The SUMMARY JUDGMENT
A decision made on the basis of statements and evidence presented for the record without a trial. It is used when there is no dispute as to the facts of the case, and one party is entitled to judgment as a matter of law.
Editor's "plain English" explanation: In theory a request for Summary Judgment is made when there is no dispute as to issues and the law is being properly stated and applied. In fact, there is virtually always dispute as to issues in these matters, or else the case would be settled between parties and they wouldn't need to make this presentation to the judge. Additionally, a request for Summary Judgment requires that the law must be properly applied. Put simply, the parties will attempt to twist legal precedent (previous judicial decisions in case law) for their own benefit.
Moral RIGHT and WRONG has little to do with this. In the Case of Caryl Leventhal v. Janet Reno and the US Department of Justice, there is little if any doubt that virtually all of Ms. Leventhal's allegations of brutality and discrimination did occur. The Discovery Process has shown this to be true through evidence and Depositions. But in the world of law, this doesn't really matter. It's like saying "sure, the defendant beat the plaintiff over the head with a baseball bat twice, but according to (whatever the cases may hypothetically be), battery only exists if the plaintiff was beaten THREE TIMES over the head. Therefore we request that a Summary Judgment be made in favor of the defendant because there are no trial issues."
Even worse for the future safety of America, Caryl Leventhal was a whistleblower to the wholesale selling of Green Cards and incomplete processing of immigration paperwork that she was convinced was allowing potential criminals and terrorists into America. While she could not file under this basis, Ms. Leventhal hoped for the this testimony to get into the trial record. On the other hand, Assistant US Attorney Eric B. Fisher, Esq. was equally determined to put a lid on this testimony, even at the expense of the American people.
AUGUST 7, 2000 - The US Attorney sends a letter to the federal trial judge requesting permission to file a Summary Judgment. He doesn't attempt a Summary Judgment on the three bases of Racial, Religious and Physical Discrimination. Rather, he goes for eliminating "Religious."
In military battle tactics (if you'll pardon this soldier's evaluation), the US Attorney's strategy is classily "Napoleonic." He knows that an attack on all three "armies" at once would result in defeat due to their overwhelming strength. On the other hand, if he can eliminate "Religious," he has created a potentially serious gap in the opponent's forces. He will then redeploy, attempting to destroy the other two piecemeal at the trial.
On a judicial level, one must understand that contrary to popular belief, the entire production is "staged" for the jury. They virtually never hear all the facts of the case. They only hear what hasn't been kept away from them through legal pre-trial motions. If the US Attorney can eliminate the vicious anti-Semitic Religious events (that nobody doubts actually occurred), he has a possibility of creating a "logic and continuity" gap in events. He can create confusion in the juror's minds because they will never get to hear the total picture.
US Attorney's Strategy... HIDE THE DIRTY LAUNDRY - In his request to the trial judge to file a Summary Judgment (can't show it to you the actual letter because it is privileged information), the US Attorney quotes prior federal decisions and Title VII of the Civil Rights act of 1964.
In the Civil Rights act of 1964, discrimination must be "severe and pervasive." The US Attorney uses existing case law (actual decisions) to define "severe and pervasive." He then goes on (after misstating Ms. Leventhal's deposition testimony) to say that assuming all she says is true, it doesn't meet the definition as stated in case law. For example, he cites the case of Shabat v. Blue Cross Blue Shield of the Rochester area, 925 F. Supp. 977 (W.D.N.Y. 1996) aff'd, 108 F.3d 1370 (2nd Cir. 1997).
In this case, plaintiff alleged that he was subjected to a hostile work environment on account of being Jewish. While the instances were nowhere near as overtly brutal and malevolent as in the case of Caryl Leventhal v. Janet Reno (99CIV.10405 October 1999), this is unimportant. To the court (the judge), the essence was that plaintiff's allegations were insufficient to establish a hostile work environment because "even assuming that every incident alleged by plaintiff did occur, it is clear that these were far from regular occurrences; most of them were separated by a month or more." Again, it is not so much whether you were beaten over the head with a baseball bat, but how frequently this occurred.
CARYL LEVENTHAL'S REBUTTAL AND REQUEST FOR DENIAL OF SUMMARY JUDGMENT MOTION (IN ITS ENTIRETY & WITH COMMENTARY)
|August 10, 2000
Dear Judge --------------:
I am attorney for plaintiff in the above matter. The following shall serve as plaintiff’s response to defendant’s letter, dated August 7, 2000, requesting an opportunity to move for partial summary judgment on plaintiff’s discrimination in employment on the basis of religion (Jewish) claim under Title VII of the Civil Rights Act of 1964. For the reasons set forth below, plaintiff contends that defendant’s proposed motion would be denied if submitted and therefore should not be made.
The gist of plaintiff’s argument is that the four incidents of discrimination on the basis of religion that plaintiff had testified to during her deposition, even if assumed to be true, were not so severe and pervasive as to be deemed a hostile environment under Title VII. Plaintiff rejects this argument and would oppose this motion on two grounds:
Factual. Plaintiff maintains that defendant’s conduct, discussed more fully below, was indeed severe and pervasive so as to have created a hostile environment. That is, defendant has skillfully pared down each of the incidents so as to make these incidents appear to be petty, trivial, and disconnected. Also, these incidents are perhaps notable examples of ongoing religious discrimination, but are by no means the only bases for plaintiff’s claim. Most importantly, the issues at bar—how frequently did these incidents occur? were these incidents part of a pattern or disjointed? what is the degree of severity of these incidents?— are logically and customarily the province of the trier of fact. That is, they should not be determined by a battle of dueling affidavits and deposition transcripts.
