This Is Not The Legal Profession’s Finest Hour…

Superior Court Judge Craig A. Karsnitz

Here’s the latest from the bullying, virtue signaling, mostly Democratic, anti-President Donald J. Trump segment of the legal profession.

Superior Court Judge Craig A. Karsnitz of Baltimore ruled last week that former Trump adviser Carter Page could not be represented by his choice of legal counsel, L. Lin Wood, in a defamation case stemming from former Special Counsel Robert Mueller’s probe.

Judge Karsnitz said a couple of hyperbolic tweets by Wood in support of Trump’s claims of election fraud “no doubt” helped “incite” the Jan. 6 storming of the U.S. Capitol. It’s not clear how Judge Karsnitz knows this, let alone know it to a certainty. He did not point to any actual evidence that Wood’s impassioned (some would say inflammatory) tweets incited anything but backlash against Wood.

No Election Fraud?

Judge Karsnitz’ ruling bordered on breathless.

For one thing, he concluded there was no election fraud in Georgia and that Wood’s lawsuit to that effect was “without basis in law or fact.”

Georgia U.S. District Court Judge Timothy Batten’s ruled that Wood, who was only a party in the Georgia lawsuit, lacked standing to bring the case. Moreover, Batten’s ruling is being appealed.

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Differing Approach to Sexual Harassment by Congress and the Federal Courts

Taxpayers will no longer be forced to pick up the tab for settlements resulting from the sexual harassment and retaliation of interns and staff by members of the U.S. Congress.

The news media reported Wednesday that House and Senate negotiators  agreed on compromise legislation that will require members of Congress to personally pay settlements or awards stemming from claims of harassment or retaliation claims based on sex, ethnicity, and race.

The proposed bill will amend the sadly misnomer Congressional Accountability Act of 1995, which currently insulates members of Congress from their sexual misdeeds rather than holding them accountable.

According to the Senate Rules Committee, the proposed bill will make members of Congress, including those who leave office, financially liable for settlements resulting from harassment and retaliation claims. The bill eliminates barriers to justice for victims, including mandatory counseling, mediation and a “cooling off” period that victims now must wait filing a lawsuit or requesting an administrative hearing. Settlements will be publicly disclosed and identify lawmakers who are liable.

The bill is a monumental step forward when compared to how another branch of the government, the  federal judiciary, has addressed the problem of sexual harassment by powerful, mostly male federal judges with lifetime appointments.

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Iowa Shoots Foot in Discrimination Case

Liable for Retaliation, not Discrimination

Here’s every employer’s nightmare.

A jury in Iowa last week awarded a former state employee $130,000 in damages after finding she was fired from her state job as a mailroom clerk in retaliation for  filing a complaint about race discrimination.

The jury, however, said there was no evidence that Dorothea Polk, 53, who is black, was a victim of race discrimination.

This means that the damages are attributable to the inept handling of her race discrimination complaint by the state of Iowa.

Polk said she spoke with a human resources officer, Jackie Mallory after Polk was passed over for promotion to a clerk’s job in the office of  Iowa Workforce Development.  During the conversation, Polk said that Mallory told her “You people think you’re entitled to preferences.”

Polk filed a complaint with the Iowa Civil Rights Commission alleging race discrimination in May 2006 and was fired two months later.   Polk’s  managers said she was ineffective at running the office’s mail room and “disrespectfully challenged authority.”

The jury verdict came after a two-week trial.

Another issue in Polk’s case involved an allegation by her attorneys that the state destroyed or lost a report commissioned by former Department of Administrative Services director Mollie Anderson that said racism played a part in some decisions made in the Iowa Workforce Development office. In a 2008 video deposition shown to jurors in the trial Anderson said she’d seen the report, Polk’s attorneys said.

No copy of the report, however, was produced by the state for trial.

In his closing arguments, Assistant Iowa Attorney General Tyler Smith disputed that a “secret report” ever existed, arguing that Anderson misspoke or was confused during a deposition in another case.

The lesson – an employer can be found liable for retaliation even if a jury finds there is no substance to the underlying complaint.

 

Mediation Goes Awry for Worker

After Outburst, He Won’t See Employer in Court

There is a new way for a worker to lose a lawsuit in federal court.

A three-judge panel of the U.S. 7th Circuit Court of Appeals in Chicago, IL, ruled recently that a worker could be fired for misbehaving during a mediation session called to resolve his complaint of sex discrimination.

Michael Benes had charged his Wisconsin employer, A.B. Data, Ltd. with sexgaveldiscrimination after working for the company for four months.

 The U.S. Equal Employment Opportunity Commission arranged for mediation in which, after an initial joint session, the parties separated into different rooms and a go-between relayed offers.

