Friday, April 23, 2010

A Duck Talks

We’ve all had them--the co-worker from hell. Perhaps it was the woman who seemed to have an endless supply of children; all selling something for their band trip, or scout troop, or soccer team…Each week brought in a new kiosk where you felt the subtle, yet substantial obligation to purchase yet more cookies or popcorn or candy or stationery or bedazzle kit. Otherwise their miserable little beast will be forever deprived of the awesomeness that is band camp. If only you had bought one more candle…

Or the co-worker you dare not mention certain topics when near-by.

“This problem is pale in comparison to—“
“Palin! Did you say PALIN!! Eww…I hate that woman! Do you know what she said last week? Let me tell you in miniscule detail, and everything that could possibly be wrong with it.”

The boss that brings in their 17-year-old son to “intern” for the summer. The man who wears so much cologne, you rush to the smoker’s break room for “clean air.” The guy who calls in sick most Mondays. And every Friday in the summer.

Because you and I have had such co-workers; we can anticipate most jurors have as well. What would the average juror think regarding the Coppedge lawsuit?

See, this is what I have to think about every time I take a client. Not just what they are saying, and how wonderful the case appears from my client’s perspective—but what will the opposing party claim? What will a neutral determinator—the jury—think is more feasible? This is why I prefer my methodology--not what you “think” or I “feel.” How would a neutral determine based upon all of our arguments?

From the facts I have now—I think the Coppedge case is a loser. Oh sure, it makes great press releases, and sounds wonderful to the choir. They will lap it up. But as a lawyer, representing a client, I would tell them it isn’t worth the effort.

The first amendment (“freedom of speech”) would not sustain a motion to dismiss. The employer was not a state-actor, and employers are allowed to limit employee speech. The only real question is whether Mr. Coppedge was discriminated against for religious beliefs. Assuming his supervisor did claim this promotion of ID amounted to “pushing religion”—the inquiry does not end there. Apparently under California Law religious proselytizing can be limited. The key question is whether the conduct “imposes personally and directly on fellow employees, invading their privacy and criticizing their personal lives.” Chalmers v Tulon Co of Richmond 101 F.3d 1012 (4th Cir. 1996)

[If you think about it, this makes sense. Coppedge is in a supervisory position. If he pushes what appears to be religion on a subordinate, and his superiors take no action, JPL could be sued for religious discrimination by Coppedge’s subordinate! The employer is between a rock and a hard place—do nothing and Coppedge’s underlings could sue. Stop him and he sues.]

We see where the line is drawn—we now can anticipate the arguments from each side. Coppedge will attempt to paint himself as only talking to others after they first talked to him. That he only talked to them after hours, in the most minimal manner possible. That as soon as anyone indicated they were not interested in his ideas, he immediately withdrew and never, ever raised it again.

JLP, the employer will portray Coppedge as being insistent with co-workers, being pushy, repeating ID around everyone regardless of how they felt. That he invaded their privacy. Simply put, they will attempt to portray him as the employee from ID-Hell.

No surprise, even William Becker (Coppedge’s attorney) sees this coming.
William Becker:… he’s[Coppedge] not pushy and he’s not persistent in his views. He’s a very mild-mannered guy, so any potential claim he was overly-aggressive in the way that he approached people about his interest in intelligent design is not going to be very successful in this case.

David never had any other co-worker refuse to take a DVD from him. And David never had a co-worker tell him, ‘Listen. You’re being too pushy, I’m not interested in the subject, please go away.’ If anyone expressed disinterest in the subject, David would walk away.

So this isn’t a case of him being overly persistent or obnoxious in his behavior, when he approached other employees; although that’s the way JPL is expected to argue their position. That it wasn’t based on a viewpoint. That it wasn’t based on discrimination and it wasn’t based on a perception of religious speech; they are going to argue that it was based on David’s mannerisms and his behavior. And if they try to do that I think they will be very unsuccessful when they learn what a mild-mannered guy he is and that he is not the type of person who engaged in that kind of conduct.

Podcast with Coppedge’s attorney. [Warning; it starts to play as soon as you click on it.]

