Our Members' Efforts
KATHRYN GRACE JORDAN
Transcript of June 8, 2009 hearing: Kathryn Grace Jordan
Let me identify
the documents, and provide a commentary as we go along:
1. WPP Code Of Conduct: The case that I litigated over 13 years
was entitled Kathryn Jordan v. Bates Advertising 118785-99. It
was a case of perceived disability discrimination and gender discrimination
against a division of what was at one time a fairly large advertising agency,
Bates USA. I was employed there in 1994-5 as an EVP Strategic Planning, a
position that commanded a base salary of $250K plus bonus, benefits and other
economic perks. I was paid half what every other EVP was paid. The case was
not able compensation however. It was about the hazing and harassment I
experienced once my superiors at AC&R as a "cripple" once they realized I needed
a cane to ambulate on a permanent basis. It was about my being forced out of
my job allegedly because the agency was having "financial problems" due to the
merger of Bates with my unit AC&R, despite the fact that they were hiring
Planners (my functional position) during the period in which I was being
terminated. I also was passed over for the top planning job at Bates USA.
Instead they hired a "consultant" who had been fired from his last job but was
clearly not visibly disabled. After I was terminated, they refused to
re-hire me for open positions for which I was qualified. So in the latter part
of 1995, I filed an EEOC complaint and a Complaint in Federal Court. The
latter was immediately dismissed by the lovely Judge Rakoff, which is why the
case was not tried in federal court, "without prejudice". I then filed what
would be the first of several appeals and eventually the case was heard in New
York Supreme Court before a Jury and the Honorable Rolando Acosta in April 2005.1
case was heard in April 2005, Acosta tried to pressure me to "settle". I had
waited over a decade for a jury trial and he thought I would just give it up.
I refused despite his ominous remarks.
The Jury rendered a verdict in my favor on the Termination charge. However I
only received 40% of my economic damages and 0% of P&S because my attorney,
Laurence Lebowitz, did not prepare adequately for trial.
After the verdict, there was a "legal fee" hearing. In advance of the hearing,
my attorney had a little "Ex Parte" chat with Judge Acosta behind closed doors
while I sat outside calling my adversary about the "adjournment" of the hearing.
(In other words, my attorney and the judge cut a deal when I was calling defense
counsel out in the hallway). After this private and completely improper
meeting between Acosta and Lebowitz (I had fired Lebowitz several months earlier
for cause, he had no basis for being even present much less in thejudges'
chambers), I was called in and reemed by Acosta. I was advised in no uncertain
terms that if I "pursued your malpractice case" agaisnt LL, and refused to agree
to the $1,300,000 legal fee demand, that Acosta would "act as a fact witness
against you" and "be assigned as the judge on the case". These threats were
intended to intimidate me into agreeing to Lebowitz demands. I realized at
that time that this was not the first "deal" that Acosta had brokered in his
career. The only missing piece for me was "why". Why would a Supreme Court
judge care that much about the legal fees of a discharged attorney? Especially
when I had advised him that I intended to pay LL his full hourly fee despite his
incompetent handling of the case. Well, little did I know!. After the legal
fee hearing, Acosta started "sanctioning" and "censuring" me. He issued what
amounted to a gag order on "all of the parties", but only enforced it against
me. I then filed what would be the first in a series of dozens of complaints
about him to the JCC, all of which were dismissed without any explanation or
justification. Acosta found out about the complaints (guess that
"confidentiality" protection only works one way) and in retaliation leaked a
very nasty story about me to the Law Journal. That's not speculation. I spoke
with the Editor and it "came from Acosta's chambers".
What I did not realize during this period was that Acosta had connected with
Spitzer, probably through Lippman, and a deal was in the works for Acosta to be
promoted to the First Dept, effectively replacing Lippman. That's why Acosta
attacked me so visciously in his Final Judgment, where he labelled me as
"contemptuous" and "contumacious". Imagine this: a Supreme Court judge who
has just lambasted an ad agency for allowing me to be called a "cripple" and not
havin an EEO policy in place or any reporting mechanism (see February 2006 RA
Decision) and then attacking me six months later as "contemptuous" because I
confronted him with his own misconduct. What I did not realize was that at
this very time, Acosta knew he was being considered for this promotion, and my
complaint to the JCC would prove to be very "inconvenient", so that is why he
attacked me in the Final Judgment. To discredit me. He had to discredit me to
make sure that my allegations were not taken seriously. I would not be
surprised if Lippman had advised him of the same. What I do know is that after
this attack, WPP (whose counsel Drinker Biddle had advised me after the Jury
Verdict that they would NOT appeal the Decision, especially after Acosta upheld
the jury verdict), decided to "appeal" the verdict. WPP had acquired Bates in
2003 and it was their legal department GC and CEO who made all the decisions
after that. Martin Sorrell, CEO, who gets up at DAVOS and acts llike the
enlightened CEO had to know about and approve of the decision to file this
frivolous appeal and drag a woman with MS through even more years of litigation.
