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Civil Procedure

11th Cir. slams university and lawyers, upholds $1M for workers who say black supervisor used N-word

Posted Sep 5, 2013 5:44 AM CDT
By Debra Cassens Weiss

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A federal appeals court has upheld a $1 million bias award on behalf of three black or biracial employees of Alabama State University who claim their former superior, who is also black, used the N-word.

The Atlanta-based 11th U.S. Circuit Court of Appeals began with a footnote of apology: “We apologize for the offensive and demeaning language contained in this opinion,” it read, “but such language comes directly from the trial record.” Writing for the panel, Judge Joel Dubina goes on to recount the alleged racial slurs by associate executive director LaVonette Bartley, who is African-American, and alleged sexually inappropriate remarks by the official for whom she worked, Dr. John Knight. Knight, a member of the Alabama State Legislature, was special assistant to the president, acting president and later the chief operating officer of ASU.

The opinion (PDF), issued Tuesday, upheld a collective award of more than $1 million in back pay and lost wages to the three women, who claimed they were subjected to a hostile work environment and retaliation. One of the plaintiffs filed a complaint with ASU's human resources department and then the Equal Employment Opportunity Commission; she was able to transfer to another department. Two others were fired after complaining to human resources. The Montgomery Advertiser has a story noted by How Appealing.

“We are left to wonder who is in charge at ASU,” the opinion said. “Regardless, however, we are unnerved by the apparent acquiescence to, if not outright condoning of, the abusive work environment created by its high-level employees. Such conduct simply has no place in a work environment, especially at a publicly funded university.”

Bartley was accused of telling employees “we don’t dress like N------“ and “I’m sick of this n----- shit.” In one instance, she was accused of calling an employee’s 7-year-old son the N-word, causing him to crawl under his mother’s desk and curl up in the fetal position. Bartley and Knight were also accused of sexual remarks; in one instance Knight allegedly told an employee she was pretty and, according to the employee’s testimony, “he liked his coffee sweet like [her] and the color of [her] complexion.”

Knight was also accused of threatening retribution for employees who cooperated with a complaint filed with the Equal Employment Opportunity Commission. One employee who tried to complain to human resources about Bartley says she was told the office wasn’t taking any more complaints.

The appeals court also criticizes lawyers for the university. In one instance, the court said, they failed to renew a request for severance after discovery, though the trial judge suggested they needed to wait until that time, and then used discovery information to argue on appeal that the trial court had abused its discretion. “A trial judge can only abuse discretion he was given the opportunity to exercise,” the court said.

Dubina’s opinion also said the lawyers waited until just three or four minutes before expiration of a deadline to try to electronically file a post-trial motion for judgment as a matter of law or a new trial. Because the system was on the fritz, the lawyers said, the motion was filed 46 seconds late. Then the lawyers filed notice of appeal while the post-trial motion was still pending, and never filed an amendment or new notice appealing the trial court’s denial of that motion. Nor did they properly appeal the district court's decision to treat the post-trial motion as seeking relief due to excusable neglect, Dubina said.

"In short, ASU missed all applicable deadlines for filing a notice of appeal," the court said. "Accordingly, we do not have jurisdiction to decide these issues."

“We are troubled by ASU’s attorneys’ inability to adhere to court procedures and deadlines,” the opinion concluded. “Timeliness is imperative in the practice of law, and attorneys should not expect sympathy from this court due to their own carelessness.”

The opinion was issued the same day a Manhattan jury awarded $30,000 in punitive damages in a separate case alleging a black supervisor at an employment agency also used the N-word in a four-minute rant about a black worker's professional behavior and work attire. The supervisor had testified the N-word has "multiple contexts" and he had intended to convey love.

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