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.

A Loophole For Sexual Harassers In The U.S. Judiciary

Alex Kozinski on The Dating Game in 2006.

An upcoming book chronicles a loophole that allows federal judges to not only evade accountability for sexual harassment and bullying but to go on to enjoy a full salary for life and future professional acclaim.

Martha C. Nussbaum, in Citadels of Pride, to be published May 11 by W. W. Norton & Co., explores the tainted career of a former appellate judge who was celebrated for his brilliance, Alex Kozinski, a one-time chief judge of the U.S. Court of Appeals for the Ninth Circuit in San Francisco.

Nussbaum, a professor of law and ethics at the University of Chicago, says the Kozinski case shows the “structural weaknesses” of judicial codes of conduct. “E]van an egregious abuser can survive for twenty years if he is bright, flamboyant, well-connected and shameless,” she writes.

The loophole that worked for Kozinski – and others – is that he was permitted to resign in 2017 after more than a dozen women accused him of sexual harassment. Because he was retired, he was eligible to receive his pension – which was his full salary – for the rest of his life.

Continue reading “A Loophole For Sexual Harassers In The U.S. Judiciary”

Apple Must Pay Workers For Time Spent Undergoing Exit Searches – Since 2009

The U.S. Court of Appeals for the Ninth Circuit in San Francisco has ordered Apple, Inc. to pay workers for time they spend waiting for and undergoing “exit searches” after their shifts ended for the past decade.

Apple is the most valuable company in the world.

Yet Apple required its workers to undergo mandatory exit searches at the end of their shift after they signed out. In other words, Apple required the workers to clock out prior to the exit search and then refused to compensate them for the time they spent undergoing the exit search, which was estimated at from five minutes up to to 45 minutes.

A three-judge appellate panel Wednesday reinstated the case, which was dismissed in 2015, and granted the plaintiffs’ motion to rule in their favor. The panel ordered the lower court to determine the remedy to be afforded to individual class members.

Continue reading “Apple Must Pay Workers For Time Spent Undergoing Exit Searches – Since 2009”

The Problem with Federal Judges Who Bully

The case primarily involves age discrimination but includes a sex discrimination claim.

The sex discrimination claim gave rise to a venue dispute involving where the lawsuit could be filed.

The federal government said the case had to be transferred from Arizona to Nevada because of a special venue provision in Title VII of the Civil Rights Act, the federal law that prohibits sex discrimination.

The plaintiff, an Arizona woman who is proceeding pro se, argued in court papers that the case should be moved to California, which would be more convenient for her and would not inconvenience the federal government. Alternatively, she  asked to amend her complaint to drop the Title VII claim that gave rise to the venue dispute so the case could remain in Arizona.

The presiding judge was U.S. District Court Judge James A. Soto, 67, a Hispanic who was appointed to the bench in 2014 by former President Barack Obama. The job of a federal judge is to follow the law. Federal judges are paid more than $200,000 a year to put aside their personal bias and prejudice and to be fair.

It was not complicated. Federal courts have ruled that venue should be interpreted broadly in civil rights cases because Congress intended to afford citizens full and easy redress of grievances. Federal rules encourage judges to”freely” grant leave for a Plaintiff  to amend her complaint, barring evidence of ill motive.

Judge Soto agreed that venue was proper in both California and Arizona (if Plaintiff dropped the conflicting sex discrimination claim). However, he ruled, without elaborating, that “judicial efficiency dictates that a transfer to the District of Nevada is in the interest of justice.” Continue reading “The Problem with Federal Judges Who Bully”

Appeals Court SWATs Free Speech for Police

On the bright side, at least he’s still alive.

A panel of the U.S. District Court of Appeals for the Ninth Circuit in San Francisco this week reversed a jury verdict in favor of Brian Hagen, a Eugene Oregon police officer who was removed from the  department’s K-9 team after expressing safety concerns following several  instances involving the accidental discharge of weapons by members of the department’s SWAT team.

The panel ruled that a “public employee [who] reports departmental-safety concerns to his or her supervisors pursuant to a duty to do so ….does not speak as a private citizen and is not  entitled to First Amendment Protection.”

After three instances of accidental discharge of weapons by SWAT team officers in two years, one of which resulted in the actual shooting of a SWAT team member, Hagen became concerned about safety issues related to the K-9 team working with the SWAT team.  When he  repeatedly pressed for information about improvements to the SWAT team’s weapons handling, he was transferred from the K-9 team.

After a trial, a jury unanimously agreed that the City  had deprived Hagen of his First Amendment right to free speech under the U.S. Constitution by retaliating against him for expressing safety concerns. The jury awarded Hagen $50,000 in compensatory damages and $200,000 in punitive damages.

A three-judge panel of the appeals court ruled on Dec. 3 that the lower court improperly denied the City’s  motion for Judgment as a Matter of Law. The appeals court reversed the jury verdict, vacated the damages, and remanded the case back to the lower court with instructions to enter judgment in favor of the defendants on each of Hagen’s claims. 

The  appeals court agreed with the City’s  argument that Hagen failed to establish that he spoke as a private citizen, rather than as a police officer who was “required by [the] City and police department to report safety concerns.”

 The appeals court said Hagen was required to express concerns about officer safety internally and within the police chain of command. Therefore, it said, even construing all evidence in Hagen’s favor, Hagen did not act as a private citizen who was  eligible to First Amendment protection.

The case is Hagen v. City of Eugene, Peter Kerns, Jennifer Bills, Thom Eichhorn, No. 12-35492.