Category Archives: Retaliation

“What to Expect During Your Employment Law Dispute” – Part 5: Mediation

The Local Civil Rules for the U.S. District Court for the District of South Carolina require that all civil cases be mediated with prior to trial. As many, if not most, types of employment cases are litigated in the federal courts, there is a good chance that you will attend mediation at some point in the course of your employment case.

Mediation is an informal and confidential method of resolving employment disputes with the assistance of a neutral third party mediator. In the setting of employment litigation, the mediator is usually an attorney and it can be very beneficial if the mediator has knowledge and experience in the field of employment law. The mediator is not a judge or an arbitrator and his or her role in mediation is not to decide who is right or wrong or to make a ruling on the merits of the underlying case. The mediator’s role is to help the parties reach an agreement on how to resolve a case. Generally, there is no requirement that the parties resolve their case in mediation and, if the parties are unable to settle, the case then moves on to or proceeds with the next stage of litigation.

Generally, the mediation will begin with both parties and their counsel in the same conference room and with the mediator explaining the process. This explanation will usually include a discussion about confidentiality and will be followed by the parties signing a mediation confidentiality agreement, which basically requires the parties to keep all settlement discussions that occur during the mediation confidential. Agreements of this nature usually prohibit the parties from utilizing statements made in the mediation as a part of the case and assure each side that the mediator will not and cannot be called as a witness in any litigation.

What happens next in the opening portion of the mediation is really up to the mediator. Some mediators will ask each party to explain their side of the case. Some mediators will ask each party to state their proposed resolution of the conflict. Some mediators do not allow opening remarks by either side and put the parties and their counsel in separate rooms after explaining the mediation process. Some mediators begin the mediation with the parties in separate rooms and explain the process separately to each side rather than with the parties together as a group. Regardless of how the mediator chooses to begin the mediation, the parties will be placed in separate rooms after the mediation gets going and the mediator will meet with each side separately to discuss the strengths and weaknesses of the case and to encourage settlement and discuss the potential ways in which the case could be resolved. The mediation will proceed with the mediator privately discussing the case and discussing potential resolutions or offers with each side. The mediator will convey any such resolutions or offers that a party agrees with to the other side and so on.

If the mediator is able to resolve some or all of the case, the mediator will generally summarize in writing the terms upon which the parties were able to agree at mediation and have each side sign the same. Such informal, and often brief, mediation agreements are typically enforceable if they are signed by all parties and contain the basic terms of the settlement agreement reached at mediation. After the mediation, if the parties reach an agreement, they will usually have to finalize the agreement in a more formal and detailed written settlement agreement.

Mediation can be a great way to resolve employment disputes before or after litigation commences. In mediation, both parties have at least some control over the ultimate outcome of the case. Such is not usually the case when matters are resolved in court by a judge or a jury.

What To Expect During Your Employment Law Dispute – Part 2: Filing A Lawsuit

Welcome to Part 2 of our six part series on “What to Expect During Your Employment Law Dispute.” Assuming you have received your “golden ticket” from the EEOC, discussed in Part 1, (and remember that some claims do not require you to file with the EEOC such as FMLA claims, wage claims/overtime issues, and breach of contract cases) it is now time to file your official lawsuit and get things started.  Remember, you only have 90 days to file a lawsuit if you received a Notice of Right to Sue from the EEOC.  Those 90 days will pass quickly and you do not want to wait until the last minute.  If you already have an employment law attorney, great!  If you don’t, it is time to start calling law firms to see if someone is willing to represent you in filing your case.  If you cannot find a lawyer to represent you, you are also allowed to file your own lawsuit pro se (the legal word for representing yourself without an attorney).

In order to officially file your lawsuit, you must file a Summons and Complaint in either South Carolina state or federal court.  You can call the Clerk of Court’s office for assistance if you do not have an attorney.  They will help you fill out the appropriate paperwork.  The filing fee in state court is $150.00 and the filing fee in federal court is $400.00.  If you are represented, your attorney can advise you on the differences between filing in state or federal court.  Generally, if you file in state court the employer will “remove” (or transfer) the case to federal court and you will end up litigating in federal court anyway.  After you file the case in the Clerk of Court’s office, you will have to “serve” the lawsuit on the employer.  If you have an attorney, your attorney will handle this for you.  If you do not have an attorney, the Clerk of Court’s office will instruct you how to serve the documents on your employer.

