Brodkorb case faces some big hurdles

Reverse discrimination claims rarely succeed

In many ways, the legal theory that Michael Brodkorb’s attorneys are putting forth in his anticipated sex discrimination case against the Minnesota Senate is ordinary.

Bloomington attorney Phil Villaume is using the McDonnell Douglas analysis to prove disparate impact discrimination. He is arguing that his client is a member of a protected class, that he is qualified to perform his job, that he suffered an adverse employment action (in this case Brodkorb was fired) and that Brodkorb was treated differently from similarly situated females.

To establish this fourth point, Villaume says he is prepared to depose current and former women staff workers in the Minnesota Senate and legislators. He said he will file the case in federal court but may file a similar claim in state court as well.

But in many other ways, the discrimination case is anything but ordinary.

To begin with, Brodkorb is a man and has admitted to a very public and salacious extramarital affair with one of the most powerful elected officials in the state, then-Senate Majority Leader Amy Koch, R-Buffalo. This is not a case of a woman who was fired for spurning her boss’ sexual advances or a subordinate alleging that she was passed over for a promotion in favor of a co-worker who was engaging in affair with the boss.

Further, Brodkorb is asking a jury to set aside the affair and focus only on his termination. He is arguing that he was fired not because of the affair but because he is a man. He is threatening to expose at least 15 past and current affairs in both parties where women staff members had affairs with male legislators and were not fired to prove his case. And he is asking for in excess of $500,000 in damages.

Attorneys for the Republican Senate caucus have said that Brodkorb’s claims are without merit and he is trying to extort money by threatening to go public with the details of past sexual indiscretions.

Dayle Nolan, the attorney at Larkin Hoffman hired by the Senate Republican caucus to review Brodkorb’s claim, did not return calls for this story.

Attorneys who do sex discrimination work in Minnesota say that Brodkorb will have a difficult time making his case for various reasons and that Brodkorb and his attorneys may have already played their strongest cards by publically outlining their strategy and closing the door to further mediation.

Nicholas May, a plaintiff’s employment lawyer in Minneapolis, said the Minnesota Senate has several likely legal defenses to Brodkorb’s claim. He said the nature of Brodkorb’s high profile job, and his position of responsibility with the Senate, could be the undoing of the case. Villaume’s strategy is to present evidence of extramarital affairs between female staffers and male legislators and then prove that the women were not fired the way Brodkorb was.

“This is where their case likely falls apart,” May said. “He must present evidence that he and the other female employees were similarly situated in all relevant respects. [Brodkorb] was the director of communications [for the Senate] and executive assistant to the majority leader and likely had no peers. He may have difficulty proving he was similarly situated to anyone.”

Or if Brodkorb or the Senate finds a similarly situated women subordinate who was fired over an affair with a senator, the case will be dismissed, May said.

The problems don’t stop ­there. Few “reverse discrimination” cases succeed.

“Discrimination is often entirely believable to a jury when it’s a woman making the claim, but it gets blown off when you are talking about a man,” said Minneapolis employment attorney Donald Nichols. “In the 30 years I have been at this, the cases where it’s a man alleging discrimination are only a handful.”

A number of federal courts, including the 8th, have concluded that terminating an employee based on the employee’s consensual sexual conduct does not violate the Civil Rights Act, unless that conduct stemmed from unwelcome sexual advances or a hostile work environment. Brodkorb’s lawyers are alleging neither.

Furthermore, the attorneys for the Senate are going to fight to block or keep private the depositions, which are the heart of Brodkorb’s strategy. If the Senate lawyers can persuade a judge to limit the depositions to the question of whether Brodkorb was similarly situated to other women employees in the Senate, it could weaken his position.

Human nature could also disrupt Brodkorb’s case, said Minneapolis employment lawyer John Klassen.

“How do you prove someone had an affair short of video or audio evidence?” Klassen said. “As soon as you make the accusation, one party will deny it. … Unless Brodkorb has got some inside track and a bunch of witnesses ready to go, it’s going to be hard to prove these affairs.”

Despite the obstacles in proving his claim, Villaume said that it didn’t take him long to decide to take the case. Brodkorb was referred to him by another attorney. He said the case is unlike any other he has had in his career, and is unique in theory, but his client’s case is no less just.

“After talking to him I thought, my gosh, I can’t believe what’s happened here. This guy has a very strong claim,” Villaume said.

The bulk of the legal work will be arguing over “what we can do and how we can do it,” Villaume said. He anticipates the Senate will fight to block the depositions, but he said the law is lenient on whom you can depose as long as it’s not improper. He hopes to have his lawsuit ready to go in the next 60 days and said it is likely that the state of Minnesota will be added as a defendant soon. He will also sue for defamation claiming that the Senate GOP caucus publically slandered Brodkorb in the press.

Villaume maintains the facts are clear. A Senate official fired Brodkorb on Dec. 16 and told him that it was because of the affair with Koch. Brodkorb is aware of other female staffers who were not fired because of similar affairs, so therefore Brodkorb was discriminated against.

Klassen said every plaintiff’s lawyer discusses with his or her client that there is a down side to bringing a sex discrimination case like Brodkorb’s. Even if Brodkorb wins, he might lose, Klassen said.

“If you are staking your future career on a career in politics with the Republican Party, you have to have a pretty strong belief in your claims because there is that old saying, ‘You will never work in this town again,’” he said.

Brodkorb is seeking damages of $500,000 because his damages were substantial. He was making around $90,000 at the time he was fired and is virtually unemployable right now, Villaume said.

“The cap on damages is $1.5 million so depending on if we can get the case to a jury, then anything can happen,” Villaume said.

He said that based on the public statements made by Republican senators and their attorneys, any efforts to mediate a settlement are over. Nichols and other employment attorneys think the best outcome would be to keep the case out of the courts.

“They should try to take care of this on their own and hire an ex-judge to mediate this that understands everyone’s needs and who won’t leave a lot of blood on the floor,” Nichols said. “It’s a shame. A lot of people have had affairs, but so what? We aren’t the morality police here. What you hate to see in one of these things is innocent people who get caught in the crossfire.”

It is possible that despite both sides’ claim that mediation is not an option; the case may never see a trial. Its first stop will be a settlement conference with a federal magistrate judge.

“The task of a magistrate judge is to clear the docket by settling cases, and they are very good at their jobs,” Klassen said.

May and Klassen are both skeptical of the damages claim as well. May said even if Brodkorb prevails, the argument could be made that any damages he incurred were due to his “extremely poor judgment,” not any discrimination on the part of the Senate.

“[Villaume] has justified his $500,000 demand by arguing that Brodkorb’s reputation has been ruined and he can’t find a job. But damages in a lawsuit need to be tied to the act. Is Brodkorb’s problem in finding a job due to [the alleged discrimination] or because everybody knows that he engaged in an extramarital affair with the Senate majority leader?” May said.

The defense brief in the damages phase if Brodkorb did prevail would be succinct, Klassen said.

“They would argue that he did this to himself,” Klassen said. “He is young, smart, educated and eminently re-employable. The defense as to why he can’t find another job is because he publically shamed himself and the institution by having an extramarital affair with a high-ranking Republican legislator.”

Even with the risks and the obstacles, Klassen said most employment lawyers would take Brodkorb’s case.

“This is just one of those cases that plaintiffs’ lawyers don’t get to try all that often,” he said.