Tampa Attorney Files Lawsuit Against Phony “SEALS”

A Tampa attorney has filed a lawsuit on behalf of a retired Navy SEAL against individuals who claim to be SEALs, but allegedly are not.

The plaintiff is Don Shipley, who retired from the Navy as a Senior Chief and now owns a business called the Extreme Seal Experience.  The Extreme Seal Experience is a training camp for anyone who wishes to prepare for Seal Training, Ranger School or any of the other elite military courses.  According to Shipley, students also include business people, accountants, attorneys, etc.  My initial thought is why would someone pay anyone to endure the kind of abuse that you would find at SEAL training or any of the elite military schools.  After watching one of Shipley’s videos, I thought it is only one week.

According to Shipley there are other businesses that offer similar experiences.  Shipley’s problem is the owners of these businesses hold themselves out as former Navy Seals, but they lack the necessary credentials.

Shipley’s lawsuit alleges that the defendants interfered with his business by fraudulently misrepresenting themselves to potential customers as former Navy SEALs.  Shipley also alleges that the defendants have tarnished and harmed the reputation of all SEALs.

Shipley says that he is not after the barroom loudmouth who may connect himself with the Navy SEALs to pick up the girl.  Rather, he wants to go after those who try to profit off of SEALs credentials, which they do not have.

Shipley’s lawsuit may be the first of its kind.  Certainly, it will be worth watching as the case develops.

 

NFL News: Leaf vs. Luck

Two days before receiving the honor of becoming the number 1 pick in the 2012 NFL Draft, Andrew Luck has been served with a lawsuit from Leaf Trading Card Company.

Leaf Trading Cards filed suit claiming that it has the right to sell trading cards with Andrew Luck’s image from a photo taken in the 2008 U.S. Army All-American Bowl.  The U.S. Army All-American Bowl is a high school all star football game that is usually played in January.

Leaf Trading Cards claims that it has been selling these cards since 2010.  Leaf also contends that both common law and licensing rights allow it to sell the cards.  Luck’s attorneys disagreed and sent Leaf Trading Cards a cease and desist letter on April 13.  Leaf Trading Cards responded by filing its lawsuit.  This lawsuit is not a case for damages.  Rather, Leaf Trading Cards is seeking a declaratory judgment from the Texas courts.  A declaratory judgment is an attempt by a party to receive a ruling from a court defining that parties’ rights and obligations.   Unless the court finds flaws in the licensing agreement, this should be an easy victory for Leaf Trading Cards.

 

 

 

 

 

 

Giving credit where credit is due, I have to thank “the Shutdown Corner” and Yahoo sports for providing the following quote regarding the story “If anything, I think Andrew Luck should sue them for putting his name in the same sentence as “Leaf” so close to the NFL draft.”  See “Andrew Luck is Being Sued.”  This makes me wonder if I am the only one who did not think Ryan Leaf after hearing the name Leaf Trading Cards.

 

Tampa Bay Leadership Prayer Breakfast is May 15, 2012

 

Wally Armstrong is the guest speaker at the Tampa Bay Leadership Prayer Breakfast:

At the Tampa Convention Center
May 15, 2012
7:00 a.m. to 8:15 a.m.
(Breakfast at 6:30 a.m.)

 

 

 

 

 

TICKETS

Individual tickets are $32.66 purchased on line through Eventbrite.  After purchasing, print out your online ticket and bring with you to the Breakfast.

Tickets are available at the door for $35.00 and will be available on a first come, first served basis.

To order online go here: Tickets

or send a check to:

CBMC OF Tampa,
C/O Ferlita, Walsh, Gonzalez CPAs
3302 West Azeele Street
Tampa, FL 33609-4926

Wally Armstrong, President of Gator Golf Enterprises, Inc., has played professionally and taught golf since 1968, and has conducted clinics and teaching seminars throughout the world.  A graduate of the University of Florida, where he earned both a bachelor’s and master’s degree in Education, Armstrong was a member of the college golf team and earned All-American recognition in 1966.

A PGA member since 1974, he has competed in more than 300 PGA Tour events. In his first Masters he finished fifth setting a rookie record score of 8 under par. He competed in numerous majors including the British Open, Masters, U.S. Open, PGA Championship and the Tournament Players Championship . During his career Armstrong was a solid frontrunner on the PGA Tour and led in over 30 tournaments, finishing second 4 times and one year finishing 7 times in the top ten. Because of his exceptionally consistent record, he was awarded a lifetime membership to the PGA Tour. In recent years he has played in some US and European Senior Tour Events.

More information on Wally here: Wally Bio.

 

 

 

Discrimination Based on Gender Stereotypying

In Glenn v. Brumby, the U.S. Court of Appeals for the Eleventh Circuit held a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.  For the Eleventh Circuit, this ruling sets a major precedent.

For a complete discussion of the Glenn v. Brumby, see “The Eleventh Circuit Bridges the Gap” by Stephan T. Mashel.

