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Employment Litigation

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Mary A. Gambardella


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Employment Litigation provides exhaustive procedural guidance on the booming field of employment law. Whether you represent employers or employees, this book will help you save time, avoid unpleasant surprises, and gain the upper hand at every stage of your case. Coverage includes a step-by-step examination of agency and court proceedings on both the federal and state levels. In addition, class actions, appeals and arbitrations receive special coverage. Filled with helpful insights, Employment Litigation also provides sample documents for every situation—complaints, responses, motions, discovery requests, jury instructions, appeals, settlement agreements and more.

You'll find advice on everything from the affirmative defenses that work best to which discovery methods are most likely to bear fruit. Throughout, there is practical analysis of the special characteristics and pitfalls of employment law statutes and case law that will save you time and prevent needless headaches. Even for veteran employment litigators, this book is a treasure trove of proven strategies and illustrative documents.

Book #00669; looseleaf, one volume, 1,242 pages; published in 2002, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-108-8


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 1242
  • ISBN: 978-1-58852-108-8
  • Pub#/SKU#: 669
  • Volume(s): 1

Author Image
  • Mary A. Gambardella
Mary A. Gambardella is a partner of the law firm of Wiggin and Dana LLP and a litigator in its Labor, Benefits and Employment Group. Ms.Gambardella is a seasoned litigator with extensive experience in a number of substantive areas.

Ms. Gambardella counsels and represents clients in a broad range of industries, including pharmaceutical, entertainment, marketing and market research, sales and insurance. She litigates:
  • All aspects of labor and employment law, including discrimination, sexual harassment, wrongful discharge, wage/hour, and a variety of related contract claims
  • Legal malpractice cases, as a member of the legal panel for a major carrier and its subsidiaries
  • Complex commercial and general contract law matters

Ms. Gambardella also advises management with respect to employee handbooks and policies, severance packages, reductions in force, sensitive employee terminations, management and human resource personnel training, and internal investigations.

Ms. Gambardella represents corporate clients before both state and federal courts and administrative agencies, as well as at arbitrations and mediations. In addition to her formal bar and court admissions, she has been admitted pro hac vice in federal courts in a number of states, including Indiana, Minnesota, Texas, and Virginia.

Ms. Gambardella has been co-instructor for Federal Publications biannual Employment Law Seminars. A frequent lecturer on employment law topics, Ms. Gambardella has also served on the faculty for Sterling Education Services, Inc., and she has most recently participated in a presentation entitled Connecticut Wage & Hour Laws and FLSA Update.


CHAPTER 1
The Administrative Stage: The Agency Complaint and Response

§1.01 Requirement to File with an Administrative Agency
§1.02 The Agency Complaint
[1] Sample Sexual Harassment Complaint
[2] Sample Gender and Age Discrimination Complaint
[3] Sample Race Discrimination Complaint
[4] Sample Sarbanes-Oxley Act Whistleblower Retaliation Complaint to the Department of Labor
§1.03 The Response/Statement of Position
[1] Sample Response to Sexual Harassment Complaint
[2] Sample Response to Gender and Age Discrimination Complaint
[3] Sample Response Requesting Dismissal Based on Failure to File in Timely Manner
§1.04 The Investigation Process

CHAPTER 2
The Federal Court Complaint

§2.01 General Commentary Regarding the Federal Complaint
§2.02 Sample Federal Court Complaints and Pleadings
[1] Age Discrimination Complaint
[2] Gender Discrimination Complaints
[3] Sexual Harassment Complaints
[4] Race Discrimination Complaint
[5] Religious Discrimination Complaints
[6] Discrimination and Retaliation Complaints
[7] Disparate Impact Complaint
[8] Reverse Discrimination Complaint
[9] Discrimination Complaint Indicating Ministerial Ex-ception Not Applicable
[10] Contract Based Complaint
[11] Americans with Disabilities Act Complaints
[12] Causes of Action Based on Statutory Failure to Pay Wages
[13] Causes of Action Based on Violation of Family and Medical Leave Act
[14] “Caregiver” Complaints
[15] Genetic Information Nondiscrimination Act Complaint
[16] False Claims Act Complaint
[17] Action by Employer for Declaratory Judgment Regarding Employment Contract
[18] Action by Employer to Protect Trade Secrets
§2.03 Amending the Complaint
§2.04 Conclusion

CHAPTER 3
The State Court Complaint

§3.01 Introduction
§3.02 Removal to Federal Court
§3.03 Motion to Remand
§3.04 Sample Complaints with Breach of Contract, Wrongful Discharge and State Law Claims
[1] Breach of Contract and Wrongful Discharge Complaint
[2] Wrongful Discharge and State Wage Law Complaint Involving Bonus
§3.05 Sample Complaint and Memoranda of Law Regarding Non-Compete or Non-Solicitation Agreements
[1] Sample Complaint
[2] Plaintiffs Memorandum of Law in Support of Application for Temporary Injunction
[3] Defendants Memorandum of Law in Opposition to Plaintiffs Application for Temporary Injunction
[4] Defendants Reply to Plaintiffs Memorandum of Law in Support of Application for Temporary Injunction
§3.06 Sample Whistleblower Complaint

