Vol. 46, No. 3
Did you know that the 'discovery bone' is connected to the 'summary judgment bone'?
It’s been a winter of discontent for you. A few months ago, one of your employees filed a discrimination charge against your company with the Equal Employment Opportunity Commission (EEOC). Maybe you won, maybe you lost or maybe the employee requested a Right-to-Sue Notice before the EEOC came to a decision.
Either way, your employee still has the right to file suit in court—and that is exactly what he has decided to do.
The only good news is that it could be worse: If the EEOC had sided with the employee, the agency itself might be suing you on the employee’s behalf.
The question you probably most want answered is this: What happens next?
The Start of the Litigation Process
Lawsuits begin with the plaintiff (either the employee or the EEOC) filing a document—known as a “complaint”—in court. The complaint contains very basic information outlining how your company (the defendant) allegedly violated the law.
Some complaints recite detailed factual allegations; others simply outline broad charges, leaving details for later.
Generally, your company will receive a copy of the complaint in one of two ways. Either the sheriff or another process server will personally deliver a copy to your company, or the plaintiff’s attorney will mail you a copy along with a form called a “Waiver of Service of Process.”
If you receive the complaint by mail with a waiver, you should sign it (or have the company attorney sign it) and return the document to the plaintiff’s lawyer.
There are two very good reasons for signing the waiver. First, if you sign the waiver, your lawyer will have 60 days to respond to the complaint, rather than the 20 days usually allowed by federal courts. Second, if you don’t sign the waiver, the complaint will be personally served on your company—and your company will have to pay the costs. (When plaintiffs do not send a waiver form, they have to pay the cost of serving the complaint.)
After your company receives the complaint, it must file a document—called an “answer”—within the requisite time frame. The answer either admits or denies each of the allegations in the complaint.
As a human resources manager, you likely will play a key role in helping your company’s attorney investigate the facts alleged in the complaint. At a minimum, the attorney will ask you for copies of the plaintiff’s personnel file, as well as any other documents relating to the plaintiff.
If you were involved in the employment decision that sparked the lawsuit, the attorney likely will want to interview you, as well as other managers or supervisors involved in the decision.
Even if you were not involved in the employment decision—perhaps it was handled by your predecessor—you still will be heavily involved in the process. And your predecessor likely will be subpoenaed to testify.
If your company has not yet investigated the issue, the attorney may want you to conduct, or assist in conducting, a thorough investigation. It is likely that the attorney will, at least initially, rely on you to suggest areas to examine, people to interview, relevant policies to peruse, etc.
From these documents and interviews, the company’s attorney will prepare an answer to the complaint and file it with the court.
After the answer is filed, most federal courts hold scheduling conferences. At these conferences, the attorneys for both sides meet with the judge to establish relevant deadlines for getting the case to trial as well as the actual trial date. Most state courts do not hold scheduling conferences.
You are not required to attend the scheduling meeting, although you certainly have the right to attend as a company representative. Doing so, however, might be a poor use of your time. There really isn’t anything the parties can do at the scheduling conference, so typically only their lawyers attend.
The Discovery Process
Once the scheduling conference has been held, the parties will begin the “discovery” process, if needed. In this process, each side learns the facts about the other side’s case. This process typically goes on for months and consumes a great deal of time, energy and resources.
In all federal courts, the parties must first make “initial disclosures” to each other. Essentially, each side must disclose the identities of people they believe have knowledge about the facts of the case and must share relevant documents with the other side.
As a human resources manager, you likely will gather this information for the company’s attorney. Keep in mind that your company’s attorney has deadlines for making these and most other disclosures that occur during the litigation process. Therefore, it is extremely important that you respond promptly and fully to the attorney’s request for information or documents.
After the initial disclosures have been made, the two sides typically send written questions or interrogatories to each other, as well as written requests to produce additional documents. Again, you will likely be responsible for gathering the information and documents necessary to respond to the plaintiff’s questions and requests.
For the interrogatories, you likely will have an additional responsibility. Most courts require that a company representative sign the interrogatory answers attesting to their accuracy and truthfulness. Typically, human resource professionals sign these documents.
Signing answers to interrogatories carries the same weight as testifying under oath in court, so it is very important that you sign only if you are completely comfortable with the accuracy and truthfulness of these statements. If your answers in a deposition or at trial differ from the answers to an interrogatory, plaintiff’s attorneys won’t hesitate to make you look like a liar.
After the parties complete the written discovery process, they schedule oral depositions of certain potential witnesses. If, as the human resources manager, you were involved in the employment decision at issue in the case, it is virtually certain that you will be deposed. Your company’s attorney will spend considerable time preparing you for your deposition. (For information on what you can expect during your deposition, see Say the Right Thing, from the May, 1999, issue of HR Magazine.)
