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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 89323
Experience:  20+ Years of Employment Law Experience
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I have an EEOC case which is in settlement talks. How much

Customer Question

I have an EEOC case which is in settlement talks.

How much is reasonable to accept?

The other side (American Express) violated a prior EEOC out-of-court settlement (“contract”) of $70,000 (“$70k”) with me from June 2000, and admitted no fault. But 5 years later, my ex manager (“Qing”) gave a reference even though the contract said he was to not give “any information” and was to refer all questions to Human Resources. That manager admitted under oath in January 2009 he violated both provisions, after 4 years of denying it. Now Amex can’t say that they were blameless.

I say that Amex should pay a multiple of the initial $70k. And I lost $450k in actual lost wages, since I applied for a full time job (FTE) with the company (FJ: Fischer Jordan). However, FJ’s biggest customer is Amex, and FJ gave a (false) deposition that they did not speak to that manager (which now that manager admits to talking to FJ). Chances are FJ may cling to their story, rather than admit to perjury.

I feel Amex should also pay emotional damages, since the Judge said unless I give my psychiatrists’ records AND notes, I won’t be eligible for emotional damages. The US Supreme Court limits emotional damages to 1 time the actual damages, but I’m in NYC, which has a higher limit under EEOC laws.

Thus, I feel Amex should lose in SDNY federal court for $450k actual + $700k emotional, which my lawyers say I won’t get since I come across as argumentative (I am) and FJ will lie on the stand about the FTE job. By the way, I only found out about that manager’s comments when FJ said “We’re not going to change you from a part time job in Delaware to a FTE job in NYC, since of what Qing said a few months ago about you, that you don’t fit into the culture and have bad ethics.” I replied to FJ by email confirming our conversation, and FJ thanked me for my positive attitude while I was working part time as a consultant in Delaware.

I feel I should get punitive damages, since Amex clearly ignored the contract and the law (Title VII of the Civil Rights Act of 1964), and made a decision they could steamroller me. The Amex Code of Conduct clearly would have had Qing tell his boss, or the Amex internal VP lawyer tell his own boss about Qing’s violation when it was discovered in Feb2006. But Amex ignored the law, the contract, and the Code of Conduct – so I feel Amex should get punitive damages and should pay for legal expenses.

I feel that an after tax award to me of $350k is reasonable, which would be less than my out of pocket expenses, legal expenses and certainly not enough to make me whole emotionally. But Amex probably won’t budge for more than $300k in a settlement, of which my lawyer for the case and settlement gets 1/3. Thus, I’d get $200k before taxes, and $130k after taxes. And I sunk $30-$50k in legal expenses before this. And Amex can continue on its merry way, although I can (and have) bring it up to the Amex Shareholder meeting, which I’ve been trying to do since April 2007, when Amex went to Court to keep me from the April 2007 Amex Shareholder meeting, not to communicate with the SEC and to take down my web site. Amex also told a federal judge wrongly that they did not try to stop me from communicating with the SEC, which in NY State (and SDNY) is NY Judiciary §487 “intent to deceive the Court”, a criminal misdemeanor, which is subject to Treble damages in a separate suit. The lawyers from Skadden and from KellyDrye can get disbarred.

What number should I take in a settlement, or should I go for the trial, which if I win, I estimate I would pay $60K for the appeal, and $10k in expenses (and a free lawyer?) to go to the Supreme Court?

Tuesday, October 19, 2010 8:17 AM
Submitted: 3 years ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 3 years ago.
Hello and thank you for choosing JustAnswer. The details of your situation are astounding that a company so large would act in such an irresponsible manner, but it happens unfortunately every day in corporate America. On the issue of damages, your damage estimates are a bit high, because even though NYC has higher damage amounts the punitive damage awards do not change from the amount equal to the actual damages. Thus, if you can prove an actual loss of the $450K then the punitive damages would be only another $450K(not the $700K) and the total value of the case could be $900K, of course the part of the award for lost wages would be taxable and the other part would not be taxable and also the attorney would receive their fee and costs out of that amount. This case value of course is theoretical and other outside factors weigh into the determination of value such as the strength of the evidence and how the witnesses will come across on the stand if forced to testify. If your attorney has been working this case, it is his job to determine all of these factors in calculating the value of your case based on his experience with the local federal courts (all of which give fairly conservative awards) and based on what he has seen for testimony and evidence. Generally, from what I have seen with these cases, if you are willing to wait them out and continue pushing them towards trial, if they are at $300K now that they would be willing to settle the case for at least double that offer. However, pushing them means being patient and filing your suit and waiting them out and not looking for the quick settlement.

As far as the misdemeanor for intent to deceive the court, there are so few of those cases ever prosecuted so do not hold that as your hole card. You can file a complaint with the state bar office of disciplinary counsel, but unless the judge in the case sanctioned them for this or found this as part of the findings of fact in the case, chances are it will never get prosecuted and that means the case will not go anywhere.

