
DATE: Sunday, August 17, 1997               TAG: 9708170053

SECTION: FRONT                   PAGE: A1   EDITION: FINAL 

SOURCE: BY MARC DAVIS, STAFF WRITER 

DATELINE: NORFOLK                           LENGTH:  278 lines

FEW CLAIMS ARE WON FEDERAL COURT IS TOUGH PLACE TO PROVE DISCRIMINATION CASES

They come to 600 Granby St. full of hope and righteous indignation. Most of them leave disappointed.

Patrick T. O'Lee came to federal court last August. He said he was fired illegally from Sentara Norfolk General Hospital because he was 51 years old. The court disagreed.

Rhonda R. Lillie came in March last year. She said she was fired from Lifetouch National School Studios because she is black. The court disagreed.

And Leslie W. White came in September. She said she was harassed at Norfolk Southern Corp. because she is a woman. The court disagreed.

All three sued their employers last year in Norfolk's federal court. All three claimed discrimination. All three lost when judges threw out their cases before trial.

Unusual? Not in Norfolk's federal court.

Every year, scores of people holler, ``Discrimination!'' in U.S. District Court in Norfolk. About half settle out of court. Almost all the rest walk away losers.

A Virginian-Pilot analysis of the 69 discrimination cases filed last year shows that winning a discrimination case in Norfolk's federal court is as rare as icebergs in Chesapeake Bay.

Plaintiffs' lawyers see a pattern.

``If it's not the unfriendliest court in the land, I don't know which one is,'' says Virginia Beach lawyer Jack E. Ferrebee.

``I avoid it like the plague,'' says Virginia Beach lawyer Kevin E. Martingayle.

``It's a painful experience, quite frankly. Nobody likes doing it,'' says Newport News lawyer Christopher C. North.

But defense lawyers say there's nothing wrong with Norfolk's federal court. It does exactly what it's supposed to do: toss out the frivolous, keep the rest.

``There is increasingly a perception that if I'm a member of a protected class and I'm fired or something happens to me at work, I should have recourse,'' said Norfolk lawyer Richard M. Feathers. ``I have yet to run into anyone who said, `Oh, yeah, I should have been fired.' ''

``I don't think our judges are pro-employer or anti-employee,'' says Norfolk lawyer William M. Furr. ``I think they're just more willing to grant summary judgment'' - to throw out a case based on insufficient evidence.

Why judges here dismiss so many discrimination cases is a matter of debate. That they do is simply a fact.

``I would bring all my cases in state court, if I could,'' said Chesapeake lawyer Thomas F. Hennessy. ``In federal court, the process is biased very heavily in favor of the defense.''

By any measure, Patrick Todd O'Lee had it made.

At age 51, O'Lee was a veteran medical professional. He was a perfusionist: a person who keeps hearts pumping during bypass surgery.

He was also well-paid. After 27 years at Sentara Norfolk General Hospital, he earned $105,000 a year.

For his years of service, the hospital awarded O'Lee five gold lapel pins, one for each five years. The latest sports a glittering diamond and two rubies. ``I'm proud of those. I was trying for another one,'' O'Lee said.

Then he was fired in 1995. O'Lee said it was age discrimination. He said Sentara wanted to purge older, higher-paid employees and replace them with younger, lower-paid workers.

Sentara said age was irrelevant, that O'Lee had violated hospital policy by leaving the hospital before a patient was out of the emergency room.

O'Lee sued last year in federal court. A trial was scheduled, but it never got that far.

On June 30, a judge threw out the case, ruling that O'Lee had little evidence of discrimination. The judge said O'Lee simply hadn't lived up to his employer's expectations.

``At root,'' Judge John A. MacKenzie wrote, ``this suit appears to be not about age discrimination, but about a search for meaning by a man who is incredulous that after a long, unblemished history of employment, he could be fired for a single mistake.''

It happens often in Norfolk's federal court: A lawsuit is filed, a company replies, the case is thrown out.

An analysis of the 69 discrimination cases filed last year in U.S. District Court here shows that:

Most claims alleged racial or sexual discrimination - one-third for race, another third for sex. The last third were a mix of disability, age and religion claims.

Very few lawsuits went to trial. Of the 69 cases, only four were tried. The plaintiffs lost every one.

Sometimes, cases that appear open-and-shut on paper aren't.

