OT - questions for any MGoLawyers
My wife retired from the fire department with 33 years of service in May of 2019. She may have been one of the longest serving females in the firefighting combat division in the nation, but the chiefs didn't even acknowledge her retirement. During her last year, one of the chiefs made inappropriate comments to her on a scene in front of civilians as well as other firefighters. After waiting for several months, she finally filed a complaint with Metro Human Relations. This chief has a history of negative, insulting behavior. Metro was supposed to complete their investigation within 6 months. It's going on 2 years now. Also, their interviews of the witnesses took place right outside of said chief's office instead of on some neutral territory. Everything about their performance feels shady. They have yet to respond to the notice of right to sue. And now, that same chief has sent (through a lawyer) a letter threatening to sue her for defamation of character and asking for $350,000. (She was interviewed by the local newspaper after she retired and didn't hold back about the toxic work environment). It feels like a scare tactic - you drop your lawsuit and I'll drop mine type of situation. We have until 9/10 to respond.
My questions are: 1) Can we counter-sue him for harassment? 2) Since she no longer works for the city, I assume we can skip Metro this time, am I correct? 3) Can we sue Metro for dragging their feet and possibly revealing information to the fire administration (The timing of this new suit seems too coincidental)? And 4) Since he is suing on his own, should we counter him, or name the city in the suit again?
Side note: This administration has 2 pending lawsuits against them - both by women who were wronged, including my wife. They have settled 2 other recent suits - 1 by a woman and 1 by a black man. This all-white male administration has some sort of pattern that seems apparent.
Thanks for any advice. Most of the area lawyers cite conflict of interest when asked about bringing a lawsuit against the city.
August 27th, 2020 at 2:07 AM ^
Where do you live? I find it really hard to believe someone won’t sue the city. You might have to go a little further out than your immediate area. But there’s definitely plaintiff’s employment attorneys who make their living suing municipalities. Theres usually an insurance policy behind it and they’re quick to settle. If they’re not insured, they’re even quicker and then they’re using in house attorneys who are terrible. I’m not sure what you mean about the notice of right to sue. That’s something that EEOC gives after they complete their investigation - they don’t respond to it.
Not the answer you’re looking for, but this is all very beyond what you should be asking random people on the internet. You could be coming up on some statute of limitations issues depending on the state. If you can tell us where you are, state and metro, I’m sure we can find someone better versed.
August 27th, 2020 at 10:30 AM ^
We live in Fort Wayne, IN. Last I looked, we are the 79th largest city in the US. As far as EEOC, we have filed for the notice of right to sue, but they really have taken more than their allotted time to issue it We have an attorney for the initial case - he claims his hands are tied as he has to wait on the EEOC. He is one of two locally who will file suit against the city. I'm wondering if this new issue (the chief's suit against her) becomes a separate actionable offense. And if so, should we seek a different attorney for this?
August 27th, 2020 at 11:10 AM ^
Talk to your current counsel for this and he'll properly advise you. There's just way too many factors that we can't really get from this. Also, 2 years is a touch on the long-side, but the EEOC did suspend issuing RTS letters during COVID.
August 27th, 2020 at 11:34 AM ^
It sounds like your current lawyer is on the right track. Obviously, I have no idea about the quality of his work or his capabilities; but, as you've described them, his actions so far are reasonable. Here's why.
It seems like your best bet is to file a single lawsuit regarding all of the actions by the city and its individual officials, including the fire department and other municipal agencies. It appears that all of the wrongful conduct you've described stems from a long course of discriminatory practices and conduct. Your wife's strongest argument with respect to any one aspect of that conduct is to create a legal context where you can talk about all of it, so that her allegations of wrongdoing reinforce each other. For example, the fire chief's threat of a defamation is probably not simply a groundless, bad-faith action; it's an attempt to intimidate your wife from asserting her rights under anti-discrimination law. She'll have a more powerful argument about each of those distinct instances of wrongdoing by being able to discuss them together.
For such a lawsuit, you're better off in federal court, where the judge won't have any political motivations to mollify local officials or opposing counsel. State court is a bad place to go when you're suing a state government or its agencies, and a municipality is a state agency. In state court, the municipality's counsel will likely be an "important" local firm whose members donate to judicial campaigns in a coordinated fashion. That firm has some juice in state court that it won't have in federal court.
Claims under federal law, particularly Title VII, are your best ticket to federal court. There are almost certainly state employment and anti-discrimination laws that are parallel to federal law and that offer similar protection to your wife, but you can invoke them alongside her federal claims in federal court.
