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As my good friend, Kenny Rodgers, once said, “You’ve got to know when to hold ‘em, know when to fold ‘em, Know when to walk away, know when to run.” There comes a time in most every case when a plaintiff-employee can claim the win by settling the case. The trick is to create as much leverage as possible to get the highest offer possible; and more importantly knowing when to grab it and walk away. There also may come a time when you bury your dead no matter how good they were and move on.

Not every case is going to win, which means that some cases will end in a loss. This risk is true for even the best of cases. It may be because the evidence wasn’t what you thought at the beginning; it may be because the judge just got the law wrong; it maybe because the jury just didn’t get it or was prejudice. Sometimes, key witnesses die or just don’t show up. Other times, plaintiff-employees get nervous on the witness stand or at a deposition and blurt out wrong or bad information. In many cases, you may not realize that you hired the wrong attorney until too late (always confirm that your attorney has actually stood in front of a jury and won cases – plural).

Of course, defendant-employers face all the same risks, which is why almost 97 percent of employment cases will settle at some point. There is a certainty in settlement that can be controlled. Settlement eliminates risk for both parties. Settlement also eliminates costs and prevent spending years in and out of court.

Yet not all cases settle. Some cases will be dismissed as a matter of law by judges and other will be won or lost at trial. If you choose to fight your case to the end, be prepared to accept the risk of defeat if glory does not come.

Of course, former President Richard Nixon said: “Defeat doesn’t finish a man, quitting does. A man is not finished when he’s defeated. He’s finished when he quits.”

Otis Daniel strongly believed in these presidential words and displayed no quit.

In Daniel v. T & M Prot. Res., LLC, No. 22-1614, 2023 WL 3563038, at *1 (2d Cir. May 19, 2023), Daniel sued his employer under Title VII of the Civil Rights Act of 1964 asserting that his supervisor discriminated against him because of his race/color, gender, and national origin. First, Daniel asserted a racially hostile work environment based on the fact that his supervisor said to him: “you fucking n[*]gg[*]r.” Second, the Daniel’s gender claim pointed to sexual harassment arising our of the same supervisor brushing his genitalia against Daniel’s buttocks, calling him a “homo,” and telling him to “Man up, be a man.” And while there were other supporting facts, this should give a flavor for the horrible conduct that Daniel faced.

Yet, the United States District Court for the Southern District of New York granted summary judgment against Daniel and in favor of his employer. Thankfully, the United States Court of Appeals for the Second Circuit reversed, holding:

We must disagree with the district court’s assessment of Schwapp. Schwapp states that, “[f]or racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that[,] instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.” Id. at 110 (internal quotation marks, brackets, and citations omitted). “Thus, whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs, considered cumulatively in order to obtain a realistic view of the work environment.” Id. at 110-11 (emphasis added) (internal quotation marks and citations omitted). Schwapp, therefore, did not foreclose the possibility that the one-time use of a severe racial slur could, by itself, support a hostile work environment claim when evaluated in the cumulative reality of the work environment. The district court’s reading of Schwapp is further at variance with this Court’s more recent observation, in dicta, that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (emphasis added) (brackets omitted). Therefore, although we decline to confront the issue of whether the one-time use of the slur “nigger” by a supervisor to a subordinate can, by itself, support a claim for a hostile work environment, we conclude that the district court improperly relied on our precedents when it rejected this possibility as a matter of law.

Daniel v. T & M Prot. Res., LLC, 689 F. App’x 1, 2 (2d Cir. 2017).

On remand back to the District Court, Daniel fired his attorney and for some reason decided to waive the jury and have the trial before the same judge that already dismissed his case. That, as expected, did not go well. After a bench trial, the judge again dismissed the case; and Daniel – continuing to represent himself without any attorney, responded by filing a motion for reconsideration, which the district court denied. Daniel appealed the district court’s judgment, and Second Circuit Court of Appeals affirmed. In June and July 2020, Daniel filed motions seeking relief from the district court’s July 2018 judgment Federal Rule of Civil Procedure 60(b). The district court denied the motions for relief from the judgment as being both untimely and without merit. Daniel appealed again and, again, the Second Circuit Court of Appeals affirmed the order of the trial court against Daniel. Not done beating his head against the wall, on September 23, 2021, Daniel asked the District Court to reopen his case and consider yet another motion for reconsideration. Once again, the district court denied Daniel’s motions as being untimely and without merit. On October 8, 2021, Daniel filed a motion for reconsideration to reconsider the district court’s denial of his September 23, 2021 motion to reconsider.

If you lost track, that is a motion to reconsider the motion to reconsider the motion to vacate (undo) the judgment, which already had two separate motions to reconsider denied before that. Guess what happened next? The District Court denied the motion and the United States Court of Appeals for the Second Circuit recently affirmed on May 19, 2023, holding: “Daniel has failed to advance any cogent or compelling reason as to why his September 2021 motion is timely, particularly since we have already determined that his June and July 2020 motions were not.” Daniel v. T&M Prot. Res., LLC, No. 22-1614, 2023 WL 3563038, at *2 (2d Cir. May 19, 2023).

Did Daniel originally have a good case? Probably. Did he get screwed by the courts? Possibly. Does he deserve some of the blame? Absolutely. He tried to handle his case without an attorney – that rarely ever goes well; and he failed to properly evaluate his case and take advantage of good opportunities to settle the case. Certainly, when there is evidence that a boss, manager, or supervisor called an employee the full n-word, the employer is going to be willing to discuss some settlement before the case gets into litigation; and a great settlement opportunity presented itself when the Second Circuit originally remanded the case for trial. Essentially, Daniel failed to know when to take his money off the table and walk away. When his case died, he refused to burry it, and instead, kept digging up the bodies.

Kenny also offered some additional good advice later in his song: “every hand’s a winner; and every hand’s a loser” and sometimes the best that you can hope for is to settle, claim your victory, and get some sleep.

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Should I settle my employment discrimination case?

That will depend on a lot of factors, including the strength of your case, the amount being offered to you, and the judge you are in front of, as well as many other factors. Given the factual complexity of this question, the best way to get an answer is to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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This employment law website is an advertisement. The race discrimination, sexual harassment, gender discrimination and settle materials available at the top of this page and at this employee’s legal work rights website are for informational purposes only and not for the purpose of providing legal advice. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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