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ABA SECTION OF LABOR AND EMPLOYMENT LAW:

DEFENDING EMPLOYMENT CASES:


PRETRIAL LITIGATION ISSUES AND STRATEGIES

By
Philip C. Eschels
Mark J. Gomsak
Greenebaum Doll & McDonald PLLC
3500 National City Tower
101 South Fifth Street
Louisville, KY 40202
(502) 589-4200
pce@gdm.com
mjg@gdm.com

I.

INTRODUCTION

Employment litigation is fascinating for many reasons. There is, of course, a human
dynamic for all participants that adds to (and sometimes complicates) the legal analysis of issues.
Cases present different facts and can involve legal issues that range from the most basic to highly
complex. This paper does not attempt to address every conceivable issue that an employment
defense attorney may face. It is, rather, intended to offer employment litigators a general
overview of issues and practices most often addressed in defending an employment case, along
with references to cases and other resources to provide a start to conducting additional research.
This paper outlines strategies for conducting the case from the time the complaint is
served to the time the trial begins. The reader will receive general tips and strategies regarding
pleadings, discovery, motions, settlement negotiations and specific issues associated with
employment litigation. This paper assumes that a case involving employment-related claims has
been filed in, or removed to, federal court and the Federal Rules of Civil Procedure apply.
II.

ADMINSTRATIVE PROCEDURES

In order to file a complaint in federal court alleging violations of Title VII of the Civil
Rights Act of 1964 (42 U.S.C. 2000e et seq.) ("Title VII"), the Americans with Disabilities Act
(42 U.S.C. 12101 et seq.) ("ADA"), the Age Discrimination in Employment Act (29 U.S.C.
621 et seq.) ("ADEA"), the Equal Pay Act (29 U.S.C. 206(d) et seq.), and the Civil Rights
Act of 1991 (42 U.S.C. 2000e-2(k)(1)(B)(2000)), the charging party must first exhaust her
administrative remedies by filing a Charge of Discrimination with the Equal Employment
Opportunity Commission (EEOC).1 The employer, known as the Respondent, may file a
statement of position and otherwise provide information to the EEOC. Once the EEOC has
completed its investigation, it generally issues a determination letter concluding either that there
is no reasonable cause to believe that discrimination occurred or there is reasonable cause to
believe that discrimination occurred. See Lindemann & Grossman, Employment Discrimination
Law, pp. 1702-1710 (4th ed. 2007) (C. Geoffrey Weirich, Editor-in-Chief), hereinafter,
Employment Discrimination Law, pp. _____). The EEOCs determination is not binding on
the Plaintiff. If the EEOC states a finding of "cause," it begins a conciliation process between
the parties. If conciliation is unsuccessful, the EEOC can either file a lawsuit on behalf of the
charging party or issue a Notice of Right to Sue to the charging party.2 On the other hand, if the
Commission finds "no cause," it still issues a Notice of Right to Sue to the charging party. Once
1

Certain charges do not require an exhaustion of administrative remedies. For example, an employee who is suing a
public entity may be able to bring a claim under 42 U.S.C. 1983, which provides a mechanism to assert
constitutional claims against the employer without exhausting administrative remedies prior to the filing of such a
claim. For claims under the Rehabilitation Act (29 U.S.C. 791 et seq.), see Lindemann & Grossman, Employment
Discrimination Law, pp. 799-809 and 987-993 (4th ed. 2007) (C. Geoffrey Weirich, Editor-in-Chief).
2

There are situations in which the charging party can request an early Notice of Right to Sue if the Commission will
take longer than 180 days to make its determination. See 29 C.F.R. 1601.28(a)(1) and (2). Courts differ as to the
validity of this early notice regulation. Compare Martini v. Federal National Mortgage Assoc., 178 F.3d 1336 (D.C.
Cir. 1999), cert. dismissed, 528 U.S. 1147 (2000) (holding that the Notice and the authorizing EEOC regulation are
void, vacating the jury verdict after five years of litigation, and sending the case back to the EEOC) with Brown v.
Puget Sound Electrical Apprenticeship & Training Trust, 732 F.2d 726, 729 (9th Cir. 1984), cert denied, 469 U.S.
1108 (1985) (upholding the same EEOC regulation) and Sims v. Trus Joist MacMIllan, 22 F.3d 1059, 1061-63 (11th
Cir. 1994) (same). See Employment Discrimination Law, pp.1709-10.

the charging party receives this notice, she has 90 days to file a lawsuit. However, this 90-day
deadline is subject to waiver, estoppel, and equitable defenses. In addition, under the ADEA, a
plaintiff may file a cause of action without receiving a Notice of Right to Sue, but only after
waiting 60 days from filing the charge. 29 U.S.C. 626(d)(2000).
III.

UNDERSTANDING YOUR CASE

Upon receiving notice of the charge or the complaint, your first objective is to learn all
you can about the facts and the circumstances of the case.
A.

GATHER FACTS AS EARLY AS POSSIBLE

The first step in defending any case is gathering facts about the claim and the plaintiff(s).
The attorney should contact the employer (typically the Human Resources Manager) to obtain as
much information about the plaintiff, the events and circumstances surrounding the allegations
and the factual basis for the plaintiffs claims. Interviews of individuals with personal
knowledge is critical. Relying only on upper management for the facts can be dangerous.
Whenever possible, personal interviews of decision-makers and witnesses to critical events are
essential to developing your theory of the case and, of course, establishing the defenses to assert
in an Answer. A visit to the worksite can also reveal information useful to the defense and
provide additional subjects for valuable admissions when deposing the plaintiff.
Interviewing witnesses as early as possible will limit the harm to the case arising from
loss of memory, employees leaving the workplace and inadvertent loss or destruction of key
evidence.
B.

GATHER DOCUMENTS

In addition to gathering the pertinent facts, it is crucial to collect and review key
documents as soon as practical. Such documents include, but are not limited to, the plaintiffs
personnel file, the company handbook and other documents related to employee performance,
attendance and disciplinary action. Gather information and documents about similarly situated
employees, as well, in order to determine if evidence of non-discrimination is present. Obtaining
and reviewing these documents assists you in understanding the chronology of events and may
put you on notice as to certain strengths or weaknesses of the case. For instance, you may
discover that there is no documentation for certain critical absences or the plaintiffs poor
performance. You may also find useful documentation that similarly situated employees were
treated the same as the plaintiff.
Given the duty to preserve evidence, it is prudent to issue a litigation hold letter to the
client to preserve all relevant documents, especially electronic data. Litigation holds will be
addressed in a later section in more detail.
IV.

IDENTIFYING PRELIMINARY ISSUES

Once you have gathered the initial relevant facts and documents, it is crucial to conduct
an initial assessment of the case. You may, for example, have the opportunity to request
dismissal of the complaint on procedural grounds. The following are examples of basic issues to
consider.
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A.

CLAIMS, DEFENSES, AND COUNTERCLAIMS

A prudent defense attorney will review and research all the legal issues involved in the
case as early as possible. She will first research applicable law relating to the plaintiffs claims
(e.g., prima facie requirements). By conducting thorough legal research into the plaintiffs
claims, an attorney will identify potential defenses and affirmative defenses to assert. In
addition, it may also inform the attorney of certain deficiencies in the plaintiffs complaint. For
example, the plaintiff may not have pled all the necessary elements of a claim, providing the
defense with an opportunity to file a motion to dismiss, a motion for more definite statement, a
motion for judgment on the pleadings, and/or a motion for summary judgment. See Employment
Discrimination Law, Chs. 26-32, for potential defenses and analysis of a plaintiffs claim.
Furthermore, a defense attorney should discuss with the employer any potential counterclaims that may be asserted against the plaintiff. For instance, perhaps the plaintiff was
terminated for breaching an employment contract or for stealing company property. Identifying
and asserting such counter-claims can provide the employer with leverage in settlement
negotiations and can, at times, convince the plaintiff to voluntarily dismiss the lawsuit. The
potential risk of a retaliation claim should, however, also be carefully analyzed and considered.
See Employment Discrimination Law, Ch. 14.
B.

