litigating employment discrimination filing in state vs. fd...

Presenting a live 90‐minute webinar with interactive Q&A

Litigating Employment Discrimination Cl i Fili i S F d l CClaims: Filing in State vs. Federal CourtEvaluating Substantive and Procedural Advantages and Risks of Each Venue for Plaintiffs and Defendants

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, JULY 31, 2013

Today’s faculty features:

Alex S. Drummond, Partner, Seyfarth Shaw, Atlanta

Trina Fairley Barlow, Partner, Crowell & Moring, Washington, D.C.

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Litigating EmploymentLitigating Employment Discrimination Claims: Litigating in State Versus Federal CourtFederal Court

Procedural, Practical and Substantive Considerations

Seyfarth Shaw LLP Crowell & Moring LLP 5 |

Logistical Requirements and Local Practice ConsiderationsLocal Practice Considerations

6 |Seyfarth Shaw LLP Crowell & Moring LLP

Can you practice before the Court?

STATE COURT Admission to state’s bar Pro hac vice

FEDERAL COURT Admission to particular

districtR i t f d i i Sponsor

Pleading requirements Example: New Jersey

requires that all pleadings

Requirements for admission vary

Example: N.D. Ohio – must attend a seminar on federal requires that all pleadings

and papers be signed by New Jersey attorney

Limits on number of pro hac vice applications

practice to be admitted Pro hac vice

Residency requirements for local counselvice applications local counsel

Pleading requirements Example: D.S.C. – local

counsel must sign all l dipleadings


Wh l l i d i h ldWhat local practices and issues should you consider in state court? Scheduling and Standing Orders

Automatic reply or leave to reply? Courtesy copies?

Communication with the Court Staff attorneys and law clerks

Local, unwritten customsLocal, unwritten customs Timeframe = slow

Longer time to respond to motions Often no deadline for submitting/ Often no deadline for submitting/

ruling on motions for summary judgment

BUT, dismissal for failure to prosecute (Example: Florida)

8 |

, p ( p )

Seyfarth Shaw LLP Crowell & Moring LLP

What local practices and issues shouldWhat local practices and issues should you consider in Federal court? Local Rules – vary from District to District and cover:

Form requirements for pleadings and motions (font size, margins, etc.) Timing for responses and replies to motionsg p p Whether replies are automatically granted or whether leave to reply is

required Use of submission dates for motions (Example: Eastern District of

Louisiana) Requirements for motions for summary judgment Requirements for conferring with opposing counsel before filing a motion

Other Orders and Judge Preferences Timeframe = quicker, but varied

Example: “Rocket Docket” Eastern District of Virginia

9 |

Discovery period often less than 6 months


What is the filing procedure and howWhat is the filing procedure and how does that impact the case?FEDERAL COURT CM/ECF system

Redaction required Date of birth

STATE COURT Varying filing systems

By mail Date of birth SSN Drivers license numbers Bank account numbers

y In person Electronic

Non-electronic filing deadlines Local rules and Administrative

Procedures affect time to file Exhibit resolution and size

limits

Non electronic filing deadlines depend on clerk’s office hours COB/5:00 pm deadline

Effect of budget cuts Emailing proposed orders

in .doc format outside of ECF

Midnight deadline

Effect of budget cuts Early closures Certain days closed altogether

(Example: California state g ( pcourts)


Other Practical Considerations

Case Specific Considerations:

● Client Relations and Reputational Concerns● Location of Witnesses

Judge Assignment Process● Judge Assignment Process● Jury and Verdict Research


R l d R dRemoval and Remand


Can I remove to Federal Court

Federal Question Jurisdiction “Arises under” federal law

Diversity Jurisdiction Complete diversity between the

parties Common federal employment

statutes ADEA, ADA, Title VII, Equal

Pay Act, FLSA, FMLA and

parties Amount in controversy > $75,000

includes attorneys’ fees and punitive damages, but Pay Act, FLSA, FMLA and

ERISA Preemption – is the plaintiff’s

claim preempted by a federal employment statute?

pu e da ages, buexcludes interest and costs

Class Action Fairness Act • Aggregate value of claims > employment statute?

E.g., ERISA Does the claim require the

resolution of a substantial

Aggregate value of claims $5,000,000

• At least 100 class members• Any member of the plaintiff class is

iti f t t diff t f

13 |

question of federal law?a citizen of a state different from any defendant


How do I remove to Federal District Court?

