Thursday, September 24, 2009

Age Discrimination

I have been delaying posting on the blog because I wanted to post the cases in chronological order and I was having problems recalling details with cases that have been over for some years. So, I decided to go in reverse chronological order with the most recent first.

I was recently lucky enough to assist my partner Kristi in trying an age discrimination case to a jury. Kristi and my client is Sue, a 63 year old woman who had worked at the same hotel as a supervisor of housekeepers for 23 years before she was fired. Sue loved her job. It meant the world to her and she was good at it. She knew how to talk to the housekeepers and motivate them. Although many of her employees spoke Spanish and she did not, she had no trouble in communicating with them. Some of the housekeepers told Sue, in Spanish, that they considered Sue to be her grandmother. Sue loved that job and working extra hours was not a chore, but welcomed by her.

Sue was a homemaker once she got married. She never finished high school. Once she decided to go to work, when her children were older and she was divorced, she worked hard. Sue took pride in her job and was a joy at work.

When the hotel was sold, after awhile the new management used "code words" for age discrimination, Sue was "resistant to change," they asked "when was she going to retire," they said "Sue was set in her ways." The new head of housekeeping claimed Sue was "insubordinate" and refused to make beds, although she had been making beds all along. One day Sue came in and the head of housekeeping informed Sue that the hotel was going "a different direction" and Sue "no longer fit in." They fired her then and there.

Sue was devastated. She testified that she felt her world had come to an end. This housekeeping job was not merely a job for Sue, but Sue's purpose for living. Sue quit taking care of herself, her boyfriend and her granddaughter. She wouldn't get out of bed or bathe. She cried a lot. Sue was still like this when she came to see Kristi.

I helped with the trial. I picked the jury, took a couple of witnesses, and did some of the closing arguments. Kristi was responsible for the bulk of the trial. She gave opening statements and did most of the direct examination, some cross, and the opening part of the the first closing argument.

Sue was, by nature, a very sweet woman who had spent her life taking orders and not rocking the boat. At age 63, she didn't know what to do. After her firing she was depressed up until the time of the trial. She couldn't even look for another job because she lacked self-confidence.

What I admire about many of our clients is their fortitude and courage when put to the test. Sue never thought she had what it took to fight her employer, but her courage was actually seemingly endless. Once she started the case, she wouldn't stop. She received only one offer to settle, which was $3500 paid out over 7 months, along with her $26,000 per year job (after 23 years of service) back. Sue said no. We went to trial.

I am not going to relay what went on at trial, even though that is the fun part for trial lawyers to recite and regale. However, the purpose of this blog is to spotlight and honor those courageous clients who help to change things. The trial was hard on Sue. She had wanted to settle out of court, but the offer was an insult. Sue testified and had to defend herself and her performance. She had suffered a stroke a few months before, and she had to overcome the residual effects, such as some confusion, while on the stand. Even more difficult, she had to listen to employees lie about her performance, claiming that she had bad performance yet the employees conveniently failed to document any of these alleged shortcomings. This tore Sue up. It is hard to sit powerlessly while witnesses impugn your character and your work ethic. She sat quietly and listened and withdrew.

Sue had very little in lost wages, since she had suffered a stroke and her wages were small. She did not seek treatment for her depression because she could not afford to do so and people like Sue don't waste there time on luxuries such as counselling. Sue was determined to see the case through, but it was obvious how difficult the trial was on her. At times during the day, she was so withdrawn and quiet that I worried about her.

The jury suffered from some confusion. First, they said they were hung. The judge asked them to continue deliberating. They came back with a verdict, but misunderstood that the case was bifurcated and there would be a second portion for punitive damages. The jury awarded a gross amount, without attorneys fees of $130,000. When the jurors realized it was premature to assess punitive damages, they reduced the award to $50,000 and came back the next day to deliberate over punitives. We fully expected an award of $80,000, based on what had happened. After another closing argument, the jury deliberated, with two jurors who had not agreed with the liability portion of the verdict signing the punitive damage portion of the verdict and the jury awarded $150,000 in punitive damages, almost twice what they had indicated the day before. We are also entitled to attorneys fees to be determined.

The difference in Sue was immediate, and had little to do with the amount of money. Sue was so gratified and felt validated by the juror's belief in her. Her first reaction was to have a good cry, she had bottled her emotions for so long and her self-esteem had suffered so from the firing. Within hours, I could see glimpses of the real Sue, the Sue I imagined existed before the firing. She was smiling and joking. We went out to lunch, the four of us, Sue, Butch (her boyfriend), Kristi and me and had fun. Sue was relaxed. She began to talk of the future. Sure, some was the relief of the trial actually being over, but more was from her realization that not only did she have the strength to fight back, but also to win. The greatest change was in her self-confidence. When Sue was fired, after working for one place for 23 years, and fired at age 63, she was terrified of being rejected again and felt guilty because she could not force herself to look for work and expose herself to further rejection. Now Sue had her old confidence back and was going to look at work. I don't think I had ever seen Sue smile so much. It was a wonderful lunch, not because of the food but because of the wonderful company. I can't wait to see Sue in a few months, after everything sinks in. Our courageous clients who go through this process seem like new people after a few months, their faith in justice restored.

It is wonderful to help our brave clients restore their sense of self. This is my greatest satisfaction in this work. Sue is one of the kindest, sweetest clients we've had. It is gratifying to see her happy again. I can't describe my joy and satisfaction upon witnessing the changes in a client who musters the courage to fight especially when she wins. What a great job I have.

1 comment:

  1. I am asking about the use of the word 'slow' (not substantiated by any evidence) and the phrase 'talks too much' (also not accurate) as descriptors that are code for old?