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Saturday, March 28, 2015

Just Cause and Disparate Treatment

THE JUST CAUSE STANDARD is incompatible with favoritism or discrimination. Employers must treat employees who engage in the same type of misconduct alike.
An employer commits “disparate treatment” if, without a justifiable basis, it imposes a markedly harsher penalty on one employee than on another who violated the same or a highly similar policy or rule. Disparate treatment violates just cause whether it stems from favoritism; personal hostility; racial, ethnic, gender, religious, or anti-union bias; inadvertence; sympathy; or mistake. The union does not need to prove the reason (and usually should not attempt to do so). The proper remedy is to reduce the grievant’s sanction to the lowest level imposed on others.

The following cases illustrate disparate treatment:
• A trucking company suspended a driver for thirty days for speeding. A year earlier, it suspended another driver for one day for the same infraction.
• A government agency fired a worker who reported to work under the influence. On previous occasions, it allowed employees to work despite clear signs of inebriation.
• A supervisor saw a worker driving a forklift backwards and charged her with a safety violation. On an earlier occasion, he simply told a worker to turn the lift around. 
A union seeking to make a disparate treatment defense must identify at least one other employee (called a “comparable”) who violated the same or a very similar rule as the grievant but was given a substantially lesser penalty. It must also show that the comparable’s infraction was as serious as that of the grievant and that the comparable’s record was not appreciably stronger. In most cases, the union will need information from the comparable’s personnel file.
If the union knows the names of workers who received lighter penalties, it should request copies of their personnel files. Otherwise, it should submit the following written information request:
Please furnish the union with a list of each employee and former employee who, within the past five years, was charged with __________. For each such employee please provide a copy of the notice of discipline and a copy of the employee’s personnel file.
Grievance tip: The personnel files of employees who received the same penalty as the grievant can also be a goldmine. For example, the employer may have fired Worker A for a second or third offense while discharging the grievant after a single infraction.
How far back can the union go? No fixed rule limits how far back a union can go to prove disparate treatment. Many arbitrators accept cases as old as five to seven years. Some go back even further. Cases more than ten years old are likely to be rejected, especially if new management has taken charge.
Note: Arbitrators sometimes excuse past leniency if societal views on an offense have hardened. Examples include sexual harassment, safety, drug use, and violence. Penalties imposed before the union negotiated its first contract may also be rejected.
How many needed? A single comparable, especially if recent, can establish disparate treatment. The union does not have to prove a “past practice.” An exception may apply to an attendance case in a large enterprise; because employees can fall through the cracks, an arbitrator may insist on more than one case of unequal treatment.
Grievance tip: Stewards should make entries in their notebooks or on their computers whenever they learn of an employee who openly violates a company policy without being penalized. Such incidents can be invaluable when defending other employees.
Settlements. A comparable employee may have received a lesser penalty due to a grievance settlement or a “last-chance agreement.” Review the agreement. If it states that it is “without prejudice” or is “non-precedential,” an arbitrator is likely to reject it as evidence of disparate treatment.
Supervisors. If comparables cannot be found within the bargaining unit, the union should consider nonunit personnel such as supervisors, office staff, and engineers. When a rule applies to all employees in a facility—a ban on fighting, for example—the equal treatment rule applies. An employer may not impose a substantially harsher penalty on a bargaining unit member than it imposed on a nonmember who committed the same offense.
Note: Under U.S. labor law, a union has a right to examine the personnel file of a supervisor or other non-unit employee if it has a factual basis for believing that the person engaged in similar misconduct as the grievant and if the rule in question applies to all employees.
Grievance tip: Stewards should make dated notebook entries whenever they observe a supervisor violating a rule or policy. 

