Divided Supreme Court: Does a Charge by Any Other Name Still Smell As Sweet?

On Wednesday, a divided Supreme Court ruled that the ADEA requirement for filing a Charge with the EEOC at least 60 days before initiating an ADEA lawsuit can be satisfied by the mere filing of an intake questionnaire and affidavit with the EEOC even when the EEOC never created a Charge form, never notified or served a Charge or other document with the Charging Party’s allegations to the employer and the plaintiff never signed or filed an actual Charge form with the EEOC. Federal Express Corp. v. Holowecki, No. 06-1322 (2/27/08).

The ADEA – at 29 U.S.C. § 626(d) – provides that “[n]o civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the” EEOC. The ADEA also requires the charge to be filed by the employee within so many days of the unlawful employment practice. Once the Charge has been filed, the ADEA requires the EEOC to “promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion." 29 U. S. C. §626(d). However, the ADEA does not define “charge.”

In this case, the plaintiff employee completed and submitted an Intake Questionnaire to the EEOC on December 11, 2001, along with a signed affidavit setting forth her allegations in more detail. The EEOC did not promptly process the Intake Questionnaire, prepare a formal Charge form or notify the employer of the plaintiff’s allegations or serve it with a Charge. Nonetheless, the plaintiff -- along with several other employees – filed her ADEA lawsuit on April 30, 2002. Only then did the EEOC prepare, file and serve a Charge on the employer. The trial court dismissed the plaintiff’s claims on the grounds that her Intake Questionnaire was not a “charge” as required by the ADEA. The Second Circuit Court of Appeals reversed and, recognizing a conflict among the various Circuits on this issue, the Supreme Court affirmed the appellate court.

The Court found that the EEOC regulatory definition of Charge was scattered among several regulations and was vague. For instance, “one of the regulations, 29 CFR §1626.3 . . . says: "charge shall mean a statement filed with the Commission by or on behalf of an aggrieved person which alleges that the named prospective defendant has engaged in or is about to engage in actions in violation of the Act." Another regulation – § 1626.8(a) indicates that a "charge should contain": (1)-(2) the names, addresses, and telephone numbers of the Charging Party and the Respondent; (3) a statement of facts describing the alleged discriminatory act; (4) the number of employees of the charged employer; and (5) a statement indicating whether the charging party has initiated state proceedings. Yet another regulation -- §1626.8(b) – limits the prior requirements “by stating that a charge is ‘sufficient’ if it meets the requirements of §1626.6--i.e., if it is ‘in writing and ... name[s] the prospective respondent and ... generally allege[s] the discriminatory act(s).’" The EEOC asserted on its own behalf that the regulations governed only the filing of a Charge and did not define Charge itself or what it must contain. While the EEOC asserted that the plaintiff’s document satisfied the requirement of a Charge, not all documents necessarily would or should do so. In particular, the EEOC expressed concern with interpreting all documents as Charges if they contain the name of an employer and allegations of discrimination because some employees merely want information from the EEOC and do not want their employer to be notified of the allegations.

While the Court recognized the EEOC’s deficiencies in administering the ADEA, it still deferred to the EEOC’s greater familiarity with the statute. The Court concluded “In addition to the information required by the regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.”

The Court refused to condition “charge” on being served on the employer and giving the employer the chance to conciliate or mediate the allegations before the employee gained the right to file an ADEA lawsuit. “The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual's right to sue upon the agency taking any action.” Moreover, it would be impractical and unfair to the employee to condition a “charge” on the EEOC taking action after the employee has done everything he or she is required to do by the statute when the employee has no control over the EEOC.

Applying this new standard to the facts of the lawsuit, the Court found that the plaintiff’s Intake Questionnaire by itself did not satisfy the new test because, although it provided most of the necessary information, it did not request the EEOC to remedy the alleged discrimination. However, the affidavit which was attached to the Intake Questionnaire ended with the sentence: "[p]lease force Federal Express to end their age discrimination plan so we can finish out our careers absent the unfairness and hostile work environment created within their application of Best Practice/High-Velocity Culture Change." Taken together, the Court construed the Intake Questionnaire and attached affidavit as satisfying the “charge” requirement. The Court did so even though the plaintiff had specifically requested the EEOC to keep the affidavit confidential until formal proceedings were commenced because the plaintiff had also authorized the EEOC in the Intake Questionnaire to notify her employer.

Even though the Court deferred to the EEOC’s administration of the plaintiff’s claim, it also found that the EEOC gave “short shrift” to the employer’s interests as set forth in the ADEA because it was given no notice of the employee’s Charge before she filed suit. “The court that hears the merits of this litigation can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. True, that remedy would be imperfect. Once the adversary process has begun a dispute may be in a more rigid cast than if conciliation had been attempted at the outset.” Of course, that is an understatement since any employer faced with a lawsuit knows that it is much easier to resolve the dispute at the agency stage than after the employee’s attorney had taken control and has expended significant sums in preparing the lawsuit. The Court also encouraged the EEOC to improve its regulations to avoid similar miscommunications in the future.

Employers may find little consolation in the dissent:

“Today the Court decides that a “charge” of age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA) is whatever the Equal Employment Opportunity Commission (EEOC) says it is. The filing at issue in this case did not state that it was a charge and did not include a charge form; to the contrary, it included a form that expressly stated it was for the purpose of ‘precharge’ counseling. What is more, the EEOC did not assign it a charge number, notify the employer of the complainant’s allegations, or commence enforcement proceedings. Notwithstanding these facts, the Court concludes, counterintuitively, that respondent’s filing is a charge because it manifests an intent for the EEOC to take ‘some action.’”

