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The Equal Employment Opportunity Commission has recently determined that suing employees who have filed a charge of discrimination with the EEOC, before the completion of the EEOC investigation, constitutes illegal retaliation against the employee for having exercised her rights under the federal anti-discrimination statutes. [FOOTNOTE 1] This arises from a cutting-edge issue in employment discrimination law, i.e., the recent efforts by employers to file reverse litigation lawsuits, or “SLAPP suits” (Strategic Lawsuit Against Public Participation), against their own employees. These SLAPP suits are filed solely in an attempt to preclude employees from filing their own charges of discrimination with the EEOC or from using the judicial system to enforce their rights under the anti-discrimination laws. The SLAPP suit phenomenon originated and is most frequently applied in land use and environmental disputes, where a developer or property owner files a defamation lawsuit against citizens who have publicly protested the developer’s intended use of the property or request for a zoning change. [FOOTNOTE 2] More recently, employers have filed or threatened to file lawsuits against employees who have notified their employer that they have filed a charge of discrimination with the EEOC. The employers have typically sought a declaratory judgment that their actions against the employee did not violate federal and state anti-discrimination laws, [FOOTNOTE 3]or have alleged that the employee has defamed her supervisor. [FOOTNOTE 4]This article argues that these SLAPP lawsuits constitute impermissible retaliation against employees for the exercise of their rights under the anti-discrimination laws. WHAT IS A SLAPP LAWSUIT? A SLAPP lawsuit has several characteristics: (1) the plaintiff (“SLAPPer”) is typically a large entity with deep pockets; (2) the defendant is typically a citizen or employee (“SLAPPee”) who has challenged the plaintiff’s conduct; and (3) the lawsuit is brought primarily to have a chilling effect by deterring the defendant and the public in general from challenging the plaintiff’s actions. In some cases, SLAPP suits go so far as to name the attorney for the employee or citizen as a co-defendant, for no reason other than that the attorney represented the employee or citizen. As one appellate court in California, in a widely-cited decision, concluded:
Thus, while SLAPP suits masquerade as ordinary lawsuits, the conceptual features which reveal them as SLAPPs are that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so. Because winning is not a SLAPP plaintiff’s primary motivation . . . the SLAPPer considers any damage or sanction award which the SLAPPee might eventually recover as merely a cost of doing business. By the time a SLAPP victim can win a “SLAPP-back” suit years later the SLAPP plaintiff will probably already have accomplished its underlying objective. [FOOTNOTE 5]

At least thirteen states have enacted statutes that allow the defendant in a SLAPP lawsuit to file a counterclaim or an expedited motion to dismiss, or to institute a separate proceeding against the plaintiff (the so-called “SLAPP-back lawsuit”) on the grounds that the SLAPP lawsuit constitutes illegal retaliation for having engaged in protected conduct. [FOOTNOTE 6]The 9th U.S. Circuit Court of Appeals recently held that a claim under a state SLAPP statute can be brought in federal court, as otherwise the SLAPPer would have an incentive to forum shop for a federal forum, to the disfavor of those intended to be protected by the statute. [FOOTNOTE 7] Some courts have recognized that reporting workplace discrimination or harassment to the appropriate authorities constitutes protected conduct under a state SLAPP statute, although holding a press conference in which the alleged misconduct is publicly presented may not constitute such protected conduct. [FOOTNOTE 8] However, an employee who alleges that her employer has filed a SLAPP suit is not limited to a cause of action under a state SLAPP statute, since the federal and state anti-discrimination laws typically prohibit retaliatory conduct against employees for having engaged in protected conduct, including the reporting of employment discrimination. [FOOTNOTE 9] THE MICROSTRATEGYSLAPP LAWSUIT An excellent example of a SLAPP lawsuit filed by an employer against an employee for having complained of discrimination is the ongoing litigation between MicroStrategy, an Internet start-up company in Virginia, and one of its employees, Betty Lauricia, the former Vice President for Corporate Development Operations at MicroStrategy. Lauricia filed a charge of discrimination with the EEOC in early 2000, in which she alleged that similarly-situated male vice presidents were granted vastly greater stock options. The day after MicroStrategy received this EEOC charge, MicroStrategy placed Lauricia on paid administrative leave; three days later, MicroStrategy filed a lawsuit in federal court against both Lauricia and her attorney (Claude D. Convisser), alleging that information about its employee compensation, including stock options, constituted trade secrets as well as privileged attorney-client information. MicroStrategy also alleged that the use of this information by Lauricia and her attorney (through her EEOC charge and, presumably, any future litigation) constituted theft of trade secrets and misuse of confidential attorney-client information, [FOOTNOTE 10]and that Lauricia had breached her fiduciary duty to her employer by using this information. [FOOTNOTE 11]The company then requested a declaratory judgment that MicroStrategy had not violated the anti-retaliation provisions of the Fair Labor Standards Act in its proposed termination of Lauricia. [FOOTNOTE 12] Needless to say, MicroStrategy’s lawsuit was filed well before the EEOC had completed its investigation of Lauricia’s charge, let alone before she could file a lawsuit in federal court. On May 2, 2000, the federal district court readily dismissed MicroStrategy’s lawsuit on the grounds that judicial intervention at this stage was entirely unwarranted:

