By: Traci R. Gentilozzi, Michigan Lawyers Weekly
James K. Fett (Pinckney)
Born: Feb. 23, 1960
Education: University of Michigan (J.D., M.B.A.)
Admitted to bar: 1986
Legal experience: Private practice, Fett & Linderman, P.C., Pinckney; labor-relations lawyer, Miller, Johnson, Snell & Cummiskey
"The champion of workplace rights" this best describes Pinckney lawyer James K. Fett.
Fett has been hurled into the spotlight this year after filing harassment suits against the Dearborn Police Department and the Ann Arbor police chief. He has also worked with the Michigan State Police to revamp its promotion practices after representing two white troopers who claimed they were passed over for promotions while less-qualified women and minorities were promoted.
However, it was a particular case during the year 2000 which garnered Fett the most attention a case which he considers to be one of his greatest triumphs: Pena v. Ingham County Road Commission.
In Pena, the plaintiff, a minority worker, claimed retaliation and racial harassment by his coworkers over a 12-year period. According to Fett, the harassment rose to the level of death threats. When all was said and done, Fett achieved a $1.3 million award for his client.
Fett says the Pena case was unlike any he has ever handled. "This was not like a lot of 'garden variety' discrimination cases where somebody is slurred or harassed in the workplace for six months and then they sue," he says. He attributes the million-dollar award to the jury being outraged by the road commission's conduct and the proffered reasons for the continuous harassment.
But despite the lawsuit and the verdict, Fett says Pena is still experiencing retaliation at his job. "There is still a hostile working environment there," he says. "The road commission has never taken the appropriate steps to remedy that."
So Fett has since filed another suit against the road commission. "They just don't get it," he says.
Q. How did the Pena case come to your attention?
A. This is actually a very interesting story. I tried a harassment case on Court TV in 1995. [The defendant's] wife attended the trial. The Penas watched portions of it, and they happened to be friends with [the defendant] and his wife. I ended up winning the case, and the defendant's wife suggested that the Penas come see me about Mr. Pena's problems at the road commission.
I was stunned when I found out who had referred the case to me!
Q. Do you think the Pena litigation will go on for some time?
A. I think the litigation is going to go on a long, long time, to the disadvantage of both the county and my client. I think that, ultimately, we will be successful. The road commission is planning to appeal. The best they can do on appeal is to get a new trial. But if this case comes back for a new trial, the result will be the same the liability won't be any different. But it will be different in terms of the number I predict it will be even larger. More importantly, by the time it would get back down to trial, there's going to be interest that has piled up since 1998.
Q. Were you at all surprised by the $1.3 million verdict?
A. By the end of the trial, I knew we were going to win. As to the exact number, I was mildly surprised, but not shocked.
Q. Did you talk to the jurors after the case?
A. Yes, we did. After the trial was over, the jury foreperson was waiting for us out on the sidewalk. She even sent us a letter. She hugged my client numerous times [after the trial]. And one juror wrote to us how much courage [my client] had. I think it turned out to be a wonderful experience for the jurors because they really felt good about what they did.
Q. Since the verdict in Pena, how has the case affected your practice?
A. First of all, Pena is not over. In fact, I have filed a retaliation claim because within 21 days of the verdict the road commission came with charges of sex harassment against the plaintiff and one of his witnesses. It's not over. We're in court again.
For my practice, obviously the media reports have generated lots of other potential clients for my firm. I only take about 2 percent of the cases presented to me, and that's the same either before or after Pena. You have to be very selective in today's legal climate.
Q. Because Mr. Pena's on-the-job harassment continues, what do you think that says about the impact these types of lawsuits have on employers and employees? Do they simply not care?
A. I would say that the Pena v. Ingham County Road Commission case is an aberration. In most cases where this kind of significant verdict and accompanying media attention occurs, the employer cleans up their act.
Did you happen to see the letter to the editor that those idiots sent to the Lansing State Journal? The letter was titled, "Lawyer after money." (See 12/6/00 Lansing State Journal.) It didn't address a single point from my letter [which I previously sent to the Journal.] (See 11/26/00 Lansing State Journal.) The letter is remarkable!
It's business as usual, unfortunately, at the road commission.
Q. In light of the fact that Mr. Pena has been harassed so much, why does he stay at the Ingham County Road Commission? Most people would leave.
A. That is one of the first things that Mike Pitt [of the Michigan Trial Lawyers Association] asked me [when I gave a presentation to the MTLA]: why's he hanging around? There's a couple points here that bear mentioning.
