The nation’s highest court heard arguments in what many are calling a “reverse discrimination” case, in which a straight plaintiff sued her state agency employer for violating federal antidiscrimination law for passing her over for a promotion because she is straight and not gay.

The case gives the justices the chance to scrap a rule that requires “majority” plaintiffs in discrimination cases to adhere to a higher burden of proof than those who claim they were discriminated against for being part of a minority class.

Marlean Ames’s discrimination claim

Marlean Ames claims that she is a victim of sexual orientation discrimination at the hands of her employer, the Ohio Department of Youth Services (ODYS), because she was not hired for a job she wanted. ODYS supervises the confinement and rehabilitation of children and teenagers who commit felonies, and Ames worked for 18 years as an executive secretary before being promoted to program administrator in 2014.

Three years later, Ames began reporting to a new supervisor, Ginine Trim, who is gay. Trim gave Ames a favorable review in a 2018 performance evaluation. However, the next year, Ames applied for — but did not get — a new position as a bureau chief. Shortly thereafter, Ames was removed from her position as program administrator. She was given the option to return to her previous job, but at a salary that would go from $47.22 an hour to $28.40 per hour.

Ames stayed at ODYS and later received a different promotion. The department then hired a gay woman for the bureau chief position that Ames wanted and a gay man for the program administrator position that Ames previously held. Ames claims that she was passed over while less qualified individuals were hired despite their lack of qualifications.

By contrast, ODYS maintains that Ames was demoted after a new governor took office and the agency restructured its operations, and that Ames had difficulties getting along with coworkers.

Ames sued for violation of her rights under Title VII of the Civil Rights Act. She lost at both the district and circuit court levels.

A circuit split on a rule for the majority

The issue in the case is not whether a member of a majority group can ever be the victim of discrimination — they certainly can. Rather, the issue is whether as a member of a majority group, Ames is required to provide additional evidence that a gay plaintiff would not need to prove.

Most federal courts consider discrimination claims in the same way regardless of whether the plaintiff is a member of a majority or minority group. Put another way, the same standards are used to assess racial discrimination against Black and white people or sex discrimination against gay or straight people.

However, some federal circuits, including the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit where Ames’s case proceeded, apply a rule in which “majority” plaintiffs are required to show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority” in order to survive summary judgment.

In its ruling in favor of ODYS, the  Sixth Circuit issued a per curiam opinion in which it said that because Ames is straight, she does need to show “background circumstances.” Donald Trump SCOTUS shortlister Judge Raymond Kethledge penned a separate opinion in the case agreeing with the holding, but slamming the background circumstances rule as one that unfairly, “impose[s] different burdens on different plaintiffs based on their membership in different demographic groups.” Kethledge called the rule a “deep scratch across [the] surface” of Title VII that discriminates in the very way the statute forbids.

Agreement in court

Joe Biden’s administration participated in the case at the briefing stage, in which then-Solicitor General Elizabeth Prelogar said government agrees with Ames that the “background circumstances” requirement is not supported by Title VII’s text and is inconsistent with Supreme Court precedent.

Assistant to the Solicitor General Ashley Robertson argued the case Wednesday on behalf of the Department of Justice, and took the same position.

ODYS argued in briefs that the “background circumstances” requirement is not really an additional element for which plaintiffs are forced to bear the burden, but rather, simply a “method of analysis” to be used by the court.

During the roughly hourlong oral arguments, there appeared to be relative agreement among the justices — and at times, even the opposing litigants.

“At bottom, all Ms. Ames is asking for is equal justice under law,” said attorney Xiao Wang, who argued on Ames’s behalf.  “Not more justice, but certainly not less. And certainly not less because of the color of her skin or because of her sex or because of her religion.”

“We’re in radical agreement today on that, it seems to me,” Justice Neil Gorsuch commented at one point in the proceedings.

