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The Webb Report Archives 2003

Webb Report Table of Contents

Archives of Webb Reports

THE WEBB REPORT - December 2003

Harassment Allegations Continue at Air Force Academy

Air Force Academy leaders said that twelve cases of sexual assault or harassment have been reported at the academy since new leaders took over in April. Nine cases apparently took place within the last six months, while the other three happened earlier but were reported after the change in leadership, spokesman John Van Winkle said.

"The bad news is that it's occurring...we want to stop that,'" said Johnny Whitaker, the academy's director of communications. "The good news is that it appears people are willing to come forward."

This is the first of such reports since the academy's sexual assault scandal began in January. Scores of female cadets say commanders ignored their reports and punished some women for coming forward. Since that time, new leadership has been put into place and a sexual assault response team has been established.

With regard to the latest cases, six allege sexual assaults, four allege rapes, one inappropriate sexual conduct and one sexual harassment. Nine of the cases involved cadets allegedly attacking or harassing other cadets, Whitaker said.

Brigadier General Johnny Weida, the cadet commandant, said investigators already have dismissed one rape case and the case involving inappropriate sexual conduct was dismissed as unfounded. The academy did not provide details of the cases, but Weida said some accused aren't likely to be tried "based on the facts and circumstances that have been presented to me."

Since the original scandal, the Air Force has made efforts to encourage victims to come forward. Soon the new leadership is reported to be willing to accept anonymous assault reports. In addition, the Department of Defense formally released a survey that found 18 percent of academy female cadets said they had been sexually assaulted at least once, and 11 percent of this year's seniors said they have been the victims of rape or attempted rape.

The survey includes answers from 579 of 659 female cadets.

One victim wrote: "It happened to me and I am afraid it will happen again." Another said, "My chain of command told me that I was the one that had the problem, and if I was uncomfortable with the situation, I should leave because I would not make a good officer.

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THE WEBB REPORT - November 2003

Study Shows Diversity Progress in Law Firms

A new study by the U.S. Equal Employment Opportunity Commission entitled "Diversity in Law Firms" reveals that women now comprise 40% of legal professionals (resembling associates) in the private sector, a significant gain from 14% nearly three decades ago. In addition, since 1975, African Americans doubled their employment as legal professionals to over 4%, Hispanics more than doubled to 3%, and Asian representation rose by five times to 6.5%. The report was issued today by EEOC Chair Cari M. Dominguez during a speech to a national conference of the American Bar Association (ABA) on "Opening the Pipeline."

"While we should certainly be proud of the progress women and people of color have made in joining the ranks of legal professionals, we must also be mindful of how far we have to go," said Chair Dominguez. "The Commission continues to proactively cultivate its relationship with the ABA and other industry groups to ensure that the diversity of America is reflected in and sought by the legal profession. We must all make a constant, unwavering effort to ensure that our nation's law firms are open and inclusive to all individuals."

ABA President Dennis W. Archer said: "I view the business community, and in particular corporate general counsels, working in tandem with government leaders, as key motivators to change the culture of the legal profession to match broader society."

The purpose of the EEOC study is to examine the employment status of women and people of color at law firms required to file EEO-1 "Employer Information Reports" breaking down the racial, ethnic, and gender composition of an employer's workforce by job classification. The research covers medium and large law firms as only employers with 100 or more employees are required to file EEO-1 reports. Specifically, it examines changes in employment of people of color and women as attorneys since 1975. The full text of the study is available online at www.eeoc.gov.

The study also looks at the relationship between firm characteristics and the employment of people of color and women.

Results suggest that the most pressing equal employment issue in large national law firms is no longer hiring but conditions of employment, especially promotion to partnership. In smaller, regional and local law firms, questions about the fairness and openness of hiring practices probably still remain, particularly for lawyers of color. Other cited research suggests potential problems for women and people of color in attrition and earnings. The study supplements EEO-1 analyses with sample data and finds that women and people of color have lower odds of being partners than white males. In addition to the gains of women and people of color in their representation among legal professionals at medium and large law firms, the study also shows:

_ Between 1982 and 2002, women receiving law degrees increased from 33% to 48.3%, African Americans from 4.2% to 7.2%, Hispanics from 2.3% to 5.7%, and Asians from 1.3% to 6.5%.

