of your life is only to serve as a warning to others.

In any event, that must be what the American Medical Association is thinking. The organization took it on the chin this week in a case involving the Family and Medical Leave Act.300px-The_Anatomy_Lesson.jpg

The case is well worth a post-mortem because of what it teaches employers about "causation" in retaliation and protected concerted activity cases.

Names have been changed to protect the allegedly* guilty.

*Even though the AMA lost a battle with this decision, it has not lost the war. The court found that summary judgment should not have been granted, but that means that the case will be tried before a jury. A jury might side with the plaintiff, but it might also side with the AMA.

Here's what happened:

The AMA, like just about every other employer, suffered from the economic downturn in 2008, and a manager -- we'll call him Dr. Pepper -- was told to reduce costs. Eventually it was determined that he was going to have to eliminate one position.

(One more disclaimer before I go on. Despite my fictional "doctor" names, none of the individuals actually involved in this case were physicians, as far as I can tell.)

Dr. Pepper chose an individual to eliminate -- we'll call him Dr. Seuss -- and sent an email to his boss informing her that he had chosen Seuss, and the rationale for selecting him. The gist of the rationale was that most of Seuss's work was going away anyway, so it made the most sense to eliminate his position.

Dr. Pepper's boss -- we'll call her Dr. Scholl -- sent him a reply asking whether the plaintiff, Dr. Dre, should have been eliminated along with Seuss. Pepper replied no, because he did not think it would be wise to eliminate any more positions than absolutely necessary. Scholl apparently was cool with this answer. This all happened in late October 2008.

So, we get to November 20 at a conference. Dr. Dre was there with Dr. Pepper. Dre told Pepper that he was going to have surgery on his knee in January, would be out of work for a few weeks, and was going to apply for short-term disability.

I hope you've stayed with me, because now it gets interesting.

Ten days after this conversation, on Sunday night of Thanksgiving weekend, Dr. Pepper sent an email to Dr. Scholl, apologizing for his "11th hour" change in decision, and telling her that he now wanted to eliminate Dr. Dre instead of Dr. Seuss. Among other things, Pepper said that they could more easily weather the loss of Dre because they were preparing for him to go out on disability anyway.

Poor Dr. Dre was terminated in January, and he hired a lawyer, and his lawyer sent a nasty letter to the AMA in February. The AMA's in-house attorney informed the organization's HR representative about the threatened litigation. We'll call the HR rep Dr. Bombay. (Nowadays, should that be Dr. Mumbai?)

It turns out that Dr. Bombay and Dr. Pepper had discussed the decision to terminate Dr. Dre back in November and that Bombay had taken handwritten notes. Upon learning of the threatened litigation the following February, Bombay typed up his notes and shredded his original handwritten notes, and he dated the typed notes "November 25, 2008," even though it was now February 2009.

Hmmmmm! Verrrrrrry interesting.

But, wait! There's more!

It turned out that Dr. Pepper's calendar didn't show a meeting with Dr. Bombay on November 25, and Pepper didn't remember having had one. Even worse, he testified that he didn't decide to eliminate Dr. Dre until after that date. All this made Bombay's backdating look even more dishonest.

In May 2009, the AMA eliminated about 100 more employees, including Dr. Seuss, the person Dr. Pepper had originally planned to eliminate. Apparently this was enough for a district court to grant summary judgment to the AMA. (I know! I'm not sure how that happened, either.)

But the U.S. Court of Appeals for the Seventh Circuit, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, reversed, which means that Dr. Dre will be allowed to take his FMLA "interference" and retaliation claims* to trial.

*FMLA "interference" is simply a denial of FMLA leave to someone who is entitled to it, or doing something to discourage the individual from taking FMLA leave. It does not require a bad motive on the part of the employer and can even be based on a mistake or misunderstanding. In the case of FMLA retaliation, the employer "punishes" the employee for requesting or taking FMLA leave. Proof of the employer's unlawful motive is required for a retaliation claim.

So, let's make the usual Y-shaped incision and see what lessons can we learn from our "autopsy" of this case.

