How many times do you have to win?

That’s a question that employers may ask themselves when dealing with employment cases because the fact is, a enterprising litigant can make things quite expensive on the thinnest of facts. 

Zombie Lawsuits?

Indeed, employers may be wondering if these cases are like zombies that rise up from the dead to keep going and going.  (Indeed, zombie employees is an another issue entirely…) Sure, you can eventually put an end to them, but at what cost?

Case in point? Just check out the procedural history from a new Connecticut Appellate Court case that will be released next week.  It’s the case that never dies.

  • On June 13, 2003, the Plaintiff was hired.  Easy enough.
  • Less than a month into her job, on July 9, 2003, she injured her back while carrying a child as part of her regular duties.  She has restrictions for a period of time and resumes working without restrictions on December 11, 2003.
  • On February 13, 2004, the Plaintiff filed a complaint with the CHRO, alleging workers compensation retaliation and race and disability discrimination.  (For what adverse employment action, the opinion never says.)
  • On April 28, 2004, Plaintiff reinjured her back while carrying a child. She eventually is placed on light duty for various periods as she also undergoes surgeries over the next 18 months.
  • On October 6, 2005, the CHRO administratively dismissed her complaint.
  • On January 9, 2006, the plaintiff’s doctor placed permanent work restrictions on her ability to work and the employer determined she could no longer return to work as a social worker. With no alternate positions available, she is terminated from state service.

With me so far? But this is where the fun for the employer really begins. Because over the next 6 years, it has had to defend itself from claims from this employee. 

  • On April 26, 2006, the plaintiff filed an action in state court alleging race discrimination and workers compensation retaliation.  That action was removed to federal court. 
  • The employer filed a motion for summary judgment on August 15, 2007. But two weeks later, the plaintiff filed a motion to amend her complaint to include claims of retaliation and disability discrimination. Ultimately, the court denied the leave to amend the complaint and granted the employer’s motion for summary judgment.
  • The plaintiff appealled to the U.S. Court of Appeals which affirmed the decision on May 15, 2009.

Case closed? Nope, this just starts yet another chapter. Because on September 10, 2009, she filed a new state court complaint with the same underlying facts alleging disability discrimination and retaliation.  The employer sought to dismiss that suit; the superior court granted that motion. 

Then the plaintiff appealed to the Connecticut Appellate Court on December 10, 2010.  Ultimately, this court ruled that the claims are barred by a statute of limitations but not until another 18 months of litigation ensued.  (No word yet on whether plaintiff will appeal this decision to the Connecticut Supreme Court.)

What’s the lesson for employers? Employment cases — even the ones that you deem frivolous — can be (and perhaps will be) expensive.  While it is frustrating and seemingly unfair to have to offer money to settle such cases early on, it can be the wise business decision to do so. 

In the above case, the state of Connecticut obviously has the resources to defend itself against 8+ years of litigation.  But do you?

There may be 10 different ways to terminate a zombie, but for employment claims that look like they may turn into zombies, the settlement may be the easiest route.