The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. Presenting a live 90-minute webinar with interactive Q&A Leveraging Prior Unemployment, Workers' Comp and EEOC Administrative Determinations in Employment Litigation Today’s faculty features: WEDNESDAY, JULY 29, 2015 Patricia C. Collins, Partner, Antheil Maslow & MacMinn, Doylestown, Pa. Nathaniel M. Glasser, Partner, Epstein Becker and Green, Washington, D.C. Valdi Licul, Partner, Vladeck Raskin & Clark, New York 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
Transcript
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Presenting a live 90-minute webinar with interactive Q&A
Leveraging Prior Unemployment,
Workers' Comp and EEOC Administrative
Determinations in Employment Litigation
Today’s faculty features:
WEDNESDAY, JULY 29, 2015
Patricia C. Collins, Partner, Antheil Maslow & MacMinn, Doylestown, Pa.
Nathaniel M. Glasser, Partner, Epstein Becker and Green, Washington, D.C.
Valdi Licul, Partner, Vladeck Raskin & Clark, New York
Reasonable Cause/No Reasonable Cause determinations do not preclude de novo court review (McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1993))
EEOC required to inform employee of right to sue in federal court upon issuing no reasonable cause finding (29 CFR §1601.18(b)(3))
EEOC proceedings ◦ Informal ◦ No right to appeal ◦ No power to fashion remedies
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Preclude subsequent litigation of same issues in federal court (Kremer v. Chemical Const. Corp., 456 U.S. 461(1982))
Look to state estoppel rules
No estoppel where litigant not afforded minimal due process protections ◦ i.e., no opportunity to appear and be heard
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Administrative findings preclude further court review where: (1) the state agency acts in a judicial capacity; (2) the state agency resolves disputes of fact properly before it; (3) the parties have had an adequate opportunity to litigate; and (4) the state court would have given the findings preclusive effect. (University
of Tennessee v. Elliott, 478 U.S. 788, 796 (1986))
Exception: where Congress has shown an intent to provide de
novo court review. Preclusion Depends on Type of Claim
◦ Title VII (Elliott, 478 U.S. at 796) ◦ ADEA (Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991)) ◦ ADA (Smith v. Perkins Bd. Of Educ., 708 F.3d 821 (6th Cir. 2013)) ◦ FMLA (Kosakow v. New Rochelle Radiology Associates, P.C., 274 F.3d 706
(2d Cir. 2001)) ◦ Reconstruction Era Civil Rights Statutes (Elliot, 478 U.S. at 799)
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Rule 803(8) ◦ Allows for the admission of an EEOC determination
under the public records exception to the hearsay rule
◦ Except where the “source of information” or “other circumstances indicate a lack of trustworthiness”
Rule 403 – Relevance/Prejudice Analysis
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Presumptively Admissible Probative value of EEOC expertise Squander resources if EEOC determinations ignored Difficult for plaintiff to prove discrimination (Plummer
v. Western Intern. Hotels Co., Inc., 656 F.2d 502 (9th Cir. 1981))
Presumptively Inadmissible No evidentiary value Most evidence already presented at trial (no prejudice
to plaintiff) Danger of introducing inadmissible evidence Courts owe no deference to EEOC findings (EEOC v.
Ford Motor Co., 98 F.3d 1341 (6th Cir. 1996))
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Factors Weighing in Favor of Inadmissibility Waste time exposing weaknesses in report (i.e.,
report lacks factual support) Unable to cross-examine an EEOC report Akin to admitting expert testimony about whom
the jury should believe (Johnson v. Yellow Freight Systems, Inc., 734 F.2d 1304 (8th Cir. 1984))
Factors Weighing in Favor of Admissibility Information in report corroborated by evidence in
the record (Watson v. E.S. Sutton, Inc., No. 02 Civ. 2739 (KMW), 2005 WL 2170659, at *21 (SDNY Sept. 6, 2005))
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Fed. R. Evid. 801(d)(2) ◦ Party opponent’s admissions are not hearsay
◦ Witness must be the employer’s “agent or employee on a matter within the scope of that relationship when it existed”
• Employment discrimination plaintiffs must show ability to work
Cleveland v. Policy Mgmt. Servs., 526 U.S. 795 (1999): SSDI determinations do not have automatic claim/issue preclusive effect in subsequent suit.
• “Nonetheless, an ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work. To survive a defendant's motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim that she could ‘perform the essential functions’ of her previous job, at least with ‘reasonable accommodation.’”
• Cleveland has been expanded to apply to claims under other discrimination laws.
