ABA Journal


Civil Procedure

Lawyer in Paula Deen case says white plaintiff had no standing to pursue race claims

Jun 24, 2013, 01:11 pm CDT


sounds like the plaintiff confused "victim" with "whistleblower."

Nonetheless, I could see a charge of a racially hostile work environment (not speaking of the defendants, but hypothetically) by a white person in a place where the management acted with racial malice toward blacks. As a white person, I wouldn't want to be around the offensive conduct and would feel morally compelled to state my objection to such conduct, which at least makes work difficult and more likely would lead to my being targeted for bad treatment, including being passed over for promotions, opportunities, etc.

By Hadley V. Baxendale on 2013 06 24, 2:39 pm CDT

She was the general manager, my thought is she may be liable as well if she knowingly allowed this to take place in her presence? and if I were a African American employee during this time period now might be a great time to file a suit against her, she has acknowledged in her statements that this was taking place.

By ken on 2013 06 24, 3:38 pm CDT

So let's see what Paula Deen's lawyer could have done:
1 - Investigate the claim and Plaintiff's background promptly and timely.
2 - Filed the Rule 11 motion BEFORE the deposition.
3 - Moved to delay the deposition until after decision on the Rule 11 motion.
4 - Filed a motion in limine to limit the scope of discovery
5 - Objected to the deposition questions and make the Plaintiff file for an order to compel.
6 - And last and perhaps not least, prepared the witness for the deposition and know what the answers would be if one of the issues in the case was race discrimination.

Instead the lawyer let his/her client rant about her attitudes toward race (perhaps historical attitudes) and allowed her to get fired by her network.

Am I missing something?

By NV Atty on 2013 06 24, 6:22 pm CDT

Good points. It seems obvious that the plaintiff is basically just out to cause pain and scandal to try to force a payoff, and defense counsel should have anticipated that this deposition was being taken for its media impact and could have pursued appropriate protections.

By B. McLeod on 2013 06 25, 6:14 am CDT

This ex-malpractice defense attorney wonders if Deen's attorney placed his/her carrier on notice.

By CURIOUSER and CURIOUSER on 2013 06 25, 9:39 pm CDT

This entire episode is yet another sad example of using the judicial system to
cause injury or shake down a person of wealth and or fame. It deserves reporting in nothing more cerebral than the National Enquirer or similiar muck raking publications , if even there. If inappropriate use of a racial slur over 25 years ago can justify the retaliation and vilification of Paula Deen, who can withstand the assault of those "political correct" , perfect people who are always ready to throw the first stone or file the first case? JFC

By Joe Canterbury on 2013 06 28, 8:03 am CDT

I don't know all of the details, but if the plaintiff was in any way subjected to an adverse employment action because she complained about race or other discrimination then she has a claim under Title VII (and many state and local statutes) for discriminatory retaliation. You do not, yourself, have to have been subjected to that kind of discrimination, nor be a member of the suspect class for your claims to be actionable.

By donniem23 on 2013 06 28, 10:30 am CDT

For anyone who's curious the complaint is easily found online. Plaintiff didn't file race discrimination claims. She filed sexual harassment claims as well as retaliaton claims, negligent hiring/retention, assault, and inetional infliction of emotional distress. The race based inquiry is presumably relevant to negligent retention claims as the plaintiff alleges she reported the incidents (as well as workplace violence, sexual harassment and multiple discriminatory statements) to Paula Deen who took no action and ultimately fired her.

By adjustthefacts on 2013 06 28, 11:34 am CDT

Looks like Deen's attorney trenked the case.

By Tom on 2013 06 28, 1:11 pm CDT

With some local knowledge on this one let me briefly say that this entire claim is old and has smelled like a $ hunt from day 1. Paula Deen has nearly zero involvement in Uncle Bubbas, which is about half way between the city and the beach if you were wondering. It's merely an attempt by a money hunter to get to Paula's $ through her brother, and it always has been. If you spend a little time in Savannah, you'll probably run into 1 of a couple thousand people who've worked for one of Paula Deen, not her brother's, operations. I've never run into any, going back to the time there was just 1 cook book out and she was in a small space on Congress, who ever mentioned anything close to a hostile work environment. I'd say out of the dozen or so I know that've worked for her in a range of 15+ years, there's been at least a half dozen races and creeds represented.

