The ombudsman does not replace the human resources function. The ombudsman is an additional position that is neutral and therefore should be touted as different from human resources, which many employees see as part of management. In other words, employees have an option available if they feel that human resources will simply toe the company line or, for some reason, not give them a fair shake. For example, for years many government agencies have employed an ombuds person for these very reasons.

The ombudsman position can be a very effective tool which provides an outlet for disgruntled employees to air disputes and reinstate respect in the workplace. A large percentage of litigation, including employment litigation, is spawned from misunderstanding. Imagine how much money a business can save by having an experienced neutral person review and assess a dispute before lawyers become involved. An ombudsman can also educate managers about dealing with workplace conflict and identify certain weaknesses in specific managers relating to interpersonal dealings that can be valuable come evaluation time.

The bottom line is that hiring an ombudsman is a little money spent internally to save a lot of money being sent externally to litigators. Read an interesting article on this topic relating specifically to retaliation claims here.

By the way, speaking of blogs, a torts-guru and super lawyer I know (colleague John Day), recently posted on his blog a listing of the blogs he regularly reads. See his list here.

An opinion released a couple of days ago from the eastern section of the Court of Appeals highlights the ongoing disagreement about how pro se litigants should be treated by the Courts.  The case, C&W Asset Acquisition v. Oggs, was a simple breach of contract case involving whether the defendant had failed to make payment on moneys advanced to him under a line of credit. 

Mr. Oggs, proceeding pro se, filed an Answer in which he denied owing the debt, stating that he “had no knowledge of the same.”  Subsequently, Mr. Oggs was served a request for admission asking him to admit that an attached balance sheet correctly reflected the charges and credits under his credit agreement with the Plaintiff.  Mr. Oggs did not respond, prompting the Plaintiff to file a motion to have this fact deemed admitted.  The Court denied Plaintiff’s motion and stated that Mr. Oggs would be allowed to respond “in court.”  It is unclear what response, if any, Mr. Oggs ever made to this request for admission, but at trial, he simply testified again that “he had no recollection of the debt and thereby denied owing Plaintiff.”  The Court ultimately held that the Plaintiff had failed to carry its burden of proof and dismissed the case against Mr. Oggs.  The dismissal was affirmed by the eastern section on appeal.

However, Judge Swiney dissented from the appellate opinion and embarked on a sharp criticism of what he viewed as the unfair advantage given to Mr. Oggs because he was a pro se litigant:

Putting aside for now Mr. Oggs’ trial testimony and looking solely at his answer, I am completely at a loss as to what the plaintiff was suppose to have done. Applying the majority’s reasoning, Mr. Oggs, solely because he is a pro se litigant, could in his answer say only that he does not know about or owe the debt and then be allowed to show up at trial, after first having been excused from responding to requests for admission, and raise any of the affirmative defenses set forth in Rule 8.03. Perhaps what Mr. Oggs meant when he said he did not owe the debt was that he had paid it; perhaps that there was duress; perhaps that estoppel or fraud applied; perhaps that a statute of limitations or statute of repose applied; perhaps that some other statute such as truth in lending applied. Under the majority’s decision, plaintiff was required to come to court ready to address whatever possible or potential non-plead affirmative defenses Mr. Oggs as the pro se defendant might for the first time raise during the trial. Such a result totally emasculates Rule 8.03 of the Tennessee Rules of Civil Procedure…

 

Respectfully, I believe this is a situation where the pro se litigant was unfairly advantaged, solely because he was a pro se litigant, both at trial and now before this Court. Both the Trial Court and now the majority in their attempts to insure that Mr. Oggs as a pro se litigant received “fair and equal treatment” have instead allowed “him an unfair advantage because he represents himself.” Frazier, 2006 WL 2506706, at *3. I respectfully suggest that the one lesson to be learned by lawyers and future litigants from the majority’s opinion is that if you find yourself in a situation similar to Mr. Oggs, do not hire a lawyer but instead proceed pro se so that the Rules of Civil Procedure will not be applied to you, and that everything you say in that lawsuit will be construed to mean what it was you might have said as opposed to what you actually did say.

 Read the majority’s opinion here.  Judge Swiney’s dissent is available here. 

