By Tod F. Schleier

Deposing & Examining Employment Witnesses

Excerpted from Deposing & Examining Employment Witnesses

 

 

Tips and Strategies

§3:04     Goals of Deposition

Nail Down Employer’s Defenses

The plaintiff’s first goal in deposing the supervisor is to learn, nail down, examine and test the key facts supporting the employer’s defenses to the case. It is crucial to have the supervisor establish the rationale and reasons for all actions taken by the employer that form the basis for a termination, discrimination or harassment claim, to prevent the employer from later changing its story. Have the supervisor identify any witnesses who might corroborate the supervisor’s rationale and reasons for the adverse action. Explore relevant documents with the supervisor so that his explanation of the paper trail developed by the employer is secured under oath. By the time the supervisor’s deposition has been completed, plaintiff’s counsel should have a thorough understanding of the evidence that will support the employer’s defenses and the witnesses and documentary evidence that will corroborate those defenses.

Obtain Admissions

Because the employer will invariably file a motion for summary judgment (see §3:01), the second purpose for taking the supervisor’s deposition is to obtain as many admissions as possible that can be used to defeat the motion. In virtually every discrimination or harassment case, some or all of the prima facie elements—that the plaintiff (i) belonged to a protected class, (ii) was performing satisfactorily, and (iii) suffered adverse employment action—should be established through the supervisor. In addition, there are always strong points in the plaintiff’s case that the defense cannot deny without losing all credibility with the judge or jury, such as a long history of good performance evaluations, a total lack of prior disciplinary action, and prior awards or commendations. Ask questions that will strengthen the plaintiff’s case based on those indisputable points.

Enhance Credibility of Plaintiff’s Witnesses

A third purpose of the supervisor’s deposition is to enhance the qualifications and credibility of the plaintiff’s witnesses. For example, in a sexual harassment case, if the supervisor denies engaging in inappropriate conduct, plaintiff’s counsel can ask whether a particular witness was present at the time the event in issue took place, and was in a position to observe and hear what transpired. Follow this with questions to establish that the witness has always been honest in his dealings with the supervisor. Once the supervisor has testified that the witness is honest, it will be difficult for the employer to attack the witness’s credibility in a subsequent deposition or during trial testimony.

Establish Pretext

A key purpose of the supervisor’s deposition is to lay the groundwork to establish pretext—that the employer’s articulated legitimate business reason for the adverse employment action is false. One of the simplest ways to establish that the employer’s proffered nondiscriminatory reason for disciplining or terminating an employee is pretextual is to demonstrate that the employee was treated less favorably than a similarly situated employee outside the relevant protected class. See Rodgers v. U.S. Bank, 417 F.3d 845, 853 (8th Cir. 2005); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1311 (7th Cir. 1997). However, “at the pretext stage of the McDonnell Douglas burden-shifting framework, the test for determining whether employees are similarly situated to a plaintiff is a rigorous one.” Rogers, 417 F.3d at 853. The plaintiff must demonstrate that she and the comparator are similarly situated in all relevant respects and the misconduct of the more leniently disciplined employees must be of “comparable seriousness.” Id. If, for example, the plaintiff has an extensive disciplinary history and the misconduct of the comparator is his first offense, this difference may prevent the court from finding that the comparator is similarly situated. See Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691-92 (8th Cir. 2002). Consequently, when deposing the supervisor on the issue of pretext and similarly situated comparators, counsel should thoroughly explore whether the alleged comparators:

  • Held the same or similar employment positions;
  • Had similar employment histories;
  • Engaged in similar misconduct giving rise to the underlying employment action; and
  • Experienced more favorable treatment by the employer.

In addition, explore the alleged reasons for the more favorable treatment by the employer. By raising doubts as to truthfulness and evidence supporting the alleged reasons, summary judgment can often be defeated.

Explore Supervisor’s Understanding of Employer’s Policies

In employment cases, the employer is typically held to a very high standard when it comes to disciplining and firing employees, especially when the employer has clear written policies that control the types of adverse employment actions at issue. Thus, a key goal in taking the supervisor’s deposition is to obtain his understanding of the employer’s policies, and to compare what he actually did to what the policies require. If the policies provide for progressive discipline and none was given, elicit the supervisor’s reasons for bypassing the required procedures. Jurors expect an employer’s policies to be followed and have little tolerance for a supervisor who fails to follow well-established company policies and procedures. Moreover, jurors expect documentation in the form of training sessions on policies and procedures, written warnings, and counseling sessions before adverse employment action is taken. If these types of documentation do not exist and the supervisor is going to justify the adverse employment action on poor performance, question the supervisor regarding his explanations for the lack of documentation.

Test Supervisor’s Credibility

In sexual harassment cases, it is important to test the credibility of the alleged harasser, who frequently is the plaintiff’s supervisor. Most sexual harassment cases are “he said, she said” swearing contests, in which the credibility of the harasser and the victim is often outcome-determinative. Therefore, the credibility of the supervisor must be tested in the deposition by examining instances of prior complaints, prior bad acts, explanations as to “welcomeness,” and any other areas that may demonstrate that the supervisor is not credible or that his story is not believable.

