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
a death verdict, and Fields was ideal. The prosecutors’
chosen race-neutral reasons for the strikes do not hold up and
are so far at odds with the evidence that pretext is the fair
conclusion, indicating the very discrimination the explanations
were meant to deny. |
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The strikes that drew these incredible
explanations occurred in a selection process replete with evidence
that the prosecutors were selecting and rejecting potential
jurors because of race. At least two of the jury shuffles conducted
by the State make no sense except as efforts to delay consideration
of black jury panelists to the end of the week, when they might
not even be reached. The State has in fact never offered any
other explanation. Nor has the State denied that disparate lines
of questioning were pursued: 53% of black panelists but only
3% of nonblacks were questioned with a graphic script meant
to induce qualms about applying the death penalty (and thus
explain a strike), and 100% of blacks but only 27% of nonblacks
were subjected to a trick question about the minimum acceptable
penalty for murder, meant to induce a disqualifying answer.
The State’s attempts to explain the prosecutors’
questioning of particular witnesses on nonracial grounds fit
the evidence less well than the racially discriminatory hypothesis. |
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If anything more is needed for an undeniable
explanation of what was going on, history supplies it. The prosecutors
took their cues from a 20-year old manual of tips on jury selection,
as shown by their notes of the race of each potential juror.
By the time a jury was chosen, the State had peremptorily challenged
12% of qualified nonblack panel members, but eliminated 91%
of the black ones. |
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It blinks reality to deny that the State
struck Fields and Warren, included in that 91%, because they
were black. The strikes correlate with no fact as well as they
correlate with race, and they occurred during a selection infected
by shuffling and disparate questioning that race explains better
than any race-neutral reason advanced by the State. The State’s
pretextual positions confirm Miller-El’s claim, and the
prosecutors’ own notes proclaim that the Sparling Manual’s
emphasis on race was on their minds when they considered every
potential juror. |
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The state court’s conclusion that
the prosecutors’ strikes of Fields and Warren were not
racially determined is shown up as wrong to a clear and convincing
degree; the state court’s conclusion was unreasonable
as well as erroneous. |
Id.
at 260–63. The Court also drew the inference of racial discrimination
from prosecutor James Nelson’s offering of a pretextual reason:
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The unlikelihood that his position on rehabilitation
had anything to do with the peremptory strike of Fields is underscored
by the prosecution’s response after Miller-El’s
lawyer pointed out that the prosecutor had misrepresented Fields’s
responses on the subject. A moment earlier the prosecutor had
finished his misdescription of Fields’s views on potential
rehabilitation with the words, “Those are our reasons
for exercising our ... strike at this time.”
Id. , at 197. When defense counsel called
him on his misstatement, he neither defended what he said nor
withdrew the strike. Id.
, at 198. Instead, he suddenly came up with Fields’s
brother’s prior conviction as another reason for the strike.
Id.
, at 199. |
It would be difficult to credit the State’s new explanation,
which reeks of afterthought. While the Court of Appeals tried to bolster
it with the observation that no seated juror was in Fields’s position
with respect to his brother . . . he court’s readiness to accept the
State’s substitute reason ignores not only its pretextual timing but
the other reasons rendering it implausible. Fields’s testimony indicated
he was not close to his brother, App. 190 (“I don’t really know too
much about it”), and the prosecution asked nothing further about the
influence his brother’s history might have had on Fields, as it probably
would have done if the family history had actually mattered. . . .
There is no good reason to doubt that the State’s afterthought about
Fields’s brother was anything but makeweight.
Id.
at 245–46. The Court criticized the Fifth Circuit for its failure
to appreciate the importance of the prosecutor’s effort to advance
an untruthful explanation:
The Court of Appeals’s judgment on the Fields strike
is unsupportable for the same reason the State’s first explanation
is itself unsupportable. The Appeals
Court ’s description of Fields’s voir dire
testimony mentioned only his statements that everyone could be rehabilitated,
failing to note that Fields affirmed that he could give the death
penalty if the law and evidence called for it, regardless of the possibility
of divine grace. The Court of Appeals made no mention of the fact
that the prosecution mischaracterized Fields as saying he could not
give death if rehabilitation were possible.
Id.
at 246–47. The Court also held that evidence of the manipulation of
procedures supported the inference of discrimination:
The first clue to the prosecutors’ intentions, distinct
from the peremptory challenges themselves, is their resort during
voir dire to a procedure known in Texas
as the jury shuffle. In the State’s criminal practice, either side
may literally reshuffle the cards bearing panel members’ names, thus
rearranging the order in which members of a venire panel are seated
and reached for questioning. Once the order is established, the panel
members seated at the back are likely to escape voir dire altogether,
for those not questioned by the end of the week are dismissed. As
we previously explained, “the prosecution’s decision to seek a jury
shuffle when a predominant number of African-Americans were seated
in the front of the panel, along with its decision to delay a formal
objection to the defense’s shuffle until after the new racial composition
was revealed, raise a suspicion that the State sought to exclude African-Americans
from the jury. Our concerns are amplified by the fact that the state
court also had before it, and apparently ignored, testimony demonstrating
that the Dallas County District Attorney’s Office had, by its own
admission, used this process to manipulate the racial composition
of the jury in the past.”
Id.
at 253–54. 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:
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 inference.14
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. (The Appeals
Court ’s statement was also inaccurate:
the prosecution shuffled the jury three times.)
Id.
at 254–55. The Court also held that the State manipulated the process
by the type of questions it asked different venire members about their
feelings on the death penalty. 94% of white venire members were given
an abstract description of the death penalty and were then asked about
their feelings on it. A “graphic script” describing the death penalty—intended
to motivate venire members into expressing misgivings about the death
penalty and providing an occasion to strike them for cause—was given
to 6% of white venire members and 53% of black venire members before
they were asked about their feelings on the death penalty. Id.
at 256. The court discussed each of the State’s professed reasons
for disparate use of the graphic script, and found that the facts
did not support the reasons. It continued:
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 mbivalent about the death penalty, there is a much tighter fit
of fact and explanation. 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.
Id.
at 260 (footnotes omitted). The Court next turned to a form of manipulation
it termed “trickery.”
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.
Id.
at 261. The State informed 94% of white venire members, and only 12.5^
of blacks, about the minimum sentence for murder, allowing them to
engage in the trickery questions with 87.5% of blacks, and only 6%
of whites. Id. Justice Breyer concurred. Id.
at 266–73. Justice Thomas, joined by Chief Justice Rehnquist and Justice
Scalia, dissented. Id.
at 274–307.
Miller-El v. Cockrell, 537 U.S. 322
(2003), reversed the Fifth Circuit’s denial of a certificate of appealability
(“COA”) from the denial of habeas corpus that had been sought on a
Batson challenge to the prosecutor’s striking of 10 of 11 African-American
potential jurors. The standard was whether petitioner demonstrated
“‘that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.’” The Court cited
Reeves. It relied in part on comparative evidence and simple statistics,
buttressed by other evidence:
A comparative analysis of the venire members demonstrates
that African- Americans were excluded from petitioner’s jury in a
ratio significantly higher than Caucasians were. Of the 108 possible
jurors reviewed by the prosecution and defense, 20 were African-American.
Nine of them were excused for cause or by agreement of the parties.
Of the 11 African-American jurors remaining, however, all but 1 were
excluded by peremptory strikes exercised by the prosecutors. On this
basis 91% of the eligible lack jurors were removed by peremptory strikes.
In contrast the prosecutors used their peremptory strikes against
just 13% (4 out of 31) of the eligible nonblack prospective jurors
qualified to serve on petitioner’s jury.
These numbers, while relevant, are not petitioner’s
whole case. During voir dire,the prosecution questioned venire members
as to their views concerning the death penalty and their willingness
to serve on a capital case. Responses that disclosed reluctance or
hesitation to impose capital punishment were cited as a justification
for striking a potential juror for cause or by peremptory challenge.
. . . The evidence suggests, however, that the manner in which members
of the venire were questioned varied by race. To the extent a divergence
in responses can be attributed to the racially disparate mode of examination,
it is relevant to our inquiry.
Most African-Americans (53%, or 8 out of 15) were
first given a detailed description of the mechanics of an execution
in Texas :
“[I]f those three [sentencing]
questions are answered yes, at some point[,] Thomas Joe Miller-El
will be taken to Huntsville, Texas
. He will be placed on death row and at some time will be taken to
the death house where he will be strapped on a gurney, an IV put into
his arm and he will be injected with a substance that will cause his
death … as the result of the verdict in this case if those three questions
are answered yes.” App. 215.
Only then were these African-American venire members
asked whether they could render a decision leading to a sentence of
death. Very few prospective white jurors (6%, or 3 out of 49) were
given this preface prior to being asked for their views on capital
punishment. Rather, all but three were questioned in vague terms:
“Would you share with us … your personal feelings, if you could, in
your own words how you do feel about the death penalty and capital
punishment and secondly, do you feel you could serve on this type
of a jury and actually render a decision that would result in the
death of the Defendant in this case based on the evidence? ” Id. , at 506.
Id.
at 331–32. The Court cited Reeves. Id.
at 340. The court again relied on simple statistics:
There was an even more pronounced difference, on
the apparent basis of race, in the manner the prosecutors questioned
members of the venire about their willingness to impose the minimum
sentence for murder. Under Texas law at the time of petitioner’s trial,
an unwillingness to do so warranted removal for cause. . . . This
strategy normally is used by the defense to weed out pro-state members
of the venire, but, ironically, the prosecution employed it here.
The prosecutors first identified the statutory minimum sentence of
five years’ imprisonment to 34 out of 36 (94%) white venire members,
and only then asked: “If you hear a case, to your way of thinking
[that] calls for and warrants and justifies five years, you’ll give
it?” App. 509. In contrast, only 1 out of 8 (12.5%) African-American
prospective jurors were informed of the statutory minimum before being
asked what minimum sentence they would impose.
Id. at 332–33. It held that a 1968 racially biased statement
contained in an official manual was probative of racial bias in the
1986 peremptory challenges:
Of more importance, the defense presented evidence
that the District Attorney’s Office had adopted a formal policy to
exclude minorities from jury service. A 1963 circular by the District
Attorney’s Office instructed its prosecutors to exercise peremptory
strikes against minorities: “‘Do not take Jews, Negroes, Dagos, Mexicans
or a member of any minority race on a jury, no matter how rich or
how well educated.’” App. 710. A manual entitled “Jury Selection in
a Criminal Case” was distributed to prosecutors. It contained an article
authored by a former prosecutor (and later a judge) under the direction
of his superiors in the District Attorney’s Office, outlining the
reasoning for excluding minorities from jury service. Although the
manual was written in 1968, it remained in circulation until 1976,
if not later, and was available at least to one of the prosecutors
in Miller-El’s trial. Id., at 749, 774, 783.
Id. at 334–35. The court also relied on other old evidence
of biased statements:
A Dallas County district judge testified that, when
he had served in the District Attorney’s Office from the late-1950’s
to early-1960’s, his superior warned him that he would be fired if
he permitted any African-Americans to serve on a jury. Similarly,
another Dallas County district judge and former assistant district
attorney from 1976 to 1978 testified that he believed the office had
a systematic policy of excluding African- Americans from juries.
Id. at 334.
Duncan v. Fleetwood Motor Homes
of Indiana, Inc., 518 F.3d 486, 492-93, 102 FEP Cases 1249 (7th
Cir. 2008) (per curiam), vacated the grant of summary judgment to
the ADEA defendant. The court rejected defendant’s attempt to blame
WorkSTEPS, assertedly a consultant, for the demotion:
Fleetwood also tries to suggest that WorkSTEPS bears
responsibility for the decision to remove Duncan from his job. According
to Fleetwood, the essential job functions for the position of material
handler “were set forth in a job description created by an independent
entity, WorkSTEPS” and thus the company should be insulated from any
allegation of discriminatory motive. This contention is nonsensical,
most importantly because there is absolutely nothing in the record
to suggest that Fleetwood did not play a dominant role in creating
the job description. Indeed, Fleetwood's representation that WorkSTEPS
created the job description is not supported by any evidence at all,
apart from the appearance of the WorkSTEPS name on the document. There
is no evidence that the WorkSTEPS consultant ever visited the Fleetwood
facility, performed any evaluation, made any observations, or interviewed
anyone. The only evidence about the job description is the document
itself, which Fleetwood's personnel manager knew nothing about, other
than that it was the job description on file. And despite signature
lines for WorkSTEPS and Fleetwood representatives, the document is
not signed or dated by anyone. Similarly, Fleetwood introduced no
testimony from the occupational therapist hired to verify the WorkSTEPS
job description. A defendant's legitimate, nondiscriminatory reason
must be “clearly set forth, through the introduction of admissible
evidence.” . . . . Fleetwood did not introduce any admissible evidence
about what the material handler job required, so Duncan's uncontradicted
testimony about the job requirements would be enough for a jury to
conclude that Fleetwood’s explanation was phony.
Hemsworth v. Quotesmith.Com, Inc.,
476 F.3d 487, 490–91, 99 FEP Cases 1189 (7th Cir. 2007), affirmed
the grant of summary judgment to the ADEA defendant, holding that
both direct and indirect evidence are still available modes of proof
under the inferential model:
The distinction between the two avenues of proof
is “vague” . . . and the terms “direct” and “indirect” themselves
are somewhat misleading in the present context. For, as we recently
explained in Sylvester, “direct” proof of discrimination is not limited
to near-admissions by the employer that its decisions were based on
a proscribed criterion (e.g., “You’re too old to work here.”), but
also includes circumstantial evidence which suggests discrimination
albeit through a longer chain of inferences. . . . The “indirect method”
of proof involves a subset of circumstantial evidence (including the
disparate treatment of similarly situated employees) that conforms
to the prescription of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
(Citations omitted.)
Ruiz Diaz v. Eagle Produce Ltd.
Partnership, 521 F.3d 1201, 1208, 103 FEP Cases 16 (9th Cir.
2008), affirmed in part and reversed in part the grant of summary
judgment to the ADEA defendant. The court held that three of the plaintiffs
had adequately shown a triable issue as to the adequacy of their job
performance because the incidents defendant stated it relied upon
(including accidents and attendance) were often infrequent and minor
and had never before been treated seriously by the company. It held
that one employee failed to make this showing because he had openly
violated company policy for years by running a check-cashing business
outside he pay office, and continued to do so after he had received
a specific warning.
Davis v. Team Electric Co.,
520 F.3d 1080, 1089-90, 102 FEP Cases 1641 (9th Cir. 2008), reversed
the grant of summary judgment to the Title VII defendant. The court
reaffirmed at 1089 that “assigning more, or more burdensome, work
responsibilities, is an adverse employment action.” (Citations omitted.)
The court held that plaintiff established the third and fourth elements
of the prima facie case by showing triable issues that she was assigned
disproportionate amount of dangerous and strenuous work,” and that
she was excluded from meetings with her supervisor and co-workers.
The court rejected the lower court’s reasoning that the exclusion
was “mere ostracism,” and thus not actionable. After discussing the
facts of its ostracism cases, the court stated at 1090: “Davis's ban
from an important area of the workplace, the trailer, is more severe
than these types of exclusion, particularly because there is evidence
that the restriction prevented her from discussing work matters with
her supervisor. Davis’s ability to work was similarly hampered by
the alleged fact that she was sometimes ignored by supervisors when
she called in over the radio. We need not decide whether either of
these actions alone would be sufficient to establish an adverse employment
action because, together with the discriminatory work assignments,
they materially affected the terms and conditions of Davis's employment.”
Goldsmith v. Bagby Elevator Co.,
Inc., 513 F.3d 1261, 1285–87, 102 FEP Cases 716 (11th Cir. 2008),
affirmed the judgment on a jury verdict for the Title VII and § 1981
retaliation plaintiff. The court held that the lower court did not
abuse its discretion in admitting evidence of other instances of discrimination,
although for the wrong reason. The court rejected the lower court’s
reliance on Fed. R. Evid. 406, because four instances of termination
after filing an EEOC charge are not enough to show a habit. The court
held that the evidence was properly admissible under Rule 303(b) to
show defendant’s motive, intent, and plan to discriminate and retaliate.
The court stated: “Goldsmith and coworkers Jemison and Thomas were
discriminated against by the same supervisor, Farley, so the experiences
of Jemison and Thomas are probative of Farley's intent to discriminate.
Steber was involved in the termination decisions of all four individuals,
so the experiences of Jemison, Peoples, and Thomas are probative of
Steber’s intent.” The court held that the evidence was also admissible
under Rule 402 to prove a hostile work environment. Id. at 1286. The
court held that the evidence was also admissible on other grounds
we well:
The “me too” evidence was also probative of several
issues raised by Bagby Elevator either on cross-examination or as
an affirmative defense. Counsel for Bagby Elevator asked Goldsmith
about any and all racist comments about which he knew, not just what
he had heard. Counsel for Bagby Elevator also asked Steber if he would
have countenanced a racially hostile work environment in the shop
while Goldsmith worked there, whether anyone other than Goldsmith
ever complained to him, and whether there were any complaints of racial
slurs made by coworkers during Goldsmith’s tenure at Bagby Elevator.
Steber answered “no” to each question. The evidence regarding Jemison,
Thomas, and Peoples is highly probative of these issues and rebuts
Steber's negative responses because there was evidence that Jemison
was called a monkey by Walker, Thomas was referred to as a slave by
Farley and was the target of the ice cream comment, and Peoples complained
to Steber and Braswell about their treatment of her. Bagby Elevator
raised a good faith defense, and the “me too” evidence is probative
of whether the antidiscrimination and antiretaliation policies of
Bagby Elevator were effective.
Id. at 1286–87 (citations omitted).
| |
B. Evidence
Considerations Under Mixed Motives Analysis |
Desert Palace, Inc. v. Costa,
539 U.S. 90, 91 FEP Cases 1569 (2003), unanimously affirmed the Ninth
Circuit, cited Reeves, and held that § 703(m) of the Civil Rights
Act of 1964, added by the Civil Rights Act of 1991, allows plaintiffs
to obtain mixed-motives analysis if they show that race, color, national
origin, sex, or religion was one of the factors motivating the challenged
decision. The Court held that circumstantial evidence is sufficient,
and is not disfavored in employment discrimination cases. It is critical
for plaintiffs to emphasize deceit, in cases in which defendant has
misrepresented its reasons to the plaintiff, to co-workers, to enforcement
agencies, or to the courts. Price Waterhouse remains the standard
for types of claims not covered by § 703(m)
EEOC v. Warfield-Rohr Casket Co.,
Inc., 364 F.3d 160, 163–64, 93 FEP Cases 952 (4th Cir. 2004),
reversed the grant of summary judgment to the ADEA defendant, citing
Costa and holding that there was no need for corroboration before
invoking mixed-motives analysis.
Machinchick v. PB Power, Inc.,
398 F.3d 345, 352, 95 FEP Cases 152 (5th Cir. 2005), reversed the
grant of summary judgment to the ADEA defendant. The court stated:
“Under this integrated approach, a plaintiff relying on circumstantial
evidence has two options for surviving summary judgment in an ADEA
case: (1) the plaintiff may offer evidence showing that the defendant’s
proffered nondiscriminatory reasons are false; or (2) the plaintiff
may offer evidence showing that his age was a motivating factor for
the defendant’s adverse employment decision.
Rachid v. Jack In The Box, Inc.,
376 F.3d 305, 312, 93 FEP Cases 1761 (5th Cir. 2004), reversed the
grant of summary judgment to the ADEA defendant, held that Costa applies
to ADEA cases, and described the difference Costa makes:
Our holding today that the mixed-motives analysis
used in Title VII cases post-Desert Palace is equally applicable in
ADEA represents a merging of the McDonnell Douglas and Price Waterhouse
approaches. Under this ntegrated approach, called, for simplicity,
the modified McDonnell Douglas approach: the plaintiff must still
demonstrate a prima facie case of discrimination; the defendant then
must articulate a legitimate, non-discriminatory reason for its decision
to terminate the plaintiff; and, if the defendant meets its burden
of production, “the plaintiff must then offer sufficient evidence
to create a genuine issue of material fact ‘either (1) that the defendant’s
reason is not true, but is instead a pretext for discrimination (pretext
alternative); or (2) that the defendant’s reason, while true, is only
one of the reasons for its conduct, and another ‘motivating factor’
is the plaintiff’s protected characteristic (mixed-motive[s] alternative).’”
(Citations omitted.)
