Coppedge Trial: Will It Ever End?

Last week we posted David Coppedge Case: Something’s Happening. Now we know what it was, and it’s not the final order we were hoping for.

The court order we were wondering about hasn’t been posted in the archive maintained by our friends at the National Center for Science Education (NCSE), located here: NCSE’s Coppedge archive. Nevertheless, we’re informed that it was the judge’s granting Coppedge permission to file an additional brief. That brief has now been filed, and it’s at the NCSE archive, here: Plaintiff’s Supplemental Brief.

We don’t know if JPL-Caltech will bother responding to it. Whether they do or not, we assume this is the end of the post-trial activity, and maybe we’ll get the judge’s final ruling sometime this month. Anyway, for what it’s worth, we’ll give you a few excerpts from the newest Coppedge brief. It’s all about his argument that he was laid off in retaliation for having filed a discrimination suit earlier, and therefore the layoff was illegal.

Apparently there are two different standards the courts use for deciding if employment termination is discriminatory. The Coppedge brief begins by saying:

Cal. Gov’t Code Sec. 12940, subd.(h) makes it unlawful for an employer to retaliate against an employee who has opposed discriminatory practices or because the employee has filed a complaint, testified, or assisted in any proceeding related to such practices.

We found the California Government Code online, and you can see that section here: SECTION 12940-12951. It says, with our bold font:

12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.

The Coppedge brief continues:

The court is faced with choosing among three retaliation standards to adopt in this case: (1) the “materiality” test; (2) the “deterrence” test (a.k.a. “material adversity” test); or (3) both.

The brief then discusses several cases, and argues that Coppedge should win under either test. Frankly, dear reader, we’re not going to wallow in that mess. That’s what the judge is paid to do.

There’s no doubt that Coppedge had sued JPL-Caltech, and later — in a large, budget-related downsizing — he was among those laid off. It seems to us that he’s got to prove that the layoff was in retaliation for his earlier suit. Has he done that? JPL-Caltech says his computer skills were obsolete, and he got laid off as part of the 40% downsizing of its Cassini mission workforce. We’re not aware that there was any evidence to the contrary.

Coppedge seems to argue that the totality of his experience leaves no doubt that his layoff was retaliation for his earlier suit — regardless of JPL’s reasons for the layoff. Were that true, it means that an employee who sues for being demoted — as Coppedge originally did — becomes virtually “untouchable,” and from that moment on he can’t ever be laid off — regardless of the employer’s reasons for the layoff. Is that the law in California? Coppedge thinks it is, and we’ll soon find out.

If the judge rules in favor of Coppedge, then an employer in California is in a tough spot. If an employee deserves some kind of discipline — as seems to have been the situation leading to Coppedge’s earlier demotion — they have no choice but to fire him on the spot. If they merely take some kind of administrative action and the employee protests, then they’ll never be able to let him go later. Under the proposed “Coppedge rule,” any layoff for any reason is automatically deemed to be retaliation for the earlier protest.

Copyright © 2012. The Sensuous Curmudgeon. All rights reserved.

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11 responses to “Coppedge Trial: Will It Ever End?

  1. The brief says it was filed in response to “defendent’s sur-reply papers.”

    What are sur-reply papers? Did we miss something?

  2. Ed asks: ” Did we miss something?”

    It’s probably in response to the last brief JPL filed: Defendant’s Post-trial Response Brief. It’s rather overwhelming on the reasons why they let Coppedge go.

  3. Shades of the Freshwater case in Ohio. Like the battery commercial, it goes on and on and on.

  4. The claims made in the summary of Coppedge’s supplement seem to challenge the evidence the court has previously accepted without introducing any new evidence to challenge them. Precedent offered seems to simply suggests a possible alternate interpretation without successfully connecting the relevance of the precedent to previously established facts. Caltech/JPL appears to have gone above and beyond reasonable expectation numerous times to for D.C. and received only contempt in return. I’d put money on Caltech winning this one no problem.

  5. It’s probably in response to the last brief JPL filed: Defendant’s Post-trial Response Brief.

    But that brief was filed three months ago. Although that brief may be the ‘official’ excuse for this new one, the timing makes it seem that this is really a hurried last-ditch please-don’t-rule-against-us response to the Interim Order. And, for reasons similar to those Dean expressed, I don’t see this ‘supplement’ changing anybody’s mind.

  6. What stuck me about the Becker brief was how vague it was. He went on and on about case law as if instructing the court, then waved his hands and said Coppers was done wrong.

    No details. No supporting evidence. No nothing.

    Recall that Coppers original complaint was that he was “demoted” from a non-grade position with no loss in pay. How is that a demotion? Well, it’s not! Coppers retained his grade and pay. No harm, no foul. Where’s the demotion?

    Coppers wasn’t a supervisor. He didn’t hire nor fire nor evaluate performance. He simply represented the team in meetings.

    Cynical me suspects that the “team leader” was a cushy assignment that enabled Coppers to play around on his creationist website on company time. When he was “demoted,” the jig was up and he actually had to perform as a systems administrator, something he wasn’t very good at and his obvious dearth of skills was evident. Game over.

  7. docbill1351 says: “No details. No supporting evidence. No nothing.”

    That was my impression too. So now we wait …

  8. Doc Bill said:

    When he was “demoted,” the jig was up and he actually had to perform as a systems administrator, something he wasn’t very good at and his obvious dearth of skills was evident.

    +1 to this. I’ve seen people behave just this way. They get into some assignment that they believe gives them time to fritter away on personal stuff. When their supervisor wises up and shifts them to something else, they fire up some fake rage and threaten all kinds of unnamed things that will happen to the supervisor if they don’t give the should-be-fired employee their old job back. When I was a supervisor myself, I had to deal with a few of these people. I remember having a counseling session with one such employee. This guy was so mad that he was no longer going to be able to spend all day, every day on the Rush Limbaugh web site that he stormed out of my office. These types of employees are where the “90/10″ line comes from. 10 percent of your employees will take 90% of your time.

  9. Gary: “These types of employees are where the “90/10″ line comes from. 10 percent of your employees will take 90% of your time.”

    I think any teacher will tell you the same observation is true for students as well — 10% of the students cause 90% of the discipline problems, which then accounts for 90% of the class time lost to distractions.

  10. I should clarify my last comment. I didn’t mean that 90% of all class time was wasted because of distractions. What I meant was 90% of the distractions are caused by 10% of the students.

    Also, although it’s not exactly 90/10, it’s close — about 90% of federal personal income tax is paid by the top 10% of taxpayers. Obama is right — they are not paying their fair share.

  11. The sur-reply is not the JPL post-trial brief. Rather, it’s an extra legal brief, filed afterwards. For some reason, NCSE is not posting it.