Judge Walter Smith, a Federal judge in Waco, was reprimanded by the Fifth Circuit last year for unwanted sexual advances on one of his employees back in 1998. I wrote about that reprimand here. Judge Smith has now retired. Apparently, the investigation into whether he made advances on other women over the years will continue. A federal judicial conduct committee met last July and found that the sanctions imposed against Judge Smith may not have gone far enough. The lawyer involved in the first complaint, Ty Clevenger, appealed the Fifth Circuit’s sanctions to the judicial conduct committee. As part of his appeal, he submitted the names of other courthouse employees who had been harassed by Judge Smith.

It turns out that during the initial investigation, Judge Smith failed to mention that the lawyer defending him had cases pending in Judge Smith’s court. That poses problems for Judge Smith and his defense lawyer. And, Ty Clevenger has his own legal issues. He has filed numerous complaints against judges and lawyers for years. He maintains a judge blog, dirtyrottenjudges.com. He was sanctioned by a Washington, D.C. judge and fined $120,000. An action to disbar him is pending in the District of Columbia. Judge Smith sanctioned Mr. Clevenger seven years ago for filing a frivolous lawsuit. He fined him $25,000. See Waco Tribune-Herald report.

The frightening thing for lawyers who do what I do is that he granted summary judgment in one of my discrimination cases many years ago. What do victims of discrimination do when the fox is guarding the hen-house?

Many lay persons have this idyllic view of the judicial system that judges are sober, thoughtful and the jury members even more so. But, judges and jury members are human, after all. Indeed, many members of the jury, like many citizens at large, are skeptical about claims of discrimination. Judges are no different. In fact, some judges are harassers themselves. Judge Sam Kent in Houston was forced out as judge after he harassed two female clerks. That investigation lasted years. I wrote about that legal odyssey here and here.

Judge Walter Smith in Waco has also been found guilty of harassing a female deputy clerk. In 1998, he groped and tried to kiss an unidentified female deputy clerk. See Austin American-Statesman report. Judge Smith has been serving as judge since 1984. Now, he has been sanctioned in the sense that he will not be assigned any new cases for a year. See San Antonio Express News report. It was just a few years before 1998 when he granted a motion for summary judgment in one of my cases. I do not recall the details. I only recall that he seemed to take some delight in granting the motion against my client, thinking perhaps that our case was frivolous.

It is one thing to have a judge who is skeptical about discrimination cases. It is another thing entirely to have a judge who himself harasses members of a minority.

1998 is too far back for any clerk to file a discrimination complaint. It is far too late to file any sort of civil action. In fact, the lawyer who filed the complaint regarding Judge Smith only learned about the harassment as part of his own legal problems. Judge Smith had granted sanctions against a lawyer for allegedly filing a frivolous lawsuit. As part of defending himself, the lawyer, Ty Clevenger, deposed that deputy clerk and learned about the harassment. See ABA Bar Journal report.

Judges are human, too. Our legal system is flawed. Some clients refuse any settlement discussions.  They do so at their peril.

I forget where I first heard this sage advice: do not mess with teachers in the classroom, judges in the courtroom or police in the streets.  Now I am a lawyer and know all too well, do not disrespect judges in the courtroom.  It only leads to trouble.  One Houston lawyer with a large law firm, Littler Mendelson, was reminded of this after he filed suit over alleged civil rights violations.  His client claimed the civil rights of her daughter were violated  when a client tried to become a high school cheerleader.  

The lawsuit was based on 42 USC Sec. 1983, a civil rights statute.  The suit was dismissed.  The plaintiff appealed.  The plaintiff’s lawyer said unkind things about the lower court decision written by a Magistrate Judge.  The court of appeals in a decision written by Judge Jerry Smith responded: 

“Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.”  He described the theory behind the suit as "flimsy."  See ABA Bar Journal report

It is very rare for an appellate judge to start out so critical.  But, he did not end with that.  He mentioned later in a footnote:

“Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word ‘principals’ should have been “principles.’ The word ‘vacatur’ is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (‘incompetence’) and a plural verb (‘are’).”

That is as personal an attack as occurs at the appellate level.  Judge Smith was clearly perturbed.  Magistrate Judges are not appointed by the President.  Appointed federal judges are known as "Article III" judges.  Magistrate Judges are hired by the appointed Article III judges and essentially serve as assistants to the appointed judges.  The Magistrate Judges typically hear motions and some trials.  They serve for ten years and are generally well-respected jurists in their own right. 

