Law Office of Arkady Itkin 

The Ninth Curcuit extensively discusses the sexual harassment law as it applies to male victims in it recent decision, filed on September 3, 2010 - EEOC v. Prospect Airport Services, Inc. In that case the claimant - a Christian male was sexually propositioned over and over by a female co-worker over a period of many months. Despite the claimant's complaints to his supervisor and human resources department, they would mostly jokingly dismiss his complaints, nor believing that a male can actually suffer from a woman's advances. 

The lower (trial) has dismissed the case in large part due to the claimant's testimony that other men wouldn't have minded if they were in his position. However, the appellate court was not persuaded that this is a good reason to dismiss the case, stating and rightfully saw that just because some other men would have flattered by such aggressive attention from a woman doesn't mean that this specific plaintiff is not a victim of hostile work environment.

The other significant point that the Ninth Circuit emphasized in its decision to reverse the dismissal and remand the case for further proceeding is total lack of response from the employer. An employer is liable for an employee's sexual harassment of a co-worker if it knew, or should have known, about the harassment and failed to take prompt and effective remedial action. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). Harassment is to be remedied through actions targeted at the harasser, not at the victim.  In this case, the management was well aware of the harassment complaints by the victim, but they did absolutely nothing except dismiss his complaints with sexual jokes. This decision further reinforces the well established law that discrimination because of sex protects men as well as women. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998).

Having attended a few seminars largely geared toward attorneys who represent employers in discrimination and wrongful termination lawsuits, I keep hearing about the same strategy that so many of these lawyers love to use - finding "dirt" on Plaintiff on the social networking sites such as Facebook that can cast negative light on them, their personality and their allegations in the lawsuit. This can range from posting like "I will do anything to get back at my employer", to uploaded photos from exotic vacations that can hardly support emotional distress claim or financial hardship that are often important elements of a case. I personally know of one case, in which the aggrieved employee, who claimed major disability discrimination, posted photos of his hiking and rock-climbing trip about two months before trial. Imagine his and his lawyer's face when the defense attorney put up those photos on the overhead after getting the Plaintiff to testify on the record about the tremendous pain he has been in for the past 2 years. Needless to say that from that point on, the jury had a hard time believing anything that plaintiff was saying. 

You might be thinking: "But... I have privacy settings that would prevent anyone except my friends to see my photos." These privacy measures are not nearly as effective for several reasons. First, you might actually be a friend of a friend of defense counsel. If you have used Facebook, twitter and other networking sites long enough, you know that the world is actually that small. Secondly, the opposing counsel can try to "befriend" one of your friends in order to get access to your information. Many people confirm random friend requests just to be nice, so one of your friends might fall into that trap. Lastly, the courts approved subpoenas for social networking activity in the past, if it was relevant to the subject litigation. 

So, if you are involved in litigation, make sure you "clean up" your online social networking life before your attorney files a lawsuit and the other sides starts searching for information about you on the internet, because be assured - they will.

Recently, one of my clients was denied unemployment benefits that were due to her based on the second extension approved by the government. The reason that the claimant was denied benefits was the conflicting information she was receiving about her role in making sure that she continues to receive the benefits. The information pamphlet about the second extension stated that the claimants who were otherwise eligible for benefits did not need to do anything in order to continue receiving the payments. However, the Employment Development Department (EDD) clerk, who handled my client's second extension process, was under the impression that a claimant has to re-apply in order to qualify for the second extension. This mistake caused my client to be left without benefits for a period of approximately 5 months. 

At the appeal hearing, the administrative law judge quickly recognized the department's fault and promptly issued an order (see attached below) reversing the denial of unemployment benefits, and awarding the claimant retroactive payments for the above period if time.

One of my recent clients mentioned to me about the mistake she made hiring a family law lawyer for her divorce just because he made an impression on her of being fearless, very aggressive and confident in his success. It took many months and many thousands of dollars for the woman to realize that the lawyer is artfully "milking" her at an hourly rate of $375, by continuing to convince her not to accept a reasonable settlement and go to trial.

Eventually, due to a fall-out, she switched attorneys and was surprised as to how much more mellow the new attorney was. At first it was alarming to her, but as she continued to work with him, she realized how much more competent her new lawyer was. The settlement was reached shortly after to my client's satisfaction. She related to me that the response of her ex husband and the opposing attorney to her new lawyers was completely different and they got along much better right away because her new lawyer did not engage in pointless arguments or personal attacks against the other side like her prior attorney did. 

My client learned a very important lesson from her personal experience being represented by an attorney - having a bad relationship with the opposing side has no benefits to the case. At the end of the day, everyone is interested in some kind of resolution, which means a transfer of money from one set of hands to the other. That transfer is much more likely to happen if there is a good relationship between the parties, no matter how contentious the legal issues are, because any person is more likely to give and compromise with someone they respect rather than someone they can't stand, and as a result want to harm financially any way they can.

On Friday, June 11, 2010, the Eastern District Court granted the defendants' motion to dismiss my client's case. I had a feeling that it was going to happen but was willing to give it a shot, hoping that perhaps the judge will have a more liberal view of the claims asserted than he actually did. 

