Important Information
On Cases |
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ALI-ABA
Advanced Employment Law and Litigation
Washington , D.C.
December 5, 2008
Current Evidentiary Problems in Employment Cases
By Richard T. Seymour*
*Law Office of Richard T. Seymour, P.L.L.C., 1150 Connecticut Avenue N.W.
, Suite 900, Washington
, D.C. 20036-4129
. Telephone: 202-862-4320. Cell: 202-549-1454. Facsimile:
800-805-1065. E-mail: rick@rickseymourlaw.net.
Some of the information in this paper is used with permission from an
upcoming edition of Richard T. Seymour and John F. Aslin, Equal Employment
Law Update (Bureau of National Affairs, Washington
, D.C. , 2007), copyright © American Bar
Association, 2007. For copies, contact BNA at 1-800-960-1220; members
of the Labor and Employment Law Section are entitled to a 25% discount
as a benefit of Section membership. Mention priority code EQL in order
to receive the discount.
My web site, www.rickseymourlaw.com
contains a number of my CLE papers, which are downloadable.
Table of Contents
- I.Legal Developments
II. Practical Considerations
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A. Evidence
Considerations Under the Inferential Model |
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a. Other
Instances of Discrimination |
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Sprint/United Management Co. v.
Mendelsohn, __ U.S. __, 128 S. Ct.
1140, |
102 FEP Cases 1057 (2008), reversed and remanded
the decision of the Tenth Circuit, and held that the ower court erred
in concluding that a two-line minute entry of the district court meant
that the lower court had adopted a per se rule barring testimony of
other instances of discrimination, and in conducting its own balancing
test as to such testimony instead of remanding the case to the district
court. The unanimous Court stated its views on the evidentiary issue
succinctly:
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The question whether evidence of
discrimination by other supervisors is relevant in an individual
ADEA case is fact based and depends on many factors, including
how closely related the evidence is to the plaintiff's circumstances
and theory of the case. Applying Rule 403 to determine if evidence
is prejudicial also requires a fact-intensive, context-specific
inquiry. Because Rules 401 and 403 do not make such evidence
per se admissible or per se inadmissible, and because the inquiry
required by those Rules is within the province of the District
Court in the first instance, we vacate the judgment of the Court
of Appeals and remand the case with instructions to have the
District Court clarify the basis for its evidentiary ruling
under the applicable Rules. |
Id. at 1147.
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United Statesv. Arvizu, 534 U.S. 266 (2002),
a Fourth Amendment case, follows Reeves v. Sanderson Plumbing
Products, Inc., |
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530 133, 82 FEP Cases 1748 (2000).
In both cases, the Court rejected the approach of some lower
courts in segmenting evidence when a determination is supposed
to be made in light of all the evidence. In Arvizu, the Ninth
Circuit considered in isolation each circumstance that led to
the stop, and rejected it if the court could conceive of a possible
innocent explanation. The same often occurs in appellate review
of employment discrimination summary judgments. In Arvizu, the
Court stated: |
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We think that the approach taken by the
Court of Appeals here departs sharply from the teachings of
these cases. The court’s evaluation and rejection of seven
of the listed factors in isolation from each other does not
take into account the “totality of the circumstances,”
as our cases have understood that phrase. The court appeared
to believe that each observation by Stoddard that was by itself
readily susceptible to an innocent explanation was entitled
to “no weight.” . . . Terry, however, precludes
this sort of divideand- conquer analysis. The officer in Terry
observed the petitioner and his companions repeatedly walk back
and forth, look into a store window, and confer with one another.
