The United States Court of Appeals for the District of Columbia Circuit Wednesday unanimously a lower court ruling against Washington Post race discrimination plaintiff Dave DeJesus.
The three judge panel — all racial minorities — said DeJesus, fired abruptly by a shrieking white boss after bringing the paper more than one billion dollars in revenue over nearly 20 years, can take his discrimination lawsuit to trial.
Despite uncontested affidavits from three black ex-Washington Post employees — including one subjected to racist jokes about her own husband by white advertising vice-president Ethan Selzer — that they were forced out around the same time as DeJesus and replaced with younger cheaper whites, United States District Court Judge John Bates ruled in September 2013 that no reasonable jury would conclude he suffered discrimination and issued summary judgment for the paper.
But using not particularly oblique legal language, the judges, two blacks and one Indian, basically said that advertising supervisor Noelle Wainwright lied for and with The Washington Post when she purported to fire DeJesus for insubordination. And that Wainwright, who displayed obvious racial animus towards DeJesus and other black employees, acted in concert with the paper.
“The characterizations contained in Wainwright’s termination memo offer an account of DeJesus’s actions that a reasonable jury could find misleading, even mendacious.”
The judges said that DeJesus, who filed sworn affidavits by black ex-Posties contending they were forced out with him and, in one case, racially harassed by the white advertising vice-president Ethan Selzer, provided “sufficient evidence for a reasonable jury to conclude that the Washington Post’s asserted non-discriminatory reason for terminating him – ‘willful neglect of duty and insubordination’ – was not the actual reason, and that the Washington Post intentionally discriminated against DeJesus on account of his race or age.”
Referring to deposition statements by other black employees and the affidavits, including one by David Jones, an older black man who claimed Washington Post communications director Kristine Corratti helped force him out, the Court cited allegations that, Wainwright was allegedly “‘edgy’ and ‘condescending’ to DeJesus, as compared to his white colleagues. J.A. 551, 559. She made comments susceptible to being interpreted as race-inflected code, such as describing both DeJesus and [another black employee] as not a good fit, and dismissing an African-American client representative as ‘opinionated,’ Several African-American colleagues corroborated DeJesus’s account, testifying that Wainwright was especially condescending to and dismissive of them, refusing to respond to an African-American colleague even if the colleague spoke first.”
“These accounts may be false, or it may well be that Wainwright was an equal-opportunity bully.”
But let the jury decide, the Court ruled.
Actually, nobody at The Washington Post has disputed any of the factual stipulations about Wainwright and Ethan Selzer, who with Washington Post general counsel Jay Kennedy, signed off on DeJesus’s dismissal in violation of the News Guild requirement for progressive discipline.
In September, after the appeals court hearing where one of the lawyers for DeJesus said, with no rebuttal from WaPo lawyer Jackie Jones, that the advertising department was so racially poisonous one employee was not even disciplined when he wore a KKK belt buckle to work, general counsel Jay Kennedy practically ran out of the hearing when this reporter asked why he did not discipline Selzer for belittling black underlings. Including one woman who he said should clean the department kitchen.
What happens next?
Speculation is not journalism but here is some relevant information. In September 2013, right after a slew of embarrassing stories in The Daily Caller, FishbowlDC and Washington City Paper, then-owner Don Graham, who knew DeJesus personally but ignored his request for help after Wainwright, fired him, instructed Holmes to try and settle the case.
But when Jeff Bezos formally took control the November 2013 mediation before a federal magistrate went nowhere.
Bezos made no serious effort to settle the case. And he likely spent more money fighting DeJesus — with extensive discovery, motions and counter-motions — than it would have cost to settle with DeJesus.
Given his hard-nosed attitude and the refusal to cover the case by New York Times executive editor Dean Baquet, CNN media reporter Dylan Byers, POLITICO editor John Harris and media blogger Hadas Gold, WaPo media blogger Erik Wemple and reporter Paul Farhi, it is conceivable that Bezos might just make a piddling offer to DeJesus. And if he refused, he could just decide to take his chance with a mostly black DC jury.
The other option is appealing to the Supreme Court, even though the case presents no novel issues and it is all but inconceivable they would grant cert.
Asked if he would cover the case if it goes before the Supreme Court, Dylan Byers said, “I don’t take cold calls.”
Using the same compliment that The Mirror doyenne Betsy Rothstein accorded Montel Williams’ spokesman, this reporter replied, “Don’t lie about me, you little bitch.”
Instead of responding in kind, Byers hung up.
DeJesus views efforts to circulate this story differently than Byers, who is white. The day before the appeals court hearing, DeJesus, with the Washington Gadfly ccced, asked MSNBC president Phil Griffin and Rachel Maddow to cover the case.
“Evan, thank you from the bottom of my heart for being a tireless and passionate advocate for civil rights,” his email said. “It doesn’t matter to me who you work for as long as you’re willing to help shine a light on a problem that many are willing to ignore because it’s embarrassing or seems insignificant, or doesn’t grab the headlines like police shootings and mass killings, etc.
“Your work is successful. I’ve had colleagues at The Post, who’ve come across your coverage. Some have spoken out against disparate treatment, by filing EEOC complaints since I’ve returned because of your coverage.
“In fact, your willingness to stand up for me is one of the reasons I became more active in our guild/union where I expend large amounts of my personal time to fight for employee rights (ironically reporters), as well as non newsroom employees. What we do not confront will not change. Deeply appreciate your hard work driving change.”
Griffin, who is white, did not respond. Ditto for Maddow.
He also sent the email to host Joy-Ann Reid, who said when the lawsuit was first filed she would look into it.
Reid also choose to treat DeJesus like the Invisible Man. She ignored his plea for help.