Strate v. Midwest Bankcentre,
Inc., 398 F.3d 1011, 1017–18, 16 AD Cases 801 (8th Cir.2005),
reversed the grant of summary judgment to the ADA defendant. While
plaintiff—an Executive Vice-President of defendant—was on maternity
leave, she enrolled her Down’s Syndrome baby in defendant’s health-care
plan. Before she returned, she was fired. The court held that Desert
Palace made no difference to Eighth Circuit summary-judgment practice,
because Circuit case law already allowed a plaintiff to prevail “notwithstanding
the plaintiff’s inability to directly disprove the defendant’s proffered
reason for the adverse employment action.” (Citations omitted.) The
court continued: “Thus, the Supreme Court’s decision in Desert Palace,
to the extent relevant, merely reaffirms our prior holdings by indicating
that a plaintiff bringing an employment discrimination claim may succeed
in resisting a motion for summary judgment where the evidence, direct
or circumstantial, establishes a genuine issue of fact regarding an
unlawful motivation for the adverse employment action (i.e., a motivation
based upon a protected characteristic), even though the plaintiff
may not be able to create genuine doubt as to the truthfulness of
a different, yet lawful, motivation.” Id. at 1018 (footnote omitted).
Harvey v. Office of Banks and Real
Estate, 377 F.3d 698, 707, 94 FEP Cases 550 (7th Cir. 2004),
affirmed the judgment on a jury verdict for plaintiffs. Citing Costa,
the court stated: “Most of the evidence that Harvey and King presented
was circumstantial in nature, but that fact alone says nothing about
the soundness of the jury’s verdict.”
Griffith v. City of Des Moines, 387
F.3d 733, 735, 94 FEP Cases 993 (8th Cir. 2004), affirmed the grant
of summary judgment to the Title VII and Iowa Human Rights Act defendant
on plaintiff’s claim of discriminatory discipline. The court held
that Costa did not affect summary-judgment practice: “At the summary
judgment stage, the issue is whether the plaintiff has sufficient
evidence that unlawful discrimination was a motivating factor in the
defendant’s adverse employment action. If so, the presence of additional
legitimate motives will not entitle the defendant to summary judgment.
Therefore, evidence of additional motives, and the question whether
the presence of mixed motives defeats all or some part of plaintiff’s
claim, are trial issues, not summary judgment issues. Thus, Desert
Palace, a decision in which the Supreme Court decided only a mixed
motive jury instruction issue, is an inherently unreliable basis for
district courts to begin ignoring this Circuit’s controlling summary
judgment precedents.” The court continued:
We have long recognized and followed
this principle in applying McDonnell Douglas by holding that a plaintiff
may survive the defendant’s motion for summary judgment in one of
two ways. The first is by proof of “direct evidence” of discrimination.
Direct evidence in this context is not the converse of circumstantial
evidence, as many seem to assume. Rather, direct evidence is evidence
“showing a specific link between the alleged discriminatory animus
and the challenged decision,sufficient to support a finding by a reasonable
fact finder that an illegitimate criterion actually motivated” the
adverse employment action. . . . Thus, “direct” refers to the causal
strength of the proof, not whether it is “circumstantial” evidence.
A plaintiff with strong (direct) evidence that illegal discrimination
motivated the employer’s adverse action does not need the three-part
McDonnell Douglas analysis to get to the jury, regardless of whether
his strong evidence is circumstantial. But if the plaintiff lacks
evidence that clearly points to the presence of an illegal motive,
he must avoid summary judgment by creating the requisite inference
of unlawful discrimination through the cDonnell Douglas analysis,
including sufficient evidence of pretext. . . . This formulation is
entirely consistent with Desert Palace. Thus, we conclude that Desert
Palace had no impact on prior Eighth Circuit summary judgment decisions.
Id. at 736 (footnote and citations omitted). Judge Magnuson
concurred specially. Id. at 739–48.
Cooper v. Southern Co., 390
F.3d 695, 725 n.17, 94 FEP Cases 1854 (11th Cir. 2004), affirmed the
grant of summary judgment to the Title VII and § 1981 racial discrimination
defendants. The court rejected plaintiffs’ argument that Desert Palace
overruled McDonnell Douglas
| |
A. Circumstantial
Evidence |
Sun v. Board of Trustees of University
of Illinois, 473 F.3d 799, 812, 99 FEP Cases 897 (7th Cir. 2007),
affirmed the lower court’s grant of summary judgment to the Title
VII race and national origin discrimination defendants. The court
described the types of circumstantial evidence that can be used to
prove discrimination:
Circumstantial evidence of discrimination is evidence
which allows the trier of fact to infer intentional discrimination
by the decisionmaker. . . . This Circuit has recognized three types
of “circumstantial” evidence of intentional discrimination: (1) suspicious
timing, ambiguous oral or written statements, or behavior toward or
comments directed at other employees in the protected group; (2) evidence,
whether or not rigorously statistical, that similarly situated employees
outside the protected class received systematically better treatment;
and (3) evidence that the employee was qualified for the job in question
but was passed over in favor of a person outside the protected class
and the employer’s reason is a pretext for discrimination. . . . Sun’s
evidence falls into the first two categories.
(Citations omitted.)
Holcomb v. Iona College, 521
F.3d 130, 139-40, 102 FEP Cases 1844 (2d Cir. 2008), vacated the grant
of summary judgment to the Title VII defendant, and stated:
The college decided to fire Holcomb, a white man
married to a black woman, and Chiles, a black man, while retaining
O'Driscoll, a white man who was not in an interracial relationship.
Moreover, it is plain that Brennan and etriccione both knew that Holcomb
was married to a black woman, and the record suggests that both Brennan
and Petriccione played a role in the termination decision. For each
of these men, finally, Holcomb has adduced evidence of racially improper
motives. As further detailed below, the record permits an inference
that Brennan sought to reduce African-American presence at basketball
program events for the sake of alumni relations and fundraising. From
this perspective, it would make sense for Brennan to want to keep
O'Driscoll, as the only white member of the staff without a black
girlfriend or spouse, rather than Holcomb. And in the case of Petriccione,
there is clearly evidence in the record indicating his disapproval
of Holcomb's marriage to a black woman, and, indeed, of Petriccione's
willingness to act on his disapproval by insulting Holcomb in public.
The fact that the college decided to keep Ruland,
who was also in an interracial relationship, does not allay the suspicion
that the firings were grounded in an illegitimate motive. It was agreed
all around that Ruland was simply too expensive to fire, with over
five years left on his contract, whether or not he was in a relationship
with a black woman. At the prima facie stage, then, these circumstances
are more than sufficient to support an inference that Holcomb was
terminated on the basis of his interracial marriage.
| |
3. Reverse
Temporal Proximity |
Ruiz Diaz v. Eagle Produce Ltd.
Partnership, 521 F.3d 1201, 1214, 103 FEP Cases 16(9th Cir. 2008),
affirmed in part the grant of summary judgment to the ADEA RIF defendant.
The court held that defendant’s discharge of plaintiff Moreno one
day after he caused $10,000 in damage in an accident “leaves little
doubt that the property damage, rather than age, motivated Brandt's
decision,” despite the court’s holding that plaintiff showed adequate
evidence of satisfactory job performance to establish his prima facie
case.
Wilson v. Phoenix Specialty Mfg.
Co., Inc., 513 F.3d 378, 387–88, 20 AD Cases 193 (4thCir. 2008),
affirmed the judgment for the ADA plaintiff on his claim that defendant
discriminated against him because it regarded him as disabled. The
court upheld the lower court’s finding after a bench trial that all
of defendant’s explanations were pretextual, based in large part on
the fact that defendant offered an explanation at trial that it had
not previously offered to the EEOC. Judge Niemeyer dissented. Id.
at 388–95.
Fitzgerald v. Action, Inc., 521 F.3d
867, 872-74, 103 FEP Cases 30, 44 EB Cases 1096 (8th Cir. 2008), reversed
the grant of summary judgment to defendant on plaintiff’s ERISA §
510 claim, although it affirmed the grant of summary judgment on the
ADEA claim, in part because the defendant changed its story. It told
plaintiff he was being fired for lack of work, and did not challenge
plaintiff’s claim for unemployment compensation which stated that
reason. In litigation, however, defendant asserted that plaintiff
was fired for accumulated misconduct. The court stated at 873: “Action’s
different justifications ‘give rise to a genuine issue of fact with
respect to pretext since they suggest the possibility that [none]
of the official reasons was the true reason.’ . . . ‘A rational trier
of fact could find these varying reasons show that the stated reason
was pretextual, for one who tells the truth need not recite different
versions of the supposedly same event.’ . . .” (Citations omitted)
The court rejected defendant’s argument that plaintiff’s demand for
a reason for his termination justified its changing stories. Id. at
873 n.2.
| |
5. Failure
to Follow Employer’s Own Policies |
See the discussion of Fitzgerald
v. Action, Inc., 521 F.3d 867, 103 FEP Cases 30, 44 EB Cases
1096 (8th Cir. 2008), in the section below on “Defendant’s Lack of
Comparators.”
| |
6. Discriminatory
Statements |
Davis v. Team Electric
Co., 520 F.3d 1080, 1091-92, 102 FEP Cases 1641 (9th Cir.2008),
reversed the grant of summary judgment to the Title VII defendant.
The court relied on evidence of discriminatory statements as helping
to show pretext. See the discussion of this case in the section of
this paper below on “Courts Relying on Biased Statements.
| |
7. Absence
of Female Supervisors |
Davis v. Team Electric Co.,
520 F.3d 1080, 1092, 102 FEP Cases 1641 (9th Cir. 2008), reversed
the grant of summary judgment to the Title VII defendant. The court
relied on the absence of female supervisors as helping to show pretext.
| |
8. Counterwight”
Evidence |
Davis v. Team Electric Co.,
520 F.3d 1080, 1093, 102 FEP Cases 1641 (9th Cir. 2008), reversed
the grant of summary judgment to the Title VII defendant. The court
held that defendant’s favorable response to a number of plaintiff’s
complaints could not establish the absence of discrimination against
her:
To be sure, Team Electric did a number of helpful
things for Davis, including accommodating her childcare needs by assigning
her to her preferred site and allowing her to work a later shift.
Team Electric responded to many of Davis's grievances, including providing
her with improved safety equipment, giving her a radio, allowing her
to come to meetings, transferring two female electricians to the site
after she filed her BOLI questionnaire, assigning her a new supervisor
when she reported that Loughary had a negative attitude toward her,
and re-assigning her to a different wing of the building on one occasion,
when she complained about working with Monokote.
Even if, however, we were to take Team Electric's
responses to some of Davis's grievances as counterweights to Davis’s
proffer of specific and substantial evidence of discriminatory motive,
a counterweight is not enough to eliminate the need for a factfinder
to weigh the facts on both sides. A jury could weigh Team Electric's
response as mitigating facts, but the litany of complaints answered
may also be taken by a reasonable jury as evidence that Davis was
treated differently because she was a woman. The fact that Davis’s
supervisors had never before had complaints about work assignments
would support this conclusion. Although “this is a close case ...
[s]uch uncertainty at the summary judgment stage must be resolved
in favor of the plaintiff.”
(Citation omitted.)
Miller-El v. Dretke, 545 U.S.
231, 241 (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 cited Reeves
v. Sanderson Plumbing Products, id., underscoring the relevance of
this decision to employment law. The Court relied heavily on comparators:
More powerful than these bare statistics, however,
are side-by-side comparisons of some black venire panelists who were
struck and white panelists allowed to serve. If a prosecutor’s proffered
reason for striking a black panelist applies just as well to an otherwise-similar
nonblack who is permitted to serve, that is evidence tending to prove
purposeful discrimination to be considered at Batson’s third step.
Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147,
82 FEP Cases 1748 (2000) (in employment discrimination cases, “[p]roof
that the defendant’s explanation is unworthy of credence is simply
one form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive”). While we did not
develop a comparative juror analysis last time, we did note that the
prosecution’s reasons for exercising peremptory strikes against some
black panel members appeared equally on point as to some white jurors
who served.
The Court then discussed in detail two sets of comparisons.
“The prosecution used its second peremptory strike to exclude Billy
Jean Fields, a black man who on voir dire expressed unwavering support
for the death penalty,” id. at 242, and who stated that the possibility
of rehabilitation would not lead him to vote against the death penalty.
The Court focused not only on comparisons of the substance of the
responses of Fields and of white venire members who were not struck,
but also on differences in prosecutor James Nelson’s questioning of
Fields, and his questioning of white venire members
Fields was struck peremptorily by the prosecution,
with prosecutor James Nelson offering a race-neutral reason:
“[W]e . . . have concern
with reference to some of his statements as to the death penalty in
that he said that he could only give death if he thought a person
could not be rehabilitated and he later made the comment that any
person could be rehabilitated if they find God or are introduced to
God and the fact that we have a concern that his religious feelings
may affect his jury service in this case.” Id., at 197 (alteration
omitted).
Thus, Nelson simply mischaracterized Fields’s testimony.
He represented that Fields said he would not vote for death if rehabilitation
was possible, whereas Fields unequivocally stated that he could impose
the death penalty regardless of the possibility of rehabilitation.
Perhaps Nelson misunderstood, but unless he had an ulterior reason
for keeping Fields off the jury we think he would have proceeded differently.
In light of Fields’s outspoken support for the death penalty, we expect
the prosecutor would have cleared up any misunderstanding by asking
further questions before getting to the point of exercising a strike.
If, indeed, Fields’s thoughts on rehabilitation did
make the prosecutor uneasy, he should have worried about a number
of white panel members he accepted with no evident reservations. Sandra
Hearn said that she believed in the death penalty “if a criminal cannot
be rehabilitated and continues to commit the same type of crime.”
Id., at 429. Hearn went so far as to express doubt that at the penalty
phase of a capital case she could conclude that a convicted murderer
“would probably commit some criminal acts of violence in the future.”
Id., at 440. “People change,” she said, making it hard to assess the
risk of someone’s future dangerousness. “[T]he evidence would have
to be awful strong.” Ibid. But the prosecution did not respond to
Hearn the way it did to Fields, and without delving into her views
about rehabilitation with any further question, it raised no objection
to her serving on the jury. White panelist Mary Witt said she would
take the possibility of rehabilitation into account in deciding at
the penalty phase of the trial about a defendant’s probability of
future dangerousness, 6 Record of Voir Dire 2433 (hereinafter Record),
but the prosecutors asked her no further question about her views
on reformation, and they accepted her as a juror. Id., at 2464–2465.
Latino venireman Fernando Gutierrez, who served on the jury, said
that he would consider the death penalty for someone who could not
be rehabilitated, App. 777, but the prosecutors did not question him
further about this view. In sum, nonblack jurors whose remarks on
rehabilitation could well have signaled a limit on their willingness
to impose a death sentence were not questioned further and drew no
objection, but the prosecution expressed apprehension about a black
juror’s belief in the possibility of reformation even though he repeatedly
stated his approval of the death penalty and testified that he could
impose it according to state legal standards even when the alternative
sentence of life imprisonment would give a defendant (like everyone
else in the world) the opportunity to reform.
Id. at 243–45 (footnotes omitted). The Court continued:
The unlikelihood that his position on rehabilitation
had anything to do with the peremptory strike of Fields is underscored
by the prosecution’s response after Miller-El’s lawyer pointed out
that the prosecutor had misrepresented Fields’s responses on the subject.
A moment earlier the prosecutor had finished his misdescription of
Fields’s views on potential rehabilitation with the words, “Those
are our reasons for exercising our ... strike at this time.” Id.,
at 197. When defense counsel called him on his misstatement, he neither
defended what he said nor withdrew the strike. Id., at 198.Instead,
he suddenly came up with Fields’s brother’s prior conviction as another
reason for the strike. Id., at 199.
Id. at 245–46. The Court continued, emphasizing that comparators
need not be identical for the comparison to have probative force:
In sum, when we look for nonblack jurors similarly
situated to Fields, we find strong similarities as well as some differences.6
But the differences seem far from significant, particularly when we
read Fields’s voir dire testimony in its entirety. Upon that reading,
Fields should have been an ideal juror in the eyes of a prosecutor
seeking a death sentence, and the prosecutors’ explanations for the
strike cannot reasonably be accepted. . . .
6 The dissent contends that there are
no white panelists similarly situated to Fields and to panel member
Joe Warren because “‘“[s]imilarly situated” does not mean matching
any one of several reasons the prosecution gave for striking a potential
juror—it means matching all of them.’” . . . None of our cases announces
a rule that no comparison is probative unless the situation of the
individuals compared is identical in all respects, and there is no
reason to accept one. Nothing in the combination of Fields’s statements
about rehabilitation and his brother’s history discredits our grounds
for inferring that these purported reasons were pretextual. A per
se rule that a defendant cannot win a Batson claim unless there is
an exactly identical white juror would leave Batson inoperable; potential
jurors are not products of a set of cookie cutters.
Id. at 247. The Court next addressed the prosecution’s strike
of Joe Warren, a black venire member. The State did not strike white
venire members who expressed the same views as Warren. Id. at 247–50.
The State urged that it struck Warren when it still had a number of
peremptory challenges left, and did not strike whites with similar
views because it then had fewer peremptory challenges. Rejecting this
argument, the Court stated:
If that were the explanation for striking Warren
and later accepting panel members who thought death would be too easy,
the prosecutors should have struck Sandra Jenkins, whom they examined
and accepted before Warren. Indeed, the disparate treatment is the
more remarkable for the fact that the prosecutors repeatedly questioned
Warren on his capacity and willingness to impose a sentence of death
and elicited statements of his ability to do so if the evidence supported
that result and the answer to each special question was yes . . .
whereas the record before us discloses no attempt to determine whether
Jenkins would be able to vote for death in spite of her view that
it was easy on the convict . . . . Yet the prosecutors accepted the
white panel member Jenkins and struck the black venireman Warren.
Id. at 249. The Court held that the comparative evidence as
to Warren was not undermined by the fact that Warren’s brother-in-law
had been convicted of food-stamp fraud:
Nor is pretextual indication mitigated by Macaluso’s
further reason that Warren had a brother-in-law convicted of a crime
having to do with food stamps for which he had to make restitution.
App. 910. Macaluso never questioned Warren about his errant relative
at all; as with Fields’s brother, the failure to ask undermines the
persuasiveness of the claimed concern. And Warren’s brother’s criminal
history was comparable to those of relatives of other panel members
not struck by prosecutors. Cheryl Davis’s husband had been convicted
of theft and received seven years’ probation. Id., at 695-696.Chatta
Nix’s brother was involved in white-collar fraud. Id., at 613-614.
Noad Vickery’s sister served time in a penitentiary several decades
ago. Id., at 240–241.
Id. at 250 n.8. The Court also held that the State manipulated
the process by the type of questions it asked different venire members
about their feelings on the death penalty. 94% of white venire members
were given an abstract description of the death penalty and were then
asked about their feelings on it. A “graphic script” describing the
death penalty was given to 6% of white venire members and 53% of black
venire members before they were asked about their feelings on the
death penalty. Id. at 255–56. The Court used comparative evidence
to reject the State’s explanation:
The State concedes that this disparate questioning
did occur but argues that use of the graphic script turned not on
a panelist’s race but on expressed ambivalence about the death penalty
in the preliminary questionnaire. Prosecutors were trying, the argument
goes, to weed out noncommittal or uncertain jurors, not black jurors.
And while some white venire members expressed opposition to the death
penalty on their questionnaires, they were not read the graphic script
because their feelings were already clear. The State says that giving
the graphic script to these panel members would only have antagonized
them. Brief for Respondent 27-32.
This argument, however, first advanced in dissent
when the case was last here . . .and later adopted by the State and
the Court of Appeals, simply does not fit the facts. Looking at the
answers on the questionnaires, and at voir dire testimony expressly
discussing answers on the questionnaires, we find that black venire
members were more likely than nonblacks to receive the graphic script
regardless of their expressions of certainty or ambivalence about
the death penalty, and the State’s chosen explanation for the graphic
script fails in the cases of four out of the eight black panel members
who received it.
Id. at 256–58 (footnotes omitted). Justice Breyer concurred.
Id. at 266–73. Justice Thomas, joined by Chief Justice Rehnquist and
Justice Scalia, dissented. Id. at 274–307.
| |
2. Defendant’s
Lack of Comparators |
Fitzgerald v. Action, Inc.,
521 F.3d 867, 874, 103 FEP Cases 30, 44 EB Cases 1096 (8th Cir. 2008),
reversed the grant of summary judgment to defendant on plaintiff’s
ERISA § 510 claim, although it affirmed the grant of summary judgment
on the ADEA claim, in part because the defendant failed to show that
it had breached its own disciplinary standards or terminated any other
employees based on the asserted grounds on which it fired plaintiff.
