Smart Strategy in a Sexual Orientation Discrimination Case

A recent study by social scientists from Hunter College of the City University of New York found that 41% of gay adults mistakenly believe that federal law forbids sexual orientation discrimination by private sector employers.  This figure is not too surprising when one reflects on the continued mistake made by those pursuing their discrimination claims of filing suit under Title VII of the Civil Rights Act of 1964 in federal court, only to find themselves tossed out with the unwelcome lesson from the federal judge that Title VII does not ban sexual orientation discrimination.  In my writing on LGBT law over the years, I have repeatedly urged people with sexual orientation claims to STAY OUT OF FEDERAL COURT AND NEVER MENTION ANY FEDERAL CAUSE OF ACTION IN THEIR STATE COURT CLAIM. 

Now there is a case illustrating the mistake followed by the quick retraction.  In Quick v. EMCO Enterprises, Inc., 2008 Westlaw 1924911 (S.D.Iowa, April 29, 2008), David Quick filed his lawsuit in Iowa state court in October 2006, alleging discrimination, harassment, and retaliation based on sex and sexual orientation in violation of state and municipal laws.  Defendant filed its answer and affirmative defenses, and the state court scheduled a trial date for May 2008, this month. 

Then, the mistake.  Quick amended his state court complaint to add a count under the federal Family and Medical Leave Act.  Defendants immediately filed a motion to remove the case to federal court.  Employment discrimination defendants almost always prefer to be in federal court, where the judges are, on balance, much more pro-business than pro-employee.  (Just check out the newly published study by Landes and Posner, "Rational Judicial Behavior: A Statistical Study," available free from www.law.uchicago.edu/Lawecon/index.html documenting the political voting behavior of federal judges, and then consider who appointed most of the now-sitting federal district and appellate judges.)

The day after the case was removed, Quick's attorney promptly filed a motion to dismiss the FMLA claim and return the case to state court.  Writes District Judge James E. Gritzner, "Quick asserts the Court should dismiss his FMLA claim without prejudice because his failing emotional health would benefit from an expeditious resolution, and he further asserts that 'if the case is kept on the Federal Court's docket, Plaintiff will not likely receive a trial until mid 2009, and would therefore rather give up a claim under the FMLA to keep his current trial date in State Court."  Of course, dismissal of the FMLA claim would remove any basis for federal question jurisdiction and, apparently, this is not a potential diversity case.

Defendants strenuously object, pointing out that they already answered Quick's first, unamended, complaint, and arguing that Quick is trying to "manipulate the forum" and is "merely trying to get the case in a more favorable forum."  Well, the court analyzes the question whether dismissal of the FMLA claim would prejudice defendants because they have invested time and money in responding to that claim, and finds it would not.  They haven't filed an answer to the amended complaint yet, just having filed a motion to remove.  Although the court finds Quick lost his ability to withdraw his claim as of right once the first answer was filed, the court still has authority to dismiss the claim within its "sound discretion." 

Finding that Quick had not "extensively litigated" the FMLA claim in federal court and "did not put Defendants to the burden of defending the FMLA claim as the motion to dismiss was filed one day after removal, and the FMLA claim is separate from the sexual orientation and sex discrimination, harassment, and retaliation claims," and that there is no summary judgment motion pending, "dismissal of Quick's claim would not result in a waste of judicial time and effort and will not prejudice the defendants."

Furthermore, having dismissed the only federal claim in the case, the court grants the motion to remand the remaining claims back to the Iowa courts.  Quick pointed out that he was one of the first people to receive a right to sue letter from the Des Moines Human Rights Commission, and that the Iowa courts had yet to rule on a sexual orientation and harassment claim, so there were potentially novel questions of state law that should really be decided in the first instance by a state court.  "Because Quick asserts sexual orientation discrimination under the City of Des Moines Municipal Code, and Iowa courts have not provided guidance concerning this issue," wrote Judge Gritzner, "the Court declines to exercise supplemental jurisdiction over the remaining claims."

Specifically addressing the defendants' charge of forum-shopping, Gritzner commented, "Defendants argue that... the Court should consider whether Quick attempted to 'manipulate the forum' by 'deleting all federal claims from the complaint and requesting that the district court remand the case.'  Carnegie-Mellon, 484 U.S. at 357.  'This court has previously determined that the Eighth Circuit does not consider forum shopping concerns prohibitive of remand.' Krambeck, 451 F. Supp. 2d at 1045 (citing Thelen, 2004 WL 1737382, at *3) Forum shopping remains a relevant, though not dispositive, consideration.  Krambeck, 451 F. Supp. 2d at 1045 (citing Carnegie-Mellon, 484 U.S. at 357 ("A district court can consider whether the plaintiff has engaged in any manipulative tactics when it decides whether to remand a case."))  As stated above, Quick has provided several reasons for seeking to remand his claim other than merely seeking a more favorable forum and seeks a return to the original choice of forum prior to the Defendants' removal opportunity.  The Court finds the balance of 'judicial economy, convenience, fairness and comity' weigh against retaining supplemental jurisdiction over the remaining claims in light of the lack of progress in this Court, both substantively and temporally, and the novel issue involved.  Therefore, the remaining claims are remanded."

Whew!  Sheesh!  (Sigh of relief....)  Mr. Quick is back in state court for his sexual orientation discrimination case.  Where he started out, and from whence prudence dictates he never should have left, one would think.....

Comments

[Texas Employment Lawyer]

I think the decision whether or not to choose federal or state court varies court to court. Federal courts are headquartered in urban areas, while state courts are in every county of a state. But generally I think your advice is sound.

[Michael L. Gooch]

“There is no longer Jew or Gentile, slave or free, male and female. For you are all one in Christ Jesus.” Galatians 3:28. Sad to say, this ancient truth is nowhere to be seen in the modern American arena. Do we discriminate with women, blacks and Hispanics? Of course we do. And sexual orientation would be at the top of the list if there was actually a federal law (which I'm not advocating, I'm just saying...)What a strange world that we still have issues regarding discrimination over orientation. Like sexual harassment, the true victims rarely report it while the abused suffer in silence. In fact, I know that this is discrimination that is often unknown to the person. It is done quietly and behind closed doors. This is a problem. Huge Problem. In my book, Wingtips with Spurs, I devote a chapter to discrimination and how it is often over-looked or swept into a dark corner. And yes, it still exists in modern America. While we pour more stupid laws into the books to prevent such painful actions, we fail to fix the real problem, that is, the root. In addition, we have been conditioned by lawyers to believe that legal and moral are the same thing. So sad. Whenever a human is treated differently than the masses, we should take a cold, hard look at the situation. A hard look indeed. Maybe even the mirror. Michael L. Gooch, SPHR www.michaellgooch.com

[Art Leonard]

My point is that if you have a state or local law specifically covering sexual orientation, and the main claim in your case is a sexual orientation discrimination claim, it makes sense to stay in state court, whether you are in a rural or an urban area and despite the attractions of the "more prestigious" federal forum, because (1) federal statutory law does not cover sexual orientation discrimination, and (2) in many federal districts and virtually all the circuits, the majority of the judges were appointed by conservative Republican administrations and have a proclivity to understand the employer's point of view better than the employee's point of view in discrimination cases.

Obviously, if the case centers on a reasonably strong federal claim, the calculus may be different. And in a state or locality that lacks sexual orientation legislation, perhaps more will turn on the likelihood of getting a more receptive judge.

The same calculus does not necessarily hold for gender identity cases, given the recent penchant among some federal judges for finding a cause of action under Title VII for transgender plaintiffs, as in a recent Texas case.