Sunday, November 28, 2004

How to Steal Wi-Fi has this article on How to steal Wi-Fi--"and how to keep the neighbors from stealing yours." Stealing is a strong word. It's more like hitching a ride on a train, which I did from time to time as a boy in Lumberport on my way to baseball practice.

Thursday, November 25, 2004

C-8 settlement approved

The Charleston Gazette - APNews PARKERSBURG, W.Va. (AP) -- A judge on Tuesday approved the terms of an almost $70 million medical study of up to 80,000 people who drank water contaminated with C8, a chemical used to make Teflon at DuPont Co.'s Washington Works plant.

Monday, November 22, 2004

Fourth Circuit affirms remand of wrongful discharge case involving tangential reference to CBA

The case of Harless v. CSX Hotels, Incorporated a/k/a The Greenbrier Hotel, No. 03-2433 (pdf) was a wrongful discharge case brought on behalf of a deceased union worker, which alleged age and disability discrimination. The defendant claimed the suit was preempted by the LMRA because the company's reason for dismissing the employee was his violation of the attendance requirements stated by the collective bargaining agreement. The District Court allowed the plaintiff two opportunities to amend her complaint, and the final pleading was devoid of any federal claims. The District Court then remanded the case to state court. The defendant appealed claiming abuse of discretion.

The Fourth Circuit found nothing wrong with allowing a plaintiff to amend his complaint to clear out federal causes of action to secure a remand. District judges continue to enjoy great discretion with regard to allowing plaintiffs to amend for the sole purpose of destroying federal jurisdiction. See Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999) (diversity); AIDS Counseling and Testing Centers v. Group W Television, Inc., 903 F.2d 1000 (4th Cir. 1990) (also diversity). The district court is not deprived of jurisdiction automatically, but the court has the option of remanding the case once the amendment is made.

With regard to the new complaint, because the Plaintiffs' claims were couched only in terms of violations of state anti-discrimination laws, the Court found it was not an abuse of discretion to remand the case to state court. The injection of the CBA issue by the Defendant (arguing its legitimate non-discriminatory reason for discharge) was not sufficient to create a federal question. If the federal question is not on the face of the complaint, it should not be considered.

Saturday, November 20, 2004

And you thought you only had one plaintiff in your employment discrimination case...

In McKenzie v. Carroll International, et al., No. 31721, an age discrimination case under the West Virginia Human Rights Act, the trial court judge ruled that testimony of six non-party employees who believed they were discriminated against due to their ages should have been admitted at trial. The jury came back with a defense verdict in favor of the employer, and on the Plaintiff's appeal, the Court reversed and remanded, holding that

In an action brought for employment discrimination, a plaintiff may call witnesses to testify specifically about any incident of employment discrimination that the witnesses believe the defendant perpetrated against them, so long as the testimony is relevant to the type of employment discrimination that the plaintiff has alleged.
While it is common to put on statistics that involve other employees (e.g., employer RIF'd 30 employees and 29 of them were over 40, etc.), it is much less common to allow live testimony from these "other" employees. The Court has now held, however, that plaintiffs can put on not only the statistics, but can supplement with testimony of other witnesses as to discrimination against them, even if they are not parties to the suit. This will unavoidably lead to "mini-trials" over the circumstances related to all of these other employees.

The Court gave some "reprieve" from the circus-style atmosphere that is sure to result from allowing such evidence in footnote 7 by noting that "[o]bviously we do not believe that a plaintiff should be allowed to parade dozens of witnesses to testify about their alleged discrimination experiences with an employer, but a single digit number of witnesses, as in this case, is not too burdensome or repetitious." So, plaintiffs will have to choose the best 9.

Another significant ruling in this case was that

In an action alleging unlawful discrimination under the West Virginia Human Rights Act, a trial court may, in its discretion, admit evidence from the record of a prior administrative proceeding held before the West Virginia Human Rights Commission. In making the admissibility determination, a trial court should consider whether the evidence sought to be introduced (1) contains legal conclusions in addition to its factual content; (2) raises questions of trustworthiness under W. Va. R. Evid. 803(8)(C); (3) presents problems cognizable under W. Va. R. Evid. 403; and (4) any other relevant factor.

Thus, probable cause/no probable cause orders might be fair game. This particular ruling is a double-edged sword.

McCusky won't take federal judgeship

You can cross John McCusky off the list of potential appointees for Judge Haden's place on the federal bench.

Cops in uniform sway jurors, lawyer says

This article in the Charleston Gazette reports that Pocahontas County lawyer Martin Saffer has launched a campaign to limit when police officers may don their uniforms before a jury.

"Police officers should be able testify in uniform against a person accused of battery of a police officer, for instance, but not against a person accused of buying drugs in an undercover sting, he said."

This is just a bad idea. Priests should be able to wear their collars, lawyers their suits, and officers their uniforms. The article claims (page 2) that "[a]s a Monongalia Circuit judge, Starcher barred police from wearing their uniforms and guns in front of jurors." Even if that is true, I'll bet Justice Starcher never presided over a jury trial without a robe. I can see why he disallowed guns, but not uniforms. Officers earned the right to wear their uniforms. It sets them apart from others, just like a robe for a judge.