The Bankruptcy Abuse and Consumer Protection Act of 2005 went into effect on October 17, 2005 and provides the most significant (and controversial) overhaul of the bankruptcy system in over 25 years. Backed by the credit card, retail and banking industries, the new legislation makes it more difficult for people to erase all of their debts in bankruptcy, while forcing others on payment plans instead. Conservatives and the financial services lobbies argue that the new law was needed to curb abuse of the bankruptcy system and teach people to be more financially responsible, while liberals and consumer advocates say that this law unfairly penalizes poor people who may be suffering financially due to illness, divorce or unemployment.
If you are considering filing for bankruptcy, there are some important things about this law that you will need to know before you start your proceedings. Here is a summary of some of the BAPCPA’s most significant provisions.
Persons Seeking to File Will Now Be Required to Seek Counseling
Under the new law, you are required to go into credit counseling (at your own expense) with an approved government agency at least six months before filing for bankruptcy. The first session should be at least 90 minutes in length, and give you an idea if bankruptcy is really right for you or if you can get out of debt by simply following a repayment plan that the credit counselor proposes. While you are not required to agree with the final opinion of the counselor or follow any repayment plan they propose, you will still be required to submit any repayment plans or bankruptcy alternatives that the agency has suggested to the court before being allowed to file. Once you have filed, you will then have to attend additional counseling and/or a money management class. Your debt will then be discharged when you submit a certificate of successful completion of these classes. Counseling is required even if a payment plan isn’t possible or realistic for your financial situation or you are facing debts that you are disputing and do not feel you should have to pay.
Fewer People Will Be Eligible To File Under Chapter 7
The new law makes it much more difficult for people to prove that they should be allowed to clear their debt entirely under Chapter 7 bankruptcy, a more pro-debtor option that allows filers to wipe out all of their debt entirely. When you file a Chapter 7, whatever assets you have (with the exception of your home and others assets protected in your state) are liquidated and given to your creditors and your remaining debts are discharged, giving you a “fresh start.” Under the old rules, most filers could choose the type of bankruptcy that seemed best for them, and almost always chose Chapter 7. It was then up to the judge to use his or her discretion to decide if your case qualified for Chapter 7. Under the new law, you will only be allowed to file under Chapter 7 if your income is lower than the median income in your state or if you can prove that you do not have enough disposable income to pay your debts. In order to determine if you qualify for Chapter 7, the first thing you will need to do is calculate your average monthly income over the last 6 months prior to filing and compare it to your state’s median income for a household of your size. If your average monthly income is equal to or less than the median in your state, you are automatically allowed to file for a Chapter 7 bankruptcy. If you earn more than the median, then you will need to pass a means test in order to determine if you will still be allowed to file. If basic expenses like rent, food, utilities, clothing etc. and priority debts such as back taxes, child support and alimony, leave you with less than 100 dollars at the end of the month, then you pass the means test and can still file for bankruptcy even if you make more than the median income in your state. If you are left with an amount of money between $100 and $166.66, you may still be able to pass the means test if you do not have enough money over at the end of the month to pay off more than 25% of the remainder of your outstanding bills. If you are left with more than $166.66, you will not pass the means test and will have to file for Chapter 13 bankruptcy instead.
More People Will Be Required to File Under Chapter 13
If you are deemed ineligible for Chapter 7 bankruptcy, you will now have to file for Chapter 13, which requires you to go on a repayment plan and devote all of your disposable income to repay your creditors for the next five years. In addition, the new rules do not allow you to deduct your actual living expenses (the amount you are actually spending on rent, food, etc.) from your disposable income. You will have to use allowed expense amounts according to what the IRS believes to be a reasonable amount to pay for basic living needs. Making matters worse, your allowed expenses have to be subtracted from your average income during the last six months before filing, and not from your actual earnings each month. As a result, you will have to devote much more money to your repayment plan than before.