Insomniacs can read the full decision (and dissent by Justices Thomas and Scalia) at http://www.supremecourtus.gov/opinions/07pdf/06-1322.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Unanimous Supreme Court Punts Question of Admissibility of “Me-Too” Evidence to Trial Courts.

Yesterday, an unusually unanimous Supreme Court finally ruled in a case involving whether “me-too” evidence (i.e., testimony by a plaintiff’s co-workers that they also felt discriminated against) is admissible in an employment discrimination lawsuit. However, rather than establish clear rules about the relevance of this problematic evidence, the Court punted the entire question back to trial courts to rule how they see fit in their own discretion. Sprint/United Management Co. v. Mendelsohn, No. 06-1221 (2/26/08).

The particular case involved an age discrimination plaintiff who lost her job in a company-wide reduction in force. The plaintiff sought to buttress her case by introducing “me-too” testimony by other former employees who had lost their jobs in the same RIF that they too believed they had lost their jobs because of age discrimination even though they had different supervisors and decisionmakers. The plaintiff’s hope is that the jury will be more likely to attribute a decision to age discrimination if more employees make the same argument. However, in a mere two sentences, the trial court excluded the “me-too” evidence – presumably on the grounds (asserted by the defendant employer) that it was unfairly prejudicial to the employer and the witnesses were not sufficiently similarly- situated to the plaintiff to make their testimony particularly relevant or material. In other words, whether or not these employees were discriminated against by their supervisors was not relevant to whether the plaintiff’s supervisor discriminated against her in selecting her for the RIF. The court of appeals reversed on the grounds that it assumed that the trial court had made a per se rule that such “me-too” evidence is always inadmissible. While the appellate court agreed about the propriety of such a per se exclusionary rule in the run-of-the-mill discriminatory treatment case (i.e., discipline, termination for cause, etc.), the appellate court believed that in a company-wide RIF, the excluded testimony would be relevant to show that age discrimination pervaded the company to such an extent that it was more likely than not that many supervisors (not just the plaintiff’s supervisor) were influenced to use age as a factor in laying off employees. Following such an argument, such pervasive discrimination could have influenced the plaintiff’s supervisor to select her for the RIF on account of her age.

The Supreme Court reversed on the grounds that the appellate court should not have second-guessed the trial court’s discretion in making evidentiary rulings by assuming the basis for the trial court’s decision. Rather, the appellate court should have remanded the matter back to the trial court for further explanation before concluding that it had abused its discretion in excluding the evidence. The Court established no guidance for the trial court (or attorneys) as to the potential relevance of “me-too” testimony. Writing for an unusually unanimous Supreme Court, Justice Thomas concluded:

“We conclude that such evidence is neither per se admissible nor per se inadmissible. . . . . . We note that, had the District Court applied a per se rule excluding the evidence, the Court of Appeals would have been correct to conclude that it had abused its discretion. Relevance and prejudice under Rules 401 [making relevant evidence admissible] and 403 [excluding evidence that is unfairly prejudicial] are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules. . .. . The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plai ntiff's circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry.” (emphasis added).

With this in mind, employers should always remember that it is possible that disgruntled former employees may return to haunt them in a lawsuit brought by a former co-worker and that plaintiffs’ attorneys are more likely to seek discovery about these disgruntled co-workers in order to introduce possible “me-too” testimony. While courts may exclude such testimony on the grounds that it would unfairly influence the jury and shed little light on the ultimate question in the case (i.e., the legality of the plaintiff’s treatment), the trial court alternatively could find it relevant to the plaintiff’s theory of the case.

Insomniacs can read the full decision at http://www.supremecourtus.gov/opinions/07pdf/06-1221.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court: Individual Participants Can Sue for Breaches of Fiduciary Duty in 401(k) Accounts.

Last week, the Supreme Court issued a much anticipated decision involving the right of an individual benefit plan participant (i.e., an employee) to sue the plan administrator (i.e., the plaintiff’s employer) for breaches of fiduciary duty involving the participant’s individual defined contribution plan – (i.e., 401(k) account). LaRue v. DeWolff, Boberg & Associates, Inc., No. 06-856 (2/20/08). In that case, the plaintiff employee alleged that the failure of the employer to follow the plaintiff’s investment instructions “depleted” (or caused a loss in) his 401(k) account of approximately $150,000 and that this failure constituted a breach of fiduciary duty under ERISA. The Supreme Court agreed that ERISA would govern the plaintiff’s claim and could provide him with a remedy if he were to ultimately prevail at trial.

In Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134 (1985), the Court had previously indicated that § 502(a)(2) of ERISA does not provide a remedy for individual injuries apart from injuries to the benefit plan, although the statute authorized recovery for breaches of fiduciary duties which impair the value of plan assets in a participant’s individual account. However, the Russell case involved a disability plan -- defined benefit plan – which was typical at the time – and LaRue raised questions about a defined contribution plan. The Russell plaintiff also eventually received her full contractual benefits under the benefit plan and sought through her lawsuit only consequential damages for the delay in processing her claim. When faced with a defined benefit plan, the participants are promised a fixed benefit. Remedying any breach of fiduciary duty involving a defined benefit plan will not affect an individual’s entitlement to the fixed benefit since the remedy to the plan will benefit all participants equally. However, in a defined contribution plan, breaches of fiduciary duties could reduce an individual’s benefits without threatening the solvency of the entire plan. As observed by the Court:

“Russell’s emphasis on protecting the “entire plan” from fiduciary misconduct reflects the former landscape of employee benefit plans. That landscape has changed. Defined contribution plans dominate the retirement plan scene today. In contrast, when ERISA was enacted, and when Russell was decided, ‘the [defined benefit] plan was the norm of American pension practice.’ . . . Unlike the defined contribution plan in this case, the disability plan at issue in Russell did not have individual accounts; it paid a fixed benefit based on a percentage of the employee’s salary. “

“For defined contribution plans, however, fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive. Whether a fiduciary breach diminishes plan assets payable to all participants and beneficiaries, or only to persons tied to particular individual accounts, it creates the kind of harms that concerned the draftsmen of §409. Consequently, our references to the “entire plan” in Russell, which accurately reflect the operation of §409 in the defined benefit context, are beside the point in the defined contribution context.”

