EP 1011: Breaking Barriers: Inside a Trailblazing Career in Employment Law Part 2

Episode Notes

Transcript

Announcer:

Welcome to Heels in the Courtroom where the trial lawyers of the Simon Law Firm break down what it takes to win in the courtroom and in life.

Liz Lenivy:

Hello and welcome back to Heels in the courtroom. I’m Liz Lenivy and I’m joined by Mary Simon, Elizabeth McNulty, Sydney Marino, Katie St. John. And again, Maryanne today for part two of her just giving us the best life advice and walking us through her incredible career. Mary Ann, if we could pick up, we left off the last episode talking about the opportunity you had to argue at the United States Supreme Court as well as a very high profile case you had here in St. Louis representing Francine Katz against Anheuser-Busch and the experiences that you’ve had and the lessons that you’ve learned. And I kind of want to just jump back into some of the other cases that you have worked on and gotten incredible results for your clients. And I remember sitting in your presentation a couple weeks ago when you talked about this, you called it the Adams Mark case.

I think the name of the case is technically EEOC versus HBE Corporation. And as you were talking about that case, I was shocked by the facts and I think part of it is just I grew up in a different time and I know it still happens, this type of discrimination, but hearing how ugly and nasty it was and the result you were able to get was just a real rollercoaster for me listening to it. So can you tell our listeners about the facts of that case and we can talk more about the result that you got?

Mary Anne Sedey:

Sure. I don’t even know if the Adams Murray’s … Is it still open downtown? I don’t think so, but it was kind of a fancy hotel. It was owned by a guy named Fred Comer and Fred Cummer was one of those little tiny banty rooster kind of guys who ran things ran things. He was proud of the fact that he got up at 3:00 AM every day and he started working at 3:00 AM and every detail was in his hands. This was not his primary company. His primary company was called HBE. It was an architecture building company that was his primary thing, but he was very proud of the Adams Mark. So anyway, EEOC brought this case and then Lisa Van Amberg and I entered as counsel for the two individual plaintiffs in the case. And basically what happened was that my client, Dewey Helms, was called the employment manager.

He did all the hiring in the hotel and his boss who was called the employment personnel director was a guy named Bruce I. And Bruce I was white and Dewey was black. And both of them came from a military background because Mr. Cummer liked to hire ex- military people. And what happened was that management felt that Mr. Helms, my client, was hiring too many black employees and they directed Bruce I, who was the personnel manager to fire him and Bruce wouldn’t fire, do we? He refused. He said, “I can’t do that. He’s a great employee. He does a great job.” And so the manager of the hotel fired both of them. And all of this was pretty much at the direction of Fred Cummer. Part of it was that he was overinvolved in everything at the hotel. He was kind of a hard driving, arrogant guy.

He actually was a great target in the lawsuit. And of course he couldn’t help himself. He had to testify. Okay. His lawyers had no choice about that. But what happened was that Mr. Cummer was worried that they were going to attract too many black customers and that white customers were not going to be interested in staying at his hotel. So there was a lot of incredible evidence in this case. It’s just shocking to us now. They wouldn’t permit the playing of black music in the bar. I thought must have been a lot of bad music in that bar. They said there was something called black liquor and that I think at the time it was like Corvassier. I can’t remember what it was, but there was something that was very popular among black people so they didn’t have it in the bar. In the upscale restaurant at the hotel, there were no African American waitresses.

And in the coffee shop, one of the comments that Mr. Cummer made, he came in one day and he said, “It’s getting too dark in the coffee shop getting too

Elizabeth McNulty:

Dark.” Oh my God.

Mary Anne Sedey:

Another perfect example is that the doormen were older African American gentlemen and they had to wear these old south costumes to stand at the door and say, “Welcome and pick your bag up.” Anyway, it was a great outcome and it was a wonderful opportunity because EEOC filed the case. Lisa Van Amberg went on to become an appellate judge and a trial court judge, but she and I were still in private practice in the beginning and we each represented one of these guys. So it was this great collaboration between three women. Donna Harper from EEOC, who became my partner later, was the trial lawyer from EEOC. So it was really a great opportunity. We got a verdict for both of them. We got 4.8 million impunitives and 200,000 in compensatory damages. And we had many interesting lessons. It was the first time we’d ever used a focus group.

Back then, I didn’t have that much money. I eventually made a really good living in my career, but in the early days

Elizabeth McNulty:

I have down on a list of questions, do you do focus groups on these type of cases?