You Stand to Lose More of Your Personal Property
The new bankruptcy law also puts much stricter limits on what personal property you are allowed to keep. Under the old laws, a debtor could typically keep items such as used cars, furniture, family heirlooms and souvenirs because the courts assumed that these items usually had more sentimental than monetary value. The new law is not as lenient, and requires that all of your property be valued at what it would cost to replace it at retail price. Since this new requirement will increase the value of your belongings significantly, your creditors will now be allowed to seize your property to satisfy your debt obligations. While many states have laws setting limits on what items can and cannot be taken from a person who is filing for bankruptcy, the new law has placed limits on those provisions as well. Under the new law, you have to live in a state for at least two years before you are allowed to claim that state’s exemption laws. If you have lived in a state for less than two years, you will now need to claim your old state’s exemption, if they have any. If you have moved frequently within the last two years, you must select the exemptions for the state you resided in for the greatest amount of time in the six months prior to filing. The BAPCPA also puts stricter limits on what debts can be “reaffirmed” during bankruptcy. In the past, a person filing for bankruptcy was still able to hold on to some of their property (a car, for example) if they were in good standing and agreed to continue to make payments on time. This was referred to as reaffirming the debt. The new law makes it more difficult to reaffirm secured debts, and filers may now be forced to relinquish their cars and other possessions that are not yet paid off.
The new law also makes some drastic changes to the very controversial Homestead exemptions that exist in many states. You may recall how the Enron executives, O.J. Simpson and other wealthy individuals were able to shelter their assets and avoid paying creditors by moving Florida and purchasing outrageously expensive homes. You will now need to have lived in a state for at least three 3 years and 4 months prior to filing before you are allowed to use a state’s homestead law to keep the equity in your home. If you have lived in your state for less than 3 years and 4 months, you will now only be allowed to retain $125,000 worth of equity.
Persons Seeking Exemption From the New Rules Will Need to Prove “Special Circumstances
If your financial problems are the result of extenuating factors beyond your control, you may be eligible for the “special circumstances” exemption. Under the BAPCPA, debtors can sidestep the new restrictions on the bankruptcy law if they can prove that special circumstances have resulted in a loss of income or an increase in debt. Two examples of special circumstances offered by the U.S. Trustee’s Office include loss of income due to a call to duty in the military or a serious illness or injury. After the massive destruction of Hurricanes Katrina and Rita, the Trustee’s Office announced that natural disasters should be considered to be a special circumstance as well. If a judge agrees that special circumstances are the cause of your insolvency, you will not be subjected to the means test, the credit counseling requirements will be waived, and you will be given permission to file for Chapter 7 bankruptcy.
While this provision gives judges some flexibility when hearing your case, you should keep in mind that the examples of special circumstances given by the U.S. Trustee’s office sets a very high threshold for what situations should and should not qualify. Your personal situation should be at least as serious as these examples in order to receive bankruptcy relief.
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Isaacs, Devasia, Castro & Wien LLP – Chapter 7 Bankruptcy Attorneys
Chapter 7 bankruptcy protection is designed to eliminate most of the unsecured debts of an individual or business. Unsecured debt is an obligation that does not have specific property as collateral, such as a house or a car. The process is often referred to as a “liquidation bankruptcy” because the property and/or assets of the debtor are sold in order to pay off as much of the debt as possible. Any debt that remains is then eliminated or discharged. If you are unable to pay your debts and need a fresh start, our experienced bankruptcy attorneys can help you explore your options.
Who is eligible for Chapter 7 bankruptcy?
In order to be eligible to file a Chapter 7 bankruptcy, your income must be lower than the median income in your state. If you earn more than that amount, you must pass a means test and demonstrate that you do not have enough disposable income to pay your debts.
Who is ineligible for Chapter 7 Bankruptcy?
