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Archive for February, 2016

The EEOC Expands Efforts to Tackle HIV Discrimination

Posted on: February 16th, 2016

By: Nina Maja Bergmar

One area in which we expect to see an increase in discrimination charges in 2016 is employees with HIV/AIDS. On December 1, 2015, the EEOC announced that it resolved almost 200 charges of discrimination based on HIV status in the 2014 fiscal year and obtained over $825,000.00 for job applicants and employees with HIV who were denied employment and reasonable accommodations. In an effort to expand upon these efforts, the Commission issued new guidance regarding the rights of HIV-positive employees and the role of physicians in assisting patients with HIV who need accommodations at work.

The guidance, titled “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA” and “Helping Patients with HIV Infection Who Need Accommodations at Work,” make clear that employers cannot rely on myths and stereotypes in its treatment of employees with HIV. As with any disability, employers must rely on objective criteria in their hiring, firing, and promotion procedures.

The EEOC’s effort to reduce the stigmatization of individuals with HIV is particularly evident in the guidance’s focus on reasonable accommodations. In a somewhat novel approach, the guidance makes clear that employees need not disclose their specific condition when requesting accommodations. Instead, employees and their treating physicians can use more generic language to describe the condition, such as “immune disorder.” While the guidance does not expressly prohibit employers from inquiring into the exact nature of the disorder, employers are encouraged to focus on the specific limitations that an employee experiences, rather than the disorder itself.

If an employee requests and demonstrates a need for accommodation based on symptoms associated with HIV infection, side effects of HIV medication, or another impairment developing as a result of the infection, the employer must engage in an interactive process to identify appropriate accommodations. Notably, the guidance offers a list of possible accommodations that employers may be obligated to provide, including altered break and work schedules (e.g., frequent breaks to rest or use the restroom or modified schedules to accommodate medical appointments), changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them), accommodations for visual impairments (e.g., magnifiers, screen reading software, and qualified readers), ergonomic office furniture, unpaid time off (e.g., for treatment or recuperation), permission to work from home, and reassignment to a vacant position if the employee can no longer do his or her job because of the condition.

While employers are entitled to the usual defense that an accommodation would cause undue hardship, the specificity with which the guidance sets forth possible accommodations should give employers an indication as to what the Commission will look for in its investigation into discrimination charges. It is therefore crucial that supervisors and human resources officers are well versed in how to engage in the interactive process with employees affected by HIV without defaulting to the myths and stereotypes that the guidance sets out to combat.


Settle at Your Own Risk

Posted on: February 16th, 2016

By: Dana Maine and Kevin Stone

The Georgia Court of Appeals issued an opinion last week in Jim Tidwell Ford v. Bashuk, A15A2030 applying the rule that settlement of an underlying suit may sever causation in a subsequent legal malpractice action.  The underlying suit in Bashuk, brought in federal court, involved a claim by a Jim Tidwell Ford customer who had fallen off of a platform and was injured. The customer prevailed at a jury trial and received an award of more than a million dollars.  Bashuk represented Jim Tidwell Ford through the conclusion of the trial, at which time appellate counsel was brought in.  An appeal was filed with the Eleventh Circuit but was dismissed upon settlement of the personal injury suit for $600,000.  While the Court of Appeals acknowledged that the issue of causation and whether a legal malpractice defendant’s conduct is too remote from the claimed injury is usually a decision left to a jury, in this case, which was plain and undisputed, it was appropriate for the court to make the decision as a matter of law. 

In reaching its decision, the Court of Appeals examined whether the appeal in the personal injury suit made the case viable for purposes of the rule that settlement of a viable underlying claim severs proximate cause.  In ruling  in Bashuk’s favor, the Court of Appeals concluded that the trial court properly found that there were legitimate issues with some of the evidentiary rulings the personal injury trial judge made about admissibility of medical testimony.  There was a chance, the Court of Appeals concluded, that the Eleventh Circuit would have found that the trial judge erred in his rulings and might have ordered a new trial. The legal malpractice defendant was not required to prove with certainty that the Eleventh Circuit would have ruled in the former client’s favor.  It was sufficient to sever causation that from the case law, “it appears at least possible” that the Eleventh Circuit may have reversed the verdict in the personal injury case. 

