Legal Powerhouse Pamela D. Hayes Speaks With Wendell Edward Carter

Racial Discrimination

Joyce Asabor v. Archdiocese of New York, Catholic Charities, Beacon of Hope House, Dennis Scimone, Anne Tommaso, Joy Jasper and Ron Morgan is a racial discrimination case filed in the New York State court system.  Joyce Asabor, an RN at the Beacon of Hope, was continuously assaulted verbally by co-workers and even subordinates at work.  Eventually Ms. Asabor suffered an injury which led to partial paralysis of her shoulder when denied access to a meeting by a door swinging shut upon her. Wendell Edward Carter gets an ‘inside the law’ view on the case from Pamela D. Hayes, Esq.

Wendell Edward Carter:  I understand you were the first lawyer to write a report on sexual abuse in the Catholic Church?

Pamela D. Hayes:  I was one of 13 commissioners on a group called the National Review Board, and they had some really high powered people—high powered catholics, lay people—who were really concerned with the courts and were able to do various things to shape opinion in the catholic community…

… We reviewed it, we interviewed hundreds of people to find out what was going on in fact.  Then we wrote a periodical on the status of the Catholic Church as it relates to the child abuse scandal in the United States.*  It was a sound document, it was backed up with research.  John Jay [College] had a prominent role in it—they were the research partner that did the statistical analysis.  It was a very good experience.

WEC:  What would you say is the state of civil rights litigation in the US court system today?

PDH:  I think it has changed.  I feel that it’s not something that the courts favor.  I think that the bar has been pushed up so high that the litigants aren’t able to get to where they once were, where this was the type of litigation that the courts…that the legislature… were pushing to right past wrongs, so to speak.  As a result of that, unfortunately, the people who didn’t get to the train first are just left in the station waiting.  Because they [judges] feel that they’ve had enough of this type of litigation and their views and orders reflect that sentiment.  Now of course they would disagree with me but it’s quite obvious that’s what’s going on.

WEC:  Let

WEC:  You are familiar with the facts in the Joyce Asabor case.  Is this the type of case that the court is likely to dismiss?

PDH:  Yes I am.  It’s very clear.  This case is different from most cases because they used the magic word.  The rule is unless they’re saying “Nigger, nigger, nigger” or whatever horrible term they want to describe folks as, it’s a racial epithet.  That is an automatic trigger.  Generally, in a civil rights case, most people don’t say the magic word.  In this instance, the people on the lower level were saying that.  Management was condoning it because they didn’t do anything about it.  And it’s just so incredible , it jumps off the paper, that these were bigots and they weren’t going to have a black woman there.  And management did nothing about it.  That’s what makes it a problem.

WEC:  And that’s what allows this case to meet the standard that the case be heard.  Do you feel there is a likelihood that the case will favor the litigant, Ms. Asabor?

PDH:  There is a good, good track record in terms of being found in favor of the plaintiff.  The defendants  have a problem because it’s straight up, off the paper racist behavior and management didn’t do anything about it.  They knew about it.  She had reported it.  And they didn’t do a thing about it.  That’s what makes them liable.  This is what we call ‘respondeat superior”, meaning the person above.  The people at the lower level who were actually misbehaving—that’s not what makes it a civil rights violation.  Their activity, plus the failure of the Archdioscese [of New York] and Beacon of Hope [House] to do anything is where liability comes in.  That’s the problem that they have.

WEC:  What role, if any, does the duration of the bigoted conduct play here?  It was about a year.

PDH:  It just goes to show they knew about it and did nothing to correct it. Because, you know, you can only control your employees so much.  If I have an employee who is treating a supervisor like that, they’re going.  They’re gone, they’re fired.  I apologize and we move on.  But when it is an ongoing process, that is different.

WEC:  In what degree are the co-defendants—the actually supervisors—Anne Tommaso [Beacon of Hope House executive Director], Joy Jasper [Beacon of Hope House director of personnel] and Dennis Scimone [immediate supervisor], responsible?

PDH:  The supervisors are management.  It’s because of the supervisors’ failure to act, failure to train them to act, that’s why they’re liable.

WEC:  Are they personally responsible?

PDH:  The person who hit her is personally responsible.  That’s a whole different thing.  That’s a battery.

WEC:  How far is the Catholic Church liable?