You cannot file for Chapter 7 bankruptcy under the following circumstances:
- A previous debt was discharged within the past eight years under Chapter 7
- A previous debt was discharged within the past six years under Chapter 13
- You attempted to defraud creditors or the bankruptcy court
- You failed to attend credit counseling
Debts That May Be Eliminated
In a Chapter 7 bankruptcy, debt that is eliminated includes:
- Credit card debts
- Medical bills
- Lawsuit debts/civil judgments (including personal injury)
- Personal loans
In some cases, this form of bankruptcy may eliminate tax debt (for a tax period that is at least 3 years old), as well as penalties and interest on other tax debt. Other debts, however, such as student loans, spousal maintenance (alimony) and child support, and criminal fines cannot be discharged.
Property Exemptions
Some types of property are protected, or exempt, from being sold to pay off debts including residential real estate, automobiles and certain personal property such as furniture and clothing, depending on the state in which you live. Property that is not exempt includes cash, bank accounts, stocks and bonds, and vacation homes.
How to File for Chapter 7 Bankruptcy
Prior to filing a Chapter 7 bankruptcy, you must attend credit counseling with an agency approved by a bankruptcy trustee. Once the course is completed, you can file for bankruptcy in a local bankruptcy court. Information about your income, debt, expenditures, secured and unsecured debt, the sale of prior property, and a list of exempt property must be included in the petition.
As soon as your bankruptcy petition is filed, a court order, known as an automatic stay, immediately goes into effect that stops creditors from debt collection activities. Creditors are also barred from proceeding with repossessions, foreclosures, garnishments, and filing lawsuits unless permission is obtained from the bankruptcy court. The automatic stay remains in effect until the bankruptcy is discharged.
After the petition is filed, a trustee will be appointed and you will be required to attend a meeting of creditors referred to as a “341 meeting.” Creditors are entitled to appear and ask questions regarding your financial situation and property. In most cases, however, creditors do not attend. The trustee will preside at this meeting and question you about the petition.
Filing for a Chapter 7 bankruptcy requires serious consideration since you may lose some of your property and your credit rating will be damaged. This form of bankruptcy, however, may provide you with a chance to start over.
If you are facing debts that cannot be paid off, our experienced attorneys can help you navigate the process. Call our office today for a free evaluation of your case.
Isaacs, Devasia, Castro & Wien LLP – Chapter 13 Bankruptcy Attorneys
Chapter 13 bankruptcy is known as a reorganization bankruptcy in which you set up a repayment plan to pay off debts with future income. Unlike a Chapter 7 bankruptcy, however, you are allowed to keep your property. This form of bankruptcy is only designed for individuals and married couples; businesses are not eligible. If you are struggling to pay your debts, our experienced attorneys can help you set up a Chapter 13 repayment plan.
Filing a Chapter 13 bankruptcy
A Chapter 13 bankruptcy starts with the filing of a petition in the local bankruptcy court that includes a proposed repayment plan over a 36-to-60 month period, depending on your income. Like a Chapter 7 bankruptcy, you will be required to pass a means test to determine whether you qualify. In addition to filing the required forms and documents with the court, you must also pay a filing fee.
A trustee will be appointed to review your case, and you will be required to attend a meeting of creditors referred to as a “341 meeting.” Creditors are entitled to appear and ask questions regarding your financial situation and property. In most cases, however, creditors do not attend. The trustee will preside at this meeting and question you about the petition. You must demonstrate that you have enough income to be able to make the payments according to the proposed plan.
After the court approves your repayment plan, you will make monthly payments that will be disbursed to your creditors. You must complete all payments under your plan to receive a discharge of your debts. If you fail to make the payments, your case will be dismissed and creditors can resume collection activities.
Benefits of Chapter 13
A Chapter 13 bankruptcy provides you with a number of benefits. First, it stops collection activities by creditors, as well as garnishments, repossession actions, utility shut-offs and civil lawsuits. Chapter 13 will also stop a foreclosure, allow you to stay in your home and catch up on delinquent payments, provided that you resume making monthly mortgage payments. If you are delinquent with car payments, this type of bankruptcy allows you to repay the balance of the loan over a 3 to 5 year period and may provide for an interest rate reduction. Chapter 13 also enables you to repay tax debts through your plan. In some cases, this filing may eliminate tax debt (for a tax period that is at least 3 years old), as well as penalties and interest on other tax debt.
