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Archives for October 2015

The Growing Problem of Age Discrimination

Jon Allison

Jon Allison’s Monday Blog
A couple of weeks ago I wrote about college professors and their reluctance to retire.  They are, of course, in the position of being able to choose to stay on because those who have tenure can’t be terminated unless there is cause to do so.  Even Professor Marcy, the Astronomer who resigned after pressure from colleagues following a sexual harassment investigation, wasn’t fired.
The majority of us do not have the job security of college professors and many older workers are experiencing age discrimination.  Take the example of Leslye Evans-Lane.  She left her teaching job in New Mexico when she was 58 because she and her husband were moving to Oregon.  She assumed that with her extensive experience she’d find work.  Instead, it took 2 years to find a part-time teaching gig.  Then, after six months on the job, the position became full-time and she was terminated and replaced with a younger teacher.  She wasn’t even interviewed for the full-time position.
According to AARP two-thirds of workers age 45 to 74 say they have experienced or witnessed age discrimination.  It’s not likely to get better.  There are a lot of baby boomers and people are living longer.  Many older workers are reluctant to retire due in part to concerns over having enough in savings to last as well as simply wanting to work.  Employers on the other hand have concerns about job performance decreasing with age, although research does not support those concerns.  It’s also less expensive to employ younger workers.  This article goes in to more detail.


Duke Energy Settles Fraud Class Action For $80 Million

George Reul

After a near decade long legal battle, lawyers representing Ohio ratepayers in southwestern Ohio and lawyers representing Duke Energy filed a Stipulation today in federal district court in Columbus, Ohio, seeking preliminary approval of an $80,875,000 settlement.  (Anthony Williams, et al. v. Duke Energy International, Inc., et al., United States District Court, Case No. 1:08-CV-00046)

After seven years of legal battles, the settlement followed four months of intensive negotiations that began shortly before the trial of the class action was to begin on July 27 of this year. The trial was delayed after the parties advised Chief Judge Sargus of significant progress toward a cash settlement, but with many technical issues involving payments to eligible class members still needing resolution. The class is composed of over one million residential and non-residential electric customers from 2005-2008, all with varying electric usage.

Randy Freking, one of the lead counsel for the class, stated: “We are very happy to have assembled a team to represent very committed clients who withstood years of denials from Duke, and we ultimately recovered an amount $8 million more than the payments by Duke that we always believed were illegal rebates. We are especially excited that some of the settlement will go toward energy efficiency programs in the region, and those funds will have a multiplier effect so that the total value of the settlement will be even greater. The work is not done, but this is a great victory for the ratepayers.”

The settlement provides for a fund for direct payments of $40-$400 to residential customers who make a claim, a fund for direct payments of $300 -$6,000 to non-residential customers who make a claim, and a fund for energy efficiency programs to be administered by a five person board over the next several years. Identified class members will receive a Notice and Claim Form within 60 days, and Judge Sargus will conduct a fairness hearing on April 18, 2016 to determine whether the negotiated settlement is reasonable for class members. Judge Sargus will also decide the amount of attorneys’ fees and expenses to be paid from the settlement.

One individual, two small businesses, and a non-profit organization filed the case in 2008 alleging that an illegal and fraudulent rebate scheme was initiated by Duke Energy’s predecessor, CG&E, a public utility serving southwestern Ohio. In 2004, CG&E filed a Rate Stabilization Plan whereby CG&E sought a significant increase in electricity rates it could charge to residential and non-residential customers. Various parties intervened to object, including three major trade associations. 22 customers belonging to these trade associations suddenly, and without explanation, withdrew their objections and began supporting CG&E’s request for a rate increase.

Plaintiffs claimed that this sudden reversal was easily explained: CG&E had secretly arranged for most of the charges comprising the rate increase to be refunded to the 22 customers. The refunds would not come from CG&E directly but from one of its non-utility affiliates. CG&E drafted a series of “option agreements” that were entered into by the 22 favored customers and an unregulated CG&E affiliate, Cinergy Retail Sales. For four years (January 1, 2005 through December 31, 2008), the favored customers received refunds totaling $73,151,788 from Cinergy Retail Sales. The rest of CG&E’s electricity customers—including residents, businesses, non-profit organizations, and municipalities—received no such rebates.

The alleged illegal scheme came to light after a whistleblower alleged in state court that he was fired for protesting the quarterly refunds to the 22 customers. His case also settled shortly before trial.

Plaintiffs contended that the actions of CG&E (and later Duke Energy) harmed electricity customers under a federal racketeering law, and that Duke engaged in common-law fraud and civil conspiracy. Plaintiffs argued that, by secretly providing rebates to only 22 customers, rather than across the board, CG&E and Duke acted contrary to public representations made to its ratepayers and to others that those rebates were mandatory and unavoidable, essentially engaging in a conspiracy to commit fraud and violate Ohio’s anti-rebate statutes. Duke denied all allegations.