CHAPTER 4
Pre-Answer Motions

§4.01 Introduction
§4.02 Motions to Dismiss
[1] Federal Court Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim Upon Which Relief Can Be Granted and Supporting Memo
[2] Memo in Support of State Court Motion to Dismiss for Lack of Subject Matter Jurisdiction
[3] Supporting Memo for Federal Court Motion to Dismiss for Failure to Exhaust Administrative Remedies or Expiration of Statute of Limitations
[4] Supporting Memo for Federal Court Motion to Dismiss for Failure to Obtain Right-to-Sue Letter and Failure to Exhaust Administrative Remedies
[5] Federal Court Motion to Dismiss for Failure to State a Tort Claim Upon Which Relief Can Be Granted and Supporting Memo
[6] Federal Court Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted and to Strike References to Title VII and ADEA and Supporting Memo
[7] Federal Court Motion to Dismiss Tort Claims After Removal from State Court and Supporting Memo
[8] Memo in Support of Motion to Dismiss ERISA Claim Because Statute of Limitations Has Expired
[9] State Court Motions to Dismiss Causes of Action for Failure to Pay Wages Required by Statute
[10] Memo in Support of State Court Motion to Strike Complaint for Tortious Interference with Contractual Relations and Related Causes of Action
[11] Motion to Compel Arbitration and for Partial Stay and Supporting Memo
[12] State Court Motion to Dismiss Whistleblower Complaint and Supporting Memo
§4.03 Motion for a More Definite Statement

CHAPTER 5
The Answer and Affirmative Defenses

§5.01 Introduction
§5.02 Defenses
[1] Defenses to Discrimination and Sexual Harassment Claims
[2] Defenses to Retaliation Claims
[3] Defenses to Fair Labor Standards Act (FLSA) Claims
[4] Defenses to Common Law State Claims
[5] Defenses to Contract Claims
§5.03 Sample Answers and Affirmative Defenses
[1] Answer and Affirmative Defenses to Claim of Discrimination Based on Pregnancy
[2] Affirmative Defenses to Claim of Discrimination Based on Disability
[3] Affirmative Defenses and Answer to Claims of Discrimination Based on Religion
[4] Answer and Affirmative Defenses to Claims of Disparate Impact Discrimination
[5] Answer and Affirmative Defenses to Claim of Gender and/or Sexual Orientation Discrimination
[6] Affirmative Defenses to a Whistleblower Claim

CHAPTER 6
Discovery

§6.01 Introduction—The Importance of the Discovery Process
§6.02 Interrogatories and Requests for Production
[1] Interrogatories
[2] Requests for Production
§6.03 Depositions
[1] Deposition of the Plaintiff
[2] Depositions of Defense Witnesses
[3] Depositions of Third-Party Fact Witnesses
[4] Depositions of Expert Witnesses
[5] Notice of Deposition and Request for Documents for Expedited Discovery Where Injunctive Relief Enforcing Non-Compete or Non-Solicitation Agreement Requested
§6.04 Discovery Disputes and Motion Practice
[1] Plaintiff’s Motion to Compel and Motion for Sanctions
[2] Defendant’s Motion for Protective Order
[3] Defendant’s Motion to Compel, for Costs and for Protective Order
[4] Objections to Motions to Compel
[5] Objection to Motion for Adverse Inference for Spoliation of Evidence
[6] Motion and Supporting Memo Opposing a Request for Sanctions for Spoliation of Evidence
§6.05 Discovery Plans for Federal Court Under Federal Rule of Civil Procedure 26(f)
§6.06 Instructions for Preserving Electronic Documents

CHAPTER 7
The Dispositive Motion—Motion for Summary Judgment

§7.01 Introduction
§7.02 Filing for Summary Judgment in Discrimination Actions
[1] Claim of Pregnancy Discrimination
[2] Claim of Age Discrimination
[3] Claim of Disability Discrimination
[4] Claim of Racial Discrimination
[5] Claim of Ethnic Origin Discrimination
[6] Claims of Sexual Harassment
§7.03 Filing for Summary Judgment in Action Based on Contract
§7.04 Filing for Summary Judgment in Action Based on Family and Medical Leave Act

