An agency may dismiss an EEO complaint for several reasons, including:
- failure to state a claim
- untimely initial contact with an EEO counselor
- filing the identical claim in Federal District Court
- filing the identical claim with MSPB
- failure to provide necessary information to the agency
- failure to file on time or respond on time
- among other reasons.
See 29 C.F.R. § 1614.107(a).
Contact:
Glenn C. McGovern
2637 Edenborn Ave.
Suite 101
Metairie, La. 70004-0516
Phone: 504-456-3610
Toll-free: 800-721-3992
Cell: 504-908-1404
Fax: 504-456-3611
The list is not exclusive as there are many more defenses available to an employer, but these are my top ones that you want to be aware of.
1. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
Before filing suit on a statutory employment discrimination claim, under state or
Federal law the aggrieved employer must exhaust all his/her administrative remedies. The
employee must file a sworn complaint with the EEOC and check off the box to
simultaneously file a discrimination claim with the Louisiana Commission for Human
Rights. This must be done within 300 days of the event in Louisiana. It must be filed
with the EEOC office timely and contain a sufficient statement to describe all claims.
Then a right to sue letter must be obtained from the EEOC and this pled in the suit. An
employee can ask for a right to sue letter to be issued immediately and the EEOC will do
so. It is critical that ALL the causes of action must be listed or they can be waived and
lost. If there is a sexual harassment and retaliation claim, both those boxes must be
checked and there is not a valid retaliation claim. The EEOC person usually types up the
form and the employee usually has no attorney to guide him or her. Thus a big problem is
that all the possible causes of action are not checked, all facts are not listed and described
in detail and listed, leading to dismissal of those causes of action later. You could file in
state court for state causes of action only but why would you not go through the process
of filing with the EEOC and making the employer file a response? Extra info never hurts.
Then you can file a FOIA request to get that response after a right to sue letter is issued
by the EEOC and get that response within the 90 day window to file suit after a right to
sue letter is issued. Reviewing the employer’s response may be illuminating and is
always helpful.
2. FAILURE TO FILE FOR WRONGFUL DISCHARGE TIMELY
For a termination claim, the date of termination is not usually the date the cause of
action begins. Usually, there is some definite notice of the termination. The cause of
action accrues, and prescription begins to run on that date—not date of actual termination
or last day worked. Remember the 300 EEOC deadline for filing a sworn EEOC claim
will also run from the earlier date, so lawyer beware! Smith v. United Parcel Service of
America, Inc. 65 F3d 266, 268 (2nd Cir. 1995).
Compare this to a constructive discharge claim where the cause of action period is
from date of the employee’s resignation, date of constructive discharge. Only the
employee can know when the atmosphere at work is too intolerable that they had to quit
so actually date of resignation governs here. Flaherty v Metromail Corp., 235 F3d 133,
(2nd Cir. 2000)
3. FAILURE TO FILE AN ADDITIONAL EEOC CLAIM OF
RETALIATION AFTER THE INTIAL EEOC CLAIM IS FILED
An employee often files an initial claim timely with EEOC. Then the employee is
later retaliated against. No retaliation box was checked on the original claim at the time it
is filed. Usually a series of retaliation later occurs. But the employee may fail to file an
additional retaliation complaint. Before any claim is filed under Title VII, it must be filed
in a sworn complaint with EEOC. Often an additional EEOC sworn complaint is not filed
and then suit is filed for the Title VII complaint and retaliation. The retaliation claim will
then be dismissed due to failure to file one with EEOC.
4. FAILURE TO INCLUDE STATE CAUSES OF ACTIONS AS BACK UP
CLAIMS
I am surprised many attorneys do not watch for basic state causes of action and
include those in federal court complaints. You never know what a judge or jury will do.
Always include basic pendant state causes of action timely. Such state causes of action
like, assault, battery, intentional infliction of mental distress, malicious prosecution, false
arrest and defamation may save your case from utter defeat. You could be unsuccessful
on your federal claim and still win on your state claims. Put state discrimination claims
in. I was speaking with a defense attorney who defended a §1981 Civil Rights claim and
won that, but the plaintiff hit a big award on a state malicious prosecution claim. The jury
did not buy the race motive in the §1981 federal race claim, but punished the defendant
employer for mistreatment thru false criminal prosecution of the employee. Always
include state causes of action as your parachute.
5.FAILURE TO PRESERVE BY TIMELY FILING STATE CLAIMS
To preserve your state claims you generally must file them in a court within one
year. You may not hear from the EEOC and receive a right to sue letter within a year and
lose the state claims that prescribe in one year. Watch that one-year prescriptive period
on those state claims! Ask for a right to sue letter from the EEOC within the one year to
file your suit with federal and state claims within one year.
