Chapter Four

“I can be very flexible, but where there’s laws. Sometimes he’d tell me stuff that was illegal. Like do this, throw away the employment list. I would say, ‘You know, we can’t throw away the employment list. You can’t do that. It’s illegal.’ He’d say, ‘If it’s not completely diverse, just throw it away.’ I’m like, ‘Can I, can we get a legal opinion on that?’ ‘No. You’re going against me.’ In fact, two or three weeks before I finally decided to call a lawyer, he had just told me, ‘Don’t you ever call a lawyer for a legal opinion again,’ and up to that time, I used to routinely call for advice. And he told me, ‘I don’t want them sticking their nose in my business. You don’t ever talk to the lawyers unless I ask you to.’ So I was feeling more cornered and cornered and cornered because he kept asking me to do more things that were borderline legal.”

“‘William, we’ve got to get along for the sake of the staff and sake of work, I really want things to work out, and I just, there’s so much tension, I want to know what’s going on…What is it? What can I do?'”

“‘Well, what is it about me then?’ ”And he was like, ‘I don’t know.’ And I said, ‘Well, is it my race? Is it because I’m a woman? Is it because of my lifestyle, because I’m gay?’ And he didn’t answer. He just, it was sort of a stare down. So it left me wondering.”

“He was making these remarks about, ‘I’m going to blow up the silos of racial isolation’ or something like that. What was ironic is he was only having black advisers, and he was accusing me of being the one that was having racial issues. And he did it in front of the entire staff.”

“I knew there was racial stuff. I knew there was the man stuff, and everybody knew that. And then the Bible thing…Even though I wasn’t like real vocal about being gay, I know people knew…I thought well, with the Bible, he just, he must hate me in the worst way. Because it was so personal.”

“I had gotten beaten down to the point where I hardly had any energy to make the one phone call to the lawyer and say, ‘Guess what just happened.’ I was very willing then to just be told [what to do]: ‘Tell me what to do and I’ll just do it because I’m so tired.'”

“I had a district manager that was kind of temperamental, but he had picks and chooses. I wasn’t one of the “chosen ones”…I didn’t challenge his authority, but I would ask questions. And everything that he was doing was not right and I would ask questions…I had a manager that was one of his chosen ones and she wouldn’t answer a question. She would tell me, ‘read the book.’ Due to the fact that I had no one that would tell me anything, I had to read the policy and procedure book a lot. So I had acquired a nickname. They used to call me Miss P&P.”

“I spoke to her because I was really adamant about that I never, ever worked anywhere and received a bad evaluation. This was the first one I ever received in my life. I was really upset about it. I spoke to her and she asked me, she said, ‘Well, what do you want me to do?’ I said just like, ‘You can rescind [the negative evaluation]. There’s a procedure for everything…I never worked under him. He never knew what I was capable of doing. He was not the person who was supposed to give me my evaluation.’ So they did rescind it.”

“This came…not long after the ADA was enacted…At that time the courts were not crystal clear as to what was a ‘substantial limitation’…She had mentioned…people were making fun of the shoes she wore…and there was a statement made to her that ‘we don’t accommodate.’ The employer said, ‘We don’t accommodate people with disabilities.’ So that was enough to definitely get her in the door and pursue the case as far as we did.’ “

“I think I probably said, well this is a BS [bullshit] kind of claim and we should be able to win…[She] was a fundamentally healthy person who didn’t have what I considered to be a disability…I probably had an unsympathetic view of the plaintiff’s case.”

“No one would step in and say, ‘This guy’s a scientist,’ you know? ‘We could use scientists…we could either change his job around…’ They wanted absolutely no part of that. They were just hell bent on getting me out of there.”

“[The factory manager] had my supervisor come and get me, turn my machine off…Everybody that runs [the company] was in that office. ‘Have a seat.’ They tell me to sit down…So [the personnel supervisor] started lecturing me…’I’m sick of you, I’m tired of you, I’m just sick of everybody staring at you’…I said, ‘…What? My Bible, laying over there by the machine? I’m not saying anything to anybody’…I’m shocked and all, trying to wonder, ‘Who did this?’ “

“I showed [the medical records] to my mother, who was a retired nurse. And she said, ‘Do you know what they were doing?’ I said, ‘No.’ She said, ‘[W]ell, this test is for syphilis, and this one’— which I could read myself— ‘tested . . . for sickle cell anemia.’ And they did a pregnancy test.”