“We therefore hold that although §502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, that provision does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant’s individual account.”

Insomniacs may read the decision in full at: http://www.supremecourtus.gov/opinions/07pdf/06-856.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Court of Appeals Reads Geographic Restriction Out of Non-Compete Agreement.

Late last month, the Franklin County Court of Appeals reversed a trial court and enforced a non-competition agreement against a hair stylist who did not solicit, but did continue to serve, customers of her former employer – outside the geographic scope of the non-competition clause. Penzone, Inc. v. Koster, 2008-Ohio-327. The court also extended the term of the non-compete by the amount of time which the stylist had continued to serve customers who sought her out at her new salon.

In that case, the stylist was hired directly from beauty school and worked for Penzone’s for 11 years until her resignation in 2006. When she was hired and when she was subsequently promoted, she signed a non-competition clause which prohibited her for eight months from serving any current or former customers of Penzone’s whom she had personally served during her employment “without regard to where those customers or the Employee's post-employment competition may be situated.” The agreement also contained a nine-mile geographic scope against competing against Penzone’s after her employment.

The stylist set up shop in Pickerington -- outside the nine-mile geographic radius of the non-competition agreement. Although she denied soliciting any former Penzone customers, about 95 former customers sought her out. (She had previously served about 200 customers each year). Approximately six months later, Penzone’s filed suit, alleging a breach of the non-competition agreement and theft of trade secrets. After discovery and a hearing, the trial court denied injunctive relief to Penzone’s and the salon appealed.

The contract term at issue is neither a non-solicitation clause nor a pure non-compete clause. Because the stylist’s new shop was outside the agreement’s nine-mile radius (which the court found to be reasonable), she could continue to work as a hair stylist in competition with Penzone’s as early as the day after her resignation. Non-solicitation clauses are typically not subject to a geographic limitation, but there was no evidence that the stylist had solicited any former Penzone clients. However, even though she did not solicit former Penzone customers, she did serve almost 95 of them -- in violation of the clear terms of the agreement – but outside the nine-mile geographic limitation on competition. According the agreement, there was no geographic limitation of any kind on this restriction to serve former clients, but there was a temporal restriction of only eight months. Apparently confused, the trial court found this restriction to be unreasonable (since she was required to screen her appointments as they arrived) and/or treated it as a non-solicitation clause which she had not violated.

The Court of Appeals seemed to be oblivious to the real issue in the case. While, on one hand, it paid lip service to the fact that the nine-mile restriction on competition was reasonable on its face, on the other hand, it provided absolutely no analysis as to why it was reasonable to prohibit the stylist from serving customers outside that nine-mile radius. For instance, the court noted that the “agreement allows Penzone a time period and a distance restriction to allow Penzone to retain clients as loyal Penzone customers.” (emphasis added).

What’s troublesome about the court’s decision is that the clause at issue is more akin to a non-compete clause than a non-solicitation clause because its violation does not depend on the employee misusing the employer’s customer information against its financial interest. Rather, the employee can violate the agreement by passively serving whatever customer comes through her door. “[W]hen faced with a covenant not to compete that imposes restraints that exceed what is necessary to protect the employer's legitimate business interests, the courts are empowered to modify the terms to create a reasonable covenant between the parties.” Nonetheless, there was no finding by the Court of Appeals that it was reasonable to restrict the hairstylist from serving customers beyond the nine-mile radius of the non-compete clause. There was not even a discussion by the court of its intent to enforce the agreement as written despite any reasonableness requirement.

Rather, the Court focused on a lack of harm to the public because the agreement did not materially affect the availability of hairstylists in the area. Moreover, the court found the potential harm to the stylist was minimal in light of the short eight-month restriction. Finally, the court found that Penzone’s invested significant sums in developing and promoting relationships between its stylists and its customers. While it could not be quantified how long any of the lost customers would have remained with Penzone’s or how many services they would have purchased from Penzone’s if they had not followed the stylist to Pickerington, the court was satisfied that Penzone’s had shown irreparable harm.

So, your happiness with this decision will depend on whether you are an employer which is considering enforcement of a non-compete clause against a former employee with a loyal customer base or whether you are an employer which is considering whether it can accept new, unsolicited customers from a competitor after hiring a new employee from that same competitor. Employers who hire employees subject to such a non-compete clause will need to take extraordinary steps for the duration of the non-competition period to ensure that unsolicited customers were never served by the new employee during his or her prior employment.

Insomniacs may read the decision in full at: http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-327.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Employers Can Now Be Liable for Off-Duty, Off-Site Retaliation by Co-Workers.

Yesterday, in Hawkins v. Anheuser-Busch, Inc., No., 07-3235 (6th Cir. 2/19/08), a unanimous Sixth Circuit Court reinstated the co-worker retaliation claims of one plaintiff and affirmed the denial of a similar claims by a non-complaining witness to the harassment. This case is significant because it is the first time the Sixth Circuit has recognized an employer's liability for retaliation by a co-worker. In addition, even though the most significant retaliatory acts took place after working hours and off the company's property, the employer was faulted for not conducting a more thorough investigation.

