Virginia Business Litigation Lawyer Blog

A Lincoln-Mercury dealer in the Virginia Beach area has settled a lawsuit filed earlier this year by a former employee who claimed that she was subjected to a campaign of sexual harassment by the dealership's general manager.

On March 4, 2011, Carla Mercado, who worked as a car saleswoman until she was fired in March 2009, sued Lynnhaven Lincoln-Mercury Inc. for sexual harassment, discrimination and retaliation, asserting that Juan Lewis, the general manager, repeatedly groped her and made unwanted sexual advances and suggestions. On October 21, 2011, U.S. District Judge Raymond A. Jackson denied Lynnhaven's motion for summary judgment and its partial motion to dismiss the complaint. Faced with having a jury decide the merits of Ms. Mercado's claims, the parties mutually decided to settle the case on the courthouse steps, the day the trial was scheduled to begin.

According to the complaint, Lewis repeatedly made remarks of a sexual nature to Mercado on the job and asked her to have oral sex with him. On one occasion, according to the complaint, he told her that the only way she would get a promotion is if she performed that sexual act on him. At one time, the complaint reads, he forcibly kissed her. These comments and actions, the complaint says, "were an integral part of Juan Lewis's custom, business practice, and course of dealing with certain women at Lincoln-Mercury, while fulfilling his role as General Manager at the dealership."

Then, the complaint alleges, when Mercado rebuffed Lewis's advances, he and other employees of the dealership "commenced a campaign of retaliatory action" against her, including increasing her Sunday hours, rejecting her "deals" for vehicles and diverting them to other salespeople, and refusing to engage her in conversation. Ultimately, according to the complaint, she was terminated in retaliation for failing to comply with Lewis's sexual demands.

Mercado sued for hostile work environment sexual harassment, quid pro quo discrimination, retaliation, intentional infliction of emotional distress, assault, battery, and wrongful termination in violation of public policy. She sought damages of up to $5 million.

The dealership responded that Mercado was actually fired for not coming to work on Sundays and that it has a policy of treating unexcused absences as equivalent to a resignation. It also responded that at no point did the harassment affect a "tangible employment action" and that it was not sufficiently severe or pervasive to satisfy the law's requirements.

Virginia is a "deferral state" for Title VII purposes, meaning that it has a state law prohibiting discriminatory employment practices and has a state or local agency (e.g., the Virginia Council on Human Rights) authorized to grant relief from such practices. To allege discriminatory employment practices in deferral states like Virginia, prior to filing any lawsuit, an aggrieved employee must exhaust administrative remedies by initiating an EEOC charge within 300 days. Otherwise, the claim will be forever barred. (See 42 U.S.C. § 2000e-5(e)(1)). In a case decided recently by Judge Spencer of the Eastern District of Virginia, a plaintiff found this out the hard way.

In McKelvy v. Capital One Services, LLC, the plaintiff was an African-American Director of IT services, over 40 years of age. After obtaining a "right-to-sue" letter from the EEOC, he sued Capital One, claiming that the removal of his supervisory responsibilities and the failure to promote him was based on his race or his age, and thus violated Title VII's prohibitions against unlawful discrimination in employment. Finding that the alleged discrimination took place more than 300 days before the plaintiff filed his EEOC charge, the court granted summary judgment in Capital One's favor and dismissed the plaintiff's claims with prejudice.

The court also observed that, even if the plaintiff had not failed to exhaust administrative remedies, he could not prevail on his claim because he failed to present supportive facts (beyond his personal belief), to rebut Capital One's assertion that his direct reports were taken away because other associates complained about his leadership style and because of some poor performance appraisals. To survive a motion for summary judgment, a plaintiff must come forward with supportive evidence.

When deciding summary judgment motions in cases involving alleged employment discrimination, courts follow the "McDonnel Douglas" framework, which examines: (1) whether the plaintiff has stated a prima facie case of employment discrimination; (2) whether the employer can propound a legitimate, non-discriminatory justification for the adverse employment action taken against the plaintiff; and (3) whether the plaintiff can rebut the asserted legitimate, non-discriminatory justification with evidence that it is merely a pretext for unlawful discrimination.

To establish the first element--a prima facie case of employment discrimination--the plaintiff was required to come forward with evidence showing that (1) he was a member of a protected group; (2) he applied for the position in question; (3) he was qualified for the position; and (4) he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. He failed to meet that test, as no evidence was presented showing that race or age played a role in filling these positions. The plaintiff relied instead on his own subjective assessments of his qualifications and job performance. Unsupported speculation, the court held, is not enough to defeat a summary judgment motion.

