Wal-Mart wins defense verdict in federal court

The Equal Employment Opportunity Commission has lost a case involving a woman who alleged Wal-Mart fired her because of her age.

A  U.S. District Court for the Eastern District of Missouri jury found for Wal-Mart on April 7.

Yvonne Loskot was 67 when she was fired from the De Soto store’s optical center. At the time, she made just under $18 an hour and was the highest-paid optician at the center, according to the EEOC.

The EEOC alleged that the district vision center manager targeted Loskot because of her age and how much money she made, said EEOC attorney Andrea Baran. The EEOC claimed it had testimony from the center’s former manager that the district manager had told her to cut workers’ hours in May 2005 and particularly Loskot’s because she was “old” and was going to retire soon anyway.

“She [the center manager] had a clear understanding from him [the district manager] that he wanted her to get rid of Mrs. Loskot,” Baran said. The district manager denied during trial he ever made such comments, she said.

After the cutback in hours and the firing of the optical center manager, the district manager ordered a loss-prevention specialist to investigate the De Soto center’s optical department and, specifically, Loskot, the EEOC claimed.

Wal-Mart said the investigation gave it reason to believe Loskot had stolen glasses and enrolled her grandchildren without permission in the program Project Insight, which provides eye care to children without insurance, Baran said.

Baran said Loskot “had receipts going back for years.”

Baran said the division center manager gave permission to the optical center manager to enroll Loskot’s grandchildren and two other employees’ children into Project Insight and that Loskot’s grandchildren would have been eligible for the program anyway.

Baran said the EEOC employed a “cat’s paw” theory in the case, in which one person unwittingly carries out another person’s discriminatory motives. In this case, Baran said, the loss-prevention specialist was not aware of the district manager’s ultimate goal of firing Loskot for her age.

While Wal-Mart’s internal investigation was pending, Loskot visited a doctor because of stress, Baran said.

After Loskot was diagnosed with extreme anxiety, she took what she believed was an approved 30-day leave of absence, Baran said. During that time, Wal-Mart claimed she missed a scheduled meeting with the loss-prevention specialist, denied her leave of absence and fired her in October 2005.

Baran said the EEOC sought back pay and benefits totaling more than $160,000 for Loskot. Under the Age Discrimination in Employment Act, she said, you cannot ask for punitive damages, but a judge potentially can double the jury verdict if he or she makes a finding of willfulness on the part of the employer.

After initial attempts to settle and ultimately three days of trial, the jury returned the defense verdict.

James Bennett of Dowd Bennett represented Wal-Mart but declined to comment on the case. He referred a reporter to Wal-Mart’s corporate media department.

“We’re pleased that the jury has recognized that our managers acted appropriately in this matter,” said Wal-Mart spokesman Greg Rossiter.

Employment attorney Jerry Carmody said he thinks Wal-Mart had discipline termination protocols in place. “Employers who terminate people in a protected age group – 40 or over – are conscious of the possibility that claims can arise and will be certain to take extra measures to ensure there are documented reasons for the termination,” said Carmody, of Carmody MacDonald. He is not affiliated with the case. “I expect that’s what happened in this case.”

Baran said she was “disappointed” in the jury’s decision, and that most cases taken up by the EEOC settle.

“We’re committed to taking our cases all the way through to the end,” she said.

Defense jury verdict
Age discrimination
Court: U.S. District Court for the Eastern District of Missouri
Case Number/Date: 4:08-CV-01439-AGF/April 7, 2010
Judge: Audrey G. Fleissig
Caption: Equal Employment Opportunity Commission v. Wal-Mart Stores Inc.
Plaintiff’s Attorneys: Andrea G. Baran and Barbara Seely, EEOC
Defendant’s Attorneys: James F. Bennett, Erika M. Anderson and Jennifer L. Aspinall, Dowd Bennett, Clayton

Copyright 2010  Missouri Lawyers Media

Western District debates who can fire ALJs

Appeals court judges Thursday asked how, beyond the language of a state statute, administrative law judges can be fired.

Ron Holliger, general counsel for Missouri Attorney General Chris Koster, told the judges the Legislature has the power to create, abolish, modify or change any position – including through appropriations legislation.

