Tuesday, January 24, 2023


 Yale finally cut ties with the psychiatrist who publicly diagnosed President Donald Trump as psychotic though she had never met him.

 It did not renew the contract of an unpaid volunteer and untenured “assistant professor.” Bandy X. Lee, M.D., 52, has resisted the decision with fury. Yale brought this on itself. It tacitly condoned the misconduct for years and only changed course in 2020 in response to the complaints of another of the doctor’s victims, Alan Dershowitz, emeritus professor of Harvard Law School.

 At that time, a three-year contract was set to expire on June 30, 2020. The school authorities took up the question whether Dr. Lee was so plainly indispensable that putting up with all the “noise” around her was a small price to pay to keep for faculty, students, and staff the gift of herself.

 Notice was served in May of 2022 that the contract would not be renewed. The notice was preceded by a meeting between the doctor and four colleagues who unanimously decided against renewal.

 The notice was followed by “multiple informal attempts to be heard” (her words) and then by an appeal to the chairman of the department of psychiatry, who said no; an appeal to the provost, who said no; and an appeal to the president of the university, who said no.

 That was followed by a lawsuit claiming that the doctor had a guaranteed right to renewal of the contract. U.S. District Judge Sarah A. L. Merriam disagreed and dismissed the case on motion of the defendant-university.

 Dr. Lee changed lawyers. The new lawyers made an untimely, baseless, and unavailing attempt to get Judge Merriam to reconsider her ruling. An appeal is pending at this writing. See Bandy X. Lee M.D., MDiv. v. Yale University, No. 21 cv 389 on the docket of the U.S. District Court for the District of Connecticut and No. 22-2634 on the docket of the U.S. Court of Appeals for the Second Circuit.

 The attacks upon President Trump date to May of 2017, i.e., before the start of the contract that expired in June 2020. The memorandum opinion and order Judge Merriam issued on August 30, 2022 suggests that Dr. Lee would have enjoyed an uneventful renewal of the contract but for the complaints of Professor Dershowitz.

 She violated the Goldwater Rule of the American Psychiatric Association. A psychiatrist may not diagnose an individual she has not examined, to say nothing of the ban on public disclosures about an individual without the consent of that individual. Dr. Lee concluded that the Goldwater Rule did not apply to President Trump.

Copyright © 2023 David H. McCarthy III


Thursday, October 27, 2022

            That dubious case cobbled up around a business lunch at Hooters that never happened is over.  The plaintiff lost. Justice was done.

             The facts as found by the trial judge in late 2021 differed dramatically from the facts in online news accounts when the lawsuit was filed in early 2017.

             The media played up the Hooters angle. They all told essentially the same story the same way under the same suggestive headline: A business lunch at Hooters had excited complaints on the part of the plaintiff-executive, a retaliatory firing, and a lawsuit. They seemed to be acting in concert, doing no independent reporting, but only publishing a press release from the plaintiff’s attorney. Had there actually been a lunch at Hooters? No. But only one source reported on that, the Houston Chronicle, the hometown paper so to speak for the defendant, a German biotechnology company that had it American headquarters in Houston, Texas (Molecular Health Inc.).

             It did not add up. A job that was too good to be true had been gained and lost in 80 days. A middle-age stay-at-home-mom from small-town Minnesota was being paid $15,000.00 per month to work from home. That had been arranged by a regional vice president who became her immediate supervisor.  Eighty days later she was “fired” by her “employer” for objecting to a business lunch at Hooters that had been proposed by a new national vice president who had had no say in her “hiring.” There had been no lunch at Hooters, and no reporting about that except by the newspaper in Houston.  The so-called “million-dollar case” could have been filed in Minnesota, and on the face of it, the plaintiff had every reason to file there, yet the lawsuit was filed in the state courts of Texas.

             This fueled suspicions that there was a back story. Indeed, there was a back story. It surfaced with a minimum of time and effort. It encouraged skepticism on the part of this writer as to the merits of the lawsuit and the motivations for its filing. There was no follow-up reporting by the online news sources. But this blog continued to monitor the “Hooters case” as it moved through the trial and appeals courts of Texas and on to the federal trial court in Houston.