To survive the early stages of litigation in federal court, you need to ensure your complaint not only alleges facts that, if proven true, would support a legal cause of action, but that present a plausible claim for relief. While you are far more likely to win your case at trial if you are represented by an attorney, one of the few situations in which your task may be easier without a lawyer is surviving an initial motion to dismiss. This is because the United States Supreme Court has held expressly that a "pro se" plaintiff (i.e., a litigant not represented by a lawyer) must be held to less stringent standards than those who have legal representation and are more familiar with the rules of formal pleadings.

Michael Bogan is representing himself in a Title VII employment-discrimination action against The Roomstore in Richmond, Virginia. Judge Henry E. Hudson recently denied The Roomstore's motion to dismiss for failure to state a claim, finding that Mr. Bogan alleged "scant but marginally sufficient" factual allegations to support a claim for discriminatory discipline, an employment practice prohibited by federal employment laws. Had an attorney drafted the complaint, the result might have been different.

Mr. Bogan, an African-American, alleges that his Caucasian supervisor at The Roomstore demanded that he undergo a drug test even though a similarly situated white employee was not required to submit to the test. He claimed the white employee was involved in illegal activity and had missed several days of work. The complaint alleges that The Roomstore terminated his employment for refusing to submit to the test.

Mr. Bogan did not identify which form of employment discrimination he was relying on, so the court gave him the benefit of the doubt and analyzed his claim under the two most likely theories, disparate treatment and discriminatory discipline.

To properly state a claim for disparate treatment, a plaintiff must allege facts demonstrating that: (1) he is a member of a protected class; (2) he has satisfactory job performance; (3) he was subjected to adverse employment action; and (4) similarly situated employees outside his class received more favorable treatment. Mr. Bogan failed to sufficiently plead this theory because he had not pled any facts to support that his job performance was satisfactory.

However, Judge Hudson found that Mr. Bogan did sufficiently plead discriminatory discipline. For that theory, it is necessary to allege: (1) he is a member of a protected class; (2) his prohibited conduct was comparably serious to misconduct by employees outside the protected class; and (3) the disciplinary measures taken against him were more harsh than those enforced against other employees. The facts alleged in the complaint were found to present a plausible claim that The Roomstore is liable if it engaged in the alleged conduct.

Virginia employment lawyers who represent plaintiffs are often looking for creative legal theories to help their clients receive justice. Employees seeking redress for perceived wrongful termination face a steep hurdle in the employment-at-will doctrine, under which a private employer, subject to certain exceptions, is free to discharge its employees at any time, for any reason or no reason at all, without incurring civil liability. While it is usually the corporate employer who gets cast in the role of defendant, plaintiffs' lawyers have occasionally tried to impose liability on the individual manager who terminated or discriminated against the employee, usually without much success. A recent decision from the Eastern District of Virginia's Richmond Division, however, opens the door to possible claims of "tortious interference" against the individual bad actor.

Williams v. Autozone Stores, Inc. is a sexual harassment case brought under Title VII of the Civil Rights Act of 1964, which prohibits harassment of employees where the conduct is sufficiently severe or pervasive to create a "hostile work environment," or where the harassing conduct results in a tangible change in an employee's employment status or benefits (such as getting fired). Williams, a former employee of Autozone, claimed that her manager, Willie Pugh, touched her inappropriately and made sexually-charged comments toward her. After asking Pugh to stop, Williams alleges that he wrote her up for nonexistent problems and that she was consequently transferred to a different store and eventually fired. Williams sued Autozone for alleged discrimination, but also sued Pugh himself on the theory that he tortiously interfered with her employment contract with Autozone. Autozone moved to dismiss the claim, arguing that Pugh was an agent of the company and that a company cannot interfere with its own contracts, but Judge Spencer allowed the claim to go forward.

Pugh pointed out that claims for tortious interference with contract require the existence of three separate parties: the two parties to the contract, and a third party who induces one of the two contracting parties to breach the agreement. As an employee of the company, he argued, he and Autozone were the same entity, negating the possibility of a third party. Pugh also pointed out that Williams acknowledged in her complaint that Pugh was an employee acting within the scope of his employment with Autozone.

