• Judging Sotomayor: What's All The Fuss About?
  • July 27, 2009 | Author: Brian M. Molinari
  • Law Firm: Epstein Becker & Green, P.C. - New York Office
  • The news of the moment shows a sharp division on Judge Sonia Sotomayor's fitness for the Supreme Court with some opining that she will be terrific and others warning that she "plays the race card" and will be a disaster. With six years as a federal district judge and now serving as federal appellate judge for the Second Circuit since 1998, Sotomayor has participated in many decisions in the area of labor and employment law. Upon reviewing her decisions (already done excellently by ScotusBlog), one cannot readily proclaim that she is either "pro-employee" or "pro-employer". To be sure, this is the sign of an impartial judge.

    While a district judge, Judge Sotomayor issued an injunction which effectively ended the 1994 Major League Baseball strike by the players. NLRB v. Major League Baseball, 880 F. Supp. 246 (S.D.N.Y. 1995), which was affirmed by the Second Circuit Court of Appeals, 67 F.3d 1054 (2d Cir. 1995). MLB players filed unfair labor practice charges under the National Labor Relations Act (NLRA) against the team owners, alleging bad faith collective bargaining. The National Labor Relations Board (NLRB) sought an injunction pursuant to Section 10(j) of the NLRA to force the owners to restore the status quo ante and bargain with the players over proposed changes to the expired collective bargaining agreement while the issue was being litigated. Sotomayor granted the NLRB's application, and issued the injunction, ultimately setting the stage for the MLB players to end their strike.

    Does this mean she is blatantly "pro-union"? I think it benignly signals that Sotomayor is simply an avid baseball fan who applies the proper procedural standards for issuing injunctive relief.

    In Ricci v. DeStefano, 530 F.3d 87 (2d Cir. 2008), Judge Sotomayor, along with two other Second Circuit judges, upheld a ruling dismissing firefighters' claims of reverse discrimination. In Ricci, one Hispanic and 17 white firefighters sued the City of New Haven claiming that the City committed reverse race discrimination because they passed a promotional test, but were not promoted. The City refused to certify the results of the test on the grounds that no African American candidates scored high enough to be promoted. The Supreme Court recently rejected Judge Sotomayor's 2008 decision as I discuss in my blogspot Ricci v. DeStefano: Supreme Court Requires Employers to Show a "Strong-Basis-In-Evidence" That It Will Suffer Disparate Impact Liability.

    The Ricci case highlights the tension inherent in civil rights laws, viz., affirmatively discriminating against one race to provide opportunity for another, perhaps signaling where Sotomayor stands on that issue. The per curiam decision to which Sotomayor was a signatory, despite upholding dismissal of Ricci's reverse discrimination claims, offered this explanation:

    "In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected."

    Although some, such as Linda Chavez, the President of the Center for Equal Opportunity, have taken Sotomayor to task on her handling of Ricci, it appears that the Second Circuit was blindly following prevailing law, notwithstanding the consequential and inconvenient unfairness under Equal Protection principles. In any event, based on a review of some selected decisions below, Sotomayor, in my view, has a case-by-case flexible approach to employment law cases without stubbornly clinging to any rigid ideology:

    • Bartlett v. N.Y. State Bd. of Law Exam'rs, 970 F. Supp. 1094 (S.D.N.Y. 1997): Sotomayor, in a broad reading of the Americans with Disabilities Act's definition of a "disability," held that a law student with dyslexia was substantially limited in the major life activities of reading and writing and thereby protected by the ADA.
    • Norville v. Staten Island Univ. Hosp., 196 F.3d 89 (2d Cir. 1999): After a black employee returned to work after disability leave, she claimed she suffered discrimination based on her race, age, and disability. Sotomayor dismissed the employee's claim that her employer did not give her the same accommodations for her disabilities that were provided to white employees, and held that the employer's reasons for termination were not a pretext for age discrimination.
    • Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000): Sotomayor upheld dismissal of retaliation and discrimintaory termination claims, but allowed a hostile work environment claim brought by a female Hispanic employee to proceed, despite a district court's earlier grant of summary judgment for the employer. Perhaps in a liberal reading of the complaint that did not expressly refer to "hostile work environment harassment," the court held that this deficiency was not fatal because "the essential elements of the charge do appear in the complaint." We should at least take comfort in Sotomayor's rejection of the Hispanic employee's claim that "slapping" a co-worker in response to harassment is "protected activity" to support a retaliation claim.
    • Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001): Sotomayor reversed the district court's judgment as a matter of law. As a result, the jury verdict in favor of a female police officer alleging hostile work environment and retaliation claims was reinstated. Sotomayor's decision is a lengthy recap of the facts that in her view, could justify a reasonable jury to find that the female officer had been subjected to a hostile work environment based on her sex and had been retaliated against for complaining.
    • Williams v. R.H. Donnelley Corp., 368 F.3d 123 (2d Cir. 2004): An African-American woman alleged that she was not granted promotions or a transfer to another position because of her race and sex. Sotomayor held that the employee failed to prove she was qualified for the positions sought; and that the employer's decision not to create a position for her in a different office location was not discriminatorily motivated.
    • Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006): Sotomayor issued a dissenting opinion, arguing that an Age Discrimination in Employment Act (ADEA) claim should have been dismissed because the claimant was a minister who sued a religious institution. In 2008, a different panel of the Second Circuit suggested that Sotomayor's dissenting opinion in Hankins was actually the better-reasoned one. See Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008) cogently summarized by Daniel A. Schwartz, Esq.
    • Singh v. City of New York, 524 F.3d 361 (2d Cir. 2008): Sotomayor affirmed dismissal of wage claims brought by fire alarm inspectors against the City of New York under the Fair Labor Standards Act.
    • White v. Conn. Dep't of Children & Families, 2009 U.S. App. LEXIS 10327 (2d Cir. May 15, 2009): Sotomayor affirmed summary judgment in favor of an employer where the employee was not qualified to be a social worker because she could not lift more than ten pounds, an essential function of the position, and the plaintiff did not demonstrate that the adverse employment action occurred because of discrimination.
    • Sengillo v. Valeo Elec. Sys., 2009 U.S. App. LEXIS 10519 (2d Cir. May 18, 2009): Sotomayor affirmed summary judgment in a case of alleged ADEA retaliation where the employee failed to show he engaged in protected activity, and even if a prima facie case had been made, he failed to rebut the legitimate nondiscriminatory reason proffered by the employer, viz., the employee's poor work performance.
    • Blake v. Potter, 2009 U.S. App. LEXIS 11025 (2d Cir. May 26, 2009): Sotomayor affirmed summary judgment for the U.S. Postal Service against an employee claiming a hostile work environment but who did not produce evidence it was on account of her race or sex, and, finding that even if all the incidents had occurred as alleged, they were not "sufficiently pervasive to alter the conditions of her employment."

    There has been much prognostication about Judge Sotomayor's potential for unbalanced sympathy, particularly that she may tend to generously accept factual allegations in female and minority discrimination/harassment cases erring on the side of letting a jury decide. I believe, however, that employees and employers alike should expect a fairly neutral approach from Judge Sotomayor as a Supreme Court justice.