Every legal malpractice case with a settlement of the underlying case should be analyzed under the Bashuk rationale. Depending on the posture of the case, it might even be possible to bring an early dispositive motion applying the settlement/lack of causation rule. 

(We will monitor the docket for  an application for writ of certiorari to the Georgia Supreme Court and update this blog accordingly.)   


New Decisions Applying the Amended Federal Rules of Civil Procedure

Posted on: February 11th, 2016

By: Ryan Babcock

On December 1, 2015, the Federal Rules of Civil Procedure were amended, and the federal district courts across the country are starting to apply them to pending cases. In a nutshell, those amendments were in large part aimed at raising the profile of the concept of “proportionality” in the discovery process.  This common sense concept now pervades the rules, and directs the federal trial courts and the litigants before them that, for evidence to be discoverable, the information sought must be relevant and proportional to the needs of the case. See, e.g., Federal Rules of Civil Procedure 26, 30-34.  Chief Justice Roberts has explained this concept as requiring a “careful and realistic assessment of actual need.”  2015 Year End Report on the Judiciary at 7 (Dec. 31, 2015).

The amended rules provide several factors to consider in determining whether the discovery sought is proportional, including:

  • the importance of the issues at stake in the action
  • the amount in controversy
  • the parties’ relative access to relevant information
  • the parties’ resources
  • the importance of the discovery in resolving the issues, and
  • whether the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case.

Fed. R. Civ. P. 26(b)(2)(c)(iii).

In a recent product liability MDL decision, relying at least in part on the amended Rule 26’s proportionality language, the court rejected the plaintiffs’ discovery demand for the personnel files of several of the defendant’s employees, all of whom the plaintiffs intended to depose. In re Xarelto (Rivaroxaban) Prods. Liab. Litig., —F.R.D. —, MDL No. 2592, 2016 WL 311762, at *4 (E.D. La. Jan. 26, 2016).

Although the plaintiffs claimed that the personnel files were relevant to “rush to the market” and employee bias issues, the defendant argued that they were not relevant, and were not discoverable under the amended Rule 26, unlike a work-related custodial file, for example. The defendant also argued that privacy interests weighed against this discovery, as the plaintiffs demanded “performance reviews, self-reviews, annual compensation information, incentive information, bonus information, post-employment information, the reason for the employee’s termination (if applicable), and the existence (or lack thereof) of a non-disparagement clause.”  Id. at *1, *5 n.4.

Notwithstanding the plaintiffs’ counsel’s assurance that they had received similar information in prior MDLs, id. at *2, the court rejected the plaintiffs’ broad discovery request, stating that:

[A] plaintiff in a products liability MDL cannot discover a non-party employee’s personnel file without an individualized showing of relevancy, proportionality, and particularity.  Plaintiffs have failed to make this showing in both their memorandum and proposed pretrial order. Rule 26(b) commands that all discovery be both relevant and proportional.

Id. at *4.

As such, the court mandated that plaintiff show discoverability of the personnel files “on a witness-by-witness basis.”  Id.

In another substantial shift, when responding to written discovery requests, the amended rules make clear that it is no longer appropriate to make “boilerplate objections.” Instead, a responding party must specify why the request is, for example, overly broad (e.g., such as explaining how it would require searching an unnecessarily broad range of custodians, and/or some elaboration on the particular problem with the request and the work it would take to comply therewith).  Likewise, the responding party must state whether responsive documents are being withheld, and generally must provide a reasonable date certain by which the responsive documents will be produced, if they are not being produced with the responses.  The responding party will also generally need to specify the form in which documents will be produced (i.e., electronic or hard copy). See Fed. R. Civ. P. 34(b)(2).

In another recent decision, issued by a Magistrate Judge in the District of Colorado, the court enforced these new provisions in a long-running case. Specifically, the court took both sides to task, explaining that it was not appropriate to submit “omnibus” requests, and no boilerplate objections were appropriate in response, either. Kissing Camels Camels Surgery Center v. Centura Health Corp., Civil Action No. 12-cv-03012-WJM-NYW, 2016 WL 277721, *2 (D. Colo. Jan. 22, 2016).  The court also permitted the requesting party to specifically identify ten categories of documents in requests for production, and as for those categories, the responding party would have to provide bates ranges to identify the documents. Id. at *4.