6. LOSING ALL WAGE LOSS DAMAGES DUE TAKING DOCUMENTS
DUE TO THE AFTER-ACQUIRED EVIDENCE DOCTRINE
Often a employee will crank up a copy machine in the middle of the night when
the office is bare of employees and proceed to copy all e-mails and letters in restricted
areas that the employee did not have any access to normally. Then they show up at your
office with a suitcase of papers showing the discrimination or sexual harassment and
retaliation for complaining about it. They may have even have a copy of the investigation
from the defense counsel. They may have letters marked ”attorney client privileged” on
them. They may just download gigabytes of data onto a portable hard drive. The
potential client wants to prove they were wronged and offers your clear proof in basically
stolen documents. This is a disaster in the making! First, you as attorney may be in
trouble and removed from the case if you view such records. Or it may lead to a bar
complaint. Secondly, the employees claim may be dismissed or damages reduced under
the doctrine that the employee violated rules of employment that if the employer knew he
did so would lead to their being fired. Even when the employee’s misconduct does not
bar recovery under the doctrine of unclean hands, it may limit remedies otherwise
available under federal and state discrimination law. McKennon v. Nashville Banner
Publishing Co., 513 US at 360, 115 S.Ct. at 866.
7. HAVING AN EMPLOYEE’S CLAIMS BARRED BY EMPLOYEE
MISCONDUCT UNDER THE AFTER AQUIRED EVIDENCE DOCTRINE
An employee is fired for an unlawful cause like discrimination. But then is it
learned the employee did one of the following: 1. Resume fraud. 2. Falsification of
records 3. Stealing confidential employer data 4. Failure to report a DWI or felony
conviction 5. Falsification of academic credentials or work experience. (I actually had a
client “forget” a federal bank robbery felony conviction.)
Depending on the type of claim it may be barred totally by the above. On a
contract claim, resume fraud may bar the entire claim. On a discrimination claim it may
not totally bar it but may reduce future loss wage damages for example.
8. RES JUDICATA, PRECLUSION AND COLLATERIAL ESTOPPLE
Under this doctrine a final judgment on the merits of an action precludes the
parties or their privies from relitigating issues that were or could have been raised in that
action. Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.
Ct. 892
A finding of an administrative agency acting in a judicial capacity in resolving
disputed claims before it in which the parties have the full opportunity to litigate may bar
a similar suit. See United States v. Utah Const.& Mining Co,. 86 S. Ct. 1545, 1560.
State or federal administrative proceedings may also bar other claims. University
of Tennessee v. Elliott, 106 S. Ct. 3220, 3226. This does not apply to state employment
compensation proceedings generally but as long as state unemployment benefits
proceedings satisfy federal due process requirements, there is no constitutional bar to
applying collateral estoppel in such proceedings. Shields v. Bellsouth Advertising and
Publishing Co., Inc. 228 F3d 1284, (11th Cir. 2000)
9. EMPLOYEE FORGETS HE/SHE SIGNED AN ARBITRATION AGREEMENT
I am never surprised when an employee swears he/she never signed an arbitration
agreement-then one pops up! (I then feel sick…) Then an exception of prematurity and
motion for stay is filed. (Maybe it’s just me but I feel having to litigate in an arbitration
with a typical AAA arbitrator that wears a bow tie with a picture of the Republican
Convention in New Orleans in the hallway of his office is like going to a street gang
AK47s gunfight and I only have a .22 caliber derringer.) Usually the employee is given a
stack of papers and told to sign them to be hired. In the two inch stack of papers is a
binding arbitration agreement they sign, totally unaware of what it is. Maybe they sign
the receipt for the employee manual that describes an arbitration agreement for all claims
that arise out of employment. Unless there is a contractual defense such as consent,
mistake, error, fraud or a statue that bars the agreement, (like the recently signed Franken
amendment that bars sexual harassment and assault claims going to arbitration for
government contractors), the employee’s suit will be dismissed as premature and sent to
arbitration. The chances of success and substantial damages in arbitration with no jury, is
greatly reduced.
10. FAILURE TO GET STATEMENTS FROM CO-WORKERS BEFORE AN
EEOC CLAIM IS SENT TO THE EMPLOYER OR SUIT IS FILED
Nothing is harder to win than a “he said- she said” swearing discrimination
contest with no corroborating or independent evidence of the claim. (Like the Black
Plague and Swine Flu they are to be avoided at all costs. ) Always get simple handwritten
signed statements, then detailed recorded statements over the phone, transcribe them and
get those signed then follow up with declarations under penalty of perjury and/or
notarized affidavits for use in surviving summary judgment that is sure to be filed. This
is a lot of work but it will pay off handsomely. I cannot tell you how many cases were
saved by my having recordings or signed statements of scared employees who are single
parents that may try to change their testimony under pressure of company attorneys or
bosses for fear of losing their jobs if they testify for the employee. Your statements will
stop this from happening.
Always get statements before suit is filed. After suit is filed you will probably be
barred from getting such information except from ex-employees. Such measures will save
you from being Rule 11 sanctioned too.
