Under Minnesota law, a claim for injury to a person ordinarily expires when the person dies.  However, where the injury was allegedly caused by the act or omission of another person (including a corporation), and the claimant thereafter dies from a cause unrelated to those injuries, courts will continue to hear a claim for “special damages” arising out of the injury.  “Special damages” are those that can be ascertained in a precise, exact amount, such as back wages or medical expenses.

Federal District Court Judge John R. Tunheim ruled that Gilbert’s discrimination claim, which included demands for back pay, front pay and the monetary value of various employment benefits, were special damages that could survive Gilbert’s death. 

MetLife argued that there were times when Gilbert could not work because of her disability and that without her testimony at trial, they would be unable to establish the precise amounts by which her back pay and benefit claims should be reduced during those periods.  The judge responded, however, that Gilbert died after her deposition testimony had been taken.  Thus, if there was a gap in MetLife’s information, it was caused by their own failure to inquire adequately about the issue.  As a result, Gilbert’s daughter was allowed to step in as the substitute plaintiff to pursue her mother’s claims for special damages.

However, Judge Tunheim ruled that the claims for mental anguish damages were not easily quantifiable because they are personal and unique. Without the deceased employee’s testimony, the jury would be left to speculate on whether and to what extent she suffered from the type of humiliation and distress that is addressed through awards for mental anguish and suffering.  Therefore, Judge Tunheim ruled that these damage claims did not survive Gilbert’s passing. Gilbert v. Metro. Prop. & Cas. Ins. Co., Civil No. 09-1990 (D. Minn. Oct. 7, 2011).

In EEOC v. Schwan’s Home Services, No. 10-3022 (8th Cir. July 13, 2011), a female employee filed a charge of discrimination with the EEOC in 2007 alleging she was harassed, demoted, and ultimately lost her job because of her gender. Specifically, she claimed that she was not promoted to Local General Manager because of her gender, even though she had completed the required General Manager Development Program.

The EEOC commenced an investigation into Schwan’s. In the course of its investigation, the EEOC subpoenaed information from Schwan’s on how many women are local managers, as well as the selection process and graduation rates for the company’s manager training program. The employer refused to comply with the subpoena because the employee had not alleged any class claims and, even if she did, the statute of limitations had lapsed.

The Eighth Circuit disagreed with the employer.  According to the court, once the EEOC presents a valid charge of discrimination, it has to show only that the subpoena requests information that “relates to” unlawful employment practices covered by Title VII and “is relevant to the charge under investigation.” While an EEOC subpoena cannot wander into wholly unrelated areas, the “relevancy” requirement is “not especially constraining” and includes any evidence that “might cast light on the allegations.”

The court found the information sought in the subpoena within the scope of the EEOC's investigatory authority, citing the employee’s allegation that if she had completed the company’s manager training program, she would have been one of only two female local managers out of 500 such managers nationwide. The employee had also claimed Schwan’s had rejected one female applicant for management because she had children at home.

Bottom Line

The EEOC has broad power to subpoena information from an employer under investigation. The EEOC can subpoena information relevant to systemic discrimination even absent a valid systemic charge, whenever an investigation into a charge of individual discrimination reveals potential companywide discrimination.

The employees and their lawyers argued that despite their differences in compensation, position and circumstance, the 500,000 female employees shared the burden of facing a company-wide pattern of discrimination against women.  They claimed that this allowed them to be certified as a class for the purpose of pursuing their unified class action against the company.

The Supreme Court disagreed in an opinion, authored by Justice Scalia, that was split 5-4 on some aspects of the case, and unanimous on others.  From the ruling, this much is clear:

• The Court unanimously agreed that the group of people suing the company should not have been certified for a "class" action under Federal Rule 23(b)(2).  This rule requires that a class action not be one where the ruling on claims by individual class members would dispose of, impede or interfere with the interests of non-class members.


• A majority of the Court (5-4) ruled that the plaintiffs also failed to satisfy Rule 23(a)(2), which requires "questions of law or fact common to the class."  Justice Scalia specifically noted that the workers "provide no convincing proof of a company wide discriminatory pay and promotion policy."


• Justice Ginsburg, joined by Justices Breyer, Sotomayor and Kagan, filed an opinion concurring in part, dissenting in part.  While those judges agreed the class should not have been granted under Rule 23(b)(2), they criticized the majority opinion for "disqualify[ing] the class at the starting gate."

Bottom Line

This case was one of the most closely watched cases in a long time, as the Court had not addressed the standards for class certification in over ten years. The case is expected to have far reaching implications, both in discrimination cases, as well as wage and hour and other class/collective cases, and may result in a dramatic reduction of class-based claims in those areas.

The lower court decision by the Ninth Circuit Court of Appeals in California is believed to have forged a new standard for wage-based class claims that the other federal appeals courts have not followed.  The Supreme Court often seeks to resolve interpretive differences between the various appellate courts, and this issue seems particularly worthy of their attention since the Ninth Circuit case was decided by a 6-5 vote.  By ruling one way or the other, the Supreme Court may clear up the confusion over which standard is to be applied.

The Supreme Court also wants to address how the ordinary threshold requirements for a class action are applied in this case.  Typically, class actions require a sufficiently large group of litigants with similar claims in order to justify treating the litigants as one big class.  In this instance, the Supreme Court will want to examine whether the use of subjective decision-making policies supports a class type of claim.  Wal-Mart has argued that it does not since store managers at their almost 3,400 United States stores make individualized hiring and promotional decisions that have to be decided on their unique facts.  In other words, there is no overriding policy or practice being applied – just localized decisions seeking to distinguish between small groups of candidates for particular jobs.

Bottom Line

The eventual decision could have momentous consequences.  A decision in favor of the applicants and employees could pave the way for many more wage-based class actions in the courts.  On the other hand, a decision for Wal-Mart could signal the end of this litigation for the company, and the death knell for wage-based class action cases in general.

On May 26, 2010, Central District of California in Crispin v. Audigier, Inc., Case No. 09-cv-09509 (C.D. Cal. May 26, 2010) addressed whether a defendant can subpoena Facebook and MySpace directly in order to obtain communications between the plaintiff and other parties.

The plaintiff had a Facebook and MySpace account and the defendants wanted Facebook and MySpace to produce communications between the plaintiffs and other parties.  The plaintiffs argued that the messages were subject to the Stored Communications Act, 18 U.S.C. § 2701, et. seq., which prevents a third party from acquiring the information directly from the service provider.

The key for the judge was whether the messages sent over Facebook and MySpace were "private" or "public" communications.  If the messages were public communications, like posted comments on Startribune.com, the information would not be protected by the Stored Communications Act.  Here, the judge found that the message features on Facebook and MySpace were not public and therefore could not be compelled by a subpoena.  Of course, the messages would be subject to ordinary discovery--that is, the defendant could request the information as part of its request for documents--but the defendant must request them directly from the plaintiff.

A final issue was whether wall postings (i.e., messages posted on a user's Facebook or MySpace "wall") were public or private communications under the Stored Communications Act.  The judge determined that more information was needed, including the user's privacy settings (i.e., whether every could view his "wall" or only the user's "friends"), and remanded the issue back to the magistrate. 

Even though social networking sites may contain game-changing information for employers faced with an employment-related suit, to ensure that the information is not lost or overlooked, it is important  for employers to consult with counsel familiar with social networking discovery.   Felhaber's Labor and Employment or Litigation Section members are experienced with social networking discovery, and more than qualified to assist you.