“It’s been a general proposition of American law for many, many years that the body that creates a public office can abolish that position,” Holliger said at the hearing before the Missouri Court of Appeals Western District, at the University of Missouri Law School.

“If the position is established by the constitution, then it can be abolished by the people through only a constitutional amendment,” said Holliger, who served on the court before taking his job as Koster’s general counsel.

Last year, the Legislature passed a budget bill to cut positions at the Division of Workers’ Compensation. After the bill was signed into law, a number of administrative law judges received letters saying their tenure would end at the end of June. Gov. Jay Nixon’s administration cited the state’s worsening financial situation for the decision.

Three of the judges – Matthew Murphy, Henry Herschel and John Tackes – sued, arguing that they could be dismissed only through a process delineated in a statute. Cole County Circuit Judge Jon Beetem ultimately agreed, as he issued a permanent injunction last year keeping the three judges in their positions.

“Once appointed and assuming they remain otherwise qualified to serve, an administrative law judge appointed pursuant to [state statutes] may be removed only by the Governor after two or more votes of no confidence by the Committee or by a vote of non-retention taken at the end of their term,” Beetem wrote in a 10-page decision.

But on Thursday, Holliger told the judges, “The precedent is that the Legislature can use either its appropriations power or its other legislative power to eliminate positions or eliminate funding.”

John Comerford – the attorney for Murphy, Herschel and Tackes – argued that the administrative law judges could only be ousted either at the end of their terms – or if they receive votes of no confidence from a state board. Judge Mark Pfeiffer asked if it was Comerford’s position that under no scenario could budget legislation reduce the number of ALJs.

“Well, I certainly don’t believe … the specific removal methods that are spelled out in that statute authorize an additional removal method through the appropriations process,” Comerford said. “I think as a practical matter, the Legislature could simply change the statutorily authorized ALJs in the first sentence [of the statute] and do it that way.”

Judge Alok Ahuja said his concern is if the Legislature actually authorized the director of the division to eliminate the ALJs’ positions. He said the language of the budget bill in question showed the amount of money and positions allowed but didn’t say anything specifically about eliminating the judges’ positions.

“In your view, is there any warrant to look beyond the face of [the budget legislation] to determine the need of the bill?” Ahuja asked Comerford.

“Absolutely not,” Comerford said, adding that it’s “incumbent on them as the executive branch to enact their appropriation in a way that comports with the law.”

Copyright 2010  Missouri Lawyers Media

SPRINGFIELD, Mo. – A federal judge has rejected a Springfield woman’s claim that her monkey was a service animal and that she was disabled.

Debby Rose had sued the Springfield-Greene County Health Department, CoxHealth hospital and a Springfield Wal-Mart because she was not allowed to take the monkey, named Richard, into restaurants and other businesses.

The Springfield News-Leader reported that Rose claimed she was covered by the Americans With Disabilities Act because she suffered from anxiety and agoraphobia. She said she needed Richard to calm her.

But federal Judge Richard Dorr ruled Thursday that the monkey was not a service animal and that Rose was not disabled.

The judge noted that Rose was able to marry three times, raise six children and work several jobs despite claiming to suffer from the disabilities since the 1970s.

A Springfield woman who fought to have her monkey declared a service animal said Thursday she was shocked a federal judge rejected her lawsuit.

“It’s devastating; it’s devastating,” Debby Rose said of the outcome of her lawsuit against the Springfield-Greene County Health Department, Cox Health and Wal-Mart East.

“I feel like I’m discriminated against in Greene County. What can I say?”

Federal Judge Richard Dorr ruled that Rose’s monkey — Richard — was not a service animal and that she was not disabled.

Rose and her attorney could appeal in an effort to obtain a service animal status for Richard so she can take him in restaurants and other places. “I can only pray that we do,” she said. “It’s all up to my attorney, of course.”

James Arneson, the attorney who represents Rose, said he does not comment on judges’ rulings.

The judge issued a summary judgment — a ruling without going to trial — about Richard’s status, denying Rose’s claim that she is covered by the Americans With Disabilities Act.

Rose originally filed the case in Greene County Circuit Court. It sought damages, compliance with the ADA and expenses related to the lawsuit.