APPROPRIATE FORUM

The defense attorney should first determine if the judicial forum for the complaint is
proper. The plaintiff may not have satisfied the prerequisite administrative procedures required
for filing in court or may be contractually bound by an arbitration clause. In addition, a defense
attorney may be able to successfully argue that the cause of action has no substantial connection
to the state in which the court sits, in which case the federal court can dismiss the case or
transfer it to the appropriate forum under the doctrine of forum non conveniens.
C.

PROPER VENUE

Venue is typically appropriate where the facts underlying the cause of action allegedly
occurred or where the defendant conducts business. A defense attorney may move to change
venue if the venue is inappropriate or there is a more favorable venue. However, it may be
prudent to first seek consent from opposing counsel even if agreement is unlikely. Courts may
be more willing to consider motions when the moving party has sought to reach an agreement
with opposing counsel. Whether to engage in such actions depends on many factors, including
client relations, local practice and assessment of the judge and opposing counsel.
D.

ARBITRATION REQUIREMENT

If you have determined that the plaintiff is contractually required to arbitrate her claims,
you should notify opposing counsel and seek to have the case voluntarily dismissed. If opposing
counsel is unwilling to dismiss the case, you should immediately move the court to compel
arbitration. If such motions are not brought promptly, the court may determine that the employer
waived the arbitration requirement. See Kelly v. Golden, 352 F.3d 344, 349-50 (8th Cir. 2003);
and S & R Company of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 83 (2d Cir. 1998). See
generally Employment Discrimination Law, Ch. 42.
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E.

REMOVAL

Generally, federal court is preferred by defendant employers because the standard for
granting summary judgment is usually more favorable. If the plaintiff brings suit in state court,
you may be able to remove it to federal court under certain circumstances. See 28 U.S.C.
1441-1451. The types of cases that may be removed to federal court include those that have:

Diversity of citizenship The action may be removed only if no defendant is a citizen


of the state in which the action is pending. However, even if a plaintiff attempts to
destroy diversity jurisdiction by naming a resident defendant, under certain
circumstances the case may still be removed under a "fraudulent joinder" theory.
Courts have long held that the right of removal cannot be defeated by "fraudulent
joinder of a resident defendant having no real connection with the controversy."
Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 96 (1921);

Federal question If the plaintiff relies on a federal statute, such as the Fair Labor
Standards Act or the ADA, the case can be removed to federal court; and

Non-diverse state claims that are joined with federal questions.

Remember that you only have thirty days to remove the case after the first pleading is
filed that makes the case eligible for removal. 28 U.S.C. 1446(b). In addition to this
requirement, no removal under diversity of citizenship is permitted more than one year from the
complaints filing date. Id.
V.

DEVELOPING CASE THEMES

It is important to develop themes on which to build the case. Because themes may
change as the evidence develops, it may be tempting to wait until all the information is known
before you begin to identify themes. If you develop themes at an early stage, however, they will
guide you as you seek discovery, conduct depositions, and develop your strategy.
The purpose of developing case themes is to communicate a compelling story to potential
jurors. You should keep your themes to a minimum and strive to tell your clients story in a
logical and concise manner. Once you have developed your themes, you can then highlight
certain facts necessary to support them. For instance, you may want to emphasize the plaintiffs
inappropriate behavior during her employment, using written warnings and coworker testimony
as support.
VI.

WORKING THE CASE


A.

CONDUCT WITNESS INTERVIEWS

It is imperative to conduct detailed witness interviews. In addition to interviewing the


human resources personnel, all decision-makers and supervisor(s) as early as possible, you
should seek to interview anyone having relevant information (e.g., coworkers, contractors, or
vendors). You cannot fully understand the strengths and weaknesses of the case until you
interview these various witnesses. For example, when a disciplinary action is challenged, you
should determine if the disciplinary action was documented contemporaneously and
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administered in accordance with company policies and practices, both for the plaintiff and
similarly situated employees. Be mindful, however, that not everyone you interview will be
protected by the attorney-client privilege.
B.

SEEK AND REVIEW DOCUMENTS

You should have already collected certain documents as indicated in Section III.B above.
However, additional documents will become relevant as you continue to develop the case. You
must obtain and retain these documents in accordance with the discovery rules, regardless of the
format: tangible documents (e.g., handwritten notes); electronically stored information (ESI)
(e.g., e-mails, blogs and data); and other forms of media (e.g., videos, photographs). You may
need to issue repeated litigation hold letters as necessary, throughout the litigation.
C.

EVALUATE THE CASE AND DETERMINE IF EARLY RESOLUTION IS PREFERABLE

At this stage, you should have already interviewed factual witnesses, examined
documents, and researched applicable law. You should use the knowledge gained to assess
whether the plaintiffs allegations have merit and what the relative risks of the case are. You
should also conduct a cost-benefit analysis and estimate a case budget, the settlement value of
plaintiffs case, and possible jury verdicts and damage awards. Your evaluation of the case
should be discussed with the client in order to determine if it is best to attempt an early resolution
or move forward in the litigation process. Of course, it may be prudent to discuss the case with
opposing counsel and, if possible, determine how the plaintiff values the case. This will assist in
determining how to proceed.
VII.

DRAFTING AN ANSWER AND OTHER INITIAL PLEADINGS


A.

ANSWER

In general, the defendant has twenty days from service of the complaint to file a
responsive pleading under Fed. R. Civ. P. 12, unless an extension is granted by opposing counsel
or the court. Fed. R. Civ. P. 12(a)(1). When drafting an answer, analyze all facts and law to
include all available affirmative defenses. Certain defenses will be waived if not asserted before
or in conjunction with your answer. Fed. R. Civ. P. 8(c) and 12(b). In addition, you should
reserve the right to add additional defenses available under the law should additional information
be discovered.
The following are a few examples of common employment defenses asserted in an
answer to an employment discrimination claim brought by an individual plaintiff:

The plaintiff was an at-will employee whose employment could have been terminated
at any time, for any reason, with or without notice.

The defendant's actions were taken for legitimate, nondiscriminatory or nonretaliatory reasons.

Plaintiff cannot establish a causal connection between her exercise of statutory rights
and any adverse employment action.
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Plaintiff cannot establish a prima facie claim necessary to recover under the statute.

Even if plaintiff could establish a prima facie claim, she cannot establish that
Defendants legitimate, non-discriminatory and non-retaliatory reasons for its actions
were a pretext for discrimination or retaliation.

B.

COUNTERCLAIMS, CROSS-CLAIMS, JOINDER OF PARTIES

You should consider asserting the counterclaims you previously identified in Sec. IV.A.
Failure to assert compulsory counterclaims bars any future litigation over the matters. Fed. R.
Civ. P. 13. In addition, you should consider asserting any cross-claims against co-defendants
and adding additional parties (particularly necessary parties or joint employees) to the litigation.
See Fed. R. Civ. P. 13-20. By doing so you allow the possibility of shifting blame elsewhere or
of sharing liability for any future award of damages with a culpable party.
C.

MOTION TO DISMISS

Filing a motion to dismiss should seriously be considered, particularly where the


complaint is fundamentally insufficient. See Fed. R. Civ. P. 12(b). A successful motion to
dismiss can save the time and money spent answering the complaint and preparing affirmative
defenses, counterclaims, and cross-claims. At the very least, a motion to dismiss may result in
fewer claims that must be defended. Successful motions to dismiss, however, are rare. Even
when they are successful, the practical result may be that the court will grant the plaintiff the
option of amending the complaint, which may cause opposing counsel to refocus her efforts and
eliminate the weaknesses that would have been useful to the defense. Therefore, prudence may
dictate waiting to file a more substantive motion, such as a motion for summary judgment, after
discovery has closed.
D.

