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Understanding and Prosecuting Hostile Work Environment Claims (Continued)

Understanding and Prosecuting Hostile Work Environment Claims (First part)

Get the prospective client into therapy Obtaining Necessary Documents and Information Pre-Filing

Treatment is not the sine qua non of successful damages claims, however, it’s common enough in hostile work environment cases, and judges and defendants tend to put great stock in its presence, or absence, so it makes sense to take a hard look at the beginning. Find out whether the client saw any sort of therapist during or after the period of harassment. Find out if the client received any prescriptions during or after the period of harassment for psychoactive medications such as antidepressants or tranquilizers. Whether she got it from her internist or her dentist it’s still treatment.

It is in the client’s interest that you review all her medical records carefully for any evidence of treatment. Review all treatment notes carefully for any complaints or prescriptions which might relate to the client’s emotional distress. Obtain all medical records for ten years prior to representation. The defendant is going to demand all medical records, and get them in a case where the client is making a serious attempt to recover emotion distress damages, because such an effort usually puts the plaintiff’s psychiatric condition at issue and waives the psychiatrist patient privilege, so you need to know what is in them. If you retain a forensic psychiatrist he will probably (or should) want them as well. They are usually invaluable.

You should fill out HIPAA compliant records releases for each MD for your client and have the records sent to you. A sample form approved for use in NY State is Exhibit F.

Beware the treating therapist, who is likely to write you a letter stating the client has PTSD. The odds of this are about zero unless there was a sexual assault. This will not help. Head it off at the pass.

For cases where the plaintiff’s emotional distress is modest—often referred to as Garden Variety emotional distress cases—seeking Garden Variety does not waive the privilege, although on a separate issue, in the Second Circuit, in claims under Title VII only, you may be subject to an informal home grown cap of $30,000 for emotional distress. Nothing in Title VII supports this and someone should appeal the Garden Variety damages cap.

Garden variety claims are usually characterized as cases where the plaintiff, alone or with a friend, offers lay testimony regarding her personal suffering. However, under other federal statutes, and more importantly, state and City law, no such informal Garden Variety cap exists, and awards for emotional distress in the $500,0000 range, based on just the testimony of the plaintiff, and perhaps a friend or family member, can be sustained against remittitur. These issues are discussed more fully in Exhibit B, Compensatory Damages, Punitive Damages and Remittitur under federal, NY State and NY City Law

Interview the family, friends and coworkers who went through the ordeal with the client. Develop a pre, during and post picture of the client’s social and work functioning. You may not need declarations from these witnesses but you want to be able to describe their anticipated testimony. You also need to have the information so you can disclose them as persons who have discoverable information. Make “family, friends and coworkers” part of your standard Rule 26(a)(1)(A)(i) disclosure—put that language in there so if all else fails the defendant is on notice.

To get the symptoms and feelings you need to do a detailed interview of your client focusing on the events which caused the feelings and symptoms, and the client’s response. What to ask and how to do the interview is discussed in Exhibits B and C and M. This may be used in response to 26(a)(1)(A)(iii).

Get every scrap of paper and ESI your client has relating to her employment. Ask about recordings, emails, Facebook, tweets etc. See Exhibit E.

Drafting the Complaint or Settlement/Mediation Demand

Now that you have your declarations, tapes with transcripts and ESI you should be in a position to put together a complaint or mediation/settlement demand with real in terrorem effect. Forget notice pleading, not showing your cards, free discovery and the like. You now have sufficient evidence to get to a jury, and if all goes as planned, you can reasonably expect a plaintiff’s verdict. The only real question is the amount.

Enclosed as Exhibit G is a recent example of a complaints we filed. Third party witness declarations are incorporated by reference. Rather than alleging facts we quote sworn witness testimony, tape transcripts and ESI. The complaint makes plain that a summary judgment motion will be futile and a significant verdict is likely.

You don’t need discovery to prove to your adversary you are going to prevail and get a big judgment if you do your homework thoroughly. You can get as large a settlement for your client in a pre-discovery mediation as you can post discovery.

