MIDTERM EXAM

2. The exam consists of 3 parts. You will have 2 hours, forty minutes to complete the exam and may allot the time as you see fit. However, please note that the sections will be accorded the following weight in the midterm grade: Part I (45%), Part II (45%), and Part 111 (10%).

3. Parts I and II are essay questions. Part III asks you to answer 2 questions by simply
listing the statute(s) that apply. (No essay is required.)

4. Please take a few minutes to prepare what you are going to write before answering.  Please try to anticipate counter-arguments regarding the points you raise. Please write or type legibly, as I cannot give any credit for words I am unable to read.

5. Please remember to list your exam number on the booklets/papers you turn in.

6. Good luck.

Part I

Jason Roberts is a teller/cashier at the local branch offce of Big Money Bank. Big Money markets itself as "treating each customer as a person, not a number." Big Money emphasizes customer service, and has more tellers and fewer automated machines than other banks of its size.

Jason has been with Big Money for about 5 years. He is considered one of Big Money's best tellers because he rarely calls in sick and has never been short more than $3 at the end of the day. Jason also consistently receives outstanding reviews, though in each of his first two years he was written up once for arguing with difficult customers. Jason was not informed of these write-ups because his supervisor "didn't want to make a big deal out of it." He has not been written up in over two years.

Jason was frequently asked to explain Big Money procedures to new employees because he was considered more patient than other experienced employees. On March 1, 2001, Jason was busy training Sam, a new teller/cashier who had started the day before. On this day several Big Money tellers had called in sick, and at lunchtime the line of customers had grown 20 people long. Sam was extremely slow, and Jason frequently had to listen to customers insult both of them for "wasting" time. Finally, an irate customer walked up and said, "What are you, idiots? This is unacceptable." In response, Jason said calmly, "I'm sorry for your wait, sir." The man responded, "I don't have time for this. You need to find a new line of business -- you aren't cutting it as tellers." Jason replied, "There are other banks you can go to, sir." The man then identified himself as Worthington Parker, III, a member of Big Money's Board of Directors, and asked to speak to Jason's supervisor.

Jason's supervisor, Cindy Thomas, who had overheard the entire exchange, went to her office to speak privately with Worthington Parker, III. At the end of the day, she called Jason to her office and told him he was being terminated for his "unacceptable customer service." He protested, but she told him the decision was final.

Over the next several weeks, Jason applied to 6 banks in the area, looking for a teller position. On his applications he indicated that he had been fired for "unacceptable customer service." None of the other banks hired him, though one bank HR Department contacted Cindy Thomas to ask about Jason's application. After hearing that Jason had listed the reason for his termination on an application, Cindy tried to explain the circumstances to the HR Manager of the other bank. She noted that Jason had been one of their best cashiers, that his termination happened under very unusual circumstances, and that she doubted customer service would be a problem in his next position.

After his sixth application is rejected, Jason comes to you because he wants to file a claim against Big Money. Please describe the claims Jason might have.

Part II

Susan Jones is a part-time college student at Golden Gate University studying computer programming. In May 2000, she responded to an ad in the college paper placed by a company called eFamily. The ad indicated that eFamily was looking for experienced "tech savvy" students to monitor various eFamily sites on a shortterm basis. eFamily is a forprofit internet firm which provides email services and internet sites for use by its customers who pay a subscription fee. eFamily has over 500,000 subscribers and 1500 employees. It had revenues in excess of $2 million last year.

After calling eFamily's offce in Palo Alto, Jones was called in for an interview by eFamily Human Resources Director, Mark Davis. Mark told Susan that eFamily needed mature people, who could "freelance" from their own home computers, independently and without supervision. He said the freelancing would consist of monitoring the content of communications among customers on eFamily's various internet sites. He said freelance monitoring was critical to ensure that the content stayed within eFamily's corporate image of providing "wholesome internet communication the whole family can enjoy." Mark informed her that the work would be compensated at $4/hour, plus free internet services worth an additional $200/month.

Susan told Mark she was excited for the opportunity, especially given eFamily's reputation as a great place to work. She added that she hoped the position might turn into something permanent. Mark told her that it was likely that, if she did a good job as an eFamily Monitor, she would receive a permanent position.

Mark then had Susan sign a work agreement specifying that she would be retained as an independent contractor in the role of "freelance monitor." He also gave her a company manual setting forth the guidelines on monitoring, and told her that she should pick what hours of the day she wanted to monitor each week. Susan asked how many hours he thought she should specify. Mark told her that eFamily would expect a minimum of 20 hours per week, but that she could work any hours of the day she wanted and was free to pursue other employment opportunities while not performing her duties for eFamily. After receiving her hours preferences, eFamily would send her an email advising her of which sites eFamily needed her to monitor.

Susan told Mark she would cover an assigned chat site from 5am - 8 pm on Mondays, and from 5am-12 pm on Tuesdays and Wednesdays because she was assisting one of her professors in the computer lab on Thursdays and Fridays.

After 10 weeks, Susan called and asked Mark whether she was going to be hired as a permanent employee. Mark told her that she was "doing great," but that he couldn't hire her. She then asked for raise, and Mark refused. At that point Susan told Mark she was going to get a lawyer "to get what I'm due."

Mark calls your firm for advice. The senior partner asks you to list and analyze the potential wage and hour claims Susan might raise.

Part III

Question 1:

Tom Smith, an African-American male, is hired by the State of California Department of Energy (DOE) to work as an engineer at its San Francisco office. There are 40 other employees in his office. On March 15, 2000, Tom is told that the promotion he wants is going to a less-qualified, Caucasian employee.

Tom calls you today, right before this exam, asking for your advice about about whether he can bring any "good" statutory discrimination claims. Please list Tom's viable claim(s), if any, below:

Question 2:

Tom Smith (the same person as in question 1) quits the DOE in May 2000. In June 2000, Tom responds to an ad in the newspaper listing openings for engineers at Best-in-the-West (BITW) Gas Company. (BITW has over 10,000 employees in California.) After submitting his application and interviewing with a BITW hiring manager, Tom gets a call on December 1, 2000 from a BITW receptionist. The receptionist tells him, "They just filled the job and you didn't get it. I'm sorry -- I thought you were more qualified than that white kid they hired instead of you."

In the same call you have with Tom, right before this exam, Tom also asks you for advice about "good" statutory discrimination claims he might have against BITW. Please list Tom's viable claim(s), if any, below: