Case in Focus Reprint from December 27, 1996: Jury Dismisses Worker’s Claim of Age Bias

Reprinted with permission from the Daily Journal Corporation CASE IN FOCUS December 27, 1996, Verdicts & Settlements, CASE IN FOCUS —————————————————————————————-

Type: Business law, constructive discharge, demotion. Verdict: Defense verdict. Case/Number: Rosemary Bockmiller v. U.S. Divers Co., Inc.; 752857 Court/Date: Orange Superior/Nov. 22, 1996. Judge: Commr. Jane D. Myers, Dept 10. Attorneys: Plaintiff, William C. Johnson (William C. Johnson & Associates, Long Beach); Robert B. Schachter (Hitchcock, Bowman & Schachter, Torrance). Defendant, James L. Morris, Sandra Young (Rutan, LLP, Costa Mesa). Technical experts: Plaintiff — Richard A. Palfin, Ph.D., economist, Palo Alto. Defendant — Michael Ward, Ph.D., economist, Santa Monica.

Facts: Plaintiff Rosemary Bockmiller, a 58-year-old woman, worked for defendant U.S. Divers for 31 years, the last nine years as a credit manager. In June 1995, the defendant company underwent a reorganization in which the plaintiff’s job was eliminated. The plaintiff was offered a non-exempt job reporting to her former assistant manager. The plaintiff refused the job and left the defendant company. The plaintiff was paid 10 weeks severance pay, but refused an enhanced severance agreement. The plaintiff has not found regular full-time employment since leaving the defendant company. The plaintiff brought this action against her former employer based on age discrimination, constructive discharge, breach of implied covenant of good faith and fair dealing and wrongful demotion theories of recovery. Contentions: The plaintiff contended that her working conditions were intolerable due to unwarranted criticism by her boss and due to having her authority usurped by her assistant. The plaintiff also contended that the reorganization was age-biased and that the offer of another job was illusory. The defendant contended that the elimination of the plaintiff’s job was warranted by legitimate non-discriminatory reasons; that she was not subjected to working conditions that constituted a constructive termination; and that the plaintiff was not wrongfully demoted. The defendant also contended that the job the plaintiff was offered closely mirrored the tasks she actually was performing; and that the plaintiff had not made reasonable efforts to mitigate any alleged damages. Jury Trial: Length 10 days; Poll 11-0 (all issue); Deliberation 1 hour. Settlement discussions: The plaintiff made a settlement demand for $675,000, which was increased to $750,000 and was then reduced to $375,000. The defendant made a C.C.P. §998 offer of compromise for $75,000 10 days before trial. Settlement conference: A settlement conference was held on October 25, 1996 before Judge Jane Myers. It did not resolve the matter. Other Information: The verdict was reached approximately one year and two months after the case was filed. Separate Article Sincerity ‘Makes A Big Impact On Juries’ Reprinted with permission from the Daily Journal Corporation Litigator Profiles Name: James L. Morris Name of Firm: Rutan, LLP Location of firm: 611 Anton Blvd., Ste. 1400, Costa Mesa, CA 92626 Education: Georgetown University Law Center (J.D., 1977); Duke University (B.A., Magna Cum Laude, 1974). Affiliations: State Bar of California, Orange County Bar Association (Labor and Employment Law Chairperson 1992-1993), American Bar Association and Texas State Bar. Publications: “Civil Rights Litigation Under Section 1983,” Texas Practice Guide (2d ed. 1985). Length of time practicing law: 19 years Types of cases: Employment related litigation and counseling matters on behalf of management, including defense of wrongful termination, discrimination and sexual harassment claims, labor-management relations matters, wage-hour compliance, personnel policy matters and unfair competition matters relating to employment. Background: Morris grew up in Aiken, a small town in South Carolina’s “horse country,” during the emergence of the ’60s civil rights movement in the South. “When I was growing up . . . racial divisiveness and mistreatment were commonplace. Today, thankfully, significant healing has occurred. Aiken now is perhaps best known — somewhat incongruously — as the home of both Strom Thurmond and ‘Refrigerator’ Perry.” Morris’ father, a chemical engineer with DuPont who worked at a nuclear power plant, had a sense of “what’s right” and helped break down racial barriers in the community by promoting workplace diversity and integration of the church. Morris said