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A former oilfield company worker whose supervisor allegedly harassed him because of his race has scored a surprise victory at the 10th U.S. Circuit of Appeals as two judges, turning against a colleague, ruled that he has a triable discrimination case.
Three-member appellate panels rarely withdraw a unanimous opinion, let alone come to a different conclusion second time around. But that is exactly what has happened in the case of Lewis Herrera, who sued Lufkin Industries after quitting his job as a service center manager in Casper, Wyo.
U.S. District Court Judge Paul G. Cassell of Utah, sitting by designation, wrote for a 3-0 majority in May that Herrera had failed to present sufficient evidence of a hostile work environment to survive summary judgment -– even though the supervisor, Buddy Moore, allegedly referred to him repeatedly as “the fucking Mexican.”
The opinion emphasized the “general atmosphere” at Lufkin, noting that “Vulgarity and other socially unacceptable behavior that might lead to termination in a typical office setting were commonplace in the oilfields.”
But without explanation, the 10th Circuit withdrew that decision the day after issuing it. And now Chief Judge Deanell Reece Tacha and Senior Judge David M. Ebel have switched their votes and broken with Cassell, a controversial appointment of George W. Bush.
Although a “close question,” Herrera “has established a genuinely disputed issue of fact as to the pervasiveness of the racially-charged hostility in this work environment sufficient to be entitled to have a jury decide the issue,” the new majority opinion said.
The “fucking Mexican” comments, Ebel wrote, “did not happen just once or twice. Rather, there is evidence that Moore made such comments every two to three days.”
In a dissent, Cassell again cited “the coarse environment that prevailed at Lufkin” with profanity and ethnic jokes the norm. Ebel, however, concluded that
Herrera has presented evidence of racially derogatory treatment, well beyond being sworn at and joked with, that was specifically directed at Herrera because of his national origin.
Lufkin could still petition for en banc review. But the panel majority has made the right call here in allowing a jury to decide whether the “rough-and-tumble” oilfield environment cancels out the evidence of racial hostility.
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UPDATE
Court records show the case was dismissed Aug. 8, 2007 after the parties reached a settlement.
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By Matthew Heller
1/5/07
Taking time off from flashing her privates and "falling asleep" in nightclubs, Britney Spears has appealed the dismissal of her sex-video defamation lawsuit against Us Weekly.
A Beverly Hills judge ruled in November that the pop tart could not sue the magazine for reporting that she had made a sex tape with now-estranged husband Kevin Federline. Spear has insisted the tape does not exist and claimed that the report wounded her reputation as a "married woman who is enjoying her life with husband and baby.”
“Given contemporary standards of defamation, which evolve over time, the court cannot find that the statements made in the Us Weekly article about this Plaintiff are defamatory as a matter of law,” Superior Court Judge Lisa Hart Cole concluded in granting Us Weekly's anti-SLAPP motion to strike.
It's not clear yet what the grounds for appeal are, but Findlaw columnist Julie Hilden has argued that the judge “wrongly slighted” Spears in part of her decision.
Us Weekly also reported that Spears and Federline "acted goofy" in their lawyers' office when discussing the possibility of the video's unauthorized public release. Hart Cole did not, though, examine whether that statement was defamatory, saying only,
It is clear that Plaintiff did not bring this lawsuit because she was falsely accused of acting goofy.
According to Hilden, the “acting goofy” claim was “far from legally baseless” as it suggested that Spears “thought being transformed from pop star to porn star was no big deal. Such a claim can plainly be damaging.”
But Hilden wrote that column before Spears ended the married life she obviously had not been enjoying and embarked on her experiments in public nudity.
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Other Britney Case Sources
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