None of us is immune from the Streisand Effect. Not even employers.
A real estate firm in Dallas sued its ex-bookkeeper, Jacqueline, for embezzling approximately $400,000 over a four-year period by writing checks to phony vendors and all the usual tricks. She generally denied the allegations, and apparently the parties didn’t do much discovery, so they went to trial without knowing what the other side would say.
The CEO, Jim, got up on the stand and patiently went over the books, explaining to the judge all the dishonest things that Jacqueline had supposedly done. It didn’t look good for Jacqueline.
After Jim was finished, Jacqueline was called to the stand.
Jacqueline testified, “Sure, I was writing checks to phony vendors and paying myself. You know why? Because Jim made me give him ‘sexual favors’ and told me he’d pay for it by letting me write checks to phony vendors and pay myself. Every phony payment I made was with Jim’s knowledge and permission, and he’s the CEO, so I didn’t embezzle a nickel.”
Jim was called back as a rebuttal witness. “Well – she’s ugly!” he said.*
*Not the actual trial testimony. Jim denied the relationship.
The judge believed Jacqueline, finding in her favor on all issues.
OK. Bad idea for Jim to have sued Jacqueline in the first place, if that’s what was really going on. Bad day in court for Jim and his attorney. And a terrible, horrible, no-good, really bad day for Jim’s wife. But then, stuff happens. The real question is, How do we move on?
I know! Ask the judge to put his findings in writing!
So Jim did, and the judge put in writing his ruling that Jim had a four-year sexual relationship with Jacqueline, and that Jim told Jacqueline to pay herself through company funds so that Jim’s wife wouldn’t find out.
OK. With 20-20 hindsight, maybe that wasn’t such a good idea. What could be worse, I wonder . . .
I know! Appeal the judge’s decision so there’s a written opinion from a higher court – picked up by Law360 and read by alert employment lawyers and bloggers everywhere – telling the world that Jim was not only cheating on his wife but also procuring – for himself. That’s the way to put this thing behind us!
Well, Jim really did that. He claimed that he was blindsided at trial by Jacqueline’s testimony because she hadn’t disclosed before trial that she was going to claim an “affair.” The Texas Court of Appeals disagreed, saying that she’d said in her disclosures that she was going to claim she had permission to make the expenditures, which was enough to put Jim on notice. (Especially if he really was having sex with Jacqueline anyway!) In addition, the court said, because the case was tried before a judge instead of a jury, the judge was allowed to decide who was more credible and whose evidence he believed. (In case you forgot: He believed Jacqueline’s.)
So, dear employers, next time you really want to go after a former employee and your lawyer tells you no, please do listen.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.