_ Legal professionals of color are likely to be associated with firms in the top ten legal markets (cities), and in firms ranked in the top 100 on the basis of prestige and/or earnings.

_ Large, nationally known law firms generally have a higher proportion of women and people of color than other types of law firms. There is also less variation in the proportion of women and people of color among these large, nationally known law firms.

_ Law firm characteristics such as size, number of offices, locations, prestige and earnings rankings appear to have more effect on the proportion of legal professionals of color than the proportion of women legal professionals. However, both the proportion of women and the proportion of people of color are significantly higher in firms with more offices.

During her speech to the ABA, Chair Dominguez also identified the following steps that law firms can take to increase the employment of women and people of color:

_ A greater focus on diversity in the recruitment and hiring process;

_ Increased mentoring and training opportunities;

_ Addressing the pervasive problem of attrition, especially for women of color;

_ Providing more management authority at the partner level; and

_ Offering family-friendly policies and flexible work options;

Additionally, Chair Dominguez strongly encouraged law firms to provide more employment opportunities for lawyers with disabilities. "Misunderstandings about disability from concerns about the cost reasonable accommodations to unfounded fears about performance and reliability have prevented many qualified lawyer with disabilities from even being considered for jobs within the legal profession," she said.

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THE WEBB REPORT - October 2003

Plaintiff's Payment Increased for Taxes

In a ground-breaking ruling in New Jersey, a judge awarded additional money to the successful plaintiff in a sexual harassment suit to offset the higher taxes she will have to pay on the lump sum payment of her original award for damages. Superior Court Judge Edmund Bernhard awarded an additional $107,000 to the woman who sued the city of Bernardsville and its former police chief for sexual harassment. She was awarded $341,000 by a jury.

The judge agreed with post trial arguments brought by the woman's attorney who said that the woman would have to pay taxes she would have otherwise not owed had she not been harassed in the first place.

The attorney said that since the woman's award for back pay and future pay was given as a lump sum, the tax implications would result in her netting less money than if she had been able to stay on the job and pay taxes normally.

The judge said the issue had never been dealt with in New Jersey. "The application for this relief presents a question of first impression in New Jersey. Whether adverse tax consequences to a successful plaintiff in a discrimination case constitute 'such damages' under New Jersey's Laws Against Discrimination has not been decided by courts of New Jersey."

Attorney Lisa Manshel said, "We argued it was well within the statutory framework for Mary Ferrante to recover damages that should make her whole. If she won front pay and back pay and had to pay $107,000 more in taxes because of that, she would not be made whole. The judge agreed."

The woman claimed she was forced to quit her job with the police department in 1998 because she was sexually harassed by the chief. She said he repeatedly touched her inappropriately and made suggestive remarks to her when they worked together in the department. The chief denied any such language or touching.

In April, the jury found that the woman had been harassed and that both the chief and the borough were liable. It found that the chief was the woman's supervisor when he engaged in sexual harassment, that he was a public official, and that his actions helped create a hostile work environment for the woman.

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THE WEBB REPORT - September 2003

Court Bars Faragher/Ellerth Defense

The U.S. Court of Appeals for the Fifth Circuit ruled that when a supervisor is an employer's proxy, the employer cannot assert a Faragher/Ellerth affirmative defense in cases involving supervisory sexual harassment, even when there is no tangible employment action. The court vacated summary judgment for National Communications Inc. against three of four female employees.

The court said, "We read the Supreme Court's opinions of Faragher and Ellerth as the Seventh Circuit did in Johnson v. West, that the employer is vicariously liable for its employees' activities in two types of situations: (1) there is a tangible employment action, or (2) the harassing employee is a proxy for the employer."

