

One empowered woman's struggle against the world
Wednesday August 21st 2019

Can I Quit?

mom says

Seriously, can I quit?  What I want to quit is the insanity of the legal world.  Actually, not the legal system but the lawyers who are behind it and who manage to twist the simplest of laws into something other than what they really are.  The lawyers who make the legal system the extremely adversarial process that it is.  The lawyers who use the legal system in unethical manners just to win with no regard for the actual law or right and wrong.  I don’t believe all lawyers are bad, as a matter of fact, I wanted to be one at one time.  The majority of lawyers are good and act in good faith and do what is right but just like every profession there are always bad apples.

Court Case

About three weeks ago, I posted my last post on the site.  It was about a new experience with the whole settlement negotiations involved in my lawsuit.  What I thought would just be a day turned into weeks, mind numbing, annoying, irritating, infuriating weeks.  Thank goodness for the Christmas holidays or it would probably still be going on.  I have a minor reprieve but it is truly minor because now I have to start preparing for a trial.  A trial, mind you, that the judge hasn’t even agreed to yet but he may so we have to prepare for it like he will.

What I am rambling about is this legal process before a trial called Summary Judgment and you thought I was rambling about settlement negotiations.  See it started as settlement negotiations and then morphed into more Summary Judgment proceedings.  So what is Summary Judgment – I will tell you.

Summary Judgment is essentially how the Courts weed out the frivolous or undeserving cases.  Either side can ask the Court to look at the undisputed facts and see that there is no real reason to call in a jury and have a trial.  In my case, the opposing side has made this motion.  Then the other side gets an opportunity to show the Court that there are things in dispute and there is a reason to call in a jury and have a trial.  Sounds simple and it should be simple but it is not.

Summary Judgment is a valuable tool to the Courts because it saves them the time and money of putting on a full trial when there is no reason to because either the evidence doesn’t exist and it is just a bunch of allegations or it is some crazy person wanting to sue Satan for messing with them.  Yes the Satan case is real, a real person actually filed a lawsuit against Satan for messing with his life.  Gotta love the crazy people.  Unfortunately, lawyers have taken the Summary Judgment process and turned it into this weapon to deny legitimate cases from getting in front of a jury by saying there are no facts in dispute when they know there are. Summary Judgment is not meant to be difficult but it seems like it is automatically done just to try to have cases dismissed not because they don’t merit a trial but because the opposing side doesn’t want to go to trial. That was never the intent of Summary Judgment but it is how it is used far too often.

The side that asks for summary judgment just has to say there are no undisputed facts. The other side has to actually produce the evidence to show that there are facts in dispute and that they warrant a trial. This is not always possible especially when the proof is actually the absence of proof. How do you prove something doesn’t exist? If a case does merit a trial but the proof of that is in the non existence of proof on the other side it makes it difficult. Crazy I know. So why didn’t I file for Summary Judgment if the other side has no proof? Because the burden is on me to prove the retaliation occurred not on them to prove it didn’t occur. They may have no way to prove it didn’t occur but that is irrelevant because I have to prove it did occur not them having to prove it didn’t occur.

Hypothetical Case

I don’t think it is right to divulge the exact details of my case so I am going to use a hypothetical case to explain the craziness and then you will understand why I want to quit.  Fact is I don’t want to actually quit but I am a pretty logical person so this crazy convoluted lawyer stuff drives me crazy.

Employee (we shall call her Jane) works for employer (we shall call employer XYZ Co.) in quite good fashion for 4 years.  Life is pretty good, one warning against Jane.  Then Jane is given a new supervisor that hates women and treats them like crap.  Jane complains about the discriminatory treatment.  Supervisor gets pissed and tries to punish Jane for complaining.  Big clash between Jane and supervisor.  Jane registers complaint with Equal Employment Opportunity Commission (EEOC).

Now XYZ Co. separate Jane and supervisor, investigate the allegations from both sides and render a decision locally.  In addition, Jane and XYZ Co. try to work things out through mediation from the EEOC.  If everything settles then happy days for all and everyone moves on.  That is what a good employer does.  Unfortunately, Jane has a bad employer who gets angry that Jane told the EEOC what illegal stuff was going on at XYZ Co. and the employer tries to dissuade Jane from pursing EEOC complaint by doing more illegal stuff.  {sigh} Silly XYZ Co. if they just left Jane alone and let the EEOC do their job the discrimination case would be decided in XYZ Co. favor.

Fact is, today many cases of discrimination don’t survive and the employer wins.  It is hard to prove discrimination.  However, retaliation claims are on the rise.  An employer can win the discrimination part and lose the retaliation claim.  With the statistics the way they are you would think more employers would separate the two parties, investigate and take action, then let the EEOC do their job and be done with it.  But too many “employers” are retaliating against employees who complain and that is bad.

Back to our hypothetical employee.  Jane and XYZ Co. go through mediation and can’t agree.  Jane then files a formal complaint with the EEOC so they will do a formal investigation and render a decision.  The XYZ Co. upper-management in their infinite wisdom decide to move Jane back under the same managers that Jane was under when the discrimination occurred.  These managers, by default, are dragged into this EEOC process solely because they were the managers over the supervisor and Jane when the discrimination occurred.  They haven’t been accused of wrong-doing but they are relevant and have to be named in the EEOC complaint.

Managers don’t like being included and one manager (we shall call him Skippy) tells Jane he doesn’t want to work with her because she involved him in the EEOC complaint.  People get annoyed when being included so that is understandable but it is what it is and nothing can be done; Skippy was the manager of record so he has to be included.  Jane explains that is all it is but Skippy is still not happy, so unhappy in fact that Skippy starts to punish Jane and make her life miserable in an attempt to have Jane terminated, to make her drop the EEOC complaint.