If your wife has a potential Title VII claim, she has to wait for a right-to-sue letter from the EEOC. She can't assert a Title VII claim in federal court until the EEOC decides whether to take action on her behalf or give her the right-to-sue letter. I can think of a couple of plausible reasons for the EEOC's delay. First, it's just moving slowly because of the pandemic and because agencies move slowly. Second, if there are pervasive problems in the Fire Department or the city, the EEOC may be seriously considering taking its own action. In either event, the EEOC's delay should not hurt you.
Make sure you discuss your concerns with your lawyer. Ask him whether there is a risk of losing any claims by waiting. For example, there might be certain state-law claims that are subject to short limitations periods. Make sure you understand what the lawyer's plan for the case is, and make sure that he has accounted for all of the things that concern you and that his plan will give you the maximum flexibility. If you're not happy with his answers, get another lawyer.
August 27th, 2020 at 12:15 PM ^
She just spoke to the current attorney. His response was nearly blank as he can't seem to recall the information about the case since its nearly 2 years old.
August 27th, 2020 at 1:25 PM ^
That's not necessarily a red flag. If you cold called him out of the blue, you may have just caught him off guard. Set up an appointment with him so he has time to prepare.
August 27th, 2020 at 6:43 PM ^
This (above). Listen to el segundo.
August 27th, 2020 at 11:48 AM ^
If your emoloyment attorney is working on a contingency, he may not want to defend a defamation suit unless you pay hourly.
August 27th, 2020 at 2:15 PM ^
That's possible, but I think Indiana has an anti-SLAPP statute that permits a defamation defendant to recover attorneys' fees if the defamation suit is dismissed.
August 27th, 2020 at 2:11 AM ^
If you can't find a good attorney in your area willing to seriously discuss a lawsuit against the city, I would strongly urge you to look farther afield. This situation seems complicated enough that you really need better advice than you can get on this message board.
In small towns, it's not that surprising that some attorneys would be hesitant to file suit against the city. A lot of them might have done work for the municipality before, and even the ones who haven't might want to in the future and would prefer not to ruffle any feathers.
I grew up in a small town myself, but Ann Arbor was about 1 hour away, and I know of a few attorneys from Ann Arbor who represented people in my town against major local institutions. If a larger city is close enough to you, I would definitely suggest looking there. State Bar Associations are also heavily involved in helping people find lawyers. I know the Michigan State Bar Association website has a useful tool for locating attorneys and so do other State Bar sites.
August 27th, 2020 at 2:21 AM ^
I'm not technically a lawyer, but I consider myself to be one, because I've seen almost every episode of Law & Order.
My advice is, you can sue anyone for whatever reason you want. That doesn't mean it's worth your time to do so or that you're likely to prevail.
Apologies but If I say any more I will have to start charging you.
August 27th, 2020 at 5:58 AM ^
The situation you describe sounds serious enough that you need to hire counsel now. Get your advice from someone who can look at all of the facts. I strongly advise you not to discuss this on a message board, as this will be discoverable in any subsequent litigation.
August 27th, 2020 at 6:59 AM ^
I’m still working on my dental advice. Like my dental advice, my legal advice is free and worth what you pay for it. As has been mentioned, stop talking to us and consult a pro ASAP. Best of luck.
August 27th, 2020 at 8:11 AM ^
Good luck. I suppose you have to decide how far you want to push this in her retirement. Not an easy decision.
August 27th, 2020 at 8:14 AM ^
Seems like a no win situation. Best case is likely a relatively small settlement check from the city compared to the effort and mental pain you will go through. Good luck.
August 27th, 2020 at 8:44 AM ^
Better call saul, or the Bersteins.
August 27th, 2020 at 9:03 AM ^
First, find an aggressive lawyer to go after the city. Second, don’t worry too much about the threat from the Chief. He is a public official, and he would have to prove actual malice to win a defamation case, which means he would have to prove (among other things) that your wife made false statements of fact with knowledge they were false or in reckless disregard of whether they were true or false. Opinions are not actionable.
August 27th, 2020 at 10:41 AM ^
The statements she made were not false. One of the claims of his suit is based on things she had shared on Facebook (other people's op-eds). He has not lost any income as he still holds the same position. He made her life miserable during her last year on the department, and is now continuing to do so in her retirement. She has been depressed for almost 2 years now and can't take pride in the career she worked so hard for.
August 27th, 2020 at 10:46 AM ^
You said that you already have an employment lawyer. You should be getting his advice on this.
