Thursday, March 24, 2011

A Side of Plaintiff's Lawyers About Which No One Talks

Lawyers get a bad rap, and oftentimes it is deserved. There are lawyers out there who have a hard time connecting with their clients. Their primary goal in practicing law is either to make money or to massage their egos, or more likely, to do both. I imagine that those are some of the lawyers who complain about how hard it is to be a lawyer and every other lawyer is a shark that wants to hunt you. What an unsatisfying way to make a living. And, in the end, if the goal is revering the almighty dollar, what a sad, shallow existence.

Perhaps part of my motivation in writing this is because I have not yet found the case with the Golden Goose. Perhaps my words come from a sense of envy. Maybe a little. Especially when we have had a dry period, defendants going out of business to avoid paying a judgment or declaring a bogus yet legal bankruptcy to avoid a trial date. Both issues have arisen this past year. Yet, I can say I love what I do and I have had a spectacular life. I feel much satisfaction in understanding and caring about my clients and in working hard for them. Sometimes I can actually see that my client is enriched by bravely going forward to help herself and others. That is satisfying.

I had lunch today with a lawyer I did not know. In our conversation, he told me about a case he pursued for a poor man who had been injured by a mammoth company. This lawyer loves his client and took 72 depositions pursuing the case. The judge ordered a master for depositions, since the case became contentious and the master's fee was $70,000, in addition to the other expenses. The lawyer hired 4 experts,to the 1 expert hired by the defendants. As trial approached, the lawyer and his wife mortgaged their house, maxed out their credit cards, sold their furniture and jewelry, to finance the case. If the trial did not go well, the lawyer
and his wife planned to file for bankruptcy one month after the trial, so that the defendants wouldn't know they had caused his financial demise. Fortunately, he never had to file for bankruptcy, but he and his wife were ready to make that sacrifice for the case.

If I needed a lawyer, I would want one like my lunch companion. When he talked about his client, he spoke with love. He, and obviously his wonderful wife, care. There is no greater satisfaction as a lawyer than making a positive difference in the lives of clients whom you have grown to love. I think I will go see if I can find some more jewelry to hock to keep afloat until I get paid. It is worth it to have a few cash-flow problems in exchange for being blessed by being able to love this wonderful work - representing courageous people who demand their civil rights. I may mot be rich, but I am living a glorious life.

Tuesday, March 22, 2011

Courage in Politics: Doing the Right Thing Even If It Is Hard

This particular blog is intended for the legislators considering SB 188 and HB 205.  I imagine that people don't run for public office unless they have a desire to seek the public good.  It is inn the context of seeking the public good that I write this.

There is one very satisfying aspect of representing people in employment discrimination and whistle-blower cases, representing a person who has found his or her voice, a person who taps into the braver part of his or her personality.  Many people have beefs about something at work, but it is only a select few who we represent.  It is only a select few who have been wronged legally and have the fortitude to go forward. We represent people who have real cases for illegal discrimination and whistleblowing.  The ones we choose to represent have courage because it is hard to buck the status quo, to complain to or about ones boss, to rock the boat. I have always appreciated how courageous our clients are because going forward in a case like this is not easy. Discrimination and whistleblower claims are special because people who display the fortitude to go forward oftentimes go forward because they don't want what happened to them to happen to someone else.  Discrimination and whistleblower cases help society; they help each one of us. If it had not been for the courage of Rosa Parks, who knows where the Civil Rights movement would have gone.  If Dr. King had not taken up for Mrs. Parks, this might be a different society.  If someone had come forward to report Bernie Madoff, American society would have been better.

That leads me to SB 188, which limits the rights of people to go forward and bring cases of discrimination and whistleblowing.  The opposition claims, "We aren't eliminating these cases, we are just making them conform to federal standards."  However, that statement is not true.  Many courageous people will not be heard if this law were passed.  There are three parts of the bill which are troublesome - the elimination of individual liability, caps as low as $50,000, and passing a written whistleblower law that curtails the common law.

