rssWill Liberals Be Disappointed In Sotomayor, Part II
Thursday, May 28, 2009 at 1:53 pm
- 32 Comments
To follow up on my post yesterday about whether liberals may end up disappointed with a Justice Sonia Sotomayor (an argument E.J. Dionne also makes today in The Washington Post), the case I mentioned — and that Glenn Greenwald writes about today (he also litigated it before Judge Sotomayor in 1999) — merits a closer look.
Greenwald writes:
Without a trace of sympathy or even interest in the plight of the plaintiff, Sotomayor methodically recounted the evidence of discrimination and, in as coldly and legalistic a manner as possible, concluded that the Norville ‘produced insufficient evidence at trial to show that the hospital’ discriminated against her.
The Norville case, Greenwald continues, “was one where she acted exactly contrary to the Rove-led disparagement of her jurisprudence — the accusation that she disregards objective legal considerations in favor of emotions and sympathy for what Charles Krauthammer euphemistically described as ‘certain ethnicities.’ ”
My own reading of the case is that she not only didn’t let her sympathies get in the way, but she may have gone too far in ignoring human “emotions and sympathy” to rule based on hyper-technicalities. By “emotions and sympathy,” I don’t mean bias; I mean the fact that discrimination cases are inherently about whether a supervisor made an employment decision based on an emotional, rather than an objective, assessment of an employee. And that requires a judge to let herself empathize at least a little with the situation the case presents.
In the case of Wendy Norville, a 56-year-old black nurse who suffered a spinal injury while working at the Staten Island hospital where she’d been employed for 13 years, the question of whether the hospital refused to reasonably accommodate her disability because of her race, her age, or her disability itself is hardly clear. Yet Judge Sotomayor, writing for a three-judge panel on the Second Circuit Court of Appeals, affirmed the dismissal of her race and age claims on extremely technical, legalistic grounds that would seem to me to have been more appropriate for a jury. (Granted, as a lawyer I worked briefly on employment discrimination cases, so I might be considered biased. But as a former law clerk to a federal appeals court judge, I saw many of these cases and I doubt I would have recommended coming down the way Sotomayor did on this one.)
Take, for example, Sotomayor’s discussion of Norville’s race discrimination claim, which was based “on her allegation that the hospital refused to accommodate her disability despite having made job accommodations for two disabled white nurses,” as Sotomayor described it.
That’s normally enough to create a prima facie case of discrimination that the hospital would then have to rebut. But here, Sotomayor decided against Norville’s claim failed because Norville failed to show that she was “similarly situated” to the two white nurses. One had terminal cancer and due to the treatment often had to leave work early. The other had a herniated disc — as did Norville — but was promoted to Head Nurse around the time of her injury.
That wasn’t good enough to get her claims to the jury, wrote Sotomayor, because Norville did not provide “evidence regarding the specific degree to which either of these nurses was disabled, the type of work they did prior to becoming disabled, or the ways in which they were limited in performing their jobs. Norville thus has failed to demonstrate that they were ‘subject to the same standards governing performance evaluation’ or that they ‘engaged in conduct similar to [hers].’”
Although I don’t have the full trial record before me, that reasoning seems to place a much greater burden on Norville than she should have had to bear before trial. The fact that the hospital accommodated two other white nurses who had serious disabilities — as Norville did, but was not accommodated — at least seems to create a real question as to whether the reason for the hospital’s action was due to Norville’s race. And it’s the jury’s job to provide the answer.
Sotomayor used similar reasoning to dismiss Norville’s claim of age discrimination, based on the fact that a 38-year old nurse was hired for a position that the hospital could have offered her as a reasonable accommodation for her disability (which, it’s worth emphasizing, was due to an injury sustained on the job). Even though the hospital gave contradictory reasons for choosing the younger nurse over Norville, and Sotomayor concluded that Norville presented sufficient evidence that she was qualified for the job and that the hospital’s reasoning might be pretextual, strangely, that wasn’t enough to create a question of fact about whether the real reason was age discrimination. Sotomayor seems to require some direct evidence that the reason for the hospital’s decision was Norville’s age — although given that employers rarely state their discriminatory reasons for their actions, showing pretext is usually sufficient to get the case to the jury to decide what was the real motive.
