Alan Schorr’s Employment Case of The Week ending June 21, 2013

Rader v. Napolitano, — Fed.Appx. —-, 2013 WL 2939422, (9th Cir. (Cal.)) (June 17, 2013) (unpublished).

This week, the Ninth Circuit provided New Jersey employees yet another reason to stay far away from Federal Court. In a horrendous 2-1 decision over a well-reasoned defense, the Ninth Circuit in Rader v. Napolitano completely disregarded the plaintiff’s testimony regarding sexual and religious harassment and discrimination and upheld summary judgment.

The majority, in its short and poorly-written opinion, chose to gloss over most of the facts, and Judge Gould, in his dissent, called them out. Barbara Rader, who worked for the U.S. Department of Homeland Security, sued for sexual harassment and religious discrimination. She alleged that her direct supervisor said, “You should have f***ed me,” as he escorted her to get her termination letter. With regard to religion, Rader, who is Jewish, alleges that the term “kike” was repeatedly used (5 or 6 times) in the office. In addition, Rader alleged that she was terminated shortly after her request to take off for Yom Kippur and before the holiday actually occurred. In addition, someone from Homeland Security appeared at an open house “dressed mocking as an Orthodox rabbi.”

The majority (a Reagan and a George W. Bush appointee) dismissed all of these allegations. They ruled that the direct supervisor’s comment that “You should have f***ed me” was a “mere offensive utterance”, and that any belief that this constituted quid pro quo sexual harassment was “speculation and cannot create a triable issue of material fact.” With regard to religious discrimination, the majority dismissed the religious epithets as “stray remarks” because she “presented no admissible evidence that another Jewish employee was fired”.

In dissent, Judge Gould (a Clinton appointee), argued that the supervisor’s comment, made in the process of walking to get a termination letter, was a “more-than curious comment” which “is explicit enough to permit a rational jury to conclude that Ms. Rader would not have been terminated if she had performed or expressed a desire to perform sexual favors.” Judge Gould argued that this was not a “stray remark or a mere offensive utterance that can be blinked away”. With regard to sexual harassment, Judge Gould concluded:

The timing and substance of the remark, attested to by Rader, connect it to Rader’s termination in a more-than-speculative manner. It is true that the only evidence of this remark comes from claimant Rader herself, and the supervisor denies uttering the offensive words, but we have never had Ninth Circuit precedent saying that a sex discrimination claimant’s personal testimony about what she heard or saw is not admissible to create a genuine issue of material fact.

With regard to religious discrimination, Judge Gould refused to recognize the repeated use of the word “kike” as stray remarks:

Terms like “kike,” used to describe religious or ethnic minorities, are relics of a bygone age. And their repeated use, especially when made in reference to a specific employee, can establish a genuine issue of material fact with respect to pretext. (Footnote omitted)

In conclusion, Judge Gould reasoned:

So taking her version of events as true, we see instances of five or six usages of “kike” in Rader’s presence as well as someone working at the Department of Homeland Security appearing for an open house dressed mockingly as an Orthodox rabbi. It should be obvious that the use of a racial or ethnic slur in the presence of a minority employee will be harmful to that person, whether the reference is directed at them or at another person of their race or ethnicity. Whether these derogatory actions and references coupled with Rader’s termination following closely on the heels of her request for time off for religious observance are sufficient to show pretext by rebutting the significant evidence that the government had grounds to terminate Rader is a close question. But I believe they are enough to let the matter go to a jury.

Unfortunately, we now have a Ninth Circuit case (albeit unpublished) that can be cited in order to support and excuse flagrant sexual and anti-Semitic harassment. In New Jersey, we faced a similar situation with an appellate anti-Semitism case, Heitzman v. Monmouth County, 321 N.J.Super. 133 (App.Div.1999), certif. denied, 174 N.J. 363 (2002). That case was cited for years for the proposition that derogatory remarks aimed at Jews were entitled to less protection than racial or sexual remarks. The New Jersey Supreme Court corrected that anomaly in Cutler v. Dorn, 196 N.J. 419, 435 (2008), which made it clear that these kind of remarks are not “stray remarks” and that anti-Semitism is entitled to the same protection as discrimination against other protected classes.

It is unknown whether the plaintiff will seek certiorari from the U.S. Supreme Court, but we will watch this case. Admittedly, it is like tilting at windmills for a sole practitioner to take on the United States government, but it really should bother people that Janet Napolitano and Eric Holder are arguing that these alleged actions are not anti-Semitic nor constitute sexual harassment. Just another reason for New Jersey employees to avoid Federal Court whenever possible.

Plaintiff’s Counsel: Alan Steven Yockelson.

Defendant’s Counsel: Richard M. Park, Assistant U.S. Attorney.

District Court Judge: John A. Kronstadt, U.S.D.J.

Circuit Court Judges: Alex Kozinski, Chief Judge, N. Randy Smith, Ronald M. Gould (dissenting).