Judge Spencer responded by noting that the plaintiff's admission in her pleadings that Pugh was an agent of Autozone did not preclude a finding that Pugh acted outside the scope of his employment. A party may plead inconsistent facts, the court held, provided they relate to different claims. Turning to the question of whether Pugh's actions were necessarily the actions of Autozone, the court found that a tortious interference claim could very well be viable even when the interfering party is an employee of one of the contracting parties. The employee would be acting as a third party if his actions were taken outside the scope of his employment, such as if they "arise wholly from some external, independent, and personal motive". If there is doubt as to whether an employee was acting within the scope of his employment, the court held, then the issue should be resolved by the jury, not decided by the judge prior to trial.

The Equal Employment Opportunity Commission (EEOC) claims a Kmart Super Center in Norfolk, Virginia, fired a store greeter because he used a cane, in violation of the Americans with Disabilities Act (ADA). In a lawsuit filed in the United States District Court for the Eastern District of Virginia, the EEOC alleges that the employee used a cane to walk and stand due to his spinal stenosis, a physical impairment of his back. His back problems did not prevent him from performing his duties as a greeter. Nevertheless, the suit claims, when he was observed using the cane, Kmart terminated his employment.

Prior to terminating the employee, Kmart allegedly refused to allow him to use the cane, even though his condition made it difficult to stand or walk without one, and his job required both. The EEOC filed the lawsuit only after Kmart refused to settle.

The EEOC is seeking most of the remedies permitted under the ADA, including reinstatement of the employee's job (or placement into a substantially equivalent position), back pay, compensatory damages, and punitive damages for intentional discrimination. The EEOC is also seeking an injunction (as it usually does in the ADA cases it brings) prohibiting discriminatory practices and compelling Kmart to adopt and execute a variety of policies, practices, and training programs to clarify to their employees and the general public that Kmart will takes steps to ensure it does not discriminate against persons with disabilities.

Title I of the ADA requires employers with 15 or more employees to provide qualified individuals with disabilities the same employment benefits and opportunities as everyone else, provided the employers can make any necessary accommodations without experiencing undue hardship. The employment privileges to which the ADA applies include recruitment, hiring, training, compensation, promotions, and even social activities. For more information, see Your Rights as a Disabled Employee.

Both the Americans with Disabilities Act (ADA) and the Virginians with Disabilities Act (VDA) prohibit stage agencies and public entities from discriminating against people with disabilities, or denying to them the benefits of their services, programs, or activities. On June 4, 2009, Virginia's highest court held that the Virginia Lottery, a state agency established to generate revenue to be used for public purposes, must comply with these laws and ensure that disabled persons are not excluded from participation in the lottery.

At issue was whether the lottery operation constitutes a "program, service, or activity" within the meaning of the ADA and VDA.  A group of disabled plaintiffs, all of whom use wheelchairs, sued the Lottery in Richmond, claiming that several retail outlets lacked accessible parking spaces, ramps, and paths of travel for disabled persons.  The Lottery argued that it was exempt from the ADA and VDA because it did not offer a program, service, or activity within the meaning of those statutes.  While the Circuit Court agreed with that argument, the Supreme Court reversed, finding that the Virginia Lottery does operate a "program, service, or activity" and therefore must conduct its operations in compliance with the ADA and the VDA.

The tricky part is determining how, exactly, accessibility is to be achieved. The only party responsible for complying with the ADA with respect to a particular challenged government program is the party with control over that program. (See Bacon v. City of Richmond, 475 F.3d 633 (4th Cir. 2007)).

The Virginia Lottery is the entity that operates the lottery, but it is permitted to license authorized agents--independent retail stores--to sell lottery tickets. The court acknowledged that the Lottery doesn't have the authority or power to require private businesses to comply with the ADA or VDA. The Lottery cannot simply construct wheelchair ramps on the premises of the various lottery retailers. At the same time, however, the court found that the Lottery has a broader obligation to ensure its operations are conducted in compliance with the laws.

How then, is the Virginia Lottery to comply with its obligations to disabled persons when it lacks the power to force its retailers to do the same? That is a question for another day, to be determined by the trial court when the case is returned to it. The Supreme Court suggested the remedy might entail something short of ramp construction, in that "accessibility" might be achieved by means other than physical.

In a lawsuit brought last year by the Equal Employment Opportunity Commission against Compare Foods in North Carolina, the EEOC claimed the supermarket fired a white, non-Hispanic meat cutter due to its preference for employing Latino workers.  Compare Foods has now agreed to settle the action, which alleges national-origin and race discrimination, for $30,000 as well as by agreeing to take certain preventative measures such as distributing a written anti-discrimination policy, providing its employees with Title VII anti-discrimination training, and informing its existing employees of the lawsuit and settlement.

