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Firecracker plaintiffs are no celebration for employers

July 1st, 2013  |  Lorene Park

By Lorene D. Park, J.D.

Having spent most of my litigation years on the defense side of the table, I tend to view cases through an employer’s lens. Still, much like sports enthusiasts will (begrudgingly) show some respect for spectacular plays by an opposing team, there are some employee plaintiffs to whom I cannot help but give a nod.


For example, I could not help but admire an 81-year-old, long-time security guard who complained not that he was disabled following his heart surgery and hospitalization for flu, but that he was “regarded as” such by his employer, which thereafter relegated him to acting as a courier (Shaffer v Greater Hazelton Health Alliance, MDPa June 5, 2013). Denying the employer’s motion to dismiss his ADA claim, the court noted that the employer would not put him back in his security guard position despite the fact that his doctor released him without restrictions. The court also refused to elevate form over substance and denied the motion as to the employee’s age discrimination case under the ADEA even though (as the employer argued) the employee failed to specify the ages of the employees who replace him. The court explained that “[g]iven that Plaintiff was eighty-one years old at the time he filed the Complaint, whoever replaced him would likely be substantially younger than him.”  I have to admit, if I were an employer I would love to have employees who were so gung-ho to work.

The next firecracker is one who I cannot decide whether, as an attorney, I more fear than admire.  When this employee was terminated, she was presented with a pre-signed (red flag right there) copy of an agreement providing that the employee would waive certain claims, “including” employment discrimination claims. Before signing and returning the agreement, the employee re-typed the page with the general release of claims. She used the same font, margins and words with one exception: she changed the first two letters of the word “including” to read “excluding.” Refusing to dismiss the employee’s subsequent discrimination suit, the court found that her minor edit “manifested an intent to preserve her right to file a discrimination claim” (Allen v Chanel, Inc, SDNY June 4, 2013). I usually do not like it when courts allow parties to engage in questionable tactics such as these, but I have to admire this employee’s chutzpah.

More sizzle than pop

Searching the past few weeks’ worth of cases we covered in Employment Law Daily to find similar novelty from the employer’s side, I found some wonderful bread-and-butter plays; from the successful assertion of the Faragher defense to successful bids for attorneys’ fees with respect to frivolous claims. Certainly well-played, but perhaps not firework-worthy from a spectator’s point of view (I have no doubt those employers were thrilled). I did find it noteworthy that one employer faced with a discrimination suit countersued the employee, alleging that her suit was an abuse of process and caused him emotional distress; he even filed a third-party claim against her attorneys, alleging it was “obvious” they did not research her “bogus” claims (Redd v Jackson, EDVA June 21, 2013). The court dismissed the claims on procedural grounds, however, finding no independent basis for federal jurisdiction on the counterclaims and no basis for joining the third-party claim, which did not allege derivative liability. Pity. It would have been interesting to watch that unfold. Never fear, though, we cover a LOT of cases in any given month, and I’m sure a spectacular defensive play worthy of fireworks is just around the corner.