An employer can defeat a disparate treatment claim if it has a valid basis for imposing a harsher penalty on the grievant. For instance, in comparison with prior offenders, the grievant may have:
• A more egregious disciplinary record 
• Considerably less service time
• Committed a more severe or dangerous infraction
• Acted intentionally
• Been warned recently for committing a similar violation
• Fewer mitigating or extenuating circumstances
• Refused to accept responsibility
• Threatened witnesses
• Been uncooperative during the investigation
Example: A worker was fired for smoking in the plant. Although the company only gave written warnings to previous offenders, an arbitrator rejected the union’s claim of disparate treatment because the grievant, unlike the others, smoked in an area where items were flammable.
Not every distinction between employees justifies a harsher penalty. Among the excuses arbitrators often reject are the following: 
• The supervisor who punished the grievant has a more demanding disciplinary philosophy than other supervisors.
• The grievant is a union steward or officer.
• The penalty given the comparable was a mistake.
Example: While differences in service time or past discipline can justify differences in penalties, wide disparities, for example, between a warning and a discharge, are frequently regarded as violations of the equal treatment principle. 
Cross-unit comparison
Q. A worker was fired for taking home scrap. Can we cite a member of another union in the facility who was only suspended for five days for a similar offense?
A. Yes. Employees who are subject to the same or similar rules should be issued the same or similar penalties, regardless of bargaining unit.
One vs. many
Q. Over the past five years, six employees were charged with failing to lock out their machines during repairs. The company fired five but gave one a 30-day suspension. Yesterday, another worker was fired for the offense. Can we argue disparate treatment?
A. Yes. The fact that most offenders were fired is beside the point. The significant fact is that the employer gave special treatment to a similarly-situated employee.
Post-discipline comparable
Q. We filed a grievance for an employee who was fired for refusing an order. A month before arbitration, the company issued a written warning to a worker for a similar transgression. Can we cite the warning as evidence of disparate treatment?
A. Yes. Most arbitrators say disparate treatment can be proven by subsequent events.
Negligence is negligence
Q. Employee M was fired after backing his truck into a loading dock and causing $8,000 in damages. Two years ago, the company suspended employee T for a similar accident with damages of $500. Can we claim disparate treatment?
A. Yes. When negligent acts have the same potential for causing harm, arbitrators often insist that employers apply similar penalties, even if the actual damages are significantly different.
Similar highs
Q. The company fired a worker who tested positive for marijuana. A year ago an employee who came to work drunk was suspended for two weeks. Disparate treatment?
A. Yes. Treating employees who commit drug offenses more harshly than employees who commit alcohol offenses violates the equal treatment principle.
<>Holding steward to higher responsibilities
Q. A steward was suspended for loafing, a heavier penalty than is usually applied for this offense. During the second-step grievance meeting, the general manager said that the penalty was justified because “stewards are supposed to set an example.” Does this give us a case?
A. Yes. Other than illegal strikes and refusals to obey, an employee’s status as a steward does not justify enhanced punishment. <p
Failure to investigate others</p
Q. Company policy requires employees to be drug-tested if they have an accident that causes lost time or a need for medical care. A worker who went home after a fall was tested and fired for cocaine. Can we argue disparate treatment because two other employees and a supervisor who incurred lost-time injuries were not tested?
A. Yes. As one arbitrator explained: “Disparate treatment arises when the grievant has been treated unequally with respect to notice, application of a rule, investigation, proof, or penalty.” Investigating the grievant but not the other employees violates the equal treatment principle.
Q. After we won an arbitration case by pointing out that employees who violated the company’s “zero-tolerance” fighting policy have not always been fired, the company posted a notice that in the future it would discharge all offenders. Does this preempt future disparate treatment claims?
A. Possibly. Although the logic is not apparent, many arbitrators overlook past favoritism if an employer makes a public announcement that a penalty will be applied in all future cases.
Possible repercussion
Q. If we cite an employee who received a lenient penalty for the same offense, could management increase the penalty to make it consistent?
A. No. As explained in Chapter 3, the double jeopardy rule prevents an employer from increasing a previously assessed penalty.
This is a sample chapter from Just Cause: A Union Guide to Winning Discipline Cases by Robert M. Schwartz. 
You can order
 Just Cause by downloading an order form or by going to our online store.

What's a Title VII Case Worth?

The post below describes a "garden variety emotional distress" claim and how Second Circuit Judge Gardephe defines a case brought before him.

Betsy Combier

Keeping track of the civil rights opinions of the United States Court of Appeals
for the Second Circuit. Brought to you by Bergstein & Ullrich, LLP.


That's the question that guides every employment discrimination case. For plaintiffs' lawyers, it comes up at the intake meeting with the potential client. Defendants want an answer in case they lose. Mediators need an answer to help everyone settle the case. Jurors want an answer when they are deliberating (they don't get that guidance, by the way). And the judge needs an answer to resolve a remittitur motion. This case provides some guidance.

The case is MacMillan v. Millenium Broadway Hotel, 2012 U.S. Dist. LEXIS 80765, a Southern District of New York case decided on June 11. The jury found that plaintiff was subjected to racially hostile work environment because a supervisor, Scudero, allowed co-workers to call him "the N word." In 2008, Scudero returned from a trip to New Orleans with six souvenir voodoo dolls that he distributed to managers around the office, to plaintiff's dismay. Plaintiff later saw one of the dolls hanging from a noose in the office. Another was hanging from a bulletin board. Human resources investigated, and some remedial measures went into place, but no one was disciplined or terminated as a result of the voodoo dolls. On top of this, plaintiff's co-worker used a racial epithet in the workplace. The Hotel investigated but was unable to corroborate the use of this epithet.

So that's the liability evidence. The jury awarded plaintiff $125,000 in compensatory damages and $1,000,000 in punitive damages. On defendant's post-trial motion, Judge Gardephe upholds the verdict but reduces the damages award considerably. Plaintiff was not fired from his position over this. He testified that his work environment was "horrible" and the voodoo doll incident "was very detrimental to me." Plaintiff's  daughter testified that plaintiff "was always sad" in working for Scudero and "wasn't as happy anymore" and "wasn't his same self" when Scudero became his supervisor.

Judge Gardephe notes that, in the Second Circuit, there are three kinds of pain and suffering in these cases: garden variety, significant and egregious. He cites Olsen v. County of Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009), for this proposition. Here's the thumbnail:

In 'garden variety' emotional distress claims, 'the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury.' Such claims typically 'lack[ ] extraordinary circumstances' and are not supported by any medical corroboration."