She claimed to suffer from agoraphobia and anxiety.

Dorr noted in his ruling that although Rose claimed to suffer from the disabling conditions since the 1970s, she married three times, raised six children, worked at a variety of jobs, owned an animal rescue refuge, moved in and out of Missouri several times and was not diagnosed until 2006.

Rose disputed that date Thursday, saying she was diagnosed in 2001.

The judge also ruled the Springfield-Greene County Health Department acted properly in determining the Bonnet Macaque monkey Rose purchased in 2004 was not a service animal and by warning businesses that they may violate state food codes if they admitted Richard.

Wal-Mart refused to allow Rose in stores after receiving the letter and Cox Health determined that allowing a monkey into its facilities could pose a threat from transmission of herpes B infection.

The hospital said Rose could attend classes at Cox College, but could not bring Richard with her.

Kevin Gipson, director of the health department, said the judge’s ruling is logical. The department took a stance that a monkey was not a suitable service animal.

“It just kind of sustained what our feelings were,” Gipson said.

He added that area residents who used recognized service animals don’t need to be concerned about the ruling.

“It really doesn’t affect trained service animals,” he said.

In the future, local health departments may not have to deal with cases such as Richard’s. That’s because the federal government is considering stricter definition of what a service animal is to eliminate exotic animals from that designation, Gipson said.

Rose claimed Richard was a service animal because he did such things as “breaking the spell” and “breaking off the focus.” But the judge found Richard’s activities did not address any disabilities Rose might have.

Instead, Richard offered Rose comfort as a pet, the judge ruled.

Rose said not being able to take Richard with her restricts her activities.

“I won’t be able to function,” she said. “I can’t say anymore. I can’t do it without him.”

“I won’t be able to function. I can’t say anymore. I can’t do it without him. “

A Cole County judge said three administrative law judges can’t be terminated from their positions for budgetary reasons.

Earlier this year, five administrative law judge positions were dismissed from their posts. Four of the judges were let go, and a retiring judge was not replaced. Gov. Jay Nixon said the move was meant as a cost-cutting measure in the midst of a tough budgetary situation.

But three of the judges – Henry Herschel, John A. Tackes and Matthew Murphy – sued to keep their positions. They argued that they could only be dismissed under a specific system set up in the state’s statutes.

In a decision released Wednesday, Cole County Circuit Judge Jon Beetem issued a permanent injunction that keeps the three men in their positions as administrative law judges. The ruling also forces the state to provide them with roughly $39,514 in legal fees.

“Once appointed and assuming they remain otherwise qualified to serve, an administrative law judge appointed pursuant to [state statutes] may be removed only by the Governor after two or more votes of no confidence by the Committee or by a vote of non-retention taken at the end of their term,” Beetem wrote in a 10-page decision.

Beetem went on to say that the “public interest favors adjudication of worker’s compensation claims by an independent administrative judiciary.”

“The termination of one’s appointment as an administrative law judge, prior to the expiration of his term and without reliance upon the statutory process violates one’s right to procedural due process arising under the U.S. Constitution,” Beetem wrote.

John Comerford, a St. Louis attorney who handled the case for the three attorneys, said Wednesday afternoon that he was pleased with the decision.

“We think it’s a very fair result,” Comerford said. “We think that the statute is clear and the Legislature’s intent that you can read in this statute is clear … They didn’t want administrative law judges to be removed in the budget process. And the judge agreed with us, and we’re very happy with the result.”

A spokeswoman for Attorney General Chris Koster was not available as of press time. And a spokesman for Nixon referred questions to the Missouri Department of Labor and Industrial Relations. Spokes-woman Amy Susan said the department is reviewing the decision.

Comerford said he didn’t know whether there would be an appeal of the permanent injunction. He said he hasn’t had any conversation with Ron Holliger, a former Missouri Court of Appeals Western District judge who now works for Koster. Holliger served as the attorney defending the state in this case.

“I don’t know honestly what their intentions are,” Comerford said.

The futures of three administrative law judges are in the hands of a Cole County judge.

Attorneys presented final arguments on Wednesday in a case deciding whether the three ALJs can stay on job. Gov. Jay Nixon’s administration dismissed Henry Herschel, Matthew Murphy and John Tackes earlier this year, citing budgetary concerns. Two other judges’ positions were also cut.