MOTION FOR JUDGMENT ON THE PLEADINGS OR FOR SUMMARY JUDGMENT

Motions for judgment on the pleadings or for summary judgment are dispositive motions
that can be used successfully early in the litigation process. Fed. R. Civ. P. 12(c) and 56(b).
They should be considered when the complaint is so deficient that it entitles the defendant to
judgment in its favor or where there are uncontested facts that entitle the defendant to judgment
as a matter of law. See Millea v. Brown, 991 F.2d 799 (7th Cir. 1997) (upholding judgment on
the pleadings for defendant where plaintiff brought claims that were beyond scope of his EEOC
charge). See Employment Discrimination Law, pp. 1910-23.
VIII. MORE LEGAL RESEARCH
You will want to revisit the initial legal research that you have done. Familiarize yourself
with the various burdens of proof for each of the claims and defenses raised by you and the
plaintiff. This information is necessary to conduct meaningful discovery, to draft or respond to
various motions, and to prepare jury instructions. As the case progresses, you will need to
conduct additional research on issues as they arise.

IX.

INFORMAL DISCOVERY PROCESS

Before the formal discovery process begins, it may be wise to conduct informal
discovery, which is factual research conducted without the use of interrogatories, document
requests, subpoenas, or depositions. Information obtained through informal discovery may or
may not be admissible evidence, but it can provide useful information and help you determine
what admissible facts and documents you need to obtain from the plaintiff and other witnesses.
Informal discovery can be particularly useful when preparing to depose the plaintiff, as it may
provide impeachment material or valuable admissions.
Informal discovery methods include, but are not limited to:

Witness Interviews After you have a grasp of the facts and applicable law, you
should conduct informal interviews with witnesses, either via phone or in person, to
discover what they know. There are certain benefits to conducting witness
interviews. Unlike depositions, they are outside the presence of opposing counsel.
Also, the notes you take during the interview are considered work product and are,
therefore, not generally discoverable. See Fed. R. Civ. P. 26(b)(3) and (b)(5). If the
witnesses has useful information, you can have them sign a sworn statement. Such
statements, however, may be discoverable and if not carefully drafted, can be used to
impeach the witness during a deposition or at trial.

Background Checks - When appropriate, have a search made of civil and criminal
records to determine whether the plaintiff or members of her family have had other
litigation or problems that may affect her claims in this case.

Internet Searches The Internet can be a useful source of informal discovery. It


contains a plethora of information that is accessible at no or minimal cost. Modern
day search engines make it easy to find information about people and entities. For
instance, you can obtain biographies on opposing counsel and expert witnesses. As
defense counsel, certain sites are frequently used in addition to search engines.
Facebook, myspace.com, and other similar websites often contain personal, but
relevant, information about plaintiffs and witnesses. Westlaw and LexisNexis can
also be useful in obtaining information in a quick and efficient manner. For instance,
you can search whether your expert has testified in other cases, or look at whether
your opposing party is a frequent litigant. You can search real estate and judgment
records, and you can also track down witnesses addresses.

Surveillance In some cases, surveillance of the plaintiff can be an extremely useful


tool, particularly in cases in which the plaintiff is alleging some sort of disability or
injury. Care must be taken, of course, to avoid invasion of privacy claims. When
deciding to conduct surveillance, it is imperative to find a private investigator who is
trustworthy, thorough, efficient, responsive, and credible to a jury. Before hiring an
investigator, you should determine with the client whether it is worth the risks,
benefits and cost to do so. Keep in mind that private investigators can do more than
conduct surveillance; they can be used to locate witnesses and obtain information
about assets, civil and criminal court actions, marital history, professional licenses,

credit information, and motor vehicle records. Asking other professionals for
references can provide a useful method for finding a good private investigator.
X.

FORMAL DISCOVERY PROCESS

The Federal Rules of Civil Procedure set forth detailed requirements regarding the
discovery process, including attorney conferences, initial disclosures and scope of discovery.
Fed. R. Civ. P. 26, et seq. Summarizing or analyzing these requirements, however, is beyond the
purview of this paper. Rather, the paper will focus on key aspects of the discovery process:
scope of discovery; initial disclosures; protecting confidential information and documents;
document collection; and written discovery.
A.

SCOPE OF DISCOVERY

In employment litigation, the permissible scope of the plaintiffs suit (whether a private
or governmental action) is limited to any issue which is like or reasonably related to the
allegations of the EEOC charge, including new acts occurring during the pendency of the charge
before the EEOC. Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir.
1973); see also Stuart v. General Motors Corp., 217 F.3d 621 (8th Cir. 2000); and Aramburu v.
Boeing Co., 112 F.3d 1398 (10th Cir. 1997). Under this standard, plaintiffs are frequently able to
allege claims that were not explicitly stated in their EEOC charge. Furthermore, this standard
allows plaintiffs to seek a broad array of information through discovery. See generally,
Employment Discrimination Law, Ch. 33.
B.

INITIAL DISCLOSURES

Fed. R. Civ. P. 26(a)(1) requires parties to make initial disclosures, which must include
all witnesses likely to have discoverable information supporting the partys claims or defenses,
unless solely for impeachment; a copy or description of relevant documents; a computation of
damages; and insurance policies.3 The deadline for making initial disclosures usually is agreed
upon by the parties in the Rule 26 conference.
Because employers typically have many documents, supplying a description of the
documents, rather than copies, is frequently done. However, where few documents are involved,
early production may be beneficial, particularly when withholding documents under a claim of
privilege or confidentiality. You will then, at an early stage, be able to determine if there will be
any issues claiming such privilege or confidentiality, and develop a strategy to deal with the
issues.
Initial disclosures are subject to the same requirements of supplementation as responses
to discovery requests. Failure to supplement a disclosure with information that changes
information previously furnished may be considered a knowing concealment. Fed. R. Civ.
P. 26(e).

Local rules vary and, of course, should be reviewed.

C.

PROTECTING CONFIDENTIAL INFORMATION AND DOCUMENTS

As indicated in the previous section, it may be necessary to protect the confidentiality of


your clients information. Employers often have concerns in disclosing personnel records,
business records and financial information. Therefore, you should seek protection at an early
stage, preferably at the Rule 26 conference, through entry of an appropriate protective order.
You should first work with opposing counsel to agree to a confidentiality stipulation and order,
which governs how proprietary and confidential information, as well as private medical
information regarding the plaintiff, will be disclosed. If you are unable to agree on a stipulation
with opposing counsel, the next step is to move the court for a protective order. See Fed. R. Civ.
P. 26(c).
D.

DOCUMENT COLLECTION

Parties have certain discovery obligations, one of which is the general duty to preserve
material documents when the party has notice that the evidence is relevant to litigation or when
a party should have known that the evidence may be relevant to future litigation. Zubulake v.
UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). However, all cases are not equal
regarding the scope of the preservation obligation. Stricter approaches to preservation will likely
apply in more complex cases or when concerning "key players." Therefore, you should consult
with your client to devise a preservation plan, taking into account which documents should be
retained, who has those documents, and what, if any, burdens there are in retaining those
documents; remembering that under the Federal Rules of Civil Procedure, "documents" are
defined broadly and include ESI. In an employment discrimination case, for example, it may be
appropriate to "aggressively" preserve the data of the other members of the plaintiffs former
department, as well as the supervisors several layers up the chain of authority from the plaintiff.
Perhaps this could be done by capturing live data from e-mail and shared servers or taking a
forensic image of the hard drive of the alleged perpetrator or plaintiff. If concerns with the
burden of preservation arise, you should attempt to reach an agreement with opposing counsel on
how to deal with them. Ideally this should be addressed during the Rule 26 conference. If an
agreement cannot be reached, you should consider raising the issue with the Magistrate Judge (if
consistent with local practice) or with the judge, detailing the burdens associated with
preservation and why you think they are unreasonable.
As soon as litigation is seen as likely, or as soon as it has begun, whichever is earlier, you
should issue a "litigation hold" letter to the relevant employees, informing them of the
preservation duty and instructing them not to delete or discard any pertinent data. You should
talk with employees directly implicated by the litigation and with the clients Information
Technology (IT) staff to identify what documents are relevant and where they are located.
Specific efforts should be made to communicate with IT personnel to determine how best to
preserve ESI without interrupting the clients day-to-day business activities. Because a party
must demonstrate good-faith compliance with the litigation hold, it may be prudent to
temporarily suspend the companys routine document destruction policies.
The preservation obligation is ongoing and litigation hold letters should be periodically
recirculated to employees as a reminder.

Once you begin to collect documents, you should have a sophisticated method of labeling
and storing them. Keeping track of documents you have received and which have been provided
or withheld is fundamental and critical. There are many issues related to ESI that are beyond the
scope of this paper that should be addressed as litigation proceeds.
E.

WRITTEN DISCOVERY
1.

Drafting and serving written discovery on Plaintiff

Generally, in employment litigation, the defendant employer has possession and control
of the relevant facts due to its own internal investigation into the plaintiffs allegations.
However, well-crafted written discovery can uncover important information about the plaintiffs
case, such as the plaintiffs potential witnesses, persons with knowledge, background, documents
and other evidence that supports the plaintiffs claims and documents that indicate possible
damages.
a.

Interrogatories

Interrogatories are useful for understanding the plaintiffs case and its strengths and
weaknesses. For instance, interrogatories should seek to discover the identity of all potential
witnesses, sources of information and documents. They should seek plaintiffs employment
history to determine if the plaintiff has mitigated her damages. There is no uniform method of
drafting interrogatories. Individual and local practices may dictate a variety of methods, which
may vary from case-to-case. One way to draft interrogatories is to avoid unduly complex
questions filled with "legalese." Very often, the more complicated the interrogatory, the more
likely the opposing party will object and avoid providing the information you seek. Therefore,
keeping the interrogatories simple and straight forward limits the opportunity for successful
objections.
The following are some examples of basic interrogatories used to discover certain
information from the plaintiff:
1. Witnesses State the full name and last known address of every person known to you
or your attorney(s) who has any personal knowledge regarding the facts and
circumstances surrounding the happening of the occurrences referred to in the
Complaint.
2. Damages Identify and provide a detailed computation of each and every category of
damages that you claim to have suffered as a result of Defendants alleged actions.
Defendant specifically requests that you provide an explanation of damages for the
calculation of each dollar amount for each category.
3. Mitigation of damages Identify every source of income (whether from employment,
the sale of any thing of value, gift, profits, return on investment or otherwise) that you
have earned or received since leaving employment with the defendant.
Also, when drafting interrogatories, use inclusive terminology, such as a broad definition
of "documents." Using narrow terminology will invite objections that may limit the disclosure of
all relevant information.
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Although interrogatories can be useful, they should never substitute for depositions of the
parties or significant witnesses. Instead, use interrogatories to supplement depositions, before
and after, using them for preparation and impeachment purposes.
b.

Document Production Requests

Requesting production of documents is another relatively inexpensive method of


conducting discovery and, like interrogatories, they should be drafted with simple and concise
language. As a defense attorney, there are certain documents that you should always request:
prior and subsequent employment records of the plaintiff, tax returns, diaries, logs, sources of
medical records (with a request to execute a release) and calendars. In addition, the following
are documents commonly sought by defense counsel in her requests for production:
1. Communications between the plaintiff and current or former employees of the
defendant employer in which the underlying events, facts, or circumstances of the
plaintiffs allegations were discussed;
2. The plaintiffs diaries, notes and journals;
3. Documents which support the allegations and claims raised by the plaintiff in the
complaint (for purposes of determining what evidence plaintiff may rely on at trial);
4. Plaintiffs academic, military and former employer records, some of which may
require use of authorizations or subpoenas; and
5. Tax returns and other documents that reflect the earnings of the plaintiff since he or
she left the defendants employ (for purposes of establishing mitigation of damages).
c.

Requests for Admissions

Another method of formal discovery available in employment litigation is written


requests for admissions. Requests for admissions are a relatively inexpensive means of
discovery, but they tend not to be productive of meaningful admissions except as to certain
peripheral issues. However, there can be certain benefits to serving requests for admissions on
the plaintiff, such as affirming certain dates, events or authenticating documents. When a party
receives requests for admissions, that party must serve written responses within a specified time
limit. If the receiving party fails to respond in the specified time, all the requests are deemed
admitted. Furthermore, requests for admissions can place on the receiving party an affirmative
duty to investigate. The receiving party can either admit the request as true, deny the request as
untrue, or deny the request because the party has insufficient knowledge or information to know
whether the request is true. However, this last response can only be made if the party first
conducts a reasonable investigation to determine if the subject of the request is true or false.
Fed. R. Civ. P. 36. Interrogatories may be served concurrently to supplement requests for
admissions by requesting a full factual basis for any denial or failure to admit any request for
admission.

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d.

Authorizations

It is often important in employment cases to obtain documents that require authorizations,


such as the plaintiffs medical records. When drafting the authorization to release medical
records, remember to use all-inclusive language, which includes standard medical care providers,
psychological care providers and alternative medical care providers. Be mindful of the various
federal and state laws that may affect your ability to obtain medical and other records, such as
the Health Insurance Portability and Accountability Act (HIPAA).
e.

Freedom of Information Act (FOIA) Request

It may be appropriate to submit a FOIA request, for example, to obtain EEOC records.
You may also need to move to compel production of some records, such as investigative records.
2.

Responding to Plaintiffs written discovery

Analyze plaintiffs written discovery to determine whether there are objections that
should be asserted under Fed. R. Civ. P. 33(b). There are certain standard types of objections
when responding to discovery requests:
1. This request is overly broad in time and scope, and is vague and ambiguous;
2. This request requires overly burdensome production;
3. This request seeks information that is beyond the proper scope of discovery herein; or
4. This request seeks privileged attorney-client communications or attorney work
product.
Generally, discovery requests that use overly broad terms, such as "all," "every" or
"each," should be met with an objection. For instance, a request for production seeking all
documents containing Company Xs disciplinary policies, without a time frame provided or
without narrowing the scope of the request to disciplinary policies relating to the plaintiffs
alleged conduct should be met with an objection. If you and your client wish (or based on local
practice) to avoid a contentious discovery process, you may consider objecting to the request but
responding with the relevant information without waiving the objection. Remember to consider
the effect of Fed. R. Civ. P. 33(c) when drafting your answers and responses.
XI.

EXPERTS

Your case may require an expert opinion on an important issue. Common experts used in
employment cases include doctors, damages experts, occupational or vocational specialists, and
human resources experts. If you decide to use an expert, you must familiarize yourself with the
applicable rules of discovery concerning experts. Failure to abide by these rules may result in an
inability to call your expert to testify at trial.
Under the Federal Rules of Civil Procedure, a party must disclose the identity of an
expert who may be used at trial. Fed. R. Civ. P. 26(a)(2)(A). In addition, the party must
disclose the experts written report, which must contain the following information: the experts
12

opinions and the underlying reasons for them; the data considered in developing these opinions;
any exhibits to be used as a summary of or support for the opinions; the experts qualifications,
including a list of all publications authored in the last ten years; compensation; and a list of cases
in which the expert has given deposition or trial testimony within the last four years. Fed. R.
Civ. P. 26(a)(2)(B). There is, of course, an ongoing duty to supplement the experts report.
Fed. R. Civ. P. 26(e)(1).
When choosing an expert, make sure she has the necessary qualifications and provide her
with all the facts and materials she needs to form her opinions. Finally, because expert reports
are discoverable, your expert should not provide a written report to you until you are ready to
provide it to opposing counsel.
For a discussion on the use of experts in harassment cases, see Employment
Discrimination Law, pp. 1408-13.
XII.