In the case, four female employees of KVHP Fox 29 in Lake Charles, Louisiana sued the television station's owner, National Communications, in U.S. District Court for the Western District of Louisiana, for violations of Title VII of the Civil Rights Act of 1964. Three of the four women claimed sexual harassment by the station's former president and general manager, who sat on the board of directors and owned 2 percent of the corporation's stock.

The court said the issue of whether the general manager was the station's proxy "is central to the resolution of the case because an employer is automatically liable for its proxies' harassment of employees. "Stock ownership is not a prerequisite for acting as a corporation's proxy/ the only factor relevant to the determination of whether the manager was a proxy for Fox 29 is whether he held a 'sufficiently high position in the management hierarchy' so as to speak for the corporate employer," the court said.

The court ruled that "The record at least creates a question of fact as to whether the general manger was within that class of National Communications' officials who may be treated as the organization's proxy such that his actions are imputable to National Communications and the Faragher/Ellerth affirmative defense is unavailable." The court remanded the case to the district court.

The case is Ackel v. National Communications Inc., 5th Cir., No. 02-30460, 8/1/03.

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THE WEBB REPORT - August 2003

Academy Changes Policy on Handling Complaints

The U. S. Air Force Academy announced changes in the way it handles sexual assault claims, instituting a policy in which a complaint will automatically prompt a formal criminal investigation. Under the new policy, victims will no longer have the option of remaining anonymous.

The policy change comes after accusations by dozens of current and former cadets that academy officials punished them, often for minor disciplinary infractions, after they reported being raped. The victims also said that their assailants largely avoided court martial. Complaints have also included allegations of poor investigations where prosecutors have lost track of evidence.

Under the new policy, a team approach for responding to rape has been developed including criminal investigators, a chaplain, a nurse and a representative of the cadet's chain of command. In explaining eliminating confidentiality, academy officials said in a statement, "All Air Force members have a requirement to report crimes."

A statement accompanying the policy stated, "We won't blame the victim. We will help them in any way required to restore them as productive member of the team; and we will not tolerate discrimination, harassment, intimidation of assault of any kind!"

The new policy did not please victims of rape, their family members, or their advocates. One man whose daughter reported being raped by a cadet called the changes a "shadow show" and said he believed little would change. He accused the academy of trying to shift attention from the actions of its former commandant of cadets, Brig. Gen. S. Taco Gilbert III, who was replaced by Air Force officials in April. Gilbert has apologized for his comments blaming a rape victim for acting irresponsibly but has not acknowledged or been charged with any criminal wrongdoing.

Joseph Madonia, a Chicago lawyer representing a half-dozen current and former cadets who say they were raped, said the new measures were an effort to cover over the deeper problem of a culture of hostility toward women with a "blanket solution."

The new policy follows some of the steps outlined in a long document, "Agency for Change," that the Air Force announced in late March. However, eliminating confidentiality is an about face in policy direction.

In hearings before member of Congress last March and April, Air Force Secretary James Roche said the Air Force had considered, and rejecting the elimination of confidentiality for victims of rape. Now, this new policy appears to follow the practice in place at the Naval Academy in Annapolis, Md.

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THE WEBB REPORT - July 2003

Appeals Court Reverses Dismissal of EEOC Suit

EEOC announced that the U.S. Court of Appeals for the Ninth Circuit has reversed a lower court's dismissal of EEOC's sexual harassment and pregnancy discrimination lawsuit against the Pasadena, California-based law firm Reeves & Associates and remanded the case for further proceedings. The Ninth Circuit also overturned a rare award of attorneys' fees against the EEOC previously granted by the Federal District Court in Los Angeles.

In an unpublished opinion, a majority of the three-judge Ninth Circuit panel reversed the lower court's decision and ruled that the EEOC had presented sufficient evidence to support a claim for both sexual harassment and pregnancy discrimination, and that the Reeves firm was not entitled to any of the $363,075.21 in attorneys' fees awarded against the EEOC. In the event that Reeves & Associates does not petition the Ninth Circuit for a rehearing, the case will be remanded to the district court for trial.

