March 5, 2012
(Today's date)
January 28, 2012
(Original date)
In July, 2009, black Harvard University professor Henry Gates, Jr., was arrested at his Cambridge, Massachusetts home by a white local police officer, Sgt. James Crowley, who was responding to a report of men breaking and entering the residence.
According to Wikipedia, "The arrest occurred just after Gates returned home to Cambridge after a trip to China to research the ancestry of Yo-Yo Ma for Faces of America. Gates found the front door to his home jammed shut and with the help of his driver tried to force it open. A local witness reported their activity to the police as a potential burglary in progress. . . . Gates was arrested by Crowley (in his (Gates) own home), and charged with disorderly conduct (after Gates had identified himself and illustrated that it was his home)." The charges were later dropped.
Subsequently, President Barack Obama, after learning of the incident, criticized the arrest as deficient police reaction and/or performance. He later reneged, after opposition law enforcement reaction to his comments.
Wikipedia states "On July 24, Obama invited both parties to the White House to discuss the issue over beers, and on July 30, Obama and Vice President Joe Biden joined Crowley and Gates in a private, cordial meeting in a courtyard near the White House Rose Garden; this became known colloquially as the "Beer Summit".
So, even though the Gates-Crowley encounter had racial implications and could have resulted in a federal civil rights lawsuit by Gates charging racial discrimination and/or racial profiling, President Obama convinced Gates not to file a lawsuit, and the matter was resolved (only in the sense that a lawsuit was not filed) through the "beer summit" or settlement. In actuality, the circumstances of the Gates-Crowley encounter, especially while happening at Gates own home, is the very type of case that should have gone to trial, on behalf of other similarly-situated black male professionals, to prove whether there was racial discrimination and/or profiling exercised by Crowley in the encounter and arrest, and to demonstrate "how" racial discrimination is exercised against black male professionals in similar situations.
Nevertheless, in most other discrimination cases, especially employment discrimination cases (with the "prima facie case" distinction pointedly emphasized), a "beer summit" or settlement should be the initial and focal point of resolution of the cases, as a matter of course. "The Equal Employment Opportunity Commission (EEOC) has recently released its charge statistics for fiscal year 2010 (which ended September 30, 2010). The EEOC enforces federal laws prohibiting employment discrimination, which includes Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Age Discrimination in Employment Act, the Americans with Disabiolities Act, and the Genetic Information Nondiscrimination Act. Not surprisingly, these statistics reveal a record-breaking number of charges of workplace discrimination filed against private sector employers in 2010. The number of charges filed hit 99,922, an unprecedented number which amounts to a more than 7% increase over the previous year's filings." "Discrimination Charges Against Employers Hit Record High in 2010", The National Law Review (website), January 20, 2012. The article concentrated on private sector employer statistics, but, clearly, government employers had its share of discrimination charges as well, and whatever the number, those charges would only add to the increase of discrimination cases and/or charges.
Yet, the Obama Administration clearly does not have a "beer summit" or settlement policy when it comes to resolving the charges or complaints of federal sector employees. At least not in my experience with federal employee cases in the administrative process. To the contrary, Agency counsel seem intent on taking the cases to hearing (with periodic stops at the summary judgment stage), even when it is clear, on the merits of the case (with the evidence against the Agency), that settlement should at least be explored. I believe Agency counsel act this way, in part at least, because they believe that an administrative judge will rule in their favor at the end of the day, regardless of the evidence against them. And, in many cases, if not most, its probably true. This attitude is even more counterproductive during the administrative stage of the complaint process (as opposed to the federal court stage) because it is the administrative stage that is specifically set aside for the Agency (and the Obama Administration) to resolve discrimination complaints itself without formal and subsequent court involvement. That is, the federal administrative aspect of discrimination complaint processing is not only an opportunity for the discrimination complainant to "exhaust" his or her administrative remedy, but it is also an opportunity for the federal agency to exhaust its source of remedy and end the case or litigation, thereby saving both the Complainant and the government or taxpayers additional time and expense on a case that should have been resolved through a "beer summit". Of course most working class federal employees are not in the same financial or economic class as Henry Gates, so they would not be inclined to end the beer summit without appropriate relief for the damage caused by discriminatory conduct, the way Gates did at the original "beer summit". But that should be expected (even for some federal employees who are financially secure). However, a beer summit can also end the way the Gates-Crowley summit ended, if the evidence of discrimination simply is not there (simply because two individuals involved in a dispute are of different races is not sufficient evidence, alone, of discriminatory intent). But, I think the evidence was sufficient in the Gates case. Once Gates stated, "this is my home" and produced "some" evidence to support it, the matter should have ended and the police should have been on their way. But, it didn't end. Gates was arrested, in his own home, for breaking in his own home.