INDEPENDENT MEDICAL EXAMINATIONS

When the plaintiffs physical or mental condition is at issue you may wish to obtain an
independent medical examination ("IME"). For instance, if the plaintiff is claiming to have
suffered severe emotional distress from sexual harassment, you might seek to have the plaintiff
examined by a psychiatrist. If the plaintiff will not voluntarily submit to an IME, you will need
to move the court to obtain an IME pursuant to Fed. R. Civ. P. 35. Some courts are reluctant to
grant IMEs unless they are absolutely necessary while others grant the defendants requests for
an IME even where the plaintiff has not alleged a specific mental or emotional injury. See, e.g.;
Employment Discrimination Law, pp. 2267-69.
If an IME is granted, you should provide the doctor all the necessary information and
documents that are necessary to assist the doctor in making a determination. You may, for
example, decide to have the IME conducted after the plaintiffs deposition so that you can supply
the plaintiffs deposition transcripts to the examining doctor.
XIII. DEPOSITIONS
Depositions are valuable tools for a trial attorney. There are different strategic purposes
for taking depositions, which include having the deponent reveal previously unknown factual
information or documents, providing useful admissions, admitting to bias, or preserving the
testimony of a witness who will not (or may not) be available at trial. However, there may be
circumstances where taking a deposition of a particular individual is not be worth the time, cost,
or risk. In those circumstances, informal discovery, interrogatories, requests for production, or
requests for admissions may be sufficient.
Although deposition preparations can be tedious and time consuming, preparation is the
key. Therefore, if you decide to depose a witness, you must prepare thoroughly. Be sure to
provide the requisite notice to the parties, making sure to include all the necessary information or
documentation required by the applicable rules. See Fed. R. Civ. P. 30 and 31. Be sure to
gather, identify and organize documents that you will use during the deposition and make
enough copies for the various parties at the deposition. Make a list of topics you wish to cover
with the deponent, and draft short and clear questions that will elicit this information. Do not
make the mistake, however, of not listening to the deponents responses to your questions while
13

you think of the next question. Listen carefully and be ready to ask the necessary follow-up
questions to obtain all the facts and make sure the deponent clarifies all ambiguous responses.
At the end of the deposition, confirm that the plaintiff has testified to all facts in support of her
claims, whether in response to specific questions or not.
Following the deposition, have the deponent review and sign the transcript. If you need
to impeach the witness later, this will preclude her from arguing that a transcription error was
made.
In addition to deposing the plaintiff(s), you should consider taking the depositions of
former employees, former employers, third party witnesses and the plaintiffs expert witnesses
and treating physician(s) and psychiatrist.
XIV. UNDERSTANDING BURDENS OF PROOF
Employment litigation can involve a wide array of claims, including discrimination,
retaliation and interference with statutory rights under a variety of statutes, such as Title VII, the
ADA, and the ADEA. Therefore, it is necessary to understand the burdens of proof for every
claim the plaintiff alleges in her complaint. Burdens of proof can vary among the circuit courts
of appeal. The following are some of the most common claims asserted by plaintiffs and the
associated burdens of proof.
A.

DISCRIMINATION DISPARATE TREATMENT

Disparate treatment is the most common type of discrimination claim and may be
articulated as a single claim relative to an individual or as a pattern and practice claim alleging
systemic disparate treatment. The plaintiff always has the burden to prove intentional
discrimination by the preponderance of the evidence, either through direct or indirect evidence.
The burden of proof was established by the U.S. Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). The Supreme Court refined a shifting burden formula in Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), which was reaffirmed by St.
Marys Honor Center v. Hicks, 509 U.W. 502 (1993), Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000) and Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), for employment
discrimination claims involving indirect evidence. See generally Employment Discrimination
Law, Ch. 2. Under the McDonnell Douglas standard, the plaintiff must first establish a prima
facie case. Generally, the prima facie elements for disparate treatment in a failure-to-hire
employment discrimination are: (i) the plaintiff is a member of a protected class; (ii) the plaintiff
applied or would have applied and was qualified for a job for which the employer was seeking
applicants; (iii) the plaintiff was rejected for the prospective position despite her qualifications;
and (iv) after her rejection for a job or termination, the employer sought applications from
individuals with qualifications no better than hers. The elements of a prima facie case were not
intended to be rigid, mechanized, or ritualistic and are often adjusted by courts on a case-bycase basis. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978).
If a prima facie case is established, then the employer must articulate a legitimate,
nondiscriminatory reason for its actions. This burden is one of production, not persuasion, as the
ultimate burden of persuasion always remains with the plaintiff. St. Marys Honor Center v.
Hicks, 509 U.S. at 511.
14

The plaintiff can still prevail by demonstrating pretexti.e., that the employers stated
legitimate reasons for its actions are pretexts for intentional employment discrimination. Id. at
511.
B.

DISCRIMINATION DISPARATE IMPACT

Another method of proving discrimination is by showing a disparate impact on a


protected class. See generally Employment Discrimination Law, Ch. 3. In Griggs v. Duke
Power, 401 U.S. 424 (1971), the U.S. Supreme Court held that, in enacting Title VII, Congress
intended to prohibit practices, procedures, or tests neutral on their face, and even neutral in
terms of intent, but which are artificial, arbitrary, and unnecessary barriers to employment of
minorities.
The following shifting burden standard is used in disparate impact cases:
1. The plaintiff must show that the employers policy or practice has the effect of
excluding a disproportionate number of members of a protected class from the
workforce.
2. The employer may respond by showing that the policy or practice is a business
necessity because it is a predictor or determinant of job performance. Id. at 431-432.
3. The plaintiff may then respond by showing that other policies or practices that do not
have the same discriminatory effect would serve the employer's legitimate business
interests equally well. Albemarle Paper v. Moody, 422 U.S. 405 (1975).
In Smith v. City of Jackson, 544 U.S. 228 (2005), the U.S. Supreme Court further held
that disparate impact claims are permitted under the ADEA, despite not being specifically
enumerated therein. However, the Court modified the shifting burden standard for disparate
impact claims under the ADEA. The Court held that a disparate impact claim under the ADEA
is narrower than under Title VII and that, in order to overcome the plaintiffs prima facie case,
an employer must show the policy or procedure was reasonable, rather than necessary. Id. at
228, 243-44. Disparate impact claims may be brought under the ADA as well. 42 U.S.C.
12112(b)(1) (2000).
Disparate impact cases are often complex and expensive, require the use of experts and
involve sophisticated statistical methods. For these and other reasons, disparate impact claims
are asserted less frequently than disparate treatment cases.
C.

HARASSMENT

Under Title VII, an employee may sue an employer for sexual harassment by a supervisor
or coworker. Traditionally, the employee could sue under either a quid pro quo or hostile work
environment theory. In 1998, however, the U.S. Supreme Court decided two cases that
established parameters for the courts when employer liability issues arose in sexual harassment
complaints. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City
of Boca Raton, 524 U.S. 775 (1998). See Employment Discrimination Law, pp. 1304-76. The
Court modified the traditional sexual harassment theories, holding that an employers vicarious
liability for sexual harassment by a supervisor depends on whether the victim suffered a tangible
15

