Bar Journal - Spring 2006
Anatomy of an Employment Discrimination Lawsuit
By: Attorney Lauren Simon Irwin
Employment discrimination continues to exist in New Hampshire. Litigation of these types of claims can be both challenging and rewarding.
New Hampshire’s State Anti-Discrimination Law, RSA 354-A, was originally derived from a variety of New Hampshire statutes enacted between 1965 and 1992 and was repealed and re-enacted as RSA 354-A in 1992. In 1992, RSA 354-A was amended to allow the award of compensatory damages. In addition, RSA 354-A was amended to prohibit discrimination based on sexual orientation in 1997. Finally, as of June 16, 2000, any party alleging to be aggrieved by a violation of RSA 354-A is entitled to bring a civil action for damages and/or injunctive relief in the superior court. This law prohibits employment discrimination on the basis of age, sex (including pregnancy), race, color, marital status, physical or mental disability, religious creed, national origin and sexual orientation.1 The law covers employers who employ six or more employees (currently excluding non-profits). In addition to our state anti-discrimination law, there are a number of federal civil rights laws which protect New Hampshire citizens from employment discrimination. See 42 U.S.C. 2000(e) et. seq. (Title VII), 42 U.S.C. 12101 et. seq. (Americans with Disabilities Act), 42 USC 1981.
This article is intended to describe the process of selecting an employment discrimination case, going through the required administrative process, filing in court, conducting discovery, and otherwise preparing for trial from a plaintiff’s perspective.
One of the most difficult and most critical issues for a plaintiff’s employment attorney is case selection. Most members of the general public have difficulty distinguishing between unpleasant work environments and unlawful practices. Therefore, an employment attorney is often faced with countless telephone calls describing “harassment” or a “mean boss” who created a “hostile environment.” After discussing the issues, it usually becomes clear that most situations are not actionable; that is, they do not involve harassment based on age, sex, race, color, marital status, physical or mental disability, religious creed or national origin or sexual orientation. If there is no harassment based on one of these categories (or a whistleblower, wrongful discharge, or FMLA issue), there is not likely to be a case.
In addition, employment attorneys must be cautious in choosing cases that involve a resignation as opposed to a termination. The federal court, in particular, has outlined the strict guidelines for finding that a resignation is, in fact, a constructive discharge. See Asselin v. Waldron, CV-02-330-M (D.N.H. 1/13/04); Blackden v. Stanley et. al,. CV-02-475-M (D.N.H. 12/31/03). Without a constructive discharge or termination, a plaintiff cannot recover lost wages as an element of damages (although there could still be recovery for compensatory and punitive damages caused by a hostile environment). While it is often the case that an employment attorney can help an employee work through issues while he or she is still employed, these cases rarely end up providing enough in the form of damages to pursue through the full course of litigation.
Finally, a plaintiff’s attorney must analyze the plaintiff’s likelihood of finding comparable employment in the near future. Obviously, the plaintiff has an obligation to mitigate (i.e. search for comparable employment), but the plaintiff is often not able to find a comparable position for some time. This issue is a significant factor in the value of the case.
Beginning the Litigation Process
After selecting a case, an employment discrimination case must be filed at the New Hampshire Commission for Human Rights (HRC) or the Equal Employment Opportunity Commission (EEOC).2 In order to state a claim under New Hampshire’s Anti-Discrimination Law, 354-A, a plaintiff must file at the New Hampshire Commission for Human Rights (“HRC”) within 180 days after the alleged act of discrimination3. Although earlier acts may be included under a “continuing violation” theory, courts have interpreted this theory very narrowly. See Truax v. City of Portsmouth, CV-00-63-B (D.N.H. 6/18/01). For federal claims, a plaintiff generally has 300 days from the alleged act in which to file.4 However, if there is a colorable claim under state law, it is advisable to file at the HRC and ask that the HRC effect a dual filing with the EEOC. The benefit of a state law claim is that there are uncapped compensatory damages (which may include enhanced compensatory damages). See Jury Instructions given in Sweeney v. Allard Nazarian Group, Inc. d/b/a Granite State Manufacturing, 02-C-0843, (Hillsborough Cty. Sup. Ct., N. Dist. October, 2005). However, because claims under Title VII and 42 U.S.C. 1981 also include punitive damages, a plaintiff will most likely want to bring both state and federal claims. Therefore, because of the short statute of limitations for these types of claims, it is advisable to file the charge as soon as possible.