In Hawkins, four women complained of sexual harassment by the same nefarious serial sexual harasser, who then allegedly retaliated against one of them and a witness by, among other things, slashing their tires at their home and in the company parking lot, scratching their cars, threatening to kill them, setting the car on fire of one of the women, and, burning down the home of the non-complaining witness. After the first sexual harassment complaint in 1993, the defendant employers fired the harasser, but he was reinstated following a union grievance arbitration. Apparently thinking that it would never be rid of the harasser following that arbitration, the employer failed to take significant action when they continued to receive complaints from female employees about the harasser’s lewd comments and touching. Rather, the employer generally responded by transferring the women to other production lines. After receiving additional complaints about more harassment and violent retaliation, the employer in July 2003 again fired the harasser, who lost his union grievance in arbitration. The following month, the harasser killed his girlfriend and committed suicide.

The Court noted that it had never previously recognized a claim for co-worker retaliation under Title VII. Indeed, the District Court had dismissed the retaliation claims on summary judgment on that basis. However, the Court recognized that a majority of the federal circuit courts to have addressed the issue determined that “Title VII protects against co-worker retaliatory harassment that is known to but not restrained by the employer.” Therefore, an employer can be liable for co-worker retaliation” if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known.”

In particular, the Sixth Circuit held that “an employer will be liable for the co-worker’s actions if:
(1) the co-worker’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or support a charge of discrimination;
(2) supervisors or members of management have actual or constructive knowledge of the co-worker’s retaliatory behavior; AND
(3) supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the plaintiff’s complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances."

The Court had no difficulty in finding liability in one case. In that situation, the employer never conducted an investigation because the retaliation (i.e., torching the victim’s car in driveway of her home) took place off company property and after working hours, but the employer nonetheless suspected the allegation of violence was true. The woman’s manager even told the Licking County Prosecutor's Office during the police investigation that the harasser had insinuated to him that he started the fire and that he was personally afraid of him and would not participate in the investigation. Another senior member of management had heard rumors that the harasser set the fire and that the victim believed the fire was set by the harasser. More importantly, the harasser had admitted to three co-workers that he set the fire. Although the employer was unaware of the admissions, this evidence created an inference “that [the harasser’s] threatening behavior and violent acts of retaliation were common knowledge to both coworkers and supervisors . . . and might have been substantiated by a more complete investigation.” “The [employer] never bothered to investigate the incident, monitor [the harasser], or create a safe environment for harassment complaints. A jury could find that, given what management knew about the fire, the [employer] had an obligation to investigate the incident.” This is one of the only cases by a federal court to fault an employer for not conducting a more complete investigation.

The Court affirmed the dismissal of the retaliation claim by the non-complaining witness even though the harasser had poured gasoline down her basement and set fire to her house after he was fired. The Court found the employer’s response to her concerns of retaliation were sufficient: The employer fired the harasser, coordinated with law enforcement to have the harasser monitored, hired a security guard to follow him and offered the victim the protection of a security guard – which she refused.

Insomniacs may read the decision in full at: http://www.ca6.uscourts.gov/opinions.pdf/08a0081p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Dooming Employers With Serial Sexual Harassers and Rumor Mills.

Yesterday, in Hawkins v. Anheuser-Busch, Inc., No., 07-3235 (6th Cir. 2/19/08), a unanimous Sixth Circuit Court reinstated the co-worker sexual harassment claims of two women and affirmed the denial of the similar claims of two others. The women were subjected to lewd comments and offensive touching by the same nefarious individual. The Court imposed a higher standard of responsibility on an employer when faced with a serial harasser: “An employer’s responsibility to prevent future harassment is heightened where it is dealing with a known serial harasser and is therefore on clear notice that the same employee has engaged in inappropriate behavior in the past.”

After the first complaint in 1993, the defendant employers fired the harasser, but he was reinstated following a union grievance arbitration. Apparently thinking that they would never be rid of the harasser following that arbitration, the employer failed to take significant action when they continued to receive complaints from female employees about the harasser’s lewd comments and touching. Rather, the employer generally responded by transferring the women to other production lines. After receiving additional complaints about more harassment and violent retaliation, the employer in July 2003 again fired the harasser, who lost his union grievance in arbitration. The following month, the harasser killed his girlfriend and committed suicide.

The district court granted the employer summary judgment on the harassment claims, but the Court of Appeals reinstated two of the claims because it found (1) sufficient evidence of a hostile work environment and (2) insufficient action by the employer to stop the harassment.

One of the allegations involved the harasser setting fire to one of the women’s car at her home after work. The Court noted that it had “not decided whether off-premises harassment by a co-worker may be considered as part of the severe or pervasive test under Title VII’s sexual harassment provisions” and deferred that issue to the retaliation claims.

The district court refused to consider evidence of the harasser’s conduct towards other women unless they were also directed to or in the presence of the particular plaintiff. The Court, however, held that the court and jury should have considered “evidence of other acts of harassment of which a plaintiff becomes aware during the period his or her employment, even if the other acts were directed at others and occurred outside of the plaintiff’s presence.” The Court believed that such evidence was relevant to show that the plaintiff subjectively found the work environment to be hostile. In other words, mere rumors of sexual harassment constitute evidence of harassment if the plaintiff had ever heard about them.

The degree to which these other acts should be relevant depends on a variety of factors, including the act’s proximity in time to the harassment at issue. “The further back in time the prior at occurred, in other words, the weaker the inference that the act bears a relationship to the current working environment. On the other hand, more weight should be given to acts committed by a serial harasser if the plaintiff knows that the same individual committed offending acts in the past. This is because a serial harasser left free to harass again leaves the impression that acts of harassment are tolerated at the workplace and supports a plaintiff’s claim that the workplace is both objectively and subjectively hostile.”