Pre-Trial Conference and OrderBefore either side can serve discovery you must discuss discovery. Rule 26(d). That discussion must result in a proposed discovery order. See generally Rules 16 and 26(f). Our standard form is enclosed as Exhibit H. There are some important issues covered in our standard form. It makes plain that the deadline to amend agreed to in the proposed discovery order is the deadline to amend as of right. It extends the Rule 15(a)(1) period to amend as of course until the deadline agreed by the parties. After that, amendments are still allowed under Rule 15(a)(2), however they require the consent of all parties or the court. The fact that the deadline to amend as of right agreed in the proposed discovery order has no more significance than the passage of the deadline to amend as of course under Rule 15(a)(1). As Rule says, the “court should freely give leave when justice so requires.” If you use your adversary’s language on this point, make sure it makes clear that the deadline is a deadline to amend as of right, or as of course as Rule 15(a)(1) calls it. Beware of language like this, which slants the effect of the deadline against the plaintiff and arguably bars all amendments following the expiration of the deadline:
  • a. The cutoff dates for filing a motion to amend pleadings are:
  • Plaintiff(s) 4/30/09 Defendant(s) 4/30/09
  • b. The cutoff dates for filing a motion to join additional parties are:
  • Plaintiff(s) 4/30/09 Defendant(s) 4/30/09

(NOTE: Establishing cutoff dates for filing motions does not relieve counsel from the requirements of Fed.R.Civ.P. 15(a)).

The planning meeting has to take place three weeks before the pre-trial conference and the parties must give the court the proposed order a week before the pre-trial conference, unless local rules or individual practices differ.

We discuss any ESI issues we are aware at the meet and confer. Did someone important use their own non-party laptop? We let them know our standard ESI demands are coming and try to get something approximating consent.

Our standard form of order provides that all documents and ESI will be produced in native format and all native paper documents will be scanned and produced as tiffs, by email where possible. See Exhibit E for an explanation.

Take production in electronic format: Don’t collect paper, it’s difficult to organize and easy to lose. Trial preparation is much more effective when dealing with ESI. Printing ESI so you can read and work with hard copy counterproductive. You want all your documents digitized so you can cut, paste, and mark them up online, and search them for important words quickly, when preparing for depositions and trial, and AT TRIAL. I hesitate to enclose too many documents but for those who want I have a paper on digitizing, searching and manipulating documents.

The Rule 16 conference is also important because it may be the first significant contact you have with your adversary. Start by reading all applicable FRCP carefully, at least Rules 16, 26 (sleep with it under your pillow, it is the backbone of case preparation in federal court), and 34. Read all local rules derivative of these rules. Read the judges individual practices. Do this again just before the conference. There is nothing more intimidating that an adversary who actually knows the rules.

Formal Discovery vs. EOTPIf you have your third party witness declarations, ESI and recording, your case can only get better during discovery (but see client issues), but keep your eyes on the prize: that which gets you closer to a trial is useful to your client. All else is piffle. You don’t need discovery to get past summary judgment. You have liability and affirmative defenses covered with your declarations. One of your main goals in discovery is to disclose everything that can help or hurt you of which you are or should be aware, usually information which witnesses have or documents (or more broadly, other evidence). A very common and uncomfortable situation arises when the parties serve their objections to each other’s proposed final Pre-Trial Order, which describes all the documents and testimony the party intends to use at trial. Expect your adversary to find plenty of reasons to claim he is only learning about the document or anticipated use of the witness for the first time, to his irreparable prejudice. Although the court’s responses will often be to give the parties a few days to conduct rush discovery, so long as the offender pays sanctions, by assiduously disclosing everything you can, you minimize the risk of being in this position.Rule 26(a)(1)(A) Initial Disclosure

This is where you start insulating your client from a surprise and prejudice argument at final pre-trial order. Tell the defendant everything you know in the Initial Disclosures. You are going to forget about some of these facts later on. Get them out, even in broad strokes.