Cole County Circuit Judge Jon Beetem issued a preliminary injunction earlier this year that prevents the Nixon administration from firing or retaliating against the three judges. The plaintiffs are seeking a permanent injunction that would keep them in place.

John Comerford, an attorney with St. Louis County-based Dowd Bennett, has argued that there are statutory protections against firing administrative law judges. He said an ALJ can only be dismissed after a term expires or if he or she receives two no confidence votes from a state board.

“Outside of those two methods, there is no other method by which an ALJ can be removed,” Comerford said.

Comerford has also argued that a full slate of ALJs is needed, as workplace injuries are steadily increasing as time goes on.

But Ron Holliger, a former appeals court judge who is now Attorney General Chris Koster’s general counsel, argued on Wednesday that administrative law judges could be removed another way: the legislative appropriations process.

“It is the purest way and the only way that they can eliminate positions,” Holliger said. “If they are not allowed to eliminate positions, it creates a constitutional and budgetary crisis.”

The two competing sides spent the majority of the hearing questioning Lawrence Rebman, the director of the Department of Labor and Industrial Relations. Comerford spent a great deal of time asking Rebman about how the cuts were framed to the Legislature, as well as how the five specific administrative law judges were picked for termination.

Comerford also called Murphy to the stand in order to show damages. Murphy – a longtime Columbia resident who had just been assigned to hear cases in Cape Girardeau when he was removed – said he had to put the kibosh on an effort to purchase a house near the southeastern Missouri city.

In his closing argument, Comerford said that the statute presents a clear path to dismissing administrative law judges. But even if the Legislature could upend them by not appropriating money, Comerford said the cut wasn’t based on a statutory requirement of “necessity measured by the needs and requirements of the division office.”

Holliger noted that hundreds of other people in and around state government are losing their jobs, not just administrative law judges.

“They’re going to feel that’s unfair as well – that their job is just as important as these three individuals’,” Holliger said. “This wasn’t and isn’t about the termination of these three people. This is about the ability of the General Assembly to reduce and eliminate positions by the power of appropriation.”

Both Comerford and Holliger indicated that they would appeal Beetem’s ruling on the permanent injunction. Beetem didn’t say when he would render his decision.

A Cole County circuit judge has issued a preliminary injunction that prevents three administrative law judges from being forced out.

Henry Herschel, Matthew Murphy and John Tackes sued in June to prevent Gov. Jay Nixon’s administration from dismissing them. While Nixon said they were let go for budgetary reasons, an attorney for the judges says the move violated statutes that lay out a specific dismissal process.

Judge Jon Beetem issued a temporary restraining order late last month, a move that prevented the judges from leaving their positions for 15 days.

In a ruling issued Thursday, Beetem granted the injunction, which “shall remain in effect until a full adjudication of Plaintiffs’ claims on the merits or until further order of this Court.”

“The Court has weighed Plaintiffs’ showing of their probability of success on the merits, the threat of irreparable harm to Plaintiffs absent the injunction, the balance between this harm to Plaintiffs and the injury that the injunction’s issuance would inflict on other interested parties, including Defendants and the public interest,” Beetem wrote. “The Court also finds that Plaintiffs have no adequate remedy at law.”

Beetem then wrote that the defendants – which include Nixon, his chief of staff and the chiefs of the Division of Workers’ Compensation and the Department of Labor and Industrial Relations – are barred from terminating the three men’s appointments or engaging in “any retaliatory actions.”

John Comerford, an attorney for the three judges, said in an e-mailed statement he was “very pleased” with Beetem’s order.

“My clients are looking forward to continuing to serve the public as administrative law judges,” said Comerford.

Nanci Gonder, a spokeswoman for Attorney General Chris Koster, declined to comment.

Beetem scheduled a case review for 11 a.m. on July 22.

Three administrative law judges contesting their dismissals will get at least a couple more weeks to continue at their posts.

Jon Beetem, a Cole County associate circuit judge, issued a temporary restraining order against a bid by the state to lay off three administrative law judges. Without such an order, the three men – Henry Herschel, Matthew Murphy and John A. Tackes – would have been forced to leave their positions by June 30.