Evaluate Supervisor’s Performance as Witness

An important purpose of taking the supervisor’s deposition is to evaluate the supervisor as a witness. In most cases, the supervisor is expected to carry the defense case on his shoulders. During the deposition, you can observe the attitude, demeanor and manner in which the supervisor testifies and evaluate what kind of witness he will be at trial. Through extensive cross-examination, you can learn the potential subject matter areas where the supervisor is most vulnerable, which areas can be exploited during trial. These potential weak areas then become the focus of attack during cross-examination at trial.

Deposition Questions

§3:07     Employment History With Defendant-Employer

Time of hire

  • Date of hire
  • Position at time of hire
  • Promotions
  • Job duties and responsibilities in each position
  • Names and job titles of supervisors in each position

Current position

  • Current job title
  • Current job description
  • Nature of work performed
  • Supervisory duties and responsibilities
  • Supervisory training received from the employer
  • Names(s) and job title(s) of supervisor(s)

Performance evaluations

  • When?
  • How often?
  • By whom?
  • Satisfactory?
  • Areas identified as needing improvement?

Disciplinary actions

  • When?
  • On what grounds?
  • Resolution?

§3:08     Plaintiff’s Job Performance

Supervisor’s perception of plaintiff’s work performance

  • Criticisms of work performance?
  • Specific facts supporting those criticisms?

Review all written evaluations/appraisals and any notes or other documents related to plaintiff’s evaluations

  • Who prepared?
  • Who provided input?
  • Did supervisor have any discussions with anyone regarding these documents?
  • When? Where? What was said?
  • Supervisor’s role in preparing, or other involvement in, evaluations/appraisals?
  • Discrepancies between plaintiff’s written performance evaluations and actual performance

If there is no documentation of plaintiff’s work performance

  • Why not?
  • What is company policy concerning documentation?

Did supervisor warn plaintiff of employment deficiencies prior to adverse employment action?

  • When?
  • By what means?
  • Anyone else present?
  • Did supervisor advise anyone else (e.g., human resources representative(s) or his own supervisor) of warning?
  • Substance of conversation(s) with plaintiff
  • Did plaintiff agree that warning was appropriate? If not, why not?
  • Did plaintiff protest the warning? If so, on what grounds? To whom? Result?

Acknowledge plaintiff was good employee

  • History of good performance evaluations
  • Total lack of prior disciplinary action
  • Prior awards, commendations
  • Specific career achievements (e.g., exceeded sales goals, business generated, etc.)
  • Promotions

§3:09     Employer’s Written Policies

Employee handbooks

  • Purpose
  • Content
  • Drafted by?
  • Distribution?
  • Reviewed with employees?
  • Updated? How often? By whom?
  • If disclaimers in handbook, employer follows policies anyway?
  • Training received concerning progressive disciplinary procedures outlined in handbook? When? Format?

Personnel policies and procedures re: discrimination, harassment

  • What is supervisor’s understanding of policy?
  • Policies distributed by employer to supervisor?
  • What is required procedure?
  • Training received on policies concerning discrimination, harassment?
  • Followed in this case? Why not?

       [Ask these same questions regarding each of the following policies:]

  • Personnel policies and procedures re: performance reviews and appraisals
  • Personnel policies and procedures re: disciplinary action and use of progressive discipline,
  • Personnel policies and procedures re: complaints or grievances

Review all memoranda, newsletters, or other documents indicating the standard operating procedures and policies pertaining to the terms and conditions of the plaintiff’s employment (e.g., employee handbooks, company personnel policies, supervisors’ handbooks, etc.)

  • Were company procedures concerning progressive discipline followed in this case?
  • Did you consult with anyone before making the decision not to utilize progressive discipline?
  • Were you told that you were not required to use progressive discipline in this case?
  • Were you told why it was unnecessary to use progressive discipline in this case?
  • As a supervisor, have you had another employee engage in similar misconduct and used progressive discipline?
  • Why did you use progressive discipline in that case?
  • Why did you not use progressive discipline in this case?
  • Would you agree that in both of these cases, the employees violated the same work rule?
  • If not, why not?
  • And both of these employees were in the same department?
  • And you supervised both of them?
  • And neither employee had a prior history of disciplinary problems, correct?
  • And both of these employees had the same job title? The same duties and responsibilities?

Training supervisor received re: company personnel policies and procedures generally and, specifically, policies and procedures governing discrimination and harassment

  • Format?
  • When?
  • Number of hours?
  • Frequency?

§3:10     Working Relationship With Plaintiff

Nature of working relationship with plaintiff before alleged discriminatory or sexual harassment activity

  • Friendly?
  • Professional?
  • Socialize outside of work?
  • No difficulties in working relationship?
  • Did Plaintiff ever make any complaints to anyone about you as his supervisor?
  • Nature of working relationship with plaintiff after alleged discrimination or sexual harassment
  • Did your working relationship with plaintiff change after she complained to human resources?
  • How do you believe it changed?
  • Did the plaintiff treat you with respect?
  • Was the plaintiff openly disrespectful to you in front of her coworkers (your subordinates)?
  • If so, please provide examples.
  • Did the plaintiff treat you with courtesy after she made her complaint to human resources?
  • If not, please provide examples.
  • Did you continue to engage in activities outside of work with the plaintiff after she made her complaint to human resources?
  • Did the plaintiff tell you she no longer wanted to engage in activities outside of work?
  • Did you tell the plaintiff that you no longer wanted to engage in activities outside of work?
  • And you told that to the plaintiff’s coworkers?

