Employment Evidence

Description

This innovative new work delivers dozens of strategic guides to virtually every employment evidence battleground—from after-acquired evidence through discriminatory remarks to past sexual conduct.

The keys to evidence victories are smart tactics, persuasive arguments, and supporting authority. All three can be found in David W. Neel’s Employment Evidence. This strategic guide to admission and exclusion offers foundations, objections, responses, tactics, jury instructions, motions in limine, and supportive authority for admitting and excluding:

• EEOC determination letters and files
• Unemployment compensation records
• Arbitration decisions

Liability

• Plaintiff’s and defendant’s past sexual conduct
• After-acquired evidence
• Defendant’s prior acts of disparate treatment
• Statistical evidence
• Personnel manuals and corrective action policies
• Employee disciplinary records and personnel files
• Severance agreements
• Missing documents or destruction of evidence
• Discriminatory remarks

Damages

• Defendant’s net worth
• Plaintiff’s financial evidence
• Plaintiff’s medical & psychological history
• Independent medical or psychological exams
• MMPI-II & other psychological tests
• Expert testimony

Defenses

• Defendant’s business judgment reasons
• Bona fide occupational qualifications
• Ellerth/Farragher affirmative defense
• Undue hardship
• Same actor
• Laches

Now you can anticipate and circumvent problems in admitting your evidence and exclude or limit what the opposition throws at you. The book is designed for quick reference with centerfold index, frequent headings, shaded tips, boxed objections, argument checklists, tactics by party, and 750 cases divided into those admitting and those excluding. The coverage far exceeds the mechanics of admitting and excluding—the in-depth treatment of rules, definitions, distinctions will extensively support your case.

Nearly every topic in Employment Evidence is supported with multiple forms, and digital copies of the book’s forms and checklists can be accessed and modified using your favorite word processor.

REVISION 21 HIGHLIGHTS

In this 2024 edition of Employment Evidence, author David W. Neel brings you expanded and updated coverage of the governing law, including nearly 200 new case summaries and 8 new forms. The highlights include:

Case Summaries and Legal Analysis re:

Administrative Decisions and Materials

• Admissibility of EEOC and State agency reports and findings
• Reconciling claims for SSD benefits with ADA claims

Plaintiff’s Prior Bad Acts

• Sexual conduct in and outside of the workplace
• Work performance at prior employer
• Prior lawsuit against another employer

Defendant’s Documents

• Personnel manuals and policies (e.g., employee handbooks as business records)
• Severance agreements and other post- termination offers

Financial Evidence

• Undue burden — ADA failure to accommodate
• Defendant’s tactics: “David and Goliath” argument is unduly prejudicial

Testimonial Evidence

• Proof of discriminatory animus: direct and circumstantial evidence; stray remarks
• Evidence of discriminatory remarks: cat’s paw liability

Experts

• HR experts: employer’s policies and procedures; industry practices and procedures
• Mental health/medical experts: FMLA “serious health condition”
• Mitigation experts

Admissibility of Electronic Evidence and Statistical Evidence
Case examples of Attorneys’ Fees and Costs granted/denied to Defendant

New Forms

• Plaintiff’s MIL to Exclude Evidence of Plaintiff’s Separate Lawsuit Against Defendant
• Plaintiff’s Brief in Support of MIL to Exclude HR-Created Document
• Defendant’s Brief in Opposition to Plaintiff’s MIL to Exclude HR-Created Document
• Defendant’s Brief in Support of Motion for Sanctions – Destruction of Evidence
• Defendant’s Motion for Sanctions for Destruction of ESI
• Plaintiff’s Brief in Opposition to Motion for Sanctions for Destruction of ESI
• Defendant’s Motion for JMOL or New Trial
• Plaintiff’s Response to Defendant’s Motion for JMOL or New Trial

ABBREVIATED TABLE OF CONTENTS

CHAPTER 1 SUMMARY JUDGMENT
CHAPTER 2 ADMINISTRATIVE DECISIONS AND MATERIALS
CHAPTER 3 PLAINTIFF’S PRIOR ACTS
CHAPTER 4 DEFENDANT’S PRIOR ACTS
CHAPTER 5 STATISTICAL EVIDENCE
CHAPTER 6 DEFENDANT’S DOCUMENTS
CHAPTER 7 TESTIMONIAL EVIDENCE
CHAPTER 8 FINANCIAL EVIDENCE
CHAPTER 9 PLAINTIFF’S MEDICAL AND PSYCHOLOGICAL EVIDENCE
CHAPTER 10 EXPERT EVIDENCE
CHAPTER 11 EMPLOYER RESPONSES
CHAPTER 12 DEMONSTRATIVE EVIDENCE
CHAPTER 13 ELECTRONIC EVIDENCE
CHAPTER 14 ATTORNEY’S FEES AND COSTS
CHAPTER 15 PUNITIVE DAMAGES

ABOUT THE AUTHOR

David W. Neel is the Principal of the Law Offices of David W. Neel in Cleveland, Ohio. He has over 30 years of experience as a civil trial lawyer focusing on employment law. Mr. Neel earned a Bachelor of Arts with honors from Kenyon College; his law degree with honors from Cleveland-Marshall College of Law; and an LL.M. from Columbia University. He is an Adjunct Professor of Evidence at Cleveland-Marshall College of Law, where he teaches courses on Evidence and Employment Discrimination.