First, it didn't start out where Mr. Pena was getting death threats. He was subjected to slurs, and it kept building. It got to a point where he just snapped it was the straw that broke the camel's back when one of the bigots threatened to kill him. In the beginning it was certainly obnoxious and something I wouldn't tolerate, but he did.
Second, within the first couple years of his employment, Mr. Pena had so many injuries it would make NFL linemen look like sissies. He's had two knee operations, a shoulder restoration, two hernias, a heel operation, and numerous ankle sprains. Because he is not a skilled tradesman and doesn't have a college education, it's not like he has occupational mobility. He could not pass a physical anywhere else. He's kind of "locked in" to support his family.
Q. What was the Ingham County Road Commission's defense?
A. They said a couple of things that didn't ring true with the jury. But basically, they didn't take any responsibility for their actions. They laid everything at the feet of others. First, it was Joe Pena's fault because he didn't file a union grievance to make the commission stop harassing and slurring him. Then it became the union's fault because they didn't police the workforce and make sure that his coworkers didn't slur and threaten him, and didn't make sure the managers disciplined those people. And then it became Joe Pena's wife's fault because she didn't force him to go to a psychiatrist and get psychotropic medication to ease his mental suffering.
So you can imagine what the jury thought of that.
Q. What do you think the overall impact of Pena will be?
A. The case has drawn a lot of attention, which I think is good. I think that employers around the Ingham County area [and other areas] have become more sensitive to the workplace harassment issue because of this case. This was front-page Lansing State Journal and it got a lot of broadcast coverage.
What most disturbs me about this case, and why I think it's an aberration, is that the Ingham County Road Commission still hasn't gotten the message. In fact, I wrote to the Ingham County Commissioners in gory detail, explaining what happened in the trial, and said, "If you don't believe me that's fine because I've got the entire case on videotape and I'd be happy to let any of you view it." I got no response nothing. So then I wrote the letter to the Lansing State Journal saying, "Here's all the stuff going on and these people hear no evil, see no evil."
Q. Are you shocked by the lack of response you've gotten from the Ingham County Road Commission?
A. Yes, I am shocked. I've talked with a number of minorities who work for the road commission, and they have been clearly mistreated. Clearly, there's a hostile work environment.
I don't understand why there is a lack of reaction. I'm handling a case against the City of Dearborn where the chief of police slurred my client terribly and that guy will probably lose his job for doing that. But these people at the road commission, all that happens to them is they get raises!
Q. You have been quoted as saying, "We use litigation to educate." Can you explain what you mean by that?
A. I thought I was educating the road commission, but they are slow learners. There are lessons that come from this. For instance, when I took the case against the City of Ann Arbor, the city took a lesson from that. They stopped harassing my client, they cleaned up their procedures and they made some personnel changes so what happened would not happen again. In another example, I litigated with the State Police during the last seven years over their promotional policies. They stopped that. Now, the Michigan Department of Civil Service has stopped a procedure called "augmentation."
So I think there is an educational function here.
Q. Are you surprised that such types of workplace harassment and discrimination occur today?
A. It's the type of thing that you would have thought you'd read in your textbook in the 1970s. In the last two or three years, I've seen the most gross examples of discrimination and harassment. I think employers are no longer sensitive to this, and the general population is no longer sensitive this they think people bringing employment suits are just hoping to win the litigation lottery.
I'm telling you, this stuff is rampant.
Q. Some have criticized you for being "anti-affirmative action." How do you respond to that?
A. Let's define affirmative action. If affirmative action means reaching out and broadening the pool of minority and female candidates, then I'm 100 percent for it. If affirmative action means granting racial or gender preferences, then I'm 100 percent against it because it's unconstitutional not as determined by Jim Fett, but by the U.S. Supreme Court and other courts.
So I make a distinction between the type of affirmative action that's at issue.
Q. Your practice solely focuses on workplace discrimination/harassment. Did you choose this area of law, or did you somehow just "fall into" it?
A. I think it chose me. I was a management labor lawyer with Miller, Johnson when I came out [of law school]. I was a hard-core Young Republican and very oriented toward management. During that time, my best friend's father was discharged [and had some discrimination claims]. He couldn't find anybody to take his case. I had to pass on it because I worked for a management labor law firm.
When I left the firm in 1987, the first client knocking on my door was [my friend's father]. So that was my first real exposure to employment discrimination litigation. I took the case and I settled it within eight months. I thought, "Gosh, this is easy." Boy, was I mistaken!
© 2000 Lawyers Weekly Inc., All Rights Reserved.