The judge was criticising the statement by the Littler Mendelson lawyer about the Magistrate Judge.  The lawyer had said that because he is not an Article III judge, his "incompetence in applying general principals [sic] of law are [sic] extraordinary."  Judge Smith said this sentence was unlcear, but it seemed to be making an unjustified attack on the magistrate judge.   The plaintiff’s lawyer attacked the Magistrate Judge.  Judge Smith responded. 

I tell all my clients and anyone else interested that going to court is much like a drama presentation in a theater, everything we do is watched, scrutinized and analyzed.  All trial lawyers know this.  but, on this day, I think this one lawyer from one mega firm forgot this important lesson.  


The law must reflect the everyday reality of all Americans.  If the law is not grounded in reality, it is no longer "the law."  It becomes something oppressive.  Judge Tate, a long-time judge on the Fifth Circuit, used to say that an appellate decision should make sense to a barber in Ville Platte, Louisiana.  He meant that any decision should be "explainable" to an average person.  The recent decision in EEOC v. Boh Brothers Construction Co., L.L.C., No. 11-30770 (5th Cir. 9/27/13), reflects the reality I understand.  But, I am struck by the two dissents.  The decision is en banc, meaning the entire court heard the case.  The en banc decision overturns the previous decision by a smaller panel of judges.  

In EEOC v. Boh Brothers, the EEOC represented Kerry Woods, an iron worker in New Orleans.  His supervisor, Chuck Wolfe, harassed Mr. Woods because, in Mr. Wolfe’s view, Mr. Woods was not masculine enough.  The EEOC accused the employer of creating a hostile work environment.  The jury found in favor of the plaintiff and awarded compensatory and punitive damages.  Mr. Wolfe supervised a crew of five.  He was vulgar and ribbed his men constantly.  Within a year, Mr. Woods became the supervisor’s primary target.  Mr. Wolfe referred to Woods as "pu–y," "princess," "fa-ot," to or three times a day.  About two or three times a week, when Mr. Woods would bend down to pick something up, supervisor Wolfe would approach him from behind and simulate anal sex.  Mr. Woods felt embarrassed and humiliated.  The supervisor would urinate during work and wave to Woods and smile while doing so.  

According to Mr. Wolfe, some of the teasing started when Mr. Woods said he brought wet wipes with him for lunch.  According to the supervisor, the co-workers teased him about that.  Mr. Wolfe said if you bring that to work, then you should not tell anyone.  He said it was feminine to use wet ones. 

The iron worker complained to the foreman who did nothing.  Within a few months, Mr. Woods asked to see a co-workers’ time sheets.  Mr. Wolfe said that was a terminable offense.  He said Mr. Woods did not fit in.  He was "different."  The supervisor said he was "done with" Mr. Woods.  The iron worker was then transferred.  Mr. Woods then complained to the general superintendent.  The superintendent investigated, found the supervisor’s conduct to be unprofessional, but did not rise to the level of sex harassment.  

A few months later, Boh Brothers laid off Mr. Woods.  He filed a complaint with the EEOC alleging sex harassment.  The jury found in his favor.  The employer appealed.  The first panel overturned the jury verdict, saying there was insufficient evidence to support the jury result.  

The plaintiff then appealed to the en banc court, which upheld the jury verdict.  The majority found that there was sufficient evidence to show that the supervisor harassed Mr. Woods because of his sex, because he was not "manly" enough.  The supervisor, said the majority,  was engaging in sex stereotyping.  Supervisor Wolfe specifically said he targeted Mr. Woods’ masculinity.  The majority opinion noted it had to draw all inferences in favor of the plaintiff.  The majority noted that the seminal decision regarding same sex harassment, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), states that the courts cannot impose a "code of civility" on the workplace.  The court must also display some sensitivity to the social context of the alleged harassment.  But, as the majority noted, this analysis is necessarily fact specific.  Social context is a jury issue, not a judge issue.  

There are three dissents to this decision, but two which cause me some concern.  Two dissents reflect a lack of respect for the role of the jury.  And, in my opinion, these two dissents seek to impose on the jury a wrong-headed view of the all-male workplace.  

In Judge Jones’ dissent, she acknowledges the supervisor’s vulgar and crude remarks.  She claims there is no "hard" proof that the supervisor’s conduct was motivated by gender.  Okay, but the jury was persuaded there was just such evidence.  Judge Jones is drawing no inference in favor of the jury verdict.  In the judge’s view, the majority decision imposes a "speech code" on the public.  In her view, these epithets were not related to sex.  The judge persists in according no deference to the jury’s view that the speech did indeed concern sex.  The judge adds that "everyone" knows what sex stereotyping is.  Opinion, at 48.  She argues that in Mr. Woods’ workplace, crude sexual epithets are very common.  Again, the judge is substituting her opinion for that of the jury.  In our legal system, the jury has the responsibility to find or recognize social norms.  In the civil legal system, used in such countries as France and most of Europe, a well-trained judge has the duty to recognize social norms.  But, in our legal system, inherited from England, that duty belongs to a jury of our peers.  