Although each of the series of acts was “perhaps innocent
in itself,” we held that, taken together, they “warranted
further investigation.” |
Id. at 274–75 (citations omitted.) The Court recognized that the
Ninth Circuit was attempting to provide more uniform guidance, but held
that it went too far:
But the Court of Appeals’ approach would
go considerably beyond the reasoning of Ornelas and seriously undercut
the “totality of the circumstances” principle which governs
the existence vel non of “reasonable suspicion.” Take, for
example, the court’s positions that respondent’s deceleration
could not be considered because “slowing down after spotting a
law enforcement vehicle is an entirely normal response that is in no
way indicative of criminal activity” and that his failure to acknowledge
Stoddard’s presence provided no support because there were “no
‘special circumstances’ rendering ‘innocent avoidance
. . . improbable.’” . . . We think it quite reasonable that
a driver’s slowing down, stiffening of posture, and failure to
acknowledge a sighted law enforcement officer might well be unremarkable
in one instance (such as a busy San Francisco highway)
while quite unusual in another (such as a remote portion of rural southeastern
Arizona
). Stoddard was entitled to make an assessment of the situation in light
of his specialized training and familiarity with the customs of the
area’s inhabitants. . . . To the extent that a totality of the
circumstances approach may render appellate review less circumscribed
by precedent than otherwise, it is the nature of the totality rule.
at 275–76.
Comment
by Richard Seymour on U.S. v. Arvizu: The Ninth Circuit’s
balkanization of the evidence in this Fourth Amendment case is a mirror
image of the balkanization of evidence of discrimination and of pretext
by some judges. “Totality of the circumstances” tests permeate
the law of employment discrimination, and Arvizu and Reeves require
looking at each case as a whole. Bright-line tests of isolated factors,
such as the “same actor” inference in some Circuits, the
presumptive ten-year minimum age rule in the Seventh Circuit, the universal-and-exclusive
approach to retaliation cases in the Seventh Circuit, and the like,
have no place under Arvizu, although such factors can continue to be
considered as part of the case as a whole. The Court’s concluding
recognition that precedent necessarily plays a smaller role under a
“totality of the circumstances” test (unless the prior case
was “on all fours”) is as true for employment cases as for
any other type of case subject to this rule.
Miller-El v. Dretke, 545 U.S. 231 (2005), reversed
the denial of habeas corpus and held that petitioner had shown racial
discrimination in the prosecutor’s peremptory challenges by clear
and convincing evidence. The court stated: “The rub has been the
practical difficulty of ferreting out discrimination in selections discretionary
by nature, and choices subject to myriad legitimate influences, whatever
the race of the individuals on the panel from which jurors are selected.”
Id. at 231. The Court
cited Reeves v. Sanderson Plumbing Products, id. at 241, underscoring
the relevance of this decision to employment law.
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As for law, the rule in Batson provides
an opportunity to the prosecutor to give the reason for striking
the juror, and it requires the judge to assess the plausibility
of that reason in light of all evidence with a bearing on it.
. . . It is true that peremptories are often the subjects of
instinct . . . and it can sometimes be hard to say what the
reason is. But when illegitimate grounds like race are in issue,
a prosecutor simply has got to state his reasons as best he
can and stand or fall on the plausibility of the reasons he
gives. A Batson challenge does not call for a mere exercise
in thinking up any rational basis. If the stated reason does
not hold up, its pretextual significance does not fade because
a trial judge, or an appeals court, can imagine a reason that
might not have been shown up as false. The Court of Appeals’s
and the dissent’s substitution of a reason for eliminating
Warren
does nothing to satisfy the prosecutors’ burden
of stating a racially neutral explanation for their own actions. |
Id.
at 251–52 (citations omitted). The Court also held that evidence
of the prosecution’s manipulation of procedures, through jury
shuffles that re-order the venire, supported the inference of discrimination.
