Employment Discrimination Litigation

Experience

Received Summary Judgment in Case Involving Allegations of Age Discrimination

We represented our client, Humana, in a matter involving a former employee, who alleged our client violated the Age Discrimination in Employment Act and Ohio’s nondiscrimination statute under theories of discrimination, retaliation, and disparate impact. We won summary judgment on all of the plaintiff’s claims. After thoroughly reviewing the company’s reduction-in-force procedures which resulted in the plaintiff’s termination, Judge Beckwith agreed the plaintiff could not “establish a prima facie case of age discrimination relative to his termination in the reduction-in-force because he has not provided additional direct, circumstantial, or statistical evidence tending to indicate that he was discharged because of his age.” (Gilster v. Humana Marketpoint, Inc., S.D. Ohio, Case No. 1:14 CV 961, 1/19/16).

Williams v. General Electric Company (S.D. Ohio)

We represented the General Electric Company in a lawsuit seeking $10M for age and disability discrimination. We prevailed prior to trial on the disability claim and prevailed at the jury trial on the age discrimination claim. The verdict was upheld by the Sixth Circuit Court of Appeals.

Rose v. Beverly Health & Rehab. Services (C.D. Calif.)

Plaintiff alleged a disability discrimination claim. The case was removed based on the collective bargaining agreement and then summary judgment was granted based on judicial estoppel for failure of Plaintiff to disclose the claim as an asset in bankruptcy. Currently pending in the Ninth Circuit Court of Appeals.

Sarvak v. Urban Retail Properties, LLC

Won summary judgment in the United States District Court for the District of Minnesota for whistleblower claims, wage and hour claims.

Allegations of age discrimination against an international media company

In July 2014, we won a jury trial on behalf of an international media company against an allegation of age discrimination and intentional infliction of emotional distress. Our client had terminated the plaintiff, a 61-year old executive who had been with the company nearly 25 years, during a reduction-in-force. The plaintiff alleged that the company had targeted him for termination because of his age and had “covered up” the discriminatory reasons for his termination. The plaintiff also asserted that a disproportionate number of older workers had been let go in the years before the plaintiff’s termination, pointing to human resources documents and e-mails that discussed employee ages in the context of reductions-in-force. Lastly, the plaintiff alleged that the company failed to offer him a job in the reorganized company. The plaintiff sought up to $1.4 million in damages.

Prior to trial, we successfully moved the court to dismiss plaintiff’s intentional infliction of emotional distress claim, arguing that pursuant to Kentucky law the claim was precluded by his age discrimination claim. We also successfully limited the evidence plaintiff sought to use at trial, including evidence of the company’s overall financial state as described in public filings.

During the eight-day trial in Jefferson Circuit Court, we established the company’s non-discriminatory reason for plaintiff’s termination: his highly paid job position was eliminated for business reasons due to a corporate restructuring. The jury of seven men and five women determined that age was not a “substantial motivating factor” in terminating the executive or in refusing to offer him another job position, finding for the defendant on both counts of age discrimination. The plaintiff did not appeal the jury’s verdict and the case is now final.

Allegations of Age Discrimination and Hostile Work Environment

We defended a convenience store chain against allegations of age discrimination, hostile work environment and discriminatory discharge from a former employee. The plaintiff, an 11-year employee who was 57 years old, was terminated after a third violation of store policy prohibiting employees from purchasing lottery tickets while on the clock. The plaintiff claimed that the tickets were purchased for her sister, a customer who was undergoing chemotherapy and was unable to visit the store. The plaintiff also asserted that she and other employees had been subjected to age-hostile comments from management-level officials and, upon termination, filed suit alleging that her former employer had violated the Kentucky Civil Rights Act, KRS Ch. 344, by subjecting her to an age-hostile work environment and to an age-discriminatory discharge. She also asserted claims for failure to pay accrued vacation under Kentucky law, KRS Ch. 337, intentional infliction of emotional distress and public policy wrongful discharge. Ultimately the plaintiff’s wage and hour, emotional distress and public policy wrongful discharge claims were dismissed, and the case went to trial on the plaintiff’s civil rights claims.

Prior to trial, we utilized targeted discovery and motions in limine to limit the plaintiff’s damages, including a motion to exclude evidence of the plaintiff’s lost wages and a motion to strike her claim for back pay. The plaintiff admitted that she had only applied for one job in the three years since her termination, and that she had stopped looking for work after applying for Social Security disability benefits. The Court ruled that the plaintiff had not used reasonable efforts to find alternate employment to limit her damages, and that the receipt of Social Security benefits barred her claim for lost wages.

