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“Lurid e-discovery”, pet grooming and ham
My dog was bathed and groomed on Wednesday. On Thursday, I cooked a ham and left it to cool on the stovetop. There were workers in the house all day long and the dog was irritable and behaving badly. I went upstairs to check on work progress and heard a crash and a yelp and came downstairs to see my freshly bathed basset hound covered head to toe to belly in dripping ham juice with the broken glass roaster all around her (not to mention my ham). She was so shocked she didn’t know whether to lick the floor or herself. The groomer got a good laugh out of the story and at the miserable and greasy dog.
Then later on Thursday, I saw a story over at LexisNexis titled “In A Lurid Story Of E-Discovery And Ham, Magistrate Judge Tells Parties To Pay For A Forensic Expert To Sort Through The Data”. Coincidence? I think not. On the other hand, we do need to comment that while this is a light-hearted post, the potential traumatic impact of workplace sexual harassment and wrongful termination is very real, and not funny at all.
In this “lurid” tale of the HoneyBaked Ham company and allegations of both sexual harassment and retaliation–there are multiple elements to consider in the EEOC-filed class action suit against HoneyBaked Ham: social media, workplace climate, the emotional impact of victimization, pejorative labels, sexual harassment, retaliation, and what is private and what is not. HoneyBaked Ham wanted to assess the Facebook account activity of female members of the class action suit and told the judge they thought there would be relevant Defense information to be found via an e-discovery process on those Facebook pages. The judge agreed to the Defense request for e-discovery:
“Judge Hegarty determined that “there is no question [HoneyBaked] has established that the documents it seeks contain discoverable information.” For example, he pointed to a photo one of the women posted of herself wearing a t-shirt imprinted with a foul adjective-easily the most offensive term used to describe a woman-a term she says a HoneyBaked employee used to describe her. Also on her Facebook page, according to the judge’s order, this class member shared her financial expectations from the suit, her feelings about the loss of a pet and a broken relationship. She also described her positive outlook on life post-termination, her sexual aggressiveness, her post-termination employment, her sexual liaisons, her income opportunities, and sexually amorous communications with other members of the class. The list goes on. (Are you ready to close your Facebook account yet?)”
In brief, the judge appointed a special master to go through Facebook, social media accounts, emails, text messages, and so on to find any and all communications that might be relevant to the class action suit. A questionnaire was designed to focus the e-discovery so that not everything was reported simply because it was salacious. Whew. Does this mean there is privacy online after all?
Probably not. This is a cautionary tale. A veritable object lesson. And here is the lesson. Do not leave your freshly baked ham cooling within reach of an inquisitive and food-driven basset hound. And whether you work for the HoneyBaked Ham Company or elsewhere, do not post things on Facebook (or email them, or text them, et cetera, et cetera) unless you are comfortable with them being the subject of e-discovery at some point in the future.
Columbo, Catfish, and Courthouse News: Be careful out there!
A few weeks ago, I was eating a late lunch and turned on the TV and watched the Katie Couric talk show for the first time. She was talking to two 20-something guests about the perils of online dating. They talked about ways to protect yourself from deceptive “catfishing” by using Google image search or examining social network profiles for inconsistencies and at one point Katie said “My gosh, you have to be like Columbo these days!”. Both of her young guests smiled politely but their blank faces made it clear they had no idea who Columbo was.
One of the guests was Nev Schulman from the movie Catfish. If you don’t know this story, Nev met a woman named Megan online who was gorgeous and a dancer and a singer and he fell in love. When he showed up on her doorstep to meet her in person, Megan turned out to be a 40-something housewife named Angela who was diagnosed with schizophrenia and caring for two disabled stepsons. Part of the reason Nev was on the Katie show was to advertise his new TV show (Catfish the TV show). In this show, Nev travels the country visiting people who are involved in online relationships with people who always seem to turn out to be imposters hiding behind fake profiles. He teaches them how to investigate their online loves and dispenses a blend of empathy and sincerity that is very likable while their fantasies crumble about their feet.
