Daredevil #4

In issue 4 of Daredevil, the firm of Murdock & Nelson continues the new business model we discussed in the last Daredevil post: helping their clients represent themselves in court.  Issue 4 introduces us to a few of these clients and includes some great legal issues to talk about.  Spoilers ahead, as usual.

I. At-Will Employment

In this issue we meet Austin Cao, a prospective client for the firm.  Cao is a blind polyglot, who worked for a large investment bank until he was fired after noticing that some clients were speaking Latverian.  He came to Murdock & Nelson hoping to sue for wrongful termination.  The catch, as the attorneys point out, is that he didn’t have an employment contract, even an implied one, and New York is an at-will employment state.  They even cite a case: Union Labor v. Vance Redwood Lumber, 1910.  This is technically accurate (New York is indeed an at-will employment state) but it’s also slightly misleading.

The problem is that the case is from California, not New York.  The full citation is Union Labor Hospital Ass’n v. Vance Redwood Lumber Co., 158 Cal. 551 (1910).  The court in that case did articulate an “at will” employment rule, but it’s never been cited by a New York court.  We suspect it was probably cited or included in a case book read by one of the lawyers that Daredevil author Mark Waid sometimes consults about the legal details (as mentioned in his interview with Abnormal Use).

For completeness, here’s the key excerpt from the case, which is itself actually a quote from Com. v. Hunt, 45 Mass. 111, 133 (1842) : “It is well settled … that every man, whether skilled laborer, mechanic, farmer or domestic servant, may work or not work, work or refuse to work, with any company or individual at his own option, except so far as he is bound by contract. … All may dismiss their employees at will, be they many or few, for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of legal wrong.”  Union Labor, 158 Cal. at 555 (emphasis added).

A more reasonable case to cite in New York would be Martin v. N.Y. Life Ins. Co., 148 N.Y. 117 (1895).  Although that case is over a century old, the New York Court of Appeals (the highest court in New York) still cites it.  “The traditional American common-law rule undergirding employment relationships, which we adopted in Martin v. New York Life Ins. Co., is the presumption that employment for an indefinite or unspecified term is at will and may be freely terminated by either party at any time without cause or notice.”  Horn v. N.Y. Times, 100 N.Y.2d 85, 90-91 (2003).

II. Wrongful Termination and the ADA

Matt learns from Cao that Cao was well treated at the company, apart from the termination.  Furthermore, no one at the company disparaged Cao’s blindness.  This is indeed a problem.  Without a claim of discrimination under the Americans with Disabilities Act it will be very difficult to claim wrongful termination.  Even if there was some evidence of discrimination, the story doesn’t necessarily end there.

In the Second Circuit (the circuit in which New York is located), claims of discrimination under the ADA are analyzed under the McDonnell-Douglas burden-shifting framework.  Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998).  Although McDonnell-Douglas was a Title VII discrimination case, the same framework has been used in ADA cases in several circuits.  As the Wikipedia summary explains, even if the plaintiff can offer enough evidence to create a presumption of discrimination, the employer can rebut the presumption that the termination was discriminatory by offering (in the Greenway court’s words) “a legitimate, non-discriminatory reason for its actions … that, if true, would connote lawful behavior.”  Greenway, 143 F.3d at 52.  That, however, is still not the end of it.  “The ultimate burden then rests on the plaintiff to persuade the factfinder that the employer’s proffered explanation is merely a pretext for its intentional discrimination.” Id.

So the comic is right when it says that evidence of discrimination would only give them a “fingerhold.”  And it’s likewise accurate that, without that evidence, there’s probably not much that can be done in this case.  As much as Cao’s termination seemed arbitrary and callous, that’s the kind of thing at-will employment allows.

With the exception of the minor quibble about the California at-will employment case, the legal writing in this issue was great.  We’re looking forward to the next one!

19 responses to “Daredevil #4

  1. I’m confused. The California case quoted the Massachusetts case. Did the New York case also quote the Massachusetts case? I just want to make sure that the California case and the New York case used the exact same definition of “at will”. If the wording of the New York and California cases were different then showing the client a California case to explain “at will” could be very misleading. Otherwise I think the client would be happy just knowing what “at will” meant.

    One more question while I am here. In New York, workers can argue that an implied contract existed and that an employer may not fire an employee “when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists”. See http://www.bls.gov/opub/mlr/2001/01/art1full.pdf Was there a reason why they dismissed this exception?

    • No, the Massachusetts case was only cited in a couple of New York trial-level cases, not by the New York appellate courts. I only included the quote from the California & Massachusetts cases to establish that they are, in fact, about the definition of at-will employment. The cases aren’t available for free online that I can tell, otherwise I would have just linked to them.

      Yes, you can argue that there is an implied contract, but Foggy and Matt dismissed it. “Did he have an employment contract?” “Not even implied.” They didn’t go into more detail than that, but we can assume that Foggy did his homework on it.

      • Obviously they have a more relevant case in New York to use, but I didn’t think it was so strange for two states (even if in different districts) to cite cases.

      • Could you clarify what you mean by that? It’s true that it’s not unusual for a court to cite a case from a different state, particularly when it’s an issue the court hasn’t ruled on before or when the laws of the two states share a common origin (e.g. it’s a common law issue or they both adopted the same model law). That’s why it’s not particularly odd for the New York court to quote the Massachusetts court.