According to the allegations of the Complaint, Compare Foods fired Robert Bruce not because of his job performance, but because of his race (white) and national origin (non-Hispanic), and replaced him with a Hispanic worker.

Title VII of the Civil Rights Act of 1964 prohibits harassment of employees on the basis of race or national origin where the conduct is sufficiently severe or pervasive to create a "hostile work environment," or where the harassing conduct results in a tangible change in an employee's employment status or benefits (such as getting fired).  The law protects not just minorities but members of all races.

The settlement also requires Compare Foods to provide a positive letter of reference to any prospective employer of Mr. Bruce, describing him as "a reliable employee who possesses excellent skills as a butcher."  A Spanish-language television commercial for the supermarket chain is below.

Like it or not, if you are 40 years old or older, your employer or coworkers may consider you downright geriatric and mistakenly assume that you are no longer able to perform the requirements of your position as well as a younger person.  When you turn 40, you officially join the ranks of "old people" against whom discrimination is prohibited by law.  The Age Discrimination in Employment Act of 1967 (ADEA) protects employees and job applicants aged 40 and older from discrimination in employment.  The ADEA makes it unlawful for employers with 20 or more employees to discriminate on the basis of age with respect to any term, condition, or privilege of employment.  This includes hiring, termination, promotions, salary, benefits, job assignments, and training.

According to a new class-action lawsuit filed in federal court in California against 3M Company, 3M engaged in a pattern of discrimination against employees older than 46 by giving them negative performance reviews, inferior training, lower pay, and fewer opportunities for promotion. The suit claims 3M discriminates against older workers throughout the entire United States, effectively shutting them out of top management positions.  The Plaintiffs estimate over 2000 workers have been the victims of 3M's discriminatory employment practices.

The crux of the allegations apears to be that 3M singled out younger workers for inclusion in their intentsive "Six Sigma" management training program, virtually assuring that 3M leadership would be comprised entirely of younger workers.  The suit also claims that workers were asked to sign releases upon departing the company that contained misrepresentations of their legal rights.  The plaintiffs are asking the court to declare the releases unenforceable as a matter of law.

If the plaintiffs' allegations are true, they may be entitled to back pay, front pay, reinstatement, and even reimbursement of their attorneys' fees.

A couple from Culpeper, Virginia, has sued the Culpeper Police Department for alleged inappropriate behavior upon discovering sexually explicit photographs on a cell phone.  According to the lawsuit, the police arrested Nathan Newhard in March 2008 for DUI and possession of a firearm, and confiscated his cell phone.  Upon inspecting the phone, a town police officer discovered sexually explicit photographs of his girlfriend.  The officer then used the police radio system to announce the availability of the pictures to any interested police officer and several officers viewed the photographs.  Shortly thereafter, Mr. Newhard claims, the police notified his employer, the County of Culpeper School System, that Mr. Newhard had nude photos on his cell phone.  The school told him he would not be recommended for another term, and he resigned.  

Mr. Newhard describes the litigation as a case brought to remedy "egregious and unconscionable violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution" and asserts counts for "deliberate indifference," "right to privacy," "outrageous conduct," defamation, intentional infliction of emotional distress, and failure to train.

It will be interesting to see which claims stick.  I stongly doubt the alleged facts state a valid claim for defamation (which requires a showing of falsity) or intentional infliction of emotional distress (which generally requires more extreme conduct than that alleged, as well as more severe emotional injuries).  A claim that appears to be missing is tortious interference with contractual relations.  If what Mr. Newhard is claiming is true, and a police officer showed a nude picture of his girlfriend to his employer for the purpose of getting him fired, that is the sort of behavior that would likely support a tortious interference claim.

With the increasing popularity of "sexting" (the practice of attaching sexually explicit photos in text messages sent between phones) and the debate surrounding its legality, it will also be interesting to see whether the alleged behavior by the Culpeper Police Department amounts to a deprivation of contstitutional rights as alleged in the Complaint.  More about sexting in the clip below. 

Qualified individuals with disabilities are entitled to an equal opportunity to benefit from the full range of employment-related opportunities available to others.  The Americans with Disabilities Act (ADA) prohibits discrimination in the workplace (as well as in government and other contexts) on the basis of disability.  It applies to employers with 15 or more employees and covers recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment.  The ADA also restricts the questions that can be asked about an applicant's disability before a job offer is made, and it requires that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless doing so would result in undue hardship.

