Representing Plaintiffs in Title VII Actions.

Anyone who has represented the victims of discrimination or wrongful discharge in federal court knows what a cold, bleak, and unreceptive environment it can be. Kent Spriggs, who has been doing this for 27 years in the South, presents a warm, friendly, and reassuring voice to help us cope with that environment. His two-volume work is loaded with insight, encouragement, intelligent practice pointers, cogent suggestions, and useful quotes and citations. When Kent Spriggs speaks, every one of us should listen.

These volumes, unlike most of the books and treatises currently in our legal libraries, are neither openly defense-oriented nor defense-oriented in "neutral" disguise. This is a work by a plaintiffs' civil rights lawyer, for plaintiffs' civil rights lawyers representing clients in court. The logic is so keen, the points so well founded, and the material so well developed, no lawyer should be embarrassed quoting Spriggs directly in briefs and motions.

Consider the author's treatment of the "after-acquired evidence" doctrine. This is the most dangerous threat to civil rights enforcement in the federal courts today. The doctrine allows a defendant employer to either limit its damages exposure or avoid liability altogether, even in the most outrageous case of discrimination.

The employer does this in one of two ways: by either developing evidence that the plaintiff misrepresented something on his or her resume when first hired that would have prevented the hiring, or by digging up evidence of misconduct that the employer now claims would have justified the plaintiff's termination before the discriminatory discharge occurred. The employer then moves for summary judgment based on this after-acquired evidence. Some courts have been granting these motions in whole or in part.

The doctrine avoids dealing with the employer's discrimination, as the law intended. Instead, the employer uses the discovery process to subject the plaintiff's life to the most minute scrutiny, looking for any sign of resume puffing or other misstep by the plaintiff while still employed. Increasingly, plaintiffs' counsel in these cases are seeing their cases dismissed without any attempt by the court to address the merits.

In one section of the book, Spriggs addresses this issue by first citing the circuits that apply the doctrine in its most extreme form--for example, by dismissing the case altogether. He then reminds us of the many ways to defeat the doctrine. For example, by arguing that (1) the employer must prove that the evidence is of misconduct that would have justified the firing before the discrimination occurred, (2) the employer truly did not know about the employee's conduct before the discharge, (3) the employee's misrepresentation of his or her conduct or qualifications was material, (4) the employer would never have learned of the evidence but for the suit, and (5) the employer relied on it to its injury.

Challenging the doctrine's very logic, Spriggs notes that as "serious as the violation of a workplace rule is, it is not as serious as a violation of a federal statute [Title VII]. The expansive view of the doctrine reverses this order of gravity."

Spriggs intends the many chapters on statistical proof, both in class actions and in suits representing an individual plaintiff, to be the centerpiece of his work. "It is a major premise of this book," he writes, "that it is hard to over-estimate the value of statistical proof in discrimination cases." In chapter after chapter, Spriggs suggests how to gather and present statistical evidence with and without experts.

He reminds us how to use statistics to shift the burden of proof to defendants, bolster evidence that the action taken against the plaintiff was part of a pattern, and ward off arguments that the plaintiff's case isn't really comparable to those in which whites or males were treated more favorably than others. He lauds the use of statistics in answering motions for summary judgment and in attacking evidence of "plaintiff bashing," one of the most common defenses in these cases.

The section on summary judgments reviews the problems that have developed since the so-called Celotex trilogy of cases in 1986. (Celotex v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Electric Industries Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986).) These cases changed the standards by which federal courts weigh motions to dismiss, making it easier to have them granted in federal courts than in most state courts. The problems created by the Celotex cases were compounded by the appointment during the late 1980s of federal judges who are insensitive or hostile to victims of wrongful discharge and civil rights violations.

Citing numerous cases and useful articles, Spriggs suggests that lawyers turn the Celotex holdings to plaintiffs' advantage. For example, they can stress that summary judgment is disfavored where an intent to discriminate is an issue, use evidence that the discrimination was part of a pattern or practice, and focus the court's attention on the relative proof burdens in a Title VII case.

When it comes to discussing the defendant's proof burden, Spriggs reveals just how seasoned a litigator he is.

Defendants do not like to articulate a single nondiscriminatory reason because they like to "hedge their bets." If the plaintiff comes up with devastating evidence against the employer's defense, defendants like to be free to think up another reason to justify their action ... if the reason initially advanced is not cast in stone.... Most articulated reasons are, of course, lies. Or, to put it more charitably, like a political administration, defendants often launch a trial balloon to "see how it flies," and hastily withdraw it if it "gets shot down."

The sections on discovery are also instructive. Spriggs notes that responses to the first wave of discovery frequently reveal that an employer is "stonewalling." Spriggs writes, "In the first round the defendant may in part be testing to see how disrespectful it can be without being held accountable." (I've long suspected opposing counsel of having motives like this, but only recently did a friendly defense attorney reveal that her firm's practice was always to object on the first round, providing the requested information only when pushed.)

Spriggs suggests practical ways of pushing. "If resolution is not shown on the part of plaintiff's counsel at the beginning, things will probably get worse, not better. There's nothing wrong with starting the process by calling opposing counsel on the phone to express one's 'disappointment,'" he writes.

There is something to learn from Kent Spriggs in virtually every section of his book. For example, I came across a note explaining that although it is not a violation of Title VII to fail to create an affirmative action plan, failure to follow one once adopted is evidence of an intent to discriminate. I am currently handling a case where a jury instruction on this point may be quite helpful.

Those who practice Title VII or discrimination law of any kind should buy this book. It can be a helpful and comforting resource. Move over Schlei and Grossman; there's a new employment discrimination "bible" on the shelf.