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