Wednesday, February 10, 2016

PART TWO ON DETERMINING MEASURE OF DISCIPLINE: McPADDEN v. WAL-MART

On December 9, 2015, I wrote an article in regards to a November 3, 2015 decision by the New Hampshire federal trial judge in the case of Maureen McPadden v. Wal-Mart. In that article I discussed the November 3, 2015 decision of the judge allowing McPadden’s claims of discrimination and retaliation to go to a jury. McPadden had been a long-term employee of Wal-Mart where she worked as a pharmacist at several stores including the one at Seabrook, New Hampshire. McPadden claimed, in part, that she was discriminated against because she was a woman and that because a manager had been frustrated with her because she continued to complain about the pharmacy being understaffed thereby not being able to satisfy customer’s needs and possibly putting them at risk for filling a wrong prescription. McPadden had also gone out on medical leave due to stress related to the understaffing at Wal-Mart.

McPadden had lost her key to the pharmacy and Wal-Mart fired her. She opined that the manager had influenced her superiors in their decision to fire her for losing her key. Wal-Mart had the view that since the decision-makers were not her manager and that they did not know about any animus her manager might have had against her when it decided to fire her, she had no claim. The judge noted that obviously Wal-Mart had a legitimate reason to make sure that pharmacists complied with all federal and state law including preventing access to drugs in the pharmacy. Therefore, taking disciplinary action a pharmacist losing a key was understandable. However, at issue was the level of discipline. Whether a loss of a key was grounds for firing depended on McPadden’s disciplinary record, including what type of warning she received in the past for other performance problems and whether Wal-Mart fired all pharmacists for a first time losing of a key. The manager advised the supervising decision-makers of a disciplinary record that was such that the key loss warranted the firing and if the manager’s description of the disciplinary record was tainted by discriminatory animus, the judge noted that a jury could reasonably find Wal-Mart liable for discrimination. The judge let the case go to the jury and the result was on January 27, 2016, the jury found in favor of Maureen McPadden for: gender discrimination under federal and state law; retaliation for having reported alleged violations of HIPAA and/or safety rules related pharmacies under the New Hampshire Whistleblower protection; and wrongful termination. The jury in its verdict form awarded McPadden $164,093 in back pay, $558,392.87 in future lost wages, $500,000 in compensatory damages, and $15,000,000 in punitive damages under federal law and state law, which calls them enhanced compensatory damages.

While Wal-Mart will certainly seek to reduce the damage amount and thereafter likely appeal the decision, this case is a serious reminder to those who make decisions as to terminating employees to investigate the source of information they receive. While the story of management taking issue as to a pharmacist losing her keys could be compelling in a vacuum, the fuller story told by McPadden was obviously compelling to the jury since it not only granted her actual damages she suffered but decided to punish Wal-Mart to the tune of $15,000,000 for its treatment of McPadden.

In conclusion, decision-makers need to pay careful attention to the information they receive and the source. Often it would be appropriate to find out from the accused whether or not there are others the decision-maker should speak with to determine if there is information that supports the accused employee’s position. The fact that the person who decides to fire the employee is free from discriminatory or retaliatory animus does not protect the company if the information that decision-maker relied on was tainted by a manager’s or co-employee’s discriminatory or retaliatory animus.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.

Tuesday, February 9, 2016

Radio Program: February 9, 2016 "How the Divorce Court Divides Property"

February 9, 2016: Attorneys J. Daniel Marr and Kevin P. Rauseo discuss "How the Divorce Court Divides Property".

Monday, February 8, 2016

Parents With A Massachusetts Child Support Order Must Be Careful When Modifying The Child Support Decree In New Hampshire

The New Hampshire Supreme Court’s decision In the Matter of Ball and Ball illustrates the importance of seeking the advice of an attorney familiar with the Uniform Interstate Family Support Act, more commonly referred to as “UIFSA”. In the Ball case, the parties were divorced in Massachusetts in 2004. The Massachusetts divorce decree provided that the father was obligated to pay child support until the child reached age 23 if the child is a full-time college student, or 21 if not in college but principally dependent on the mother for support, which is in accordance with Massachusetts law.

