By: Bill Pilchak – 7/17/14
Do You Want A Lawsuit Or A Career?
We know how excited you are about suing your former employer…because we get a fair share of calls from our friends and relatives or those of clients who want to file employment litigation as well. We know too, that because there are too many attorneys these days (25% of whom make $45,000 per year or less, per the State Bar of Michigan), you will likely find an attorney who will take your case. Accordingly, P&C is starting the “So, You Want To Sue Our Client” series as a public service to those friends and relatives and to the population in general thinking of suing…especially if they are thinking of suing our clients. It’s wise to have all the facts before you commence litigation.
We first heard of today’s topic from a former management side colleague from Wolf & Pravato personal injury attorneys, let’s call him Tom, who has now gone over to the “Dark Side” of plaintiff-side litigation. Over a game of golf a few years ago, Tom reported how a plaintiff-client was complaining that prospective employers were able to learn that she had filed suit against a former employer. While top management and Human Resources personnel would generally not reveal prior litigation in a reference, back-channel perspectives between lower level people in the former organization and those in prospective employers often occur and if someone knows about the suit word can be spread. Tom’s client was angry that she had not been advised that her lawsuit would have a future impact upon her. Tom thought everybody knew that courthouse records were public records and that the plaintiff’s lawsuit would be open to inspection by anyone with an interest in them. We don’t know for sure, but suspect Tom’s client was further upset that the former employer’s argument as to why her performance or conduct warranted discharge was there for the world to see, as the employer usually files such a brief in every case.
Tom’s experience did not prompt us to Blawg on the topic. Rather, a more recent example, couched in modern technology has prompted this column. Recently, P&C defended a client against a plaintiff with an HR degree who performed recruiting functions. P&C’s initial motion to dismiss (contending the Complaint was deficient) was denied, in an opinion that was picked up by the internet. P&C then invested a lot of time, effort and shoe leather to interview witnesses and presented indisputable evidence that important facts underlying the case were false. The employee’s first attorney abandoned the case when presented with the evidence. The replacement attorney dismissed the case before argument on P&C’s (second) motion to dismiss the case (on the basis of established facts). The new attorney then filed a Motion to Remove Case From Internet. While I will not provide the entire text of the letter because the plaintiff makes some personal and improvident revelations, let me quote a few lines of the letter she attached to her motion:
“I am writing this letter to kindly ask you [the judge] to remove my case…from the online sources. This case is closed with no intention to be reopened….I am trying to move on with my life and find a new job…but it does not help…since my case is still present online and many people (friends and family) ask me about it on a regular basis (the details of the case, why it is posted online, negative comments about how I will never get a job ever again, etc). It is currently listed on the following web sites, but also [on] other ones. [Cites omitted.] I cannot even keep track of it any longer.
Please allow me to move on with my life and help me remove this case from online sources so that I do not have to answer questions from people who read about it via [the] Internet. I understand it is a public record, but there is no need for its online presence since it is closed….”
As it turns out, her suit against her former employer pops up on the first page of any Google inquiry about her.
Technically, it is illegal for employers to make an employment decision on the basis of an applicant’s prior civil rights lawsuit (but not on the basis of other employment-related lawsuits). However: 1) The back-channel communications mentioned above may evolve into “my contact at Acme isn’t excited about her” by the time it reaches the decision-maker, so that the decision-maker doesn’t actually know of the suit; 2) If the suit reveals facts that the plaintiff-applicant has misrepresented to the prospective employer (e.g., “I wasn’t fired”) that is a “legal” reason for not hiring; and 3) Let’s face it- one can’t sue every company one looks to or depends upon for a career and financial support. One gets only so many bites of that apple. Not only do juries sour on plaintiffs who sue repeatedly, but at some point one needs to start drawing a paycheck. So, accordingly, those considering a lawsuit against a former employer knowingly or unknowingly face a choice: Do they want a lawsuit or a career? It’s a pretty big gamble, especially if the case results in a written record of one’s faults or misconduct.
Just wanted you to be informed.