A Lawyer's Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged Because the Nurses Resigned En Mass

Mitchell H. Rubinstein[*]

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Introduction

Imagine that a group of foreign registered nurses approaches you because they feel abused and want to quit their jobs.  They signed an employment contract with a $25,000 liquidated damage provision agreeing to remain employed for three years and are unsure of their rights.  You advise your clients that they have the right to quit, and after they act on this advice, you find yourself at the center of a massive criminal and civil controversy.  Both you and your clients are criminally charged with endangering the welfare of patients and related crimes because the nurses resigned en masse without notice.  This may seem strange in light of the Thirteenth Amendment’s ban on involuntary servitude, but in 2007, this happened to ten nurses and their lawyer.[1]

There is a serious shortage of Registered Nurses in this country, and as a result, nurses are widely recruited from the Philippines to work in hospitals and nursing homes.[2]  The nurses in question were sponsored immigrant workers from the Philippines working legally in the United States.  As part of their sponsorship, all had signed identical employment agreements.  These contracts required the nurses to remain employed for three years and included a $25,000 liquidated damages provision.[3]

After the nurses resigned on April 7, 2006, various legal proceedings involving the nurses and their attorney, Felix Vinluan, began.  Most notably, a claim of patient abandonment was filed with the New York State Education Department, which regulates the nursing profession, although that charge has since been dismissed.[4]  Nevertheless, a Grand Jury indicted the nurses on eleven counts of misdemeanor crimes, including endangering the welfare of pediatric patients.[5]  The indictment also charged their lawyer with conspiring to commit these crimes, alleging that he advised the nurses to resign en mass without notice.[6]  Significantly, the indictment does not allege that any shift at the nursing home went uncovered or that any child was actually harmed as a result of the nurses’ resignation.[7]

In September of 2007, the court denied motions to dismiss for insufficient evidence filed by both Vinluan and the ten nurses.  With regard to Vinluan, the court emphasized the fact that the mass resignations could have had disastrous consequences because many of the nurses’ patients were gravely ill.[8]  With regard to the nurses, the court rejected the claim that under the Thirteenth Amendment a person cannot be criminally punished for quitting her job.  The court interpreted the charges as not punishing the nurses for simply resigning, but because they resigned en masse, which the prosecution argued, endangered their patients.[9]  Vinluan and the nurses successfully brought a proceeding to stay their criminal prosecutions pending a determination on whether the trial court correctly denied the motions to dismiss.[10]  On January 13, 2009, the Second Judicial Department of the Appellate Division reversed the lower courts and held that neither the nurses nor their attorney may be criminally prosecuted.[11]

This Essay examines this troubling case and the public policy issues that it highlights.  Part I reviews the nature of employment contracts and concludes that the Thirteenth Amendment and related legislation prohibit enforcing the nurses’ three-year time commitment through specific performance.  Part II examines whether criminal prosecution of the nurses is preempted by the National Labor Relations Act (NLRA)[12] and concludes that criminal prosecution is preempted because it interferes with the free play of economic forces that NLRA aims to protect.  Part III explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given.  The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, that the criminal prosecution was unwarranted, and that the Appellate Division’s decision was correct.

The Significance of Sprint/United Management Company v. Mendelsohn: A Reply to Professors Gregory and Secunda

By Mitchell H. Rubinstein[*]

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Professors Gregory and Secunda and I are all interested to see what impact Sprint/United Management Company v. Mendelsohn[1] will have on the admissibility of “me too” evidence in employment discrimination litigation, and in particular, comparative evidence from another employee of the defendant-employer who did not share the plaintiff’s supervisor, but was affected by a similar type of adverse employment action—such as the reduction in force (and accompanying layoffs) at issue in Sprint.  Professor Gregory and I predict that Sprint will result in much more litigation over this issue of admissibility,[2] while Professor Secunda remains skeptical that Sprint will have much of an impact at all.[3]