Choosing whom to sue is extremely important. For example, if a parent corporation or otherwise related entity is found to be a “single employer,” there may be great value in naming both entities. See Penn Tech Papers, Inc. v. NLRB, 706 F.2d 18 (1st Cir. 193). First, one entity might lack the assets to satisfy a judgment. Second, including another entity may increase the cap on punitive damages (the cap under Title VII goes from $50,000 to $300,000 depending on the number of employees employed by the employer). Finally, decisIon-makers in a larger entity may be less emotionally involved in the dispute and may be more willing to discuss settlement. In addition to the “single employer” possibility, a plaintiff may also choose to bring a charge against an individual for interference, coercion, or intimidation under RSA 354-A:11 or for retaliation under RSA 354-A:19.5
The next decision facing an employment attorney and his or her client is whether to keep a case at the HRC and/or EEOC or to request a right to sue letter from the EEOC6 so that it can be filed in court. A charging party must keep a charge at the HRC/EEOC for at least 180 days. After that point, the charging party has the option of requesting a right to sue letter, if there has not yet been a finding of “no probable cause” at the HRC.7
The HRC and EEOC are relatively inexpensive forums that provides parties with an investigator’s neutral evaluation of the case. In addition, the administrative process includes very low-cost discovery. If an investigator recommends a “probable cause” finding, a Commissioner reviews the investigation report and is likely to make a “probable cause” finding. This finding, particularly if it is accompanied with a detailed and persuasive investigation report, can provide powerful incentive for a defendant to settle the case. Further, after a “probable cause” finding is issued, the HRC sets up a conference to eliminate the unlawful discriminatory practice by assisting the parties in conciliation. RSA 354-A:21, II (a). If this effort is unsuccessful, the case is set for a hearing before three Commissioners. Id. at II (b). Although testimony is taken under oath at the hearing, the Commission is not bound by the strict rules of evidence. Id. If a plaintiff prevails at the hearing, the Commission may order affirmative action such as hiring, reinstatement or upgrading of employees, restoration of benefits, and reports on compliance. In addition, the Commission may order lost wages, uncapped compensatory damages, attorney’s fees and costs, and administrative fines up $50,000. Id. at II (d).
However, many plaintiff’s attorneys believe that it is nearly impossible to get a “probable cause” finding from the EEOC. While the HRC appears to be more receptive to plaintiff’s claims, the HRC’s investigators have very large caseloads and, therefore, a significant waiting period is involved in most cases. In addition, some defendants do not take an administrative charge as seriously as they take a civil lawsuit. Finally, historically, the Commissioners generally make smaller awards than do juries in civil cases. Additional factors that assist an attorney in making this decision include: whether you and your client believe that the HRC investigator is making progress in terms of conducting interviews and obtaining discovery, whether your client can withstand the stress of state or federal court litigation, and whether the case is likely to be settled in the near future. One final point worth mentioning is that the HRC has a free mediation program that is quite successful in resolving employment cases. Therefore, taking advantage of this program before requesting a “right to sue” is an additional factor to be considered.
A plaintiff has 90 days from the date of the right to sue letter in which to file an action in court.
Drafting a Court Complaint
The next issue for a plaintiff’s employment attorney to consider is whether to file in state or federal court. State and federal claims may be filed in Superior Court. However, if a federal claim is included, a defendant has the right to remove the case to federal court. Because the federal court is perceived as being more likely than state court to grant a defendant’s motion for summary judgment, many plaintiffs’ attorneys choose to bring the claims in state court. It is also worth considering bringing only state law claims in order to avoid removal to federal court. However, this decision involves weighing choice of forum against the loss of punitive damages. In addition, a federal court venue can sometimes encourage a substantially higher settlement offer (if the plaintiff survives summary judgment). In the case of a municipal employer, the decision may be relatively easy because one cannot recover punitive damages against a municipality. Newport v. Facts Concert, Inc., 453 U.S. 247 (1981).
