Quote of the Day - Work is a necessity for man. Man invented the alarm clock.
An Alarming Employee Discrimination Verdict
There you are, ready to go home, and that damn alarm goes off again. For the fortieth time. You work at the City of Colton, California's wastewater treatment plant. It's late and you just know the alarm is a false one. It's been on and off that way for awhile.
The book says you go check. Just hit the reset button and it'll go off. Buzzzt. There - silence once more.
Whoop, whoop, whoop.
There it goes again. Well, the reset button didn't work. What the hell. Clock says it's time to go home. At least you won't have to listen to that alarm anymore.
I'm not sure how it happened, but I imagine it went something like that. Daniel Villanueva, the Lead Operator of the City's wastewater plant, went home instead and left the City's wastewater treatment plant in the alarm condition overnight. As a result, the wastewater system overflowed and City had to report that it violated the conditions of its National Pollutant Discharge Elimination System (NPDES) permit to the California State Water Quality Control Board.
If Villanueva had gone to look at the cause of the alarm, then he would have found that the alarm was not false. Because he didn't, the City suspended him for five days. Later during a budget crisis, the City cut more than 35 jobs, and in part due to Villanueva's poor performance, the City terminated him.
He sued the city under the Federal Fair Employment and Housing Act (FEHA), claiming employment discrimination. The City filed a summary judgment, which the trial court granted. On top of it, the City won an award of attorneys against Villanueva. More than $40,000 worth.
Villanueva appealed, claiming in part he didn't have enough money to pay the attorney's fees and costs award, but the court of appeals sustained the trial court's ruling, reasoning that FEHA allowed an award of fees and costs to the winner, and Villanueva lost.
I've covered before why he lost; he didn't produce sufficient evidence of discrimination by the City. Villanueva did submit some deposition transcripts and declaration, but the City objected and the Court upheld the objections, and excluded the submitted evidence. Without proof, the City's evidence of a sufficient reason to fire Villanueva is more than sufficient to defeat his claims.
What Of A Fall From Grace?
What is the mark of a man? For that matter, what is the mark of a woman? Let's take a man named Eliot and a woman named Kristin, for example.
This post is no piece of investigative journalism, so you'll have to satisfy yourself with news reports of Kristin and her $4,300 per hour price, which I may say is slightly more than I charge by day. I suspect, however, that I'm not as much fun. Verbally, on the other hand...
Admittedly, I want only to take a snapshot of the man from a single perspective: his approach to environmental matters, which tends to be very limiting but perhaps instructive beyond an occasional fault, or more than one fault. Qualifiers aside, let's look:
Back in 2003, he sought to enforce Clean Air Act New Source Review laws. He forced a change to the law. His was an egalitarian approach, at least on paper. Allegedly, he sued the EPA some 15 times over environmental laws. He did not win each time.
There were others who sued, too, and many claim Spitzer made enemies easily, and extorted money from big companies and equally so big government. Many say he made demands without facts. He was a man who many time did not give and who did not take and likewise got in the way.
Time will tell. Even if pollution is a sin.
Is The Vatican Writing A Blog?It doesn't look like one, but it is posted online weekly.
How About Brunch At The Waldorf-Astoria In NYC On Sunday, March 16?
MIPTC will be in New York just before St. Patty's Day, and Bruce MacEwen (who writes the constantly stunning Adam Smith, Esq.) and I plan to get together at 9:00 a.m. on Sunday, March, 16, 2008 ,at the Waldorf Astoria for brunch. We're meeting at Peacock Alley in the Main Lobby. Somewhat fitting for bloggers, don't you agree?
So, we thought we'd make an open invitation to New York City bloggers or any other blogger who happens to be in the city to get together for brunch and have a modern-day Algonquin-style roundtable. Just send me an email (jcraigwms at wlf-law.com) and let us know whether you can make it so we can make reservations.
Looking forward to seeing you there.
Lawyer 2 Lawyer Internet Radio Gets A Case Of The Me-too Evidence
Ellen Mendelsohn, a 51-year old manager for Sprint, was fired in company-wide layoffs and sued citing age discrimination. During the trial, five ex-employees claimed they had also been released because of their age or in lawyer terms "me-too evidence."
Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we discuss this highly-publicized case with the experts: Attorney Michael Ketchmark, from Davis Ketchmark & McCreight, Attorney Jeannie DeVeney from Spencer Fane Britt & Browne LLP and Attorney George Lenard, from Harris, Dowell, Fisher & Harris, L.C. We discuss the case and the unanimous decision handed down by the Supreme Court. You can download the podcast here or just click on the link below.
Entertainment Law Crosses With Labor Law: Court Rules Contract Non-renewal Race-free, Legitimate Employment Decision
When a former employee sues an employer for firing due to race discrimination, the legal burden shifts from the former employee to the employer to establish a prima facie reason for firing the employee for a legitimate, non-race based reason. Then, if the employer can establish the legitimate reason, the burden shifts back to the employee to disprove the employer's apparently legitimate reason.
