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Watching this case unfold...

Discussion in 'Termination: Firing & Resignation' started by mightyalwayz, Sep 19, 2017.

  1. mightyalwayz

    mightyalwayz Law Topic Starter New Member

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    Jurisdiction:
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    Hello folks, I'm a first-year paralegal student and recently, while scouring the dockets of my local circuit court, I happened upon a case of wrongful termination which intrigued me. I'll try and summarize in under 500 words:

    The employer moved for summary judgment on a Title VII and Section 1981 case, in which the former employee alleges that his employer terminated his employment in retaliation for his complaint of employment discrimination. The employee states that instead of conducting an investigation into his claims of the alleged discriminatory actions of his immediate supervisor (from whom he’d also just served a suspension), the next-level supervisor (to whom he’d complained) began surveilling him in an effort to create a new disciplinary write-up that would ultimately result in a new suspension (pending termination). All of which, according to the evidence, occurred within the span of a business week.

    The employer refutes this by firstly contending that it merely terminated the employee due to his demonstrably poor job performance; which is substantiated by a number of disciplinary write-ups. Furthermore – regarding the former suspension given by the immediate supervisor – the next-level supervisor then states (by declaration) that they were otherwise “allow[ing] [the employee] an opportunity to improve his performance by issuing him a second Final Warning and Three-Day Suspension.”

    The employee counters by first noting that their declaration (suspiciously) fails to mention his complaint; nor do they give a reason as to the basis of moving to suspend him within a week if they were indeed giving him an opportunity to improve his performance. This, in conjunction with the aforementioned overall timing, was further substantiated with proof of other inexplicable but key events crouched on or about that period. Most notably: an email that was sent by the next-level supervisor to the labor relations manager (the ultimate decision-maker) conferring the employee’s suspension; an email which also predates what was specifically stated by the next-level supervisor was an “investigatory” meeting – where the employee would’ve had an opportunity to rebut the alleged violations. (By the way, the employee did refute those allegations in his response; which, relatively speaking, did not seem to amount to suspension. Moreover, notwithstanding the labor relations manager supporting the suspension, in their response email, they themselves stated one of those allegations was “a little iffy.”)

    Of all, I believe the abovementioned email betrays their so-called offering the employee an “opportunity to improve his performance” because it clearly concludes a prejudgment on those violations (of which were alleged to have occurred as early as two days after the employee's complaint). Furthermore, there appears to be an obvious supplanting of due process (especially when given that the long-time employee had an even greater history of demonstrably sufficient job performance predating becoming the subordinate of his immediate supervisor) as there is nothing on record indicating that an investigation into those allegations was ever conducted, among other things. All of which undoubtedly leads to the claim that the next-level supervisor was motivated (to at least some degree) by a retaliatory animus.

    The employee also holds the labor relations manager liable under the "cat's paw" theory because the next-level supervisor deliberately colluded with them to unwittingly terminate the employee for their own unlawful reasons.

    Based on the above, is there a possibility that this motion will be dismissed? I say, yes. But, again, I don't have as much experience in law. Which is why I'm seeking the opinion of those on here.
     
    Last edited: Sep 19, 2017
  2. adjusterjack

    adjusterjack Super Moderator

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    Motions for summary judgment don't get dismissed. They either get granted and the case is over or they get denied and the trial moves forward.

    Summary judgment is granted when the court agrees that the facts are not in dispute.

    In this case it appears that the facts are still in dispute so I tend to agree (based on that alone without addressing the merits) that the motion for summary judgment will be denied and the trial will move forward.

    Indiana Rule 56 provides more information about Summary Judgment:

    Indiana Rules of Trial Procedure

    If you want to delve into summary judgment further, read some Indiana case decisions that involve the granting or denying of summary judgment:

    summary judgment - Google Scholar
     
  3. mightyalwayz

    mightyalwayz Law Topic Starter New Member

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    Sorry, my legal vernacular is still in its infancy. I meant granted or denied. (There are motions to dismiss.) I'm going to read the information you provided (as I'm beginning to become a bibliophile with respect to law briefs ).
     
  4. zddoodah

    zddoodah Well-Known Member

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    Yes.
     
