Did I ever tell you guys about the wacky race discrimination case I defended involving a male fast-food franchise employee caught on video smacking a female co-worker?
Both the violence and subsequent bogus race discrimination claim were unsettling. Still, it was the events leading up to a scheduled mediation with the pro se plaintiff that really offended my sensibilities. It started with the plaintiff demanding that we fire his former manager. Then, there was his $5 million demand, which the assigned mediator recommended that I continue to negotiate against. Bless her heart.
But what really stuck in my craw was the plaintiff’s additional demand for a positive letter of reference. A positive reference letter. GTFO!
In hindsight, perhaps, I was a bit over the top when I asked the mediator if the oxygen was thin on the planet on which she and the plaintiff resided. Needless to say, the case never settled, and the administrative agency complaint never progressed to court.
Deja vu all over again.
These memories came flooding back as I read this recent Illinois federal opinion. It involves a black man who identifies as gay. In a lawsuit filed pro se, he alleged that his former employer discriminated against him based on his race, sex, and sexual orientation. The employer denied these claims, asserting that it fired the plaintiff because he physically attacked a female co-worker. The court concluded that the plaintiff failed to present any evidence to rebut the employer’s legitimate business reason for firing him.
Why? Because duh.
For example, when asked at his deposition if he could point to any evidence establishing that the decisionmaker had disciplined African-Americans differently than members of other races who are found to have committed the same policy violations, the plaintiff responded, “No.”
When asked at his deposition to identify the facts that established his employer discriminated against him because he is a man, the plaintiff could offer nothing but conjecture.”If it had been a lady . . . they probably would have just talked to her for a minute, put her over in the corner . . . But since I was male . . . they escorted me out immediately.”
And what about sexual orientation discrimination? Here’s how the plaintiff testified:
Q: “As far as your sexual orientation is concerned, can you tell me all of the facts that you believe show that your sexual orientation was a factor in your suspension and termination?”
A: “My sexual—I can’t—no, I can’t prove that. I can’t prove that.”
PRO-TIP number two: When defending a pro se claim of discrimination, skip the paper discovery and take the plaintiff’s deposition right away. You’ll save yourself time and expense.
Sadly (thankfully?), not only did the court grant the employer’s motion for summary judgment, but it also denied the plaintiff’s motion for attorney representation filed four months after the defendant had already moved for summary judgment. Shockingly (or not), the court described the request as futile.
The Employer Handbook Zoom Office Hour – Today at Noon ET!!!
We’re just hours away! My special guest, employee-rights attorney and mediator Lori Ecker, will join me to talk about the next wave of employment lawsuits in 2021 and what businesses can do now to prepare for (and hopefully avoid) them. Interested? Yeah, you are.
Click here to register.