“Engage people with what they expect; it is what they are able to discern and confirms their projections. It settles them into predictable patterns of response, occupying their minds while you wait for the extraordinary moment— that which they cannot anticipate.”―Sun Tzu, The Art of War
What happens after you decide to sue your prior employer?
All I can do is tell you about my own experience. I am not an attorney, so do not construe any statements I make as legal advice. However, I do want you to know what to expect as a plaintiff. You are a guerrilla nurse! You are, in truth, waging this battle on your own, even if you hire the best labor attorney in the country.
First, you need to decide if you need the assistance of an attorney. Although you can file a complaint with EEOC or your local labor relations board on your own, having a great labor attorney in your corner is a plus. That is the route I chose to go.
If you do retain an attorney, he or she will likely send a letter of notice to your employer. Remember, this is only the beginning of a long and painful process. Patience as well as a steadfast, determined mindset are required, both now and for many months (or years) to come.
Before you sue your employer, you will need to file a complaint with the EEOC (Equal Employment Opportunity Commission.) This process takes anywhere from six to eight months. Some states, such as Florida, have their own departments that settle complaints in lieu of sending the complaint to the EEOC.
Your prior employer will file a rebuttal with the EEOC regarding the charges you made. Reading my prior employer’s rebuttal was one of the most difficult parts of the process for me. Their rebuttal was 164 pages long, and included not only mischaracterizations of my skills and abilities as an RN but also blatant lies. Expect this. It will happen. I am telling you this because I want you to be prepared. I was not. Remember — your prior employer’s rebuttal is NOT produced under oath!
The statements contained in your prior employer’s rebuttal will hurt. Remember, their statements are not about truth or truth-seeking. Their intent is to drag you, your emotions and your perception of yourself as an accomplished, intelligent and compassionate nurse through the mud in an effort to demoralize you so you will drop your suit! Cry, storm around your house, hit your pillow! Get angry! You are a fighter, a true guerrilla nurse! Do whatever it takes to clear your mind, then write your rebuttal to their rebuttal.
I received my prior employer’s rebuttal right before Thanksgiving in 2013. I had only about five days to respond to their 164-page rebuttal, although they spent at least two months preparing their rebuttal.(Expect short time frames in which to respond throughout the entire process!
After you have submitted your rebuttal, you wait. And wait. And wait some more. In my case, the department in Florida did not process my complaint within the required time frame (six months). Expect this, too. It took nearly eight months for them to reach a decision in my case.
Expect more questions from the EEOC or the department in your state that handles the EEOC complaints. Again, expect to be allowed a very short time frame in which to respond to any questions they may have. You may be required to attend a telephone conference with the EEOC representative. The EEOC representative didn’t show for my own case. Expect that, too.
No matter how much proof you have, including witness accounts, expect your EEOC complaint to be dismissed. Most are. Mine was. This is disheartening on one hand, but on the other hand, you will finally receive that all-important right-to-sue letter!
You have that letter from the EEOC, so it’s time to file suit. You will need to decide, with the help of your attorney, whether to file suit in federal or state court. Because my suit was about both discrimination and a hostile work environment, I chose to file in federal court. There are advantages and disadvantages to either choice of venues. Your attorney, if you have one, will guide you in making this decision.
You file. Then you wait. And wait. And wait some more. Twiddle your thumbs, dig in your garden, do yoga or, again, do whatever it takes to help you stay grounded and patient during this period. It’s tough.
Now the fun begins! The discovery process!
You will receive documents from your prior employer’s attorneys that ask you to answer absurd, tangential, non-relevant questions about your life. How many times have you been married? What are the names of all of your relatives who live in your state? Is your dog really named Boo? Are there snakes under your house? When was your last termite inspection?
Next comes document discovery. You will be directed to submit any and every document or tape you have in your possession that pertains in any way to your case. This is what I talked about in my previous blog entry. This is why I said it is best not to keep a list of patient names. If it’s in your head, they can try to reach it when you go to court. If it’s in writing, you have to give it to them. Period. (I have to admit it was inspiring to throw all of those pertinent emails I saved right back at them during this process. Oh, yeah….here ya’ go! Read this! Read it and weep!)