As an example of what this bill will do, I want to tell you about a couple of cases I have had.  I represented two women at a small not-for-profit business who reported that their boss was stealing from the company and downloading pornography to his computer.  This business had fewer than 6 employees and was run by a board of directors.  The boss was using the company credit card to purchase Christmas gifts for his family, buy electronics, etc.  One woman had been with the company for 26 years, the other for 18 years. Their terminations were emotionally devastating to both women, as they had put their hearts and souls into their work.  The first complainer was fired, the second was forced out.  The board of directors, all physicians, condoned the conduct and refused to take action except to authorize our clients terminations.  We had to sue the executive director individually.  The board of directors took no action against the executive director until after the second trial.  Finally, years later, he was fired.  By then, there was a judgment of $350,000 against the company and $200,000 against the executive director.  It was not until the second case settled in the middle of trial for $500,000 that the board took any action.  My old boss used to say, "People do the right thing if you make them."  The case got publicity, membership in the association which was the company faltered.  The company almost went under, but it did not.  When the membership learned of what the board had condoned, they were upset.  The problem was management and the board and what they had condoned.  Because of the lawsuits, the problems were fixed.  The executive director was fired, the board began to undertake their fiduciary duty and the company was saved.  If their had been a $50,000 cap on compensatory damages, which is what the new bills provides, this case probably would not have seen the light of day.  The litigation took years.  There is no provision for attorneys fees.  I fear our clients would have thrown in the towel.  The company was made better because of the lawsuit.

Likewise, I have represented women and girls in sexual harassment cases.  There are not near as many sexual harassment cases today because of the brave women who brought cases before and helped companies realize that sexual harassment training is essential.  Now, sexual harassment occurs in fast food restaurants with young girls.  They are young and naive.  They could be anyone's daughter.  Without the ability to name individual defendants, these companies fold and the owners open under a different entity's name.  Women are traumatized by sexual assaults and with this bill, women and girls will have little recourse.  The companies fold and open under a different name.  The only way to get accountability is to keep the individuals in as defendants.

I know our jury system is not perfect, but it is the best system in the world.  Missouri businesses are important, but not at the expense of our civil rights.  Plus, I know of not one company that has decided to locate in another state because of Missouri discrimination laws.  I am asking each of the Legislators, when deciding how to vote on these bills, to dig deep and vote your conscience.  It is hard to buck the system, especially when there is pressure to vote one way.  This issue is important. Please be proud of your vote.  

Sunday, March 20, 2011

The Rise and Fall of a Mayor: An Illustration of the Importance of the MHRA

This is the story of how one woman brave enough to fight with Missouri discrimination laws on her side kept her boss a one term mayor.  Ruth Bates filed a lawsuit for harassment, race discrimination and retaliation against her boss, the mayor of Kansas City, his wife and the city.  Without her courage and without the teeth of the Missouri Human Rights Act, Mayor Funkhouser probably would have been reelected, since every first term mayor in Kansas City has been reelected for the past 90 years or so.

The federal discrimination statute, Title VII, did not get teeth until 1991, when Congress amended the law to allow for jury trials and provided that a jury could award compensatory and punitive damages.  Missouri's human rights law got teeth in 2003, when the Missouri Supreme Court decided that Missouri employees had a constitutional right to a jury trial in discrimination cases.  State ex rel Diehl v. O'Malley, 95 S.W.3d 82 (Mo. 2003).  Even though Title VII and the Missouri Human Rights Act (MHRA) prohibited unlawful discrimination in the 1960's, it was not until recent times that either of these statutes have had meat.  Since 1991 sexual harassment has practically been eradicated in the workplace, employers have discrimination policies, equality in society has improved.

The MHRA provides that individuals can be sued and that punitive and compensatory damages are unlimited against employers, including government employers.  These parts of the statute are currently under attack in the Missouri Legislature.  This story shows the importance of enforcing the Missouri statute as it now stands.