In one case, a black woman was turned away from a motel in South Boston. Fifteen minutes later, a white friend asked for a room at the same motel and got it.

Obvious discrimination? A jury said no - largely because the motel was holding rooms for a black wedding party.

About half of all discrimination lawsuits were settled out of court. Whether these count as winners or losers depends on how much money changes hands - and that is impossible to know, since nearly all settlements are confidential.

In one case, for example, a female hostess at Carver's Creek restaurant claimed she was harassed and forced to quit. She sought $700,000, but settled out of court.

In another case, a female security specialist at the Surry power plant claimed she was harassed, then forced to quit when she became pregnant and was forced to work the X-ray machine. She, too, settled out of court.

Defense lawyers say those kinds of cases should be considered victories for the plaintiffs.

``The best cases are getting settled,'' said Norfolk lawyer Robert W. McFarland. ``That's why you're not seeing a lot of victorious plaintiffs.''

Furr, another defense lawyer, said he advises employers, ``If you have a case that's a loser, I suggest we settle it quickly.''

Many cases - about one-third - were tossed out by judges before they got to trial.

In 1996 cases, judges granted 11 summary judgments. That means the cases were dismissed because the plaintiffs did not have enough evidence to justify a trial.

The O'Lee case was a summary judgment.

So was the case of Nancy Benson, a nurse who sued Sentara Norfolk General Hospital claiming she was fired for refusing to help with abortions. She claimed religious discrimination. The judge said she was fired for her ``complete lack of judgment'' in handling a patient. Benson appealed the ruling and the case recently was settled confidentially.

Also, judges dismissed nine discrimination cases for technical reasons.

For example, a Baptist salesman said he was fired from Radio Shack for refusing to work on the Sabbath, but he never served the company with legal papers. The case was thrown out.

In another case, a seventh-grader sued the Virginia Beach School Board claiming sex discrimination. She said she was harassed by a male student and school officials did nothing. A judge ruled that the parents could not act as attorneys for the girl, then gave the parents time to find a real lawyer. He threw out the case when the parents missed a deadline.

Lawyers say Norfolk's judges do not hesitate to throw out bad cases.

``It's a bench that's not afraid to act. They will rule,'' said Norfolk lawyer James A. Gorry III. ``So many of the state courts say, `Let these cases go. Let a jury rule.' ''

That angers many plaintiff lawyers.

``The whole purpose of a jury trial is to have a dispute settled by a jury of your peers,'' said Martingayle. ``It seems to be a problem getting cases to the jury in federal court. All I want is a chance to lay out my facts and say, `Folks, this is not right.' ''

Rhonda Lillie never got to the jury. Then again, she also never got a lawyer.

Lillie, 35, was a photographer at Lifetouch National School Studios, shooting student photos at local schools. For four years, she claimed, she was treated differently than white photographers - paid less, ordered to dress differently, denied a promotion and a trip, and finally forced to quit.

Lillie, who is black, said it was racial discrimination, but she couldn't afford a lawyer. One asked for $5,000. Others wanted up-front money and refused to take her case on a contingency basis.

So Lillie did it herself. She spent hours reading arcane texts at the Norfolk Law Library and Regent University. She filed her own lawsuit and wrote her own legal briefs.

``I knew they (Lifetouch) were wrong and I didn't want them to get away with it,'' Lillie said.

A judge, however, said Lillie had no case. He said Lifetouch had legitimate, non-discriminatory reasons for everything it did. He found that Lillie was negligent in her job. He cited one recent photo shoot in which Lillie had botched several pictures.

``This mistake and all of Ms. Lillie's previous work-related problems, including tardiness, bad checks, and improper handling of equipment, call into question Ms. Lillie's qualifications for the position,'' Judge J. Calvitt Clarke Jr. wrote.

Plaintiffs who go pro se - who sue without a lawyer - seldom win in any court, in any type of case. Last year, 11 plaintiffs filed pro se discrimination cases in Norfolk's federal court. All of them lost.

``It's hard for the plaintiff in that position to come up with the money to fight a big company,'' said Chesapeake lawyer SuAnne L. Hardee. ``A lot of people, when you tell them what it costs, they drop it.''

The rules of federal court - even more than in state court - make it difficult for plaintiffs with no money.

For example, Norfolk's federal court is among the fastest in the country. Lawsuits often go to trial within eight months of being filed.