Even if the plaintiff proves the existence of a hostile work environment, the employer is only liable if it knew or should have known of the harassment yet failed to take prompt and appropriate corrective action. The employer is not liable for “mere negligence, but is liable if its response manifest indifference or unreasonableness in light of the facts the employer knew or should have known.”

With that in mind, the Court found that the employer’s response was unreasonable when a female employee asked to be transferred because the harasser was making her life miserable even though she never provided any details or described the harasser’s behavior. The fact that the harasser had harassed in the past was enough to put the employer on notice that it should investigate further.

The Court also refused to absolve the employer for liability when it transferred each of the complaining employees away from the harasser. “Although some courts have indeed found that simply removing a harasser from a victim’s work environment is sufficient to preclude liability, none of these cited cases involved a serial harasser.” “An employer’s responsibility to prevent future harassment is heightened where it is dealing with a known serial harasser and is therefore on clear notice that the same employee has engaged in inappropriate behavior in the past.” Employers “that take affirmative steps reasonably calculated to prevent and put an end to a pattern of harassment – such as personally counseling harassers, sending them letters emphasizing the company’s policies and the seriousness of the allegations against them, and threatening harassers with serious discipline if future allegations are substantiated – are more likely to be deemed to have responded appropriately.” In one case, an employer avoided liability by formulating an observation network to monitor the harasser, checked with the victim daily to ensure that she had not been further bothered by the harasser and warned the harasser after another complaint that he would be fired if there were any further substantiated complaints. In this case, there was evidence that the employer never counseled the serial harasser after his arbitration reinstatement or even put a letter of warning in his personnel file.

As for the employer’s feeling of helplessness after the arbitration reinstatement, the employer’s “inability to permanently discharge [the harasser] the first time that he sexually harassed an employee . . . does not excuse its failure to take appropriate action in response to subsequent incidents. Even if the [employer’s] determination that it had insufficient evidence to sustain a charge of harassment . . . was reasonable, that does not mean that it had no responsibilities to take other remedial steps to ensure [the harasser] did not harass other women. The remedies of Title VII would be rendered impotent if employers dealing with serial harassers were allowed to throw up their hands after their first effort to deal with the harasser provided unsuccessful. A company faced with a pattern of harassment must both respond appropriately and take increasingly effective steps designed to end the harassment. The failure to do so suggests indifference and permissiveness on the part of management,” although a jury may later sympathize.

The claims of the women who complained of harassment shortly before the harasser was fired were dismissed since the termination of the harasser constituted sufficient remedial action by the employer.

Insomniacs may read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0081p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Affirms $435K Verdict in Retaliatory Termination Case.

In Imwalle v. Reliance Medical Products, Inc., No. 06-4619 (6th Cir. 2/8/08), the plaintiff argued that he was unlawfully terminated by a Swiss conglomerate as President and corporate Chief Operations Officer only three months after he filed a Charge of Discrimination with the EEOC alleging discrimination on account of his age (62) and national origin (American). The jury awarded $185,000 to the plaintiff on the retaliation claims and the Court added another $250,000 for attorney fees, court costs and pre-judgment interest. The Sixth Circuit affirmed on appeal.

The plaintiff had produced evidence that the Swiss company had proposed several cost-cutting measures, including a corporate-level powerpoint presentation by his boss (a Swiss citizen) which suggested the termination of “elderly” employees. He testified that he had been phased out of the corporate decisionmaking process and his boss also suggested in May 2003 that he hoped to retire and volunteer in the community at plaintiff’s age and then asked for the plaintiff’s resignation. The plaintiff also testified that his Swiss boss had complained to him in 1996 about it being the biggest mistake of his career to hire an American manager (i.e., the plaintiff), said he would never repeat that mistake and, in fact, never hired another American manager thereafter. His boss admitted that age discrimination is not illegal in Switzerland and did not understand U.S. employment laws or how they applied to the plaintiff. Nonetheless, the jury rejected the plaintiff’s discrimination claims.

When the plaintiff refused to retire as requested, he hired an attorney and accused the employer of both illegal discrimination and breaching his employment agreement. The employer then agreed to retain him in his current position, but never brought him back into the corporate decisionmaking process. The plaintiff then filed an EEOC Charge alleging age and national origin discrimination. Three months later, his boss met with him and, as described by both the plaintiff and the employer’s human resources director, fired him in January 2004 after reading the following statement:

“‘Dennis, I know that you know [the defendant employer] never committed discrimination in the past, at present, and will not in the future. I therefore canot [sic] understand why you raise such a claim.’ We are not discriminatory, just not.”

The defendant submitted a plausible explanation of poor performance as a non-retaliatory reason why it terminated the plaintiff. For example, the employer contended that it was unhappy with how the plaintiff had managed a particular division and had managed his own division during the brief 2001 recession. The employer also showed that it had pretty much excluded the plaintiff from the corporate decisionmaking process before he made his first allegation of discrimination in May 2003. However, the Court held that the jury could disbelieve the employer’s explanation of poor performance on the grounds that other individuals were more responsible for the corporate failures according to the outside auditors (and yet were not similarly held accountable) and because other managers were not similarly held responsible for the recession. Once a jury rejects the employer’s explanation as false or insufficient, it may infer that discrimination or retaliation was the actual reason or motivation. More importantly, the Court found that the employer’s pre-discharge statement -- denying any unlawful discrimination and wondering how the plaintiff could make such an accusation -- could reasonably be interpreted as evidence that the plaintiff’s EEOC allegations were at the forefront of the employer’s mind when it decided to terminate him.

