Tag: U.S. Court of Appeals for the Seventh Circuit

Appeals Court Strikes a Blow for Unrepresented Litigants

A federal appeals court recently struck a blow for the unrepresented litigant, who often is  ill-equipped to understand and overcome procedural hurdles that effectively block access  to federal courts.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, which is based in Chicago,  reinstated a case that was dismissed by a district judge because the handwritten complaint filed by the plaintiff, who was representing himself, contained “little more than conclusory legal jargon.” Moreover, the judge said, the plaintiff checked a “variety of boxes “with “conclusory statements such as that the Defendant failed to reasonably accommodate the plaintiff’s disabilities.”

The plaintiff, John Tate, was a driver trainee in 2014 for SCR Medical Transportation, which provides non-emergency transportation services for disabled persons and veterans.  His complaint states: “The defendant was aware of my disability. During my employment, I was subjected to sexual harassment. I complained to no avail.” Tate  alleges he was fired in retaliation for his complaint. He alleges discrimination on the basis of disability, sexual harassment and retaliation.

The appeals court said Tate filled out a complaint form supplied by the  court that “does not require, or indeed permit, extensive factual detail, for it provides only six lines for listing ‘the facts supporting the plaintiff’s claim of discrimination.'”  Also, the appeals court said, the judge made a “serious mistake”  by dismissing Tate’s lawsuit prior to the expiration of a 21-day period  during which a plaintiff may file an amended complaint without the court’s approval.

The panel’s decision, written by noted jurist Richard Posner,  states that the lower court judge “should have told the plaintiff what is required to allege disability discrimination.”

Rather than dismissing the case, the judge should have helped the pro se complainant correct the procedural defect in the complaint.

The panel said Tate had no obligation to be more specific with respect to his claim of sexual harassment or retaliation.  The panel agreed,  however, that  the Americans with Disabilities Act requires a plaintiff to allege that s/he is disabled within the meaning of the Act. The panel said Tate should have identified a specific disability.

“Had the judge told the plaintiff before dismissing his suit what was missing from the complaint, or had he dismissed just the complaint and not the suit and informed the plaintiff of a plaintiff’s right to rectify the deficiencies of his complaint in an amended complaint, we might have been spared this appeal, and the district judge a remand,” concluded the panel.

Posner, an expert in the area of law and economics, is one of the most cited legal scholar of the 20th century.

The case is TATE , v. SCR MEDICAL TRANSPORTATION, No. 15–1447 (7th Cir. December 28, 2015).

Appeals Court Says Inequality Should Not Bar Justice

There is a persistent myth in America that our adversarial court system gives every litigant an equal chance for justice.

In fact, research overwhelmingly shows that federal courts are like casinos where the government and big business usually have the edge by virtue of their greater resources. They can easily drive individual plaintiffs out of the courthouse through the use of technicalities, strategic delays, and procedural sleight of hand. Meanwhile, the supposed “leadership” of the federal court system has shown little willingness to innovate or experiment  to improve the judicial process or even to engage with the public!

So it is refreshing that a panel on the U.S. Court of Appeals for the Seventh Circuit in Chicago recently acknowledged the bleak circumstances of an Indiana prisoner who filed a federal lawsuit after being denied timely access to a prescription drug to treat gastroesophageal reflux disease (GERD), which can lead to esophageal bleeding or ulcers, chronic scarring, and increased risk of esophageal cancer.

A prison physician in 2009 ordered inmate Jeffrey Allen Rowe to take an over-the-counter strength Zantac pill twice a day. However, after two years, Rowe’s pills were confiscated and he was told he could only take a pill if he bought it or when it was dispensed by a prison nurse at 9:30 a.m. and at 9:30 p.m.  His prescription was dropped altogether for a month in 2011 on the theory that he had a chronic condition that did not warrant the continued use of the drug. He says the prison doctor and nurse eliminated the prescription in retaliation for his complaints.

Rowe alleged he suffered extreme pain because he couldn’t afford to buy the drug and was forbidden to take the prison-dispensed medication with his meals. He filed a lawsuit charging the prison with deliberate indifference to a serious medical need in violation of the U.S. Constitution’s prohibition against cruel and unusual punishment.

U.S. District Court Judge Sara Evans Barker summarily dismissed Rowe’s lawsuit because he failed to present an expert witness to dispute an affidavit submitted by the prison. The affidavit was from a doctor,  who was not a gastroenterologist, who stated that Zantac was effective for 12 hours after it was taken.  The appeals court noted  the manufacturer of Zantac states the drug must be taken within 30 to 60 minutes of eating food or drinking beverages that cause heartburn “to prevent symptoms.”

Circuit Judge Richard A. Posner wrote the 2-1 ruling, which states: “It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.”

Posner said Judge Barker denied Rowe’s requests for appointment of counsel and to hire an expert witness to assist him in the four-year court battle, leaving Rowe at a “decided litigating disadvantage” and unable to offer evidence beyond his own testimony.

 “Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice?” asked Posner.

The majority cites  research from “highly reputable medical websites” on the Internet to show that Rowe raised a significant issue of material fact which warranted going forward with the case. By conducting independent research, the majority acknowledged that “we may be thought to be ‘going outside the record’ in an improper sense.” However, the panel noted that Rule 201 of the Federal Rules of Evidence permits a judge to consider certain facts without requiring the testimony of an expert witness. The panel did not accept its research as “true” but construed it to be sufficient to raise a question of fact that barred dismissal on a motion for summary judgment. The panel said it is appropriate for a judge to do research when it is conducted “with circumspection. In particular, it must not be allowed to extinguish reasonable opportunities for rebuttal.”

The dissent criticized the majority for expecting Judge Barker to challenge an unquestioned expert’s affidavit and to conduct independent factual research instead of relying solely upon the official record.  The majority responded that Judge Barker had failed to “recognize the existence of a substantial issue of material fact, barring summary judgment. Rowe’s evidence of pain contradicted (the prison doctor’s) affidavit.”

The case is JEFFREY ALLEN ROWE, Plaintiff-Appellant, v. MONICA GIBSON, et al., No. 14-3316 (August 19, 2015).

Who’s Got Their Head in the Sand?

A federal judge has concluded that the U.S. Court of Appeals for the Seventh Circuit in Chicago did not violate the Code of Judicial Conduct when it ridiculed an attorney in a written opinion.

Circuit Judge Joel M. Falum, who was assigned to decide a complaint filed by the attorney, said the offending opinion  a three judge panel of the appellate did not impede the administration of justice by the court.

The 7th Circuit panel included in its written opinion two photos – one featuring an ostrich with its head in the sand and the other depicting a suited man with his head in the sand.

Judge Falum ruled on Dec. 21 that the photos were evidently meant to depict “complainant’s willful avoidance of dispositive legal authority that was repeatedly brought to complainant’s attention.”

The attorney who was the butt of the panel’s  “humor” complained that the judges violated a requirement that judges be “patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”

Judge Falum interpreted the question for decision as whether the “photo-enhanced opinion” had a prejudicial effect on the effective and expeditious administration of the business of the court.  “The inclusion of photographs to underscore a decision already reached by the court could not have such an effect,”  he decided, dismissing the complaint.

With all  respect to Judge Falum,  it is highly unlikely that a judicial panel furthers the administration of justice when it humiliates an attorney with which it disagrees in the course of denying the attorney’s requested relief.  It certainly doesn’t foster confidence among victims of workplace abuse when the court demeans the professionals who appear before it with hats in hand.   And, by the way, progress often occurs solely because an attorney challenges dispositive legal authority. (Remember slavery and women’s suffrage?)

Ridicule is a common tactic in workplace bullying scenarios.  Targets often are the subject of treatment that is designed to embarrass or humiliate them.  Such treatment can take a profound emotional and physical toll on the target.

The identity of the parties involved in the dispute were not disclosed – neither the complainant nor the three judges.  The case is In Re. Complaints Against Three Judges, Nos 07-11-90072-90074.

Postscript – It’s a myth that ostriches bury their heads in the sand. They don’t. A male ostrich digs large holes (up to 6 to 8 feet wide and 2-3 feet deep) in the sand to make a nest. Predators cannot see the eggs across the countryside which gives the nest a bit of protection.

Appeals Ct Sides with EEOC in Conciliation Dispute

A federal appeals court in Chicago has departed from several other federal circuits by ruling that judicial review is not appropriate over efforts by the U.S. Equal Employment Opportunity Commission  to settle employment discrimination complaints.

Title VII of the Civil Rights Act directs the EEOC  to try to negotiate an end to an employer’s unlawful employment practices before it seeks a judicial remedy but it does not require the EEOC to actually reach a settlement.

Nevertheless, several federal appeals courts have allowed employers to raise an affirmative defense in employment discrimination cases that the EEOC failed to engage in good faith settlement negotiations  prior to filing a lawsuit. This is referred to as a “failure-to-conciliate” defense.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in Chicago ruled last week that an implied failure-to-conciliate defense would add an “unwarranted mechanism” in Title VII by which employers could avoid liability for unlawful discrimination. “They can do so through protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle,” said the panel.

In addition, the panel said, the implied failure-to-conciliate defense runs “flatly contrary to the broad statutory prohibition on using what was said and done during the conciliation process  ‘as evidence in a subsequent proceeding.’”

Six other federal circuits – the Second, Fourth, Fifth, Sixth, Tenth and Eleventh Circuits –  allow some form of judicial review over the sufficiency or good faith of the EEOC’s conciliation efforts.

The 7th Circuit ruling came in a 2008 sex discrimination case filed against Mach Mining, which  allegedly refused to hire female applicants  for coal mining jobs. After investigating, the EEOC found there was reasonable cause to believe Mach had discriminated against a class of female job applicants at its Johnston City site. The EEOC engaged in informal conciliation with Mach but in 2011 the EEOC concluded the parties could not agree and filed a lawsuit.

Mach argued the suit should be dismissed because the EEOC failed to conciliate in good faith.  The EEOC did not contend that its efforts were either sincere or reasonable, only that they were not reviewable as a defense to unlawful discrimination.

The 7th Circuit panel said the U.S. Congress gave the EEOC broad discretion to negotiate as it sees fit, including the power to accept or reject any offer or proposed settlement for any reason.  “Nor can Mach Mining explain just how many offers, counteroffers, conferences, or phone calls should be necessary to satisfy judicial review, despite repeated invitations to provide the court with a workable standard,” it added.

The U.S. Chamber of Commerce filed a brief in the case arguing that it was necessary to keep the EEOC on a tight leash to avoid “agency shenanigans” but the 7th Circuit panel noted the EEOC  filed only 122 merit lawsuits in 2012.  “That so few unsuccessful efforts at conciliation end up in court shows how constrained the agency is by practical limits of budget and personnel,” said the appeals court.

The panel remanded the case, EEOC v. Mach Mining, No. 13-2456,  to the lower court for further proceedings.

In brutally harsh decision last fall in  EEOC v. CRST Van Expedited, Inc.,  Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled  that the  EEOC  must pay CRST, one of the nation’s leading transport companies,  a judgment of $4,694,422.14  stemming from a lawsuit filed by the EEOC alleging sex discrimination.  Judge Reade dismissed at least 67 class members from that case because the EEOC’s allegedly failed to conciliate with CRST with respect to each individual class member.