1. Timing is really, really important. On October 28, Dr. Pepper told his boss that Seuss should be eliminated, and he gave a good reason for the selection. He also told her that he thought it would be unwise to eliminate anyone else, and specifically Dre. On November 20, Dre informed Pepper that he would need to take FMLA leave in January. Within 10 days, Pepper reversed his RIF decision and recommended that Dre be eliminated instead of Seuss. Whatever Dr. Pepper's actual motive, this timing looks quite damning, doesn't it? The Seventh Circuit thought so, too.

2. Mentioning the FMLA leave in the poorly-timed email was not cool. In Dr. Pepper's "11th-hour" email, he said that the department could adjust easily to Dr. Dre's elimination because they were already preparing for his medical leave. Yes, I know there could be an innocent explanation for this: Pepper wasn't giving that as his motivation, he was simply giving his opinion about the effect of the decision. But this statement, especially when considered along with everything else, helps to make it look like the FMLA leave request was the reason for the selection.

3. Backdating documents is really not cool. Here's what I always tell clients: It's fine to document an event after the fact, even long after the fact, and I strongly recommend it if you didn't document at the time. But never, ever, ever, ever, ever, ever, ever in a million zillion years backdate it -- unless you are sure that the backdating is "transparent" (for example, drawing a line through the current date so that the original date is still visible, or saying something like "Created 10/22/11 based on event that occurred 6/1/11."). Any other kind of backdating looks dishonest and, as the Seventh Circuit noted, is more evidence that the employer may have had an unlawful motive and was trying to cover its tracks.

4. Destroying handwritten notes upon learning of threatened litigation (aka "spoliation") is the uncoolest of all. If you're not expecting litigation and don't have reason to expect it, then you can create a "draft" document and destroy the draft after creating the "final" version. But once you either become aware of litigation or have reason to expect it, your right to do this is gone. You must save all of your relevant documentation. Dr. Bombay, the HR representative who destroyed his handwritten notes after learning of the threat of a lawsuit, committed "spoliation," whether he realized it was wrong or not. As a result, when the case goes to trial, the judge may instruct the jury that the notes would have been favorable to Dr. Dre's case.

5. To err is human: be willing to cut your losses if you messed up, or if it will look like you messed up even if you didn't. In this case, it appears that Dr. Dre would have survived at the AMA only about 5 more months if Pepper had stuck with his original plan to eliminate Seuss in January. The undisputed evidence showed that the AMA had a massive reduction in May, and it probably would have included Dre if he'd still been around. Damages under the FMLA are limited to so-called "make-whole" relief (essentially, back pay, back benefits, costs and attorneys' fees, possibly doubled in the case of a willful violation). Even assuming the AMA might have been on the hook for a "willful" violation, it probably had a strong argument that it would not have owed much more than 10 months' pay to Dre, plus his costs and fees. Given that, it might have made economic sense for the AMA to have settled the case in mediation. (Please note that mediations are confidential, so it is very possible that the AMA tried to do just that.)

I was tempted to end this post with a rap about Dr. Dre, the AMA, the FMLA, the month of May, Dr. Bombay, and "anyway." Then I thought better of it. You're welcome.

5 reasons for employers to "hold their fire" on dismissal of employment suits

Posted by Robin E. Shea on October 14, 2011

As they said at Bunker Hill, "Don't fire until you see the whites of their eyes!"

Last week, I wrote about early motions to dismiss employment lawsuits under Rule 12(b)(6) and questioned whether they were always the best strategy for the employer. Most of last week's post simply described the differences between a motion to dismiss, a motion for summary judgment, and a trial, as background for the benefit of our readers who are not lawyers.

Battle of Bunker Hill.gifAs noted in a comment by Philip Miles of Lawffice Space (great blog, by the way, and well worth a visit), there is no question that a judicious motion to dismiss an employment lawsuit may be a good idea. If it works, of course, it is by far the least expensive option because it allows you to end the lawsuit at the earliest possible point. (Big "if," unfortunately, but we can dream, can't we?)