Limitations of Chapter 13
A discharge in Chapter 13 will not eliminate all debts, including:
- Claims for child support and spousal maintenance (alimony)
- Student loans
- DUI liabilities, criminal fines, and restitution obligations
- Debts not included in the repayment plan
While you are in bankruptcy, you cannot incur new debt or sell or transfer any property without court approval. A Chapter 13 bankruptcy will remain on your credit report for up to 10 years, and this will damage your credit worthiness.
If you need help regaining control of your finances and are considering filing a Chapter 13 petition, our bankruptcy attorneys can guide you through the process and help you establish a well thought-out repayment plan. Call our firm today for a free evaluation of your case.
LUSO AMERICANO – Isaacs, Devasia, Castro & Wien LLP – A Winning Bet in the Portuguese Community
About two years ago, the New York law firm, Isaacs, Devasia, Castro & Wien LLP, decided to bet on the City of Newark and its surrounding areas. The firm, founded in 1999, by Richard J. Koehler, began operating in New York and soon put their mark on the legal system of the big city. Koehler, a renowned lawyer in the area of labor relations and a former Correction Commissioner and Chief of Personnel in the New York City Police Department, partnered with Steven Isaacs, a veteran lawyer in criminal defense who also specializes in labor issues.
Currently, the firm has 23 lawyers who specialize in various areas of law.
“Investing in Newark was a big step,” says Richard Koehler, who highlights their work and proven results, especially in labor issues, on behalf ethnic communities, such as the Portuguese, Brazilian, and Hispanic populations. “We have many Portuguese and Brazilian clients who we helped compensate for large damages,” says the lawyer proud of the investments he made.
Recently, Isaacs, Devasia, Castro & Wien LLP received the distinguished “Heart and Soul Award” assigned by Lusamedia at the 9th Grand Night of Fado at the Mediterranean Manor in Newark.
“Of course we like to be recognized. It was fantastic to celebrate such an important honor with the Portuguese community and we look forward to continue to help the community at our local office at 26 Ferry Street,” said Koehler to LusoAmericano.
The law firm has employees who speak English, Spanish, and Portuguese that are always willing to assist the community in any way they can.
THE CHIEF – Major Dismissal Won By Isaacs, Devasia, Castro & Wien LLP Attorney Howard Wien is Featured in The Chief-Leader
THE CHIEF-LEADER
Claimed Illegal Retaliation
Judge Dismisses Rival’s Suit Against COBA Head
Updated: 4:01 pm, Mon Jul 13, 2015.
By MARK TOOR
A State Supreme Court Justice has dismissed a lawsuit filed against Correction Officers’ Benevolent Association President Norman Seabrook and the union by a dissident board member.
“At this point, the actions and inactions complained of in the petition amount to the internal workings of a union,” State Supreme Court Justice Carol E. Huff said in a three-page decision issued July 1.
‘A Rancorous Dispute’
COBA Corresponding Secretary William Valentin claimed in the Article 78 petition that Mr. Seabrook had unlawfully deprived him of his elected position and that the union had failed to consider countercharges he made against the union head. “Both Valentin and Seabrook made numerous accusations against each other in what is clearly a rancorous internal dispute,” Justice Huff wrote.
She agreed with COBA’s attorneys that Mr. Valentin’s suit should be dismissed because he had not exhausted his administrative remedies within COBA before bringing the Article 78 petition. Mr. Valentin’s lawyers had argued that “exhaustion of remedies is not required because it would be futile for him to attempt them,” the decision said.
But Justice Huff ruled that “Valentin has not established that following COBA procedure would be futile, or even that he has been deprived of his office, as opposed to being deprived of certain optional benefits. He has also failed to prove that his charges against Seabrook are not being pursued in accordance with COBA rules.”
