A decade or so ago, our firm was hired by a client to defend a lawsuit alleging race discrimination. The matter had already been through the EEOC process and the EEOC had found cause for race discrimination. The company had handled its own EEOC internal investigation, and had prepared the position statement to the EEOC, basing the discharge on tardiness and attendance. The company’s HR Department was located at the company’s headquarters across town from the employee’s work area.
Now, well over a year after the termination, I was investigating anew the circumstances leading to the employee’s termination, and one key supervisor was no longer with the Company. I did see the employee’s tardiness and absences, but when I compared it to other employees. While his was toward the worst, other employees with similar attendance problems had not been discharged.
The Truth Comes Out
Then, I located the file which the employee’s supervisor had kept on him. This file was replete with notes about how the employee had taken home company tools against company policy and had engaged in insubordination against the supervisor. These were in fact the main reasons why he was fired, which was known by his chain of command but apparently not HR. As it turns out, this file never made it to HR and HR had not stated ALL of the reasons for the employee’s discharge.
I felt like I had uncovered all the discharge reasons, that we had a strong defense to this suit, and, under normal circumstances, we should be able to win at trial or settle for a de minimis amount. HOWEVER, the problem was we were already on record with the EEOC that our discharge reason was only tardiness and absenteeism. To now assert policy violations, possible theft and insubordination, reasons typically considered quite strong, and with supporting documentation, would open my client up for considerable credibility problems during cross examination. And I would be asking the HR Manager to hang herself by admitting to preparing a sloppy EEOC position statement which was coming home to roost.
I recommended that we elect pre-discovery mediation and try to settle the case before attorneys fees grew astronomically. We did, and we settled, but for an amount which suggested perhaps some culpability on our part. The lesson learned from that episode was, take the time and be thorough when responding to the EEOC. Once a position statement is filed with the EEOC, the company pretty much is boxed into its position, and changing such position can lead to loss of believability for the employer, the essential ingredient in trials. I made this very clear to the HR Manager, behind a closed door.
The Price of Contradiction
I was reminded of this old case upon reading of a similar situation, but where the employer made a different strategic decision and is now experiencing an expensive result. In Gaglioti v. Levin-Group, Inc., (6th Cir. Dec. 13, 2012), like our case, the employer, Levin-Group, had boxed itself in by stating to the EEOC that Gaglioti was discharged because he had been a temporary employee and the work had run out. By the time the matter reached law-suit stage, Levin-Group had added that Gaglioti had been discharged for performance problems, and with no supporting documentation.
The Plaintiff’s attorney favorite word, “PRETEXT” killed all of Levin-Group’s reasons. First, Levin-Group had provided Gaglioti full benefits, which contradicted its employee handbook regarding which types of employees receive benefits. Also, at the time of Gaglioti’s discharged, his department had two remaining employees. At the time of the lawsuit, the same department had four employees, suggesting that lack of work was not true.
Finally the court addressed the addition of the performance reason for discharge:
“. . . there is the fact that [Gaglioti’s work performance] was never raised by Levin-Group until well into the litigation . . . the initial e-mails and [EEOC position statement] deal exclusively with the temporary employee/lack of work justification. While this fact may not be enough to show a changing rationale, it would allow the jury to view the performance argument as a litigation strategy as opposed to the real reason for the action.”
The Levin-Group dealt with the late-reason dilemma differently than we did. Instead, it added the performance reason during litigation of the lawsuit. Initially, the Levin-Group was successful at obtaining summary judgment against Gaglioti, dismissing his lawsuit. But Gaglioti appealed, and the Sixth Circuit REVERSED (!), remanding the case for trial on the merits.
Having incurred the costs of discovery, a motion for summary judgment, and an appeal, the Levin-Group can now either hope to persuade a jury that it is now finally telling the whole truth and nothing but the truth, (with trial costs upward to $100,000.00) or it can now enter into mediation with Gaglioti, who knows Levin-Group is cornered. Compare all this cost to what another 8 hours of thoroughness would have cost Levin-Group at the time of the initial EEOC Position Statement.
If you would like to learn more about protecting your company from a discrimination law suit, contact Tom or Gregg at Harper Gerlach. You can learn more about our history and credentials at www.HarperGerlach.com.