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Lindsey v. Foti – what happens when the employee claims their misconduct was caused by a disability?

“AN EMPLOYER MUST BE PERMITED TO TERMINATE ITS EMPLOYEE ON ACCOUNT OF EGREGIOUS MISCONDUCT, IRRESPECTIVE OF WHETHER THE EMPLOYEE IS DISABLED.”
Employers constantly have to perform a balancing act when disciplining their employees.  The employer must balance the safety and professionalism of its workplace and its workplace rules with the numerous laws which protect employees from discrimination.
But what happens when the employee claims their misconduct was caused by a disability?
The First Circuit Court of Appeals in Louisiana recently answered that question when Whitehead Law Firm successfully defended the employer, Louisiana Department of Justice, in Lindsey v. Foti, 11-0426 (La. 1st Cir., 11/09/11).
A staff attorney was terminated after making threatening statements in the workplace.  However, the employee claimed that his conduct was caused by his disability and therefore the employer discriminated against him by terminating his employment.  After the Whitehead Law Firm attained a successful Motion for Summary Judgment for the Louisiana Attorney General’s Office, the employee appealed to the First Circuit.  Analyzed under the Louisiana Employment Disability Law (“LEDL”), the Louisiana First Circuit held that “the LEDL does not provide protection for . . . unacceptable and threatening conduct.”
“The First Circuit used solid analysis” said lead counsel Jack Whitehead.  “The anti-discrimination laws provide a valuable shield to protect employees from discrimination, whether based on race, sex, age, or disability.  The Court wisely determined that the anti-discrimination laws cannot be used as a sword to promote violent, threatening, or inappropriate behavior in the workplace”.  The Louisiana Supreme Court declined to overturn the First Circuit.
*  To read the full case, see, Lindsey v. Foti, 81 So. 3d 41 (La. 1st Cir. 2011).

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Local Government

Recently, the Whitehead Law Firm successfully helped a national client overcome the limitations of a local sign ordinance which restricted the size and height of on-premises signs.  After substantial preparation of the evidence, the firm persuaded local government to grant a waiver which adequately kept the business competitive in the area.  The process was detailed intensive and required extensive negotiations to ultimately balance the concerns of the business owners and the Municipal goals of regulating commercial signs.

Whitehead Law Firm reversed a state decision to remove a critical traffic control feature at Hammond Aire Plaza, a nearly 400,000 square foot shopping center with one of the city’s busiest intersections.  The Louisiana Department of Transportation and Development planned to remove the traffic light at the intersection which provided crucial access to Hammond Aire Plaza, particularly for drivers making left hand turns.

“What would have happened if you could not take a left-hand turn out of the shopping center?” Mr. Whitehead was asked.  “Many of the people who lived in that area would have stopped shopping there.”  The largest publicly held real estate investment trust in the nation had hired Whitehead Law Firm to convince state officials to retain the traffic light, ensuring a continuous flow of traffic to dozens of retail stores in the plaza.  Saving the traffic light also preserved 500 local jobs.

“It helped keep that commercial development viable and profitable,” Mr. Whitehead stated, “because in retail, it all comes down to safe access”.

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Private Property

Whitehead forges homebuilder solution 

BATON ROUGE, LA – The Whitehead Law Firm sharpened a gray area in Louisiana property law by providing legal advice to lawmakers and tax assessors during the 2010 state legislative session.

House Bill 1471, authored by state Rep. Hunter Greene, approached the tricky situation of how taxes are applied to new speculative homes that have yet to be occupied.

Working with Greene, homebuilders and assessors, Jack Whitehead forged a legal solution that enables government to recognize mitigating factors in the valuation of a new never-occupied home.

Assessors are now required to consider the estimated holding time needed to sell the property, expenses incurred during the holding period, and financing and economic risks associated with the holding period, to determine the fair market value. Before, assessors could choose one of several approaches for determining market value, at their discretion.