 

EEOC Explains How to Avoid Sexual Harassment Suits

During an interview, the Equal Employment Opportunity Commission used a Burger King franchise as an example in its discussion of steps that an employer should take to minimize sexual harassment lawsuits.  The EEOC provided the following suggestions:

• Clearly communicate to employees that sexual harassment (and other forms of discrimination) will not be tolerated.
• Provide sexual harassment training to their employees
• Establish an effective complaint or grievance process (make sure there is more than one way to complain, so you don’t wind up with the fox guarding the henhouse, or a harasser/ harasser’s best friend being the person who received complaints)
• Take all reports of discrimination or harassment seriously. This means making sure that all your employees know they have a duty to bring any unfair treatment or harassment to your attention.
• Managers act immediately to correct the situation. Respond with immediate and appropriate action when an employee complains.
• Employees have a right to complain about treatment that they believe is illegal job discrimination. You cannot punish employees, treat them differently, or harass them because they report job discrimination or help someone else report job discrimination, even if it turns out that the conduct was not illegal.

Having the best policies in place is not enough.  Business owners need to make sure that their managers are familiar with the policies and know how to enforce the policies.  Follow this link for more on “EEOC Says How to Avoid Sexual Harassment Suits.“

 

Employers Must Enforce Their Sexual Harassment Policies – Ask the International House of Pancakes

Many companies have policies in place that are geared towards preventing harassment and discrimination.  Simply having a policy will not render a business immune from liability.  Supervisors must be trained and these policies must be enforced.

IHOP Loses Another Sexual Harassment Case

Recently, an International House of Pancakes franchise learned this lesson the hard way.  (Another sexual harassment case against IHOP? Say it isn’t so. See Cobb v. Sunshine Restaurants discussed below). Two teen employees filed a sexual harassment lawsuit against IHOP based on the conduct of its supervisor.  He frequently propositioned these young ladies including asking if they enjoyed “rough sex.”  The girls (not ladies; dude they are teens) complained to the restaurant manager who did nothing.  At this point IHOP’s fatal error becomes obvious to the casual observer.  A jury awarded the teens  $4000 and $1000 respectively for lost wages.  The teens were also awarded $100,000 in punitive damages.

At this point, you would say IHOP lost, game over.  IHOP, however, was convinced it did nothing wrong and filed an appeal.  IHOP argued that everyone had to attend sexual harassment training.  Everyone included employees and managers.

The court, considering IHOPs, appeal refused to overturn the verdict.  The court noted that although the policy required harassment training, IHOP did not provide everyone with harassment training.  One manager noted that she never received the training although she was required to provide the training to her employees.  The court further noted that in cases with teens, extra care must be taken to address claims of harassment.

The mere creation of a sexual harassment policy will not shield a company from its responsibility to prevent sexual harassment in the workplace.

Reading the facts of this case, it is hard to believe that IHOP would waste the court’s time with an appeal.  This case involved sexual harassment by a supervisor, followed by the failure of the restaurant manager to investigate the claims of harassment.  Even if IHOP’s  anti-harassment policies were carved in stone, that would not be enough to escape liability.  The bottom line is business owners must take all allegations of harassment seriously and immediately launch an investigation when employees claim that they have experienced workplace harassment.

If you have any questions about sexual harassment, be sure to call Rich Bradford at (813) 413-2402.

As a side note, there is a very good chance that IHOP’s attorneys advised them that their chances of prevailing on appeal were slim.  IHOP probably went forward with the appeal to erase the $100,000 punitive damages award.

 

Sources:  Equal Employment Opportunity Commission v. Management Hospitality of Racine, Inc., 666 F.3d 422 (7^th Cir. 2012)

 Seventh Circuit Issues Important New Guidance for Employers Seeking to Avoid Sexual Harassment Liability

 More than Just Paper: Sexual Harassment Policy Won’t Work Without Supervisor Training

 

Bipolar Employee Wins Verdict in ADA Case

Reilly Wins Discrimination Suit

About a month ago, I wrote about an employee who has a disability discrimination case pending against Regions Bank.  The employee has bipolar disorder and unless a settlement is reached, there is a very good chance that this case will go to trial in the next month or so. See below discussion of  Muzyka v. Regions Bank.

Last week, news reports released a story about another bipolar employee who took his employer to court.  The employee was able to persuade the judge that his employer discriminated against him and recovered a verdict of $56,500.

Sean Reilly was diagnosed with bipolar disorder while he was in college.  Although treated for the condition, he had problems and dropped out of college.

Reilly then took a job as an assistant manager with Cottonwood Financial. Cottonwood owns and operates pay day lending stores in a handful of states.  Reilly decided to stop taking his medication after gaining almost 100 pounds.   Afterwards, Reilly started feeling paranoid and believed that people were talking about him behind his back.  Afraid that others would spy on him, he threw out his cell phone.  Reilly eventually had a nervous breakdown.  He called in sick and his boss denied his request saying that someone needed to cover the store.  Reilly went to work and requested two weeks of leave, which also was denied.  Within a month, Cottonwood terminated Riley’s employment.

