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Top NY Court Blinks in 'First Department' WPP Discrimination Power Play
Date:11/13/2008

NEW YORK, Nov. 13 /PRNewswire-USNewswire/ -- In a regular session of the New York Court of Appeals on October 23rd 2008, and under the cover of a contentious election year and an economic tsunami, this state's top court, the New York Court of Appeals (NYCOA) declined to hear the appeal of Kathryn Jordan v. Bates Advertising 118785-99, an important "perceived disability" case filed by a woman with Multiple Sclerosis. The appeal was filed by Jordan after the First Department Appellate Division reversed the May 2005 jury verdict and the Final Judgment of the trial judge, Honorable Rolando T. Acosta, entered in November 2007 to uphold the jury verdict and adopted the arguments of WPP's appellate and trial attorneys that victims of discrimination must always disprove the "legitimate reasons" proffered by the employer in order to prove discrimination.

In a week that that the state's top appeals court chose to hear the Bianca Jagger eviction case, NYCOA appeared to be dodging an overt power play by the Appellate Division, to legislate "from the bench" new case law that will now make proving discrimination by plaintiffs in disability and Title VII cases extremely more difficult, as well as avoiding a politically charged situation involved the trial judge's appointment to the higher court in the middle of a judicial investigation. The decision will also open the door for employers to get a "second bite at the apple" when they lose cases for legal reasons after agreeing to the jury instructions.

The hearing of the Jordan appeal would have allowed the top court to resolve an important issue of law, specifically the legal burden for proving "pretext" in discrimination cases, a matter that has been inconsistently adjudicated by lower New York courts. Jordan's appellate attorney Robert Meister argued in their briefs that while the First Department held, as WPP's attorneys had argued, that a victim of discrimination must always disprove the "legitimate reason"
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SOURCE EndDiscriminationNow.com
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