Michael M. Shultz
As a Kansas employment attorney, it is interesting to watch how different clients approach the idea of litigation. Some clients are very reluctant to want to file a lawsuit to protect their rights, while others are anxious to "head to court." As someone who has been involved in litigation for over twenty years, I would say that litigation should be approached cautiously. Sometimes, an employment dispute can be resolved if the employee has an attorney contact the employer. The lawyer can seek some solution that can quickly and inexpensively solve the client's problems. There are employers who are willing to listen to what an attorney has to say and to try to find an early solution to an employment problem.
Many times, however, in cases of alleged employment discrimination, it will be necessary to file a charge of employment discrimination with the Equal Employment Opportunity Commission or the Kansas Human Rights Commission. When this happens, the employee and the employer might end up in mediation as a means to resolve the employment dispute. For an article on mediation, click
Kansas Employment Discrimination Claims and the Mediation Process
When an employment dispute cannot be solved through early intervention or through the filing of a charge with the EEOC or the KHRC, then it will probably be necessary to file a lawsuit in the Kansas federal district if the Kansas employee wants to pursue his or her legal rights. For the most part, Kansas employees who are working in Kansas will file suit in the Kansas federal court even though it is possible to file in state court. The reason for this is that federal courts are far more familiar with federal discrimination laws than are state courts. In addition, even if the employee files the suit in state court, the employer will likely remove the case to federal courts since it involves federal law issues. Only when a lawsuit is based primarily on state law will it make sense to file the lawsuit in state court.
The Kansas employee who seeks to remedy the violation of his rights by going to court needs to understand how the judicial process works and how the burdens of proof operate in employment discrimination cases. Once the employee files the lawsuit and serves it on the employer, the employer will have 20 days to file an answer, though most employers will get an extension and take some extra time to file the answer. An answer is generally just an admission of facts that are obviously true (e.g., the employee worked as a salesman for the employer), and a denial of the key facts that are in dispute (e.g., the employer failed to promote the employee because she is female). The answer can also raise affirmative defenses–special defenses that the employer will have the burden of proving–such as, the employee did not file the lawsuit in time.
Once the complaint is filed and the answer is in, the lawyers for the parties put together a scheduling order that establishes a timetable for when things will occur in the lawsuit. The first 4-5 months are taken up with discovery. Discovery includes requests for all relevant documents, a request to answer certain written questions and depositions. The employee-plaintiff will have his or her deposition taken within about 2-3 months of the lawsuit being filed. The employee's lawyer also will take depositions of key people on the defense side.
After the discovery is completed, the employer almost always will file a motion for summary judgment. This motion is an argument to the court that the employee-plaintiff cannot prove his case. The employer's lawyer will write a lengthy legal brief and attach transcripts from depositions and other evidence to try to convince the judge that no reasonable juror could find in favor of the employee. It is the job of the employee's lawyer to convince the judge that the plaintiff is entitled to have the case heard by a jury because there are really disputes concerning important facts in the case. After all the briefs on the motion for summary judgment are filed with the court, it might be 3-4 months before there is a ruling. If the court rules against the motion, then the matter can proceed to trial. The trial will usually be about 14 months after the lawsuit is filed. If the court rules for the employer, the employee will need to file an appeal if she wishes to continue the lawsuit. Kansas employees take their appeals to the Tenth Circuit Court of Appeals in Denver.
In Kansas, somewhere around one-third of all cases get dismissed at the summary judgment stage and the employee never gets to a trial. This figure might even be a bit higher in some types of employment discrimination cases–for example, disability claims. It also is true that less than 2 out of every 100 cases actually go to trial. This means that the vast majority of cases settle. Some settle before the motion for summary judgment, and many settle afterwards. If the employer loses the motion for summary judgment, it knows that it must go to trial and run the risk that the jury will return a verdict in favor of the employee. Most employers want to avoid this risk unless they are very confident about their case.
Kansas employees who find themselves in litigation need to understand that litigation is very risky. The plaintiff bears the burden of proving discrimination and this burden can be difficult to meet. There is seldom "smoking gun" evidence of discrimination, and witnesses will not always tell the truth the way the employee sees it. Even a really solid employment discrimination case might have only a 70 percent chance of getting past summary judgment and winning at trial. Thus, the Kansas employee must be ready to compromise to ensure that she recovers something. Most litigation attorneys will advise their clients that a sure and fair settlement is better than the chance that the client might get a big verdict at trial.
Too often, employees want a settlement to include everything they could get at trial and more. This is simply unrealistic. A settlement is a compromise–both by the employee and the employer. The amount of the settlement will vary depending upon the strength of the case. The strength of the case most often depends upon the witnesses, and the employer usually has more witnesses than the employee.
When an employee brings his case to a Kansas employment law attorney, it is important to get a very candid assessment of the case. An employee needs to ask the lawyer for a realistic view of whether the case can get past summary judgment, and how it is likely to fair at trial. No lawyer can guarantee a client a favorable verdict let alone a huge award. The attorney must let the client know that having an employment discrimination is not like winning the lottery. It is a lot more like having a lottery ticket.