Lovely depiction, and exactly what a lawyer would do—express his client in the best possible light.

But lawsuits don’t end there. They don’t end with mild-mannered David on the stand, and then the jury decides. The employer will also provide proofs.

One thing that would bother me (if I was investigating taking Coppedge’s case) was that human resources did an investigation, interviewed him (where he admitted engaging in these conversations at work) and talked with other employees. According to Plaintiff’s own complaint, human resources found out other employees considered this “pushing religion” and “disruptive” and “unwelcome.” Dangerously close to imposing on co-workers and invading their privacy!

Of course Plaintiff will testify no employee every complained directly to him. What is wrong with that? Think back to YOUR co-worker from hell. Did you complain directly to them? Did you march right up and say, “Enough of the Palin-talk.” Or “Use 1/10 of the cologne, buddy!” Nope, most times you grinned and bore it with your other co-workers. Perhaps subtle (and not-so-subtle) hints were sent. We all can picture:

David Coppedge: Did you see that show on Evolution last night?
Co-worker: [thinking “not again!”] Mmm—mm must have missed it.
David Coppedge: Funny how they never show problems with the theory.
Co-Worker: Gee…look at the time! Time to rotate the coffee filters.

Coppedge walks away thinking, “They didn’t tell me to stop!” The co-worker walks away and thinks, “What a jerk.”

What are the chances the employer will produce such a witness? A co-worker who says it was unwelcome. Remember—they only need one!

Obviously I don’t know—I have absolutely no insight into the employee files at JPL. I know what I would point out. David Coppedge is on the board of Directors for Illustra Media-- the publisher of the very DVD’s he was handing out, including ”Unlocking the Mystery of Life” This is a guy who is interested in Intelligent Design. I would point out the numerous articles David Coppedge has written on ID. I would point out discussions he has had (as I mentioned in my last blog entry) with those opposed to ID.

See, here’s where the neutral party may question the situation. On the one hand we have a Plaintiff who is suing for money and sits there all mild-mannerly, claiming he would never be pushy about his belief. On the other hand, we see a guy who (and he has every right) composes article after article on ID, engages others, and sits on the board that produces the DVD’s he is handing out. As these articles came in evidence—over and over—it will be more difficult for a juror to believe he would walk away from a conversation on ID the instant someone indicated they were not interested.

We have an employer who will very, VERY likely produce at least one employee who will testify Coppedge’s statements were unwelcome, but they did not feel comfortable approaching their supervisor about it. (Too many people investigated the matter and came to that conclusion.) That indicated they took the DVD out of politeness and later threw it away.

And I have jurors who have experienced co-workers from hell.

Barefoot Bum: Having been a manager and executive, I would strong suggest that Coppedge is not being demoted because he's religious, he's being demoted because he's an obnoxious asshole.

Yep. Jurors like that.

This lawsuit will serve ID interests, as it is great press release, already stirring up those who believe it in. It will serve the attorney—he gets more advertisement. It will not serve the client—David Coppedge.


  1. The case is obviously a non-starter.

    First, employers are very likely to settle even in cases they will almost certainly win at trial. It's almost certain, however, that Coppedge himself has precluded a settlement (probably by demanding extremely high damages).

    I would argue that the relevant facts of the case are not the facts of Coppedge's actual behavior, but the results of the HR investigation. If those facts were stipulated, I don't see how a motion for summary judgment could fail (as a matter of law, the decision to dismiss was clearly warranted on those facts). Therefore, I imagine Coppedge will have to allege that the investigation itself was biased and religiously motivated, which seems an enormously tough case unless JPL completely botched the investigation. (And if they did, they would have reinstated Coppedge or been more vigorous about trying to use arbitration or other procedural measures to settle.)

    I don't think Coppedge himself will "lose"; even an IDiot knows this case is doomed. (Dollars to donuts his lawyer is either working pro bono or is being funded by an ID organization). I cannot imagine Coppedge is doing anything but intentionally setting himself up as a martyr to the cause.

    Grammar Nazi

    ... if I was investigating taking Coppedge’s case...

    Should be "... if I were investigating...."