Other practical considerations await further consideration by the courts as well:

  • To what extent will the parties’ decisions regarding whether to take a “kitchen-sink” approach in describing their claims and defenses undercut their subsequent arguments as to the proportionality limitations imposed by the rules?
  • Will the courts permit discovery about discovery (particularly, related to the defendant’s information technology and records management systems) to take place as a prequel to determining what discovery is proportional?
  • When negotiating about the scope of a response, and when dealing with the discovery dispute with the court, how much can defense counsel learn (and how much does counsel need to learn) from the relevant information technology professionals? In this respect, more information may be needed to help explain to the requesting party and the court not only how burdensome the request as drafted would be to comply with (in terms of hours needed to assemble, pages of documents, or gigabytes or terabytes, etc.), but also, thinking a few steps ahead in this area could be crucial, so that counsel can accurately explain the potential burden of any likely compromise positions that the court might order, and limit the potential for disproportional discovery to take place because of a lack of information.
  • When expensive, broad discovery is requested, which may only have tangential relationship to the claims at issue, will the courts issue cost-shifting orders to allocate the expenses of discovery under Rule 26(c)(1)(B)?

Other amended rules affect electronically stored information and spoliation, encourage faster case processing, and more direct management by the court. We are looking forward to rulings on those issues as well, to indicate that both litigants and the courts are taking the changes seriously, to encourage better, more effective discovery, as the amended rules promise.

One key will be effective advocacy on those points, where the amended rules change existing practices that many courts and counsel had grown comfortable with over the years, and as such are resistant to change. Beyond the language of the rules, and the cases interpreting them, parties and their counsel seeking to broadly implement the promised changes of the amended rules can find helpful, persuasive language regarding interpretation in many of the advisory committee notes accompanying the amended rules.  Likewise, the American Bar Association’s Section on Litigation has put together a helpful resource with links and analysis of the amended rules. As the courts interpret these rules, parties and their counsel should take advantage of these rules amendments to make the discovery process more efficient and effective.


Issuing a Reservation of Rights? You May Lose Control Over Settlement

Posted on: February 5th, 2016

By: Jonathan Romvary

By reserving the right to deny coverage, insurers may be relinquishing the power to force the policyholder to forego reasonable settlement opportunities for covered claims that do not align with the goals of the insurer.  In Babcock & Wilcox Co., et al. v. American Nuclear Insurers, et al., 2015 WL 4430352 (Pa. July 21, 2015), the Pennsylvania Supreme Court announced a rule similar to the rule set forth by the Arizona Supreme Court in United States Auto Ass’n. v. Morris, 741 P.2d 246 (Ariz. 1987), allowing policyholders to settle claims without their insurer’s consent when the insurer is providing a defense under a reservation of rights.  This “Pennsylvania Approach” applies only after the insurer breaches its obligation of fair dealing with the policyholder by unreasonably objecting to settlement that is in the best interest of the policyholder. 

The consent-to-settle clause in liability policies generally allows the insurer to retain control of the defense and any settlement opportunities over claims when coverage is certain.  This clause provides that a policyholder is not allowed to enter into a settlement that would otherwise bind the insurer without the insurer’s consent.  However, when an insurer is defending under a reservation of rights, coverage is uncertain, and often the goals of the insurer and policyholder are conflicting.  A strict application of the consent-to-settle clause may require policyholders to pass up reasonable settlement offers while also requiring them to pay the full judgment if the insurer ultimately determines that the claim is not covered.  The Pennsylvania Approach (1) permits policyholders to enter into a reasonable settlement rather than risk a substantial and adverse verdict at trial and (2) allows insurers to contest coverage for a settlement that is unreasonable or one that is not covered under the terms of the policy.  Determination of whether a settlement is reasonable necessarily entails consideration of the terms of the settlement, the strength of the insured’s defense against the asserted claims, and any potential fraud or collusion by the insured.

Note that this ruling does not allow policyholders full control of their litigation when a reservation of rights has been issued.  Cooperation clauses still require the insured to communicate any settlements to the insurer and seek consent.  However, now in Pennsylvania, after a reservation of rights is issued, the insurer needs to carefully consider all reasonable settlements whether or not it believes that the claim is covered.

