Courtesy of creationc
Employment cases are exceedingly difficult, with numerous deadlines and traps for the unwary. We see some of these traps in the case of Prewitt v. Continental Automotive, No. 12-CV-582 (W.D. Tex. 8/28/2014). In this case, Larry Prewitt alleged that he had been terminated due to several reasons: race discrimination, national origin, disability, age, sex and retaliation for opposing discriminatory practices. But, said the court in ruling on the emplpyer’s motion to dismiss, the Plaintiff did not exhaust administrative remedies on the national origin, age, sex and disability claims.The court reached this result in 2013. That left claims based on race and retaliation.
Every worker who wishes to file suit alleging discrimination must first file a claim with the Equal Employment Opportunity Commission. The EEOC will then issue a right-to-sue letter and the worker can then file suit. But, Mr. Prewitt filed three different charges with the EEOC over a period of a few years. He did not file suit until the last charge had been released by the EEOC. In the first two charges, he alleged national origin, age and disability. So when he finally filed suit in 2012, he was long past the deadline to file suit on those first two charges. So, he did not exhaust administrative remedies on those first two complaints.
Practice pointer: It is very unwise to file a claim alleging the "kitchen sink." Basing a discrimination claim on multiple bases, such as age, race, national origin, disability, etc. suggests speculation or even desperation. It is much more effective to focus on one or two claims, which should be the stronger claims. When a plaintiff alleges everything but the kitchen sink, all of the claims will look weak.
The third EEOC charge included the claims based on race discrimination and retaliation. So, the court addressed those allegations. The race claim was not plausible, said the court. The Plaintiff’s own allegations claimed he was fired because he took too many absences. The factual allegations of his Complaint nowhere indicated his termination was due in some way to his race. The court allowed the plaintiff to amend his complaint to fix that inconsistency.
Practice pointer: The Plaintiff is white. He was claiming that he was fired due to his white race. I am not saying Caucasian based claims are impossible. But, they are more difficult than other claims. It would have been better to drop that claim at some point.
A year later, the Defendant then moved for summary judgment on the remaining claims, race discrimination and retaliation. The Plaintiff filed a response to the motion that was too long. It violated local rules on page length – without seeking court permission to do so. So, the court struck that reply. The Plaintiff then filed a "sur reply" to the motion for summary judgment. The Plaintiff did so without the court’s permission. Filing a sur reply (i.e., an "extra" reply) without the court’s permission violates local rules. So, the court also struck the sur reply.
During oral argument on the motion for summary judgment, Plaintiff admitted in court that he lacked evidence for a race based claim. So, the court granted summary judgment as to that claim.
Inexplicably, the Plaintiff also argued that Mr. Prewitt was fired due to his disability. The disability claim, however, had been expressly rejected a year earlier when the court ruled on the motion to dismiss.
Regarding the retaliation claim, the court noted that the employer argued it had terminated the worker because he violated the attendance policy. The Plaintiff had ten attendance "events." That is, he had ten occasions in which he was absent and allegedly did not follow attendance protocol. The Plaintiff responded that on one of those attendance events, he had received permission to be absent. That absence should not have been counted, said the Plaintiff. Thus, he was arguing that the employer’s explanation lacked credibility. The court found that argument created sufficient issue of fact and denied summary judgment regarding the retaliation claim. So, the retaliation claim remained.
A week later, the Defendant then filed a motion to reconsider, which the court accepted as a second motion for summary judgment. In this second motion for summary judgment, the employer argued that a manager could not grant permission for an absence. The employee’s testimony to the contrary was wrong, in effect. The manager could not have allowed Mr. Prewitt to leave work early that day, since the attendance policy requires 24 hour notice for any absence. The manager’s permission did not matter. And, the employer claimed that the event to which Plaintiff referred did not happen on the day Plaintiff claimed. Plaintiff claimed he was allowed to leave work early one day in August. The employer claimed that according to its records, it could not have been in August.
The Plaintiff then responded by changing his testimony. He submitted a new affidavit in which he changed the month from August to July. But, said the court, Plaintiff did not contradict the manager’s affidavit that a manager could not override the Continental attendance policy.
Comment: I am not so sure. Did not Mr. Prewitt implicitly contradict the manager when Mr. Prewitt said the manager did allow him to leave early that day?
But, said the court, in the end, the Plaintiff did not present "competent" evidence regarding when he was allowed to leave work early. It could have been one of the ten attendance events, or not. The court suggested that it was mere "conjecture" on the Plaintiff’s part when that attendance event occurred.
The Plaintiff submitted evidence that the time-keeping system at Continental was flawed and not accurate. But, noted the court, none of that evidence explicitly contradicted one of those ten attendance events for which he and been fired. So, the granted summary judgment regarding the one surviving claim, retaliation.
Later, the Plaintiff submitted a motion for new trial on his own. He filed this motion without a lawyer. But, unfortunately, pro se motions rarely succeed. That motion is still pending.
Discrimination cases are not easy. They present many traps for the unwary. The best plaintiffs are the ones who file suit reluctantly, perhaps very reluctantly. Alleging too many bases of discrimination at the outset will color everything that comes afterward.