             The plaintiff waived her demand for a jury trial. The case was tried on her fifth amended petition, i.e., the sixth version of her complaints against her so-called employer. Only four witnesses testified: the plaintiff (Marcia Hocevar) and the regional vice president of sales (Bruce Mrachek), the director of human resources, and the national vice president of sales (Tom Strilko). The defendant presented no witnesses, relying on its exhibits and on evidence elicited on cross examination during the plaintiff’s case.

             Last June the findings, conclusions, and judgment were handed down. The defendant won handily. Plaintiff was not an employee but an independent contractor. The relationship between plaintiff and defendant was initially for December of 2015 only and lasted only 80 days all told. The decisions not to renew the independent contractor relationship and not to hire plaintiff were not wrongful. No one was hired in her place. By December of 2016 the defendant had ceased its sales operations in the United States.

             There was no lunch at Hooters, nor any invitation or proposal of a lunch at Hooters. The plaintiff and the national vice-president of sales had lunch at a non-descript restaurant in Minneapolis. They were the only witnesses to the event. The plaintiff immediately notified the regional v.p. that she had been sexually harassed and had concluded that full-time employment would not be offered to her. The regional v.p. immediately reported the complaints to the director of the human resources department. (Just that easily, plaintiff gained for herself the “halo” of retaliation.). For his part, the national vice president (Strilko) recommended that full-time employment be offered to plaintiff.

             The decisions as to plaintiff were made by executives senior to Strilko, and they were made after the joint insubordination of plaintiff and her immediate superior, the regional V.P. of sales (Mrachek). The members of the sales team were directed to input sales data into an intra-company sales tracking program. Plaintiff refused. Mrachek notified Strilko that plaintiff would not comply until she received an offer of full-time employment, and that Mrachek supported her in that decision. Defendant’s relationships with Mracheck and with plaintiff were terminated for this insubordination.

             This writer had long since concluded that plaintiff showed up for the lunch empty-handed, i.e., she had generated no leads, made no sales, etc. The findings of the trial judge confirmed that conclusion: Plaintiff completed no sales and produced no revenue (though she collected as much as $45,000.00 per her agreement during the 80 days). One new thing was learned from the findings and conclusions of the trial judge: The regional vice president (Mrachek) was biased because he had sought and lost the position that Strilko had gained, and his (Mrachek’s) testimony about his communication with the director of HR was not credible.

             See, Hocevar v. Molecular Health Inc., No. 20 cv 664 on the docket of the U.S. District Court for the Southern District of Texas Houston Division


Copyright by David H. McCarthy III

Sunday, December 12, 2021



            A decision is at hand in the business-lunch-at-Hooters case, the cynical and misreported lawsuit for retaliation filed in Texas in 2017 by a hard-up and litigious “stay-at-home mom” from Minnesota who amazingly “scored” a sinecure that paid her $15,000.00 a month to work from home, only to lose it two months later because she would not show her work to her so-called employer. There was a trial late last October.

             This case was the topic of a blog post in May of 2017 because of the titillating “news” coverage gained for it by a publicist and because it exemplifies the disquieting truth that explains the explosive growth in retaliation claims.

There was no lunch at Hooters

             Salacious news coverage greeted the case at the time of its filing (c. February 2017). That was no accident. The fingerprints of a public relations professional are all over it. Numerous online “news” sources offered the same “lede” paragraph under the same headline: Woman executive fired for objecting to business lunch at Hooters. Only the Houston Chronicle, the defendant’s hometown “newspaper,” reported that there was no lunch at Hooters. Otherwise, they all told the same story the same way. It was as if they had all received the same press release and posted it verbatim. That excited suspicion, and a search for a backstory.