§3:11     Adverse Employment Action

Facts pertaining to adverse employment action (e.g., demotion, termination, etc.)

  • What was employer’s reason?
  • Factors that led to that action?
  • Persons involved in the decision?
  • How was decision communicated to plaintiff?
  • What was plaintiff’s reaction to adverse employment action?
  • Documents relevant to employer’s reasons for adverse action?
  • Witnesses to adverse action?
  • Conversations with witnesses post-adverse action? When? What said?
  • Have you ever taken any type of adverse employment action against an employee after that employee complained to human resources about you?

Facts relevant to plaintiff’s constructive discharge claim by the plaintiff

  • When did plaintiff resign/quit?
  • What reason did she give?
  • Were you surprised?
  • Had you had any prior discussions with plaintiff as to reasons she later gave for resigning?
  • Witnesses?
  • Conversations with witnesses?
  • How did you respond to plaintiff’s reason for resigning/quitting?

§3:12     Similarly Situated Employees

Has any other employee engaged in similar misconduct giving rise to the underlying employment action?

  • Identify other employee(s)
  • Not member of protected class
  • Position held
  • Same or similar employment position as plaintiff
  • Comparator’s job title, description
  • Conduct at issue
  • Comparator’s employment history
  • Disciplinary actions
  • Performance appraisals
  • Length of service
  • Treatment by employer
  • Same as plaintiff?
  • More favorable than plaintiff?
  • Why?

PRACTICE POINT:

Discovery of personnel files of similarly-situated employees.

When deposing the supervisor and/or the human resources director, it is wise to attempt to obtain the complete personnel files of any alleged similarly-situated employees. The request for these files is typically met with objections by the employer claiming a right to privacy by those employees, the files are irrelevant and not reasonably calculated to lead to admissible evidence, etc. However, privacy statutes or concerns should not trump discovery rights in employment cases in federal courts. In Manning v. General Motors, 247 F.R.D. 646 (D.Kan. 2007), the plaintiff sought discovery of the personnel records of other employees. The Court stated: “Defendant also objects to production of the documents requested on grounds that the documents are confidential. This objection will be overruled because, as this Court previously has held, ‘a concern for protecting confidentiality does not equate to privilege.’” Because a protective order would safeguard the potential harm from disclosure of the documents, the Court overruled the employer’s objection. See also Knoll v. American Telephone and Telegraph Co., 176 F.3d 659 (6th Cir. 1999); Hill v. Motel 6, 205 F.R.D. 490 (S.D.Ohio 2001); Carson v. Builders First Source-Southeast Group, Inc., 159 F.Supp.2d 242 (W.S.N.C.2001); Moss v. Blue Cross and Blue Shield of Kansas, Inc., 241 F.R.D. 683 (D.Kan.2007); Barfoot v. Boeing Co., 184 F.R.D. 642 (N.D.Ala.1999); Walters v. Breaux, 200 F.R.D. 271 (W.D.La.2001); Ruran v. Beth El Temple of West Hartford, Inc., 226 F.Supp.2d 165 (D.Conn.2005).

§3:13     Witnesses

Conversations with witnesses identified by plaintiff in disclosure statements or discovery concerning underlying facts claimed by plaintiff.

  • Have you spoken with ______?
  • When?
  • Was anyone else present?
  • Circumstances surrounding conversation?
  • What was said?
  • Have you spoken to any [other] of the employees who you supervised about the plaintiff’s allegations?
  • If so: who, what said, when said?

[§§3:14 – 3:19 Reserved]

Additional Deposition Questions: [Sexual] Harassment Cases

§3:20     Unwelcome Conduct

For each incident (statements, gestures, sexual innuendoes, other verbal conduct, physical conduct) alleged:

  • Deny alleged conduct?
  • Explain alleged conduct?
  • Did he think conduct was “welcome”? Why?
  • Did he think conduct “unwelcome”? Why not?
  • Did plaintiff participate?
  • Did plaintiff protest?
  • Did plaintiff ask supervisor [harasser] to stop?
  • Did plaintiff complain to supervisor [employer representative]?
  • Witnesses to conduct?
  • Anyone in position to observe alleged conduct?
  • Any conversations with these witnesses re: the alleged conduct? Under what circumstances? What was said?

§3:21     Plaintiff’s Workplace Conduct

  • Did plaintiff engage in inappropriate workplace conduct?
  • When?
  • Describe conduct.
  • Witnesses?
  • Supervisor’s response?
  • Did plaintiff wear clothing supervisor felt was inappropriate? Provocative?
  • Conversations about clothing?
  • Discussions with your supervisor about clothing?
  • Did plaintiff discuss private life in the workplace?
  • When?
  • Describe conversation.
  • Witnesses?
  • Did plaintiff discuss sex life in the workplace?
  • When?
  • Describe the conversation?
  • Witnesses?
  • Supervisor’s response?
  • Did plaintiff have inappropriate materials on work computer?
  • How did you find out?
  • Did plaintiff ever show you inappropriate materials on work computer?

