Tie Goes to the Runner


In late May a Houston jury issued a $3 million dollar plaintiff’s verdict against National Oilwell Varco.  The jury awarded Plaintiff Manasseh Simmons $775,000 in back pay and $2.5 million dollars in punitive damages based on violations of various anti-discrimination laws.  A few days later, the case settled for an undisclosed amount.

I don’t know anything about the allegations in the case or the defenses of National Oilwell.  For whatever reason the jury was not happy with the actions of the employer. The result confirms a truth that all employer/defendants must factor into the claims they are defending – juries tend to identify with employees not employers.  The reason is pretty simple – most people have been employees at some point in their lives.  Most people have not been business owners or in an HR decision making position for an employer.  Anytime an employer is considering a claim this relative position must be considered.

When I was a a younger lawyer we were defending a breach of contract case filed by an ex-executive.  The executive claimed he was owed additional compensation.  The company claimed he was not because part of the additional compensation was based on him relocating to the Dallas area.  We were convinced there was no way the jury would find he had relocated and was entitled to more money.  The executive didn’t move his family, didn’t change his address, didn’t sell his house. didn’t buy a house in Texas, and didn’t change his driver’s license to Texas.  There was nothing that indicated he had relocated other than he would fly down on Monday, live out of a hotel during the workweek, and then fly back home on Friday.

The jury didn’t care.  It found the company breached his contract and awarded him the additional compensation.  I talked to some of the jurors after the result.  They were decent people with no animus against my client or anything along those lines.  They simply concluded that he relocated and deserved his money.  I struggled with that result for a long time.  Ultimately my boss at the time reminded me that we were representing “the man”, and that in a tie between “the man” and the employee, the tie goes to to the employee.  (Just like in baseball when the tie goes to the runner.)  Why?  Because we’ve all been employees and can identify with them.

Never loose sight of this fundamental reality of defending employment claims whether they are contractual or discrimination based claims.  The employee always has a little bit of a head start in proving their case.  It’s just a reality of employment litigation.