We Don't File Lawsuits On Principle (Or: Why All Employment Lawsuits Often Have Such Bad Facts On Both Sides)

Lawsuits are all about money: this might sound distasteful, but it's true (at least in employment law).

Recently I attended a pretrial conference where one of the opposing counsel said something very profound: we don’t try cases on principle. As a lawyer, and as a person, I am very principled. So of course I want to take the position of fighting for right in a lawsuit. But that is very rarely the case in any litigation regarding employment, or in general. Outside of novel theories of the law, cases almost always come down to dollars and cents, and the opinions you read are the result of months (if not years) of wrangling by both sides regarding the value of an employee’s claims.

I think this idea, the idea that lawsuits are all about money, sounds distasteful to the public, and grates against the ideas we see in popular fiction and on TV about the law. But this little nugget of truth is why in general the facts for civil suits are so bad when we read about them, particularly in the employment context.

Because employers make a calculated decision regarding settlement, a really good claim almost always settles or resolves itself — often long before plaintiffs could even file a lawsuit in court. Claims by good plaintiffs have one of two things in common: (1) low damages because they got another job quickly, or (2) damning facts that mean settlement must occur before public filing. And with these scenarios, a case settles for high, or not at all, because it isn’t even worth bringing.

Two recent cases illustrate this phenomenon. I will start with the tale of Marykate Ellingsworth: Ellingsworth v. Hartford Fire Insurance Company. The plaintiff, a woman (who is married to a man), claimed that her supervisor harassed her and told everyone she worked with that she was a lesbian. The supervisor’s reasoning for this bizarre conduct was (allegedly) because Ellingsworth “acted” like a lesbian and had a lesbian tattoo. (I was unaware that there were such tattoos, but you learn something new every day.) Ellingsworth claimed that she experienced a lot of stress from this situation, requiring her to go out on leave, and brought a gender stereotyping claim after she did not return to work after she exhausted her leave.

This isn’t a great claim for a few reasons. The first is it is a novel theory. Title VII doesn’t mention sexual orientation, reading sexual orientation into Title VII is a new development for the courts, and Ellingsworth isn’t a lesbian. Second, Ellingsworth abandoned her job. She went out on leave and never returned. That’s a very bad fact. But the E.D. of Pennsylvania refused to dismiss her claims. I am sure they will settle soon.

Another noteworthy case this year is Jones v. Gulf Coast Health Care of Delaware, LLC, where the Eleventh Circuit remanded a case where plaintiff Rodney Jones claimed he was retaliated against because of his FMLA leave. Jones was terminated after he posted pictures of being at the amusement park during his FMLA leave, and on a trip to St. Martin. Of course someone ratted him out, and upon his return to work, Jones was presented with the evidence that he should have returned to work earlier. After Jones failed to provide any response to the claims regarding his conduct during medical leave, he was terminated.

For both of these cases, as an employment lawyer, I can also see why the company wouldn’t have just settled. And those reasons are why, in general, civil cases have such horrible facts.

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Because of the nature of business, how employment law works, and the cost of litigation, settlements will always win in a cost-benefit analysis. So the cases we read about, and that make the law we live by, will sound awful. But those pictures of Rodney Jones sipping tropical drinks on the beach are making good law protecting the use of FMLA, even though FMLA leave is not the time to go on vacation. And Marykate Ellingsworth is not a lesbian, but her case is expanding protections for LGBTQ employees in Pennsylvania in a time when a patchwork of state law provides mediocre protection at best (particularly in light of the Masterpiece Cakeshop case pending before the Supreme Court).

I wish employment law cases that result in published opinions had better facts. I wish they made the law appear more noble, less money-driven. Until then, maitai’s on the beach might not make for a pretty fact pattern, but they protect the rights of a few employees to return to work after federal leave. Until we join the rest of the developed world in the protections afforded employees, this is the best we have.


beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.

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