  5. mightyalwayz

    mightyalwayz Law Topic Starter New Member

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    Succinct.
     
  6. ElleMD

    ElleMD Well-Known Member

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    Not knowing what evidence has been presented (or exists), how credible either party appears (yes, I know credibility isn't technically assessed at the summary judgement phase but there is always an element of credibility which must be met), what type of discrimination was alleged or how egregious the performance issues, it is really difficult to speculate.
     
  7. adjusterjack

    adjusterjack Super Moderator

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    If you can't suck a lemon, succinct.

    :D
     
  8. mightyalwayz

    mightyalwayz Law Topic Starter New Member

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    I examined the entire case file so I'm happy to tell you, among other things, what evidence has been presented. The employer submitted several disciplinary write-ups and two declarations: one from both the immediate and next-level supervisor. The write-ups – stemming from the immediate supervisor – appeared to both increase in severity (culminating with the suspension the employee served before complaining) and decrease in the time between their creation. (This is over an eleven moth duration.) The declaration from the immediate supervisor seemed like stock, company talking points, but the next-level supervisor's declaration is the intriguing of the two (for reasons stated within my OP).

    The employee established (through admission from the employer and in submitted documents) his satisfactory employment record predating the immediate supervisor (about six years). According to the employee, he'd had "over a dozen" supervisors before him. The complaint itself was relegated to a he say/she matter, but he did produce the (in my opinion damning) email which was created by the next-level supervisor in the time after the complaint and before the latest suspension. Similarly, the employee poked holes in the employer's stated reason through their own declaration.

    Since you concede that credibility is not technically assessed at the summary judgment phase, based on what I've seen, I'm personally rooting for the underdog, as corporations tend to deny even when caught dead-to-rights.

    I did forget to mention that the underlying discrimination claim was of race allegations (immediate supervisor - white, employee - black), but the employee rescinded those allegations during the course of the proceedings. Thus, his claim on summary judgment is solely retaliation against him from the next-level supervisor for reporting (what was at the time, his belief) of discrimination based on race. I read somewhere that a retaliation claim could survive even if the underlying claim was meritless. (Is that true?)

    I know cases aren't ever clear-cut, but I've seen a bunch, and this one comes close.
     
  9. adjusterjack

    adjusterjack Super Moderator

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    To what or to whom did he report the discrimination?
     
  10. mightyalwayz

    mightyalwayz Law Topic Starter New Member

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    The next-level supervisor.
     
  11. adjusterjack

    adjusterjack Super Moderator

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    Should have gone right to the EEOC. Would have had a lot more protection.

    Anyway, keep coming back to this thread with updates.
     
  12. mightyalwayz

    mightyalwayz Law Topic Starter New Member

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    Will do. Also worth mentioning, the employee did, in fact, start with the EEOC. However (and I'm assuming it was probably in part due to his pro se status at the time) they dismissed his claim and issued him his right to sue notice.

    *Edit* In the EEOC claim, he also led with the race discrimination which couldn't be substantiated.
     
  13. army judge

    army judge Super Moderator

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    An Employer can terminate any at will employee without notice, justification, explanation, or cause.

    Employer: You're fired, Bill. Susan will escort you out, after you've collected your personal belongings.

    Bill: Why?

    Employer: Please continue gathering your personal effects, Susan has other pressing business to address. Goodbye, Bill.

    Employer scurries away.
     
  14. mightyalwayz

    mightyalwayz Law Topic Starter New Member

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    You are absolutely correct: "An Employer can terminate any at will employee without notice, justification, explanation, or cause." However, not only are there documented exceptions to the at-will doctrine, but we are talking about a specific instance where the employee has made claim pursuant to federal statute. The question, then, isn't simply if the employer was wrong to exercise their prerogative, but if that exercise happened to infringe upon the rights of the employee. Title VII is very clear on that aspect; and it appears that, based on the court record, it's possible that they have done so in this case.
     
  15. army judge

    army judge Super Moderator

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    Did the you, err "person X", possess a right to sue letter from the EEOC?