             There is indeed a backstory on the Internet, and it cuts against the narrative. So do subsequent events, though information about them does not appear in follow-up “news” stories. This writer is unaware of any follow-up “news” stories. As fast as the story appeared, it disappeared. However, because the case was removed from Texas state court to federal court, the papers filed in it became accessible with a PACER account. There is a lot less to the case than “a business lunch at Hooters,” and also a lot more to it than that.

 The plaintiff was an expert, not a victim

             The individual who initiated the Hooters case is not a naif but a professional plaintiff, wise in the ways of litigation in general and of litigation about sexual harassment and retaliation in particular. She has been married for years to a career prosecutor who was elected County Attorney in 2014. She once initiated a nasty, drawn-out litigation over sexual harassment and retaliation that culminated in federal appellate decisions in 2000 that rejected her claims of sexual harassment but saved her claim for retaliation; and by inference, a settlement followed.

             By 2013 she was out of sales work and listing her employment as campaign manager for her husband. Despite all his years on a public payroll, the couple lost a house to foreclosure in October of 2015. At that time and for some months prior thereto she had been after one Bruce Mrachek for a job. He was a regional vice-president of sales for Molecular Health Inc. (MHI), a German company that had its U.S. headquarters in Houston. Apparently he was instrumental in her landing a one-month consulting agreement that paid her $15,000.00 per month and permitted her to work from home and report directly to him (Mrachek). The new national vice-president of sales (Tom Strilko) found them both on his team when he came aboard in mid-December, though he had not picked either one of them.

 The high-priced stranger
comes empty-handed to the one and only meeting with the new boss

             Plaintiff and Strilko met only once. In mid-January of 2016 they had lunch at a mall in Minneapolis that did not have a Hooters outlet, and there was no proposal for lunch at Hooters.  There were no witnesses to the event, only a national V.P. who had been on the job for two weeks and a 52-year-old stranger he found on his sales team, a mother of two school-age children who was working from home in small-town Minnesota, who was eating into his budget for salaries at the rate of $15,000.00 per month, and who showed for lunch empty-handed: At no time before, during, or after that lunch did the plaintiff produce a dollar of profit for MHI, or even a dollar of revenue, or close a sale, or even tee-up a sale for someone else to close. She lasted only 80 days at MHI and was paid some $45,000.00 or more. Did MHI get anything for its $45,000.00-plus other than recriminations and the burden, expense, and uncertainty of a litigation that is now deep into its fourth year? Not that we can see.

             The Hooters case serves as a glaring example of the disturbing truth that explains the explosive growth of claims for workplace retaliation. Once upon a time claims of discrimination based on race and on sex far outnumbered claims of retaliation.  That is no longer true. For years retaliation has been the absolute and undisputed number one form of workplace discrimination claim. “The FY 2020 data show that retaliation remained the most frequently cited claim in charges filed with the agency—accounting for a staggering 55.8 percent of all charges filed.” U.S. Equal Employment Opportunity Commission (EEOC), Press Release, 02-26-2021.   “The FY 2019 data show that retaliation continued to be the most frequently filed charge filed with the agency, followed by disability, race and sex.” EEOC, Press Release 01-24-2020. (The number of retaliation charges submitted to EEOC was 37,632 in fiscal 2020 and 39,110 in 2019 (or 53.8 percent of all charges filed).

The plaintiff does not need to prove that she was sexually harassed,
only that she complained to management that she was sexually harassed

             What changed? An unsettling truth about retaliation became common knowledge. The underlying “offense” need not be true or provable or rise to the level of actionable discrimination in order to profit from a claim of retaliation. The prima facie case for retaliation is a simple, one-two-three proposition: (1) the plaintiff exercised his civil rights; (2) the plaintiff was subjected to an adverse employment action; and (3) there is a causal connection between elements (1) and (2). The mischief lies in element (1).

             This is what the Hooters case presented as and for element (1):  After the lunch, plaintiff told her supervisor she doubted that she would be offered full-time employment, and that the national V.P. had “sexually harassed” her by repeatedly expressing his preference for Hooters over Applebee’s because the servers at Hooters were not old men but pretty girls, and by wondering whether she could effectively perform sales work from home while raising school-age children. 