“They were acting like they were very helpful [but] they never actually offered to contact anybody. But they seemed to be very helpful, which, of course, they were not…I truly believed that their job was to help the employees![Now] people tell me, ‘Well, their number one job is the company.’ “

The emotion is on the plaintiff’s side of the equation in these cases. Another favorite expression of mine is that ‘Employment law is the family law of business law.’ And what I mean by that is people spend so much time in their jobs in America today and associate themselves so much with what they do…If you terminate somebody’s employment, you’ve not just taken away their livelihood, their ability to pay their mortgage, send their kids to school, put food on the table, forget all those issues. More important than that almost is what it does to their psychological makeup. You’ve taken away what they are…That’s what fuels a lot of this employment litigation. It’s an emotional reaction. And there is no other catharsis for it. So, it has to go somewhere.”

“I got a call from the chief of police. He said, ‘We have a young man who has passed the physical, has passed the mental, gone through the Board of Fire and Police Commissioners, highly recommended for an opening, but he has [a chemical imbalance]. Can we hire him?’ I said, ‘Well, first of all, I have to tell you that we cannot discriminate because of his health as long as we can reasonably accommodate him.’ And I said, ‘Does he self-medicate? How does he handle his [condition]?’ And the chief said, ‘Well, I believe that he takes [medication] every morning himself.’ I said, ‘Well, I will advise you that if he’s otherwise qualified, you ought to hire him.’ So he did.”

“I felt strongly, and I advised the Police Department, that he should be terminated. The man is out on the street in a squad car with a gun…There is nothing we can do to accommodate him…We couldn’t take a chance of having a police officer have that recur again.”

“Went out…to various clients and we would talk to them about the provisions of the act…It took a long time for the EEOC to come out with regulations, and so we were sort of left without a lot of guidance for a period of time. But…we tried to be proactive.”

“I always think of it from the perspective of, ‘Is there something going on that we need to be aware of and to investigate?’ And to ensure there isn’t discrimination. I mean, obviously, with 1,300 employees, I don’t know what’s going on in every single pocket of the organization, and yet we are committed to our employees, you know. They’re one of our great resources, and so we don’t want to have discrimination going on.”

HW: “Our philosophy is if we’re wrong, we fix it. And we do things wrong.[W]e have fifty-six plants, fifty- six facilities, and we screw up. We do things we shouldn’t do. Or they do the right thing, but they don’t do it the right way…And we fix those things, but we don’t settle very often and we don’t lose…We’ve gotten costs five times in the last four years.”

LB: “Wow. Can you actually recover them?”

HW: “I have liens on two houses.”

“I’m telling the managers, ‘I’m trying to protect you and the City, and the more we work together, the more likely it is we can reduce litigation…and obviously with people getting more educated, well, they’ll take a few more chances [at making discrimination claims…We don’t want ’em all to understand what their rights are.’ ”

“Most of the people that bring complaints in here— I’m saying 3, 4, 5 % of the workforce— we’re not talking about the smartest…nails in the box or anything. These are folks that sometimes they have attitude and/or conduct and/or behavioral problems. Sometimes they mix discrimination and stuff. They try and mask their performance issues…Me, it’s ‘show me a prima-facie case. Show me you met the legal threshold.’ If they don’t understand that when they first come in, my job and my staff’s job is explain to ’em what…their burden is…I don’t want ’em leaving here not understanding [what it means to] have met their burden [of proof].”

“We work really hard…When I started, we got on the road and we trained people. We had a lot of training…basic EEO law…red flags, [and] things to watch for. ‘If you see this, you call us…’…It’s easier to get out of the way of the train if you see it as a little tiny headlight a mile away as opposed to [when] it’s already on you.”

“[W]e try to resolve the thing and help the supervisor resolve it. Help the supervisor see his or her managerial responsibilities and obligations, but also his or her managerial rights…We don’t allow employees to walk all over a supervisor or walk all over a team. [We] expect everyone to show up and do the best they can, understanding that the best you can do some days is not as good as somebody else given maybe some kind of medical situation…Basically it’s walking people—supervisors— through how to respond at the very, very beginning…It’s easier to blow out a match than it is to extinguish a conflagration.”

LBN: “And so, if you’re involved at the get-go, you know right from the beginning, what are the steps you’re going to take to ensure that everything is done properly before a termination?”

TP: “We are going to speak with the employee’s immediate superior (and very often that superior’s superior) and find out what their perspective is on what the problems are and why it is they want to take whatever employment action it is they want to take…[We ask them], ‘How is [Matthew] Brown different from anybody else? Have you had the same problem with anybody else? How have you addressed this problem with that somebody else? Have you been consistent? Have you documented it? Have you spoken with the employee? Is he aware of your view that there are some deficiencies? Have you given him a chance to correct or improve on those deficiencies?’ ”

“Before anyone is terminated…we have a discussion within my office…’Is there sufficient documentation? Is there sufficient evidence? Have we examined this to ensure that that there has been no discrimination?’ ”

“I’d rather spend the money up front and get everything right and then win at summary judgment…That’s…another reason we prevail at summary judgment. We do a lot of work up front…Lucas Steidley, for example…and two other employees were the high-risk of litigation, but we terminated three hundred eighty some people…and he was the only one that sued us out of the whole group. The rest of them signed, took their severance pay, and went away.”

“There’s always something we could have done better in terms of management. I don’t think most of the cases involve discrimination, but I do think most of them involve some kind of mismanagement…and the employee may perceive [that] as discrimination.”

“Based on my experience, 80 to 85% of the cases have little or no merit…The biggest reason employees file discrimination charges or employment lawsuits, generally, is because they are truly and sincerely surprised at the action being taken and don’t understand why. They just don’t see it. I mean [the employee perspective is], ‘I’ve been here fifteen years, everybody’s been telling me I’ve been doing such a great job. All of a sudden, the last six months, I’m toxic waste. Nobody ever told me.’ “

“Oftentimes it’s somebody may have made a remark to somebody that that person took offense to…We have tended to be very successful on [cases like that], because a lot of people don’t understand. They take it to extremes. They hear one remark and…get very upset or they feel like they can’t tell their supervisor, so they’ll actually file a complaint, but those typically aren’t going to be found to be discriminatory. We may need to do some work with that area and figure out what’s going on, but they aren’t discrimination…Yelling at an employee is not discrimination, but…some people believe that it should be.”

“The VP of sales, who had never met Lucas Steidley, said, ‘I don’t need this level, I can get rid of this level and go direct to the salespeople.’ Boom, Lucas got fired. We offered Lucas severance, as we do everybody. Lucas made an outrageous demand. He wanted five years of pay or something like that.”

“By then, Lucas was convinced that he got fired because he was black. He got fired because he was the only account manager, national account manager, in the whole division. Yes, he was the only black one. That was a true statement. He was the only one over age sixty. That was also a true statement. But what I’ve found is people get, they are so convinced that it couldn’t be just an objective business decision, somebody had it out for them, and we call it ‘playing [the] race card.’ “

TP: “I remember my initial reaction— not in particularly artful terms— was, ‘Oh, this guy’s a nut. This is going nowhere…’ Certain cases that are absolutely meritless, even though it’s not the right cost benefit analysis, you’ll fight. Whatever it takes, you’ll fight because sometimes you just need to send the message. Brown’s was one of those.”

LBN: “Your view was that it was absolutely meritless, so…?”

TP: “He was holding us up [robbing us]. Our view was he was holding us up, and, you know, if you have a legitimate grievance, we can discuss it. We’ll address it. We’re not unreasonable. We’re not bad people. We’ll try to get close to where everybody wants to get, but if you’re going to hold me up, it’s not going to happen.”