Chuck Douglas and Jason Major of Douglas, Leonard & Garvey just finished a two-week long jury trial in Merrimack County with a $150,000.00 victory against the New Hampshire Department of Corrections in a free-speech case brought by correctional officer Mark Jordan. Here is a copy of the jury verdict form completed by the jury.

Mr. Jordan was suspended without pay or benefits for a year following a parking lot altercation started by another Corrections Department employee on March 10, 2010. Corrections Commissioner William Wrenn also referred the case to the State Police for criminal charges against Mr. Jordan. Evidence that demonstrated that the other employee was the aggressor was available to but ignored by Commissioner Wrenn. The aggressive employee, who had a history of angrily confronting his co-workers, was not placed on suspension or charged with any crime.

Why was Mr. Jordan singled out and placed on a year-long suspension without pay if he was not the aggressor in the parking lot incident? Mr. Jordan happens to be the president of the New England Police Benevolent Association chapter that represents New Hampshire correctional officers. He had been a vocal advocate for the safety of his fellow officers in late 2009 and early 2010, going on the record to challenge what his union saw as dangerous choices to layoff 56 correctional workers (leading to unsafe levels of understaffing), and Commissioner Wrenn’s support for SB500, a bill which proposed the early release of violent offenders and provided weaker sentences for parole violators. Mr. Jordan also began an investigation of allegations of corruption at the Men’s Prison in Concord related to excessive force charges against a fellow correctional officer, which he also made public.

Following the voicing of his opinions in early 2010, Mr. Jordan’s previously strong personal relationship with Commissioner Wrenn broke down, and when the parking lot altercation occurred on March 10, 2010, Wrenn seized the opportunity to attempt to silence and discredit Mr. Jordan by placing him on suspension and under a criminal investigation (which led to a simple assault charge) for a full year. Mr. Jordan was acquitted of the criminal charges against him on February 28, 2011, and finally returned to his job in June of 2011. The State did provide him with back-pay for the year of work he missed, and retroactively reinstated his health insurance.

However, the State refused to acknowledge the damage done to Mr. Jordan while he was out of work without pay. Mr. Jordan fell behind on his bills and his family had to make sparing use of medical care despite a serious health condition that Mr. Jordan suffers from (which came to light after he was assaulted by an inmate in 2009). Mr. Jordan’s wife Pam described the year without pay and benefits, with bogus criminal charges hanging over Mr. Jordan’s head, as being a “year of hell,” with fear and desperation predominating over their family during that time.

The case was tried before Superior Court Judge Richard McNamara from October 18 through October 28, 2010, resulting a verdict for Mr. Jordan in the amount of $150,000.00. The case was tried under RSA 98-E, a statute which guarantees the free speech and criticism rights of State employees like Mr. Jordan. It is believed to be the first jury verdict under RSA 98-E. The statute provides for an award of attorneys’ fees to the prevailing party as well as damages. The case received press coverage in both the Union Leader and Concord Monitor.

If you are the employee who is making a complaint about unlawful discrimination or blowing the whistle on some other form of unlawful activity at the workplace, the law protects you from retaliation from your employer. However, what protection do you have if you are a witness involved in a formal investigation, or even a lawsuit?

Legally, you are generally just as protected when acting as a witness, as you would be if you were the person making the complaint. An employer cannot legally retaliate against a employee who tells the truth in an investigation or lawsuit. The protection against retaliation can be sometimes be found in statutory laws (that is, the formal legal codes enacted by your state or federal legislatures), or in the common law (the law derived from cases decided by judges). The protective measures found in legislative enactments are often part of the specific statutory scheme that an employee might rely on to make a complaint about unlawful activity. For instance, the sexual harassment laws contain specific anti-retaliation provisions that can be interpreted to apply to both a complaining employee and supporting witnesses.

If not by statute, you are protected by a claim of wrongful termination. That means that if an employer retaliates against you for cooperating with a complainant or investigator in regards to a complaint of unlawful activity, and the retaliation leads to a termination, or creates work conditions so harsh that they effectively force you to quit, you may be in a position to file your own lawsuit.

In the case you are a witness to is being investigated by a government agency, they often have the power to fine or otherwise punish an employer for retaliating against you, even in situations that are less severe than a full-blown wrongful termination or constructive discharge case. If you are retaliated against in any way, or even threatened with retaliation, you should advise the investigator or even contact an attorney.

Why should you consider engaging an attorney if you are protected from retaliation under the law? Despite the protections against retaliation, employers sometimes ignore their obligations. As noted above, the stakes in employment cases can be very high for employers and employees. An employer unscrupulous enough to break the law that led to the underlying complaint may have no hesitation when it comes to retaliating against you for helping the complainant by offering truthful information.

If you believe you are likely to be a witness in a co-worker’s employment lawsuit, and are worried about being retaliated against by your employer if you tell the truth about what happened, you should not hesitate to contact a reputable employment law firm. Because Douglas, Leonard & Garvey focuses its practice on representing employees, we can help protect you if you find yourself in this situation. Call us for a consultation or fill out our contact form.

