With the FIBA championships ending and the transaction wire grinding to a halt, the only show in the NBA is happening in downtown Manhattan, where Isiah Thomas and the Knicks are in a dogfight with former employee Anucha Browne Sanders over an employment discrimination claim. Usually, any trial will grab interest because of the potentially all-or-nothing nature of the proceeding. In this case, the matter takes on added dimensions because Isiah and the Knicks both are being very publicly excoriated by Sanders, which could create collateral problems for the Knicks and Thomas and reveals all sorts of sordid claims. This particularly true since the defendants haven’t exactly excelled in building a team and now they are accused of bad acts as well. One would think that given these performance issues, both Isiah and the Knicks would’ve wanted to settle this matter but, apparently, that’s not the case. The trial has been rolling along for several days now. For those who are curious, here is some background on the trial:
What is Browne Sanders suing for?
Browne Sanders is suing Isiah and the Knicks for violation of Title VII of the 1964 Civil Rights Act and the New York State and City Human Rights Laws for discrimination based upon gender, sexual harassment, and retaliatory termination.
How viable are these causes of action?
Hard to say. It’s generally hard to prove discrimination and harassment unless there are some egregious instances (which have been alleged here). Retaliatory firings are also hard to prove but there may be a smoking gun in this case. So, it depends on the facts of this case.
What are the facts of this case?
We’re seeing a lot of noise at the trial about what is being alleged. It’s hard to get a handle on all these testimony. I thought it would be useful to see what findings of fact Judge Gerard Lynch made in his August summary judgment decision. Here’s how he saw the case at that time:
-Browne Sanders began working with the Knicks in 2000 as VP of Marketing. She was was an employee in good standing, received a few promotions, and worked well with Scott Layden the previous GM.
-Isiah was hired as GM/President in late 2003. Thomas’ duties did overlap with Browne Sanders’ and they had to meet frequently.
-In 2004, Browne Sanders began having problems with Isiah over their respective roles in the organization. She also had problems with senior VP Frank Murphy. It’s not clear exactly why, but Browne Sanders conceded that her job performance declined in 2005, including presiding over a “disastrous” budget meeting (as described by Knicks’ Executive VP Steve Mills).
-Browne Sanders alleged that in 2005 Thomas kept making sexual advances at her. Thomas denied this charge and said, at most, that he tried to kiss her on the cheek at a game and she pulled to which Thomas replied “no love today?”
-Browne Sanders claims that at or about the same time he complained to management that Stephon Marbury and his cousin Hassan Gonsalves (and a Knicks employee) had been harassing Browne Sanders and other female employees. Marbury admitted that he didn’t like Browne Sanders but was not disciplined. Gonsalves was terminated.
-Browne Sanders then began asking Knick employees to email her to memorialize conversations they had about her sexual harassment complaints. She also asked for documentation of any other sexual harassment problems witnessed at work.
-In late 2005 and early 2006, Browne Sanders and her attorney met with Knicks management to address her harassment complaints. The Knicks assigned in-house counsel to investigate these charges. Thomas denied all the allegations to in-house counsel and claimed that the claims related to conflict between the two based upon their overlapping job responsibilities. At the same time, Browne Sanders engaged in settlement negotiations with the Knicks.
-The investigation ended in mid-January and the counsel recommended that Thomas get sensitivity training for occasional use of profanity but found that the claims were not substantiated and questioned her ability to relate to colleagues.
-One week later, James Dolan (the owner) decided to fire Browne Sanders. The Knicks told the Equal Employment Opportunity Commission that she was fired because she lacked “inter-personal skills” and that there were questions about her job performance before any harassment claims ever came up. In what the court considered inconsistent testimony, however, Dolan testified at deposition that he was troubled by Browne Sanders’ behavior during the internal investigation when she solicited support from within the company and demanded an unreasonable settlement, all of which he considered tampering.
-Within five days, Browne Sanders commenced the instant litigation.
-When the litigation was commenced, the Knicks publicly took the position that Browne Sanders was fired for poor job performance, which was somewhat different from what Dolan stated.
-Since the lawsuit was commenced, Browne Sanders produced her tax returns and the Knicks have noted that the 2003 and 2004 Tax Returns contained $73,000 in business deductions. Shortly afterwards, Browne Sanders amended those returns to reduce those deduction by about $20,000. Browne Sanders did not amend her 2001 and 2002 returns, which had similar deductions. The Knicks then argued that she violated company policy because the returns suggest that she was operating a side-business while also working for the team (in violation of company policy). Browne Sanders was forced to take the position that she did not work in other job. Thus the tax returns were incorrect, which she stated were accidental and an accounting error and the Knicks claimed was accounting fraud.