Bharara on the Case
Both Mr. Valentin and Mr. Seabrook said that U.S. Attorney Preet Bharara had opened an investigation of COBA based on allegations by Mr. Valentin that the union president had invested $10 million without the executive board’s approval. Mr. Seabrook argued that he did not need such approval.
He said in a statement about Mr. Valentin’s suit, “Bringing these meritless claims was a waste of time and money, not just for our hard-working members, but also for the taxpayers of this city and state. We’re glad the judge agreed that they are without merit. Hopefully, our victory today will put this issue behind us and send a message to the person behind these frivolous claims that the matter is closed.”
Mr. Valentin said in an interview that he did not consider the dispute concluded. He presented a May 18 letter from the head of the union hearing committee on his case, Valerie Flake, in which she said, “After a full investigation, reviewing the charges and supporting documents, the by-law provisions allegedly violated, and having had interviews with relevant witnesses, the committee finds that there is not sufficient evidence on any of these charges to hold a hearing.”
In a second letter dated July 9, she said, “The hearing committee has no further role to play in this matter.”
Reloading for New Round
So, he said, “COBA did rule on the issue,” and he did indeed exhaust his union remedies. He said he would re-file the Article 78 petition. “I’m still in the fight,” he said. “This is still going to continue.”
Mr. Valentin filed his Article 78 petition in April. He said in February that Mr. Seabrook fired him from the executive board last winter when he tried to obtain a copy of the union’s membership list, which he said he was responsible for updating.
The COBA president said at the time that Mr. Valentin had sought not only the membership list but also confidential information about Correction Officers, including their Social Security numbers. Mr. Seabrook said that when he did not comply with the request for the list, Mr. Valentin asked a union employee to give him a copy and “don’t tell Norman.”
At that point, Mr. Seabrook said, he determined Mr. Valentin was no longer trustworthy and revoked his release time, sending him back to duty in the jails. Mr. Valentin remains an officer of the union, Mr. Seabrook said.
Valentin’s Rebuttal
In his lawsuit, Mr. Valentin denied seeking confidential information. He said in his internal complaint to the union that Mr. Seabrook revoked or took back his union credit card, E-Z Pass, mobile phone, computer account and office computer. He said he was no longer notified of executive-board meetings.
He then filed charges with the union and the Article 78 petition on which Justice Huff ruled.
Isaacs, Devasia, Castro & Wien LLP Attorney Howard Wien Wins Major Dismissal of Suit Brought Against the New York City Correction Officers’ Benevolent Association
DAILY NEWS – Isaacs, Devasia, Castro & Wien LLP Attorney Mercedes Maldonado Quoted in the Daily News
Former Rikers Island correction officer fighting to get job back after allegedly being shot in face by jail boss husband, then fired
BY CHELSIA ROSE MARCIUS , RICH SCHAPIRO
NEW YORK DAILY NEWS
Friday, April 24, 2015, 2:30 PM
SUSAN WATTS/NEW YORK DAILY NEWS
Janine Howard, here with Correction Officers’ Benevolent Association head Norman Seabrook, is suing the Correction Department to get her job back.
First she was shot in the face — allegedly by her jail boss husband. Then she was fired from her job as a Rikers Island correction officer.
Now Janine Howard, 40, is fighting to get back on the Correction Department payroll.
“I feel victimized,” the Long Island mother said Friday in her first interview. “I feel my safety, security can just be taken from me at any time.”
Howard’s nightmarish ordeal began on Dec. 2013 when she was shot by Rikers Island Capt. Brian Martin, 37, during an argument inside their Roosevelt home, prosecutors say.
Martin has pleaded not guilty to attempted murder charges.
The shooting left Howard with shattered bones in her face and a bullet fragment in her neck.
