Sending Sexual Text Messages to a Co-Worker

[arrowlauncherdj]

I hear ya ESteele. Our insurance company lawyer said that if it goes to EEOC it may get bogged down for a year or more before they render an answer, or act as mediator, etc... I just didnt want it to drag out that long. The latest lawyer letter said they were preparing to file with the EEOC per the time limitations on doing so were coming soon, though I dont know anything about deadlines and the EEOC. The insurance company is acting like they believe $25K would likely make it go away and said that in an email to us. I was like heck no... I'd fight to my last breath for that kind of money.

If we did the 10K, I'd end up paying about 3k out of pocket myself for legal expense... I want to do what you suggest and the boss kinda acts like that as well, saying if it were him, he'd take his chances, but it is me and my reputation on the line here. I will end up paying for it one way or another, as that is how a buy out works... which I am doing a sweat equity buy out right now. In other words, any money he puts out for me will have to come out of the buy in. I want to do this as painless as possible, but my instinct says hell no, and wanna fight. Heck even her sister came by the office the other day and told the boss the family thought she was doing wrong by us. I am frustrated.

[ESteele]

Ask the company lawyer and/or the insurance counsel how the purportedly aggrieved employer could possibly overcome the “Farragher- Ellerth” reporting requirements when she undeniably did not complain to anyone in management about the alleged harassment. They will likely tell you she cannot. Consequently, why pay for a bogus claim which on its face the putative complainant cannot conceptually win?

The fact the case may linger at the EEOC should not present a problem. For the most part, the company’s lawyer has to file a response to her administrative charge of discrimination, attend mediation, and respond to the agency’s stock interrogatories and request for documents. That is pretty much it. He or she does not have to invest an inordinate number of hours to accomplish the foregoing. Whether the EEOC dismisses her complaint in two months or two years does not significantly alter the amount of time the company attorney has to expend here.

As stated above, she cannot overcome the Farragher-Ellerth hurdle. Her lawyer probably knows this. Apparently, the employee and counsel are banking company management and your counsel do not. (And, of course, she would have enormous difficulty overcoming the several other, previously discussed factual headwinds, e.g., her numerous text messages to you, working against her.)

Do you play poker or blackjack? They are bluffing! The employee and her lawyer are not holding any winning cards. They cannot possibly win this hand UNLESS you fold!

Do not pay her a single solitary shiny dime! You will likely regret it. If you do pay, they will in all probability laugh at you all the way to the bank! Do not let them laugh at you. Do not be frustrated.

In the immortal words of Al Davis, “Just win, baby!” Let them take their best shot. You have the winning hand IF you play it.

[arrowlauncherdj]

I like your style ESteele. I did talk to an lawyer buddy of mine this afternoon, and he said if he knew someone had sent that many text and asked him to represent her, he would not even take her case, much less take anything to court. He also felt that the EEOC would just as likely dismiss everything as issue any right to sue documents or other. He felt that management didnt even technically have to intervene due to me stopping on my own accord, though it was good that they did and it is on record.

He said the same thing you did with regard to settlement, and in fact laughed out loud at their demand, saying it was obvously a huge number to scare me into settling for something. I will sleep on it and likely change my mind tomorrow as I am leaning toward telling them to go pound sand as my boss and you put it earlier. It is to the point now where fear or worry are being overcome by a near overwhelming urge to fight it at every turn.

Thanks again for your input!

[ESteele]

You are welcome. You lawyer friend appears spot on. Save your money! Call their bluff! Additionally, irrespective of what you decide, please keep us informed.

BTW, when did you send your last text? Based on your earlier postings, it appears you stopped texting her sometime in May. If this is correct, the 180 day limitations period on her filing a charge would appear to expire sometime in November.

The various limitations periods for Title VII and other anti-discrimination statutes are unduly complex. While she and her counsel will probably file before this deadline, it is entirely possible they could miss the deadline. In addition to all of the other considerations weighing against settling with her, you definitely want to count the days from the date of your last text.

[arrowlauncherdj]

It actually was June 29th, but she went to management July 15th, over 2 wks after I stopped. Thanks for the info.