The EEOC's lawsuit charged that the law firm's founder, Robert L. Reeves, sexually harassed several women and discriminated against women on the basis of pregnancy. The suit, initially filed on September 29, 2000, in the U.S. District Court for the Central District of California (Western Division), was dismissed in 2002 by the district court after the Reeves firm brought motions for summary judgment - a legal maneuver used by parties to avoid a jury trial by securing a dismissal of the case from the presiding judge.

In its unpublished opinion, the Ninth Circuit found that a reasonable woman in the position of the EEOC claimants "could have believed that Reeves' sexual jokes, comments, leering, and offensive touching were sufficiently severe or pervasive to alter the conditions of their employment." The Court also found that the alleged conduct, "combined with [Reeve's] position within the firm as the partner with final decision-making authority in all matters concerning the firm, is sufficient to permit a reasonable juror to conclude that Reeves created an abusive working environment."

The Ninth Circuit further found that the EEOC had "presented sufficient evidence" of one female employee's "satisfactory work performance and the discriminatory circumstances surrounding her termination to establish a prima facie case of pregnancy discrimination." Moreover, the court said that the EEOC had also "presented sufficient, specific evidence to allow a reasonable juror" to find that the reasons Reeves & Associates gave for firing her "were a pretext for pregnancy discrimination."

Olophius Perry, Director of the EEOC's Los Angeles District Office, which investigated the case and brought the suit, said: "The Ninth Circuit has applied the proper legal standards in evaluating the facts of this case. The Ninth Circuit's opinion vindicates our decision to file this lawsuit on behalf of the women who we believe were subjected to a sexually hostile work environment and pregnancy discrimination at the Reeves law firm."

Gregory Gochanour, EEOC's Acting Regional Attorney in Los Angeles, added, "We are pleased by the Ninth Circuit's opinion and look forward to giving the female victims their day in court. In the end, we are confident that justice will prevail." EEOC v. Robert L. Reeves & Associates, 9th Circuit Case No. 02-56179, District Court Case No. CV-00-10515.

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THE WEBB REPORT - June 2003

Hospital Pays $5.4 In Harassment Suit

A Brooklyn hospital has agreed to pay over $5.4 million to settle the complaints of scores of female employees who claimed that a doctor sexually harassed them during pre-employment physical examinations. EEOC said the case, which involved Lutheran Medical Center, was its largest sexual harassment settlement in the state of New York. The eight employees will divide nearly $2 million with the remaining $3.4 million divided among 43 other current and former employees who said they were harassed by the same doctor.

EEOC officials sent notices to approximately 1,200 women who had been examined by the doctor, a general practitioner, during the four years he acted as the examining doctor for new employees. Officials said they believe the women who came forward include most of those who might have been harassed. The doctor lost his medical license two months ago. In the suit, the women claimed that the doctor's physical exams, which were required for new Lutheran employees, resulted in physical and verbal sexual abuse. The women said the doctor touched their breasts and genitals and made comments about their sexual and dating habits. They said he told them if they did not agree to everything he asked they would not be hired.

One of the women said, "After the exam, I knew something had happened that shouldn't have happened. I thought it was just me."

Officials of the hospital said the doctor was fired in 2000 after several allegations of wrongdoing during his exams came to light. Last year following a hearing, the State Board for Professional Medical Conduct suspended the doctor's license for six months. However state health officials said that discipline was inadequate and appealed the ruling. That resulted in the doctor's license being revoked.

The doctor's attorney said the light criminal charge, which included no penalties, show that the complaints were without merit. He said it was only after EEOC got involved in the case that many women came forward. "No one was physically damaged," the attorney said, "and now, people are saying, three years later, that they're emotionally damaged? Their complaints were very slight."

The attorney said that the doctor believed inspecting a woman's genitals and asking about her sexual history were appropriate for a comprehensive medical exam for someone wishing to work in health care.

Another one of the complainants, who was hired as a file clerk at Lutheran, said she was 19 at the time of her exam three years ago. "I thought a breast and vaginal exam were required. Even when he hurt me and the exam felt wrong, I thought he was doing what he was required to do."

