This blog entry will be longer than normal for a variety of reasons. My client has approved me blogging about this case, but has requested to remain anonymous, even though victorious. This saga began in July, 2007, when my client, "S" decided to hire a new receptionist for its 50 person business. "Ms. M", who was 19 at the time, applied for the job, with about 9 others. After a review of the applications, S's front office manager, who was new to the job and making her first hire, interviewed less than 5 of the applicants. She decided to hire Ms. M based on her work experience (including 4 jobs where she indicated that she answered the phone) and the fact that she interviewed well, including making good eye contact, speaking loudly and clearly, and appearing enthusiastic about the job. Ms. M started work on Monday, and during orientation, S's front office manager found out that she was pregnant. S's office manager ( who was on the job approximately 4 months and had no HR training) overheard this conversation, asked if she had heard correctly, and accused Ms. M of not being honest by not revealing her pregnancy. Ms. M stated that she did not reveal the pregnancy during the interview because her sister had coached her not to tell anyone about it. Later that day, the office manager counseled Ms. M about having inappropriate conversations at the front desk, talking about her pregnancy, mother and boyfriend. Ms. M underwent computer training on Monday, and also observed at the front desk to see what the receptionists were doing. On Tuesday, Ms. M received additional computer training, and was asked to both observe and participate at the front desk: answering phones, paging, greeting customers as they walked in and entering information into the computer. Although Ms. M admitted that the front office manager asked her to answer the phone, she only tried one time, and stopped because she didn't feel comfortable doing so. Ms. M was at the front desk again on Wednesday, but sat back and did not take the initiative to answer the phone, page or otherwise engage the customers. At that time, the front office manager had some concerns that Ms. M would not be successful in the busy, fast paced environment and expressed concerns to the office manager and several of the owners. The decision was made to see if she performed better on Friday (she was scheduled off on Thursday, since the job week consisted of 4 10 hour days). Sometime during the week, Ms. M alleged that the office manager would not say "hey" to her, treated her differently than other employees, and commented in the break room on one occasion that she had no children because "children ruin your life". On Friday, Ms. M worked with another receptionist who reported that Ms. M made one page over the intercom, answered one phone call and showed more initiative then she had previously, but still was not doing enough to learn the job. During the course of the week, the front office manager had made detailed contemporaneous notes about the training of Ms. M, including the good and the bad. The front office manager made the decision to recommend to one of the owners that she be fired, and the owner agreed. The owner did not know that Ms. M was pregnant. This was the first time the front office manager had to fire someone, so she asked the office manager to take the lead. During the meeting, the office manager advised Ms. M that although she was good with her computer skills, she was not fast enough and did not have the interpersonal skills to be a receptionist for "S". The office manager also made the statement, that was admitted by "S" that the job was not working out with all her stress, and her pregnancy. The following Wednesday, Ms. M and her sister went to the EEOC to file a charge alleging pregnancy discrimination. S received the charge in early September, and responded by sending a statement from both the office manager and the front office manager. The office manager denied making any of the statements referring to pregnancy, while the front office manager wrote a 3 page, single spaced response, admitting that the comments were made, outlining the training schedule and Ms. M deficiencies. Shortly after the response was made, the office manager left her position, and it was disputed whether she was fired, quit, or if it was a mutual decision. Fourteen months later, the EEOC requested additional information, such as names of employees, names of pregnant employees and their work status. The information was provided within a week.
The EEOC issued a Cause Determination, and the conciliation process began. The EEOC initially demanded $50,000, although there was no breakdown as to back pay, front pay, compensatory damages or emotional distress. After several rounds of negotiations, the final demand was $39,000, while "S" offered $2,500. During the conciliation process, and before the EEOC filed its lawsuit, the Owner of "S" wrote several letters to the Regional Director begging the EEOC to meet with him and interview those individuals involved in the decision making process. The EEOC refused. During discovery, the regional attorney basically testified in his deposition that the EEOC was too busy to interview witnesses, even though they file less than 24 cases a year. The EEOC filed the lawsuit on the last day of the fiscal year in 2009, with several other lawsuits alleging various other types of discrimination. The lawsuit claimed, among other things, damages for medical expenses for Ms M having her child, job search expense and job training expenses. At her deposition, Ms. M testified that she had no medical expenses since she was covered by Medicaid, and she had no job search expenses or job training expenses. When asked for a breakdown of damages during his deposition, the EEOC's regional attorney could not provide a list of damages for any of the damages claimed, including back pay. After the deposition, the EEOC filed a damage list, claiming over $50,000 in back pay. Approximately 30 days before trial, this amount was reduced to just over $6,000. Prior to trial, additional settlement negotiations were held, with the EEOC's final demand being $29,500 and "S's" final offer $5,000. Even after the EEOC reduced the claim for back pay from over $50,000 to just over $6,000, it would not come down from its demand of $29,500.
The case went to trial at the end of February, and took 3 days to try. The EEOC called as witnesses the front office manager, read the deposition of the front office manager, the office manager, one of the owners for financial information, and Ms. M. S called as witnesses the current front office manager, 3 receptionists who tried to train Ms. M, the owner who made the final decision to terminate Ms. M and another owner to talk about the fact that she was 39.5 weeks pregnant when she met Ms. M and offered to answer any questions she may have had.
The 8 person jury, which consisted of 6 female jurors (4 Caucasian, 2 African American) and 2 male jurors (1 Caucasian, 1 African American), took approximately 4 hours to return a verdict in favor of "S" and against the EEOC.
Special thanks to Robin Beardsley Mark, one of my partners, who tried this case with me.
There are many lessons to be learned from this 4 year experience. These lessons include:
1. Companies need to train their management and staff as the various employment laws on a regular basis.
2. When training new employees, keep good notes.
3. When coaching or disciplining an employee, certain words should not be used, such as pregnancy.
4. When responding to the EEOC, what you say can and will be used against you. Although there are many differing opinions amongst attorneys as to how to reply to an EEOC charge, the response must be done properly.
5. When dealing with the EEOC when they are a party, it will be a very long, hard fought and expensive battle.
6. A lawsuit will cause a great deal of stress for the owners of a company and those employees who are involved as witnesses.
7. A great deal of time and effort, as well as money, will be spent defending the lawsuit.
8. There will be publicity, especially if the EEOC wins. In this case, the EEOC issued a press release during the trial, advising the press that the case was being tried. My client received a call during trial from a newspaper reporter. Of course, the EEOC did not issue (as far as I know) a press release stating that they lost the case. If they had won, the EEOC would have issued a press release, and there would have been something published, at least in the newspaper.