  2. Fundamentally, I see this case as a move in the political struggle to overturn the Establishment Clause. This is not the first instance of a case that was more politically useful to lose than to win (Dred Scott springs immediately to mind, although the analogy is only partial). The message is, "We cannot win in court, we cannot win in the legislature, therefore we must effect radical political change."

  3. I think your analysis is flawless. That said -- and you know this as an attorney -- juries can be strange animals. They can convict without a shred of evidence and they can find someone not guilty, even when the evidence is overwhelming.

    So, I can understand why the plaintiff is willing to give it a shot. I'm sure in HIS mind, it's a win-win situation.

  4. Ah, what a great post.

    I enjoyed this paragraph in particular,

    Of course Plaintiff will testify no employee every complained directly to him. .. Nope, most times you grinned and bore it with your other co-workers. Perhaps subtle (and not-so-subtle) hints were sent.

    This is so true. In the past, I was the a-hole co-worker who hadn't been trained to notice the "subtle clues." Ah how I wish I would've noticed that I was annoying them. Oh well!

  5. The Rambling Taoist,

    You are quite correct juries can come up with some strange verdicts.

    However, we approach it from the standpoint of what a typical juror would do. Not the exceptions. Remember, most lawyers take these types of cases on a contingency, meaning if we don’t win any money for the client, we get paid $0.00 for our time.

    And employment cases tend to be time-intensive. Yes, employers may be inclined to settle (The Barefoot Bum is correct there) but they don’t roll-over at the first sight of a lawsuit. They make one prove their case. This means document requests, depositions of your client, depositions of all the defendants, depositions of employees, pre-trials, motions (expect quite a few on discovery issues alone), mediation, facilitation, case evaluation, and settlement conferences. Not to mention hours and hours and hours of preparing, waiting, and traveling to and from each one.

    And then you have the trial (after several adjourned trial dates.)

    That is a LOT of hours spent on the wish and hope to get a renegade jury. Hours that could be spent serving paying clients. Or hours spent on cases you will win with a typical jury.

    There are only two (2) reasons I can imagine to take such a case.

    1) To advertise. Show you were the first person to take on General Motors for the handicapped, in the hopes other people come to your office that really bring in the money.

    2) Personal angst. Either you really hate the company, or you strongly support the client for personal reasons. (Imagine a family member or friend.)

    I suspect William Becker is doing it for a little of both.

  6. Maybe it's just me - but I am not sure Coppedge is doing anything wrong in his workplace - except using a lack of judgment. I mean, freedom of speech and all, can we not discuss religion at work if a conversation is made about it?

    In the points where Coppedge is kind of being distasteful to the people around him and offering dvd's - maybe someone should help the employee's know their rights - they don't need to accept and if they don't want to talk with him - just ignore his conversations. None of this should be used to haem their place in the company...if it is...then we have an actual case w/substance.

    Otherwise, all I see is some dude discussing intelligent design and giving away cd's. That's not much different than Red Cross coming to your workplace and discussing their charity as the 'best' and even pressuring people to give to help the 'needy'...leaving forms and all that make it easy to give a % of your salary to them (no hassles). I don't see the difference, except the subjects being discussed.

  7. "Otherwise, all I see is..."

    Neither you nor I are witnesses, nor do we have access to the investigative findings. What you and I actually see doesn't seem relevant.

    It is, of course, possible that JPL botched the situation at one or more points, but there's no way of making any kind of determination until the actual facts are placed in the public record at a trial or as a settlement.

    The best we can do is speculate on general principles the sort of findings that would typically justify JPL's actions.

  8. I've been on the employer's side in these situations as an executive and manager. Typically, the employer and its representatives are strongly discouraged by internal policies and legal advice from commenting at all on the case. There are a lot of good reasons for the employer to STFU, and very few (if any!) good reasons to speak out publicly rather than wait for a trial or administrative hearing.

    The employee, on the other hand, is perfectly free to publicly proclaim his innocence and maintain his actions were innocuous, and it's in his or her interest to do so.

    This asymmetry is one reason it's often considered bad to "try cases in the media."