IN THIS ISSUE:
Welcome to our End-of-Spring edition of our e-newsletter, RESOURCES. We are excited to produce this exciting forum for the communication of issues pertinent and relevant to HR Professionals.
We hope you enjoy the newsletter. It can only get better with your input and comments. If you have any articles for inclusion, comments or requests, please email them to Barry Lippold with the subject: "Resources Article" to: email@example.com.
Patrick Hicks, Founding Shareholder, and Shondella L. McClellan, Associate of Littler Mendelson review current law and discuss how the Supreme Court recently allowed "Me too" evidence in a discrimination case...
The U.S. Supreme Court recently issued its unanimous opinion in Sprint/United Management Co. v. Mendelsohn, No. 06-1221 (Feb. 26, 2008) concerning whether a plaintiff alleging discrimination can rely on alleged evidence of discrimination from employees not supervised by plaintiff's supervisor or manager. The Supreme Court unanimously held that such "me too" evidence could be admissible depending upon the circumstances.
Trial Court Excludes "Me Too" Evidence, and Plaintiff Loses at Trial
In 1989 Sprint/United Management (Sprint) hired the plaintiff, Ellen Mendelsohn. Sprint terminated Mendelsohn's employment in 2002 as part of an ongoing company-wide reduction in force (RIF) that affected almost 15,000 employees. Thereafter, Mendelsohn sued Sprint alleging her termination was discriminatory in violation of the federal Age Discrimination in Employment Act of 1967 (ADEA).
To support her claim, Mendelsohn sought to introduce trial testimony of five other former Sprint employees who claimed that their managers had discriminated against them on the basis of age. Some of these witnesses had allegedly heard derogatory age-based comments from managers; another claimed that the company's internship program was a mechanism for age discrimination; another claimed that he was given an unwarranted negative evaluation and "banned" from working at Sprint because of his age; another claimed he had witnessed age-based harassment; and another claimed that Sprint required him to get permission before hiring anyone over age 40. None of these five former employees worked in the same department as Mendelsohn, and none of them worked under the supervisors or managers within Mendelsohn's chain of command.
Sprint argued to the trial court that the coworkers' proposed testimony was irrelevant to the central issue in the case: Whether Mendelsohn's supervisor terminated her employment on the basis of age. Sprint asserted that the testimony was irrelevant because the coworkers were not "similarly situated" as they had different supervisors. Sprint also argued that the probative value of the coworker's evidence would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury and undue delay.
The trial court agreed with Sprint. In a brief pre-trial Order, the trial court precluded Mendelsohn from seeking to admit evidence of "discrimination against employees not similarly situated to plaintiff." The lower court defined "similarly situated" employees as those having the same supervisor as Mendelsohn whose alleged evidence of discrimination had "temporal proximity" to the alleged discrimination Mendelsohn suffered. On the basis of this ruling, the jury was not permitted to hear the testimony of the five employees. The jury subsequently decided in Sprint's favor finding that Mendelsohn was not the victim of age discrimination.
Tenth Circuit Grants Mendelsohn Another Bite at the Apple
On appeal, the Tenth Circuit Court of Appeals reversed the trial court's ruling excluding the five employees' evidence. The Tenth Circuit held that the trial court abused its discretion by implementing a per se rule precluding evidence of discrimination from employees who were not supervised by plaintiff's supervisor. In reversing the lower court the Tenth Circuit suggested that while a "similarly situated" exclusion was appropriate in a discriminatory discipline case, it was not per se grounds for exclusion of evidence if there was a company-wide policy of discrimination. The Tenth Circuit then reviewed and determined that Mendelsohn's proposed "me too" evidence was relevant, so it reversed the trial court and remanded the case for a new trial with instructions to admit the challenged testimony.
The Supreme Court Rules: The District Court Should Make the Decision of Whether Mendelsohn's "Me Too" Evidence Is Admissible
Rather than proceeding with a new trial, Sprint appealed to the U.S. Supreme Court to review the Tenth Circuit's decision. Upon review, the Court found the Tenth Circuit in error because it should have remanded the case to the trial court for a further explanation of its findings and, absent an abuse of discretion, deferred to the trial court's judgment respecting the evidentiary issues.
The Supreme Court stated that "[w]e conclude that such [me too] evidence is neither per se admissible nor per se inadmissible.” Because the trial court was not entirely clear whether it was applying a per se rule, the Supreme Court remanded the case back to the trial court for a further explanation of its decision. The Court elaborated that the "question [of] whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case."
What Does the Supreme Court's Decision Mean for Employers?
The Court has essentially put employers on notice that the fact that a coworker is not "similarly situated" will not necessarily preclude a court from admitting alleged "me too" evidence of discrimination.
