The federal judge who granted Paula Deen a big legal victory this week could have spared the celebrity chef much of the negative publicity she has endured this summer had he not taken what two Atlanta discrimination lawyers say was an unusual action.
In January, Senior U.S. District Judge William T. Moore Jr. denied without explanation a motion to postpone discovery in the race discrimination and sex harassment case brought against Deen and her brother by one of their restaurant managers.
That motion to stay discovery—which, if granted, would have postponed the deposition in which Deen admitted using a racial epithet—was made by lawyers representing both the defendants and the plaintiff.
"I'd say that's fairly unusual," discrimination attorney Edward Buckley of Atlanta's Buckley & Klein said of Moore's decision to deny the motion to stay three days after it was filed.
If the judge allows discovery to go forward in the case but then dismisses some or all of the claims, "The parties end up going through the expenses of discovery, perhaps for no purpose," the lawyer explained.
That is what happened when Moore on Monday dismissed Lisa Jackson's claims of race discrimination because Jackson is white and therefore did not have standing to sue over alleged discriminatory treatment by Deen and Hiers of their African-American employees.
Atlanta discrimination lawyer Lee Parks of Parks, Chesin & Walbert said defendants in discrimination cases routinely seek a stay of discovery to sidestep the kind of negative publicity that Deen attracted. "My experience is that judges usually grant those motions," he said.
But other judges might decide to allow discovery to proceed while they are pondering a motion to dismiss so that if they refuse to dismiss the case, it will be ready for trial, Parks said. "In case any claims are left, they are ready to go. It's all part of managing the total time the case remains open and pending."
The length of time that motions—and cases—remain on a judge's docket are monitored by the Administrative Office of the U.S. Courts, he said. "Anything you can do to cut down on that improves your statistics."
Federal court administrators recommend that judges do not leave motions pending longer than six months. Moore's decision Monday, which left intact Jackson's claims of sex discrimination, took seven months to decide.
Deen's counsel at Morgan, Lewis & Bockius in Washington and at Savannah firm Weiner, Shearouse, Weitz, Greenberg & Shawe, who replaced Oliver Maner in Savannah after the news of her deposition broke, could not be reached for comment. An Oliver Maner representative also could not be reached Tuesday.
A former lawyer for Deen's brother, Thomas Withers of Atlanta's Gillen Withers & Lake—who filed a motion to dismiss the claims against his client and joined in the motion to stay discovery while the dismissal motion was pending—emailed a written statement to the Daily Report. "We moved for this relief in December 2012. Judge Moore obviously gave the issue careful and thoughtful consideration, and reached, we think, the proper result."
Jackson's attorney, Matthew Billips of Atlanta firm Billips & Benjamin, could not be reached for comment.
When news broke in late June that Deen had acknowledged using the N word, companies that were paying for her endorsement began severing their ties to her.
Deen's statement came in a deposition taken in May as part of Jackson's suit against Deen, her corporate empire and her brother, Earl "Bubba" Hiers.
The claims that Deen and her brother fostered a pervasive atmosphere of racial discrimination at their two Savannah restaurants that Jackson—who had risen in Deen's Savannah food operations to become a manager at Uncle Bubba's Oyster House—found personally offensive had given weight to Deen's statements that "of course" she had used the racial epithet. Deen also said in that deposition, "It's been a very long time" since she used the word.
In his order dismissing the discrimination claims, Moore held that Jackson was not an aggrieved party under federal civil rights laws because "her interests are not those arguably sought to be protected" by the civil rights statutes.
"At best, [Jackson] is an accidental victim of the alleged racial discrimination," the judge held. "There are no allegations that defendant Hiers's racially offensive comments were either directed toward [Jackson] or made with the intent to harass her."
While Jackson claimed in her complaint that Hiers at one point used a racial epithet in a reference to the complexion of her Sicilian father, Moore noted that, "This single comment, however, is insufficient … to give rise to a hostile work environment."
He added that Jackson "still fails to allege that she personally suffered any discrimination on account of her race" at the hands of either Deen or her brother.
Instead, Jackson contended she was harmed because Deen and Hiers deprived her of "harmonious working relationships with her African-American subordinates" and denied her "the right to work free from racial harassment."
But Moore said those particular interests are not addressed by the federal civil rights statutes which seek to prevent workers from being discriminated against by their employers.
Title VII of the Civil Rights Act of 1964 which bars discrimination in the workplace "does not operate to provide individuals working unaffected by unlawful racial discrimination with a cause of action to remedy racial discrimination directed toward third parties," he said.
"Even setting aside the absurd results that could follow from allowing such a claim, to use Title VII in this manner would serve to conscript federal courts as human resource departments that are responsible for imposing and monitoring a federally created standard for harmony in the workplace. Quite simply, workplace harmony is not an interest sought and protected by Title VII."
"In this case," Moore continued, "[Jackson] has not alleged that she was the target of unlawful discrimination. … While [she] may have faced significant challenges in managing a workplace allegedly permeated with racial discrimination, her difficulties … cannot support a claim for racial discrimination."
Atlanta discrimination attorney Parks suggested that even if Deen's deposition had been delayed until after Moore tossed out Jackson's race claims, Deen would likely still have been asked by opposing counsel about her racial attitudes and whether she had used racial epithets. "It's probably a permissible question in a deposition," he said. "You are trying to determine the atmosphere. If you use the N word, you probably have greasy paws on women."
Defense lawyers likely would not object to such questions, he said, for fear of attracting attention to the issue. In Deen's case, he said, she began her reply to a question about her use of racial epithets by saying, "Of course."
"The 'of course' was the killer,'" he said. "It was awful."