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In a ruling of first impression, Eastern District of New York Chief Judge Edward R. Korman has determined that elected supreme court justices may not be sued under Title VII of the federal Civil Rights Act of 1964 for discriminating against their personal secretaries. The ruling comes in a case of sexual harassment brought against former Brooklyn Supreme Court Justice James H. Shaw Jr., who was censured by the New York State Judicial Conduct Commission in 1999 for making sexually suggestive remarks to his secretary. The ruling deprives the secretary, Jacqueline Bland, of the potential deep pocket of the state should she prevail on her other harassment claims in the Eastern District. Judge Korman left standing federal constitutional discrimination claims against Shaw as well as claims under New York state’s and New York City’s human rights laws. But under none of those claims can the state be held liable. Only under Title VII could a judgment have been entered against the state treasury in Bland’s favor. Bland’s lawyer, Daniel Alterman of New York’s Alterman & Boop, said the ruling “appears to leave her with a right but no remedy against the State of New York and the Office of Court Administration.” He added, “We are considering attempting to appeal the question.” Korman, in Bland v. State of New York, 00-6522, also addressed an unsettled area of the law in deciding that the Judicial Conduct Commission’s 1999 ruling could not be used to establish liability against Shaw on a motion for summary judgment. Shaw, who turned 76 in 1999, was required by state law to leave the bench at the end of that year. Although the 2nd U.S. Circuit Court of Appeals has not addressed the issue, Korman concluded that Bland, as a member of the personal staff of an elected official, was excluded from coverage under Title VII by an exemption created in 42 U.S.C. � 2000e(f). In concluding that Bland came within the personal staff exemption, Judge Korman noted several key factors. He said that under New York law, supreme court justices, who are elected officials, are entitled to “appoint at pleasure and remove one law clerk and secretary” [New York State Judicial Law � 36]. The judge also said Bland was “wholly and solely” responsible to Shaw, and that Shaw had complete control over her position and responsibilities. Moreover, Korman observed that the legislative history of the amendment creating the personal staff exemption “unequivocally indicates that ‘personal staff’ means, first and foremost, ‘personal secretary.’” Support for that conclusion, Korman wrote, could be found in former U.S. Sen. Jacob Javits’ remarks during the debate over the provision’s adoption: “Generally speaking we consider a personal assistant as being a secretary.” DISCIPLINE NOT DECISIVE Judge Korman rejected Bland’s efforts to have liability established against Shaw solely on the strength of the conduct commission’s findings against him. To apply those findings to the Title VII case, Korman wrote, he would have to find that Shaw had “a full and fair opportunity” to litigate the issue before the commission. In finding “serious questions” as to whether Shaw had such an opportunity to litigate, Korman relied on the way the commission handled Shaw’s request to consider new evidence after it had ruled against him. According to the opinion, Shaw asked for the proceeding to be reopened because a witness had come forward to state that both a second woman who had testified against Shaw and Bland had fabricated their testimony. Before deciding against reopening the case, a commission attorney questioned the new witness with her attorney present, but Shaw’s attorney was not allowed to attend. In addition, the Court of Appeals determined that it had no jurisdiction to review the commission’s decision not to reopen the case, Judge Korman pointed out. He also noted that New York’s Appellate Division, 1st Department, has expressed concerns about applying the doctrine of collateral estoppel to preclude a party from defending a tort suit on the strength of a prior administrative disciplinary determination. The 1st Department, he wrote, had warned in Jeffreys v. Griffin, 749 NYSupp2d 505 (2002), against giving preclusive effect to a disciplinary ruling issued in a proceeding “lacking the full panoply of discovery and procedural safeguards in our civil law.” Moreover, Korman noted that the commission’s determination that Shaw’s behavior was “inappropriate and demeaning” was not necessarily decisive in determining a sexual harassment claim, which turns on a “plaintiff’s subjective perception of her environment.” Because Bland had been on the job for “almost twelve years before she registered a complaint,” he wrote, the issue is particularly well suited for determination by a jury. Shaw was represented by Joseph Soffey. OCA was represented by its deputy counsel, John Eiseman, and the state was represented by Assistant Attorney General David Cohen.

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