§3:22     Harassment of Other Employees

  • Did other employees experience similar discrimination or harassment while supervised by the supervisor?
  • Identify employees.
  • Nature of conduct?
  • Supervisor’s response?
  • Documented?
  • Witnesses to this conduct?
  • Was employer aware of this conduct?
  • How was employer made aware?
  • If not, why not?

§3:23     Conversations With Third Parties

These questions explore conversations with human resources officials and/or other personnel, including supervisors and management officials of defendant-employer, concerning alleged discrimination, sexual harassment or adverse employment action taken against the plaintiff.

  • Did you have discussions with your supervisor about the alleged discrimination, sexual harassment or adverse employment action taken against the plaintiff?
  • Who? What was discussed? When?
  • What was your supervisor’s reaction to the allegations?
  • What were you instructed to do?
  • Documented?
  • Did you have similar discussions with any human resources officials?
  • Did any human resources official take a statement from you?
  • In writing?
  • Did any human resources official give you his reaction to the allegations?
  • Did any human resources official tell you that the allegations appeared to be true or substantiated?
  • Did any human resources official tell you the results of any investigation and the reasons for the results?

§3:24     Notice to Employer

This line of questions explores whether and when the employer had knowledge of the supervisor’s [harasser’s] behavior.

  • Was employer aware of discrimination, harassment, hostile work environment?
  • When did employer become aware?
  • How?
  • Who knew?
  • Plaintiff’s complaint?
  • Other complaints?
  • Prior actions taken against harasser: warning, transfer, reprimand, demotion, suspension or other adverse employment?

[§3:25 Reserved]

Additional Deposition Questions: Retaliation Cases

§3:26     Employer Policies re: EEO, Non-Retaliation

Ask the following questions about all policies with anti-retaliation language, to confirm supervisor’s understanding:

  • Does employee handbook contain an equal opportunity/affirmative action policy?
  • What does “equal opportunity” mean?
  • Does the equal opportunity/affirmative action policy contain an internal company procedure for resolving discrimination issues in the workplace?
  • What is that procedure?
  • Does the policy also include anti-retaliation language?
  • Policy of no retaliation for filing complaints is consistent with what you have been taught in employer training?
  • What is the purpose of the “no retaliation” statement?

§3:27     Supervisor’s Knowledge of Law Governing Retaliation

  • What is the Equal Employment Opportunity Commission?
  • What does the EEOC do?
  • What is your understanding of EEOC investigation process?
  • Have you ever previously been involved in an EEOC investigation?
  • What is the Civil Rights Act of 1964?
  • How have you come to know about the Act (e.g., employer training, outside training)?
  • What is your understanding of the law?
  • Does the Civil Rights Act of 1964 prohibit retaliation against an employee who brings a claim of race, sex, national origin or religious discrimination?
  • In line with company policy?
  • Other training on issue of retaliation? When? Substance of training?

§3:28     Plaintiff Engaged in Protected Activity

  • On [date], plaintiff filed verbal grievance alleging harassment. Aware of that grievance?
  • How become aware of grievance?
  • When become aware of grievance?
  • What was substance of plaintiff’s complaint?
  • How was grievance resolved?
  • When was grievance resolved?
  • Were you disciplined?
  • Was anyone disciplined?
  • Remain plaintiff’s supervisor?
  • Did Plaintiff act according to company policy in filing this grievance?
  • This policy prohibits retaliation for complaining, right?

§3:29     Plaintiff Suffered Retaliation

Review all retaliatory acts and the timing of these acts in relation to the protected activity:

  • On [date shortly after protected activity], plaintiff was [subjected to adverse activity, e.g., subjected to progressive discipline], correct?
  • Describe circumstances surrounding discipline [protected activity].
  • When did conduct leading to discipline occur (before or after protected activity)?
  • Why not discipline plaintiff at that time? Why wait?
  • First time plaintiff ever subjected progressive discipline?
  • Others disciplined for similar behavior?
  • On [date of next retaliatory activity], you gave plaintiff a negative performance appraisal, correct?
  • Describe circumstances of that appraisal?
  • When did conduct resulting in negative appraisal occur (before or after protected activity)?
  • Why not discipline plaintiff at that time? Why wait?
  • Others subjected to same negative review for similar performance?

PRACTICE POINT:

What is an “adverse action” for retaliation purposes?

In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2415 165 L.Ed.2d 345 (2006), the Supreme Court clarified the standard for determining an adverse employment action for purposes of a retaliation claim brought under Title VII. The court reviewed three different standards adopted by the various federal circuits: 1) whether an employer may be held liable for retaliatory discrimination under Title VII for any “materially adverse change in the terms of employment,” 2) for any adverse treatment that was “reasonably likely to deter the employee,” or 3) for only an “ultimate employment decision.” The Court held: “… a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”

[§3:30 Reserved]

Additional Deposition Questions: ADAReasonable Accommodation Cases

§3:31     Knowledge of Plaintiff’s Disability

  • When were you first told about plaintiff’s claimed disability?
  • If supervisor denies knowledge of plaintiff’s disability:
  • Do you know of any medical problems or physical/mental limitations plaintiff claimed to have?
  • Did plaintiff ask for any assistance or accommodations that would help her perform her job?
  • Do you know of any doctor’s appointments that plaintiff had?
  • Did you discuss the nature of those appointments?
  • How were you notified?
  • Was anyone else present?
  • What did you say?
  • What did plaintiff say?
  • Did you review any medical evidence submitted by the plaintiff during her employment to support the claimed disability?
  • Do you know the physician who made the diagnosis under which plaintiff is claiming to be disabled?
  • Did you become aware of whether the plaintiff was taking any medication for the claimed disability during his employment?
  • How did you become aware?
  • Did plaintiff tell you that co-workers commented about her claimed disability?
  • If so, who, what, where, and when?
  • Did you report those comments to your supervisor or human resources department?
  • If not, why not?
  • Did any of plaintiff’s co-workers tell you about plaintiff’s disability?