The court stated: “Additionally, under Action's termination policy,
an employee would only be terminated after being written up three
times for the same violation. . . . Easley admitted Fitzgerald had
not been written up three times for abusing restroom privileges and
was ‘terminated in violation of Action’s policy.’ . . . Easley also
admitted he had not fired anyone other than Fitzgerald for abuse of
restroom privileges.” The court continued: “We conclude Fitzgerald
has shown that the circumstances surrounding his termination contravened
Action's normal policies and are evidence Action's proffered explanation
was pretextual.”
| |
3. Defendant’s
Comparators Accepted |
Hill v. Lockheed Martin
Logistics Management, Inc., 354 F.3d 277, 295–96, 93 FEP Cases
1 (4th Cir. 2004) (en banc), cert. dismissed, 543 U.S. 1132 (2005),
affirmed the grant of summary judgment to the Title VII and ADEA defendant.
The court relied in part on the fact that Safety Inspector Fultz,
the only person allegedly harboring a discriminatory animus against
the plaintiff, had written up male employees and that one of the males
had been suspended. Judge Michael dissented, joined by Judges Motz,
Judge King, and Judge Gregory. Id. at 299–305.
| |
4. Rejection
of Defendant’s Comparators |
Holcomb v. Iona College, 521
F.3d 130, 140, 102 FEP Cases 1844 (2d Cir. 2008), vacated the grant
of summary judgment to the Title VII defendant, and held that the
plaintiff former coach had shown adequate evidence that he was fired
because he was white and was married to a black woman, and rejected
the defendant’s comparator:
The fact that the college decided to keep Ruland,
who was also in an interracial relationship, does not allay the suspicion
that the firings were grounded in an illegitimate motive. It was agreed
all around that Ruland was simply too expensive to fire, with over
five years left on his contract, whether or not he was in a relationship
with a black woman. At the prima facie stage, then, these circumstances
are more than sufficient to support an inference that Holcomb was
terminated on the basis of his interracial marriage.
Rachid v. Jack In The Box, Inc., 376 F.3d 305, 314,
93 FEP Cases 1761 (5th Cir. 2004), reversed the grant of summary judgment
to the ADEA defendant. The court rejected defendant’s comparators—managers
who were fired for unlawful alterations of time cards—because they
were fired by different managers. “Furthermore, the other employees
were terminated by other managers, mitigating the relevance of their
terminations to the question of whether Powers unlawfully discriminated
against Rachid.” The policies in question were not the same, and their
conduct was more serious.
| |
5. Plaintiff’s
Lack of Comparators |
Czekalski v. Peters, 475 F.3d
360, 365–66, 99 FEP Cases 1121 (D.C. Cir. 2007), reversed the grant
of summary judgment to the Title VII gender discrimination defendant,
holding that plaintiff was not required to show that a comparator
male employee was treated more favorably. It held that evidence as
to comparators was only one way in which an inference of discrimination
can arise. “In a discharge case, we explained, another way would be
to show that ‘the discharge was not attributable to the two [most]
common legitimate reasons for discharge: performance below the employer’s
legitimate expectations or the elimination of the plaintiff’s position
altogether.’ . . . The same suffices in a reassignment case like this
one.” Id. at 366 (citation omitted). It stated that the provision
of false explanations is also evidence from which discrimination can
be inferred. Id.
Velazquez-Garcia v. Horizon Lines Of Puerto Rico,
Inc., 473 F.3d 11, 20, 181 LRRM 2097 (1st Cir. 2007), reversed the
grant of summary judgment to the USERRA defendant. The court held
that the lower court erred in holding that defendant’s failure to
fire every employee who served in the military proved an absence of
discrimination. The court stated: “As an initial matter, the failure
to treat all members of a class with similar discriminatory animus
does not preclude a claim by a member of that class who is so treated.”
(Citations omitted.)
Bryant v. Aiken Regional Medical Centers Inc., 333
F.3d 536, 545–46, 92 FEP Cases 233 (4th Cir. 2003), cert. denied,
540 U.S. 1106 (2004), affirmed the judgment for the Title VII and
§ 1981 plaintiff on a jury verdict, rejecting defendant’s argument
that plaintiff’s claim must fail for lack of evidence of a white comparator.
The court stated: “Bryant is not required as a matter of law to point
to a similarly situated white comparator in order to succeed on a
race discrimination claim. . . . We would never hold, for example,
that an employer who categorically refused to hire black applicants
would be insulated from judicial review because no white applicant
had happened to apply for a position during the time frame in question.
. . . However helpful a showing of a white comparator may be to proving
a discrimination claim, it is not a necessary element of such a claim.”
(Citation omitted.) The court also held that the jury was not required
to find for defendant because of defendant’s comparators: “But neither
employee relied upon by ARMC here was situated similarly to Bryant.
One of the applicants was not hired until several months after Bryant
filed charges of racial discrimination with the EEOC. The other applicant
was only hired for a part- time position. Neither hiring sufficiently
rebuts the inference of discrimination to the point that no reasonable
jury could have found in Bryant’s favor.” Id. at 546.
| |
6. Acceptance
of Plaintiff’s Comparators |
Jackson v. FedEx Corporate Services,
Inc., 518 F.3d 388, 102 FEP Cases 1543 (6th Cir. 2008), reversed
the grant of udgment as a matter of law to the Title VII and § 1981
racial discrimination defendant. The trial court granted judgment
as a matter of law to defendant on the conclusion of plaintiff’s evidence,
afte6r finding that plaintiff had resented no evidence of comparators
who were similarly situated, for purposes of his prima facie case.
The lower court had stated: “to be similarly situated . . . with whom
the Plaintiff seeks to compare treatment must have the same supervisor,
be subject to the same standards, having engaged in similar conduct
without differentials or mitigation . . . It means these individuals
have to have similar background, education, experience, job responsibilities,
and performance. It means that the job responsibilities must require
the same skills and abilities. And the job responsibilities are equal
and interchangeable.” Id. at 391. The court of appeals disagreed,
stating at 396-97:
Here, the district court impermissibly placed a burden
of producing a significant amount of evidence in order to establish
a prima facie case. That burden is not appropriate at the prima facie
state [sic], but rather is better suited for the pretext stage that
occurs later. The purpose of Title VII and Section 1981 are not served
by an overly narrow application of the similarly situated standard.
The district court's formulation of factors in order to analyze Jackson’s
prima facie evidence is too narrow and restrictive. It was not proper
for the district court judge to define the relevant factors based
solely upon narrow job functions and FedEx’s stated requirements for
the PowerPad project. In effect, the district court is requiring an
exact correlation between the position of the employee prior to the
ECA and the requirements of the PowerPad project. The number of employees
with whom Jackson could be compared for purposes of establishing a
comparable is relatively small. Jackson held a unique position within
the workgroup, as he was the only system administrator. The district
court's narrow definition of similarly situated effectively removed
Jackson from the protective reach of the antidiscrimination laws.
. . . The district court’s finding that Jackson had no comparables
from the six other employees in the PowerPad project deprived Jackson
of any remedy to which he may be entitled under the law.
(Citation omitted.) Judge Rogers dissented.
Fitzgerald v. Action, Inc., 521 F.3d 867, 874-75,
103 FEP Cases 30, 44 EB Cases 1096 (8th Cir. 2008), reversed the grant
of summary judgment to the ERISA § 510 defendant in part because plaintiff
showed that an employee who had engaged in obviously worse misconduct,
including insubordination, but who had not announced a need for expensive
surgery, was treated more leniently
Ruiz Diaz v. Eagle Produce Ltd. Partnership, 521
F.3d 1201, 1210, 103 FEP Cases 16 (9th Cir. 2008), affirmed in part
the grant of summary judgment to the ADEA RIF defendant. The court
held that the decisionmaker’s failure to fire less experienced younger
workers gave rise to an inference of discrimination. The court held
that it did not matter that, because of high turnover, plaintiffs
could not identify their individual replacements. Id. at 1210-11.
| |
7. Rejection
of Plaintiff’s Comparators |
Fields v. Shelter Mutual Insurance
Co., 520 F.3d 859, 102 FEP Cases 1652 (8th Cir. 2008), affirmed
the grant of summary judgment to the Title VII and § 1981 pay discrimination
defendant because the African-American plaintiff failed to show that
any similarly situated white employees were paid more. The court held
that two proffered comparators were not similarly situated because
they had been hired from competitors pursuant to a policy under which
such new hired were paid more than employees promoted internally to
the same positions. It held that two other proffered comparators were
not similarly situated because they had worked significantly longer
for defendant and had significantly more experience. It held that
a fifth proffered comparator was not similarly situated because he
had a different supervisor. Finally, it rejected plaintiff’s final
comparator because plaintiff was paid more than the comparator.
| |
8. Comparators
Showed the Fourth Prong of the Prima Facie Case |
Tuttle v. Metropolitan
Government of Nashville, 474 F.3d 307, 318–19, 99 FEP Cases 974
(6th Cir. 2007), reversed the grant of judgment as a matter of law
to the ADEA defendant, holding that plaintiff adequately showed that
younger employees were treated much more favorably, helping to establish
the fourth prong of her prima-facie case.
| |
9. Comparability
Should Be Exact as to Material Elements |
Fane v. Locke Reynolds,
LLP, 480 F.3d 534, 540–41, 100 FEP Cases 6 (7th Cir. 2007), affirmed
the grant of summary judgment to the § 1981 defendant law firm on
the plaintiff former paralegal’s claim that she was fired because
of her race. The court stated: “An employee is similarly situated
to a plaintiff if the two employees deal with the same supervisor,
are subject to the same standards, and have engaged in similar conduct
without such differentiating or mitigating circumstances as would
distinguish their conduct or the employer’s treatment of them.” Id.
at 540 (citation omitted). The court rejected plaintiff’s effort to
compare herself to a secretary on the ground that both paralegals
and secretaries were exempt and were support personnel subject to
the Director of Human Resources, and relied on the defendant’s Handbook
placing them in different classes of employees, as well as on the
obvious differences in duties. The court rejected plaintiff’s second
comparator, a paralegal who reported to the same practice group supervisor,
because plaintiff failed to identify the conduct for which that comparator
had been given a vague criticism, and there was thus no basis for
concluding that it was the same as, or worse, than, plaintiff’s conduct
triggering complaints from the firm’s clients, from oworkers, or from
her supervisor, or that the putative comparator had blinded herself
to her conduct as rigorously as plaintiff. Id. at 540–41.
| |
10. Comparability
Need Not Be Exact |
Humphries v. CBOCS West,
Inc., 474 F.3d 387, 404–05, 99 FEP Cases 872 (7th Cir. 2007),
aff’d on other grounds, __ U.S. __, 128 S. Ct. 1951 (2008), reversed
the grant of summary judgment to defendant on plaintiff’s § 1981 retaliation
claim. The court rejected defendant’s attack on plaintiff’s comparators:
According to Cracker Barrel, similarly situated comparators
must have the same supervisors, the same job duties, the same work
performance histories, and must have engaged in the same bad conduct
as the plaintiff. In other words, they must be essentially identical
to the plaintiff, and, under Cracker Barrel’s view, Humphries’s two
comparators, Stinnett and Dowd, fail that test.
Cracker Barrel’s view of our similarly situated requirement
is too rigid and inflexible. This requirement “should not be applied
mechanically or inflexibly.” . . . True, we have sometimes stated
the similarly situated requirement in the “must” terms that Cracker
Barrel argues, but a more sensitive reading of our cases indicates
that we have often stated that the similarly situated requirement
“normally entails a showing that the two employees dealt with the
same supervisor, were subject to the same standards, and had engaged
in similar conduct without such differentiating or mitigating circumstances
as would distinguish their conduct or the employer’s treatment of
them.” . . . In other words, we have emphasized that the similarly
situated inquiry is a flexible one that considers “all relevant factors,
the number of which depends on the context of the case.” . . . “As
to the relevant factors, an employee need not show complete identity
in comparing himself to the better treated employee, but he must show
substantial similarity.” . . .
In addition, our case law does not provide any “magic
formula for determining whether someone is similarly situated.” .
. . Instead, courts should apply a “commonsense” factual inquiry—essentially,
are there enough common features between the individuals to allow
a meaningful comparison? . . . Put a different way, the purpose of
the similarly situated requirement is to eliminate confounding variables,
such as differing roles, performance histories, or decision-making
personnel, which helps isolate the critical independent variable:
complaints about discrimination. . . .
It is important not to lose sight of the common-sense
aspect of this inquiry. It is not an unyielding, inflexible requirement
that requires near one-to-one mapping between employees—distinctions
can always be found in particular job duties or performance histories
or the nature of the alleged transgressions. . . . Now, it may be
that the degree of similarity necessary may vary in accordance with
the size of the potential comparator pool, as well as to the extent
to which the plaintiff cherry-picks would-be comparators . . .but
the fundamental issue remains whether such distinctions are so significant
that they render the comparison effectively useless. In other words,
the inquiry simply asks whether there are sufficient commonalities
on the key variables between the plaintiff and the would-be comparator
to allow the type of comparison that, taken together with the other
prima facie evidence, would allow a jury to reach an inference of
discrimination or retaliation--recall that the plaintiff need not
prove anything at this stag
(Citations omitted.) Judge Easterbrook dissented in part.
Id. at 408–11.
Ezell v. Potter, 400 F.3d 1041, 95 FEP Cases 689
(7th Cir. 2005), reversed the grant of summary judgment to the race,
sex, and age discrimination defendant on plaintiff’s claim of disparate
treatment. The old white male plaintiff was notified of his removal
for asking payment for a long lunch when he was not working, and the
court accepted a comparator who was not disciplined for losing a piece
of certified mail. The USPS contended that plaintiff was being disciplined
for serious misconduct, and that losing a piece of certified mail
was too dissimilar. The court set forth the standard of Circuit case
law on comparators: “This normally entails a showing that the two
employees dealt with the same supervisor, were subject to the same
standards, and had engaged in similar conduct without such differentiating
or mitigating circumstances as would distinguish their conduct or
the employer’s treatment of them.” Id. at 1049–50 (citations omitted.)
The court held that the lower court misconstrued this standard: “The
district court took this to mean that Ezell must produce a non-Caucasian
employee who committed exactly the same infraction and was treated
more favorably. But the law is not this narrow; the other employees
must have engaged in similar—not identical—conduct to qualify as similarly
situated.” Id. at 1050. Other serious misconduct can suffice. The
court continued:
The Postmaster characterizes
Ezell’s claim that losing mail is a serious offense as “self-serving”
and states there is no evidence that losing certified mail is considered
a serious matter. This is a curious claim from an entity whose primary
business is delivering mail. Misplacing certified mail, that is, mail
that has been designated as especially important by its sender, would
seem to be a serious matter. Ezell points out evidence in the record
that another carrier was fired for delaying mail and from this termination
we may infer that losing mail would also be a serious offense, at
least as serious as taking a long lunch. Ezell thus has raised a genuine
issue of material fact as to whether a similarly situated employee
outside his class received favorable treatment.
Id. In addition, plaintiff showed that his supervisor unlawfully
doctored employees’ time records to avoid paying them for work they
had performed.
Comparator Showed Defendant’s Reason Pretextual:
Allen v. Tobacco Superstore, Inc., 475 F.3d 931, 937–38, 99 FEP Cases
1127 (8th Cir. 2007), affirmed the judgment for the Title VII racial-discrimination
plaintiff as to defendant’s failure to promote her to Store Manager
on January 15, 2002. Defendant’s asserted reason was that plaintiff,
as an Assistant Store Manager, had previously been involved in a heated
argument with her Store Manager behind closed doors after the store
had closed. However, defendant promoted to Store Manager a Cashier
who had been involved in a heated argument with her Store Manager
in front of customers. The court held that there was no meaningful
difference, adverse to plaintiff, in the two situations. Judge Smith
concurred in part and dissented in part. Id. at 945–46.
Marquez v. Bridgestone/Firestone, Inc., 353 F.3d
1037, 1038, 93 FDEP Cases 92 (8th Cir. 2004) (per curiam), affirmed
the grant of summary judgment to defendant on plaintiff’s claims of
discriminatory discipline because there was no evidence that she was
treated differently than similarly situated employees who were not
Laotian. “To show that other employees were similarly situated, Marquez
was required to point to individuals who ‘have dealt with the same
supervisor, have been subject to the same standards, and engaged in
the same conduct without any mitigating or distinguishing circumstances.’
Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000).”
| |
E. Comparative
Qualifications and Evidence Bearing on Employee Performance |
Ash v. Tyson Foods, Inc.,
__ U.S. __, 126 S. Ct. 1195, 1197–98, 97 FEP Cases 641 (2006) (per
curiam), summarily vacated and remanded the Eleventh Circuit’s affirmance
of the grant of summary judgment to the Title VII and § 1981 racial
discrimination defendant. The Court rejected thelowercourt’s holding
that evidence of superior qualifications, by itself, was not probative
of discrimination unless the superiority was so evident that it jumps
off the page and slaps one in the face. The Court explained:
Under this Court's decisions, qualifications evidence
may suffice, at least in some circumstances, to show pretext. See
Patterson v. McLean Credit Union, 491 U.S. 164, 187–188, 109 S. Ct.
2363, 105 L. Ed. 2d 132 (1989) (indicating a plaintiff “might seek
to demonstrate that respondent's claim to have promoted a better qualified
applicant was pretextual by showing that she was in fact better qualified
than the person chosen for the position”), superseded on other grounds
by 42 U.S.C. § 1981(b); Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 259, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) (“The
fact that a court may think that the employer misjudged the qualifications
of the applicants does not in itself expose him to Title VII liability,
although this may be probative of whether the employer's reasons are
pretexts for discrimination”); cf. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 148, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)
(“[A] plaintiff's prima facie case, combined with sufficient evidence
to find that the employer's asserted justification is false, may permit
the trier of fact to conclude that the employer unlawfully discriminated”).
The visual image of words jumping off the page to
slap you (presumably a court) in the face is unhelpful and imprecise
as an elaboration of the standard for inferring pretext from superior
qualifications. Federal courts, including the Court of Appeals for
he Eleventh Circuit in a decision it cited here, have articulated
various other standards, see, e.g., Cooper, supra, at 732 (noting
that “disparities in qualifications must be of such weight and significance
that no reasonable person, in the exercise of impartial judgment,
could have chosen the candidate selected over the plaintiff for the
job in question” (internal quotation marks omitted)); Raad v. Fairbanks
North Star Borough School Dist., 323 F.3d 1185, 1194 (C.A.9 2003)
(holding that qualifications evidence standing alone may establish
pretext where the plaintiff's qualifications are “ ‘clearly superior’
” to those of the selected job applicant); Aka v. Washington Hospital
Center, 156 F.3d 1284, 1294 (C.A. D.C. 1998) (en banc) (concluding
the factfinder may infer pretext if “a reasonable employer would have
found the plaintiff to be significantly better qualified for the job”),
and in this case the Court of Appeals qualified its statement by suggesting
that superior qualifications may be probative of pretext when combined
with other evidence, see 129 Fed.Appx., at 533. This is not the occasion
to define more precisely what standard should govern pretext claims
based on superior qualifications. Today's decision, furthermore, should
not be read to hold that petitioners' evidence necessarily showed
pretext. The District Court concluded otherwise. It suffices to say
here that some formulation other than the test the Court of Appeals
articulated in this case would better ensure that trial courts reach
consistent results.
Comment: This continues
what has become clear as the Court’s multi-year, multi-decision campaign
to root out all the artificial legal presumptions adopted by the courts
to make the great summary judgment engine whittle down their civil
rights dockets. The more multifaceted evidentiary showings that are
possible, the greater is the likelihood that plaintiffs will get their
days in court before a jury.
Salazar v. Washington Metropolitan
Transit Authority, 401 F.3d 504, 95 FEP Cases 681 (D.C. Cir.
2005), reversed the grant of summary judgment to the Title VII defendant,
in large part because plaintiff showed departures from ordinary procedures
that suggested defendant weighted the process to bar plaintiff’s advancement.
After several promotional denials, plaintiff complained that Superintendent
of Plant Equipment Maintenance Lewis stacked promotional panels with
his friends, and would not promote Latinos. The General Manager promised
that Lewis would have no influence over the panel with respect to
the promotion at issue. Instead, the panel was expanded, Lewis named
the chair, Lewis worked with the chair to establish the weightings
for various qualifications, and the weightings downplayed plaintiff’s
strengths. The court stated: “We agree with Salazar that a jury could
infer something ‘fishy’ from the fact that Lewis placed himself squarely
at the center of a process designed to exclude him. Specifically,
a jury could conclude that WMATA failed to provide a “fairly administered
selection process” and that its claim to the contrary is pretextual.”