August 27th, 2020 at 11:11 AM ^
Still waiting on that.
August 27th, 2020 at 10:52 AM ^
What a loser.
August 27th, 2020 at 12:20 PM ^
A). Find a very good and aggressive lawyer in Indianapolis. Based on previous posts you have made, I assume this is all happening in Ft Wayne, IN. Indianapolis is a metropolitan area and there are very good attorneys there who are far enough away from Ft Wayne that they won’t give two shits about suing and will have no conflict of interest.
B) Countersue the Chief personally for harassment, and of course, your legal fees, and anything else the layer you obtain from Step A can think of. Include the chief in any of the multiple suits you can. Once he sees he’s personally on the hook, where insurance won’t cover him, in multiple suits for potentially millions, he’ll likely back down.
Knowing what I know about Ft Wayne, I am not surprised this is happening to her (or the other people suing the city/dept).
August 27th, 2020 at 1:47 PM ^
This is your chance to refer to Arkell v. Pressdram. DO IT!!!
https://lettersofnote.com/2013/08/07/arkell-v-pressdram/
Dear Sir,
We act for Mr Arkell who is Retail Credit Manager of Granada TV Rental Ltd. His attention has been drawn to an article appearing in the issue of Private Eye dated 9th April 1971 on page 4. The statements made about Mr Arkell are entirely untrue and clearly highly defamatory. We are therefore instructed to require from you immediately your proposals for dealing with the matter.
Mr Arkell’s first concern is that there should be a full retraction at the earliest possible date in Private Eye and he will also want his costs paid. His attitude to damages will be governed by the nature of your reply.
Yours,
(Signed)
Goodman Derrick & Co.
The reply:
Dear Sirs,
We acknowledge your letter of 29th April referring to Mr. J. Arkell.
We note that Mr Arkell’s attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off.
Yours,
Private Eye
The letter the chief sent you is an empty threat. Tell him to go fuck himself. The fun way to do this is to say "I refer you to the reply in Arkell v. Pressdram."
August 27th, 2020 at 1:49 PM ^
On a more serious note, if she didn't defame him, the threat is empty, so you should (seriously) feel free to tell him to go fuck himself. This is just an intimidation tactic because they don't have any respect for you. Lawyer up with someone aggressive, as I would guess you can definitely also sue him first for intentional infliction of emotional distress among other things.
August 27th, 2020 at 2:08 PM ^
Also, I asked a prosecutor in NW Indiana. He says this guy sues the city all the time: https://www.employmentlawindiana.net/
Good luck.
August 27th, 2020 at 2:23 PM ^
That is her lawyer. But he seemed like he couldn't even remember her when she had contacted him this morning. Also, I would have thought this is who the letter from the chief's lawyer should have gone to. EEOC won't talk with my wife since she has a lawyer, so it's not like the city is unaware of his representation of her. It seems a bit unethical for the other lawyer to contact her directly and demand that she call him immediately - almost like he can dupe her into agreeing to something without representation present.
August 27th, 2020 at 4:08 PM ^
It is unethical. I can even point you to the rule he is violating:
Model Rule 4.2 states: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
This is just a model rule, but most, if not all, states have some version of this rule on the books.
You seem to know this already, but I will say it just to be sure. She should not speak to opposing counsel without her lawyer present.
August 27th, 2020 at 5:07 PM ^
Indiana adopted that rule verbatim as Rule 4.2 of the Indiana Rules of Professional Conduct.
ETA: I think you should ask the lawyer if he can respond to their threat by suing the chief personally for intentional infliction of emotional distress and also making an ethics complaint about the lawyer to the State Bar Association for violating that rule. I would also ask him to send a letter that just says all communication with you should go through him from now on to avoid additional ethics violations by the chief's lawyer. But maybe personally I wouldn't ask him to respond to the content of the letter at all: they broke the rules to send it to you, so you should ignore what it says in the knowledge that, if he does sue you, your lawyer can make a lot of motions to have the suit thrown out, starting with the ethics violations of the chief's lawyer in threatening to bring the lawsuit.
NB: IANAL.
August 28th, 2020 at 1:42 PM ^
I can't imagine a good lawyer would choose a forum like this to address a subjective account of events. The risks are too high and it may even violate the Code of Professional Responsibility. You have a lawyer.
August 28th, 2020 at 3:58 PM ^
Thanks for the replies. Got a copy of the letter dropped off to the original lawyer (and one with notes citing much of the advice on here). His reply to the chief and his lawyer was outstanding. We're both feeling much better about the situation moving forward.
Thanks again.