Both parents and the child moved to New Hampshire in 2008 and thereafter registered the Massachusetts support order in the New Hampshire court. The parties also entered into a stipulation to modify the child support order. The parties specifically agreed to strike the duration of child support defined in the Massachusetts decree and agreed that New Hampshire law would govern the duration of child support.

When the parties’ daughter reached age 18, the father petitioned the New Hampshire court to terminate child support as the child was turning 18 and had graduated high school, which is consistent with New Hampshire law. Mother objected claiming that child support should continue pursuant to Massachusetts law and should be payable to at least until the daughter turned 21 or, potentially, 23 if she is a full-time college student. The trial judge denied the father’s petition to modify, relying on the provisions of UIFSA which state that a New Hampshire court may not modify any aspect of the Massachusetts child support order that are not modifiable under Massachusetts law. The father then appealed the trial court’s decision to the New Hampshire Supreme Court.

On appeal the New Hampshire Supreme Court recognized that under Sections 49 and 51 of UIFSA, a New Hampshire court is generally prohibited from modifying the duration of a Massachusetts child support order as Massachusetts law does not permit a Massachusetts court to modify the duration of child support. However, the Supreme Court explained that the mother lost her right to contest the modification of the child support duration as she agreed to that term in the 2008 stipulation and never sought a timely appeal to the New Hampshire Supreme Court. As such, the mother’s failure to take such actions in 2008 prohibited her from contesting the earlier modification.

The Ball decision is instructive on the parties’ rights to seek the advice of experienced counsel when attempting to modify another state’s child support order in New Hampshire. Failure to seek timely advice and to protect the child’s rights may have significant financial consequences. In the Ball case, mother’s lack of understanding of her rights under UIFSA resulted in a significant loss of financial support to her and her daughter. The law is a complex system which is made further difficult when dealing with the laws of more than one state. As such, it is important to seek legal counsel when dealing with complex matters and there are often significant strategic considerations when deciding how to proceed. When faced with these issues, it is usually in the parent’s best interest to consult with an attorney who is experienced in handling interstate support issues to determine the best course of action. If you have any questions regarding a child support case involving one or more states, please contact one of the attorneys at Hamblett & Kerrigan for a consultation.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo at krauseo@nashualaw.com.

Thursday, February 4, 2016

BUYER BEWARE - SALES OF UNSAFE MOTOR VEHICLES

On January 26, 2016, the Supreme Court issued decisions concerning the sales of unsafe vehicles in New Hampshire. New Hampshire is one of the few states that allows dealers to sell unsafe vehicles (meaning, vehicles that will not pass a state safety inspection) to the public. To do so, however, the New Hampshire Division of Motor Vehicles requires the dealer to present the purchaser with a number of documents that clearly state the vehicle is not safe and will not pass a New Hampshire inspection. The purchaser must specifically acknowledge receipt of those documents.

In the cases of Roy v. Quality Pro Auto, LLC and Smith v. Milko Pesa two purchasers argued they were entitled a refund after the vehicles they purchased were unable to pass a motor vehicle safety inspection. Despite using different arguments, however, both purchasers failed to convince the New Hampshire Supreme Court. The Supreme Court held that the prominent disclaimers on the purchase documents, and the buyer’s signatures on these documents, meant the buyers were both aware of the defects in the vehicles and understood that the dealers were making no warranties concerning the quality of the vehicle. The Supreme Court further held the Uniform Commercial Code, which specifies that goods must be “merchantable” (that is would meet ordinary levels of quality) does not apply in situations where the parties agreed that the vehicles were not merchantable (that is, undriveable).

Both cases emphasize the importance that any purchaser of a used car should carefully read any document provided by the seller, especially documents which attempt to waive warranties or advises the purchaser that the vehicle will not pass a safety inspection. If the purchaser has received and signed these documents and thereafter elects to go forward with the purchase they will probably be unable to rescind the purchase should be rescinded when the vehicle is found to be unsafe.

If you have questions regarding your purchase of a vehicle, contact an attorney at Hamblett & Kerrigan.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at apiela@nashualaw.com.

Tuesday, February 2, 2016