After your employer receives the Summons and Complaint, it will have 21 days (in federal court) or 30 days (in state court) to file an Answer.  Attorneys will sometimes grant each other extensions if requested timely.  An Answer is a legal document where the employer generally denies most of the allegations and files its appropriate defenses to your claims.  Employers also have the option to file a Motion to Dismiss instead of filing an Answer.  If an employer files a Motion to Dismiss, you will have to defend against the motion.  After the employer files its Answer or the Motion to Dismiss is resolved, the Court will generally enter a Scheduling Order.  The Scheduling Order is a list of due dates for certain elements of your case that the lawyers must comply with.  Your lawyer and the employer’s lawyer will have a telephone conference to discuss the due dates and other elements of your case.  Thereafter, your case will enter the “Discovery” phase, which will be discussed in Part 3 of the blog series.  Always contact a South Carolina employment lawyer to assist you with your legal questions.

Upcoming Series: What To Expect During Your Employment Law Dispute – Part 1: EEOC

For the next several series of blog posts, I am going to be discussing what you should expect to happen after you hire a lawyer for your employment law dispute (excluding federal employees).  The series will be divided into six parts:

Part 1:  EEOC Proceedings

Part 2:  Filing a Lawsuit

Part 3:  The Discovery Process

Part 4:  Summary Judgment- The “Mini-Trial”

Part 5:  Mediation and Alternative Dispute Resolution

Part 6:  Trial

Today we will be talking about the EEOC process.  Most employment law disputes (with some exceptions such FMLA suits, pay/overtime suits, Equal Pay Act suits, and state based claims for breach of contract, violation of public policy, or state torts) must be investigated by the EEOC before you are even allowed to file a lawsuit in court.  If you attempt to file a lawsuit without going through the EEOC first, your lawsuit will likely be dismissed for lack of jurisdiction.  The EEOC (Equal Employment Opportunity Commission) is a federal agency tasked with investigating complaints of workplace discrimination based on race, color, national origin, religion, sex (including pregnancy discrimination), age, disability, genetic information, and retaliation for reporting/participating/opposing a discriminatory practice.  Assuming your employer has a minimum of 15 employees (or 20 for age complaints) you must make a complaint to the EEOC within 180-300 days of the discriminatory action for your complaint to be timely.  If you wait beyond this time period, your complaint can be dismissed for untimeliness.  It is important to take prompt action if you feel you are the subject of workplace discrimination or retaliation based on one of the above criteria.

The EEOC has a very comprehensive website that explains the process in detail and provides a wealth of information on filing a charge.  You can click here for information on how to file a charge of discrimination or retaliation with the EEOC.

You can call your local EEOC office to get more information or to get the complaint process started on the telephone.  Some lawyers will also assist you with the EEOC process if they agree to represent you.  Once you have filed your initial complaint and the EEOC opens a file for your charge, your employer will be notified that you have filed a charge and will be given a chance to file their “Position Statement.”  The employer’s Position Statement is their place to tell the EEOC why they believe the way they treated you was not unlawful.  Employees are not typically given a copy of the Position Statement until after the investigation is complete and only after a Freedom of Information Act (“FOIA”) request is sent in.  If an attorney is representing you, he or she will likely send a FOIA request on your behalf after the investigation is complete.

After the employer files its “Position Statement,” the EEOC will send a notice to both sides inviting them to participate in an EEOC mediation (there is no mediator charge for an EEOC mediation).  The EEOC mediation is not required but can be beneficial in certain circumstances.  If either party chooses not to participate, then no mediation will occur.  If both parties agree to mediation, the mediation will be scheduled with an EEOC mediator.  The EEOC mediator is typically a person employed by the EEOC that may or may not be an attorney.  They will set up a time to meet (typically a 1/2 day) in a neutral location and all parties will meet at the prescribed time.  Normally, the mediation will start with everyone in the same room where the attorneys will give a brief opening statement.  After opening statements, the parties will be separated into different rooms and the mediator will shuttle back and forth between the rooms to see if a resolution can be achieved.  If the mediation is successful, the case ends.

If mediation is not successful, your file will be returned to the EEOC investigator for further investigation.  The EEOC investigator will normally call the employee (and his or her attorney if they have one) and conduct a conference call to get some more facts.  After the EEOC concludes the investigation, they will typically issue a “finding.”  The EEOC “finding” could include a finding of discrimination or of non-discrimination. Either way, the “finding” will be accompanied by a “Notice of Right to Sue.”  The Notice of Right to Sue will give no more than 90 days to file your lawsuit in court.  Your Notice of Right to Sue is the golden ticket to bring your case in court.  Without your golden ticket, you cannot file a lawsuit.  It is important that if you do not have an attorney during the EEOC process but plan to hire one to file a lawsuit in court, you start calling employment lawyers immediately after receiving your Notice of Right to Sue.  It can take some time to find an employment law attorney that can help you with your case and get your lawsuit filed within the 90 day timeframe.

