SCOTUS to hear USERRA discrimination case

With so many reserve service members returning home to a less-than-robust economy (I’m being generous), it shouldn’t be a surprise to find the number of USERRA violations has skyrocketed, according to

Last week, we reported on a Sixth Circuit case in which one such service member was fired because IBM refused to reintegrate him because he had fallen behind the technology while serving in Afghanistan. The Sixth Circuit upheld the firing in that case, in part because of procedural mistakes by the plaintiff, and in part because the veteran accepted a severance buyout.

Other service members have not been so lucky. The U.S. Supreme Court has granted cert to hear a case that veteran’s groups hope will curb the number of discrimination claims filed with the the Department of Defense’s Employer Services for Guard and Reserves unit.

In Staub v Proctor Hospital, Vincent Staub returned from service in Operation Iraqi Freedom, where he trained Army personnel on how to establish a radiology unit in a combat environment.

Before he was recalled, his supervisor had systematically disregarded his military obligations by scheduling him to work on weekends, knowing he needed one weekend a month for his reserve duty. She forced Staub to use his vacation days and posted bulletins asking his co-workers to volunteer to cover his shifts.

The supervisor told him and others his reserve duty was “bull[BLEEP]” and told him to “get the [BLEEP] out” of her office. She even went as far as to call the administrator of his military unit and asked for Staub to be excused. When she was told the weekend drilling was mandatory, she called the administrator an “[BLEEP]hole” and hung up on him.

Another supervisor referred to his military drill weekends as “Army Reserve bull[BLEEP]” and “a bunch of smoking and joking and a waste of taxpayers’ money.” Despite this, Staub had excellent performance reviews as late as four months before he was fired.

He was later fired for two incidents: one, in which he broke a rule that both he and another co-worker testified did not exist at the time he allegedly broke it, and two, for the heinous act of phoning his supervisor to say he was going to lunch with the same co-worker and not having that voicemail received before another supervisor decided to fire him. The other co-worker was not disciplined.

He sued the hospital for discriminating against his veteran/reserve status in violation of USERRA. A jury found the employer’s actions were largely motivated by Staub’s veteran/reserve status. The 7th U.S. Circuit Court of Appeals reversed the verdict, saying that the human resources vice president that delivered the news of his firing was not under the “singular influence” of the allegedly biased supervisors.

SCOTUS will hear the arguments in December.

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Casual Friday Finds The Most Unlikely Future Law Student

You meet a lot of interesting people in law school, some of whom took long and winding roads to get there.

Consider the case of Shon Hopwood. As a young man, Hopwood was a modern day Butch Cassidy, robbing five Nebraska banks, earning him 10 years in the federal hoosegow. [New York Times].

In prison, he became a paralegal, helping other inmates file certiorari petitions with the U.S. Supreme Court. One of them was so good that it impressed Seth Waxman, who was once the solicitor general.

The court received 7,209 petitions that year from prisoners and others too poor to pay the filing fee, and it agreed to hear just eight of them. One was Fellers v. United States.

“It was probably one of the best cert. petitions I have ever read,” said Seth P. Waxman, a former United States solicitor general who has argued more than 50 cases in the Supreme Court. “It was just terrific.”

Mr. Waxman agreed to take the case on without payment. But he had one condition.

“I will represent you,” Mr. Waxman recalled telling Mr. Fellers, “if we can get this guy Shon Hopwood involved.”

Hopwood is now reformed and out of prison, trying to get into law school. It’s a nice story.

Adventures in Frivolity Above The Law has a great feature called “Lawsuit of the Week” in which they usually make fun of some ridiculous lawsuit. I’ve probably linked to it here or on Twitter every week, because it’s always interesting.

This week features professional celebrity Lindsay Lohan, whose low self-esteem has led her to file a $100 million lawsuit against E-trade over its incredibly unfunny Super Bowl commercial.

The commercial features the regular E-trade baby in a webchat with a girl, who asks him if “that milkaholic Lindsay” was over.

Lohan’s claim is that the milkaholic is her. Even if it was, and boy, is it a stretch (for one thing, the baby is wearing undergarments), knowing what we know about satire and all… good luck with that.

Hopefully, you don’t know these people Inspired by Mitch Albom’s The Five People You Meet In Heaven, came up with four people lawyers won’t meet in solo practice.  [HT: Legal Blog Watch] (It’s worth a click if only for the great photo.) It’s a pretty good list, but certainly not exclusive.

1. "Jack the partner"

Egomaniac. Narcissist. Takes credit for everything. Belittles and bullies everyone around him. Schorn notes that this type is careful to insulate clients from other lawyers, lest he lose control.

2. "Chad the associate"

Friendly back-slapper and suck-up whose true motivation is to keep track of hours billed by those with whom he is competing for partnership. "Gossips like a junior-high cheerleader and never misses a chance to second-guess a peer’s bad outcome in the courtroom."

3. "James the office manager"

Manages the office "as if it were Yugoslavia circa 1971" with too many forms, arbitrary rules and favoritism. Posts Dilbert-caliber signs in the break room. ("Everyone WILL limit their soda consumption to a REASONABLE amount, or we WILL switch to GENERIC. Thank you.")

4. "Brian the wellness coach"

The "doughy man in an ill-fitting polo" who roams the office once a week badgering people about "good health practices." Also forces chit-chat about diet and exercise and leaves pamphlets on lawyers’ desks about heart disease, Schorn says. (In my own limited experience with the Brians of the world, there is also invariably some effort to create a massage or "chill-out" room that falls apart after about six months when "Jack the partner" needs the room for a document review).

I’m not comfortable being called the wellness coach, but I probably do a little of that (minus the “doughy” part). Any I don’t want a chill-out room. I just want an office.

Legal Blog Watch came up with one of its own:

5. "Eugene the socially inept ‘genius’"

Eugene is incapable of holding a conversation about his visit to Target without side-tracking into a discussion about the potential Sherman Act ramifications. He will never have a client of his own and may never even meet a client. But if you want a 50-page memo on whether federal jurisdiction exists in your new case, Eugene is your man.

What about:

6. Stacy the seductress

Stacy knows she has to do something to step out from the crowd. She eats a diet of only gummi bears and Citroen. There isn’t a partner who doesn’t get a “wink and a smile,” no matter how much he reminds her of her father.

Or my favorite:

7. Joe the Resume Padder

Joe has more titles than Apollo Creed. PhD. CPA. JD. LLM.  Only he didn’t actually earn all of them. Sure, he started the program but he didn’t finish. He wrote a thesis but his professor didn’t accept it because of its lack of anything resembling a point. But people ask him for help in his are of expertise, and he gives it: right after he consults with a friend of his at another firm who tells him the answers and where to find them.