In fact, it was then-Judge (now Justice) Samuel Alito who, as the lone dissenter in the Third Circuit sex discrimination case of Sheridan v. DuPont, insisted that there ought to be some more direct evidence of the kind of discrimination alleged — an issue that caused considerable controversy during his Supreme Court confirmation hearing.
I know this seems like a long and excessively detailed analysis of one judicial opinion, but I do think it says something about Sonia Sotomayor, which Greenwald alludes to but many others seem to be overlooking: Sotomayor’s hyper-technical reading of the law may not always be such a good thing. In Norville’s case, for example, did Sotomayor miss the forest for the trees?
The fact that the jury ultimately awarded Norville $1.6 million for her disability discrimination claim alone — which Sotomayor allowed to go forward based on yet another technical (and correct) reading of the law — suggests that she might have.
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32 Comments
Comment posted May 28, 2009 @ 1:02 pm
You're reading way too much in the case. Greenwald himself, noted that one case is not indicative of a trend. It's best not to see it that way.
Comment posted May 28, 2009 @ 1:04 pm
who cares at least your FUHRER isn't trying to control the S.C. YET!
Comment posted May 28, 2009 @ 1:30 pm
Having litigated employment discrimination cases in the 1990's, there seems to be nothing technical about this decision. In the early 1990's, trial judges in the Second Circuit were routinely throwing out claims that sounded weak to them, even though they technically should have survived a summary judgment motion. The appellate judges routinely reversed, on the technically-sound grounds that there were some material facts in dispute, and it was the jury's job to judge the strength of these facts.
The trial judges continued to ignore the appellate judges, because the docket demands on them were too great to allow trials. After a few years of this, the appellate judges finally showed empathy–for the trial judges. They began to allow trial judges to throw out claims just because they were weak. In other words, the appellate court STOPPED being hypertechnical. It's just that they saved their empathy for the trial judges, rather than the plaintiffs. Funny how it is easier to empathize with people just like you. A white male trial judge is much more like Sonia Sotomayor than is a black woman RN.
I've only read the Greenwald and Eviatar glosses on this case. But Sotomayor's opinion seems to be in the mainstream of Second Circuit reasoning. The ADA claim sounds strong; the race and age claims sound like weak add-ons even though–as Eviatar points out–they technically should probably survive summary judgment. But it's all about the empathy.
Comment posted May 28, 2009 @ 2:30 pm
Very good stuff. What so often is missed in contemporary dialogue is the simple existence of that very unsimple thing called interpretation. We all tend to establish ourselves on the banks of self-described truths without noticing how frayed the edges of our beliefs actually are. I would rather that we not parse each moment of existence for its validity, but it is also important to acknowledge the limits of our understanding. It is noticeable that a certain ideological group is not interested in nuance or doubt or serious discussion. I think they have a name. Republicans.
Comment posted May 28, 2009 @ 2:46 pm
Thank you, and Glen Greenwald, for this interesting analysis. I also handle employment discrimination cases, and I, too, find Judge Sotomayor's decision rather harsh on the plaintiff, who, like all employment discrimination plaintiffs', would be unlikely to have direct proof of bias. I do not know what the Second Circuit jurisprudence on this issue is, but this certainly looks to me like a case that should have gone to the jury on the non-ADA claims. However, this decision is not all that atypical for the federal courts, and is why most civil rights litigators here in California, where the statutory and decisional law is much more favorable to employees, prefer to bring these cases in state court. I am concerned that Judge Sotomayor may be another very able legal technocrat like Justice Breyer, who usually, but not always (See Bush v. Gore), votes the right way. He, however, does not apply his undoubted intellect to try to influence the development of the law, such as Brandeis and Brennan did. I was hoping that Obama would reach out to that kind of person to nominate, but he will most likely not find him or her among long-tenured lower federal court judges.