PDH:  It’s not the Catholic Church, it’s the Archdioscese of New York.  You have to be very careful with what you say.  The Catholic Church is a one-billion person entity with a foreign corporation in Rome.  That is a government, a theocracy, all unto itself.  They have nothing to do with this case.  The corporation that’s responsible is the Archdioscese of New York, because it’s part of Catholic Charities.

WEC:  What should Tommaso, Jasper and Scimone have done in order to avoid a racial discrimination lawsuit?

PDH:  When they first found out about it, they should have fired the people, and initiated a policy, told everybody this was against federal and state and city law.  And called it a day.  That’s what they should have done.  The fact that they did nothing…in essence, the management is condoning the behavior of the subordinates.  And they should be better trained.  The management failed to train these people to know what is wrong and what is right.  By [Joyce Asabor] being able to say ‘they called me a stinky African bitch’ or ‘a nigger’—that’s the problem.  That’s a racist term.  Everybody knows what’s going on here.  And that is a basis for recovery.

WEC:  Given the blatant nature of the racism in this case, what would you expect would be the outcome?

PDH:  I expect they’re going to settle the case and make it go away.

WEC:  I’m a bit of a novice in terms of actual case settlements.  I’ve seen a lot on TV.  Would you speculate about what sort of damages we’d be talking about?

PDH:  You can’t speculate.  I don’t know if she’s going to recover for psychological damages, physical damages…it should be a substantial payment for what they did to her.  You have intentional infliction of emotional distress…she should walk away with a nice six-figure settlement.

WEC:  The case has been pending for over three years.  You’ve told me that this is not unusual.  The defendants’ lawyers have sent documents to Joyce Asabor threatening her with contempt of court.  Is that unusual?

PDH:  That’s just puff.  What are they sending her documents threatening contempt of court for?  What did she do?  Nobody’s concerned with that.  They’re concerned with the check.  Just write the check.  That’s the deal.

WEC:  So these are just standard delay tactics?

PDH:  Yes.

WEC:  What advice do you have for someone in Joyce Asabor’s circumstances, what should they be doing while these events are taking place?

PDH:  You go to EEO [Equal Employment Opportunity office] within your corporation—they all have an EEO office in these big corporations.  You go to them, tell them what happened.  If nothing happens, then you go to the EEOC on the city level, the state level, the Human Rights Commission, or to the federal Employment Opportunity Commission.   If it doesn’t work out, she’s doing what she was supposed to do.

WEC:  Is there anything else you would like to say about this case?

PDH:  I think it’s a good lawsuit and they’re going to recover.  It’ll be over soon.

Wendell Edward Carter is a playwright, theater producer and culture critic.  Mr. Carter’s current production is RARA AVIS (RARE BIRD), recently featured in the Come Celebrate The Glory of Sugar Hill festival in Harlem, NY.  He lives in New York City.

Pamela D. Hayes, Esq. is a renowned criminal attorney in private practice in New York.  As a former member of the National Review Board, a group of lay persons organized by the U.S. Conference of Catholic Bishops, Attorney Hayes helped co-write a groundbreaking report on the causes and scope of sexual abuses in the Catholic Church.  From Public Defender to Prosecutor for the State of New York, Assistant D.A. Hayes obtained guilty verdicts in such high profile police corruption and hate crime prosecutions as the 77^th Precinct corruption scandal, The Howard Beach and the Bensonhurst Cases.  She is one of the most sought after legal commentators for television and radio, making ongoing appearances on CNN’s “The Paula Zahn Show”, “The Nancy Grace Show”, and “The Situation Room”; “Dateline NBC”; Fox 5 “Good Day New York”; Fox News Channel “Hannity & Colmes”; MSNBC “Rivera Live”; “Court TV”; “Maury Povitch Show”; and “The Montel Williams Show”; BET, WLIB Radio and other news outlets.  She is a member of the “Franklin H. Williams Judicial Commission on Minorities”, having been appointed by the Chief Justice of the State of New York, and serves on the board of the National Catholic Reporter.  Attorney Hayes served on the finance committee for Hillary Clinton’s original Senate campaign, and on Mrs. Clinton’s national finance committee during her run for the presidency.

* The Nature and Scope of the Problem of Sexual Abuse of Minors by Catholic Priests and Deacons in the United States, June 2002

Wendell Carter as the writer and Cecil Longmore as photographer