Spitz, The Employee's Law Firm Spitz, The Employee’s Law Firm 2026-10-14T18:31:38Z https://www.calltherightattorney.com/feed/atom/ WordPress /wp-content/uploads/sites/1604777/2020/06/cropped-site-identity-1-32x32.png by Spitz, The Employee's Law Firm <![CDATA[Worked Off the Clock Without Getting Overtime Pay?]]> https://www.calltherightattorney.com/?p=263503 2026-09-23T15:17:32Z 2026-09-24T16:00:59Z Employee working after clocking out in an unpaid overtime and wage theft dispute

When an Employer Can Be Liable for Unpaid Work Hours

Punch in. Work. Punch out. Lunch. Punch in. Work. Punch out. Go home. The time clock is supposed to draw a clean line between an employee’s time and the employer’s time, then send the work side of that line to payroll. Funny how that line can get blurry when overtime gets expensive.  A few things before you punch in. A meeting, call, or “quick task” during lunch. Just finish these last few things after you punch out. Each detour may steal only 15 or 20 minutes. Stack them together every day, however, and those supposedly insignificant minutes can become serious unpaid wages and overtime pay. An employee is entitled to be paid for hours worked even when those hours never make it onto the timecard.  Patrick Wells Byrne claimed that happened at Goodwill South Florida TEP, LLC. Byrne was an hourly assistant operations manager scheduled from 8:00 a.m. to 4:30 p.m., earning $27.40 per hour and $41.10 for overtime. He testified that before 8:00 he opened gates, loading docks, and bay doors, prepared the daily schedule, and loaded computers. He also claimed he worked through lunch and after 4:30 performing closing duties, handling emails and online listings, receiving late trucks, dealing with alarms, securing the building, and sometimes waiting with employees for late transportation.   Byrne estimated that he typically worked about 48 hours per week. At his $41.10 overtime rate, eight unpaid overtime hours equal $328.80 per week, about $1,424.80 per month, and $17,097.60 over 52 weeks. That is not pocket change. That is car-payment-and-mortgage-payment money.   Goodwill moved for summary judgment relying on its time and payroll records, written policies, and declarations from supervisors and coworkers. The district court excluded Byrne’s late-produced TOPS! text messages, found his declaration insufficient to create a genuine factual dispute, concluded that he had not shown unpaid overtime, and entered judgment for Goodwill.   In Byrne v. Goodwill S. Fla. Tep, LLC, 2026 U.S. App. LEXIS 27991, the United States Court of Appeals for the Eleventh Circuit vacated that judgment. The appellate court held that Byrne’s sworn testimony and declaration created genuine disputes over whether he worked unpaid overtime and whether Goodwill knew or should have known about it.  

Legal Takeaway

[box] A timecard records what was entered; it does not necessarily prove every hour an employee actually worked. Specific evidence of off-the-clock work can support a claim under the Fair Labor Standards Act (“FLSA”) for unpaid wages and overtime pay even when the employer’s official records tell a different story. [/box]

Can My Employer Refuse to Pay Me for Work I Did Off the Clock?

No. An employer cannot avoid paying an employee merely because compensable work occurred outside the recorded shift. Under the FLSA, an employer must pay one-and-a-half times the regular rate for hours worked beyond 40 in a workweek. To recover unpaid overtime, the employee must prove both that the overtime work occurred and that the employer knew or should have known about it.   Byrne’s allegations show how wage theft can live in the margins of a workday. He described actual jobs that had to be done when the clock allegedly was not running: opening gates and loading docks, preparing schedules, working through lunch, handling emails, receiving late trucks, closing the warehouse, checking bathrooms, dealing with alarms, and making sure other employees had left.   Goodwill pointed to its time records. Byrne testified that those records captured what he was paid for, not everything he actually worked. The Eleventh Circuit Court of Appeals held that he met his threshold burden with sworn evidence that he worked “before clocking in, after clocking out, and through lunch breaks.”   A punch is evidence of time. It is not a magic eraser for work.  That distinction should shape any wage and hour investigation. An attorney should ask what the employee actually did, when the work occurred, whether those hours pushed the employee over 40, and who knew the work was happening. The employer’s timecard is evidence. It is not automatically the answer.  Practical Tip: Identify recurring work that happened outside your recorded shift by task and approximate time. “I opened the building for 20 minutes before clocking in” gives a wage and hour lawyer something concrete to investigate; “I worked extra sometimes” gives the employer room to call the claim speculation. 

Best Overtime Pay Lawyer Blogs on Point:

How Can I Prove Unpaid Overtime if My Timecard Is Wrong?

You do not need a perfect minute-by-minute reconstruction when your employer’s records are inaccurate. If wage records are inaccurate or inadequate, an employee may prove uncompensated work with evidence sufficient to show the amount and extent of that work as a “just and reasonable inference.” The burden then shifts to the employer to produce evidence of the precise amount worked or evidence defeating the reasonableness of that inference.   Byrne estimated that he averaged approximately 48 hours per week. Goodwill had plenty to attack that number with. Its records showed fewer than 40 hours in 45 weeks because of holidays, vacation, or sick time, while 56 other weeks reflected paid overtime. Goodwill also argued that Byrne knew how to report payroll problems because he used manual timesheets, processed other employees’ hours, and later complained about a final-paycheck issue.   Those facts could reduce Byrne’s recovery. They did not automatically erase his claim.  The Eleventh Circuit Court of Appeals held that Goodwill could challenge Byrne’s estimate, use its payroll records, and argue that some weeks involved fewer than 40 hours or already-paid overtime. But those arguments went to “the reasonableness and amount of recovery,” not whether his evidence created a triable issue. Byrne had identified tasks, approximate times, supervisors, and reasons he claimed the employer’s records missed the work.   An inaccurate timecard should not become the employer’s reward for keeping an inaccurate timecard.  A wage and hour lawyer investigating unpaid wages can work backward from recurring duties, schedules, lunch interruptions, communications, and approximate start and stop times. Precision helps. Perfection is not necessarily required.  Practical Tip: Reconstruct the workday by activity instead of beginning with a guess at total hours. Write down recurring pre-shift duties, interrupted lunches, and post-shift duties separately, then estimate the time each took. That gives an attorney a factual basis for calculating overtime pay and defending the estimate.  Best Wage Theft Attorney Blogs on Point: 

Can My Employer Avoid Paying Time and a Half by Claiming It Did Not Know and Had a Policy Against Overtime Work? 

Not necessarily. An employer may have an impressive written policy against off-the-clock work and still face an FLSA claim if supervisors knew or should have known that employees were actually performing unpaid overtime. Paper policy and workplace practice are not necessarily the same thing.  Goodwill had favorable paperwork. Byrne had received policies prohibiting off-the-clock work and directing employees how to report pay problems. Goodwill also produced an email from Director of Loss Prevention Adolfo Aragon telling Byrne that he should not work off the clock or respond to emails unless he was exempt.   Byrne testified to a very different practice. According to Byrne, Kevin Martin told him not to clock out after 4:30 without authorization but required unfinished work to be completed off the clock. Martin allegedly told him to clock out for lunch whether he took the break, stop clocking in before 8:00 even though morning duties remained, and stop clocking out after 4:30 because human resources and payroll were complaining about overtime.   If a jury believed that account, the policy did not solve Goodwill’s problem. The Eleventh Circuit Court of Appeals held that Byrne’s testimony, “if credited, supports both elements of Byrne’s FLSA claim: unpaid overtime and employer knowledge.” It further held that a policy prohibiting off-the-clock work did not conclusively establish that the policy was actually followed.   What the employer actually required matters more than what its policy prohibited.  That is a critical wage and hour distinction. A lawyer evaluating possible wage theft should compare the written rule with what supervisors instructed employees to do, what managers observed, and whether the assigned work could realistically be completed during recorded hours.  Practical Tip: If a supervisor tells you to clock out but continue working, preserve the instruction with the surrounding facts: who gave it, when, what work remained, and whether the supervisor knew you were performing it. Those details can connect the unpaid wages directly to employer knowledge.  Best FLSA Law Firm Blogs on Point: 

Can My Sworn Testimony Be Enough to Prove an Unpaid Overtime Claim?

Yes. An employee does not necessarily need a smoking-gun email, secret recording, or supporting coworker to get an unpaid overtime claim to a jury. Sworn testimony based on personal knowledge can itself create a genuine factual dispute.  That principle was central to the reversal. The Eleventh Circuit Court of Appeals held that Rule 56 does not require sworn statements based on personal knowledge to be independently corroborated. More directly, the appellate court held that a judge “may not disregard sworn testimony merely because it is self-serving or uncorroborated.”   There is a boundary. Signing a declaration does not turn speculation into evidence. The testimony must be based on personal knowledge, contain admissible facts, and come from a person competent to testify about them. The Eleventh Circuit Court of Appeals held that testimony may still be rejected when it is “conclusory, speculative, inadmissible, or blatantly contradicted.”   Goodwill did have substantial evidence contradicting Byrne. One particularly concrete example hurt part of his account: Byrne claimed Javier Fernandez continued the off-the-clock instructions during an April 1, 2024 meeting, while Fernandez produced a declaration and Airbnb records showing he was in Georgia from March 31 through April 4. The appellate court held that evidence undermined the alleged April 1 meeting, but not Byrne’s earlier allegations involving Martin. A weakness in one part of the story did not automatically destroy the rest of it.   Ultimately, the appellate court held that Goodwill had offered “substantial contrary evidence,” but resolving the conflict required weighing competing evidence and making credibility determinations. “Under Rule 56, that is the jury’s role.”   Two competing stories do not give the judge permission to pick the winner before trial.  For an employee pursuing overtime pay, that rule can determine whether a case ever reaches a jury. A strong attorney develops firsthand testimony with enough detail to survive an employer’s attempt to characterize the claim as nothing more than accusation or guesswork.  Practical Tip: Separate what you personally saw, heard, and did from what you assume happened. Specific firsthand facts give a lawyer admissible evidence to develop and give the employer less room to attack an overtime claim as speculation.  Best Wage and Hour Attorney Blogs on Point: 

How Can an Overtime Lawyer Help Me Recover Unpaid Wages?

An experienced overtime lawyer does not begin and end an investigation with whatever appears in the payroll system. A strong wage and hour lawyer reconstructs the actual workday, tests the time records against the employee’s duties, identifies who knew the work was occurring, calculates potential unpaid wages, and develops evidence capable of surviving an employer’s challenge. In a wage theft case, the difference between “I worked extra” and detailed, admissible proof can be the difference between dismissal and a jury trial.  Spitz, The Employee’s Law Firm, represents employees, not employers. Spitz is one of the largest law firms in the United States dedicated to employee rights, giving our attorneys the resources to investigate serious wage and hour claims and the trial experience to litigate them when an employer refuses to pay. We also understand that missing overtime pay is not an abstract legal problem when it represents money that should have gone toward a mortgage, car payment, groceries, or family expenses. Spitz offers a free initial consultation and a No Fee Guarantee. If you believe you were required to work off the clock, denied overtime, or deprived of other wages, talk with a Spitz lawyer about the evidence and what options may be available. 

Frequently Asked Questions About Unpaid Overtime 

[box] Can working through my unpaid lunch count as overtime?  Yes. If an employee performs work during an unpaid lunch period, that time can count as hours worked. If the additional time pushes the employee beyond 40 hours in a workweek, it can result in overtime pay.  Can I be owed unpaid overtime even if I received overtime pay on some paychecks?  Yes. Being paid overtime for some hours does not establish that the employer recorded and paid every overtime hour worked. An employee may still have unpaid wages if additional compensable work was omitted from the records.  Does work I perform before my scheduled shift count toward overtime?  It can. Required work performed before clocking in can count as working time and may contribute to overtime when total hours exceed 40 in a workweek.  Does work I perform after clocking out count toward overtime?  It can. Completing assignments, handling work communications, closing a workplace, or performing other required duties after clocking out may count toward hours worked and result in unpaid overtime.  Do I need to know the exact number of unpaid overtime hours before talking to a wage and hour lawyer?  No. Inaccurate or incomplete employer records may make an exact calculation impossible at the outset. A wage and hour lawyer can evaluate schedules, recurring duties, approximate work times, communications, and other evidence to determine whether an employee may have an FLSA claim for unpaid wages. [/box] Employment Lawyer Disclaimer  This employee’s rights and wage and hour blog provides general information about overtime, wage theft, unpaid wages, overtime pay, employee rights, and the FLSA and should not be taken or relied upon as legal advice for any specific situation. Wage claims depend on the particular facts, evidence, applicable law, and deadlines involved. Employees with questions about unpaid work or other compensation issues should consult a qualified employment lawyer, wage and hour lawyer, or attorney for advice concerning their individual circumstances. No promise or guarantee is made concerning any result. Past results do not guarantee future outcomes. This blog is a legal advertisement. Reading this blog, visiting the Spitz website, or communicating with Spitz does not create an attorney-client relationship, and no attorney-client relationship exists unless and until Spitz agrees to representation. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can We Handle Our Employment Lawsuit Without A Lawyer?]]> https://www.calltherightattorney.com/?p=263460 2026-09-09T17:46:06Z 2026-09-22T16:00:33Z Two employees studying court papers together before handling their own employment discrimination appeal without an employment lawyer.

When Going Pro Se Together Just Means Losing With Company 

We have preached before about the dangers of an employee handling an employment discrimination or wrongful termination case by going it alone. Apparently, two employees thought they found a loophole to avoid hiring an employee’s rights lawyer: don’t go it alone. Go together.  Nope.  Two pro se plaintiffs do not equal one lawyer.  If you want quality time with a friend, take a cruise. Join a pickleball league. Split the Pick Three appetizer at Friday’s. There are hundreds of activities better suited for friendship than trying to figure out federal appellate procedure together. IKEA furniture without the instructions? Still probably higher on the list.  Susan Shipp and Kailyn Cook learned that lesson the expensive way. They originally had counsel when they sued the Albany County Board of County Commissioners, bringing First Amendment retaliation claims and Title VII claims for hostile gender discrimination work environment, discrimination, retaliation, and wrongful termination. The district court granted summary judgment against them and dismissed all of their claims.  Then came the appeal.  Without counsel.  Shipp and Cook represented themselves before the United States Court of Appeals for the Tenth Circuit. They argued that the district court overlooked evidence, improperly resolved credibility disputes, and mishandled their retaliation and discrimination claims. Maybe they had arguments worth hearing. We will never know from this decision. Because before an appellate court decides whether your argument wins, you have to properly make the argument.  They didn’t.  The Tenth Circuit Court of Appeals held that their arguments were conclusory. They provided no record citations. The few legal authorities they cited did not establish error. Worse, they failed to challenge the district court’s dispositive rulings. The result was not a judicial do-over or some extra help because they were not attorneys. It was waiver of appellate review. Cook v. Albany County Board of County Commissioners, No. 25-8047, 2026 U.S. App. LEXIS 27384, at *4–6 (10th Cir. Sept. 4, 2026). 

Legal Takeaways

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  • Employees who represent themselves must still comply with procedural rules. The Tenth Circuit Court of Appeals held that pro se litigants must “follow the same rules of procedure that govern other litigants.” 
  • An employee can waive appellate review by failing to properly develop arguments, cite the record, and challenge the rulings that actually caused the employee to lose. 
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Will An Appeals Court Figure Out My Employment Law Arguments For Me?

