____________________
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.
12-09-21
Copyright by David
H. McCarthy III