It doesn't get more sick than this. Acosta, however, knew better. He
came up through Human Rights ad he knew that what he was doing was wrong and
would damage me even more. So I then faced a series of "appeals".
2. The Lippman Decision to Reverse the Jury Verdict December 27, 2007:
I've appended Lippman's Decision reversing the jury verdict on my case. What
most people don't realize (because their not attorneys or have sufficient legal
knowledge) is that it is virtually impossible to reverse a jury verdict. The
legal standard is that the jury had to have acted "irrationally" with respect to
the facts, and that "no reasonable mind could arrive at the same findings", or
the judge mis-applied the law. Now these are very narrow circumstances and a
very high legal threshhold. Most appellate courts go to great lengths to avoid
reversing jury verdicts.
First, they respect the power and authority of the lower court judge. Second,
they realize that they are not in a position to substitute themselves as trier
of fact. You simply cannot judge credibility without "being there". (Conversely
if the findings are completely out of sync with the facts the appellate court
has an obligation to do a de novo review). In my case, however, neither of
the standards were applicable. The jury did not misinterpret the facts.
Bates Management admitted under oath that they knew I had been hazed as a
"cripple" and that the President of the agency, also the chief EEO officer,
failed to take any remedial action. Instead, Bates Management put me on a path
to termination and used the RIFF as a smokescreen to cover up their
discriminatory motives. Lippman, who clearly has no knowledge of employment
law, criticized me for "not telling anyone" at the time I was being hazed and
ridiculed (by my supervisors who had already told me to "fire the woman with the
clubbed foot"), for
not telling Bates that I had a disability during the interview and "lying" by
telling them I used the cane for a "skiing injury" (which was true, but not the
ongoing reason for the need for to use it to ambulte on an everyday basis) in
his Decison of December 2007. Lippman obviously does not know that it was
illegal for Bates to even ask the question (you are not allowed to ask someone
if they are Disabled, much less why they are walking with a cane. Further, I
testified that there was "no one to complain to" as my harassers were my
supervisors and there was no EEO function. The jury was outraged by the
unlawful actions of my employer and their subsequent decision to terminate me
and replace me with non disabled managers (several). Lippman accepted Bates'
pretext of "financial reasons" at face value and asserted that because their
"legitimate reason" (of financial reasons) was "true" then they disposed of the
entire matter of the discrimination, even though the Defendants ADMITTED to the
Further, anyone who knows anything about employment law knows that "financial
reasons" and "cost effectiveness" are the NUMBER ONE PRETEXTS USED BY EMPLOYERS
TO MASK DISCRIMINATION. Lippman, obvioulsy intentionally, accepted the pretext
of Bates at face value, even though the Defendants failed to produce a single
document that proved that a) they really did have "financial problems"; b) that
it was more cost effective to fire me and hire several more new non disabled
do my job. Instead, WE proved that they were HIRING NEW PLANNERS at the very
time they were firing me. None of these new planners had a visible disability
obviously. This evidence completely undermined the "pretext" or "legitimate
reason" that they fired me for financialr reasons. If they were broke they
obviously could not afford to be hiring a battallion of new planners.
Further undermining this pretext was the fact that my supervisor ADMITTED UNDER
OATH THAT HE "COULD NOT SAY" IF IT WAS MORE COST EFFECTIVE OR NOT. That was
"game over" for Bates. If my Supervisor "could not say" if it was more cost
effective to replace me with non disabled workers or not, then he clearly did
not fire me for this reason. Moreover, I had testified that this same supervisor
(Fidoten) had openly ridiculed me as "a cripple". That's a good as it gets
in discrimination cases.
Finally, my testimony was consistent and credible, and the jury found all the
contradictory and ridiculous excuses provided by the employer NOT CREDIBLE.
That's the jury's job, NOT THE JOB OF the Court of Appeals.
the fact that the appeal was assigned to Lippman was no accident. The whole
litigation was orchestrated behind the scenes while the puppeteers
LIPPMAN-KAYE-ACOSTA-TEMBECKJIAN pulled the strings. I did not know any of
this at the time, nor was I aware of the Spitzer connection with all of them.