Mary Anne Sedey:

We do focus groups on anything important we’re going to try. And this was the very first focus group I ever had. And the reason we had it, to be honest about it, is that EEOC could afford to do it. And I am a great believer in going to every conference in the world. I’ve been a ton of conferences where people were talking about focus groups. This was 35 years ago. And so we hired somebody to come in and do a focus group. And it was really an really interesting thing. First one we ever did. We were civil rights lawyers. We thought Bruce, I was a hero. The people on the focus group, they were like, “What? He didn’t do what his boss told him and he lost his job. That’s not being heroic. That’s being stupid.” Okay. So we really had to change our focus of how we presented Bruce.

We couldn’t talk about him as some hero. Of course, in any case, you only use real facts, but we began to focus on the fact that they were both career military men and that this was not how they conducted themselves in the army. They learned that there are rules and you have to follow these rules. You don’t do illegal things. The other thing was that, and we saw this in our relationship with them, they were friends. They worked closely together. They really liked and admired each other. And so we just kind of refocused how we talked about Bruce and still do we, the Black employee got the biggest punitive damages verdict, most of which didn’t matter because eventually the Eighth Circuit took most of the punitives away. But it was a great experience, the three of us working together. And it was one of the things that made me understand I would never try a case alone again, ever.

I don’t. I never tried another case alone. And at our firm, we don’t try cases alone. How do you guys do it at your firm? Do you try any cases alone?

Liz Lenivy:

No. I mean, I think there are maybe some small car accident cases. Someone might do that by themselves, but if it’s something big, especially like a medical malpractice case or something complex and complicated, you got to have a second came there.

Mary Anne Sedey:

And sometimes we have two partners try things at our firm if it’s a really big case or two partners and an associate. And so it was a good lesson. It was also a good lesson in the role of the government. People took it more seriously because EEOC said, “This is wrong and we’re bringing a lawsuit about it. ” So it was a really excellent experience. And it is where I learned that I would never try an important case again. We’re like you, we don’t do them on every single case, but we do them a lot and we’ve learned a lot more about how to do them. We don’t pay a lot of money to jury consultants anymore. We might if it was the right case, but by and large, we run our own focus groups.

Elizabeth McNulty:

Now, do you know typically, and I’ll use just the Adams Mark case as an example, but do you know how good the case is going to be? When a client’s coming to you and telling you this five-minute bit of what happened to them, do you kind of have a gauge already like, “Yeah, there’s going to be something more there if this is what happened to them or do you really not know until you actually dive in to work up the case?”

Mary Anne Sedey:

So it’s an interesting difference between what we do and what you guys do.

Elizabeth McNulty:

Right.

Mary Anne Sedey:

I’ll tell you how that works. There are no five minutes about what happened. I mean, if somebody is in a car accident, there’s only so much that the plaintif can tell you about the car accident.

Elizabeth McNulty:

And sometimes they don’t even fully remember.

Mary Anne Sedey:

Exactly.

In our cases, I mean, our first interviews with people are generally a couple of hours and we are delving into all kinds of things. And one of the things that I learned pretty early and I used to give talks about this was picking cases and there were just all these things that we keep in mind, longevity of employment. Something terrible might happen to somebody who’s been employed for eight months, but people don’t really think of them as having like an entitlement in that job. Now, if it’s sexual harassment, that’s different, because that can happen really fast and it can be bad enough that you want to do it. But so longevity is the person a good employee? Do they have a record of making a contribution to the employer’s enterprise, whatever it is. I hate termination cases where you’ve got discipline involved, disciplinary history, unless it’s really clear that men aren’t disciplined for the same thing or white people aren’t disciplined for the same thing.

I mean, it’s important. As you can imagine, because there are not many lawyers who do what we do in any city, but in our city, it’s hard for people to get a lawyer to bring their case. And if the person is obnoxious or unpleasant or super demanding, we just don’t take their case. I mean, we have this basic rule if they’re rude to the receptionist when they call, we’re not interested. And so we really pick people who are likable. Whistleblowers are sometimes a little bit of an exception to that rule because they’re like dogs with bones. They can’t help themselves and they do get people upset, but so what? They’re doing the right thing. And then so you have to look really carefully at damages. You have to look really carefully at a lot of things, but are there going to be any witnesses? Because people who still work there, they don’t want to testify and generally they don’t testify.

So the first thing we do is we start looking for people that our client used to work with who don’t work there anymore. They retired, the retired boss who can come in and rave about the client or the coworker who went on to work somewhere else and knows a lot of the story. There’s a lot of things you have to look at in these cases. We don’t generally use experts. Sometimes we do. So can we get an expert is not an issue the way it is for you all, but we don’t make a commitment to litigate in the beginning. The first commitment generally is to try to get people some kind of a settlement, some kind of a severance. Many people just want that and then they want to move on. But if we can’t do that, then our first contract with people says, “We’ll make a decision about litigating.” You get to decide and we get to decide.