Timeframe Timeframe 30 days from service of complaint on the removing defendant 30 days from receipt of document making case removable 1 year limit on removal in diversity jurisdiction cases unless there is bad 1 year limit on removal in diversity jurisdiction cases, unless there is bad

faith on the part of the plaintiff in preventing removal Venue – district encompassing state court location Consent Generally all defendants must consent Consent – Generally, all defendants must consent Required Filings

Notice of Removal with all state court pleadings attached – burden is on D f d t t t bli h bilitDefendant to establish removability

Send Notice of filing Notice of Removal to the state court Additional local requirements

E l L l R l 6 I A (D S C ) Example: Local Rule 26.03 Interrogatory Answers (D.S.C.)


What issues could arise when removingWhat issues could arise when removing based on diversity jurisdiction? Residency/citizenship

What is a corporation’s citizenship? What if the plaintiff moves during the pendency of the action? No‐Local‐defendant rule

F d l t j i d ddi di l l d f d t t d f t Fraudulent joinder – adding non‐diverse or local defendant to defeat diversity Common situation: Plaintiff individually names a supervisor who lives in the same

state as Plaintiff 3 ways to establish fraudulent joinder

“no possibility that the plaintiff would be able to establish a cause of action against the nondiverse defendants in state court”

jurisdictional facts are incorrectjurisdictional facts are incorrect claims against nondiverse or local defendant have no real connection to the case

John Doe defendants Amount in controversy

Damages not specified – estimate based on complaint and outside evidence Damages expressly limits damages to less than $75,000


What issues could arise when removingWhat issues could arise when removing based on federal question jurisdiction? Supplemental jurisdiction

Court has discretion over whether to remand l t l l isupplemental claims

Unrelated state law claims Will be severed and remanded Will be severed and remanded


Under what circumstances may a caseUnder what circumstances may a case be remanded back to state court? Amending Pleadings to Join Non‐Diverse Defendant

Once added, the case must be remanded Context matters: amendment as a right versus amendment by leave of

tcourt If leave is required, Defendant can oppose and argue the fraudulent joinder

theory as a consideration for the court in considering whether to allow joinder Amending Pleadings to Drop Federal Claimsg g p

If leave is required, Plaintiff must have a reason for dropping the claim beyond simply defeating federal jurisdiction

Motion to Remand – within 30 days of notice of removald l d Jurisdictional grounds

No fraudulent joinder exists Waiver of jurisdiction (contract, proceeding in state court) Removing party could be required to pay attorneys’ fees if removal was Removing party could be required to pay attorneys fees if removal was

unreasonable or unwarranted


Discovery in State and Federal Court


Di R lDiscovery RulesFederal Court State Court

D iti Li it d t h V i b t t d t f Depositions Limited to 7 hours; 10 depositions

Varies by state and type of case (E.g., new California limits do not apply to employment cases)

Initial Disclosures Required under Rule 26 Generally not requiredInitial Disclosures Required under Rule 26 Generally, not required

Out‐of State Depositions and Subpoenas

FRCP’s 100‐mile rule allows for deposition of practicallyanyone in US

Requirements vary – may need to open case in the other state; may be able to use the UFDA

Interrogatories Limited to 25; can use FRCP Rule 33(d) to refer to business records produced in lieu of answering

Could be unlimited except as required to protect from annoyance, expense, etc…

Requests for Production Third parties can’t be served RFPs, should be subpoenaed instead

Some states allow third‐party RFPs as alternative to subpoena (E.g., Georgia)

Supplementation of Discovery Required under Federal Rules In many states, as long as its true h h di when you answer the discovery

request, no need to supplement


S b t ti d E id tiSubstantive and Evidentiary Considerations


Statutory Considerations

Exhaustion of Administrative Remedies: Federal anti‐discrimination statutes: Most require

h ti f d i i t ti di b f l i b exhaustion of administrative remedies before claims can be filed in court.Exceptions: E.g., FMLA, 42 U.S.C. § 1981, EPA

State anti‐discrimination statutes: There is no exhaustion requirement under many state discrimination statutes. Plaintiffs can go straight to court.Plaintiffs can go straight to court.(See e.g., District of Columbia, Virginia, Minnesota)


Statutory Considerations St t t f Li it ti

Federal statutes• Title VII, ADA

FMLA can goC t i ht t t

Statutes of Limitation:

, 180/300 days to file charge

with state agency/EEOC 90 days after receipt of

“right to sue” letter to file

Can go straight to court 2 year SOL

42 U.S.C. § 1981right to sue letter to file complaint in court

• ADEA 180/300 days to file charge

Can go straight to court 4 year SOL

EPA/3 y gwith state agency/EEOC

60 day waiting period to file with in a complaint in court

EPA Can go straight to court 2 years from last

paycheckcourt. paycheck


State StatutesLimitations periods vary widelytat o s pe ods va y de y

FMLA DC FMLA CFRAN h i N h i M fil i h DFEH No exhaustion required, but may file with DOL

No exhaustion required

Must file with DFEH within one year

Two year statute of limitations; three years if willful

One year statute of limitations

Must file in court within one year of receiving right to sue y g gnotice


Statutory Considerations “Protected Categories”g

Federal statutes Provide for protection based on race, national origin, sex, age,

disability religion military status need for leave based on disability, religion, military status, need for leave based on “serious medical conditions,” etc.