Ruth Bates is a quiet, hard-working college-educated woman living in Kansas City, Missouri.  Before the mayoral elections in 2007, she receives a phone call from Mark Funkhouser asking her to help him get elected as mayor.  Ruth knows Funkhouser because he worked for the city with her husband and their children had been friends.  She agrees and works hard on the campaign and asks for and receives a job in the Mayor's office.  Unbeknownst to Ruth, when she hires in to work at the mayor's office, she is earning less than one half the salary of any of the male employees hired from the campaign to work in the office.  She also discovers that the mayor's wife, who has the mouth of a sailor, is the de facto supervisor of the office.  Ruth is African-American and the mayor's wife, on multiple occasions, calls Ruth, "Mammy," and makes crude sexual remarks. Ruth complains of the pay disparity to her actual supervisor, files an EEOC charge, and is ultimately fired from the Mayor's office and told she can be a clerk in the water department.  Ruth files a lawsuit for retaliation and discrimination.

The problem with suing an elected official is that there is no one in the government who is the official's boss, except the voters.  Generally, voters don't have access to what an elected official is really like and whether or not the elected official breaks discrimination laws.  Without discrimination lawsuits, and an informed and active press, an employee who has suffered discrimination has little recourse against an elected official.  In Ruth's lawsuit, we (I was her lawyer) sued not only the City of Kansas City, but also the mayor himself and his wife.  Under the proposed amendments to the statute, neither the mayor nor his wife would be in any way personally liable for their actions.

Ruth's initial goal before filing a lawsuit was to get fair pay in light of the salaries of the men, and to get the sexual and racial comments to stop.  Ruth did not want to work with the mayor's wife.  There is a Missouri constitutional provision prohibiting nepotism.  But, this illustrates the dilemma of having constitutional provisions or statutes which are not enforced.  The city council passed a volunteer ordinance, which was declared unconstitutional.  However, no one would raise the nepotism issue who had the ability to do so (e.g. prosecutor).  Ruth asked for very little money, just for a raise and to have the mayor leave his wife at home.   The mayor stated he would not leave his wife at home, so the case was not settled.

Ruth tried informally to talk to the mayor's wife to try to make the mayor's office a place she could work.  The meeting became very contentious.  It was clear to Ruth her only alternative for justice was to file a lawsuit.  We asked the EEOC for a right to sue letter, which is required to file a lawsuit, and began to prepare the lawsuit in Missouri court.  But, even before we can file the lawsuit, the mayor fires Ruth from the mayor's office.

I filed the lawsuit.  This lawsuit was different than any other lawsuit I have ever filed.  The Mayor had no boss and no one to tell him to comply with the law.  He and his wife were angry to be a part of a lawsuit.  The press got hold of the petition and published it in the paper.  Almost every deposition was published by the Kansas City Star.  The real bosses of the mayor, the voters, were being educated about what was going on in the mayor's office.

Ruth Bates was never one to seek attention or publicity.  She shies away from the press.  It is hard on a private person to have so much notoriety.  It takes a great deal of courage to go forward and Ruth and I had no idea what Ruth was to encounter.  The depositions are a matter of public record.  In my opinion, the depositions did not go well for the mayor and his wife.  I negotiated with the lawyer representing the mayor's wife, who had an insurance company that was paying for the defense, and settled with her for $45,000.  She went on record stating how horrified she was with the insurance company because she claimed she had done nothing wrong.

The City is obligated under its charter to pay for its exposure and the exposure of the City.  The City's lawyer approached me about settlement and we agreed on an additional $135,000.  Ruth was satisfied, because she stood up for herself and others and wanted to get on with her life.  All we needed was the approval of the City Council.  Normally, this was an easy process.  Not with this Mayor.  The Mayor had so antagonized the City Council, that they would not approve the settlement because they were angry at what he was putting the City through.  The City Council, in a three hour televised open council meeting told the mayor that if he was so adamant he and his wife had done nothing wrong, they wanted a trial.  The Mayor repeatedly entreated the Council to agree to the settlement.