And we don’t litigate everything that we can’t settle. We don’t because you could starve trying to figure out how to do this stuff. The other thing you have to remember is that being accused of something like race discrimination or sexual harassment, these are bad things that we’re accusing people of. And so a lot of times the company will get its backup and so it’s hard to settle them sometimes because there are people there say, “You can’t settle this case because that means I’m a racist.” And I mean, I get that it’s a bad thing. Sexual harassment’s a little different. You can settle those cases because they don’t want a lawsuit if you’ve got the goods. So we say that case selection is probably one of the biggest things in our business. And the other thing is, this sounds outrageous, but we probably get 100 to 200 calls a week easily and we start with a questionnaire.

And if you don’t want to fill out the questionnaire, so be it. Because if we spent all our time talking to everybody who wants to talk to us, we would get literally nothing else done.

Liz Lenivy:

I worked on an employment case pro bono. I was appointed by an Eastern District and I was mostly there to help get her through the mediation process. It was a limited representation. And I was like, “Okay, I could use a couple pro bono hours. I’ll talk to this woman.” We sat on the phone for so long because she had worked at this particular place for many, many years and she just had a long laundry list of perceived grievances and not getting into the merits of the case, but there was a lot there. I mean, when you think about how much your job is tied to your

Mary Anne Sedey:

Identity

Liz Lenivy:

And your self-worth, I do genuinely believe that this woman felt that she was wronged and we were able to resolve the case for her, but it’s not a five minute intake. It was a lengthy conversation. I got a ton of pro bono hours here.People

Mary Anne Sedey:

Are sometimes amazed, but generally by the time we finish litigating these cases and we’re applying for attorney’s fees because this is fee shifting work, if we settle it, it’s different, but this is fee shifting work. If you apply for an award of attorney’s fees, it is not unusual for us to be applying for anywhere between 500 and a thousand hours of attorney and paralegal time. And one of the things that’s great about this is that there is a whole jurisprudence now that has developed about enhancement of fees in these cases so that sometimes we ask for a 50% enhancement. There are people in Missouri who’ve gotten 100% enhancement. And what that means is you get your fee plus 50% more, 100% more and then we don’t have to take a contingent share of the client’s money, which is great, but these are extremely labor intensive as you’re saying, Liz, they really are.

Liz Lenivy:

Ligan versus Tristar Imports, that’s a case where I know at least looking at the notes, you got a multiplier. So could we at least start with maybe just some of the facts of the case? What happened that then led to litigation?

Mary Anne Sedey:

Well, this was a Mercedes-Benz dealership, one that’s located at Hampton and 40. Okay? So you guys probably pass it all the time. It’s that big glass-

Liz Lenivy:

Right here.

Mary Anne Sedey:

Yeah.

Liz Lenivy:

Right

Mary Anne Sedey:

Next

Liz Lenivy:

Door. You want to go visit?

Mary Anne Sedey:

I’m not sure they’d want to see it. It’s a beautiful building. It really is. But this was another case, family-owned business. Family-owned businesses are often run very differently than big corporations. So what you’ll find is, for instance, they don’t have professional HR. Yeah. We had another case called Wilfong where it was another one run by one of these very, very arrogant, aggressive, I’m in charge kind of guys and he said, “We don’t need HR.” And this is a company that had millions and millions of dollars, 400 stores around the country and they said, “Your manager is your HR person.” Well, when your manager’s the one who’s doing the stuff, it’s kind of hard. Yeah. Anyway, Lincoln versus Tri-State Motors, we always called it the Mercedes-Benz case, was on behalf of two salespeople and they were wonderful clients. Again, one black, one white. Denise Liggin was the best salesperson in this dealership by far.

I mean, she had been there for more than 20 years. She adored her job. She loved her customers. She had people who came back. She mentored other people. And one of the people she mentored was her black colleague, Dorothy Robinson. Dorothy was young. She’d been there three or four years. She was doing very well. She was building a business for herself. She was marketing in the black community. She was really coming along and they were friends as well as colleagues and they were the only women in sales at this place for years. The owners hired a former police officer to be the sales manager. Now, police officers come in all varieties, but this guy was sort of stereotypical. He was very kind of … Well, he was a sexist. He was extraordinarily disrespectful to these two women who were making a ton of money for them, especially Denise.

