U.S. Judge Dismisses Free Speech/Free Press Claim

The Selection Officer for the SSA says one reason he didn’t hire the plaintiff (me) is because she (I) wrote an employment law blog on workplace abuse.

Chief U.S. District Judge Miranda Du of Nevada this week dismissed a claim in a lawsuit that I filed against the Social Security Administration (SSA), after it rejected me for a job for which I was superbly qualified in the aftermath of the Great Recession (2011).

A novice SSA Selection Officer said one reason he didn’t select me for hire was because he thought my fledgling employment law blog, When the Abuser Goes to Work, was a “red flag” and he was concerned I might one day question his management skills.

I began the blog as a public service in connection with my book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace. The blog, syndicated by Newstek, is legally and unquestionably a work of journalism.

The shocking age discrimination I experienced when I applied for the SSA job in Reno, NV, in the waning days of the Great Recession, prompted me to research age discrimination and write my groundbreaking book, Betrayed: The Legalization of Age Discrimination in the Workplace.

A few tibits – 26 applicants (all but one under the age of 40) responded to a ridiculously narrow recruitment for five attorney vacancies. I found out about the vacancies by chance when I saw an announcement on USAJobs for a different job at the Reno office. The SSA repeatedly tried to hire five candidates under the age of 40 but was thwarted when candidates rejected job offers. The ninth selectee was the only other candidate over the age of 40 (a 47-year-old male).

The SSA says the candidates were hired based on “personality” and “cultural fit.”

In 2019, Judge Du dismissed the entire case, calling it futile, and issued her ruling with prejudice (barring me from refiling the case).

The Ninth Circuit

I filed an appeal with the Ninth Circuit Court of Appeals in San Francisco, which in 2021 reinstated my claim of systemic age discrimination, finding it “plausible,” and remanded the case back to Judge Du.

The Ninth Circuit, however, dismissed my claims that the SSA retaliated against me for engaging in “oppositional activity” in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. The oppositional clause prohibits employers from retaliating against job applicants because they oppose or contest unlawful employment practices. The Ninth Circuit said my blog didn’t qualify as oppositional activity because it did not specifically oppose discrimination by the SSA.

The Ninth Circuit’s ruling left me with no choice but to file a First Amendment complaint against the Selection Officer.

In light of Judge Du’s dismissal of the First Amendment claim, I now have no recourse for what many would consider to be a patently obvious violation of the U.S. Constitutional guarantees of freedom of speech and freedom of the press. And, of course, this ruling doesn’t just affect me.

An Innocent Motive

So here’s why Judge Du dismissed my First Amendment retaliation claim.

She said the Selection Officer was acting in his official capacity and then expressed concern that hordes of disappointed job seekers might file First Amendment claims.

Then she wrote in her decision that the Selection Officer had an “innocent motive” for not hiring me.

Initially the Selection Officer said he didn’t hire me because I was not sufficiently “enthusiastic” about the job, despite contrary evidence. I went to far greater lengths to discover and apply for the position than any other applicant. I repeatedly said I was enthusiastic about the job.

According to Judge Du: “[H]e felt she was not sufficiently enthusiastic about the position. This alone is an innocent motive and raises doubt that [the Selection Officer] retaliated against Barnes by not hiring her, solely on the basis that she exercised her right to protected speech.”

Tuesday was World Press Freedom Day but what is freedom when federal courts refuse to enforce the U.S. Constitution on behalf of journalists and anyone else who writes about topics, including worker rights, that make federal bureaucrats uncomfortable.

Elon Musk Kicks Sand In Sanders’ Face

Americans were treated to an example of classic bullying recently when Elon Musk responded to a demand by U.S. Sen. Bernie Sanders “that the extremely wealthy pay their fair share.”

It’s hard to understand why Musk, the world’s richest man, took offense to Sanders’ comment. But that’s not the issue. It’s how he took offense.