During a four-day jury trial in Jefferson Circuit Court, we discredited a former manager who testified to having also been subject to age discrimination. We also discredited the plaintiff’s story of purchasing the lottery ticket for her sister, after the sister testified that she was not undergoing chemotherapy treatments at the time the ticket was purchased, and that she had, in fact, stopped playing the lottery. The 12-member jury found in favor of the defendant of the plaintiff’s claims of an age-hostile work environment and an age-discriminatory discharge. The plaintiff’s deadline to appeal passed, and the defense verdict became final.

Ellis v. West Virginia American Water Company, Inc. (Kanawha County, WV 05-C-749) (2010)

Successful defense in suit by HR manager alleging sex discrimination by company where HR manager was discharged for inappropriate e-mail communications. Obtained summary judgment on all issues on case of trial.

EEOC v. Brooks Run Mining, LLC, (S.D.W.V. 5:08-CV-71) (2009)

Defended client in sex discrimination case brought by the EEOC on behalf of female security guards employed by a contractor and assigned to work at our client’s facilities. Case was resolved favorably for the client after we filed a dispositive motion showing significant deficiencies in the EEOC’s proof against our client.

Allegations of Employment Discrimination Relating To FMLA

We represented an employer that operates a hotel in suburban Cincinnati, Ohio in an employment discrimination lawsuit. The Plaintiff asserted alleged violations of the FMLA. The case went to trial in the Southern District of Ohio. The Plaintiff sought in excess of $250,000 from the jury, plus attorney fees. Through effective presentation of the evidence and cross-examination of witnesses, we were able to limit the jury’s verdict to only $10,000.

Anonymous Plaintiff v. Transportation Management Services Company

We represented our client, a provider of transportation management services, in multiple discrimination and retaliation lawsuits that have been filed in Atlanta Georgia, Los Angeles California, and Jacksonville Florida.  We have filed motions to dismiss or motions for summary judgment which were granted, dismissing all causes of action in our client's favor.

Anonymous v. Spartan Mining Company, et al.

The plaintiffs, all miners who worked at a particular mine site for a coal company that went into bankruptcy, brought a class action against the mining company that bought the mining operations in the bankruptcy proceeding alleging that they were not hired by the new mining company on the basis of age. The named plaintiffs asserted both disparate impact and disparate treatment theories of age discrimination. After extensive discovery, the trial court certified the class, whereupon a settlement was reached with the class that resolved all claims of discrimination against the coal company.

Archie Allen v. Superior Beverages and Wine Distributors

This case, brought by five plaintiffs, was pending in the Court of Common Pleas for Cuyahoga County. The Court granted summary judgment in favor of our client Wine Distributors on plaintiffs’ age and race discrimination claims and entered against plaintiffs for breach of severance agreements.

Baron v. Watson Pharms., Inc.

Breach of Employment Contract, Wrongful Discharge in Violation of Public Policy, and Age and Disability Discrimination. The total amount at issue was in excess of $100,000. The district court dismissed Plaintiff Complaint on summary judgment finding that plaintiff failed to establish he had an employment contract and failed to establish that he reasonably and detrimentally relied on any promises by Watson that his employment would be for a specific duration. The court also found that Plaintiff was not disabled even though he had a heart attack.

Basinger, et al. v. Pilarczyk. et al.

Dinsmore & Shohl represented the Archdiocese of Cincinnati in a breach of contract and age discrimination suit filed by two teachers who were dismissed from one of its parochial elementary schools.  The reason for termination given by the school was that the teachers' marriage was canonically invalid and that their co-habitation was contrary to the school's religious mission.  The teachers claimed this reason was a mere pretext for age discrimination, since they were replaced by younger teachers.  Following two separate appeals, the judgment of the trial court dismissing the suit was affirmed.

Booker v. Garden Manor

Complaint filed in Federal District Court alleging claims of race discrimination, retaliation, and spoilation against our client Garden Manor Nursing Home. We were granted summary judgment dismissing all claims.

Carla Cornicelli v. Large National Insurance Company

Plaintiff brought an employment intentional tort claim after she was jailed on contempt charges by a judge for failing to attend a settlement conference as an insurance adjuster.

Cornell v. General Electric Plastics, 853 F. Supp. 221 (S.D. W. Va. 1994)

Lead counsel defending GE against claims by a former female employee, who, after being fired following 18 years of employment, alleged sex discrimination claims under 42 U.S.C.S. § 1981, Title VII, and the West Virginia Human Rights Act. The Court granted summary judgment to GE on all claims, finding that § 1981 applied to racial but not sexual discrimination, rejecting the Title VII claim because the plaintiff had not first unsuccessfully pursued her state administrative remedies, and dismissing her claim under the Human Rights Act because she could not submit any evidence contradicting GE’s evidence suggesting poor work performance as the reason for her discharge.