There is good reason why federal courts have not accepted jurisdiction in employment disputes under the Declaratory Judgment Act as plaintiff would have us do. In effect, MicroStrategy is asking this court to place an imprimatur upon a proposed employment action. If we were to accept this role, a federal court would become a super-personnel advisor to wary employers. Moreover, by exercising jurisdiction over this complaint we would encourage pre-emptive strikes by employers against dissatisfied employees, potentially undercutting Congress’s very clear direction that such disputes be addressed through the administrative process. To take a step in this direction would be a step towards the involvement of federal courts in the workplace of unprecedented magnitude. We decline to impose such a role on the federal judiciary. [FOOTNOTE 13]

MicroStrategy then filed an unsuccessful emergency appeal with the 4th U.S. Circuit Court of Appeal. Undeterred, it promptly filed a parallel lawsuit in state court, requesting that the court issue a Writ of Possession requiring the local sheriff(s) “to seize any and all documents belonging to MicroStrategy and in possession of [Lauricia and Convisser]” and that an injunction be issued to prevent the defendants and all others (presumably including the EEOC) from making any further use of MicroStrategy’s documents. [FOOTNOTE 14]Surprisingly, the state court granted MicroStrategy’s request for this writ and imposed a gag order upon the parties. [FOOTNOTE 15] On May 11, 2000, the EEOC issued its probable cause determination, finding that MicroStrategy had illegally retaliated against Lauricia for having filed her charge of discrimination. The EEOC summarized the evidence and concluded that:

Based on the evidence, it is reasonable to conclude that Respondent [MicroStrategy] took adverse employment action against Charging Party [Lauricia] as a result of her participation in federally protected activity . . . . It is also reasonable to conclude that Respondent filed suit against Charging Party in retaliation for Charging Party’s participation in federally protected activity in an attempt to produce a chilling effect to deter future allegations of employment discrimination. [FOOTNOTE 16]

Lauricia, through counsel, then informed MicroStrategy that she intended to file, on June 16, 2000, a federal lawsuit for retaliation in violation of Title VII, the Age Discrimination in Employment Act, and the Fair Labor Standards Act. [FOOTNOTE 17] Once again, MicroStrategy jumped the gun by filing its own declaratory judgment lawsuit in federal court on June 15, 2000. [FOOTNOTE 18] As planned, Lauricia filed her lawsuit the following day. [FOOTNOTE 19]On August 4, 2000, on the same day that the federal judge ordered the parties to engage in conciliation efforts through the EEOC, MicroStrategy fired Lauricia. [FOOTNOTE 20]The two federal lawsuits were consolidated and the litigation remains ongoing in both state and federal courts. Most recently, the federal district court recognized that MicroStrategy’s litigation tactics constituted abusive litigation:

Thus, it appears that MicroStrategy has been remarkably aggressive in pursuing litigation against plaintiff . . . causing unnecessary delay and expense. Indicative of MicroStrategy’s aggressiveness is that it took the unusual step of naming plaintiff’s lawyer as a defendant in all three suits. Significantly, MicroStrategy’s vigorous pursuit of these [discovery] matters has caused unnecessary delay and expense . . . . For example, in response to notice by the plaintiff of her pending suit, MicroStrategy filed MicroStrategy IIIrather than make a timely demand for arbitration. By filing this action, MicroStrategy added additional expense and delayed resolution of this matter. [FOOTNOTE 21]

