Shah v. Texas Department Of Criminal Justice

Filing 52

OPINION on Recusal. (Signed by Judge Lynn N. Hughes) Parties notified. (ghassan, 4)

UNITED STATES DISTRICT COURT

Jitendra Shah,
Plaintiff,

'Versus
Texas Department of CriminalJustice,
Defendant.

SOUTHERN DISTRICT OF TEXAS

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Civil Action H-I2.-2.I2.6

Opinion on Recusal
I.

Background.
In April of 2.0 I I , the Texas Department of CriminalJustice firedJitendra Shah.

In August of 2.01 2., he sued it for retaliation and for discrimination based on age, race,
national origin, and religion. On the morning of November 2.6, 2.012., a second pre-trial
conference was held. Shah's counsel called the court and left a message that she would
not attend because she was ill. Shah has moved to recuse the court based on
conversations at that conference. The court will continue to preside.

2..

The Conference.
The conference had been set for nine days. Shah's counsel knew that to reach

Houston for a 10:00 a.m. hearing the counsel for the prison would have to drive three
hours. At 8:09 a.m., she e-mailed the court to say she had the "crud." The email said
she would not be at work or the hearing. She gave a telephone number where she could
be reached without asking to appear by telephone. Shah's counsel also left a voice mail
on the chamber's telephone. It said that she was not attending. Shah did not attend. It
is customary for parties to appear only through their lawyer at the preliminary
conferences.
The court allows non-local counsel who ask for permission - well in advance of a conference to appear by telephone. Neither the e-mail or the voicemail asked the

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court to continue the conference nor was a request to continue filed.
Shah says that the conference was held ex parte. He had been notified of it nine
days earlier. Although Shah was not represented at the conference, that was a choice
by his counsel, not the court. Shah's absence did not render the conference ex parte
because he had notice. Counsel may not continue hearings by simply not attending.
Even with that predicate, nothing substantive was done at the conference.
Rather than waste the defendant's trip, the court did inquire about the progress of
discovery and the schedule for filing motions.

3.

The Comments.

A.

Excuse.

Shah says the court made light of his counsel's illness. That is an impossibility
because the court did not know then or now what her problem was. The court did
remark that Shah's counsel needed a different doctor if" crud" was a medical diagnosis.
That humor was directed to a doctor, if anyone.
B.

Di'Versi~.

Shah says that the court's comments about college diversity programs
demonstrate an inability to follow jurisprudence on affirmative action.
This case is not about affirmative action. A passing comment on bureaucratic
make-work waste rather than seeking the best students says nothing about preferences
under the law. Shah cannot suggest that paying a staff member in the admissions
process at a university one-half a million dollars sounds reasonable. The court has
routinely applied laws that it thought were wise equally with those that it thought were
unwise. A judge is not required to believe that the tax code, say, consistently makes
sense both to pay and apply those taxes.

C.

State Workers.

Shah says that the court's remarks about state employees demonstrate a bias
against Shah, a former state employee.
An aside about state workers' happiness and pay does not show bias.
Complaining about pay when one is not underpaid is not limited to state workers;
everyone would like to have more money.

Shah also twists these statements as being directed at him. They were directed
at the only state employees at the conference - defendant's counsel.

D.

Swastika.

Shah says that this court's discussion of the swastika and "uncritical" reference
to Hitler shows that it is insensitive to victims of racial, ethnic, and religious
discrimination.
The reference to Hitler's adoption of the swastika was not "gratuitous" or
"neutral." It was a discussion - or monologue - about how a Sanskrit word for good
luck became the symbol of a North-European political movement. I The National
Socialists of the 1930S used the swastika because of its connection to Aryan peoples
who lived in Iran and northern India. 2The Nazis said that the Aryans - who used the
swastika - were from Nordic Europe, instead of east of the Caucasus Mountains. All
of this invention or delusion was an attempt to bolster their claim that Germans were
a superior race descended from pure Aryans. 3
The comment was not uncritical, it was historical. 4 Would an uncritical
reference to Hitler make one a N az;i sympathizer?
When the court said that "they act a lot like Germans," that was a criticism of
the current in German thought - Hegel is an example - that has called for a return to
a mythical glory of the race when they were dominant. 5

E.

Caucasians.

Shah says that the reference to Caucasians shows that the court does not
recognize Indians as a protected class. Although Caucasian is commonly understood

I

Ernest Gellner, Nations and Nationalism 49 (R.I. Moore et al. eds., 1983).

2John Keay, India: A History 2.1 (2.000).
3

Gellner, supra note 1, at I2.4.

4

Ernest Gellner, Nationalism 35 (1997).