that the experience of growing up in a small town during this time taught him a lot about the importance of personal values and helped influence his decision to become a lawyer. During college, Morris was active in politics, but despite going to law school in Washington, D.C., decided not to pursue politics as a vocational interest. Morris was undecided between becoming an employment or antitrust lawyer, but clerking with Morgan, Lewis & Bockius’ labor law department persuaded him to opt for employment law. “It’s a choice I’ve never regretted. Employment law has a real human interest side, as well as being intellectually challenging. It also offers a great blend of litigation and client counseling opportunities.” Morris began his career in Dallas, Texas with Gardere & Wynne, and moved to Orange County in the early 1980s to join Musick, Peeler & Garrett’s labor department. In 1985 he joined Rutan as a partner, and since 1987 has headed the firm’s employment law practice. Keys to success: Morris’ keys to success are a strong focus on preparation and an understanding of the facts and personalities involved in a case. “A client once commented ‘The devil’s in the details.’ That’s nearly always true.” Morris added: “Success in employment law also involves staying on top of fast-changing statutory and case law developments.” Favorite trial moment: His favorite moment involved “a once-in-a-lifetime bit of testimony that ended the case on the spot.” In a San Diego labor arbitration in the mid-1980s, the grievant had been discharged for allegedly falsifying a bereavement leave to attend her grandfather’s funeral in Kansas, and was seeking reinstatement and back pay. “The grievant had covered her tracks fairly well, and even had an annotated map of the United States showing the route she said she drove to Kansas.” Through a fair amount of sleuthing, however, Morris discovered that the grandfather actually had died in San Diego several years earlier, and Morris obtained the obituary from a San Diego newspaper. After the grievant testified on direct to the entire story of her trip to Kansas, the funeral and associated events, Morris confronted her with the obituary and her evident fabrication of the entire episode. “Her response was priceless. She looked me straight in the eye and with a totally straight face, exclaimed, “I just don’t know what to say. The man in the casket sure looked like my grandfather!” The union immediately asked for a recess, dismissed the grievance and apologized for having brought it to arbitration. Practice pointer: “Know your case better than the other side does. Present yourself at all times with sincerity and trustworthiness. Judges always appreciate it, and it makes a big impact on juries, too.” Personal: Morris is married to Vicki Morris, a former elementary school teacher. They enjoy golfing together and traveling as time permits. They have no children, but both are active as “Special Friends” to abused children who live at the Village of Childhelp, a residential care and treatment facility in Beaumont. Morris credits his wife as “the key to whatever success I’ve had. She’s incredibly bright, perceptive and supportive. She gives me many valuable insights about how to approach witnesses and juries.” What other lawyers say about this attorney: Joe Posner of Joseph Posner Inc. in Encino described Morris as “very tenacious, intelligent and thorough.” Posner added: He’s a formidable opponent — you’ve got to watch him very carefully, because he exploits every angle.” Timothy J. Swift of Hews, Munoz & Swift, Santa Ana, stated: “I can unequivocally give him a great recommendation. We were on opposite sides in a trial and he obviously knew his stuff.” He added: “He is very courteous and professional . . . everything a lawyer should be.” Professor Maryann Jones, Irvine, praised Morris as a “tireless hard worker on behalf of his clients who leaves no stone unturned. He is extremely ethical and does not resort to trickery.” She said: “When I think of an example of an attorney my law students should model themselves after, [Morris] comes to mind at the top of the list.” Donald J. Wynne of the Law Offices of Donald J. Wynne, Tustin, has been involved in very complex litigation with Morris. He stated that Morris “is always prepared and leaves no room for chance. You can expect that Jim can rebut any surprise you throw at him. He has a very strong presence in front of the jury and carries himself well. He is a credit to the profession.” For further information on this topic contact: Jim Morris at (714) 641-3483.