I will never forget the day, December 27th, 2007, when I learned the decison
was in and came to 27 Madison Avenue. I went into deep shock reading the
Order. I literally fell down and had to be helped out of the Court house. It
was not just the realization that 13 years of my life that had been lost in a
rigged "game", it was really the shock of knowing ...of realizing...just how
corrupt our judicial system had become. In an instant I just knew. And it
was beyond shocking. Thus,my voyage began that led me to this hearing. That
and a night in NY when I was watching TV and saw Robert Tembeckjian interviewing
judges and lawyers on his own cable TV show!. My mouth literally dropped.
The light bulb began to go on.
HOW THE DEAL WENT DOWN:
Acosta's attack on me in his "Final Judgment" in November 2006, after supporting
the jury verdict enthusiastically in February 2006 (see Judge Rolando Acosta
DECISION) and DENYING the post trial motions to dismiss (which were surrogates
of the appellate issues), was not just the actions of an intemperate jurist who
was bullying a defenseless litigant, they were a signal to
Lippman. The signal, which came after Acosta had become aware that Spitzer was
about to nominate him, was to let LIPPMAN know "I'm on board and I'm willing to
throw the Jordan case to be a team player". That was the Acosta-Lippman
deal. In return,
Lippman, knowing that Spitzer and Kaye were setting him up for the Chief NYCOA
job (and probably with the aid of corporate attorneys who "nominate" the jurists
so that people like Lippman and Kaye have an arms-length role), now had an ally
indebted to him in the First Department. It does not get more corrupt than
So Lippman was the puppeteer of this deal that went down. WPP avoided a $4M
verdict (including interest and expenses, it was more than that), Lippman and
Acosta BOTH got promoted, Goveror Patterson got support and IOU's from the
corporate community (imagine a blind man who becomes the first gov selling out
the first disabled woman who wins an important verdict), and Senator Sampson was
handed a decision accomplis. Based on what I saw at the endorsement
hearing for Lippman and a very reluctant and weary Sampson, and two judges got
their promotions by selling out the very people, the voters and taxpayers, the
people in protected classes, for advancement and maybe more. (Given the fact
that WPP had $4M at stake, I would not be at all surprised if there was some
other monetary exchange here. What I do KNOW for sure is that Lippman in his
Decision a) agreed with Acosta's attack on me and enabled the same; b) made it
clear that litigants have no rights in the fact of a blatant abuse of POWER,
especiallly judicial power (or so they think); c) that it was just OK for Acosta
to attack me as "contemptuous"; d) that a deal with WPP to get promoted to as
Chief of NYCOA was a helluva lot more important than some "cripple" with MS; d)
that Spitzer was a helluva networker and string puller; e) that behind the sense
of righteousness here is the premise that "judges should get paid more" so why
should we "make whole" a disabled victim of discrimination, e) so what if a
disabled person is referred to as a "cripple". (The "Cripple" remark would take
on much more serious implications if it were recognized for what it is, the
disability equivilent of calling an African American a "nxxxxx". I hate to use
that example because it is onerous to me, but judges simply do not get
disability discrimination. Or they pretend not to. I testified to the
emotional impact all of this had on me, so there was no excuse for Lippman's
disregarding ALL of the FACTS that favored the litigant, facts that the jury
took very seriously.
It's a fairly widely known fact that judges are elitists especially at the
appellate level. They consider themselves smarter than "lay people" even when
they have litigants who are just as educated and successful in their own chosen
careers as they are. And they think no one but other judges, and a few pro
employer attorneys, can understand the arcane language of their "rulings".
Most of the time this is intentional. If there is a secret society with secret
rules then there must be a secret code to communicate that by design is
unintelligible. Judges today think they are also ABOVE THE LAW. The
whole premise of the Rule of Law is something they feel contemptuous about.
They think that their job is to "interpret" the law so that whatever ingoing
operative bias is will be supported. If they had to adhere to the Rule of Law,
they would not be tossing out bona fide jury verdicts so they can re-write the
laws to their view of the world. These are ACTIVIST judges, the very kind that
Supreme Court Judge Roberts despises. And when you have a weak, corrupt JCC
Director like Tembeckjian who knows what's going on but does not have the balls
to challenge ANY appellate jurists, or worse, benefits from the corruption by
getting them to come on his Cable Show, the Judiciary and New York State BOTH
have a very serious problem. The problem is that the "sytems of checks and
balances" is broken and corruption is not only not disciplined, it is
encouraged.We just saw TWO JURISTS WHO VIOLATED SEVERAL JCC CODES OF CONDUCT
GET PROMOTED INSTEAD OF REMOVED FROM OFFICE. Other judges see this kind of
behavior is rewarded and they think (llike Judge Friedman) "that's the fast
track to promotion".
