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Fights don't get much more lopsided than this. On one side: a partner and a counsel at Greenberg Traurig, both experts in employment law, defending a company backed by the deepest of pockets.

On the other: a 20-something immigrant from Guinea whose primary work experience has been in the produce department of a supermarket—and who is representing himself in his lawsuit.

And yet, last week Thierno Diallo defeated the Greenberg team's motion for summary judgment when U.S. District Judge Paul Engelmayer in the Southern District of New York allowed his employment discrimination case against Amazon.com-owned Whole Foods Market to go forward.

My colleague Colby Hamilton at The New York Law Journal covered the Jan. 9 decision, but I was left with one question: How the heck did this happen? Especially since based on the alleged facts, Diallo's case doesn't seem all that strong?

Pro se litigants usually fare terribly in court. Richard Posner was so offended by this that he retired from the U.S. Court of Appeals for the Seventh Circuit to found a non-profit legal organization to assist them.

Diallo did not litigate with Posner's help, but he did have assistance from court-appointed pro bono counsel for mediation and depositions, plus the Southern District of New York's Pro Se Intake Unit. But most of all, he had a magistrate judge, Kevin Fox, who took his claims seriously and held defense counsel to the highest of standards.

Engelmayer in his decision adopted most of Fox's 25-page report and recommendations.

Diallo did not respond to a request for comment, nor did Greenberg partner Eric Sigda, who represents Whole Foods along with counsel Michael Slocum. But court records show Diallo has been diligent and persistent in pursuing his grievance, starting with his partially-handwritten complaint filed in November of 2016.

Diallo was fired from his job at a Whole Foods in midtown Manhattan for a “theft-of-time” infraction. That is, he allegedly punched in after his 30-minute break, but then took 24 minutes to go to the bathroom and pray before returning to his duties.

(Sidenote: Diallo was paid $12.19 an hour, so this alleged theft amounts to $4.88. Gotta wonder how that loss compares to the legal bills from Greenberg Traurig.)

To Whole Foods, it was a straightforward, justified termination. “Plaintiffs theories beggar belief,” Slocum wrote. “No jury could reasonably conclude that Whole Foods' decision to terminate plaintiff's employment was motivated by anything other than his admitted theft-of-time infraction.”

But Diallo in arguing he was discriminated against based on his African origin focused on a few key points. Namely, he argued that other non-African employees who committed similar infractions were at most reprimanded, not fired.

He also said his supervisors “subjected me to comments and jokes on the basis of my status of a West African and immigrant.” Diallo said one supervisor who was of Hispanic origin told him he “looked Ethiopian” and should eat more. When Diallo said he hoped to be a supervisor one day, his boss allegedly said “Did you see any African team leader here?” and told him “don't even think of moving up.”

When he asked another supervisor, who was from Trinidad and Tobago, not to call him by an (unspecified) nickname, the supervisor allegedly said “I am your boss so I will call you how I want; if you are not happy you can leave.”

So look, that's definitely not cool. But in the annals of employment discrimination litigation, it's not exactly egregious. I've written about cases where people said things that practically make your ears bleed.

Diallo also said he was denied full-time status and promotions because of he was African, pointing to non-Africans with less experience and more disciplinary write-ups who were given raises and promotions ahead of him.

Both Fox and Engelmayer concluded Diallo raised enough disputed issues keep his case alive.

“The court views Diallo's claims with the solicitude due a pro se party,” Engelmayer wrote. “Accordingly, the court concludes that this claim … turns on material disputes of fact and must be resolved at trial.”

The judge also invited Diallo to request pro bono trial counsel.

My question now: How much longer is Whole Foods going to litigate this? Diallo seems to have been underestimated at every turn. It is really worth the legal expense to see what happens if his case goes before a jury?

 

Alibaba Settles Securities Suit for $75 Million

A California judge on Friday gave tentative approval to a $75 million deal to settle a securities class action against Alibaba Group Holdings.

The San Mateo County Superior Court suit stemmed from the China-based online giant's $25 billion IPO in 2014. Represented by Robbins Geller Rudman & Dowd and Cotchett, Pitre & McCarthy, the plaintiffs claimed the company failed to fully disclose all relevant information to investors.

Alibaba, which admitted no wrongdoing in connection with the settlement, is represented by Simpson Thacher & Bartlett.

Alibaba faces another failure-to-disclose suit in connection with its IPO which remains pending in the Southern District of New York.

 

Judge Patricia Wald, 1928 – 2019

“Being a judge requires guts, intelligence, some guile, perseverance, the will to win over boredom, overwork, understimulation, lack of fun & camaraderie in the workplace. … To paraphrase the late Robert Hutchins, 'it's not much, just the best there is.'”

— Patricia Wald, the first woman to serve on the U.S. Court of Appeals for the D.C. Circuit and its chief judge from 1986 to 1991. Wald died on Saturday.

(H/t to my friend Carrie Johnson at NPR for the quote, which is from 1992.)

See also Patricia Wald 'Pursued Justice With Passion,' Justice Ginsburg Says

 

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