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During the initial two hour consultation on this case, I left scratching my head. It seems most discrimination lawsuits I work have so much smoke floating around that it’s hard to breath. Some law suits are based on discrimination, and I agree with the laws on termination based on gender, sex, religion, race. But in my experience it’s rare to find a case that makes it to trial that is clear cut and not a bit of a stretch. My client was representing the employer.

Case Background:

George Lopez was a 26 year employee of Laural Corporation. Starting his first real job in life he was in he was interested in learning how to run the newest technology of the time.. Computers. For 25 years he stayed in the same job, moving up the ranks until he hit his salary cap for the department. The thought of never seeing a raise again was not acceptable and lucky for him he was offered to be moved from the data center to the newly founded internal help desk where he had the opportunity to continue rising.

After being in the position for a year, and having a manager that he did not get along with, George didn’t like his new job. Back in the data center he was the top dog, now he was answering the phone left and right as a level 1 help desk operator. Naturally this affected his performance and he was put on a performance probation period by his manager. This probation period can be disputed through HR and other committee’s in the organization. So when George received his review he immediately drafted an appeal and filed it.

One day while claiming he was looking for a reference manual on the company server he discovered his manager’s folder was not password protected like it should have been. In the folder among 100’s of other documents is his manager’s response to his appeal.

So what does he do?

Opens the document, prints it out and takes a copy home. Next he goes to his longtime friend, Julia, who had also come over from the data center and tells her that the folder is open and her review is also in the folder. Julia proceeds to open the folder, once open she see’s her review in it, closes the folder and immediately reports that her personal information is available to anyone that looks.

This caused a major uproar within the department heads. An internal investigation was started and when asked Julia told that she was informed about the open folder by George. When George was interviewed he claimed that he found the folder by accident and HAD NOT actually opened anything. When he was told they were able to pull log records and see what exactly he did, he admitted to opening his managers appeal response and printing it out.

He was terminated for his actions and lying about what he had done.

Of course this is a simple explanation of a trial that took 5 days, but that gives you the general idea of what happened. Are you scratching your head yet?

The Claim:

George was unfairly fired due to his gender. Julia committed the same security breach and was not fired or disciplined in any way. George was the only male in the department and his supervisor was female.

So now you’re where I was when I left the initial consultation. It was a friday so I went home and had time to think about this case. It should not take 2 hours to explain a case that is this simple from the defense stand-point. On sunday (while floating in the pool with a frosty beverage), I came to this simple analogy of the case:

Goerge went into the candy store, saw an open box of candy. George took a couple pieces of candy, and ate them, when asked by the clerk George paid for the candy he ate. Julia on the other hand saw the open box of candy and told the clerk.

The Trial:

During opening statement I quickly learned how the plaintiff was going to try and win this case. And it all came down to a lot of thick stinky cigar smoke (no offense the the attorney, he’s also a client and a really great litigator). His claim is that Julia and George did the same exact thing. There was NO difference in their actions: They both accessed a folder that was known to be off-limits regardless of their being a password or not.

The jury was comprised of young and old, a middle of the road jury. I would imagine that most have used and understood computers. But with enough smoke, sometimes it’s hard to see clearly.

The first witness is the head of HR and she explains the whole story. Some new smokey facts come out such as: HR did not agree with the firing. Julia had taken a screenshot of the folder and turned it in. George had never gotten a bad review before this. There was a major communication problem between him and his manager.

By this point there isn’t much focus on anything gender based. But it did help to make his firing feel pretty extreme. On the other hand he did OPEN and PRINT a copy of a confidential file, which IS NOT what Julia had done. Not sure if the jury was being steered in the right direction by defense counsel.

Tom was the VP of the division, the man that actually made the decision on firing George. Tom is a very clean cut, intelligent looking man. Excellent demeanor and non combative attitude. I knew that at this point there would be some fresh air to clear the smoke. Tom did a excellent job of explaining how there was a huge difference between what George and Julia had done. He explained that he had made the decision to fire George due to a lack of trust, and the amount of trust they require with positions such as George’s due to the fact of sensitive information that is available. George’s lack of reporting the non-passworded folder, the intrusion and printing of the document, and then lying about it left him with no choice but to terminate him. And the cherry on top was he was no longer employed at Laural.

Next witness was Julia who did not add anything that hadn’t already been explained with previous witness’. Another manager involved in the firing process also didn’t add much of anything new. Then came the two competing economists that argued how much money George had lost from being fired. At this point there wasn’t anything new other than having the story explained over and over. But the final witness is always supposed to be good right?

George had the pleasure to end the trial. He explained the same story, we’d all heard it before. Except he claimed Julia opened a document and he had not lied about it when approached initially.

I did feel sorry for him when he explained that his sick wife had to get a job and he has to take care of his 5 daughters, all while not being able to find a job. He lost half of his retirement and benefits. Personally it had to have been pretty hard on the guy, he’d never worked for anyone else in his life.

But as his cross started, I lost some of that sympathy. It was him that chose to open, print and lie. In the past 3 years, while looking for a job, he’s applied at positions that he would never, ever be qualified for. So he works part-time for $8.50/hr, which is, in reality, his choice. He’s got experience and the education, just not the will.

And that’s where it ended. Closing arguments were not overly compelling in either direction. I think most people had already formed their opinions at this point. Personally, I feel like that his firing was pretty extreme for such a long time employee.

The Verdict:
Jury is still out. So who knows!

Tags: Discrimination, jury, litigation support, Review, trial