Hearings to View Judge’s Bias Rulings

Criticizing the record of a Superior Court judge, state and federal legislators Monday announced hearings on whether laws against workplace discrimination are being properly enforced in Los Angeles courtrooms.

The hearings will be sponsored by Rep. Maxine Waters (D-Los Angeles), who will chair the powerful Congressional Black Caucus beginning next year, and Assemblywoman Sheila Kuehl (D-Santa Monica).

At a news conference on the steps of the civil courthouse downtown, Kuehl said the hearings could be used to consider restricting the power of state judges to overturn verdicts reached by juries.

Waters said the hearings will begin in about 60 days and focus on two recent cases in which Los Angeles Superior Court Judge Malcolm H. Mackey tossed out multimillion-dollar jury awards to employees who alleged workplace bigotry and racial harassment.

The defendant corporations were Pitney Bowes and Hughes Aircraft Co.

The cases, according to Waters, “leave no doubt that we still have a serious and continuing problem with discrimination in the corporate workplace.”

The legislators sharply criticized Mackey, who voided the verdict against Pitney Bowes and another jury’s $89-million verdict against Hughes. The judge declined comment.

In his legal opinion overturning the Pitney Bowes verdict, Mackey said that although there was evidence of “unfortunate” incidents in the workplace, discrimination had not been proved. He ruled that the amount of the verdict “shocked” his conscience.

Waters pointed to language that Mackey used in tossing out the Pitney Bowes verdict, saying she found it particularly offensive.

She quoted the judge’s written opinion: “Our ancestors came across the plains in covered wagons; they were tough. Minorities need to be tough in the workplace--they can’t react to every comment.”

Waters added stiffly: “I’m sorry the judge doesn’t think we’re tough enough. His ancestors may have come across the plains in wagons. Mine came across the sea in chains. How tough do we need to be?”

She said Mackey also referred to the jury in the Hughes case as “this minority jury.”

Kuehl, a former law professor who taught employment discrimination law, said that when a judge overrules a jury in a discrimination case, it erodes confidence in the justice system.

“Some employers and, apparently, some judges are actually undermining the whole area of discrimination law,” Kuehl said. “These judges and these companies not only don’t get it, they apparently don’t care that they don’t get it.”

Mackey, Kuehl pointed out, is the same judge who, responding in 1980 to a paternity charge against him by a Filipina woman, told a reporter, “Were this woman white, this situation never would have come up because this woman is . . . irrational.”

And in the Hughes case, the judge questioned whether “a minority jury had the ability to rationally and objectively hear a discrimination case,” she said.

Asked if she would report Mackey to the state Commission on Judicial Performance, Kuehl said, “I would think I’d have to get in line.”

The legislators also pointed to a Los Angeles jury’s $20-million verdict against Texaco in a sex discrimination case that was overruled by Superior Court Judge Ronald E. Cappai four years ago. However Texaco recently made headlines when it settled a racial discrimination case for $176 million. In that case, high-ranking corporate executives referred to African American employees as black “jelly beans.”

The Hughes appeal is scheduled for argument Dec. 7. The California Employment Lawyers Assn. has joined the case. In a brief filed earlier this year, attorney Joseph Posner, a well-known expert on employment discrimination, noted “a disturbing trend among some trial jurists . . . to see no evil or hear no evil when it comes to discrimination.” He added that those judges “force plaintiffs over many unnecessary hurdles, and if that doesn’t discourage plaintiffs, they take away a just verdict.”

Waters said representatives of Pitney Bowes, Hughes and Texaco would be invited to the hearings.

Officials at Pitney Bowes, based in Stamford, Conn., could not be reached. But previously, they have pointed out that Akintunde Ogunleye, the employee who sued them, sat on several minority committees and that the company has won awards for its diversity programs.

Ogunleye, who is appealing the ruling, is a Nigerian national and top salesman who appeared Monday with Waters and Kuehl. He contended he was subjected to taunts of “ooga-booga” and other forms of racial harassment at Pitney Bowes’ U.S. Mailing Systems regional office in Van Nuys. He was awarded $11.1 million in September after a two-week trial before a racially mixed jury that found in his favor, 11-1.

At the time, lawyers said the verdict was the largest awarded in Los Angeles in an employment discrimination case that didn’t involve a firing.

Ogunleye told reporters he is appealing “to try and help people who are not in a position to talk about their daily anguish” from a discriminatory work climate.

Ogunleye had described taunting, harassment and discrimination that included a co-worker’s taunt: “Akintunde, ooga-booga, jungle-jungle.”

The co-worker, who is French Canadian, testified he actually had said, “bonjour, bonjour.”

Ogunleye told a reporter Monday that he has studied French and has lived in Canada. “I know ‘bonjour’ when I hear it,” he said.

On another occasion, Ogunleye said, a co-worker asked him to move away from a window because “my blackness was making the room too dark.” And, when he came to work limping from a leg injury, his supervisor asked, “What’s that? Your jungle walk?”

And, Ogunleye said at the conference, white employees he had trained were paid more than he was; the photographs of white salespeople who won monthly awards were placed on the wall, but his wasn’t; and, when he was named sales representative of the year in 1992, the honor was taken from him and given to a white co-worker. Ogunleye said he was told there had been a “miscalculation.”

“Judges have stated that juries acted with passion and prejudice,” said Ogunleye’s attorney, Margaret Henry. “You have to ask if it’s the judges who are acting with prejudice in reaching these decisions.”