A decision by the United States Supreme Court in January opened the door to a broader interpretation of the anti-discrimination laws. In the case before the Court, a female employee filed a sex discrimination complaint with the Equal Employment Opportunity Commission and then three weeks later the company fired Mr. Thompson, who was her fiancé. The company lawyers argued that Title VII of the Civil Rights Act does not allow third parties to bring claims of retaliation but only the individual who themselves lodged the discrimination complaint. However, the Supreme Court of the United States in an 8-0 decision said that Mr. Thompson was protected by Title VII.

Thompson was not an accidental victim of the retaliation but, in effect, was collateral damage to the employer’s unlawful act. By terminating him they were retaliating against the female who had filed the charge and that was an unlawful act of punishment against her, although it was indirect. Mr. Thompson was in the “zone of interest” to be protected by Title VII and thus has standing to sue.

When does an office romance qualify as a close relationship? What if the couple had only been dating for a week or two? These are the issues left for future cases and future employers. It is a warning to employers to consider whether the person they are firing has a relationship to the complaining party such that it would be considered retaliation.

Douglas, Leonard & Garvey represents employees in discrimination and retaliation cases but we know that each case turns on its own unique and individual facts.

Several attorneys filed suit against the State recently to try to obtain proper funding for our judicial system.  It is broken and I could not sit idly by and let it be gutted by excessive legislative budget cuts so I joined in as counsel.

Each year 230,000 court cases are filed in New Hampshire.

Certain types of court cases have specific time frames in which to act and those are set by the legislature.  For example, domestic violence cases and criminal cases require certain scheduling dates by law.  Thus, work on such cases means other cases must be delayed if judge time is lacking due to vacancies.  For instance, in 2009, there were 5,300 cases of domestic violence with hearings required between five or thirty days of filing, depending on the request.

Stalking cases were 1,470 in number, with the same time requirements.  9,600 landlord/tenant cases must be heard ten days from service of process.  Involuntary emergency admissions to the N.H. Hospital were filed 1,700 times last year and they must be heard within three days of hospitalization.

Families are also heavily affected by the lack of a judge to help decide their disputes.  7,200 juvenile cases, 10,000 new divorce or family petitions and 7,000 closed cases reopened for parenting or lack of child support issues were heard last year alone.

Judges cannot decide cases without someone processing them, scheduling them, getting orders out, and otherwise processing paperwork.  Each month thousands of orders have to go to the office of child support enforcement, various criminal law agencies, and to parties involved in marital and civil cases.

In the non-criminal area our State Constitution’s Bill of Rights (Part I, Article 14), says that everyone is entitled to a certain remedy for all injuries they may receive and that they are to obtain it “completely, and without any denial; promptly, and without delay.”

The purpose of that provision is to make civil remedies readily available and to guard against arbitrary denial of access to the courts.  It is an equal protection clause because, whether you are suing someone or being sued, you want to have your case resolved as soon as possible.

Last year there were $3.1 million of cuts out of a judicial branch budget of about $65 million, with another $2.2 million hit in May.  Concord District Court, which is a three-judge court, is now operating with one full-time judge.  Due to the reduction in personnel a form letter went out this summer canceling all civil trials.

Small claims cases were all cancelled in the Manchester District Court this summer for an indefinite period.

On July 22, Merrimack County Superior Court began closing to the public daily from 1:00 p.m. to 4:00 p.m.  As of June 30, it had nearly 500 case files with pieces of mail that had yet to be docketed in the court record, with some documents dating back to March.  Another 150 trial and hearing notices had not been sent out and more than 350 files contained court orders that had not been issued.

And Hillsborough County just announced:

HILLSBOROUGH SUPERIOR COURT CLERKS TO CLOSE OFFICES

TUESDAY AND THURSDAY AFTERNOONS

Staff shortages prompt move to focus on reduction of case backlog

CONCORD, October 1 – The clerk’s office in Nashua for Hillsborough County Superior Court North and Hillsborough County Superior Court South will close at 1 p.m. on Tuesday and Thursday beginning October 5 to allow uninterrupted time for processing cases and related materials.

Both clerk’s offices, which had been closed from 8 a.m. to 9 a.m., will reopen at 8 a.m. daily, beginning Oct. 5 with implementation of the new Tuesday/Thursday afternoon closings.

After 1 p.m. on Tuesday and Thursday, no telephone or counter service will be available to lawyers, litigants or the public in the clerk’s office during those hours; the automated telephone system will be monitored so that emergency requests are addressed promptly. A “drop box” will be set up inside the courthouse at 30 Spring Street in Nashua for filing documents during the hours when the clerk’s office is closed.

As of today, the Merrimack County Superior Court, which had been closed down since last August on weekday afternoons to work on reducing the case backlog, will be open for a full day on Fridays. The clerk’s office in Concord remains closed to lawyers, litigants and the public Monday through Thursday from 1 p.m. to 4 p.m. to allow for uninterrupted case processing.