Id. at 508–09 (citations omitted.) The court held that the inference
remained even though the panel chair, Buddie Jaggie, did not vote
materially differently than the other members and there was no contention
that the others were disposed to discriminate. Even without Jaggie’s
scores, plaintiff would have come in fourth with the weightings in
place. The court continued: “The possibility that the interview process
for the Metro Center job may not have been fairly designed increases
in light of the fact that Tucker, the successful candidate, never
held that job. Instead, Lewis transferred Tucker to what Salazar described
as a less difficult job in Greenbelt—a characterization not contested
by WMATA. From this, we think a reasonable jury could infer that Tucker
was unsuited for the Metro Center job and that the selection process
was geared not to finding the best person for the position, but rather
to keeping Salazar from advancing.” Id. at 509. The court held that
a reasonable jury could find defendant’s explanation pretextual. Judge
Williams dissented, and the panel majority criticized the dissent
for raising arguments defendant never raised, and for engaging in
speculation that there might be innocent reasons for the oddities,
instead of drawing inferences in plaintiff’s favor. Id. at 509–12.
Thomas v. Eastman Kodak Co.,
183 F.3d 38, 62–63, 80 FEP Cases 537 (1st Cir. 1999), cert. denied,
528 U.S. 1161 (2000), reversed the grant of summary judgment to the
Title VII racial discrimination defendant, relying ubstantially on
comparative evidence. The court held that the lower court erred when
it insisted on some evidence pointing specifically to the unlawful
motivation, id. at 56– 58, and stated that “discrimination, rarely
explicit and thus rarely the subject of direct evidence, may be proven
through the elimination of other plausible nondiscriminatory reasons
until the most plausible reason remaining is discrimination.” Id.
at 61 (citation omitted). The plaintiff was black, and had worked
for the defendant for 19 years prior to her layoff in 1993. For the
13 years preceding her layoff, she worked as a Customer Service Representative
(“CSR”) in the Wellesley, Massachusetts, office. She received stellar
evaluations, and had strong positive feedback from the customers she
serviced. All of this came to an end in 1989 when Claire Flannery,
a secretary who had previously worked as a CSR, was selected over
the plaintiff to fill the new Customer Support Manager position. The
plaintiff’s appraisals became far lower, and Flannery did everything
conceivable to undermine the plaintiff with management, other staff
members, and customers. Because of the ratings, the plaintiff was
selected for layoff in 1993. Id. at 43–46. The lower court found that
a reasonable jury could determine that the appraisal scores were objectively
unfair or were skewed against the plaintiff, i.e., that they were
pretextual, and the court of appeals agreed. Id. at 57. The court
stated that the drop in the plaintiff’s ratings after Flannery became
her supervisor was not due to Flannery’s simply being a tough grader,
because Flannery gave very high grades to others. Id. at 62. Nor could
the three-point drop be explained by the plaintiff’s promotion to
a higher grade in 1989, as Kodak claimed, because one other promotee
had a one-point drop and the other had a one-point increase, and because
other supervisors denied the existence of Kodak’s claimed rule. Id.
The court observed that the scores for “quantity of results” involved
an objectively verifiable category, and the plaintiff showed a disparity
of treatment. “In 1990, for instance, Thomas received only a 3 for
quantity of results—a below average score—for managing 730 machines
and 110 installations, while another CSR, also in the K6 grade, received
a 5 for quantity in 1991 for managing far fewer machines (504) and
fewer installations (81).” Id. at 62–63. The court rejected the company’s
explanation for this disparity as relevant to persuading the jury,
but not enough to render the comparison meaningless for purposes of
summary judgment. Id. at 63.
Koster v. Trans World Airlines,
Inc., 181 F.3d 24, 31–32, 80 FEP Cases 343 (1st Cir.), cert.
denied, 528 U.S. 1021 (1999), an age discrimination case under Massachusetts
law applying the standards of the three-part McDonnell Douglas approach,
affirmed the judgment on liability for the plaintiff, based on the
jury verdict. The court relied heavily on the plaintiff’s comparative
evidence as to Robert Spencer (then 48), who was also selected for
the RIF, and Robinanne Stancavage (then 25), who was retained:
After comparing the qualifications of Koster and
Stancavage, there is abundant evidence supporting the conclusion that
a reasonable employer would have found Kostersignificantly more qualified
than Stancavage, a twenty-five ear old employee with three months
of supervisory experience. The jury could also reasonably conclude
that Koster fit the selection criteria established by Humpherys and
that Stancavage did not. Koster obviously made a long-term commitment
to working for TWA, while evidence suggested that Stancavage planned
to work for TWA until she returned to school. “[A]n employer’s asserted
strong reliance on subjective feelings about candidates may mask discrimination.”
. . . That three of the four retained supervisors were in the protected
age class is of little importance because Koster need only show that
TWA furloughed him because of his age.
Id. at 31–32 (citations omitted).
Carlton v. Mystic Transportation,
Inc., 202 F.3d 129, 136, 81 FEP Cases 1449 (2d Cir.),cert. denied,
530 U.S. 1261 (2000), found that the plaintiff had produced adequate
evidence of pretext, and reversed the grant of summary judgment to
the ADEA RIF defendant. The defendant’s explanation for firing the
plaintiff was that a decline in business required a RIF, and that
his job performance was poor. The court found problems with the RIF
explanation, in part because the plaintiff was replaced three months
after the RIF with a person who was 25 years younger, and in part
because of their comparative salaries. “And, defendant achieved relatively
insignificant savings as a result of Carlton’s termination. While
Carlton had received $57,200 per year, Oravets was paid $46,800 per
year. All of which suggests that perhaps some other motive—beyond
the company’s finances—motivated Carlton’s dismissal.” In addition,
the court found evidence of pretext in the company’s failure to produce
documentation of the poor performance, particularly in light of objective
evidence of good performance and comparative evidence that such documentation
should exist if the plaintiff’s performance was truly poor:
We think there is evidence of inconsistency in defendant’s
handling of supposedly underperforming employees. For example, when
Oravets was terminated from his first term of employment with Mystic
in 1993, the employer filled out a pre-printed form that stated that
Oravets’ termination was for “insubordination.” No such form exists
for Carlton. Again, when Oravets was performing poorly during his
prior term of employment, his salary was reduced. If Carlton’s performance
had declined, as defendant insists, it seems surprising that there
was no contemporaneous proof of that fact.
Id. (citation omitted).
Banks v. Travelers Companies,
180 F.3d 358, 362, 80 FEP Cases 30 (2d Cir. 1999), affirmed the judgment
of liability on a jury verdict in favor of the ADEA plaintiff. The
court stated that the decisionmaker purported to follow “a methodical
process of meetings and evaluations,” called a “‘staff adjustment’
process,” to determine whether to lay off the plaintiff or a younger
employee, Dvorachek, in January 1994. The court stated that there
was evidence from which the jury could have inferred that the process
was a sham and that Dvorachek had been preselected. Part of that evidence
was the plaintiff’s superior qualifications. “In addition, the jury
could have reasonably concluded from Banks’s more extensive work experience
and seniority, as well as from an earlier performance evaluation,
that she was the better qualified candidate.” (Footnote omitted.)
Corti v. Storage Technology Corp.,
304 F.3d 336, 338–39, 89 FEP Cases 1477 (4th Cir. 2002), affirmed
the judgment on a jury verdict for plaintiff, in the amount of $410,974.63
in back pay and prejudgment interest, and $100,000 in punitive damages.
The court relied in part on evidence that the plaintiff was a top-ranked
Financial Services Manager but was nevertheless selected for demotion
in the RIF, and ultimate termination, while males who had never even
met their quotas without special relief were retained.
Thomas v. Texas Department of Criminal Justice, 220
F.3d 389, 393–94, 83 FEP Cases 1081 (5th Cir. 2000), affirmed the
judgment of liability on a jury verdict for the Title VII race and
gender discrimination plaintiff. The plaintiff was a black woman who
was denied promotion to Captain despite meeting all of the requirements
for the position and presenting the testimony of correctional officers
as to the excellence of her record. The court found plaintiff’s comparative
and other evidence sufficient to overcome the defendant’s explanation:
TDCJ argues that Thomas was less qualified because
the three white males promoted all had more mid-level supervisory
experience, and gave better answers at the interview. Thomas presented
counter evidence showing that one of the officers who was ultimately
promoted represented on his application that he had only 18 hours
of college credits, and the minimum qualifications stated that 30
hours of college credit were required. One of the other officers who
was ultimately promoted stated on his application that he had 38 hours
of college credit, and his transcript ultimately showed he had completed
only 32 hours. Therefore, although we acknowledge that there was conflicting
evidence presented to the jury regarding TDCJ’s failure to promote
Thomas, ultimately we conclude that Thomas presented evidence of sufficient
force and persuasiveness to allow a reasonable juror to conclude that
TDCJ engaged in gender and racial discrimination.
Id. (footnote omitted).
Vance v. Union Planters Corp., 209 F.3d 438, 442,
82 FEP Cases 1199 (5th Cir. 2000), affirmed the judgment of liability
on the jury verdict for the female Title VII gender discrimination
plaintiff, who had not been selected for the position of branch bank
president. The court relied in part on the fact that the decisionmaker
had pursued a series of male candidates but not the plaintiff, where
a number of male candidates had recommended the plaintiff as the best
qualified person and where the plaintiff was the only viable candidate.
The court held that the jury was entitled to find discrimination where
the evidence showed that the decisionmaker was “less than diligent”
in checking the credentials of the male he recruited and selected,
and failed to follow up on the plaintiff’s glowing recommendations.
Id. at 443. The evidence of gender-biased statements is described
in more detail in Chapter 17 (Direct Proof and Stray Remarks), in
Part B (Explanations of the Standard Used to Decide If a Statement
or Other Evidence is “Direct Proof” or a “Stray Remark”). The court
held that the jury was entitled tocredit evidence “that Vance’s administrative
skills were at least as strong as” the male candidate’s, and was entitled
to infer from the selectee’s recent demotion from an administrative
job that his administrative skills did not motivate the decisionmaker
to select him. Id. at 444.
Rutherford v. Harris County, 197 F.3d 173, 181–82,
81 FEP Cases 1775 (5th Cir. 1999), affirmed the judgment on a jury
verdict for the Title VII gender discrimination plaintiff on her promotional
claim, affirmed the denial of judgment as a matter of law for the
defendant, and affirmed the denial of a new trial, based in part on
evidence that the plaintiff’s qualifications were superior to those
of Remon Green, the male employee who received the promotion to a
full-time position as Deputy Constable. The court held that the usual
rule—restricting courts from analyzing the comparative qualifications
of candidates unless the plaintiff is so clearly superior that the
difference in qualifications “‘are so apparent as virtually to jump
off the page and slap us in the face’”—did not apply because the defendant
never compared the qualifications of the candidates. Id. at 182 n.9.
This aspect of the decision is discussed in Chapter 14 (The McDonnell
Douglas / Burdine / Hicks Model), Part G, in the section on “Comparative
Qualifications of the Plaintiff.” The plaintiff showed the existence
of the opening, that seniority strongly influenced promotional decisions,
and that she had trained Green on some aspects of the job. The court
described the plaintiff’s superior qualifications:
Green was junior in seniority to Rutherford and Tesma
Walker (“Deputy Walker”), both females. At the time he was promoted,
he was a civilian employee working as a radio dispatcher. He had significantly
less training and field experience in traffic safety than did Rutherford.
Rutherford had worked strictly on traffic safety as a reserve deputy.
Green did not train in traffic safety. As a radio dispatcher, Green
learned radio codes, but this knowledge did not take long to acquire
and provided no benefit in working the streets as a traffic safety
deputy. Rutherford had become familiar with the streets and addresses
in her patrol area. She had also received training in the Intoxilyzer,
radar certification, ticketing, accident reconstruction, and field
sobriety. She had taught Green how to write tickets. Green had some
experience as a reserve deputy in making traffic stops and also had
experience patrolling county parks, but so did Rutherford. Most of
the classes that Green had taken before becoming a full-time deputy
were related to communications, not traffic safety. He had not taken
courses in the Intoxilyzer, field sobriety, pedestrian and bicycle
accident reconstruction, or radar.
Casarez v. Burlington Northern/Santa Fe Co., 193
F.3d 334, 337–38, 81 FEP Cases 412 (5th Cir. 1999), reh’g denied,
201 F.3d 383, 81 FEP Cases 1246 (5th Cir. 2000), reversed the grant
to the defendant of judgment as a matter of law on the plaintiff’s
discrimination claim, and held that the defendant’s proffer of false
nondiscriminatory explanations, combined with the plaintiff’s “own
good work record,” were sufficient for a jury to infer the defendant’s
intent to discriminate. The court went on to state that, even if this
were not considered enough, the evidence that the plaintiff was treated
differently from similarly situated Caucasian Assistant Superintendents
“would likewise satisfy the intent inquiry.” Id. at 338. The plaintiff
was Assistant Superintendent of the North Texas Division, which made
him second-in-command. Id. at 335. He had received excellent evaluations
until his supervisor was replaced by Lewis Rees. The court stated:
“he was subjected to multiple instances of being treated differently
from similarly situated Caucasian assistant superintendents: he was
assigned menial tasks, he was forced to work nights, he was not permitted
to leave work until he was relieved by someone else, he was not permitted
to take time off to visit his ailing mother in El Paso, he was ostracized
from the planning committee for Alliance and from the safety committee,
and he was transferred to Zacha Junction where he was isolated from
his subordinates.” Id.
Bender v. Hecht’s Dept. Stores, 455 F.3d 612, 626–27
(6th Cir. 2006), affirmed the grant of summary judgment to the ADEA
RIF defendant, and held that Ash did not require reversal where there
was no evidence of discrimination other than evidence that a plaintiff’s
qualifications were equal to those of an employee not laid off. Pointing
out that Ash did not articulate a standard to replace the Eleventh
Circuit’s standard, the court declared its own standard:
Whether qualifications evidence will be sufficient
to raise a question of fact as to pretext will depend on whether a
plaintiff presents other evidence of discrimination. In the case in
which a plaintiff does provide other probative evidence of discrimination,
that evidence, taken together with evidence that the plaintiff was
as qualified as or better qualified than the successful applicant,
might well result in the plaintiff’s claim surviving summary judgment.
. . . On the other hand, in the case in which there is little or no
other probative evidence of discrimination, to survive summary judgment
the rejected applicant’s qualifications must be so significantly better
than the successful applicant’s qualifications that no reasonable
employer would have chosen the latter applicant over the former. In
negative terms, evidence that a rejected applicant was as qualified
or marginally more qualified than the successful candidate is insufficient,
in and of itself, to raise a genuine issue of fact that the employer’s
proffered legitimate, non-discriminatory rationale was pretextual.
(Citation omitted.)
Baylie v. Federal Reserve Bank
of Chicago, 476 F.3d 522, 526, 99 FEP Cases 1310 (7th Cir. 2007),
affirmed the grant of summary judgment to the racial discrimination
defendant, stating that although “a district judge should not insist
that the other employees to whom a plaintiff compares herself be identically
situated, there must be a reasoned basis for thinking the comparator
close enough in material ways so that a reasonable fact-finder could
think that race (sex, or another covered attribute) was the difference
that the employer perceived. When despite ample opportunity for discovery
the plaintiff makes no serious effort to show that the favored worker
was similarly situated except with respect to race (sex, and so on),
the district judge properly concludes that a prima facie case of discrimination
has not been established.”
Crawford v. Indiana Harbor Belt
R. Co., 461 F.3d 844, 98 FEP Cases 1398 (7th Cir.2006), affirmed
the grant of summary judgment to the Title VII race and sex discrimination
defendant. The court referred to plaintiffs’ ability to prove discrimination
by the use of comparators, but continued: “But this assumes that the
better-treated workers with whom the plaintiff compares herself are
a representative sample of all the workers who are comparable to her.”
Id. at 845. It emphasized that the plaintiff should include all relevant
comparators in her analysis, not just a couple who were treated dissimilarly
from the others and from her. It continued:
There has been a tendency in our cases, and in those
of some other circuits as well (a trend resisted, however, by the
Eighth Circuit . . . to require closer and closer comparability between
the plaintiff and the members of the comparison group (the group of
10 in this case). . . . The requirement is a natural response to cherry-picking
by plaintiffs, the issue with which we began. If a plaintiff can make
a prima facie case by finding just one or two male or nonminority
workers who were treated worse than she, she should have to show that
they really are comparable to her in every respect.
But if as we believe cherry-picking is improper,
the plaintiff should have to show only that the members of the comparison
group are sufficiently comparable to her to suggest that she was singled
out for worse treatment. . . . Otherwise plaintiffs will be in a box:
if they pick just members of the comparison group who are comparable
in every respect, they will be accused of cherry-picking; but if they
look for a representative sample, they will unavoidably include some
who were not comparable in every respect, but merely broadly comparable.
The cases that say that the members of the comparison group must be
comparable to the plaintiff in all material respects get this right.
. . .
Id. at 846 (citations omitted). The court stated that length
of service was important if the comparison was to absolute numbers
of incidents, because average numbers of incidents per year may be
more relevant. The court suggested it would be more relevant to look
at numbers of incidents in the same year, unless the comparators had
markedly better records in prior years. Id. at 846–47. The court continued
A difference in supervisors is important in evaluating
a worker’s record of reprimands when the supervisors who issue the
reprimands have broad discretion (the equivalent of prosecutorial
discretion) in deciding whether and when to do so, as assumed in the
many cases . . . that emphasize such a difference as a material circumstance
in determining comparability. Here there were multiple supervisors—the
plaintiff’s eight reprimands were issued by four different supervisors—and
the plaintiff failed to show how much or how little discretion they
had.
Id. at 847.
Bell v. E.P.A., 232 F.3d
546, 551–52, 84 FEP Cases 630 (7th Cir. 2000), reversed the grant
of summary judgment to the Title VII race and national origin promotional
discrimination defendant because the plaintiffs’ qualifications, compared
to those of the selectees, and their statistical showing, would have
allowed a reasonable factfinder to infer discrimination.
Adams v. Ameritech Services,
Inc., 231 F.3d 414, 429, 84 FEP Cases 178, 25 EB Cases 1101 (7th
Cir. 2000), reversed the grant of summary judgment to the ADEA RIF
defendants, in part because of the plaintiffs’ comparative qualifications.
“The record was full of objective evidence—far more than the plaintiffs’
own evaluations of their performances—suggesting that not only were
they doing their jobs well, but (more importantly) that in the comparative
ratings that are required in a RIF, they could have survived had the
criteria been age-neutral. The size of the merit bonuses and raises
the companies paid them is one example of such evidence, as is documentation
of employees’ job skills, experience and past job performance.”
Thorn v. Sundstrand Aerospace
Corp., 207 F.3d 383, 386–87, 82 FEP Cases 550 (7th Cir. 2000),
reversed the grant of summary judgment to the ADEA RIF defendant on
plaintiff Thorn’s claim. The 61- year-old plaintiff contract administrator,
“whose performance evaluations were uniformly glowing,” id. at 386,
was selected for discharge in a RIF while much younger employees were
retained.
Hocevar v. Purdue Frederick Co.,
223 F.3d 721, 726–27, 83 FEP Cases 1196 (8th Cir. 2000), reversed
the grant of summary judgment to the defendant on the plaintiff’s
retaliation claim. In finding sufficient evidence of causation, Judges
Lay and Gibson relied in part on the fact that the decisionmaker had
previously imposed—only on the plaintiff, who was a top producer—the
requirement that she call him every day with a special report about
her sales calls, and relied in part on a witness statement describing
a pattern in which employees who complain eventually are gone from
the organization.
Juarez v. ACS Government Solutions
Group, Inc., 314 F.3d 1243, 90 FEP Cases 1104 (10th Cir. 2003),
affirmed the judgment for the plaintiff in the amounts of $22,500
in back pay and $250,000 in punitive damages for racial and national
origin discrimination in a RIF. The court relied in part on comparative
evidence: “Appellee presented evidence that ACS had retained non-Hispanic
computer operators with less experience and tenure than Appellee and
who had lower recent performance evaluations.” Id. at 1245. “Appellee
introduced evidence that ACS retained two computer operators that
were frequently tardy or absent and one that slept on the job. Appellee
also introduced evidence that a retained computer operator was drinking
on the job.” Id. at 1246.
Dodoo v. Seagate Technology, Inc.,
235 F.3d 522, 527, 84 FEP Cases 933 (10th Cir. 2000), affirmed the
judgment on a jury verdict for the ADEA and Title VII plaintiff as
to a promotion to a Program Manager position. The court held that
the jury was entitled to infer that plaintiff was more qualified than
the person selected, David Koelsch, because plaintiff had 16 years’
experience compared to Koelsch’s two months.
Tyler v. RE/MAX Mountain States,
Inc., 232 F.3d 808, 815–16 (10th Cir. 2000), affirmed the judgment
on a jury verdict for the § 1981 and 42 U.S.C. § 3601 plaintiff real
estate broker on his claim that defendant discriminatorily failed
to accept his application for a franchise. The court held that the
jury could reasonably reject as pretextual the defendant’s statement
that it was concerned over his lack of sales associates, where it
granted a franchise to the Coopers, who had no real estate agents
of staff at the time they applied, and “who RE/MAX admitted were similarly
situated applicants.” Id. at 815 n.8. Moreover, Mr. Tyler and his
daughter were both licensed agents.
