Judge Dierker At Work

Here is a newspaper account of how this judge ruled in a sexual harassment case:

“From Anita Hill to Monica Lewinsky, the cry of ‘sexual harassment’ has been selectively raised to advance certain groups’ political agendas under the guise of promoting equal opportunity in the workplace, or under the banner of ‘equality’ in academe,” the opening paragraph of Dierker’s order reads, citing chapter and verse from Slouching Towards Gomorrah, a book written by failed Supreme Court nominee and ultraconservative Robert Bork.

“Spawned in the protean atmosphere of federal employment discrimination litigation … the theories of the ‘sexual harassment’ police have stretched their tentacles from college facilities to Supreme Court confirmation hearings to legal and judicial ethics … and now seek to ensnare the common law of torts,” Dierker continues. “The Court concludes that the common law does not enact Cardinal Newman’s definition of a gentleman, nor Catherine (sic) MacKinnon’s vapid maunderings, and that Plaintiff’s petition at present fails to state a claim.”

Dierker moves on to the two counts filed by the woman: Count I, alleging “intentional infliction of emotional distress;” and Count II, which “alleges the same facts, but attempts to state a claim for negligent infliction of emotional distress.”

According to law, Dierker states, intentional infliction of emotional distress must contain the following elements: “defendant acted intentionally or recklessly; defendant’s conduct was extreme and outrageous; the conduct caused severe emotional distress; and the conduct was intended only to cause extreme emotional distress to the victim.”

Dierker states: “Indeed, as pleaded, the facts alleged at most show that Defendant was seeking to gratify his own sexual urges despite rejection by Plaintiff.

” ….it seems clear that, except for the denizens of the cloud-cuckoo-land of radical feminism, no court has held that sexual advances are ipso facto actionable. More is required to establish a tort than a rejected advance.”

“The pleaded facts must show outrageous conduct, i.e., conduct which is regarded as atrocious and utterly intolerable in a civilized society,” Dierker continues. “Mere solicitation to begin, or renew, a sexual relationship is not such conduct. There must be more.” In essence, says the judge, the doctor was not intentionally trying to inflict emotional harm but simply seeking sex.

Dierker’s account of this case is here. Below is an excerpt:

In Missouri, judges are subject to investigation and discipline through a body known as the Commission on Retirement, Removal, and Discipline. Unbeknownst to me, liberal Democratic governor Mel Carnahan had appointed virulent radical feminists (or”femifascists”) to that body, women who openly expressed contempt for men and pressured judicial nominating commissions charged with selecting judges to discriminate against men. The femifascists thus had an ideal forum in which to mount their secret attack.

Some months after filing my opinion in the harassment case, the Discipline Commission notified me that someone had filed a complaint alleging that my opinion showed”preconceived bias against women, female lawyers, or sexual harassment suits.”Under Missouri rules, I was not allowed to see the complaint itself or to know who filed it.

Although I can honestly say that I did not react to the complaint with the frenzied groveling of, say, Harvard president Larry Summers after he foolishly speculated about differences in scientific ability between men and women,1 I confess that I did beat a retreat of sorts. Perhaps it was weariness after two grueling years as chief judge of my circuit (elected unanimously, I might add, by a highly”diverse”court), perhaps it was fear or shock at the use of this weapon against me, but I simply wanted the matter put to rest. So in my response to the Commission, I acknowledged the polemics and promised that I would use more care in expressing myself in the future (self-censorship?). In the end, the Commission did nothing but send me a”reminder”to avoid language that”might”give rise to an”appearance”of bias in performing my official duties. (For the sake of full disclosure, I also include this correspondence in the appendix.)

In retrospect, I should have been prepared to sue the Discipline Commission to vindicate the absolute right of judges to express their views in their opinions. After all, don’t judges have the right and duty to”say what the law is”? If they can’t say what they think, what happens to judicial independence?

I’m looking for more information about it. Meanwhile, here is the Lexis summary of Dierker’s affirmed ruling in Reed v. Kelly, 37 S.W.3d 274 (E.D. Mo. 2000):

Plaintiff brought respondeat superior, negligent hiring, negligent retention, and negligent supervision claims against defendant, an employer at building she was visiting, after an employee escorted plaintiff into a private room where he sexually touched her and exposed himself to her. The trial court entered summary judgment for defendant on each of these counts and plaintiff appealed. The court found that because the trial court’s decision was based on a conclusion that defendant was entitled to judgment as a matter of law even if defendant knew of the employee’s prior incidents, whether defendant conducted a reasonable investigation to learn of these incidents was not a dispute that affected the outcome of the case. There was no nexus between the employee’s slapping his wife and his fistfight with a co-employee and his commission of sexual offenses on a stranger. Thus, there was no proximate cause necessary for the negligent hiring claim. Similarly, there was no proximate cause for a negligent supervision claim, as the sexual comment made by employee during his employment showed no propensity to commit the acts constituting the sexual assault.

–Ann Bartow