§3:32     Essential Job Functions

  • What did you consider to be essential job functions of position plaintiff held?
  • Are they set forth in any written document? Job description?
  • How often did the plaintiff have to perform those functions?
  • Did anyone else in the same position have to perform those functions?
  • If supervisor held the position in the past: How often did you perform those functions?
  • Any essential job functions that plaintiff could not perform due to her claimed disability?
  • Which job functions was plaintiff unable to perform?
  • Why was plaintiff unable to perform those job functions?
  • Did you have discussions with plaintiff about her inability to perform any essential job functions?
  • Did you have discussions with your supervisor about plaintiff’s inability to perform any essential job functions?
  • Did you have discussions with human resources about plaintiff’s inability to perform any essential job functions?
  • To the best of your knowledge, are there specific physical or mental requirements for plaintiff’s job?
  • What are they?
  • Are they set forth in any written document? Job description?

§3:33     Request for Accommodation

  • As a result of the plaintiff’s disability, did she request any type of accommodation?
  • What type of accommodation did she request?
  • When that request for accommodation was made, what did you do?
  • Did plaintiff provide any information from any medical provider concerning request for accommodation?
  • Who? When? In writing?
  • Did plaintiff request any type of leave as an accommodation?
  • Did plaintiff request to work from home as an accommodation?
  • Did plaintiff request transfer to another position as an accommodation?
  • Did plaintiff request change in job duties and responsibilities as an accommodation?
  • Did plaintiff request any type of equipment as an accommodation?
  • What was that?
  • Did any physician recommend that ABC provide the plaintiff with that type of equipment?
  • If not, your understanding of reasons?

§3:34     Response to Accommodation Request

  • What did you do after plaintiff requested an accommodation from your employer? Speak to anyone? Review documents? Independent investigation?
  • Did you suggest an alternate accommodation?
  • Did plaintiff receive any type of accommodation from the employer?
  • Before the plaintiff received [was refused] the accommodation, did you have any type of dialogue with the plaintiff to discuss the accommodation requested?
  • Who was present? What was discussed during that meeting?
  • Was cost a factor in denying requested accommodation?
  • If so, what was the cost involved and why did employer believe the cost was unreasonable?
  • Were other similarly situated employees provided this type of accommodation? Identify.

§3:35     Termination Decision

  • Plaintiff alleges company fired him because he was disabled, correct?
  • You made the decision to fire plaintiff, correct?
  • Termination decision made [e.g., just two months] after plaintiff requested an accommodation?
  • Before request for accommodation, had you given plaintiff any oral warning that employment was in jeopardy?
  • Before request for accommodation, had you given plaintiff any written warning that employment was in jeopardy?
  • [Two months] before plaintiff requested accommodation, you gave plaintiff satisfactory job performance evaluation?
  • Reason decided to terminate plaintiff’s employment?
  • When had you ever discussed those performance issues [or other reason] with plaintiff?
  • Had the requested accommodation been granted, would it have solved the performance issues?
  • Written documentation concerning those performance issues?
  • If not, why not?

Additional Deposition Questions: Age, Gender and ADA“Association Discrimination” Case

Suppose a married couple both work for the same employer. The husband makes or supports a claim of race discrimination, and the employer then fires his wife in retaliation for his conduct. Can an employer punish the spouse of an employee who opposes illegal discrimination?

There is a split of authority among federal courts regarding whether a plaintiff may assert a claim for retaliation when his employer targets him for an adverse employment action because of the protected activity of a third party, such as a friend or relative. Some cases hold that recognizing such a cause of action furthers the purpose of federal anti-retaliation law. See, e.g., Thompson v. North American Stainless, LP, 520 F.3d 644, 2008 WL 834005 C.A.6 (Ky. 2008) (reversing district court grant of summary judgment in case involving employee who was terminated after his fiancée, who worked for same employer, filed gender discrimination charged with EEOC); EEOC v. Total System Services, Inc., 240 F.3d 899, 903 (11th Cir. 2001);Johnson v. University of Cincinnati, 215 F.3d 561 (6th Cir.), cert. denied, 531 U.S. 1052 (2000); Drake v. Minnesota Mining & Manufacturing Co., 134 F.3d 878 (7th Cir. 1998); EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993); McDonnell et al. v. Cisneros, 84 F.3d 256 (7th Cir. 1996); Wu v. Thomas, et al., 863 F.2d 1543 (11th Cir. 1989); Gonzalez v. New York StateDep’t of Corr. Servs. Fishkill Corr. Facility, 122 F.Supp.2d 335, 347 (N.D.N.Y.2000); E.E.O.C. v. Nalbandian Sales, Inc., 36 F.Supp.2d 1206, 1210 (E.D.Cal.1998); McKenzie v. Atl. Richfield Co., 906 F.Supp. 572, 575 (D.Colo.1995); De Medina v. Reinhardt, 444 F.Supp. 573, 580 (D.D.C.1978).