Durley v. APAC, Inc., 236
F.3d 651, 656–57, 84 FEP Cases 1177 (11th Cir. 2000), reversed the
grant of summary judgment to the Title VII gender discrimination defendant,
holding that the jury could reasonably find discrimination from evidence
of the plaintiff’s superior qualifications for the job of Purchasing
Agent, evidence that the defendant had falsely denied the existence
of a job description prior to the EEOC’s request for the description,
and evidence that it had provided the EEOC with a job description
that boosted the relative qualifications of the person selected. The
court relied in part on plaintiff’s superior qualifications for the
position of Purchasing Agent, compared to Jeff Warnock, the person
selected. “Durley presented evidence that she was qualified for the
position and that Bair considered her to be familiar with 85% of the
duties of the Purchasing Agent. Deposition testimony also demonstrated
that Warnock had no formal administrative or purchasing experience.
Indeed, Durley testified in her deposition that she assisted in training
Warnock after Bair retired. A reasonable jury could conclude that
Durley was more qualified to handle the administrative and purchasing
duties performed by the Purchasing Agent.” Id. at 656. The court held
that a jury could also infer that the defendant’s new job description,
prepared in response to a request from the EEOC, was not a fair description
of the job and was a pretext for discrimination because it assumed
that the incumbent would perform shipping and receiving duties, in
which Warnock but not Durley had had experience, and a shipping/receiving
clerk was hired after Warnock was promoted. Id. at 656–57.
Beaver v. Rayonier, Inc.,
200 F.3d 723, 729 (11th Cir. 1999), cert. dismissed, 529 U.S. 1095
(2000), affirmed the judgment on a jury verdict for the ADEA plaintiff,
holding that the defendant denied the plaintiff vacant supervisory
positions for which he was qualified and had applied at the time of
the RIF. The court stated: “At the trial, Beaver and three of his
co-workers at the mill testified that based on their familiarity with
Beaver’s extensive experience throughout the mill, the duties of the
available positions, and the experience of the six younger employees
who were selected for the vacant positions instead of him, Beaver
was more qualified than each of those employees.”
| |
F. Judicial
Representation as to Comparators at SJ is Binding at Trial |
Williams v. Trader Publishing
Co., 218 F.3d 481, 484–85, 83 FEP Cases 668 (5th Cir.2000), affirmed
the judgment on liability for the Title VII gender discrimination
plaintiff. The court rejected the defendant’s argument that evidence
of plaintiff’s comparators should not have been allowed at trial inasmuch
as they were not nearly identical to the plaintiff’s situation. The
court pointed out that the defendant had relied on the same comparators
for other purposes in its motion for summary judgment, and stated:
Evidence may only be introduced at the summary judgment
phase of a trial if the evidence would be admissible at trial. See
Fed. R. Civ. P. 56(e) (“Supporting and opposing affidavits . . . shall
set forth such facts as would be admissible in evidence”). Thus, by
introducing the evidence relating to these male employees, Trader
took the position before the district court that the evidence would
be relevant and admissible at trial to show its parity of treatment
of employees of both genders.
Id. at 485. The comparative evidence showed sexually disparate
patterns of discipline and discharge. Id. at 483–84.
Baylie v. Federal Reserve Bank
of Chicago, 476 F.3d 522, 525, 99 FEP Cases 1310 (7th Cir. 2007),
affirmed the grant of summary judgment to the racial discrimination
defendant, holding that a statistical difference showing at most that
white workers received an average of one additional promotion every
20 years did not show it was more likely than not that the African-American
plaintiffs were discriminated against because of their race.
Hemsworth v. Quotesmith.Com, Inc.,
476 F.3d 487, 491–92, 99 FEP Cases 1189 (7th Cir. 2007), affirmed
the grant of summary judgment to the ADEA defendant, holding that
plaintiff’s statistics were too simple to be probative. The court
explained:
We are also unconvinced by Hemsworth’s proposed statistical
evidence because it does not provide sufficient context for a proper
comparison. Hemsworth argues that 84% of the employees laid off by
Quotesmith in 2001 were over the age of forty but does not explain
how these other employees compare to his situation. “In order to be
considered, the statistics must look at the same part of the company
where the plaintiff worked; include only other employees who were
similarly situated with respect to performance, qualifications, and
conduct; the plaintiff and the other similarly situated employees
must have shared a common supervisor; and treatment of the other employees
must have occurred during the same RIF as when the plaintiff was discharged.”
. . . Statistical evidence is only helpful when the plaintiff faithfully
compares one apple to another without being clouded by thoughts of
Apple Pie ala Mode or Apple iPods.
(Citations omitted.)
Sun v. Board of Trustees of University
of Illinois, 473 F.3d 799, 812–13, 99 FEP Cases 897 (7th Cir.
2007), affirmed the lower court’s grant of summary judgment to the
Title VII race and national origin discrimination defendants but held
that plaintiff’s simple statistical evidence had some probative value.
“Sun emphasized that, between the years of 1993 and 2003, the four
members of the PTC voted on 19 promotion candidates, two of whom were
Asian and from China and 17 of whom were Caucasian. According to Sun,
the PTC voted unanimously against him and the other Chinese candidate
and, in almost every case, voted unanimously in favor of the Caucasian
candidates.” (Footnote omitted.) The court stated: “Although the sample
size is insufficient to provide statistically reliable evidence, the
PTC’s voting pattern has some probative value regarding discriminatory
employment practices. . . . We do not hold, however, that a questionable
pattern of promotion, standing alone, is sufficient evidence to withstand
summary judgment.” Id. at 813.
Allen v. Tobacco Superstore, Inc.,
475 F.3d 931, 938, 99 FEP Cases 1127 (8th Cir. 2007), affirmed the
judgment for the Title VII racial-discrimination and retaliation plaintiff,
relying in part on the following statistics:
When Allen filed her lawsuit, TSI had been in business
for approximately ten years and operated eighty-two retail stores
in states with large black populations—Arkansas,Tennessee, Mississippi,
and Missouri—yet none of TSI’s stores had a black store manager. In
2001 and 2002, TSI did not have a procedure for advancement. If an
employee wanted to be considered for a management position, the employee
simply asked the store manager or supervisor. Lovell, Hill, and Goggans
were hired after Allen and had less managerial experience than Allen.
Nonetheless, Lovell, Hill, and Goggans were hired directly into store
manager positions. These hiring practices, together with TSI’s word-of-mouth
promotion process, support a finding of discriminatory practice.
(Citation omitted.) Judge Smith concurred in part
and dissented in part. Id. at 945–46.
Morgan v. United Parcel Service
of America, Inc., 380 F.3d 459, 94 FEP Cases 591 (8th Cir. 2004),
affirmed the grant of summary judgment to defendant on plaintiffs’
Title VII patternand- practice claim. The court rejected plaintiffs’
showing that black employees were disproportionately concentrated
in defendant’s lower-paid jobs, because the issue to be resolved in
this part of the case was whether there was discrimination in promotions
to the position of division manager.
The upward-mobility classes consist of center managers
who have not been promoted to division manager. Thus, the probative
inquiry involves a comparison between the percentage of division managers
who are black and the percentage of qualified employees who are black
in the population from which division managers are chosen. As the
district court held, “plaintiff’s reliance on a bottom line racial
imbalance in the workforce is insufficient to establish that blacks
are less likely to be promoted.”
Id. at 464–65. The court also held that plaintiffs’ multiple
regression analysis was admissibl e but, because of its omission of
key explanatory variables involving prior pay and performance, was
not strong enough by itself to withstand summary judgment. The court
pointed to the fact that no anecdotal evidence had been offered. Id.
at 466–71. Judge Melloy concurred in part and dissented in part.
Chambers v. Metropolitan Property
and Cas. Ins. Co., 351 F.3d 848, 855, 92 FEP Cases 1739 (8th
Cir. 2003), affirmed the grant of summary judgment to the ADEA RIF
defendant and rejected plaintiff’s statistical showing: “Chambers
presented the additional evidence that he was one of fifteen employees
terminated in his division as a result of St. Paul’s reduction in
force, and thirteen of the fifteen were over the age of 40. This does
not raise an nference of discrimination because the entire personal
insurance operation was sold, and St. Paul terminated all persons
employed in that area, regardless of age. His statistical evidence
is meaningless without some analysis of the age of the entire workforce
at St. Paul before and after the reduction in force.”
Dukes v. Wal-Mart, Inc.,
474 F.3d 1214 (9th Cir. 2007), petition for reh’g en banc filed and
response requested, affirmed the grant of class certification and
the limits the lower court imposed on back pay and punitive damages
for promotion claims. The court rejected Wal- Mart’s challenges to
plaintiff’s statistical evidence:
Wal-Mart challenges Dr. Drogin’s findings and faults
his decision to conduct his research on the regional level, rather
than analyze the data store-by-store. However, the proper test of
whether workforce statistics should be viewed at the macro (regional)
or micro (store or sub-store) level depends largely on the similarity
of the employment practices and the interchange of employees at the
various facilities. . . .
Here, Dr. Drogin explained that a store-by-store
analysis would not capture: (1) the effect of district, regional,
and company-wide control over Wal-Mart’s uniform compensation policies
and procedures; (2) the dissemination of Wal-Mart’s uniformcompensation
policies and procedures resulting from the frequent movement of store
managers; or (3) Wal-Mart’s strong corporate culture. Such evidence
supports Plaintiffs’ claim that the discrimination was closely related
to Wal-Mart’s corporate structure and policies. Because Dr. Drogin
provided a reasonable explanation for conducting his research at the
regional level, the district court did not abuse its discretion when
it credited Dr. Drogin’s analysis.
Wal-Mart also contends that the district court erred
by not finding Wal-Mart’s statistical evidence more probative than
Plaintiffs’ evidence because, according to Wal- Mart, its analysis
was conducted store-by-store. However, contrary to Wal-Mart’s characterization
of its analysis, its research was not conducted at the individual
store level. Dr. Joan Haworth, Wal-Mart’s expert, did not conduct
a store-by-store analysis; instead she reviewed data at the sub-store
level by comparing departments to analyze the pay differential between
male and female hourly employees. 547 U.S. 268, 126 S.Ct. 1752 Further,
our job on this appeal is to resolve whether the “evidence is sufficient
to demonstrate common questions of fact warranting certification of
the proposed class, not whether the evidence ultimately will be persuasive
“ to the trier of fact. . . . 7 Thus, it was appropriate for the court
to avoid resolving “the battle of the experts” at this stage of the
proceedings. . . .
Finally, it is important to note that much of Dr.
Haworth’s evidence, which Wal-Mart argues was “unrebutted” by Wal-Mart,
was in fact stricken by the district court for failing to satisfy
the standards of Federal Rules of Evidence 702 and 703.8 . . . The
district court specifically stated that Dr. Haworth’s stricken testimony
could not be used to undermine or contradict Dr. Drogin’s analysis
. . . and, as noted above, Wal-Mart does not appeal this ruling. Thus,
while Dr. Haworth’s testimony may be relevant to an analysis of the
merits of Plaintiffs’ claims, it does not rebut Dr. Drogin’s evidence
and does not support Wal-Mart’s contention that its statistical evidence
is more probative than Plaintiffs’ at the certification stage.
Because the district court reasonably concluded that
Dr. Drogin’s regional analysis was probative and based on well-established
scientific principles, and because Wal-Mart provided little or no
proper legal or factual challenge to it, the district court did not
abuse its discretion when it relied on Dr. Drogin’s use and interpretation
of statistical data as a valid component of its commonality analysis.
6 This means that Dr. Haworth ran separate
regression analyses for: (1) each of the specialty departments in
the store, (2) each grocery department in the store, and (3) the store’s
remaining departments. She did not run regression analyses to examine
pay differential between male and female salaried employees.
7 Wal-Mart maintains that the district
court erred by not requiring Dr. Drogin to perform a “Chow test” to
determine whether data could be properly aggregated. The Chow test
(named after the statistician who created it) can be used to analyze
whether two or more sets of data may be aggregated into a single sample
in a statistical model. . . . However, there is no legal support for
the contention that a Chow test must—or even should—be applied at
the class certification stage. Further, we have not found a single
case suggesting that commonality would be undermined if Plaintiffs’
evidence failed this test.
8 In addition to her sub-store analysis,
Dr. Haworth conducted a survey of store managers. After reviewing
the survey and its methodology, the district court concluded that
the store manager survey was biased both “on its face” and in the
way that it was conducted. . . . Dr. Haworth’s disaggregated analysis
created pools too small to yield any meaningful results. Wal-Mart
has not appealed this issue. Accordingly, this evidence is not properly
before us.
Id. at 1228–30 (citations omitted). Judge Kleinfeld dissented.
Id. at 1244–49.
Obrey v. Johnson, 400 F.3d
691, 95 FEP Cases 531 (9th Cir. 2005), reversed the judgment on a
jury verdict for the Title VII defendant. Plaintiff is an Asian-Pacific
Islander who claimed that persons of his race were systematically
excluded from senior management positions at the Pearl Harbor Naval
Shipyard. The lower court excluded his statistical study because it
did not account for the relative qualifications of the candidates,
and the court held that this was an abuse of discretion:
Obrey’s statistical evidence was not rendered irrelevant
under Rule 402 simply because it failed to account for the relative
qualifications of the applicant pool. See Fed. R. Evid. 402 (“All
relevant evidence is admissible, except as otherwise provided [by
law]. Evidence which is not relevant is not admissible.”) A statistical
study may fall short of proving the plaintiff’s case, but still remain
relevant to the issues in dispute. The Dannemiller study may be relevant,
and therefore admissible, even if it is not sufficient to establish
Obrey’s prima facie case or a claim of pretext. Thus, objections to
a study’s completeness generally go to “the weight, not the admissibility
of the statistical evidence” . . . and should be addressed by rebuttal,
not exclusion . . . .
In some cases, statistical evidence may suffer from
serious methodological flaws and can be excluded, consistent with
the trial court’s “gatekeeping” power, under Rule 702. . . . Factors
which may bear on admissibility include: (1) whether the “scientific
knowledge . . . can be (and has been) tested”; (2) whether “the theory
or technique has been subjected to peer review and publication”; (3)
“the known or potential rate of error”; and (4) “general acceptance.”
. . . The Rule 702 inquiry is a “flexible one” whose “overarching
subject is the scientific validity and thus the evidentiary relevance
and reliability[ ] of the principles that underlie a proposed submission.”
. . .
Id. at 695–96. The court stated that the study in question
“is based entirely on statistical disparities,” id. at 696, and that
such evidence may not be sufficient to establish a prima facie case
for purposes of summary judgment, but is admissible. “While, by itself,
this cannot constitute proof that the Navy discriminated against Obrey
. . . it should have been admitted for whatever probative value it
had.” Id. at 697 (citation omitted).
| |
H. Discriminatory
Statements |
| |
1. Recent
Noteworthy Decisions |
Czekalski v. Peters, 475 F.3d 360, 368, 99 FEP Cases
1121 (D.C. Cir. 2007), reversed the grant of summary judgment to the
Title VII gender discrimination defendant, relying in part on evidence
of the decisionmaker’s biased attitudes. The court described the evidence:
Burton Gifford, a male employee in AND, testified
that Donohue “just doesn’t give women, that I have observed, any credibility
for what they’re saying, or even acknowledge they said it, in some
cases.” Gifford Dep. at 80. He also testified that Donohue gave male
employees “preference in program responsibilities, which included
apparent forgiveness for slippag[es] in schedule and or costs,” while
treating female employees with similar difficulties dismissively.
. . . Another male employee, Dr. Charles Overby, testified that Donohue
treated women in a “sexist” and “demeaning” manner. . . .
Both men pointed to specific events to substantiate
their testimony. Gifford described an incident in which Donohue turned
his back on a female subordinate who disagreed with him in a meeting.
. . . (“[Donohue] turns away from it and refuses to deal with it when
women are making these comments. He just turns to someone else and
goes on with his agenda, as opposed to when a man ... makes that type
of statement.”). And Overby related an episode in which Donohue was
“cavalier and rude” to a high-ranking female administrator in a belittling
way—essentially telling her that “[y]ou don’t have to worry your head
about that.” . . .
(Citations omitted.) The court held that defendant’s reliance
on the theory that Donohue was an “equal-opportunity abuser” raised
a genuine issue of material fact precluding summary judgment.
Biased Remark Decision of the Year: Tomassi
v. Insignia Financial Group, Inc., 478 F.3d 111, 115–17, 99 FEP Cases
1445 (2d Cir. 2007), vacated the grant of summary judgment to the
ADEA defendant, based in large part on age-biased remarks suggesting
that the plaintiff was slowing down because of her age. The court
attempted to clarify Circuit precedent, and did so in a way very beneficial
to plaintiffs:
In ruling that Stadmeyer’s remarks lacked evidentiary
significance because they were “stray,” the court failed to apply
the correct standard. Instead of disregarding some of the evidence
because of such a classification, the court should have considered
all the evidence in the light most favorable to the plaintiff to determine
whether it could support a reasonable finding in the plaintiff’s favor.
We recognize that our precedents may have been somewhat
confusing. In some instances we have found the evidence legally insufficient
notwithstanding the incidence of discriminatory remarks. To explain
why the evidence was nonetheless insufficient, we noted that the remarks
were “stray.” That locution represented an attempt—perhaps by oversimplified
generalization—to explain that the more remote and oblique the remarks
are in relation to the employer’s adverse action, the less they prove
that the action was motivated by discrimination. For example, remarks
made by someone other than the person who made the decision adversely
affecting the plaintiff may have little tendency to show that the
decision-maker was motivated by the discriminatory sentiment expressed
in the remark. See, e.g., Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d
171, 182 (2d Cir.1992) (describing remarks as “stray” when made “in
the workplace by persons who are not involved in the pertinent decisionmaking
process”); cf. Rose v. New York City Bd. of Educ., 257 F.3d 156, 162
(2d Cir. 2001) (contrasting “the stray remarks of a colleague”with
“comments made directly to” the plaintiff by someone with “enormous
influence in the decision-making process”). The more a remark evinces
a discriminatory state of mind, and the closer the remark’s relation
to the allegedly discriminatory behavior, the more probative that
remark will be. See Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d
Cir. 1998) (explaining that the label “stray” is inappropriate where
“other indicia of discrimination” tie the remarks to an adverse employment
action); compare Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 162–63
(2d Cir. 1998) (rejecting the label “stray” where decision-makers
uttered age-related remarks near the time of plaintiff’s discharge),
with Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 n. 2
(2d Cir. 2001) (characterizing remarks as “stray” where they were
“unrelated to [the plaintiff’s] discharge”). Where we described remarks
as “stray,” the purpose of doing so was to recognize that all comments
pertaining to a protected class are not equally probative of discrimination
and to explain in eneralized terms why the evidence in the particular
case was not sufficient. We did not mean to suggest that remarks should
first be categorized either as stray or not stray and then disregarded
if they fall into the stray category.
The district court was also mistaken in the view
that the probative value of Stadmeyer’s remarks depended on how offensive
they were. The relevance of discrimination-related remarks does not
depend on their offensiveness, but rather on their tendency to show
that the decision-maker was motivated by assumptions or attitudes
relating to the protected class. Inoffensive remarks may strongly
suggest that discrimination motivated a particular employment action.4
For example, Stadmeyer’s assertion to the effect that Tomassi was
well suited to work with seniors was not offensive. Nonetheless, it
had a strong tendency in the circumstances to show that Stadmeyer
believed that, because of Tomassi’s age, she was not well suited to
deal with the younger tenants Stadmeyer was hoping to attract.
Finally, we do not understand why the district court
characterized Stadmeyer’s remarks as stray. The remarks were made
by the person who decided to terminate Tomassi. They could reasonably
be construed, furthermore, as explaining why that decision was taken.
A jury could reasonably construe Stadmeyer’s remarks, in all the circumstances,
as persuasive evidence that Stadmeyer believed a younger person would
be better suited to attract a young clientele to PCV/ST and that he
replaced Tomassi for that reason. We recognize that the defendant
attributes Stadmeyer’s dissatisfaction not to Tomassi’s age, but to
her increasingly slow and deficient job performance. It is perfectly
possible that the defendant’s explanation is the correct one. Nonetheless,
it is our obligation at this stage to interpret ambiguities in the
evidence in the light most favorable to the plaintiff.
Tomassi’s evidence included that (1) Stadmeyer made
age-related remarks to Tomassi every month or so; (2) he hired younger
employees while seeking to attract a younger clientele to PCV/ST;
(3) he affirmed the quality of Tomassi’s job performance, evidenced
by the promotion, raises, and praise she received throughout her employment,
including praise at the time of her firing5; (4) Stadmeyer made age-related
comments at Tomassi’s firing, especially to the effect that she was
well suited to work with seniors; and (5) she was replaced by a worker
38 years younger. We see no reason why the jury could not reasonably
find, on the basis of the evidence, that Stadmeyer was motivated by
age.discrimination in terminating Tomassi. The evidence in the aggregate
raises a triable question as to whether Stadmeyer’s actions were motivated
by age.