“The change in ad valorem tax law helped homebuilders and their respective assessors understand the complexity and the uniqueness of homes built for speculation,” Whitehead said.

Louisiana Governor Bobby Jindal signed the new bill into law in July, 2010.

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Complex Litigation

A group of contractors and design professionals turned to the Whitehead Law Firm for solutions when a group of banks and developer misrepresented material financial issues. Faced with multi-million dollar consequences, Whitehead Law Firm successfully navigated its clients over three years through treacherous issues, shifting exposure away from the clients. The firm used offensive Bankruptcy maneuvers while deftly placing the ultimate issue in an appropriate forum. The law firm negotiated a multi-million dollar risk to a settlement under six figures.

Combining the firm’s extensive experience and knowledge, resources and business acumen minimized an unwinnable situation and saved the clients’ business future.

Starting in December 2007, Whitehead Law Firm stood by its client starting with a simple Materialman’s Lien on ethanol distillation plant, through litigation at the Federal District Court level, up and down through Appellate Court, and on into Federal Bankruptcy Adversarial proceedings.  Out of over 20 Claimants, Whitehead’s client’s claim has been upheld, and will be fully paid.

Whitehead Law Firm resolved scores of Fair Labor Standards Act claims in a national class action for Hurricane Katrina laborers.

During the British Petroleum oil spill off the Louisiana coast, the Whitehead Law Firm assisted in placing response companies in the forefront of implementing remedies.

Over 25 years Whitehead’s firm has had many successful jury verdicts in both rural and urban Parishes, covering various issues of liability or defense.

Whether as plaintiff or defense counsel, understanding jurors and judges, and how to simplify legal concepts are hallmarks of Mr. Whitehead’s efficiency in a court room.

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Retaliatory Discharge

The Whitehead Law Firm helped relieve a Department Head from unfounded claims of retaliatory discharge in an employment related matter.  Wilmer Dane vs. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, et al, Middle District of Louisiana, Civil Action -7-138. “Employers face many risks in the workplace. Claims of Retaliation are commonplace when businesses use sound reasoning for personnel changes. What is most disheartening is when employees attempt to distort a manager’s reputation for their own gain. In this litigation, the Court granted our Motion for Summary Judgment and relieved a tremendous amount of personal stress caused to our client” said Jack Whitehead.

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American with Disabilities Act

The Whitehead Law Firm successfully concluded an American with Disabilities Act Claim by a Louisiana Department Safety and Corrections  employee who was found sleeping while on duty.  Robert Shortess vs. State of Louisiana, et al.  United States District Court, Middle District of Louisiana, Civil Action 07-523.  The Court granted a Motion for Summary Judgment in favor of the State of Louisiana after careful analysis of the facts and applicable law. “This ruling provides a clear precedence that Louisiana Department of Public Safety and Correction should and must discipline corrections officers who fail to perform to their job duties,” said Jack Whitehead, “we are honored to represent Louisiana and  help carefully consider the facts and circumstances.”

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American Red Cross

Mr. Whitehead was selected to join the American Red Cross Board of Directors for the Louisiana Capital Area Chapter.  “The American Red Cross is a significant vital component of our community. It responds to every house fire in a ten parish region, helps families stay in contact with the sons and daughters in the military and serves our community in times of natural disaster. I am honored to serve,” said Mr. Whitehead.  As Chair of the Clara Barton Cabinet, Mr. Whitehead will help spearhead philanthropic activities across the Capital Area. He joins a number of other members of the Louisiana bar who actively support and volunteer their time at the American Red Cross.

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Business Property Taxes

In Louisiana, local government continues to ask the business owner to shoulder  a greater portion of property taxes. Schools, law enforcement and hospital districts are a vital cog to a community and there is a time when an industry becomes over burdened with local taxation. Our firm has years of experience with finding an open dialogue with Parish Tax Assessors to reach fair solutions.

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