The entire EEOC process can last about one year if mediation is not successful.  The EEOC has a large backlog to get through and attorneys cannot speed the process up.  In Part Two of this blog series, I will discuss what happens after you have your Notice of Right to Sue and move forward to filing your lawsuit in federal or state court.

How To Hire a Law Firm For your Employment Law Dispute

At Falls Legal we often receive questions from employees about various types of employment law issues.  These questions generally involve an employee who is experiencing a problem at work.  I find that preparing potential clients for the types of information we need to know and questions that they should ask is beneficial for everyone.  So here goes…..

1)  Don’t use legal terms of art such as “hostile work environment,” “wrongful termination,” or “retaliation.”

We often receive calls from employees who feel they have been “wrongfully terminated.”  “Wrongful termination,” “hostile work environment,” and “retaliation” are legal terms with very specific definitions associated with each.  Only after you have spoken with a lawyer, will you be able to determine whether your case falls into one of these categories.  For some previous blog posts  regarding hostile work environment, retaliation, and wrongful termination, click here.

2)  Call Multiple Lawyers

It is often a good idea to call multiple lawyers before selecting a firm to assist you with your employment matter.  Sometimes you should call other lawyers to see if they will handle your case for a different type of fee (contingency, hourly, etc.)  Other times you should call different attorneys to see if they disagree with the analysis and have other theories on your case.  Sometimes you should call other lawyers just because you did not get a good feel from the first lawyer’s office you called. We are happy to make referrals to other employee representation attorneys in the area if we cannot handle your case.

3)  Be Honest

No case is perfect and we understand that.  In order for us to fully assess your case, we need to know what the employer is going to say.  In fact, I always ask potential clients “what is the employer going to say their reasoning for the action is?”  Many times, the employee will know or have a good idea.  If you have had performance issues, suspensions, or are presently on a performance plan, I need to know that.  An attorney cannot protect you from things that he or she does not know.  If you are honest and acknowledge the weaknesses in your case, this assists in determining the best strategies to help you combat these issues.  For example, if you are having performance issues at work but other employees that are not in your protected category are also having these issues and being treated more favorably, that might have an impact on your case.

4)  Talk About Your Proof

We need to know about any paperwork, witnesses, or other evidence you have that supports your claim.  If you have a contract or Employee Handbook, we will need to see that.  If you have emails that are relevant, we will need these as well.  The names and contact information of potential witnesses are also helpful.

5)  Understand That The Process Is Slow

Employment law cases are special because, in many situations, you must first file a complaint with the EEOC before you can file a lawsuit in open court.  There are strict timeframes for doing so.  The EEOC process can take up to a year before you are even able to file in court.  If your case proceeds to court after the EEOC investigation is complete, that can take 1-2 more years.  There are some cases where the employer is willing to discuss an early resolution to the case but those cases are rare exceptions.

In sum, if you are having an employment related issue at work, you should proactively reach out to multiple South Carolina employment law attorneys to determine whether it is beneficial to proceed with some type of claim.  When you do so, be honest, lay out the facts in a concise manner, tell us what the employer is going to say, and give us a synopsis of your proof.  Also, understand that not all unfair treatment at work is legally actionable.  There are many times in which an employer is treating an employee in an unfair manner but it is not necessarily illegal treatment.

Supreme Court Revisits Retaliation

Retaliation claims under Title VII are one of the most frequently filed types of claims at the EEOC (31,000 in 2012), second only to claims of racial discrimination. A new ruling by the Supreme Court will likely curb these numbers sharply. The decision in University of Texas Medical Center v. Nassar, one of two employer-friendly opinions issued on the same day, is bad news for employees who feel they have been retaliated against for exercising their Title VII rights.

Title VII provides, “it shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). An unlawful employment practice is “established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).