             May this be understood. What went on at the lunch is irrelevant to the retaliation claim. The case for “status” discrimination (race, sex, disability) is negligible in this case as in many others. Even if the conduct complained of is true and provable and rises of the level of actionable gender-based discrimination, it is trivial. There is no indication that hospitalization or psychotherapy or medication was required. On the contrary, there are suggestions that plaintiff, a hardened veteran of retaliation litigation, went to lunch ready to pounce if full-time employment was not offered to her. She is in it for retaliation, not discrimination. There is no money in the discrimination case. Her case for retaliation does not require proof that she was actually a “victim” of sexual discrimination, only proof that she complained to a supervisor that she was a “victim” of sexual discrimination (then experienced an adverse employment action because she complained).

             The disquieting truth about retaliation was full well known to the plaintiff in the Hooters case at the time when she went to lunch and for a long time prior thereto. Her prior lawsuit drove the lesson home if nothing else did. Federal courts at the trial and appellate levels rejected her case for “status” discrimination (sex) but her case for retaliation was rescued on appeal and, by inference, it fetched a nice settlement. There is one case on the books that awarded a huge judgment for retaliation to a plaintiff who openly admitted he had maliciously concocted the underlying story about sex discrimination. You can see and feel the judge holding his nose as he writes that the malicious falsehoods might support a claim for defamation but they have no effect on the claim for retaliation.

             MHI managed the situation well. The director of HR investigated at once and attempted to interview plaintiff, who refused to be interviewed. The national V.P. recommended to a decision-maker overseas an offer of full-time employment to the plaintiff. The sales team was directed to input its data into a sales tracking program. Plaintiff refused. Her immediate supervisor, the regional V.P. of sales, backed her on her refusal and notified the national sales V.P. that the information would be withheld until plaintiff received an offer of full-time employment. So MHI fired them both for insubordination. (To be precise, plaintiff was not fired. Her independent contractor agreement was not renewed and she was not hired.)

             Did she actually have any sales data of consequence to provide? This writer is skeptical about that. She had not worked in sales for years prior to her 80-day stint with MHI and would not work in sales for a long time thereafter. Whether she was paid $15,000.00 per month because someone was returning a favor, or because she had performed well for other organizations in the past, or because someone had sized her up as a can’t-miss prospect going forward, whatever the case may be, the only party who got anything worth having out of the relationship was the plaintiff.

 A plaintiff who could have played a “home game” choses to play an “away game” 

                The lawsuit could have been filed in Minnesota (and at least one attorney who had handled the prior lawsuit was still practicing).  Instead, the lawsuit was filed in Texas state court by a Texas lawyer. When the plaintiff amended her petition to add counts under a federal statute, Title VII of the Civil Rights Act of 1964, the defendant removed the case to federal court. Shortly before trial, plaintiff waived her right to a trial by jury. The case went to trial on her fifth amended petition, i.e., the sixth version over all of her complaints about the defendant. Only the defendant filed a motion for summary judgment, not the plaintiff, and it looks like the motion was “taken with the case.” Trial lasted three days. Four witnesses appeared for plaintiff, the plaintiff, her spouse, and the two vice presidents. Defendant presented no witnesses, relying on its exhibits and on cross examination of the witnesses in plaintiff’s case. After trial an order for mediation was formally requested by plaintiff and opposed by defendant. (The object of mediation is an outcome agreed-to be the parties, as distinct from an outcome imposed by a court or an arbitrator. It makes sense only when all parties desire a negotiated resolution and believe it can be achieved with the aid of an intermediary.) The prediction here is that judgment will be entered for the defendant, and that the plaintiff will be ordered to pay the court costs. (Court costs are not to be confused with attorney fees, but could amount to many thousands of dollars in this case all the same.)

This writer allows for the possibility that the case was filed in far-away Texas because the financially-straitened plaintiff concluded that the less her friends and neighbors in small-town Minnesota saw and heard about a second lawsuit for employment discrimination brought by the wife of the county prosecutor the better.