Now, back to the Code. I would agree that most litigants do not understand the
majority of judicial decisions. Unfortunately for Judge Lippman, I am not one
of them. Over the last 13 years I have become an expert in discrimination and
appellate law, and have retained very senior legal counsel (after Lebowtiz who
was a narcisstic lightweight, and whose failure to admit a certain document into
evidence gave Lippman an opening to challenge the jury verdict, not a bona fide
opening but it was a tidbit to anchor his flimsy argument upon). Legally.
Lippman was completely in the wrong: a) Bates/WPP had AGREED to the jury
instructions or the "law of the case", so there was no bona fide reason to
contest the fight after it had been lost (and after they had refused to settle
for 13 years); b) the whole "fatality" of the evidence that Lebowitz failed to
admit (but proffer) was ridiculous. Bates never proved it was more "cost
effective" to fire me and hire new younger non disabled execs to replace me.
(That's the oldest trick in the discrimination book). And even if Bates had
proven that it was more cost effective, they still would not have prevailed.
This brings us to the macro legal argument that we made to the New York Court of
A discrimination plaintiff has the burden of proffering a "prima facie" case of
discrimination. We met that burden and there is no dispute about that.
The employer accused of discrimination has the right to rebut that allegation
with a "legitimate reason". (Litigants refer to this as the Pretext).
Under McDonnell Douglas, the overarching Supreme Court decision, the employer
only has to meet the burden of production, not proof (which was extremely
problematic and flawed law). So the employer could come back and say:
We fired her because she had blue eyes. If the plaintiff had blue eyes, under
the Lippman school of law, the employer has met their burden and disposed of any
allegations of discrimination, no matter how much evidence exists that the
employer was motivated by discrimiation.
Now, it's at this juncture where we argued to NYCOA that there is a third level
of proof that must be met.
The plaintiff has the opportunity and right to prove that while the "legimate
reason" may be true (often it is proved false and some people erroneously
think that if the reason is false that the allegations of discrimination must be
true, I disagree), the employer could still be motivated by discrimination.
So to give you an example: An employer could prove it had "financial
problems", but still have used that "legitimate reason"
as the pretext for discrimination. Most discrimination, especiallly wrongful
terminations, do not occur during periods when the employer could be outted.
Employers often wait for RIFFS and Mergers to get rid of older workers, disabled
workers, minorities etc. This is how its done. Either Lippman is an idiot or
he pretended he did not know this. Either way, in our appellate briefs we used
the "blue eyes" example to illustrate just how idiodic the Lippman decision
was. If Bates had fired because because I had blue eyes, and it was proven
that I had blue eyes, then no amount of evidence of discrimination or motives of
convict an employer. This is simply preposterous. But it is exactly what
Lippman wrote in his decision.
Most judges assume the corporate attorneys legal arguments are correct. Many
busy courts, even ones not motivated by political reasons like Lippman, rely
upon and often quote verbatim from Defense counsel briefs. This is a dangerous
highly prejducial practice but it is done all the time and is accepted among the
Judiciary. Lippman lliterally adopted Greg Homer's
arguments. He not only made no attempt at fact checking, and assumed Homer's
facts would at least hold up under scrutiny,
and liberally quoted verbatim from Homer's brief. He also adopted Homer;s
legal arguments and even accepted that silly Stephenson case as a precedent that
superceded the Supreme Court!
When this occurred, I realized that WPP had gotten to Lippman somehow and a deal
had been created AGAIN. I would later be proven correct in this when Lippman
would be promoted during the same time period to Chief of the NYCOA. So now we
have TWO judges getting promoted by throwing my case. But that was not the end
3. Top Court Blinks in "First Dept" WPP Discrimination Power Play: My
third document to you is a copy of a press release that I wrote and had run on
Reuters, AP etc. But basically it testifies to the third level of this power
play-cover up. That was when Judge Kaye looked the other way when she received
my NYCOA appeal (see appended). Now lawyers will tell you that only around 5%
of cases are heard on appeal at the NYCOA level and that they must either
address "conflict in lower court rulings on important issues of law" or
"extraordinary circumstances". As my Brief to NYCOA attests to, I met both.
First, as my NYCOA brief articulates, the lower courts in New York have been
issuing conflicting decisions on this important area of law: the burden of proof
for proving pretext in Discrimination cases. Courts outside of New York, in
Michigan, California, and even Conn, have aligned around the "real reason" legal
standard. I drafted a legal argument and proved this in my appliction to NYCOA.