No. An appeals court reviews legal errors that you properly present. It is not a second chance to tell another group of judges why you think what happened was unfair.  Cook and Shipp had plenty to say about what they thought went wrong. They argued that the district court overlooked evidence, improperly resolved credibility disputes, relied on an overly narrow at-will employment framework, ignored protections for public employees, and failed to properly address retaliation for protected speech and whistleblower activity.  Those may all sound unfair.  But unfair is not a legal standard. And unfair is not an appellate procedure.  An appeal requires more. Federal Rule of Appellate Procedure 28(a)(8)(A) required Cook and Shipp to present their contentions, the reasons supporting them, and citations to the legal authorities and portions of the record upon which they relied. The Tenth Circuit Court of Appeals held that an appellate brief requires more than a generalized assertion that the district court made a mistake. Cook, 2026 U.S. App. LEXIS 27384, at *4–5.  This is where representing yourself gets you into trouble. You may know why you believe your employer discriminated against you. You may know which evidence you think the judge got wrong. You may even be completely convinced that the result was unfair. None of that tells you how to convert those complaints into reversible legal error.  Cook and Shipp did not make that conversion. The Tenth Circuit Court of Appeals held that their opening brief “does not come close to complying with these requirements.” Their arguments were conclusory. They provided no citations to the record. And the few legal authorities they cited did not demonstrate why the district court’s dispositive rulings were wrong. Id. at *5.  Nor would the judges do that work for them. Relying on Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005), the Tenth Circuit Court of Appeals applied the rule that “we cannot fill the void by crafting arguments and performing the necessary legal research.” Cook, 2026 U.S. App. LEXIS 27384, at *4–5.  Judges are not coming to rescue your appellate brief.  Cook and Shipp gave the Tenth Circuit Court of Appeals reasons they believed the result was wrong. What they needed were properly developed legal reasons the judgment could be reversed. That difference ended up being everything.  Practical Tip: If you are challenging the dismissal of an employment discrimination, retaliation, or wrongful termination claim, start with the precise legal basis for the ruling against you. An appeal must demonstrate why that ruling was legally erroneous, with supporting authority and record citations—not merely why you believe the result was unfair.  Best Employment Discrimination Lawyer Blogs on Point: 

Can I Skip Over Court Rules If I Just Don’t Understand Them? 

No. And this is where the legal system can feel incredibly unfair to an employee representing themselves.  You believe your employer discriminated against you. Or retaliated against you. Or wrongfully fired you. You want the appeals court to decide whether you are right. Instead, the court tells you that it will not reach the merits because you did not properly present the issues in your appellate brief.  That may not seem fair. But the proper form for presenting an argument is what gets the merits before the court in the first place.  Cook and Shipp learned that distinction the hard way. Federal Rule of Appellate Procedure 28(a)(8)(A) required their opening brief to support their arguments with citations to legal authority and the relevant parts of the record. Their opening brief contained no record citations.  And that was not an oversight.  In their reply brief, Cook and Shipp acknowledged that they had “made the deliberate choice to avoid formal citations.” Their reasoning was understandable on a human level: “[r]ather than risk mis-citing the record or inaccurately referencing materials,” they decided not to formally cite them. The Tenth Circuit Court of Appeals did not find that explanation compelling. Cook, 2026 U.S. App. LEXIS 27384, at *6 n.3.  That is like avoiding spelling mistakes by refusing to use words.  Worse, the problem went beyond citation form. The Tenth Circuit Court of Appeals held that Cook and Shipp also failed to challenge the district court’s dispositive conclusions. That independently waived appellate review. The authority applied in Cook makes the obligation remarkably simple: “The first task of an appellant is to explain to us why the district court’s decision was wrong.” Nixon v. City & County of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015).  Cook and Shipp never successfully completed that first task.  And that is the painful part. The Tenth Circuit Court of Appeals did not decide whether Cook and Shipp were right about every alleged error they identified. It held that their deficient briefing waived appellate review. Their effort to avoid making mistakes with the record helped produce a much bigger mistake: they failed to properly put their arguments before the judges who could review them.  Court rules can look like technicalities when you are focused on what your employer did to you. They are not. They are the rules for getting the court to consider what your employer did to you.  Practical Tip: If you do not understand a procedural requirement in an employment discrimination, retaliation, or wrongful termination appeal, do not simply omit it. A procedural mistake can prevent the appellate court from ever reaching the merits of the employment law claim you wanted it to decide.  Best Wrongful Termination Attorney Blogs on Point: 

When Is It Best To Consult An Attorney About Discrimination, Wrongful Termination, Or A Hostile Work Environment? 

Before you need someone to fix a mistake that could have been avoided.  If you believe your employer is discriminating against you, subjecting you to a hostile work environment, retaliating against you, or preparing to wrongfully fire you, consulting an employment lawyer early can help you understand what facts matter, what evidence should be preserved, and what decisions could affect your legal rights. And if you have already been wrongfully fired, the best time to consult an attorney is now—not after trying to navigate an employment discrimination lawsuit on your own.  Spitz, The Employee’s Law Firm represents employees, not employers. We are one of the largest law firms in the United States dedicated to protecting employee rights. Our attorneys understand that proving something was unfair at work and proving unlawful discrimination, retaliation, hostile work environment, or wrongful termination are very different things. We also understand how procedural mistakes can keep strong facts from ever being considered on their merits.  Our employment lawyers have the resources and trial experience to take on employers of every size, while never forgetting that every case belongs to an employee whose job, income, reputation, and future may be at stake. We offer a free initial consultation and our No Fee Guarantee means you pay no attorney fees unless we recover for you.  If you think your employer violated your rights, talk with an employment lawyer before going it alone—or together with a friend.  Best Employee Rights Law Firm Blogs on Point: 

Frequently Asked Questions About Employment Discrimination And Wrongful Termination 

[box] Can I Represent Myself In An Employment Discrimination Lawsuit?  Employees can represent themselves, but pro se employees are still required to follow the procedural rules that apply to their case. Missing a deadline, failing to properly support an argument, or failing to preserve an issue can prevent a court from considering the merits of a discrimination or wrongful termination claim.  What Does Pro Se Mean In An Employment Law Case?  Pro se means representing yourself in court without an attorney. An employee proceeding pro se is responsible for handling the legal and procedural requirements that an employment lawyer would ordinarily address.  Can My Employer Fire Me Because I Complained About Discrimination?  An employer cannot lawfully retaliate against an employee for engaging in activity protected by applicable employment discrimination law. Whether a termination amounts to unlawful retaliation depends on the particular facts and governing law.  Is An Unfair Termination The Same As Wrongful Termination?  No. An employer can make a decision that seems unfair without necessarily violating employment law. A wrongful termination claim requires a legal basis showing that the termination was unlawful, not merely unreasonable or unfair.  Can A Hostile Work Environment Be Illegal Discrimination?  Yes, a hostile work environment can violate employment discrimination law when the applicable legal requirements are satisfied. Workplace hostility, bullying, or unfair treatment alone does not necessarily establish an unlawful hostile work environment.  Can I Lose A Wrongful Termination Case Because Of A Procedural Mistake?  Yes. Procedural requirements can determine whether a court ever reaches the merits of an employee’s wrongful termination, discrimination, or retaliation claim. Having strong facts does not excuse failing to properly present or preserve the legal claim. [/box] Employment Lawyer Disclaimer  This employment discrimination, wrongful termination, and hostile work environment blog is provided for general informational purposes only and is not legal advice. Employment law varies depending on the applicable federal, state, and local laws and the specific facts involving each employee and employer. If you believe you were wrongfully fired, subjected to discrimination or a hostile work environment, retaliated against, or otherwise denied your workplace rights, consult with a qualified employment lawyer about your individual circumstances. Reading this blog, submitting information through our website, or communicating with Spitz, The Employee’s Law Firm does not by itself create an attorney-client relationship. Past results do not guarantee or predict the outcome of any future discrimination, retaliation, hostile work environment, or wrongful termination case. No employment attorney or lawyer can promise a particular result. This blog may constitute attorney advertising or a legal advertisement under applicable rules. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Employer Start Over To Avoid Hiring A White Man?]]> https://www.calltherightattorney.com/?p=263457 2026-09-09T17:39:25Z 2026-09-17T16:00:16Z Diverse group of job candidates waiting outside an interview room during a hiring process.

Race Discrimination Does Not Become Legal With A Do-Over 

Proving employment discrimination can be hard. An employee rarely gets an email from the employer announcing, “We made this hiring decision because of your race.” Employment lawyers usually have to prove discriminatory intent of race discrimination through suspicious timing, shifting explanations, better treatment of other employees, and other evidence.  Michael Sack allegedly got something considerably less subtle.  Sack applied to become St. Louis police commissioner. After other candidates dropped out of the testing process, Sack and one other candidate were the only two who received test scores and completed the process to be considered. Sack allegedly scored 100, ranked first on the eligibility list, and was certified for the position. Both remaining candidates were white men.  Then Mayor Tishaura Jones allegedly announced that she was “not going to pick” either candidate because she “only had two white male candidates to choose from and St. Louis is more diverse than white males.” The City later started a new search with lower minimum qualifications.  Well, that certainly narrows the search for evidence of discriminatory motive.  If an employer makes a hiring decision because of an applicant’s race, that is race discrimination: treating a person differently in employment because of race. Calling the decision “diversity” does not change what happened. If race allegedly caused the employer to reject a candidate, discard the hiring process, or restart the search to obtain a different racial result, race was not merely part of the background. It was the stated reason for the decision.  Sack sued Jones and Daniel Isom for race discrimination in violation of the Equal Protection Clause. The case was still at the pleading stage, so Sack had not yet proven his allegations. The United States Court of Appeals for the Eighth Circuit was required to accept his allegations as true and draw reasonable inferences in his favor in deciding whether Jones and Isom were entitled to qualified immunity. Sack v. City of St. Louis, No. 25-3044, 2026 U.S. App. LEXIS 27347, at *1–4 (8th Cir. Sept. 4, 2026). The Eighth Circuit Court of Appeals affirmed the denial of qualified immunity. Applying the same framework used for Title VII employment discrimination claims, it held that Ricci v. DeStefano clearly established that “invalidating the results of an established hiring process based on race is unlawful.” Sack, 2026 U.S. App. LEXIS 27347, at *5–6.  Starting over did not make the alleged racial motivation disappear. 

Legal Takeaways

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  • An employer cannot make an adverse employment decision because of an employee’s race simply because the employer wants a more racially diverse result. 
  • The Eighth Circuit Court of Appeals held that allowing an employee to compete again does not erase the alleged discrimination caused by discarding the original hiring process for racial reasons  
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Can An Employer Refuse To Hire Me Because It Wants More Racial Diversity?

No. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination because of race. It does not identify one race that gets protection and another that does not. Race discrimination against a white employee is still race discrimination.  That principle is central to Sack. The Eighth Circuit Court of Appeals held that employment discrimination claims under the Fourteenth Amendment are analyzed under a framework parallel to Title VII. It relied directly on Ricci v. DeStefano, 557 U.S. 557 (2009), where white firefighters challenged a city’s decision to discard promotional test results because the racial results were not what the city wanted. According to Sack’s complaint, Jones was not subtle about the role race allegedly played. She stated that she was “not going to pick” either certified candidate because she had “only two white male candidates to choose from and St. Louis is more diverse than white males.” Sack, 2026 U.S. App. LEXIS 27347, at *2.  Wanting diversity, while an admirable goal, does not make that alleged racial consideration disappear.  In Ricci, the Supreme Court confronted a similar problem. A city rejected firefighter promotional test results because “too many whites and not enough minorities would be promoted” if the results were certified. Ricci, 557 U.S. at 579. The Supreme Court held that, “[w]ithout some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.” Id.  Notice what that rule does not say: because of an individual’s race, unless the individual is white.  The Eighth Circuit Court of Appeals therefore held that Ricci clearly established that “invalidating the results of an established hiring process based on race is unlawful.” Sack, 2026 U.S. App. LEXIS 27347, at *5.  The defense argued that Sack was never entitled to the promotion. But the Eighth Circuit Court of Appeals rejected that reading of Ricci. The firefighters in Ricci were not all guaranteed promotions either. The adverse employment action included denying them an established route to promotion because of race.  An employer does not get to establish a hiring process, see which races emerge as the successful candidates, and then decide whether it likes the racial result enough to honor the process. Diversity may be the employer’s stated objective. Using an applicant’s race against that applicant is still race discrimination.  Practical Tip: If an employer mentions your race when explaining why you were not hired or promoted, preserve the exact statement, who made it, when it was made, and who heard it. The decisionmaker’s own words can be powerful evidence that race affected the employment decision.  Best Race Discrimination Attorney Blogs on Point: 

Can My Employer Fix Race Discrimination By Starting The Hiring Process Over?

No. If an employer abandons an established hiring process because of race, allowing the employee to compete again in a new process does not necessarily cure the discrimination that already occurred.  The defendants argued that Sack had not suffered an adverse employment action because he remained under consideration after the City reopened the search. He still had another opportunity to compete for police commissioner.  The Eighth Circuit Court of Appeals rejected that argument.  Sack alleged that the original process left him as the highest-ranked and only eligible applicant after the other certified candidate retired. He also alleged that the City’s Civil Service Rule permitted additional candidates only if the appointing authority was unable to fill the vacancy from the existing list. According to Sack, the only reason the City could not fill the position from that list was its decision to discriminate based on race.  Instead of completing that process, the City reopened the search and lowered the minimum qualifications.  That was not simply another opportunity. According to Sack’s allegations, it was a worse opportunity created because the employer did not like the racial result of the better one he already had.  The Eighth Circuit Court of Appeals held that Ricci defeated the defendants’ argument. The adverse action there occurred when the employer refused, for racial reasons, to honor the results of an established promotional process. The firefighters did not have to prove that they were forever barred from future consideration.  The Eighth Circuit Court of Appeals put the rule directly: “The ability to compete in a new search process, engineered for reasons of race, does not avoid a violation of equal protection in the first hiring process.” Sack, 2026 U.S. App. LEXIS 27347, at *8.  An employer cannot necessarily erase alleged race discrimination with a reset button. If race was the reason for the do-over, the do-over may itself be the problem.  Practical Tip: If your employer cancels or restarts a hiring or promotion process after you qualify, preserve both versions of the process. Keep the original and revised job postings, qualifications, rankings, test results, eligibility lists, and communications explaining why the employer started over.  Best Wrongful Failure to Hire Attorney Blogs on Point: 

Does Hiring Someone Of My Same Race Defeat My Discrimination Claim? 

No. Hiring someone of the same race does not automatically defeat a race discrimination claim. The proper question is whether race motivated the particular employment decision that harmed the employee.  The defendants had a seemingly powerful fact. In the reopened search, the City selected four finalists: Sack, two black candidates, and Robert Tracy, who was white. The two black candidates withdrew. Tracy ultimately got the job.  So a white man got the position Sack claimed he was denied because he was white.  But that targets the wrong decision.  Sack challenged what allegedly happened before Tracy was selected. He alleged that the original hiring process produced two certified white male candidates and that Jones refused to select either because of their race. The City then abandoned that process and created a new one.  The Eighth Circuit Court of Appeals held that Sack plausibly alleged that officials “reopened an application process and changed its requirements because the two resulting candidates were white.” Sack, 2026 U.S. App. LEXIS 27347, at *4.  That alleged employment action had already occurred before Tracy was hired.  A later white hire does not retroactively make an earlier race-based decision race-neutral.  The race of the eventual hire may be relevant evidence. It simply does not answer the decisive question by itself. If the challenged decision was abandoning the original process because the certified candidates were white, then the issue is why that original decision was made.  In Sack’s complaint, the alleged answer came from Jones herself.  Practical Tip: If an employer responds to your race discrimination complaint by pointing out that it hired someone of your race, identify the specific employment decision that harmed you. Preserve evidence showing who made that decision, what was said at the time, and whether the employer’s process changed because of race.  Best Employment Discrimination Law Firm Blogs on Point: 

What Should I Do If My Employer Says Race Affected A Hiring Decision? 

