Michael Brodkorb’s wrongful termination case against the Minnesota Senate is heading toward the deposition phase — and potentially awkward moments for some legislators.
Federal Magistrate Arthur Boylan has set May 2 for a pre-trial conference to include the names both sides want to depose.
Brodkorb has promised to identify legislators and staff members who had personal relationships similar to the one he had with former Senate Majority Leader Amy Koch to prove that his firing was handles differently from earlier cases, amounting to unfair treatment.
Prior to the pre-trial meeting, Boylan has ordered Brodkorb and the Senate into private settlement talks to take place on or before April 11.
If a settlement is not reached, and that is seen as unlikely, both sides must report to the court on April 25.
The court has dismissed Brodkorb’s libel claims against the Senate but has allowed the wrongful termination case to proceed. The Senate has maintained that Brodkorb was an at-will employee who could be fired without cause.
Brodkorb lawsuit
If he was an “at will” employee – which hasn’t been proven beyond the Senate’s allegation, as far as I know – he could have been fired for a good reason or no reason, but not for a bad reason. It isn’t a question of just “fairness,” or the Senate not being nice to Michael, it is a question of illegal discrimination. I don’t believe I’ve read a press report, including this one, that makes the point that “at will” employees have rights, too.
At will employees
“The Senate has maintained that Brodkorb was an at-will employee who could be fired without cause.” There is caveat to that statement and that is the termination, or firing has to be legal. In other words if an employer lays off, or fires an employee the termination cannot violate any state or federal law. Some of those laws for example would the ADA, Title 7, and many other EEO rules and regulations. That having been said, an employer cannot just fire somebody without cause unless they are 100% certain in doing so they are not violating any laws. Speaking from over 20 years of HR Consulting, and having followed this case, I doubt very seriously it was a legal termination and it probably will wind up in a settlement to protect some of the goings on behind the scenes at the legislature. If they settle, I would suggest there be an independent investigation to find out what really is going on behind the scenes and elsewhere.
At will, indeed…
A close relative has been terminated by two different Minneapolis firms, in both cases just a couple weeks after receiving “outstanding” performance reviews. He went to work as usual, was called into an executive office, told to have his desk cleared out by 4 PM, and was given no information as to why he was being terminated. I can only assume his former employer(s) did their due diligence in regard to EEO and other rules and regulations, and I claim no expertise there, but when the employee is given zero information regarding the termination except instructions to have personal belongings out of the building by 4 PM, it’s rather difficult to make a case that the firing was illegal without spending a lot of money for attorneys, depositions, etc., and when all is said and done, even if the employee is vindicated, all the courts can do is order that s/he be reinstated, with back pay, to a company where the former employee may — understandably, and to phrase it mildly — be considerably less enthused about the job than before. The unemployed don’t usually have the financial resources to pursue that course of action, and of course, once you’ve been told “We don’t want you,” it might be difficult to muster much dedication to the restored job, which seems to me a primary reason why actions of that sort are rarely taken by those who’ve been terminated without reason.
Brodkorb doesn’t fit that same scenario, but I think a settlement will likely prove much more attractive to Republican leadership than airing the legislature’s less-than-spotless laundry for scandal-addicted media attention in detail. Mr. Brodkorb appears to have been dealt with in much the same fashion he was accustomed to dealing with those in politics with whom he disagreed, that is to say, somewhat arbitrarily and even ruthlessly. I wonder what he will learn from this experience?
except…
I don’t think the Republican leadership is calling the shots on the lawsuit in the Senate anymore.
That’s not to say the DFL leadership won’t find a settlement more attractive either, though.
Many problems with such a cause of action
This is not the typical gender discrimination case. This was a political coup. You can’t look at any type of discriminatory cause of action without looking at the politics of the GOP.
Amy Koch was certainly served up on silver platter because the good old boys in the GOP wanted her out for political reasons. She wasn’t playing well with others. Koch and Broadkorp formed a new GOP dynamic duo and were running a take no prisoners Senate dictatorship. The fact is, if there was any hint of discriminatory intent behind the episode, it was not directed at Michael Broadkorp, but unintentionally aimed at Amy Koch for daring to be an uppity woman who refused to let the usual suspects run the show. Broadkorp was simply collateral damage.
The GOP’s lame pretext behind Koch being forced out was that the affair was causing a toxic work environment for those poor political souls at the capital that of course have never been exposed to such a situation. I’m sure they were just simply shocked that legislators’ egos, power, and political passions could collide to create such unwholesome conduct at the capital.
The reality is that the GOP’s good old boys had no discriminatory intent, it was just politics. They were simply pondering that old saying, “If you’re going to shoot at the king, you had better kill him.” The lesson being that if you fail, the king will grow stronger and come for you later. I’m sure their strategy was to count on the purity of the “family values” party members to destroy their first female leader if they simply branded her with a scarlett letter. They just failed to factor in how the public would react to the optics of a press conference with three old white guys holding the branding iron.
three old white guys?
The deceit and/or lies by the GOP leaders who outed her are worse than her behavior! Her behavior was sort of private….theirs was done as part of their position as political leaders!
The Christian Family Values Republican Senate
This fiasco was started by the behavior of two ” Christian family values Republicans” and made worse by the lies and deceit of other ” Christian family values Republicans”.
I hope the desire to embarrass the Republicans is outweighed by the desire to lessen the losses for the taxpayers. Of course, if the DFL Senate allows a deal now, the rightwing hypocrites will win by saying the deal was done to protect the DFL hypocrisy/cheaters.
Anyone who engaged in unethical conduct should be outed and the taxpayers might just learn an expensive lesson while Brodkorb’s attorney laughs all the way to the bank.
Employment at will
The one element in this that everyone is overlooking is that Brodkorb filed for unemployment and the Senate opposed it. In order for a terminated employee to not receive employment is if was terminated for cause. Since the senate opposed his unemployment they must have had reason for doing so and it had to be one of the reasons set down in the Federal unemployment law. If an employee is let go without cause, that is, laid off either temporarily or permanently they are automatically eligible for unemployment.
Brodkorb’s claims
are not based on a claim of wrongful termination, in the sense being used in much of this discussion. His employment claim, essentially, is that he was terminated for engaging in a relationship with a co-worker when women who had engaged in similar conduct had not been terminated. In addition to the four or so counts based on this theory, he also alleged invasion of privacy based on the disclosure of information from his unemployment compensation proceeding and defamation. The latter has been dismissed.
The GOP claims that he was an employee at will simply are irrelevant to the claims Brodkorb has made.
Those interested in wading through the repetitive Complaint will find it here:
http://politicsinminnesota.com/files/2012/07/BrodkorbLawsuit7232012.pdf
The case was removed from Ramsey County Districy Court to Federal District Court. Judge Nelson’s February 13, 2013 order on the Defendants’ motion for summary judgment, et al, can be found here:
http://kstp.com/kstpImages/repository/cs/files/Brodkorb%20Order.pdf
Are those other instances comparable? In this case, the person Brodkorb reported to lost the position that gave her the authority to employ him. Was that the case for the unnamed women he cites?
When you are a political staffer, your continued employment usually rests on your politician boss retaining his/her job. When your “patron” gets the boot, don’t be shocked to find yourself looking for new opportunities.