Then you wait again. It’s all a waiting game, really.
Now come the deposiions. In my case, I was the first to be deposed. My deposition lasted for about seven hours. The printed version of my deposition is 225 pages long.
One of my favorite parts of my deposition is this (paraphrased):
Their attorney: “Have you seen your prior employer’s policy regarding harassment of employees?”
Their attorney: “What did you say? Did you just laugh?”
Me: “No, I think I grunted.”
Their attorney: “You grunted? What did your grunt mean? ”Me: “It means I grunted.”
Their attorney: “What does grunting MEAN?”
And on and on it goes, the merry-go-round of questions. Expect to be asked about your physical health, your family’s health, how many times you’ve been married, how many cats you have rescued over the years and whether or not those cats have been vaccinated.
If you have any sort of secret, anything you hold close to your chest, expect their attorney to know it and divulge it. This is, after all, just another opportunity for them to try to humiliate, demoralize and marginalize you.
In my case, I had been a patient of my prior employer many years ago. At that time, back in about 2000, I was treated for an episode of serious depression. After I recovered, I began working for that corporation as an RN. At that time, and throughout the nearly eleven years I worked at this corporation as an RN in different roles, I knew I was one of their “success stories.” I never shared this with any of my co-workers, but I will say that one of the administrators who fired me was one of the staff members who treated me back in 2000.
After lunch, during the mid-afternoon, when we were all tired, their attorney asked the question I had been dreading: “Do you have a history of depression?”
I cannot prove it, and this is only my opinion, but I believe my prior employer divulged my private medical history to their attorneys. The only other person who knew was my own attorney, and he had made it clear my history was protected under attorney-client privilege. The only person at my deposition, other than the two attorneys, was a woman who apparently worked for my prior employer in an administrative capacity. Expect that, too.
THE BOTTOM LINE
The bottom line is your prior employer’s attorneys are prepared to do or say whatever it takes to discredit you. Expect this. If you know you can’t deal with it, don’t sue. It’s hard, it’s painful, and it takes a tough person to survive this process intact, both emotionally and spiritually.
I left the deposition that day with a strong sense of both relief and finality. I had finally said what I had to say. It was on record now, under oath. The way other nurses and I were treated by my prior employer was a matter of public record, at long last.
If you are deposed first, expect your prior employer to fight back HARD. That is what happened to me. Expect to be told, as my attorney had to tell me, that your ex-employer will likely try to recoup court and attorney’s fees from you if they obtain dismissal of your case from the judge. It is a threat, of course. Expect it.
As I have written before, I could not afford to continue the suit. I could not afford mediation or further deposition costs, and it was likely, according to my attorney, that my ex-employer would be granted summary judgment in federal court due to a new and recent interpretation of the Florida whistleblower law. In no way could my husband and I afford to pay those fees. It was a risk we simply could not take, although we both wanted my case to proceed to jury trial.
At this point, (if you get this far), keep in mind that your prior employer’s attorneys are probably racking up a mountain of billable hours! If, like me, you can’t afford to proceed, do your level best to make sure your prior employer agrees not to pursue you for their attorneys’ fees.
Would I do it again? Yes, I would! The entire experience was cathartic for me. It helped me let go of the the most painful experience I’ve ever had during my 37 year career as a nurse. Furthermore, my statements are now public record. For me, it was enough to know that, according to my attorney, my prior employer used three attorneys and spent tens of thousands to defend against little, old me. The outcome was more than enough to soothe my damaged spirit. It was never about money for me, anyway —- it was all about the truth, and getting that truth out to the public.
That said, I am in the process of obtaining a copy of my deposition. At the current time, I can’t afford it, since it will cost at least $600.00. However, when I do obtain it, I plan to make my deposition public (with patient names and identifying information redacted, of course.) That deposition is my story, my truth, told under oath. I have nothing to hide.
In my opinion, this guerrilla nurse won, even though we never made it to court.