Holy Toledo! (Or should I say, Lansing?) Here is our next celebrity employment lawsuit soap opera . . .
You may have heard about the two Tea Party legislators in Michigan who were having an affair, engaged in a bizarre cover-up that failed, had to resign/were expelled, and then lost their election bids to get their seats back. It was a big deal over the summer and into the fall of this year.
In October, two of the legislators’ former aides, who were fired (no reason given) after they refused to participate in the cover-up, sued them for retaliatory discharge and defamation. Not that surprising.
But now, those same aides are suing the Michigan House of Representatives for wrongful termination in violation of their First Amendment and whistleblower rights, among other things.
The lawsuit against the House will be worthy of continuing coverage, so here is the background.
Star-crossed lovers, and the Keystone Kop Kover-up
Rep. Todd Courser (R-Lapeer) and Rep. Cindy Gamrat (R-Plainwell) were having an affair, and Rep. Gamrat’s husband had become wise to it. Last May, after finding out that Mr. Gamrat had conclusive proof of the affair, Rep. Courser composed a fake email from a fake “crank,” in which the “crank” accused Rep. Courser of being addicted to drugs and porn, and of patronizing male prostitutes. The idea was to “inoculate the herd” (his constituents) with outlandish allegations so that the “herd” would be skeptical when Rep. Courser’s much more ordinary adultery with Rep. Gamrat came to light.
Rep. Courser asked staffer Ben Graham to send the email from a “spoof” account. Not only did Mr. Graham refuse, but he also recorded the meeting (good idea – without proof, the plot would have been too ridiculous to believe). Mr. Graham also says he had an off-site meeting with a duly-designated House staffer within a day or two, and reported everything.
In early July, Mr. Graham and another staffer, Keith Allard – were fired by the House, no reason given because, “[a]s an at-will employee, no grounds are necessary.” (We’ll see about that.)
The termination was, of course, set in motion by Rep. Courser and Rep. Gamrat. Afterward, Mr. Graham went to The Detroit News with his recording and told the whole story. (Linked article has the audio recording of Rep. Courser’s May conversation with Mr. Graham about the cover-up.)
By September, the Michigan House had expelled Rep. Gamrat and presumably would have done the same with Rep. Courser if Courser hadn’t resigned first. In addition to apparently blaming Mr. Graham and Mr. Allred, Courser-Gamrat blamed the mainstream House Republicans of “the Lansing mafia,” who they say never really liked them anyway because of their politics.
The aides strike back
As already noted, Mr. Graham and Mr. Allard filed suit in Ingham County, Michigan (Lansing’s county), against our now-former public servants. The former aides claimed that they were terminated in retaliation for refusing to participate in the cover-up . . . and that Courser-Gamrat defamed them by saying that they were terminated for poor performance.
And now Mr. Graham and Mr. Allard are suing the House of Representatives for violation of their First Amendment rights, wrongful discharge, defamation, and other claims. (A copy of the lawsuit is embedded in the linked article.) The aides allege that they’d been reporting the Courser-Gamrat shenanigans to the Speaker’s Chief of Staff, per House policy, since January 2015 but that nothing was done, and then the House did nothing to stop their terminations.
They also claim that the Speaker of the House, Kevin Cotter (R-Mt. Pleasant), allegedly told the media falsely that Mr. Graham and Mr. Allard did not want to testify against Rep. Courser and Rep. Gamrat in the September expulsion hearings because they “planned to ‘plead the Fifth,’” implying that Mr. Graham and Mr. Allard had done something illegal and needed to avoid incriminating themselves.
Here’s what Speaker Cotter said this week in response to the lawsuit, according to the Detroit Free Press:
“The House Business Office did not terminate [Mr. Graham’s and Mr. Allard’s] employment in July for any protected whistle-blowing activity. Instead, their supervisors instructed the office to terminate their employment because of poor job performance and because they were ‘not a good fit’. The office acted appropriately and legally,” Cotter said.
Cotter further stated that the House Business Office investigation also revealed that Allard and Graham were “substandard staffers, violated House rules, and sent rude and disparaging emails about their coworkers, colleagues, and supervisors. In short, much like their bosses, Mr. Allard and Mr. Graham deserved to be removed from the Michigan House of Representatives.”
Really? Poor performers and “not a good fit,” based on the word of — Courser-Gamrat? Since the House hasn’t had a chance to file any formal legal response yet, I’ll keep an open mind, but I’m skeptical. And, if the experience of Bill Cosby and Trey Gowdy is any indication, Speaker Cotter’s statement may have opened the House – or at least himself – to another defamation claim.
The House Business Office posted more than 800 pages of investigative material on the internet, including some emails indicating that Mr. Graham and Mr. Allard were not always the best about responding to their bosses’ constituents. Of course, Mr. Graham and Mr. Allard say that’s because their bosses were playing kissy-face with each other instead of paying attention to affairs of state. And they say that the House knew it all along because they’d been reporting the behavior to the appropriate House officials.
A word about employment at will
If you visit this blog regularly, you know I warn employers not to count on the “employment-at-will” defense. The courts have made too many exceptions for the rule to be much of a safety net for employers. With that introduction, read what the House investigative report says about the terminations of Mr. Graham and Mr. Allard:
The evidence does not demonstrate that the terminations of Mr. Graham and Mr. Allard meet the exceptionally high bar of violating state public policy or that they fall under the protections of whistleblower laws.
Bless their hearts. Freedom of speech about matters of public concern isn’t a “public policy” in Michigan? Well, ok, maybe it is. It isn’t “whistleblowing” to report a couple of congresspeople who planned to have sent (and did have sent) a fabricated “crank” email to deflect the public’s attention from the fact that they were having an affair instead of taking care of the business of the people of the State of Michigan? Well, ok, maybe it is.
I suspect this lawsuit will survive a motion to dismiss.
To be continued . . .