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Judge may rule on Microsoft discrimination suit

Judge Thomas Penfield Jackson could make another decision affecting Microsoft, but this time unrelated to the landmark antitrust case.

WASHINGTON--U.S. District Judge Thomas Penfield Jackson this week could make another decision affecting Microsoft, but this time unrelated to the landmark antitrust case.

Jackson, the same judge who ordered Microsoft be broken into two companies, on Tuesday could address a motion asking him to change venue in an unrelated $5 billion discrimination suit.

On Feb. 3, lawyers representing former Microsoft employee Rahn Jackson and six other plaintiffs amended a lawsuit before Judge Jackson, asking him to certify the case as "class status." Rahn Jackson, who is no relation to the judge, filed the original discrimination suit in June 2000.

On Thursday, Microsoft filed a legal brief asking that the discrimination case be moved from Washington, D.C. to Washington state, which is where the software company is headquartered.

Judge Jackson, who is under no obligation to grant the request, could make a decision on the matter as early as this week. A status meeting is scheduled for 6:30 a.m. PT Tuesday. If Jackson grants Microsoft's motion, the case would move to the company's home turf, where the software maker would be in a better position to defend against the lawsuit.

"Obviously, Washington state, their home territory, would be a more friendly forum for Microsoft," said Bob Lande, a law professor with University of Baltimore Law School, on Sunday.

Microsoft cited many logistical reasons for the request, but relied mainly on another discrimination case, now before the U.S. District Court for the Western District of Washington, to support the request.

That lawsuit, filed in October by Monique Donaldson, bears striking similarities to the Rahn Jackson case. Both suits allege Microsoft engaged in widespread discriminatory and retaliatory practices in violation of Title VII of the Civil Rights Act of 1964. Both plaintiffs also have requested their cases be certified as class status, which would extend their reach to other current and former Microsoft employees.

Should either suit be certified as class action, the scope would broaden to include all African American employees hired after Oct. 4, 1998, in the Donaldson matter, or after April 27, 1992, in the Rahn Jackson case.

"Since obviously Microsoft is located in Washington state, the majority of the alleged class is here," Microsoft spokesperson Dean Katz said Saturday. "That's one of the most important reasons. The other is the court action is already under way here, and there already is action under way here."

While Donaldson filed her lawsuit later, the case has moved further along than the one in Washington, D.C. Donaldson, for example, in late October served Microsoft a request for human resources and other documents as part of the discovery process.

Katz added: "Depositions have been noticed, and the court is soon going to enter in a comprehensive scheduling order."

Willie Gary, senior partner with Stuart, Fla.-based Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, represents Rahn Jackson but could not be reached during the weekend for comment.

In its motion for changing venue, Microsoft asked that the Rahn Jackson "case be transferred to Washington (state) so that it may be consolidated with the existing putative class action for discovery and trial."

Microsoft's goal in making the request is to "avoid the potential for conflicting decisions from two different courts examining two cases with similar issues and to avoid duplication in discovery and wasting judicial resources by having overlapping cases heard in separate courtrooms," Katz said.

The Redmond, Wash.-based software maker also argued moving the case would be logistically easier for the Western District Court, as the majority of documents and potential witnesses are located close by.

But Microsoft must persuade Judge Jackson the move will not create undo hardship for the seven plaintiffs in the Rahn Jackson lawsuit. Only three of those plaintiffs reside in Washington state.

Lande said it would be reasonable for Judge Jackson to grant the change of venue.

"If Microsoft can show all those practical matters--like most of the evidence is out there, most of the people are out there--for judicial economy you show you should do the trial out there," he said. "It makes perfect sense."

Nowhere in its motion did Microsoft mention Judge Jackson's involvement in the government's antitrust case, where during the appeals process the company has alleged bias on his part.

In other Microsoft legal matters, the software company and government are expected to file briefs regarding oral arguments in the antitrust appeal. The case, before the U.S. Court of Appeals for the District of Columbia Circuit, will determine the extent of the government's victory over Microsoft in the antitrust trial.

In April 2000, Judge Jackson determined that Microsoft had violated two sections of the 1890 Sherman Act, later ordering the company be broken into separate operating systems and software applications companies.

Oral arguments in the case are scheduled for Feb. 26 and Feb. 27. Microsoft and the government have until 9 a.m. PT Friday to submit proposals for the format to used for the oral arguments. The first proposal is expected as early as Monday.