We know what Congress said, it just didn't say enough

"From time to time, we should remind ourselves that we are judges, not legislators. This is such a time."

- 6th U.S. Circuit Court of Appeals Judge Richard Allen Griffin, dissenting, and chiding the majority, in Thompson v. North American Stainless.

Thompson and his fiancee worked for the same employer. She filed a gender-discrimination complaint with the Equal Employment Opportunity Commission against her supervisors. Thompson was fired several weeks after the EEOC told North American about the complaint. He sued under a Title VII retaliation theory and appealed to the 6th Circuit after the federal district court dismissed his complaint.

The majority, in an opinion authored by U.S. Eastern District Judge Arthur Tarnow, who was sitting on the panel by designation, conceded that a "literal reading" of section 704(a) "suggests a prohibition on employer retaliation only when it is directed to the individual who conducted the protected activity."

But the majority was apparently looking at a bigger picture when it framed the issue and provided the conclusion:

"[D]oes Title VII prohibit employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action? As such conduct would undermine the purposes of Title VII, we hold that such retaliatory action is prohibited."

Judge Griffin noted that no federal court of appeals has approved extending Title VII in this way, and that several circuits have "soundly rejected such a cause of action." And, he said, that the real issue is whether Thompson is a member of the class of persons that Title VII actually protects. He is clearly not, in Judge Griffin's view:

"In enacting Title VII, Congress addressed the issue of retaliation. The statute at issue is not silent regarding who falls within the scope of its protection. While it does not state that third parties are not protected, it is framed in the positive identifying those individuals who are protected, thus limiting the class of claimants to those who actually engaged in the protected activity. The appropriate question is not whether Congress considered the specific facts at issue in the instant case, but whether plaintiff is included within the class of persons protected by the statute. We must look to what Congress actually enacted, not what we believe Congress might have passed were it confronted with the facts at bar."

Plain Meaning v. Intent, or if you prefer, Intent v. Plain Meaning, is alive and well.

Eastern District Bench/Bar Conference 2008: AP's Helen Thomas and 'Clarence Darrow'

The Eastern District of Michigan's premiere meet-and-greet event, the 2008 Bench/Bar Conference on April 17 at the Dearborn Inn, will feature celebrated Associated Press White House correspondent Helen Thomas as the luncheon speaker, followed by "Clarence Darrow," a dramatic presentation of four of his high-profile cases by Periaktos. There's audience participation after the presentation.

Clear your schedule from 11:30 a.m. to 6 p.m. for this half-day event co-chaired by Hon. Mona K. Majzoub, United States Magistrate Judge and Jeffrey A. Sadowski, Federal Bar Association, Eastern District of Michigan. More information and access to a registration form here.

Brush up on bankruptcy trial skills and local court rules

Consumer bankruptcy filings surged in February, with 76,120 new cases nationwide, more than 10,000 from the year before, reports the American Bankruptcy Institute.

"February's bankruptcy spike - the highest single month since the 2005 law changes - forecasts the start of more to come for the balance of 2008," says ABI Executive Director Samuel J. Gerdano.

This could be good time to check out the Litigation Skills Symposium sponsored by the ABI, and the Tulane University Law School at New Orleans. Space is limited.

Locally, there's an April 11 seminar to review and discuss changes (effective May 5) to the Eastern District of Michigan Local Bankruptcy Rules. Two sessions will available at the Trott Financial Center, 31440 Northwestern Highway, Farmington Hills: business bankruptcy rules from 1 to 2:45 p.m. and consumer bankruptcy rules from 3:15 to 5 p.m. Registration info here. The cost is $35 if you don't have a copy of the new rules, $30 if you do. Helpful hint: download the new rules here.

The seminar is sponsored by Consumer Bankruptcy Association, the Debtor/Creditor Rights Committee of the Business Law Section of the State Bar of Michigan, and Detroit Metropolitan Bar Association - Debtor/Creditor Section.

Excuse me, pal, there's a little something missing

"This is a particularly remarkable omission given the name of the tort."

6th U.S. Circuit Court of Appeals Judge Boyce F. Martin, Jr., observing in Heavrin v. Schilling. (In re: Triple S Restaurants, Inc.), that an attorney's complaint against a bankruptcy trustee for outrage and intentional infliction of emotional distress did not allege "emotional distress of any kind, much less of a severe nature."

The parties have been jousting in court for years. In this instance, the attorney claimed the trustee was trying to strong-arm a settlement concerning insurance proceeds by threatening him with a federal criminal prosecution.

Judge Martin said the bankruptcy court did the right thing by booting the complaint and sanctioning the attorney.