employment action. When a tangible employment action results from harassment, the employer
is automatically vicariously liable and no affirmative defenses may be asserted.
A tangible employment action describes the situation in which one of the employers
supervisors took an employment action (e.g., pay decrease, demotion, or termination) against the
plaintiff because she rejected or submitted to the harassment. See, e.g., Criswell v. Intellirisk
Management Corp., 2008 WL 2736803 (11th Cir. 2008).
Before 2004, it was not clear whether a constructive discharge amounted to a tangible
employment action. In Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), the U.S.
Supreme Court held that where an employee resigns under conditions that constitute a
constructive discharge, the employer is vicariously liable and may not assert an affirmative
defense. When an employee resigns because of conduct from coworkers, however, the employer
may assert the affirmative defense. Id.
When no tangible employment action is caused by a harassing supervisor, the employer
may assert an affirmative defense involving the following two issues:
a. Did the employer take reasonable care to prevent and correct promptly any
harassing behavior? and
b. Did the employee unreasonably fail to take advantage of any preventative or
corrective opportunities provided by the employer or to avoid harm otherwise?
If the answer is Yes to both questions, the employer is not vicariously liable for supervisors
harassment under Title VII. If the answer is No to either question, the employer is vicariously
liable for the supervisors harassment. See, e.g., Weger v. City of Ladue, 500 F.3d 710 (8th Cir.
2007).
Under a hostile environment claim of harassment, the victim need not allege that a
tangible employment action occurred. Rather, the harassment must be so severe or pervasive
that it altered the employees working conditions and created an abusive working environment,
even though no tangible job detriment occurred.
Before and after Ellerth and Faragher, courts have applied a negligence standard for coworker
sexual harassment claims. See Employment Discrimination Law, pp. 1376-82. Thus, in order to
establish employer liability for sexual harassment by a coworker, the plaintiff must prove:
1. The sexual harassment was unwelcome;
2. The harassment was based on sex;
3. The harassing behavior was sufficiently severe or pervasive to affect the terms,
conditions, or privileges of employment, or any matter directly or indirectly related to
employment; and
4. The employer knew or should have known of the harassment and failed to take
immediate and appropriate corrective action.

16

See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008), and Jackson v. County of
Raune, 474 F.3d 493 (7th Cir. 2007).
While most harassment allegations involve sexual harassment, Title VII, the ADA, and
the ADEA prohibit employers from harassing employees on the basis of sex, race, color, national
origin, religion, disability, and age. See Employment Discrimination Law, pp. 1384-1391.
Therefore, a hostile work environment claim could be made for protected classes other than
gender. See, e.g., National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (hostile work
environment based on race); Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229 (2d Cir.
2007) (hostile work environment based on age); and Arrieta-Colon v. Wal-Mart P.R., Inc., 434
F.3d 75 (1st Cir.2006) (hostile work environment based on disability).
D.

RETALIATION

Federal statutes, such as Title VII, the ADEA, and the ADA, prohibit an employer from
retaliating against an employee: (1) because of her "participation" in an official proceeding; or
(2) because she "opposed" any practice that the statute makes unlawful. Retaliation can come in
the form of harassment or an adverse employment action. In addition, the U.S. Supreme Court
recently held that retaliation against federal employees is prohibited by the ADEA and that
42 U. S. C. 1981, which gives [a]ll persons . . . the same right . . . to make and enforce
contracts . . . as is enjoyed by white citizens, encompasses retaliation claims. See Gomez-Perez
v. Potter, 2008 WL 2167189 (2008); CBOCS West, Inc. v. Humphries, 2008 WL 2167860
(2008).
In order to make a prima facie case of retaliation, the plaintiff must demonstrate:
1. The plaintiff was engaged in activity protected by the statute;
2. The employer took an adverse employment action against the employee; and
3. There is a causal connection between employees participation in the protected
activity and adverse employment action.
See Robinson v. City of Pittsburgh, 120 F. 3d 1286, 1299 (3d Cir. 1997). A causal connection
will not typically be found if there is insufficient temporary proximity, that is, if the length of
time between the protected activity and the adverse employment action is too great. Temporal
proximity alone, however, is insufficient proof of a causal connection. See Tuttle v.
Metropolitan Government of Nashville, 474 F.3d 307, 321 (6th Cir. 2007).
Retaliation claims also use the McDonnell Douglas shifting burden formula. Once the plaintiff
has made a prima facie case, the defendant must show a legitimate, non-retaliatory reason for its
adverse employment action. If the defendant articulates such a reason, the burden shifts back to
the plaintiff to prove that the stated reason for the adverse action is actually a pretext for
retaliation.
In Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), the U.S. Supreme
Court analyzed a Title VII retaliation claim. The Court held that: (i) proof of retaliation is not
limited to employment-related discrimination; (ii) to be actionable, adverse actions must be
materially adverse to a reasonable employee or applicant (i.e. harmful enough to dissuade a
17

reasonable worker from making or supporting a charge of discrimination, 548 U.S. at 57); and
(iii) reinstating an employee with back pay from a suspension did not eliminate the suspension as
possible retaliation causing compensatory or punitive damages.
XV.

UNDERSTANDING EVIDENTIARY ISSUES

Common, but difficult, evidentiary issues often arise in employment litigation. Although
a comprehensive review of all evidentiary issues is beyond the scope of this program, we provide
below a broad overview of some key issues found in EEO litigation.
A.

COMPARATOR EVIDENCE

Comparator evidence is often used to demonstrate or refute a claim of discrimination by


comparing the treatment of the plaintiff to the treatment of similarly situated persons who are
outside of the plaintiffs protected class. For example, an African-American plaintiff may
attempt to prove discrimination by showing that similarly situated Caucasian employees were
treated better than she. On the other hand, the defendant employer may seek to refute the
plaintiffs claims by showing that similarly situated employees received similar or lessfavorable treatment than the plaintiff. The key is whether the plaintiff and the non-protected
class are similarly situated in all respects. Smith v. Leggett Wire Co., 220 F.3d 752, 762-63
(6th Cir. 2000). [I]t is not discrimination to treat differently situated persons differently.
Walton v. Bisco Industries, Inc., 119 F.3d 368, 373 (5th Cir. 1997).
Defining similarly situated and determining whether non-protected class persons are
truly similar to the plaintiff in all relevant aspects is often the subject of much litigation. As a
defense attorney, you will want to proffer enough evidence to show that the non-protected class
of persons is or is not similarly situated to the plaintiff, depending on the defense you are
asserting.
B.

STATISTICS EVIDENCE OF PATTERN AND PRACTICE OF DISCRIMINATION

Statistical evidence is employed in class action cases or claims involving multiple


plaintiffs to show an overall pattern of disparate treatment by an employer. The U.S. Supreme
Court has noted that [s]tatistics showing [a protected class] imbalance are probative . . . because
such imbalance is often a telltale sign of purposeful discrimination. International Brotherhood
of Teamsters v. U.S., 431 U.S. 324, 340 n.20 (1977) (citations and internal quotations omitted);
See also Bernard v. Gulf Oil Corp., 841 F.2d 547 (5th Cir. 1988); Horvath v. Thompson, 329
F.Supp.2d 1 (D. D.C. 2004). Whether the proffered statistics are useful depends on the facts and
circumstances of the case. Intl Brotherhood of Teamsters, 431 U.S. at 340. Furthermore,
statistics may be rebutted. Id. Although statistics are most frequently used by plaintiffs, they
can be equally used by defendants to show that a pattern or practice of discrimination does not
exist. See generally Employment Discrimination Law, Ch. 34.
While pattern and practice evidence is traditionally used in class action claims or claims
involving multiple plaintiffs, some courts allow such evidence to support a plaintiffs claim of
individual discrimination. Fallis v. Kerr-McGee Corp., 944 F.2d 743, 746 (10th Cir. 1991)
(noting that [i]t is uniformly recognized that statistical data showing an employer's pattern of
conduct toward a protected class can create an inference that an employer discriminated against
individual members of the class); but see Davis v. Coca Cola Bottling Co., 516 F.3d 955 (11th
18

Cir. 2008) (holding that current and former employees not permitted to pursue pattern or practice
claim without obtaining class certification, joining the Second, Fourth and Sixth Circuits).
C.

