Attorney Donald Russo
The age discrimination lawsuit Bethlehem attorney Donald P. Russo filed for Ernest Keister three years ago named the wrong company as the central Pennsylvania man's employer, but that was only one of its flaws.
Russo also missed several filing deadlines, failed to produce any evidence of employer PPL's alleged discrimination against Keister and leveled claims against the company and Keister's union that were at odds with Keister's own testimony, according to court papers.
After throwing out the lawsuit last year, a federal judge has granted motions by PPL and the International Brotherhood of Electrical Workers to have Russo held responsible for the attorney fees and court costs they racked up defending the allegations.
In his blistering Dec. 29 opinion granting the requests, U.S. District Judge Matthew Brann said Keister's case suffered an even more serious flaw than its lack of evidence.
Russo kept the lawsuit alive long after he should have accepted a loss, Brann said, calling it "a sort of litigious necromancy conjured up by Mr. Russo's specious filings to coerce the defendants into settling a meritless claim."
Attorney Steven Hoffman, who represents PPL, and attorney Quintes Taglioli, who represents IBEW, filed papers last week claiming the lawsuit cost the electric utility and the union a total of $121,641 in attorney fees and related costs. How much of that amount Russo may be required to pay will be the subject of another decision by Brann.
Hoffman and Taglioli declined to discuss the Keister case.
Russo, a frequent contributor to The Morning Call's opinion pages, filed a response to PPL's claims for attorney fees Monday objecting to the assertion that he should be held responsible for the cost of the four-member legal team that defended the company.
He objected to the amount PPL is seeking given his personal financial status, and noted that federal appeals courts have ruled that such sanctions should take into account a party's ability to pay. Russo also objected to PPL's inclusion of attorney fees incurred after it filed its motion or sanctions against Russo in May.
Brann noted Keister's suit is the latest in a string of "vexatious" employment cases filed by Russo against private and public employers that include the city of Allentown, the Allentown Housing Authority and Lehigh Valley Health Network.
His work has drawn the criticism of other federal judges who described it as "dubious," "troubling," "silly" and "riddled with credibility shortcomings."
In July, U.S. District Judge Robert Mariani found that Russo violated court rules by pursuing a frivolous lawsuit on behalf of a Carbon County pilot who claimed his employer wrongly fired him after he was arrested. In that case, Russo's sanction was essentially a written warning.
And the Pennsylvania Supreme Court's attorney discipline board publicly reprimanded Russo last month for his failure to pursue a 2009 whistleblower lawsuit for a client and for allowing his professional liability insurance to lapse for five months without notifying clients.
"Suffice it to say, Mr. Russo is simply not getting the message," Brann wrote, adding that he believed the award of reasonable attorney fees to be the least severe sanction to deter future frivolous lawsuits.
Russo, a lawyer since 1977, was also was slapped with a $4.25 million legal malpractice verdict in Northampton County Court in 2011 after a jury trial in which he didn't show up to contest claims he'd misrepresented a fired public school employee.
Employment law attorneys said the sanctions against Russo in the case he brought against PPL are unusual.
Judges and lawyers are required to follow federal court rules to ensure fair, fast and efficient court proceedings. Specifically, Rule 11 bars harassing, frivolous or false claims. It allows courts to sanction attorneys and law firms that violate the rule. Penalties range from warnings or fines to orders to pay the opposing party's attorney fees and court costs.
The rule provides a degree of protection for defendants against baseless lawsuits, said Anthony B. Haller, a Philadelphia attorney who defends companies accused of civil rights violations.
"It's a rule of very fundamental requirements," Haller said. "It's not imposing a particularly high standard. In fact, it's a very low bar over which lawyers must jump … to ensure a minimum level of integrity."
That's important because companies hit with civil lawsuits can spend hundreds of thousands of dollars to defend themselves.
"Even if you win, you've spent a lot of money in the process," Haller said.
In many cases, companies facing employment discrimination claims make the determination that it's cheaper to settle claims for a fraction of what they would spend proving they are not liable, he said. But when a case clearly has no merit, Rule 11 allows companies to recoup their losses, Haller said.
Bethlehem attorney George Kounoupis said such sanctions are appropriate in only the most egregious cases.
"The people who come to your office as plaintiffs are usually fired, have very little money, they're outside the workplace and have no access to the evidence," Kounoupis said. "The plaintiffs' lawyers are often faced with a very difficult road."
Central to a successful workplace discrimination case is proof that an employee was treated differently than his or her colleagues on the basis of age, race, gender, religion or other protected category.
Without an employer's admission of an intent to discriminate, Kounoupis said, employment lawyers must comb through records to build a circumstantial case to show, for example, that younger workers did the same work as an older employee but received more frequent raises.
"When you have no facts whatsoever, when you deliberately ignore obvious facts, that's when you have a real problem," he said.
Keister, an electrician at PPL's Susquehanna Steam Electric Plant in Berwick, Luzerne County, worked for the company since 1979. He was 67 years old when he claimed in federal court that PPL hired younger employees for the same position and that his requests for higher pay and a new job classification were refused.
The suit, Brann noted, named PPL Corp. and PPL Services as defendants, while Keister's official employer was PPL Susquehanna LLC.
In his opinion, Brann wrote that Keister's court papers failed to explain how PPL's refusal was motivated by his age or how a discriminatory motive could be found in the company's hiring of younger workers. The unsupported claims left the court and the defendants "chasing unavailing leads and tumbling down legal rabbit holes," Brann said.
Brann noted he gave Russo permission to amend the lawsuit in 2014 on the basis of those "damning allegations."
"Unfortunately, as the evidence would later illuminate, this court was led down the garden path by Mr. Russo when it accepted his client's allegations in good faith," Brann wrote.
In his deposition, Keister admitted he couldn't name anyone in a similar position who was younger who received a raise or a new title when they asked.
Ultimately, Brann concluded, the case would be dismissed because Keister failed to file a grievance with his union before suing, because the suit was filed after the deadline to do so, and "because the defendants had never, in fact, discriminated against him."
Brann rejected Russo's claims that his conduct and handling of the case should be excused because he is a sole practitioner while PPL and the union had far greater resources. In the closing lines of his opinion, Brann recalled words he had spoken to Russo in arguments on the sanctions.
"Now is a good time for him to retire back to his office, review any pending federal lawsuits, and put some serious thought into whether this is the kind of lawyer he wants to be," Brann wrote.
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