Preserve the evidence. If an employer, supervisor, or decisionmaker tells you that race affected a hiring or promotion decision, save the email, text, recording, or other communication if you lawfully possess it. If the statement was verbal, write down the exact words, date, location, and everyone who heard it. Then talk with an experienced employment lawyer about whether the facts support a race discrimination claim.  Spitz, The Employee’s Law Firm, is one of the largest law firms in the United States dedicated to representing employees. Our attorneys focus on employment law and represent employees facing race discrimination, hiring discrimination, wrongful termination, retaliation, harassment, and other unlawful workplace conduct.  Evidence of discrimination is rarely as obvious as an employer expressly mentioning race. Our employment lawyers know how to investigate what happened before and after the challenged decision, compare the employer’s stated reasons with its actual conduct, and identify the evidence needed to prove unlawful discrimination.  Spitz offers a free initial consultation and our No Fee Guarantee, which means you do not pay attorney fees unless we obtain a recovery for you. If you believe an employer used your race against you in a hiring, promotion, or other employment decision, contact Spitz to discuss your rights with an experienced employment discrimination attorney. 

Frequently Asked Questions About Race Discrimination 

[box] Does race discrimination law protect employees of every race?  Yes. Employment discrimination law prohibits adverse employment decisions because of race. The protection is not limited to employees of a particular race. The Eighth Circuit Court of Appeals applied the same employment discrimination framework used under Title VII in evaluating a white applicant’s claim that government officials acted against him because of race.  Do I have to prove I was guaranteed the job to bring a race discrimination claim?  No. An employee may suffer an adverse employment action even without a guaranteed right to the job or promotion. Denying an employee an established route to promotion because of race can itself qualify as an adverse employment action. The employee does not necessarily have to prove that the promotion was certain before the discriminatory decision occurred.  Can changing job qualifications be evidence of race discrimination?  It can be. If an employer changes minimum qualifications, selection criteria, or the applicant pool after learning who qualified under the original process, the reason for those changes may become important evidence. A change made because of race can support a claim that the employer interfered with an established hiring or promotion opportunity for discriminatory reasons.  Can losing a fair chance at a promotion count as an adverse employment action?  Yes. An adverse employment action is not limited to termination or an outright refusal to hire. An employee can be adversely affected when an employer denies an established opportunity to compete for or receive a promotion because of race, even if another hiring process later becomes available.  Can an employer change a hiring process after candidates have already been ranked?  An employer may have legitimate reasons to change or restart a hiring process, but race cannot lawfully be the reason for invalidating an established process. The Eighth Circuit Court of Appeals held that once an employer has established a process and made its selection criteria clear, it may not invalidate the results for racial reasons. [/box] Employment Lawyer Disclaimer  This employee rights, race discrimination, hiring discrimination, and wrongful termination blog is provided for general informational purposes only and is not legal advice. Employment law varies based on the applicable federal, state, and local law and the specific facts involving each employee and employer. If you believe you were subjected to race discrimination, denied a job or promotion because of race, wrongfully fired, retaliated against, or otherwise denied workplace rights, consult with a qualified employment lawyer about your specific situation. Reading this blog, submitting information through our website, or communicating with Spitz, The Employee’s Law Firm does not by itself create an attorney-client relationship. Past results do not guarantee or predict the outcome of any future discrimination, retaliation, hiring, or wrongful termination case. No attorney or lawyer can promise a particular result. This blog may constitute attorney advertising or a legal advertisement under applicable rules. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can A Black Employee Be Fired When A White Employee Gets A Second Chance?]]> https://www.calltherightattorney.com/?p=263455 2026-09-09T17:35:01Z 2026-09-15T16:00:55Z Black and white construction employees working together at an industrial jobsite.

Why Breaking A Workplace Rule Does Not Defeat Race Discrimination 

Here is a bad fact for an employee asserting a claim of race discrimination: your employer had a rule, you broke it, and the rule allowed you to be fired.  Is your wrongful termination over?  Not when the employer gives a white employee who broke the same rule a second chance.  That is the employment discrimination problem the United States Court of Appeals for the Eleventh Circuit confronted in Hall v. Coal Bed Services, Inc., No. 24-10572, 2026 U.S. App. LEXIS 26926 (11th Cir. Sept. 1, 2026).  DeMarkus Hall and Eddie Hughes, who are Black, complained about race discrimination at work. About a month later, they refused a drug test and were terminated. So did their white coworker, Brandon Ramsey. But Ramsey asked for his job back and returned the next workday. Hall and Hughes repeatedly sought the same treatment and did not get it. Ramsey was also paid for a full shift on the day of the drug test, while Hall and Hughes received only four hours of pay. The next two workers hired for their positions were white, including one the employer previously fired for failing a drug test. Id. at *2, *6–8.  Hall and Hughes brought race discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district court granted summary judgment to the defendants holding that employees can be fired for refusing a drug test. The Eleventh Circuit reversed, holding that the evidence could permit a reasonable jury to find intentional race discrimination. Id. at *2, *9–15.  Title VII does not require you to be a perfect employee before it protects you from race discrimination. Breaking the rule may explain why an employer imposed discipline. It does not necessarily explain why a Black employee stayed fired while a white employee who committed the same misconduct got his job back.  Legal Takeaways 
  • Violating a workplace rule does not automatically defeat a race discrimination claim when other evidence supports an inference that the employer imposed different consequences because of race. 
  • An employee does not need direct evidence of racial bias. Circumstantial evidence can permit a reasonable jury to find discrimination. 
  • Better treatment of a white employee may be important evidence even when differences between the employees prevent a formal comparison under the McDonnell Douglas framework. 

Does Breaking A Workplace Rule Defeat My Race Discrimination Claim?

It might. Violating a workplace rule may provide an employer with a legitimate, nondiscriminatory reason for termination. But nondiscriminatory is doing important work in that sentence. Under Title VII, an employer cannot apply workplace rules or the consequences for violating those rules differently because an employee is Black rather than white. Title VII prohibits employment discrimination “because of [an] individual’s race.” Hall, 2026 U.S. App. LEXIS 26926, at *10 (quoting 42 U.S.C. § 2000e-2(a)(1)). The ultimate question is whether the evidence is sufficient for a reasonable jury to infer unlawful discrimination. Id. (citing McCreight v. AuburnBank, 117 F.4th 1322, 1335 (11th Cir. 2024)).  The easiest way to see the discrimination issue in Hall is to convert what actually happened into the workplace rule Coal Bed Services effectively applied: Black employees who refuse a drug test will be fired and paid only for the hours they worked. White employees who refuse the same drug test will be “fired,” enjoy a paid afternoon off, and be rehired the next workday.  If the employee handbook contained that rule, nobody would have much trouble spotting the race discrimination problem.  The analysis should not change merely because the employer never wrote the rule down. The Eleventh Circuit found Ramsey’s different treatment “highly significant” because he engaged in “the same misconduct on the same day at the same time” as Hall and Hughes. All three were terminated. All three wanted their jobs back. But Ramsey was rehired immediately, while Hall and Hughes could not get the company to meaningfully consider doing the same for them. Id. at *14–15.  And that was not the only difference. All three worked a half shift, but Coal Bed Services paid Ramsey for a full shift while paying Hall and Hughes for only four hours. That disparate treatment was among the evidence the Eleventh Circuit considered in determining whether a jury could infer intentional race discrimination. Id. at *11–12.  None of that means Coal Bed Services was proven to have discriminated. The case was at summary judgment. But it certainly created a pathway for a jury to find discrimination. The Eleventh Circuit held that the evidence was “convincing enough that a jury reasonably could find” that Coal Bed Services racially discriminated against Hall and Hughes in terminating them and refusing to consider them for reemployment on the same terms as Ramsey. Id. at *12.  So, yes, breaking a workplace rule can defeat a race discrimination claim. But proving that a Black employee deserved discipline is not necessarily the same as proving that the employer’s actual treatment of that employee was nondiscriminatory.  A race-neutral rule on paper does not remain race-neutral if the consequences depend on whether the employee who breaks it is Black or white.  Practical Tip: When evaluating whether discipline was discriminatory, do not stop with the written company policy. Compare the actual consequences imposed on Black and white employees who violated it—including lost pay, termination, second chances, and rehire decisions. The best evidence may be what the employer actually did rather than what its handbook promised.  Best Race Discrimination Law Firm Blogs on Point: 

Do I Need Direct Evidence To Prove Race Discrimination At Work? 

No. An employee does not need direct evidence to prove race discrimination at work. Circumstantial evidence can be sufficient for a reasonable jury to find that an employer intentionally discriminated because of race.  Coal Bed Services argued otherwise. It contended that Hall and Hughes could not survive summary judgment without “actual evidence of a racial motive.” The Eleventh Circuit understood the employer to be demanding direct evidence that race motivated their treatment. Id. at *12–13.  The difference is easy to see in the employer’s argument. Coal Bed Services wanted evidence directly tying racial motive to its employment decisions. Hall and Hughes instead relied on the surrounding facts: how Black and white employees were treated, what happened after the drug-test refusals, who was rehired, who was paid differently, who replaced them, what supervisors said and did, and whether the employer’s explanation remained consistent.  Hall and Hughes did not have the racial-motive admission Coal Bed Services wanted. They had evidence of what the company did.  The Eleventh Circuit rejected the attempt to treat that evidence as something less than “actual” evidence. It held: “evidence is evidence; circumstantial evidence is ‘actual’ evidence.” Id. at *13.  A plaintiff may use the McDonnell Douglas framework or the convincing-mosaic approach, which the Eleventh Circuit has characterized as “two paths to the same destination—the ordinary summary judgment standard.” Id. at *10 (quoting McCreight, 117 F.4th at 1335). Under either path, the ultimate question is whether the evidence is sufficient for a reasonable jury to infer unlawful discrimination.  The Eleventh Circuit drove the point home with an analogy: just as circumstantial evidence can be sufficient to convict someone of a crime, it can be sufficient for a jury to find that an employer discriminated against an employee. Id. at *13.  Hall and Hughes had plenty of it. The Eleventh Circuit pointed to Ramsey’s better treatment, different pay, two white replacements, conflicting explanations for the drug test, unequal advancement opportunities and job assignments, and supervisors’ treatment of Hall and Hughes. Considered together, that evidence was “convincing enough that a jury reasonably could find” race discrimination. Id. at *11–13.  Discrimination does not become legally invisible just because the employer never announces it.  Practical Tip: Do not assume you cannot prove race discrimination because nobody admitted to a racist motive. Preserve evidence of different treatment, changing explanations, inconsistent enforcement of workplace rules, replacement decisions, and statements suggesting racial bias. Those pieces can allow a jury to infer what an employer never put into words.  Best Wrongful Termination Attorney Blogs on Point: 

Does My White Coworker Have To Be Identical To Me To Prove Race Discrimination? 

No. A white coworker does not always have to be identical to a Black employee—or even qualify as a formal comparator under the McDonnell Douglas framework—for the coworker’s better treatment to provide circumstantial evidence of race discrimination.  Coal Bed Services tried to minimize Ramsey’s significance for precisely this reason. The district court found that Ramsey was not similarly situated to Hall and Hughes in all material respects. Although all three had the same supervisor and were subject to the same policies, Ramsey had more construction experience, longer tenure, a different title, and different job duties. Hall and Hughes primarily performed manual labor, while Ramsey operated heavy equipment. Id. at *13–14.  The Eleventh Circuit did not need to decide whether that conclusion was correct. It assumed without deciding that Ramsey was not a valid comparator under McDonnell Douglas. Id. at *14.  That did not make Ramsey irrelevant.  The Eleventh Circuit held that employees “with significant evidence of illegal discrimination who lack the comparator evidence [that is] often required” under McDonnell Douglas may instead use the convincing-mosaic approach. Id. (quoting McCreight, 117 F.4th at 1335).  The distinction matters. Failing the formal comparator analysis does not necessarily mean that evidence of a white coworker’s better treatment disappears from the discrimination case.  Ramsey had a different job, more experience, and longer tenure. But the Eleventh Circuit focused on the similarities that mattered to the employment decision at issue. Ramsey committed “the same misconduct on the same day at the same time” as Hall and Hughes. All three were terminated. All three wanted their jobs back. But Ramsey was immediately rehired, while Hall and Hughes could not get the company to meaningfully consider doing the same for them. The Eleventh Circuit held that this “strikingly different treatment” was “highly significant.” Id. at *14–15.  The employer therefore could not make Ramsey’s treatment disappear merely by pointing to differences in job title, tenure, or duties. Those differences might prevent Ramsey from satisfying the formal McDonnell Douglas comparator requirement. They did not prevent a jury from considering what happened when Black and white employees committed precisely the same misconduct at precisely the same time.  The Eleventh Circuit held that the evidence was sufficient to put intentional race discrimination before a jury. A reasonable jury could find that Hall and Hughes were treated worse than Ramsey because of their race. Id. at *15.  Different does not necessarily mean irrelevant. The best comparison is not always between two employees with identical résumés. The question is whether their similarities and differences matter to the employment decision being challenged.  Practical Tip: If a white coworker received better treatment, do not dismiss the comparison merely because you had different titles, duties, experience, or seniority. Focus on the similarities that relate to the challenged employment decision, including whether you engaged in the same misconduct and were subject to the same workplace policy.  Best Employment Discrimination Lawyer Blogs on Point: 

Can An Employment Lawyer Help Prove I Was Fired Because Of Race? 

Yes. An experienced employment lawyer can determine whether an employer’s stated reason for firing an employee tells the whole story. A race discrimination attorney can compare how workplace rules were enforced, examine whether white employees received better treatment, investigate changing explanations, and identify circumstantial evidence of discrimination. A rule violation may explain discipline. It does not necessarily explain why one employee was wrongfully fired while another received a second chance.  Spitz, The Employee’s Law Firm, represents employees in race discrimination, wrongful termination, and other employment law claims. As one of the largest law firms in the United States dedicated to employee rights, Spitz has the resources and trial experience to challenge employers of virtually any size. If you believe you were wrongfully fired because of race, contact Spitz for a free initial consultation. Our No Fee Guarantee means you will not pay attorney fees unless we obtain a recovery for you. The best employment lawyer for a discrimination case should be prepared to follow the evidence wherever it leads—and prove the case to a jury when necessary. 