The Court's decision (which will likely apply to other discrimination cases, not just age-related claims), essentially means that trial courts may permit plaintiffs to introduce additional evidence at trial – some of which may be of questionable relevance. This could make pre-trial discovery longer (and more expensive) and will likely make trials longer (and more expensive). Such evidence may be confusing to juries and prejudicial to employers.
The admission of "me too" evidence at trial from employees who are not similarly situated could, in some cases, help tip a weak case in the plaintiff's favor. Under the Supreme Court's reasoning, it is arguable that any one among the 15,000 employees subject to Sprint's RIF could have testified to aid plaintiff's case. After the Court's Mendelsohn opinion employers must be even more vigilant in preventing discrimination and harassment in the workplace to avoid potential "me too" evidence.
Patrick H. Hicks is Founding Shareholder of Littler Mendelson’s Las Vegas and Reno offices. He can be reached at firstname.lastname@example.org. Shondella L. McClellan is an Associate in Littler Mendelson’s Las Vegas office. She can be reached at SMcClellan@littler.com.
[Ed. Note: Ruth Urban of The Urban Group LLC, an SNHRA member, in conjunction with the Management Assistance Partnership – MAP and Consensus by Design LLC is providing a dynamic and interactive 2-day leadership training June 11 & 12 in Las Vegas. The workshop, Training to Lead – Transforming Teams into Teamwork teaches essential core skills that current and emerging leaders need to successfully work with teams. Enrollment is limited. For more information go to www.trainingtolead.com or www.mapnv.com]
Today’s business world requires leaders to possess a very different skills-set. Leadership that was once top-down, where leaders were expected to have all the “answers” is now considered old school. Now, in the team environment, solutions often come from the bottom-up. This requires leaders to use the wisdom of the team to successfully lead an organization and skillfully address the numerous challenges.
Some leaders don’t possess the core skills to successfully work with a team to maximize all the members’ contributions, keep morale high, and have a more sustainable outcome. This is especially important with the Gen X’s and Gen Y’s now in and entering the workforce, and the need to develop future leaders for succession planning. Often leaders worry about not having the skills to address some of the following challenges that occur in team meetings:
• Poor participation
• Disruptive behavior
• Decisions aren’t made
• Goals aren’t accomplished
• People feel their time was wasted
• Lack of follow though by the participants
• There are teams but no teamwork
Facilitation provides the core skills that leaders need. Facilitation training stresses the importance of neutrality and teaches how to develop processes to elicit responses that empower team members. The training also teaches how to ask questions that drill down to the root cause of problems so they can be appropriately addressed. These are just a few and there are many more skills in the facilitator’s toolkit.
When the leader possesses good facilitation skills and uses that approach in meetings, conversations and any interaction, the facilitative leadership style becomes infectious. It serves as a model to colleagues and helps to reduce conflict in organizations, elevates morale, and helps develop problem solving at every level.
For more information about facilitation and leadership please read Facilitating to Lead! an excellent book by Ingrid Bens who is also the author of Facilitation with Ease! The International Association of Facilitators www.iaf-world.org is another source for additional information.
Ruth Urban, MS is a Certified Professional Facilitator. She is the principal in The Urban Group LLC and provides a variety of organizational development and facilitation services to for-profit and non-profit organizations including team building, strategic planning, and board and staff retreats. For more information visit www.ruthurbangroup.com or call Ruth at 702 458-8529.
by Mary Beth Hartleb, J.D., SPHR-CA, President of PRISM Human Resource Consulting Services, LLC.
[Ed. Note: Mary Beth recently returned from a trip to South Africa with a few delegates from the City of Henderson. One of the purposes of her trip was to learn more about the "go green" movement that has taken over our country recently. In a recent letter to the Board of Directors, Mary Beth shared some simple things we can do to make the world a greener and better place to live...We've taken excerpts from her letter here:]
...Through a variety of seminars and discussions, I learned that I know absolutely nothing about how to really help the environment and that some have jumped on the proverbial "green wagon" for mostly commercial reasons. For example, did you know that the best vehicle from a conservation standpoint is not the Toyota Prius but a Jeep? Neither did I. And how about those crazy looking light bulbs we are all buying? Did you know they contain a ton of mercury and if they break in your house...well, you have a problem. The warning is in very tiny print inside the box...not something many of us take the time to look at or read. Good news, a new improved light bulb is on its way.
I also learned that the "go green" movement is overwhelming but that small changes really do make an impact. To do our part and help other companies and our clients, PRISM has joined as a supporter of The Earth Organization and is working to help educate businesses on how to "go green" with small changes that cost nothing.
The first program we are supporting in conjunction with the Henderson Chamber of Commerce is a toner cartridge recycling program that has a big impact. America's Schools Program (ASP), founded and headed by Olympian pole vaulter Don Baird, has just become co-venture partners with The Earth Organization on a national program to help preserve the environment and provide a new revenue source for K-12 school programs such as the arts, music, drama, computer labs, libraries, and extra-curricular activities.