Rule 26(a)(1)(A)(i) asks for all persons, including contact information, who may have discoverable information on which plaintiff intends to rely, and the nature of the information The defendant wants to depose all of your liability and emotional distress witnesses. If you have not told the defendant by the final pre-trial conference, you probably should not be allowed to call them as part of your direct case, and you will at best be relegated to begging. Don’t let this happen to you. Disclose everyone you know about at the time you do your Initial Disclosures. You should have declarations from most of them locking them into their testimony. Warn them before you disclose them, the defendant will want to talk to them, and consider retaining attorneys for them, if you have not done so already.

Ordinarily you will be able to ID by name the family, friends and coworkers who have knowledge of emotional distress, and liability issues, but whether or not you do, include a separate disclosure in response to 26(a)(1)(A)(i) stating that “the plaintiff’s family, friends and coworkers have discoverable information on which plaintiff intends to rely.” Even if you forget to disclose them later, in response to ID interrogatories, you can at least argue at the final pre-trial conference that you told the defendant about these witnesses. That may be enough to allow you to list them in your order, albeit with some last second depositions.

Rule 26(a)(1)(A)(ii) does not require you to disclose all documents, just categories and who has possession of them. Nonetheless, you should long ago have obtained from your client every document and ESI which relates in any way to his employment. You can list yourself as the location of the documents and ESI and describe them by class. Or you can produce everything during Initial Disclosures. We don’t, we wait and see what the defendant asks for, and then we give them everything they asked for plus everything we were going to give them.

Rule 26(a)(1)(A)(iii) asks you to describe damages. It’s looking for an accounting of backpay, frontpay, other compensation and benefits. But nothing stops you from providing a detailed description of the symptoms, facts and feeling underpinning emotional distress damages
. One of the challenges clients face in testifying at depositions and making sure they get the liability and damages facts right. Clients tend not to do well providing a complete description of their emotional distress during depositions. Either they forget or they become so overcome with emotion they cannot do a good job of describing how they felt.

These problems are not insoluble. Aka v. Washington Hosp. Center, 116 F.3d 876, 889, fn 9, (D.C. 1997), aff'd. en banc, 156 F.3d 1284 (1998)(“We disagree that Aka's claims should not survive a summary judgment motion because he was unable to summarize all of his evidence in response to a question posed by the defendant during a deposition. The factfinder will have much more than the complainant's answer to a question posed in a deposition from which to infer that the challenged employment action reflected intentional discrimination.”)

You may be able to help your client by drafting a detailed response to 26(a)(1)(A)(iii) regarding emotional distress, or regarding liability facts, through an interrogatory responsive to defendant’s demands. Proof of symptoms of emotional distress are critical to obtaining a diagnosis from a forensic psychiatrist. Since defense lawyers don’t ask about this, and plaintiff’s don’t do well memorizing and testifying in monologues, the deposition may not provide testimony on symptoms.

Lack of detail on emotional distress, and symptoms, in her deposition transcript leaves your client vulnerable to cross on why she never mentioned them at her deposition. Also, if you are in a state which permits IIED claims in employment discrimination (NY does not), proof of severe emotional distress is an element of your claim on which you have the burden of proof, so you need to get evidence which you can introduce in the summary judgment motion.

Provide your client with an opportunity to educate the defendant on these issues prior to her deposition through her response to 26(a)(1)(A)(iii) which asks about damages or in a response to an interrogatory. If there is no appropriate interrogatory you can simply provide a declaration with a cover letter explaining why it is being provided. Use the DSM IV to prepare to collect the information. See Exhibit M.

The same is true regarding liability facts. Your client has to testify to pervasiveness. A common trick
is when your client is finished describing several types of harassment she experienced, and the frequency, establishing pervasiveness, defense counsel will ask for a specific example. Once provided defense counsel will ask “were there any other incidents in which you felt harasser acted improperly,” trying to get your client implicitly to contradict her prior testimony that it happened almost every day. If you have already provided the defendant with a sworn response to its interrogatory in which your client sets forth a detailed description of the harassment including how often she was harassed, the types of things that were said, by whom and where they occurred, any attempt at trial to impeach her with her deposition testimony will fail. She can simply remind your adversary that before the deposition she provided a sworn statement, setting forth in detail all the facts, so that if she became nervous at her deposition, she would not have failed to educate the defendant.

