Wednesday, June 29, 2005

Fourth Circuit finds arbitration agreement supported by consideration

In Hill v. PeopleSoft USA, Inc., No. 04-2187 (4th Cir 2005) (PDF), the Fourth Circuit held that arbitration of an employment discrimination claim should have been compelled because the arbitration agreement was supported by adequate consideration under Maryland law.

In August 2001, PeopleSoft offered plaintiff Hill a position of employment, and in her offer letter, PeopleSoft indicated that, as a condition of her employment, Hill would have to sign a separate arbitration agreement. The arbitration agreement was signed by both parties. It required arbitration of all claims arising out of the employment relationship, except for claims involving Workers’ Compensation, Unemployment Insurance, or administrative claims under the National Labor Relations Board, Department of Labor, or Equal Employment Opportunity Commission. The offer letter also indicated that Hill, by accepting PeopleSoft’s offer of employment was agreeing to be bound by the company’s “internal dispute solution” (“IDS”) program. This program was apparently a company policy generally applicable to all employees. Unlike the separate arbitration agreement, in the IDS program PeopleSoft reserved the right to “change” the program “without notice.”

Hill sued PeopleSoft for various acts of discrimination. When PeopleSoft moved to compel arbitration under the arbitration agreement, the District Court refused to compel arbitration because it found that the arbitration agreement was not supported by consideration because under the IDS program, PeopleSoft reserved the right to change the IDS program “without notice.” According to the Court, PeopleSoft’s retention in the IDS program of the right to change the IDS program without notice rendered PeopleSoft’s promise to arbitrate in the arbitration agreement illusory because PeopleSoft, in effect, could eliminate arbitration altogether.

On appeal, the Fourth Circuit found the District Court’s reasoning to be flawed because it looked beyond the “four corners” of the arbitration agreement. Had the district court confined its analysis to the arbitration agreement, the court likely would have found it to be supported by consideration. The court found that the agreement itself contained no illusory promise. “In sum, the District Court simply was not at liberty to go beyond the language of the arbitration agreement in determining whether the agreement contained an illusory promise.” The Fourth Circuit reversed the judgment of the District Court and remanded with instructions to grant PeopleSoft’s motion to compel arbitration.

Tuesday, June 21, 2005

Deceased mother's lesbian partner entitled to custody

In Clifford K. and Tina B. v. Paul S., etc., No. 31855 (June 17, 2005), the West Virginia Supreme Court of Appeals reversed a circuit court ruling that took a 5-year old boy from his deceased mother's lesbian partner. The boy's biological mother died in a car accident in 2002, and her parents sought custody of the child.

The W.Va. Supreme Court reversed the circuit court's ruling, holding that the lesbian partner was the child's "psychological parent," and that the child's best interests wold best be served by awarding permanent custody of the child to her. The biological father had no interest in taking custody of the child, and he supported the lesbian partner's bid for custody.

From an analytical standpoint, I don't see this as any different from giving custody to "mom's boyfriend" after mom dies. The fact that it involves a lesbian relationship adds a different spin, but under our laws, the blood relatives don't always win. I believe this case is significant, though, as the first case under West Virginia law that has given "psychological parent" status to a same-sex partner.

Justice Maynard dissented while Justice Benjamin dissented in part and concurred in part. The concurring and dissenting opinons have not yet been filed.

By the way, I really wish our court would stop publishing majority opinions without the dissenting and concurring opinions. Has that always been the practice with our court? Can we change it?

Thursday, June 16, 2005

Blankenship Files $300 Million Lawsuit

According to this report at WVNS, Massey Energy CEO Don Blankenship is "striking back at people and organizations he said he believes tried to hurt his reputation and harm the coal company[.]" He has filed a $300 million lawsuit in state court in Fairfax County, Virginia, naming as defendants the United Mine Workers of America, Cecil Roberts, president of UMWA, West Virginia Consumers for Justice, an independent political group that was active in the 2004 election season, Kenneth Perdue, chairman of West Virginia Consumers for Justice, and The Charleston Gazette, a newspaper being sued only by Blankenship and not Massey, according to the article.

Monday, June 13, 2005

Feliciano v. 7-Eleven, Inc. - still getting attention

A post here at the SW Virginia Law Blog led me to this post at the Volokh Conspiracy and this one at the Professor Bainbridge blog discussing Feliciano v. 7-Eleven, Inc. This is a case in which I appeared as counsel for the defendant, 7-Eleven, so I will warn you, my opinions on this case are not unbiased (are they ever?).

