Think you have a discrimination claim? Here are a few things to consider.




The 10th Circuit recently made a ruling on a age and reverse discrimination claim in Palzer v. Coxcom, LLC. Palzer made claims that his supervisor was purposefully hiring individuals from other minorities and claimed his supervisor said, “We have enough white men in the group. We need to hire diversity.” His supervisor denied the remark but did admit that she did want diversity. Palzer was ultimately terminated a year after the situation based on his failure to meet his sales quota. Mr. Palzer brought civil rights claims for race discrimination, age discrimination, retaliatory discharge and breach of contract. What the court focused on with the facts was Mr. Palzer’s work performance and his failure to meet his sales quota.


What you have to prove in a discrimination case


In a discrimination case, the burden is on the Plaintiff, the employee or the person brining suit, to prove evidence of intentional discrimination. In most all discrimination cases, there is no smoking gun. Most employers are smart enough not to say, “we are terminating because of your race and your age.” This is what makes these cases hard. An employee has to prove discrimination through circumstantial evidence to show a discriminatory intent. If the employee can bring evidence to show discrimination, then the burden shifts to the employer to offer a legitimate nondiscriminatory reason for its employment decision.


From my experience, employers always find some sort of basis as to why that person was fired. Sometimes attorneys try to claim that the person was at-will so they could be terminated for no reason, however, despite the at-will rule, there is always a reason to terminate someone even if they don’t have to say the reason. It is illegal to terminate someone based on a protected class so if they say it wasn’t for any reason, that’s a weak argument to claim it was a legitimate non-discriminatory reason.


If the company can show a legitimate non-discriminatory reason, then the burden again shifts back to the Plaintiff to show that the decision to terminate was based on pretextual discriminatory reasons. Pretext is established by showing that its actions for terminating an individual was incoherent, weak, inconsistent or contradictory where a rational factfinder could conclude they were unworthy of belief. So if the reason for termination is weak, like he sneezed the wrong way, that could be pretextual. Or if there are inconsistencies.


This can be shown by showing that the basis for termination was not supported by fact such as weak sales, can be shown by showing the sales were actually not weak. This can also be shown with other employees doing the same things and the failure for the company to terminate the other individuals on the same issues. Or if the company tells the employee one basis for termination and then comes up with another basis along the way, that can be pretextual as well. Companies know they have to come up with a non-discriminatory reason, and sometimes they can tie themselves into knots when they try to throw the sink at someone and come up with a laundry list on why they were terminated.


Sometimes, the timing as well might not add up. If someone makes a complaint about discrimination and they are terminated the week or day after, it raises questions as to why terminate that person at that time. This can be a tricky situation though because sometimes an employee may complain about discrimination after a poor performance review and ultimately get terminated after the complaint. One could claim if they weren’t terminated and only given a poor performance review they weren’t planning on terminating that person and the decision was made only after the complaint was made. Also, again, the performance review would have to be scrutinized on if the poor performance was justified based on actual performance and perhaps performance of other employees.


In the case the 10th circuit decided, they ultimately concluded that his track record on his quota for sales was not on par and the basis to terminate him based on his sales record was a legitimate non-discriminatory reason. This should be a reminder on how difficult these cases can be to prove. If someone had poor performance and was terminated, it is an uphill battle to show the termination was based on discriminatory reasons instead of poor performance. Proving a case through circumstantial evidence is also hard and the company will always try and poke holes into the circumstantial evidence and always lean on the basis for termination.

These cases can take a long time to resolve.


How long a case can take


You first have to file something with the Utah Labor Division or the Federal EEOC (Equal Opportunity Commission) before you can sue in Federal Court. It must be filed within 180 days of the last discriminatory act with Utah and 300 days with the Federal. They conduct an investigation. Both agencies are so overloaded the investigation might take over a year. You can also obtain a notice of right to sue after 6 months. Thereafter, you can sue in federal court. The other side may file a motion to dismiss your complaint. This alone could take up to 9 months to resolve. If you survive the motion, then you go into discovery.