5 Gellner, supra note I, at 48 (citing G.W.F. Hegel, Lectures on the Philosophy of
World History 134(H.B. Nisbet, tr. 1975)).

to mean white people, the word in anthropology refers to a cluster of peoples stretching
from Europe through the Caucasus Mountains to India. The court was not confused
because a few lines later it referred to Aryans synonymously with Caucasians.
The categories of people evolve and flip. How the Bureau of the Census or the
Equal Employment Opportunity Commission categorize people changes frequently.
Anthropologists change the way they classify peoples, too; however, none of them
thinks that these labels are ever anything better than a weak generalization, a rough
approximation. 6 Discussion of the problems of racial identities and their misuses is part
of working through facts and reasoning to eliminate those unprincipled uses.
Shah was born in India. In his affidavit, paragraph 38, Shah says: "I guess I
answered Hindu. Whether Hinduism is a religion or culture could be debated forever.
I am considered Asian by birth, although the labels don't really quite fit." Hindu is a
religion or culture, and it may be a shorthand for underlying racial classification?
A frank discussion of race is required in a case brought by a man claiming
discrimination based on his race. Caucasian is the old-fashioned crude allocation of
seven billion people into three groupings. Groups that broad may have minor genetic
unity, but knowing that is inadequate for pubic decision-making. If he lost his job
because of his origin, religion, or race, the law protects him.

F.

Eleanor RoosC1lelt.

The court's mention of Eleanor Roosevelt's preference for staff of one race
illustrates that what a person does and what a person says are not always the same. The
court does not believe that a staff of one color works better together; the court has no
experience with domestic staffs of more than one. The court was not approving of her
racial hiring. It was a criticism.

G.

Engineers & Indians.

If an employer were to discriminate against a class of people, it is easier to never

Ashley Montagu, Man's Most Dangerous Myth: The Fallacy of Race 50-51 (6th ed.
1997)·

6

7

Thomas Sowell, Race and Culture: A World View 6-7 (1994).

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hire someone from that class than hire them and then fire them ten years later. That
is the point of the court's statement that it would be easy not to hire the first Indian
person in a workplace; that is how people discriminate. When the department's counsel
said that it would be hard not to hire an Indian engineer, the court responded that that
could be true if an employer hires based on merit. That was a recognition of Texas's
many capable engineers with a connection to India.
The court's asserted hostility to Indians would surprise its immigrant or firstgeneration Indian doctors, friends, law clerk, and interns.

4.

Cases.
Shah mentions other cases to show the court's bias. In a decision that was fully

affirmed on appeal, the court of appeals did not condemn this court for an
"inappropriate racially insensitive remark." It merely said that this court was mistaken
when it did not view another person's hostile comment as a racial slur. That case was
not about someone from the Indian Subcontinent.
Shah accuses this court of racially hostile remarks in a separate case three years
ago. A friend of the court had traveled to North Korea; she brought back books of
North Korean law on labor and land. At the end of a conference, though the transcript
does not show this, the court picked up one of the booklets of about 60 pages and
showed it to counsel, asking why they did not move to North Korea to practice labor
law. The rhetorical question illustrated that it would be easy to practice labor law in
North Korea, because there is none. The court next showed them the land volume. The
group agreed that the complexity of America is preferable to the absence of law badly
veiled by impossibly short books oflaws. The conversation had nothing to do with the
background of the two lawyers sitting before it and everything to do with the limitations
of North Korean law.
The conversation was not an attack on the non-Indian, non-Korean lawyers or
the people populating the Korean Peninsula - only its current government.

5.

Shah's AffidaVit.
All the court knows about Shah has been gleaned from the papers and talk by

counsel in this case - no contact with him in or out of court.
In his affidavit, paragraph 33, Shah says the court attributed a level of

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obnoxiousness to those who are born in India. Had his counsel attended the
conference, she would have seen that the remark, a reference to underpaid stateemployees - not Indians - was accompanied by a gesture toward the law clerks. The
court was poking fun at them.
When the court asked whether it was the state's position that Shah had been
a difficult employee, it was not stating an opinion - personal or professional. In addition
to the court's not being able to discuss the law's classifications, Shah wants the court
not to ask about the facts of the case. If the court characteriz;ed him as difficult, it would
have had nothing to do with people who are born in India or anywhere else. He freely
replaces pronouns with a noun of his choosing and supplies tone not present in the
transcript or conference.

6.

Conclusion.

J itendra Shah has accused this court of being biased against him. What it knows
about him is wholly derived from the case. Discussion of history and race does not
evince a bias against people who are Indian, Hindu, both, or anyone else. Incidently, the
references are to works from the court's private library.
Shah and the court are not the problem; a casual sampling of the deposition the
prison tried to take of Shah is revealing.
This court is committed to equal justice under law and applying it with a fine
impartiality. The motion to recuse will be denied.

Signed on September 16, 2.013, at Houston, Texas.

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Lynn N. Hughes

United States DistrictJudge

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