department normally charged with help- ing employees get leave – would not do so. In fact, HR witnesses even testified that if the employee approached HR with all the information and documentation necessary to obtain a leave, HR would not initiate the leave; instead, it would just route the employee to Benefit Solutions or DLS. Normally, the best way to approach graphics is to make them as simple, clear and understandable as possi- ble. Here, however, we wanted to do something different. We wanted to con- trast the simple way that employees (including likely our jurors) would expect leave issues to be handled with the com- plex, confusing and circular procedures required by the defendant employer. Figure 9 is the graphic we used to make these points. A few thoughts about why we
believed this was an effective graphic. First, the top of the graphic shows the normal way that many people are used to getting leave at work – walking into HR and presenting leave papers. That process is simple, intuitive and typical of what jurors would expect. Second, we showed how this employer put up obstacles to leave by closing HR’s door to employees who needed medical leave – another of our major themes. Third, we showed how complicated, confusing and unnecessary the defendant employer’s policies are: an employee in California was required to call a call center somewhere on the other side of the country (Benefit Solutions). Then, the first call center would route the employee’s request to a second call center
Figure 9
in New Jersey (DLS). Then, the second call center (DLS) would have to call or mail leave papers to the California employee and, after DLS determined if leave was granted, it would then have to notify the employee’s local management – again, across the country. This just didn’t seem like a reasonable approach when compared to the simple process of walk- ing into HR, sitting down and asking for leave. Fourth, this graphic reminded the jury of what we believed was another important point: California employees were being relegated to call centers on the other side of the country. Indeed, this proved significant. Not only did the jury find that the company’s policies inter- fered with employee leave rights, but some jurors told defense counsel after the verdict that the company needed to get rid of call centers in New Jersey for California workers. We felt the theme that the company
“closed the door to medical leave” was a good one so we wanted to make liberal
use of it. Fortunately, the defense attorney helped us here. In his opening statement, he stated that “the keys to the benefits that the plaintiff wanted were in the plaintiff’s hands at all times.” From this, we used Figures 10-12 in closing to illus- trate that when our client and her father called HR and Benefit Solutions, they tried to use the “keys” to open the door to medical leave. But, instead, the compa- ny closed the door to our client’s leave requests by terminating her without grant- ing her leave protection. Another key issue in this case was the
jury understanding – and accepting – the admitted fact that Benefit Solutions (though an outside company) was the defendant employer’s agent and, there- fore, the employer was responsible for any acts or omissions by Benefit Solutions. This should not have been a problem: the defense stipulated to this fact and a jury instruction addressed it. Nonetheless, throughout the trial, often when the employer’s witnesses were backed into a corner, they tried in their testimony to shift blame to Benefit Solutions and away from themselves. Repeatedly, these wit- nesses would throw out excuses by saying things like “if we had known of that infor- mation, we would have granted her med- ical leave,” referring to the information that our client conveyed to Benefit Solutions in her series of phone calls after her discharge from the psychiatric facility. In closing, to counter this attempt to pass responsibility to Benefit Solutions while not accepting its status as the employer’s admitted agent, we first displayed the jury
Figure 10
Figure 11
Figure 12 APRIL 2011 The Advocate Magazine — 39
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