Mediation is now a common part of any lawsuit. The EEOC has also embraced mediation. Mediation is the process by which a nuetral third person explores the possibility of settlement. When the EEOC performs mediation, it provides its own mediator. The EEOC mediators are not active investigators. Usually, at a mediation, the two parties remain in different rooms, as the mediator shuttles back and forth.
Emotions run high at most mediations. The litigants re-live the events as they explain, make offers and respond with counter-offers. In one such EEOC mediation, the plaintiff employee did not care for the offer made by the employer. The employee was still employed. He left his room and went to the employer’s room. he shouted: "You can take your proposal and shove it up your ass and fire me and I’ll see you in court!" According to the Seventh Circuit, the employee "stalked" out of the room, leaving the employer and his representative "shaken."
The employer, A.B. Data Ltd., took Mr. Benes up on his offer and fired him. Mr. Benes then sued for retaliation. He was after all engaged in the EEOC process and had filed a charge. In the lawsuit, A.B. Data moved for summary judgment, arguing that Michael Benes had been fired for disrupting the mediation, not because he filed a charge with the EEOC. The district court agreed and granted summary judgment. The Seventh Circuit agreed. Said the court, Mr. Benes "sabotaged" the mediation. Benes v. A.B. Data Ltd., No. 13-1166 (7/26/13), p. 3. See decision. The court compared his actions to barging into the boss’s office and shouting.
The court said the plaintiff has cited no case holding that misconduct during a mediation "must be ignored." The court described Mr. Benes’ action as an "egregious" violation of a mediator’s protocols. Id., at p. 3. It looked at the decision in Burlington Northern & Santa Fe Railroad v. White, 548 U.S. 53 (2006) which held that retaliation included any response by an employer which would dissuade a reasonable person from making or supporting a charge of discrimination. Said the court, sanctions in court for misconduct would not discourage a person from complaining about discrimination. And, neither do sanctions for misconduct during a mediation.
But, of course, the problem with the Court’s reasoning is that only very rarely would sanctions in court include the "nuclear option" of complete dismissal of the plaintiff’s case. In affirming the grant of summary judgment, the court has employed the nuclear option. Or, more precisely, the court has sanctioned the employer’s use of the nuclear option.
As Prof. Secunda noted in his blog, compare the result in 1969 when an employee filed a false and malicious charge with the EEOC. The court in that case protected the employee’s right to do so under the Title VII retaliation clause. See Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969). The Fifth Circuit said then that the intent of Title VII would be frustrated if any employer could determine the truth or falsity of an employee’s complaint.
The problem with this 2013 decision is that many, perhaps all mediation sessions in employment cases involve raised tempers and plenty of emotion. Yes, we need to be civil. But, like sanctions in court, the consequences should not include complete dismissal of one’s case. After all, as I have explained here before, when a person loses a job or may lose his job through no fault of his, emotions get very high. See Workplace Prof blog.