Ohio Solicitor General T. Elliot Gaiser, who argued in defense of the Sixth Circuit’s decision, said that, “Ohio agrees it is wrong to hold some litigants to a higher standard” because of their identity and that plaintiffs like Ames “should have the same burden” as a gay plaintiff who likewise alleged discrimination.

Justice Elena Kagan noted that the topics on which Gaiser appeared to debate were about issues that have “nothing to do with” the central question in Ames’s case.

The justices teed up the case for a relatively narrow ruling in Ames’s favor that potentially reiterates some of what the Court said in the 2022 case that eradicated affirmative action in college admissions. In the case, Chief Justice John Roberts wrote that equal protection is “universal in its application.”

A ruling in Ames’s favor by the justices, however, would not mean that she wins her discrimination lawsuit against ODYS. Rather, it would likely mean that her case is revived such that she would have the opportunity to proceed and have the chance to prove her allegations.

You can listen to Wednesday’s full oral arguments here.

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A Utah teen is dead after two men allegedly chased her down in her truck and opened fire on her and her friend, ultimately shooting at her 12 times.

Aldric Felipe, 21; Ethan Galloway, 23; Michael Hess-Witucki, 23; and Matthew Sorber-Petrie, 22, all appeared in court on Tuesday, days after they allegedly took part in the Jan. 17 murder of KayLee Dutton, 17. Two of them — Hess-Witucki and Galloway — have been charged with murder and 12 counts of felony discharge of a firearm. All four suspects were charged with obstruction of justice in connection to the alleged murder as well as possession of a controlled substance.

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3. Judge allows malicious prosecution claim…

Law Firms

Judge allows malicious prosecution claim in attorney’s countersuit against McElroy Deutsch

By Debra Cassens Weiss

October 2, 2024, 2:48 pm CDT

A lawyer who countersued McElroy, Deutsch, Mulvaney & Carpenter for defamation and retaliation may add a malicious prosecution claim to the action, a New Jersey judge has ruled.

Lawyer Nicole Alexander, McElroy Deutsch’s former director of business and professional development, countersued after the law firm filed a lawsuit against her and her husband, former McElroy Deutsch chief financial officer John Dunlea. MeElroy Deutsch accused the couple of “business-card abuse” and Dunlea of paying himself unauthorized bonuses.

Law360 covered the Sept. 27 decision and spoke with Jeffrey Pollock of Fox Rothschild, who is Alexander’s lawyer.

“It may be great sport for McElroy to destroy a former employee’s life, but this claim was wrongful when it was filed, and it is tortious to maintain it,” Pollock told Law360.

Dunlea pleaded guilty in May to embezzling more than $1.5 million from the firm over a six-year period and failing to pay more than $22,000 in state income taxes. He was sentenced to five years in state prison in July.

Alexander has said she was unaware of wrongdoing. She filed a separate suit arguing that the firm engaged in marital-status discrimination because it fired her based on her marriage to Dunlea. The two cases have been consolidated, Law.com previously reported.

See also:

Former McElroy Deutsch CFO faces criminal charges for alleged $1.5M embezzlement

SACRAMENTO, Calif. – The Bureau of Land Management reminds claimants who wish to retain mining claims on public lands through the 2025 assessment year to pay a Maintenance Fee or file a Maintenance Fee Waiver Certification (Small Miner’s Waiver) on or before Tues., Sept. 3, to prevent the mining claim from being declared forfeit and void.

Courtesy Mining Claims Packets are available online or upon request through the California State Office, Information Access Center (Public Room). The BLM will not be mailing packets, unless requested.

The Maintenance Fee for a Lode Claim, Tunnel Site, or Mill Site is $200 per claim or site. For Placer Claims only, the fees are $200 for every 20 acres or portion thereof. Claimants who filed a Small Miner’s Waiver in 2023 for the 2024 assessment year will be required to file an Affidavit of Annual Assessment Work form, including the required $15 assessment fee per claim on or before Monday, Dec. 30.

The California State Office Public Room is open to in-person visits; however, the BLM encourages submission of mining claims by mail or online.

