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Posner opinion tosses judge from case partly for his 'tone of derision'

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A federal appeals court in Chicago has tossed U.S. District Judge Milton Shadur from a sex-bias case in part because of a “tone of derision” in his opinion.

The 7th U.S. Circuit Court of Appeals, in a Nov. 14 opinion (PDF) by Judge Richard Posner, didn’t refer to Shadur by name, though he handled the case in the trial court.

Posner’s opinion cited the judge’s “abruptness and irregularity” in handling the case, as well as an “unmistakable (and to us incomprehensible) tone of derision that pervades his opinion” dismissing the plaintiff’s suit.

It’s not the first time that the 7th Circuit has removed Shadur from a case. In another Posner opinion in 2010, the appeals court said Shadur had made “a cascade of errors and omissions” in sentencing a Chicago politician in a corruption case.

More recently, Shadur agreed to recuse himself in a suit filed by Michael Jordan after lawyers for the basketball star argued the judge had “demeaned and disparaged” Jordan and the lawyers, the Chicago Tribune reported in June. Shadur said he wasn’t biased, but the groundless attack on his integrity made it possible that “subliminal forces” could interfere with his decision-making.

The suit before the 7th Circuit was filed by Maura Anne Stuart, a professional driver who wanted to drive courtesy vans used to transport actors and others in Chicago movie productions. Stuart had alleged the union local effectively controls who gets hired for these high-paying jobs, and in its 70-year history had never referred a female driver.

Stuart says she filled out the union application in March 2010, paid the initiation fee and began paying dues. But she was never referred for a driving job and was told to stop calling about possible driving jobs—she would be notified when something was available, according to Stuart’s suit. In October 2011, she filed a charge of sex discrimination with the Equal Employment Opportunity Commission, and in December 2013 she sued.

The union claimed Stuart had failed to allege any discriminatory actions within the required 300 days before filing the EEOC charge; Stuart maintained the union had continued to fail to refer work to her during that period, so the claim was timely.

“The judge was unimpressed by the plaintiff’s response,” Posner wrote. “Four days after receiving it he dismissed the suit with prejudice even though [the union] had not moved for dismissal with or without prejudice.” Shadur believed that a failure to refer a person for a job cannot be the basis for a Title VII suit, but that belief is incorrect, Posner said.

Posner concluded his opinion with this criticism of Shadur: “Because of the abruptness and irregularity of the district judge’s handling of this case (we can’t understand his deciding to dismiss the complaint with prejudice, thereby preventing the plaintiff from amending the complaint, or his instructing his law clerk to request the plaintiff’s EEOC charge from the plaintiff’s lawyer, without telling the defendant, even though the charge was not part of the record), and the unmistakable (and to us incomprehensible) tone of derision that pervades his opinion, we have decided that further proceedings in the district court should be before a different district judge.”

Shadur’s opinion dismissing the case is here.