However, many federal courts which have considered the issue have refused to recognize third-party retaliation claims as valid causes of action under federal anti-retaliation laws. See, e.g., Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 569 (3d Cir.2002), cert. denied, 537 U.S. 824, 123 S.Ct. 112, 154 L.Ed.2d 35 (2002) (addressing provisions of the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act and stating, “Although … recognizing third-party retaliation claims is more consistent with the purpose of the anti-discrimination statutes, we cannot say that prohibiting such claims is an absurd outcome that contravenes the clearly expressed intent of the legislature”); Smith v. Riceland Foods, Inc., 151 F.3d 813, 819 (8th Cir.1998) (holding that the “[proposed] rule—that a plaintiff bringing a retaliation claim need not have personally engaged in statutorily protected activity if his or her spouse or significant other, who works for the same employer, has done so—is neither supported by the plain language of Title VII nor necessary to protect third parties, such as spouses or significant others, from retaliation”); Holt v. JTM Indus., Inc., 89 F.3d 1224, 1227 (5th Cir.1996), cert. denied, 520 U.S. 1229, 117 S.Ct. 1821, 137 L.Ed.2d 1029 (1997) (holding that a spouse who has not participated in protected conduct does not have automatic standing to sue for retaliation); Shoecraft v. Univ. of Houston—Victoria, 2006 WL 870432, at *3 (S.D.Tex. March 28, 2006) (“[T]he mere existence of a marital relationship between the employee engaged in protected activity and his/her spouse is not a sufficient connection to impute protected activity to that spouse”); Singh v. Green Thumb Landscaping, Inc., 390 F.Supp.2d 1129, 1138 (M.D.Fla.2005) (refusing to recognize the plaintiff’s cause of action for retaliation “based solely on his close association with his wife who engaged in protected activity”); Sukenic v. Maricopa County, 2004 WL 3522690 (D.Ariz. 2004) (the court disallowed a retaliation claim by a spouse whose spouse had engaged in protected activity by claiming sexual harassment by her supervisor); Higgins v. TJX Cos., Inc., 328 F.Supp.2d 122, 123 (D.Me.2004) (holding that neither Title VII nor analogous state law recognizes a cause of action for retaliation against a person who has not personally engaged in protected conduct); U.S. E.E.O.C. v. Bojangles Rest., Inc., 284 F.Supp.2d 320, 327 (M.D.N.C.2003) (“It is entirely possible that Congress could have written the statute as it did to eliminate frivolous suits by friends, relatives, or acquaintances of persons who do fall within the language of the statute”); Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 241 F.Supp.2d 1123, 1143 (D.Kan.2002) (“The only federal circuit courts to have addressed this specific issue, however, have concluded (albeit sometimes reluctantly) that the plain text of Title VII’s anti-retaliation provision and analogous provisions in other federal anti-discrimination statutes do not make actionable retaliation against an employee who has not engaged in protected activity”).

“Association discrimination” claims have also been recognized under the Americans with Disabilities Act (“ADA”). The ADA, §12112(b)(4), prohibits employers from discriminating against an employee based on “the known disability of an individual with whom [the employee] is known to have a relationship or association.” In Larimer v. International Bus. Machs. Corp., 370 F.3d 696, 700 (7th Cir. 2004), the Seventh Circuit Court of Appeals established that “association discrimination” claims under the ADA generally will fit into one of three categories: (1) “expense claims” which allege that an employee was subjected to adverse action because his or her family members has a disability that is costly to his or her employer; (2) “disability by association” claims, for example, the employee’s homosexual companion is infected with HIV and the employer fears that the employee may also have become infected, through sexual contact with the companion; and (3) “distraction” claims, for example where the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet not so inattentive that to perform to his employer’s satisfaction he would need an accommodation, perhaps by being allowed to work shorter hours.

There have been several recent cases involving ADAassociation discrimination claims. A recent example is Dewitt v. Proctor Hosp. ___ F.3d____, 2008 WL 509194 (7th Cir. 2008). In Dewitt, a nurse claimed she was fired by a hospital due to the escalating medical treatment costs of her husband’s cancer. Although the trial court granted the employer’s motion for summary judgment, the Seventh Circuit Court of Appeals reversed, finding that direct evidence was produced — Dewitt’s supervisor (who fired her) inquired two times in five months as to Dewitt’s husband’s condition. The Court found: “A reasonable juror could conclude that Proctor, which faced a financial struggle of indeterminate length, was concerned that Anthony – a multi-year cancer veteran – might linger on indefinitely.”