• Mail: Checks must be pre-printed showing the address, with recommended Certified Mail being the preferred method of shipment, to Bureau of Land Management-CASO, ATTN: Accounts/Mining, 2800 Cottage Way, W-1623, Sacramento, CA 95825. Payments or filings by mail must be postmarked on or before Tues, Sept. 3.
   
• Phone: For Maintenance Fees Only: Call 916-978-4400 to pay with a credit card by telephone.
   
• Online: Visit the BLM’s Mineral & Land Records System (MLRS) payment portal to make payment with a credit card. Note: The Small Miner’s Waiver cannot be filed on MLRS due to original signatures needed; please submit the Small Miner’s Waiver in-person or through the mail.
   
• In-person: claimants who wish to make filings and payments via mail or in-person must make their filing to the proper BLM State Office for the state where the mining claims or sites are located. Check the website for times and telephone numbers for BLM Public Room hours.

For information on the filing deadlines, Maintenance Fees, Maintenance Fee Waiver Certifications, or Federal Land Policy and Management Act filings (Affidavit of Annual Assessment Work or Notice of Intent to Hold) please call the Information Access Center (CA Public Room) at 916-978-4400 or visit the BLM California Public Room website.

To review mining claim fees, please visit the website or the Federal Register. Please note the Federal Register notice states the fees are due on or before Sept. 1, 2024; however, that date is moved out to Sept. 3 due to the first being on a Sunday and Tuesday, Sept. 2, is a federal holiday.

A woman in Texas has been sued in civil court by Dallas Cowboys quarterback Dak Prescott after the famous football star claimed the defendant and her lawyers are attempting to extort him with false accusations that he sexually assaulted her six years ago.

The 14-page complaint, filed in Collin County, Texas, against resident Victoria Baileigh Shores and her attorneys Bethel Zehaie and Yoel Zehaie slams a letter they sent to him in January.

In the letter, which is attached to the civil lawsuit filed Monday, Shores alleged that she and Prescott became acquainted through the social media app Snapchat and that he “invited her to hang out” in February 2017 along with members of his “entourage” and a few other “additional female friends.”

Shores said it was during this encounter that Prescott first got into a black SUV with her and other members of his crew.

Then, her attorneys wrote on Jan. 16:

You directed Ms. Shores to the further back row so you could all head to [redacted]. On the ride to [redacted], you exposed your genitalia. Ms. Shores did not want to engage in sexual intercourse and made sure to verbalize these wishes.

Afterwards, the car came to a stop at your destination. Once this occurred, everyone got out the car except you, and you further signaled to one of your entourage members to leave you and Ms. Shores alone.

It was at this point that Shores alleges Prescott “used physical force and sexually assaulted her … by penetrating her vagina against her consent.”

Buried in a lengthy filing opposing Donald Trump’s motion to dismiss Espionage Act charges for unconstitutional vagueness, special counsel Jack Smith said the former president cannot hide behind “Q clearance” assertions to undo a count for alleged willful retention of a “nuclear weaponry” document at Mar-a-Lago.

In their February motion to dismiss on grounds of unconstitutional vagueness, Trump lawyers singled out count 19 as a particular affront to a defendant they claimed had a “‘Q’ clearance” in the mind of the Department of Energy.

“As explained in the Defendants’ motions to compel discovery, after the Superseding Indictment was filed, the Special Counsel’s Office disclosed Energy Department records indicating that President Trump maintained the ‘Q’ clearance that is relevant to the document charged in Count 19 during the time period alleged in that Count,” the defense asserted. “Whatever §793(e) means—and that much is unconstitutionally unclear—the Authorization Clause does not prohibit possession of a document by the holder of a valid security clearance, and someone who is cleared to the appropriate level cannot willfully violate the statute.”

Recall: The nineteenth willful retention of national defense information count in the Trump indictment relates to an “Undated document concerning nuclear weaponry of the United States,” with a date of offense running from Joe Biden’s inauguration as president until Aug. 8, 2022, when the FBI searched Mar-a-Lago.

