Employment cases: Two tips for lawyers representing plaintiffs

Issue December 2010 By Ellen J. Messing and Kevin C. Merritt

If you are representing an employee in an employment case, be alert for employer behaviors that can be capitalized on:

Deviations from established policy

Frequently, plaintiffs are discharged, or subjected to other adverse actions, in situations where applicable workplace standards are not applied as they ordinarily are. Hiring and promotion standards, compensation plans, performance evaluations and disciplinary procedures may not be utilized at all, or may be manipulated by an employer to penalize a disfavored employee, to favor others or to give vent to bigoted beliefs.

Failure to apply long-held policies can be effective evidence of discriminatory animus and pretext. For example, it happens frequently that an employer cites an employee's mediocre performance as grounds to deny the employee a promotion. Yet almost as frequently, the employer has not applied the same standards to co-workers.

Of course, this suggests that performance was not the employer's real motivation. See, e.g., Masterson v. LaBrum & Doak, 263 FEP 808 (E.D. Pa. 1993) - a judgment for a female plaintiff denied partnership in a law firm for failing to generate business, where the employer never told the plaintiff she was expected to generate business, but did tell the plaintiff's male counterparts; see also Kirschner v. Office of the Comptroller of New York, 973 F. 2d 88 (2d Cir. 1992) -- the plaintiffs' department chief had insisted that the city administer civil service examinations in the years before the plaintiffs sought promotion, then failed to do so once the plaintiffs (older persons) sought promotion; held, sufficient evidence of discriminatory intent.

There are some common variations on the "deviation from supposed policy" theme. Some employers, rather than ignoring a policy or work rule, will actually change the rules to authorize an adverse action, or a decision not to take favorable action, that would have been prohibited under the existing rule. If this occurs, you can argue that the employer planned to make a decision violative of the existing rules, and therefore changed the rule to legitimize its decision post hoc.

Regardless of its form, this kind of employer approach arises frequently in promotion cases, which are often rife with procedural irregularities. (For example, a favored candidate applies after the deadline, but is considered anyway; the favored candidate receives interview questions in advance; the employer manipulates hiring criteria to fit the favored candidate's credentials.) See, e.g., Farber v. Massillon Bd. of Educ., 917 F. 2d 1391 (6th Cir. 1990) -- a trial court's failure to find pretext clearly erroneous where the ultimately successful candidate for promotion, who lacked the minimum 10 years' experience required by the handbook, was deemed qualified only because the employer tailored the job posting to limit the experience requirement to four years; Bergene v. Salt River Project Agr. Imp. and Power Dist., 272 F. 3d 1136 (9th Cir. 2001) -- summary judgment for employer reversed where, inter alia, the employer awarded promotion to a male employee who qualified for the position only after the employer altered the job description. Similar patterns arise in layoff cases where layoff criteria are manipulated to favor or disfavor particular employees or employee categories.

Sources of workplace rules include union contracts, company handbooks, written stand-alone policies and past practice. These sources provide the standard from which the employer may be deviating in your case.

Punishing the victim in harassment or other internal complaint cases

Employer responses to an employee's internal complaints of harassment vary widely. In many cases, the employee's complaints are treated as the problem, because they disturb the status quo of the workplace and often implicitly challenge its power relations.

The victimized employee unexpectedly may find herself the object of a personnel action, such as transfer or a change in title or responsibilities. This action is often accompanied by an employer statement of beneficent intent, such as the goal of separating her from a harasser. Moreover, it is routine for the victim to experience shunning or exclusion in the workplace, especially where the perpetrator has a power advantage over the victim -- for example, as the victim's supervisor.

Often an employer's mere inaction punishes the victim. For example, the employer may drag its feet in investigating the victim's complaint; the harassment continues; and the employee remains stuck in an untenable situation. On the other hand, if the employee reacts to the situation in a manner commensurate with its seriousness -- for example, by taking a medical leave of absence -- the employee often will be penalized for malingering, lack of commitment to work, etc. If the employee quits, that "proves" to the employer that she was just oversensitive or lazy, or cynically setting up the employer for litigation.

An employer's choice to focus its response on the harassment victim rather than the perpetrator may be powerful evidence of retaliation. A plaintiff in such circumstances should return the focus to the employer. Highlight the actions that the employer could have taken to address the problem without punishing the victim -- for example, by transferring the perpetrator, not the victim.

Similarly, you can highlight all the steps the employer did take that hurt the employee, and explain why those steps were inappropriate -- for example, declining to punish the harasser, or leaving the harasser in place as the victim's supervisor. See e.g., Billings v. Town of Grafton, 515 F. 3d 39 (1st Cir. 2008) -- a summary judgment was in error where the plaintiff complained about a supervisor's harassment and was subsequently transferred to a different office; Davis v. City of Sioux City, 115 F. 3d 1365 (8th Cir. 1997) -- a retaliation verdict for the plaintiff was upheld where the plaintiff, after complaining about a supervisor's harassment, was involuntarily transferred to a less-desirable position.

Focus on the plenary powers that the employer has in the workplace: the employer had innumerable options, but only chose to pursue options that were harmful to the plaintiff.

Ellen J. Messing is a partner and Kevin C. Merritt is an associate at Messing, Rudavsky & Weliky PC, a Boston-based firm representing employees and unions.