“The Court finds that plaintiffs will suffer irreparable harm in the form of the loss their appointments as Administrative Law Judges in the absence of this order,” Beetem wrote in the two-page order issued Monday.

Beetem went on to write the defendants in the case – including Gov. Jay Nixon, Division of Workers’ Compensation acting director Peter Lyskowski and Nixon chief of staff John Watson – are barred from terminating the three judges or “engaging in any retaliatory actions.”

The order remains in effect for 15 days and could be extended if the plaintiffs show “that a threat of immediate and irreparable injury, loss or damage continues to exist.”

Citing budgetary reasons, Gov. Jay Nixon’s administration dismissed four administrative law judges earlier this month. A position of a fifth judge who retired is not going to be filled. Three of judges sued in Cole County Court last week in order to keep their positions. The fourth judge who was laid off, June Doughty, is not a party in the suit.

St. Louis-area attorney John Comerford has argued that there is statutory language that prevents administrative law judges from being dismissed without a standardized procedure. He’s also argued that lowering the number of judges will slow down the processing of workers’ compensation claims.

In a telephone interview on Monday, Comerford said “we have the law on our side and the facts on our side.”

“This is just the first battle,” Comerford said. “And we’re eager to move onto the next step, which will be to ask the court for a permanent injunction.”

“And really, we’re very pleased,” he added. “This is exactly how our judicial system is designed to function. The court stepped in and provided a much needed check and balance to protect individual rights in a case where the executive branch, in our opinion, has overreached.”

Nixon has argued that then-Gov. Matt Blunt also made reductions in the number of people adjudicating workers’ compensation claims. He said at a press conference on Thursday that he did not believe his decision made the decision-making of these judges less independent.

“The legislature in a bipartisan overwhelmingly said … that they felt those non-Article V positions should be trimmed up,” Nixon said. “I mean, the Missouri Legislature trimmed up a number of legal assistants over the years anyway. And we have to balance budgets, you have to tighten them up. I don’t see that as a message at all.”

Ron Holliger, a former appellate judge who now serves as Attorney General Chris Koster’s general counsel, argued on Friday that a permanent reinstatement of the judges would prompt layoffs other employees.

“The only way for the division to have to balance its budget – which it’s constitutionally required to do – would be to lay off other employees,” Holliger said on Friday during the hearing.

Comerford said the division has typically spent less than the Legislature has appropriated over the past fiscal years. If the division went over that amount, he added, they could either cut other spending items or lay off at-will employees that he says are not protected by statute.

He’s also noted that the workers’ compensation system “is a completely separate pot of money” consisting of levies paid to the state by the insurance companies who provide workers’ compensation insurance coverage to employers.

According to a filing on Case.Net, a hearing was set for 2 p.m. July 6 on a preliminary injunction “unless parties, counsel and the court identify a mutually agreeable alternative.”

A Cole County judge said he will decide by Tuesday whether to keep three dismissed administrative law judges on the job.

Gov. Jay Nixon’s administration dismissed four administrative law judges earlier this month, while the position of a fifth judge who retired will not be filled. The judges are supposed to leave their posts by June 30 – the end of fiscal year 2009.

Three of the judges – Henry Herschel, Matthew Murphy and John Tackes – sued earlier this week, arguing that state law protects them from being dismissed without a formal process.

Judge Jon Beetem, a Cole County circuit judge, on Friday considered whether to issue a temporary restraining order against the state. If Beetem issues the order, the soon-to-be dismissed judges would remain in their positions past June 30.

John Comerford, an attorney with Dowd Bennett representing the three judges, said he was “optimistic” about his clients’ chances.

“We’re very optimistic that he will give us a temporary restraining order,” Comerford said after the hearing. “Then my clients will continue to be employed on July 1 and will continue to serve the public.”

Nixon, who has cited the declining budgetary situation for the cuts, has argued that then-Gov. Matt Blunt also made reductions to the Division of Workers’ Compensation. And Ron Holliger – a former appellate judge who now serves as Attorney General Chris Koster’s general counsel – argued for that state that a permanent reinstatement of the judges would prompt layoffs of other employees.