This is also a very helpful way of dealing with summary judgment. You adversary is not going to ask your client the questions you need answered, necessarily, to oppose their motion, and if he does, you client will always omit important facts due to nervousness or failure of memory. You can try to correct these problems after the deposition, but if you have already provided a declaration with that information, at summary judgment you are relying on a prior declaration to her deposition testimony—much better than an ex post effort to correct deposition mistake. See, e.g., Aka v. Washington Hosp. Center, 156 F.3d 1284, 1296 n. 14 (D.C. Cir 1998)( en banc )(“As we explained in Pyramid Securities, Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C.Cir.1991), although the courts frown on a party’s attempt to contradict previous testimony at summary judgment, ‘persuasive reasons’ for a correction are ‘more likely to be available where the initial statement took the form of a deposition rather than [as in Pyramid Securities] an affidavit. A deponent may have been confused about what was being asked or have lacked immediate access to material documents.’ Id. at 1123 (citation omitted).”)

Document, ESI and Interrogatory Demands, Notices to Admit

Exhibit I contains our standard discovery demands in a hostile work environment case. They have proved remarkably useful.

They require that all ESI be produced in native format, and where the native format is paper, the document be scanned and produced as a tif. They require that emails be “produced so that the full header is accessible and readable,” and specify our preferred file formats. They note that when producing documents, defendant is required to identify to which discovery request each document responds.

We want to learn about everyone who has knowledge pertaining to the case and what they know. We will call them if we can, perhaps get a declaration, or consider deposing them if we cannot talk to them.

We want to know about all complaints in the past five years regarding employment discrimination and harassment. You can solidify liability and bolster punitive damages by taking discovery on the defendant’s responses to prior discrimination and harassment complaints as well as your client’s. The relevance to the affirmative defense should be obvious. Look at Exhibit B on punitive damages under federal and NY City Law. To what extent the defendant had a viable system in place to prevent harassment is relevant under federal and City Law, but in different ways. A defendant can obtain summary judgment on punitive damages in a federal case; not in a City Law case. Under federal law the standard is set forth in 42 USC 1981a and the Kolstad decision, and has much in common with the F/E defense factors. The mitigation factors which go to the jury under City Law also have something in common with the F/E defense factors.

