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Grumpy Posner Removes Judge From Case for Grumpiness, Errors

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By William Peacock, Esq. on November 24, 2014 3:29 PM

Judge Richard Posner is known for his way with words, especially his ability to criticize deserving parties in a caustic, humorous, and legally sound manner. So on first glance, it may seem strange that he'd criticize a district court judge for his "tone of derision that pervades his opinion" before reassigning the case on remand.

Except there is one big difference: Posner's opinions stand on solid ground. U.S. District Judge Milton Shadur's opinion, and his handling of an employment discrimination case, seem to have been far less stable, reports the ABA Journal. While Posner hesitated to call out Shadur by name in his opinion (hat tip to the ABA for digging up the district court opinion), his treatment of Shadur's work was otherwise classic, unrestrained Posner.

Legal Gaffe: Failure to Refer is Not a Failure to Hire

The case at hand was brought by Maura Anne Stuart, a Class B license holder who drives buses but also wishes to drive courtesy vans used in movie productions in the Chicago area. She applied to the local union, paid her dues, and waited for years for them to refer her to a gig. After making multiple calls inquiring about possible gigs, she was reportedly given the "don't call us, we'll call you" blow-off.

Blow-off seems like an accurate assessment, considering no women have ever been hired for one of these van-driving gigs.

After the pleading stage, when the defendant union pleaded the affirmative defense of a 300-day administrative statute of limitations, Judge Shadur ordered Stuart to respond. Four days later, he dismissed the lawsuit with prejudice, despite no request by the union for such a remedy. Judge Shadur held that a failure to refer was not the same as a failure to hire and did not extend the statute of limitations. And because Stuart knew about the "boys' club" situation since 2005, she had long since missed the deadline for filing.

Unfortunately, he seems to have gotten the law wrong. Judge Posner cited cases from the Third, Fifth, and even Seventh Circuits to the contrary before posing a hypothetical that illustrates the real-world effect of Judge Shadur's apparently incorrect holding:

The district judge's analysis if accepted would open a large gap in Title VII. Suppose a woman applies for a job as a crane operator on construction sites, a traditionally male job. The employer has an ironclad but of course undisclosed rule of never hiring women for such jobs. A woman applies and the employer tells her it has no openings now but will notify her as soon as there is one; but in fact the employer has decided that, pursuant to its policy, it will not notify her of any openings. 301 days go by and the employer informs her: "Ha ha; we don't hire women; you'll have to file your EEOC charge yesterday if you want to sue us."

Procedural Gaffe: Overeager Judge Skipped Steps

The truly odd thing about Judge Shadur's opinion was that it came sua sponte -- no party asked him to evaluate affirmative defenses or to dismiss the case with prejudice at such an early stage in the proceedings. Judge Posner seemed particularly miffed about Judge Shadur's fast-tracking of the case in the conclusion of his own critical opinion:

Because of the abruptness and irregularity of the district judge's handling of this case (we can't understand his deciding to dismiss the complaint with prejudice, thereby preventing the plaintiff from amending the complaint, or his instructing his law clerk to request the plaintiff's EEOC charge from the plaintiff's lawyer, without telling the defendant, even though the charge was not part of the record), and the unmistakable (and to us incomprehensible) tone of derision that pervades his opinion, we have decided that further proceedings in the district court should be before a different district judge.

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