Frequently Asked Questions About Race Discrimination And Wrongful Termination 

[box] Can I Sue For Race Discrimination If My Boss Never Made A Racist Comment?  Yes. You can prove race discrimination without a racist comment or admission of racial bias. Evidence may include white employees receiving better treatment, inconsistent discipline, changing explanations, suspicious statements or timing, or being replaced by someone outside your protected class. A jury can consider those facts together to decide whether race motivated the employer’s decision. The best discrimination cases are often built from multiple facts rather than one dramatic admission.  Can My Employer Fire Me For Something A White Employee Was Not Fired For?  Maybe. Different discipline does not automatically prove race discrimination because differences in disciplinary history, severity of the misconduct, tenure, job duties, or other legitimate factors may justify different consequences. But if a white employee engaged in similar misconduct and received better treatment, that difference—particularly when combined with other evidence of discrimination—can support a race discrimination or wrongful termination claim.  How Do I Prove My Employer Fired Me Because I Am Black?  Race discrimination and wrongful termination can be proven through direct or circumstantial evidence. Relevant evidence may include better treatment of white employees, inconsistent discipline, being replaced by someone outside your protected class, changing explanations, suspicious comments or timing, or evidence that the employer’s stated reason was not the real reason. Because proving discriminatory intent is highly fact-specific, it is best to consult an experienced employment lawyer or employment law attorney who can evaluate the specific facts and evidence in your case.  What Is The McDonnell Douglas Test For Employment Discrimination?  The McDonnell Douglas test is a method for proving employment discrimination through circumstantial evidence. In a termination case, an employee generally must show that the employee belongs to a protected class, was qualified for the job, was fired, and was replaced by or treated less favorably than someone outside the protected class. The employer must then give a legitimate, nondiscriminatory reason for the termination. If the employee presents sufficient evidence that the employer’s stated reason was not the true reason for the decision, a jury may infer that discrimination was the real reason.  Does My Employer Have To Follow The Rules In Its Employee Handbook?  Not always. Whether an employee handbook is legally binding depends on state law, its language, and any disclaimers. But an employer’s failure to follow its own rules can still matter. Selectively enforcing a policy against Black employees while treating white employees differently may provide evidence of race discrimination, even when the handbook itself is not an enforceable contract. If you were wrongfully fired after your employer ignored its own rules, an employment law attorney can evaluate whether that inconsistency matters to your claim. [/box] Employment Lawyer Disclaimer  This race discrimination, wrongful termination, and employment law blog provides general information about employee rights and is not legal advice. Every employment discrimination claim depends on its specific facts, applicable law, and jurisdiction. Past results do not guarantee or predict future outcomes, and nothing in this blog promises any particular result. Employees who believe they were wrongfully fired, subjected to discrimination, or treated differently from employees of another race should consult a qualified employment lawyer or attorney about their individual circumstances. Choosing the best lawyer for any employment law matter depends on the facts and needs of the individual employee. Reading this blog, visiting our website, or communicating with Spitz, The Employee’s Law Firm, does not create an attorney-client relationship. An attorney-client relationship is formed only through a written agreement signed by the Firm and the client. This blog may constitute attorney advertising or a legal advertisement under applicable rules. ]]> by Spitz, The Employee's Law Firm <![CDATA[Is There A Limit On Race Discrimination Damages?]]> https://www.calltherightattorney.com/?p=263452 2026-09-09T17:30:33Z 2026-09-10T16:00:18Z Black employee at an office desk reviewing a large race discrimination jury verdict and damages award.

Why A $20 Million Jury Verdict Became Just $2 Million 

You see the headline: Jury awards employee $20 million for race discrimination.  Wow. Twenty million dollars. Generational money. Time to pick the color of the Lamborghini.  Not so fast.  After the verdict, a trial court can reduce the award. An appellate court may reverse all or part of the employment discrimination award. And after all of that, the employee still has to collect it—assuming the employer has enough money to pay it and does not file for bankruptcy. For now, focus on what happens to that giant number after the jury leaves the courtroom. Do not pass Go. Do not collect $20 million.  Holmes v. American HomePatient, Inc., 2026 U.S. App. LEXIS 26232 (3d Cir. Aug. 27, 2026), is an extraordinary example.  Patricia Holmes was the only Black employee in American HomePatient’s Penn State office. Her white supervisor, Timothy McCoy, was the person responsible for preventing discrimination and protecting employees from a hostile work environment. Instead, the Third Circuit described evidence that McCoy referred to Black people using the N-word, used another racial epithet, and referenced the KKK.  One incident began when McCoy turned to Holmes at work and asked, “what do you think about the ‘N’ word?” Holmes answered that it was “an ugly word” that “[n]o one should be saying.” McCoy then asked whether she knew the word “means black people,” pulled out his phone, and tried to Google it. After another employee corrected his spelling and pronounced the slur, McCoy and the employee “bust out laughing.”  Holmes testified that it was “[o]ne of the most humiliating days of [her] life” because her boss viewed her and “an entire race in such a derogatory, demeaning, cruel, immoral way.” She shook, felt ashamed, vomited twice, and reported the incident the next day.  Then came the N95 mask fit test. A white coworker had to place a white hood over Holmes’s head. McCoy asked another employee to take a picture or video and then laughed while commenting on the “ironic” sight of “a white woman putting a hood on -- a white hood on a black woman’s head.” Holmes understood the comment as a reference to the KKK. Years later, she testified that she still shook, cried, could not sleep, and had nightmares about that day.  And the company’s response did not exactly cover itself in glory.  When Holmes complained, management learned that McCoy had threatened employees to discourage them from contacting HR. Yet he was not disciplined for that intimidation. When employees complained to area manager Mark Cattron, the evidence showed that Cattron would call McCoy and they would “just laugh.”  After Holmes reported the N-word incident, management discussed counseling both Holmes and McCoy about inappropriate workplace discussions. Holmes then heard that she might be written up too. McCoy asked her: “What are your intentions here, Patricia? Are you looking to get somebody fired, or do you want to be happy here?” The question presented Holmes with a false choice: either accept the racism and remain “happy” at work, or object to it and risk getting someone fired. One or the other. Not both.  McCoy then accused Holmes—who the Third Circuit described as “blameless”—of “trying to start trouble.” And, remarkably, management decided that McCoy, the supervisor accused of racial harassment, should counsel Holmes about appropriate workplace behavior.  The investigation was not much better. HR did not interview another employee involved in the N-word incident even though company training called for interviewing everyone involved before reaching a conclusion. HR nevertheless concluded that McCoy “did not make the racial slur.” Although McCoy received a written warning, it addressed his failure to supervise another employee—not his own discriminatory conduct.  A jury found that American HomePatient created a racially hostile work environment in violation of 42 U.S.C. § 1981 and awarded Holmes $500,000 in compensatory damages and $20 million in punitive damages.  Sounds about right to me. That type of conduct should be slapped with a $20 million blow to the head. Really bad race discrimination should equal really harsh punitive damages.  But that is not how the law works.  Holmes did not walk away with a $20.5 million judgment.  The district court reduced the punitive damages award from $20 million to $1 million. On appeal, the United States Court of Appeals for the Third Circuit agreed that $20 million was constitutionally excessive. But it also held that American HomePatient’s conduct was “exceedingly reprehensible” and that $1 million understated its severity. The Third Circuit ultimately approved $2 million in punitive damages—a 4:1 ratio to the $500,000 compensatory award.  That is an important reality check for any employee who reads about massive race discrimination, employment discrimination, or hostile work environment verdicts in the news. The headline usually reports the verdict. It rarely follows the case through the later reduction and appeal. That is exactly why the value of an employment discrimination case cannot be based on a verdict you saw in the news, on social media, or during a “hey, did you see...” conversation with friends over dinner.  The jury gets to speak. It does not always get the last word. 

Legal Takeaways 

[box]
  • Race discrimination can support compensatory and punitive damages when the evidence and law permit.  
  • A jury’s punitive damages award is subject to judicial and constitutional review.  
  • Even “exceedingly reprehensible” race discrimination does not give a jury unlimited authority to punish an employer.  
[/box]

What Damages Can I Recover In A Race Discrimination Case? 

If your employer discriminated against you because of your race, proving discrimination is only half the battle. The next question is intensely practical: What did the racial discrimination cost you, what did it do to you, and what can a jury award you for it?  Employment law divides those losses into different categories. Losing $40,000 in wages is not the same as spending a year suffering anxiety and sleepless nights. And neither is the same as punitive damages intended to punish an employer for particularly serious misconduct. Each has a different purpose and is determined differently.  Back pay compensates an employee for wages and benefits already lost because of the discrimination. In a wrongful termination case, that generally means comparing what the employee would have earned from the former employer with what the employee actually earned, or reasonably could have earned, after the termination.  Front pay addresses future lost wages when the effects of the discrimination are expected to continue and reinstatement is not appropriate. Unlike back pay, which looks backward, front pay estimates future economic loss caused by the discrimination.  Compensatory damages address other harm caused by discrimination, including emotional distress. In Holmes, the jury awarded Patricia Holmes $500,000 in compensatory damages. The evidence included nausea, vomiting, uncontrollable shaking, crying, insomnia, and nightmares. The Third Circuit treated those physical and emotional effects as evidence of the severity of the harm Holmes suffered. Holmes, 2026 U.S. App. LEXIS 26232, at *11–12.  There is no simple calculator for emotional distress. The amount depends on the evidence showing what the discrimination actually did to the employee.  Punitive damages serve a different purpose. They are not compensation for lost wages or emotional harm. Their purpose is “to punish wrongdoing and deter it.” Id. at *15 (quoting Washington v. Gilmore, 124 F.4th 178, 187 (3d Cir. 2024)). The amount therefore depends on factors including the seriousness of the employer’s conduct and the amount necessary to punish and deter it. The Third Circuit also recognized that an employer’s size and wealth can matter because an award that would seriously punish a small defendant may have little effect on a prosperous corporation.  That distinction explains the verdict in Holmes. The jury awarded $500,000 to compensate Holmes for the harm she suffered and another $20 million to punish American HomePatient and deter similar conduct. Those numbers were doing different jobs.  Attorney fees and costs may also be recoverable under applicable employment discrimination laws, but they are separate from the damages awarded to compensate or punish. The Third Circuit specifically held that Holmes’s attorney-fee award was not part of her compensatory damages when calculating the ratio between compensatory and punitive damages. Id. at *17 n.65.  So when you see a large race discrimination verdict, break the number apart. Back pay replaces past economic losses. Front pay addresses future economic losses. Compensatory damages address harms such as emotional distress. Punitive damages punish and deter sufficiently serious misconduct. Attorney fees and costs are a separate category.  Practical Tip: Do not evaluate a race discrimination case by one headline number. Separate past wages, future wages, emotional harm, punitive damages, and attorney fees because each category requires different evidence and is calculated under different rules.  Best Race Discrimination Lawyer Blogs on Point: 

Can A Judge Reduce What A Jury Awards For Race Discrimination? 

Yes. A jury verdict is not necessarily the final damages award. After trial, a judge can review the amount awarded by the jury and, when legally appropriate, reduce it.  One procedure for doing that is called remittitur. In federal court, Federal Rule of Civil Procedure 59(a)(1)(A) authorizes a court to grant a new trial after a jury trial for reasons historically recognized in federal court. When a court concludes that damages are excessive, traditional remittitur allows the court to condition denial of a new trial on the employee accepting a reduced award.  That gives the employee a choice: accept the lower amount or proceed to a new trial on damages.  Post-trial review also does not necessarily end with the trial judge. A party can appeal an appropriate post-trial ruling, allowing the appellate court to review whether the trial court applied the governing legal standard correctly.  Thus, there can be several steps between hearing the jury announce a multimillion-dollar verdict and actually having a final judgment: jury verdict → post-trial review → remittitur or other appropriate relief → appeal.  Practical Tip: When you see a huge race discrimination verdict in the news, check the procedural posture. “Jury awards” does not necessarily mean “employee receives.” Post-trial motions and appeals may still stand between the verdict and the final recovery.  Best Racially Hostile Work Environment Attorney Blogs on Point: 

Is There A Limit On Punitive Damages For Race Discrimination?

Yes. But there is no formula that tells an employee, employer, jury, or judge exactly where the constitutional limit on punitive damages falls.  The Due Process Clause prohibits punitive damages that are “grossly excessive or arbitrary.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). Courts consider three guideposts: (1) how reprehensible the employer’s conduct was; (2) the relationship between the punitive damages and the actual or potential harm to the employee; and (3) how the award compares with civil penalties for similar misconduct. Id. at 418; Holmes, 2026 U.S. App. LEXIS 26232, at *10–11.  But these guideposts are not numbers you can plug into an Excel spreadsheet and have the constitutional limit pop out at the bottom. They require judgment, and reasonable judges can weigh the same facts differently.  Start with reprehensibility, the most important factor. Courts consider whether the harm was physical or economic; whether the conduct showed indifference to health or safety; whether the employee was financially vulnerable; whether the misconduct was repeated; and whether it was intentional rather than accidental. State Farm, 538 U.S. at 419.  Every factor favored Holmes. She suffered vomiting, shaking, crying, insomnia, and nightmares. She earned $13 per hour. The racial misconduct was repeated and intentional. And McCoy was the supervisor responsible for preventing discrimination while, as the Third Circuit put it, “poisoning” the workplace. The court called the conduct “exceedingly reprehensible.” Holmes, 2026 U.S. App. LEXIS 26232, at *11–14.  Then comes the ratio between punitive and compensatory damages. The Supreme Court has expressly refused to establish a fixed constitutional limit. It has observed that “few awards exceeding a single-digit ratio” will satisfy due process and that 4:1 “might be close to the line of constitutional impropriety.” State Farm, 538 U.S. at 424–25. But those are guideposts, not mathematical rules. The Third Circuit itself recognized that the constitutional line is “inherently imprecise.”   Holmes shows how uncertain the calculation can be.  The jury awarded $20 million in punitive damages. The district judge reduced that to $1 million. Holmes argued for $20 million or, alternatively, $4.5 million. American HomePatient argued for $500,000. The Third Circuit ultimately chose $2 million.  Same case. Same conduct. Same $500,000 compensatory award. Very different numbers.  The Third Circuit held that the jury’s 40:1 ratio was constitutionally excessive. But it also held that the district court’s 2:1 ratio was too low given American HomePatient’s “exceedingly reprehensible conduct and its prosperity.” The court ultimately approved 4:1—$2 million in punitive damages. Holmes, 2026 U.S. App. LEXIS 26232, at *15–17. The opinion expressly recognizes both that the Supreme Court has avoided a concrete ratio and that courts have upheld ratios above 4:1.   That is why punitive damages are particularly difficult to predict. The Constitution creates a limit without providing a precise formula for finding it. The answer depends on the facts, the harm, the employer, the governing precedent—and inevitably some judicial judgment about where the line should be drawn.  Practical Tip: Be skeptical of anyone who values punitive damages by simply multiplying compensatory damages by a particular number. Ratios matter, but there is no universal multiplier, and Holmes demonstrates how dramatically the answer can change from one decisionmaker to the next.  Best Employee’s Rights Law Firm Blogs on Point: 

Can An Employment Lawyer Help Maximize Discrimination Damages? 

Yes. Proving that an employer committed race discrimination is only part of the job. An experienced employment lawyer must also prove what that discrimination cost the employee and develop the evidence supporting each available category of damages.  That work starts long before trial. Lost wages require employment and compensation records. Emotional distress damages require evidence showing how the discrimination actually affected the employee. Punitive damages require evidence about the seriousness of the employer’s conduct, including what management knew, how it responded, whether the conduct was repeated, and whether the employer actually enforced its anti-discrimination policies.  Holmes shows why that matters. The evidence did not stop with racial comments. The jury heard how the conduct physically and emotionally affected Holmes, how management responded after she complained, how her supervisor treated her afterward, and how American HomePatient handled its investigation. Those details gave the jury evidence to evaluate both compensatory and punitive damages.  Spitz, The Employee’s Law Firm, focuses on representing employees, not employers. As one of the largest law firms in the United States dedicated to employee rights, Spitz has the resources and trial experience to investigate discrimination claims, develop damages evidence, and take cases to a jury when necessary.  If you believe you suffered race discrimination, racial harassment, a hostile work environment, or wrongful termination, speak with an experienced employment attorney about both liability and damages. Spitz offers a free initial consultation and our No Fee Guarantee means you do not pay attorney fees unless we recover for you. 