The Court acknowledged that temporal proximity alone can rarely prove a retaliation claim and the plaintiff lacked direct evidence of retaliation. Indeed, the Court had previously ruled that the passage of four months between protected conduct (i.e., an EEOC Charge) and a discharge created an insufficient inference of retaliation. However, with the passage of only three months, the jury’s disbelief of the employer’s explanation for its conduct and – most importantly -- the employer’s pre-discharge statement, the plaintiff had produced sufficient circumstantial evidence of a retaliatory discharge to support the jury’s verdict. It probably would have been a different result had the employer not protested the discrimination allegations moments before firing the plaintiff.

Insomniacs can read the decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0066p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

New Ohio Law Makes “Military Status” a Protected Category Under the Ohio Civil Rights Act.

Late last year, Governor Strickland signed the “Ohio’s Veteran Package” (otherwise lovingly known as Substitute House Bill 372), which -- beginning next month on March 24, 2008 -- amends Ohio’s Civil Rights Act at Ohio Revised Code § 4112.02 et seq. to include “military status” as a protected category along with race, sex, age, disability, etc.

Interestingly, “military status” seems to indicate the person’s current status (rather than veteran status) and is defined in the statute as “a person's status in ‘service in the uniformed services’ as defined in section 5903.01 of the Revised Code. Such status is defined at Ohio Revised Code § 5903 as “the performance of duty, on a voluntary or involuntary basis, in a uniformed service, . . . and includes active duty, active duty for training, initial active duty for training, inactive duty for training, full-time national guard duty, and performance of duty or training by a member of the Ohio organized militia pursuant to Chapter 5923 of the Revised Code” and also includes “the period of time for which a person is absent from a position of public or private employment for the purpose of an examination to determine the fitness of the person to perform any duty described in this division.” “The ‘uniformed services’ means the armed forces, the Ohio organized militia when engaged in active duty for training, inactive duty training, or full-time national guard duty, the commissioned corps of the public health service, and any other category of persons designated by the president of the United States in time of war or emergency.”

Ohio’s Veteran Package seems to have created some unintended consequences. Among them, employers may no longer be able to prefer members of the military for employment since Ohio Revised Code § 4112.02(E) prohibits an employer from asking any job applicant -- on an application or in an interview – about his or her military status “[e]xcept where based on a bona fide occupational qualification certified in advance by the [Ohio Civil Rights] [C]omission.” The same is true of making any records of the military status of applicants. Employers are similarly prohibited from expressing a preference for members of the military in help-wanted ads.

New Ohio Revised Code § 4112.023 specifically incorporates the decision of Fisher v. Peters, 249 F.3d 433 (6th Cir. 2001) by the Sixth Circuit Court of Appeals “which held that if a person's civilian job is inherently military, the person must pursue military, rather than civilian, channels when pursuing employment discrimination claims, shall be applied when construing the prohibitions contained in this chapter against discrimination on the basis of a person's military status.”

As of today’s posting, the Ohio Civil Rights Commission had not made a new poster available for employers which includes the new statutory language. (Free posters are generally available online from the Commission at http://crc.ohio.gov/pdf/OCRCFEPPoster04-07.pdf). However, the Commission’s delay should not stop employers from amending their own internal employment policies to reflect the new change in the law.

Insomniacs may read the new legislation in full at : http://www.legislature.state.oh.us/bills.cfm?ID=127_HB_372

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Servicemember Leave Amendments to the FMLA: Overdue or Raising More Questions Than Answered?

On January 28, 2008, President Bush signed the National Defense Authorization Act of 2008 (the “NDAA”). Section 585 of the NDAA amended the Family and Medical Leave Act (FMLA) in two important respects:

1) Exingency Leave. Once the Department of Labor has finalized definitions and implementing regulations, the FMLA’s 12-week leave entitlement will be extended to cover “any qualifying exigency” arising from that fact that an employee’s spouse, son, daughter or parent is on active military duty or has been notified of an impending call or order to active military duty in support of a contingency operation. Because the Department of Labor is taking comments until April 11, 2008, it is unlikely this leave will become effective before summer.

2) Servicemember Leave. Eligible employees who are the spouse, son, daughter, parent or “next of kin” (i.e., nearest blood relative) of a “covered servicemember” shall be entitled to a total of 26 workweeks of leave during a single 12-month period to care for the servicemember. This provision was effective as of January 28, 2008, although many important questions remain unanswered about its implementation.

Most of the terms for Servicemember Leave are contained in the NDAA and merely incorporate many Department of Defense terms already familiar to employers applying USERRA, Servicemembers Civil Relief Act and similar legislation. “Service members” include any “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” The term `serious injury or illness' “ means an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member's office, grade, rank, or rating.” Importantly, this serious injury or illness may not necessarily prevent the servicemember from performing the essential duties of his or her civilian job. In addition, the DOL has indicated that the medical treatment may be rendered by either the Defense Department, Veterans Affairs or civilian medical providers.

Although employers are already required to provide the 26 weeks of Servicemember Leave, the Department of Labor issued proposed regulations on February 11, 2008 which raised many important questions that will undoubtedly face many employers and employees while administering Servicemember Leave, including:

* What kind of temporal proximity is required between the injury/illness and the treatment, recuperation or therapy for which care is required? What if the illness/injury does not manifest itself until long after the cessation of military duties?

* Who is covered by “next of kin?” The Defense Department regulations consider a number of relatives, including grandparents who are not now covered by the FMLA. Should it be limited to only one relative who is the nearest blood relative as provided in the NDAA? How shall it be determined who is next of kin (particularly when there are a number of equally related kin)?