CHAPTER 8
Preparing for Trial

§8.01 Introduction
§8.02 Jury Instructions
[1] Sample: Employment Contract Case
[2] Sample: Sexual Harassment Case
[3] Sample: Age Discrimination/Title VII Case
[4] Sample: Disability Discrimination Case
[5] Sample: Retaliation Case
§8.03 Voir Dire
[1] Generally
[2] Sample Voir Dire Dire by Defendant in Disability Discrimination Case
[3] Sample Voir Direby Defendant in Contract Case
§8.04 Motions in Limine
[1] Motion in Limine to Preclude Evidence Related to Damages
[2] Motion in Limine to Preclude Evidence and Witness Regarding Culture of Harassment and Discrimination Toward Women
[3] Motion in Limine to Preclude Parol Evidence
[4] Motion in Limine to Allow Admission of Evidence
[5] Opposition to Motion in Limine to Preclude Evidence of Settlement Discussions in Sexual Harassment Case
[6] Motion in Limine to Preclude Evidence of Dismissed Claims and to Bifurcate Hearing on Damages
[7] Motion in Limine in Opposition to Application for Prejudgment Remedy
[8] Motion in Limine to Preclude Evidence or Testimony Regarding Issues Previously Decided by the Court in Employment Contract Case
[9] Motion in Limine to Preclude Evidence Relating to Character
[10] Motion in Limine to Preclude Introduction of Deposition Testimony
[11] Motion in Limine to Preclude Introduction of Evidence of Comments or Conduct After Recommendation to Terminate Made
§8.05 Damages Analysis
§8.06 Exhibit and Witness Lists

CHAPTER 9
The Settlement Agreement

§9.01 Introduction
§9.02 Sample Settlement Agreement in Employment Discrimination Case
§9.03 Sample Settlement Agreement in Employment Contract Case
§9.04 Sample Settlement Agreements for Reduction in Force
[1] Termination of Employee Over Forty
[2] Termination of Employee Under Forty
§9.05 Memo in Opposition to Motion to Enforce Alleged Settlement Agreement

CHAPTER 10
The Appeal

§10.01 Appeals in Discrimination Cases
[1] Case Involving Claim of National Origin Discrimination After Discharge for Sexual Harassment
[2] Case Involving Claim of Racial Discrimination After Discharge for Refusing Assignment
§10.02 Appeals in Cases Involving Employment Agreements
§10.03 Appeals to the Supreme Court

CHAPTER 11
CLASS ACTIONS

§11.01 Introduction
§11.02 Complaints
[1] Sample Gender Discrimination Complaints
[2] Sample Race and National Origin Discrimination Complaint
[3] Sample Wage Case Complaints
[4] Sample Independent Contractor Overtime and Em-ployee Benefits Complaint
§11.03 Sample Answers to Class Action Complaints
[1] Sample Answer to Complaint Alleging Failure to Pay Overtime and Other Wage Law Violations
[2] Sample Race and National Origin Discrimination Complaint
[3] Sample Answer to Complaint Alleging Retaliation for Employee Complaints to Management Regarding FLSA Violations
[4] Sample Memorandum in Support of Motion for Summary Judgment Based on Waiver in Arbitration Agreement of Class Action Claim for Systemic Gen-der Discrimination
§11.04 Sample Memoranda in Support of a Motion for Class Action Certification
§11.05 Sample Memoranda in Opposition to Request for Class Action Certification
[1] Sample Memorandum in Case Involving Alleged Wage-Hour Violations
[2] Sample Memorandum Case Involving Alleged Gender Discrimination
§11.06 Sample Notice of Class Action Lawsuit
§11.07 Discovery
[1] Sample Interrogatories
[2] Sample Request for Production of Documents
[3] Sample Request for Production of Documents in Connection with Class Certification
§11.08 Sample Class Action Settlement Agreement
§11.09 Sample Class Action Settlement Notice

CHAPTER 12
ARBITRATION

§12.01  Introduction
[1] Generally
[2] Selection of Arbitrators
[3] Arbitration Hearings
§12.02  Sample Agreements to Arbitrate
[1] Mutual Agreement to Arbitrate Claims
[2] Employee Agreement to Arbitrate Claims Under AAA or NASD Rules
[3] California Employee Agreement to Arbitrate Claims Under AAA Rules
§12.03  Statements of Claim
[1] Claim Resulting from Elimination of Position in Reduction in Force
[2] Claim for Employee Breach of Contract and Duty of Loyalty
§12.04  Sample Answer to Demand for Arbitration
§12.05  Motions to Compel Arbitration, Memorandums in Support and in Opposition to Such Motions
[1] Motion to Compel Arbitration of Employee’s Contract and Wage Claims
[2] Memo in Support of Motion to Compel Arbitration of Employee’s Contract and Wage Claims
[3] Memo in Support of Motion to Compel Arbitration of Securities Industry Employee’s Claims
[4] Memo in Support of Motion to Compel Arbitration When Securities Industry Employee Brings Discrimination and Other Claims
[5] Employer’s Memo in Opposition to Motion of Employee to Dismiss Employer’s Counterclaims
§12.06  Motions to Stay Arbitration, Confirm or Vacate Arbitration Awards
[1] Memorandum in Support of Petition to Stay Arbitration Because of Conflict of Interest
[2] Petition to Confirm Arbitration Award
[3] Notice of Petition to Vacate Arbitration Award
[4] Memo in Opposition to Petition to Vacate Arbitration Award
§12.07  Discovery
[1] Respondent’s First Request for Information
[2] Respondent’s Response and Objections to Claimant’s Request for Documents

Index