The summing up 

My take on this case: A professional retaliation plaintiff who was up against it financially gained a sinecure she could not keep. She was 52 years of age, she had two school-age children, and had not worked in sales for years. Yet somehow she landed a sales consulting contract that paid her $15,000.00 per month and permitted her to work from home. No sooner did this plum assignment materialize than a threat to it appeared in the form of a new national sales V.P. He had not picked her for his team; he would want to know, of course, what the company was getting for its money, and the answer was: not much. She sensed an end to “fat city.” She was a tough, cagey veteran of hotly-contested employment litigation that had paid off for her in the past.  So she dealt herself the retaliation card. Just as soon as she concluded that full-time employment would not be offered to her, she claimed to her supervisor that she had been sexually harassed at a business lunch by references to a Hooters restaurant. The allegation is all it took to acquire the “halo” of retaliation, and she knew it. She positioned herself to issue this ultimatum: Offer me full-time employment or buy a lawsuit for retaliation. What’s your pleasure?

See, Marci Hocevar v. Molecular Health Inc., No. 20 cv 664 on the docket of the U.S. District Court for the Southern District of Texas,  initially filed under that name as trial cause no. 17-02-02044-cv in the 284th District Court for Montgomery County, Texas.

Copyright by David H. McCarthy III

Thursday, May 11, 2017


Lurid headlines that a business lunch at Hooters spawned a “million-dollar” case for sexual harassment moved me to (i) find out whether a prediction about retaliatory discharge had proved true and (ii) investigate a lawsuit that seemed fishy.

Retaliation Has Passed Race
To Become the Most Common Kind of Workplace Discrimination Case
Complaints of retaliation now outnumber claims based on race or sex or any of the other forms of “status” discrimination in the workplace (e.g., age, disability, national origin). I predicted this in “The Employee Retaliation Plaintiff and Title VII: The 800-pound Gorilla Plays the Victim,” DCBA Brief, Vol. 21 p. 18 (November 2008).

While claims of race and sex discrimination today number only marginally more than they did 20 years ago, retaliation claims have doubled under Title VII and more than doubled under all statutes combined. The data bears this out. Consider this excerpt from the “charge statistics” of the U.S. Equal Opportunity Commission (“EEOC”) for FY 1997 through FY 2016 (For the full chart, go to https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm).

Total charges

FY 1997
FY 2016
29,199/ 36.2%
32,309/ 35.3%
24,728/ 30.7 %
26,934/ 29.4%
Retaliation – all statutes
18,198/ 22.6%
Retaliation – Title VII
16,394/ 20.3%
33,082/ 36.2%
Easier to Prove and It Pays Better

Why has retaliation shot to the top? In short: It pays better and is easier to prove. It pays better because a retaliation case so often involves termination, with all the money remedies attendant thereto (back pay and front pay, pre-judgment interest, and damages even for nebulous injury like “inconvenience”). It is easier to prove. There is no need to deal with such daunting proofs problems as the he said, she said proof problems that arise in sex discrimination cases, or with identifying similarly-situated “comparators” who were treated more favorably.

The prima facie case has only three elements: (i) plaintiff exercised his/ her civil rights (e.g., complained about the conduct of a co-worker); (ii) plaintiff was thereafter subjected to an “adverse employment action” (e.g., termination); and (iii) a causal connection exists between elements (i) and (ii). A rebuttable presumption of causation arises when elements (i) and (ii) occur close in time.

The “Dirty Little Secret”

Element (i) is the key. People have caught on to its dirty little secret, a counterintuitive subtlety that is one remove from legalized fraud. The conduct complained of need not be true or provable or rise to the level of a viable case of discrimination in the workplace. The plaintiff need prove only that he or she made allegations about an “unlawful employment practice.”

