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.