McCabe Will Get Last Laugh: Here’s Why

Let’s assume that Attorney General Sessions had a right to fire Andrew McCabe for dishonesty—even though Sessions failed to disclose under oath that he met with Russians on at least two occasions.

The right to fire is not the right to humiliate. Employers who pile on during a termination face heavy damages.

In short, here are some likely “last laughs” that McCabe will have once he sues.

For openers, he’ll have discovery. He’ll be able to get documents and depose people such as Sessions and the president to establish motive for discrimination.

What kind of discrimination, you say? Federal, state and private sector pension laws prohibit discrimination. Yes, in public plans termination can also end a pension. But why did Sessions wait for the Friday night news dump to fire McCabe at the last possible moment? If this creates a “preponderance of evidence” (51%) of intent to exact some form of political revenge, the pension can be restored.

Our class looks at cases in the public and private sector where employers are just brutally mean. In one, a 61-year-old vice president was given a choice between resigning with three months’ severance or being demoted to a warehouse as a janitor with six-figure pay. He took the latter. He was then subjected to unrelenting harassment. He eventually was put in a psychiatric hospital, where he stayed for four years. $3.2 million dollars later, the employer learned that firing him would have cost nothing—but humiliating him was very expensive (emotional distress).

We study the case of a school janitor in a town of 800 people who was suspected of stealing from the school. He was arrested in the morning while kids were present, and marched out in handcuffs. The whole town knew. He couldn’t get a job there. The federal appeals court ruled that whether he stole or not, the district had no right to drive him out of the labor market by participating in this intentionally stigmatizing behavior.

That’s what we have here: an intentionally stigmatizing termination. Tonight and through the weekend, McCabe will be fodder for tweets and Fox News headlines. The damages will only pile up.