In addition to choice of forum, a plaintiff’s employment attorney must consider all of the potential claims. For example, in a gender discrimination case, there may be a violation of RSA 354-A, Title VII and/or the Equal Pay Act. In a common law wrongful discharge case, there may also be a violation of the Uniformed Services Employment and Reemployment Rights Act (USSERA) and/or the Fair Labor Standards Act (FLSA). If the plaintiff is a public employee, there may be First Amendment claims as well.
A plaintiff’s attorney must also consider potential preemption issues. Generally speaking, a wrongful discharge claim does not exist when it is based on a violation of a statute that was intended to replace a common law cause of action. Wenners v. Great State Beverages, Inc., 140 N.H. 100, 103 (1995) (citing Howard v. Dorr Woolen Co., 120 N.H. 295, 297 (1980). For example, New Hampshire courts have found that no wrongful discharge claim exists when the public policy alleged is a violation of Title VII or the FMLA. Cooper v. Thomson Newspapers Inc., 6 F.Supp. 2d 109, 115 (D.N.H. 1998); Smith v. F.W. Morse & Co., 76 F.3d 413, 429 (1st Cir. 1996); Marvelle v. Spaulding Youth Center, Merrimack Cty. Sup. Ct., 00-C-0359 (Fitzgerald, J., November 28, 2000); Esposito v. Mount Washington Hotel and Resort, Coos Cty. Sup. Ct., 05-C-04 (Vaughan, J., June 17, 2005). However, where there is no statutory violation (or the statue does not provide a civil remedy), a wrongful discharge claim has potential. For example, in the case of Cook v. Environmental Compliance Specialists, Inc., et. al, 03-C-0290 (Rockingham Cty. Sup. Ct. March 2005), the plaintiff prevailed on a wrongful discharge claim in which she claimed that she was discharged in bad faith for using earned and authorized vacation time to care for her dying bother-in-law. In addition, a wrongful discharge claim can be used to litigate a wage claim (in lieu of, or in addition to, RSA 275 and/or federal wage and hour statutes) in superior court. This choice may allow a plaintiff to recover emotional distress damages in addition to the damages provided by the statute(s).
Finally, if the claim involves an allegation of racial discrimination, a plaintiff’s attorney should take care to make an allegation under 42 U.S.C. §1981 in order to avoid the caps on compensatory and punitive damages contained in Title VII.
In a case involving a termination, the plaintiff has the burden of proving that the discrimination was a motivating factor in the employer’s decision to terminate. If a plaintiff is able to prove that the reason for termination alleged by the employer is an excuse or pretext, discrimination may be inferred. Pretext may be found if the employer treated the plaintiff differently than other similarly situated employees or if the employer’s explanations for its decision to terminate the plaintiff are found to be false. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993), (“[t]he fact-finder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination”); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (“Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination and it may be quite persuasive … In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose …[O]nce the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision…”); Kozlowski v. Hampton School Board, 2003 WL 22273073 (4th Cir. 2003); Che v. Mass. Bay Trans. Auth., 342 F.3d 31, 39-40 (1st Cir. 2003); Afshar v. Pinkerton Academy, CV-03-137-JD (2004 DNH 130).
Most plaintiffs’ employment attorneys will tell you that the first role of discovery is to gather enough evidence to avoid summary judgment. For example, in the gender discrimination case of Chadick v. City of Nashua, 03-C-042 (Hillsborough Sup. Ct. N. Dist. December 2004), it was important for plaintiff’s counsel to learn about the male employees in Ms. Chadick’s recruiting class and to gather information about male police officers who had been terminated in order to have valid comparators for the gender discrimination claim. This was a situation in which Ms. Chadick was terminated just 16 days after she was hired based on alleged performance deficiencies. She had heard negative gender-related comments, but she was not in the position to know how other recruits had been treated in the past or on what basis male police officers had been terminated. Therefore, discovery was critical in order to gather evidence necessary to prove the case. In addition, the plaintiff often has not seen the entire personnel file (which should include all documents relating to the employee) before litigation begins. For example, Ms. Chadick was surprised to find in her file a series of memos prepared on the day of her termination (but never shared with her) purporting to describe performance flaws supporting the termination.
