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.

Federal Judiciary Recognizes Civility And Respect In Its Workplace

The federal judiciary routinely hears (and often dismisses) lawsuits filed by workers who have suffered soul crushing disrespect, humiliation and abuse from an employer.

This is one reason why the recommendations of The Federal Judiciary Workplace Conduct Group matter.

The group this week re-committed to the promotion of an “exemplary workplace” for the 30,000 employees of the federal court system “through engaged leadership and more expansive education in the areas of civility, respect and communication.”

Historically, federal judges have graduated from elite colleges and law schools to high-paid jobs in private law firms representing employers to the bench. There, they are exempt from federal discrimination laws. And they have lifetime tenure and can’t be forced to retire.

The federal judiciary’s workplace was the antithesis of democratic. Federal judges were the equivalent of kings in their chambers, and many young law clerks were treated more like serfs than workers.

After several high profile cases where staff complained of sexual harassment and workplace bullying by federal judges, U.S. Supreme Court Chief Justice John G. Roberts, Jr., in 2018 appointed the workplace conduct group to improve the environment in which federal employees work.

If federal judges must treat their workers with dignity and respect, perhaps they will expect this of other employers?

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International Cisgender Day?

It may be time to rename International Women’s Day, which was organized in 1909 to commemorate the cultural, political and socioeconomic achievements of women.

Face it. The term “women” has fallen into disfavor. It’s discriminatory.

According to the ACLU, the term “women” isn’t gender neutral.

Women today must be called “cisgender” or “people with a gender that aligns with the sex they were assigned at birth.”

Don’t dare to question the innate femaleness of a male who identifies as a woman. She also can compete on a collegiate woman’s swim team, even if her 6-foot, four-inch body towers over her biological female counterparts. And she can use the locker room if she has not undergone sex reassignment surgery. She is a woman.

Birthing Person?

Along with the term “women,” it appears the term “mother” also is going the way of fireman and actress.

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Judge Must Face Trial For Allegedly Obstructing Deportation

A federal appeals court has refused to dismiss a case in which a Massachusetts state court judge allegedly arranged for the escape of an undocumented immigrant who previously was twice deported and was suspected of narcotics possession and drunk driving.

A three judge panel of the U.S. Court of Appeals for the First Circuit said Judge Shelley M. Richmond Joseph, of Newton, MA, and her then clerk, Wesley MacGregor, must face trial for allegedly conspiring on April 2, 2019 to release the prisoner, who was appearing before Judge Joseph to be arraigned.

Judge Joseph and MacGregor allegedly turned off the courtroom recorder in violating of courthouse rules, and devised a ruse that the prisoner would go to a basement lockup to retrieve some property and then exit the courthouse. MacGregor allegedly used his access card to swipe the prisoner out the back door of the courthouse (and then allegedly lied about accidentally turning off the courtroom recorder.)

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Huge Step Forward For Sexual Harassment Victims

Sexual harassers in the past managed to slither undetected from workplace to workplace, thanks to the anonymity offered by forced arbitration.

But times are changing.

President Joe Biden this week signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, landmark legislation that prevents employers from requiring workers to sign arbitration agreements that preclude them from filing in a lawsuit in court involving sexual assault or sexual harassment.

Biden called it a “momentous day for justice and fairness in the workplace.”

His assessment was affirmed by a rare lack of partisanship in Congress. The U.S. Senate approved the measure on a voice vote, which meant there was no opposition. There was a split roll call vote in the House of Representatives but it was approved by 222 Democrats and 113 Republicans. Yet, 97 House Republicans opposed the bill, including a number of women.

Clueless Dupes?

Why would a female legislator oppose something that protects women from violence in the workplace? The bill merely brings sexual harassment into the light of day by giving victims the right to go to court. Workers can still voluntarily opt to proceed with arbitration if they choose.

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