Media comments seen undercutting lawsuit
Did Michael Brodkorb just hand the Republican caucus its best defense against his gender discrimination lawsuit? And did the Senate leadership just as quickly throw it away?
Brodkorb was fired from his job as a top staff member of the Senate Republican caucus last winter when news about his extramarital affair with Sen. Amy Koch, who was Senate majority leader at the time, came to light. Following his termination, he sued the Senate alleging gender discrimination, privacy violations, defamation among other charges. The suit has since been reduced to the claims of defamation and discrimination.
Brodkorb did a series of media interviews earlier this month after a September settlement conference between the two sides was unsuccessful in resolving the remaining issues. Brodkorb, a former communications director for the Republic Senate Caucus, is not media shy. He is a once and former blogger and is active on social media.
In one of the interviews he said he was fired because of a “palace coup” orchestrated to get Koch and those close to her removed from power by other Republican legislators. He further alleged that Koch was targeted because she was a woman by the “old boys’ network” in the Senate and he was caught up in the scuffle.
If true, then the basis for his gender discrimination claim goes out the window.
Brodkorb contends that he was treated differently than similarly situated legislative employees. Specifically Brodkorb said he is prepared to introduce evidence of women staff members who had affairs with legislators and were not fired. He even provided his attorney with a list of names.
But his words could come back to haunt him.
“If Brodkorb is right, that he was fired because of this “power grab” or coup, that’s not discrimination,” said Nicholas May, a plaintiff’s employment lawyer in Minneapolis. “He is helping the Senate make their case. He said, ‘I was fired because of what was going on behind the scenes. Not because I am a man.’ The Senate could just point to his comments and say, ‘Look. He agrees with us. This isn’t discrimination.”
But the Senate didn’t do that. In the same story where Brodkorb made the “palace coup” comments, Republican senators in leadership positions vehemently denied the firing was politically motivated.
May said the Senate leadership dropped a great opportunity to throw water on the fire.
“The Senate could have said, ‘He’s right. Politics is politics. It wasn’t gender that got him fired. He was caught up in something else.’ But instead they said ‘Brodkorb is wrong. That’s not true,’” May said.
The exchange highlights the risk attorneys take when they let their clients talk to the press.
“You understand that your client wants to tell their side of the story. And it’s always a difficult decision to make, but I typically tell them no,” he said.
Brodkorb’s attorney Phil Villaume said nothing has changed with the case or with the strategy.
A gag order requiring the parties to not talk about the case was lifted earlier this month. Villaume said he and his client agreed to drop some of the charges in the original lawsuit to narrow the scope of the lawsuit. He said they will proceed as planned with the gender discrimination claims.
In addition to discrimination, the lawsuit alleges that the Senate defamed Brodkorb when Cal Ludeman, the secretary of the Senate, issued a press release that said Brodkorb was trying to extort a payment from the Senate” and told reporters Brodkorb was trying to “blackmail” the Senate by filing the lawsuit. Brodkorb’s lawyers argue that statement constitute defamation and damage his standing in the community.
A judge is expected to rule on the Senate’s request to dismiss that charge in the next 30 to 60 days at which point discovery would begin, Villaume said.
It is not out of the ordinary for charges in an original lawsuit to drop off as the case progresses, said Minneapolis employment attorney Dennis Merley.
“It’s very common for a lawyer to file a suit with every conceivable complaint out there for fear of losing out on something if you discover it down the road,” he said.
Merley said the case will get difficult for Brodkorb moving forward, however. Now that Brodkorb has said he was discriminated against in the firing, the Senate will offer a “legitimate, nondiscriminatory” reason for why Brodkorb was fired. Then the burden shifts back to the plaintiffs to argue that the reason offered by the Senate is “pretextual.”
Merley said employees have to show that the reason articulated by the employer is obviously untrue or there is a separate set of facts that casts doubt on the reason provided that indicates a link between the firing and the employer being a member of a protected class. Brodkorb would need to produce emails or some kinds of documents that prove he was fired because he was a man, or provide evidence through comparative data, he said.
“It’s a fairly substantial burden for the plaintiffs to prove that the reason the other side provided is wrong and that they are hiding something,” Merley said. “That’s not easy to do.”