February 2013

Wit Hall and Chris Arbery Named “Georgia Super Lawyers”

February 2013 – Two of the founding partners of Hall, Arbery & Gilligan LLP (Wit Hall and Chris Arbery) have been recognized as 2013 “Georgia Super Lawyers” as published by Atlanta Magazine. According to the selection committee, Super Lawyers are those who have “achieved excellence in their practice” and are selected based on peer recognition and professional achievement.

HGRS Obtains Another Complete Dismissal of Claims

February 2013 – Hall, Arbery & Gilligan LLP recently obtained dismissal of all claims in an employment case against its client, a nationwide retailer, on a successful motion to dismiss.  The plaintiff, a former employee of the retailer, filed a complaint alleging various tort claims including intentional infliction of emotional distress, invasion of privacy, and tortious interference with business relations.  The Superior Court of Cobb County, Georgia, granted the motion to dismiss on February 11, 2013.

U.S. Supreme Court Will Decide Standard of Proof in Title VII Retaliation Cases

In what is likely to be one of the more important decisions in the employment law arena this year, the U.S. Supreme Court will hear a case in which it will decide whether, in a Title VII retaliation action, a plaintiff employee must prove that the employer would not have taken an adverse employment action but for the employee’s protected activity, or instead need only prove that the protected activity was just one of the motivating factors for the adverse action.

In University of Texas Southwestern Medical Center v. Nassar, 674 F.3d 448 (5th Cir. 2012), cert. granted, 81 U.S.L.W. 3234 (U.S., Jan. 18, 2013) (No. 12-484), the plaintiff was a university faculty member who alleged that he was constructively discharged as a result of workplace harassment and discrimination based on his Middle Eastern ancestry. He also claimed that, after resigning his position, the University retaliated against him by blocking his employment at a hospital affiliated with the University. A jury found that the university retaliated against Nassar and awarded him close to $4 million in back pay, compensatory damages, attorneys’ fees, and costs. The trial court had instructed the jury that retaliation could be found based on a “mixed-motive” theory (i.e., that the employee’s protected activity was one of several motivating factors). The university appealed, and the Fifth Circuit Court of Appeals affirmed, finding no error in the instruction. Citing a split in the circuits, the Supreme Court granted certiorari.

In a “mixed motive” case, an employee may prove discrimination even if the employer simultaneously possessed a legitimate, nondiscriminatory reason for taking adverse action against the employee. In other words, the employee need only demonstrate that retaliation was one of the motives for the adverse action. On the other hand, if the “but for” standard applies, the employee must demonstrate that the adverse action would not have occurred but for the employer’s discriminatory motive. In Nasser, although the University presented evidence of a legitimate, non-retaliatory reason for blocking Nasser’s subsequent job opportunity, Nasser offered evidence that the University’s action was in retaliation for asserting a claim of harassment. Instructed on the “mixed motive” theory, the jury found that the University illegally retaliated against Nasser in violation of Title VII.

The Supreme Court’s decision will have broad implications. The Court has announced that it will consider not only whether Title VII’s retaliation provision requires “but for” causation, but also whether “other similarly worded employment statutes” (e.g., the Americans With Disabilities Act, etc.) require this level of proof. The “but for” standard is preferred by employers, since it requires a plaintiff to demonstrate that retaliation was the only reason for the adverse action. According to the Supreme Court’s website, oral argument in this case will be held on April 24, 2013.

Training Tip: Hit All the Right Notes in Employment Decisions

Employers often ask whether an employment action would comply with employment laws.  Often, that is the wrong question.  Ultimately, whether a decision is lawful often depends on motive, which can be a matter of dispute.  Employers should ask, “In the event of a legal dispute regarding this decision, who would be believed, and why?”

Even better, before taking a significant action, an employer should ask the following question:  “How can I support the decision, avoid an unnecessary dispute, and improve our business?”

While each employment action may have a different level of risk, employers can reduce their overall risks by keeping in mind a general framework for decision making.  Just remember the familiar phrase from childhood piano lessons for the notes on the treble clef:  “Every Good Boy Does Fine.”

Hall, Arbery & Gilligan LLP Starts 2013 with a String 0f Litigation Successes

Hall, Arbery & Gilligan LLP secured successful outcomes for several clients early in 2013 in cases involving Title VII civil rights claims, business disputes over competition by departed employees, and tort claims filed against a former employer. In two cases pending in the Northern District of Georgia, we obtained complete summary judgment in a Title VII retaliation case, and a complete dismissal of all claims in a 14-count business dispute lawsuit filed against a recently departed employee. In two state court cases, HA&G obtained dismissals in another departed employee business tort and restrictive covenant case, and in a case filed by a former employee alleging tortious interference, intentional infliction of emotional distress, and invasion of privacy.