In addition, depositions are crucial and often result in helpful admissions. For example, in the Chadick case, one of Ms. Chadick’s superiors admitted at his deposition that he believed that women had to be better performers because he was concerned for a woman’s safety out on the street. It is this type of “concern” that can be strong evidence of gender discrimination. The importance of depositions in discrimination cases cannot be overemphasized. Subtle and not-so-subtle discriminatory animus often finds its way out only during depositions, when defense counsel cannot completely control the flow of information.
Finally, in this day and age, computer discovery is essential. Discovery of e-mails often provides the most valuable evidence in the case, whether it indisputable evidence of sexual harassment or important evidence concerning motive or ill will by a supervisor.
Experts are both necessary and helpful in an employment discrimination case. For example, a disability discrimination case may require the testimony of both the treating physician and a specialist in order to prove that the plaintiff was, in fact, disabled, as defined by the statute(s) and/or that requested accommodations would have allowed the plaintiff to perform the essential functions of the job. Medical experts may also be helpful in proving emotional distress damages in other types of employment discrimination cases. Economic experts are typically used when a plaintiff intends to prove a future loss of wages and benefits. See Porter v. City of Manchester, 151 N.H. 30 (2004) (no expert testimony required where plaintiff presented a chart summarizing future post-earnings). Finally, other types of experts can often prove helpful. For example, in the Chadick case, the plaintiff used a firearms trainer as an expert to prove that Ms. Chadick was trainable and that she was able to pass the firearms test with a very short amount of additional training. Similarly, in the Sweeney case, the plaintiff used an employment attorney (Julie Moore, Esq.) as an expert on employment practices. Other considerations may include whether an expert is necessary regarding treatment generally received by minorities and women in certain professions, for other issues of the institutionalization of discriminatory policies and practices.
Employment discrimination cases tend to be quite paper-intensive. In federal court (and increasingly in state court), almost every case involves a motion for summary judgment by the defense. As discussed above, in a case involving termination, the plaintiff must have enough evidence to show that discrimination was a motivating factor in the termination decision. “For sexual harassment8 to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). Employment attorneys should take time to thoroughly argue the case in his or her objection. In addition, there are some occasions in which the plaintiff’s motion for summary judgment or partial summary judgment makes sense. For example, if a defendant claims that it discharged a disabled individual because it perceived that individual as a “direct threat,” a plaintiff may be successful in moving for summary judgment on the basis that the employer did not obtain any objective evidence through a medical care provider to support that belief.
In addition to motions for summary judgment, motions to compel are equally important. For example, defendants often claim that documents relating to an internal investigation need not be produced due to attorney-client privilege or attorney-work product. These claims are often defeated by a motion to compel. See Burley v. New England Homes, Inc., 05-C-0380 (Rockingham Cty. Sup. Ct. 11/30/05).
Because a successful plaintiff is entitled to recover his or her attorney’s fees and costs from the defendant, there is a powerful incentive for early settlement. As discussed above, the HRC has a free mediation service while a case is pending at the HRC. Superior Court Rule 170 mediation is usually required, and the federal court mediation program offers the services of some of the most experienced litigators in New Hampshire. In addition, employment cases are often privately mediated with great success. Some of the benefits of settlement include the ability to allow a plaintiff to resign and have a favorable letter of reference which allows the individual to move forward in his or her career. This may be more valuable to a plaintiff than a public trial. For the employer, the benefits of settlement often include confidentiality, no admission of wrongdoing, and avoidance of an unpredictable jury verdict and payment of the plaintiff’s attorneys’ fees and costs all the way through trial and/or appeal.
Finally, there has been a substantial plaintiff’s verdict in nearly every employment case tried in the last few years.9 Madeja v. MPB Corp., 149 N.H. 371 (2003)($433,740 in compensatory and punitive damages, plus approximately $125,000 in attorney’s fees and costs, on Title VII and 354-A claim); Porter v. City of Manchester, 151 NH 30 (2004)($400,000 in compensatory and punitive damages, plus attorney’s fees and costs on First Amendment claim); Bono v. Muzak LLC et al, 01-C-0171 (Rockingham Cty. Sup. Ct.) (jury verdict of $75,000 for compensatory damages and $1,000,000 for punitive damages on Title VII claim) Chadick v, City of Nashua 03-C-042 (Hillsborough Sup. Ct. N. Dist. December 2004) ($200,113 jury verdict plus attorneys fees and costs; $360,000 settlement on RSA 354-A claim), Snelling v. City of Claremont, et. al,. 03-C-0066 (Sullivan Cty. Sup. Ct. October 2005) ($355,981 plus attorney’s fees and costs on First Amendment claim, appeal pending); Cook v. Environmental Compliance Specialists, Inc., et al, 03-C-0290 (Rockingham Sup. Ct. March 2005) ($165,300 jury verdict on wrongful discharge claim); Sweeney v. Allard Nazarian Group, Inc. d/b/a Granite State Manufacturing ($480,000 jury verdict on wrongful discharge claim; 354-A and FMLA claims pending).
