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Tag Archives: Employment Law

When Confidentiality Means Stay Off Facebook

Many people may have caught this story from Yahoo headlines, Google News, or even on Twitter.  Every attorney and litigant should learn from the mistakes of Patrick Snay.

Patrick Snay brought discrimination and retaliation claims against Gulliver Schools where he served as headmaster until his contract was not renewed.  Gulliver Schools and Snay reached a confidential settlement agreement.  Pursuant to this agreement, $10,000 went to Snay as back pay, $80,000 went to Snay via 1099 (probably compensatory damages), and $60,000 went to Snay’s attorneys.  The confidentiality provision stated that Snay would not disclose the terms of the settlement to anyone besides his wife, attorneys or other professional advisers.    This common language in the settlement agreement became a major stumbling block for Snay.  Snay has a college-age daughter who also previously attended Gulliver.  Snay and his wife shared with their daughter that the case was settled and they were happy with the result.  One would think this is harmless.  Of course, Snay would tell his wife and his daughter is part of the family.  The daughter who apparently is quite popular with 1200 friends shared her parents’ good fortune on Facebook by typing:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.

It only took Gulliver four days to contact Snay and tell him that he was in breach of the agreement.

Gulliver paid Snay’s attorneys the $60,000 mentioned above.  With respect to the $80,000, Gulliver argued that Snay was in breach and withheld the funds.  Snay sought to enforce the settlement and he prevailed before the trial court.  The trial judge ruled that neither Snay’s comments to his daughter nor his daughter’s Facebook comments constituted a breach of the confidentiality agreement.   Gulliver could have left things alone, written a check and let the Snay family go on vacation.  Instead, Gulliver appealed.

The appellate court ruled in Gulliver’s favor reversing the decision of the trial court.  The appellate court noted that absent evidence that the parties intended any special meaning to the terms of the contract, the unambiguous language is to be given a realistic interpretation based on the plain, everyday meaning conveyed by the words.  The court then noted that neither Snay nor his wife could disclose to anyone, except their lawyers or other professionals, the terms of the agreement.  The court ruled that Snay’s conversation with his daughter stating that “it was settled and we are happy with the results” established a breach of the confidentiality provision.   The court added that Snay violated the agreement by doing exactly what he had promised not to do.

Thus, another example of loose lips sinking ships.  This decision should serve as a warning that attorneys must advise their clients to honor the terms of a confidentiality agreement.  In an ordinary sense, certainly the idea of discussing the matter with other family members would seem harmless.  This case shows that simple words such as “we settled” and “we are happy” are sufficient to lead to a breach of the agreement.   This teachers that close attention needs to be paid to familiar provisions of the settlement agreement.    Even the simple statement, “we are happy” could lead to the forfeiture of thousands of dollars.  Victory laps following the signing of a settlement agreement are never a good idea.

 

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High School Terminates Woman Over Facebook Photo

Boyfriend Who Appeared in Picture Remains Employed

While surfing through the news this evening, I came across an interesting story that may form the basis for a lawsuit.  A man and woman were employed by a high school in Pocatello, Idaho.  (Am I the only one thinking of the B-52s right about now-one).  At this point, I should use caution in my grammar.  The man is employed by Pocatello High School.  The woman was employed by the Pocatello High School.  The man coached the football team, over the years won more than a few championships, and is in the high school football coach hall of fame.  The woman was the coach of the woman’s basketball team.  They are engaged to one another and during a family gathering over the summer someone took a photograph in which the man is holding the woman’s breast.  The photo was posted on the woman’s Facebook page.  Within 24 hours, the woman removed the photo from her page.  Nevertheless, the damage was done.  The school fired the woman and reprimanded the man.  While the man was guilty of holding, the school maintained that the woman had engaged in immoral behavior.  The school is not criticizing the woman for the picture.   Rather, it terminated her for posting the photograph on Facebook.

 

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Despite the public outrage surrounding the story, the school is asserting that it made the right decision to fire the woman and reprimand the man.   A grievance of the woman’s dismissal is pending.

It is not clear whether the woman would prevail in a discrimination case.  From the comments that I have read, if this case were submitted to the court of public opinion, Pocatello High School would be in big trouble.  In cyberspace, everyone has an opinion and I comments supporting the high school are few and far between.

Sex or gender discrimination involves treating someone unfavorably because of that person’s sex.  The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.  If you need to talk to a labor and employment attorney about discrimination or wrongful termination, call Rich Bradford at (813) 413-2402.

 

 

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Race Discrimination Claims Against Paula Deen Dismissed

This probably will not be my last post on the Paula Deen case.  In an interesting, if not predictable, development, U.S. District Judge William T. Moore dismissed the racial discrimination portion of Lisa Jackson’s lawsuit.

In case you missed it, the Paula Deen story was a hot topic in the news and internet during June and July. In the spring of 2012, a former manager at one of Deen’s restaurants brought a lawsuit against the restaurant, Paula Deen and her brother Bubba.  Jackson alleged that she was the victim of sexual harassment by Bubba.  In addition to harassment claims, Jackson, who is white, brought claims of racial discrimination against the defendants who allegedly made racial slurs about African Americans.  Fast forward to May 2013, and Paula Deen has her deposition taken.  Paula Deen admits using the “N-word” in the past, approximately 25-30 years ago.  She also admits that jokes were told at work – black jokes, Jewish jokes, redneck jokes.  To be fair to Paula, there was no indication that she told the jokes.  See Paula’s deposition transcript here.

Sometime in June 2013, Deen’s deposition transcript hits the press.  Many labeled Paula Deen a racist and threatened to boycott the Food Network.  The Food Network decided not to renew Deen’s contract, which was due to expire June 30, 2013.  Deen’s fans are upset and have decided to boycott the Food Network.  Later, Wal Mart released Paula Deen and K-Mart, and Smithfield Foods, Home Depot, etc. etc. all released Paula Deen.    Some guess that the impact of these severed relationships is in the neighborhood of $12 million.  By the way, in the last week of June, Paula Deen was bigger news than the Supreme Court’s decisions on DOMA and Proposition 8.

When Jackson filed her lawsuit it was reported that she was seeking $1.2 million.  Understand that I am not trying to play Monday morning QB, but if Deen’s attorneys had convinced her to settle for $750-900k, she probably would not have lost her $12 million empire.  Remember this all started when Jackson quit because she alleged sexual harassment by Bubba.  Moreover, the sexual harassment claim is viable.  Paula testified that Bubba would look at porn at work.   Because the case did not settle, Deen’s deposition became public, Deen has been labeled a racist, and Corporate America has decided to distance itself from her.

Ironically, the judge dismissed the race discrimination case.  Near the end of a twenty page decision on race discrimination, Judge Moore ruled:

Plaintiff is not an aggrieved party under Title VII because her interests are not arguably sought to be protected by that statute.  At best, Plaintiff is an accidental victim of the alleged racial discrimination.  There are no allegations that Defendant Hier’s racially offensive comments were either directed toward Plaintiff or made with the intent to harass her.

See Judge Moore’s August 12, Order.

For whatever its worth, the lawyers on both sides are working very hard on this case.   There is little doubt that the next move by either side will generate further interest in the Paula Deen saga.

If you have questions about employment discrimination or labor and employment law, give Rich Bradford a call at (813) 413-2402.

Legal Stuff:   The information on this blog is not legal advice and is not intended to create an attorney-client relationship. Please consult with an attorney if you have specific legal questions. Hiring an attorney is an important, personal decision which should not be based solely on advertisements. Before you decide, contact us and we will send you free written information about our qualifications and experience.

 

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Paula Deen’s Deposition Transcript

What did Paula Deen say to Ms. Jackson’s attorneys? In case you are interested, here is a link to Paula Deen’s Deposition Transcript.  By the way, the Food Network decided that it will not renew her contract, which expires at the end of this month.

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Related Posts:  Paula Deen Sexual Harassment Update – “They’re Just Jokes;” Sexual Harassment: Managing the Mess Created By Paula Deen’s Bubba

 

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Paula Deen Sexual Harassment Update – “They’re Just Jokes”

“Want to hear a funny joke”

A year ago, I posted on problems at Paula Deen’s restaurants.  One of her former managers brought a lawsuit raising allegations of racial discrimination, racially insensitive language, and sexual harassment.  Immediately after the allegations came to the surface, Deen’s attorneys denied any wrongdoing.  Soon thereafter, Deen’s popularity continued.  Going through supermarkets you see her on the cover of magazines.  Personally, I do not watch cooking shows, but I suppose she has continued to make television appearances.

Now, nearly a year later recent reports suggests that there is merit to the former manager’s claims.  The manager’s attorneys have taken the deposition of Ms. Deen and in the course of the deposition, she has made shocking admissions.  She indicated that she was aware that her brother, a business partner, is into porn, her brother has problems with alcohol, and he uses cocaine.  This is not a very good combination if you are a business owner.

Ms. Deen also admitted to using the “N Word,” by responding “yes of course.”  I suppose she was suggesting that everyone talks that way.  No Paula, we don’t.  She testified that she tells black jokes, Jewish jokes, and redneck jokes, then added that she cannot determine what offends another person.

In writing this, I am certainly not advocating ultra sensitivity, but she has to be more intelligent than this if she wants to continue to run a business.  Many corporations will devote an entire day annually training their supervisors and managers on discrimination and harassment.  Unfortunately, Ms. Deen has failed to read the memo.