Comment posted May 28, 2009 @ 3:23 pm
Breyer joined Stevens' dissent in Bush v. Gore. Do you think this was wrong? Likewise, Breyer does try to influence his fellow judges. In a bio of Sandra Day O'Connor, it was suggested she was more convinced by him than Brennan. Brennan had the votes back in the day to develop the law more than Breyer does, but in various cases, Breyer does try to influence the develop of the law, at times in losing efforts (e.g., his long and eloquent dissent in the Seattle school case).
Comment posted May 28, 2009 @ 3:49 pm
Not too long or detailed at all for this non-lawyer. In fact, very clear and informative, fellow Daphne.
Comment posted May 28, 2009 @ 4:00 pm
I think it weird that people go to trial all the time and not just settle things between themselves. if more people were just better people we would not need the SCOTUS or even the constitution .
Comment posted May 28, 2009 @ 4:03 pm
It is a real pleasure to see media outlets presenting views from people who know actual facts and have relevant experience. In contrast to my more typical experience, where a reporter who apparently knows nothing presents two opposing quotes from people whose selection process is murky to me. Thanks!
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Comment posted May 28, 2009 @ 5:27 pm
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Comment posted May 28, 2009 @ 9:21 pm
This report is a good reason to question whether Judge Sotomayor is a good selection for the SC. Her unknown feelings about Row vs. Wade are another area that needs investigation. But there is a third area that needs to be looked at now, especially with the environmental problems and the other disputes between those who believe in science and the anti-intellectual movement that doesn't.
Judge Sotomayor has a good record of having a top notch brain and ability to think and reason. Scalia has the same reputation, but his record on science shows a woefully inadequate preparation and understanding. His questions during the discussion of whether CO2 should be classified as a pollutant for EPA purposes showed that he lacks even a ninth grade earth science understanding of how climate and weather work. His minority opinion after the last case that the SC decided on creationism shows a total and complete misunderstanding what evolution is about and how it works and what it says. If Judge Sotomayor is equally ignorant of science, then we need to look further for someone to replace Judge Souter.
Comment posted June 1, 2009 @ 6:24 pm
Excellent point about interpretation and the fact that subjectivity is inescapably a part of consideration. This awareness, AFTER having developed a strong objective capability, is the only way to achieve, rise to a level of subjective objectivity which is a synergy of both, both objectively clear eyed and compassionate.
Thank you, Daphne for this very sharp piece, the kind missing in a lot of the reporting.
Comment posted June 3, 2009 @ 6:06 pm
Perhaps Judge Sotomayor is more comfortable with ADA cases. In Bartlett v. New York State Boaard of Law Examiners, 970 F.Supp. 1094 (1997), sitting as a trial judge, she found, among other things, that the Board violated that statute when it used an untimed test to determine if the plaintiff had a reading disability which would place her at a disadvantage her on a timed test, the bar examination, if she were not allowed reasonable measures to accommodate that disability.
Comment posted June 4, 2009 @ 1:06 am
Perhaps Judge Sotomayor is more comfortable with ADA cases. In Bartlett v. New York State Boaard of Law Examiners, 970 F.Supp. 1094 (1997), sitting as a trial judge, she found, among other things, that the Board violated that statute when it used an untimed test to determine if the plaintiff had a reading disability which would place her at a disadvantage her on a timed test, the bar examination, if she were not allowed reasonable measures to accommodate that disability.
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[...] Daphne Eviatar, who worked as a clerk to a federal appellate judge, adds some interesting thoughts and observations about Sotomayor’s conduct in the Norville case and what it reflects about her judicial [...]
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