To be protected by the ADA, one must qualify as having a "disability" (or as having a close relationship with a disabled person) as that term is defined in the Act.  Under the ADA, a disabled person is: (1) one having a physical or mental impairment that substantially limits one or more major life activities, (2) a person who has a history or record of such an impairment, or (3) a person who is perceived by others as having such an impairment. See 42 U.S.C. § 12102(2).  The ADA does not specifically list or identify all possible impairments that would be considered disabilities.

Continue reading "Your Rights as a Disabled Employee" »

Days before the case was scheduled to go to trial, national department store chain Nordstrom, Inc., opted to settle the Title VII lawsuit brought against it by the United States Equal Employment Opportunity Commission in which the EEOC alleged Nordstrom violated Title VII of the Civil Rights Act of 1964 by subjecting Hispanic and black employees to racial and ethnic slurs.  While Nordstrom did not admit wrongdoing, it nevertheless agreed to a Consent Decree requiring it to pay $292,500 to 10 former employees, to distribute its anti-harassment policy to all employees in the two Florida stores at issue, and to take other steps to prevent future acts of unlawful discrimination.

According to the lawsuit, an alterations department manager complained that she "hate[d] Hispanics," and that Hispanics were "lazy" and "ignorant."  She made similar derogatory remarks about African Americans, such as "I don't like blacks" and "you're black, you stink."  When the employees complained about the treatment, the manager retaliated by making more racially offensive comments, unfairly berating employees and citing them for alleged performance problems.

The settlement also requires Nordstrom to post a notice regarding the lawsuit and settlement in a conspicuous location at its two stores, written in multiple languages.  Included in the notice is a statement that "Appropriate corrective action, up to and including termination, based upon the circumstances involved, shall be taken against any employee (including management personnel) found the have violated the Nordstrom policy prohibiting discrimination."

Title VII prohibits harassment of employees on the basis of race where the conduct is sufficiently severe or pervasive to create a "hostile work environment," or where the harassing conduct results in a tangible change in an employee's employment status or benefits.

So you want to sue your boss for harassment.  For years, you have put up with his antics, but now you've had enough.  He has humiliated you in front of your co-workers, berated you for trivial things, and insulted you.  Basically, he is a jerk.  But do you have grounds for a lawsuit?  Has your boss "harassed" you within the meaning of Title VII of the Civil Rights Act of 1964?

Federal anti-discrimination statutes do not prohibit all harassing behavior.  They do not guarantee that your boss will be "nice" to you.  They do, however, offer powerful protection against unwelcome verbal or physical conduct based on race, color, religion, sex, gender identification, national origin, age (if you are 40 or older), disability (mental or physical), sexual orientation (depending on the circumstances and jurisdiction), and retaliation against an employee who complains of discrimination, participates in an investigation, or voices opposition to discriminatory practices.
 

Continue reading "What Is Harassment?" »

The Virginia city of Portsmouth agreed to settle a race discrimination case brought by the Department of Justice on March 25, 2009, the same day the suit was filed.  In the lawsuit, the DOJ accused the city of discriminatory hiring practices against African Americans in its hiring of entry-level firefighters, in violation of Title VII of the Civil Rights Act of 1964.

While the civilian labor force of Portsmouth is about 46% African American, only 12.4% of the city's firefighters were African American.  The DOJ attributed the discrepancy largely to the administration of the "National Firefighter Selection Test," a written examination with a pass rate of around 86% for whites but just 42% among African Americans, a "statistically significant" difference, according to the lawsuit. 

The case serves as a reminder that Title VII protects individuals not only from intentional acts of race discrimination, but in some circumstances may even protect such individuals from unintentional discrimination when such is the result of employment practices that may be well-intentioned but nevertheless have a "disparate impact" on members of a particular racial group.  As the United States Supreme Court held in 1971, Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity."  Griggs v. Duke Power Co., 401 U.S. 424, 431.

The DOJ did not allege the city's motives were discriminatory; only that the standardized test--while neutral on its face--resulted in the rejection of a disproportionate number of African Americans.  Because there was no business necessity for the test, the disparate impact was alleged to violate Title VII. 

Under the terms of the settlement, the City of Portsmouth will stop administering the test and will deposit $145,000 into a settlement fund that will be used to award "back pay" to eligible African Americans determined to have been harmed by the city's employment practices.