    Filing a Discrimination Claim - Indiana - Workplace Fairness

    Why did you, err "person X", choose to file in Indiana State Court, rather than with the ICRC administratively?

    file_IN | Pines Bach | Madison, Wisconsin

    From the site above:


    You may also wish to check to see if you live and/or work in a city or county with a local anti-discrimination law or ordinance. Some cities and counties in Indiana have agencies that process claims under local ordinances and may be able to assist you. These agencies are often called the Human Rights Commission, Human Relations Commission, or the Civil Rights Commission. Check your local telephone directory or government website for further information.



    Because Indiana's state antidiscrimination statute does not permit the compensatory (emotional pain and suffering) and punitive damages (damages which punish the employer) allowed under federal law, many Indiana attorneys choose to file employment discrimination cases in federal court using federal law. You may file employment discrimination cases using federal law in state or federal court.


    There's a great deal more on that website.

    I also thought you indicated "person X" voluntarily withdrew the discrimination complaint.
     
  16. mightyalwayz

    mightyalwayz Law Topic Starter New Member

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    Firstly, let's note for the record that "person X" is not me. I am, however, admittedly more vested in this case than others I've reviewed based on what I've read in the docket. I don't know why; maybe I don't like employers dissuading the "little man" to take action with abandon. Now that we got that (not so) covert implication out of the way; I'll address your questions in order:

    Yes, in the docket, there's the employee's right to sue letter given by the EEOC.

    I can't opine as to why he chose his given administrative route other than factually asserting (based on the information in those links, thanks) that both are available to employ and (now speculating) that he realized both options and probably tossed a coin.

    Additionally, presuming the trajectory through the EEOC and the fact that he claimed violations pursuant to federal law, is why this case was filed in the district court and not the state court. (Again, speculative.)

    *Edit* Yes, I did mention that the employee voluntarily withdrew the race discrimination claim, after it failed to be substantiated during the course of discovery. However, it was at one time made on the good-faith basis that it existed. Aside from that, retaliation is a mutually exclusive claim that can survive absent of an underlying claim. (Right?)
     
    Last edited: Sep 19, 2017
  17. army judge

    army judge Super Moderator

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    If the discrimination claim was denied or withdrawn, the likelihood of defendant's petition to be upheld just got stronger.

    Withdrawing the discrimination claim pulled the rug out from the rest of the plaintiff's lawsuit.

    Retaliation wasn't the basis for the original pleadings, as this beast began its life attempting to assert a discrimination claim.

    As a judge, I'd rule affirmatively for the defendant, based solely upon what I've seen here.
     
  18. mightyalwayz

    mightyalwayz Law Topic Starter New Member

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    Only if you're willing to look past precedent and face the prospect of the case being remanded back to your docket on appeal.

    Austin v. Bloomin' Brands, Inc., 2:16-CV-06509-TR (Aug. 30). Summary judgment was granted for the defendant as to the sexual harassment claim but denied as to the retaliation.

    Gallas v. The Medical Center of Aurora, DOL Administrative Review Board Nos. 16-012, 15-076, ALJ Nos. 2015-ACA-5, 2015-SOX-13 (ARB Apr. 28, 2017). The United States Department of Labor Administrative Review Board (“ARB”) allowed a whistleblower retaliation claim under the Patient Protection and Affordable Care Act (“ACA”) to proceed even though the purported protected activity alleged in the complaint made no reference to ACA provisions.


    Drinkwater v. Union Carbide Corp., 904 F.2d 853, 866 (3d Cir. 1990). Holding that "n order to establish a prima facie case of retaliation, a plaintiff need not establish that the allegedly discriminatory conduct she participated against actually was unlawful."

    Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). Holding that "an employee invoking protection against retaliation need not show that the underlying employer conduct was actually discriminatory. Rather, a plaintiff's allegations need only show that the plaintiff had a good faith, reasonable belief that the conduct she opposed was an unlawful employment practice."

    The employee in the instant matter, according to court record, maintained race allegations throughout the EEOC process up until it was discovered (within discovery) to be otherwise unable to be substantiated. Are you saying that the employee should've just stuck with the claim until the court ruled it out? I would think that the plaintiff's credibility was made better in the eyes of the court based on the fact that he identified and "respectfully rescinded" such allegations instead of running with it.
     
  19. army judge

    army judge Super Moderator

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    Cases are argued in open court, and no trial judge worth the robe ever worries about a case being overturned.

