August 2016 - Too Cute by Half

by Richard W. Millar, Jr.

It is hard to keep up with the expanding, ever-shifting vocabulary of political correctness. In a way it is like food. When I grew up, certain foods were very good for you and you were encouraged to eat them. Then they became very bad. Now, many are good again. Whether an egg is good or bad for you is a matter of timing, not something inherent in eggs.

Also, when I grew up, discrimination as a bad verb didn’t exist. People made choices about other people as they pleased and if someone didn’t like it, there was little they could do. There was no such thing as a protected category; anybody and everybody was fair game. And discussing sexual preferences could get you kicked out of the Garden Club or permanently dropped from the Blue Book and banned from Cotillion. Now, not only can you discuss your sexual preferences, you can film them, post them on the Internet, and be rewarded with a “reality” show.

Take employment law. There used to be no such thing. People could be, and were, fired for any reason. There was no right to a particular job. Now the list of reasons people cannot be fired probably equals or exceeds the list of reasons for permitted firing. Someone has to draw the line somewhere, and fortunately someone did. A judge. In New York, of all places.

You may not be able to buy a twenty-ounce soda in New York, but you can still fire someone if they are too cute.

I have to confess to thinking that being too cute was a reason to keep someone in your employ, not to let them go and take their cuteness elsewhere, but such Neanderthal thinking fails to take into consideration a particular group: spouses.

Spouses, it seems, don’t like it if there is someone working for you who is too cute.

As always, a case in point.

One Charles Nicolai, a co-owner of Wall Street Chiropractic and Wellness located on the real Wall Street, hired Dilek Edwards in April of 2012. The other owner of the business is Stephanie Adams. Ms. Adams is married to her co-owner, Mr. Nicolai.

During her employment, Dilek (who is female) only met Ms. Adams, aka Mrs. Nicolai, once, and described it as “cordial.”

In June 2013, Mr. Nicolai prophetically told Ms. Edwards that his wife might become jealous of her because she was “too cute.”

On October 29, Ms. Edwards received a text message from Ms. Adams to the effect that she was “NOT welcome any longer . . . [and] DO NOT ever set foot in there again, and stay the [F---] away from my husband and family!!!!!!” The next day, Mr. Nicolai sent her an email that told her she was fired and, again, not welcome in the office.

Two months later, Ms. Edwards sued for gender discrimination and wrongful termination, as well as defamation, against Ms. Adams.

Ruling on a motion to dismiss, the court noted that Ms. Edwards “failed to plead . . . in sufficient detail what the term ‘too cute’ is alleged to mean. The reference to the term ‘too cute’ may not be a remark about physical appearance in the first place.” Nor did Ms. Edwards allege that “too cute” was gender-related in that the term applied differently to men and women. (I don’t know about you, but I think I know what Ms. Adams meant, but I digress.)

Ultimately, the court dismissed the two discrimination claims but kept the defamation count against Ms. Adams based on her statements to the police that the plaintiff had made threatening phone calls to her that had so alarmed her that she changed the locks on her home and office. (The plaintiff alleged that it was Mr. Nicolai who changed the locks at his office and “where he was staying” because he was afraid of his wife, not the plaintiff. If I were a betting man, I’d go with Mr. Nicolai on that one.)

Ms. Edwards may have been too cute, but Ms. Adams was too cute by half.

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.