MicroStrategy’s litigation clearly satisfies the criteria for a SLAPP suit: an employer with deep pockets has filed not one but three lawsuits against an employee and her attorney for having filed an administrative charge of discrimination and for having notified the employer of her intent to file a federal lawsuit, and the lawsuits have had the effect of significantly increasing the costs to the employee of enforcing her own rights under the anti-discrimination statutes. SLAPP LAWSUITS: THE OUTLOOK The outlook is becoming increasingly favorable for employees who are faced with SLAPP lawsuits for having engaged in protected conduct. Not only may they seek relief under state statutory schemes, but also the EEOC and the courts are recognizing that filing a lawsuit against an employee who has alleged discrimination or harassment can constitute impermissible retaliatory conduct that is prohibited by the federal and state anti-discrimination statutes. What is needed are continued efforts to enact SLAPP statutes in those jurisdictions that currently lack these protections, and for attorneys who represent employees to litigate retaliation claims based upon SLAPP lawsuits, thereby obtaining judicial rulings in this critical area. This article is excerpted with permission from CCH’s Journal of Employment Discrimination Law, Fall 2000 Edition. Bernabei is a partner at the Washington, D.C. law firm, Bernabei & Katz. She represents plaintiffs in employment discrimination, civil rights, and whistleblower cases. She has published widely in the area of employment discrimination and is a frequent commentator for national news programs. Alan R. Kabat, an associate with Bernabei & Katz, assisted with the research and writing of this column. ::::FOOTNOTES:::: FN1EEOC Charge No. 100 AO 0459, Letter of Determination (May 11, 2000). FN2See, e.g., Wilcox v. Superior Ct. of L.A. County, 27 Cal. App. 4th 809, 815-17, 33 Cal. Rptr. 2d 446, 449-50 (Cal. Ct. App. 1994) (discussing history of SLAPP lawsuits). FN3See generally S. Siwolop, “Recourse or Retribution? Employers are Taking on Disgruntled Workers in Court,” N.Y. Times, June 7, 2000, at C1. FN4See generally J.A. Lukey & A.D. Glaser, “When Principles Collide: the Intersection of the Anti-SLAPP Statute, the Fair Employment Practices Act, and Defamation Law,” Boston Bar J., Nov.-Dec. 1999, at 14. FN5 Wilcox, 27 Cal. App. 4th at 816-17, 33 Cal. Rptr. 2d at 450 (internal citations omitted). FN6 LoBiondo v. Schwartz, 323 N.J. Super. 391, 420 n.8, 733 A.2d 516, 532 n.8 (N.J. Super. Ct. App. Div. 1999) (citing statutes from California, Delaware, Georgia, Indiana, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New York, Rhode Island, Tennessee and Washington). FN7 United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972-73 (9th Cir. 1999). FN8Compare O’Neil v. Gilvey, No. 95-06626-E, 1998 Mass. Super. LEXIS 578, at *9-10 (Mass. Super. Ct. Oct. 28, 1998) (“in reporting sexual harassment she was exercising her right” under the Massachusetts SLAPP statute) with Puccia v. Edwards, No. 98-00065, 1999 Mass. Super. LEXIS 253, at *14 n.2 (Mass. Super. Ct. Apr. 29, 1999) (suggesting, in dicta, that a “press conference about her discrimination claim” was probably not protected activity). See also Lukey & Glaser, supra note 5. FN9See, e.g., 42 U.S.C. � 2000e-3(a) (Title VII); 29 U.S.C. � 623(d) (Age Discrimination in Employment Act); 29 U.S.C. � 215(a)(3) (Fair Labor Standards Act). FN10 MicroStrategy, Inc. v. Convisser, C.A. No. 00-453, Complaint for Declaratory Relief, Theft of Trade Secrets and Breach of Fiduciary Duty (E.D. Va. Mar. 17, 2000), at �� 42-50. FN11Id., �� 51-56. FN12Id., �� 37-41. FN13 MicroStrategy, Inc. v. Convisser, C.A. No. 00-453-A, 2000 U.S. Dist. LEXIS 6094, at *14 (E.D. Va. May 2, 2000). FN14 MicroStrategy, Inc. v. Lauricia, Chancery No. 000520, Bill of Complaint (Va. Cir. Ct., City of Alexandria, Apr. 27, 2000), at 6, 7. FN15D.S. Hilzenrath, “MicroStrategy Hit by Bias Complaint; Discrimination, Overtime Abuse Alleged,” Wash. Post, May 6, 2000, at E1, E8. FN16EEOC Charge No. 100 AO 0459, Letter of Determination (May 11, 2000). FN17See Lauricia v. MicroStrategy, Inc., C.A. No. 00-990-A, 2000 U.S. Dist. LEXIS 13316, at *4, 83 Fair Empl. Prac. Cases (BNA) 1497 (E.D. Va. Sept. 13, 2000). FN18 MicroStrategy, Inc. v. Lauricia, C.A. No. 00-985, Complaint (E.D. Va. June 15, 2000). FN19 Lauricia v. MicroStrategy, Inc., C.A. No. 00-990, Complaint (E.D. Va. June 16, 2000). FN20D.S. Hilzenrath, “Woman Wins EEOC Ruling, Loses MicroStrategy Job,” Wash. Post, Aug. 17, 2000, at E2. FN21 Lauricia, 2000 U.S. Dist. LEXIS 13316, at *10 & n.6; *15, 83 Fair Empl. Prac. Cases (BNA) 1497. � 2000, CCH INCORPORATED. All Rights Reserved.

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