In short, the entire claim is BS, remains BS, but serves as another example of a claim that should've been settled, from a business perspective, before getting to this point.

By Stone on 2013 06 28, 1:14 pm CDT

NV Atty: I totally agree. Instead, the cat's out of the bag and he/she is trying to help repair her shattered public imagine. Too late. No one cares if her testimony was germane to justiciable issue in the case, only that she has (is) presiding over a workplace reminiscent of Tara from Gone With the Wind.

By Martin on 2013 06 28, 1:22 pm CDT

#10 Stone - Because if YOU have never run into anyone who mentioned a hostile work environment, then it could NOT POSSIBLY have existed. Right.

By sue on 2013 06 28, 1:28 pm CDT

No Sue, because there's exactly ZERO evidence of such an environment existing, from thousands of people. Not just one.

You don't think others have been down there sniffing around, or hunting for a claim, for a long time? There's nothing there, as time has told and will tell. Have you seen any other credible claimant appear yet? Yet there are hundreds lined up on the other side already.

There's major media down there now digging and finding nothing credible so far, nothing. Hopefully Ms. Deen agrees to do 60 minutes, and justice is served in the end, whatever it may be.

The fact that sponsors have made business decisions to drop her and she's potentially lost a lot of money doesn't look like it will have that much of an impact on her or what she does because she doesn't appear interested in just running the cash register. This is a lady who was essentially homeless not that long ago.

Just look at the facts and evidence and decide for yourselves.

By Stone on 2013 06 28, 1:38 pm CDT

The real lesson here is that public figures shouldn't do their own media-damage control any more than I should do my own knee surgery or many of our clients should represent themselves.

She got canned after she put up her own home-made statement on you-tube.
Then she repeated dug herself deeper with extemporaneous statements on live TV.
She's like the drunk who has the right to remain silent but not the capacity.

I think we can assume that she, like most figures, have contracts that (a) prohibit public statements (and many acts) not approved by the sponsor and (b) that allow for termination for any act that in the sponsor's view hurts the image. I bet that had she let Food Channel handle it for the start she wouldn't be in the fried pickle she's in now.

I also question the trend of immediate action on things like this. Recall that Obama fired someone immediately and it was a mistake. The football player fired on his arrest--not conviction--has no presumption of innocence (bad example under its facts but you get the point). Most of the companies who dumped Paula for confessing she is human have had a massive backlash from the rest of the humans who shop there.

And ask yourself: what will you do if asked, under oath, if you ever said anything ugly about someone any time in your life? Clearly, no good will come from telling the truth.

By hadley V. baxendale on 2013 06 28, 2:12 pm CDT

x2 what Hadley said. This is the problem with a rampant media presence in the Courtroom. The legal process is turning into the next big reality-TV phenomenon. Even if the judicial process vindicated defendants like Anthony, Arias or even O.J., they pay for the rest of their lives, whether they are guilty or not. (Rightly or wrongly.) I am not sure if this is a positive thing for the judicial process. People try every trick in the book to get out of jury duty, and then follow every minute of the trial from their Lazy-Boy, and then second-guess what the actual jurors decide.

Ms. Deen had an obligation to tell the truth under oath. Even though she complied with her obligation, because of the content of her admission, she has been convicted in the court of public opinion. This would seem sure to produce a chilling effect of how much celebrities will disclaim under oath, if they feel that they can get away with a lie. However, if they abide by their obligation to tell the truth, they may still get punished. If she would have lied, and said she never used that word, and no one came forward with proof to the contrary, she would most likely still have all of her sponsors.