Frequently Asked Questions About Race Discrimination Damages

[box] What damages can I recover in a race discrimination case?  Depending on the law and facts, damages may include back pay, front pay, emotional distress damages, punitive damages, attorney fees, and costs. The available damages can differ depending on which employment discrimination law applies.  Do I need medical records to recover emotional distress damages for discrimination?  Not necessarily. An employee’s testimony can provide evidence of emotional distress. Medical or counseling records may strengthen that evidence when they exist, but treatment is not automatically required to recover damages for humiliation, anxiety, sleeplessness, or other emotional harm.  Does my salary affect how much my race discrimination case is worth?  It can. Salary and benefits directly affect economic damages such as back pay and front pay. But economic loss is only one part of potential case value. Emotional distress and punitive damages, when legally available, depend on different evidence.  Does quitting my job reduce the damages I can recover for race discrimination?  It can. Leaving a job may affect claims for lost wages, depending on why the employee resigned and the surrounding circumstances. But resignation does not automatically eliminate every type of discrimination damages. The particular claim, reason for leaving, and available evidence matter.  Do I have to look for another job to recover lost wages after employment discrimination?  Generally, an employee seeking lost wages has a duty to make reasonable efforts to reduce those losses by seeking comparable employment. What constitutes a reasonable job search depends on the circumstances. Failing to make reasonable efforts can reduce an eventual back-pay award. [/box] Employment Lawyer Disclaimer  This race discrimination damages blog is intended for general informational purposes only and is not legal advice. Employment law claims depend on the specific facts, applicable statutes, available evidence, jurisdiction, and procedural history. Past jury verdicts, settlements, and court decisions do not guarantee or predict the value or outcome of any other employee’s claim. If you believe your employer subjected you to race discrimination, racial harassment, a hostile work environment, or wrongful termination, consult a qualified employment lawyer about your individual circumstances. No attorney can promise a particular result, damages award, or settlement. Reading this blog, visiting our website, or communicating with Spitz, The Employee’s Law Firm, does not by itself create an attorney-client relationship. This content may constitute attorney advertising or a legal advertisement under applicable law. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Employer Threaten Deportation If I Complain?]]> https://www.calltherightattorney.com/?p=263431 2026-09-02T14:15:24Z 2026-09-03T16:00:09Z H-2A migrant farm employee working in a field while facing workplace coercion, visa threats, and deportation threats

How Coercion And Forced Labor Claims Work Under Federal Law 

Many workers come to the United States legally on a visa for a simple reason: work hard, earn money, and support their families back home. That opportunity should not become a weapon in an employer’s hands. An employee should not have to choose between staying silent and being threatened with deportation, losing a visa, or being blocked from returning to the United States. This is a whole level beyond just wrongful termination.  That is the fight at the center of Gomez-Echeverria v. Purpose Point Harvesting, LLC, 2026 U.S. App. LEXIS 26411, at *1–2 (6th Cir. Aug. 28, 2026). Purpose Point Harvesting recruited Guatemalan workers through the H-2A visa program for seasonal agricultural work in Michigan. The program prohibited employers from charging recruitment fees as a condition of employment.  The workers alleged a system of workplace coercion. They testified that defendants charged $2,500 recruitment fees, underpaid them, and used immigration-related threats to keep them quiet. Milton Gomez allegedly demanded that workers lie about their treatment and repeatedly threatened to deport them, “stain” their visas, or “black-list” them so they could not return to the United States.  Gomez denied charging recruitment fees and disputed substantial wrongdoing. Then came the particularly audacious move: defendants asserted counterclaims against the workers, including breach of contract. The opinion does not identify the factual basis for that counterclaim. But the posture is remarkable. The workers alleged exploitation and coercion. The employer responded, in part, by suing them back.  A jury heard both stories during an eight-day trial. It found defendants liable on every claim submitted against them except the Michigan Human Trafficking Victims Compensation Act claim against Lucille Gomez and rejected the breach-of-contract counterclaim. The judgment included $105,000 in compensatory damages and $450,000 in punitive damages. The United States Court of Appeals for the Sixth Circuit affirmed. 

Legal Takeaways

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  • Forced labor does not require physical violence. The Sixth Circuit Court of Appeals held that liability under the TVPRA can arise through threats of serious harm, abuse or threatened abuse of legal process, or a scheme intended to make a person believe that refusing to work will cause serious harm or physical restraint. 
  • Deportation threats and visa threats become especially significant when they are part of a broader pattern of workplace coercion designed to control an employee’s ability to complain, leave, or resist the employer. 
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When Do Employer Threats Become Illegal Forced Labor?

Employer threats can become illegal forced labor when they are used to make an employee believe that refusing to work, leaving, or resisting will cause serious harm, legal consequences, or physical restraint. Physical violence is not required. In Gomez-Echeverria, the Sixth Circuit Court of Appeals held that liability under the Trafficking Victims Protection Reauthorization Act can arise when labor is obtained through “serious harm or threats of serious harm,” “abuse or threatened abuse of legal process,” or a scheme intended to make a person believe that refusing to work will bring serious harm or physical restraint.  That employment law standard fit the workers’ evidence. They testified that Purpose Point charged illegal $2,500 recruitment fees, restricted their movement, confiscated passports, limited visitors, destroyed records, and repeatedly threatened deportation and other consequences if they spoke about their treatment. The Sixth Circuit Court of Appeals held that this evidence supported the jury’s conclusion that the conduct was “intentional and egregious.”  The employer offered a very different story. Gomez denied charging recruitment fees, claimed the passports were collected only for safekeeping, and maintained that workers went to other stores and participated in social events. Those competing accounts created a credibility fight. The jury heard both and found defendants liable on every claim submitted against them except one claim against one defendant.  Employment law does not require a jury to evaluate each threat, restriction, or confiscated document in isolation. The question under the TVPRA was whether defendants knowingly obtained labor, or knowingly benefited from a venture obtaining labor, through one of the prohibited forms of coercion. The Sixth Circuit Court of Appeals emphasized that a qualifying “pattern” involves “repeated action,” rather than “an isolated incident.” The employee rights protected by the statute therefore reach a system of coercion built from multiple acts, even when the employer offers an innocent explanation for individual pieces of that system.  A threat does not need a locked door to become forced labor. Fear can do the locking.  Practical Tip: If an employer threatens your immigration status, visa, police involvement, financial harm, or other consequences for leaving or complaining, preserve the exact words, date, witnesses, and surrounding events. Evidence showing repeated threats or restrictions can help establish a pattern of coercion rather than leaving the dispute dependent on one employee’s recollection of one conversation.  Best Wrongful Termination Lawyer Blogs on Point: 

Can My Employer Threaten To Blacklist My Visa If I Speak Up?

Yes. A visa threat can become powerful evidence of workplace coercion when the employer uses it to silence an employee or make continued work feel like the only safe option. In Gomez-Echeverria, Gomez allegedly told workers to keep quiet and lie about their treatment to Department of Labor officials, medical staff, and others. He also repeatedly threatened to deport them, “stain” their visas, or “black-list” them so they could not return to the United States.  Those threats carried unusual weight because the workers’ ability to return to the United States mattered enormously to them. The Sixth Circuit Court of Appeals held that the plaintiffs were “undeniably vulnerable victims” who feared reprisal and the loss of future work in the United States. Luis Gomez-Echeverria testified that he earned $7 per day working on a palm plantation in Guatemala. Artemio Coronado Esteban testified that he could not read and could only “sort of” write. The plaintiffs also could not speak English.  That context is critical. A threat to blacklist a visa is not just an insult or a nasty comment when the employer controls access to a job that may provide far more income than the employee can earn at home. It can become economic leverage, immigration leverage, and workplace leverage all at once.  The employer disputed substantial wrongdoing. But the jury was entitled to weigh that denial against testimony that the threats were paired with demands for silence and lies. Credibility disputes like that belong to the jury, not the judge. The jury found defendants liable on the claims presented to it, with one exception involving one defendant, and the Sixth Circuit Court of Appeals affirmed.  A visa should be a path to work, not a leash.  Practical Tip: If an employer threatens to blacklist your visa, damage your immigration status, or stop you from returning to the United States, save the exact words and the surrounding message or conversation. Evidence that the threat was tied to silence, complaints, or continued work can help show that the employer was using immigration consequences as leverage.  Best Employee’s Rights Attorney Blogs on Point: 

Can My Employer Control My Passport, Money, And Movement?

An employer controlling an employee’s passport, money, movement, and communications can provide powerful evidence that the employment relationship has become something far more coercive. In Gomez-Echeverria, the workers did not rely on deportation threats alone. They described multiple ways defendants allegedly controlled ordinary parts of their lives outside the fields.  Start with their identification. Defendants regularly confiscated the workers’ passports and Social Security cards. The Sixth Circuit Court of Appeals specifically noted that federal law prohibits knowingly destroying, concealing, removing, confiscating, or possessing certain immigration documents in specified circumstances. Gomez offered an innocent explanation: the passports were collected for safekeeping. That competing explanation gave the jury a factual dispute to resolve.  Then there was money. Lucille Gomez allegedly made herself an authorized user on the workers’ local bank accounts without their knowledge. The workers testified that she withdrew $2,500 from Luis Gomez-Echeverria’s account without his authorization as a purported recruitment fee. They also alleged that they were required to buy food from a store owned by her father.  And the control allegedly extended to daily life. The workers testified that defendants restricted cellphone use and visitors and accompanied them when they went shopping. When Hervil Gomez-Echeverria injured his thumb, he allegedly went without adequate medical treatment for two weeks until the injury became infected and required surgery.  Any one fact might invite an employer explanation. Put together, they tell a different story. The Sixth Circuit Court of Appeals considered the confiscated passports, restrictions on movement, recruitment fees, destroyed employment records, repeated deportation threats, living conditions, and medical-care evidence when evaluating the reprehensibility of defendants’ conduct.  Control becomes harder to dismiss as coincidence when it follows an employee everywhere.  Practical Tip: Preserve evidence showing the full pattern, not merely the worst incident. Bank records, messages about passports, restrictions on transportation or visitors, employment records, and medical communications can show how separate acts fit together as evidence of workplace coercion and interference with employee rights.  Best Employment Law Firm Blogs on Point: 

What Should I Do If My Employer Is Threatening My Visa Or Immigration Status? 

If your employer is using deportation threats, visa threats, financial pressure, or other workplace coercion to control you, choosing the right employment lawyer matters. These cases can turn on patterns that are easy to miss when each event is viewed separately. The best attorney will know how to connect the threats, documents, money, witnesses, employment records, and employer explanations into evidence that shows what was really happening.  Spitz, The Employee’s Law Firm, represents employees, not employers. We are one of the largest law firms in the United States focused on employee rights, with the resources to take on employers that may have far more money and power than the employee challenging them. Our attorneys have substantial litigation and trial experience because an employer is much more likely to take a claim seriously when the lawyer across the table is prepared to take the case to a jury.  Whether the issue involves forced labor, workplace coercion, discrimination, wrongful termination, or an employee who believes they were wrongfully fired, the first step is understanding what happened and what employment law actually provides. Spitz offers a free initial consultation and our No Fee Guarantee means eligible clients do not pay attorney fees unless we obtain a recovery. If something about the way your employer is treating you feels wrong, tell us what happened. We will listen, evaluate the facts, and give you a straight answer about your employee rights. 

Frequently Asked Questions About Employer Visa Threats And Forced Labor

[box] Can my employer threaten to have me deported if I complain about work?  An employer’s deportation threat can become evidence of illegal workplace coercion when it is used to make an employee keep working, remain silent, or fear the consequences of resisting. Employment law can protect employee rights even when the employer never uses physical force.  Can an employer threaten to blacklist my work visa?  Visa threats can be legally significant when an employer uses them as leverage over an employee’s work or conduct. Threatening to blacklist, damage, or interfere with an employee’s ability to return to the United States may help establish forced labor or workplace coercion when connected to demands for continued work or silence.  Is it legal for my employer to take my passport?  Taking or controlling an employee’s passport can raise serious legal issues, particularly when it is combined with restrictions, threats, or other conduct designed to control the employee. An employment lawyer evaluating forced labor should examine the passport issue together with the employer’s other conduct rather than treating it as an isolated event.  Can I have an employment law claim even if my employer never physically forced me to work?  Yes. Forced labor does not necessarily require physical violence or physical restraint. Threats of serious harm, threatened abuse of legal process, and patterns of coercion can create liability when they are used to obtain labor.  Is threatening my immigration status considered employment discrimination or wrongful termination?  Not automatically. Forced labor, employment discrimination, and wrongful termination are different legal issues. An employee who was wrongfully fired or subjected to discrimination may have additional employment law claims, but the particular facts and applicable law determine what claims exist. A qualified attorney should evaluate each potential claim separately. [/box] Employment Lawyer Disclaimer  This employee rights, forced labor, workplace coercion, discrimination, and wrongful termination blog provides general information about employment law and is not legal advice. Every employee’s situation is different, and whether an employer violated the law depends on the particular facts and applicable law. If you believe you were subjected to forced labor, deportation threats, visa threats, discrimination, wrongful termination, or were otherwise wrongfully fired, consult a qualified employment lawyer or attorney about your specific circumstances. Prior results do not guarantee or predict a similar outcome, and nothing in this blog promises any particular result. This content may constitute attorney advertising or a legal advertisement depending on the jurisdiction. Reading this blog, visiting our website, or contacting Spitz, The Employee’s Law Firm, does not by itself create an attorney-client relationship. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Employer Dig Into My Life After I Sue?]]> https://www.calltherightattorney.com/?p=263416 2026-08-24T14:57:05Z 2026-09-01T16:00:20Z Employee reviewing invasive discovery requests, deposition papers, and documents in a wrongful termination and employment discrimination lawsuit.

Why Discovery Can Feel Invasive But Still Be Required 

Sue your employer for race/color discrimination, sexual harassment, or age discrimination, and something deeply annoying happens: the employer gets to investigate you. Documents. Written questions. Witnesses. A deposition. Information you may consider personal. If you filed an employment discrimination or wrongful termination lawsuit expecting discovery to be a one-way interrogation of the bad guys, federal court has some disappointing news.  Discovery is a two-way street. And there is no express lane for the person who filed the lawsuit.  Michael Dean Williams learned that lesson after suing his former employer, Crystal Flash Co., and three managers. Williams, proceeding pro se, alleged that a coworker repeatedly assaulted and harassed him during a 420-day period and that the defendants ignored his complaints and protected the coworker because of race. The District Court screened Williams’s complaint, threw out some claims, but allowed his Title VII of the Civil Rights Act of 1964 retaliation and racially hostile-work-environment claims to proceed.  Read that again. Williams had Title VII race discrimination, retaliation, and wrongful termination claims still alive in federal court.  Then discovery arrived.  Crystal Flash served discovery requests and sought Williams’s deposition. Williams did not provide his required initial disclosures, witness lists, or exhibit lists. He did not answer the company’s discovery requests. And he told defense counsel he did not intend to sit for a deposition.  Then came perhaps the least advisable AI-assisted discovery strategy yet preserved in a federal appellate decision.  Defense counsel asked whether Williams would agree that Crystal Flash could file a motion asking the judge to compel him to provide the discovery he had refused to give. Williams responded: “I’m supposed to sign-off on trusting you in Discovery[?] [AI] puts that at a 10 on the BullShit Meter.”  There were two problems with that approach.  First, Williams did not need to trust Crystal Flash’s lawyer. Opposing lawyers are called opposing lawyers for a reason. Discovery has rules for deciding what must be disclosed and procedures for challenging requests that go too far.  Second, AI does not outrank a federal judge.  In Williams v. Crystal Flash Co., No. 25-2108, 2026 U.S. App. LEXIS 23632 (6th Cir. Aug. 5, 2026), the United States Court of Appeals for the Sixth Circuit affirmed dismissal of Williams’s lawsuit with prejudice after repeated discovery violations and court warnings. The Sixth Circuit Court of Appeals held that his conduct reflected “a willful intent to thwart the case proceedings or, at the very least, reckless disregard” for the consequences of his noncompliance.  Williams went into discovery with surviving Title VII claims. He came out without a case. No race discrimination case. No retaliation case. No wrongful termination case. Nothing. And it was not because he lost because there were not facts or evidence to prove his case. He lost because he did not understand the court’s discovery rules and opted to go it alone instead of getting the best employee’s rights lawyer near him to help.  That is one hell of a hard discovery lesson. 

