© 2013 The Texas Lawbook.
By Natalie Posgate
Staff Writer for The Texas Lawbook
Two former African American employees at a Dallas personal injury law firm are seeking damages from their old employer for “unlawful employment practices,” claiming they were racially discriminated against.
Julius Jackson and Erica Cornelius filed a lawsuit in Dallas County Court at Law last week, accusing management at Eberstein & Witherite of race discrimination and retaliation.
A firm that specializes in automobile accidents, Eberstein & Witherite markets itself to clients as 1-800-CAR-WRECK.
It heavily targets the African American community, “promising to treat you like family. Defendants, however, treat their African American work family quite differently,” the complaint says.
Bill Reid and Jacqueline Montejano of Reid & Dennis filed the complaint on behalf of the plaintiffs.
Reid, the lead attorney on the case, did not reply to multiple interview requests.
Brian Eberstein, one of the named partners in the lawsuit, insisted that the claims were full of “complete fabrication and distortion,” and said he was extremely offended by being called a racist.
“If you came to my office and looked around, you would see a melting pot as diverse as any law firm office you’ve ever been in,” he said. “You will see racial diversity, religious diversity, gender diversity, sexual orientation diversity… Everyone works very well together because they know the environment that exists in the office does not accept discrimination in any way.”
Eberstein said he did not know yet who his legal counsel will be in the matter.
Jackson and Cornelius filed separate claims with the Equal Employment Opportunity Commission and the Texas Workforce Commission – Civil Rights Division late last year or early this year and received responses less than six months later with the right to sue.
Both former employees were hired in June 2012, and both worked there for only about two months. Jackson worked as a case manager, and Cornelius as a file clerk.
Most of the claims involve how the firm’s human resources manager, Linda Weir, treated the plaintiffs.
Jackson claimed she threw an offensive “Juneteenth” celebration (commemoration of the announcement of abolition of slavery in Texas) in which fried chicken and Big Red soda were served only to black employees at the firm. He complained to Eberstein about the incident, whose response, according to the lawsuit, was “to forget about the Juneteenth incident and just focus on being a team player.” Days after another complaint of being treated disrespectfully by a different co-worker, Eberstein fired Jackson.
In addition to racial discrimination, Cornelius (who was pregnant while working at Eberstein & Witherite) claims the firm violated the Pregnancy Discrimination Act. Cornelius, according to the lawsuit, started experiencing pregnancy complications at work and doctors told her she was at risk of miscarrying. Though she had a doctor’s note that ordered her eight days of bed rest, Weir said her absence was not acceptable and she pressured Ms. Cornelius to return to work, according to the compliant. It also says Cornelius miscarried two weeks after she was fired.
Management fired Jackson and Cornelius within a couple days of each other. Both, according to the lawsuit, claim their dismissals were unjustified and inexplicable. In addition to discrimination, Jackson is also claiming a count of retaliation in violation of the Texas Labor Code.
Eberstein said the only reason he fired Mr. Jackson and Ms. Cornelius was because “they were not capable of doing the job they were hired for.” The firm had never been accused of discrimination before this complaint, he said.
Labor and employment law experts not involved in the case say the strength of the allegations raise interesting and timely legal issues.
Jonathan Wilson, a Dallas partner at the global labor and employment firm Littler Mendelson, pointed out three potential hurdles if this lawsuit goes to trial.
The first is that the allegations are so specific and egregious that the plaintiffs’ attorneys’ credibility will be hurt if the facts don’t match up exactly with the allegations as the case advances.
“Sometimes plaintiffs and former employees will overstate their case in the pleadings which then backs them into a corner as defense counsel starts weaving through fact versus fiction,” Wilson said. “There’s always two sides to a story.”
The second, significant for both parties, is what other employees of the firm who are not involved in the lawsuit will say about the allegations if they testify – a consideration factor Wilson says juries and judges significantly focus on.
The third involves how a recent Supreme Court decision will apply to this case. On June 23, the U.S. Supreme Court decided in University of Texas Southwestern Medical Center v. Nassar that in retaliation cases under Title VII of the Civil Rights Act, a plaintiff is required to present evidence that meets the strict standard of “but for” causation in order to prevail.
In other words, the plaintiff has to prove if it weren’t for complaining to employers that they were being subjected to discrimination, they would not have been fired. This provides employers the opportunity to show record of unsatisfactory performance as reasoning for terminating the employee, Wilson says.
Wilson also pointed out the EEOC’s quick turnaround to allow Jackson and Cornelius to sue their former employer.
Though the EEOC promptly allowed Jackson and Cornelius to sue the law firm, Wilson said it was interesting that the government entity didn’t decide to take on the case directly.
“If the allegations are as awful sounding as they are and if evidence supports it, my experience is they’ll drop everything [to take the case],” Wilson said.
He did, however, admit that this case is unusual.
“It’s unusual that these sort of cases against a law firm would see the light of the day,” he said.
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