4 Age discrimination is unlike other discrimination
in that it is undeniable that a person’s faculties deteriorate with
time. Nonetheless, while age will eventually cause deterioration in
everyone, some people retain their faculties longer than others. The
ADEA does not prohibit the making of adverse employment decisions
based on an employee’s loss of faculties through the process of aging.
Rather, the ADEA requires the decision-maker to treat each individual
case on its merits, rather than assume that at a certain age deterioration
has occurred. See Danzer, 151 F.3d at 54–55 (indicating that deterioration
of job performance is an acceptable age-neutral justification for
termination).
5 We take issue with the district court’s
argument that because Stadmeyer “gave [Tomassi] positive evaluations,
promoted her, and granted her salary raises,” he was unlikely to have
fired her because of her age. Tomassi, 398 F. Supp. 2d at 272. First,
Tomassi’s promotion, pay raises, and positive evaluations cut directly
against the legitimate, non-discriminatory justification that Stadmeyer
has offered for her termination. Stadmeyer claimed in his deposition
and post-deposition affidavit that his decision to fire her was based
on her poor job performance--an argument strongly undermined by evidence
that she was a well-regarded employee. Second, the notion that Tomassi’s
work was esteemed by Stadmeyer is not necessarily inconsistent with
her account of his actions. Tomassi argues that Stadmeyer fired her,
not because of her work performance, but because he decided that a
younger face would attract a more-desirable demographic to PCV/ST.
Evidence showing he thought highly of Tomassi’s work does not contradict
this claim. Thus, Tomassi’s promotion, pay raises, and positive evaluations
are more consistent with her contentions than with the defendant’s.
(Footnote omitted.)
Silence Can Be a Biased Remark: Asmo v. Keane,
Inc., 471 F.3d 588, 594–95, 99 FEP Cases 678 (6th Cir. 2006), reversed
the grant of summary judgment to the Title VII pregnancy discrimination
defendant, holding that defendant’s selection of plaintiff for termination
in a RIF two months after learning of her pregnancy with twins gave
rise to an inference of a causal link, both for purposes of plaintiff’s
prima facie case and for purposes of showing pretext. The court stated
that a supervisor’s failure to congratulate plaintiff was evidence
of pretext:
The most significant evidence showing pretext is
Santoro’s conduct after Asmo announced she was pregnant with twins.
In October 2001, Asmo, Santoro and the entire SG & A team were
participating in a conference call, during which Asmo informed the
team that she was pregnant with twins. The news was met with congratulations
from all her colleagues except Santoro, who did not comment and then
“simply moved on to the next business topic in the conference call.”
. . . Santoro’s initial silence is suspect. Pregnancies are usually
met with congratulatory words, even in professional settings. When
people work together they develop relationships beyond the realm of
employment, and Asmo’s pregnancy was particularly noteworthy given
that she was pregnant with twins, a fairly unusual (and overwhelming)
occurrence.
Additionally, though Santoro conducted weekly conference
calls with the recruiters, he did not mention Asmo’s pregnancy again
until December 4, 2001, the day he terminated Asmo. Asmo’s job involved
considerable travel (forty to sixty percent of her time), something
an employer might be concerned about given the announcement that Asmo
was going to have twins, which most people know is a tremendous responsibility.Yet
Santoro did not talk with Asmo about how she planned to deal with
the impending arrival of her twins and/or what the company could do
to help accommodate her. Instead, he did not mention her pregnancy
at all. He also did not ask any of his colleagues to discuss Asmo’s
pregnancy with her, or to provide her with information about how the
company accommodates parents. Given the combination of Asmo’s job’s
being particularly demanding of time due to travel and her announcement
of not just a pregnancy, but a pregnancy of twins, Santoro’s silence
could be interpreted as discriminatory animus.
The court recognized that there might be completely satisfactory
reasons for Santoro’s silence, but held that such reasons were inappropriate
to explore on summary judgment. It continued: “Santoro’s silence is
evidence of pretext because it can be read as speculation regarding
the impact of Asmo’s pregnancy on her work, and an employer’s speculation
or assumption about how an employee’s pregnancy will interfere with
her job can constitute evidence of discriminatory animus.” Id. at
595 (citation omitted). Judge Griffin dissented. Id. at 598–601.
| |
2. Courts
Refusing to Rely on Biased Statements |
Fitzgerald v. Action, Inc.,
521 F.3d 867, 876-77, 103 FEP Cases 30, 44 EB Cases 1096 (8th Cir.
2008), affirmed the grant of summary judgment to the ADEA defendant
despite discriminatory remarks. “According to Fitzgerald, during the
course of his employment, Easley told him they were getting ‘too old
for that type of work’ and ‘needed to retire.’” . . . Fitzgerald claims
after the incident with Yandell, Easley’s ‘mood changed.’ . . . Instead
of referring to both of them, Easley began to comment Fitzgerald was
getting ‘too old for the job’ and ‘needed to retire.’ . . . In addition,
when asked who Action hired to replace Fitzgerald, Easley stated he
could not remember exactly who, but he ‘usually [didn't] hire older
guys ... because [younger guys] are cheaper to work, cheaper labor.’”
Id. at 876. The court continued:
“Stray remarks” standing
alone do not give rise to an inference of discrimination. . . . But,
neither are they irrelevant. . . . “[S]uch comments are ‘surely the
kind of fact which could cause a reasonable trier of fact to raise
an eyebrow, thus providing additional threads of evidence that are
relevant to the jury.’” . . . When combined with other evidence, stray
remarks “constitute circumstantial evidence that ... may give rise
to a reasonable inference of age discrimination.” . . .
Id. at 876-77. The court held that no inference of
age discrimination could be drawn because plaintiff’s ERISA comparator,
an employee three years younger with far worse conduct who had no
pending surgery and was retained, was in the protected age group,
and because of a “same company” extension of the “same decisionmaker”
rule. “Further, Action hired Fitzgerald when he was fifty and terminated
him when he was fifty-two. We have noted it is unlikely a supervisor
would hire an older employee and then discriminate on the basis of
age, and such evidence creates a presumption against discrimination.”
(Citation omitted) The court concluded: “Under different circumstances,
the remarks attributed to Easley might create an inference of discrimination.
In this instance, however, they are insufficient to overcome the presumption
created by the fact Action hired Fitzgerald at age fifty.” Id. at
877.
RTS Comment on Fitzgerald v. Action, Inc.:
The court clearly went off the rails on the age discrimination claim.
The derailment was in several steps. First, it classified the clear
indications of age bias as “stray,” without ever identifying any facts
or law that would bar the remarks from being considered as direct
evidence of discrimination. Second, the court never addressed the
fact that Easley seems to have been speaking to plaintiff within the
scope of his employment, making his remarks admissions of discrimination.
Third, the court never analyzed the permissibility of its rejection
of probative evidence in light of Reeves. Its one cited decision that
mentioned Reeves found that it was unnecessary to consider the permissibility
of drawing the inference of discrimination based only on discriminatory
remarks because there was other evidence suggesting discrimination.
Fourth, the court never analyzed the fact that plaintiff’s comparator
was three years younger than plaintiff. Fifth, the court never considered
the claim as a combined age-plus-ERISA discrimination claim. Sixth,
the court’s extension of the “same- actor” inference to a “same company”
inference was unsupported by any analysis. Seventh, the court sat
as a jury without even realizing it.
| |
3. Courts
Relying on Biased Statements |
Holcomb v. Iona College,
521 F.3d 130, 142-43, 102 FEP Cases 1844 (2d Cir. 2008), vacated the
grant of summary judgment to the Title VII defendant. The court relied
on numerous explicit racist statements made by plaintiff’s supervisor.
It explained:
This is obvious in the case of Petriccione, who was
apparently in the habit of making racially questionable remarks, and
who in particular is alleged to have made a strikingly racist remark
to Holcomb about him and his wife. In the case of Brennan, a reasonable
jury might conclude that he possessed a more subtle racial motive.
Viewing the evidence in the light most favorable to Holcomb, and bearing
in mind Brennan's apparent desire to appeal to Iona's mostly white
alumni base, a rational finder of fact could conclude that Brennan
had an incentive, for the purposes of alumni relations, to minimize
the number of African Americans involved with the basketball team.
Duncan v. Fleetwood Motor Homes of Indiana, Inc.,
518 F.3d 486, 493, 102 FEP Cases 1249 (7th Cir. 2008) (per curiam),
vacated the grant of summary judgment to the ADEA defendant. The court
held that, even if defendant had produced a legitimate nondiscriminatory
reason, biased statements by managers would have helped plaintiff
show pretext. “At his deposition Duncan also testified that before
he was removed from his job he overheard a production manager comment
that older workers cost the company a lot of money (Fleetwood itself
introduced this testimony at summary judgment). Additionally, as Stucky
was escorting Duncan out of the plant, Stucky made a comment that
could be construed as indicating that Duncan was removed because of
his age. Perhaps Stucky's words could be construed differently, but
finding meaning in ambiguous statements is the province of the jury.”
(Citation omitted.)
Davis v. Team Electric Co., 520 F.3d 1080, 1091-92,
102 FEP Cases 1641 (9th Cir. 2008), reversed the grant of summary
judgment to the Title VII defendant. The court relied on evidence
of discriminatory statements as helping to show pretext, and rejected
the lower court’s dismissal of the probative force of these statements:
Davis alleged a series of discriminatory comments
made by her supervisors. In one conversation, foreman Walsh pulled
her aside to tell her that he “felt uncomfortable” around her. In
the same conversation, he and Davis discussed her need to drop off
her child at daycare, and Walsh allegedly said “this is a man's working
world out here, you know.”In another incident, Davis told foreman
Loughary that her work was causing her neck pain. Loughary allegedly
responded that he would assign Burkitt to be her foreman because he
“needs a girlfriend.” At another point, Loughary allegedly said that
food for a meeting was only “for the guys.” Finally, when Davis told
a supervisor, Dave Davis, that she was doing most of the work entailing
exposure to Monokote, he allegedly said something to the effect of
“the guys don't mind having a girl working with them if they don't
complain.”
The magistrate judge disregarded Walsh's comments
because they were not tied to any job assignment on the Clackamas
County High School site, and Walsh did not transfer Davis. Even so,
a reasonable jury could conclude that Walsh's response that she was
in a “man's working world” is relevant evidence of pretext. A jury
could also infer pretext from Loughary's suggestion that she could
do another work assignment so that she could be a foreman's “girlfriend.”
The magistrate judge inexplicably dismissed Loughary's statement that
food was only “for the guys” as “not overtly gender-based.”7
The magistrate judge also disregarded Dave Davis's
comments because she found that there was no evidence that he had
any input into work assignments, and his comments expressed a “generalized
opinion about the mindset of male electricians.” The magistrate judge
clearly erred in suggesting that Dave Davis was a co-worker with no
managerial power. Davis asserts, and Team Electric does not deny,
that she “was put under him to work,” and that Dave Davis “made [her]
start picking up” her things at a certain time. The magistrate judge's
findings even go on to refer to Dave Davis as “one of her supervisors.”
Further, in assuming that Dave Davis was referring to electricians
in general rather than to Team Electric, the magistrate judge erred
in failing to view the evidence in the light most favorable to the
plaintiff.
7 Team Electric contends that Loughary
and Walsh's comments are not direct evidence of pretext because they
are not “clearly sexist . . . insulting, humiliating, intimidating
. . . derogatory . . . [or] threatening in any way,” and did not “unreasonably
interfere with Davis's work performance.” . . . This is not an unreasonable
interpretation of the comments, but it would also be reasonable for
a jury to infer otherwise. On summary judgment all inferences must
be drawn in favor of the moving party. . . . If the statements are
not direct evidence of pretext, they are at the least circumstantial
evidence from which a jury could infer pretext. “[A] single discriminatory
comment by a plaintiff's supervisor or decisionmaker is sufficient
to preclude summary judgment for the employer.” . . .
(Citations omitted.)
| |
4. Statements
by Decisionmakers |
Ash v. Tyson Foods, Inc.,
__ U.S. __, 126 S. Ct. 1195, 1197, 97 FEP Cases 641 (2006) (per curiam),
summarily vacated and remanded the Eleventh Circuit’s affirmance of
the grant of summary judgment to the Title VII and § 1981 racial discrimination
defendant. Plaintiffs were African-American. The court rejected the
lower court’s holding that the decisionmaker’s references to each
plaintiff as “boy” were not probative of racial discrimination unless
the term was modified by another term, such as a racial reference.
“Although it is true the disputed word will not always be evidence
of racial animus, it does not follow that the term, standing alone,
is always benign. The speaker's meaning may depend on various factors
including context, inflection, tone of voice, local custom, and historical
usage. Insofar as the Court of Appeals held that modifiers or qualifications
are necessary in all instances to render the disputed term probative
of bias, the court's decision is erroneous.”
Comment: The Court’s insistence
on consideration of context will in most cases mean that such remarks
must be evaluated by juries.
Miller-El v. Dretke, 545 U.S. 231, 263–64 (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 cited Reeves v. Sanderson Plumbing
Products, id. at 241, underscoring the relevance of this decision
to employment law. The Court relied on evidence of discriminatory
statements going back to the 1950’s, evidencing a policy of racial
discrimination that was not shown to have ended by the time of petitioner’s
trial. The Court also relied on the fact that prosecutors marked the
race of each prospective juror on their jury cards. Id. It rejected
the State’s argument that this was to ensure there would be no violation
of the rule of Batson v. Kentucky, 476 U.S. 79 (1986), because Batson
was not decided until a month after Miller-El was tried. Id. at 2339
n.38. The Court sharply criticized the Fifth Circuit’s unwillingness
to see the discrimination so plainly laid before it. Id. at 265–66.
Justice Breyer concurred. Id. at 266–73. Justice Thomas, joined by
Chief Justice Rehnquist and Justice Scalia, dissented. Id. at 274–307.
Treglia v. Town of Manlius, 313 F.3d 713, 13 AD Cases 1537
(2d Cir. 2002), reversed the grant of summary judgment to the ADA
retaliation defendant, holding that plaintiff had shown a triable
issue of fact as to pretext. Plaintiff was a police officer with high
evaluations and on track for promotions when he suffered epileptic
seizures for the first time. He was denied promotion although he achieved
the highest score on the civil service promotional examination, and
two lower-scoring officers were promoted. “When Treglia confronted
Chief Carbery about the failure to promote him, the Chief allegedly
responded that Treglia had always done a good job but that he would
not receive a promotion to sergeant ‘now or ever’ and that now was
a ‘good time for him to get out of the business.’” Id. at 717. After
he filed his charge of discrimination, he was retaliated against in
numerous ways, including being subjected to internal investigations
and being denied another promotion. Id. at 717–18. The court relied
on this remark, even though it occurred before the filing of the EEOC
charge, because plaintiff’s internal complaint was itself a protected
activity. Id. at 720. “Similarly, Treglia claims that when theChief
heard about Treglia’s discrimination charges the Chief told PBA President
Mark Buzzard that ‘if [Treglia] wants to play hard ball, we can swing
the bat back and play hard ball too.’” Id. at 721–22. The court held
that this statement was relevant even if made in the context of settling
a grievance relating to plaintiff, because “it could still be evidence
of retaliatory intent given Treglia’s claim that the manner in which
the discipline was brought and settled was itself retaliatory.” Id.
at 722.
Corti v. Storage Technology Corp., 304 F.3d 336, 338–89, 89
FEP Cases 1477 (4th Cir. 2002), affirmed the judgment on a jury verdict
for plaintiff, in the amount of $410,974.63 in back pay and prejudgment
interest, and $100,000 in punitive damages. The court relied in part
on evidence that one of the decisionmakers selecting her for demotion
in a RIF and ultimate termination—although on the same level as plaintiff—did
not work well with women, did not tell plaintiff about important meetings,
told her he was not used to having women as equals, and when part
of the team went to play golf, told plaintiff and another female employee
“that they should go shopping because golf was a ‘guy thing.’”
Machinchick v. PB Power, Inc., 398 F.3d 345, 353, 95 FEP Cases
152 (5th Cir. 2005), reversed the grant of summary judgment to the
ADEA defendant. The court relied on statements in a business plan,
some of them made at different times and for different purposes, to
provide an inference of age bias:
Machinchick presented evidence showing that weeks before he
was terminated, Knowlton sent an e-mail to several PB Power employees
discussing his intent to go forward with his plan to “strategically
hire some younger engineers and designers.” Although PB Power argues
that this plan applied only to engineers and designers hired in its
San Francisco office, Knowlton testified in his deposition that the
hiring plan was represented in PB Power’s business plan for 2002—which
applied generally to all of PB Power’s operations—via the goal of
hiring employees whose mindsets reside in the “21st Century.” Taken
together, Knowlton’s e-mail and PB Power’s business plan provide evidence
that PB Power intended to assemble a younger workforce, creating an
inference that Machinchick’s age was a factor in his termination.
(Footnote omitted.) The court continued:
Second, Machinchick points to Knowlton’s use of “age
stereotyping remarks” as evidence that he was terminated because of
his age. In his e-mail to Elizabeth Erichsen describing Machinchick’s
shortcomings, Knowlton claimed that Machinchick had a “[l]ow motivation
to adapt” to change. Knowlton expounded upon this claim in his deposition,
describing Machinchick as “inflexible,” “not adaptable,” and possessing
a “business-as-usual attitude.” We have found that purely indirect
references to an employee’s age, such as comments that an employee
needed to look “sharp” if he were going to seek a new job, and that
he was unwilling and unable to “adapt” to change, can support an inference
of age discrimination. Thus, Knowlton’s description of Machinchick
in both his e-mail and deposition gives rise to an inference that
Machinchick was terminated because of his age.
Id. (footnote omitted).
Rachid v. Jack In The Box, Inc., 376 F.3d 305, 315–16, 93
FEP Cases 1761 (5th Cir.2004), reversed the grant of summary judgment
to the ADEA defendant. The court relied in part on biased statements
by the decisionmaker over a period of time prior to the decision:
Rachid testified that Powers made numerous
ageist comments—including one situation where Powers allegedly said:
“[A]nd don’t forget it, [Rachid], you’re too old, too”—and Haidar
supported Rachid’s assertions that Powers continually made such comments.Rachid
even spoke with human resources prior to his termination to express
his fear that Powers would try to fire him because of his age. Despite
JIB’s focus on Teal-Guess’s investigation and company policy, it was
Powers who terminated Rachid, and it was Powers who repeatedly made
ageist comments to and about Rachid. Such comments preclude summary
judgment because a rational finder of fact could conclude that age
played a role in Powers’s decision to terminate Rachid.
Wexler v. White’s Furniture, 317 F.3d 564, 570–71, 90 FEP
Cases 1551 (6th Cir. 2003) (en banc), reversed the grant of summary
judgment to the ADEA defendant. The court held that the following
statements reflected the kinds of age stereotypes that Congress enacted
the ADEA to stop, and could reasonably be taken as reflecting age
bias:
(1) Schiffman’s comment, during the meeting in which
Wexler was demoted, “that you’re 60 years old, aren’t you, Don? .
. . [W]ell, we both have been in the business 117 years. You don’t
need the aggravation, stress of management problems, customer problems,
taking care of all these salespeople’s problems that keep calling
you on the phone all day every day.”
(2) Lively’s statement, at that same meeting, that
White’s was “going to really be grinding their managers in the future,”
making them do tasks that he did not think Wexler would want to be
doing.
(3) Schiffman’s comment during a telephone conversation
with Wexler on June 16, 1997, when he said that he would explain to
the other employees why Wexler would no longer be the manager by mentioning
“that you’re getting older, although not as old as I am.”
(4) Schiffman’s statement during his announcement
of the demotion that Wexler had come to him and said: “I’ve been in
my [sic] management for a bunch of years, and I’m not sure what I
want to do. Maybe I should just be worrying about my own customer[s]
and not everyone else’s customers. This is getting to be tiring.”
(5) Schiffman’s repeated references, during the same
speech, to the youth of Wexler’s replacement.
(6) Numerous prior references that Lively made about
Wexler’s age, including comments such as “a bearded, grumpy old man,”
“pops,” and “old man.”
The court relied on these statements in conjunction with other
evidence of age discrimination. Judges Krupansky and Boggs dissented.
Id. at 578–97.