I'd give a motion to dismiss serious consideration in these circumstances:

*As Philip points out, even if you can't get the entire lawsuit thrown out, you can narrow the case down to the "real" issues by getting the "trash" claims dismissed. Plaintiffs often throw the kitchen sink at the defendant, and a "surgical" motion to dismiss will allow everyone to focus on the part of the lawsuit that is serious.

*Sometimes it will be crystal clear from the allegations of the complaint that the claim is baloney ("I was fired because I'm a woman. I got caught stealing, but males who didn't steal were not terminated") or is outside the statute of limitations ("Twenty years ago, the company fired me because of my race"). Why don't we get lawsuits like this more often?

*Sometimes it's a good strategy for pragmatic reasons -- maybe your case has some problems (for example, hostile witnesses, lack of documentation, or poor handling of the situation that led to the lawsuit), and it's worth trying an early motion to dismiss to avoid all that.

*Or maybe you just want the plaintiff's lawyer to know that your company isn't an easy mark for lawsuits and that she'll have to work for her money. You need to be careful about this motive, though -- you may be opening yourself up to sanctions if you don't have a strong legal ground for the motion.

In short, I'm not 100% opposed to a motion to dismiss, and I have been known to file them occasionally myself. That having been said, I think defense lawyers frequently overuse them, and I'd like to give you five reasons why an early motion to dismiss is not always in your best interests as an employer.

Reason No. 1 - You may "make bad law." A real-life example will illustrate what I mean. My state of North Carolina, like many other states, recognizes a claim for "public policy" wrongful discharge but takes a fairly limited view of what a protected "public policy" is. Among other reasons, you can't fire an employee for refusing to commit perjury, or for a discriminatory/retaliatory reason, or for filing a workers' compensation claim, or a truck driver for refusing to falsify his driving logs.

In a real lawsuit decided last fall, a landscape architect claimed that his ex-employer fired him because he made complaints about the employer's lack of compliance with state laws requiring that projects be certified by a real landscape architect. The architect/plaintiff claimed that his ex-employer's refusal to comply created public safety issues, as well as cost overruns and delays on multiple projects, and he gave specifics. The employer filed a motion to dismiss on the ground that North Carolina didn't recognize a "public policy" discharge claim on these grounds.

Well, guess what? It does now. A federal district court found that our state courts would indeed recognize such a claim. (Link is to the magistrate's recommendation, but the judge adopted the recommendation.) Of course, I have no idea what evidence the employer would have been able to present in its own behalf because a motion to dismiss is filed before the development of evidence. Maybe this motion to dismiss was the best in a set of bad options. But there is also no question that we now have a new cause of action for wrongful discharge that we didn't used to have . . . all because of this motion to dismiss.

Reason No. 2 - Your motion may "coach" the plaintiff about how to say it better next time. Let's say the plaintiff, who is African-American, alleges, "The company discriminated against me because of my color and national origin in violation of Title VII of the Civil Rights Act of 1964." Let's say there is no factual allegation that her "color" played any role in her termination, and because she's American, she doesn't have a national origin claim. Should you file a motion to dismiss? I wouldn't, because your motion will teach her (or her attorney) that she needs to use the buzzword "race" instead of "color" or "national origin" in the future.

Reason No. 3 - Even if your motion is granted, the judge will probably give the plaintiff "leave to amend." Sad but true. As I said last week, if you wait and win on a motion for summary judgment, the case is over subject only to the plaintiff's right of appeal. But if you win on a motion to dismiss, chances are very good that the judge will simply let the plaintiff rewrite his complaint and file it again. (Also, your motion will have taught him how to make it "stick" this time. See Reason No. 2.)

Reason No. 4 - An overly aggressive motion to dismiss will tick off the judge. You certainly don't want the judge to be mad at you, and in my experience, judges can't stand a bully. They especially don't like to see big law firms hassling small practitioners, or -- heaven forbid -- plaintiffs who are representing themselves. If you have a really well-founded motion to dismiss, go for it, but if it's borderline and the other side is a "small lawyer" or pro se plaintiff, I'd back off. Instead, be nice, and wait for summary judgment. 

Reason No. 5 - It's often an exercise in futility and a waste of money. (See all of the above.) PS - Judges don't like wasting time on unnecessary motions any more than they like bullies.

