The process of suing your employer for wrongful termination

Assuming you have a case of wrongful termination that will be pursued against your former employer, the following is a brief explanation of the process to pursue your claims.  This assumes you have a case of wrongful termination and, for simplicity, let’s assume it’s a claim of discrimination or retaliation under either Title VII of the Civil Rights Act of 1964 (which prevents discrimination on the basis of race, sex, religion, color, national origin, or disability), the Age Discrimination in Employment Act, the Americans with Disabilities Act, or Chapter 21 of the Texas Labor Code (which is the state-law equivalent of the federal statutes just referenced).  There are exceptions and caveats to the following explanation, but this is the general process for most cases.  This also assumes you have hired an attorney who will be handling your case .

EEOC administrative process

In most situations, before you can file a lawsuit, the first step is to file a “charge of discrimination” with the Equal Employment Opportunity Commission (“EEOC”).  It is highly recommended that you first consult with an attorney before filing an EEOC charge, and have an attorney handle this process, as this could set the stage of what ultimately happens during the litigation process and trial.  When you file the charge with the EEOC, it is also automatically filed with the Texas Workforce Commission (“TWC”) (which would allow you to pursue claims under Texas state law).  The deadline to file the charge with the EEOC is 300 days from when you become aware of the adverse action (which is usually when you are informed that you are being fired) occurs; however, it is generally recommended to file sooner rather than later.  Also, the deadline to file with the TWC is 180 days for most claims.  So if you file a charge after 180 days, but before 300 days, you may not be able to pursue claims under state law, but you could pursue claims under federal law.  Pros/cons about pursuing claims under federal or state law (or both) may vary depending on the facts of your specific case and should be discussed with your attorney.

The EEOC will then begin an “investigation.” (The TWC will do nothing.)  This usually involves the EEOC sending a copy of your charge of discrimination to your former employer and requesting a written response (called a “position statement”) in about a month.  The employer can then delay a response – or not respond at all – until the EEOC realizes, after several months, that it had not received a response, in which case it will “remind” the employer to respond.  The EEOC deadlines it imposes on employers are usually meaningless, and most employers know that.  Nevertheless, eventually the EEOC will receive a response from the employer, often providing very little and biased information.  The EEOC investigator will then send a copy of the response to you (or your attorney) and ask for a rebuttal on a short time-frame.  The EEOC investigator may also request documents and information that neither you nor your attorney would have and are in possession of the employer.  By now, about six months have gone by, sometimes more.  The point is that, although you are required to “exhaust” your “administrative remedies” by going through the EEOC investigation process, in over 95% of such situations, the EEOC will do little to nothing.  EEOC investigation files can easily sit for one or two years without any real substantive investigation.  Remember that EEOC investigators are government employees with ultimate job security.  Fortunately, you or your attorney can request a “right-to-sue” notice at any time (usually wait six months though or until the employer submits its response), and the EEOC will (gladly) close its file and give you the go-ahead to pursue a private claim against your employer.  Otherwise, at some point the EEOC will eventually issue a determination and then close its file and issue a right-to-sue notice.

In very rare situations, the EEOC may actually be interested in your claims and want to take action against the employer on behalf of the government.  If that occurs, discuss various options with your attorney.  The rest of this explanation assumes the EEOC has closed its filed and issued a right-to-sue notice.

Side-note: The EEOC will always issue a right-to-sue notice, even if you have no realistic claim. Employment attorneys often receive inquiries from potential clients who are excited that the EEOC has given them the “right” to sue their employer.  It does not necessarily mean you have a good case, or even a viable case.  In fact, if the EEOC issues a right-to-sue notice right after you file your charge of discrimination – and without asking the employer to respond – that means the EEOC likely found no viable claim and did not even want to bother your former employer with submitting a response.  Therefore, it is highly recommended you seek legal advice prior to going to the EEOC.

Filing a lawsuit or arbitration

Once you get a right-to-sue notice from the EEOC, you will have 90 days to file a lawsuit or initiate an arbitration under federal laws (60 days under Texas state law).  In most situations, your options are to file a lawsuit in state court, federal court, or private arbitration.  You may be forced into private arbitration if you had agreed to waive your right to filing a lawsuit when you were employed.  (This may have happened on your first day of employment when you signed a bunch of HR documents without reading them.).  The arbitration process is private (not public), where usually a single arbitrator will essentially be both the judge and jury of your case.  It will be a more streamlined process, with limited discovery.

Side-note: Arbitration is generally considered to be more favorable for employers than employees.  In order for most arbitration agreements to be enforceable, the employer must pay for the arbitrator.  This creates an inherent legalized conflict, where the arbitrator may often be biased in favor of the employer.  For example, if the arbitrator rules in your favor in an arbitration, what are the chances that that employer or its lawyers will want to use the same arbitrator again?  There is much debate and potential legislation concerning mandatory arbitration in employment cases.

The rest of this explanation assumes your case is proceeding in state or federal court, with a potential jury trial eventually expected.