Musk tweeted about Sanders: “I keep forgetting that you’re still alive. ”

Musk engaged in a personal attack on Sanders based upon a trait over which Sanders has no control. Sanders is 80 years of age.

It’s as if Musk, 50, was kicking sand in Sanders’ face.

Charles Atlas

Some may remember a body builder called Charles Atlas who developed an exercise program in the 1930s that spawned a memorable advertising campaign in which a muscular bully at a beach humiliates a skinny man who is walking with a beautiful date.

Continue reading “Elon Musk Kicks Sand In Sanders’ Face”

Unions Say ‘Breeze Airways’ Blows An Ill Wind

The nation’s cadre of mostly female flight attendants is facing a new threat – the idea that their job can be performed by college students at a fraction of the cost

Breeze Airways, a new airline operating out of Salt Lake City, Utah, is partnering with Utah Valley University to hire full-time college students to work as flight attendants while they pursue their degree through on-line classes. The airline offers “tuition reimbursement” and provides housing through the program, which is called Flight Academy.

Breeze was started by David Neeleman, who also founded JetBlue. It began operating with a fleet of 60 planes last month.

Ageist? Racist?

Breeze’s hiring plan is opposed by the Association of Flight Attendants – CWA, which notes that 70% of the student population at UVU is under the age of 30 and approximately 78% are Caucasian. CWA alleges Breeze’s hiring plan has a discriminatory impact on minorities and older workers.

Continue reading “Unions Say ‘Breeze Airways’ Blows An Ill Wind”

Showtime Renews Show Despite “Racist” Attack On White Women

Ziwi Fumudoh

White women, like all women, have been marginalized, discounted and mistreated throughout history.

So it should not be particularly surprising that older white women today are a special target of derision in the on-going race war.

Most recently, Spence School, a posh Manhattan private school, was in the news because it showed graduating 8th graders a video that ridiculed and humiliated white women, who were portrayed as being “tarred and feathered.”

The incident came to light after Gabriela Baron, a Hispanic female executive, pulled her daughter out of the $57,000 a year school in protest. “Racism is racism,” said Baron.

The video footage came from a Showtime offering, a show of “fearless satire” hosted by African American comedian Ziwerekoru “Ziwe” Fumudoh, 29, a graduate of the posh private school, Phillips Academy in Andover, MA .

The head of the Spence School last week apologized for showing the students the video but Showtime apparently is entirely without remorse. Variety reported Tuesday that Showtime has renewed Ziwi’s show for another season. Variety’s article did not even mention the Spence School incident.

Continue reading “Showtime Renews Show Despite “Racist” Attack On White Women”

Apple Takes Workplace Harassment To New Realm

Antonio Garcia Martinez would not gain entry to my inner circle because he seems immature and misogynist.

But should Apple, Inc. fire him as a product engineer on Apple Inc.’s advertising platform on the basis of my feelings, without any evidence that Martinez engaged in illegal harassment on the job?

The answer is no.

Yet, Apple Inc. has effectively banished Martinez from its ranks after only a few months on the job because Apple workers objected to passages in Martinez’ 2016 book about his work as a product manager at Facebook, Chaos Monkeys: Obscene Fortune and Random Failure in Silicon Valley.

Under the law, a hostile workplace is one where an employee or employees are victims of severe and pervasive “unwelcome conduct” based on a protected characteristic (i.e. sex, race). A few offensive comments generally don’t suffice, let alone one or two overheated passages from a six-year-old book.

If Apple didn’t offer Martinez a hefty financial incentive to voluntarily resign, it may find itself in court in the near future.

Tolerance

The most objectionable passage in Martinez’ book appears to be his contrast of his then-girlfriend – a guerilla type cartoon character taken right out of a video game – with “most” women in Silicon Valley, whom he characterized “soft and weak, cosseted and naive despite their claims of worldliness, and generally full of shit.”

Continue reading “Apple Takes Workplace Harassment To New Realm”