Case Law on Discovery of Complaints

Where a defendant alleges as an affirmative defense that it responded appropriately to plaintiff’s claim of harassment or discrimination, courts have allowed discovery of how the defendant responds to all such complaints—not only the plaintiff’s complaint. See De Silva v. Bluegreen Corp., 1997 U.S. Dist. LEXIS 9532 at *5-6 (N.D.N.Y. 1997)(Allowing discovery of all prior peer-on-peer sexual harassment complaints in any of defendant’s office in 20 states in Title VII where plaintiff was required to show that the employer was aware of the harassment and failed to take adequate remedial action: “adequacy of Bluegreen’s response to” prior complaints “may … lead to admissible information regarding the adequacy of the sexual harassment policy at issue”). Accord, Butta-Brinkman v. Financial Collection Agencies Int’l, 164 F.R.D. 475, 476 (N.D. Ill. 1995) (Where element of plaintiff’s claim was proof that “company failed to take appropriate remedial action,” court allowed discovery of “any allegations, charges, or complaints of sexual harassment at the company.”). See, e.g, Chan v. NYU Downtown Hospital, 03 Civ. 3003 (CBM), 2004 U.S. Dist. LEXIS 16751, at *15-16 (S.D.N.Y. 2004) (ordering discovery of sexual harassment complaints company-wide); De Silva v. Bluegreen Corp., No. 96 Civ. 0683 (TJM), 1997 U.S. Dist. LEXIS 9532 at *2-6 (N.D.N.Y. 1997) (granting discovery of internal and external complaints of sexual harassment filed in relation to any of Defendants’ locations, where Defendants had locations in 20 states);; Governale v. Airborne Express, No. 95 Civ. 0541, 1997 U.S. Dist LEXIS 7562, at *20 (E.D.N.Y 1997) (discovery requests related to other complaints of sexual harassment are "likely to lead to information about Defendant’s actual practices in responding to sexual harassment complaints, which may prove probative with respect to Defendant’s responses to Plaintiff’s complaints."); Avillan v. Digital Equipment Corp., No. 91 Civ. 8594 (LBS), 1994 U.S. Dist. LEXIS 6454, at *20-23 (S.D.N.Y. May 17, 1994) (directing defendant to produce internal discrimination complaints); McCoo v. Denny’s Inc., 192 F.R.D. 675, 687 (D. Kan. 2000) (compelling discovery of internal complaints, as well as external complaints to external administrative bodies and court actions); McIntyre v. Main St. & Main Inc., 2000 U.S. Dist. LEXIS 19617 (N.D. Cal. 2000)(in a sexual and racial harassment case, defendant was required to produce “all documents relating to discrimination complaints filed by other employees in all restaurants owned by defendant” because such production could lead to discovery of evidence relevant to “defendant's defense that it took prompt remedial action to address [plaintiff’s] harassment”). Such complaints are also discoverable because they may lead to the discovery of motive or intent evidence regarding the allegedly discriminatory conduct. See, e.g., Allen v. Perry, 279 F. Supp. 2d 36, 46 (D.D.C. 2003)(“It is settled beyond all question in this Circuit that other acts of discrimination, identical to the kind of discrimination charged, are admissible under Rule 404(b) to prove motive or intent.”); Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1532 (11th Cir. 1983)(“testimony by another female former employee of appellant, that she had been subjected to treatment similar to that which appellee alleged, was … properly admitted under Fed.R.EvId. 404(b) to prove appellant’s ‘motive . . . intent . . . [or] plan. . . .’”); Heyne v. Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995)(evidence of employer’s alleged sexual harassment of employees other than plaintiff was admissible to prove employer’s motive behind firing plaintiff, citing similar numerous cases).

We want to know about the defendant’s awareness of this and other problems, and what if anything it did in response. We need to learn about the defendant’s anti-discrimination policy. Training. Do they have an Human Resources department, who conducts investigations.

The last few ESI requests beginning with 20 were added recently, so we do not have any experience with them yet, but the potential utility is clear, as is the discoverability under the new Rule 34.

We require that we receive a complete production prior to deposition of plaintiff so that we may prepare her for any documents she might be asked about.

Plaintiff’s DepositionSpend a full (12 hour) day, or more, preparing your client a day or two before her deposition.Protecting the Client

Assure her that your job is to protect her, that you take that job seriously, and that you have a lot of successful experience doing so.

Let the client know that what the attorney is allowed to ask and what will be admissible at trial are very different.

Assure the client that you will not permit the attorney to ask about immigration, if that is a problem, and have a motion for a protective order ready to hand to counsel.

FRE 412 prohibits admission of “Evidence offered to prove that any alleged victim engaged in other sexual behavior” The exception in civil cases is where the “probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.” Although FRE 412 governs admissibility it has been very influential on discovery of such evidence as well. The Advisory Committee notes state that:

In order not to undermine the rationale of Rule 412, however, courts should enter appropriate orders pursuant to Fed. R. Civ. P. 26 (c) to protect the victim against unwarranted inquiries and to ensure confidentiality. Courts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery. In an action for sexual harassment, for instance, while some evidence of the alleged victim's sexual behavior and/or predisposition in the workplace may perhaps be relevant, non-work place conduct will usually be irrelevant. Cf. Burns v. McGregor Electronic Industries. Inc., 989 F.2d 959, 962-63 (8th Cir. 1993) (posing for a nude magazine outside work hours is irrelevant to issue of unwelcomeness of sexual advances at work). Confidentiality orders should be presumptively granted as well.

The case law is favorable. Most of the cases turn on whether the sexual conduct occurred at the workplace and whether the alleged harasser could have been aware of it. It is never discoverable unless it occurred at the workplace, and some courts impose the further requirement that it relate to the harasser’s understanding of welcomeness, not just plaintiff’s subjective view.