In the Hooters case, the conduct complained of was confined to a few harmless remarks by a vice-president. During a telephone conversation, he said he wanted lunch at Hooters because he enjoyed being waited on by attractive females, and a day or two later he questioned whether having young children would impair plaintiff’s ability to do the job. A sex discrimination case based on those statements, even assuming they were made, is apt to be dismissed, but so what? That will do no harm to her retaliation case, which is far more valuable to her and will require only proof that she submitted an in-house complaint that was peppered with the buzz words of discrimination.  

Although some cases pay lip service to the notion that the retaliation plaintiff must have a reasonable basis to conclude that an “unlawful employment practice” has, in fact, occurred, in reality the making of the complaint is all that counts. One federal case upheld a big-money judgment for a retaliation plaintiff who openly admitted that his underlying complaint of sex discrimination was false and malicious (The court said the remedy against him was a suit for defamation, not depriving him of his retaliation case.)

The in-house complaint is all it takes to prove element (i) in the Hooters case. Element (ii) is a “gimme.” By all accounts, the plaintiff was fired. She has a leg up on element (iii) as well: Because only one month separated the in-house complaint from the firing, the case for retaliation will probably enjoy the rebuttable presumption that elements (i) and (ii) are connected. More about this case below.


Can You Believe This? Wife of a Courtroom Lawyer from Small-Town Minnesota Files a “Million-Dollar Case” for Sex Discrimination in Far-away Texas after Losing a House to Foreclosure and a Lavish Stay-at-Home Job that Lasted Just Two Months

Recently a case for sex discrimination and retaliation that is built around a business lunch at Hooters and seeks $1 million in back pay, plus damages, was filed in Texas by a 53-year-old mother of two school-age children in small-town Minnesota who is married to the county prosecutor and lost a home to foreclosure just weeks before she started a stay-at-home job that paid $100,000.00 per year, minimum, who lasted in the job only two months, and who has been unemployed ever since. Or so it has been alleged and reported.

The PR Blitz Played Up the Hooters Angle, but There Was No Meeting at Hooters

The Hooters angle was played up by one and all, by the complaint and by the headlines and lead paragraphs of the online accounts of the lawsuit. (The Hooters restaurant chain is known for its suggestive name and scantily-clad waitresses.) All the stories were nearly the same in what they said and the order in which they said it. This fueled suspicion that they were all working off a press kit put out by a publicist for the plaintiff’s attorney which emphasized the point about Hooters – a gross inaccuracy, as it turns out.

Marci Hocevar’s complaint against a Houston-based biomedical company, Molecular Health, alleges that she had worked “remotely” as an executive account director for six weeks when a new vice-president of sales called for a lunch meeting to evaluate her performance and to determine whether she would continue in her job. Although the V.P is alleged to have proposed a Hooters in the Mall of America in Minneapolis, and most stories state or suggest that the event took place there, the Houston Chronicle reported that the lunch took place at a “more traditional” restaurant after the plaintiff objected to Hooters.

One Hundred Grand, Minimum.
            For a Stay-at-Home Gig that Lasted Eight Weeks?

The Chronicle offered another detail that others did not, an assertion by the attorney for plaintiff that she was “earning a six-figure salary.” (To me, that means at least $100,000.00 per year, no matter what. Not a complicated mix of salary, commission, and draw that might pay in six figures if goals and quotas are reached, but $100,000.00, rock bottom minimum. Really? For working from home, for six weeks, in small-town Minnesota? Wow. Hard to believe. The defense lawyer was quoted as saying that the case has no merit; but, then, he would say that, wouldn’t he?)

The stories went on to report, again apparently paraphrasing the complaint or a press release, that the vice president made “sexually discriminatory” remarks, and specifically, that he questioned whether having young children might interfere with plaintiff’s ability to do the job. After this meeting, the plaintiff complained to her immediate supervisor, who forwarded her complaint to the human resources department. A month later both of them were fired, the plaintiff and her immediate supervisor. That was in January-February of 2016. She has been unemployed ever since, or so it has been alleged. (There are indications online that the plaintiff is employed in pharmaceutical sales).  