SUSAN WATTS/NEW YORK DAILY NEWS
Howard was shot in the face by husband and jail boss Brian Martin, and then just a year later was fired with no reason being given.
But what came afterward was almost as painful, Howard says.
A Rikers Island supervisor showed up at her house without warning on Dec. 23, 2014 — and told her she was being fired. No reason was given, Howard said.
At the time, Howard was out sick and on restrictive hours.
“I had a small child,” added Howard who has a five-year-old daughter from a prior relationship. “I thought it was a good career. The job is difficult but I thought I could do it.”
Howard is suing the Correction Department to get her job back — an action that was initiated by Correction Officers’ Benevolent Association head Norman Seabrook.
SUSAN WATTS/NEW YORK DAILY NEWS
Howard, 40, said that she “felt victimized” by the Correction Department, as they let her go without ever giving her a reason.
“I feel my safety, security can just be taken from me at any time.”
“Miss Howard is a victim of a horrendous crime,” said her lawyer Mercedes Maldonado.
“Norman Seabrook and the Correction Officers Benevolent Association executive board instructed me to bring this litigation, get her job back, and that’s what we intend to do.”
Seabrook said Howard has been victimized twice.
“For this man to think that he can abuse her, attempt to murder her … is unacceptable,” Seabrook added.
“For the Department of Correction to turn around and terminate her services the day after she was supposed to be off probation sends a very clear message that they don’t seem to have feelings of caring about their employees.”
The Correction Department did not immediately return a request for comment.
ABC 7 – Isaacs, Devasia, Castro & Wien LLP Attorney Mercedes Maldonado on WABC TV Channel 7
BRAZILLIAN VOICE – Isaacs, Devasia, Castro & Wien LLP Insurance Seminar Draws Local Residents of Newark’s Ironbound Neighborhood
The team of lawyers from the law office of Isaacs, Devasia, Castro & Wien LLP joined coordinators at Mantena Global Care and participants during the lecture on insurance, in Newark (NJ). The office of Isaacs, Devasia, Castro & Wien LLP has served the Portuguese-speaking community for more than 20 years
On Saturday afternoon of April 11th, attorney Barry Washor, who is Of Counsel at Koehler & Isaacs LLP, with a branch office located at 26 Ferry Street in the Ironbound neighborhood of Newark, held a free legal seminar on the importance of acquiring an insurance policy, particularly for automobile drivers in New Jersey. The free public event took place at Mantena Global Care’s headquarters, located at 294 Ferry Street. Barry, accompanied by lawyer Cynthia Devasia, who is also the Practice Manager in Newark, addressed the issue of under insurance and answered many questions posed by participants at the seminar.
The lawyers at Isaacs, Devasia, Castro & Wien LLP have been serving the Portuguese-speaking community in metropolitan New York and New Jersey for more than 20 years.
Barry Washor, an expert in personal injury, medical malpractice, and professional negligence work discussed the following topic: “When an uninsured motorist is involved in an accident, the lack of coverage can cause hardship for the uninsured driver, and also for any other persons who suffer an injury as a result of the uninsured driver’s negligence.”
The lawyer stressed that, regardless of one’s immigration status in the US, all workers have rights because the country signed a treaty with Brazil guaranteeing certain labor protections. He usually retains cases involving industrial accidents between 2-3 years, so it is necessary that victims seek their rights with an attorney as soon as possible.
Barry also noted that all car owners in the Garden State are required to have car insurance and the minimum sum insured is $15,000, determined by state law. However, drivers can purchase “under insurance” which costs $25 every 6 months and covers up to $500,000.
The lawyer stressed that companies must, by law, offer it to customers, but many do not.
Ailton de Souza, Client Relations Manager at Isaacs, Devasia, Castro & Wien LLP, said that the office plans to hold a series of lectures, as needed for the community.
The best-known type of insurance is for automobiles which is required by law. While many people obtain car insurance only because the law demands and because they are willing to pay only the bare minimum, there are also others who want a wide range of coverage in order to protect any damages that happen to the vehicle.