And, on a personal level, I find her contention to be simply wrong.  I served in the U.S. Army and Army Reserve for 28 years, most of that time in the Infantry.  The Infantry is definitely an all-male environment.  I also worked in several civilian all-male workplaces, from warehouses, to road crews to one month digging ditches for a sprinkler company.  "Crude sexual epithets" were not the norm, at all.  In fact, the sort of harassing exhibited by Chuck Wolfe would get him "run off" or fired from any construction crew I was a part of.  The judge is right that things are more crude on a work crew.  But, too much harassing causes tension.  Tension decreases efficiency.  Decreased efficiency on a work crew will not be tolerated.  Judge Jones displays a simplistic, paternalistic view of the all-male work environment.  Worse, she minimizes the evidence presented at trial.  

For one week, I once worked for Sears delivering major appliances.  My driver and my boss was one of those "crude" persons Judge Jones describes.  His name was Robert or Roberto.  It was hard to hear him in the loud truck.  The cab was not air conditioned, so the windows were always down.  Being the college kid I was, I would always respond with "pardon me" when the noise was too loud.  He loved that.  He would guffaw loudly and proclaim, "no pardon needed!"  I knew even then that, if I had made crude sexual epithets toward other workers, Robert would have "run" me off or had me  fired.  He just would not have tolerated unnecessary tension.  Tension decreases efficiency.  And, yes, even blue collar folks have some manners. 

Judge Smith’s dissent is similar.  He ascribes the majority’s opinion to the realm of "political correctness and social engineering."  Opinion, at 62.  Judge Smith remarkably cites evidence to contradict the jury’s finding.  Judge Smith states that according to certain NFL players, using wet ones is not feminine.  Judge Smith misses the point.  The point is not what is "truly" masculine, but what Chuck Wolfe believed was masculine.  His information is not pertinent.  This information was not part of the trial.  Judge Smith’s dissent strikes me as more political than legal.  The judge concludes that the "hypersensitivity" exhibited by the trial verdict will hasten "cultural decay" and undermines at-will employment.  Again, I do not understand how we get to "cultural decay" in a Title VII lawsuit.  This sounds more like a political argument than a legal one.  See opinion here

But, in the end, neither Judge Jones or Judge Smith can explain how a jury, with no apparent stake in the outcome of the trial, arrived at a completely different conclusions about all-male workplaces and blue collar manners. 

A little known fact is that many defense lawyers who practice employment law are actually political moderates. Many of my defense lawyer friends actually were appalled by former Pres. Trump. But, not all. Two lawyers resigned from the mega firm, Lewis Brisbois Bisgaard & Smith in Los Angeles to start a new law firm that “reflects our values.” What were those values? Well, poking fun at Jews was one. Making anti-female and racist comments were two others. The two partners were the Chair and Vice-Chair of the Labor & Employment section at Lewis Brisbois.

John Barber and Jeff Ranen were also members of the management committee for the 1600 lawyer firm. That means they helped run the firm. Dozens of emails were provided by Lewis Brisbois to Above the Law and the Forward blogs detailing their many prejudices. For example, in 2012, Raven emailed to Barber that the firm does not hire Jews. In another email, Raven boasted to Barber that in one of his cases, the opposing lawyer was an observant Jew. The Jewish lawyer had asked Ranen to not send him any deposition related material on Saturdays. So, boasted Ranen, he always emailed the observant Jew on Saturdays. Ranen added, “I almost ONLY write to him on Saturday mornings.” Barber responded, “Jew hater.”

So, when lawyers make a special request, like “please do not send me any materials on Saturdays,” the great majority of us honor those requests. Litigation is by definition adversarial. It is exceedingly easy for the process to devolve into name-calling and spitefulness. We honor those requests because: 1) the opposition can use it against us when we do not, and 2) the opposition will do it to us, as well.

The two senior partners also made frequent comments about the breast size of female lawyers at their firm and about female judges. They used the n-word and made frequent anti-homosexual comments. Since Lewis Brisbois released these emails, the two men resigned from their newly created law firm. Lewis Brisbois located the emails after a formal complaint was submitted about the two men. The actions of the mega-firm suggest they are trying to make amends. Let’s hope they do. See Above the Law post here and the Forward post here.