The West Virginia Supreme Court of Appeals held in Feliciano that "[w]hen an at will employee has been discharged from his/her employment based upon his/her exercise of self-defense in response to lethal imminent danger, such right of self-defense constitutes a substantial public policy exception to the at will employment doctrine and will sustain a cause of action for wrongful discharge."

Feliciano interfered with an armed robbery while he was working as a cashier at a 7-Eleven store. He grabbed the gun while it was pointed at another cashier, wrestled the woman robber to the ground, beat her up pretty good, and held her until the police came to arrest her. Because 7-Eleven had (and still has) a policy prohibiting interference with armed robberies, they investigated the incident and fired Feliciano. Feliciano sued, alleging 7-Eleven violated his common law right to self-defense by firing him.

The U.S. District Judge who was hearing the case certified the question to the West Virginia Supreme Court of Appeals of whether Feliciano had a cause of action. The State Supreme Court, of course, found that he did, and created yet another exception to West Virginia's employment at will doctrine. The case was later tried to a jury, which found in favor of 7-Eleven. The case was never appealed.

The Feliciano case is a bad decision for many reasons. Perhaps the biggest problem with the case is that it forces employers to apply a very difficult set of factors to determine if an employee was indeed exercising his right to self-defense. Depending on how broadly Feliciano is interpreted, one might even argue (as Justice Maynard did in his dissent) that zero tolerance fighting policies are no longer enforceable in this state. (What employee who gets into a fight at work will not claim he acted in self-defense?) Forcing courts to grapple with the intricate factual nuances inherent in self-defense cases in order to decide whether the right even exists in a given case imposes an great burden upon the employers and the courts. Private employers should maintain the right to prohibit and punish intentionally violent and risky behavior in their workplaces, even under the circumstances allegedly present in Feliciano.

Also, the Court's contention (see footnote 10) that other cases in the U.S. support the holding in Feliciano is highly questionable. I am not the only one who thinks so. See "Bad Facts, Bad Law: Feliciano v. 7-Eleven, Inc. and Self-Defense as a Substantial Public Policy," 106 W. Va. L. Rev. 781 (2004) for a review of the cases the court contends "support" its holding. West Virginia is the cheese standing alone in finding the right of self-defense to be a "substantial public policy" exception to the employment at will doctrine. I also agree with Professor Bainbridge's assessment that the public policy exception is steadily swallowing the "rule" of employment at will in places like West Virginia. It is especially exasperating for employers where the new law created by the courts is as muddled as the doctrine of self-defense. Employers need bright line rules.

I'm not sure how interest in this case was reignited, but I couldn't resist weighing in on the discussion. I just Shepardized the case and found that no court outside of West Virginia has cited it in a published opinion since it was decided three years ago. One can only hope that it will be limited to its facts. Feliciano was a case that should never have gone to a jury. But luckily, the jury appreciated that 7-Eleven's policy was designed to save lives, and people like Feliciano were the ones putting lives in jeopardy. The real public policy interests lie in keeping workplaces safe from violence, not in supporting some renegade employees' right to make himself into a hero.

Tuesday, June 07, 2005

Exploding toilet case has precedent in W. Va.

Just when you thought you have a unique case on your hands. As Tom Rodd points out in this comment, the exploding toilet case has precedent in West Virginia. See Tom's quote from Dowler v. Citizens' Gas & Oil Co., 71 W.Va. 417, 76 S.E. 845 (1912). The similarity is un"can"ny.

Friday, June 03, 2005

Man sues for $10M in West Virginia toilet explosion

Thanks to Chris for pointing out this article in today's USA Today online.

Apparently, John Jenkins was severely burned last July after he sat down in a portable toilet, struck a match to light a cigarette, and the flame ignited methane gas leaking from a pipe underneath the toilet unit. Jenkins' suit seeks $10 million in damages from Chisler Inc. and Eastern Associated Coal Corp. arising out of the incident.

Confederates score victory in court battle

This article in the Daily Mail notes that U.S. District Judge John T. Copenhaver, Jr. ruled Tuesday that a dress code at Hurricane High School that banned items bearing the "Rebel flag" is overly broad and violates students' First Amendment rights to free speech.

The court ruled that because the flag had not been used "as a tool for disruption, intimidation, or trampling upon the rights of others," at the school in the past, the flag ban was not appropriate. However, if the atmosphere were to change, such a ban could be permissible.

The lawsuit was filed by the American Civil Liberties Union of West Virginia.