Editors Commentary: What's coming is good stuff. Plaintiff's attorney has done his homework. He cites case law where the "totality" of actions defines severity and pervasiveness. This would include not just Religious, but Racial and Physical discrimination. Plaintiff's attorney then goes on to say that elimination of one aspect of discrimination (Religious) paints an incomplete picture of the totality of discrimination Ms. Leventhal was exposed to (which of course, is exactly what the US Attorney wants to accomplish).
Legal. The hostile environment for which plaintiff complains was the result of race, religion, and disability discrimination. A recent Second Circuit case, Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000), held:
(internal citation omitted) (emphasis added). In Cruz, the Court considered harassment directed against co-workers of different minority groups to be part of the totality of "workplace harassment." A fortiori, this Court must consider the totality of harassment directed against plaintiff, herself, be it of a disability, racial, or religious variety.
To exclude the religious component of defendant’s discrimination would present an incomplete picture to the jury, since defendant is not going to move for summary judgment on plaintiff’s other discrimination claims. Thus, should plaintiff be excluded from mentioning her allegations of religious discrimination, the totality of circumstances will not be presented to the trier of fact. Thus, even if this Court were to find that plaintiff’s claim for religious discrimination standing alone was insufficient to prove hostile environment, it cannot be artificially separated from her overall workplace experience. Thus, even if, for example, her hostile environment was 75% due to her disability, 15% due to race, and just 10% due to religion, to remove even that 10% would be to not present the totality of circumstances. In short, either your Honor (on a summary judgment motion) or the jury (after trial) should make one determination: "As a result of illegal discrimination did plaintiff experience a hostile environment?"
Plaintiff has a much less sanguine opinion of the incidents cited by defendant. As for the first incident, the "menorah incident," it is notable that both Ms. Brenda Grant and Ms. Agatha Stewart, plaintiff’s supervisors, had testified that they permitted employees to put up Christmas decorations and seemed to indicate they participated therein. Thus, they allowed the celebration of a religious holiday to be the United States Immigration and Naturalization Service ("INS") Section 245 policy, not a spontaneous personal choice. Brenda Grant was far from amicable when she refused to allow plaintiff to display a small menorah. Her words were "No Jewish things here." This was not done in the privacy of her office. It was done publically, subjecting the plaintiff to religious humiliation and ostracism within the area in which she worked.The second incident concerns plaintiff being permitted to have Yom Kippur off (not Rosh Hashanah as stated by defendant). Yom Kippur is, of course, the highest holiday in the Jewish faith. It is specifically mentioned in the INS Administrative Manual (along with Good Friday) of observance days to be given whenever possible. Defendant paraphrases Grant as saying that "she did not authorize the leave for Yom Kippur because of legitimate staffing considerations." In reality, she testified that she did not know the day in question was Yom Kippur. However, she did know she permitted both a Jewish employee and a non-Jewish employee to have that day off for five years or more. Plaintiff had testified that she had a dispute with said non-Jewish employee, her subordinate, because both wanted to take the day off. The latter wanted the day to spend with her daughter who worked for a Jewish employer who closed on that day. Ms. Leventhal thought her observance of this day took precedence. Ms. Grant sided with the non-Jewish employee and gave her the day. Ms. Grant later noted in writing that she found Ms. Leventhal’s observance of that high holiday an example of "peculiar judgment."
In regard to the third or "Passover" incident, Brenda Grant did not just tell plaintiff, "why are you eating that instead of bread." Rather, she publically berated and ridiculed her numerous times for doing so, hammering home her opinion that "you’re not Jewish."
In the fourth or "Meissner" incident, plaintiff testified that the religious affiliation of INS Commissioner Doris Meissner became a virtual obsession of Ms. Grant and another INS supervisor, for days leading up to her visit to the INS New York District Office. They would constantly and emphatically discuss the issue of "Is she [Ms. Meissner] a Jew?" Plaintiff and her co-workers heard all of their conversations. Plaintiff believed that her supervisor’s felt a plague was approaching if Doris Meissner was "a Jew." It made plaintiff feel that she was working in an environment where those of the Jewish faith were viewed with ridicule and hostility.
What defendant fails to mention is that religion was a regular, not sporadic, "topic of conversation" within plaintiff’s workplace. Ms. Grant led these discussions, which were not in the nature of intellectual or dispassionate "comparative theology." Rather, Ms. Grant would regularly ridicule plaintiff’s adoption of the faith of her husband, Judaism. Her comments suggested that she made a big error in deciding to practice Judaism and she considered it her duty to dissuade her from doing so. These repetitive "discussions," are arguably more indicative of a hostile environment than all the incidents cited in defendant’s letter.
There is no dispute that defendant has the right to move for partial summary judgment under Rule 56. However, plaintiff submits that to do so is contrary to the letter, spirit, and interpretation of that rule. The purpose of summary judgment is to identify rather than decide issues of fact. This has been adequately done in the parties’ letters. We should now proceed with trial.
Thank you for your attention and consideration.
It should be noted that even if the judge refuses the US Attorney's written request for permission to file a Summary Judgment, he can still do so under the law. Caryl's lawyer and her husband have playful and differing theories on what the US Attorney will do if the judge refuses. Her attorney feels that no matter what the judge says, the US Attorney will file a request for Summary Judgment anyway. Caryl's husband feels that the US Attorney will "back off", feeling that to do so might antagonize the judge.
Results in the next
Commentary and Editor's Notes written and Copyright © by: LTC Michael G. Leventhal
Copyright 2000 Reproduction with written permission. Contact: Michael @Justice-Denied.net