* What kind of certification should be required to show that the servicemember is “medically unfit” to perform his or her military duties?

* The FMLA regulations currently only covers children when they are under the age of 18 unless they are incapable of self-care because of a disability. The military does not permit individuals to serve unless they are over the age of 17. Thus, very few “children” are currently covered. Should the FMLA regulations be amended to permit parents to care for their servicemember adult children? The proposed regulations also imply that adult children would not now be permitted to care for servicemember parents unless the regulations were amended. One must assume that children could still qualify for 12 weeks of FMLA leave when their parents have a “serious medical condition.”

* Unlike the FMLA's typical medical/family leave, the servicemember leave is limited to a “single 12-month period.” Does this mean that it is a one-time entitlement and cannot be repeated in another year (unlike the FMLA where the entitlement is reborn every year)? Is this twelve months a calendar or leave year? Is it per injury? Per employee? Per servicemember? Per relative?

As for what may eventually be covered by Exigency Leave, the Department of Labor has indicated that it may be limited to non-medical exigencies related to deployments and military service, such as arranging for childcare, making financial and legal arrangements to address the servicemenber’s absence, attending counseling relating to the service member’s active duty, attending official ceremonies or programs where the participation of family is requested by the military, attending farewell or arrival arrangements and attending to affairs caused by the missing status or death of a service member. As discussed above, the question is again raised whether parents should qualify for such leave in connection with an adult child and whether the FMLA regulations need to be amended before adult children could qualify for exigency leave in connection with a servicemember parent. As with Servicemember Leave, the Department of Labor has identified a number of issues which must be resolved and which will not be publicly flushed out before the DOL issues final regulations later this year.

The proposed regulations and supporting comments are 127 pages long, also address a variety of issues identified last year by the mammoth DOL Report on the FMLA, and amend a number of FMLA regulations and forms. There will be more on that later.

Insomniacs can read the NDAA at http://www.govtrack.us/congress/billtext.xpd?bill=h110-4986

The DOL’s proposed regulations and supporting commentary which address both the NDAA amendments to the FMLA and other issues related to medical certification forms, intermittent leave, etc. can be found by insomniacs at http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf. The DOL will take comments on the proposed regulations until April 11, 2008.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court Hears Debate of Whether Wrongful Discharge Claim Is Valid Based on Safety Concerns Shared with Insurance Auditor

Today, the Ohio Supreme Court heard oral argument about whether public policy wrongful discharge claims should be recognized when the employee did not “blow the whistle” to either a government agency or management about safety concerns, but rather, complained to a private sector insurance auditor about his paranoia of being set up to be fired in a document of fire alarm inspections.

As reported in the July 9, 2007 FYI, the Montgomery County Court of Appeals reversed summary judgment in favor of the defendant employer on the wrongful discharge claim after the plaintiff was fired for insubordination for expressing concern about the employer’s fire alarm system with an insurance agent who had been present to inspect the employer’s premises and provide an insurance quote. Dohme v. Eurand Am., Inc., 2007-Ohio-865 (3/2/07). Notably, the plaintiff had not been fired several years earlier when he reported to the fire department that one of the fire alarms had malfunctioned during a fire. Instead, he was transferred to another position which made him responsible for the fire alarm system. A few days prior to his termination for insubordination, the employer had specifically prohibited all employees from speaking with the insurance agent who was scheduled to inspect the premises. Although the plaintiff had not been specifically authorized in writing to meet with the insurance agent, he says that he had been asked to fill in for an absent employee. He then provided a report to the agent about overdue fire alarm inspections and noted that “suspiciously” one of the overdue inspections had not been included on the report. Plaintiff testified that he did not want to be blamed for the omission.

The employer argued that no public policy was jeopardized or implicated by the plaintiff’s termination as required by Ohio law. “Moreover, Plaintiff's statements did not indicate a concern for work place safety. The plain language of his comments only indicates his own suspicion that the missing inspection report is an attempt by Defendant to set him up for a deficient job performance.” However, the Court of Appeals rejected this argument: “[T]he employee's intent is largely irrelevant in an analysis of the clarity element of a wrongful discharge claim. What is relevant is whether [plaintiff] did in fact report information to the inspector that encompassed a public policy favoring workplace safety. If [plaintiff] did so, then the trial court erred in granting summary judgment.” Under state and federal law, “[t]here is a clear public policy favoring workplace fire safety. Therefore, retaliation against employees who raise concerns relating to workplace fire safety contravenes a clear public policy. . . . An employee who reports fire safety concerns to the employer's insurance inspector, regardless of the employee's intent in doing so, is protected from being fired solely for the sharing of the safety information.”

The Court of Appeals also rejected the employer’s argument that the plaintiff had failed to report his concerns to a government agency and chose, instead, an insurance agent. The Court determined that this argument “ignores the fact that an insurer's requirements may function to avoid fire safety defects. When such requirements are imposed, or higher premiums are the alternative, an employer . . . is motivated to cure safety defects. The market thus plays a role different from that of government, which may issue citations, but perhaps more immediate and compelling. And, making the insurer aware of defects through its representative furthers the public interest in effective fire safety measures.”

The Court of Appeals also rejected the argument that an “employee must make some formal announcement that his statements are being made for the purpose of protecting the public policy favoring workplace safety. Employers are presumed to be sophisticated enough to comply with the workplace safety laws. When an employer directs employees to not speak to an insurance representative inspecting a premises, an implication arises that the employer wishes to cover up defects, including those that create a danger to employees. Supporting the employer's conduct endorses its efforts to conceal potential dangers. As the Jermer court recognized, the Supreme Court views employee complaints as critical to the enforcement of the State's public policy. We would be minimizing the importance of these complaints and the State's public policy were we to concentrate on the employee's intent in raising the safety concern rather than on whether the employee's complaints related to the public policy and whether the employer fired the employee for raising the concern.”