To avoid any fallout whatsoever, its my contention that she should have said "Yes. I use the word frequently. I am a big fan of Rap music and I typically sing along when I am driving to work."

By Reluctant Indianan on 2013 06 28, 3:02 pm CDT

The question "have you ever used the N word" was NOT RELEVANT And even if it had an iota of relevance, it was certainly OVERBROAD. I do not understand why Deen's attorney allowed her to answer the question. Yes, generally relevance does not support a refusal to answer. But when your client is a public figure the potential downside to allow this line of questioning is considerable. The attorney must be a strong guardian. Deen's attorney should have asked for an offer of proof, instructed his client, and filed a motion for a protection from the plaintiff's attempt at a fishing expedition. If I were Deen, I would be madder than hell. No 5 - I hope he has put his carrier on notice.

By Drago on 2013 06 28, 3:09 pm CDT

I wonder how many 20+ year old white Americans you could put under oath and have them honestly say they've never used the "N-word" ..

But don't forget folks, according to that all-star superhero witness in the Zimmerman case, cracker is not even a racial term.

By You call this coffee!? on 2013 06 28, 3:47 pm CDT

Yes, but will the jury see it in the same light?

By ken on 2013 06 28, 3:50 pm CDT

If Paula Deen had stated she used any variation of the "N" word while listening to rap music, that would have been a blatant lie. Are you saying you would counsel your client to lie under oath?

I think this is about more than just the use of the "N" word. Rather, it exposed a tolerance for racism at her restaurant. This coupled with her use of the "N" word towards a black person (not while singing the verses of a rap song) certainly doesn't help her case in much of the public's eyes. Also, everything is to be viewed within context. You can't seriously believe that black kids' use of the word with each other is the same as a Southern, white woman's towards a black person she apparently doesn't care for. If so, you should journey outside of your social circle a tad more often.

By Runner2U on 2013 06 28, 4:59 pm CDT

How do you know she doesn't listen to rap music? Can you come forward with proof that she doesn't? No, you just assume that she doesn't. The same way you assume that she tolerates racism at her restaurant based on her admission that she once used the "N-word" in the past. The person who is making this accusation stands to gain financially from her accusation, but the case hasn't been decided yet. But you are ready to infer guilt based on simple allegations that haven't been proven yet.

Yeah, call me naïve, but if the word is too taboo for her to say, then it is too taboo for everyone to say. Or is the double standard thing still OK? If everyone is supposed to be equal, and people are punished for language, why not hold everyone to the same standards, including "black kids" and "southern white women". Equality means everyone plays by the same rules, and have to face the same consequences for their actions. Unless you define it differently in your social circle...

By Reluctant Indianan on 2013 06 28, 8:09 pm CDT

And from a lawyer's perspective, what is also troubling is that this all came from a statement by a non-party witness in a deposition--not a statement made in open court and admitted into evidence as relevant. I understand that truth is truth but she doesn't even have a dog in that fight!

And technically the only grounds to refuse to answer in a deposition is on an inquiry over privileged information. That's it. Look it up. But I still would not have answered.

If you can "use a deposition for any purpose" think what you can dredge out of divorce proceedings when people discuss their behavior at their worst--and run that on the front page.

By Hadley V. baxendale on 2013 06 28, 10:25 pm CDT

I think the folks at Oliver Maner, LLP (Deen's lawyers) failed to do a simple bit of economic analysis. The reputation damage and consequences of video like that being leaked was clearly huge. The amount it would have taken to settle this was probably very small in comparison. They screwed the pooch in letting her get to that deposition.

By Augie Fartro on 2013 06 30, 6:33 pm CDT

I don't think celebrity defendants should settle every extortion wrapped in the guise of a lawsuit based on that kind of simple cost calculus. It just sets up the next one and the next one, until the defendant hits the end of the trail with the one(s) they no longer have means to either buy off or defend.

