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
80,680
|
FY 2016
91,503
|
Race
|
29,199/
36.2%
|
32,309/
35.3%
|
Sex
|
24,728/
30.7 %
|
26,934/
29.4%
|
Retaliation – all statutes
|
18,198/
22.6%
|
42,018/45.9%
|
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.
FAKE NEWS ALERT: THERE WAS NO LUNCH
AT HOOTERS.
A RETALIATION CASE WAS DRESSED UP LIKE
A GENDER DISCRIMINATION CASE BECAUSE SEX SELLS
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.
05-11-17
Copyright David H. McCarthy III
(2017)