Review all pertinent documents and their significance. Pay attention to anything your client signed or reviewed, a declaration in support of a motion, the complaint. She should be familiar with them. No matter how hard you try, defendant will show her something you did not expect. Let her know this is normal. Explain that she and her attorney make mistakes and she should point them out when a document is wrong, and be prepared to explain who drafted document and how it was created. She should be prepared for lines of examination based on the sanctity of a sworn statement: all declarations contain errors.

Translation and interpretation

Make sure all documents are professionally translated for your client before she reviews them and if necessary signs them. Have her sign the version in her language and provide a certified translation for your adversary. Insist if possible that she be questioned on the original foreign language version. Remember that an interpreter’s job is to accurately, not literally, convey meaning. If you have reason to believe that is not happening intervene and correct. You may be better starting from scratch. NB: your client has to read and sign her transcript, so there may be some latitude to fix legitimate translation issues. Consider taping a deposition if it is not video’d.


The defendant is going to attack on severe or pervasive: “tell me every incident of harassment.” Often clients experience harassment on a regular basis but can only remember several representative incidents. Do not allow your client to be boxed into conceding these were the only incidents. Prepare them to respond: “I cannot tell you every incident of harassment, because I was harassed several times a week for a year. I can tell you approximately how often I was harassed, they types of things that were said, by whom and where they occurred. There are several incidents I recall specifically, which I can describe…” Prepare the client for the trick described above, “were there any others . . .”

Emotional Distress

Remind the client that anything which could have caused emotional distress is probably fair game at the deposition. Go over those events. No jury is going to find it credible that the only emotional distress in plaintiff’s life was the loss of her job. Nonetheless, it is important that plaintiff understand the use defendant plans to make of this testimony. Defense strategy is to uncover every bad thing in plaintiff’s life. Prepare the client for this. Make sure the client is prepared to admit things in her life which upset her.

Review the client’s symptoms. Use the DSM IV criteria. See Exhibit M, which contains the most frequent diagnosable mental conditions which arise in hostile work environment cases. Your forensic psychiatrist is going to review the deposition and use it as support so help him. We use this at the first in depth interview of the plaintiff and her family, friends and coworkers.

If your client becomes tearful make a note on the record, otherwise your forensic may miss this.

If you client is so damaged she cannot sit and answer questions without running to the rest room to vomit every few minutes, consider what you can do to help her get through the ordeal. Hold your client’s hand. You can break up a deposition into shorter intervals and if necessary enlist the court’s help with a protective order. Have a family member waiting in the waiting area so she can get emotional support during breaks.

Other Friendly Witnesses

You should prepare the family members and friends. Your conversations are not privileged.

You should also prepare the third parties. It does not involve more than a phone call the night before.

Prepare the treating therapist, a FACT witness

Depositions of Defendant

Harasser (do you really need this, no, but if you have the budget, you get some great stuff)

Supervisors Who Witnessed Bad Behavior or Heard Complaints (do you need this/budget)

Human Resources (not going to be very credible)

Niesig Issues: You have spoken to these witnesses already and obtained sworn statements.

Privilege walls: Rivera v. Lutheran Medical Center, 866 N.Y.S.2d 520, 2008 N.Y. Slip Op. 28406 (Kings 2008)(sanctioning and disqualifying defense counsel for offering to represent witnesses to prevent plaintiff from exercising Niesig rights)

Protective Orders - EOTP

There is a role for motions for protective orders, but if you have prepared your client for the fact that her life will become an open book if she seriously seeks emotional distress damages, with the exception of purely malicious discovery, eg, immigration status, it should be unnecessary.