The America's Schools National Printer/Toner Cartridge and Cell Phone Recycling Program has been adopted by State School Boards across the country and is being championed by hundreds of businesses including Wells Fargo Bank, Sierra Pacific Power Company, Nevada State Bank, over 70 Chambers of Commerce, over 17 State Restaurant Associations and other professional organizations in communities nationwide. Funds generated by this partnership will not only bring revenue to participating schools, but also to The Earth Organization for its other environmental programs.
Here were some facts that shocked me into action:
• Over 300 million inkjet cartridges and over 55 million cell phones are
thrown away each year.
• Each laser toner cartridge recycled saves 3 quarts of oil required to produce a new cartridge.
• Over 400,000,000 printer cartridges are sold in the U.S. every year and less than 20% of these are recycled.
• Every cartridge that is discarded in landfills takes over 1000 years to decompose.
• Every year inkjet and laser cartridges account for over 200 million pounds of solid waste to our nation's landfills.
The program is an easy way for businesses, organizations, and individuals to preserve the environment and help fund K-12 education throughout the country. To participate, download and print this form and sign up. An empty box will be sent to you to get started. Place it in a visible spot and encourage customers, business associates, and friends to toss in their used printer cartridges. When it's full, just call FedEx and they will pick it up from you at no charge and ship it to the recycling center. A new empty box will then be sent to you. Revenue generated will be directly traced back to The Earth Organization via a UPC code located on every box. A percentage of every dollar will go to:
1) Schools in your zip code for after school programs such as music, art, and sports;
2) The Earth Organization to help fund our environmental programs;
3) The Americas Schools Program for the administration of this campaign.
All you need to do to get started is complete the downloadable form and return it to us. Pass it on to others that may be interested. That's it! Easy!
Mary Beth Hartleb, J.D., SPHR-CA, President of PRISM Human Resource Consulting Services, LLC. • 701 N. Green Valley Parkway, Ste. 200, Henderson, NV 89074, P. 702.990.3344 F. 702.446.8021
Additional Locations: California: 619.817.8168, Texas: 713.568.5770 Tollfree: 1.877.446.012
SHRM brings e-Learning to a new platform! SHRM e-Learning is an online educational environment that delivers just-in-time training to HR professionals through a series of HR-related mini-courses. Browse the course catalog to create a learning journey that is unique to you. SHRM e-Learning courses are facilitated by leading industry experts and presentations range from sixty to ninety minutes in length. These courses can be taken right at your desk and are pre-approved for HRCI recertification credits!
For those of you looking to earn credit for your PHR, SPHR, or GPHR recertification, all SHRM e-Learning courses are HRCI-approved for recertification credit and will earn 1.25 recertification credit hours to those successfully passing a quiz on the course content. HRCI’s recertification requirements are 60 recertification hours over a three-year period. For more specific HRCI recertification criteria, visit http://www.hrci.org/recertification.
Cost-effective On-demand Low-cost Training
SHRM e-Learning's cost-effective training will aid in your own professional development by bringing you the most current HR topics right to your computer desktop. You can learn at your own pace and on your own schedule without the need to travel. You can also sign up your employees for these programs! Visit http://www.shrm.org/elearning/about.htm to learn more about SHRM Online training.
SHRM e-Learning courses are $34.95 per course for SHRM members and $39.95 for non-members, but SHRM members will also receive additional Volume Discount Pricing!
Let SHRM e-Learning enhance your company’s training offerings through the SHRM e-Learning Corporate Discount plan. SHRM will manage the database and SHRM e-Learning courseware, while allowing the flexibility for the company to enroll, track and monitor the training of its own employees. An exclusive administrative website will be developed for each company or organization participating in the SHRM e-Learning Corporate Discounts program. Statistical data and status reports will chart the progress of participants enrolled in the plan.
For more information about e-Learning go to http://www.shrm.org/elearning
It's that time of year! Nominations and Applications for our Annual Best Places to Work Awards will be available online beginning May 19, 2008. Click here to visit our Best Places to Work website.
The Awards Luncheon will be held on October 10, 2008 at the Gold Coast Hotel and Casino. Nominate your company today for this prestigious award!
Karen Achatz - Starbucks Coffee Company
Cynthia Adams, CEBS, MSHRM - Integrated Benefit Services
Dulcinea Almazan - Lovitt & Touche
Debbie Balan - IGT
Kelly Boma - Novum Pharmaceutical Research Services
Linda Branch - CSM Consultants
Andrea Bricca - Major, Lindsey & Africa
Christine Bundren - Las Vegas Clark County Library District
Jenaya Butler - Sierra Pacific Resources
Chris Campbell, PHR - Station Casinos/ Santa Fe Station
Gracie Carlos-Hunt - Jacobs Carter Burgess
Connie Coleman - Mountaintop Faith Ministries
Brian Cullen - SumTotal Systems Inc.
