Quick Clips

That's One Way Out of Jury Duty!, September 22, 2006

by Clifton R. Gray

In jury trials, attorneys for the most part want each member of the impaneled jury to be at his or her best, and able at the conclusion of trial to take all the evidence and arguments presented and come to a rational judgment. Questions can arise, however, when a juror is handicapped. What happens if the prospective juror's handicap prevents her from taking in the information presented as compared to an able-bodied person? Is it the court's duty to reasonably accommodate such a juror? Such issues were recently before the Third Circuit Court of Appeals in Fendrick v. PPL Services Corp., No. 05-1887 (3d Cir. filed July 25, 2006), which, interestingly enough, was itself a case dealing with alleged disability discrimination.

The underlying case dealt with Fendrick, an employee who claimed he was discriminated against in violation of the ADEA when his employer did not allow him to return to work after he was diagnosed with OCD, as the employer claimed his serious case of OCD could not be reasonably accommodated. When his symptoms lessened, his employer did allow him to return to his job, but Fendrick still brought suit for the employer's earlier action.

During the course of voir dire of potential jurors, the district court struck for cause a hearing- impaired juror. You can see why Fendrick, himself claiming disability discrimination, might want someone with a disability to be a juror. After trial, the jury returned a verdict for the employer.

On appeal to the Third Circuit, Fendrick claimed that the court's striking of this juror, "particularly in a disability discrimination case," was an abuse of discretion. The Third Circuit began its analysis by noting that "28 U.S.C. § 1865(b)(4) authorizes a district judge to exclude a juror who 'is incapable, by reason of mental or physical infirmity, to render satisfactory jury service.'" The record before the court showed that the district court judge made reasonable efforts to accommodate the hearing-impaired juror, but she simply had trouble hearing people when they were turned away from her. Moving her to the front row of the jury box still was of no help, and the potential juror refused to wear a hearing aid, saying she had always been "stubborn about it." Given those circumstances, the Third Circuit found that the district court did not abuse its discretion in excluding the hearing-impaired potential juror.

The Third Circuit's decision upholding the district court's decision to exclude the potential juror is the correct one in that it best seeks to have a fair trial. It is not unheard of (pardon the pun) to have a trial court verdict later overturned when it is found out that a juror, because of a hearing- impairment, was unable to hear testimony. On the other hand, if the court is able to reasonably accommodate a hearing-impaired juror, the court generally will not be found to have abused its discretion by impaneling such a juror. See, e.g., United States v. Dempsey, 830 F.2d 1084 (10th Cir. 1987) (no abuse of discretion where court allowed a deaf juror with aid of interpreter, and whose ability to speak and read lips mitigated effects of her hearing loss).

The Prince and the Independent Contractor, September 13, 2006

by Frank L. Kollman

The Fourth Circuit Court of Appeals has found that a Saudi Prince is responsible for overtime payments to armed guards supplied to him by a supposedly independent company. Schultz v. Capital Int'l Security, 11 WH Cases2d 1386 (4th Cir. 2006). The court found that the prince controlled too many of the duties performed by the guards, making him a joint employer with the security company.

This case illustrates the danger of designating individuals as independent contractors instead of employees. This court showed a willingness to look beyond the paper relationship between the company and the prince, and instead look at the actual relationship between the prince and the so-called independent contractors.

Morbid Obesity Not a Disability, September 13, 2006

by Frank L. Kollman

A federal appeals court has ruled against a 405-pound man claiming disability discrimination. The court stated that he failed to show that his morbid obesity was caused by a physiological condition. Consequently, he could not show that he had an impairment covered by the Americans with Disabilities Act. EEOC v. Watkins Motor Lines, No. 05-3218 (6th Cir., September 12, 2006).

Taxation Of Damages For Emotional Distress Found Unconstitutional, September 11, 2006

by Clifford B. Geiger

Maria Murphy sued her former employer, the New York Air National Guard, alleging she was blacklisted and given negative job references in retaliation for reporting certain environmental hazards at an air base. Murphy was eventually awarded a total of $70,000 for emotional distress and injury to her business reputation. Murphy initially paid taxes on the $70,000, but she later filed an amended return seeking a refund. She sued the IRS when it refused to issue a refund.

Historically, under Section 104(a)(2) of the Internal Revenue Code, damages received on account of a personal injury have been excluded from gross income and therefore have not been taxed. In 1996, Section 104(a)(2) was amended to provide that only damages for physical personal injuries are properly excluded from gross income, so damages for emotional distress became taxable. Reversing the lower court, a panel for the U.S. Court of Appeals for the D.C. Circuit found that the amendment to Section 104(a)(2) is unconstitutional under the 16th Amendment, which in 1913 authorized the federal income tax.

The Court of Appeals panel reviewed an Attorney General opinion and Treasury Department ruling from 1918 which it indicated “strongly suggest the term ‘incomes’ as used in the 16th Amendment does not extend to monies received solely in compensation for a personal injury and unrelated to lost wages or earnings.” The court reasoned compensatory damages for emotional distress and loss of reputation are not a gain but awarded to make a plaintiff whole. The panel concluded, “[u]nder this analysis, therefore, the compensation [Murphy] received in lieu of what she lost cannot be considered income and, hence, it would appear the 16th Amendment does not empower the Congress to tax her award.”

Employers will have to wait to see what impact, if any, the D.C. Circuit’s opinion will have on the litigation of employment cases. If the decision holds up and is followed in other jurisdictions, there should be an impact on the ability to settle employment claims. If the government does not get part of the settlement, it will require less money for a plaintiff to achieve the same end result. This translates into a savings for employers on the overall costs of settlement.

Murphy v. I.R.S. --- F.3d ----, 2006 WL 2411372 (C.A.D.C.2006).

The Infertile Turtle, September 1, 2006

by Pete S. Saucier

A Senior Human Resources Generalist at the Chicago Zoo was fired after several years of poor performance reviews. Upon termination, the former employee, obviously alert to all of her employment "rights," seized upon a cause for litigation – her disability.

The disability, it turns out was "ovulation dysfunction." That is, because at some point the former employee was unable to do like the bees and birds and get pregnant, she was disabled and discriminated against by her employer trying to force her to do satisfactory work. The court dismissed the case on summary judgment, but not before agreeing that "ovulation dysfunction" can be a covered disability.

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