The president and chief executive of Lutheran said the hospital now offers training for employees on how to spot and prevent sexual harassment and now has an anonymous employee hot line. In addition, female chaperones are required to be in the room during all employment-related exams of women and the hospital handbook now says that breast and gynecological exams should not be part of a pre-employment screening.

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THE WEBB REPORT - May 2003

Jury Awards $2.4 Million to Manager

A Pennsylvania jury found that FedEx retaliated against a former female supervisor and awarded her $2,309,003 in lost wages and punitive damages. The retaliation was allegedly because the woman supported the sexual harassment claims for a co-worker and for voicing concerns that she was being discriminated against.

The woman, who was an award-winning manager for FedEx, gave a deposition in a sexual harassment lawsuit brought by a female truck driver against the company. Shortly afterwards, the woman's supervisor told her to "either accept a serious disciplinary letter, which would drastically limit her career at FedEx, or accept a demotion," and be fired, she claimed. The woman then filed an internal complaint against her supervisor.

FedEx had the woman represent the company at trial in the trucker's harassment case. The woman said that because of her absence from the office due to the commitment required by the trial, her supervisor threatened her several times with termination.

The woman said she was confused by her supervisor's actions, and relying on the advice of FedEx's attorney in the sexual harassment case, she wrote a memo to top company executives stating her concerns about her supervisor's behavior. Twenty-seven days later she was suspended and subsequently fired. The woman sued in federal district court, alleging sex discrimination and retaliation in violation of Title VII of the 1964 Civil Rights Act and state law.

The case ended in a mistrial and was retried on the retaliation claim only. The jury ruled in the woman's favor, awarding her approximately $2.3 million in lost wages and punitive damages.

The case is Talbot-Lima v. Federal Express Corp., E.D. Pa., No. 01-547, judgment entered 2/21/03.

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THE WEBB REPORT - April 2003

Burger King Sued for Harasment of Teens

According to the Equal Employment Opportunity Commission, a manager at a Burger King restaurant in Peerless Park, Missouri, sexually harassed six young women -- five of them high school students. Lynn Bruner, EEOC's district director, cited similar cases and said she is concerned about the vulnerability of teenagers working in the restaurant industry.

"We as a society fail when teenagers -- as part of their first employment experience -- are subjected to graphic language, inappropriate touching and requests for sexual favors by the very adults who are supposed to make sure they're safe," Bruner said.

The suit claims that Midamerica Hotels Corp., of Cape Girardeau, which owns the Burger King, created an environment in which the women were subjected to harassment. The attorney for Midamerica, Susan Rowe, dismissed the claims. "Midamerica Hotels Corp. did nothing wrong whatsoever, and we will vigorously defend this case," she said.

The suit was filed in U.S. District Court claiming a manager subjected the six female employees to repeated fondling, vulgar sexual comments and demands for sex. The incidents took place in 2000 and 2001. Several of the women complained to the restaurant's two assistant managers, but they took no steps to stop the harassment, according to EEOC.

The suit also claims that the women had no knowledge from Burger King about how to take a complaint to someone above the manager. EEOC said that only after enduring weeks of mistreatment by the manager did the young women learn how to reach upper management and then made complaints at that level. The attorney for the women, John Applebaum, said the company did not respond to the complaints. He said the manager no longer works for the Burger King.

The five high school women were either 16 or 17 at the time of the incidents. The manager was in his late 20s. EEOC's attorney Bruner said the sexual harassment problem at restaurants has emerged through the commission's court cases. Last December the commission settled a case in which it alleged that the manager of a Church's Chicken franchise in Wichita, Kansas, had harassed and then sexually assaulted, a 14-year-old girl who worked at the restaurant. The Church's franchise agreed to pay $150,000 to settle the case.

Bruner said the restaurant industry as a whole is vulnerable to sexual harassment. She said employees are often young and inexperienced, and there is high turnover among employees. In addition, restaurants often try to create an entertainment atmosphere that confuses the rules for appropriate behavior in the workplace, she said. Bruner said EEOC offers restaurants and other businesses information and assistance in training employees to avoid breaking the law.