For some bare bones guidance on immigration oriented protective orders in cases with vulnerable immigrant plaintiffs, see Exhibit J Order on Consent Prohibiting Discovery of Immigration Status with Links to Briefs. There has been a lot of pro-plaintiff development of the law in this area recently, see eg, EEOC v. Bice of Chicago, Inc., Bice Restaurant Group, LLC, et al, N.D. Ill. No. 04 C 2708 (“. . . questions around immigration status are oppressive, they constitute a substantial burden on the parties and the public interest, and they would have a chilling effect on victims of employment discrimination from coming forward to assert discrimination claims.” 7/18/2005); EEOC v. The Restaurant Company d/b/a Perkins Restaurant and Bakery, D. Minn. No. 05-1656 (JRT/FLN) (“[Perkins] has failed to identify any case where a federal district court permitted discovery into a Title VII plaintiff’s immigration status where the plaintiff was not seeking back pay, front pay, or reinstatement.” 8/18/2006)(“. . . civil rights actions are necessary to forward the policies of Title VII, and ruling that undocumented workers could not pursue civil rights claims on their own behalf [as plaintiff intervenors] would likely chill these important actions.” 5/31/2007); EEOC v. KCD Construction, Inc., D. Minn. No. 05-2122; EEOC v. Glenview Car Wash, N.D. Ill. No. 05 C 5568 (Protective order prohibits requiring employees to complete Homeland Security Forms I-9: “It is not plausible that this employer, in business since 1989, would now discover for the first time that its employee files were deficient in regards to immigration law requirements [(Form I-9)]. . . [T]he main purposes behind this . . . is to effect a not-so-subtle intimidation of the intervenor plaintiffs and all the potential class members.” 5/5/2006).

In NY State Court see Coque v. Wildflower Estates Developers, Inc. 2008 NY Slip Op 8698; 2008 N.Y. App. Div. LEXIS 8424 (2d Dep’t 2008)(holding that an undocumented employee who submitted a false ss card to get the job can nonetheless sue for lost wages if the employer failed properly to verify, meaning that discovery of immigration status is now irrelevant to damages, and therefore without a any legitimate justification)

Temporary restraining orders prohibiting retaliation, pre- or post-lawsuit filing, may be helpful in allowing very vulnerable clients, who have zero tolerance for being fired
in retaliation for bringing a suit, find the courage to proceed. See Exhibit K for an example of a temporary restraining order obtained simultaneous with filing prohibiting an employer from terminating or reducing the compensation of plaintiffs and witnesses in retaliation for bringing suit or being a witness. For an example of a case where the court reinstated employees who were filed after the employer learned they were suing download from pacer recent briefing and order in Nicholson V. Twelfth Street Corp. 09 Civ. 1984 (SDNY)

Temporary restraining orders may be ineffective if an employer is already disposed to violate the law. A temporary restraining order prohibiting retaliation does no more than order the employer to obey the law. Once there is a violation you have a bench trial on retaliation. Wouldn’t you rather try that issue to a jury?

Beware that in NY you may waive a jury trial altogether if the main focus of your claims are equitable. Cadwalader Wickersham & Taft v. Spinale, 177 A.D.2d 315; 576 N.Y.S.2d 24; 1991 N.Y. App. Div. LEXIS 14393 (1st Dep’t 1991)(“The question, however, is not whether an equitable counterclaim exists but whether, when viewed in its entirety, the primary character of the case is legal or equitable”)

Harassing third party subpoenas to current and former employers are quite common. Rule 45 now requires actual advance notice, however, it doesn’t say how long, so employers may receive the subpoena before you can move to quash and obtain temporary restraint. Whether to fight these is a judgment call. Once the subpoena has been served the cat is out of the bag, the horse is out of the barn, and the camel’s nose is in the tent. We sometimes move to quash to reassure the client that she cannot be pushed around, but it doesn’t get you any closer to a trial. It may restrain some bad behavior but you will never know. Exhibit L is an excellent article Rachel Minter wrote entitled Third-Party Subpoenas - Employers’ Tool for Harassment, which provides all the case law one needs to get started fighting. Consensus is we are gaining ground educating the courts.

