A plaintiff is asking the 5th U.S. Circuit Court of Appeals to recuse U.S. District Judge Lynn Hughes from hearing his civil rights case because of "biased and bigoted statements" Hughes allegedly made during a pre-trial conference.

The background to the case, according to an Aug. 29 petition for writ of mandamus filed with the 5th Circuit in In Re Jitendra Shah, is as follows.

Jitendra Shah is a native of India and a citizen of the United States who sued his employer under the Civil Right Act of 1964, alleging that the employer discriminated against him because of his race and national origin. He also alleged retaliation for protesting the discrimination. The case was assigned to Hughes.

During a Nov. 26, 2012, pre-trial conference, which allegedly was held ex-parte because Shah's lawyer was ill, Shah alleges Hughes commented about a university's diversity director position: "And what does the diversity director do? Go around painting students different colors so that they would think they were mixed?" according to the mandamus petition.

Hughes also allegedly stated that Indians are "Caucasian." He also allegedly said, "That's why Hitler used the swastika" — "it was a symbol of good luck" and "going back in Sanskrit to the Aryan people which he claimed a bunch of Germans were. They act a lot like Germans," according to the mandamus petition.

Hughes also stated "Eleanor Roosevelt said staffs of one color always work better," the mandamus petition continues

Shah filed a recusal motion before Hughes in January. However, Shah alleges in the mandamus petition, Hughes has refused to rule on the motion for more than seven months and has continued making discovery rulings in the case. The plaintiff alleges that Hughes' conduct in the case violates 28 U.S.C. §144, which requires that once a recusal motion has been filed against a judge that "the judge shall proceed no further therein … "

The mandamus petition alleges that Hughes' statements in the Nov. 26, 2012, conference reflect actual bias and/or prejudice against Shah or, at a minimum, would cause a reasonable person to harbor doubts about his impartiality:

"First, Judge Hughes' gratuitous, uncritical reference to 'Adolf Hitler' and the 'swastika' — the architect and the symbol, respectively, of the Holocaust, the largest state-sponsored ethnic and religious mass murder in human history — are beyond the pale in a case of race and national origin discrimination and would lead any reasonable person to believe that Judge Hughes is insensitive to an alleged victim of racial and national origin discrimination, such as Mr. Shah, the mandamus petition alleges.

While Shah is requesting the 5th Circuit to order Hughes' recusal in the case, in the alternative Shah also asks the 5th Circuit to order Hughes to rule on Shah's recusal motion and stay proceedings in the case in the meantime.

"Judge Hughes' biased and bigoted remarks against people of color, such as Jitendra Shah, have no place in a federal courtroom, least of all coming from a federal judge who has sworn an oath to uphold the Constitution," says Scott Newar, a Houston solo who represents Shah.

Hughes declines comment.

Previous Complaint

A civil right organization mentions the Shah case in a judicial misconduct complaint the organization filed against Hughes with the 5th Circuit in February. [See " Civil Rights Group Files Complaint Against Federal Judge" Texas Lawyer, Feb. 11, 2013, page 1]. That complaint from the Texas Civil Rights Project also cites a Jan. 5 decision in Albert J. Autry v. Fort Bend Independent School District, in which a 5th Circuit panel noted that Hughes was incorrect in deeming "political" an alleged hearsay statement discussing President Barack Obama and fried chicken that a plaintiff attempted to offer at trial. The opinion quotes Hughes as "observing that 'no black individually and no blacks collectively owns [sic] the sensitivity rights to fried chicken or anything else.' "

"The district judge's comment misses the mark, as it overlooks the racial component of" the alleged statement, wrote Senior Judge Patrick Higginbotham in an opinion joined by Judges Priscilla Owen and Leslie Southwick in Autry.

Hughes also declined comment on the Autry decision.