Jane had 4 years and 5 months of great service with 1 warning.  Then Jane contacted EEOC.  Jane then given a Letter of Reprimand for the clash between the discriminating supervisor and Jane at 4 1/2 year mark.  So 4 1/2 years 1 warning and 1 Letter of Reprimand.  After Jane is moved under Skippy and he makes his unhappiness known, Jane suddenly accumulates multiple disciplinary complaints all issued or alleged by Skippy.  In four months, Jane is hit with 4 disciplinary actions and accused of 8 other violations.  That is 12 different actions/allegations against Jane in 4 months.  Well actually half were alleged from mid February to mid March and the other half alleged all in one day in May.  So the question becomes did Jane just go nuts after 4 and 1/2 years or was the manager retaliating?

Of course XYZ Co. says Jane is just a bad employee and Skippy was just doing his job appropriately disciplining a bad employee.  Jane says it is a bad manager who is just retaliating because he is mad and trying to get Jane to drop her EEOC complaint.  Sounds pretty straight forward but it isn’t.  Skippy wrote up Jane but took no action, essentially just filing Jane’s file with false allegations without even telling Jane.  Jane suspects that the disciplinary actions she got in the first month after Skippy expressed his unhappiness were buds of retaliation.  Jane complains to a senior upper-management official (we shall call him Dan) about Skippy’s activities and Jane’s belief it could be retaliation and that Skippy is trying to get Jane terminated.  Dan turns over Jane’s complaints to a subordinate upper-management official (we shall call her Marcia) to explore transferring Jane away from Skippy to end what may or may not be retaliation.  So far so good but wait.

This is where it gets crazy and where the big problem is for most employees.  Enter Marcia who has no reason to retaliate against Jane, one would think.  Marcia reads the same complaints from Jane that Jane gave to Dan and decides to not explore transferring Jane as instructed by Dan, her superior, but to explore disciplining Jane instead.  Marcia ignores Jane’s complaints of possible retaliation and instead contacts Skippy for any and all allegations of wrong-doing that Jane is alleged to have committed.  Marcia, who seemingly, has no axe to grind and wouldn’t have a reason to retaliate takes all of Skippy’s allegations and terminates Jane.

Enter the Court system.  The law says that no employer may retaliate against an employee for participating in or opposing discrimination in the workplace.  Somehow over time the law has been interpreted to mean that no decision maker can retaliate against an employee.  So the employee has to find a way to prove that the decision maker retaliated not that the employer retaliated.  In a good deal of companies the decision maker is entirely separate from the managers or supervisors who did the retaliating.  This twisted version of the law makes it almost impossible for employee’s to prove they were being retaliated against.  The Courts then came up with this cat’s paw theory to aid employee’s in proving that retaliation was really what motivated the decision maker.  Employers have managed to twist that into a theory that helps them escape liability instead of what it was meant to be, a way for employees to prove retaliation.

Summary Judgment

Back to the Summary Judgment in my case.  Right now the opposing side has said there is no evidence to prove the decision makers retaliated.  The opposing side is aware that my case is similar to the hypothetical case and that it was actually the manager and not the decision makers on their own who retaliated.  Actually, as you will see in the continuing articles, the decision makers are not so innocent.

For Summary Judgment to be appropriate there has to be no facts in dispute over the material issues of the case.  There can be facts in dispute but if they wouldn’t effect the outcome of the case they don’t matter.  Only facts that have an effect on the outcome of the case are relevant.  The opposing side conveniently left out all of the allegations of the manager retaliating when they asked the Court to dismiss the case based on there being no facts in dispute that affect the outcome of the case.

They mention it briefly like they are aware of the allegations but then later in the process change their stance like the allegations against the manager don’t exist.  Then I had to spend weeks trying to figure out what to do to get the real facts in front of the Court so they can see exactly what is going on.  Summary Judgment is a three part process.  Opposing side makes the claim there is nothing in dispute and no reason for trial.  The other side shows where the evidence is that proves there is a dispute and there is a need for a trial.  Then the opposing side gets the final word.

The final word was that the allegations against the manager didn’t exist.  So what to do, what to do, what to do?  It is the final word and the opposing side gets it.  Through weeks of reading case law and legal procedure I found there is a way to address the Court after the final word but it is not guaranteed in any manner.  The Court can allow a response after the “final word” but Summary Judgment is not a paper trial so it is discouraged to keep from going back and forth and treating it like a paper trial.

What Happened To The Settlement?

The settlement conference was beneficial to me but it is also private so I can’t discuss it at all.  We didn’t settle, I can tell you that.  The opposing side had filed their reply but I hadn’t seen it yet.  Upon seeing it I understood completely why they didn’t want to settle.  Without the claims of retaliation by manager they Court would most likely rule in their favor and because they have final word they saw no reason to settle a case when it was just going to be dismissed as far as they knew.

I am not a lawyer and I didn’t know there was a way to reply after the “final word” and I believe the opposing side was counting on that.  Of course I could be wrong and they were proceeding in a completely normal fashion and didn’t have to mention the allegations against the manager at all.  Either way they have been brought to the Courts attention so we just have to wait and see what the Court says now.

Check out the next article to continue reading about the hypothetical case and the cat’s paw theory.

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One Response to “Can I Quit?”

  1. […] In the previous post Can I Quit, I introduced Jane an employee, Skippy her manager, Dan senior upper management official and Marcia upper-management official.  I also introduced the XYZ Co. that they all work for.  Check out the post for the details of the hypothetical case we are discussing.  Here I am going to discuss this doctrine that has evolved in the Courts called Cat’s Paw and a little more about the case. […]

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