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Top NY Court Blinks in 'First Department' WPP Discrimination Power Play

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" for the adverse employment action, courts outside New York had aligned around the "real reason" standard, which requires that the analysis advance to a third level where the motivations of the employer are considered. Meister argued in their briefs that while disproving the "legitimate reason" can be helpful to proving discrimination, it is not necessary to do so.

"It's the 'blue eyes defense,' Meister argued. "It's like saying we fired her because she had blue eyes...and then proving that her eyes are blue, and suggesting that this disposes of the fact that the employer was motivated by discrimination."

Under McDonnell Douglas, the standard for proving discrimination established by the United States Supreme Court, a plaintiff seeking to prove discrimination must proffer a "prima facie" case, while the employer must only produce a "legitimate reason" that it does not have to prove, while the plaintiff ultimately bearing the burden of proving that the employer was motivated by discrimination and that the "real reason" was discrimination. In finding that Jordan "presented no evidence of pretext" to rebut the "legitimate reasons" offered by WPP's attorneys, and therefore the jury verdict was "against the weight of the evidence", the First Department chose to ignore all of the evidence of discrimination that Jordan produced at trial, including testimony by her and top executives that she was openly referred to as "a cripple", hazed about her need to use a cane to ambulate, and treated differently by her supervisors than her non disabled peers, including being paid half what non-disabled EVP's were compensated. The First Department also ignored evidence that decision maker Doug Fidoten, who fired Jordan, "could not say" whether it was more cost effective to terminate her or not, evidence that her termination as the agency's top Planning executive was not part of the mid 1994 merger layoffs which targeted non-client staff positions, and evidence that the defendants were hiring planners at the very time that they claimed "financial problems" were the reason for terminating Jordan. Instead, the First Department, incensed about Jordan's criticisms about the trial Judge's "ex parte" communications, allegations which they deemed "baseless" instead of investigating, focused on the omission from evidence of a document that proved one of her non disabled replacements' compensation, as the basis for finding that there was "no evidence" to "rebut the legitimate reason".

The reason for the First Department's decision was clearly political. The First Department, in ignoring the high hurdle for disturbing jury verdicts in this state, as well as the fact that WPP waived the right to appeal when it agreed to the jury instructions, deployed the artifice of outrage about a dispute between the trial judge and the plaintiff to divert attention from the fact that they were "legislating from the bench" changes to the state's anti-discrimination laws that would make it harder to prove discrimination. The Appellate panel expressed outrage about Jordan's allegation of misconduct by the trial judge, Honorable Judge Rolando T. Acosta, and her allegations of improper "ex parte" communications with her discharged attorney, Laurence Lebowitz. Jordan complained that the trial judge had pressured her to agree to pay Lebowitz over $1 million in legal fees, despite his negligence in documenting Jordan's economic damages and evidence on the case. Acosta had also sanctioned Jordan calling her "contemptuous" after reporting Lebowitz' improper filing of pleadings on the case after his discharge as counsel of record, and after his attempts to censure her complaints failed. Acosta eventually recused himself from the case.

The Kathryn Jordan v. Bates Advertising et al case was tried in Supreme Court before Judge Acosta, a jurist ironically once appointed by Judge Judith Kaye, Chief Judge of the NYCOA, to oversee the commission to Promote Public Confidence in the Justice System. Acosta, who rose through the ranks of the Human Rights Division, published a lengthy opinion in February 2007 endorsing the jury verdict of April 2005 in favor of Jordan and affirming the finding that defendants Bates/AC&R Advertising had "discriminated against Jordan on the basis of 'perceived disability'". This finding necessitated accepting the jury's credibility determinations of Jordan as a witness. The Court also affirmed the damages award, including $2.0M in economic damages, declining to adjust the 60% reduction in "make whole" damages proven by Jordan's unrebutted expert. WPP's attorneys refused to settle the case over the decade leading up to the 11 day jury trial, insisting on trying the case before a jury, knowing that fatal admissions by Bates/AC&R management made it virtually impossible for WPP to win. Consequently, Jordan, who suffers from Multiple Sclerosis, and who has been recognized for her contributions to the advancement of women and the disabled in the workplace, had to finance, and endure, 13 years of litigation. "It has been an incredible ordeal," Jordan admitted. "No intelligent person one files a discrimination case as a profit making venture. Nor does any sane person accuse a judge of misconduct without reason."

Jordan who was criticized by the First Department for masking her disability at the time of her hire as EVP Planning, a $250,000 base salary position, for not reporting the harassment to her supervisors who testified that they knew at the time that she was openly referred to as "a cripple" by colleagues but failed to take remedial action,

For Jordan's not complaining about her supervisor's interrogations about her need to ambulate with a cane, and for negotiating a "reason for leaving" that would not reveal the fact that she had been fired for discriminatory reasons to future employers. Bates senior management admitted that there was no enforcement of EEO policy. The jury was outraged and awarded $500,000 in punitive damages to Jordan.

"The (First Department) decision (to reverse the verdict) read like something out of a 1950's 'blame the victim' employer manual," Jordan said. "We obviously still have a long way to go."

Details about this case will be posted on beginning December 1st, 2008.

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