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In 1992, Patricia Green, a civil service administrative officer at the U.S. Army’s 505th Quartermaster Battalion in Okinawa, Japan, says the colonel she worked for “made her feel uncomfortable” by winking at her, rubbing his legs against hers, and attempting to pull her into a golf pro shop to ask inappropriate and personal questions. The harassment increased when she inquired about a vacant position in his office, although she did not intend to apply for it herself, her lawsuit says. Today Green is collecting worker’s compensation for physical problems she says were caused by the harassment and discrimination that occurred because she filed a complaint. Green also filed a harassment and discrimination suit in the U.S. District Court for the Eastern District of Virginia last month, demanding $300,000. If tradition holds, Green’s case might not fare too well. Virginia courts, the Eastern District, and the 4th U.S. Court Circuit of Appeals all have miserable reputations among plaintiffs’ lawyers in employment discrimination cases. “It’s a lot tougher to go into the Eastern District than any other district,” says Michael Deeds of Washington, D.C.’s Kestell & Associates. “We’ve scaled back the number of cases each year we’ll take in the Eastern District.” Unless the defendant has made blatantly discriminatory comments, Deeds says, pursuing a case in state court is even less appealing. Law in the commonwealth limits damages to no more than six months of back pay, bars punitive damages, offers no mandatory reinstatement provision, and limits attorney fees to 25 percent of the amount requested. “You’re required to go into federal court because state remedies are horrible,” Deeds says. But Green’s attorney, Beatriz de Grieff Stack of McLean, Va., Deeds, and other employment lawyers hope that new cases filed in Virginia will fare better than those that have gone before because of an opinion handed down by the U.S. Supreme Court last week, Reeves v. Sanderson Plumbing Products Inc. The opinion written by Justice Sandra Day O’Connor states that workers do not have to prove that the motive for workplace discrimination was racial or sexual bias. Many employment attorneys believe the opinion will force the 4th Circuit into a more amenable mood. “Before the ruling the 4th Circuit has said that you need evidence like a memo saying, ‘Please fire Joe. We’ve discovered he’s black,’” says John Bredehoft, an employment defense attorney at the McLean office of Venable. Bredehoft says the Eastern District tosses out the majority of employment cases at summary judgment. In 1998, the 4th Circuit routed 285 appeals of employment discrimination cases to mediation, according to Bredehoft. Of those cases, 280 were dismissed by trial judges at or before summary judgment, he says. For those cases that make it past summary judgment, Deeds says, there’s no incentive to settle because defense attorneys know they have great odds of getting a verdict reversed by the 4th Circuit. Even when a jury sides with the plaintiff, the chances of a defendant getting the case overturned by the 4th Circuit have been exceptionally high. “It really drives down the settlement value,” says Deeds. TOUGH FORUM FOR EMPLOYEES “In my view, the 4th Circuit is the hardest place for employees with discrimination suits,” says Venable’s Bredehoft. “The judges are very conservative. Virginia has pro-employment laws, and judges interpret federal law in a broad manner. It’s not evil; it’s a different way of perceiving the underlying statutes.” Bredehoft and others point out that the U.S. Supreme Court remanded all four of the 4th Circuit discrimination cases it took up between 1996 and 1999: Hetzel v. Prince Williams County, O’Connor v. Consolidated Coin Catering, Wright v. Universal Maritime Services Corp., and Robinson v. Shell Oil Co. The 4th Circuit has managed to find loopholes even after the Supreme Court sends them back. In the O’Connor case, the employer said of the plaintiff, “He’s too damn old.” The 4th Circuit first ruled that in order for a discrimination charge to stick, the person replacing an employee bringing the charges must be at least 39 years old, and since O’Connor was replaced by a 40-year-old, there was no case. The Supreme Court disagreed and sent the case back. However, the 4th Circuit again tossed out the case, ruling that no jury could reasonably find in favor of the plaintiff. Bredehoft predicts that Reeves may “change the settlement dynamic” around the 4th Circuit. He says that if more employees survive summary judgment, more companies will want to settle to avoid the costs of trial. Before joining Venable, Bredehoft was a plaintiffs’ attorney. He says he works on the defense side of the bar now because he’s more successful at ending harassment and discrimination by working with companies. However, many plaintiffs’ attorneys are more cautious about the potential effect Reeves will have on the 4th Circuit and the Eastern District. Plaintiffs’ side attorney Elaine Bredehoft of Reston, Va. — who was married to Venable’s John Bredehoft — warns that because the 4th Circuit has reversed so many successful plaintiff actions and dismissed others, the Eastern District remains “duty bound” to follow the rules the 4th Circuit has established. For now, she says, the 4th Circuit remains “the kiss of death.”

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