If the case goes all the way to trial, plaintiff’s counsel must be able to tell a compelling story of discriminatory treatment. Most jurors have likely experienced what they would consider unfair treatment by a supervisor or employer. However, most people have a hard time believing that there is a true discriminatory intent involved. Therefore, specific examples of different treatment and/or discriminatory statements are essential. For example, in the Sweeney case, plaintiff’s counsel were able to show that the human resource director sent a fax to the insurance agency in order to remove the plaintiff from the health insurance at the very first moment available. This helped demonstrate the employer’s motive to terminate the plaintiff in order to save health insurance costs. Equally compelling was the employer’s statement to the plaintiff in the Cook case. In that case, the plaintiff claimed that she was fired because she took an authorized vacation day to take care of her dying brother-in-law. The quote repeated throughout the trial was that one of the owners of the company said to the plaintiff, “When is he f——g going to die?” when she spoke to the plaintiff about returning to work. Finally, in the Chadick case, a supervisor admitted that he told Ms. Chadick that she had to perform better because she was female.
Plaintiff’s counsel should keep in mind all of the different elements of damages available. For example, a 354-A claim allows recovery of uncapped compensatory damages. This may also include enhanced compensatory damages, in whatever amount the jury considers appropriate. An FMLA and Equal Pay Act claim may include liquidated damages. Federal civil rights claims permit the recovery of punitive damages. Thus, the jury should be educated on each element of damages.
Employment lawyers must carefully evaluate potential cases and be methodical throughout discovery and trial. Because this is an ever-changing area of the law, employment attorneys should be careful to stay up to date on the most recent decisions that may affect jury instructions and other issues involved in the cases. This is not an area in which dabbling is recommended. With careful case selection and thorough discovery and trial preparation, New Hampshire judges and juries have repeatedly demonstrated an interest in making fair and substantial awards in employment discrimination lawsuits.
1. RSA 354-A also prohibits discrimination in housing and places of public accommodation.
2. This filing is not necessary for FMLA claims, Equal Pay Act claims, Whistleblower claims, or Common Law Wrongful Discharge claims.
3. The date of the act of discrimination has been found to be the date upon which the plaintiff was told of an impending action such as termination, rather than the date of the termination itself.
4. The 300 day filing requirement applies only to situations where there is a dual filing of a Federal claim with the EEOC and HRC. Thus, best practice is to file within 180 days to be safe.
5. However, Judge DeClerico has recently ruled that only an employer’s actions can constitute retaliation under RSA 354-A:19. Jones v. McFarland Ford, CV-05-347-JD (D.N.H. 12/15/05).
6. Although the request for “right to sue letter” goes to the EEOC, it should be copied to the HRC because a charging party is required to give the HRC notice of a court filing. RSA 354-A:21-a, II.
7. If “no probable cause,” has been found, there is a right of appeal to the superior court, but the charging party must prove that the HRC’s decision was unlawful or unreasonable by a clear, preponderance of the evidence. RSA 354-A:21, II(a).
8. Other types of unlawful harassment have been analyzed under the same standard.
9. In addition, the case of EEOC v. Fred Fuller Oil Company recently settled for $780,000.00.
Attorney Lauren S. Irwin is a partner with Upton & Hatfield, LLP in Concord, New Hampshire. Her practice involves primarily litigation, representing plaintiffs and defendants in employment discrimination, sexual harassment, wrongful discharge, Family and Medical Leave Act, and other employment cases involving both federal and state law. Attorney Irwin is a graduate of Boston University Law School and Wesleyan College, and is president of the New Hampshire Chapter of the National Employment Lawyers’ Association, and vice-chair of the NHBA Labor & Employment Section and Chair of the Federal Practice Section.