Currently, you can find insurance at a lower price than those that existed years ago. With the advent of new technologies, it is very easy to purchase insurance online and obtain the required coverage with a simple click, which allows insurers to reduce costs and therefore the premiums are more affordable.
Another type of insurance that is booming is health insurance, which allows you to receive medical care at prices below those in the private health sector. One’s health is priceless and this is a type of insurance that makes a trip to the doctor, or the length of waiting for an operation, faster and less painful than the endless queues and waiting lists that exist at most hospital’s emergency rooms.
Although this insurance is considered to be very expensive by many people, the truth is that, if necessary, it can significantly help to reduce the hardships of a potentially very difficult financial situation.
For those who have small children, there is liability insurance available for very inexpensive prices. For those going on vacation or who travel frequently, travel insurance is a great safety net and a way that can cover you from lost or stolen property.
For those who want to protect their homes, home insurance helps ensure the value of the property’s assets. There are even dental plans, group life insurance and pension plans.
For more information about this event, please contact Ailton Souza, Client Relations Manager, telephone: (862) 240-1900 or visit the Isaacs, Devasia, Castro & Wien LLP website: www.seudireitousa.com.
Federal Law: Class of One (December, 2004)
Labor and Employment Bulletin, by M. Paulose Jr., Esq.
Public service employees enjoy significant levels of job protection, the highest level being a federal action against an employer for violations of their constitutional rights. Most public service employees are aware of this protection and often try to explain a problem at work as a violation of one of these rights. How many times, for instance, have you thought that a particular employment decision may have been based on race or gender or, perhaps, national origin? How often, for example, has a colleague mentioned to you that he was invited to a high level client meeting solely on the basis of being a token minority, or another employee was promoted because she was a woman, or another employee was fired because his behavior – tailored by his foreign heritage – just didn’t “fit in”?
Sometimes, however, it’s difficult to neatly fit an adverse employment decision into any of these reasons. What then? The answer may lie in the 14th Amendment of the U.S. Constitution, which offers a protection of last resort. Under what’s now becoming called “a class of one claim,” a public employer may not treat a public employee differently from another similarly situated employee no matter his or her race, gender, religion, hair color, or even shoe size. An employee merely needs to prove that the employer had no legitimate and rational reason for the particular employment decision. This is the broadest type of protection offered a public employee. But it does not mean that it’s the easiest to prove.
In Bell v. South Delta School District (S.D. Miss. 2004), for example, a public school teacher brought a class of one claim against her school district and its director. According to the teacher, the defendants engaged in a systematic campaign of harassment, including involuntary transfers to three different schools. Apparently the school district and its director were retaliating against the teacher for complaining to the police about some improper billing practices. The Court listened to all of the teacher’s arguments but ultimately dismissed the case because the teacher had failed to show that she was being treated differently compared to other teachers. This was unfortunate, because surely the teacher could have found another teacher who was in all respects similarly situated and not treated the same way as she was.
Another similar case is Levesque v. Town of Vernon (D. Conn. 2004). There, a full time town clerk sued her employer the Town and its Town Administrator for engaging in a pattern of retaliatory conduct, including termination, solely because of a personality dispute between the clerk and the Administrator. Notice here, like in Bell, the employee sued not because she was treated differently based on some protected class, such as race or gender, but because of a non-protected class, which in this case was a personality difference. Unfortunately again however, like in Bell, the clerk failed to present enough evidence of other similarly situated employees who were not terminated. The court accordingly dismissed the case.
These cases show the importance of accumulating enough evidence before filing suit, particular under a class of one claim. Employment cases are often the hardest cases to prove. An employee who believes that she may be terminated, or otherwise adversely treated, should start thinking in advance about whether the adverse treatment is going to be based on a legitimate reason. One good thing to do is to contact an employment lawyer and have him help prepare for the outcome. So if you feel you are going to be terminated or downsized, call an attorney right away.