My client was a loss prevention agent, working for one of the large security companies at a department store in Sacramento. He was terminated shortly after complaining to the corporate management about his co-workers and his immediate supervisor's time clock fraud and reporting false apprehensions of shoplifters that didn't actually happen. The formal reason for terminating my client was his "failure to meet apprehension goals" which is inherently nonsensical, as a loss prevention agent has no control over how many people actually try to steal merchandise from the store. The court found that preventing internal fraud that only affects the private employer and not public interest at large is not sufficient to give rise to a public policy retaliation and wrongful termination claim. 

I was disappointed at the impunity that the employer will enjoy in this case, even though a number of witnesses informed me that my client's termination was orchestrated and there was a significant concern about him knowing about the misrepresentation.

Below is the court's order which includes the brief factual background of the case and the court's decision and analysis.

 

I was happy to find out that yet one more of my clients was awarded unemployment benefits after my rather unpleasant confrontation with the representative for the employer.  The employer, after telling my client that they did not need her services any longer and after hiring her replacing while forcing my client to train her replacement, actually stopped paying her while she was training the new employee. At the appeals hearing, the employer dared to argue that they never terminated the employee. Luckily, the administrative law judge did not buy it and found for the employee, awarding her unemployment benefits retroactive. You can read the full unemployment appeal analysis and holding below:

People tend to be very thorough when it comes to buying a pair of shoes  or buying car. They would try many pairs of shoes before deciding on the pair they are going to buy, and they are going to spend hours researching cars, talking to friends and test driving different vehicles before making the choice.

However, when looking for legal representation, many people commit the same two very common mistakes that prevent them from finding the best attorney for their case:

1. The first mistake is choosing and attorney randomly from yellow pages, an online directory or otherwise, knocking on the first door they see. This is one sure way to end up with an attorney who is either incompetent in the specific area of law which your case concerns, or who is too busy to give you and your case the work and the attention it needs. 

Most legal issues are not urgent. Unless you or your close one is in custody and facing a criminal prosecution, or eviction, or an imminent child custody battle hearing is about to take place, or unless the statute of limitations on your case is about to run, there should be no urgency in hiring an attorney the same day you started looking for one. Most legal issues take months or longer to resolve, so whether you sign up with an attorney today or next week, it is not going to make any difference to the outcome of your case. For example, suppose you believe you have been wrongfully terminated in California about 6 months ago. Unless the employer was government agencies, all the possible employments claims you might have (discrimination, retaliation, harassment, etc...) have at least one year statute of limitations. Signing up with an attorney who is not right for your case just because he was the first one to return your call or meet with you may seriously affect the outcome of your case.

Word of mouth is as ancient as it is the most reliable way to find a person to perform services for you. Legal field is not an exception. It is well worth your time to do a thorough research and understand your legal issues. Then, you should try your hardest to find one or more people who had a similar legal issue and who were happy with the attorney who represented them in their case. No matter how unique you think your situation is, you would be surprised to find out that quite a few other people faced the same legal problem. You might think that no one you know may have ever been involved in anything similar to your legal claim, but if you start asking people around, you would be surprised to find out that someone will most likely know someone else who had an issue like yours, and it is well worth getting in touch with them to educate yourself about the possible issues you might have with your case, the mistakes you should avoid making, and whether the attorney who helped them might be right for your case. 

2. Not making a good impression on the attorney once you meet him.  The best attorneys are also the pickiest. Since they have a reputation for being good, they get more potentially business than they can handle. They naturally want to choose the best and the highest value cases or other kind of legal work and they want to work with people who they enjoy representing. It is well established among lawyers than representing a client who seems like he/she will be trouble down the road is more trouble than its worth. The most successful attorneys have no patience for potential or existing clients who are dramatic, have a sense of entitlement, believe in conspiracy theory against them, or who will not listen to the attorney's advice, believing that they know it all because they spoke with a couple of friends or looked up a few cases or legal concepts on the internet. 
Normally, when it comes to a consumer - service provider relationship, the consumer is in the position of greater bargaining power, which has been briefly encapsulated in the "client is always right" motto. However, in legal (and medical) field, the provider is actually in the shoes of the consumer and has the power of choosing who he/she will work with.

What this means to you is that you should sell your case and yourself to the attorney who you would like to represent you. Being courteous and respectful, only telling the truth without exaggerating the facts of your case, having as much documentation to support your claims than you can, listening more than talking, and appearing like a calm and polite person without any sense of entitlement will make the attorney want  to represent you and help you, even if your case is not as big as that lawyer would expect to work on.

Yesterday, I received a call from a potential client who was understandably angry. She was terminated and apparently falsely accused of egregious misconduct that she never committed. It's possible that she had a legitimate workplace defamation claim against her employer. 

The woman sounded infuriated and eager to go to "war" against her employer as soon as possible. As soon as I started explaining to her what evidence she needs in order to have a legitimate defamation claim and what she was currently missing to have a case, she said: "I think you are wrong, I am going to continue looking for a lawyer" and hung up the phone.

That caller was of a known type - she is driven by her emotion, and by her desire to hear what she wants to hear. I did not even have a chance to tell her that I am a lawyer. And, while I sincerely sympathize with her situation and the unfortunate events prior to her apparently wrongful termination, I was there to advise her on her legal rights, not what's fair and not on what's right.  I just hope that she doesn't waste too much time calling other lawyers around town, or paying a large amount of money who will take advantage of her emotional state and lead her to believe that she has a case without investigation the facts of her claim carefully, as it's so critical to a successful prosecution of any wrongful termination claim, and especially when it comes to slander and libel at workplace.