This Pennsylvania Approach is consistent with the current draft of the Restatement of the Law of Liability Insurance being prepared by the American Law Institute.  Therefore, we can expect more states to adopt this approach in the future. 


A Case of Mistaken (Political) Identity: Can Government Employers Punish Workers for Their Unexercised First Amendment Rights?

Posted on: February 4th, 2016

By: Wes Jackson

Does the First Amendment protect citizens’ speech and association, or does it prohibit the government’s retaliation to such conduct? At first glance, these goals would appear to be two sides of the same coin—citizens’ free speech is protected by barring the government’s retaliation. But an odd set of circumstances involving a government employee in Patterson, New Jersey, is challenging the notion that a government’s violation of the First Amendment necessarily requires an instance of protected speech or association by a citizen. And last month, the Supreme Court heard oral arguments on this set of circumstances in Heffernan v. City of Paterson. The Court will ultimately decide whether a City’s retaliation against a police officer for his perceived exercise of First Amendment rights violates the Constitution if, in fact, the officer was not actually exercising those rights.

            Plaintiff Jeffrey Heffernan was a police officer in Paterson, New Jersey. By all accounts, he was a model officer who received several commendations for his work over a twenty-year career before being promoted to detective. He apparently was a model son, too: when his bedridden mother asked him to drive to town to pick up a mayoral candidate’s campaign sign after her first sign was stolen, he did so that same day. One problem, though, was that the campaign sign promoted a challenger who wished to unseat the then-incumbent mayor. Another problem was that a fellow Paterson police officer—who was assigned to the security staff of the incumbent mayor—saw Heffernan pick up the sign and interact with the challenger’s campaign manager. Heffernan delivered the sign to his mother. But the next day, he was demoted to a “walking post” because of his perceived involvement in the political election.

            Heffernan brought § 1983 actions against the City and some of its officials for First Amendment retaliation in the District of New Jersey. The trial court granted summary judgment in favor of the City because Heffernan failed to produce any evidence that he actually exercised his First Amendment rights. On appeal, the Third Circuit agreed: the record clearly established beyond question that Heffernan was not exercising any First Amendment rights when he picked up the sign because he neither intended to communicate a political message nor had any political affiliation with the challenger’s campaign. In his own words, “I was picking up a sign for my mother, and that’s all I was doing.” The Third Circuit then rejected Heffernan’s argument that he could assert a First Amendment retaliation claim under a “perceived support” theory, where the employer’s retaliation is based on a mistaken belief that the employee exercised a First Amendment right. The Third Circuit reasoned that a First Amendment retaliation claim must be predicated on the actual exercise of a First Amendment right, rather than the mere perception of such exercise.

            At oral argument before the Supreme Court, the justices examined every facet Heffernan’s “perceived support” theory. On one hand, some justices doubted whether an employee has a First Amendment right to be free from the government’s misperception of his views. As Justice Scalia observed, “he was fired for the wrong reason, but there’s no constitutional right not to be fired for the wrong reason.” Along these lines, Chief Justice Roberts queried whether public employees have other, non-constitutional remedies available for being fired for “the wrong” reason. And the idea of untethering First Amendment retaliation claims from constitutionally protected conduct, especially when other remedies are available, raised a pragmatic concern: might basing retaliation claims exclusively on the government’s motive result in a flood of meritless claims?

            On the other hand, some justices espoused the view that when it comes to government retaliation, motive matters. Justice Ginsberg suggested that the thrust of the First Amendment is operating on government, to which it says: “thou shalt not act on the basis of someone’s expression, speech, or belief.” Similarly, Justice Kagan stated her belief that “part of the reason we have these protections is because we worry the government is doing things for impermissible reasons. That the government wants to create a world of speech in which everybody agrees with it and nobody opposes it.” In light of these concerns, the City’s attorney maintained his position that First Amendment claims necessarily require the plaintiff’s exercise of a constitutional right: “It’s called an individual right, not a government wrong.”

            The Court’s decision is expected by June. While oral argument suggested that there is at least some disagreement between the justices as to the necessary conditions for a First Amendment retaliation claim, the “highly artificial” nature of the facts, as Justice Alito referred to them, may lead to a narrow holding. Regardless of the outcome, this case shines a light on the importance of respecting government employee’s First Amendment rights in the local government context, where politics often play an outsized role in day-to-day operations.