That sounds good for plaintiffs, who say they want speedy justice. But it means that plaintiffs don't have much time to take depositions and get documents from the companies they sue. That's when they really need lawyers.

Also, Norfolk's federal court is much more likely to throw out a case before it goes to trial. That requires a costly exchange of legal briefs and taking of witnesses' pretrial testimony before a judge rules. These can cost thousands of dollars.

``State court is more fair to the underdog plaintiff, who doesn't have all the money in the world to buy all these transcripts,'' Martingayle said.

Leslie White is a mechanic for Norfolk Southern at the Lamberts Point railyard, the only woman in her department. That's been a problem for years, she says.

Once, she claims, a male co-worker fondled her crotch, then remarked later, ``You know you liked it when I touched you, and I'll do it again.'' Another time, she says, a worker told her, ``You'll be glad when those white folks f--- your a--, won't you?''

Another worker called her a ``fat, worthless bitch.'' Another wrote in chalk on a railroad car, ``F--- all women of the world.''

Sexual discrimination? No, a judge ruled in April.

Judge Raymond A. Jackson found that while White may have been subjected to rude, unwelcome comments from co-workers, it was not a pattern of sexual harassment by the company itself. The rude comments came from many different workers over a period of years, and some happened so long ago that they were barred by the statute of limitations.

In any case, Jackson ruled, Norfolk Southern did everything it could to stop the harassment. The company counseled or disciplined the workers responsible for each incident, the judge ruled. He dismissed the case.

Was this the ruling of a conservative, pro-business judge?

Hardly. Lawyers generally regard Jackson as the most liberal of Norfolk's eight federal judges. Sen. Bob Dole singled out Jackson last year as one of President Clinton's liberal appointees.

So why do Norfolk's judges rule so often against discrimination complaints?

``I think our judges are much more conservative than they are elsewhere,'' said North, the Newport News lawyer.

But that may be less true than it used to be.

Until recently, Norfolk's federal judges were all white, all male, all Christian.

In recent years, though, Norfolk got its first female federal judge (Rebecca Beach Smith), its first black federal judge (Jackson) and soon may get its first Jewish federal judge (Jerome B. Friedman, nominated earlier this year and still facing Senate confirmation).

At the same time, two of Norfolk's most senior federal judges - Walter E. Hoffman and Richard B. Kellam - recently died.

Still, reputations linger, and Norfolk's federal bench is still regarded as a conservative bastion, especially in employment cases.

``You get the impression from some of the judges they just don't like discrimination cases,'' says Hennessy, the Chesapeake lawyer.

For example, Hennessy's law partner, Hardee, recalls one federal judge telling her, during a racial discrimination case, ``I'd hate to try to make a living trying these kinds of cases.'' She considered the remark ``far, far out of line.''

But defense lawyers say Norfolk's judges simply know their law.

``There is not the opportunity here to fool a judge,'' says Norfolk lawyer Richard M. Feathers. ``I think the judges are, first and foremost, extremely well prepared. I don't think they're very pleased about it, but they have increasingly had to become experts in employment law.''

And it is a more diverse bench than ever before, notes Norfolk lawyer William E. Rachels Jr. If discrimination cases are losing, he says, it's not the judges' fault. All the solid cases settle quickly, Rachels says, leaving the questionable cases for dismissal and jury verdicts.

``The judge simply applies the law to the facts, as the system requires. If there is sufficient evidence of discrimination, the plaintiff will prevail,'' Rachels says.

Plaintiffs who lose remain unconvinced.

``I was never really given a chance to say anything. It was a battle between the lawyers,'' said White, the mechanic who sued Norfolk Southern. ``It was a very frustrating experience.'' ILLUSTRATION: Graphics

Color photos

MARTIN SMITH-RODDEN/The Virginian-Pilot

IAN MARTIN/The Virginian-Pilot

BETH BERGMAN/The Virginian-Pilot

THE CLAIM: AGE DISCRIMINATION

The plaintiff: Patrick Todd O'Lee, who kept hearts pumping during

bypass surgery at Sentara Norfolk General Hospital.

The case: He said Sentara fired him because it wanted to purge

older, higher-paid workers. Sentara said it fired O'Lee for leaving

the hospital before a patient was out of the emergency room.

The outcome: The judge dismissed the case, saying O'Lee hadn't

lived up to his employer's expectations.