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Customer: replied 3 years ago.

We passed summary judgment, where Amex tried to push the problem on Qing alone, even though Amex knew about it in Feb 2006 and violated their Code of Conduct by not reporting it to their managers, and by covering it up in a memo to the Secretary of the Corporation about whom I spoke with a 2nd investigation in Dec2005.

 

I'm also wondering what is Amex's reason for low-balling me, instead of giving a fair amount back 4 years ago, or a higher amount now. I think punitive damages should be included in the settlement estimate, but one of my two lawyers says "no".

Expert:  Law Educator, Esq. replied 3 years ago.
Punitive damages should be awarded only if you can prove the company/employer acted with intentional bad faith (this does not necessarily translate to their employee doing something that violated the agreement). The proof of the knowledge and intent of a company is something more difficult to prove when seeking the damage award, which is likely why one attorney is telling you no and the other is saying yes. At the very least, if you can prove that $450K in actual damages your case is worth more than the $300K they are offering. As far as why the defendant is stuck on $300, it is because they are trying to wear you down and save themselves money and for no other reason. If your attorneys begin pushing the case towards trial then the defendant will likely rethink its position because this is likely information they do not want to come out in a public court.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 89323
Experience: 20+ Years of Employment Law Experience
Law Educator, Esq. and 6 other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

I saw on TV a fictional case on "The Good Wife" where the lawyer gets the difference between what the big firm offers and what the plaintiff accepts. Thus, the law firm is probably pushing for a lower settlement to get the difference to themselves.

 

I say the Punitive Issues and Bad Faith: Amex's in house legal counsel, a VP and lawyer, investigated and told me in Feb 2006: "All Qing said to FJ was 'I don't think XXXXX XXXXXndner can work here.' which I wrote him an email that night saying that this was proof of the breach of contract, which forbade Qing from giving "any information" and required him to send them to Human Resources. The VP/lawyer wrote back that day saying he disagrees with my characterization of my conversation with him, and refuses to memorialize it. However, under oath in Jan2009, the VP/Lawyer admitted that the handwritten paper had Quote marks around the phone conversation he had with Qing in Feb2006 that said:

  • "Peter is a technical person,
  • Hiring him is your decision
  • I don't think XXXXX XXXXXndner can work at AXP

So, the VP/lawyer in the General Counsel's Office knew that Qing breached the June2000 Amex-Lindner contract, which was to settle and EEOC sexual harassment suit, and thus violated the Title VII of the Civil Rights Law of 1964 on retaliation, and the lawyer ignored the Amex Code of Conduct (filed with the SEC as per SOX - Sarbanes-Oxley), and the Amex Whistleblower Code, both of which required him to report that violation to his manager and try to fix the situation.

 

When I pointed it out to my current lawyer, he said it's irrelevant that they conspired against me. I say it's relevant to punitive damages. He did not even want to call that lawyer, nor Qing's boss of 15 years (Amex's Banking President Ash Gupta) on the stand, saying it would be a waste of his (the lawyer's) time and that he did not know what Ash would answer in terms of what he knew and when he knew it.

 

Expert:  Law Educator, Esq. replied 3 years ago.
The fact they conspired against you is only relevant if they did so on basis of your age/race/sex/disability or in retaliation for exercising a right granted by a statute. To conspire against someone to breach their contract is really not a matter of bad faith to give rise to punitive damages and you need to listen to your attorney on this. Not only that, your attorney knows from practice what he will be able to prove in a trial and what he will not be able to prove and if he is telling you that it is not sufficient for bad faith and punitive damages there is good reason and he has read and seen all of the evidence to better evaluate it based on his experience.
Customer: replied 3 years ago.

Well, my attorney put in notice to quit after we reached an out-of-court settlement of an undisclosed amount.

 

As for "in retaliation for exercising a right granted by a statute", the original suit was filed under Title VII and for my complaint of Qing sexually harrassing me. And that the USDJ (District Judge) summarized my case as 3 points:

  1. breach of contract
  2. retaliation under Title VII
  3. slander/libel (or whatever it's called)

Thus the VP/Lawyer knew it was a Title VII case, and it was jointly against Qing & Amex.

Expert:  Law Educator, Esq. replied 3 years ago.
If there was retaliation, then pursuing additional money for the retaliation (which is of itself bad faith) is what you get, not bad faith on top of retaliation, one or the other.
Customer: replied 3 years ago.

In the Anucha Browne Sanders v MSG case, Isiah Thomas wrote in his brief that Ms. Sanders did not deserve punitive damages, since they only apply when the firm exhibits willful indifference to the law. (some such phrase).

 

Isn't this wilfull indifference by the VP/lawyer?

Expert:  Law Educator, Esq. replied 3 years ago.
No, it is negotiation and it can be zealously representing his client, willful indifference is really such an almost impossible burden to prove and this is why your attorney wanted to avoid it.

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