• News
  • Celebrities
  • Finance
  • Crypto
  • Travel
  • Entertainment
  • Health
  • Others

Will Liberals Be Disappointed In Sotomayor, Part II

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.

TWI is on Twitter. Please follow us here.

Discussion & Comments (0)

    Recent Articles

    • Things You Should Know about North America

      Things You Should Know about North America

      Get to know more about North America.

    • Eurovision 2010 Paula Seling Unpredictable Contest

      Eurovision 2010 Paula Seling Unpredictable Contest

      Paula Seling's experience on the Eurovision stage led her to declare that "Eurovision is an unpredictable contest". Which may explain the success of the young Lena from Germany, about whom the predictions before the event did not offer much chances for victory.

    • VIPRow.me - The Best Sports Streaming Website Today

      VIPRow.me - The Best Sports Streaming Website Today

      Have you ever contemplated creating a user-friendly site dedicated to sports-related free live streaming channels?

    • Learn How To Download, Install, And Use The Xnxubd 2022 Frame App

      Learn How To Download, Install, And Use The Xnxubd 2022 Frame App

      XNXUBD 2022 Nvidia users are able to watch thousands of videos and other contents online. XNXUBD 2022 Nvidia New is a piece of software that enables people to watch videos online without having to pay for memberships. On a graphics card, the XNXubd also provides some of the best gaming and virtual reality experiences.

    • Xvideostudio Video Editor Apk Free Download For Pc Full Version In 2022

      Xvideostudio Video Editor Apk Free Download For Pc Full Version In 2022

      A new edition of the Video Editor Apk for xVideostudio.Video Studio has all the latest features, including support for multiple video download formats in HD, FHD, and even 4K resolutions.

    • 9 Best Lotion For Masturbation - Popular Choice For 2022

      9 Best Lotion For Masturbation - Popular Choice For 2022

      Masturbation is a common activity for men and women. It's a natural and risk-free way to explore your body, experience pleasure, and release sexual tension.

    • Reasons Why You Need To Stop Watching Movies From Sflix

      Reasons Why You Need To Stop Watching Movies From Sflix

      Without having to sign up or pay anything, you can watch movies online for free with SFlix. It has more than 10,000 movies and television shows.

    • Coi Leray Mom And Dad's Family History & Wife, Explained

      Coi Leray Mom And Dad's Family History & Wife, Explained

      Coi Leray Collins (born May 11, 1997) is a rapper from the United States. Leray started publishing songs to SoundCloud in 2014, and in 2018 she released her breakthrough track "Huddy" as well as her first mixtape, Everythingcoz.

    • Listen And Download Music On MyFreeMP3 For Free

      Listen And Download Music On MyFreeMP3 For Free

      Are you in a bind and looking for a place to obtain free mp3 songs? Never again will you need to bother, since this article has everything necessary to obtain your solution. Download free music from MyfreeMP3.com, one of the world's most popular websites.