Jack Smith said Thursday, among his numerous responses on various issues, that the Trump team’s argument as to count 19 “lacks merit” — and for “several reasons.”

More Law&Crime coverage: Jack Smith hammers ‘fundamentally wrong’ Trump and Stephen Miller-backed arguments that the Presidential Records Act should make Mar-a-Lago prosecution go away

The first reason, Smith said, is that the indictment “properly tracks the statutory language and charges that Trump possessed the document charged in Count 19 without authorization and willfully retained it.” The next reason — and the special counsel said he was prepared to show this at trial — the clearance-related discovery the Trump team referred to only tends to confirm that his “Q clearance” disappeared “as a matter of law” at noon on Inauguration Day in 2021, regardless of what the Department of Energy’s records have to say:

Second, at trial the Government will show that the evidence identified by Trump shows that he did not possess a security clearance after the end of his term in office. As reflected in records produced in discovery and cited by Trump, “as a matter of law, the Q clearance granted to Donald J. Trump on February 9, 2017, terminated, by the conditions of its original grant, upon the completion of Mr. Trump’s term as President of the United States at 12:00 PM on January 20, 2021.” ECF No. 262, Ex. 59 at USA-01116848. Whether or not the Department of Energy’s (“DOE”) records were up to date or continued to reflect an active Q clearance after Trump’s term had ended, it has no bearing on Trump’s actual entitlement to access documents requiring a Q clearance.

The special counsel emphasized that “there is no legal basis to dismiss” the count because “even if Trump possessed a Q clearance at any time after his Presidency (which he did not), that would still not entitle him to possess the document charged in Count 19 at Mar-a- Lago[.]” Notably, the defense came up with “no evidence” in support of the notion that the former president was “aware at any time” of how the Department of Energy internally viewed his “Q clearance” status, Smith concluded.

Read the opposition here.

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3. Law prof presses male sex-bias allegations…

Law Professors

Law prof presses male sex-bias allegations in new suit after federal judge tosses his Title IX claim

By Debra Cassens Weiss

February 7, 2024, 10:42 am CST

Updated: A professor at the University of Denver Sturm College of Law has filed a new lawsuit against the school stemming from a former associate dean’s alleged comments in 2016 that she didn’t want to see white men teaching anymore in the trial advocacy program that he headed.

Law professor David Schott alleges in his Feb. 2 suit that he notified the law school dean of the alleged comments by Viva Moffat, the associate dean of academic affairs. In the years that followed, he was subjected to a “steady barrage of adverse actions and false statements,” the suit contends.

Law360 has coverage.

The adverse actions culminated with the law school’s failure to renew Schott’s seven-year contract, which should have taken effect in the 2020-2021 school year. As a result, the suit says, Schott was relegated “to the status of an at-will employee and [deprived] of the procedural protections to which he would be entitled as a member of DU’s long-term contract faculty.”

Schott alleges breach of contract, defamation, gross negligence, violations of Colorado wage law and sex-based wage discrimination under the Equal Pay for Equal Work Act.

Schott filed the suit in state court in Denver less than a month after a federal judge tossed his prior suit alleging that his teaching contract was not renewed because he is a man.

The Denver Post and Bloomberg Law via the TaxProf Blog covered the Jan. 4 dismissal of that suit, which alleged retaliation and sex discrimination under Title IX of the Education Amendments of 1972.

The federal judge ruled Jan. 4 that Schott had not shown a “materially adverse” action because his employment had not significantly changed. Schott “has not sought medical treatment, has not been fired, his pay has not been reduced, and he has received merit raises from the university in the years following the 2016 allegations and his contract nonrenewal,” wrote Senior U.S. District Judge Christine M. Arguello of the District of Colorado.

Arguello declined to rule on 10 other claims in the federal suit because they involve state law, rather than federal law, according to the Denver Post. Schott’s lawyers have filed notice that they will appeal Arguello’s decision.