Both sides exchange documents. Both sides are allowed to ask questions or ask the other side to admit facts. Both sides are allowed to sit down with witnesses to the case and ask them questions under oath, known as a deposition to get a better view of what testimony would look like in court. This process can take well over a year. There is also expert discovery, where experts are allowed to review the discovery evidence and make legal opinions on the evidence which can be an additional 6 months. Thereafter, based on the evidence, one side may file a motion for summary judgment, meaning, they are telling the court to rule in their favor because there are facts that are not in dispute and the evidence is so favorable that it is a “slam dunk” to where no trial is needed.


The briefing alone is about two to three months. Thereafter, you wait to hear from the court. The court may want a hearing to discuss the issues more in-depth. Or the court may issue an opinion without oral argument. It can take over 6 months to hear back from the court. If you lose on Summary Judgment or the other side does not prevail on Summary judgment, then the case goes to trial and it would take another 6 months to get the case in trial.


Overall, you could potentially be looking at 4.5 years until a case is resolved if you hit all the snags with a motion to dismiss, a motion for summary judgment and then went to trial. Also, the 10th circuit case decided had facts that occurred in 2013. The 10th Circuit just ruled on its appeal from a motion for Summary Judgment so it took seven years to resolve. To say the least, these cases are a big investment for attorneys so it is always good to have your case reviewed by our firm to see if it is a case worth pursuing or not.


I have had situations where the case has dragged on for so long where clients just want to dismiss and move. This puts legal counsel in a hard situation in the investment they have made in the case. It also stresses out clients as the case is always on the back of their mind. Also, some clients may rely on the award as somehow a compensation that will make them wealthy or a means of income. This is never a good mind-set.


What damages look like


Even if your case is a slam-dunk case where you have the smoking gun ... meaning essentially your supervisor told you you were being terminated because of your race or any other protected class and you have it recorded and on video and it was made in front of 6 other employees, the other thing to consider is if you won, how much could you potentially receive in damages?


Also, individuals should know that there is a cap on pain and suffering damages if the case involves some kind of emotional trauma from work-site harassment. These damages are capped at a maximum of $300,000.00 depending on the size of the company. If it is a smaller company, the damages will be less. Also, even though this is the cap, this is not a guarantee you will be awarded that much in damages and could be much less. You also may need an expert or a medical physician to prove your emotional trauma and that it was caused from actions at work. There is no clear-cut formula for emotional distress damages so it is hard to gauge what it could be. It is a matter of convincing a jury that your damages are attached to a dollar amount, usually it is through showing them how much it should be a day from the past and into the future.


As to damages for lost wages and benefits, it is important to know that after your termination, if it involves termination, you must "mitigate your damages." Meaning, you must make a good-faith attempt to find employment afterwards. You have to show what jobs you applied to afterwards. If you can't show this, your damages will stop at the time you failed to mitigate. Also, when you find new employment your damages changes.


If you start making $1 an hour less, your damages will be $1 an hour less at that point moving forward. If you start making $1 more, you won't have any future damages. That is also an important thing to consider. If there isn't severe emotional trauma and you find a job that makes more in a week it may not be worth it to pursue a case unless you think you have a higher point to prove and want to send the company a message.


You can also potentially recover punitive damages. However, I always tell individuals not to bank on, focus on or calculate in punitive damages. Punitive damages is a penalty fee to the company to punish them for malicious wrongdoing in what they did and to deter future violations. The maximum one can recover in punitive is a maximum of double the amount of actual damages. This also is no guarantee it will be that amount and again would depend on the size of the company. There is also no guarantee a judge will award punitive damages.


Also, if the company wins on Summary Judgment like what happened in the 10th Circuit case, the court could award litigation fees to the company you would have to pay such as the filing fee, deposition fees and even expert fees. The statute in civil rights claims also allows the award of attorney fees to the prevailing party so you may also be on the hook for attorney fees which can be a huge stinger.


One thing attorneys do is essentially take off a social load from someone else. What is their problem is now your attorney’s problem. At that point, all you have to do is be a witness. You just have to tell your story on what happened like all the other witnesses in the case. It is best to move on with your life and focus on the future, your new job or hobbies and activities instead of festering over the case all the time and allow your attorney to do so, especially with the high amount of time it will most-likely take to resolve your case.


The full text of the 10th Circuit opinion is below:


Raymond Montoya appeals from the district court’s order granting summary judgment in favor of his former employer, Jacobs Technology, Inc. (Jacobs), on his claim for age discrimination. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. * After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.