[arrowlauncherdj]

Ok, new letter from her lawyer. Despite your advice ESteele, all parties on our side wanted to attempt an agreement, of $3k. Her lawyer says no and countered with $200k, saying her only alternatives were to terminate employment or continue to deal with my "advances" per his letter. Our lawyer pointed out the number of text she sent me, and he said they were only responses to me again, and lacking in substance. I personally think the huge volume and the fact that it is 50/50 on the number has him a bit worried even though I cannot produce the actual texts in written form... we still have the records showing text conversation and it wasnt one sided by any stretch. In fact several text, she would text me two or more at once before I would have a response. But he is playing tough in the letter about it.

He said he still hasnt filed with the EEOC as of yet but will shortly if her demands arent met basically. He also states I continued to send text again after I was reprimanded, which is flat out impossible as we have cell records showing that is bunk, again the June 29 last text and the July 15 reprimand, which is documented and in my personnel file. I dont know where he is getting that info as we have records well into August after she quit showing no further texts, and I even deleted her from my phone July 15th, so I am telling the truth there for sure.

I sent back to the boss and lawyer, as the boss said it was my call what I wanted to do... to let her file with the EEOC, I will negotiate no further at this point. The lawyer is betting on the fact that it may cause family problems with me, and actually put that in his last letter, so it is essentially blackmail. At this point, her demands are so absurd that I will take my chances with the EEOC.

Input...?

[ESteele]

If you can conclusively establish that you did not text her or otherwise communicate with her in an untoward manner after she complained to management, then her potential case is dead in the water. The complainant cannot meet the minimum requirements set forth in the Faragher/Ellerth decisions to proceed.

Tell the complainant’s attorney to go pound sand! Pay your attorney to beat back her administrative charge. (If necessary, your counsel can ask the EEOC to subpoena the actual text messages – not the record of the transmissions – from the phone company.) Her complaint cannot overcome Faragher/Ellerth.

If your side chooses to negotiate further, then why not ask her attorney to produce proof (e.g., her phone records) that you continued to text her after she complained? The absence of records will confirm that no further text communication occurred after she complained. While her counsel could spin an alternative tale (e.g., you harassed her face-to-face after she complained), he may actually realize at that point his case has little or no chance of going forward since the objective evidence indicates no further possibly harassing conduct occurred after she lodged her internal complaint with management.

FWIW, I would not negotiate further with her attorney. Anyone who seriously believes his or her client’s case is arguably worth $250K in an initial settlement offer does not drop subsequently down the demand to $200K in response to a $3K counteroffer. This only tells me they would likely settle for something in the $15K range. If it were me, I would rather pay $15K to my attorney then give them a dime. They are not negotiating. They are grifting!

As stated earlier, at best her counsel is playing poker. Your side needs to make them show their cards.

[davidmcbeth3]

Maybe playing poker but it will settle for 40-50K - just due to the cost of litigating it would be the same. We'll see, just a guess.

[arrowlauncherdj]

I agree, and so did our attorney on the amount they would 'likely' settle for. But it is not worth it to me to keep up this game. Thanks for your input again! I'll keep you posted on any new events. On a side note, I was almost tempted to tell them to make a counter offer just to see if we could push them to the deadline for the EEOC, but I doubt that would work as her lawyer seems to have done his homework on the 6 month limit. But to be honest, the mental anguish is not worth it on my end. If it takes forever at the EEOC I really dont care, the break would actually be refreshing.

if the EEOC issues a Dismissal and notice of rights letter, which to me seems the way it should go after what we submit to them with regard to timelines and phone records... what is the likelihood that they will file anyway on their own in fed court, and how much will the dismissal letter help me if that comes about??

[ESteele]

There is no absolutely reason to settle for $15K, much less for $40K or more! Her case is frivolous!

There is no way the company attorney should legitimately charge $40K or more for a case which will not in all likelihood proceed beyond the EEOC. (Again, the complainant cannot overcome the Faragher/Ellerth card.) If your employer seeks to keep costs at a bare minimum, the company attorney should devote the largest portion of his or her time preparing a detailed response to her charge of discrimination. The drafting of the response should certainly take eight hours or less. Additional communication with EEOC staffers should involve four hours or less.

BTW, do not agree to mediation in this instance. This would needlessly involve another 6 to 8 hours of attorney time. If the complainant’s attorney wants to make a realistic settlement proposal, e.g., $10K, the attorneys for both sides can negotiate further over the phone and/or in writing. Such direct negotiations should involve a total of 4 or fewer hours.

Even assuming the company is paying its counsel $400/hour, he or she should be able to succeed in having this case “die on the vine” at the EEOC at a conservatively estimated cost of $6500 or less.