Both suits cite comments by Moffat, who allegedly told Schott that she wanted to “see friendly faces, faces of minority women, preferably African-American women.” Schott’s new suit alleges tortious interference with a contract by Moffat.

Shortly after Moffat’s comments, she informed Schott that there had been reports of gender discrimination in the Center for Advocacy at the University of Denver Sturm College of Law. Those reports were “utterly unfounded” according to the new suit.

One unfounded allegation involved a female professor from another law school who told four female students that they sounded “b- – – -y” during a summer program in Scotland, the suit says. The other involved an allegation that a female student was asked whether she could make the required time commitment when she tried out for for the law school’s national trial team. Everyone was asked this question, the suit says.

Schott requested a formal hearing on the allegations, but it was denied. He was later presented with a “statement of expectations” with five action items that he must carry out because of the gender discrimination allegations.

Schott developed a “plan of action” that substantially complied with the statement of expectations, and it was fully carried out, the suit says. He heard nothing more about his plan from university officials, until the allegations were later used to improperly deny renewal of his teaching contract, Schott’s suit says.

Before the contract renewal, Moffat allegedly reported that she had heard from female students about the “b- – – -y” comment, as well as hearing concerns that female students were asked about personal relationships, one female student was asked whether her husband approved of her participation on the advocacy team, and one student thought that she had to choose between the team and her academic/legal future.

The allegations about the “b- – – -y” comment and husband approval were already part of the Title IX complaint, which was dismissed without a finding of wrongdoing, the suit says. The other allegations were false or made with reckless disregard of their truthfulness, the suit says.

Schott also claimed that he reached a verbal deal with the law school to teach additional classes in exchange for a year in which he would be relieved of his teaching duties, but the school did not live up to the agreement after he increased his teaching duties.

Beginning in 2021, Scott’s annual salary was $115,609, which included his base salary and a stipend for working as the director of the school’s Center for Advocacy. The amount is less than the compensation received by female practice professors, the suit says.

Updated Feb. 7 at 3:40 p.m. to report that law professor David Schott’s lawyers have filed notice that they will appeal Senior U.S. District Judge Christine M. Arguello’s decision.

Despite losing big at the appeals court level, Donald Trump has signaled an intention to press forward with his immunity defense in at least one of the multiple criminal prosecutions facing the former president.

Lawyers for Trump filed a motion to adjourn certain pretrial motion deadlines on Tuesday in the Florida case over the former president’s allegedly wrongful retention of documents in his Mar-a-Lago home. They have asked U.S. District Judge Aileen Cannon, a Trump appointee, to allow Trump, along with co-defendants Waltine Nauta and Carlos De Oliveira, to file evidentiary motions within one month of Cannon’s decision on motions to compel discovery currently before her.

Buried within the justification for the request is an indication that Trump will continue to pursue his “immunity” claim, despite having been repeatedly told that the defense doesn’t stand up to legal scrutiny.

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3. After sanctions threat, Trump lawyer in $83.3M…

Trials & Litigation

After sanctions threat, Trump lawyer in $83.3M defamation case drops conflict claim stemming from BigLaw overlap

By Debra Cassens Weiss

January 31, 2024, 10:24 am CST

A lawyer for former President Donald Trump is backing away from a claim that an opposing lawyer and the judge in a defamation case involving writer E. Jean Carroll had an undisclosed conflict of interest.

Trump lawyer Alina Habba had told the New York Post she will appeal an $83.3 million verdict against Trump partly because the plaintiff’s lawyer and the judge both worked at Paul, Weiss, Rifkind, Wharton & Garrison in the 1990s.

Habba said in a Jan. 30 letter to U.S. District Judge Lewis Kaplan of the Southern District of New York she is now satisfied that there was no “mentor-mentee relationship” between Kaplan and opposing lawyer Roberta Kaplan, who are not related, when they worked at Paul Weiss.

