November 26, 2014
Thanksgiving is a time to reflect on family and circumstance. This holiday has a rich tradition in the United States, spanning from President Washington’s first year in office to the present day. While it means something a little different for everyone, depending on experience, the day is an opportunity “to give thanks for all we have received in the past year, to express appreciation to those whose lives enrich our own, and to share our bounty with others."
Before heading home to celebrate this year’s holiday, with family, turkey, football and classic Thanksgiving movies (two favorites that span the gamut of the Thanksgiving experience are Planes, Trains and Automobiles and Home for the Holidays), The Bullard Edge wants to take a moment to remember a favorite case from many years ago. Its main connection to Thanksgiving is that the case involved family. I refer to it as The Case of the Sloppy Brother.
In 1990 or 1991 I was a newish attorney practicing at a big firm in California. I had recently been drafted into the labor group and was fairly green. Nevertheless, my mentor at the firm threw me into a number of unique cases, including one involving a small, but profitable tech business owned by four brothers from New Jersey.
In addition to being owners, the brothers were company employees (let’s call the company Jersey Store). Things apparently were going well for the company; it was developing technology, making money and growing. Unfortunately, at some point one brother (let’s call him Joe) stopped participating in the success of Jersey Store. He started traveling more, including spending time in California rather than in New Jersey or any of the cities along the Atlantic coast where the company had business dealings. When Joe was in New Jersey, he often slept in his office, bathed in his office sink and wore the same clothes for days. In short, his mien was not clean and it became an issue in the business. The other brothers attempted to counsel and cajole Sloppy Joe, but he just became more and more of a drag on the business. Finally, the other brothers fired him. (Note, although no longer an employee, Sloppy Joe continued to own 25% of Jersey Store.)
Sloppy Joe moved to California, hired an attorney and filed a lawsuit in state court against his brothers and the company alleging, among other things, breach of contract, wrongful termination and intentional infliction of emotional distress. Jersey Store and the other brothers hired my firm to represent them and I was assigned to the case.
We immediately focused on the key relevant facts: (1) Jersey Store was a New Jersey company; (2) it had no employees in California; (3) it had no contracts or sales in California; and (4) it had little correspondence with anyone in California, other than Sloppy Joe’s unauthorized travels to the state. We filed a motion to dismiss, asserting that the California state court lacked jurisdiction because Jersey Store did not have the requisite minimum contacts with the state of California (see the United States Supreme Court’s famous decision in World-Wide VW v Woodson).
While this seemed to be a simple and straightforward motion, it was no surprise that Sloppy Joe opposed it. The content of his opposition was unexpected and this is when things got interesting. In his brief, Joe told the court that he was a spy and had performed various top secret missions for the White House; as proof he included an affidavit from a local traffic reporter.
Sloppy Joe also asserted that he had a relatively unknown medical condition and attached a copy of a lengthy medical journal article to his brief. The medical terms in the paper exceeded my medical training (none) and the internet was not yet a thing (even in the Silicon Valley). However, since the listed author was identified as a Stanford University professor, I called the university and asked to speak with him. Stanford told me that no such person was known to it and that the paper had not been published in the medical journal to which it was attributed. In other words, Sloppy Joe had created a 100-page or so medical journal (a fantastic, though phony, achievement).
Ultimately we filed a low-key reply brief, arguing that Sloppy Joe’s opposition did not address the main issue. He needed to tell the court why the case Jersey Store had sufficient contact with California to be required to defend itself in a lawsuit in that state. We argued that the spy allegations were not material and let the court know about the phony medical journal.
The court agreed with us. It granted the motion and dismissed the lawsuit. Essentially, it told Sloppy Joe that if he wanted to sue Jersey Store or his brothers he would have to do that in New Jersey. I do not know if he ever did that.
This is a pre-ADA case. If a similar situation were to arise today, I would urge the other brothers to take a slightly different approach to dealing with Sloppy Joe, using best practices for a post-ADA world. My understanding is that they told Sloppy Joe that he was behaving in a crazy manner and that his misbehavior was hurting the company. In other words, their actions could have appeared to be motivated at least in part by an assumption that Joe had a mental condition.
The ADA and parallel Oregon law limit when an employer may ask medical/mental questions and what may be asked. With respect to a current employee, an employer may only require the employee to submit to a medical/mental health examination or respond to medical/mental health inquiries if the examination or inquiry is job-related and consistent with business necessity.
The ADA places the focus on performance. The brothers today would want to outline for Joe the specific areas in which his performance did not meet Jersey Store’s expectations. Joe could respond to that performance counseling by claiming that a medical or mental condition may have been impacting his performance. If Joe did not offer a medical or mental explanation on his own, the brothers could ask him if there was any other explanation of any kind for his performance (as opposed to asking directly if there was any medical or mental explanation).
In the event that Joe offered a medical or mental condition as an explanation for his behavior, Jersey Store would want to engage in the interactive process with him. They would want to understand whether Joe in fact had a condition that impacted job performance and how that condition impacted job performance.
The ADA does not require that discipline be rescinded where the employer does not know of an employee’s disability and the employee does not raise disability as an issue until s/he is disciplined. However, because some courts disagree with this, The Bullard Edge suggests that employers speak with legal counsel, before taking action, when an employee claims disability at the eleventh hour.
The Bullard Edge wishes everyone a happy and safe Thanksgiving holiday.