A lower bar for discovery?

Biz groups, employee representatives chime in on Supreme Court case involving fired Habitat worker

Representatives of some of Tennessee’s biggest employers and advocates for workers’ rights are paying extra attention to a case involving Nashville Area Habitat for Humanity that will soon be decided by the Tennessee Supreme Court.

At issue is the bar plaintiffs must clear when filing discrimination or retaliation lawsuits. Employers worry that a Supreme Court decision in favor of former Habitat worker Pam Webb will add significantly to their legal costs, while representatives for Webb say they are ensuring a broader deregulatory push in Tennessee doesn’t impact workers’ access to the court system.

Webb had filed suit against Habitat in early 2009, saying the home-building charity had fired her after she lodged a complaint against former President and CEO Chris McCarthy, whom she accused of asking staffers to violate the Equal Credit Opportunity Act and other statutes.

Circuit Court Judge Barbara Haynes dismissed the first case for failing to state a proper claim, but her decision was overturned by the Court of Appeals, where judges pointed to a 2009 statement that “a complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his or her claim.”

That ‘appears’ threshold — in other words, just how much a plaintiff needs to disclose before a case can proceed — is at the crux of two competing amicus curiae briefs filed since the Supreme Court judges heard arguments in the case on Feb. 3.

Jonathan Hancock and Whitney Harmon of Baker Donelson Bearman Caldwell & Berkowitz’s Memphis office filed their brief on behalf of the Tennessee Society for Human Resource Management and a number of its regional affiliates. Justin Gilbert of the Tennessee Employment Lawyers Association has filed an amicus curiae brief backing Webb’s case.

In a recent note to clients, the Baker Donelson attorneys wrote that the Webb camp is saying that “potential plaintiffs should be able to file a lawsuit and then, through discovery, determine if there is factual support for the claim asserted.” That, they added, would lower the bar for workers and force employers to pay up for attorneys and the discovery process even in “the most frivolous of claims.”

“A plaintiff could be required only to allege that he/she believed he/she was the subject of discrimination, retaliation, or other actionable conduct,” Hancock and Harmon wrote, “And the case would proceed to discovery.”

James L. Harris of Green Hills firm Shockey & Harris, who has represented Webb in this case, said his side is working to avoid a decision “that would make it more difficult for the common man to get his day in court.”

The current federal standard that the defense wants to uphold, Harris said, can at times be difficult to meet when a suit is first filed and the employee hasn’t yet shared all pertinent documents and information.

Harris linked the SHRM backing for Habitat to a wider push for less government regulation of business — a push that has gathered steam since Gov. Bill Haslam took office in January.

“We have a Republican governor who is trying to be big-business-oriented,” Harris said. “Tennessee is a big-business state and we’re trying to attract big businesses.”

R. Eddie Wayland of King & Ballow is representing Habitat.