Shortly after I watched this show, I saw a story at Courthouse News about a woman suing Match.com for $10M because someone she met on their website “hid in her garage, stabbed her 10 times and kicked her in the head until she ‘stopped making the gurgling noise’”. She says Match.com didn’t warn her about the possibility of meeting “an individual whose intention was not to find a mate, but to find victims to kill or rape”. She did not sue her attacker. She couldn’t. He died in prison while “serving 28 to 70 years for killing an ex-girlfriend”.
“What happened to Mary Kay Beckman is horrible, but this lawsuit is absurd,” Match.com said. “The many millions of people who have found love on Match.com and other online dating sites know how fulfilling it is. And while that doesn’t make what happened in this case any less awful, this is about a sick, twisted individual with no prior criminal record, not an entire community of men and women looking to meet each other.”
It isn’t as though these are isolated cases or very, very fringe behavior. These are sad, sad stories involving a pretty universal desire to be loved and cherished. It’s been hard to miss the publicity surrounding Notre Dame’s Manti Te’o and his own catfishing experience with a very unlucky (and then dead and then alive again) girlfriend. The “girlfriend” turned out to be a disturbed young man who once auditioned for the television show The Voice.
It’s a difficult issue. We’ve worked a couple of cases where people were assaulted by others they had met online. One case involved a minor girl and the other involved a grown woman. In both cases, the assailant lied about who they were, how old they were, and what their intentions were, while all the while enticing the victim to meet them. Both stories were horribly sad and life-changing for the victim. Yet, in both situations, our mock jurors said the fault lay with the victim for “lying to her mother and meeting this guy” or “telling him where she lived”. Jurors thought these women had learned a very hard and cruel lesson but they should not be compensated by the online service for using bad judgment.
There are discussions occurring as to how to respond from a legal standpoint to the perpetrators of these hoaxes. In our experience, jurors think these are examples of poor personal responsibility by the victim of the hoax. The online service was scrutinized, but overall the mock jurors felt that users of these services know that there is no vetting of community members, and anyone who assumes authenticity in online disclosures is, at best, naïve. This is an area we will keep up with as new definitions and practices emerge to keep up with our changing definitions of what constitutes a “relationship” in a social media world.
When is it just an email and when is it retaliation?
While we know that whistle-blowers are supposed to be protected from retaliation–we also know that defining retaliation can often be a murky process. What “feels like” retaliation to the frightened, defensive, anxious whistle-blower may not meet the legal standard of retaliation. But what if it does? “What if they and their actions become the subject of a widely distributed email? Is that a form of retaliation?” This was the question asked by some Indiana University researchers and their writeup of the findings is now awaiting publication in the North Carolina Law Review.
The paper uses the 2007 case of Belmont Abbey College. Belmont Abbey is a Catholic school in North Carolina that chose to exclude contraceptives from employee health coverage. Eight members of the faculty complained to the EEOC (alleging religious and gender discrimination) and the President of the school then sent out a mass email to all faculty, staff and students detailing the complaint and identifying the faculty members who made the complaint. The complainants then filed a retaliation complaint with the EEOC. In 2009, the EEOC upheld the gender discrimination complaint but found no cause for the religious discrimination complaint. The EEOC also made a statement that the President’s email was meant to cause a “chilling effect” and make other faculty and staff hesitate before complaining of discrimination.
The authors summarize the murky nature of just what constitutes retaliation as interpreted by the courts in often contradictory rulings. They consider privacy in matters involving religion, sexuality, abortion, sexual harassment, and sexual assault. They examine fear of reprisal (or retaliation) as well as the research on who is most maligned for reporting inappropriate or illegal behavior. (It will likely not be surprising that minorities and women and other people in low positions of power are most villainized. Nor will it likely come as a surprise that because of their assessment of how they will ultimately be treated–often these people are very reluctant to blow the whistle.)
Ultimately, the researchers identify a number of issues for organizations to consider as they contemplate communications that will identify whistle-blowers:
Consider the whistle-blower’s privacy.
Consider the severity of possible reprisal.
Consider the likelihood of reprisal.
Consider the vulnerability of the employee to reprisal.