When one of them would speak up in a sales meeting, he would say, “Be quiet.” Or he’d say, “Go stand over there.” When he wanted to get them to come into a meeting where maybe they were on the phone with a client, they have all these glass walls and he’d come and he’d bang on the glass of their offices and holler at them to get into the meeting. Now, if you’ve got enough money to buy a Mercedes-Benz, you’re not dealing with customers who are used to people being treated this way. And sometimes the customers just were appalled by how the women were treated. The men were tight. They would sit in the sales office, sales manager’s office, they laughed and talked. They had lunch together. And when Dorothy or Denise would walk in, because you always had to have your deals approved by the sales manager, they’d get real quiet.

Everything would be real quiet. There was a lot of yelling at the women and it was humiliating. And honestly, some of their coworkers, men and women, not women salespeople, but women in other jobs, like the receptionist testified for us at how they were treated. Then the treatment also extended into economic stuff. A big deal in car sales is leads. You got to have leads. Supposedly they had a system for distributing the leads and the men were getting way more than their fair share of the leads. You would split commission too sometimes on a sale where a man in these cases, like it was the woman’s customer, Denise had returned customers who were so loyal to her. And if she wasn’t there one day and some man talked to the customer who was coming back, even though he was there to see Denise, they’d give him half her commission once she sold the car.

Repeat customers would be … One of the stories the receptionist told, which I thought was so great, was that somebody comes in, she wants Denise, he wants Denise and Denise has been selling him cars for years and years and years and years. And Denise is not here. She’s really not going to be able to help you. So they’d steer people to the men. This guy, he just was a creep and he didn’t like women. Dorothy got disciplined a lot, only black salesperson disciplined a lot. I’ll give you a perfect example. She was a single mom. She would use her lunch hour to go to the school bus stop, pick up her kid, get her home, settle her down with some lunch and homework, and then she’d come back to work. And every now and then she’d be a few minutes late when the bus was late or something.

She was constantly being written up for this. The men went over here to yoga six to go to a yoga class, which I thought was interesting, good for them. But a yoga class is an hour and you have to get there and you have to change your clothes.

Elizabeth McNulty:

It’s also elective.

Mary Anne Sedey:

Yeah, totally elective. Yeah. But they were consistently late coming back from yoga class over their lunch hours. Never a word was said. And Dorothy also would stand up for herself and when she would stand up for herself, then they’d write her up again. Neither one of these women was promoted. These manager positions would open up all the time. Now, if I was them, I’d want Denise to be the sales manager, but women weren’t given those positions. They made numerous complaints. They would talk to the owner. They would talk to the owner’s daughter who was the general manager. Supposedly they would say, “Well, we’ll talk to them.” Nothing changed. It got worse. Finally, after years of this, they put it in writing and they said, “Well, we’ll investigate.” So they have their regular employment lawyer come in to do this investigation and the investigation was held in the big glass conference room because all the walls in this dealership are glass and they would call people in and you could see your coworkers going into the glass conference room.

And as this is going on, people just literally stopped talking to the two of them. All their coworkers stopped talking to them and Dorothy gets disciplined because she left one night, five minutes early. And it was a kind of a practice that people would leave early if there was no customers and the store closed at eight and they’d say people would go. Anyway, three, four weeks passed. They don’t hear anything. Nobody’s speaking to them. Everybody’s all up in arms. And finally they resigned in what we in our business call a constructive discharge and that’s kind of what led to it. The verdict for the two plaintiffs was $1.8 million and we then got 850,000 in attorney’s fees on top of that and it was a 0.5 multiplier that was applied. I always say this, I love sales cases because you know what? It’s in the numbers.

It’s not a question. They always try to say, “Well, they didn’t fill out their reports the way we wanted them to, ” or whatever it is, but it’s the numbers. The measure of success is how much to sell. And in this case, we had all these great corroborating witnesses because men were appalled by how these women were treated. And as I said, the receptionist who had no dog in this race. And the other thing was the jurors really loved these women. They were just great. They were just great women. So anyway, in fact, one of them who wrote me a long email when it was all over said, “We should have asked for more money.” I wish I’d thought of that.

Elizabeth McNulty:

You’re like, “Me too.” Exactly.

Mary Anne Sedey:

Well, give me a jury any day is my thought. And that’s why we’ve fought so hard about this issue. It’s really important to get in front of a jury. I will say this, as I said earlier with a really highly compensated person in a business role, I’m not sure that arbitration is such a bad thing given the promise you can have with a jury with somebody who’s making a lot of money. But yeah, we always want a jury trial. We don’t want to arbitrate.

Liz Lenivy:

So Mary Ann, there was a part of your presentation towards

Mary Anne Sedey: