GERA/Civil Rights/Sexual Harassment
TVA was retained by the widower and executor of the estate of a former Special Staff Assistant to the governor of Alaska. The woman had filed a gender and race discrimination, sexual harassment and retaliation complaint with the Equal Employment Opportunity Commission (EEOC) when she was terminated in 1994 after filing a sexual harassment complaint against another member of the governor’s staff. The woman left Alaska and moved to Nevada, where she worked until she was diagnosed with cancer. Because she had no insurance after being fired in 1994, the expensive treatment was not covered and she was forced to file bankruptcy. Less than two years later, she succumbed to the cancer, leaving a husband and two children.
Meanwhile, the EEOC let her claim languish from 1994 until 2003, when it contacted her widower and he attempted to litigate the case without the aid of an attorney. The State sought to dismiss the case on several grounds, claiming that the EEOC lacked jurisdiction to hear the case, now classified as a Government Employee’s Rights Act (GERA) claim, because of state sovereign immunity. After years of negotiations, litigation and procedural motions, the jurisdictional question was finally decided by the Court of Appeals for the Ninth Circuit, which issued an en banc decision in 2009, holding that the EEOC could proceed against the State. The State filed a petition for a writ of certiorari to the U.S. Supreme Court that was denied because the matter was not ripe.
Shortly after TVA accepted the case in 2010, the State again sought to dismiss it on similar grounds and filed multiple dispositive motions in that effort. TVA accepted the case on a modified pro bono basis under a private attorneys’ general statute and the State tried to overwhelm and outspend the firm into giving up and dismissing the case. From 2010 to 2012, TVA attorneys conducted depositions in Las Vegas, Seattle and Northern California and devoted over 1,500 hours to the case in preparation for trial reviewing thousands of pages of documents spanning almost twenty years. The trial took place in Anchorage in October 2012 and March 2013 and was presided over by the Chief Judge of the EPA after the EEOC recused itself. A decision is expected in 2014. The State of Alaska has already indicated that it will appeal any adverse decision to the Ninth Circuit and the Supreme Court.
Workers’ Comp Dispute
Mr. Vogele successfully represented a publicly traded hospital chain in an action to enforce the terms of a written settlement agreement with a former attorney. Mr. Vogele also represented the company before the Workers’ Compensation Appeals Board (WCAB) in a related action to determine whether the attorney was wrongfully terminated for filing a workers’ compensation claim. Again, the hospital group prevailed. Finally, Mr. Vogele authored the winning appellate briefs in two California Court of Appeal cases arising out of the civil and WCAB cases.
TVA represented an Orange County-based clothing manufacturer in litigation brought by a former executive for gender and age-based discrimination. The woman, who turned 40 shortly after she was hired, was terminated for poor performance and creating a hostile work environment in her department. Nonetheless, the women sued and claimed protection under the Age Discrimination in Employment Act (ADEA). TVA was able to get the case dismissed based on a recent Supreme Court case that held that in an ADEA case, a plaintiff cannot allege mixed-motives in the termination, i.e., age plus other factors. Mr. Vogele successfully argued that because the complaint alleged both age and gender as the basis for termination, it had to be dismissed and the Court agreed.