It’s All Fun and Games . . . Until It Isn’t

Miseta v. Stardock, (E.D. Mich.), is a great example of what not to do as an employer in response to a claim of sexual harassment made by an employee.

The employer, Stardock, launched a new video game, Elemental: War of Magicm in August 2010. The game proved to be a complete failure. (I promise, it’s relevant.)

Weeks before the launch, Stardock’s Marketing Manager, Alexandra Miseta, quit. Shortly after she resigned, Miseta filed a Charge of Discrimination with the EEOC, and later instituted a lawsuit.

Miseta alleged that she had been sexually harassed by the company’s CEO. Miseta’s claim was based, in part, on emails reaching back to 2008. Significantly, when Miseta sent an email to the CEO asking him to change his behavior, he sent the following response:

I am an inappropriate, sexist, vulgar, and embarrassing person and I’m not inclined to change my behavior. If this is a problem, you will need to find another job. . . . Again, I am not willing to adapt my behavior to suit others. . . . I’m not some manager or coworker of yours. I own the company. It, and your job here, exist to suit my purposes, not vice versa.

After 16 months of discovery, Stardock’s attorneys moved for summary judgment asserting that Wardell’s comments, while inappropriate, do not constitute sexual harassment. Not surprisingly the Court denied summary judgment.

Instead of acknowledging the loss, Stardock elected to sue Miseta, alleging that she destroyed marketing materials for Elemental, resulting in the game’s resoundingly poor performance. The timing of the suit raises some questions. Two years after the files were allegedly deleted, and shortly after its summary judgment motion was denied. Current Stardock employees have also come forward to deny that Miseta deleted files, and offering up emails from the CEO praising the marketing team’s work while making no mention of deleted files.

To make matters worse, the CEO apparently has taken matters into his own hands, posting statements to at least one videogame website defending himself and indicting Miseta for “getting pissed off, quitting without notice and using her network access to wipe out our marketing assets.”

This is the type of client behavior that keeps lawyers up at night.

The lessons from this case are pretty obvious–don’t be a jerk to your employees, don’t revel in your chauvinism, and if you are going to do these things anyway, don’t do them in writing! On a more serious note, we all occasionally make mistakes. It is sometimes more valuable to admit defeat and resolve to do better the next time, rather than engaging in internet rants and retaliatory litigation.

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