Legal Takeaways

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  • Discovery is required, but it is not unlimited. Federal Rule of Civil Procedure 37 authorizes sanctions, including dismissal, when a party fails to comply with a discovery order. An employee can properly challenge disputed discovery; refusing to participate is something very different. 
  • Being pro se does not make discovery optional. Williams argued that his failures resulted from inexperience and excusable neglect rather than willfulness or bad faith. The Sixth Circuit Court of Appeals affirmed dismissal after considering his repeated refusal to comply despite warnings and additional opportunities. 
  • AI can help someone learn, but it does not excuse violating discovery obligations or court orders. Williams told the Sixth Circuit Court of Appeals that he used “AI tools” to learn procedure; the Court nevertheless held that the record did not show a good-faith effort to comply. 
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Can I Refuse Discovery That Feels Too Personal Or Invasive?

No. An employee cannot refuse discovery just because it feels personal or invasive. But the employer does not get everything it asks for either. Federal Rule of Civil Procedure 26 puts limits on discovery, and those limits—not discomfort—decide what must be produced.  Rule 26(b)(1) generally allows discovery of nonprivileged information that is relevant to a claim or defense and proportional to the needs of the case. That can include deeply personal information. If an employee puts lost wages, emotional harm, discrimination, retaliation, or wrongful termination at issue, information bearing on those claims or the employer’s defenses may become fair game.  Private does not mean privileged. Personal does not mean irrelevant. And embarrassing does not mean undiscoverable.  But filing an employment lawsuit does not put your entire private life on clearance at Costco. Relevance has limits. So does proportionality. Privileged information receives separate protection. And Rule 26(c) allows a party to seek a protective order against discovery that would cause, among other things, “annoyance, embarrassment, oppression, or undue burden or expense.”  That gives an employee options when the employer reaches too far. Object to the request. Assert a privilege when one applies. Negotiate a narrower request. Seek appropriate protection from the judge. The Federal Rules provide a vocabulary for saying no. “I don’t feel like answering” is not in it.  The distinction is simple:  An objection challenges the employer’s right to the information. A refusal challenges the authority of the process itself.  Williams chose refusal. The Sixth Circuit Court of Appeals held that despite repeated warnings and opportunities, he never supplied initial disclosures, witness lists, exhibits, or discovery responses and refused to appear for his deposition. The Sixth Circuit Court of Appeals held that his conduct reflected “a willful intent to thwart the case proceedings or, at the very least, reckless disregard” for their progress.  That distinction ultimately cost him his case.  Discovery can invade your privacy without violating the rules. A good employment lawyer knows the difference between discovery you dislike and discovery the employer has no right to demand.  Practical Tip: If a discovery request seeks medical records, private messages, financial information, social-media content, or other personal material, do not ignore it or destroy anything. Give the exact request to your employment attorney before the deadline so the lawyer can determine whether to answer, object, assert privilege, negotiate a narrower request, or seek court protection.  Best Employment Discrimination Lawyer Blogs on Point: 

What Should I Expect During Discovery In A Wrongful Termination Case?

Expect written questions, document requests, identification of witnesses and evidence, and usually a deposition. Discovery is where a wrongful termination or employment discrimination lawsuit moves from allegations to proof. The complaint tells your story. Discovery asks whether the evidence backs it up.  The Federal Rules provide several basic tools.  Initial disclosures under Rule 26(a) require parties to identify certain witnesses, documents, electronically stored information, and other information supporting their claims or defenses without waiting to be asked. No hide-and-seek required.  Interrogatories under Rule 33 are written questions answered under oath. They lock down facts, witnesses, damages, dates, and positions. That matters when someone’s version of events develops a suspicious amount of creativity six months later.  Requests for production under Rule 34 seek documents and electronically stored information. Emails. Texts. Photos. Policies. Personnel records. Calendars. Electronic communications. Discovery loves receipts.  Requests for admission under Rule 36 force a party to admit or deny specific propositions. Used well, they shrink the battlefield by eliminating facts nobody can seriously dispute.  Depositions under Rule 30 are live testimony under oath. Opposing counsel asks the questions, and the answers become part of the record. A deposition is not a conversation. There is no edit button afterward.  And these tools work both ways. The employer gets to test the employee’s allegations. The employee’s attorney gets to test the employer’s story. Who actually decided to fire you? What did they know? What documents did they create? Did they follow their own policies? Did someone give a different explanation before the lawsuit? Discovery is where an employer’s neat explanation can collide with its own documents and witnesses.  Williams spent his energy elsewhere. The District Court counted 15 meritless motions and two frivolous appeals of nonfinal orders “instead of engaging in discovery.”  Talk about working hard at the wrong job.  In an employment case, allegations get you into the fight. Discovery gives you the evidence to win it.  Practical Tip: Preserve potentially relevant texts, emails, photos, calendars, and employment records, including evidence you think hurts your case. Give it to your employment lawyer. A bad document your attorney sees early can be planned for; the same document appearing for the first time during your deposition can become an ambush.  Best Employee’s Rights Attorney Blogs on Point: 

Can I Trust AI To Tell Me What To Do In My Employment Lawsuit? 

No. AI can help you understand litigation. Do not trust it to run your litigation. When discovery, deadlines, objections, or court orders are involved, you need legal judgment—not an answer that confirms what you already want to believe.  Williams supplied the cautionary tale himself. On appeal, he argued that he acted in good faith and used “AI tools” to learn court rules and procedures. The Sixth Circuit Court of Appeals held that “the record does not reflect any good faith effort to comply with discovery or the court’s orders.”  Then came the BullShit Meter.  Defense counsel asked whether Williams would concur in a motion to compel his overdue discovery responses. Williams responded: “I’m supposed to sign-off on trusting you in Discovery[?] [AI] puts that at a 10 on the BullShit Meter.”  Maybe discovery felt like bullshit. That is not the legal standard.  There is no BullShit Meter in the Federal Rules of Civil Procedure. No reasonably competent employment lawyer responds to discovery with: Objection. Bullshit. The lawyer asks whether the request is relevant, proportional, privileged, overbroad, unduly burdensome, or otherwise objectionable under the rules. If there is a proper objection, make it. If there isn’t, the answer may be: I know you hate this, but you have to respond.  AI responds to the question and context you give it. Frame the problem as “Why is this discovery bullshit?” and you should not confuse a helpful answer built around that premise with independent legal judgment about whether the discovery is actually objectionable.  A good lawyer has a different job.  Your lawyer is not there to agree with you. Your lawyer is there to protect your case.  Sometimes that means telling an employee that the employer’s discovery is objectionable and fighting it. Sometimes it means saying the request is invasive, irritating, and perfectly permissible. Good legal advice does not become bad legal advice because the client hates hearing it.  Williams emphasized that he was a “regular, everyday working man” who had spent his career on the road, “not in law school.” The Sixth Circuit Court of Appeals nevertheless held that the warnings were understandable, noted that he refused the pro se assistance offered to him, and affirmed dismissal with prejudice.  AI can help you justify a position int the way you want without being reliable. A great employment lawyer will tell you whether the law justifies it. Those are not the same thing.  Practical Tip: If AI tells you what you hoped to hear about discovery, a deadline, or a court order, treat that as a reason to ask your attorney—not as permission to act. An experienced employment lawyer should tell you how the law actually applies to your case, including when the answer is one you absolutely do not want to hear.  Best Wrongful Termination Law Firm Blogs on Point: 

Frequently Asked Questions About Discovery In Employment Lawsuits

[box] Can My Employer Get My Text Messages During A Wrongful Termination Lawsuit?  Potentially. Text messages can be discoverable if they fall within the permissible scope of discovery, including relevance and proportionality. A message does not become immune from discovery because it is personal, but your employment lawyer can determine whether a particular request should be answered, narrowed, or challenged.  Can My Employer Get My Social Media During An Employment Discrimination Case?  Potentially. Relevant social-media content may be subject to discovery in an employment discrimination lawsuit, but suing your employer does not automatically give the employer unlimited access to every post, photograph, message, or piece of account information. The particular discovery request still must satisfy the applicable discovery rules.  Should I Delete Text Messages Or Social Media Before Discovery?  No. Deleting potentially relevant texts, social media, emails, or other electronic evidence can create a spoliation problem. Federal Rule of Civil Procedure 37(e) addresses electronically stored information that should have been preserved for litigation but was lost because reasonable steps were not taken to preserve it, and sanctions may follow. Preserve potentially relevant evidence—even if it is embarrassing or hurts your case—and give it to your employment lawyer to determine what must be produced and how to address it.  How Should I Answer Written Discovery In A Wrongful Termination Case?  Give your employment attorney all potentially responsive information and documents—including facts or evidence you think hurt your case. Do not decide for yourself what to omit because it seems irrelevant, embarrassing, or damaging. Your attorney needs the complete picture to determine what must be disclosed, what can properly be objected to, and how to finalize accurate discovery responses. Your job is to give your lawyer the facts. Your lawyer’s job is to determine how the law requires those facts to be answered. [/box] Employment Lawyer Disclaimer  This employee rights and workplace discrimination blog provides general information about employment law, employment discrimination, discovery, Title VII, wrongful termination, and employees who believe they were wrongfully fired. It is not legal advice and should not be relied upon as advice about any specific employee, employer, lawsuit, discovery request, or workplace dispute. Employment law rights and discovery obligations depend on the particular facts, applicable law, and court rules. Consult a qualified employment lawyer or attorney for advice about your specific situation. No result, recovery, settlement, or outcome is promised or guaranteed, and past results do not guarantee future results. Reading this blog or contacting Spitz, The Employee’s Law Firm does not create an attorney-client relationship unless one is expressly established. This blog is a legal advertisement. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can I Sue A Company Under Title VII If I Never Worked There?]]> https://www.calltherightattorney.com/?p=263414 2026-08-24T14:51:44Z 2026-08-27T16:00:16Z Person reviewing a stack of court papers while handling a Title VII employment discrimination lawsuit without an employment lawyer.

Why Employment Relationships Matter In Discrimination Cases

Title VII of the Civil Rights Act of 1964 is an employment discrimination law. The word employment is doing some serious work in that sentence. If you sue a defendant for Title VII discrimination, you must allege the required employment relationship with that defendant. La’Keya Keo’s problem was brutally simple: she sued the FBI under Title VII but never alleged that she worked for the FBI or even applied to work there.  And that was hardly the only thing happening in her complaint.  Representing herself pro se, which means on her own without an employee’s rights attorney, Keo alleged “police brutality, misconduct, police negligence, race/color discrimination, harassment, retaliation, gender discrimination, age discrimination, religious discrimination, medical negligence, medical malpractice” and more under Title VII. Quite a legal charcuterie board. But her factual allegations boiled down to something very different: Keo claimed she was the victim of cybercrimes and cyberbullying and that the FBI failed to investigate or otherwise act on her reports. No acts relating to employment with the FBI—because Keo never alleged that she worked there or even applied for a job there.  And there certainly was no wrongful termination claim against the FBI: you cannot be wrongfully fired from a job you never alleged you had.  Yet Keo’s lawsuit kept repeating Title VII like it was a magic incantation.  It is not.  In Keo v. Federal Bureau of Investigation, No. 26-1258, 2026 U.S. App. LEXIS 24038 (3d Cir. Aug. 10, 2026), the United States Court of Appeals for the Third Circuit affirmed dismissal and made the employment-law defect wonderfully uncomplicated: a Title VII plaintiff “must allege an employment relationship with the defendant[ ].” Keo alleged neither employee nor applicant status. Her Title VII claims were ultimately dismissed with prejudice.  There is a useful warning here for employees with real workplace discrimination claims: federal litigation is not Mad Libs. Picking the right defendant, the right law, and the right legal theory matters. 

Legal Takeaways 

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  • Title VII requires an employment relationship. A plaintiff pursuing Title VII employment discrimination must allege the required employment relationship with the defendant. Keo failed because she alleged neither that she was an FBI employee nor an applicant for FBI employment. 
  • More claims do not cure a missing legal element. Keo’s Title VII claims were dismissed with prejudice after the Third Circuit Court of Appeals concluded that she failed to state a viable Title VII claim and that further amendment would be futile. 
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Do I Have To Work For A Company To Sue It Under Title VII?

You do not necessarily have to work for a company to bring a Title VII claim against it, but Title VII requires the necessary employment relationship with the defendant. The Third Circuit Court of Appeals held that a Title VII plaintiff “must allege an employment relationship with the defendant[ ].” But that rule has some important wrinkles. Figuring out whether that relationship exists is not always as simple as reading the company name on a paycheck.  A job applicant can have Title VII rights without ever working a single day for the employer. Staffing-agency and temporary-worker arrangements can raise questions about whether more than one entity qualifies as an employer. Joint-employer situations can likewise make the legal employment relationship more complicated than the organizational chart suggests. And state employment discrimination laws may define covered employment relationships and liabilities differently. Those additional issues were not before the Third Circuit Court of Appeals in Keo because Keo had no employment connection to the FBI.  She did not allege that she was an FBI employee or that she applied for a job with the FBI. There was no alleged staffing arrangement or other employment relationship for the Third Circuit Court of Appeals to analyze. Her allegations instead concerned cybercrimes, cyberbullying, and the FBI’s alleged failure to act on her reports.  So the Title VII analysis ended almost as soon as it began. The Third Circuit Court of Appeals concluded that Keo failed to state a viable Title VII claim. And because further amendment would have been futile, her Title VII claims ended with prejudice.  Practical Tip: If you experienced workplace discrimination while applying for a job or working through a staffing agency, temporary agency, or another company at your worksite, tell your employment lawyer or attorney who hired you, paid you, supervised you, controlled your work, and made the challenged decision. Identifying the correct employment relationship can determine whom a Title VII claim should target.  Best Employment Discrimination Lawyer Blogs on Point: 

Does Calling Something Discrimination Make It A Title VII Claim?

No. Calling conduct “discrimination” does not make it a Title VII employment discrimination claim. Abraham Lincoln once asked: “If you call a dog’s tail a leg, how many legs does a dog have?” Four. Calling a tail a leg does not make it one.  Title VII works the same way.  Keo certainly had the vocabulary. Her amended complaint alleged “discrimination, harassment, Racial, Retaliation, Gender, Age, Religion” and more “pursuant to Title VII.” But her actual factual allegations concerned cybercrimes, cyberbullying, and the FBI’s alleged failure to investigate or act on her reports.  Calling those allegations Title VII claims did not make them Title VII claims.  The Third Circuit Court of Appeals looked past the labels to the required legal elements. Keo failed to allege that she was an FBI employee or applicant, even though a Title VII plaintiff “must allege an employment relationship with the defendant[ ].”  Legal claims are built from elements, not adjectives.  An employee may sincerely believe an employer discriminated, harassed, or retaliated against them. Sincerity does not supply a missing legal element. Neither does capitalization. Neither does adding another claim. The alleged facts must fit the law.  A good employment lawyer starts with the facts, not the label. Who employed you? What happened? Who made the decision? What facts connect that decision to a protected characteristic or protected conduct? Only then comes the question that matters: What legal claim do these facts actually support?  Keo started with Title VII and tried to fit her allegations inside it. The Third Circuit Court of Appeals ultimately concluded that she failed to state a viable Title VII claim.  Calling a tail a leg does not give the dog five legs. Calling something discrimination does not give you a Title VII claim.  Practical Tip: Before filing an employment discrimination claim, give your attorney the facts before giving them your diagnosis of the law. A strong employment lawyer can test those facts against each required element and identify the claims they actually support.  Best Employee Rights Attorney Blogs on Point: 

What Can Go Wrong If I Handle My Employment Discrimination Case Myself?

