Litigating Employment Discrimination

Transcription

1 Presenting a live 90 minute webinar with interactive Q&A Litigating Employment Discrimination Claims: Filing in State vs. Federal Court Evaluating Substantive and Procedural Advantages and Risks of Each Venue for Plaintiffs and Defendants WEDNESDAY, JULY 31, pm Eastern 12pm Central 11am Mountain 10am Pacific Td Today s faculty features: Alex S. Drummond, Partner, Seyfarth Shaw, Atlanta Trina Fairley Barlow, Partner, Crowell & Moring, Washington, D.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Litigating Employment Discrimination Claims: Litigating in State Versus Federal Court Procedural, Practical and Substantive Considerations 5

6 Logistical Requirements and Local Practice Considerations 6

7 Can you practice before the Court? STATE COURT Admission to state s bar Pro hac vice Sponsor Pleading requirements Example: New Jersey requires that all pleadings and papers be signed by New Jersey attorney Limits on number of pro hac vice applications FEDERAL COURT Admission to particular district Requirements for admission i vary Example: N.D. Ohio must attend a seminar on federal practice to be admitted Pro hac vice Residency requirements for local counsel Pleading requirements Example: D.S.C. local counsel must sign all pleadings 7

8 What local practices and issues should you consider in state court? Scheduling and Standing Orders Automatic reply or leave to reply? Courtesy copies? Communication with the Court Staff attorneys and law clerks Local, unwritten customs Timeframe = slow Longer time to respond to motions Often no deadline for submitting/ ruling on motions for summary judgment BUT, dismissal for failure to prosecute (Example: Florida) 8

9 What local practices and issues should you consider in Federal court? Local Rules vary from District to District and cover: Form requirements for pleadings and motions (font size, margins, etc.) Timing for responses and replies to motions Whether replies are automatically granted or whether leave to reply is required Use of submission dates for motions (Example: Eastern District of Louisiana) Requirements for motions for summary judgment Requirements for conferring with opposing counsel before filing a motion Other Orders and Judge Preferences Timeframe = quicker, but varied Example: Rocket Docket Eastern District of Virginia Discovery period often less than 6 months 9

10 What is the filing procedure and how does that impact the case? FEDERAL COURT CM/ECF system Redaction required Date of birth SSN Drivers license numbers Bank account numbers Local rules and Administrative Procedures affect time to file Exhibit resolution and size limits ing proposed orders in.doc format outside of ECF STATE COURT Varying filing systems By mail In person Electronic Non-electronic filing deadlines depend on clerk s office hours COB/5:00 pm deadline Effect of budget cuts Early closures Certain days closed altogether Midnight deadline (Example: California state courts) 10

11 Other Practical Considerations Case Specific Considerations: Client Relations and Reputational Concerns Location of Witnesses Judge Assignment Process Jury and Verdict Research 11

12 Removal and Remand 12

13 Can I remove to Federal Court Diversity Jurisdiction Complete diversity between the parties Amount in controversy > $75,000 excludes interest and costs Class Action Fairness Act Federal Question Jurisdiction Arises under federal law Common federal employment statutes includes attorneys fees and ADEA, ADA, Title VII, Equal punitive damages, ages, but Pay Act, FLSA, FMLA and ERISA Preemption is the plaintiff s claim preempted by a federal Aggregate value of claims > employment statute? $5,000,000 E.g., ERISA At least 100 class members Does the claim require the Any member of the plaintiff class is resolution of a substantial a citizen of a state t different from any defendant question of federal law? 13

14 How do I remove to Federal District Court? Timeframe 30 days from service of complaint on the removing defendant 30 days from receipt of document making case removable 1 year limit on removal in diversity jurisdiction cases, unless there is bad faith on the part of the plaintiff in preventing removal Venue district encompassing state court location Consent Generally, all defendants must consent Required Filings Notice of Removal with all state court pleadings attached burden is on Df Defendant to establish tblih removability Send Notice of filing Notice of Removal to the state court Additional local requirements Example: Local Rule Interrogatory Answers (D.S.C.) 14

15 What issues could arise when removing based on diversity jurisdiction? Residency/citizenship What is a corporation s citizenship? What if the plaintiff moves during the pendency of the action? No Local defendant rule Fraudulent joinder adding non diverse or local l defendant d to defeat diversity Common situation: Plaintiff individually names a supervisor who lives in the same state as Plaintiff 3 ways to establish fraudulent joinder no possibility that the plaintiff would be able to establish a cause of action against the nondiverse defendants in state court jurisdictional facts are incorrect claims against nondiverse or local defendant have no real connection to the case John Doe defendants Amount in controversy Damages not specified estimate based on complaint and outside evidence Damages expressly limits damages to less than $75,000 15

16 What issues could arise when removing based on federal question jurisdiction? Supplemental jurisdiction Court has discretion over whether to remand supplemental l claims li Unrelated state law claims Will be severed and remanded 16

17 Under what circumstances may a case be remanded back to state court? Amending Pleadings to Join Non Diverse Defendant Once added, the case must be remanded Context matters: amendment as a right versus amendment by leave of court If leave is required, Defendant can oppose and argue the fraudulent joinder theory as a consideration for the court in considering whether to allow joinder Amending Pleadings to Drop Federal Claims If leave is required, Plaintiff must have a reason for dropping the claim beyond simply defeating federal jurisdiction Motion to Remand within 30 days of notice of removal Jurisdictional grounds No fraudulent joinder exists Waiver of jurisdiction (contract, proceeding in state court) Removing party could be required to pay attorneys fees if removal was unreasonable or unwarranted 17