The so-called cat’s paw occurs in discrimination matters when another person (here the manager/employer) is held liable for the bias of someone else (here a subordinate employee) which influenced the adverse employment decision made by the manager. So, in this situation, an African American employee was terminated by a human resources manager based mainly on information from the employee’s direct supervisor. The HR manager was in a different location and did not know the employee’s race. The EEOC, which brought the case, alleged that the employee’s direct supervisor was racially biased and motivated the HR manager’s termination decision. The cat’s paw comes into play because the decision maker is acting as a conduit for the discriminatory bias of someone else.

The formal question presented to the Supremes is: "Under what circumstances is an employer liable under federal anti-discrimination laws based on a subordinate’s discriminatory animus, where the person(s) who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the impacted employee."

Hopefully, the court will give clear guidance on this issue since the federal circuits have been split. The case is BCI Coca-Cola Bottling Co. v. EEOC and comes from the Tenth Circuit, which reversed the district court’s dismissal. Oral argument will take place in the Spring.

The attached dissent was filed by an associate justice of the Michigan Supreme Court following the recent election of the Court’s Chief Justice.  The accusations are serious.  However, perhaps the most striking part of the dissent is the language and tenor that the Michigan Supreme Court Justices (including both the author of the dissent and the "majority of four" which the dissent decries) have begun to utilize when criticizing one and other.  The document brings several pointed questions to mind.  What is the obligation of our judiciary when they feel that their peers are abusing their power?  Can a Court function effectively when collegiality among its members has broken done to such a severe degree?  As I think you will see, the dissent is serious food for thought.   John Day has posted his thoughts on the issue over at his dayontorts blog.  What are yours...

The Fifth Circuit upheld the dismissal of a patient’s claim that a doctor disclosed medical information without her consent during a deposition. The court based its decision on the fact that HIPAA provides both civil and criminal penalties for the improper disclosure of medical information and gives the enforcement authority to the Department of Health and Human Services. Since HHS can enforce penalties, Congress did not intend to create a private cause of action, according to the court.  Read the opinion here.

In terms of reviewing metadata, there is a fundamental difference between documents produced by an adverse party that are pertinent to a lawsuit and documents created in litigation by adverse counsel (letters and pleadings sent by email, for example). Any consideration of whether it is appropriate for lawyers to review metadata must take this difference into account.

A recent opinion from the Tennessee Court of Appeals highlights the burden that lies with a defendant who is attempting to prove mitigation of damages.  In ABC Painting Co. v. White Oaks Apartments, the plaintiff brought suit for defendant’s failure to pay over $21,000.00 in invoices for painting work done at defendant’s apartment units.  The defendant counterclaimed that the plaintiff had not done the painting in a “workmanlike manner” as required by the parties’ contract.

At a bench trial, the plaintiff produced invoices for completed work, each of which was signed by the defendant, documenting the full amount of damages sought.  Further, plaintiff introduced testimony that the defendant had never complained about substandard work and plaintiff had promptly done any touch-up work requested.

In response, the defendant offered testimony that, according to their estimation, approximately 75% of the apartment units were painted in a substandard manner.  However, defendants failed to keep any documentary evidence to back up this allegation.  Additionally, while the defendant claimed that another painter had been hired to fix the substandard paint jobs, the invoices submitted from this second painter predated any of the work done by the plaintiff.  This second painter did testify that a number of the apartments were painted in a substandard manner, but he could not specify which apartments these were or document how much money he had been paid to correct the plaintiff’s work.

The trial court awarded the plaintiff $13,500.00 for the unpaid work, as well as a portion of their attorney’s fees pursuant to the terms of the contract.  On appeal, this decision was reversed and the plaintiff was awarded the full amount of their damages.  The Court of Appeals noted: 

Although the party seeking damages has the burden of proving those damages, the burden is on the defendants who breached the contract to prove what amounts should be offset in mitigation of damages. And “[w]hile there is no mathematical formula for calculating damages, the proof of damages must be as certain as the nature of the case permits and must enable the trier of fact to make a fair and reasonable assessment of the claimed damages.” (citations omitted)

Based on the foregoing, the court found that the defendant’s proof of mitigation was speculative and unsubstantiated by a preponderance of the evidence and awarded the full value of the plaintiff’s damages.

