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March 2004      

What to Expect in a Discrimination Lawsuit

Getting sued for employment discrimination is a fact of life for employers. Even those employers with sound business practices and who actively take steps to avoid claims of discrimination get sued on occasion. This article is designed to provide employers with insight into what happens prior to a trial during the course of a typical discrimination lawsuit.

Administrative Action
Many employees in Michigan attempt to have their claims litigated by the Equal Employment Opportunity Commission (EEOC) or the Michigan Department of Civil Rights (MDCR). The EEOC is a federal agency that has the power to institute litigation in federal court. The MDCR is a state agency that can sue an employer in its own administrative forum. In Michigan, a private lawsuit under Michigan’s civil rights statutes can be brought in court by an employee regardless of whether the employee first sought relief from the MDCR. Federal claims cannot be brought by an individual unless he or she obtains a right to sue letter from the EEOC. Many employees do not bother with the administrative process and simply hire a lawyer and file a lawsuit. If an employee does go the MDCR or EEOC and his or her claim is dismissed, the dismissal does not prevent the employee from suing in court.

Personnel File Request
An employee contemplating litigation may request a copy of his or her personnel file prior to filing the lawsuit. Many times the employee’s attorney will want to examine the file prior to filing a lawsuit. If you receive a request for personnel records from the employee, be advised that Michigan law requires the employer to provide a copy of the records to the employee. The production of records includes information kept in files other than the official personnel files if those records were related to personnel actions such as discipline, discharge, promotion, demotion, or, are in any way related to the employee’s qualifications for the job. The failure to produce these documents upon request could result in the employer being prohibited from relying on the documents if litigation ensues. If your documentation is good, it could discourage the employee’s lawyer from filing the lawsuit.

Complaint and Service
A lawsuit is initiated by a plaintiff filing a lawsuit and serving that lawsuit upon the Company. Once a lawsuit is properly served, a defendant has a certain number of days (e.g. twenty in federal court cases) within which to admit or deny the specific allegations. If no answer is filed within the required time period, a default judgment may be entered against the defendant. Because the clock starts ticking as soon as the Company is served, it is extremely important the Company have procedures in place for getting any lawsuit that is received to in-house legal counsel or to the officer in charge of legal matters so that a timely decision can be made on who will represent the defendant in the lawsuit. A decision as to who to retain as counsel should be made as soon as possible. Because plaintiffs do not always follow the rules on service of lawsuits correctly, it is important that a record of when the papers are received by the Company and who received the papers is made. This information should be given to your counsel so that counsel can determine the number of days within which the company must respond and whether the service of process was made in accordance with the rules.

Initial Review and Investigation
After receiving the lawsuit, the attorney will want to know who made the decision(s) complained of by the plaintiff, who the material fact witnesses are, and the names and addresses of witnesses who have left the company. The attorney will also need copies of all personnel records and other documents pertaining to the plaintiff’s employment. Your attorney will need to quickly draft and answer to the complaint or, if some or all of the claims have no legal basis whatsoever, a motion to dismiss. Your attorney will likely want to begin interviewing the decision makers and the material witnesses as soon as possible. If the case has been filed in state court, your attorney will examine the claims and facts to see if there is a basis for removing the case to federal court.

Both your attorney and the plaintiff’s attorney will likely send written questions (interrogatories) and requests for documents to the other side in an attempt to find out more information. Your attorney will need a contact point within the company for the coordination of the company’s response to plaintiff’s discovery requests. In many cases, there are vigorous disputes as to the scope of discovery. These disputes may lead to motions being filed with the court for resolution. Also, during the discovery period, your attorney will want to take the plaintiff’s deposition and perhaps other depositions. The plaintiff’s attorney will likely take the deposition of the decision maker(s) and material fact witnesses.

In the typical discrimination case each party will employ an expert to testify on the issue of whether plaintiff suffered emotional damages. Your expert will examine the plaintiff and draft a report. Both experts will typically be deposed. Also, in discharge cases, each party may want to employ an expert to testify on the issue of whether suffered economic damages (e.g. lost wages, benefits), and whether the job market supports/does not support plaintiff’s claim that she attempted to find another job but could not.

Case Evaluation
In state court, the parties will be required to present their case through a written brief and oral presentation to a panel of attorneys. These attorney’s will attempt to place a value on the case. These “evaluations” are typically set at a number designed to settle the case; they are not necessarily a true assessment of the value of the case. The parties must decide whether or not to accept or reject the case evaluation award. If both sides accept, the case is settled. If a party rejects and does not obtain a resolution to the litigation (other than private settlement) that is significantly lower for that party than the case evaluation award, that party will also be liable for the other party’s attorney’s fees.

Voluntary Facilitative Mediation
In some cases the parties may agree to have a third party, who is usually a lawyer or former judge, help them to come to a settlement. This process involves writing a summary of the case for the facilitator and meetings with the facilitator. In these meetings, the facilitator attempts to bring the parties to a deal that they can both live with.

Summary Judgment
After discovery is over, a motion for summary judgment may be filed by the defendant if sufficient basis for the motion exist. If the company can show that there are no “genuine issues of material fact” and, by applying the law, the plaintiff cannot prove his or her claims, the Judge should dismiss the case. If there is an issue of disputed fact, that, if true, would qualify as a violation of the law, the case will not be dismissed and a trial date will be set.

Trial Preparation
If the case is set for trial, a great deal of work will need to be done to prepare. For example, your attorney will need to draft a trial brief which explains the issues to the judge, prepare jury instructions , and spend a great deal of time preparing witnesses and experts so that they are ready the testify at trial. There will often be evidentiary issues that will need to be resolved before trial. This will involve the filing of “motions in liminie” which place evidentiary issue before the judge prior to the trial beginning. The results of these motions can greatly impact results at trial.

The above article is designed to give you an overview of the litigation process in Michigan. Although employers should and do strive to avoid litigation, it is important to understand how the process works. If you do get sued, your attorney will guide you through the process and help you achieve the best possible result.