Ezell v. Potter, 400 F.3d 1041, 1044, 95 FEP Cases 689 (7th
Cir. 2005), reversed the grant of summary judgment to the race, sex,
and age discrimination defendant on plaintiff’s claim of disparate
treatment. The court held that plaintiff showed direct evidence of
discrimination:
. . . Wright’s co-supervisor, Mike Pavlides, told
a new hire that their (Pavlides’s and Wright’s) plan was to get rid
of older carriers and replace them with younger, faster carriers.
Wright also frequently made disparaging remarks about older workers,
referred often to Ezell’s gray hair and beard, commented on his slowness
and suggested that because of his speed, he should consider another
line of work. Pavlides’s statement that he and Wright had a plan to
get rid of older workers and replace them with younger, faster workers
is direct evidence of discriminatory intent and is sufficient evidence
to allow Ezell to take his case to trial.
(Citations omitted.)
Obrey v. Johnson, 400 F.3d 691, 697, 95 FEP Cases 531 (9th
Cir. 2005), reversed the judgment on a jury verdict for the Title
VII defendant. Plaintiff is an Asian-Pacific Islander who claimed
that persons of his race were systematically excluded from senior
management positions at the Pearl Harbor Naval Shipyard. The lower
court excluded as irrelevant the testimony of an employee, Toyama,
who “was expected to testify that Shipyard officials had informed
him that off-yard employees were rotated to Pearl Harbor on a temporary
basis because the ‘local’ workers ‘were not good enough’ and ‘can’t
do a good job.’” The court held that this was an abuse of discretion
because the testimony tended to show defendant’s discriminatory state
of mind, and Toyama’s further expected testimony on the source of
the funds used to pay for offyard employees tended to show that defendant’s
stated explanations were pretextual.
Plotke v. White, 405 F.3d 1092, 1106–07, 95 FEP Cases 1025
(10th Cir. 2005), reversed the grant of summary judgment to the Title
VII defendant and held that remarks that the plaintiff historian was
hired because of affirmative-action pressures and calling her by her
first name while calling males with her academic credentials “Dr.”
was probative of gender discrimination:
Dr. Plotke’s final contention is that the district
court erred by rejecting as irrelevant to the pretext issue her evidence
of several incidents not directly related to the termination decision.
These incidents include but are not limited to: referring to Dr. Plotke
as “Jane” instead of “Dr.”; calling her a “femi-Nazi” and “wire-head”
. . . advising her that she “should be quiet and not make [her]self
noticed” . . .; remarking that her presence would prevent the all-male
group from “sitting around drinking beer, smoking cigars, and farting”
on a professional staff ride . . .; comments that CAC was under pressure
to hire a female historian; and disparaging Dr. Plotke’s professional
competence and yelling at her to “keep [her] mouth shut” in the presence
of her peers and supervisor.. . . The district court held that these
incidents “do not constitute direct evidence of gender discrimination”
. . . and that under McDonnell Douglas, they would only be considered
if offered as pretext evidence on the issue of the falsity of defendant’s
stated reasons for termination. We disagree.
* * *
The Supreme Court has emphasized that courts should
not reject a plaintiff’s evidence of additional circumstantial gender-based
comments and treatment simply because they “were not made in the direct
context of [the plaintiff’s] termination.”
Reeves, 530 U.S. at 151–53, 120 S. Ct. 2097. Accordingly,
we have held that genderbased comments by a plaintiff’s supervisor
can be relevant evidence of pretext demonstrating that the supervisor
had “preconceived notions premised on [the plaintiff’s] gender” and
“ultimately terminated her based at least in part on his gender bias,”
even where such comments were not directly limited to the termination
decision. . . . A plaintiff simply must show a nexus between the allegedly
discriminatory statements and the employer’s decision.
(Footnote and citations omitted.)
| |
5. Speakers
Who Affected, But Did Not Make, the Decision |
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 762–63,
77 FEP Cases 1 (1998), stated:
A tangible employment decision requires an official
act of the enterprise, a company act. The decision in most cases is
documented in official company records, and may be subject to review
by higher level supervisors. E.g., Shager v. Upjohn Co., 913 F.2d
398, 405 (C.A.7 1990) (noting that the supervisor did not fire plaintiff;
rather, the Career Path Committee did, but the employer was still
liable because the Committee functioned as the supervisor’s “cat’s-paw”).
The supervisor often must obtain the imprimatur of the enterprise
and use its internal processes. See Kotcher v. Rosa & Sullivan
Appliance Center, Inc., 957 F.2d 59, 62 (C.A.2 1992) (“From the perspective
of the employee, the supervisor and the employer merge into a single
entity”).
For these reasons, a tangible employment action taken
by the supervisor becomes for Title VII purposes the act of the employer.
Whatever the exact contours of the aided in the agency relation standard,
its requirements will always be met when a supervisor takes a tangible
employment action against a subordinate.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
152, 82 FEP Cases 1748 (2000), relied on plaintiffs’ evidence that
Chesnut was the actual decisionmaker even though not the formal decisionmaker.
Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d
277, 290–91, 93 FEP Cases 1 (4th Cir. 2004) (en banc), cert. dismissed,
543 U.S. 1132 (2005), affirmed the grant of summary judgment to the
Title VII and ADEA defendant. The court held: “In sum, to survive
summary judgment, an aggrieved employee who rests a discrimination
claim under Title VII or the ADEA upon the discriminatory motivations
of a subordinate employee must come forward with sufficient evidence
that the subordinate employee possessed such authority as to be viewed
as the one principally responsible for the decision or the actual
decisionmaker for the employer.” Id. at 290–91 (citation omitted).
Judge Michael dissented, joined by Judges Motz, Judge King, and Judge
Gregory. Id. at 299–305.
Tuttle v. Metropolitan Government of Nashville, 474 F.3d 307,
320, 99 FEP Cases 974 (6th Cir. 2007), reversed the grant of judgment
as a matter of law to the ADEA defendant, holding that age-discriminatory
statements helped show pretext:
During trial, Tuttle provided evidence of the following
age-related statements directed toward her: in February 2001, Sullivan,
Tuttle’s former supervisor, said to her, “how old are you? ... you
will be retiring quicker than you think”; in March 2001, Tucker, one
of Tuttle’s co-workers who supervised the office when Anderson was
out, authored an email to Anderson stating, “this woman has no business
on a PC”; on another occasion, when Tuttle asked Anderson whether
he was trying to “get rid” of her, Anderson replied, “there have been
others, and they took their retirement or pension”; in a meeting between
Anderson and Tuttle in July 2001, Anderson told her, “I want to apologize
for causing you stress. I wouldn’t want anything to happen to my mother
and dad.” While these statements may not rise to direct evidence of
age discrimination, they could have provided circumstantial evidence
to the jury of such discrimination.
Sun v. Board of Trustees of University of Illinois, 473 F.3d
799, 813–14, 99 FEP Cases 897 (7th Cir. 2007), affirmed the lower
court’s grant of summary judgment to the Title VII race and national
origin discrimination defendants. The court held that the remarks
of one influential faculty member—influential because he controlled
the allocation of millions of dollars in Federal funding for faculty
research—that he would not accept Chinese graduate students was a
“stray remark” that could still be probative of discrimination in
the tenure denial process, but that there were so many levels of review
that were not tainted by exposure to the remarks that the remarks
were not in this instance probative of discrimination. “Therefore,
Greene’s possibly improper motives cannot be imputed to the final
decisionmaker.” Id. at 814.
Ezell v. Potter, 400 F.3d 1041, 1051, 95 FEP Cases 689 (7th
Cir. 2005), reversed the grant of summary judgment to the race, sex,
and age discrimination defendant on plaintiff’s claim of disparate
treatment. The court held that plaintiff showed direct evidence of
discrimination because of the anti-white, anti-male, and anti-older
worker remarks of his supervisors, who provided the information on
which the decisionmaker acted:
Direct evidence is evidence which can be interpreted
as an acknowledgment of the defendant’s discriminatory intent. . .
. To constitute direct evidence of discrimination, a statement must
relate to the motivation of the decision-maker responsible for the
contested decision. . . . Again, Postmaster Dew accepted the recommendation
of Wright and Pavlides in deciding to terminate Ezell and therefore
the supervisors’ discriminatory motive may be imputed to Dew.
(Citations omitted.)
Lust v. Sealy, Inc., 383 F.3d 580, 584, 94 FEP Cases
645 (7th Cir. 2004), affirmed the judgment on liability for the Title
VII plaintiff, rejecting the Fourth Circuit’s holding on cat’s paw
testimony in Hill v. Lockheed Martin.
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6. Speakers
Who Were Not Aware of the Reasons for the Decision |
Brown v. Packaging Corp. of America, 338 F.3d 586, 92 FEP
Cases 522 (6th Cir. 2003), affirmed judgment on a jury verdict for
the ADEA defendant. The court rejected plaintiff’s argument that he
had direct evidence of discrimination, based on an asserted remark
by his supervisor that the reason he did not get a promotion to Temporary
Foreman is that the company wanted younger people and engineers to
fill the job. The court held that this was not direct evidence of
discrimination because there was no basis in the record to establish
that the supervisor knew the reason for the decision.
Johnson v. The Kroger Co., 319 F.3d 858, 91 FEP Cases 145
(6th Cir. 2003), reversed the grant of summary judgment to the defendant.
The court relied in part on racially-biased statements made by Newman,
a store official who did not have formal responsibility for making
the decision to remove plaintiff from his job, and stated: “Although
remarks made by an individual who has no authority over the challenged
employment action are not indicative of discriminatory intent, the
statements of managerial-level employees who have the ability to influence
a personnel decision are relevant.” Id. at 868 (citation omitted).
The court explained:
Newman not only supervised Johnson on a daily basis,
but also spoke with Noyes about the problems she identified during
her store visits in late 1995, assisted Noyes in preparing Johnson’s
performance review in January of 1996, and consulted with Noyes prior
to her ultimate decision to offer Johnson a new but diminished position.
Based upon these facts, we conclude that a jury could reasonably find
that Newman played a significant role in Noyes’s decisionmaking process.
Id. District Judge Rosen dissented. Id. at 869–78.
Juarez v. ACS Government Solutions Group, Inc., 314
F.3d 1243, 90 FEP Cases 1104 (10th Cir. 2003), affirmed the judgment
for the plaintiff in the amounts of $22,500 in back pay and $250,000
in punitive damages for racial and national origin discrimination
in a RIF. The court relied in part on evidence of biased statements:
“Appellee further presented evidence that Mr. Nesmith, ACS’s Site
Manager in charge of both operations and human resources at the facility
where Appellee worked, had made derogatory remarks about Mexican employees
shortly before the RIF. Although ACS argues that Mr. Nesmith had no
role in the selection of Appellee for termination, Appellee presented
sufficient evidence allowing the jury to reasonably infer that Mr.
Nesmith actually did participate in the termination decision.” Id.
at 1246.
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7. Other
Manager Speakers Who Were Not Decisionmakers |
EEOC v. Liberal R-II School District, 314 F.3d 920, 924, 90
FEP Cases 1032 (8th Cir. 2002), reversed the grant of summary judgment
to the defendant, holding that there was direct evidence of discrimination.
The age-biased statements of Superintendent Gretlein, describing the
bases on which the Board had decided not to renew plaintiff’s contract
as a bus driver, are described above. The court rejected the defendant’s
objection that Gretlein was not the decisionmaker: “We stress this
is not a case involving a nondecisionmaker who was not involved in
the decisionmaking process and who made stray age-related remarks.
Instead, this case involves a nondecisionmaker who was closely involved
in the decisionmaking process and who was directed to express the
decision of the decisionmakers to the employee and to the Missouri
Division of Employment Security.”
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1289–90,
102 FEP Cases 716 (11th Cir. 2008), affirmed the judgment on a jury
verdict for the Title VII and § 1981 retaliation plaintiff. The court
held that the lower court did not abuse its discretion in admitting
evidence of racial slurs uttered by Arthur Bagby and Hunter Bagby,
top officials of the company, outside the workplace and at least once
referring to Bagby employees, even though they were not decisionmakers.
The court held that utterance of the slurs was relevant to the existence
of racial harassment, was relevant to the company’s asserted antidiscrimination
policy, was relevant where uttered in front of the decisionmaker,
was relevant where uttered by the official who insisted on forcing
plaintiff to arbitrate the pending dispute and who rejected his proposed
amendment that would have exempted the pending dispute, was relevant
to the good-faith defense, was especially relevant where uttered on
company premises, and was relevant to impeach the officials. The racial
slurs, in short, were relevant.
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8. Temporal
Remoteness of the Biased Remarks |
Miller-El v. Cockrell, __ U.S. __, 123 S. Ct. 1029, 154 L.Ed.2d
931 (2003), reversed the Fifth Circuit’s denial of a certificate of
appealability (“COA”) from the denial of habeas corpus that had been
sought on a Batson challenge to the prosecutor’s striking of 10 of
11 African-American potential jurors. The standard was whether petitioner
demonstrated “‘that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.’” The
Court cited Reeves. It held that a 1968 racially biased statement
contained in an official manual was probative of racial bias in the
1986 peremptory challenges:
Of more importance, the defense presented evidence
that the District Attorney’s Office had adopted a formal policy to
exclude minorities from jury service. A 1963 circular by the District
Attorney’s Office instructed its prosecutors to exercise peremptory
strikes against minorities: “‘Do not take Jews, Negroes, Dagos, Mexicans
or a member of any minority race on a jury, no matter how rich or
how well educated.’”App. 710. A manual entitled “Jury Selection in
a Criminal Case” was distributed to prosecutors. It contained an article
authored by a former prosecutor (and later a judge) under the direction
of his superiors in the District Attorney’s Office, outlining the
reasoning for excluding minorities from jury service. Although the
manual was written in 1968, it remained in circulation until 1976,
if not later, and was available at least to one of the prosecutors
in Miller-El’s trial. Id., at 749, 774, 783.
The court also relied on other old evidence of biased statements:
A Dallas County district judge testified that, when
he had served in the District Attorney’s Office from the late-1950’s
to early-1960’s, his superior warned him that he would be fired if
he permitted any African-Americans to serve on a jury. Similarly,
another Dallas County district judge and former assistant district
attorney from 1976 to 1978 testified that he believed the office had
a systematic policy of excluding African-Americans from juries.
Vesprini v. Shaw Contact Flooring Services, Inc.,
315 F.3d 37, 90 FEP Cases 1038 (1st Cir. 2002), affirmed the grant
of summary judgment to the ADEA defendant. The 71-year-old plaintiff
and his son sold their flooring business to another company and the
plaintiff entered into a three-year contract to remain as President.
After a reorganization, Mahan, a 41-year-old, was named as plaintiff’s
supervisor. The court described the allegedly biased remarks: “Vesprini’s
immediate supervisor, Jay Houston, advised Vesprini that he was ‘not
going to be [with Shaw] much longer,’ that the time had come to ‘step
back and let the young stallions run the [day-to- day] business,’
but that Vesprini nevertheless would serve as Circle Floors’ ‘chief
executive officer’ and as a ‘mentor’ to both Mahan and Vesprini’s
son, Michael.” Id. at 39. The court held that the long time between
the remarks and the barring of plaintiff from the premises after his
outburst of profanity—from one and a half to two years—”severely undermines
the reasonableness of any inference that there existed a causal relationship
between the remarks and the subsequent decisionmaking by Shaw.” Id.
at 41–42 (citation omitted). Moreover, the court held, the remarks
were susceptible to a benign interpretation and were not intended
to humiliate the plaintiff. They were uttered as a “truism.” Id. at
42.
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9. Contentions
that Biased Remarks Were Isolated |
Johnson v. The Kroger Co., 319 F.3d 858, 868, 91 FEP Cases
145 (6th Cir. 2003), reversed the grant of summary judgment to the
defendant. The court relied in part on racially-biased statements
made by Newman, a store official, rejecting Kroger’s contention that
these remarks were not probative because they were isolated. “But
Newman’s comment does not stand alone. Instead, the manner in which
several employees observed him behave towards Johnson—behavior that
was claimed to be distinct from his interaction with Caucasian comanagers—reinforces
the possibility that Newman’s comment might have reflected racial
animus.” (Citation omitted.) District Judge Rosen dissented
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10. The
Relevance of Biased Remarks by Co-Workers |
Johnson v. The Kroger Co., 319 F.3d 858, 868–69, 91 FEP Cases
145 (6th Cir. 2003),reversed the grant of summary judgment to the
defendant. The court relied in part on racially-biased statements
made by Newman, a store official, rejecting Kroger’s contention that
these remarks were not probative because they were isolated. The court
stated: “Newman’s statement must also be viewed in connection with
the evidence concerning racial jokes and slurs prior to Johnson’s
arrival at the Wheelersburg store. Kroger emphasizes that Newman did
not listen to racial jokes, but instead told the department heads
not to tell them, and that he never heard the racial slurs that other
employees reportedly heard. A reasonable juror, however, could infer
that Newman’s awareness of racial jokes prior to Johnson’s arrival
at the store indicates that he harbored racially discriminatory views.”
District Judge Rosen dissented.
Bowen v. Missouri Department of Social Services, 311 F.3d
878, 884, 90 FEP Cases 782 (8th Cir. 2002), reversed the grant of
summary judgment to the white plaintiff complaining of racial harassment
by her African-American supervisor, Francine Lee. Bowen alleged that
Lee twice called her a white bitch, and made menacing gestures towards
her. The lower court found insufficient evidence that Lee’s conduct
was racially motivated. Reversing, the court of appeals stated:
The DSS argues, and the magistrate judge found, the
evidence established nothing more than Lee had an extreme, intense
dislike for Bowen unrelated to her race. We do not agree. Viewing,
as we must, the evidence in the light most favorable to Bowen, we
conclude she produced sufficient evidence from which reasonable jurors
could infer that Lee’s conduct toward Bowen was based on race. Lee’s
two “white bitch” epithets were explicitly racial and were directed
specifically to Bowen, a white woman. Because the epithets carried
clear racial overtones, they permit an inference that racial animus
motivated not only her overtly discriminatory conduct but all of her
offensive conduct towards Bowen.
(Citations omitted.)
Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d
30, 33–34, 87 FEP Cases 673 (1st Cir. 2001), vacated the grant of
summary judgment to the ADEA defendant, holding that a two-year series
of age-biased statements by the plaintiff’s direct supervisor, Larry
Cancel, coupled with the lack of contemporaneous documentary support
for his criticisms of her work performance and mutually conflicting
accusations of poor performance by different supervisors created a
jury issue. The plaintiff and others “quoted him as saying, among
other things, that the ages of his accounting employees added up to
more than a thousand years; that his employees were as old as Methuseleh
[sic]; that they were ‘old women,’ ‘a bunch of incapacitated people,’and
‘useless old women’ and that ‘what I have here is Social Security.’
Melendez also said that Cancel told her that she was an old hag, an
old lady and that ‘her age didn’t allow her to think.’”Id.
Vance v. Union Planters Corp., 209 F.3d 438, 442, 82 FEP Cases
1199 (5th Cir. 2000), affirmed the judgment of liability on the jury
verdict for the Title VII gender discrimination plaintiff, who had
not been selected for the position of branch bank president. The decisionmaker
was a man, Pat Davis, who offered the job to another man, Ed Neelly,
who turned it down and recommended the plaintiff. Davis explained
to Neelly that he wanted a “mature man” in the position, and went
on to offer the job to a number of other men, all but one of whom
turned it down and some of whom also ecommended the plaintiff for
the position. The court held that Davis’s remark was direct material
evidence of discrimination. “[W]orkplace remarks like Davis’s may
constitute sufficient evidence of discrimination if the remarks are
(1) related tosex; (2) proximate in time to the employment action;
(3) made by an individual with authority over the employment decision;
and (4) related to the employment decision at issue.” (Citationomitted.)
The court also held that the jury was entitled to treat Davis’s statement
on the witness stand at trial, to the effect that he wanted the “best
guy” for the job, as further evidence of gender discrimination. It
rejected the defendant’s effort to extend the “stray remarks” doctrine
to trial testimony, and explained:
Union Planters appears to advocate an extension of
the “stray remark” caselaw to cover witnesses’ statements at trial.
It presented no instance in which a court has ever applied its “stray
remark” jurisprudence to a witness’s trial testimony. Indeed, there
are at least three reasons why it would be unwise to do so in this
manner. First, the “stray remark” jurisprudence is itself inconsistent
with the deference appellate courts traditionally allow juries regarding
their view of the evidence presented and so should be narrowly cabined.
Second, one of the questions at issue in the Krystek test—whether
the remark is proximate in time to the employment decision—would always
be answered in the negative with respect to testimony at trial, even
though words from the dock seem particularly probative of actual state
of mine. Third, in-court testimony, unlike a stray remark made in
the workplace, allows the jury to evaluate the context of the remark
based on its observations of the witness’s demeanor. We decline, therefore,
to extend the doctrine in this manner.
Id. at 442 n.4. This evidence was supported by independent
circumstantial evidence.