I do think the defense here should have used available discovery protections to block the plaintiff from unprofessionally using discovery material in the media as part of a general character assassination designed to intimidate the defendant into a settlement. Now the case is in a posture where the plaintiff has basically burned down the house, causing so much damage that the case will never settle. Unfortunately, some practitioners forget that the aim of civil law is supposed to be to recover for your client, not simply to damage the opposing party as much as possible.

By B. McLeod on 2013 06 30, 8:11 pm CDT

B, McLeod - you make two very good points. I work in the casino industry, which is subject to a more than typical spectrum of claims. One casino I have worked with made the policy decision not to settle any personal injury claim from a patron or guest. They had an in-house attorney solely to handle that litigation. While I have no hard data or statistics, the word from the company was that the strategy was successful in saving enough to justify the added salary.

I would modify the second point to have plaintiffs' counsel remember that obtaining the judgment is one thing, collecting it is another and in this case the damage done to the defendant may prove to make any victory by the plaintiff purely pyrrhic. When in private practice, my firm could paper more than just its bathrooms with uncollectible judgments.

By NV Atty on 2013 06 30, 9:49 pm CDT

Why doesn't the First Amendment protect the speech of ms. Dean? Shall we purge all libraries, digital and hard cover, of Joseph Conrad? He wrote "The Nigger of the Narcissus." Or does "political correctness" overrule the First Amendment? If so, who is the regulator of otherwise free speech? I want to ask the regulator to curtail or interdict those persons who voice opinions or even cast slurs that I find offensive. Purge them from access to the social media, the Internet, and all journalistic entities.

By T.J.Jackson on 2013 06 30, 10:36 pm CDT

Well, TJ, this isn't a First Amendment case.
The First Amendment prohibits the GOVERNMENT from restricting a person's speech. Here, the government was not involved; no one from any governmental body said PD couldn't say "it" then or couldn't say "it" now.

Even with the First Amendment in place, speakers have always had to face the consequences of their speech, which can range from paying damages for libel to merely ruining their reputations. As Mark Twain said, "I may not agree with what you say, but I will defend to my death your right to make a fool of yourself."

People can and often do agree by contract to restrain their speech*, and I am sure that PD had contracts that said if she was going to endorse publicly a product, she would not do or say anything publicly that would reflect badly on the product's image or her image. That is where she messed up. And people are free to do business, or not do business, with anyone based on something she said or something a company did in reaction.

But if your point is that the consequences here are way too severe for a person merely being honest about something she said in her past, I agree. The reactions were extreme and unfair. Sadly, it's the way of the world now.

*Lawyers agree not to criticize the courts or judges, but a non-lawyer can. I hate that rule but I abide by it as best I can.

By Hadley V. Baxendale on 2013 07 01, 3:33 pm CDT

Complaint legit gender discrimination arising out of retaliation for questioning practices regarding AAs. Should have been intelligently risk*reward analyzed from defense perspective, settled when manageable and I lay the blame for the present posture of the case squarely on defense representstion and their communications with carrier. Paula Deen is a southern cash cow who has been unnecessarily milked to an explosive level. I suspect it is defense counsel who should notice their carrier. The Rule 11 motion notice is bullshit.

By lockhorns on 2013 07 05, 1:04 am CDT

Possibly counsel on both sides should be in discussions with their carriers. It will also be interesting to see what kind of disciplinary proceedings occur once the dust from the civil case has settled.

By B. McLeod on 2013 07 05, 6:04 am CDT

Reluctant Indianan, if your name refers to the state of Indiana you must have been away for quite a while.

Forgive the wikipedia cite:

Hoosier /ˈhuːʒər/ is the official demonym for a resident of the U.S. state of Indiana. Although residents of most U.S. states typically adopt a derivative of the state name, e.g., "Indianan" or "Indianian", these derivatives are not officially used to refer to natives of Indiana. Indiana adopted the nickname "Hoosier State" more than 150 years ago.

By Excelsior on 2013 07 06, 2:44 pm CDT

Giving rise also to the phrase, "Take off, you Hoosier."

By B. McLeod on 2013 07 06, 5:53 pm CDT

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