Upon receiving a settlement proposal that he thought too low, court papers say Benes “stormed” into the room used by A.B. Data Ltd. representatives, and said loudly: “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.”

The company accepted Benes’ counterproposal but then fired him.

Retaliation

Benes filed suit under the anti-retaliation provision of Title VII of the Civil Rights Act, 42 U.S.C. 2000e–3(a), which bans retaliation because a person “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” [Emphasis supplied].

A magistrate judge upheld Benes’ dismissal, finding that Benes was fired for misconduct during the mediation, not for making or supporting a charge of discrimination.

The appeals court agreed and upheld Benes termination.

In the past, Benes’ misbehavior might have resulted in a sanction by the court or his employer.

Ignores the Employer’s Behavior

An opinion written by Chief Judge Frank A. Easterbrook states – without explanation – that Benes “abandoned” his claim of sex discrimination upon filing the retaliation complaint. This is somewhat baffling in that the original complaint of sex discrimination obviously was the underlying basis for the retaliation complaint.  Benes would never have been engaged in mediation if he had not filed the discrimination complaint. And Benes would not have been fired if he had not engaged in mediation.

The appellate panel proceeded to completely ignore A.B. Data’s  behavior and to focus only upon Benes’ conduct. 

Judge Easterbrook said Benes’ actions constituted a “serious breach” of the mediation protocol, adding, “If A.B. Data would have fired a person who barged into his superior’s office in violation of instructions, and said what Benes did, then it was entitled to fire someone who did the same thing during a mediation.”

The appellate panel said that Title VII does not establish a “privilege to misbehave” in mediation.

Chief Judge Easterbrook writes that the prospect of being fired for an egregious violation of a mediator’s protocols would not discourage a reasonable worker from making a charge of discrimination or from participating in the EEOC’s investigation.

Impact of Harassment

The details of the alleged discrimination suffered by Benes were not included in the appellate decision, nor are the details of the offer submitted by A.B. Data to resolve Benes’ complaint.

Those of us who work in the area of workplace bullying and abuse are familiar with the well-documented mental and physical stress suffered by targets over time, which occasionally results in erratic or self-defeating behavior. For these and other reasons,  mediation is not ideal in these cases.

Benes clearly did himself no favors with his hotheaded behavior. Still, this decision appears to be yet another indicator of the lack of sympathy for the problem of workplace abuse in the federal courts, where, coincidentally,  judges have lifetime tenure.

Research shows that employment discrimination cases are dismissed at a far higher rate than other types of cases in federal courts before they ever reach a jury.

Workers beware – any breach of civility on your part at any point in the proceedings can have severe consequences. 

When the Employer is the Bully

One of the most difficult workplace bullying scenarios occurs  when the employer is the bully.

There may be no one to complain to except the harasser.

This scenario occurred to three former employees of a Baltimore medical practice who were subjected to sexual harassment  by two of the company’s highest ranking officials.  They complained to the U.S. Equal Employment Opportunity Commission  (EEOC ), which announced Tuesday that a federal jury had awarded the women $350,000 in damages.

The EEOC filed the lawsuit on behalf of the women against Endoscopic Microsurgery, alleging that Associate’s Chief Executive Officer, Dr. Mark D. Noar, M.D., and  its Chief Financial Officer Martin Virga subjected the women to frequent unwanted sexual comments, physically touching and grabbing a female worker’s rear end, kissing and blowing on female employees’ necks and other sexually egregious comments and touching.

According to the EEOC, after Linda Luz, a receptionist, rejected their advances, the medical practice began retaliating against her by issuing unwarranted discipline, rescinding approved leave, and eventually firing her.

Administrator Jacqueline Huskins also experienced unwanted sexual advances from Noar and Virga, as did nurse Kimberly Hutchinson from Noar.

The Baltimore jury of nine returned a unanimous verdict for the plaintiffs and awarded each woman punitive damages of $110,000. The jury also held the claimants were entitled to compensatory damages in amounts ranging from $4,000 to $10,000.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964.

It says something about this employer that it failed to negotiate a settlement in this case when it had the opportunity to do so. The EEOC filed suit after attempting unsuccessfully to reach a pre-litigation settlement through its conciliation process. Publicity from this fiasco is not likely to encourage new patients to flock to the clinic, nor is it likely to encourage confidence in these medical professionals from existing patients. Duh.

“This verdict is significant because it reminds high-level officials who function as the employer that their high level does not give them license to abuse women – they must treat employees as professionals,” said Debra Lawrence, regional attorney of the EEOC’s Philadelphia District Office.