So, does agency counsel attitudes against settlement together with an indication that some administrative law judges have a tendency to rule in favor of an agency, despite the evidence, create an Obama administrative policy against settlement? If so, that would be a contradiction of Obama's "beer summit" action and/or philosophy.
President Obama's beer summit philosophy developed out of a racial discrimination case. Nevertheless, just this week, in his State of the Union address, Obama mentioned employment discrimination against women, i.e., "equal pay for equal work", but he failed to mention employment discrimination against Black Americans, or other minorities; and this is in the context of the aforementioned "record-breaking number of charges of workplace discrimination" statistics identified above. Although there was no breakdown of categories of types of discrimination, I would venture to bet that most of those cases involve race, gender, and retaliation, with comparatively more race discrimination and retaliation cases (comparatively meaning the number of race discrimination cases, especially involving Black Americans, compared to the race population as a whole, e.g., the Black American population) than others. But, I'm guessing, and I could be wrong. In any event, Obama's failure to mention employment discrimination against minorities in his State of the Union address adds fuel to the fire regarding whether he has a philosophy of non-settlement for the vast majority of employment discrimination cases, which appear to be non-equal pay cases. Moreover, equal pay is one thing, but no pay (based on not being hired because of your race, gender, ethnicity, or religion; or being fired for the same reasons) is another, and worst. So, once Obama decided to speak on employment discrimination, he could not fairly mention equal pay without mentioning no pay, without appearing to be indifferent to the needs of racial minorities.
To illustrate what should have been a beer summit case that appear to have become engulfed in the non-settlement philosophy, I will for the next few weeks discuss a case that I am litigating presently. It is pending appeal before the EEOC in Washington, D.C.. I will briefly discuss the facts of the case and some of the evidence in the case. And, ultimately, I will give my opinion why the case was(is) a beer summit case that should have at least entered serious settlement negotiations before and, especially, after the hearing, but for a non-settlement policy. Since I am a Complainant's counsel, I invite the public to review the public record if my view of the facts or evidence is questioned. I will provide the EEOC Appeal case number for the case at the time the case is discussed.
The case is:
Ruth Jennings v. Janet Napolitano, a race discrimination and retaliation and failure to hire case brought by a Black American woman against the Department of Homeland Security and its Citizenship and Immigration Services unit.
**I will also discuss another case that is in the pre-hearing stage. At this point, I will designate the case: Jane Doe v. Janet Napolitano, a sexual harassment case brought by a Hispanic woman against the same Department of Homeland Security. One supervisory manager involved in the Jennings case is also involved in this case. All the facts and/or evidence revealed for the case is true and real. And, the true name of the Complainant will be revealed at a later time.
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1 comment:
It is always a great asset when it comes to one versed and elite in teaching and educating a population, who are academically minded, especially, someone who is of such high esteem as DR. Henry Louis Gates Jr. Certainly I would know that because my father, who has now departed, was himself a headmaster.
Regardless to say, I am rather fascinated by the fact that such a person as Prof. Gates who was most certainly a well known public figure, even through their broadcasting service, did not appear to have any great significant to the like of Sgt. James Crowley; or was it more an inferiority complex spasm which stiffled his ego. Or even some inherited genetic abnormalities, which brought into play the ideal which makes them believe that everyone is a criminal.
If a burglar sees a police officer his reaction would instantly become obvious, in which case a trained officer who deals with fighting crime, would have had some training by a criminologist at the police training academy, and to know the signs to look for.
In which case, also, based on the fact that the neighbor who allegedly reported the incident, Sgt Crawley account of the event surely suggested he could have erred when he first encounter Lucia Whalen at the scene, as he denied his reported account of what she said, and in which case the 9-1-1 recording clarified that she was indeed telling the truth.
Personally, as I always say, perhaps there is no integrity amongst professionalism, especially when they are not in the same league. Therefore I can understand why President Barak Obama intervenes. Although it has been resolved, the opinion which General Powel offered no doubt was the logical choice at the time.
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