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THE WEBB REPORT - March 2003

NY State Bar Survey Shows Discrimination across Profession

According to a recent survey, even while more women than ever are becoming lawyers, discrimination and gender inequities remain serious problems within the profession.

Lorraine Power Tharp, president to the New York State Bar Association, "While women have made significant strides in the legal profession, gender inequity remains prevalent to a degree that is unacceptable. It is critical that we work to ensure that policies and practices are in place to address the realities that women lawyers face each day."

According to the survey:

More than half of women responding said that experienced or observed some form of sex discrimination involving either words or demeaning treatment, including degrading jokes and comments and condescending behavior by judges and lawyers;

Female attorneys are paid less than their male counterparts, have less opportunity than men and advance at slower rates than men. For example, the study cited about six in 10 full-time male lawyers surveyed who made at least $100,000 a year, but only about four in 10 of the women had reached that salary level. Forty-two percent of the women responding earned less than $50,000 a year, compared to 30 percent of the men;

Women are more often involved in committees in their firms that address diversity and issues affecting associates. However, men more often are the ones making decisions regarding pay, partnership and business development;

Most women believe that they have to work harder than men do and that they are not treated or paid the same as male attorneys.

However, on the positive side of the picture, most attorneys, both male and female, indicated a high level of career satisfaction overall in their responses to the survey.

The survey and subsequent report was cone by a New Jersey-based consultant and was based on questionnaires returned by 705 lawyers -- 363 women, 289 men and 54 people who did not indicate their gender.

Tharp, who works for the Albany, NY-based firm of Whiteman, Hanna and Osterman and is the daughter of the former district attorney, said the survey's findings reflect her experience in practicing law.

"During my law school days in the early 1970s, women were accused of being there only to find a husband. One law professor had 'ladies days' in which he called only on women; the cases often related to domestic chores or some slightly risque issue," Tharp said.

She said that one job interviewer asked her if she planned to have children, while another said that although she had good qualifications, he had already hired one woman that year, and didn't plan to hire another one right away. Tharp said, "Early in my career, while in court, a judge asked opposing counsel if he had called me to discuss the case and when he said 'no,' the judge replied that he personally would have called, implying a reason other than the case for making contact.

According to Jay Gallagher, Albany Bureau Chief writing in the Rochester, NY Democrat and Chronicle, and from whose article this information is excerpted, this report is "not to say there hasn't been progress. Tharp is the third female to serve as head of the state Bar Association, which counts about 70,000 of the state's 120,000 lawyers as members." Gallagher said there have been 105 presidents of the bar association and that there are three candidates to succeed her in two years and one is a woman. Tharp said, "It's getting to the point where it's not unusual at all (for a woman to be president of the association)."

Women are also more than half of law school students. The Bar Association has appointed a committee to look at what needs to be done to eliminate discrimination found by the survey. Tharp said the panel is to report back by April with some "concrete detailed steps" that the profession needs to take. Tharp also said that racial and ethnic minorities are not as well represented among attorneys as they should be, and that steps need to be taken to narrow the gap.

Jay Gallagher can be reached by e-mail at jggannett@yahoo.com.

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THE WEBB REPORT - February 2003

Company Ignored Previous Harassment

The U.S. Court of Appeals for the Fourth Circuit ruled that a federal trial court's decision that a cable company was not responsible for the alleged harassment of a female employee because it responded quickly and effectively to her complaints was reversed because the company ignored evidence that the employer was lax in investigating prior allegations of sexual harassment.

The circuit court decision reversed summary judgment for Alcatel NA Cable Systems and remanded the case. The court said that an "employer, whose tepid reaction to complaints of abusive behavior emboldens would-be offenders, may be liable for failing to prevent subsequent harassment."

The woman said she was harassed by a co-worker over several years. During this period of time, two other employees also complained of being harassed by the same man. A fourth woman alleged that she was harassed by the man and another co-worker. When the first woman was assaulted by the man, she reported it to a supervisor, telling him she wanted to press charges. The company's investigation did not verify her claim, but a company manager did warn the man that the company forbid sexual harassment and told him he would be fired if the woman's allegations were substantiated.