If you were involved in the employment decision, it is also very important that you attend the deposition of the plaintiff taken by your company’s attorney. Because you have superior first-hand knowledge of the case, you may think of questions to ask the plaintiff that the company attorney might not think of.
Also, if the plaintiff lies or makes a mistake in the deposition, you can advise your attorney during a break. This may help your attorney develop additional questions to ask the plaintiff.
In addition, you also may be able to help your attorney understand the significance of documents discussed during the deposition. Because you are more familiar with these documents than your attorney is, he or she should welcome your feedback in this area.
Finally, if your attorney has a question about something said during the deposition, you will be there to answer it.
In sum, an attorney who must take a plaintiff’s deposition without the presence of the human resources manager—or other managers involved in the decision—operates under a serious disadvantage.
After the discovery process is complete, your company’s attorney will decide whether to file a summary judgment motion, which asks the court to dismiss the case without a trial.
The judge will grant a summary judgment only if there are no material facts in dispute in the case. If material facts are in dispute, the motion will be denied. Attorneys sometimes choose to avoid the expense of preparing and filing such motions if they believe they have little chance of success.
If your attorney does file the motion, he or she likely will use factual material developed during the discovery process to support the motion. You likely will be involved in helping the attorney gather further supporting evidence for the motion. For instance, you or other managers may be asked to sign an affidavit, which is sworn written testimony, in support of the motion.
As with signing interrogatory answers, do not sign an affidavit unless you are completely comfortable with the accuracy and truthfulness of its contents. You may be hesitant to point out possible errors to your attorney but you must: If you testify to something at trial that is contrary to a statement in the affidavit, the plaintiff’s lawyer will use the affidavit to make you look like you are lying.
Believe me, your attorney would rather find out about problems before you sign the affidavit than afterwards, when his or her options will be limited.
One final point about the summary judgment stage of the litigation process: There often is no better time to negotiate a reasonable settlement than when a well-drafted summary judgment motion is pending. At this stage of the process, plaintiffs are in their most precarious position because they do not know if the judge will dismiss the case without a trial. As a result, many cases are settled at this time under terms that are economically advantageous to the company.
Remember: It is sometimes cheaper to settle than to fight, even if you know you are right. Trials can be very expensive, and their outcome can be uncertain.
Pre-Trial and Trial
If the case is not settled and the judge denies the company’s motion for summary judgment, the case will proceed to trial on the designated date. During the six weeks or so prior to trial, both you and the company lawyer will be extremely busy. The lawyer will telephone you with numerous questions and possibly with requests for additional documents. You also will be asked to help schedule times when the company’s witnesses can be prepared for their trial testimony, as well as to help coordinate their appearance at the trial itself.
If you have not already done so, give your attorney your views on how employee witnesses may be perceived in court. For example, employees who tend to talk too much at work likely will talk too much when testifying, which increases the odds they will say something damaging to the company. Similarly, employees who are troublemakers at work or who have an ax to grind with the company are more likely to say something damaging to the company at trial.
Warning your attorney about such issues can help him or her to decide whether to use these employees as witnesses—or at least help your attorney to be better prepared.
Your attorney may file various pre-trial evidentiary motions, and will have to prepare many other pre-trial documents required by the court. You will likely need to assist in preparing some or all of these.
At trial, you may be asked to sit at the counsel table with your company’s attorneys. Your role there will be much the same as it was at the plaintiff’s deposition. Your attorney may need to ask you questions during trial, and you should inform your company’s attorney of any relevant observations you make.
A trial is an all-consuming enterprise. As a result, you should plan to delegate to others your regular work duties. Also, have other employees standing by for rapid response in case a need for further information arises during trial.
Since the Civil Rights Act of 1991, virtually all employment discrimination cases are tried before juries. Once both sides have put on all their evidence at the trial, the jury will retire to deliberate the verdict.
When the jury reaches its verdict, it will send a note to the judge. The judge then will reconvene court with the jury and both parties present. The jury’s verdict will be announced and the trial is over. At this point, the losing side may choose to appeal, or there may be another attempt at settlement to preclude an appeal.
Typically, an average employment discrimination trial lasts about three days. However, very simple cases could be shorter, and complex cases could last for more than a week.
Timothy S. Bland, SPHR, is an attorney with the Memphis office of Ford & Harrison LLP, which represents management in labor and employment matters. He is a member of SHRM’s national Workplace Diversity Committee. Sue S. Stalcup, human resources director for the City of Apache Junction, Ariz., and Thomas J. Walsh Jr. of the Memphis office of Ford & Harrison, both contributed to this article.