Legal Affairs

by Jeffrey P. Feuquay, Ph.D., Esq.

In anticipation of writing this column, I recently sent a plea for ideas via the IPMAAC electronic bulletin board; I received some good ones that I will pursue in upcoming issues. But, more input would help me gauge the level of interest among our members in various topics. So, I renew my plea - please send me your ideas. This month, I first want to point our members to several valuable Internet locations for legal research, and then to discuss a topic that I pondered as a public-sector administrator and am now gaining a new appreciation of…why plaintiffs sue.

Internet Legal Sources

IPMAAC members have direct, virtually free access to legal information on the "net." But, a word of warning, don't assume that the information is necessarily the most current. The Internet is not a substitute for Westlaw, Lexis, the Bureau of National Affairs, or an attorney with current experience in the area. So, with that proviso, consider looking first at some of the excellent sites that have hypertext links to many other sites, for example:

These sites will route you to hundreds of other places with "point and click" simplicity. Keep track of where you end up and how you got there, if you can. Most of the sites listed below could be found by jumping from the more general ones above, but there are also more direct routes to specific targets. Those listed below are searchable by key word.

Why Plaintiffs Sue

While running the Employee Selection Department of the Oklahoma Office of Personnel Management, I frequently found both myself and my staff sued or named in administrative proceedings by disgruntled job seekers or employees. At the time, my most common reaction was something along the lines of, "Aw, come on folks, we're giving it our best shot." But, sometimes I found that we had in fact messed up in some way. In those cases, we generally tried to fix the problem as quickly as possible and "to make the person whole." When we took a stand, we saw ourselves as genuinely in the right and as protecting the legitimacy of the system by fighting the assault. Those reactions appear common among public-sector employers.

But, why is employment law SO contentious? Many of the allegations suggested that my staff and I were guilty of making decisions based on the plaintiff's membership in some protected group, be it race, sex, ethnicity, disability, age or something else. That is, we were racist, sexist or some other "ist." Recognize how different those allegations are from someone saying you weren't paying enough attention and caused a car wreck. The first, allegations that one is an "ist", are personal; they strike at the core of our reason for working in "merit systems" and are antithetical to our concepts of professionalism. Those allegations demand that we defend ourselves. But, allegations that we weren't careful are not nearly so threatening and may simply result in a shrug of the shoulders and an admission of liability. While monetary damages may be identical, the visceral reaction to the two types of allegations is far from the same. As important in the fray as our reaction to the allegations is that there is nothing as important to a person's conception of him or herself as job and family; damage or take away a person's job and the person is no longer the same. So, from both the plaintiff and defense perspectives in an employment setting, emotions play a very significant role. Dismiss the importance of emotions at your peril.

Nothing I've said is likely surprising, but the information is important to understanding the dynamics of an employment action. Simply, there are (at least) two phases to a person bringing a lawsuit - first, the person must want to sue someone and, second, he or she must find an attorney to take the case. Yes, it is true that under many systems a person does not need an attorney to file a grievance or an administrative action, and, yes, it is true that there are enough hungry attorneys that finding one to take a case is not that difficult, but let's focus on the process a good attorney uses. After all, in theory, attorneys that continually take bad cases soon starve to death, thereby becoming much less of a threat in this world.

Why does a person want to sue? It is not because something illegal has been done to them; people do illegal things to each other daily without resulting lawsuits. Something illegal being done is HOW the person can sue, not why. Why the person wants to sue has much more to do with being surprised and feeling angry and/or hurt. If a person believes him or herself to have been treated reasonably and fairly, he or she will not want to sue. But, having said that, recall the role of emotions in employment law and of the attributions folks make for failure.

For example, if a student fails a test, it is much easier on the ego for the student to hypothesize either the test or test-maker was unfair or that the student simply had a bad day (test anxiety?). Seldom will the student conclude that he or she is dumb or that he or she was too lazy to prepare properly. Therefore, much-maligned face validity is crucial, not to mounting a defense of an exam, but to eliminating your need to mount a defense. People seldom conclude they have been treated fairly if they have been surprised. So, insure that each person can clearly see and understand how and why an action has been taken, and that the action is reasonable and predictable under the circumstances. One of your best, front-line defenses is to explain what you are doing in a manner sufficiently clear for the people themselves to be able to predict the outcome. I recommend, as you design your decision process, as you ponder what actions to take, that you explain your thinking to a "reasonable person," such as a friend or spouse outside the personnel assessment arena. If that third party is confused or says what you are planning is silly, you are likely to create people who are eager to sue.

The second phase in getting oneself sued is doing something that can be reasonably characterized as illegal. How does an attorney decide to take a case? Attorneys that stay in business try to fit or mold the story told by the client into some cognizable cause of action. That is, can I characterize what happened to this person as a violation of some law(s)? And, if I can, do I have or can I get enough information to convince a group of folks off the street to see it my way?

The employment law attorneys I've spoken with seldom take the story told by the client as gospel. Most recognize that few employees or applicants know what actually happened, but rather have a very one-sided view of events. Would-be plaintiffs have simply crossed the first hurdle; they don't feel they've been treated reasonably or fairly. Therefore, attorneys generally will ask for names of people who can verify the story and/or for other external indicia of reliability. But, verification is not always required; some information may not be available until the discovery power of a court is invoked after a case is filed. Also, there are some organizations which are legendary in their propensity for hurting people through silly personnel actions and decisions. Simply invoking the name of one of those organizations makes plaintiffs' attorneys salivate.

So, faced with a would-be plaintiff, an attorney must separate the hurt and anger from fact, and make an objective determination of whether the case can be won. Or, alternatively, can the attorney present a good-faith case and come close enough to winning that the defendant will desire to settle, i.e., "fold" without seeing all the cards. The wise agency learns that just as there are legendary organizations, there are also legendary attorneys, those who too often bluff while holding a losing hand. Here, I must inject a purely personal opinion - the legal system will be the better for it if agencies refuse to settle with the latter group, and aggressively refuse to be held hostage.

Closing comments: Not surprising people, and treating them fairly and reasonably will eliminate most lawsuits. Operating legally will eliminate several more. Some frivolous lawsuits will still come, but will come less and less often if the organization makes them unprofitable. Know the legal system and use its rules to your advantage. And, finally, remember and use the qualified immunity that government actors retain when acting within the scope of their employment. But, that's another article.

Dr. Feuquay is a member of Irish & Associates, a firm which focuses primarily on employment and constitutional law, and on family law. Dr. Feuquay and the senior partner, Jennifer Irish, are admitted to practice in the State of Oklahoma; and before the U.S. District Courts for Northern, Eastern and Western Districts of Oklahoma; and the Tenth Circuit Court of Appeals. Jennifer has been a litigator for a decade; Jeff has over 15 years' experience in public-sector personnel psychology and is on the IPMAAC Board of Directors and a member of IPMA. Both are members of the Oklahoma, American and Federal Bar Associations. Jeff may be reached at: phone: (405) 232-0851, fax: (405) 232-0858, or E-mail: 102370.2715@compuserve.com.