The Knicks Mess

Alan Rupe (/authors/421-alan-rupe/articles)

November 12, 2007
In the wake of the $11.6 million jury award (with the potential for $9.6 million more in
compensatory damages), commentators have flooded print and the airwaves with
discussions of the offensiveness and ham-handedness of Madison Square Garden
executives and New York Knicks coach and president Isiah Thomas toward former Knicks
senior vice president (and now plaintiff) Anucha Browne Sanders.
Heres what stood out to me as I watched the newscasts and read more about the case:
the defendants went way past just being pinheaded, as you will soon see. Heres how it all
began:
Browne Sanders filed suit against CEO James Dolan, Thomas and executives of
Madison Square Garden, claiming she was discriminated against and forced to work in a
sexually hostile work environment, and then was fired in retaliation for making a complaint.
On December 22, 2005, the plaintiffs attorney met with the attorney for Madison Square
Garden, and told for the first time of Browne Sanders complaint of sexual harassment. The
attorneys agreed to "attempt to expedite a negotiated, good faith resolution" of Browne
Sanders claims.
At one point, Browne Sanders offered to settle her claim for $6 million, which was more
than 20 years of front-pay compensation. According to court documents, she threatened to
go public with a lawsuit to "teach Madison Square Garden a lesson" if she did not receive
"money, lots of money." Madison Square Garden also began an internal investigation
conducted by a company vice president and an in-house attorney for Madison Square
Gardens parent company.
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The investigation summary was completed on January 13, and on January 19, Madison
Square Gardens general counsel prepared a memorandum recommending that Thomas
receive sensitivity training since he had occasionally used profanity and raised his voice in
the workplace and, on one occasion, greeted Browne Sanders with a hug and kiss. The in-
house investigators also found that most of Browne Sanders allegations were not
confirmed, but that she had exhibited a "poor relationship and difficulty interacting with
members of Madison Square Garden management." Browne Sanders was fired that same
day.
By the time of trial, there was little doubt there was sexual harassment by Knicks and
Madison Square Garden employees and management.
Obviously, comments by Thomas to Browne Sanders about her physical appearance
(she was "beautiful" and "easy on the eyes") and putting his arm around her arm and
attempting to kiss her on the cheek were offensive and were perceived by Browne Sanders
as harassment. Thomas was also accused of "screaming" at Browne Sanders on several
occasions and referred to her in sexist and demeaning terms.
Those of us who have handled dozens of sex harassment cases over the years with
allegations that would make Brittney Spears blush know that the Madison Square Garden
case is pretty much a garden-variety claim of sexual harassment (no offense to Ms. Browne
Sanders). Juries generally decide these types of claims with a generous award of
compensatory damages for lost wages, emotional pain and suffering, lost benefits and
attorney fees.
It has been my experience that juries seem somewhat reluctant to award a huge amount
of punitive damages if the defendants conduct is not egregious, does not take place over a
long period of time and has stopped. But in this case, the jury came back with a prodigious
punitive damage award, and the potential for more compensation to Ms. Browne Sanders.
What is different about this case?
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Well, on the social monitor of appropriate behavior, Dolans behavior tipped the needle all
the way to "stupid." If stupidity could be converted to energy, Madison Square Garden
would not have to pay its electric bill for a long, long time. But while stupidity does not create
fuel, it does create fools. Consider the following:
Ive looked at portions of Dolans videotape deposition posted on the Web. (The
videotape deposition was also projected on a larger-than-life screen for the jury at the trial.)
It is hard to imagine Dolan as corporate leader of one of the worlds most-recognized
entertainment conglomerates after seeing him slumped in his chair, wearing a collarless
black shirt, and testifying in what seems to be an extremely offhanded way.
Dolan looked more like the high school sophomore sitting in the principals office than a
CEO testifying in an important lawsuit. His trial testimony also seemed indifferent; he
testified he had not read Browne Sanders performance evaluations nor did he require
Thomas to attend sensitivity training. Dolan testified: "When the lawsuit came, that was
about as much sensitivity training as hed ever want."
None of these events can be counted as a high point in Madison Square Gardens 128-
year history, but Dolans conduct, appearance and testimony at trial certainly may become
notorious for a new low. As chairman of that august landmark, Dolan is in a leadership role
at Madison Square Garden, responsible for the companys overall growth strategy, and
oversees its day-to-day operations. At his deposition, Dolan testified:
Q. Who made the decision to have Ms. Browne Sanders employment be
terminated by the Garden?
A. I did.
Q. Did you make it on your own or was it with others, consultation or something
else?
A. Well, all decisions at the Garden I make on my own.
Dolan testified he did not consult with corporate counsel, talk to Browne Sanders
supervisor or read the report of the in-house investigation.
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Anyone who has ever been a defendant in an employment discrimination case, every HR
professional and every employment lawyer could have told Dolan his solitary decision was
really, really dumb.
Consider Title VII and its prohibition against retaliation. Title VII of the 1964 Civil Rights
Act prohibits intentional discrimination based on gender and other protected categories.
Similarly, employees may not be retaliated against if they complain of harassment or
discrimination. And if it is just one person who makes the decision to terminate a
complainer, the plaintiffs burden of proving intentional discrimination becomes pretty easy,
especially if the decision-maker behaves like Mr. Dolan.
When more than one person makes the decision to fire an employee, the occurrence of
(and proof of) intentional/unlawful conduct is not quite so easy. We teach employers to
make important decisions, such as job action against an employee who has complained
about discrimination, in a collective, shared-responsibility forum.
It doesnt take a legal expert to know that when it comes to decision-making, two heads
are better than one. A small group consisting of corporate counsel, a supervisor with a long-
standing knowledge of the complainant, a human resources professional and key
management is a committee formula that works when important personnel decisions
become necessary in the context of complaints of discrimination and possible litigation.
A small group like that has the advantage of a rational, dispassionate review of the
events and documents with an unemotional, logical result, compared with a reactive "fire
away" of the single "Type A" decision-maker. One of the biggest changes I have noticed in
my 33 years of experience in employment law is that employees seek legal advice long
before their employers come to the realization they are about to be sued. Most employers
today give their business the same advantage that employees have by advance planning
and prudent strategic consultation. But not Madison Square Garden.
In the Browne Sanders case, it appears that she knew more about the laws of
discrimination and retaliation than Dolan at the time of his decision to fire her. Maybe I have
it all wrong: Dolan may have been advised well, but simply ignored the guidance. Take my
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advice, Mr. Dolan: Listen to others from time to time. Get some value from your lawyers,
who probablyrightly, as it turns outtold you that you could be personally sued if you fired
Browne Sanders.
Sexual harassment cases are most generally he said/she said cases, and juries often
decide on the basis of the witnesses credibility. When faced with the plaintiffs and
defendants opposing views of reality, juries are often swayed by a witnesss demeanor,
dress and respect for the legal system.
Trial is not the time to head-butt the plaintiff and it is the lawyers responsibility to make
sure the client is prepared and aware of the jurys sense of justice and fairness. The best
time to win a sexual harassment and retaliation case is at the beginning, not the end. A non-
hostile environment and collective carefree and dispassionate decision-making wins sex
harassment and retaliation cases before they ever get started.
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