“Duke’s secret payments to 22 of its largest energy customers ten years ago left hundreds of thousands of ratepayers who played by the rules out in the cold,” said Bill Markovits, another lead counsel for the class. “After 8 years of tough litigation, this settlement will provide some compensation to those hundreds of thousands of ratepayers in the form of cash payments,” said Paul DeMarco, also lead counsel.

The case was litigated in the court of appeals and in the U.S. Supreme Court, as Duke attempted to have the highest court accept the case for purposes of dismissing it. After that attempt was unsuccessful, Judge Sargus certified the case as a “class action” and held a hearing on Duke’s request for “summary judgment” to prevent the case from going to trial. The parties resumed earlier unsuccessful efforts to settle the case shortly after the summary judgment hearing.

The four Class Representatives and the Class were represented by two law firms: Markovits, Stock, and DeMarco (Bill Markovits, Paul DeMarco, and Louise Roselle primarily); and Freking and Betz (Randy Freking, George Reul, and Kelly Myers, primarily). For more information, contact Bill Markovits or Randy Freking.


UC Berkeley Buries Harassment: Colleagues Force Professor Out

Jon Allison

Jon Allison’s Monday Blog

Astronomer Geoffrey Marcy, a leader in the search for life on other planets, resigned last week from the University of California, Berkeley, following an investigation into sexual harassment allegations. However, he was not asked to resign by the University. Far from it. The University had conducted a six-month investigation of Marcy’s conduct and determined that Marcy had routinely violated the University’s sexual harassment policies over a 10 year period. Marcy was found to have engaged in unwelcome kissing, groping, and massages of at least 4 students over the years. The University wanted to keep it quiet. After wrapping up the investigation in June, rather than discipline Marcy, the University told him to be on his best behavior or he might be disciplined in the future.

After learning of the findings months later, faculty at Berkeley were concerned that the University was sending a message that there were no consequences for such conduct and that the University’s handling of the situation would encourage rather than discourage similar behavior from others. 24 faculty members in the department of astronomy signed off on a letter saying they did not believe Marcy could continue to perform his job as a faculty member. A couple of days later, Marcy resigned. Marcy was the head of a $100 million dollar project searching for evidence of life on other planets and was considered a possible candidate for the Nobel Prize.

Does UC Berkeley Astronomer Marcy’s Downfall Signal Shift in Attitudes Over Sexual Harassment?

Did UC Berkeley Turn a Blind Eye to Harassment?

Geoffrey Marcy’s Berkeley Astronomy Colleagues Call for His Dismissal


Jon Allison’s Monday Blog

Jon Allison

Resistant To Retirement

Last week NPR ran a story titled “On Campus, Older Faculty Keep On Keepin’ On.”  If they have the option, many just aren’t ready to retire in their sixties.
Faculty who have achieved tenure cannot be terminated without cause and there is no mandatory retirement age.  One study found that sixty percent of faculty planned to work past age seventy and fifteen percent planned to work past age eighty.  Ninety percent of faculty who planned to work past the typical retirement age reported it was because they loved their jobs, while more than forty percent reported that one reason was concerns over financial security.  Currently, one third of faculty are age fifty-five and older compared to twenty percent of the rest of the workforce.
Universities don’t necessarily want tenured faculty hanging around so long.  When older faculty leave universities can replace them with cheaper, part-time and adjunct-instructors.  In fact, the percentage of faculty who are part time has climbed from twenty-two percent in 1969 to sixty-seven percent today.
Universities offer buyouts to encourage older faculty to leave, but often there is little interest.  Recently faculty at Hofstra University’s Law School were offered two years of salary to leave and no one accepted.  At Nebraska, only seventy-nine out of two hundred forty-five eligible faculty accepted a one year salary buyout in 2010.
The NPR story is here . . .


Fired for Being HIV Positive

Jon Allison

According to a lawsuit filed earlier this month in the United States District Court for the Western District of Kentucky, Zoo Printing terminated two of its employees from its Louisville facility for being HIV-positive in violation of the Americans with Disabilities Act. According to the suit, one plaintiff, who had been employed for approximately one month as a boxer, and who was able to perform all of the essential functions of his job, was terminated shortly after requesting a shift change so that he could make an appointment for HIV treatment. A second plaintiff, who worked in human resources, was terminated two weeks after submitting insurance paperwork which showed that he was undergoing HIV treatment. The second plaintiff had also recently complained that he was concerned that Zoo Printing was discriminating against individuals with disabilities following the termination of the first plaintiff.

Subway Restaurants is accused of having done the same thing at its location in Sheridan, Indiana. An HIV positive employee told his manager in confidence of his diagnosis. That manager passed the news up to her boss and, shortly after the disclosure, the employee was told that he was going to be let go because he was a liability to the company despite the fact that he was a good worker and capable of performing all of the essential functions of his job. A lawsuit challenging that termination is now pending in the United States District Court for the Southern District of Indiana.

We’ll see how these two cases play out in court.

Zoo Printing (Louisville Printing Firm) and Subway Restaurants