Read the entire opinion here.

In a recent case, a Metropolitan Government of Nashville 30-year employee was fired after cooperating as a witness in an internal sexual harassment investigation. The court held that there was no protection for the employee under either clause. There was not the kind of overt opposition required under Title VII because the employee merely cooperated with the investigator’s request for an interview, during which she related unfavorable information about the alleged harasser. The employee did not initiate a complaint prior to participating in the investigation nor did she take any further action following the investigation – actions generally seen as overt opposition.

In addition, because there was no formal EEOC charge that prompted the investigation (there was just an internal complaint), the employee was not protected under Title VII’s participation clause. The court followed the general rule that an employee seeking protection under this clause must have been involved in an investigation involving a formal EEOC charge, rather than an internal, in-house investigation, which was the case here. Read the opinion here.

Immunity when there is a major disaster for hospitals, voluntary health care providers and community mental health care centers participating in the Emergency Management Assistance Compact or Southern Regional Emergency Management Assistance Compact. T.C.A. section 58-2-107(l).

Disclosures required when placing a hold on a customer's debit card account, violation of which is  an unfair and deceptive act or practice under the Tennessee Consumer Protection Act. T.C.A. section 47-18-128.

Disclosure of percolation test or soil absorption rate results required in residential real estate contracts. T.C.A. section 66-5-212.

Venue for workers' compensation civil actions is the county in which the governmental entity is located or county in which the incident occurred. T.C.A. section 50-6-225(a)(2)(B). 

Duties of real estate agent spelled out and agency relationship with seller of real estate defined. T.C.A. sections 62-13-401 and 62-13-404(3).

Tennessee Home Loan Protection Act established to restrict high cost home loans. T.C.A. section 47-20-101 et seq.

Statute of Frauds clarified by identifying the person to be charged in a contract for the sale of lands, tenements, or hereditaments is the party against whom enforcement of the contract is sought. T.C.A. section 29-2-101(a).

State contracts with persons who employ illegal immigrants not allowed. T.C.A. section 12-4-124.

Architects are immune from suit in certain situations. T.C.A. section 62-2-109(a).

Written contracts for payments to contractors, subcontractors and material people enforced. T.C.A. sections 66-34-202(a) and 66-34-302(a).

Penalties for the unauthorized practice of law revised. T.C.A. sections 23-3-103, 23-3-104, 23-3-112.

To read any of the above statutes, click on this link and then type in the T.C.A. section number.

"Expert witness disclosures shall be made timely in accordance with any order of the Court, or if none, in accordance with Fed. R. Civ. P. 26(a)(2). Expert witness disclosure statements shall not be supplemented after the applicable disclosure deadline, absent leave of Court. No expert witness shall testify beyond the scope of his or her expert witness disclosure statement. The Court may exclude the testimony of an expert witness, or order other sanctions provided by law, for violation of expert witness disclosure requirements or deadlines. ..."

Rule 39(c)(6)(d). 

In the case before the 6th Circuit, the Defendant's expert economist failed to state in his Rule 26 Report that he was relying on Generally Accepted Accounting Principles (GAPP) in arriving at his figures.  Counsel for the Plaintiff objected when this testimony was given at trial and, based on the local rule, the trial court excluded the economist's testimony.  Given that this evidence was a necessary part of the defendant's case, the Court proceeded to enter judgment as a matter of law against the defendant. 

In reversing the trial court's judgment, the 6th Circuit held that application of the local rule in this manner was inconsistent with the Federal Rule 89(a)(2),  which provides that "[a] local rule imposing a requirement of form shall not be enforced in a manner that causes a party  to lose rights because of a nonwillful failure to comply with the requirement."  The Court found that limiting an expert to simply reading from his written report at trial was inconsistent with the purpose of Rule 26(a)(2)(b).

Following this opinion, it is unclear whether the local rule itself is dead or whether the 6th Circuit's holding is limited to the Rule's strict application in this case.  One thing is for sure, attorney's practicing in the Middle District of Tennessee should be aware of this issue and its potential implications when preparing their cases for trial.

Read the full opinion in Thompson v. Doane here.