    In fact, there's little for the judge in the case you cite to do.

    The plaintiff withdrew the original claim of discrimination.

    I haven't reviewed the pleadings, nor have I read the entire case files.

    Plaintiff withdraws the backbone of his case, he has no case by his own admission.

    If you can't prove up your pleadings, why file?
    You can't have it both ways.
    Beyond that, courts are concerned with employee evaluations unless they form the v=basis for harm to a protected class.

    My first case out of law school was an age discrimination suit for my dad against a Catholic Hospital.

    That case took seven years, but my dad prevailed.
    We brought the case in federal court.
    He had a right to sue letter from EEOC.
    We alleged his age caused him to suffer egregious wrongs.
    We proved it, defendant appealed through the appellate levels, being rebuffed along the way, and sought cert, which the Supremes remanded.
    We subsequently sought the judgment to be enforced, and within a week, US Marshals served the judgment against the hospital HQ.
    Within two week my dad had his check.
    You can't bring a discrimination lawsuit and withdraw your claim, then pursue an alternate theory of the case.

    There is much more to a case of this type than simply citing case law and precedent, especially at the federal level.
    State or federal the rules of civil procedure and trial procedure must also be applied.

    I wish you luck with your studies and with the assistance you wish to render to someone.

    It is never useless to possess intellectual curiosity.
     
  20. mightyalwayz

    mightyalwayz Law Topic Starter New Member

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    I suppose the reason we're apparently butting heads is not for my lack of intellectual curiosity, but for our inability to reach a consensus on the matter. And part of the reason for that is, by your own admission, your unfamiliarity with the case. I, in this instance, have an advantage of familiarity (apparently so much that the employee and I are one in the same) which is why I respectfully disagree with you.

    When the employee's claim was moved to federal court, it was brought solely under retaliation; the race discrimination appeared to serve as nothing more than exposition as to the basis of the retaliation claim. Until it was confirmed that it could not be substantiated beyond the spectre of an allegation is when he rescinded it all together. Not that he was crying wolf, but that he apparently realized that the evidence couldn't substantiate it. There have been no new or alternate theories presented along the way. In fact, the employer tried playing that exact card in their opposition to the employee's motion to amend his complaint. However, in the order granting the amendment, the court stated that "[the] Plaintiff hasn’t changed the basic fact pattern that has been alleged throughout this entire case." (i.e., He complained of the discriminatory actions of his immediate supervisor to the next-level supervisor, there was an adverse action taken against him by the next-level supervisor, within the span of a business week.) And while I'm sure there are other "nuances" that murk these waters, that's about as clear-cut as his pleadings have made it. He's not attempting to (nor does he even need to) prove the discrimination when the retaliation is both mutually exclusive and, supported by the evidence on record.

    Cases develop over the course of litigation (I think we can both agree on that), especially so during the course of discovery. And, if and when the facts lead elsewhere, only a bullheaded attorney would insist a claim that is otherwise meritless (unless they're a spin master). In sum, the employee dropped the race discrimination altogether only because there were no facts to support it. In fact, the evidence suggested that the immediate supervisor was himself retaliating against the employee in response to several grievances that were (unwittingly) made on his behalf. Until the disclosure of these grievances (made way after the EEOC investigation, among other things), the employee relied on an objective basis for his alleged discrimination (employee-black, immediate supervisor-white) and on the good-faith basis conveyed that in his pleadings. His voluntary withdraw does not trigger a collapse of the entire case (because, firstly, race discrimination wasn't ever the "backbone" of his federal claim) but demonstrates an act of acknowledgement and due diligence; and, perhaps, not wanting to continue to implicate racism against someone who probably isn't racist but a run-of-the-mill jackass. If I were a judge, I would laud the employee for taking the initiative of something I didn't have to do at such a stage in the proceedings, especially because it is in the interest of judicial economy; which is what the judge seems to do in their order.

    The purpose of my OP was to serve as nothing more than spark debate, and it has evidently served its purpose. I have no skin in the game for that litigant in as much as any of you. I admitted my interest seem to encroach on a personal vestment, however, some have made inferences on my interest that otherwise don't exist. Thank you for all the information you've shared.
     

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