Here are some specific instances in which I would not recommend filing an early motion to dismiss an employment lawsuit:

*Where the plaintiff did a poor job articulating her allegations, but everyone knows what she meant and she has a valid claim.

*Where the plaintiff is pro se. Period. (OK, maybe if the lawsuit is totally incoherent, but otherwise . . .) Dude, be nice. Let him have his day in court.

*Where you have a "home run" case, but you need a little bit of evidence to get wood on the ball. If you need evidence, that's summary judgment, not a motion to dismiss.

*Where you can get one or two claims dismissed, but many more claims will have to remain in the lawsuit. This is a matter of economics -- if the valid claims significantly outnumber the "trash" claims, it's probably going to be easier and cheaper for the client to dispose of everything on summary judgment.

*Where you only "probably" have a statute of limitations defense. For example, the federal anti-discrimination laws require that you file suit no later than 90 days after receipt of the EEOC's dismissal of the charge. Let's say the lawsuit is filed on day 93 after the date of dismissal. Don't waste your time with a motion to dismiss the federal claims on grounds of untimeliness - the plaintiff will simply respond with the claim that she didn't receive the notice until day 95, and you won't be able to disprove it. The time runs from date of receipt, not date of issuance. (See also Reason No. 2, above, about educating your opponent.)

Wish I'd thought of that - On a completely unrelated note, blogger Jon Hyman had a fantastic post this week about an Employer's Bill of Rights. Please read it - you won't be sorry!

Employers, don't try to dismiss that lawsuit before its time.

Posted by Robin E. Shea on October 07, 2011

Human Resources and in-house counsel, please consider this a legal "consumer report." Remember - we offer a "no legalese" guarantee, or your money back!

My fellow employment lawyers, is that Rule 12(b)(6) motion really necessary?

I've spent this week reviewing federal and state labor and employment law decisions for a Bar Association program I'll beMoney down the drain.jpg presenting at the end of the month. I have been astounded at the number of motions to dismiss that don't seem to have achieved anything for the employer except an unnecessary bill.

So, for you employers out there, here is a summary of the two main types of pretrial dismissals, including the advantages and disadvantages, compared with trial. 

I'll follow up with another post on why I think the 12(b)(6) motion to dismiss is often a ripoff* for the client.

*Please realize that I am not accusing any lawyer or firm of dishonesty or unethical behavior. When I say "ripoff," I mean it in the sense that parking garage fees in New York City are a ripoff. In other words, too much for what you get, even if legal and fully disclosed in advance.

There are generally two opportunities for a defendant to get a lawsuit thrown out before it goes to trial. (I'm oversimplifying a bit.) The earliest opportunity comes right after the lawsuit is filed. This early motion to dismiss is called a "Rule 12(b)(6)" motion because that is the name of the Rule of Civil Procedure that allows defendants to do this. From now on, I'll refer to it as a "motion to dismiss."

Nice Work If You Can Get It - the Motion to Dismiss

What it is. The gist of a motion to dismiss is this: "Your honor, even if everything the plaintiff says in the lawsuit is true, he has not accused our client of doing anything for which the law provides a remedy."

Here's an example. I sue you, and in my lawsuit, I accuse you of giving me a dirty look. Maybe you didn't give me a dirty look, or maybe you did. Even if you did, I can't sue you for that. (At least, not this week.) So, your lawyer would file a motion to dismiss my lawsuit on the ground that I had "failed to state a claim for which relief may be granted."

The upside. If you win (and you would, in this extreme example), the case is over* and you got out of it for a relative song because you didn't have to go through discovery and motions and a big trial.  :-)

*Subject to the plaintiff's right of appeal.

The downside. Because a motion to dismiss is filed so early, the court has to accept everything the plaintiff says as true and pretty much has to give the plaintiff the benefit of the doubt on everything. If the statute of limitations hasn't run out, and maybe even if it has, the judge will give the plaintiff "leave to amend," which lets the plaintiff rewrite the lawsuit so that it states a claim. Usually the judge will dismiss some of the plaintiff's claims but leave others in the case, which means that the motion didn't end the lawsuit. If the defendant loses on its motion to dismiss, in whole or in part, the case goes back for litigation, including discovery, summary judgment, and trial, with all the associated time, expense, and hassle. So the defendant may have incurred significant legal fees and caused delay for very little, if any, benefit.  :-(

Summary Judgment - the Old Reliable

What it is. A motion for summary judgment is filed later, after both sides have filed their pleadings with the court, and after the parties have engaged in discovery (depositions, written questions and requests for documents, and that kind of stuff).