During oral argument, the Supreme Court was told that there was no authority supporting the appellate court’s holding that whistleblowing claims can exist even when the whistleblower did not share his or her concerns with a government agency or with management. Some of the justices’
questions indicated that they were skeptical of drawing a bright line for whistleblowing claims which would limit them to government agents or management. Rather, a suggestion was made that public policy might be better served if whistleblower claims were recognized when the concerns were shared with anyone with power to remedy an unsafe situation. The employer’s attorney suggested that such a rule could lead to whistleblower claims being brought when employees merely reported their concerns to co-workers or to their spouses. Questions then focused on whether the insurance auditor could have improved an allegedly unsafe condition such that public policy would be served by recognizing a whistleblower claim when the concerns are shared with an insurance company. Apparently, the trial court record had not been sufficiently developed on that point.

Insomniacs can watch the oral argument at http://www.sconet.state.oh.us/videostream/archives/2008/

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Ohio Supreme Court Agrees That Former Employee's Use of Secret Client Information from Memory Violates Trade Secrets Act

Today, a unanimous Ohio Supreme Court ruled that the Uniform Trade Secrets Act was violated by a former employee who had formed his own actuarial business and – based strictly on his own memory of customers he had met during his employment -- solicited a few customers from his former employer’s trade secret customer list. Al Minor & Assoc., Inc. v. Martin, Slip Opinion No. 2008-Ohio-292. In doing so, the Court affirmed the Franklin County Court of Appeals and Court of Common Pleas which had imposed a verdict of $25, 973 against the former employee.

According to the Court's opinion, the defendant employee had never been required to sign a non-competition agreement during his employment with the plaintiff employer. When he ultimately resigned his employment and started his own competing business, the employee took no confidential or trade secret documents with him. Nonetheless, he solicited 15 of his former employer’s 500 customers based on his own memory of the individuals and companies with whom he had previously done business. The former employer sued for lost business in the amount of $25,973 and sought, but was denied, an injunction against the former employee.

Importantly, the defendant employee failed to preserve the issue as to whether the client list at issue in fact satisfied the statutory definition of trade secret. Therefore, the Court was not faced with deciding whether the employer had taken appropriate steps to keep information on the list secret, etc. and was, instead, limited to assuming that the list was a trade secret. “Every employee will of course have memories casually retained from the ordinary course of employment. The Uniform Trade Secrets Act does not apply to the use of memorized information that is not a trade secret pursuant to R.C. 1333.61(D).”

Where the underlying customer list was a trade secret, “[n]either R.C. 1333.61(D) nor any other provision of the UTSA suggests that, for purposes of trade secret protection, the General Assembly intended to distinguish between information that has been reduced to some tangible form and information that has been memorized.” While some older trade secret cases in some states recognized a distinction between memorized information and information derived from a written list, “[i]n principle, however, the distinction between written and memorized information should not be encouraged. The form of the information and the manner in which it is obtained are unimportant; the nature of the relationship and the defendant’s conduct should be the determinative factors. The distinction places a premium upon good memory and a penalty upon forgetfulness, and it cannot be justified either from a logical or pragmatic point of view.”

“Based on the foregoing, we conclude that the determination of whether a client list constitutes a trade secret pursuant to R.C. 1333.61(D) does not depend on whether it has been memorized by a former employee. Information that constitutes a trade secret pursuant to R.C. 1333.61(D) does not lose its character as a trade secret if it has been memorized. It is the information that is protected by the UTSA, regardless of the manner, mode, or form in which it is stored – whether on paper, in a computer, in one’s memory, or in any other medium.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/0/2008/2008-Ohio-292.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Federal Sixth Circuit Revives Retaliation Claim Where Employer Fired Employee Upon Learning of EEOC Charge.

On January 31, 2008, the Sixth Circuit affirmed the dismissal of an age discrimination claim where the plaintiff could not identify a similarly-situated younger employee with better treatment, but revived a retaliation claim where the employer had fired the employee the same morning he returned to the office after the EEOC served the employer with the EEOC Charge. Mickey v. Zeidler Tool & Die Co., No. 06-1960 (6th Cir. 1/31/08). In particular, the EEOC Charge was received on October 14, 2004 while the employer was out of town. He returned to work on October 19, 2004 and fired the plaintiff at 7:30 a.m. in the morning. The Court held that the proximity of the employer’s termination decision and learning of the EEOC Charge was sufficient by itself to establish a prima facie case of retaliation.

The Court's opinion also suggested that events which predated the filing of the EEOC Charge and the employer's knowledge of it could support a prima facie case, but there was a dissenting opinion on that issue.

In addition, the plaintiff presented sufficient evidence of pretext. While the employer claimed that his decision had been motivated by poor business conditions and the lack of work for the plaintiff to perform, the plaintiff was able to show that the records that the employer had been reviewing the prior weekend showed it was profitable in 2004 and that it had been recruiting to hire employees with the plaintiff’s qualifications both before and after the plaintiff’s termination. While the jury could believe that the employer was attempting to keep the company afloat after three years of losses, the court refused to make that determination at the summary judgment stage. Moreover, although the employer claimed the plaintiff’s performance had been deficient and had substantially reduced his compensation earlier in the year, there were no negative performance evaluations in his personnel file. Further, the employer’s answers to deposition questions were evasive when asked whether the EEOC Charge played a role in the termination decision. Indeed, at one point the employer denied knowing about the EEOC Charge before he terminated the plaintiff and then corrected himself when challenged.

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/08a0056p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.