An employer sues an employee before the employee sues first. To some employers who have endured the bitter pill of meritless litigation filed by an ex-employee, this sounds like a dream come true. To most employment law attorneys, this sounds like a dream world.
The New York Law Journal published a fascinating, if sordid, story last week titled, NY Law Firm Preemptively Sues Secretary Who Threatened Rape Suit Against Partner. The story involves a complaint filed by a law firm, Bivona & Cohen, against a secretary, Windy Richards. According to the complaint, Ms. Richards had performance problems and decided to try to hang onto her job in an, well, an unusual way.
Allegedly, she targeted a partner who she knew had a drinking problem. The opportune moment arrived. While the partner was impaired by alcohol, Richards performed a lap dance for him. Next, she obtained “evidence” on a towel, demonstrating at least some kind of sexual encounter (think Monica). Then she hired a lawyer, who demanded $9 million to settle her claim that the partner in question had sexually harassed and ultimately raped her.
But the law firm beat her to the courthouse, filing a preemptive suit againt the sordid secretary. The suit asserts claims of defamation, tortious interference and intentional infliction of emotional distress. In addition, the suit seeks a declaratory judgment that the secretary was not harassed or harmed by the partner. Additionally, the firm seeks a judgment declaring that the firm may lawfully fire her for providing a false social security number to conceal a 1991 drug-related criminal conviction.
The partner has been disciplined in a manner not disclosed in the lawsuit (although the filing of the lawsuit publicizing the alleged drinking problem and lap dance incident may be viewed as significant disciplinary action all by itself). The secretary is on paid leave. No doubt the secretary’s answer to the complaint will include counterclaims for sexual harassment and retaliation.
The law firm’s strategy is highly unusual, but not unprecedented. A few years ago, Fox News host Bill O’Reilly did the same thing, and was represented by the same attorney, Ronald Green of Epstein, Becker & Green. In that case, O’Reilly accused his accuser, who had been trying to negotiate a settlement of a sexual harassment claim, of attempted extortion. Trouble is, as pointed out by The National Law Journal, currently, attempted extortion is a crime, not a basis for a civil lawsuit.