Several other court locations statewide, faced with backlogs and staff shortages, also have limited public operating hours to allow uninterrupted time for employees to process cases.

Superior Court Chief Justice Robert J. Lynn said the schedule will be reviewed every 30 days to determine when the clerk’s office can return to routine office hours. Reductions in the court system budget have required administrators to maintain 71 full-time non-judicial vacancies, which means court locations have fewer employees on staff to carry out day to day clerical responsibilities.

These cutbacks affect all citizens who seek justice.  I will do all I can to fight for fair funding.  If you have a delay horror story, email me at info@nojustice.org

If you are contemplating a lawsuit, or perhaps just filed one, you have probably heard that the court requires the parties to “mediate” the case.  What is mediation, and is it something you want to take part in?

Mediation is a type of “alternative dispute resolution.”  Simply put, it is a formalized method by which you attempt to settle your lawsuit before going to trial.  It is often confused by lawpersons with arbitration, which is an alternative form of trial judges rather than an actual judge and jury.

How does a mediation work?  Typically the parties agree on a mediator as the first step.  The mediator is typically an attorney or retired judge.  The choice of mediator is very important.  An inexperienced or unmotivated mediator will not be effective in driving the mediation process to a successful resolution.  Experienced trial attorneys will know the right mediator for the case, and will insist on using the right mediator in your case.

Once the mediator is selected, the mediator process typically begins by having all the parties meet and their representatives meet in one room.  The lawyers for the parties typically give a presentation of what they believe the evidence will demonstrate at trial, and try to highlight the strengths of their case, and the weaknesses of the other side’s case.  It is not uncommon for the plaintiff to explain how the defendant’s conduct has personally impacted him or her, and also not uncommon for the mediator to ask questions of both sides to help clarify certain points and potentially to highlight key issues in the case which parties may not have fully appreciated before the medication begins.

At that point, the parties typically separate and go into different rooms.  It is at this point that the plaintiff makes a demand for a certain amount of money (which is typically much higher than what their attorney ahs told them to expect as an end result) and the defendant makes an offer to pay the plaintiff a certain amount (almost always much lower than what they actually expect to pay) of money to dismiss the case.  The mediator then goes back and forth between the rooms in a process of “shuttle diplomacy.”

During each visit with the mediator, the parties discuss the amount of their demand or offer the settle, and the strengths and weaknesses highlighted by the other side.  The goal is to keep reducing the plaintiff’s demand, and increasing the defendant’s offer, until they meet at some point.  If they meet, then the case is settled.  If the defendant is unwilling to pay the lowest amount the plaintiff is willing to accept to settle the case, then the mediation will end and the parties effectively pretend it never happened.

In a successful mediation, the parties decide the outcomes of the case, rather than allowing a third party to do it for them.  If the mediation fails, then the parties simply proceed to trial, and treat the mediation as if it never happened.  The jury never hears about what happened at the mediation.  Everything that happens at the mediation is kept strictly confidential, to encourage the parties to be open and honest about their case and make the best effort possible to resolve it.

Successful mediations depend tremendously on the skill and experience of the parties’ counsel and the mediator.  Picking the right mediator is crucial, but having the right attorney is even more important.  An experienced trial attorney will have the experience to value your case, and to make the most effective use of the mediation process to get the other side to pay the most money they are willing to offer, and not take the risk of undervaluing your case.

Considering that most cases settle before trial, and many of those settle in mediations, it is important to choose the right attorney to handle your case in order to ensure your case is worked to get you the full compensation you deserve.

You know you are about to be fired for doing the right thing, or because you complained about sexual harassment.  You have emails or memos from your boss or co-workers which you know will prove the truth of your allegations.  Can you take them with you if you are fired or when you quit after the retaliation becomes too much for you to endure?

The answer, of course, is that it depends.  The wisdom of taking materials you obtained or where given access to through your employment, so that they might be used in a lawsuit, varies with the circumstances.  If your employer has a policy prohibiting taking work-related materials home with you, or using them for any non-work-related purpose, then sending e-mails home or taking documents with you on the way out may have a negative impact on your case.

When there is a policy against personal use or removal of work-related material, and your employer discovers in the course of your lawsuit that you removed work-related materials from your employer’s premises, it is sometimes possible for the employer to effectively “re-fire” you even after you have left their employment, for violating a company policy.  In those cases where this rule (which is termed the “after-acquired evidence rule”) is applicable, your former employer may be able to use it against you to substantially limit your ability to recover certain damages, particularly lost wages and benefits.

Therefore, if you know your employment situation is looking bleak due to sexual harassment, illegal discrimination, or retaliation for your doing the right thing, you should contact a trustworthy employment lawyer with real trial experience.  One of the things you should discuss, if possible, before you resign or before your employer has a chance to terminate you, is whether to make copies of e-mails and other documents that might help your case.