Trial Witnesses

You are going to win on liability unless something very strange happens. You have third parties who have no personal stake in the outcome who will testify that they witnessed the harassment and the reporting, or facts which establish defendant’s knowledge. In addition you have ESI, recordings, a well prepared plaintiff, and her family, friends and coworkers (dual roles) to testify about the before, during and after picture. The testimony will highlight loss of social and professional function, extreme behavior such as uncontrolled crying before going to work, physical symptoms, hair and weight loss, sleeplessness.

You may want to consider your jury: in a cowboy up state we have the plaintiff testify that she is holding her own, making a go of it, the nightmares aren’t so bad now. Lots of national jury research shows they blame the victim more often than not.

All of your evidence will be potentially admissible because you have repeatedly brought it to the defendant’s attention, and it is clearly set forth in your final pre-trial order.

Expert Opinion

This is not the principal means by which you are going to tell your client’s story of suffering, that will be through her family, friends and coworkers, but he can help explain things to the jury in a way which might not otherwise be obvious.

Decide when, (standard discovery order says late). Forensic can deal with serious problems, eggshell, trainwreck, prior serious mental illness, in which case retain earlier.

EEOC Guidance: if there were no symptoms when they started working, it’s eggshell/actionable. These frequently are prior abuse victims who were functioning well—that’s the key, look at function. If there is PTSD it is not from your case.

Appellate Defense, IIED

It is very helpful to have a prognosis, duration of illness, which cannot be done through lay testimony

Use a well trained forensic psychiatrist. Not someone who has done it once or wants to try. Minimum requirement is Board Certified in the Sub-Specialty and/or a law degree. Someone who is not well trained is subject to Daubert/Kumho Tire challenge. At minimum a report/opinion:

Must adhere to DSM IV, Five axis differential diagnosis:

  1. 1. Diagnosable mental illness Exhibit M contains those commonly found in hostile work environment cases
  2. 2. Personality Disorder (rule out if plaintiff)
  3. 3. Somatic Problems
  4. 4. Stressors
  5. 5. Functionality Index (expressed as a %)

Must state the diagnostic criteria and review the symptom basis supporting the diagnosis.

Provide a clear opinion on causation “it is my opinion which I hold with a reasonable degree of medical certainty . . .”

Rule 35 Exam: you can show your client a copy of your expert’s report, we often do. Same advice as always applies, tell the truth, there are no wrong answers that are honest and accurate. The client can have someone go with her and wait outside for hug breaks, or she can call you.

TestingWeed Out Garbage:
A. The consequences of Ms. PLAINTIFF’s employment at DEFENDANT from September 17, 2001 to September 6, 2002 and her termination on September 6, 2002:
It is my forensic neuropsychiatric opinion, which I hold to the requisite degree of forensic neuropsychiatric certainty, that Ms. Lisa PLAINTIFF has been psychologically and physically harmed by the experiences of alleged racial discrimination, harassment, and retaliation she reports having had while working at DEFENDANT. As is common in individuals suffering from complications of prolonged exposure to an environment in which they understandably feel horrified and helpless, Ms. PLAINTIFF exhibits impairments in the complex Post-Traumatic spectrum, including complications consistent with the spectrum of Dysthymic (i.e., chronic depressive) Disorder (DSM-IV-TR 300.4). Further, her condition is complicated by post-traumatic Relational Problems consistent with V61 codes in DSM-IV-TR, and, as noted above, symptoms in the complex Post-Traumatic Stress Disorder spectrum of disorders (DSM-IV-TR 309.81).
Final Pre-Trial Order/In Limine Issues/Jury Instructions

Discovery is over, but taking depositions to preserve trial testimony is not discovery, so any witnesses from whom you have obtained declarations, who have moved beyond trial subpoena range, subpoena their depositions where they are (assuming you cannot convince them to voluntarily accept service of a trial subpoena). Confirm this with the court in advance.

Spoliation is common, have a brief with citations to preclude testimony/adverse inference.

EDNY 05 CV 1460 Well Developed PTO Example

Jury Instructions, use specific to City Law, come to NELA/NY on all City Law issues, Amicus support is available from the guy who wrote the law.

1 This Section is excerpted from Stephen Bergstein’s excellent article in the NELA/NY Newsletter Spring 2009.