What does this all mean?
Notably, there really aren’t many good guys:
(a) Dolan looks like the biggest liar because he admitted that the firing was related to his unhappiness with Browne Sanders’ attempts to gain a settlement and influence people during the internal investigation. This testimony suggest that she was fired for making claims of harassment. This makes the performance based termination look untrue (even if she concedes she was not performing well in 2005 and 2006). Still, the picture I got was that Dolan made Browne Sanders go through the motions of an internal investigation just to create a reason to fire her.
It is fairly amazing that no matter what the truth was on this issue that Dolan couldn’t stay on script at his deposition. All he had to do was deny that the investigation and settlement negotiations bothered him and that she was fired solely for performance. With only that evidence, it would’ve been really tough to prove retaliatory firing. Instead, Dolan couldn’t help himself and had to tell the world that he was pissed about Browne Sanders’ temerity to demand money that was probably earmarked for Eddy Curry’s per diem. This makes Dolan seem more dumb than mean. I’m not saying Dolan seems like a nice guy but he definitely got played like a fiddle by Browne Sanders’ lawyer at deposition. While I’m not suggesting that Dolan should’ve lied about his reasons for firing at deposition, any educated executive would’ve understood the issues coming and possibly tailored his or her testimony to the legal standard needed for dismissal of the action and, instead, he did the opposite.
(b) Thomas looks like the jerk everyone always thought he was. At best, he curses a lot and makes people feel uncomfortable. At worst, we refer you to Browne Sanders’ complaint.
(c) Browne Sanders either is a concerned citizen or a busybody who tries to manufacture claims when she knew she was losing the boardroom struggle. Since I’ve never really seen her speak it’s hard to assess her credibility but certainly it’s hard to accept that her improper tax returns were accidental and tax fraud certainly
bears on her credibility.
Shades of Larry Brown?
The whole firing of Browne Sanders certainly harkens back to the Larry Brown saga, where Dolan and Thomas left Brown in limbo for a month, letting the media frenzy follow Brown in a circus that seemed designed to inflict as much pain as possible. It wouldn’t take too much to believe that the Browne Sanders fiasco was handled in a similar fashion.
What now?
Judge Lynch denied all the motions for summary judgment and found that all issues should be determined by a jury, that will assess the parties respective credibility. He did recognize, however, that the retaliation claim was “formidable” and that Dolan’s testimony was almost a full admission. The harassment claim is more of a 50-50 deal and will come down to who the jury believes on whether sexual advances were made by Isiah.
The Knicks are not completely cooked. Judge Lynch stated that under after-acquired evidence doctrine, if an employer can prove that newly discovered evidence demonstrates egregious enough conduct and the employer would’ve been terminated solely on that basis, claims for reinstatement and front pay (prospective earnings) are barerd. This would be significant because Browne Sanders’ complaint seeks $600,000 in back pay but $9.7 million in front pay. It would not be shocking for a jury to hold that Browne Sanders’ tax returns were fraudulent given that she admits to not running a personal business, despite claiming large deductions on this basis.
Still….why the hell wasn’t this settled?
I don’t know. The money is not huge for a huge corporation and the negative publicity and attorney’s fees probably overwhelm the costs of settlement. My guess is that Dolan took the issue very personally and that has not served his company well. I understand that occasionally companies will take hard stances on claims that they consider baseless to deter similar suits on the future but the Knicks aren’t exactly wearing halos here.
This is all great but how does this affect the basketball team?
In the end, not too much. The only possible effect this suit could have on the team is that it could affect Thomas’ job safety. I don’t see that as being an issue. The Knicks knew about the claim for a long time and are still willing to try the case. So why would they back off of Thomas? It is true that Thomas might be on a shorter leash if the team plays poorly this year but frankly Thomas should be on a short leash anyway as the team has stunk for a long time now.
There is also some implication that Marbury might be persona non grata for his prickly testimony. I doubt that too. Marbury makes $42 million the next two seasons and his production has declined. The only way he could be moved, just based on salary, is for another bad contract. The fact that he had improper relations with an intern doesn’t really change any of that.
Finally, we learn yet again that Dolan is an emotional guy and not the most calculated decision maker. The same neurons that told him to give an Isiah an extension based upon a Steve Francis buzzer beater in the middle of a lost season probably told him that is was a good idea to tell Browne Sanders’ attorney that he fired her basically for retaliation. Human nature is a funny thing….