"'Significant' emotional distress claims 'differ from the garden-variety claims in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony and evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses.'"

"Finally, 'egregious' emotional distress claims 'generally involve either "outrageous or shocking" discriminatory conduct or a significant impact on the physical health of the plaintiff.'" "In 'significant' or 'egregious' cases, where there is typically evidence of 'debilitating and permanent alterations in lifestyle,' larger damage awards may be warranted."
 This is worth knowing, and Olsen is a case that's worth reading for more insight into this. Each case is different, and not every civil rights violation can result in a large damages award. Plaintiff's case is "garden variety." The trial court is constrained by the evidence outlined above. Plaintiff did not seek medical treatment, miss work or lose any sleep or appetite. "Such evidence, at best, demonstrates 'garden variety' emotional distress. To the very limited extent that McMillan described his injury, he did so in 'vague or conclusory terms' without 'relat[ing] either the severity or consequences of the injury.' His claims were likewise 'not supported by any medical corroboration.'"

Judge Gardephe summarizes the cases in this area. "In the Second Circuit, '[g]arden variety' emotional distress claims 'generally merit $30,000 to $125,000 awards.'" However, "Where a plaintiff offers only sparse evidence of emotional distress, however, courts have reduced such awards to as little as $10,000." The Court distinguishes this case from one that entitled the plaintiff to more compensatory damages:

In Mugavero v. Arms Acres, 680 F. Supp. 2d 544 (SDNY 2010), the plaintiff "testified that her emotional distress from being terminated had specific consequences in the form of increased anxiety and insomnia ... and provided corroborating medical evidence." Moreover, this Court found that "the conduct ... went far beyond typical discipline imposed in the workplace, and threatened Plaintiff's ability to earn a living and practice her profession." Accordingly, the Court determined that "[g]iven that [plaintiff's former supervisor's] action was 'more offensive conduct' than is commonly seen in a 'garden-variety' case, neither the emotional distress award of $100,000 for Mugavero's termination nor the total emotional distress award of $175,000 [representing emotional distress damages of $100,000 for her termination and $75,000 for the supervisor's bad faith request to the Office of Professional Discipline to investigate plaintiff] shocks the conscience or is excessive."

As for punitive damages, the $1 million is reduced to $100,000. "A survey of punitive damage awards in discrimination and retaliation cases reveals that the $1 million award here is excessive and should be reduced significantly." Judge Gardephe adds, "[t]he Court finds that '[t]he defendant's conduct, while meriting some award of punitive damages, was by no means as reprehensible as that in many other [employment] discrimination . . . cases.' Cases upholding punitive damage awards of $200,000 or more generally involve discriminatory or retaliatory termination resulting in severe financial vulnerability to plaintiff, repeated incidents of misconduct over a significant period of time, repeated failures to address complaints of discrimination, and/or deceit. ... The Court concludes that a punitive damage award of no more than $100,000 is proper in this case."

Mayor Bill de Blasio Ignores Homeless Teens, Just Like Mayor Bloomberg Did

Mayor Bill has turned his back on almost everything that he promised when he was running for Mayor. His dislike of the harm done to the poor and needy while Mayor Bloomberg was in office was not, indeed, a dislike at all. De Blasio is following in Mike Bloomberg's footsteps.

Shameful. Make de Blasio a one-term Mayor. Get people who honor their own promises to run.

Betsy Combier

NYC Mayor Bill de Blasio

Housing Homeless Youth Poses Challenge for Mayor de Blasio

Lijuan Hartfield, 18, has been homeless for the past two months. He said shelters for youths always have a
waiting list.

Lijuan Hartfield often caught up on sleep on the subway, at friends’ apartments, sometimes at a 24-hour McDonald’s.
“Embarrassing,” he said. “And I have to buy something.”
Eighteen years old and until recently homeless, Mr. Hartfield said shelters for young people always had a waiting list, so he spent his days figuring out where he would spend his nights. Once, he said, he sought refuge in a drop-in center for homeless adult men with mental illnesses.
“I slept in a chair with other people sleeping in chairs,” he said. “Poverty will really take a toll on your mental health.”
During the mayoral campaign, Mayor Bill de Blasio said he would see to it that all homeless youths had beds. But after advocates for the homeless filed a federal lawsuit accusing the city of illegally denying young people shelter, just before he took office, the mayor has surprised them, they said, by fighting the case.
“It’s incredibly disheartening,” said Kimberly Forte, a supervising attorney with the Legal Aid Society, which filed the lawsuit in the waning days of Mayor Michael R. Bloomberg’s tenure in 2013. “We’re not seeing a new way of thinking about young people when it comes to homelessness from this administration.”

Tanzina Mosammat, 19, who has been at Covenant House since December, is getting help finding a job as a
store clerk or restaurant hostess.

Mr. Hartfield often hangs out at the Apple Store in the Meatpacking District where he checks email and social media.