While that's a mouthful, look at it this way: first the employer shows the judge the employee got fired because the employee couldn't do the job. Then the employee has to show the judge the real reason is race.
Let's add an overlay to this legal framework. We have a white evening news anchor at a TV station in San Jose/Oakland/San Francisco, among a number of other on-air talent and off-air managers. NBC came in and bought the station and hired a new manager to shake things up.
In the entertainment industry, "shaking things up" is a euphemism for firing almost everyone in sight and bringing in an almost entirely new team, generally for a TV station only retaining the upper, mid-level management and some of the more popular on-air reporters, but typically not the anchors.
Note I said "not renew." Let me add two more facts: Brad Hicks is white, and the anchor who replaced Mr. Hicks is African-American, T.J. Holmes, now at CNN.
Here are the Court's rulings on those two facts: First, "where the plaintiff does not belong to a racial minority or other traditionally protected class, no universally accepted statement of the standard for establishing a prima facie case exists. There is currently a split among the federal courts that have taken a position on this issue. Five circuits apply an increased burden upon a White plaintiff, requiring a showing of 'additional background circumstances' to support the suspicion of discriminatory intent. "
Second, "Plaintiff alleged that defendants' decision not to retain him was motivated by the desire to place an African-American in the 5:00 p.m. anchor position. In their moving papers defendants produced evidence to show that Sanders's reason for refusing to negotiate a new contract with plaintiff was unrelated to his race. According to defendants, plaintiff did not project the style or personality Sanders wanted in a KNTV news anchor."
The Court accepted the TV station's reason, and didn't believe the Hicks was able to overcome their reason by showing a discriminatory intent. The Court ruled the station hired and fired others without regard to race.
Sanders' techniques at the station worked. The station received 28 Emmy nominations in 2005. You can check out Brad Hicks' blog, as well. He too won NBC News, the U.S. Coast Guard, and The National Water Safety Congress, as well as multiple Emmy Awards, and awards from the Associated Press.
Tip Of The Day: Dig Out Those Gift Cards You Received And Cash Them In
Otherwise, they just might not be valid, even if you're in California. Before I get ahead of myself, let me explain that last qualifier. In Call-e-forn-ya (as only Ahrnold would say it), gift certificates of any kind never expire (well, generally speaking).
Yep, it's right there in California Civil Code sections 1749.45-1749.6. It's the law in this state.
But these statutes won't stop many people from trying. Or filing for bankruptcy, as Sharper Image has done. Unfortunately, California law doesn't trump federal bankruptcy law.
Once a company files for bankruptcy, that gift card you got for the holidays is, well, just a piece of plastic with minimal recyclable value that you can stick in your shredder (hang on here for a moment, Brookstone will give you a 25% discount for a Sharper Image gift card). You actually also get a claim against the company's bankruptcy estate, but who wants to hire a lawyer to prosecute a claim for even a $100.00 gift card?
But don't worry too much, Sharper Image says they'll eventually honor your now-worthless gift card. They're just not saying when.
We're not talking chump change, either, if you look at the bigger picture. According to the AP article in that last link, "Brian Riley, senior analyst at The Tower Group, estimates that shoppers could lose more than $75 million just from stores and restaurant closings in 2008."
$75 million? That's a lot of gift cards. Almost as many as I think I've got stashed somewhere. Quick. Scrounge through your junk drawer and get out all those plastic cards, run to the mall and go shopping and dining.
Who needs to wait for the government's stimulus package anyway?
MIPTC’S Occasional Book Review: Solo by Choice, by Carolyn Elefant
"Back when you were in law school you had dreams. Maybe it was standing before a jury, passionately arguing on behalf of a desperate client ... or winning an appeal that would link your name to a new legal precedent ... or pulling off a dramatic 11th hour deal that would give your struggling technology client a life-saving infusion of capital. But what happened? ... years later ... most of those dreams are unrealized."
Now, instead "You work 60-hour weeks in BigLaw... or, you're a government prosecutor ... whose work is no longer challenging ... Or you just passed the bar, and the prospects of paying off your student loans ... has you popping antacid in the middle of the night." The Preface of Solo by Choice gives this wonderful setup for three-hundred pages packed full of timely and spot-on advice for a lawyer struggling with these issues.
If you're a lawyer and those law-school dreams have all but evaporated and you're contemplating taking the plunge to start your own law firm, perhaps as a solo, perhaps as a group of lawyers who all have these unrealized dreams and want to run your own show, then...
You need this book. Don't do anything else to start up a new law firm without reading this insightful guide, Solo by Choice, by Carolyn Elefant.* Even if you have a long-established solo or small firm, then this book will help you fine-tune your practice in ways you can't even imagine. Even if you are in BigLaw or even a government prosecutor, there are a few tips you can pick up to help your practice (see the chapter on Dealing with clients).
Even after starting this firm, WLF | The Williams Lindberg Law Firm five years ago and after more than twenty years of practicing law, I learned more than a few things from this paperback. You'll find it more than helpful, I'm sure. Your investment will yield much in return.