After a four day bench trial, Judge Edward F. Shea of U.S. District Court for the Eastern Washington ruled in Reilly’s favor.  A bench trial is a trial before a judge without a jury.  Reilly’s attorney took a different approach because more often than not, employment law plaintiffs would rather have a jury trial.

Judge Shea found that Cottonwood’s ADA policies and practices were deficient. The judge also found that Cottonwood’s reasons for firing Reilly were a pretext – i.e., cover-up – for intentional discrimination.  Reilly’s attorney noted that this case is significant because the employer regarded and perceived him as disabled and incapable of doing his job.

Reilly, by the way, was able to return to school and earn his degree.

For questions on the Americans with Disabilities Act and other employment related matters, call Rich Bradford at (813) 413-2402.

 

Keith Olbermann Sues For Breach of Contract After Getting Fired by Al Gore

Last week, the press reported that Current TV and Al Gore fired Keith Olbermann.  On March 30, Current TV stated that it released Olbermann because he no longer represented the channel’s values.  Olbermann experienced quite a bit of tension during his tenure with Current TV.  Among other things, Current TV was disappointed that Olbermann decided not to participate in the coverage of the Republican primaries.

It did not take long for Olbermann to file a lawsuit against Current TV for breach of contract.  An excerpt of the Olbermann lawsuit states:

“Current’s sudden and public termination of Olbermann was the latest in a series of increasingly erratic and unprofessional actions undertaken by Current’s senior management,”

Olbermann also included the following allegations in his complaint:

— broadcasting ads containing Keith’s image without his consent

— using guest hosts for “Countdown” without Keith’s approval

— refusing to give Keith editorial control over special election coverage

— disclosing the confidential terms of his contract

— linking Keith’s name and goodwill with corporate endorsements without his consent

— disparaging Keith publicly

— refusing Keith’s request to stream segments from his show on his website

— refusing to invest resources in the show

While Olbermann was quick to file his lawsuit against Current TV, his former employer was just as quick in filing a counter-suit.  Current TV is seeking a declaratory judgment stating that Olbermann’s lawsuit is frivolous and should be dismissed.  Current TV points to an interview that Olbermann gave on the David Letterman show.  On the Letterman show, Olbermann stated that he “screwed up” and it was his fault.

We cannot determine who will prevail in this case reading newspaper articles and gossip columns.  I have to say, a personality like Olbermann going after the former vice-president does make for entertaining discussion.  If this case goes before the judge, the critical piece of evidence is Olbermann’s employment contract.

In reviewing the contract, the obvious factor to consider is the termination clause of the contract.  In other words, under what circumstances could Current TV terminate Mr. Olbermann.  In employment contracts, the standard is “just cause.”  This definition by itself can be elusive, but in many cases the employee would have to do something really bad in order for a court to uphold the just cause standard.  The just cause standard differs from at-will, which says an employer may terminate an employee for a good reason or a bad reason.   Certainly, Olbermann’s attorneys would not have allowed him to sign a contract containing the “at-will” language.  So in this case, we would have to look at the termination provisions or how the drafters defined “just cause” to determine whether the vice-president had a legal basis for releasing Keith Olbermann.  No doubt his refusal to cover the Republican primaries was a big deal.

Additionally, looking at Olbermann’s other claims, such as the use of his image, guest hosts for Countdown, and editorial control, we should look at the language of the contract to determine whether there is merit to Olbermann’s claims.

In Florida, you will not find many employment contracts.  These agreements are usually drafted for high ranking managers and executives.  When such agreements are prepared the parties should be careful in drafting the “just cause” language to reduce the likelihood of being going to court should there be a need to end the employment relationship.

Personal Footnote: In putting together this post, I thought about locating a nice picture of Mr. Olbermann.  Considering that he is suing the vice-president for $70 million, I decided that I could not afford to be brought into court.

 

Texas Hospital Invites Employment Litigation on Multiple Fronts

Hospital CEO says Fat Nurses Need Not Apply

I found the following article about a Texas hospital whose personnel policies will keep it in court for a very long time.  First, the hospital invited litigation from its Indian employees because the CEO wrote a memo stating:

I feel a sense of disgust but am more concerned with what this means to the future of the hospital as more of our Middle-Eastern-born physicians demand leadership roles and demand influence.

It will change the entire complexion of the hospital and create a level of fear among our employees.

I hope this is a case where the CEO is failing to listen to his HR people and legal team.  I hate to see this as a case where his staff members gave him the green light to institute such a poorly reasoned memo.  CEOs, you need to listen to your legal staff and HR department.

Now, the hospital CEO is trying to invite claims of disability discrimination or even gender discrimination because of his declaration of war on overweight nurses. The CEO actually banned job applicants from being overweight.   If his issue is the ability of the applicant to perform his/her duties, then an individualized inquiry is necessary.  If he is concerned about patient perception, then he is inviting many problems for the hospital.  For more details check out:  Fat Nurses Need Not Apply.