Given these facts,  (and these are now facts, not mere allegations) I wonder how her attorneys were unable to persuade her to reach a settlement with the former manager.

Do you need an attorney to discuss discrimination, harassment or labor and employment law, call Rich Bradford at (813) 413-2402.

See also:  Paula Deen Admits Use of N-Word & Making Racial Jokes at Deposition;Sexual Harassment: Managing the Mess Created By Paula Deen’s “Bubba”;Paula Deen Racist Deposition Stuns the Web

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Fifth Circuit Rules Firing Breastfeeding Mom May be Discrimination

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The U.S. Court of Appeals for the Fifth Circuit recently ruled that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964.

The Equal Opportunity Commission (“EEOC”) filed suit on behalf of Donnicia Venters against her former employer Houston Funding II, LLC.  The suit was based on the Pregnancy Discrimination Act because Venters alleged that her employer fired because she needed to breast feed her child.  (For background see:  Did Judge Get this Right? – Breastfeeding is Not Pregnancy Related).    The district court or trial court entered summary judgment in favor of Houston Funding II and the EEOC filed an appeal.

On appeal, the Fifth Circuit considered, “whether discharging a female employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII.”  Reversing the district court, the Fifth Circuit answered the question in the affirmative.

The Court found that lactation is a physiological condition distinct to women who have undergone pregnancy.  Therefore, under Title VII and the Pregnancy Discrimination Act, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason.  As a result of the Fifth Circuit’s decision, Ms. Venters will be able to have her day in court.

If you have questions about employment discrimination or labor and employment law, give Rich Bradford a call at (813) 413-2402.

 

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Lessons on Sexual Harassment and Retaliation After Beavis and Butthead Attend a Conference

Though I have not seen Beavis and Butthead in nearly 20 years, I am familiar with their middle school humor.  Over the last week a situation played out that illustrated what would happen if Beavis and Butthead attended a Tech Conference.

Last week a woman by the name of Adria Richards, employed by a company called SendGrid, attended a conference called PyCon.  From the photos, it looked like the conference had a few hundred (if not more than a thousand) attendees.  Beavis and Butthead (not their real names – huh huh) happened to be sitting behind Ms. Richards.  As the speaker started making technical references that I admit I know nothing about, Beavis and Butthead started cracking jokes.

Ms. Richards became annoyed and decided to alert the organizers of their conduct.  Ms. Richards snapped a photo of the two men and attached the photo to a tweet of the jokes with the #pycon hashtag.

Soon thereafter the organizers removed the men from the conference.  Upon returning to work, one of the men learned that he was losing his job.  Right decision by employer? Probably not. But see my other posts on the at-will doctrine.

Now things really started to get weird.  The Tech World did not take too kindly to the employment decision.  Instead of going after Beavis’ employer, they went after Ms. Richards.  She received death threats, rape threats, racial slurs including the N-bomb, and anti-semitic remarks.  A few even publicized her personal information. 

Ms. Richards’ employer was not oblivious to the firestorm, having received their own hate mail.  So in the middle of last week, SendGrid published a message on their blog and Twitter stream announcing the termination of Ms. Richards’ employment. (??!!).  While many in the Tech World celebrated her termination, others are left scratching their heads.

Having read this story from a number of sources, I could not help but think about its legal implications. 

Although Beavis and Butthead’s conduct falls in the realm of harassment, it is doubtful that she would prevail if she pursued a harassment claim.  Not only is an employee required to show unwelcome sexual conduct, he or she must also show that the conduct was so severe or pervasive as to create a hostile environment.   Putting up with Beavis and Buthead jokes 8 hours a day, 5 days a week may create a hostile environment.  However a few jokes here and there – huh huh – or isolated sexual remarks are not enough to get your case before a jury.  It is also worth noting that the conference organizers took prompt, remedial action upon learning of the harassment.

Retaliation law presents a more difficult question.  Retaliation occurs when someone asserts his or her rights under harassment law – i.e. complaining about harassment – and the employer takes adverse action for engaging in the protected activity.  With respect to Ms. Richards’ case reasonable minds or a room full of highly talented employment attorneys could differ.

Notwithstanding the viability of any employment claim, it looks like SendGrid created more problems than expected by firing Ms. Richards. It did not take long for this story to go viral with it getting picked up by USA Today, Forbes, Ebony, and the first page/first story of Yahoo.

For whatever it is worth, the HR and legal teams in the Tech World need to engage in a massive mobilization effort to train employees and management on harassment law.  As for Ms. Richards and Beavis, I am sure both have impressive backgrounds and it should not take them long to secure employment elsewhere.

 

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