Darrell Sams and Diana Cheek v. Wal-Mart

Wal-Mart terminated long-time department managers Darrell Sams, age 48, and Diana Cheek, age 41, from its London, Kentucky store for taking frequent and excessive breaks in violation of Wal-Mart’s Break and Meal Period policy. Both Sams and Cheek were aware that Wal-Mart’s policy allowed only two paid 15-minute breaks per shift and that additional and extended breaks violated the policy. Sams and Cheek claimed that Wal-Mart and their supervisors defamed them by stating both on their Exit Interviews and during their unemployment compensation hearings that they were terminated for excessive breaks resulting in “theft of company time.” Their Complaint also asserted claims of age discrimination and intentional infliction of emotional distress.

The trial court dismissed Plaintiffs' claims on summary judgment. Sams and Cheek appealed only the dismissal of their defamation claims. Agreeing with the trial court, the Kentucky Court of Appeals held that the alleged statements were true and, therefore, not defamatory. Moreover, the Court held that the statements were privileged as their intra-company communications and part of quasi-judicial proceedings. Accordingly, the Kentucky Court of Appeals affirmed the trial court’s summary judgment and the case was dismissed in its entirety.

Defended an employer who faced claims of gender discrimination and retaliation from a former employee

We represented CHA Health in a matter when an employee filed suit after resigning her employment and was not rehired for her position after reapplying approximately one month later. After failing to be re-hired, the employee filed suit alleging that our client violated Kentucky’s Civil Rights Act and Equal Pay Act. She later amended her claims to include an allegation that she was not re-hired because of her sexual orientation, which she framed under a gender discrimination/sexual stereotyping theory, saying that she did not conform to gender and sexual stereotypes. The Kentucky Court of Appeals upheld summary judgment in favor of our client, and the Kentucky Supreme Court denied the plaintiff’s filing for discretionary review. Crockett v. CHA HMO, Inc., 2008 Ky. App. LEXIS 103 (Ky. App. 2008).

Defense Verdict in Race Hostile Work Environment Claim

The plaintiff was an 11-year employee of a manufacturing company who was terminated for violation of the Company’s attendance policy after he failed to submit required documentation. The plaintiff filed suit under Kentucky’s Civil Rights Act, KRS Chapter 344, alleging that he was terminated due to his race and for complaining about race discrimination, as well as forced to work in unsafe working conditions and subjected to disparate disciplinary action. He also alleged a hostile work environment claim, relying on what he claimed to be widespread racial graffiti throughout the plant and restrooms, as well as the presence of “nooses” on two different occasions.

Following discovery, the company filed a motion for summary judgment on plaintiff’s claims in their entirety. The Court dismissed the plaintiff’s claim that he had been terminated due to his race or in retaliation for complaining about race discrimination inasmuch as he was unable to rebut the employer's legitimate business reason for his termination. In addition, the Court dismissed the plaintiff’s claims that he and other minority employees had been forced to work in unsafe working conditions as barred due to his failure to pursue his administrative remedy and because he lacked evidence that minority employees were singled out.

In February 2012, the case was tried in Jefferson Circuit Court on the plaintiff’s remaining claim that he was subjected to a racially hostile work environment. The Company presented proof that nearly 20% of its workforce is African-American and that almost half of those employees had worked for the Company for over 15 years. The manufacturer also put on evidence of its zero tolerance for harassment of any kind. Following a two-day trial which included testimony of seven witnesses, the 12-person jury found unanimously in favor of the company on the plaintiff’s claim that he had been subjected to a hostile work environment due to the presence of rope nooses and racial graffiti. After the trial court denied a motion for a new trial, plaintiff appealed the jury verdict to the Kentucky Court of Appeals, but voluntarily dismissed his appeal before filing his brief, concluding this matter.

Donald Perkins v. Chemed Corporation, Franklin County Court of Common Pleas

Represented client in a case against executives violating a convenant not to compete. Successfully obtained restraining order and royalty payments from competing business.

Employment Litigation, Counsel for a Nationally-Renowned Hospital

The unique settings of hospitals and medical care centers present a number of employment challenges, from industry-specific statutes and regulations to general employment matters, such as discrimination. One of the most renowned hospital systems in the country turns to Dinsmore to advise it through their employment matters, ensuring that their business runs efficiently and continues to provide quality health care. We counsel the client through a wide variety of employment matters, including defense of claims of discrimination, harassment and wrongful termination. We also routinely advise the client on statutory causes of action, specifically those related to whistleblower protection under the Kentucky Nurse Practice Act, as well as handling administrative matters with the EEOC and the Kentucky Commission on Human Rights. We have also worked with the client during Family and Medical Leave Act (FMLA) litigation, which has included working with third-party contractors to find resolutions. As a medical provider for the public, our client is obligated to provide treatment without regard to disability or national or ethnic origin, giving rise to the need to provide public accommodation such as American sign language (ASL) and language interpreters Given that our client’s facility is open 24 hours a day and work shifts differ from those at a “typical” business, we also have advised the client on a number of wage/hour issues, which has included drafting policies related to overtime compensation, employee breaks and clock-in procedures. Ultimately, we work with the client proactively to provide advice and counseling on employment issues, helping to avoid problems before they arise. But, we also stand ready to defend lawsuits, complaints, and administrative proceedings when necessary.

