Tips For Litigating Against Pro Se Workplace Bias PlaintiffsDecember 18, 2020 – Articles
Last month, the U.S. District Court for the Eastern District of Michigan issued its opinion in Roseman v. International Union, United Automobile, Aerospace and Agricultural Implement Workers Of America. ruling in favor of the employer, Fiat Chrysler Automobiles US LLC, and the union, known as United Auto Workers, or UAW.
In addition to alleging the UAW breached its duty of fair representation, John Roseman, the pro se plaintiff in this case, brought 13 counts against FCA, including civil conspiracy, hostile work environment, intentional infliction of emotional distress, negligent retention of an unfit employee, and infringement upon right to bear arms.
A telling indication of how the court would rule came early in its decision, when the court stated:
Roseman is improperly using this lawsuit as a vehicle to address his general workplace gripes and personality conflicts with co-workers. Roseman proffers absolutely no evidence to suggest that FCA USA has discriminated or retaliated against him, let alone subjected him to emotional distress.
Roseman was a long-time hourly production worker at FCA's assembly plant in Michigan. Three separate and temporally distinct interactions with co-workers were the underlying basis for his complaint.
First, in the fall of 2016, Roseman was a team leader, and a female co-worker became frustrated with him and cursed at him. The co-worker was disciplined by FCA, but not to Roseman's satisfaction.
Second, in the spring of 2018, Roseman ran for election as a union steward. His campaign materials included a poster showing him holding a rifle with the caption, "Is it time for a new sheriff?" After receiving complaints, FCA disciplined Roseman. Displeased with the discipline, Roseman sought redress with the union, but the union declined to pursue a grievance.
Third, in the summer of 2018, another co-worker who objected to Roseman's leadership style sent text messages to co-workers regarding his frustrations, referring to Roseman as an "old head." Roseman complained and FCA issued a verbal warning to the co-worker. Roseman was not satisfied with FCA's response and did not return to work after this incident, alleging that the situation was too stressful.
Shortly thereafter, and while on leave, Roseman filed a complaint against the UAW and FCA. After approximately three months of leave, a company psychiatrist found that Roseman was fit to return to work. Roseman refused to return to work, instead unsuccessfully seeking the court to issue a temporary restraining order and intervene in FCA's decision requiring Roseman to return to work. Roseman's employment at FCA was terminated on Dec. 3, 2018, based on his refusal to return to work.
A review of the docket report shows countless amendments, repeated dispositive motions, and unusual tactics by the plaintiff. After two full years of litigation, the court ultimately granted the defendants' motions for summary judgment, dismissing the complaint. And promptly thereafter, Roseman filed a notice of appeal.
Dealing With Pro Se Plaintiffs in Employment Cases
Most defense counsel will readily admit they prefer litigating against a competent and skilled opposing counsel. And from a client/employer's perspective, pro se plaintiffs will invariably drive up the costs of litigation by advancing novel legal and not-so-legal theories of redress. Practitioners must exercise caution and patience when dealing with pro se plaintiffs.
To be successful against a pro se plaintiff, as defense counsel, you must:
- Build your case.
- Box in the plaintiff.
- Close off all wiggle room.
It takes time and patience to accomplish each of these. Know the elements of each theory of recovery, lock the pro se plaintiff into a position on each such theory, and dot your i's and cross your t's when it comes to your defense.
Take the pro se plaintiff's deposition as early as possible in the case to lock in their theories and the facts supporting them. Do not let those wander, and do not allow the pro se plaintiff to advance contradictory facts. And if they absolutely insist on advancing contradictory facts, merely get those on record, as they will greatly assist you when it comes to credibility.
Most crucial to remember is that just because the pro se plaintiff may have a meritless case, that does not absolve you of properly defending your case. Establish each element you need to properly defend the case just as if there were potential exposure.
Know your judge and court rules.
Some judges will entertain motions to dismiss on various grounds very early in the case; some will not. It is helpful to do your due diligence on the judge assigned to your case to determine if seeking an early dismissal against a pro se plaintiff will be met with success or place you in the unenviable position of explaining to the client why the judge called your judgment into question for filing any such motion. At least a modicum of discovery is always helpful with filing motions to dismiss, even if on technical grounds, against pro se plaintiffs.
And of course, know your court rules. Some states permit requesting that a pro se plaintiff file a bond for the cost of your defense. If the court grants such a request, it is rare the pro se plaintiff will have the financial wherewithal to post a bond.
Do not let your frustration show.
As anyone who has dealt with pro se plaintiffs knows, in the interest of fairness, most courts will not hold a pro se plaintiff to the same standards as an attorney. This includes granting pro se plaintiffs multiple opportunities to amend pleadings to correct deficiencies, change their position on any given issue, and argue mutually exclusive facts/theories of recovery. And almost never are they sanctioned for otherwise sanctionable conduct by an attorney.
Be careful to not manifest your frustration, as it may cast you in a negative light before the court. Remember, the court is there to dispense justice; giving the pro se plaintiff a little (or a lot) of leeway is in the interest of justice, especially if the end result permits the pro se plaintiff to right a wrong.
Examine the reason why the plaintiff is not represented. Typically there are two reasons, which go hand in hand: (1) no qualified attorney would take the case because it has questionable merit at best, and/or (2) the plaintiff so deeply believes that they were egregiously wronged, no attorney will take the case. Neither is necessarily easier to defend, but the latter will seek every single imaginable avenue of redress, so be vigilant for cracks in your defense.
The latter may also take a loss very personally and seek retribution against you as an individual. Keep your interactions with the pro se plaintiff to a minimum, so that you are not viewed as the individual solely responsible for the pro se plaintiff's future legal problems. Try to not allow yourself to be viewed as the sole decision-maker on behalf of the client.
Discrimination laws do not create a general code of civility in the workplace; neither are they intended to resolve workplace personality conflicts. Discrimination laws set a high threshold to correct unlawful conduct in the workplace, not conduct that an employee finds subjectively insulting or off-putting.
Nonetheless, there exist individuals who will chose to utilize the court system to resolve workplace conflicts, and these individuals will tend to be pro se plaintiffs. As the Roseman case shows, pro se plaintiff cases can take quite some time to resolve. Be patient, build your case, and never take the pro se plaintiff for granted.
 Roseman v. Int'l Union, United Auto., Aero. & Agric. Implement Workers of Am. UAW, FCA US, LLC, UAW Local 1700 & UAW Local 140, No. 18-13042, 2020 U.S. Dist. LEXIS 214179 (E.D. Mich. Nov. 17, 2020).