MIXED MOTIVE EVIDENCE

A mixed motive case occurs when an employer takes an adverse employment action that
was motivated by both legitimate and illegitimate reasons. Title VII (following the Civil Rights
Act of 1991) states that if a plaintiff shows that impermissible considerations of race, color,
religion, sex, or national origin motivated an employment decision, an unlawful employment
practice is established even if other, lawful factors also motivated the action. 42 U.S.C. 2000e2(m). The defendant employer then has the burden of showing that it would have taken the same
employment action even without the discriminatory motive. If it can show a legitimate
motivating factor, then it will not be required to pay compensatory or punitive damages, or be
subject to any order requiring admission of the plaintiff to a union, reinstatement, hiring,
promotion, or payment of back pay. 42 U.S.C. 2000e-5(g)(2)(B). However, declaratory relief,
injunctive relief, and attorneys' fees and costs may be awarded. Id.
The U.S. Supreme Court made it easier for plaintiffs to prove mixed motive in Desert
Palace, Inc. v. Costa, 539 U.S. 90 (2003). Prior to Desert Palace, plaintiffs could not show the
employer acted with mixed motives unless there was direct evidence of discriminatory motive.
Desert Palace held that a plaintiff could prove mixed motive by relying exclusively on indirect
evidence and that an employer, by establishing that it would have made the same decision even if
it did not consider the impermissible factor, could only limit the scope of remedies, not avoid
liability.
Under Desert Palace, defendant employers may find it more difficult to obtain summary
judgment, as the plaintiff need only present circumstantial evidence that her protected trait
played a motivating role in the adverse employment action.
Note: A mixed-motive analysis is permissible for disability and age discrimination claims
under the ADA and ADEA. See, e.g., Gross v. FBL Financial Services, Inc., 526 F.3d 356 (8th
Cir. 2008) (holding a mixed-motive jury instruction was not warranted when the plaintiff failed
to provide direct evidence of age discrimination in the employment decision to demote
employee); and Buchsbaum v. University Physicians Plan, 55 Fed Appx. 40, at *10 (3d Cir.
2002) (explaining the applicability of a mixed-motive instruction in ADA cases).
D.

ADMINISTRATIVE RECORDS

Either the plaintiff or defendant employer may seek to introduce or exclude the EEOCs
determination. For example, if the EEOC found cause in a discrimination charge, the plaintiff
will likely try to introduce the determination as probative evidence of discrimination. EEOC
determinations are neither per se admissible or inadmissible. Admissibility of EEOC
determinations largely depends on the jurisdiction. See Lathem v. Department of Children and
Youth Services, 172 F.3d 786 (11th Cir. 1999) (holding that EEOC findings are generally
admissible in a bench trial, but that they may not be in a jury trial due to the risk of unfair
prejudice); Plummer v. Western Intl Hotels Co., 656 F.2d 502 (9th Cir. 1981) (probable cause
determinations are per se admissible in a trial de novo on Title VII claims). The majority of
courts, however, tend to find that agency reports are more prejudicial than probative. Because
19

each jurisdiction views the admissibility of EEOC determinations differently, it is necessary to


research the law in the applicable circuit.
You should also be aware that admissibility of other agency records may be at issue. For
instance, the parties submissions to the EEOC may be admissible at trial. See Hernandez v.
Hughes Missile Sys. Co., 362 F.3d 564 (9th Cir. 2004) (holding the employers written
explanation to the EEOC of its reasons for refusing to consider the plaintiffs application for
reemployment could be used at trial to establish pretext). The EEOCs underlying investigative
reports, however, are generally excluded at trial. See Smith v. MIT, 877 F.2d 1106 (1st Cir.
1989) (excluding a report that included EEOC investigators comments critical of the employers
treatment of older employees).
E.

SEXUAL CONDUCT EVIDENCE UNDER FEDERAL RULES OF EVIDENCE

When defending a sexual harassment claim, you may consider introducing evidence of
the plaintiffs sexual behavior or sexual predisposition. However, Federal Rule 412(b)(2)
states that such evidence is admissible in a civil trial only if it is otherwise admissible under
these rules and its probative value substantially outweighs the danger of harm to any victim and
of unfair prejudice to any party. If you wish to introduce such evidence, you must file a motion
with the court, at least fourteen days prior to trial, specifically describing the evidence and the
purpose for which it is offered[.] Fed. R. Civ. P. 412(c).
The admissibility of sexual conduct evidence is determined by the court using the
balancing test provided in Rule 412(b)(2). The court could consider a number of factors
including, but not limited to, the following: (1) what the sexual behavior is and when it occurred;
(2) whether the sexual behavior took place inside the workplace or outside of it; (3) whether the
sexual behavior was widely known in the workplace or not; (4) who knew of the sexual
behavior; and (5) whether the sexual behavior is relevant to the litigation. See Employment
Discrimination Law, pp. 1398-1403.
XVI. MOTION FOR SUMMARY JUDGMENT
Motions for summary judgment, if used appropriately, can end a plaintiffs claims before
they go to trial. Thus, motions for summary judgment are extremely useful to defendants,
especially in federal court, where such motions are more readily granted. Your client may be
entitled to summary judgment on a claim if the pleadings, discovery responses, depositions, and
any affidavits show that there is no genuine issue of material fact and that your client is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c). The facts must be viewed in the light most
favorable to the nonmoving party, but only if there is a genuine dispute as to those facts. Id.
Therefore, a nonmoving party should not survive a properly supported motion for summary
judgment if she merely claims a factual dispute that is unsupported or contradicted by the record.
Drafting motions for summary judgment take much time and effort. It is your
responsibility, as the moving party, to inform the court why the defendant is entitled to summary
judgment and what facts support the motion. The court will not search the case file for facts
supporting summary judgment for your client. Thus, it is imperative that you identify the
portions of the pleadings, discovery responses, etc., that demonstrate the absence of a genuine

20

issue of material fact. Local rules should be consulted to determine whether there are any
specific procedural requirements for filing motions for summary judgments.
XVII. ALTERNATIVE DISPUTE RESOLUTION; OFFERS OF JUDGMENT
Employment cases can be extremely expensive to defend. Litigation and transaction
costs can easily cost tens of thousands of dollars or significantly much more. The cost of
document production, deposition discovery, and dispositive motions alone are enough to make a
defendant employer cringe. Therefore, engaging in alternative dispute resolution (i.e., mediation
or arbitration) (ADR) of the case may be the most cost-effective way of resolving it.
Employment cases are often very personal to the parties. A person harassed or abused at
work is likely to feel shame, anger, and betrayal. The person accused of such action may feel
stigmatized, angry, and humiliated. Careers and economic futures are at risk for both.
Therefore, both sides often want to win the case as a means of achieving justice, which may
not be the best goal for your client. If you and your client decide that a possible settlement
should be explored with the plaintiff, you may wish to engage a private or court mediator. Some
courts, particularly federal courts, encourage or mandate mediation through settlement
conferences conducted by magistrate judges.
Mediation is frequently used in employment cases and can be a helpful tool in settling
cases. It focuses the parties' time and energy on a single day, spending less time than in
traditional negotiation. It is often less costly than litigating to trial, particularly if conducted at
an early stage. It is empowering to the participants, because they control the decision making,
rather than relinquishing control to an arbitrator, a judge or a jury. Because the parties best
understand their needs, mediation may produce results that could not be obtained in the
courtroom. The mediation process is confidential, which allows the parties to speak candidly,
without fear that statements can be used later in court, and any resulting settlement may be kept
from public disclosure. Finally, the neutral mediator has an opportunity to set the tone of
settlement discussions, so as to minimize the negative impact that heated emotions and
competitive natures may have.
Arbitrations are much like trials, but with the benefit of being less time-consuming and
costly. There is no formal discovery and there are simplified rules of evidence. See Rule 24 of
the National Rules for the Resolution of Employment Disputes of the American Arbitration
Association. Both sides may agree on one arbitrator, or each side may select one arbitrator and
the two arbitrators elect the third to comprise a panel. Unlike trials, arbitrations are confidential
and will not become part of the public record. Id., Rule 23.
If you decide to engage in some form of ADR, select the method most beneficial to your
client. Once you have selected your method, you should provide the neutral third party (i.e.,
mediator or arbitrator) a detailed summary of your case and the relevant supportive documents.
A good summary is key to enabling the neutral third party to help you to successfully resolve the
case. If you are engaging in mediation, it is essential to bring someone with full authority to
settle the case and to bind your client to the terms of settlement. If you, as defense counsel, will
be making settlement offers on behalf of your client, be sure that prior to mediation you have
received from your client authorization for the maximum amount for which she is willing to
settle. Finally, try to finalize a written agreement during the mediation session, as the parties
21