Id. at 253–55. The Court rejected the
defendant’s speculation that there mighthave been innocent reasons
for its jury shuffles, and rejected the Fifth Circuit’s “see
no evil” approach:
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The State notes in its brief that there
might be racially neutral reasons for shuffling the jury, Brief
for Respondent 36-37, and we suppose there might be. But no
racially neutral reason has ever been offered in this case,
and nothing stops the suspicion of discriminatory intent from
rising to an inference14 |
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14 The Court of Appeals declined
to give much weight to the evidence of racially motivated jury
shuffles because “Miller-El shuffled the jury five times
and the prosecutors shuffled the jury only twice.” 361
F.3d, at 855. But Miller-El’s shuffles are flatly irrelevant
to the question whether prosecutors’ shuffles revealed
a desire to exclude blacks. . . . |
Id.
at 254–55. The Court emphasized a common-sense “best fit”
approach to the determination of motivation:
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The State’s attempt at a race-neutral
rationalization thus simply fails to explain what the prosecutors
did. But if we posit instead that the prosecutors’ first
object was to use the graphic script to make a case for excluding
black panel members opposed to or ambivalent about the death
penalty, there is a much tighter fit of fact and explanation.29
Of the 10 nonblacks whose questionnaires expressed ambivalence
or opposition, only 30% received the graphic treatment. But
of the seven blacks who expressed ambivalence or opposition,
86% heard the graphic script. As between the State’s ambivalence
explanation and Miller-El’s racial one, race is much the
better, and the reasonable inference is that race was the major
consideration when the prosecution chose to follow the graphic
script. |
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The same is true for another kind of disparate
questioning, which might fairly be called trickery. The prosecutors
asked members of the panel how low a sentence they would consider
imposing for murder. Most potential jurors were first told that
Texas
law provided for a minimum term of five years,
but some members of the panel were not, and if a panel member
then insisted on a minimum above five years, the prosecutor
would suppress his normal preference for tough jurors and claim
cause to strike. Two Terms ago, we described how this disparate
questioning was correlated with race . . . . |
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The State concedes that the manipulative
minimum punishment questioning was used to create cause to strike
. . . but now it offers the extenuation that prosecutors omitted
the 5-year information not on the basis of race, but on stated
opposition to the death penalty, or ambivalence about it, on
the questionnaires and in the voir dire 4 testimony.
Id. , at 34–35.
On the State’s identification of black panel members opposed
or ambivalent, all were asked the trick question. But the State’s
rationale flatly fails to explain why most white panel members
who expressed similar opposition or ambivalence were not subjected
to it. It is entirely true, as the State argues, id., at 35,
that prosecutors struck a number of nonblack members of the
panel (as well as black members) for cause or by agreement before
they reached the point in the standard voir dire sequence to
question about minimum punishment. But this is no answer; 8
of the 11 nonblack individuals who voiced opposition or ambivalence
were asked about the acceptable minimum only after being told
what state law required. Hence, only 27% of nonblacks questioned
on the subject who expressed these views were subjected to the
trick question, as against 100% of black members. Once again,
the implication of race in the prosecutors’ choice of
questioning cannot be explained away. |
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29The dissent posits that prosecutors
did not use the graphic script with panel members opposed to
the death penalty because it would only have antagonized them.
See post, at 2359. No answer is offered to the question why
a prosecutor would take care with the feelings of a panel member
he would excuse for cause or strike yet would antagonize an
ambivalent member whose feelings he wanted to smoke out, but
who might turn out to be an acceptable juror. |
Id. at 260–63 (footnotes omitted).
There was a great deal of evidence of discrimination. See the discussion
of this case below. The Court sharply criticized the Fifth Circuit’s
unwillingness to see the discrimination so plainly laid before it:
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The Court of Appeals concluded that Miller-El
failed to show by clear and convincing evidence that the state
court’s finding of no discrimination was wrong, whether
his evidence was viewed collectively or separately. . . . We
find this conclusion as unsupportable as the “dismissive
and strained interpretation” of his evidence that we disapproved
when we decided Miller-El was entitled to a certificate of appealability.
. . . It is true, of course, that at some points the significance
of Miller-El’s evidence is open to judgment calls, but
when this evidence on the issues raised is viewed cumulatively
its direction is too powerful to conclude anything but discrimination. |
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In the course of drawing a jury to try
a black defendant, 10 of the 11 qualified black venire panel
members were peremptorily struck. At least two of them, Fields
and Warren
, were ostensibly acceptable to prosecutors seeking
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