Consider the form and tone of the disclosure.
Consider the big picture or as the authors say “the totality of the circumstances”.
Overall–the authors conclude that disclosure may be seen as an adverse action against a whistle-blower unless there is a defensible “need to know”. In the case of Belmont Abbey’s email to everyone associated with the college (i.e., faculty, staff and students) there was no need for everyone to know. The intent of the email was “an attempt to shame and ostracize the complainants to produce a chilling effect”. While there is a need to balance employer and employee rights in this sort of situation–it is also critical to maintain clarity as to the goals of different communications about the complaint. In an emotionally difficult and complex situation–it is imperative to think through actions taken (on both sides) carefully.
This is a very thorough treatment of the court decisions and the contradictions and complexities in this area of law. We cannot do justice to all it contains in a single blog post. If you are involved in a whistle-blower case (or might become involved) this is a good article to read for a roadmap through a territory laden with complexity.
Prenkert, JD, Magid, JM, & Fetter-Harrott, A (2013). Retaliatory disclosure: When identifying the complainant is an adverse action. North Carolina Law Review.
Bev Kearney: Is it because I’m female, African-American, gay and disabled?
Wow. What factors could inspire organizations to enforce ‘standards of conduct’ most fiercely? Gender? Check. Race? Check. Sexual orientation? Check. Disability? Check.
This one contains all the elements of a blockbuster movie so don’t be surprised if it heads that way. It’s a story about sex (both kinds–gender and intimate), power, race, sexual orientation and disability with some university politics thrown in for good measure.
Beverly Kearney was a track and field coach for the University of Texas Lady Longhorns for nearly 20 years– from 1993 until her recent resignation on January 5, 2013. Her Wikipedia entry sums up her university career:
“Under her leadership, Kearney guided the Lady Longhorns to six NCAA Championships: Indoor Championships in 1998, 1999, and 2006, and Outdoor Championships in 1998, 1999, and 2005. On January 5, 2013, she resigned after admitting that she had engaged in an “intimate consensual relationship” with a student athlete.”
Her story also includes a dramatic return from life-threatening injuries sustained during a 2002 car accident. As Austinites we can tell you–at a University that sets impossibly high standards for coaches, she stood out as a superstar. Her students have accumulated 18 Olympic gold medals, and 48 NCAA national titles, and 358 All-America accolades. In 2007 she was inducted into the Track and Field and Cross Country Coaches Association Hall of Fame.
Kearney’s resignation was covered by many media outlets including ESPN, her employer, the University of Texas at Austin, the local newspaper, the Austin American Statesman, and CNN.
Essentially, the University’s position is that while coaching, Ms. Kearney had a sexual affair with a then 20-year-old student-athlete in her program. While the affair was consensual, the University Employee Handbook specified the relationship should have been reported and it was not.
The University conducted a review of the situation and then issued a formal statement including the following excerpt:
“Coach Kearney is a good person and has been very important to the University. However, she made this terrible mistake and used unacceptably poor judgment in having this relationship.
The University determined that it no longer was appropriate for Coach Kearney to serve as head coach or to work directly with our student-athletes and was prepared to begin the termination process. This was discussed with Coach Kearney recently. The University told Coach Kearney that we cannot condone such an intimate relationship, including one that is consensual, between a head coach and a student-athlete. We told Coach Kearney such a relationship is unprofessional and crosses the line of trust placed in the head coach for all aspects of the athletic program and the best interests of the student-athletes on the team.”
Ms. Kearney’s position is that she did not report her consensual relationship with the student-athlete since she did not know she was supposed to do so. The relationship was not prohibited (in spite of the University’s formal statement suggesting otherwise), it simply was expected to be reported to the University. The expectation was, according to Ms. Kearney, a recent addition to the Employee Handbook at the time of the relationship and she was unfamiliar with the requirement to report the relationship’s existence. CNN has a video of an interview Ms. Kearney completed with Soledad O’Brien that outlines Kearney’s perspective and the following is excerpted from the CNN website:
She claims that although she was forced to resign, other professors and administrators at the school have not had the same repercussions after engaging in relationships that violated policy. Kearney says, “I’ve always tried to live my life in a manner that I did not want to do harm. And it’s always been easier for me to forgive others. But this was a challenge for me to forgive myself for making a poor decision.”