may change their minds once they leave the session. It may be useful to bring a laptop computer
with you so that terms and conditions can be modified and the agreement printed and signed
while everyone is in agreement.
If mediation is not successful in obtaining settlement, you might consider filing an offer
of judgment to put pressure on the plaintiff. See Fed. R. Civ. P. 68. Offers of judgment can be
useful because if the judgment finally obtained is not more favorable than the offer, the offeree
must pay the cost incurred after the making of the offer. Id.
XVIII. MOTIONS IN LIMINE; PRETRIAL BRIEFS
Do not underestimate the value of using motions in limine. Although such motions have
several uses, they are primarily used to obtain rulings on the admission or exclusion of evidence
prior to trial. If the court can rule on the admissibility of evidence before the jury is sworn and
the trial begins, it is less likely that the jury will hear inadmissible and prejudicial evidence, thus
rendering reversible error less likely. In addition, if a party learns prior to trial that she may be
unable to introduce evidence that is essential to her case, she may be more amenable to a
settlement offer that she previously rejected.
Motions in limine may also be used to limit repeated objections and sidebar conferences
that opposing counsel may use to disrupt the courtroom proceedings because the court will have
already ruled on the issues.
Remember that there is a risk in filing motions in limine to exclude evidence. If you file
your motion instead of waiting to object at trial, you will have tipped your opponent as to the
potential weaknesses in your case and the strengths in hers. Motions in limine are not, however,
final rulings. The court may determine to admit or exclude evidence contrary to a previously
granted motion in limine, based on evidence admitted at trial. See Walzer v. St. Joseph State
Hosp., 231 F.3d 1108 (8th Cir. 2000) (holding that evidentiary rulings made by a trial court
during motions in limine are preliminary and may change depending on what actually happens at
trial).
When filing your motions in limine, you will need to follow the timelines set by the
court. Such motions are usually heard immediately before the trial begins. If the evidentiary
issues are complex, you might seek, or the court may require, a hearing on the motions. In this
situation, you should seek a hearing on the motions well in advance of the trial.
XIX. PROPOSED JURY INSTRUCTIONS
Attorneys are generally required to submit proposed jury instructions prior to trial, but
local rules and practice must be determined. There are several model instructions available for
use, including model instructions the ABA has written for employment cases. See American Bar
Association, Model Jury Instructions: Employment Litigation (2nd ed. 2005).
Remember when submitting your proposed jury instructions to include sources (e.g.,
statutes, case law, secondary sources) that support them. Also, be sure to carefully review
opposing counsels proposed instructions and make objections as necessary.

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XX.

PREPARING FOR TRIAL


A.

REFINE CASE THEMES

Before the trial begins, it is necessary to refine your themes so that the jury will be
receptive to them. There are several ways to do this, depending on your budget. You may wish
to use surveys and questionnaires. Focus groups are also extremely helpful. One way of using
focus groups is to give mock clopening statements (combination of opening and closing
statements) for both the plaintiff and defendant before a random selection of people. These
people can then be broken off into two separate focus groups to discuss their thoughts on the
persuasiveness of the arguments. If the stakes are high enough, a full blown mock trial may be
necessary. Typically, a jury consultant is used in these endeavors. Once you receive the
necessary feedback, you should adjust your themes, as necessary.
B.

PREPARE YOUR WITNESSES FOR EXAMINATION, ASSESS CREDIBILITY, AND


ESTABLISH ORDER

A good case can become a weak case by poorly prepared witnesses. Therefore, it is
imperative that you prepare your witnesses for both direct and cross examinations. You may
wish to share with some witnesses how the testimony will fit in the theme of the case you are
trying to convey to the jury. Witnesses perform far better on the stand when they understand
their role in the case, and how their testimony plays into the case theme.
Have the witnesses review their depositions and key documents to refresh their memories
and conduct practice direct examinations of the witnesses. Evaluate whether the witnesses
appear credible and identify questions that the witnesses seem uncomfortable answering. Jurors
can tell when witnesses are uncomfortable. Address these issues in a positive manner to reassure
your witnesses. Also, identify any evidence that may be used to impeach your witnesses.
Discuss these with each witness and prepare ways that you will rehabilitate them if necessary. If
you determine during practice sessions that a witness does not appear credible or can be
impeached, you should consider not using her.
Discuss the cross-examination process with each witness, covering likely areas of
opposing counsels cross-examination. Conduct a practice cross-examination of the witness.
You can do this yourself, but it might be best to have a colleague do it. Going through this
process is crucial because it will alert you to weaknesses and/or conflicts in the witnesss
testimony and give you the opportunity to resolve these issues before trial. It is important that
you and your witness are on the same page regarding her testimony, discussing what you both
want to achieve. Conducting a thorough practice cross-examination will ease your witnesss
tension on the stand and defend against the unraveling of important testimony.
Identify the witnesses you wish to call. As defense counsel you will likely represent a
corporate entity. Therefore, you must determine who should appear as the corporate
representative of the company. This can be a difficult choice, depending on the qualities you
wish to convey to the jury.
Once you have identified which witnesses you will call, you must arrange them in a
logical manner. Typically this is done so as to tell the story you wish to convey to the jury (this
does not always call for a chronology of events). Keep in mind that as the trial proceeds, you
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may have to rearrange the order in which you call your witnesses, especially if the plaintiff calls
some of your witnesses during the presentation of the plaintiffs case.
C.

PREPARE CROSS-EXAM FOR OPPONENTS WITNESSES

Cross-examination can quickly and effectively weaken your opponents case. Therefore,
prepare diligently by identifying the facts and documents that you will use to refute the witnesss
testimony or to call into question her credibility. Short questions to which you know the answers
are the most effective. Impeachment evidence should also be gathered, and you should prepare
for the possible objections that opposing counsel will make. Make sure all information is readily
accessible at trial.
D.

IDENTIFY AND PREPARE DOCUMENTS FOR USE AT TRIAL

You should identify the documents most helpful in supporting your defense or in telling
your story. Overuse of documents at trial may cause a jury to lose focus on the important issues
you wish to emphasize. Also determine the most effective way to display your documents (e.g.,
electronic projector, cardboard blow-ups). All documents do not have to be exhibited in the
same way, but they should all be memorable and easy for the jury to see and understand.
E.

IDENTIFY EVIDENCE TO BE INTRODUCED BY STIPULATION

You may wish to stipulate to the introduction of certain uncontested facts and documents.
Stipulations have certain benefits. They speed up the trial, are a cost-effective way of
introducing evidence, and allow you to focus on the crucial issues in the case. However, keep in
mind that even if something is uncontested, stipulating to its introduction may not be the best
strategy. For instance, you may determine that your case will be better served if the jury hears
witness testimony on a particular issue.
F.

IDENTIFY TESTIMONY TO BE ADMITTED BY DEPOSITION

Certain witnesses may be unavailable for testimony, and you will want to determine
whether the rules will allow her deposition testimony to be introduced into evidence. If so, you
should review her deposition testimony and identify the specific testimony that you wish to
introduce. Deposition testimony can be stipulated to by the other party. However, if an
agreement with opposing counsel cannot be reached, you should move the court to resolve the
issue.
Tip: If you are aware of a witnesss unavailability early in the case, you may wish to
conduct a video deposition. They are often more effective with juries than listening to written
transcripts being read into evidence.
XXI. CONCLUSION
The above information was designed to give you a general overview of how to prepare a
litigation defense for an employment case. You should take this information and use it as a
starting point for your pre-trial litigation plan. Remember, however, that a good trial attorney
must, first and foremost, understand the facts and law involved in his case. Only then will the
above tips and strategies be useful.
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