Another ADA association discrimination expense claim is Trujillo v. Pacificorp, ___ F.3d ___, (10th Cir. May 7, 2008). In that case, husband and wife plaintiffs alleged they were fired because their son had costly medical bills associated with his (ultimately fatal) cancer. The company alleged instead that they were fired for timesheet fraud. The Tenth Circuit Court of Appeals reinstated the ADAassociation claim and ERISA § 510 claim, reversing summary judgment. The first issue was whether the plaintiffs had made out a prima facie case, and in particular, whether they had shown that the firing was done in circumstances suggesting that their son’s disability was a determining factor. The court found sufficient evidence of this based on the following: (a) general company concerns about the rising cost of healthcare and efforts to cut them; (b) the son’s medical bills were considered high dollar; (c) there was only one other terminal illness during the relevant time period; (d) the company was keeping tabs on those claims; and (e) temporal proximity between the son’s relapse and their termination (3 weeks for one, 6 weeks for the other). The court rejected the defense argument that plaintiffs had to have direct evidence that the company was monitoring the individual costs being incurred by their son, finding that they only need evidence from which such monitoring can be reasonably inferred. The court found that here, based on evidence that: (1) the insurance costs factored into the budget line item for labor costs of each employee; (2) management knew about the costs (based on an email to one plaintiff regarding her personal leave related to her son’s illness, in which the company stated it monitored both health and welfare benefits in conjunction with an employee’s personal leave). The Court’s discussion of evidence of pretext submitted by the plaintiffs is instructive for these type of cases:

In this record, there was considerable evidence of concern about healthcare costs and facts that demonstrated that the company was aware high dollar claims like Charlie’s could only increase those costs. Upon news of Charlie’s relapse, the company used unusual auditing procedures to demonstrate that their long term employees, the Trujillos, defrauded them of a total of exactly 40 hours. Although the company had progressively disciplined similarly situated employees for the same or equally serious offenses, it immediately terminated the Trujillos. Although the couple together served PacifiCorp for 28 years, they were never given the benefit of the doubt during the investigation. Rather, the company seemingly relied only on evidence to the detriment of the Trujillos and failed to interview key witnesses. When viewed in the light most favorable to the Trujillos, the evidence provides a reasonable inference that the Trujillos were costing the company time and money and considered it better to terminate them than to incur the costs of Charlie’s illness. Id.at *10.

In many cases, once an employee files a discrimination lawsuit, the employer will file a counterclaim against the plaintiff for breach of fiduciary duty, breach of contract, civil conspiracy, etc. However, legal proceedings can constitute actionable retaliation if they are filed against an employee in response to the employee asserting statutory workplace rights. See, e.g., Ishkanian v. Forrester Clinic S.C., 2003 WL 21479072 (N.D.Ill. 2003); Jacques v. Dimarzio, Inc., 216 F.Supp.2d 139, 141-43 (E.D.N.Y. 2002) (defendant’s counterclaims found sua sponte to be retaliatory, dismissal and sanctions issued sua sponte); Gliatta v. Tectum, Inc., 211 F. Supp. 2d 992, 1008-09 (S.D. Ohio 2002) (counterclaim alleged to be retaliatory) (citing EEOC v. Outback Steakhouse of Florida, Inc., 75 F. Supp. 2d 756 (N.D. Ohio 1999) (same)); Cozzi v. Pepsi-Cola Gen. Bottlers, Inc., 1997 WL 312048, at *3 (N.D. Ill. June 6, 1997) (state court fraud lawsuit alleged to be retaliatory); Jones v. Ryder Servs. Corp., 1997 WL 158329, at *5 (N.D. Ill. Mar. 31, 1997) (withdrawing workers’ compensation settlement offer following EEOC charge alleged to be retaliatory). “[A] lawsuit…may be used by an employer as a powerful instrument of coercion or retaliation” and may dissuade individuals from pursuing their claims; Rosania v. Taco Bell of Am. Inc., 303 F.Supp.2d 878, 885 (N.D.Ohio 2004); Urquiola v. Linen Supermarket, Inc., 1995 WL 266582 (M.D. Fla. Mar. 23, 1995) (defamation lawsuit following EEOC charge alleged to be retaliatory) (citing EEOC v. Virginia Carolina Veneer Corp., 495 F. Supp. 775 (W.D. Va. 1980) (holding same, and granting plaintiff partial summary judgment as to retaliation liability for defamation lawsuit)).

Employees may also bring retaliation claims under the False Claims Act (“FCA”), 31 U.S.C.§3730(h). The FCA is a federal statute which authorizes private individuals as well as the government to bring suit against federal contractors allegedly defrauding the government. See 31 U.S.C. §3730 et seq. The retaliation provisions of the FCA protect whistleblowing employees of such contractors from being retaliated against as a result of their participation in a FCA investigation or lawsuit. See 31 U.S.C. §3730(h). The three elements of a FCA retaliation claim are: (1) that the employee “took acts in furtherance of a qui tam suit;” (2) the employer knew of these acts; and (3) the employer discharged the employee as a result of these acts. See Zahodnick v. Int’l Bus. Machs. Corp, 135 F.3d 911, 914 (4th Cir. 1997). Under the first element, investigatory activities are protected by the FCA as long as the investigation concerns false or fraudulent claims, i.e., an employee’s protected activity must involve investigatory matters that reasonably could lead to a viable False Claims Act. United States ex rel. Brooks v. Lockheed Martin Corp., 423 F.Supp.2d 522, 530 (D.Md.2006).