18 Discovery in State and Federal Court 18

19 Discovery Rules Federal Court State Court Depositions Limited it to 7 hours; 10 Varies by state tt and type of case depositions (E.g., new California limits do not apply to employment cases) Initial Disclosures Required under Rule 26 Generally, not required Out of State Depositions and Subpoenas Interrogatories Requests for Production FRCP s 100 mile rule allows for deposition of practically anyone in US Limited to 25; can use FRCP Rule 33(d) to refer to business records produced in lieu of answering Third parties can t be served RFPs, should be subpoenaed instead Requirements vary may need to open case in the other state; may be able to use the UFDA Could be unlimited except as required to protect from annoyance, expense, etc Some states allow third party RFPs as alternative to subpoena (E.g., Georgia) Supplementation of Discovery Required under Federal Rules In many states, as long as its true when you answer the discovery request, no need to supplement 19

20 Substantive ti and Evidentiary Considerations 20

21 Statutory Considerations Exhaustion of Administrative Remedies: Federal anti discrimination statutes: Most require exhaustion of administrative i ti remedies before claims li can be filed in court. Exceptions: E.g., FMLA, 42 U.S.C. 1981, EPA State anti discrimination statutes: There is no exhaustion requirement under many state discrimination statutes. Plaintiffs can go straight to court. (See e.g., District of Columbia, Virginia, Minnesota) 21

22 Statutory Considerations Statutes t t of Limitation: it ti Federal statutes Title VII, ADA 180/300 days to file charge with state agency/eeoc 90 days after receipt of right to sue letter to file complaint in court ADEA 180/300 days to file charge with state agency/eeoc 60 day waiting period to file with in a complaint in court. FMLA can go Can go straight to court 2 year SOL 42 U.S.C Can go straight to court 4 year SOL EPA Can go straight to court 2 years from last paycheck 22

23 State Statutes Limitations periods vary widely FMLA DC FMLA CFRA No exhaustion No exhaustion Must file with ih DFEH required, but may required within one year file with DOL Two year statute of limitations; three years if willful One year statute of limitations Must file in court within one year of receiving right to sue notice 23

24 Statutory Considerations Protected Categories Federal statutes Provide for protection based on race, national origin, sex, age, disability, religion, military status, need for leave based on serious medical conditions, etc. State statutes Many include additional protected categories that are not covered by federal statutes: Examples: sexual orientation, physical appearance, public assistance, marital status, matriculation, age discrimination under 40 Best Practice Tip: Regardless of where you file, it is important to conduct a thorough pre filing investigation to determine whether federal and/or state claims are appropriate. 24

25 Statutory Considerations Threshold Requirements: Definition of Employer Federal statutes Title VII (15 or more employees); ADEA (20 or more employees); ADA (15 or more employees); FMLA (50 or more employees) State statutes vary widely and often expand coverage beyond employers 25

26 Statutory Considerations Protection of Workers: Federal law anti discrimination laws do not extend protected to independent contractors. However, some states extend protection to independent contractors. See, e.g., Pennsylvania Human Relations Act Damages and Other Remedies: State statutes typically y provide for broader damages and remedies than federal statutes. 26

27 Remedies Under Federal and State Statutes Illustration: ADEA Title VII DCHRA Liquidated Damages Compensatory and Punitive Damages Compensatory and Punitive Damages (capped at $300K) (no cap) Backpay Backpay Backpay Reinstatement or Front Pay Reinstatement or Front Pay Reinstatement or Front Pay Attorney s Fees Attorney s Fees Attorney s Fees Individual liability? Individual liability? Individual liability allowed 27

28 Dispositive Motions Federal v. State Court Motions to Dismiss: Federal Court Fed. R. Civ. P. 8 Twombly/Iqbal applicable State Court Several state courts have rejected Twombly and Iqbal. Beware of state specific pleading requirements that could result in lost of substantive rights if not properly followed. Best Practice Tip: It is important to determine whether state court pleading requirements remain applicable if the case is removed to federal court. 28

29 Summary Judgment Standards Federal Federal Rule of Civil Procedure 56 Analogues to Rule 56 or different standards d Procedure Federal Typical briefing schedules require response within days and a reply shortly thereafter State More relaxed process for responding to and ruling on the motion Example: (1) File; (2) Set for Hearing; (3) Response due anytime before hearing (Florida) 29

30 Dispositive Motions in Federal v. State Court Summary Judgment: Differences in burdens of proof and evidentiary considerations may lead to different results. Compare: Federal courts: McDonnell Douglas burden shifting generally required at summary judgment. State courts: Some courts either relax or dispense with McDonnell Douglas burden shifting at the summary judgment stage when analyzing claims based on certain state and local statutes. E.g., New York, Oregon 30

31 Dispositive Motions in Federal v. State Court Recent Case Law Developments : Proving Causation in Title VII Retaliation Cases University of Texas Southwestern Medical Ctr. v. Nassar Applicability of Nassar to other federal statutes? Applicability of Nassar in state court? Definition of Supervisor under Title VII Hostile Work Environment Cases Vance v. Ball State University Definition of supervisor under state statutes is frequently much broader. See, e.g., California and New York Best Practice Tip In some cases, the court in which the case is filed could alone determine whether the case survives summary judgment. Therefore, it is important to understand the burdens of proof at summary judgment before making filing and removal decisions. 31

32 Other Evidentiary Considerations It is important to determine whether key evidence will be admissible at trial. Examples: Me too evidence EEOC reasonable cause findings 32

33 Today s Panel Alex Drummond 1075 Peachtree Street, NE, Ste 2500 Atlanta, GA adrummond@seyfarth.com Trina Fairley Barlow 1001 Pennsylvania Avenue NW Washington, D.C tbarlow@crowell.com 33