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!