I also talked about how discrimination was increasing, the laws werent' being
enforced, and how corporate america was encouraged by the Lippman decision and
that there would be more "creative" law in the future.
Second. and probably most important, I argued that the precedent that
would be set by allowing the Lippman decision to stand would be disastrous for
all persons in protected classes. I was so disturbed by the prospect
of others having to go through the same ordeal that I did. I could not imagine
the Courts turning their backs on all the civil rights advances of the last 30
But turn they would.
Lastly, I described my own personal "extraodinary" circumstances were as a woman
with MS who had been through a hellish 13 years of litigation that literally
consumed my life. Justice delayed is justice denied. In my case, the
consequences would be far more fatal. Time and again I asked myself: What kind
of people turn their back on a woman who has a serious medical condition to
advance their careers? But I had underestimated the avarice and power
hungriness of my adversary. These were men right out of Michael Clayton.
Dangerous men. Men who would sell their souls to advance their position. And
all they needed was one corrupt woman to help them.
So what did NYCOA do with my petition to address the most important legal case
in decades? A case that would determine whether people in protected classes
would maintain or lose their rights to equality in the workplace?
The week my case came up for hearing, they decided to hear the Bianca Jagger
eviction case. Judge Kaye had made an important decision. She decided to help
her friend Judge Lippman out of a jam, and throw the rights of people in
protected classes the wolves by simply doing NOTHING.
She betrayed everything she alllegedly did in her career. But there was a
3.. Paterson Picks Chief Judge Nominee: And future Chief of the Judicial
What goes around comes around. In January 2009, the Governr raved about Judge
Lippman in an article about his nomination "I'm THRILLED to choose Judge Lippman
as our next Chief Judge", Governor Patterson said. Senator Sampson was not so
thrilled. He criticized the selection process. Yet Judge Kaye, outgoing Chair,
openly supported Lippman. Why?
She had demonstrated such a patten of conflict aversion. Why pitch Lippman?
It would soon become apparent. One hand washes another in Albany.
Judge Kaye would be nominated by Judge Lippman to chair the Commission on
Judicial Nomination. Now the judiciary had completel control of the process.
Kaye would decide which judges would get nominated, with help from corporate law
firms who have historically controlled this process. Lippman would have
ultimate control over all legal policy and standards in New York State. And
Tembeckjian would sit back and do what he does best: NOTHING. No complaints no
matter how egregious, no evidence no matter how compelling, would cause Mr. T to
honor the duties he was appointed to carry out. He would simply do what Kaye
did: LOOK THE OTHER WAY.
4. END Condemns Patterson appointment of Lippman as Chief of NYCOA: In
February 2009, I drafted a press release about the Lippman appointment. I
planned to release it. However, I got a call from Samspon's office asking me to
hold up. This began a dialogue with Time Spotts that concluded with the
testimony at the hearing. I think the Sampson office felt guilty about the
entire matter. Sampson went against his instinct and allowed Lippman's appt to
go forward. He intuivitively knew something was wrong. But Patterson was
pressuring him. I kept my word and did not release the PR statement. I regret
that now. I should have outted Lippman.
I did send a letter to Patterson's offices in Albany and Brooklyn petitioning
vehemently against Lippman. I made sure that the letter was received by the
decision makers. Eventually it got to Spotts.
When I heard Kaye had been appointed as the JNC head, I knew the fix was in.
Both Sampson and myself made the same mistake. We did not llisten to our
instincts and we gave people the benefit of the doubt that had consisently
proven to be evil,exploitative people.
5. Kathryn Jordan v. Bates Advertising, NYCOA Motion. Self Explanatory.
6. September 22,2008: letter to Kaye making it clear (in response to DBR
letter) that we were "raising a new legal issue" in our brief to NYCOA. There
were no "new" legal issues. Just very important old ones that had not been
resolved under Kaye's regime.
7. Jordan objection to Patterson about Lippman appt on February 10th, 2009, the
day before he was officially appointed.
I spent that day frantically calling everyone. I told anyone who would speak
to me that we needed to postpone this critcal decision but the fix was in.
9. Complaints to JCC: This is a small smattering of complaints against Judge
Acosta and Lippman (and Friedman, who covered up the malpractice case against
Lebowitz, so Acosta would not have any "evidence leaks" that might harm him).
10. Letter from Jean Savnauyu: I received dozens of form letters just like
this. I responded with questions and complaints about their "investigative"
process. But they were met with silence or oblique denials. What a joke.