Your lawyer will prepare a petition or complaint and file it in court.  In some situations you may have a choice whether to proceed in state or federal court, and in other situations you may not.  The differences, including pros/cons, in proceeding in state or federal court should be discussed with your attorney, as that would impact the value of your case and also your expectations.  Once the lawsuit is filed in court, you will be randomly assigned to a judge.  The judge you get, especially in federal court, could have a significant impact on the ultimate outcome of your case.  A citation will be obtained from the court, and then the lawsuit and citation would need to be properly served on the employer’s “registered agent.”  After the employer has been served, it will have about three weeks to submit a response (or answer) to the lawsuit, but it can easily request and obtain additional time to respond.  The answer could be a simple denial of the allegations, or it could be an attempt to dismiss the lawsuit possibly due to some technicality, as opposed to the merits of your claims.  Assuming your case proceeds to discovery (which would usually occur), the judge will eventually issue a schedule (or Docket Control Order) setting a timeline with deadlines for certain events for the case, and giving a trial setting.  The initial trial setting would usually be set for about 15-18 months after the lawsuit is filed.

Discovery

You will then begin about a 9-10 month period of engaging in discovery.  Discovery is essentially the process of obtaining information and documents from the employer/defendant, as well as the employer obtaining information and documents from you/plaintiff.  The parties’ attorneys will usually first send written discovery requests seeking information and documents that may be relevant to the parties’ claims and defenses.  This would be to the parties themselves and to potential witnesses.  Depositions will also be taken.  Depositions are where witnesses (including you and representatives of the employer) will be questioned by the opposing party’s attorney, under oath.  A deposition is very important and carries the same implications as if testifying in court in front of a judge or jury.

Side-note: During the discovery process, it is not uncommon for the employer/defendant to try to limit the information and documents it produces.  Disputes often arise if it is not complying with basic rules, which may require intervention from the judge.  This often results in additional delays though… which is usually what the employer prefers. 

As discovery proceeds, your attorney will likely obtain significant information that will allow him/her to better evaluate the strengths and weaknesses of your case.  This would include evaluating witness testimony (in depositions or informal discussions) and documents obtained from the employer.

Summary judgment

Towards the end of the discovery period, the employer will usually file what is known as a “motion for summary judgment” to try to dismiss your case.  This is a common tactic for most employers/defendants.  The essential argument to the judge is that it should win without a trial, (your case should not go to a jury) because it believes there are no factual disputes such that a jury could possibly find in your favor.  This is a heavily disputed process, and you will likely need to work with your attorney as he/she fights such an attempt.

Side-note: The summary judgment process is likely one of the biggest issues when deciding whether to proceed in state court or federal court.  Federal judges in the Fifth Circuit (covering Texas, Mississippi, and Louisiana) are more likely to grant summary judgments in favor of the employer, thus dismissing the case outright (and even if not appropriate), when compared to Texas state court trial judges.  If this happens, your attorney may decide to appeal to the Fifth Circuit, with the goal of reversing the trial court’s decision and allowing you to proceed to trial.  This appeal process may take about 18-24 months.

Trial

Assuming your claims are not dismissed at summary judgment (or if you have multiple claims, at least one of your claims is not dismissed), you will then get to proceed to a jury trial.  The trial preparation process and trial itself requires extensive work by your attorney and you.  You will need to work closely with your attorney, attend meetings, prepare to testify, and discuss strategy with him/her.  The trial itself – which includes picking the jury, presenting evidence, making legal arguments regarding evidentiary issues, and generally being prepared for anything and everything – may take anywhere from a few days to a couple weeks, depending on the issues in your particular case and the amount of evidence.  At the conclusion of the trial, the jury is presented with a “jury charge” or instructions to the jury and questions for it to answer in order to determine the outcome of the case.  The jury charge is one of the most important things the jury will hear, and will guide how they make their decisions.  In a simple discrimination case, a jury charge could be 30 pages long and include 4-6 questions for the jury to answer, including liability and damages.

In most situations, in state court 10 out of 12 jurors need to agree on answers in order for a verdict to be reached.  In federal court, a unanimous jury verdict is usually needed.  The number of jurors in federal court will be between 6 and 12, and depends on the judge you are assigned.  If a verdict cannot be reached after deliberating, the judge can declare a mistrial, in which case you will have to do the trial again at another time.

Post-trial

After the jury issues a verdict, the parties will then submit briefing to the court to enter a final judgment, based on the jury’s verdict.  After a judgment is issued, the losing party will then have the right to file an appeal to challenge the verdict.

What about settlement?

Most civil cases, including employment cases, settle at some point in the process.  This could happen at any time shortly after the employee is fired (assuming a “demand” was sent to the employer by your attorney), during the EEOC investigation process, during or shortly after the discovery stage of litigation, before trial, during trial, after trial, or even during an appeal.  Many judges require the parties to formally mediate in order to try to settle the case.  See here for a discussion on potential damages in a wrongful termination case and how to decide what your case should settle for.

Conclusion

Unlike what you may see on TV or in the movies, the litigation process in an employment case is lengthy and time-consuming.  When your lawyer is deciding whether to take your case, he/she is often considering whether to be willing to possibly spend 300-400 hours of time over the next 2-3 years, including whether he/she will be comfortable working with you during that process, regardless of how good your case may appear on paper.  It is important to listen to your attorney, not make assumptions, and ask questions if you’re not sure about something.