Which of Nicollette Sheridan's outrageous claims could actually succeed?Tue Apr 06, 2010 @ 08:11PM PST
By Matthew Belloni
"Desperate Housewives" creator Marc Cherry is painting a very different picture of the bombshell $20 million lawsuit filed yesterday by Nicollette Sheridan against Cherry and ABC. Sources on the "Housewives" set say the series creator has been telling people that the alleged "assault" was actually Cherry prepping Sheridan for a scene involving her getting slapped in the face.
If true, that would explain why ABC said yesterday that it investigated Sheridan's claim a year ago and found nothing. But it doesn't explain why Cherry hasn't come forward with a public statement of innocence. (ABC has gone silent since its brief statement yesterday, and our calls to Cherry's agent at Paradigm and publicist Ken Sunshine went unreturned.)
We hear ABC and Cherry are now talking to defense lawyers and have consulted with some of the top employment litigation names in town. This comes as many in the showbiz legal community are puzzled by Sheridan's everything-but-the-kitchen-sink lawsuit, especially the inclusion of thinly plead claims for age, sex and sexual orientation discrimination.
Sexual orientation discrimination?
Why not? In addition to saying she was fired because she was 45 and a woman, Sheridan says Cherry's treatment of her was because "he is a homosexual man and she is a heterosexual woman." Really. Our legal sources on both the employer and employee side laughed at that one. "To get that claim in front of a jury, she would first need to demonstrate a pervasive animus toward non-gay employees on the show," one top defense lawyer tells us. "But the complaint goes out of its way to say that Cherry is a pretty difficult guy to everyone!"
More interesting are the age and sex discrimination claims. Women and people over 40 are protected classes in California, which has some of the toughest anti-discrimination laws in the U.S. Sheridan says Cherry told reporters following her termination that "we will find a new kind of sexiness through Wisteria Lane. What I won't do is cast another fortysomething sexy blonde."
Not a good quote for him, if true. But “I don’t think one isolated quote is going to be enough to make the case,” another defense-side lawyer told us. Sheridan's lawyers at L.A.'s Baute & Tidus will have to depose people who work on the show and build a mountain of evidence that women and those her age were treated differently. Considering "Housewives" is one of the only places on network TV to watch over-40 actresses starring in sexy roles, that might be a challenge.
Plus, even if Sheridan succeeds in showing that people on "Housewives" are treated differently because of their age, the burden of proof would then shift to ABC to show that the reason she was fired isn’t the reason she’s saying. Like, for instance, the fact that "Housewives" kills off characters all the time.
Sheridan might have more luck with her claims for wrongful termination in violation of public policy and retaliatory termination. "Wrongful termination sounds like the best cause of action to me," says plaintiff-side employment specialist David Greenberg at Greenberg & Rudman. "You have to show there was a public policy that rises to level of protection and there are labor codes that talk about safe workplaces." But, Greenberg cautions, that's only if Sheridan's story is true and Cherry did hit her.
Even if she can't prove discrimination, Sheridan could still succeed on her claim for retaliatory termination, if only because "the bar is lower for proof of retaliation claims than it is for discrimination claims," says Louis Klein, an employer-side specialist in the L.A. office of Meyers Nave. "All you really have to show to get to a trial is that you complained about something you believed to be illegal, and shortly after that there were some adverse employment consequences."
Sheridan says she was fired shortly after complaining to ABC execs about Cherry's behavior. Is that enough? Email evidence and depositions of producers and ABC execs will likely reveal the thought process in the days before her termination. But even if ABC execs were aware of her beefs with Cherry, they again can still argue that she was fired for a legitimate business reason.
"The studio will have to explain its reasons for the termination," says Aliza F. Herzberg, an attorney at New York's Olshan Grundman Frome Rosenzweig & Wolosky who represents employers. "But Sheridan will have the burden of proving her claims. Given the twisted plot of the show, and how many people have been killed off, I say she has an uphill battle."
Eriq Gardner contributed to this report.