Saturday, July 19, 2014

Littler Mendelson, Zygi Wilf, and You're Not Even Trying That Hard

The Minnesota Vikings released a summary report from the independent investigation of former special teamer Chris Kluwe's allegations regarding misconduct by one of the team's coaches.

While the independent party conducting the investigation was the law firm of Robins Kaplan Miller and Ciresi (RKMC), the summary report was drafted by a different law firm, that of Littler Mendelson.

At this point in its existence, how is it possible that Littler Mendelson can be peddled to anyone in the media or elsewhere as a neutral, objective presenter of facts?  The firm and its lawyers have made their mark in the American legal market by aggressively promoting the interests of management over labor.

There's nothing wrong with that, particularly if you're an attorney that enjoys monetary compensation and power.  But it is quite a stretch to pretend that such a firm is likely to produce anything that approximates an objective analysis of facts in an employment dispute.

The Minnesota Vikings have not released the results of RKMC's (with the help of Waypoint Inc.) investigation.  Instead, the organization had Littler Mendelson write up a summary of the findings of another law firm.  From the Littler memo:
You have asked us to review RKMC’s investigative materials that you provided and to provide you with an assessment of the investigation’s findings from an employment law perspective, to help the Vikings decide how to address Kluwe’s claims fairly and in accordance with the law and team policies. You have directed us to be non-partisan in our assessment of the evidence uncovered by the Investigators.
What?  Do the Vikings expect to get away with releasing this "review" without actually providing access to the materials that Littler reviewed?  

They shouldn't.  Particularly when the memorandum concludes as follows:
In sum, our review of RKMC’s investigative materials you provided fails to establish that Kluwe’s activism in support of marriage equality and other equal rights motivated his release from the team in May of 2013.

We also did not find sufficient evidence to establish that members of the Vikings organization attempted to discourage Kluwe from engaging in marriage equality or equal rights activism or that the Vikings harbored a homophobic hostile work environment. The record does, however, support the conclusion that the distractions caused by the level, but not the nature, of Kluwe’s activism did create some discomfort in the organization during the 2012 season in which Kluwe’s punting performance was unsatisfactory to the team. The investigation materials support that the Vikings released Kluwe for football performance reasons and not his views on marriage equality.
Sure, ok.  Whatever you say.

Then there is the actual name on the memo from Littler, this guy.  Again, this guy.  THIS GUY:

Don Prophete’s letter constitutes an attack on our firm by someone whose larger motives are incomprehensible to us. Two indisputable facts provide critical context: the shareholders of the firm voted overwhelmingly for him to leave, and he never made any allegations of harassment, discrimination, or retaliation prior to his departure. Further, when we learned of his after-the-fact allegations (upon receiving a copy of the email he sent to others, not the firm), a full investigation was conducted and his allegations could not be substantiated.

The fact is that all of this occurred well more than a month ago, and we have moved on. Just six shareholders have chosen to follow Prophete to his next firm, and those that worked with him the longest have chosen to stay with our firm. His departure will have a minimal effect on our firm, its continued success, and its commitment to providing outstanding service to our clients.  In the final analysis, this unfortunate story should not deceive anyone as to the culture of our firm. In fact, our culture has and will remain famously collegial and supportive of diversity at all levels. The numbers speak eloquently: Ogletree Deakins hires a great number of laterals while losing very few shareholders to other firms. We are proud of our reputation for diversity and fairness, which reinforces our sense of ourselves, and our pride in the integrity and humanity of our firm.
Mr. Prophete's done well for himself since leaving Ogletree Deakins.  He got lead billing on Littler's amicus brief on behalf of the NCAA to the National Labor Relations Board opposing the College Athletes Players Association's efforts to form a union for Northwestern University's football team.  (The amicus brief, which is well written, predicts doom to universities should collective bargaining rights for collegiate athletes be recognized and includes this fun image of the apocalypse:  "Seats formerly occupied by students with school colors painted on their faces will be empty.").