Fisher v. AT&T Mobility, LLC, 2008 U.S. Dist. LEXIS 91291 (S.D. W. Va. 2008)

Lead counsel for AT&T in litigation alleging that the plaintiff had been subjected to a hostile work environment based on her sex, and was constructively discharged when she was forced to resign from her employment in violation of the West Virginia Human Rights Act. AT&T sought summary judgment on grounds that the plaintiff had failed to show that the conduct alleged to create a hostile environment was gender-based, and further that she has failed to establish that her working conditions were so intolerable that a reasonable person would feel compelled to quit. Summary judgment was granted to AT&T.

Graessle v. Nationwide Credit, Inc., et al, S.D. Ohio

Plaintiff brought an age and religious discrimination suit and breach of contract suit against Nationwide Credit Inc., following a reduction in force. Plaintiff brought a second suit against client for fraudulent inducement in state court to circumvent failure to amend complaint in original federal action. The total amount at issue was $300,000. The first suit was dismissed on summary judgment in favor of NCI and settled on appeal to the Sixth Circuit. The second suit was removed from state court to federal court and the case was dismissed under the first to file rule. The second lawsuit was dismissed without the client having to expend significant resources in discovery.

Guyan Valley Hospital v. West Va. Human Rights Comm'n, 181 W. Va. 251; 382 S.E.2d 88 (1989)

Representation of Guyan Valley Hospital in the first known “disparate impact” case filed in West Virginia. The plaintiff filed a race discrimination claim with the West Virginia Human Rights Commission after Guyan failed to offer her the job for which she applied. The Commission ruled at hearing that Guyan violated the plaintiff’s rights under the Human Rights Act. The circuit court reversed that decision, and the plaintiff appealed to the Supreme Court. The court held that the circuit court properly rejected the commission's finding of disparate treatment race discrimination because the job applicant was denied employment based on unfavorable references. Noting that a cause of action also arose under the Act for disparate impact race discrimination, the court further found that the plaintiff failed to establish that Guyan’s practice of relying upon personal references caused statistical underrepresentation of African-Americans in the job category, and affirmed the judgment.

Henderson v. Columbia Natural Resources, 45 F. Supp. 2d 532 (S.D. W.Va. 1999), aff’d 2000 U.S. App. LEXIS 6918 (4th Cir. 2000)

Lead counsel for CNR in a case in which the plaintiff brought an employment discrimination suit alleging age and race discrimination in violation of Title VII of the Civil Rights Act and the West Virginia Human Rights Act. The court granted CNR summary judgment on a number of grounds and dismissed the suit, concluding that the plaintiff's federal claims were untimely because she did not file her complaint within 90 days of receiving her notice of right to sue, as required under Title VII. The court exercised its supplemental jurisdiction to address the plaintiff's state law claims, and held that the plaintiff failed to establish a prima facie case under Human Rights Act because there was no evidence to support a reasonable inference of age or race discrimination.

Holcomb v. Spartan Mining Company

The plaintiff was a miner who worked at a particular mine site for a coal company that went into bankruptcy. When she was not hired by the mining company that bought the mining operations out of the bankruptcy proceeding, she brought suit alleging that she was not hired by the new mining company on the basis of her age and gender. The plaintiff asserted both disparate impact and disparate treatment theories of age and gender discrimination. After extensive discovery, the claim settled shortly before trial.

Huber v. S&S Healthcare, et al

Obtained favorable settlement in the Southern district of Ohio on plaintiff's claims for ERISA violations, breach of contract, promissory estoppel, sex discrimination, good faith and fair dealing, and unjust enrichment.

Joan Fain v. Host Communications

The plaintiff claimed she received negative performance reviews and was demoted because of her gender (as management at this national sports marketing company were male former athlestes) and as a result of a disability. She also claimed she was the subject of retaliation when she complained about this discrimination, including threats and physical assault from a supervisor. This case was settled on favorable terms to the client.

John Kelly v. Westbrook Country Club, et al., Richland County Court of Common Pleas

Successfully defended Country Club where Plaintiff alleged wrongful termination, violation of contract, wrongful discharge, conversion and intentional infliction of emotional distress.