I was frustrated that it looked like Ruth was being used as a political pawn.  The Mayor's individual lawyer, who was paid by City taxpayers, came to me and said that the Mayor could pay $35,000 out of his own budget and Ruth could receive a suitable job within the City and we could still proceed against the City.  My frustration with the politics of the City was nothing to compare to what happened next.

As soon as the Mayor thought he was personally off the hook, he showed his true colors.  The Mayor issued a vile and defamatory press release against Ruth, stating she had said horrendous things about the Mayor's opponent, that she had really wanted to borrow money from the mayor, etc.  Ruth was crushed by this retaliation.  The Mayor did not stop there, though.  He then, along with his lawyer, called a press conference covered by all local news stations and the newspaper stating horrendously false things about Ruth.  The Mayor's hubris and vengefulness was his downfall.  Rather than having the effect the Mayor had hoped, the public, i.e., voters, rallied behind Ruth.  There was no settlement with the Mayor, no job in City Hall for Ruth.

We prepared for trial.  On the eve of trial, the Mayor finally produced items from his computer which we had been asking for for months.  One item was particularly illuminating.  The Mayor's wife had decided to write a book about their time in the Mayor's office.  In that manuscript, which read like a diary, the Mayor's wife poured her hatred of Ruth and other employees in the Mayor's office.  This manuscript was published in the Kansas City Star.  In fact, the document gave rise to another lawsuit by another employee who was fired by the Mayor.  That lawsuit was settled days before the primary.

Armed with the depositions, the documents, and the manuscripts, Ruth was ready to go to trial.   The day before jury selection was to begin, the City Council approved an offer to Ruth of $550,000.  This combined with the $45,000 received from the Mayor's wife, amounted to $595,000.  Ruth Bates initially would have settled for less than $20,000, a pay increase, and for peace at work.

The Mayor and his wife have consistently declared they did not do anything wrong.  In February 2011 the Mayor ran for reelection.  He didn't survive the primary.   For the last 80 or 90 years, Kansas Citians have always loved their mayors.  Every mayor, until this recent election, was voted in for a second term.  Not this mayor.  The mayor's "bosses," the electorate, spoke.  Still the Mayor and his wife believe they have not done anything wrong.Mayor interview 2/11 with Chris Hernandez

Why is this important now?  The Missouri Legislature has bills before it, HB 205 and SB 188, which will cripple the MHRA.  Even though civil rights laws have been on the books for over 50 years,  they did not become effective until they got teeth.  In 2003, the MHRA got teeth when the Missouri Supreme Court ruled that citizens had the right to jury trials under the statute.  Now, the proposed amendments, want to do away with individual liability, take away punitive damages against governments, and limit damages for pain and suffering and punitive damages to anywhere between $50,000 to $300,000.  If these amendments had been in effect, Ruth Bates would not have got justice.  Perhaps, the voters would have reelected Mayor Funkhouser.  The result would not have been good for the citizens of Kansas City.

Thursday, March 10, 2011

New Job Opportunity - Puppy Mills.

List: nela_aff_kc Sent by: Bratcher, Lynne J Search

I posted this on my  Show-Me Fairness blog;

You know the saying, "When God closes one door, he opens a window. The Missouri Senate passed the untenable discrimination bill today. I fear the time when racial slurs and epithets can fly freely in the workplace; where women and girls are sexual fodder for their older more powerful bosses; and when older workers suddenly are turned into Soylent Green, and there is nothing I can do to help. SB 188 passed the Senate today. 

But, no worries! When someone gives me lemons, I will make lemonade. Fortunately, the Senate did not restrict its efforts to negate voter issues only to employment law. Even though the public voted just last election to eradicate puppy mills in Missouri, the much more intelligent and wiser members of the State Senate decided to unravel the voters' wishes. It looks like puppy mills are back!!!! I gotta find me some mangy old dogs to sell. This is a blessing in disguise. The puppies don't require much food, space or cleanliness - that's right- LOW OVERHEAD. And who says that not every cloud has a silver lining? 

Anyone in need of a skinny, undernourished, dog with kennel cough and fleas? Low, low prices!!!

Reprinted from Sho-Me Fairness.