O’Brien reads the section of the school’s employee handbook that highlights how not disclosing a romantic or sexual relationship with a student could lead to termination. Kearney responds, “I didn’t know that there was even a rule on the book. I think the rule had come into play maybe a year prior to the relationship, and I don’t ever even remember reading such a rule.”
The video of Ms. Kearney on the CNN site is compelling. She questions why she would be singled out for termination when male University employees (i.e., faculty and administrators) engaging in unreported but consensual sexual relationships with students were not. She wonders if it is because she is African-American, female, gay or disabled. She discusses the termination statement from the University which was about having the relationship and not about her failure to report the relationship (as specified in the Employee Handbook). She says she asked about whether every employee engaging in a sexual affair with a student had been terminated because “I had grown to not trust the University that I served in terms of equal treatment”.
Texas is an at-will employment state. People can be fired for any reason or no reason, unless the reason is illegal. While the conduct in this case was acknowledged by all as a violation of University policy, it appears (at least based on public statements) that the violation at the time of her firing was related to a failure to report. Based on the public statement by the University, she was fired 10 years later when it was found that she had sex with this individual.
To be clear, the research about the potential for sexual harassment and unfair treatment when there is a romantic or sexual relationship between managers and direct reports is unequivocal. That includes students and teachers (even when both parties are adults), coaches and athletes, and any other relationship that involves a disparity between the power and authority of the participants. It can create problems. It is difficult to avoid problems. It is unwise, and is often banned by many organizations.
As an at-will state (also known, ironically, as a “right to work” state) the policies don’t matter for firing, but they can be very important with regard to ‘firing for cause’ considerations in contracts, and termination clauses. But the employee handbook policy in effect in 2002 didn’t ban sexual liaisons, it just required her to disclose it. It will be interesting to see whether the University can explain the wisdom of this policy, and their reasons for taking the most extreme measure available in response to it.
Employment discrimination cases are complex, and this one is no exception. The University has an obligation to maintain proper standards in an array of areas, and can’t ignore violations of codes of sexual conduct by employees. The question in this case appears to be about whether she was singled out for reasons that were essentially illegal, and whether the remedy the University chose was appropriate, or based on issues such as race, gender, sexual preference, or disability.
As a Plaintiff, Beverly Kearney is an attractive, well-spoken woman with a bit of a mythic quality surrounding her. I have no non-public knowledge of this case. I have never met Ms. Kearney and have not read her employment contract, but it seems likely that her contract has terms and conditions that are typical of coaching contracts. Improper conduct may void the contract, or at least affect the University’s obligation to buy out the remaining years. Even though the employment rules in effect at the time that this relationship occurred only imply a reporting violation, the University is now justifying the firing based on the sexual conduct.
In fact, for firing purposes the University doesn’t need to justify anything at all. For employment contract purposes, it is likely more complicated.
Defense Attorneys: More Sisyphus or more Don Quixote?
Top criminal defense attorneys are an intense group. They care passionately about what they do. When they blog about the work they do, the result is often emotional, passionate, and downright amazing. Jeff Gamso (a criminal defense lawyer in Toledo, Ohio) writes Gamso For the Defense blog. His writing is often beautiful as befits a former English professor.
But as befits a blog about criminal defense, the content is gritty, often depressing, usually sad, and always intensely felt. I tend to imagine him writing in a darkened room after a long day of work with a strong drink next to him and fingers pounding at the keyboard in search of relief from the strain of seeking justice for his clients. For all I know, he writes laboriously and with precision (editing as he writes) in a sun-drenched room with a large mug of steaming black coffee. I’ve never met Jeff Gamso. But I read his thoughts regularly.
In the recent past, we have been living with the false confessions literature while working on a false confessions/wrongful convictions case. I was impressed by the volume of the literature and the regularity with which it emerges. Just in the past couple of weeks, for example, NPR did a story on what happens after jurors get it wrong and Pacific Standard wrote a terrific piece called “Why can’t law enforcement admit they blow it sometimes?”.