State statutes

Many include additional protected categories that are not covered by federal statutes: Examples: sexual orientation, physical appearance, public assistance marital status matriculation age discrimination assistance, marital status, matriculation, age discrimination under 40

√ Best Practice Tip:Regardless of where you file it is important to conduct a thorough pre filing investigation to Regardless of where you file, it is important to conduct a thorough pre‐filing investigation to determine whether federal and/or state claims are appropriate.


Statutory Considerations

Threshold Requirements:

Definition of “Employer” Definition of Employer

Federal statutes Title VII (15 or more employees); ADEA (20 or more Title VII (15 or more employees); ADEA (20 or more employees); ADA (15 or more employees); FMLA (50 or more employees)

State statutes State statutes vary widely and often expand coverage beyond “employers”


Statutory ConsiderationsProtection of Workers:

Federal law anti‐discrimination laws do not extend Federal law anti discrimination laws do not extend protected to “independent contractors.”

However, some states extend protection to independent contractorscontractors.

See, e.g., Pennsylvania Human Relations Act

Damages and Other Remedies: State statutes typically provide for broader damages and yp y p g

remedies than federal statutes.


Remedies Under Federal and State StatutesRemedies Under Federal and State StatutesIllustration:

ADEA Title VII DCHRALiquidated Damages Compensatory and

Punitive DamagesCompensatory and Punitive DamagesPunitive Damages

(capped at $300K)Punitive Damages(no cap)

Backpay Backpay Backpay

Reinstatement or Front Pay



Attorney’s Fees Attorney’s Fees Attorney’s Fees

Individual liability? Individual liability? Individual liability allowed


Dispositive MotionsDispositive Motions Federal v. State Court

Motions to Dismiss:

Federal Court‐ Fed. R. Civ. P. 8‐ Twombly/Iqbal applicable

State Court ‐ Several state courts have rejected Twombly and Iqbal.‐ Beware of state specific pleading requirements that could result in lost ‐ Beware of state specific pleading requirements that could result in lost of substantive rights if not properly followed.

√ Best Practice Tip: It is important to determine whether state court pleading requirements remain applicable if the case is removed to federal courtrequirements remain applicable if the case is removed to federal court.


Summary Judgment Standards Federal

Federal Rule of Civil Procedure 56A l t R l 6 diff t t d d Analogues to Rule 56 or different standards

Procedure FederalFederal

Typical briefing schedules require response within 14‐21 days and a reply shortly thereafter

State State More relaxed process for responding to and ruling on the motion Example: (1) File; (2) Set for Hearing; (3) Response due anytime

before hearing (Florida)before hearing (Florida)


Dispositive Motions in Federal v. State Court

Summary Judgment:

Differences in burdens of proof and evidentiary considerations may lead to different results.lead to different results.

Compare:

Federal courts: McDonnell Douglas burden‐shifting generally required at summary judgment.

State courts: Some courts either relax or dispense with McDonnell Douglas burden‐shifting at the summary judgment McDonnell Douglas burden‐shifting at the summary judgment stage when analyzing claims based on certain state and local statutes.

E.g., New York, Oregon


Dispositive Motions in Federal v. State CourtRecent Case Law Developments :p

Proving Causation in Title VII Retaliation Cases University of Texas Southwestern Medical Ctr. v. Nassar

Applicability of Nassar to other federal statutes? Applicability of Nassar to other federal statutes? Applicability of Nassar in state court?

Definition of “Supervisor” under Title VII Hostile Work Environment Cases Vance v. Ball State University Definition of supervisor” under state statutes is frequently much

broader. See, e.g., California and New York See, e.g., California and New York

√ Best Practice Tip In some cases, the court in which the case is filed could alone determine whether the case survives summary judgment. Therefore, it is important to understand the burdens of proof at summary judgment before making filing and removal decisions. f p f y j g f g f g


Other Evidentiary ConsiderationsIt is important to determine whether key evidence will be admissible at trial.

Examples: “Me too” evidence Me too evidence EEOC reasonable cause findings


Today’s PanelAlex DrummondSeyfarth Shaw LLP

Trina Fairley BarlowCrowell & Moring LLP

1075 Peachtree Street, NE, Ste 2500Atlanta, GA 30309‐3962 404‐885‐1500

1001 Pennsylvania Avenue NWWashington, D.C. 20004‐2595 202‐624‐2500404‐885‐1500

[email protected]‐624‐[email protected]


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