Here's an example. I sue you and say you discriminated against me because I'm an over-40 female. Age and sex discrimination are clearly illegal, so my lawsuit has alleged some illegal conduct on your part, unlike my "dirty look" lawsuit. (A little more than that may be required, but that's a topic for another post.) You take my deposition, and in my deposition I admit that my boss asked me to catch up on my filing and that I told him to take a long walk off a short pier but using significantly more colorful language that I can't include in a family blog. I was fired that afternoon for insubordination and abusive language.

You can't say that my lawsuit fails to state a claim because it does, but you can file a motion for summary judgment.

The upside. On a motion for summary judgment, you can present to the court my deposition testimony, your witnesses' testimony, and other evidence to show that "there is no genuine issue of material fact" that I was discharged for a perfectly legitimate reason. The court will still have to side with the "non-moving party" (in this example, me) on any disputed fact, but it can accept undisputed facts that are in your favor, and even your evidence where I said, "I don't know" or "no me recuerdo." The court doesn't make any judgments about who is more "believable."

Your chances of success on summary judgment are dramatically greater than on a motion to dismiss because you can actually tell a little of your side of the story. If you lose, you go on to trial, but if you win, the case is over.* The court will not give the plaintiff a chance to rewrite her lawsuit at this late stage. And the court will frequently throw out the whole enchilada, too, instead of just a few claims.   :-)

*Subject to the plaintiff's right of appeal.

The downside. You have to go through the time, expense and hassle of the discovery process before you file.  :-(

The Dreaded Trial

Aiiiieeeeeeeeeee! Nooooooooooooooooo . . . 

What it is. I assume you know what a "trial" is.

Here's an example. I sue for age and sex discrimination, and you take my deposition. I say that I heard the CEO say, "I do not want any old biddies over 40 working in this company, and I vow with every fiber of my being to get rid of them all, no matter what it takes." The CEO and 50 bishops deny that he ever said this, and they all insist that I was fired for being a mediocre performer. I do indeed have some lackluster performance reviews.

Here we have a major "material fact dispute," right? If I'm telling the truth, the CEO has admitted to age and sex discrimination. If he's he's telling the truth, then he hasn't, and he has every right to fire a mediocre performer, as long as he isn't doing it for an illegal reason.

So, with this fact dispute, the court cannot grant your motion to dismiss, and it can't grant your motion for summary judgment, either. This is what trials are for.

The upside. (Trying hard here!) At trial, you will have the chance to tell your side of the story, including the parts where I disagree with you. The judge or a jury will decide whom they believe.

The downside. At trial, I get to tell my side of the story, including the parts where you disagree with me. The judge or a jury will decide whom they believe. For me (the hypothetical plaintiff), that's ok. If I lose, I'm no worse off than I was before, especially if my lawyer represented me on a contingent fee basis (you don't pay unless we win!). But for you (the defendant employer), a lot is at stake. A trial is a gamble. You have to worry about, not only the facts, but also how I will come across to a jury as well as how your folks will. In this lousy economy, will the jury side with your CEO?

True story - years ago, we had a witness, a genuinely nice guy, who was despised by the jury because he was squinting during his testimony, which made him look dishonest. In fact, he was squinting because he was wearing new "hard" contact lenses. (I told you this was years ago.) At trial, you have to worry about things like this. At summary judgment, you don't because everything is submitted "on paper" (actually, electronically), possibly with some live arguments by the lawyers.

In addition, a trial is the most time-consuming, expensive hassle of them all, even if you win in the end. 

So, now that you've read that, you may be wondering, Then what's so bad about a motion to dismiss, which will give us one more opportunity to avoid trial?

Great question, but a topic for another post. To be continued . . .