M&W DISCRIMINATION RETRIAL BEGINS

A new trial with a new jury in a gender discrimination lawsuit against M & W Packaging started Monday in U.S. Eastern District Court.

The original eight-member jury that heard the case in October could not reach a unanimous decision in the two-day trial after nearly five hours of deliberations. So Judge E. Richard Webber declared a mistrial and started over with new jurors.

This is the fourth time in four years as a federal judge that Webber has declared a mistrial over a deadlocked jury. He doesn't apply the "hammer instruction," when a judge orders jurors to deliberate until a decision is reached.

"You can tell when they've worked hard to get everything right," Webber said. "It's often implicit that they've already done all that they can. You can tell sometimes by their body language."

As for sitting in as judge over the same trial twice, Webber doesn't mind.

"It's the most important day of the litigants' lives," he said. "I try to keep that in mind."

Dene Drury, 35, has not been treated equally by M & W Packaging, said Carla Holste, a Jefferson City attorney representing Drury.

Drury, who started work at the plant in 1993 as a packer, became pregnant in 1996. She informed the human resources office of this in August, and filled out paperwork to be released through the federal Family Medical Leave Act.

The medical leave act allows employees to take up to 12 weeks off from work each year for health reasons.

Drury of Cape Girardeau had complications with her pregnancy. She used the family leave act to take two or three days off at a time during the fall and early winter. During this time, she did a good job of keeping in touch with the company's human resources department about absences.

But this changed when she decided to take a longer term leave from work that started Feb. 18, 1997. She told her employer she would be back at work March 7.

"During that whole time she doesn't call, doesn't send a note, her boyfriend doesn't come to explain," said Douglas Richmond, a Kansas City attorney for M & W Packaging. "It's absolute silence."

On March 13, the human resources department called Drury and told her she needed to provide documentation for her absence. When no calls or documentation were received from Drury by April 4, a letter was sent to her stating that she had abandoned her job by Diane Bowman, director of human resources for M & W Packaging.

Then, on April 7, Drury's boyfriend came to the plant with several doctors' notes excusing her from work.

Richmond said that multiple dates for Drury to return to work were written on the notes.

"We have never had an employee who showed so little effort to cooperate on the family leave act," Richmond said.

Still, the company extended Drury's leave beyond April 21, the date when her 12 weeks off from work ended.

Drury had agreed with M & W Packaging to return to work on June 11, so she was scheduled to start at 6:30 a.m.

But on June 10, Drury's nearly 2-month-old son became ill, and a doctor advised her to stay at home with him for the next 24 to 48 hours, Holste said.

Richmond admitted that Drury followed procedure, calling in and leaving a message with the human resources department at 5:45 a.m. on June 11.

"But at that point, her message didn't hold much water with them," Richmond said. "She didn't have credibility with human resources, so she was fired."

Drury, who has worked since being fired, has not been able to achieve wages similar to the $9.71 an hour that she made at M & W Packaging.

She is seeking damages to make up for lost wages and extra expenses from her loss of health insurance, Holste said.

The trial resumes today.