“The only way for the division to have to balance its budget – which it’s constitutionally required to do – would be to lay off other employees,” Holliger said Friday during the hearing.

Comerford said that the division has typically spent less than the Legislature has appropriated for it over the past few years. If the division went over that amount, he added, they would either cut other spending items or lay off at-will employees that he says are not protected by statute.

Three dismissed administrative law judges have filed a lawsuit against Gov. Jay Nixon’s administration, arguing that the move was illegal under state statute.

The three former judges – Henry Herschel, Matthew Murphy and John A. Tackes – are plaintiffs in a lawsuit filed Wednesday in Cole County Circuit Court. The petition alleges that Nixon’s administration and the Department of Labor and Industrial Relations unlawfully dismissed the judges.

Missouri Lawyers Media reported last week that the three plaintiffs and a fourth ALJ, June Doughty, would be dismissed effective July 1. In addition, the position of a retiring judge won’t be filled. Neither Doughty nor the retiring judge, Ron Harris, are parties to the lawsuit.

The lawsuit contains four counts. The first accuses the defendants of violating state laws pertaining to wrongful termination. The second count, specifically against the Missouri Division of Workers’ Compensation, alleges a wrongful termination in violation of public policy. The final two counts allege that judges were denied their due process rights under the state and federal constitutions.

In all of the counts, the three judges are asking for an injunction preventing them from being removed from their appointed posts. They’re also asking to be reimbursed for legal costs and attorney fees.

John Comerford, an attorney with Dowd Bennett in St. Louis, said in a lengthy e-mailed statement that he hoped the suit would convince Nixon “to take a look at the statutes, admit that his administration made a mistake, and let these judges get back to public service.”

“Until that happens, my clients are going to do whatever they have to do to defend their rights,” Comerford said.

One point of contention in the lawsuit is that the firing violated a state statute that spells out how administrative law judges can be involuntarily dismissed. The workers’ compensation statutes, as amended in 2005, say that an administrative law judge can be removed through retention votes by a state review committee.

Comerford said there is “very detailed and precise law to insulate and protect administrative law judges from being fired by elected officials and their political appointees.”

“The law specifically states that administrative law judges can only be removed from office when removal has been recommended by a bipartisan review committee,” Comerford said in an e-mail. “Missouri appellate courts have confirmed that this statute provides the only means by which these judges can be involuntarily dismissed.”

“These protections were written into the law because our state’s judges must be able to render independent and impartial decisions without the fear of political reprisals from people who think they have the power to cut judges out of the budget if they don’t like their decisions or their politics,” Comerford added.

In an e-mailed statement on Wednesday, Nixon spokesman Scott Holste said the judges were dismissed for budgetary reasons.

“During these tough economic times, Missouri government has had to take significant steps to reduce spending, just as many Missouri families have had to do,” Holste said in the e-mail. “The elimination of these positions as part of these budget-cutting measures was approved by the Republican-controlled legislature in an overwhelming fashion and was part of the final budget that the General Assembly presented to the Governor.”

Amy Susan, a Labor and Industrial Relations spokeswoman said in an e-mailed statement that all the cuts were based on seniority, with the most recently hired positions being terminated.

But Comerford said that the budgetary explanation doesn’t hold water.

He said the workers’ compensation system “is a completely separate pot of money” consisting of taxes paid by the insurance companies who provide workers’ compensation insurance coverage to employers.

“The fund is required by law to be reserved for the payment of benefits to sick and injured workers, and to pay for the judges who administer those claims and benefits. Missouri law explicitly says that this money is to be used ‘for no other purposes,’” Comerford said. “Because there is surplus money in this fund, and because the money can’t be used for anything else, we see no support for the administration’s claim that these judges had to be fired due to budget cuts.”

In addition to Nixon, the three plaintiffs are suing Nixon’s Chief of Staff John Watson, Department of Labor and Industrial Relations Director Lawrence Rebman and Division of Workers’ Compensation Acting Director Peter Lyskowski. DOLIR’s Division of Worker’s Compensation and the state Office of Administration are also listed as defendants.

*******************************CORRECTION*********************************

The June 24 story Lawsuit alleges ALJ cuts were illegal misspelled attorney John Comerford’s name in two instances. The Daily Record regrets the error.