A defendant cited Jackson, infra, for the proposition that my client didn't suffer a hostile work environment. Those are always tough cases, but the defendant here pretty much hung its hat on Jackson. West's Keycite shows that the case was substantially modified on reconsideration. It was no longer good law for the point the defendant cited it for. At first I was wondering how the hell they missed that the case was no longer good law, but when I followed up I noticed that in the F.3d it says (incorrectly) that rehearing was denied. The Keycite shows it cited by many courts without acknowledging the subsequent history. I decided it was better not to act too outraged about the defendant relying on a case that was no longer good law and instead to be very gentle about it.
Frankly, this is almost always the right way to go. I've had the privilege of talking to Judges about it, and one thing they are more than tired of is lawyers pointing the finger at each other about alleged mistakes. If anyone is going to get upset at lawyers who make mistakes, it ought to be the ones in the robes. Here, I'm not even comfortable calling it a mistake.
Jackson v. Flint Ink North American Corp., 370 F.3d 791 (8th Cir. 2004) was overturned on request for rehearing. On the petition for rehearing, the Court of Appeals, having had additional facts pointed out on rehearing, held that work environment faced by worker was objectively hostile, and thus was actionable arguably. Jackson v. Flint Ink North American Corp., 382 F.3d 869 (8th Cir. 2004).[1]
[1]There is some inconsistency in the treatment of this case in the reports. West’s reports that rehearing on this case was denied on September 3, 2004. Of course, West’s also published the decision on reconsideration (dated August 24, 2004). Plaintiff's counsel suspects that it is due to this inconsistent treatment that some courts continue to cite this case as authority without noting its subsequent history. See, e.g. Griffey v. Daviess/Dekalb County Regional Jail¸ Case No. 10-06099-CV-SJ-DGK p. 10 (W.D. Mo. 2012); Bell v. Amercian Greetings Corp., 3:04CV00303-WRW, 2007 WL 473693 (E.D. Ark. Feb. 8, 2007), n.43; aff'd sub nom. Bell v. Am. Greetings Corp., 279 F. App'x 415 (8th Cir. 2008); Carlson v. Leprino Foods Co., 522 F. Supp. 2d 883, 889 (W.D. Mich. 2007); Lindsey v. Cube Corp., 386 F. Supp. 2d 1037, 1040 (W.D. Ark. 2005); Brown v. Arkansas State Highway & Transp. Dept., 358 F. Supp. 2d 729, 734 (W.D. Ark. 2004) aff'd sub nom. Brown v. Arkansas State Highway & Trans. Dept., 166 F. App'x 885 (8th Cir. 2006).
Jackson v. Flint Ink North American Corp., 370 F.3d 791 (8th Cir. 2004) was overturned on request for rehearing. On the petition for rehearing, the Court of Appeals, having had additional facts pointed out on rehearing, held that work environment faced by worker was objectively hostile, and thus was actionable arguably. Jackson v. Flint Ink North American Corp., 382 F.3d 869 (8th Cir. 2004).[1]
[1]There is some inconsistency in the treatment of this case in the reports. West’s reports that rehearing on this case was denied on September 3, 2004. Of course, West’s also published the decision on reconsideration (dated August 24, 2004). Plaintiff's counsel suspects that it is due to this inconsistent treatment that some courts continue to cite this case as authority without noting its subsequent history. See, e.g. Griffey v. Daviess/Dekalb County Regional Jail¸ Case No. 10-06099-CV-SJ-DGK p. 10 (W.D. Mo. 2012); Bell v. Amercian Greetings Corp., 3:04CV00303-WRW, 2007 WL 473693 (E.D. Ark. Feb. 8, 2007), n.43; aff'd sub nom. Bell v. Am. Greetings Corp., 279 F. App'x 415 (8th Cir. 2008); Carlson v. Leprino Foods Co., 522 F. Supp. 2d 883, 889 (W.D. Mich. 2007); Lindsey v. Cube Corp., 386 F. Supp. 2d 1037, 1040 (W.D. Ark. 2005); Brown v. Arkansas State Highway & Transp. Dept., 358 F. Supp. 2d 729, 734 (W.D. Ark. 2004) aff'd sub nom. Brown v. Arkansas State Highway & Trans. Dept., 166 F. App'x 885 (8th Cir. 2006).
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