Notably Littler Mendelson's summary memo reports that there were several NFL teams that declined to participate in RKMC's investigation.  From the Littler Mendelson memo:
Investigators contacted the Oakland Raiders, Buffalo Bills, Chicago Bears, and Cincinnati Bengals to ask for interviews regarding their evaluation of Kluwe as a potential punter. No one affiliated with these teams agreed to an interview.
Unfortunately, one person who elected to participate was Jerry Angelo.  And, for whatever reason, Mr. Angelo seems to have enthusiastically adopted the position of Vikings management lackey.  Again, from the Littler Mendelson memo:
Angelo said that, if he had held the title of General Manager of the Minnesota Vikings for the 2012 season, he would have “in all likelihood” released Chris Kluwe as the Vikings’ punter. He explained that his experience has shown him that “once players get into the later years of their career, they are more prone to decline and inflexible to change.” Angelo said that the Vikings’ impending move to TCF Bank Stadium, with a minimum of 11 outdoor games, would have made his decision even easier because Kluwe would not likely be able to maintain his performance outdoors.

Angelo said that, in his professional opinion, a team would be justified in releasing Kluwe if the team did not like (1) Kluwe’s style; (2) where he was in his career given his age; or (3) Kluwe’s veteran salary. Angelo thought it was reasonable for the Vikings to release Kluwe after his 2012 season given Kluwe’s age and the presumption that his leg strength would diminish as he got older. Angelo said this was especially true in light of the fact that the team would soon be playing in an open-air stadium for two seasons. Angelo noted that a punter’s hang time and distance are the most important criteria when playing outdoors.
Leaving to one side whether any of Mr. Angelo's claims are true, the decision to participate in something structured by the Minnesota Vikings organization reflects lamentable judgment.

As to the Vikings, you all just keep being you.  Free Adrian Peterson!

1 comment:

  1. Some relevant questions (there are many more):

    (1) If the Vikings hired "national firm Littler" to provide "objectivity and integrity," why did they choose Don Prophete?

    (2) Which member of the Vikings front office/law department is longtime friends with Don Prophete, so much so that he puts Prophete up at his own home in Minneapolis during visits?

    (3) Was Prophete's Vikings employee/friend one of the witnesses interviewed by the Magnuson group?

    (4) If so, was it appropriate for Prophete to provide an "impartial" investigation analysis in a matter where his dear friend is one of the witnesses?

    (5) The "summary memo" mentions anti-harassment and diversity training given to the Vikings by outside providers--was that provided by Prophete or lawyers from his firm? (if so, this may explain the lack of analysis regarding whether the training was thorough or effective)

    (6) Why wasn't such training provided to players sooner? The US Supreme Court held years ago that anti-harassment training is essential to an employer's defense against sexual harassment claims.

    (7) Prophete has long counted the Vikings among his clients--for how long?

    (8) Given all of these things, what incentive did Prophete have to write an "unbiased" report?

    (9) How does a "noted employment lawyer" write an entire report about a guy who claims he was harassed for being an atheist without referencing religious discrimination? If that wasn't within the scope of the original investigation, wouldn't a competent, unbiased employment lawyer tell his client they ran a risk by not investigating a report of alleged harassment based on religious beliefs, which violates Title VII?

    (10) How does a "noted employment lawyer" not tell his client the law does not insulate from liability an employer whose manager learns of alleged discrimination (i.e., Pico learning of the "nuke gays" comment) and fails to report it for any reason, including the complainant's wish for confidentiality?

    (11) How does a "noted employment lawyer" not recommend, at a minimum, discipline stemming from a Vikings manager lying to investigators--apart from any discipline for that manager's actions toward Kluwe?

    (12) How does a "noted employment lawyer" write a report riddled with typographical and grammatical errors? (Never mind: just Google "Don Prophete" and "departure email")