A recent article in HR Executive Online profiled a Sodexo lawsuit, in which an attorney general’s office decided that a former Sodexo sales rep had engaged in “frivolous and unprofessional conduct in violation of the FDCPA.”
The article described the district court’s rationale for its conclusion as follows: “Sodexo repeatedly rejected requests to sign its warranty agreement without first obtaining permission from the General Manager,” the article reported.
In doing so, it turned out, it did not abide by the law. Essentially, the company’s owner had engaged in “frivolous and unprofessional conduct” in violation of the FDCPA. Therefore, the company could not point to any legitimate business reason to avoid a FDCPA lawsuit.
But what about the merit of the complaint? Were these claims based on discrimination? Did they constitute illegal employer retaliation? The employer, it turns out, did not have a written employment agreement with this particular Sales rep; however, that does not mean that the acts complained of were not within the employer’s powers. Indeed, one could easily read these latter-day Sodexo lawsuit critics as saying that they simply cannot find a justification for this type of discrimination.
The company did submit a written guarantee to the district court granting it the right to pursue its complaint based on its perceptions of the facts of the case:
an acknowledgment of its blanket guarantee, at the least, that it would not engage in any racial discrimination. However, that guarantee, and the logic underlying it, does not bar the company from now engaging in motive based or retaliate motivated lawsuits under the color of race.
So long as the litigant can show that the complaint does not come within the safe harbor described above, a motion for judgment on the pleadings, regardless of its ultimate validity, is unnecessary. Thus, in light of all that has been discussed in this article, that is the proper posture for any litigant that believes that he has suffered a Title VII violation based on racial discrimination.
As to the third step in this trifecta, that is, whether the complaint actually presents a case of employment discrimination, the answer is: absolutely.
Absent any statements in the complaint itself that clearly show that it is seeking a racial-based motivation, there is no case. And absent any showing of motive, a motion for summary judgment on the pleadings presents no problem.
So, what of the fourth step?
It is not enough to merely file a complaint. Whether the complaint was properly filed or not will depend on what happens at the trial. If the complaint is properly filed, the defendants are presumed to have a duty to prevent the alleged discrimination. And unless re-litigation is sought, and if the evidence of guilt cannot be produced, a defendant is not necessarily liable.
Re-litigating a case after the fact is very common practice.
However, it is a strategy that rarely succeeds for a multitude of reasons. Why do attorneys’ fees get paid even when a case has been properly and adequately represented? If you are subjected to such treatment by your former employer, why not seek legal counsel to learn more about your rights and how to protect them?