Digging for the Back Story

This case seemed fishy from the start. When it transpired that nothing had taken place at a Hooters outlet despite all the emphasis placed upon Hooters, I decided to look at this case more deeply, and I brought to my investigation a solid understanding that a trivial event or a stray remark can be parlayed by an employee with a little moxie and a little know-how into an incipient retaliation case: Cobble up a report. Sprinkle it with some jargon of workplace discrimination. Send it to the human resources department.

Plaintiff’s Background: Spouse of a Courtroom Lawyer; Lost a House to Foreclosure

The plaintiff lives with her husband and their two school-age children in a small town in southeast Minnesota. The husband has spent his career in the office of the local prosecutor, and has been the incumbent county attorney since January of 2015.

Despite the good and steady pay and perks which all those years on a government payroll imply, the couple experienced financial straits so lasting and severe that a protracted foreclosure case culminated in the loss of their house in October of 2015.

That was only weeks before the plaintiff started her job with the defendant, a sales job that entailed working “remotely.” (To me, “remotely” means working from home.) She had held that job only six weeks when the performance evaluation meeting was set up. Its stated aim was to determine whether she would stay in the job.

The evaluation was performed by her ultimate boss, a vice president of sales who was himself so new to the company that, apparently, he had had no say in the hiring of this unknown newcomer he found on his team who was working “remotely” out in Minnesota and eating up at least $100,000.00 of his budget for salaries.

That vice president is still with the defendant. The immediate superior of the plaintiff who allegedly was fired at the same time she was has found substitute employment. There is a conflict between “news” reports that the plaintiff has been unemployed since getting fired and other online indicators wherein she holds herself out to be employed in the sale of pharmaceuticals.

What was her employment in the weeks and months before she went to work for the defendant? I could not find any information about that, and I allow for the possibility that this signifies there was no prior employment to speak of. I also allow for the possibility that one can live and work in a tiny town in Minnesota and still command a starting salary of $100,000.00 a year (maybe more), but I suspect that that is an outlier and not the norm.

The temptation to construe this case as an example of rank opportunism or calculated upward failure is overwhelmingly seductive. I believe that this plaintiff knew or suspected that the performance evaluation would more closely resemble an exit interview, and the event itself dispelled any doubt of it. I believe that she was remarkably well-versed in the relevant employment law and not at all shy about prosecuting a lawsuit for $1 million, if only because she had lived so long with a courtroom lawyer. I allow for the possibility that the two of them practiced, drilled, and rehearsed before the lunch meeting or after it or both (After all, the suggestion that lunch take place at Hooters was a potential heads up in that it preceded the actual meeting by a day or two.) My bet is that this plaintiff stayed home with her children and collected unemployment payments for as long as the law allowed, and was content to do so.  As for choosing venue in Texas when Minnesota was also proper venue, one wonders whether the less her neighbors in that small town know about her lawsuit, the better.

The “Ah Ha Moment”: She Has Sued Before

After the foregoing was written, I kept investigating because the case struck me as trumped up. The effort paid off. I learned that the plaintiff in the Hooters case has a background steeped in prosecuting claims that she is a victim of sexual harassment and retaliation. See Hocevar v. Purdue Frederick Company, 223 F.3d 721 (8th Cir. 2000). That case played out over seven years, from putative discrimination that began in 1994 or 1995 to a sex discrimination and retaliation case in the federal trial court in Minnesota that she lost badly, to an appeal to the federal appeals court in St, Louis that salvaged the retaliation case, to a remand to the trial court and an unexplained dismissal by agreement in 2001, which suggests a settlement. (In fairness, the conduct complained of in that case was amply proved and obnoxious; it lasted a long time and was inflicted by, among others, a male supervisor who had been promoted over her although her performance was measurably superior to his when they were peers,)

I will be watching for developments in this case. The defendant has one thing to work with, a 2013 decision of the U.S. Supreme Court which requires proof of but-for causation, i.e., that the plaintiff would not have been fired but for her complaint that she had been subjected to gender discrimination.

Copyright David H. McCarthy III (2017)