When she complained to his boss, the president of Primary Residential Mortgage, she says he chuckled, then proceeded to draw a diagram of the chief financial officer's "sexual cycle" of dysfunction - arousal at the sight of "attractive" co-workers, guilt, hostility for the women, remorse, arousal and so it went.
The boss only got more hostile. Then Flitton's salary was cut in half. She complained about discrimination to her boss and his in an e-mail. The next day, she was fired.
U.S. District Court Judge Ted Stewart missed something in the story - the point.
Two years ago, he threw out her gender-discrimination claim before trial. He refused to allow her to try to prove her bosses acted with malice - a legal requirement for punitive damages. And when a jury came back with a $50,000 award for emotional pain and mental anguish, he blocked that too.
Judges on the 10th U.S. Circuit Court of Appeals saw Flitton's lawsuit differently, reinstating the jury award and allowing Flitton to press her discrimination suit last week.
They're getting used to this - correcting Stewart's mistakes.
He isn't unique; the Denver-based 10th Circuit second-guesses federal judges in several states, including Utah. In 2001, according to a Salt Lake Tribune review, Utah's federal judges were reversed 14 times out of 115 cases. Over five years, Utah judges were overturned 18 percent of the time.
But when Stewart has been reversed, the cases are outrageous. The outcome seems more obvious, even to a nonlawyer. And his decisions look like evidence of either a personal bias or blatant disregard for the Constitution and legal precedent.
Four years ago, the appeals court forced Stewart to reverse himself and declare Salt Lake City's Main Street Plaza free speech rules unconstitutional. The limits, a chastened Stewart wrote, were "facially invalid under the free speech clause of the First Amendment." Pretty basic stuff there. But upholding the Constitution in the first place would have required Stewart to go against city leaders and his faith.
A year later, appeals court judges overruled Stewart again. While helping a domestic violence victim move out of the home she shared with her abusive boyfriend, police found a pistol and shotgun and arrested Kenneth Rogers, who was subject to a protective order at the time. Stewart concluded possession of a gun is not a "crime of violence" and a detention hearing should not have been held for Rogers. Denver disagreed.
I don't know the fine points of the law; I'm not a practicing trial attorney. But then, neither was Stewart. Which might explain some of the mind-boggling rulings that have come out of his office on Main Street, only to be fixed a few months later in Denver.
When Ted Stewart was nominated to the court in 1999, he had distinguished himself as a bureaucrat. He regulated utilities, ran the Utah Department of Natural Resources, worked for former Congressman Jim Hansen fighting wilderness and managed former Gov. Mike Leavitt's office. Most importantly, he was Sen. Orrin Hatch's BFF (best friend forever).
But his Utah State Bar membership was inactive. He'd never really needed it much.
There were warnings.
Retired University of Utah constitutional law professor John Flynn wrote a letter at the time opposing Stewart's nomination. "Someone serving at a trial judge level should have experience in trial courts," Flynn says.
Attorneys are reticent to talk about Stewart on the record - they have cases before him or could. One attorney who has argued intellectual property and antitrust cases before Stewart says he's "no-nonsense, efficient, and, in my view, fair."
But at the same time, if that attorney were trying a case for the American Civil Liberties Union and could pick the judge, "I would never pick Stewart. I still suspect that with his philosophy and judicial temperament, I'm not going to get any breaks," the attorney says.
So, Flitton's case goes forward without Stewart. The judge has recused himself. It's routine practice for many of Utah's federal judges to remove themselves from cases where they've been reversed. Stewart's not acknowledging anything.
walsh@sltrib.com