Plenty. Representing yourself in an employment discrimination case means a legal mistake can follow you from the complaint, through amendment, into dismissal, and all the way up on appeal. Keo’s case is a painful demonstration of how a problem that should be identified at the beginning can become much harder to fix at the end.  Keo proceeded pro se. The District Court first dismissed her complaint on sovereign-immunity grounds but gave her an opportunity to amend. She did. The amended complaint was dismissed too, this time without another opportunity to amend.  Strike one. Strike two. So Keo appealed.  But an appeal is not Complaint 3.0.  The Third Circuit Court of Appeals observed that Keo’s appellate arguments “mostly reiterate[d] her complaint’s allegations” and that she did not appear to “challenge meaningfully” the District Court’s determination that it lacked subject-matter jurisdiction.  That is a brutal sentence. An appeal requires attacking why the ruling below was legally wrong. Repeating the allegations that brought you to court may simply give the appellate judges another opportunity to read the same allegations.  Then Keo’s trip upstairs actually made part of the result worse.  The District Court had dismissed her claims without prejudice. The Third Circuit Court of Appeals affirmed but modified the judgment so Keo’s Title VII claims were dismissed with prejudice. The Third Circuit Court of Appeals concluded that she failed to state a viable Title VII claim and another amendment would be futile.  That is one brutal appellate souvenir: Keo appealed a dismissal without prejudice and came home with her Title VII claims dismissed with prejudice.  None of this means an attorney could have invented the employment relationship Keo never alleged. Lawyers cannot manufacture facts. The value of a good employment lawyer is recognizing what the facts actually support before those facts are committed to a complaint—and knowing which defendants, claims, arguments, and evidence belong there.  That is exactly why employees call Spitz, The Employee’s Law Firm. Spitz is one of the largest law firms in the United States dedicated to employee rights, with the resources and trial experience to evaluate Title VII, workplace discrimination, retaliation, and wrongful termination claims before avoidable mistakes become permanent ones. Our employment lawyers know the difference between a claim that needs better evidence, a pleading problem that can be fixed, and facts that simply do not support the legal theory an employee has in mind.  The initial consultation is free, and our no-fee guarantee means you do not pay attorney fees unless we obtain a recovery for you. If you believe your employer discriminated against you, retaliated against you, or wrongfully fired you, call Spitz before trying to navigate the federal courthouse alone.  Federal court is an expensive place to discover that your legal theory never fit your facts.  Practical Tip: Talk to an experienced employment attorney before filing a discrimination lawsuit—and, if your case has already been dismissed, before appealing. Early legal review can identify the proper defendant and viable claims; appellate review can determine whether the judge actually made a reversible legal error rather than simply giving the same allegations another trip through the courthouse.  Best Title VII Law Firm Blogs on Point: 

Frequently Asked Questions About Title VII And Employment Discrimination

[box] What Types Of Workplace Discrimination Are Illegal Under Title VII?  Title VII prohibits an employer from discriminating against an employee because of race, color, religion, sex, or national origin. Other federal and state employment laws may protect employees from additional forms of workplace discrimination.  Can A Staffing Agency And The Company Where I Work Both Be My Employer?  Potentially. Some staffing and joint-employer arrangements can involve more than one employer for employment law purposes. Determining which company qualifies as an employer depends on the particular employment relationship and cannot necessarily be answered by looking only at which company issues the employee’s paycheck.  What Does Pro Se Mean In A Lawsuit?  Pro se means representing yourself in a lawsuit without an attorney. A pro se plaintiff handles the case without a lawyer and remains responsible for presenting legally viable claims and arguments.  Will A Court Help Me If I File A Wrongful Termination Claim On My Own?  A court may construe a pro se employee’s filings liberally, but the judge does not become the employee’s employment lawyer. An employee pursuing a wrongful termination or employment discrimination claim without an attorney remains responsible for alleging facts that support a legally viable claim and for addressing the legal issues that arise during the case. [/box] Employment Lawyer Disclaimer  This employee rights and workplace discrimination blog provides general information about Title VII, employment law, employment discrimination, wrongful termination, and employees who believe they were wrongfully fired. It is not legal advice and should not be relied upon as advice about any specific employee, employer, lawsuit, or workplace dispute. Employment law rights depend on the particular facts and applicable law. Consult a qualified employment lawyer or attorney for advice about your individual circumstances. No result, recovery, settlement, or outcome is promised or guaranteed, and past results do not guarantee future results. Reading this blog or contacting Spitz, The Employee’s Law Firm does not create an attorney-client relationship unless one is expressly established. This blog is a legal advertisement. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Job Deny Remote Work For My Disability?]]> https://www.calltherightattorney.com/?p=263412 2026-08-24T14:40:23Z 2026-08-25T16:00:21Z Employee working remotely from home while seeking a disability accommodation involving essential job functions and the ADA interactive process.

How Essential Job Functions Control Accommodation Rights

You follow policy and tell HR that you need an accommodation for your disability in order to do your job safely, and specifically, that you would like to work from home. Your employer says you cannot work remotely because showing up in person is essential to your job. Is this disability discrimination? And who wins that disability accommodation fight? Under employment law, the answer may depend less on what your employer calls “essential” and more on what the evidence proves the job actually requires.  That fight put Carolyn Gardner and Kutztown University on opposite sides of a remarkably modern disability discrimination case.  Gardner was an associate professor diagnosed with an incurable autoimmune condition. She requested permission to teach her scheduled in-person courses remotely for four semesters. Kutztown had a serious defense: it had never hired a full-time faculty member exclusively to teach online, and the University treated requests to move in-person classes online as a “fundamental alteration.” Case over? Not even close.  Gardner had receipts. She had taught classes remotely for more than a decade. She completed Kutztown’s advanced online certification program in 2013. The collective bargaining agreement evaluated faculty based on “effective teaching, scholarship, and service” without requiring those duties to be performed in person. And Kutztown admitted it had “no policy, contractual definition, or pre-existing job description” stating that in-person teaching was essential.  Gardner sued Kutztown for disability discrimination and wrongful termination after the University rejected her requests to teach remotely. The District Court largely granted summary judgment to Gardner. On appeal, the United States Court of Appeals for the Third Circuit held that the competing evidence concerning essential job functions and reasonable accommodation could not be weighed at summary judgment and allowed those disputed issues to proceed toward trial. Gardner v. Kutztown University, No. 25-1295, 2026 U.S. App. LEXIS 24836 (3d Cir. Aug. 18, 2026). For an employee seeking remote work as a disability accommodation, that fight exposes the weakness in a blanket “everyone must work in person” defense. An employer can call physical presence a central function of the job. Calling it essential does not make it an established fact. 

Legal Takeaways 

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  • An employee pursuing a disability discrimination claim must be qualified to perform the essential functions of the job with or without reasonable accommodation. When the employee and employer present competing evidence about whether physical presence is an essential job function, weighing that evidence may belong to the jury rather than the judge at summary judgment. 
  • An employer must provide a reasonable disability accommodation when legally required, but the employee is not necessarily entitled to the particular accommodation preferred when the employer offers another accommodation that is itself reasonable.
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What Is An Essential Job Function And Why Does It Matter For Disability Accommodation Requests?

An essential job function is a duty an employee must be able to perform, with or without a reasonable disability accommodation. That requirement sits at the heart of a disability discrimination claim because the law protects a qualified employee; it does not require an employer to eliminate an essential function of the position.  The Third Circuit Court of Appeals framed the rule precisely. To establish a prima facie claim for intentional disability discrimination under the Rehabilitation Act, Gardner had to show that she was disabled, was “qualified” to perform the “essential functions” of her job with or without reasonable accommodation, and was nonetheless prevented from performing her job.  “Qualified” has two parts. First, the employee must satisfy the prerequisites for the position, such as the appropriate education, experience, skills, and licenses. Second, the employee must be able to perform the essential functions of that position with or without reasonable accommodation. Gardner cleared the first hurdle: Kutztown did not dispute that she possessed the education and experience necessary to work as an associate professor.  The second hurdle is where disability accommodation law does its real work. A reasonable accommodation can change how an employee performs a job while still allowing the employee to perform its essential functions. The Third Circuit Court of Appeals held that an accommodation is reasonable when it enables a qualified employee to “perform the essential functions of that position” or “to enjoy equal benefits and privileges of employment.”  Put simply: accommodation can change how an essential job function is performed; the employee must still be able to perform the essential function.  That distinction separates the job’s central function from the conditions an employer places around performing it. In Gardner’s case, everyone agreed she had the professional qualifications to teach. The unresolved employment law question was what her essential functions actually required.  Practical Tip: When requesting a disability accommodation, identify the job duties you can perform and how the requested accommodation would allow you to continue performing them. That creates a record focused on the legal question that matters: whether the accommodation permits you to perform the essential functions of your job.  Best Workplace Disability Accommodation Law Firm Blogs on Point: 

Is Working In Person Really An Essential Function Of My Job?

Not necessarily. An employer can require in-person work, but in a disability discrimination case, calling physical presence an essential job function does not resolve whether it actually is one. The evidence about the job matters. For example, in-person presence is more likely to be considered essential for roles like a surgeon performing operations, a firefighter responding to emergencies, or a courtroom trial attorney who must appear before a judge and jury. A fry cook cannot drop the basket of tenders remotely. By contrast, it is often not essential for jobs such as software development, data analysis, or many administrative roles that can be performed effectively remotely with the same outputs and performance standards.  Kutztown had evidence supporting its position. It had never hired a full-time faculty member to teach exclusively online. Except during COVID, Gardner had never taught more than one online class during a semester. And online courses represented only 6% of Kutztown’s offerings before COVID and 13% afterward. Those facts supported Kutztown’s argument that an associate professor was expected to teach in person.  Gardner’s evidence attacked that argument at its foundation.  The collective bargaining agreement evaluated faculty based on “effective teaching, scholarship, and service” without requiring those duties to occur in person. Kutztown admitted it had “no policy, contractual definition, or pre-existing job description” stating that in-person teaching was essential. Gardner had also taught classes remotely for more than a decade and completed Kutztown’s advanced online certification program in 2013.  That is a powerful factual contrast. The employee was not merely arguing that she thought she could work remotely. She had evidence about how Kutztown defined her job, how Kutztown had documented its requirements, and how she had actually performed teaching duties in the past.  The job on paper and the job in practice can test an employer’s claim about what is truly essential.  For an employee seeking remote work as a disability accommodation, that distinction can be decisive. If the employer claims location is essential, an attorney evaluating the discrimination claim should want the documents defining the position and the evidence showing how the work has historically been performed. In Gardner’s case, those categories of evidence pointed in competing directions.  Practical Tip: If your employer claims you must work in person, preserve the job description, employment policies, contracts, remote-work history, training records, and communications showing where and how you have performed the same duties. Specific evidence about the actual job gives an employment lawyer something concrete to test against the employer’s claim that physical presence is essential.  Best Disability Discrimination Attorney Blogs on Point: 

Can My Employer Automatically Deny My Request To Work Remotely?

No. An employer cannot automatically deny remote work as a disability accommodation without properly considering whether the employee can be reasonably accommodated. Under the ADA and the Rehabilitation Act, the interactive process requires a good-faith effort to address a disability accommodation request.  The Third Circuit Court of Appeals held that an employee claiming failure to accommodate must show: “(1) [s]he was disabled and h[er] employer knew it; (2) [s]he requested an accommodation or assistance; (3) h[er] employer did not make a good faith effort to assist; and (4) [s]he could have been reasonably accommodated.” An accommodation is reasonable when it enables a qualified employee to perform the essential functions of the position or enjoy equal benefits and privileges of employment.  Consistent with the ADA, Kutztown’s own policies created a problem for its defense. Its written policy required formal disability accommodation requests to be evaluated individually. But when Gardner requested remote teaching, Kutztown relied on a newly implemented position that requests to move in-person classes online would be considered a “fundamental alteration” and denied. For Gardner’s four requests, Kutztown either denied them or provided no response.  Kutztown argued that it nevertheless acted in good faith during the interactive process. The Third Circuit Court of Appeals held: “KU is not correct.” The record instead presented a material factual dispute over whether Kutztown sufficiently engaged in the interactive process for Fall 2021, Spring 2022, and Fall 2022.  Then came Spring 2023. Kutztown offered Gardner limited classroom capacity, a separate entrance, specialized air filters, and a plexiglass podium. That was enough. The Third Circuit Court of Appeals held that no reasonable juror could conclude the proposed accommodation was unreasonable because an employer must provide a reasonable accommodation, not the accommodation the employee prefers.  But Kutztown’s Spring 2023 victory may create a harder question for its defense to the earlier semesters. By Spring 2023, Kutztown had identified multiple measures that the Third Circuit Court of Appeals found constituted a reasonable means of minimizing Gardner’s risk of illness exposure. Why weren’t these measures considered and offered earlier during the interactive process for the prior semesters? That framing naturally leads to the central question. From an employee-side attorney’s perspective, Kutztown’s earlier refusals begin to look less like a lack of available options and more like a breakdown in the interactive process itself.  This matters. An employer cannot defend an ADA or Rehabilitation Act accommodation claim merely by showing that the employee did not receive the particular accommodation requested. The employer’s own later solution may become evidence worth examining when determining whether reasonable alternatives existed earlier and whether the employer genuinely made a good-faith effort to find them.  An automatic no can create a disability discrimination problem. A reasonable alternative can solve one. But a reasonable alternative discovered later may also raise questions about what the employer failed to consider earlier.  Practical Tip: Put your disability accommodation request in writing and preserve every response, proposed alternative, and unanswered communication. If your employer later offers an accommodation it previously failed to discuss, preserve when and how that option appeared; an employment lawyer can evaluate whether that chronology bears on the employer’s good-faith participation in the interactive process.  Best Wrongful Termination Lawyer Blogs on Point: 

Who Decides Whether My Employer Is Right That I Must Work In Person?