§3:36     Working Relationship With Plaintiff

  • Was June Jones hired byWestviewHospital in August 2002?
  • Was she hired as a registered nurse?
  • Within six months of her being hired, did you become her supervisor?
  • And you were and continue to be Vice President of Nursing and you manage the Nursing Department?
  • And within three months of supervising Ms. Jones, you promoted her to the position of clinical manager?
  • As a clinical manager, did she supervise other nurses and employees?
  • Did Ms. Jones continue to work directly for you?
  • And you prepared performance evaluations as Ms. Jones’ supervisor each August, correct?
  • Here are those evaluations. Ms. Jones received excellent evaluations each and every year?
  • Was health insurance part of the benefits Ms. Jones received as aWestviewHospital employee?
  • And Ms. Jones elected dependent coverage for her husband James Jones and their four children, correct?
  • Was the health benefit Westview provided to its employees while Ms. Jones was employed a partially self-insured benefit?
  • Did Westview pay for the qualified expenses incurred by a covered individual in a calendar year until those losses reached its stop loss limit of $250,000?
  • After that limit was reached, were the qualified expenses then covered by a policy of insurance issued by ABC Life Insurance Company ofNew York?
  • And the ABC policy then covered all qualified expenses incurred by that individual for the remainder of the calendar year?
  • In the calendar year 2006, were the medical expenses attributed to Ms. Jones’ husband $196,000?
  • And Ms. Jones personnel records indicate that she was born on [date]?

§3:37     Knowledge of Spouse’s Health Issues and Discussions With Plaintiff

  • You knew that since 2004 that Ms. Jones husband, Anthony Jones, had prostate cancer?
  • And you learned that Mr. Jones died of complications from that disease in September 2007?
  • Did you have issues with Ms. Jones concerning her husband’s illness and bills relating to that illness?
  • In January 2007, did you call Ms. Jones into your office?
  • Ms. Jones’ co-worker, Jimmy Dean, was also present, correct?
  • During that meeting with Ms. Jones did you ask her: “What treatment are the physicians going to pursue with your husband?”
  • Did Ms. Jones reply: “They are continuing to treat it with both chemo and radiation.”
  • Did you then ask Ms. Jones if she had considered hospice and Ms. Jones explained to you that she had asked her physician about hospice and he did not feel it was time for hospice?
  • Did you then tell Ms. Jones that a committee had been assigned her husband’s medical claims as they were high and the committee regularly reviewed high dollar outliers?
  • Did Ms. Jones then ask you why the committee did such a review and you replied thatWestviewHospital was self-insured?
  • In February 2007, did you again ask Ms. Jones about her husband’s treatment?
  • Did Ms. Jones tell you that the situation had not changed?
  • In May 2007, did you call a meeting of all the clinical managers and state that Westview was under a financial strain?
  • Did you tell the clinical managers that they would need to be creative during the time of financial stress that Westview was experiencing?
  • Ms. Jones, as a clinical manager, attended that meeting, correct?
  • And Ms. Jones was employed byWestviewHospital as a registered nurse for approximately five years?
  • And she was terminated on August 19, 2007 by a written letter signed byWestviewHospital’s Human Resources Director?
  • And that termination was based upon your recommendation?
  • You made the decision to terminate Ms. Jones, as her supervisor?
  • After her termination, did Ms. Jones tender to Westview the premium necessary to keep her health benefits in effect pursuant to COBRA for 18 consecutive months immediately following August 31, 2007?

§3:38     Basis of Termination and Replacement With Another Worker

  • You issued a six month performance evaluation to Ms. Jones in February 2007?
  • And she was rated as exceeds expectation in every category?
  • And she had received no oral or written warnings about her job performance from her February 2007 evaluation until she was terminated on August 19, 2007?
  • When you terminated Ms. Jones employment, what was the reason you told her that employment was being terminated?
  • Did you tell her that she was being terminated due to a cutback in the Nursing Department?
  • In October 2007, as Vice President of Nursing, did you hire Jane Doe as a second shift nurse supervisor?
  • Ms. Doe was forty-one years old?
  • And Ms. Doe did not elect health insurance coverage because she was covered through her husband’s health insurance at XYZ Company?

§3:39     Submission of Medical Claims by Other Employees

  • In 2006, was Ray Lockhart employed as a registered nurse and manager of Westview’s ER Department?
  • During that year, did Mr. Lockhart and his wife have ongoing medical conditions requiring medical treatment?
  • Did they submit medical bills totaling $150,000 in 2006?
  • Mr. Lockhart is still employed by Westview?
  • Isn’t it true that the only male employee who ever submitted claims which exceed those of Ms. Jones’ family was a male employee named John Smith back in 2004?
  • And Mr. Smith’s claims which equaled or exceeded those of Ms. Jones was not discharged by Westview?
  • If not, why not?

Tod F. Schleier is a partner in the law firm of Schleier Law Offices, P.C. (www.azworklaw.com) in Phoenix, Arizona. He has practiced as a plaintiff’s employment lawyer for nearly three decades, litigating virtually every type of employment case against private employers and public entities in the state and federal courts of Arizona.

Mr. Schleier obtained one of the largest employment jury verdicts in Arizonaon a sexual harassment claim, in December 1991, for $2,385,000, in Schallock v. Heinze et. al, which was televised on Court TV.  Mr. Schleier has been recognized continuously by Best Lawyers in America since 1989.  He is the author of Deposing & Examining Employment Witnesses, from which this article is excerpted.