        But it would be downright bizarre for a modern New York court to give any weight to a century-old California case when the New York courts have their own century-old precedent on the issue (and thus strange for a New York lawyer to bring it up, even in casual conversation). So mentioning the California case is a weird non sequitur. It would be kind of like a modern New York lawyer saying “Yes, murder is illegal, just like in R. v. Smith, an English case from the 18th century.” It’s a true statement, but you can see how it comes off a little odd.

  2. Given that Cao was fired for hearing clients speak Latverian, it might be safe to assume that (1) the bank is investing funds for Latveria or Latverians and (2) Latveria is on a US government prescribed list forbidding companies from financial actions of that sort. Assuming the bank was engaged in illegal conduct, is there any sort of “whistleblower” protection statute that Cao might have resort to?

    • That’s a good theory, but it probably won’t work with the facts we have. The New York state whistleblower statute (N.Y. Labor Law § 740) is pretty broad. Here’s what it covers:

      An employer shall not take any retaliatory personnel action against an employee because such employee does any of the following:
      (a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety …;
      (b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer; or
      (c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.

      The problem is that Cao didn’t do any of those things prior to being fired. I suppose if it were illegal for Latverians to even be in the United States, then telling his boss that two of the company’s clients were Latverians could possibly count. I don’t think US-Latverian relations are that bad (though I could be wrong on that).

      • Does “threatens to” require an active threat on the part of the employee, or would it also count if the employee was fired based on the employer’s belief that the employee might?

      • Considering that all he knows is that they were speaking a certain language I really don’t see what he could have reported. It seems a little unlikely that the government would outlaw speaking Latverian (even in post-Civil War Marvel) so there isn’t much that he could have used to be a whistle-blower. At the very most he could testify that (based on his extensive linguistic knowledge) they were native speakers from Latvia but there’s nothing illegal about having been born in a certain nation.

        Of course the FBI, HAMMER (or whatever it’s supposed to be now) and other law enforcement agencies might be very interested to now that Latverian citizens are among the banks clientele, but unless they have some reason to believe that the bank or the Latverian-speakers are involved in something illegal I don’t see what they could do with it besides file it away for a threat of sanctions later.

  3. Assuming that Latvia is on the government OFAC list, why doesn’t Cho’s actions fall under clause a) of the whistle-blower statute? I work for a financial services company and the training we get on OFAC says that we have a affirmative legal duty to report (even only suspected) OFAC violations and that retaliation for that is illegal.

    • I couldn’t find solid information on retaliation for reporting OFAC violations, but the issue would be whether casually mentioning that “two strangers” in the office (not, as I originally wrote, known to be clients) were Latverians counted as a protected whistleblower report. In general the federal whistleblower statutes require a report to a federal agency, which clearly didn’t happen here.

      • Okay I can see that, but Cho should still be advised that make such a report, even after the fact, as not doing so may make him liable for both fine and prison time (5yrs and $5000 if I remember right). And his previous employer has at least a “willful blindness” problem, as you’re suppose to report even attempts by OFAC countries and citizens there-of to do business in the U.S.

      • That’s assuming that Latveria is on the OFAC’s list, or course, and I couldn’t find any information on US sanctions against Latveria. Does anyone know more about the present state of US-Latverian relations in mainstream continuity?

    • Latvia and Latveria are different things. One is a real country, the other is run by Doctor Doom.

  4. Actually, it’s even more tenuous than that. He didn’t necessarily overhear two Latverians, he overheard two people *speaking* Latverian. For all he knew, that could have been graduate students keeping in practice, or the grandchildren of some long-ago immigrant. If someone hears me speak French, that doesn’t mean I’m from Paris or Montreal.

    • We’re given reason to believe that he can accurately “identify a foreigner’s birthplace within fifty miles just off their accent.” So I think it’s fair to assume that they were, in fact, native-born Latverians. Of course, that doesn’t rule out the possibility that they immigrated to the US and are now legitimate US citizens, so your broader point stands.

  5. What about the thumbdrive Daredevil pulls (literally) out of the lion’s den and then Murdoch’s client finds? Would such evidence still be admissible in court? Technically, the mobster threw it away and Daredevil picked it up, but it seems tenuous, and would open the door for a “Daredevil is prejudiced against mobsters and could have tempered with it,” argument.

    • The fact that the mobster threw it away and Daredevil picked it up is not problematic. There’s a good argument that it was intentionally abandoned (someone who tosses something into a lion’s den isn’t likely to go back and get it), and so it was fair game for Daredevil to take it.

      As to tampering: We don’t know the contents of the drive. The files could be digitally signed, demonstrating that the mobster’s organization created them and that Daredevil didn’t tamper with them. Or more realistically, the mobster’s fingerprints could be on the drive, showing that he at least possessed the drive at some point. The jury (or judge, in this case) would have to weigh whether it was more likely that it had been tampered with or that it was genuine. If there were a lot of files on the drive, all with consistent dates and contents, then it would have to be a pretty elaborate hoax on Daredevil’s part, and he is not known for producing doctored evidence.

      Finally, the contents of the drive could be a useful starting point for further discovery of evidence. If that additional evidence all lined up with the contents of the drive, then it’s further proof that the drive is legitimate.

  6. Wow – who said blogs can not be interesting?

    You law guys sure know how to talk shop – though I know how to talk comic – http://www.comicbookandmoviereviews.com/2011/10/daredevil-4.html

    Check out my Daredevil 4 review when you can.

  7. Pingback: Daredevil #5 | Law and the Multiverse

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