There were three individuals who were
sued—and ultimately, found by the court [to
have] no viable claims against them. I really
learned how the litigation affects individuals.
That, I think, is an important lesson for
young lawyers: to really understand how
seriously the clients take it, how hurt people
are emotionally from being sued.
Q: Another one of your cases, Clark County
School District v. Breeden, was decided by
the Supreme Court of the United States.
What was that experience like?
A: I hate to dispel my myth, but I didn’t
get to argue that in front of the Supreme
Court. As a matter of fact, there was never a
Supreme Court hearing. I won the case in the
District Court, getting summary judgment in
favor of my client. The appeal was taken to
the 9th Circuit and we lost in the 9th Circuit.
An administrator [Shirley Breeden], in the
human resources department at the school
district, and some other staff members,
were in charge of hiring school police
officers. In Nevada, school police officers
are not security guards; they are actual
peace officers so they have to go through
the same things that police officers working
for a municipality or a state have to do,
which means they have to go through an
extensive process, [including] psychological
evaluations because they are gun-toting
officers, they have arrest powers and all that.
[The district was] in the process of doing
the preliminary clearing work on the process
to hire school police officers and they were
reading the psychological reports of a group
of candidates. One of the candidates had
confessed to the psychologist that he had been
fired from a prior job for sexual harassment.
The psychologist asked him, and had written
in the report, that the guy described the
statements he’d made to a female and co-worker. One of them was a statement that
we called “the Grand Canyon statement.”
He said something like, “I bet making love to
you is like making love to the Grand Canyon.”
So Shirley Breeden reads this thing alone
before she meets with her subordinates. She
kind of raised her eyebrows, but she’s not
particularly upset by it. She later meets with
her boss and her [male] subordinate and
they go through the same reports. [Her boss]
read the statements that were said, including
the Grand Canyon statement, and said, “I
don’t know what that means.” [Breeden’s
subordinate said] something like, ”I’ll tell
you later.” [Breeden] got offended by that
and reported it as sexual harassment of her.
Ultimately, she alleged all kinds of retaliation
CONTINUED FROM PAGE 9
and it was chiefly a retaliation case after that.
She alleged that basically she was transferred
and her supervisor treated her bad after she
complained about him.
We end up in court and ultimately the
District Court dismisses it, says: Number one,
nobody can say that’s sexual harassment;
she’s not protected by the retaliation statute;
she wasn’t sexually harassed; and made a
whole slew of rulings on the retaliation claim.
The 9th Circuit three-judge panel reversed it.
A lot of lawyers say, “Well, you can always
take it to the Supreme Court,” but you never
do because the clients aren’t going to spend
that amount of money taking it to the U.S.
Supreme Court, and the chances of getting
it reviewed by the Supreme Court are slim
to none. [But in this case] we talked about
it, [and] the clients said, “Look, we’ve done
all this briefing already; let’s do it.” I hired an
appellate lawyer and the two of us together
worked on a petition for certiorari. What we
were trying to do with the Supreme Court was
say, “Look, this is a legitimate argument that
we had. … There’s no way this should have
been seen as discriminatory. It was her job to
look at these reports, this was one comment,
at most, and it was done as part of her job.”
[Five months after filing the cert,] I called
and my co-counsel says, “We won.” It’s pretty
unusual for the Supreme Court to actually
do a decision on the merits of a case, based
on a cert petition. And that’s what they did in
Breeden. It was a 9-zip decision. They didn’t
rule at all on one of the issues we thought
was our big issue, but they certainly ruled on
the issue of “this is not discrimination.”
I was personally really disappointed that I
didn’t get to argue it. … That’s not quite the
dramatic Supreme Court story that most
people have. I since haven’t had cert granted
on anything, so my only way to go to the
Supreme Court is when I’m in D.C., I go to the
Supreme Court gift shop to buy souvenirs.
Q: What advice do you have for new
attorneys?
A: Have a life. They absolutely have to figure
out how to put as much effort into having a
life outside of the office and outside of being
a lawyer as they do in what they’re doing in
the office. Once I figured that out, my stress
level has gone down, I’ve enjoyed practicing
law more, and I think I’m a nicer person as a
consequence.
Q: What do you do to create balance in
your life?
A: My husband, who is also an attorney,
likes to take off a month a year and go on
vacation. I’ve been back about three weeks
from India. I’m very lucky; we pick some nice
places. Don’t get me wrong, we have nice
houses and nice cars, but we don’t live in the
mansions that our friends live in because we
put our money into good travel.
Q: You’ve been all over the world: Tuscany,
Alaska, Paris, Switzerland ... Where else
do you want to visit?
A: I really want to go back to southern New
Zealand. I have this book that’s actually
kind of an atlas of where they made all of
the scenes for Lord of the Rings. I’ve read it
and I got very interested in going back to the
rest of New Zealand. I want to go to China. I
want to go to Argentina, to Patagonia. I want
to go to Antarctica. [In 1992, my husband]
found this trip to the Canadian Arctic and
Greenland. And [he] bought me off with it,
figured that would make me never want to
go to Antarctica—and [instead it] made me
an arctic freak. Which is why I’ve been to
Churchill, Manitoba, I’ve been back to the
Arctic; I’ve spent a lot of time in Iceland. I
love the delicacy of life up there. Churchill is
where you go to see the polar bears.
Q: What is the most rewarding part of your
job?
A: When I can give a client advice and help
my client avoid problems. And when I can see
it visually work out, because sometimes you
don’t see that it works out. That’s when I feel
like I have value, when I feel like the practice
of law has real value. It’s not that I don’t get
a lot of reward out of winning a case. If you
go get a jury verdict or you win an appeal or
you win an administrative proceeding—all
of that costs a lot of money and all of that
means that something broke down, which is
why you’re in litigation. Money‘s a big thing for
clients, particularly in the recession. If you can
do something where a few hours of your time
can help a client avoid major problems, it’s
pretty helpful. If I can see that happen, that
actually means more to me than winning a
big appeal or something like that.
A lot of employment law is really doing the
right thing and treating people right. It’s basic
values that are incorporated into employment
law. You know: You don’t discriminate against
people; you don’t make decisions in certain
areas for reasons that aren’t the right reasons;
you’re not mean to people unnecessarily.
Notice I say unnecessarily. [Laughs]
Sometimes you have to do things that are
unpleasant, but you don’t do it unnecessarily.
… That’s part and parcel of what I think is still
the best for clients to avoid problems.