Law360, Reuters and Bloomberg Law have coverage.

Habba had raised the issue in a prior letter, leading Roberta Kaplan to respond that the accusation of such a relationship was “utterly baseless” and she reserved the right to seek sanctions if Habba continues her “false accusations of impropriety.”

“From the very start of the recently concluded trial, Donald Trump and Ms. Habba have pushed a false narrative of judicial bias so that they could characterize any jury verdict against Trump as the product of a corrupt system,” Kaplan wrote in her own letter to the judge.

Jurors awarded $83.3 million to Carroll on Friday in the writer’s second defamation lawsuit against Trump for denying her claims of sexual assault in a department store dressing room during two time periods—before October 2022 and after a defamation verdict in May 2023 in the first case. Jurors awarded Carroll $18.3 million in compensatory damages for defamation and $65 million in punitive damages.

Jurors in the first case found that Trump had sexually abused Carroll but did not rape her. Carroll was awarded $5 million in damages in the prior case partly for the sexual assault under a law giving survivors a one-year window to sue for time-barred claims and partly for defamation stemming from a denial by Trump in October 2022.

Habba still plans to appeal both verdicts. Habba said in her first letter to Kaplan his “overtly hostile” treatment of Trump and his “preferential treatment” of Carroll’s lawyers would be an issue in her appeal.

Another issue in the second case could be whether the punitive damages are excessive under the due process clause.

See also:

“Judge chastises Trump in defamation trial, lectures lawyers on procedural rules, says ‘this is not a tag-team lawyering’”

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3. Does Tide mislead consumers with ’64 loads’…

Consumer Law

Does Tide mislead consumers with ’64 loads’ claim? Judge thinks not

By Debra Cassens Weiss

January 4, 2024, 12:54 pm CST

A federal judge in New York criticized consumer lawyer Spencer Sheehan as she tossed his proposed class action lawsuit claiming that Tide misleads consumers with labels promising to wash “64 loads.”

U.S. District Judge Cathy Seibel of the Southern District of New York on Tuesday dismissed the amended suit by plaintiff Aja Adeghe, who said the Tide laundry detergent that she bought did not contain enough detergent for 64 full-size loads. In reality, Adeghe alleged, there is only enough Tide for 32 full-size loads.

Law360 has coverage.

The term “load” is ambiguous, Seibel said in her Jan. 2 decision. The judge noted that there is a diamond after the word “loads,” leading to more information on the back label. At that location, Tide discloses that 64 loads refers to 64 medium loads, as measured by the lowest bar on the cap.

Adeghe had sued for alleged violations of New York business law, state consumer fraud laws, breach of warranty and unjust enrichment. Seibel tossed all the claims and refused to allow Adeghe to file an amended suit.

Seibel said Sheehan, one of the lawyers representing Adeghe, “regularly brings such claims and then withdraws them” after a motion to dismiss is filed.

“The court again questions how counsel can continue to bring such claims in good faith, as he plainly knows he will be unable to justify them,” Seibel wrote.

Referencing prior suits, Seibel said Sheehan “continues to plead in an insufficient fashion, when a modicum of legal research would avoid the problem.”

At the conclusion of her opinion, Seibel quoted with approval from a decision by a federal judge in the Northern District of New York.

That judge said: “Courts around the country have been inundated with a seemingly endless supply of trivial (bordering on frivolous) lawsuits, asking the courts to read the labels of consumer goods in manners that strain credulity or to simply ignore other relevant language provided on the labels. The case before the court here is one of many that should give pause to Mr. Sheehan and serve as a reminder that context matters and that a label should be read in its entirety.”

Sheehan didn’t immediately reply to an ABA Journal email and voicemail seeking comment.

See also:

“Food Fight: Do lawsuits challenging product labels benefit consumers?”

“Food labeling lawyer’s ‘warehouse of complaints’ are ‘not fit for public consumption,’ judge says”

“Lawyer has filed nearly 100 consumer lawsuits over vanilla labeling”