The jury, not the judge. When an employee and employer present competing evidence about whether working in person is an essential job function, the judge cannot decide which side has the better evidence at summary judgment. The Third Circuit Court of Appeals emphasized that the essential-function determination is a factual issue that “must be decided by a jury.”  Oddly enough, Gardner lost because of that rule. Normally, the employer is moving for and getting summary judgment. This is the rare case where the District Court granted summary judgment for the employee on Gardner’s intentional disability discrimination claims. The Third Circuit Court of Appeals took that victory away because her claims depended on whether in-person teaching was essential and whether full-time remote work was a reasonable disability accommodation. Those questions required “weighing evidence,” which the Third Circuit Court of Appeals held that both it and the District Court were “plainly prohibited from undertaking at summary judgment.”  Gardner lost a judgment. She did not lose her factual fight.  And that distinction may be far better for employees generally. The Third Circuit Court of Appeals held: “We do not suggest that the District Court here had no basis” for its conclusion—or even that the appellate judges, “if we were the triers of fact,” would decide differently. The problem was not necessarily the answer. The problem was that a judge had answered a disputed factual question reserved for the factfinder.  That is a meaningful protection in ADA and Rehabilitation Act litigation. An employer cannot win summary judgment on a disputed essential job function merely by persuading a judge that its evidence looks stronger. If deciding the issue requires weighing competing proof, the factual fight belongs before the jury.  A judge decides whether there is a real factual fight. The jury decides who wins it.  And getting past summary judgment can change the settlement equation. Once dismissal is off the table, an employer must confront the expense of trial, the uncertainty of putting witnesses before jurors, and the risk that the jury believes the employee. Those pressures can make resolution more attractive and give an employee meaningful negotiating leverage.  So Gardner’s reversal should not be mistaken for a simple employer victory. It took an early win away from one employee while reinforcing a rule that can help other disability discrimination and disability accommodation claims survive summary judgment. For an employment lawyer, getting a supported factual dispute to a jury can mean the difference between a case ending on motion practice and an employer having to confront the risks of trial or meaningful settlement.  Practical Tip: Give your attorney evidence, not conclusions. Preserve documents and testimony contradicting the employer’s claimed essential job function. A genuine factual dispute can keep an ADA disability accommodation claim alive through summary judgment, preserve the employee’s path to a jury, and strengthen settlement leverage as trial approaches.  Best Employee’s Rights Attorney Blogs on Point: 

How Do I Find An Attorney For A Wrongfully Denied Disability Accommodation?

Look for an attorney who represents employees and knows how to turn an ADA disability accommodation dispute into evidence. The best employment lawyer should investigate what your job actually requires, test the employer’s claimed essential functions, reconstruct the interactive process, identify accommodations the employer failed to consider, and build the factual disputes that can defeat summary judgment. A denial letter is only the beginning. The evidence behind it can decide the case.  Spitz, The Employee’s Law Firm is one of the largest law firms in the United States dedicated to employee rights. Our size provides resources to fight employers, while our extensive trial experience shapes how we build disability discrimination and employment law cases from the start. We offer free initial consultations and a no-fee guarantee because employees facing workplace discrimination should be able to understand their legal options before worrying about attorney fees.  If your employer wrongfully denied a disability accommodation, retaliated against you, or wrongfully fired you after requesting one, call Spitz. Our employment lawyers prepare cases to survive summary judgment, negotiate from strength, and go to trial when necessary. 

Frequently Asked Employment Law Questions

[box] Can An Employer Deny Remote Work As An ADA Disability Accommodation?  Yes, an employer can deny remote work if it is not a reasonable disability accommodation, including when remote work would prevent the employee from performing an essential job function. But calling physical presence essential does not automatically establish that it is; disputed evidence about an essential function may require resolution by a jury.  What Is An Essential Job Function Under The ADA?  An essential job function is a fundamental duty that an employee must be able to perform with or without a reasonable accommodation. In ADA and disability discrimination disputes, whether a particular requirement is essential can determine whether the employee is qualified for the position.  Does An Employer Have To Use The Interactive Process For A Disability Accommodation?  The interactive process requires a good-faith effort to address a requested disability accommodation. Relevant issues include whether the employer knew of the disability, whether the employee requested assistance, whether the employer made a good-faith effort to assist, and whether the employee could have been reasonably accommodated.  Does My Employer Have To Give Me The Exact Disability Accommodation I Request?  No. An employer may satisfy its accommodation obligation by offering a different reasonable disability accommodation. The employee is not necessarily entitled to the preferred accommodation if the alternative offered by the employer is reasonable.  Can Disability Discrimination Lead To Wrongful Termination?  A wrongful termination claim can involve disability discrimination when an employee is wrongfully fired because of a legally protected disability or issues involving a disability accommodation. Whether a termination violates employment law depends on the specific facts and applicable legal requirements. [/box] Employment Lawyer Disclaimer  This employee rights and workplace discrimination blog provides general information about employment law, ADA rights, disability discrimination, disability accommodation, essential job functions, the interactive process, wrongful termination, and employees who believe they were wrongfully fired. It is not legal advice. Employment law rights depend on the specific facts and applicable law, so consult a qualified employment lawyer or attorney about your circumstances. No result, recovery, settlement, or outcome is promised or guaranteed, and past results do not guarantee future results. Reading this blog or contacting Spitz, The Employee’s Law Firm does not create an attorney-client relationship unless one is expressly established. This blog is a legal advertisement. ]]> by Spitz, The Employee's Law Firm <![CDATA[Can My Employer Say I’m Too Dangerous To Work?]]> https://www.calltherightattorney.com/?p=263371 2026-08-18T16:02:56Z 2026-08-20T16:00:19Z

How The ADA Direct-Threat Defense Can Defeat A Disability Claim

Not every limit posed on a disabled worker is disability discrimination. Common sense tells us that certain disabilities can prevent some people from safely performing certain jobs. At the extreme, a person with narcolepsy who unpredictably falls asleep cannot safely drive an eighteen-wheeler down the highway. A blind person cannot safely pilot a commercial airliner. A person experiencing uncontrolled seizures should not be operating a crane hundreds of feet above a construction site. And a neurosurgeon with advanced Parkinson’s disease causing severe hand tremors and impaired fine motor control cannot safely perform delicate brain surgery.  The question, therefore, is not whether it is always illegal disability discrimination to prevent a disabled employee from performing a particular job. It isn't. The harder questions are where the law draws that line, when an employer can lawfully decide that a medical condition creates too much risk, whether a reasonable accommodation could make the work safe, and who ultimately gets to decide whether an employee is too dangerous to work.  Those questions sit at the heart of the  Americans with Disabilities Act (“ADA”) and modern employment law. The ADA protects employees from disability discrimination and requires employers, in appropriate circumstances, to consider a disability accommodation that would allow a qualified employee to perform the job. At the same time, the ADA does not require an employer to ignore a genuine and significant safety risk. That is where the ADA’s “direct threat” defense comes into play.  The United States Court of Appeals for the Eighth Circuit recently confronted exactly that issue in Christensen v. Union Pacific Railroad Co., No. 25-2173, 2026 U.S. App. LEXIS 24136, 2026 WL 2320846 (8th Cir. Aug. 11, 2026). Ross Christensen had worked as a railroad conductor for more than ten years before suffering an ischemic stroke. He recovered well. His treating neurologist cleared him to return to his conductor position, his cardiologist separately cleared him to work, and a successful ablation procedure restored his heartbeat to a normal rhythm. Union Pacific's doctors nevertheless concluded that Christensen's medical history created an unacceptable risk that he could suffer a future seizure. The railroad kept him from returning to his safety-sensitive conductor position. Christensen sued for ADA disability discrimination and wrongful termination   So, who gets to decide?  As Christensen shows, the answer is not automatically the employee's treating doctor. But employers do not get to make the decision simply by saying, “Safety first.” The ADA requires something much more demanding: an individualized and objectively reasonable assessment based on current medical knowledge or the best available objective evidence.  For an employee facing medical restrictions, a denied return to work, or a rejected accommodation request, that distinction can be the difference between a lawful safety decision and unlawful ADA disability discrimination and wrongful termination. And for an employment lawyer or employment attorney evaluating the case, the real fight is often over the evidence supporting the employer's safety judgment, whether the assessment was truly individualized, and whether a reasonable accommodation could have reduced or eliminated the claimed risk.  That is where the line gets drawn—and where ADA cases involving employee rights, disability accommodation, and claims that a disabled worker is too dangerous to work can be won or lost. 

Can My Employer Decide I Am Medically Unsafe To Work?

Yes—but not every decision based on workplace safety is illegal disability discrimination. The ADA sets the bar higher than merely showing that your disability creates some risk.  The Americans with Disabilities Act recognizes what it calls the “direct threat” defense. A direct threat is: “a significant risk to the health or safety of others . . . that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3).  Two words matter: significant risk. Almost every job involves some risk, and almost every medical condition could theoretically cause something to go wrong. That is not enough. The ADA asks whether the risk is significant and whether a reasonable accommodation can eliminate it.  The seriousness of the potential harm also matters. A medical condition that presents little meaningful danger in one job may present an unacceptable danger in another.  That was the problem for Christensen. He was not working a desk job. As a Union Pacific conductor, Christensen operated and moved trains and performed switching operations.  After Christensen's stroke, Union Pacific concluded that he faced an unacceptable risk of a future seizure. The railroad restricted him from operating company vehicles and machinery and from working on or near moving trains. In practical terms, he could no longer work as a conductor. Importantly, the Eighth Circuit Court of Appeals did not hold that any seizure risk automatically disqualifies an employee. Instead, the nature of Christensen's job changed the equation.  The District Court recognized that Christensen's increased seizure risk might have been relatively low. But if a seizure occurred while he was performing his job, the potential harm “was extreme.”  The Eighth Circuit Court of Appeals made the same point when distinguishing another Union Pacific case involving an employee who suffered cardiac arrest. That employee did not hold such a safety-critical position, which the Court said “fundamentally changes the direct threat analysis.”  That is the key. The ADA does not ask whether your disability makes your job perfectly risk-free. It asks whether your particular medical condition creates a significant safety risk in your particular job that cannot be eliminated through reasonable accommodation.  But an employer cannot simply declare that such a risk exists and call it a day. Before using the direct-threat defense to defeat an ADA disability discrimination claim, the employer must conduct an individualized assessment of the employee, the medical evidence, and the actual risks of the job. That required process—and whether the employer followed it—is where Union Pacific ultimately won Christensen's case.  Practical Tip: If your employer says your disability makes you unsafe to work, focus on the connection between the claimed medical risk and your actual job. Get your job description, medical restrictions, return-to-work releases, and accommodation requests. The question is not whether your disability creates any conceivable risk. It is whether it creates a significant risk in the job you actually perform that cannot be addressed through reasonable accommodation.  Best Disabilty Discrimination Law Firm Blogs on Point: 

What Is The Process For Deciding If My Disability Makes Me Unsafe To Work?

An employer cannot look at your diagnosis, imagine the worst-case scenario, and declare you unsafe. Under the ADA, determining that an employee poses a direct threat requires an individualized assessment.  The Eighth Circuit Court of Appeals explained that the employer bears the burden of proving the direct-threat defense. Its determination must be: ”(1) the result of an individualized assessment, (2) objectively reasonable, and (3) based on the ‘most current medical knowledge and/or on the best available objective evidence.’”  The assessment must also consider four things: how long the risk will last, the nature and severity of the potential harm, how likely the harm is to occur, and how imminent the potential harm is.  In other words, the ADA requires an employer to evaluate the employee, the medical evidence, the actual job, and the actual risk—not simply the name of the disability.  Union Pacific did exactly that with Christensen, and that is why it won.  After Christensen's stroke, Union Pacific obtained and reviewed his medical records. Its physicians initially imposed one-year sudden-incapacitation restrictions. When Christensen later sought to return to work, he provided updated medical records and underwent another fitness-for-duty evaluation. Those updated records contained evidence favorable to Christensen. His recovery was described as “excellent.” His balance and walking were normal. He had suffered no additional neurological event. And one of his physicians concluded that he was neurologically capable of commercial driving.  Union Pacific's physician nevertheless reached a different conclusion. After reviewing Christensen's medical history, he determined that Christensen had an unacceptable future seizure risk. Union Pacific also considered Federal Motor Carrier Safety Administration guidance addressing seizure risk following certain strokes and intracerebral hemorrhages.  Christensen attacked that process. He argued that relying on general FMCSA guidelines meant Union Pacific had not really evaluated him individually. The Eighth Circuit Court of Appeals disagreed. Union Pacific had to evaluate Christensen's specific medical condition—including the location of his stroke and the brain bleed he suffered during treatment—to determine whether the guideline applied to him in the first place.  The Court contrasted that process with another ADA case where an employer made only a few general calls to support its “‘prejudice, stereotypes, [and] unfounded fear’” about allowing a deaf person to drive a truck. Union Pacific's review of Christensen, the Court said, was “more robust by orders of magnitude.”  Christensen had another seemingly powerful fact: his own doctors cleared him to work.  Still not enough.  The Eighth Circuit Court of Appeals explained: ”The question is objective reasonableness, and mere disagreement among experts does not show Union Pacific's decision was objectively unreasonable.”  That may be the most important litigation lesson in Christensen. An employee does not necessarily defeat an employer's direct-threat defense simply by producing a doctor who disagrees with the employer's doctor. The employee needs evidence attacking the reasonableness of the employer's determination.  The Court demonstrated what that evidence might look like by discussing Sanders v. Union Pacific Railroad Co. There, the employee had expert testimony that Union Pacific's medical decision was “‘completely uncalled for, completely wrong, and not based on any medical principles at all.’” Christensen had no comparable evidence attacking the medical foundation of Union Pacific's decision.  That difference mattered. One employee had evidence from which a jury could question whether the employer's medical judgment was objectively reasonable. Christensen essentially had a disagreement between doctors. Under the Eighth Circuit's analysis, those are not the same thing.  Practical Tip: If your employer claims you are a direct threat, do not focus only on getting a doctor's note saying you can work. Find out how the employer reached its decision. Preserve the medical information you provided, fitness-for-duty evaluations, job descriptions, restrictions, accommodation requests, and communications explaining the decision. An ADA employment lawyer can evaluate whether the employer actually conducted an individualized assessment based on objective medical evidence—or simply used your disability as the reason to keep you out of work.  Best ADA Work Accommodation Attorney Blogs on Point: 

How Do I Find The Best ADA Employment Lawyer Near Me? 

Start by looking for an employment lawyer who regularly represents employees—not employers—in ADA disability discrimination and reasonable accommodation cases. As Christensen demonstrates, these cases can turn on much more than whether your doctor says you can work. The best ADA employment lawyer should know how to attack the employer’s claimed safety justification, determine whether the medical assessment was truly individualized, identify evidence the employer ignored, evaluate possible reasonable accommodations, and develop the medical or expert evidence necessary to get an ADA disability discrimination claim to a jury.  Spitz, The Employee’s Law Firm focuses on representing employees and protecting employee rights. We are one of the largest law firms dedicated to representing employees, which gives our employment attorneys the resources to take on employers in complex disability discrimination, failure-to-accommodate, retaliation, and wrongful termination cases. Our attorneys have extensive litigation and trial experience, and we understand that being denied the ability to work because of a disability can threaten an employee’s career, income, and family. Spitz offers free initial consultations and a no-fee guarantee, and our employment lawyers have a history of achieving great results for employees. If your employer says that your disability makes you unsafe, refuses to return you to work, denies a reasonable accommodation, or otherwise uses your medical condition against you, contact Spitz to discuss your rights and the evidence with an experienced ADA employment attorney.  Employment Lawyer Disclaimer  This employment law blog provides general information about the Americans with Disabilities Act (“ADA”), disability discrimination, reasonable accommodations, the ADA direct-threat defense, and employee rights. It is not legal advice. Every employment situation depends on its own facts, medical evidence, job duties, available accommodations, and applicable law. If your employer has refused to let you work because of a disability or medical condition, denied a reasonable accommodation, imposed medical restrictions, retaliated against you, or wrongfully fired you, consult with a qualified employment lawyer or ADA employment attorney about your specific situation.  Nothing in this blog promises or guarantees any particular result. Past results do not guarantee future outcomes. Reading this blog does not create an attorney-client relationship with Spitz, The Employee’s Law Firm or any of its employment attorneys. This attorney blog is a legal advertisement. ]]>