The woman sued, claiming sexual harassment under Title VII. The district court granted Alcatel summary judgment. On appeal, the woman argued that the company allowed other women to be harassed without taking action.

The Fourth Circuit said that liability may be imputed to an employer if it should have "anticipated that the plaintiff would become a victim, but failed to take action reasonably calculated to prevent the harassment."

The case is Alexander v. Alcatel NA Cable Systems Inc., 4th Cir., No. 01-2077, unpublished opinion 10/15/02.

The Fourth Circuit includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

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THE WEBB REPORT - January 2003

School Board Pays $75,000

According to Marietta Nelson reporting for the Bremerton, Washington Sun, the Bremerton School District agreed pay $75,000 to the family of a Bremerton High School student who was expelled nearly three years ago. The case was filed in U.S. District Court and according to the agreement, the male student and his parents will receive the amount of $75,000 to cover legal costs they incurred while fighting the 1999 expulsion.

The student's attorney said the case's resolution was a triumph for his clients. The school district officials called it a cost savings. School district spokeswoman Joan Dingfield said the resolution to the case "was reached for economic reasons to avoid the high legal costs of a frivolous lawsuit."

In the suit which was brought last spring, the parents named the school district, the former Superintendent and a former Bremerton High School Assistant Principal as defendants. The two defendants no longer work in the district Nelson reported. In addition, three school board members were also named in the suit.

The case resulted from the expulsion of the male student in December 1999 after he was accused of exposing himself to a female student. The parents, who are both teachers in the Bremerton district, appealed the expulsion to the board.

When school board members affirmed the expulsion, the parents took their case to Kitsap County Superior Court. The male student was reinstated as a BHS student in fall 2000. He graduated in 2001.

The parents then brought the federal case, alleging that their son's civil rights had been violated. They said the district conducted a faulty investigation and the board members did not conduct an impartial hearing. The case was never heard. Attorneys on both sides worked for an out-of-court settlement, but were unsuccessful.

Finally on Dec. 9, 2002, the school district's attorneys Patricia Buchanan and William Kiendl, of the Seattle firm Lee Smart Cook Martin and Patterson, filed a Rule 68 Offer of Judgment. Under the procedure, the district would pay the parents $75,000. The parents could have refused the money, but if they went to trial and lost, or won and received a judgment of less than $75,000, the family would have been liable for the school district's legal costs.

According to both Buchanan and Jesse Wing, the family's attorney, while the financial implications of Rule 68 are clear, the interpretations of liability are not. Buchanan said that in Rule 68 "one party can offer the other party an amount to settle. This offer was made despite the fact that all of the defendants anticipate that no judgment will be made against them. This does not mean the district admits a mistake."

However, Wing, of Seattle firm MacDonald, Hoague and Bayless, argued that a Rule 68 Offer of Judgment means the district has accepted liability for the family's accusations.

Wing said: "They offered to accept liability in this case. They are trying to spin this as an agreement or a settlement, but there is a judgment entered in court against them," he said. "There is a difference between a judgment and a settlement. That's why it's not called a Rule 68 settlement."

As for individual perceptions, one former board member said she was happy that the matter was closed. Another, who was president of the school board at the time of the expulsion hearing, said she is still frustrated by what she called a "frivolous lawsuit." She said the school district's actions were proper and truthful. She said in the end, the lawsuit contributed to her decision to leave the school board.

"It was stressful, and I was having some bad physical problems," she said. "The doctor told me I had to make a choice. The board was my passion."

The family refused comment on the resolution to the case, but their attorney was pleased. "This is a pretty high sum of money for this kind of case," Wing said. "They are not often seen at U.S. District Court level."

The school district's liability insurance will cover the payment. Susan Webb provided expert witness consulting services for the school district.

Reporter Marietta Nelson can be reached at (360) 792-9219 or at mnelson@thesunlink.com.

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