Sotomayor’s District Court Decisions on National Origin Discrimination

Two of Sonia Sotomayor’s district court cases fall within the category of national origin discrimination. Although her opinions in these cases aren’t clearly wrong, they perhaps indicate her interest in and empathy for employees allegedly discriminated against on the basis of national origin.

Cartagena v. Ogden Services Corp., 995 F. Supp. 459 (SDNY 1998)
The employee, who was of Puerto Rican descent, worked as a console operator in the Management Information Services department. His duties involved technical support of the mainframe computer systems used by the MIS department to collect and distribute financial data, print checks, and handle various wire transfer activities for divisions of his employer.

The employee’s supervisor was pleased with his performance for about four years. At that point, however, the employee began to have personal problems at home that distracted him at work. He began to incorrectly run computer jobs two or three times a week, creating the need for reruns. About once a week, the reruns carried over into the next shift. The employee didn’t dispute having some problems but did dispute the number of errors his supervisor charged him with.

About six months before the supervisor fired the employee, a computer job had been run incorrectly. According to the employee, the failure was due to a previous shift’s error. Turning to the employee, the supervisor allegedly said, “You f***ing Puerto Rican can’t do the job right.” Later, when another run error was made, the employee claimed it was due to incomplete input from outside the department. The supervisor allegedly said, “You f***ing Puerto Rican can go get them.”

When the supervisor later fired the employee for his declining job performance (and perhaps the employee’s refusal to change shifts), the employee claimed that his discharge was because of his national origin. When he filed suit, his employer asked Judge Sotomayor to grant a motion for summary judgment and dismiss the case without a trial.

In denying the employer’s motion, Sotomayor relied on the employee’s allegations that the supervisor made discriminatory remarks directly to the employee. They weren’t “stray remarks” or made to no one in particular. The remarks were made to the employee shortly before he was terminated. The supervisor’s remarks, if actually said, were made during a critique of the employee’s job performance and were egregious enough to demonstrate a discriminatory attitude by the supervisor toward the employee because the employee was Puerto Rican.

There seemed to be no doubt that the employee’s job performance had declined. However, according to Judge Sotomayor, even if poor job performance was part of the reason for the employee’s termination, the employer could still be liable for national origin discrimination if part of the reason for the termination was the supervisor’s discriminatory animus. In any event, there were genuine issues of fact that required this case to be heard by a jury.

In my opinion, Sotomayor’s ruling should have gone the other way. The employee had worked for the supervisor for four years without incident. In fact, the supervisor had been pleased with the employee’s performance. There’s no indication in Sotomayor’s decision that there were any witnesses to the supervisor’s alleged discriminatory remarks, although the employee also claimed that the supervisor had occasionally said to all of his employees, “You f***ing guys can’t do the job right.” It seems a bit of a stretch that after four years of harmonious relations, the supervisor would have suddenly developed a discriminatory attitude toward the employee as a Puerto Rican, especially since there was no doubt that the employee’s job performance had declined.

Bear in mind that Sotomayor didn’t rule that the employer was guilty of national origin discrimination or even that the supervisor had used the epithets he was accused of, only that there were genuine issues of fact entitling the employee to a jury trial.

McNeil v. Aguilos, 831 F. Supp. 1079 (SDNY 1993)
An English-speaking African-American clerical employee worked in a hospital’s pediatric nursing unit. She claimed that many of the nurses working in the nursing unit were from the Philippines and frequently spoke Tagalog, a Filipino language which is the main language in the Philippines. The clerical employee asserted that the Filipino-American nurses used the Tagalog language to isolate and harass her and to impede her ability to do her job effectively. As a result, she was also denied promotions and finally forced to leave the hospital.

The clerical employee filed suit against her supervisor and the hospital without the assistance of a lawyer. As a judge will ordinarily do, Sotomayor gave the unrepresented clerical employee some leeway in allowing the lawsuit to remain in court. Although the employee had made all sorts of factual and legal assertions, Sotomayor concluded that the case seemed to be filed on the basis of national origin, race, and language discrimination. Both parties filed motions for summary judgment, which Sotomayor denied.

She found that this case raised ”difficult legal issues, some of first impression, all of great importance.” For example, the clerical employee was essentially contending that by allowing co-workers to communicate in a foreign language, the employer was violating her rights as a native English speaker. This complaint is the reverse of what a judge has sometimes heard in the past when non-American employees protest an employer’s attempt to make all employees speak English.

Because Sotomayor predicted that the problems raised in this case were “likely to become more pervasive as our society grows increasingly multiracial and polyglot,” she urged the clerical employee to allow her to appoint pro bono counsel to represent her in connection with these “cutting edge” civil rights and employment law issues. For the time being, the case would remain in court, and Sotomayor said that at the next case conference, at which there would hopefully be a lawyer representing the clerical employee, the case would be set for trial.

Sotomayor’s district court decisions on national origin cases
I can’t say that a white male judge would have approached these cases differently from a Hispanic female judge, but Sotomayor’s sensitivity to the issues raised in these cases, particularly the unusual second case, resonates even more pointedly today than when she wrote these opinions, as our society’s demographics continue to rapidly change.

We’ll next look at Sotomayor’s decisions involving the Americans with Disabilities Act.