Nashville at law: 29 September 2008

Supremes to hear local case that pits worker against employer

Email | Print By E. Thomas Wood

09-29-2008 9:29 AM — A legal case involving Nashville's school system, slated for argument before the U.S. Supreme Court on October 8, could have a significant impact on U.S. employment law.

The justices could use Crawford v. Metro Nashville to set new precedents in federal law as it applies to workplace harassment. At issue in the case: How much protection do the anti-retaliation provisions of the Civil Rights Act offer to employees who cooperate with in-house investigations?

In 2002, Vicky S. Crawford was one of three administrative employees at Metro Nashville Public Schools who told Metro Personnel investigators they had been subjected to sexual harassment by Dr. Gene Hughes, employee relations director for the school district. Crawford, who had been the district's payroll coordinator since 1978, had not initiated the probe but she gave details of behavior by Hughes when interviewed.

Not long afterward, Crawford and the other two employees who had spoken out were accused of various misdeeds and fired.

(Hughes resigned in 2003, after admitting that he had falsely claimed to have been a lawyer, a Navy SEAL and a professional football player in the past.)

Crawford sued, claiming she had been retaliated against for what she said in her interview. She argued that employees cooperating with an internal investigation are subject to the protections of Title VII of the Civil Rights Act. That measure forbids employers from persecuting workplace whistleblowers.

Nashville's U.S. District Court dismissed Crawford's argument on the grounds that she could not claim protection under the civil rights law because she did not file the complaint against Hughes and took no active steps to oppose what she accused him of doing. If she didn't file the claim, and there was no legally recognized investigation involving a complaint to the Equal Employment Opportunity Commission, Crawford was not subject to the law's protections, the court ruled.

The Sixth Circuit Court of Appeals agreed with the lower court. "The impact of Title VII on an employer can be onerous," a three-judge panel reasoned. "By protecting only participation in investigations that occur relative to EEOC proceedings, the participation clause prevents the burden of Title VII from falling on an employer who proactively chooses to launch an internal investigation."

Since the Supreme Court agreed to hear the case, advocates for employees have taken up Crawford's cause in several friend-of-the-court briefs, while business-friendly interests have done likewise for Metro.

The federal government, through the Justice Department's Civil Rights Division, has weighed in to support Crawford. Its brief accuses the lower courts of putting vulnerable employees in an untenable position when the employer calls on them to cooperate with a preliminary internal investigation.

"The employee risks retaliation for disclosing the unlawful activity or for refusing to cooperate with the employer's investigation," the Justice lawyers write. "The only safe course for the employee would be to provide only innocuous information about the supervisor, even when discrimination is rampant."

Taking an opposing stance, the Chamber of Commerce of the United States warns in its brief that reversal of the Sixth Circuit's position would end up "subjecting employers to the predictable flood of frivolous retaliation charges and lawsuits" made possible by a loosening of liability standards. The business group said a decision in favor of Crawford would "impose an unmanageable burden on both the EEOC and the courts." And it argues that employees are well-protected from retaliation by the law as currently interpreted.

Ann Buntin Steiner, of Steiner & Steiner in Nashville, is representing Crawford. As is often done in Supreme Court cases, she has retained a specialist in arguing before the high court, Eric Schnapper of the University of Washington School of Law, to handle oral arguments.

Frank Young is the Metro Department of Law's lead counsel on the case, accompanied on its Supreme Court brief by Metro Legal Associate Director Jim Charles. Young will do the talking before the justices.

Other cases of note (September 18-25)

United States District Court:

Kelly, Kelly & Allman; Flynn & Radford Attorneys P.C.; Pittman, Germany, Roberts & Welsh L.L.P. and Bisphosphonates Litigation Group v. Lawsuit Financing Inc. and Rainmaker USA LLC. Lawsuit filed September 18. This case opens a window on the big business of class-action litigation at the plaintiff's bar. The Kelly and Flynn law firms, based locally, and Mississippi-based Pittman Germany are in a group of firms pursuing class-actions on behalf of people who claim they were harmed by a class of anti-osteoporosis drugs called bisphosphonates.

The dispute at hand involves a loan that a Knoxville lawyer, John O. Threadgill, took out from the defendant companies before he joined the bisphosphonates group. The other lawyers later expelled him from the group, but the defendants claim the group's members are on the hook for the $225,000 they loaned to Threadgill. The law firms seek a declaratory judgment saying they owe nothing.

Plaintiffs' counsel: Chattanooga attorney Joseph G. DeGaetano and George H. Nolan of the Nashville firm Leader, Bulso & Nolan PLC. Defendants' counsel: Charles William McElroy of White & Reasor in Nashville.

United States Bankruptcy Court:

Arte Hotels LLC. Chapter 11 petition filed September 25. Biomedical entrepreneur Tarun Surti set up this company to buy the Brentwood Holiday Inn last year. The filing cites both assets and liabilities between $10 million and $100 million; it does not yet include all required information. Debtor's attorney: Franklin lawyer Jonathan Jackson Pledger.

Davidson County Circuit Court:

Everlife Inc. et al. v. Forever 21 Retail Inc. Filed September 19. All-female pop group Everlife claims that multinational mall-fashion chain Forever 21 is using its likeness without permission by selling T-shirts with the band's image on them. Singer Gwen Stefani and designer Diane von Fürstenberg have each sued Forever 21 in the past over infringement issues. Everlife and its members seek $2 million in damages. Plaintiff's attorney: John L. Whitfield Jr. of Moody, Whitfield & Castellarin in Nashville.