Kay Weber (of Weber v Fermilab fame) phoned me this evening. Recall that she is filing an appeal of the recent summary judgement in her horrific discrimination lawsuit against Fermilab.
Kay tells me that her attorneys just got a phone call from the counsel for Fermilab. In the phone call, Fermilab's attorneys informed them that if Kay filed for an appeal, Fermilab will file a motion to recover their court costs (meaning they will file a motion to try to get the court to make Kay pay for Fermilab's attorneys' fees).
Blackmail, anyone?
Under the Title VII federal employment discrimination law, plaintiffs do not normally have to worry about having to pay the legal fees of the defendants if the plaintiff does not prevail. Title VII isn't the most plaintiff-friendly law ever written, but it is one of the nicer aspects of the law that if you don't prevail in your discrimination lawsuit you normally need not worry about paying the legal fees of your employer (it's bad enough you have to pay your own, especially if the discrimation/retaliation you suffered involved you losing your job...note however that if you do prevail as a plaintiff your employer normally has to cover your attorneys' fees and other associated court costs).
There is an exception to this however. An employer can sue to recover their legal costs if they prove the plaintiff's case was "frivolous, unreasonable or without foundation" and that the plaintiff continued to pursue it after it became clear that it was frivolous, unreasonable, or without foundation.
But, if the plaintiff has more than one claim, the employer won't be able to recover any fees if at least one of the plaintiff's claims was not "frivolous, unreasonable or without foundation". Thus, fees will be awarded to an employer only if the court determines that the plaintiff's entire case was frivolous or unreasonable. The onus is on the employer to prove that the entire case was frivolous or unreasonable.
Now let's take a look at Kay Weber's original complaint; she has two claims, the first of which covered the decade-long harassment and discrimination she suffered (including, but definitely not limited to, jock straps and condoms placed in her mailbox at work). The second claim regards the retaliation she suffered....she was successively demoted when she kept complaining of the ongoing harassment, and was ultimately fired by Fermilab.
Given that Kay's decade-long record of filing formal complaints with the Fermilab Equity Office about the harassment and discrimination was supported by evidence given by Fermilab deposees during her lawsuit, it seems a no brainer that the first claim is neither frivolous nor unreasonable. I don't care who you are or what kind of employee your employer paints you to be, no woman should have to go into work to find condoms and jockstraps in her mailbox.
Regarding the second claim (retaliatory demotions in response to Kay's formal complaints of discrimination)... would any reasonable person reading Kay's case and seeing the evidence that came out in discovery conclude that her claims of retaliation were, without doubt, frivolous and unreasonable? I think not.
Take note that a summary judgement in her case does not equate to her claims being "frivolous and unreasonable". When a plaintiff files a discrimination lawsuit, the onus is on her to prove discrimination. If the judge or jury deems that she has failed to meet the full burden of proof, it does not mean that her claims of discrimination were frivolous or unreasonable (it merely means that there unfortunately didn't appear to be enough evidence to support the claims). If Fermilab does file suit to reclaim their attorneys' fees, the onus will be on them to prove that Kay Weber's claims are completely and totally without merit or supporting evidence.
There are advantages and disadvantages to Fermilab filing such a suit. The advantage is that we would finally get to find out how much they spent defending themselves against her claims (I've been trying to find that out for over a year now via FOIA requests to the Department of Energy). The disadvantage of course is that yet more of your tax dollars will be spent towards further steamrolling of yet another victim of discrimination at Fermilab. The amount of money Fermilab spends on activities like this is mind boggling.
This all makes me so very, very weary.
Part of me is amazed that Fermilab is brazen enough to do this the day after Nature called them up to get Fermilab's statement regarding my studies of endemic gender discrimination at the laboratory.
