A recent case decided by the 8th Circuit U.S. Court of Appeals illustrates what a high stakes gamble an employment case trial is for both sides.
A wide range of outcomes are possible. These include a defense verdict that is a pretty hollow victory for the employer by the time it has paid its attorneys’ fees for all the pretrial discovery and preparation, trial, and, quite possibly, an appeal.
The flip side is a plaintiff’s verdict that is a pretty hollow victory for the plaintiff because no damages are awarded.
How can this occur?
In the recent case of Garner v. Missouri Dep’t of Mental Health, No. 04-3013 (8th Cir. 03/13/06) (.pdf), the jury found that the employer had unlawfully retaliated, but awarded no damages because it found that the employer would have terminated the plaintiff even absent a retaliatory motive.
Apparently there was some evidence of a retaliatory motive causing the termination decision, but also quite persuasive evidence that the plaintiff had admitted a serious infraction for which she would have been terminated regardless.
The plaintiff sought attorneys’ fees, but the court held fees were unavailable in such retaliation cases (though they would be if other types of discrimination were involved).
Most discrimination cases involving termination are tried on the basis of competing theories of the employer’s motivation.
The employer claims it terminated the plaintiff solely for a nondiscriminatory (nonretaliatory) reason, in this case the plaintiff’s admitted misconduct.
The plaintiff claims the termination was solely for an unlawful motive, the employer’s stated reason being a total pretext — a fabrication — to hide the discrimination.
Sometimes the jury buys both sides’ stories — kind of. It may find that the employer in fact based the decision, in whole or in part, on an unlawful consideration, but the employer’s stated reason is also factually true (i.e., the misconduct occurred), and would have resulted in termination anyway — had the employer not seized on it as a reason to fire an employee it wanted to fire for unlawful reasons.
But it is a rare situation in which an employer will want to position its case this way for the jury. This makes for some difficult jury instruction decisions — whether or not to offer a “same decision” instruction.
Maybe now you understand why I say this can be befuddling! And why employment litigation is always full of challenges and risks.
Photo credit: ~K~ via flickr
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