And as I studied the literature, and then our mock juror data– all the while reading Jeff Gamso’s blog–it was clear how defense attorneys get hooked on the process. The stakes are the highest, and the implications of errors are horrible. The justice-seeking is lengthy, convoluted and often, fruitless. But it’s the right thing to do. So they do it. Very recently, Jeff wondered aloud (well, actually in text) if defense attorneys were more Sisyphus or more Don Quixote.
“It is clear, I hope, why we who toil in these trenches, who stand beside those who hear the words that will send them away or free them, those who may never see another sunset or hug a loved one, we often see ourselves as Sisyphus.
Our job is to fight. Our fate is to lose. And yet, as Camus concludes,
One must imagine Sisyphus happy.
I prefer the image of Quixote, the mad knight of La Mancha. Wrapped in his psychosis he is the romantic figure. Not dashing and romantic. Not capable and brilliant. He is no Lancelot. He hasn’t the purity of a Galahad.
What he has is his madness. His insistence that the world be as he wishes it, that it be a place where one such as he believes himself to be might exist, and even flourish. He will love she he declares his Dulcinea [in case you've forgotten, she is the object of Don Quixote's affections], because that is what a knight does. He will tilt at that windmill, no matter the consequence, because that is what a knight does.
He will, of course, no more tame the world than Sisyphus will tame his rock and mountain. But he’ll go forth to battle the windmills anyway. Convinced, as always, that this time he will win.”
This post reminded me why I have to read Jeff Gamso. The writer, the lawyer, the philosopher, and perhaps the poet. And then, shortly after that, he wrote a post on the experience of exoneration–here’s what he said in the introduction:
“A few years ago in Cleveland. Maybe 6 or 7 of us were walking back to the hotel after a dinner party for speakers at the seminar for capital defense lawyers. All but one were lawyers. The one was Ray Krone, the 100th person to be exonerated from death row.
He’d been convicted of kidnapping, raping, and murdering Kim Ancona in 1991. In fact, he’d been convicted of it twice. Except Ray didn’t do it. It was, instead a guy named Kenneth Phillips. Ray was wholly innocent. He’d been convicted based on junk science by an incompetent self-proclaimed forensic dentist. And he was at the seminar to tell his story, to remind the practicing lawyers there that we were dealing with real people with real lives. And that, at least sometimes, they were really truly factually innocent. Ray does a lot of these speaking gigs now. He talks to lawyers and activists and legislators. Telling his story. Standing up, as the organization he helped found says, as a Witness to Innocence.
Anyway, we were walking back to the hotel when some guy came up to us looking for a handout. Maybe he had a story. Maybe he said something about needing money to feed his family. Maybe he just wanted cash to buy a bottle of something or some controlled substance. Maybe he just stuck out his hand at this bunch of guys walking together and talking, looking much better off than he did. I don’t remember.
Here’s what I remember. Most of us were set to just keep walking. Ray reached into his pocket and gave the guy something: a five or a ten or a twenty. Whatever it was, one bill and more than a single. And as if on cue, the rest of us reached into our pockets and matched what Ray had done. I’m pretty sure the guy didn’t know just how he’d hit the mother lode, but he knew he had.
See, for Ray Krone it’s not theoretical. He’s stared right at the gates of hell. Shit, he entered. And he’s one of the comparatively lucky ones who came out the other side. And by his example, he shamed those of us who do this work, care about the work and the guys.
Because it’s not just our clients and our cause. There are lots of people who need help. Who have been beaten. Who are lost. There’s only so much we can do, but there’s always more.”
And that’s just the introduction. There is always more when Jeff Gamso writes. The point of the post is really to talk about what happens after exoneration and how people who have been wrongfully convicted put their lives back together. Or not.
It’s powerful. It’s Jeff Gamso at his best. It will make you cringe and catch your breath at injustice. And just maybe, it will make you want to act.
Thank you, Jeff.
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