The plaintiff in the Nassar case was Dr. Naiel Nassar, a medical doctor of Middle Eastern descent. He alleged that his superior, Dr. Beth Levine, discriminated against him on the basis of his religion and ethnic heritage. After Nassar reported the behavior, his employer (University of Texas) withdrew a job offer it had made some time earlier. Nassar sued UT for harassment and retaliation, arguing that UT retaliated against his report of workplace discrimination by denying him a job it had previously offered him. Nassar’s case hinged on the reason behind UT’s decision to pull the plug on his job offer; he argued that an employer can be held liable for “retaliation” as long as retaliating was one of several motivating factors (the “motivating factor standard”) for an employer’s adverse employment action (here, the revocation of a job offer). UT argued that the standard for employer liability is higher (the “but-for standard,” meaning the plaintiff must show that the adverse employment action would not have occurred but-for the defendant’s conduct, i.e. the job offer would have never been revoked if Nassar had never reported Dr. Levine to UT for discrimination).

The Supreme Court agreed with UT. In a 5-4 decision written by Justice Kennedy, the Court required the employee-claimant to show that his protected activity (reporting a Title VII discrimination issue; see 42 U.S.C. § 2000e-3(a)) was the “but-for cause” of the adverse employment action (termination, not getting hired, demotion, pay decrease, etc.) taken against him. The Court made this determination after comparing and contrasted the relevant portions of Title VII to similar pieces of legislation, interpreting statute language and construction, inferring Congress’s intent, and stating the need to prevent frivolous and burdensome lawsuits in our legal system.   Prior to this, some lower courts had been on Nassar’s side, holding that an employer who made an adverse employment action could be held liable for retaliation even if there were other “valid” reasons for taking that action; now, the employee bears a bigger burden, and must show that the adverse employment action was taken for the primary purpose of retaliation.

What does Nassar mean for employees?

Unfortunately, this ruling has limited the scope of employees’ Title VII rights and makes it harder for victims of retaliation to sue by providing an easy defense for employers.  An employer can escape liability simply by showing that other reasons existed for the adverse employment action and that such action would have been taken regardless of any Title VII discrimination complaints made by the employee.  In her dissent, Justice Ginsburg laments that the Court’s decision has “undermined” the purpose of Title VII retaliation claims by encouraging employees to remain silent when they are victims of or witnesses to acts of discrimination in the workplace. We will have to wait and see if Congress revises Title VII or chooses to accept the majority’s interpretation. If you feel like you have been subjected to retaliation at work then you should contact a South Carolina employment lawyer.

Supreme Court Weighs in on Who is Considered a Supervisor for Purposes of Vicarious Liability under Title VII

Last week, the Supreme Court delivered an opinion in Vance v. Ball State University, answering the question of who qualifies as a “supervisor” under Title VII; their decision is going to have a big impact on dozens of active employment law cases.

Title VII of the Civil Rights Act provides that it is “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e—(2)(a)(1).

There are different levels of employer liability depending on who the harasser is. If the harasser is a supervisor, the employer is vicariously (i.e., automatically) liable under Title VII. The Equal Opportunity Commission and several lower courts have butted heads over the meaning of “supervisor.” The EEOC has maintained that a supervisor is anyone with “the ability to exercise significant direction over another’s daily work” while the courts have applied a more stringent standard (the ability of the person to undertake “tangible employment actions”, discussed below).

In this case, Maetta Vance, an African-American woman, claimed that Saundra Davis, her white co-worker, was creating a racially hostile work environment in violation of Title VII. Vance (a “catering assistant”) claimed that Davis (a “catering specialist”) was her supervisor, entitling her to Title VII protections; her employer, Ball State University, contended that Davis was not a supervisor because she did not have the power to “hire, fire, demote, promote, transfer, or discipline Vance.”

In a 5-4 decision delivered by Justice Alito, the Court sided with Ball State, stating that a “supervisor” is someone who has the ability to take “tangible employment actions” (i.e., an act which causes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”). This ruling rejects Vance’s and the EEOC’s “nebulous” definition of supervisor, saying it creates undue confusion among judges and jurors. Vance lost for two reasons: (1) Davis was not a “supervisor” because she did not have the power to take tangible employment actions against Vance; and (2) Vance was not able to show that Ball State was negligent or unreasonable in how they handled the situation.

What does Ball State mean for employees?

Unfortunately, this decision has limited the scope of employees’ Title VII rights and makes it harder for victims of harassment to sue right away. However, if a non-supervisor coworker is harassing you (see these blog posts for discussions of what “harassment” really is), your employer still has obligations to fulfill. Because harassment from any source can contribute to a volatile work environment, you can still complain to your employer, who then must take action to prevent the harassment from occurring again. If your employer is negligent in taking action and the harassment continues, you may have a valid Title VII claim. As the Court stated, “an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment.” If you feel that you have been subjected to illegal discrimination or retaliation in the workplace, then you should contact a South Carolina employment lawyer.