Plaintiffs may survive motion to dismiss despite finding of total disability
• Minter v. District of Columbia, 2012 U.S. Dist. LEXIS 36054 (D.D.C. Mar. 19, 2012) (plaintiff permitted to proceed to discovery on ADA claims despite neurologist certification to SSA that plaintiff was “totally disabled” “indefinitely”).
But by summary judgment, plaintiffs must be able to explain any contradictions:
• Minter v. District of Columbia, 62 F. Supp. 3d 149 (D.D.C. 2014) (granting summary judgment in favor of defendant-employer where, after discovery, plaintiff failed to address discrepancy between neurologist certification and her assertion that she could perform essential functions of the job).
Using SSDI Determinations in Subsequent Litigation
Judicial estoppel: SSDI claimants may not contradict their representations to the disability insurer in a subsequent judicial proceeding.
• Robinson v. Concentra Health Services, Inc., 781 F.3d 42 (2nd Cir. 2015) (plaintiff who received SSDI benefits due to multiple sclerosis judicially estopped from asserting in Title VII action that she was qualified for the job).
• Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266 (3d Cir. 2012) (plaintiff must “treat his original statement as true or as one that he in good faith believed to be true”).
Potential impeachment evidence.
Limit on damages claims for lost wages or benefits.
Workers’ comp determinations generally do not have claim preclusive effect on federal ADA, Title VII, or similar claims.
• Greenberg v. N.Y. City Trans. Auth., 336 F. Supp. 2d 225 (E.D.N.Y. 2004) (WCB finding of retaliation had no preclusive effect on federal court ADA claims).
• Gorbea v. Verizon N.Y., Inc., 2014 U.S. Dist. LEXIS 87295 (E.D.N.Y. June 25, 2014) (no preclusive effect on ADA retaliation claim, but precluding NYCHRL claims).
Collateral estoppel depends on (1) identity of issues and (2) full and fair opportunity to litigate.
• Sloth v. Constellation Brands, 883 F. Supp. 2d 359 (W.D.N.Y. 2013) (sexual harassment allegations not litigated before workers’ comp board).
• Rahman v. Museum of Natural History, 2012 U.S. Dist. LEXIS 45658 (E.D.N.Y. Mar. 30, 2012) (lack of identity between two issues).
• Jordan v. WMATA, 548 A.2d 792 (D.C. Ct. App. 1988) (fully litigated).
• Richey v. Hughes Tool Co., 1998 Tex. App. LEXIS 719 (Tex. App. Houston 14th Dist. Feb. 5, 1998) ( “The nature of appellant's claim for compensation benefits and his suit for wrongful termination are so different that a jury could only have been confused by being informed of the award.”)
• Morales v. N.Y.S. Dep’t of Labor, 2012 U.S. Dist. LEXIS 92075 (N.D.N.Y. July 3, 2012) (denying motion in limine to preclude other evidence relating to workers’ comp claim, where that evidence could be relevant to plaintiff’s claims).
Determination may be relevant to employer’s intent.
• Layman v. Alloway Stamping & Machine Co., 98 Fed. App’x 369 (6th Cir. 2004) (workers’ comp determination admitted because evidence of payments above what was required by workers’ comp law was relevant to plaintiff’s claim that employer harbored intent to discriminate).
Employee’s testimony in workers’ comp proceeding may be used to show work limitations or inability to perform job.
• Lujan v. Exide Techs., 2012 U.S. Dist. LEXIS 13893 (D. Kan. Feb. 6, 2012).
• Cheatwood v. Roanoke Indus., 891 F. Supp. 1528 (N.D. Ala. 1995).
• Bolton v. Scrivner, Inc., 836 F. Supp. 783 (W. D. Okla. 1993).
Receipt of workers’ comp benefits deducted against back pay award.
• Fogg v. Gonzales, 492 F.3d 447 (D.C. Cir. 2007).
Courts reluctant to admit OSHA findings of no probable cause of retaliation in subsequent lawsuits alleging other forms of retaliation:
• Morro v. DGMB Casino, LLC, 2015 U.S. Dist. LEXIS 85204 (D.N.J. June 30, 2015) (in FMLA retaliation and NJ-CEPA whistleblowing case, excluding evidence of OSHA safety complaint and no-probable-cause finding under FRE 403 and 803(8)(B)).
• McClain v. Pfizer, Inc., 2010 U.S. Dist. LEXIS 17710 (D. Conn. Mar. 1, 2010) (in CT whistleblower case, precluding admission of OSHA decision under FRE 403).
• But see Tice v. Bristol-Myers Squibb Co., 515 F. Supp. 2d 580 (W. D. Pa. 2007) (in Title VII and ADEA case, collaterally estopping plaintiff from re-litigating reason for her termination, as that issue was fully and fairly litigated before OSHA as part of her SOX complaint).
