Wednesday, September 02, 2009

City Attorney Calls Linehan Decision Weak; Plans To Spend More Tax Dollars On An Appeal

City attorney Jon Mayes is dismissing the opinion of a full panel of the Equal Opportunity Employment Commission in Washington, D.C. because of what he describes as the "decison's weakness" and because the size of his award, $330,000, is too high. The Star's Jon Murray writes:

"We've reviewed the decision, and we are strongly considering an appeal, given the decision's weakness," said Jon Mayes, the city's chief litigation counsel.

After Linehan's firing, Ackles promoted Alfarena Ballew, who is black. Ackles didn't seek a second term in 2008, but Ballew still serves as chief deputy for the new coroner, Dr. Frank Lloyd Jr.

The commission's decision affirmed an administrative law judge's 2007 finding, which the city had appealed, and awarded Linehan $200,000 in compensatory damages for emotional distress; $129,600 for about two years of lost pay, reduced from the 2007
decision by $34,000; and $62,000 to cover Linehan's attorneys fees and costs.

Few cases result in such high damage awards, Mayes said. Federal law limits compensatory damages alone to $300,000, and he called $35,000 a more typical "rule of thumb."

But the 7th U.S. Circuit Court of Appeals in Chicago often reduces EEOC awards even more, Mayes said, making a new appeal attractive.\

Linehan was gratified by the EEOC decision.

"This still lingers over me, job-wise," said Linehan, 57, who works part time as a paramedic and assists his wife's medical practice. "I'd have to relocate in order to get
another job in forensic work."

I haven't seen the total bill to date to defend all of the discrimination suits filed against the former Marion County Coroner, but I suspect the tab is now approaching $1 million. And that doesn't account for the bone-headed decision the former coroner made in getting rid of the pathology contract with FPAI, which has resulted in several hundred thousand dollars in additional costs for the county annually. And the City is worried about paying Linehan $330,000?

UPDATE: While we're on the subject, the Ballard administration put out this press release today touting improvements in the administration of EEO complaints filed with the City:

Mayor Greg Ballard, joined by Deputy Mayor Olgen Williams, Maxine Russell, Director of the Office of Equal Opportunity (OEO), as well as clients served by the OEO announced today that the newly-restructured Office has succeeded in clearing a backlog of more than 240 cases, some dating back to 2003.

In addition, a streamlined adjudication process designed to operate efficiently and equitably for all parties involved in disputes means the OEO now has the capacity to screen, accept, and process more cases than it was able to accommodate in the past.

“Through diligent work and a complete overhaul of the Office of Equal Opportunity, we have cleared a backlog cases and developed a case management process that guarantees fair, efficient adjudication of new claims,” said Mayor Ballard. “This is a city agency designed to serve anyone who believes they have been discriminated against in Marion County, and I hope those who have a need for this service will bring their cases to us. Our doors are open for business.”

Challenges with the Equal Opportunity adjudication process were identified through the City’s IndyStat program, a management tool developed to improve operations within City-County departments and agencies. The adjudication process lacked structure at the outset, and this problem was compounded by an inadequate investment in Equal Opportunity case management. In addition, lack of screening of complaints resulted in processing cases that did not involve discrimination at all.

The overhaul of the Equal Opportunity Division began with restructuring and moving the Division to the Office of Corporation Counsel, where city attorneys and paralegals were available to judiciously and methodically address each claim of discrimination.

A full-time staff of three individuals is now devoted entirely to the complaint adjudication process with the ability to expand within the Office of Corporation Counsel on an as-needed bas
Editor's Note: As I've previously disclosed, I represent parties who claim they were discriminated against by the Coroner's Office because of their race, including the former pathologists.


Paul K. Ogden said...

I have complained about this before, Gary. Joe Loftus intentionally staffed City Legal with very inexperienced attorneys in leadership positions, exactly because they could be easily manipulated.

Chris Cotterill had just five years experience when he made him head of all of City Legal. Jon Mayes only had two years experience when he was named head of the Litigation Division. The Mayes decision was almost worse because litigation is the one area where there is no substitute for experience. Mayes knows as much about litigation as I knew when I was a two year attorney - not much. Side Note: Mayes actually represented to the Council that he was a "constitutional lawyer" when he misinformed the council that the panhandling ordinance would be easily upheld in any litigation.

What you're seeing is the product of legal inexperience in City Legal. Repeatedly they've given the Council and the administration bad advice not to mention poor litigation decisions. Mayes seems to not understand that part of an attorney's responsibiility is to keep his client out of litigation, which means getting them to change the behavior that led to the litigation.

Paul K. Ogden said...

FYI, don't be surprised if this gets farmed out to Barnes & Thornburg, costing taxpayers a small fortune in inflated legal fees.

guy77money said...

I would suspect in the appeal that the city will still lose the case. I would assume the judgment would still include the attorney fees. So even if the Chicago court would knock the (not a given) judgment down.The attorney fees for both the city and Linehan's lawyer would hardly make it worth the trouble to appeal. So much for our mayor saving the taxpayers money. Do any of these Bozo's at the city own a calculator? A bunch of idiots!!!

Gary R. Welsh said...

B&T handled the appeal upheld by the EEOC commission, Paul.

POPA said...

Would this appeal be handled in-house? If so, wouldn't that mean there is nearly zero ACTUAL cost (photocopies for the brief and gas to get to Chicago for oral argument, if ordered) to pursue this but the chance to potentially save hundreds of thousands(assuming the 7th Circuit is as conservative as stated)?

My question is how COULDN'T the city do this? The only way it wouldn't make sense is if you believed the "opportunity cost" is too high, and according to Paul's assessment of city legal talent as pretty dismal, I seriously doubt whoever handles this appeal could do something else that would save us as much money potentially.

I wonder whether your slip is showing on this one, AI, and you'd just rather not have the 7th Circuit rain on the parade before you get to finish the route with your own lawsuits. We both know that if the 7th circuit substantially reduces Lineham's award that it changes the tenor of everything that happens thereafter.

POPA said...

And, actually, even if it is contracted out, we won't know whether this was "worth it" until the decision is rendered by the
7th Circuit. If they spend $40,000 to save $200,000, I'd say money well spent. Wouldn't you?

Paul K. Ogden said...

Thanks, AI, now I know the taxpayers really lost...very badly. Any idea how much those attorney's fees were?

Paul K. Ogden said...


Let me make perfectly clear I was not commenting on the "talent" over at City Legal. I was commenting on the lack of experience. Those attorney could well prove to be very talented in the long run...they just don't have the experience NOW to be in leadership postiions directing a team of lawyers about legal matters though know very little about themselves. There is simply no substitute for experience, especially when it comes to litigation.

As far as prevailing on the appeal, don't you think Barnes & Thornburg's legal fees will be so substantial that it might well make the appeal not worth it?

FYI, I wouldn't say that the cost of City Legal is zero if they handle the case. The attorneys in leadership positions over there make excellent salaries, far higher than they would get at most law firms, especially considering their lack of experience. While you're right that there are no billable hours, work on the case does detract from other work they could be doing. Granted it is harder to measure.

over there make some excellent salaries

Paul K. Ogden said...

I would add that B&T would charge $50,000 just for an appearance to be entered. Of course they would have to assign several attorneys to the case. That helps run up the bill on the city.