Wayne Davis - Nevada Power Company
Graciela Delgado - PAC Worldwide
Alicia Fellows - All Clean Technology Inc.
Laura Fischer - Mountain America Credit Union
Lisa Foley - TelePacific Communications
Jason Gardner - Flipchart This
David Giatti - Brown and Brown Insurance
Susan K. Girouard - Canyon Ranch SpaClub
Ron Gottschalk - Canyon Ranch SpaClub
Jeanne M. Grace - Keller Graduate School of Management
Rolane Grinnell - Encore Financial Group, LLC
Patrick Haro, PHR -Group, Inc.
Debra Harper - Danoski Clutts Building Group
Chrystal L. Harry - Sierra Pacific Resources
Carol Holt - Payless Car Rental
J. Mason Hudson - Desert Springs Hospital
Renee Humphrey - Gatski Commercial Real Estate Services
Terry Johnson - District Attorney's Office
Yarka Johnson - Allen Tel Products, Inc.
Marie LaCamera, PHR - GES
Brandi Lampe - Lampe Chiropractic
Angela Lewis - Encore Productions
Melissa Livingston - Four Seasons Hotel Las Vegas
Amanda Lund, PHR - Sierra Pacific Resources
Travis Lyons - MPI
Maybelle Manalo, PHR - IMPAC Medical Systems
Rocio Manriquez - Suncoast Hotel and Casino-HR
Rhett Marek - Las Vegas Entertainment Productions
Diana Morris - Medco Health Solutions
Shari Morrison - National Security Technologies, LLC
Gary C. Moss - Jackson Lewis LLP
Dave Murdock - Cedar Enterprises, Inc.
Rosanne Pasierb, PHR
Carol Peake - Human Behavior Institute
Maribeth Piscitelli, PHR
London Porter - Las Vegas Clark County Library District
Lesa Povinelli - Wyndham Vacation Ownership
John E. RuestMercer
Georgina Santelises - Solo Cup
Annie Silman - Advertising & Marketing Solutions
Pauline StarkeyAllegiant Air, LLC
Kris Thompson - Themeing Solutions, Inc.
Paul Trimmer - Jackson Lewis LLP
Nancy White - Las Vegas Chamber of Commerce
Susan Wong-Cervantes - Securitas USA
Abbie Zalkin - Creel Printing
Lorraine Zanello - HSBC Card and Retail Services
Patricia Zary - University of Phoenix
SNHRA’s participation in this year’s “Send One Suit” Week was a tremendous success! Thank you to all who brought your gently used business suits to the March meeting or to one of the drop points.
SNHRA collected 56 suits for disadvantaged women. “Send One Suit” Week is sponsored by Dress for Success®, an international organization committed to promoting the economic independence of disadvantaged women by providing professional attire, a network of support and career development tools to help women thrive in work and in life. Each Dress for Success® client receives one suit when she has a job interview and can return for a second suit when she finds work. If you would like to read more about Dress for Success® or “Send One Suit” Week, you can visit the following website: http://www.dressforsuccess.org/supportdfs_SOSweek.aspx
Thank you again to all who participated in this event to make it such a huge success!
Real Resume Quotes
These are taken from real resumes and cover letters and were printed in the July 21, 1997 issue of Fortune Magazine.
"Received a plague for Salesperson of the Year."
"Wholly responsible for two (2) failed financial institutions."
"Failed bar exam with relatively high grades."
"It's best for employer that I not work with people."
"Let's meet, so you can 'ooh' and 'aah' over my experience."
"You will want me to be Head Honcho in no time."
"Am a perfectionist and rarely if if ever forget details."
"I was working for my mom until she decided to move."
"Marital status: Single. Unmarried. Unengaged. Uninvolved. No commitments."
"I have an excellent track record, although I am not a horse."
"I am loyal to my employer at all costs. Please feel free to respond to my resume on my office voicemail."
"I have become completely paranoid, trusting completely no one and absolutely nothing."
"Personal interest: Donating blood -- fourteen gallons so far."
"Instrumental in ruining entire operation for a Midwest chain store."
"Note: Please don’t' misconstrue my 14 jobs as 'job-hopping'. I have never quit a job."
"Reason for leaving last job: They insisted that all employees get to work by 8:45 am every morning. I couldn’t work under those conditions."
"The company made me a scapegoat, just like my three previous employers."
"References: none. I've left a path of destruction behind me."
We hope that all of our Members and Friends find the articles contained within R E S O U R C E S useful in your HR environment. Many thanks to all of you who responded to our requests for articles and research for this newsletter.
If you have anything you wish to contribute to the next issue, please do not hesitate to email Barry Lippold at email@example.com.
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Newsletter: March 2008 Issue