Professor Gregory’s essay highlights the central problem in employment discrimination jurisprudence today—proving or disproving claims of harassment with only circumstantial evidence. Discussing sexual harassment cases, Professor Gregory states that many cases boil down to nothing more than “‘he said, she said’ debate[s].”[4]  He goes on to compare “he said, she said” with “me too” cases and postulates that while the admission of “me too” evidence will provide more support for claims of harassment, one result of Sprint may be that litigants will attempt to present an endless line of “me too” witnesses.[5]  Professor Gregory does not opine on what Sprint means with regard to the actual admissibility of “me too” evidence; instead he simply concludes that this will be left “to the pragmatic wisdom of trial court judges.”[6]

Sprint/United Management Co. V. Mendelsohn: The Supreme Court Appears to Have Punted on the Admissibility of “Me Too” Evidence of Discrimination. But Did It?

By Mitchell H. Rubinstein[*]

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Introduction and Background

Employment discrimination continues to infect many employers.[1]  However, finding the source of the infection has never been easy.[2]  This Essay discusses the use of “me too” evidence where parties, usually plaintiffs, seek to buttress their case by pointing to other employees who assert that they were infected by the same disease of discrimination. Even before the Supreme Court’s first decision discussing this critically important issue, Sprint/United Management Co. v. Mendelsohn,[3] the use of “me too” evidence was controversial.[4]  It is important to analyze this case because employment discrimination cases often turn on whether the plaintiff has been able to come up with an appropriate “comparator” who was treated differently than he or she was.[5]

In examining the significance of Sprint, it is also important to be aware of the general evidentiary environment that governs federal court litigation. Under Rule 401 of the Federal Rules of Evidence (FRE), there is a low threshold for the admissibility of evidence: the evidence in question has to “only slightly affect[] the trier’s assessment of the probability of the matter to be proved.”[6]  Additionally, as the Seventh Circuit explicitly stated, Rule 403 “tilts in favor of admissibility.”[7]  Because the search for truth is imperiled by the exclusion of what would otherwise be relevant evidence, courts are required to exclude evidence under 403 only “sparingly.”[8] Thus, under this standard, courts are required to give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.[9]

Another significant evidentiary doctrine is that the law of evidence distinguishes between the admissibility of evidence and the weight that such evidence is too be afforded.[10]  Stated somewhat differently, anecdotal evidence need not be dispositive to be relevant and therefore admissible.[11]

It is also clear that the context of the “me too” evidence will also matter. This is because context almost always matters when interpreting witness statements.[12]  Therefore, it may not even be possible for the Court to ultimately lay down a specific rule applicable to all cases.[13]  One thing that is clear, however, is that these general evidentiary principles tend to support the introduction of evidence.  But these principles only provide a rough framework for analyzing whether “me too” evidence should be admissible.

There are several easy categories of “me too” cases.  Those categories include attempts to prove the presence of a culture or atmosphere of discrimination,[14] attempts to establish the existence of a hostile work environment,[15] and attempts to show a pattern or practice of discrimination[16] where the “me too” evidence concerns the same decisionmaker as the plaintiff.[17]  However, the answer to the question of whether such evidence can be admitted where, as in Sprint, different supervisors are involved is not easy.

Though scholars have characterized the Sprint decision as a “judicial punt” because of its remand on procedural grounds,[18] this Essay asserts that Sprint will turn out to be significant to the developing employment discrimination jurisprudence.  This is principally because of dicta in Justice Thomas’ unanimous opinion, which implicitly approves of the use of such evidence. While it may be difficult to precisely define the line between admissible and inadmissible “me too” evidence, it is clear that the Court rejected any type of rule that would flatly prohibit the introduction of “me too” evidence simply because the putative witnesses did not share the same supervisor as the plaintiff.

This Essay asserts that the use of “me too” evidence is likely to significantly increase as a result of the notoriety of the Sprint decision and the increasing importance of comparative-type evidence to employment discrimination litigation.[19]  Part I of this Essay discusses the state of affairs involving “me too” cases leading up to the Sprint decision.  Part II then discusses the Sprint decision itself and explains why the Supreme Court decision is significant.[20]  This Essay concludes by postulating how both employers and employees may try to make use of the Sprint decision in future employment discrimination litigation.