Markel v. Board of Regents of University of Wisconsin System,
276 F.3d 906, 910–11, 87 FEP Cases 1131 (7th Cir. 2002), affirmed
the grant of summary judgment to the Title VII defendant, holding
that assertedly discriminatory statements cannot be considered direct
evidence of discrimination unless they are clearly discriminatory,
without resort to any inference or presumption, and unless they are
made contemporaneously with the challenged action.
EEOC v. University of Chicago Hospitals, 276 F.3d 326, 333,
87 FEP Cases 1089 (7th Cir. 2002), reversed the grant of summary judgment
to the Title VII religious-discrimination constructive-discharge defendant.
The court rejected the defendant’s assertions that the incidents surrounding
the constructive discharge themselves did not show religious discrimination.
It held that the decisionmaker’s references within the prior two months
to the charging party as a religious fanatic, and to the problems
the decisionmaker had with the charging party’s religious beliefs
and to her bringing religion into the workplace, her instruction to
a manager that he fire the charging party, the manager’s belief that
the instruction was based on religious animosity, and her firing the
manager when he refused to fire the charging party, were evidence
of a religious bias which, in combination with other evidence, was
sufficient to defeat summary judgment.
Ransom v. CSC Consulting, Inc., 217 F.3d 467, 468–70, 83 FEP
Cases 155 (7th Cir.2000), affirmed the grant of summary judgment to
the defendant. The court rejected plaintiff’s argument that the deposition
testimony of CEO Douglas Gray constituted direct evidence of discrimination.
Gray had testified that it was necessary to promote new people into
positions as officers, and to do so it was necessary to remove less
productive people. When asked why, he responded:
Because if the young people in the organization don’t
see a future, they’re going to leave, number one. Number two, the
younger people in the organization looked at the officers in the organization
in the mess that it was in. So the younger people, right or wrong,
the younger people in the organization look at the officers and say,
these are the people who put us in the position we’re in now. They
can’t be that good. So a) in order to provide--keep the younger people
from leaving, and b) presumably to refresh the officer group, you’ve
got to have people coming in. So that’s the reason for it.
Id. at 468–69. The court held that this statement was not
even probative of age discrimination, because the testimony was as
to corporate practices generally, and was not specifically directed
at the plaintiff. Moreover, the reference to “younger people in the
organization” was to more junior, lower-paid employees. Id. at 469.
The court also held that the word “refresh” does not have an age-biased
connotation. Id. at 470. The court did not discuss whether a jury
might be free to draw inferences different from those it drew on behalf
of the movant.
Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389, 82
FEP Cases 550 (7th Cir.2000), affirmed the grant of summary judgment
to the ADEA RIF defendant as to the claim of plaintiff Curran. The
court rejected the plaintiff’s argument that an instruction that the
decisionmaker should retain employees with the “longest-term potential”
was tantamount to an instruction to retain the youngest employees.
It stated: “Since younger employees tend to be more mobile than older
ones, there is no basis for an inference that employers interested
in the long-term potential of an employee prefer young to old.” Id.
The court stated that the fact that the defendant had tried to alter
the decisionmaker’s deposition testimony on this point was “too thin
a thread on which to hang a verdict” for the plaintiff. Id. at 390.
Comment of Richard Seymour on Thorn v. Sundstrand
Aerospace Corp.: The court did not identify any record evidence
supporting its assumption of greater mobility amongyounger employees,
or that would support an inference that the defendant had adopted
the same assumption, or that the defendant had acted on such an assumption,
or that a jury would be required as a matter of law to indulge in
the same assumption. The court provided no information indicating
that its assumption was a matter suitable for judicial notice. It
simply took its own notion of what made business sense, forced Curran
to lie on its Procrustean bed, and executed his claim because the
court could imagine a “spin” under which discrimination need not have
occurred. Plaintiffs can legitimately be required to produce evidence
from which discrimination may be inferred; it asks too much it they
are also required to produce evidence so strong as to evade every
simplistic assumption judges may make as to how employers behave.
McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 926,
87 FEP Cases 596 (10th Cir.2001), reversed the grant of summary judgment
to the Title VII and § 1981 defendant on both their hostile-environment
claim and their discriminatory-discharge claim. The facts of the hostile
environment claim are described below. The court held that the “totality
of the circumstances” test applies to the discharge claim as well
as the harassment claim, and that plaintiffs did not need to establish
a nexus between the harassing remarks and their termination unless
they were claiming that the remarks were direct evidence of discrimination
in their discharges.
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I. Independent
Investigations |
| |
1. The
Effect of Independent Investigations |
Insulation from Subordinate’s Influence is the Test:
Griffin v. Washington Convention Center, 142 F.3d 1308, 1312, 76 FEP
Cases 1526 (D.C. Cir. 1998), stated: “Thus do we join at least four
other circuits in holding that evidence of a subordinate’s bias is
relevant where the ultimate decision maker is not insulated from the
subordinate’s influence.” (Citations omitted.)
Independent Investigation Immunizes Defendant from
Assertedly Biased Input: King v. Rumsfeld, 328 F.3d 145,
153, 91 FEP Cases 1537 (4th Cir.), cert. denied, 540 U.S. 1073 (2003),
affirmed the grant of summary judgment to the Title VII race and sex
discrimination defendant. Plaintiff complained that supervisor Carlson
was biased against him and that this was shown by the testimony of
a substitute teacher, Fontenot, who stated that Carlson ordered her
to provide reviews that were critical of plaintiff’s performance.
The court held that this was not probative of discrimination in the
absence of evidence that the reviews were inaccurate. Thecourt stated:
And, even if Carlson’s demand of Fontenot is the
least bit probative that he harbored an unlawful motive for firing
King and so desired that she provide a pretext under which hecould
fire him, the fact is that Carlson did not fire King. Whitaker fired
King after conducting his own independent investigation of the matter,
and after Carlson had left the school. No evidence links to Whitaker
the motive King uses Fontenot’s testimony to ascribe to Carlson. Since
Carlson did not fire King, and since any motive Carlson had for pressuring
Fontenot is not attributable to Whitaker, Fontenot’s testimony could
only be relevant if the record contained evidence that Fontenot provided
reviews of King’s work that falsely attributed sub-par performance
to him and that King was fired at least partially on that basis.
(Emphases in original.) Judge Gregory concurred in
part and dissented in part.
Adequate Independent Investigation Immunizes Employer
from Effect of Non-Decisionmaker’s Bias; Inadequate Investigation
Makes the Decisionmaker the “Cat’s Paw” of the Bigot: Long
v. Eastfield College, 88 F.3d 300, 71 FEP Cases 750 (5th Cir. 1996),
affirmed the grant of summary judgment to the Title VII defendant
on the hostile-environment claims, but reversed the grant of summary
judgment on the retaliation claims.
The summary judgment evidence establishes that Aguero,
as President of Eastfield College, had the final authority to hire
and fire employees. Clark and Kelley, as supervisors in their respective
departments, had the authority to make recommendations concerning
the employment status of their subordinate employees. In this case,
Clark recommended that Long be terminated, and Kelley recommended
that Reavis be terminated. Aguero then made the final decisions to
terminate Long and Reavis. If Aguero based his decisions on his own
independent investigation, the causal link between Clark and Kelley’s
allegedly retaliatory intent and Long and Reavis’s terminations would
be broken. . . . If, on the other hand, Aguero did not conduct his
own independent investigation, and instead merely “rubber stamped”
the recommendations of Clark and Kelley, the causal link between Long
and Reavis’s protected activities and their subsequent terminations
would remain intact. . . . The degree to which Aguero’sdecisions were
based on his own independent investigation is a question of fact which
has yet to be resolved at the district court level. Viewing the evidence
in the light most favorable to Long and Reavis, we must assume on
appeal that Aguero merely “rubber stamped” the recommendations of
Clark and Kelley. . . . Accordingly, for the purposes of this appeal,
we find that Long and Reavis have presented sufficient evidence to
establish a causal link between their protected activities and their
terminations, and we hold that Long and Reavis have presented prima
facie cases for unlawful retaliation.
Id. at 307–08 (citations and footnotes omitted). Judge DeMoss
concurred in part and dissented in part. Id. at 310.
Investigations Going Beyond the Input of a Biased
Source Immunize the Employer, and the Employee Has the Duty to Complain
of the Bias in Order to Alert the Decisionmaker to the Need to Investigate
Further: Brewer v. Board of Trustees of University of Illinois,
479 F.3d 908, 100 FEP Cases 161 (7th Cir. 2007), affirmed the grant
of summary judgment to the Title VI and Title VII defendant, holding
that defendant was not liable for the possible racially discriminatory
motives of Thompson, the employee assertedly responsible for placing
plaintiff in a position to be fired because Hendricks, the decisionmaker,
had conducted an independent investigation going beyond Thompson’s
input. (This was another of these wellthought-out cases in which plaintiff’s
theory of the case nvolved an improper but nondiscriminatory reason
and would have required judgment for the defendant if the court had
accepted it, but defendant’s theory of the case would have allowed
a jury to infer that plaintiff’s termination was affected by discrimination.
Id. at 916.) The court explained its ruling:
But it is not enough just to have some minimal amount
of influence; did Thompson have the “singular influence” required
by Rozskowiak? For a nominal nondecision-maker’s influence to put
an employer in violation of Title VII, the employee must possess so
much influence as to basically be herself the true “functional[ ]
...decision-maker.” . . . The nominal decision-maker must be nothing
more than the functional decision-maker’s “cat’s paw.” . . . A good
example of such a degree of influence (and one which will offer a
revealing comparison to the present case) is where the party nominally
responsible for a decision is, by virtue of her role in the company,
totally dependent on another employee to supply the information on
which to base that decision. In such a case the employee that selects,
colors and supplies the information has such power over the nominal
decision maker that she is in fact the true, functional decision maker.
Mere “paper review” of the informer’s recommendation will not shield
the employer from liability if her recommendation is racially motivated.
. . .
By contrast, where a decision maker is not wholly
dependent on a single source of information, but instead conducts
its own investigation into the facts relevant to the decision, the
employer is not liable for an employee’s submission of misinformation
to the decision maker. . . . It does not matter that in a particular
situation much of the information has come from a single, potentially
biased source, so long as the decision maker does not artificially
or by virtue of her role in the company limit her investigation to
information from that source. For instance, we have frequently dealt
with employees that claim they were framed for misconduct by a racist
coworker or superior, which caused the employee in question to be
fired. Even though the employer in such situations must often decide
what to do based on nothing more than the conflicting stories of two
different employees, the employer will not be liable for the racism
of the alleged frameup artist so long as it independently considers
both stories.
Id. at 917–18 (citations omitted). The court then held that
the required scope of the independent investigation depended on whether
plaintiff had made a specific internal complaint alerting the decisionmaker
duty to the specific act of bias:
Brewer’s case is not distinguishable from these cases
in which an independent investigation absolves the employer of liability.
Though Thompson, as Hendricks’s assistant, might have effective control
over some of Hendricks’s decisions, the decision to fire Brewer was
not one of them. Hendricks listened to the information Thompson relayed
to her but did not simply rely on it. Instead, she examined the parking
tag herself and confirmed that it had been altered. True, Hendricks
did not investigate the possibility that Thompson was holding back
relevant information, but according to Hendricks, and unlike in Willis,
Brewer never claimed that Thompson was holding anything back. No one
has suggested that Brewer was unable to bring such a claim to Hendricks’s
attention, and until he did so Hendricks had no reason to suspect
that there were additional relevant facts that she had not investigated.
Cf. Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct.
2275, 141 L. Ed. 2d 662 (1998) (holding that an employer is not liable
for an employee’s sexual harassment where the plaintiff failed to
take advantage of corrective opportunities, such as a complaint procedure);
. . . . Hendricks therefore conducted an independent investigation
that absolved the University of liability for any deception on Thompson’s
part.
Id. at 919 (citations omitted). The court then disavowed earlier
Seventh Circuit decisions with less defense-friendly standards, id.
at 919–20, and summarized its new rule:
Even if we were to assume that a lesser degree of
influence over an employment decision might trigger Title VII liability
in other contexts, such as the context of a regularized, formal performance
evaluation, we do not think that such an approach can affect the outcome
in a case like this that concerns an employee’s discipline for particular
misconduct. The line of cases addressing this particular situation
is univocal, and indicates that even where a biased employee may have
leveled false charges of misconduct against the plaintiff, the employer
does not face Title VII liability so long as the decision maker independently
investigates the claims before acting.
Requiring only an independent investigation of misconduct
charges makes good sense in light of the practical realities that
an employer often faces when addressing such charges. Title VII is
informed by traditional principles of agency law, see 42 U.S.C. §
2000e–2(a)(1), Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754–55,
118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775, 791–92, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998),
but those principles should be applied in light of the practical reasons
for imposing liability on employers. Faragher, 524 U.S. at 797, 118
S. Ct. 2275; see also Burlington Indus., 524 U.S. at 755, 118 S. Ct.
2257 (holding that “common-law principles may not be transferable
in all their particulars to Title VII”). Title VII’s primary objective
is “not to provide redress but [to] avoid harm” by giving employers
an incentive to control their employees. Erickson v. Wis. Dept. of
Corr., 469 F.3d 600, 605–06 (7th Cir. 2006); see also Burlington Indus.,
524 U.S. at 764, 118 S. Ct. 2257 (“Title VII is designed to encourage
the creation of antiharassment policies and effective grievance mechanisms.”).
Consequently, employers should be liable for their employees’ racism
only in “the general class of cases in which [an employer] has the
practical ability to head off injury to [its] employee’s . . . victim.”
Shager, 913 F.2d at 405. Imposing liability for employee wrongs that
an employer could not practically prevent (that is, could prevent
only with prohibitive expense or through unreasonable efforts) would
not induce employers to impose additional controls on its employees
and would therefore not be effective to avoid any harm.
In cases like the present one, there is probably
no practical step an employer can take beyond independently investigating
the misconduct charges that will reduce the chances of an employee’s
racism influencing its behavior. When an employee is accused of wrongdoing
by another, the key evidence for an employer (and the courts) to consider
will often be the mere say-so of two employees, one of whom claims
the other is a lying racist. Such a case is a model “swearing contest.”
The best way the courts can find to deal with such puzzles is to empanel
a jury and hope for the best; it might be too demanding to expect
an employer to do more than have an employee conduct a fairminded,
independent investigation into the available evidence and then make
a decision in good faith.
Id. at 920–21.
Independent Investigation Bars Imputation to the Decisionmaker
of Another’s Bias: Richardson v. Sugg, 448 F.3d 1046, 98
FEP Cases 401(8th Cir. 2006), stated: “This circuit’s ‘cat’s paw’
rule provides that ‘an employer cannot shield itself from liability
for unlawful termination by using a purportedly independent person
or committee as the decisionmaker where the decisionmaker merely serves
as the conduit, vehicle, or rubber stamp by which another achieves
his or her unlawful design.’ . . . Where a decisionmaker makes an
independent determination as to whether an employee should be terminated
and does not serve as a mere conduit for another’s discriminatory
motives, the ‘cat’s-paw/ theory fails.”
Reliance on Independent Investigation Breaks Causal
Link Between Biased Remarks and Challenged Decision: Vasquez
v. County of Los Angeles, 349 F.3d 634, 640–41, 92 FEP Cases 1630
(9th Cir. 2003), as amended (9th Cir. 2004), affirmed the grant of
summary judgment to the Title VII defendant. In the course of rejecting
plaintiff’s argument that he had shown direct proof of discrimination,
the court held that the decisionmaker’s independent investigation
barred any inference of a causal link between a non-decisionmaker’s
biased remarks and the challenged decision:
Vasquez has offered no direct evidence of discriminatory
intent. Direct evidence is “evidence which, if believed, proves the
fact [of discriminatory animus] without inference or presumption.”7
The only evidence Vasquez offers are the remarks of Berglund. However,
Berglund was not the decisionmaker, and Vasquez has offered no evidence
of discriminatory remarks made by Leeds. Therefore, Vasquez must show
a nexus between Berglund’s discriminatory remarks and Leeds’ subsequent
employment decisions.8 Vasquez has not shown the necessary nexus because
Leeds conducted her own thorough investigation, and as mentioned above,
Vasquez presents no evidence that discriminatory animus motivated
Leeds’ decision.9 To the extent that Berglund’s remarks and Leeds’
knowledge of prior conflicts between Vasquez and Berglund constitute
circumstantial evidence of discriminatory intent, this evidence is
insufficient to make out a prima facie case. Therefore, Vasquez must
proceed under the McDonnell Douglas framework.
7 Godwin, 150 F.3d at 1221 (internal quotation
marks omitted) (alteration in original).
8 DeHorney v. Bank of Am. Nat’l Trust
& Sav. Assoc., 879 F.2d 459, 468 (9th Cir.1989).
9 See id.; see also Willis v. Marion County
Auditor’s Office, 118 F.3d 542, 548 (7th Cir. 1997) (refusing to impute
racial bias of subordinates who reported rule violation to superior
because superior did her own independent investigation); Long v. Eastfield
Coll., 88 F.3d 300, 306–07 (5th Cir. 1996) (noting that, if final
decisionmaker based decision on independent investigation, causal
link between subordinate’s retaliatory motive and plaintiff’s termination
would be broken).
Judge Ferguson dissented. Id. at 647–656.
| |
2. Rebuttals
to Independent-Investigation Defenses |
Where there is Evidence Challenging the Independence
of the Determination or the Decisionmaker’s Exclusive Reliance on
an Independent Investigation, the Jury Must Determine the Issue: Laxton
v. Gap Inc., 333 F.3d 572, 584, 92 FEP Cases 76 (5th Cir. 2003), reversed
the grant of judgment as a matter of law to the Title VII pregnancy-discrimination
defendant, and held that the grant of a new trial to defendant was
an abuse of discretion. The court held that whether defendant actually
relied on an independent investigation was doubtful, and was a question
for the jury:
Rather, the discriminatory animus of a manager can
be imputed to the ultimate decisionmaker if the decisionmaker “acted
as a rubber stamp, or the ‘cat’s paw,’ for the subordinate employee’s
rejudice.” . . . The relevant inquiry is whether Jones “had influence
or leverage over” Carr and Dotto’s decisionmaking. . . . Jones issued
Laxton’s Written Warning. Carr issued Laxton’s Final Written Warning,
but Carr testified that Jones served as her primary source of information.
Gap makes the somewhat implausible assertion that Carr and Dotto did
not rely on the two warnings when they decided to terminate Laxton,
but instead relied solely on the “independent investigations” of Inglis
and Licona. This position is inconsistent with Gap’s proffered justification
for Laxton’s discharge, namely, the cumulative effect of violations
of company policy including those cited in the Written Warning and
Final Written Warning. The degree to which Carr and Dotto relied on
the “independent investigations” is a question of fact for the jury.
. . .Given that the Written Warning and the Final Written Warning
represent Strikes One and Two in Gap’s “three-strikes-you’re-out policy,”
the jury could have reasonably concluded that these warnings influenced
Carr and Dotto’s decisionmaking.
Gap’s reliance on Wallace for the proposition that
Jones did not influence the final decisionmakers is, again, off-the-mark.
Like Jones, the declarant in Wallace was the terminated employee’s
direct supervisor. Also like Jones, the Wallace declarant participated
in the factfinding leading to the plaintiff’s termination. In both
cases, the supervisors’ discriminatory animus arguably colored their
actfinding. The final decisionmakers in Wallace, however, did not
rely on the Wallace declarant’s factfinding to terminate the plaintiff
because the plaintiff in that case freely admitted to the final decisionmakers
that she committed the violation for which they fired her. . . . Here,
by contrast, Laxton never admitted to Carr and Dotto that she committed
the violations charged in the Final Written Warning. Indeed, Carr
herself testified that she relied on Jones for the facts underlying
these violations. The jury could have therefore reasonably inferred
that Jones “had influence or leverage over” Carr and Dotto, such that
it would have been proper for the jury to impute Jones’s discriminatory
animus to Carr and Dotto.
(Citations omitted.)
EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles,
450 F.3d 476, 487–88, 98 FEP Cases 571 (10th Cir. 2006), cert. dismissed,
__ U.S. __, 127 S. Ct. 1931, 167 L.Ed.2d 583 (2007), stated: “To prevail
on a subordinate bias claim, a plaintiff must establish more than
mere ‘influence’ or ‘input’ in the decisionmaking process. Rather,
the issue is whether the biased subordinate’s discriminatory reports,
recommendation, or other actions caused the adverse employment action.
. . . This standard comports with the agency law principles that animate
the statutory definition of an ‘employer.’ See RESTATEMENT § 219 (describing
the scope of a master’s liability ‘for the torts of his servants’
and thereby incorporating standard tort concepts like causation).”
(Citation omitted.) The court held that the decisionmaker’s investigation
was too inadequate to break the causal chain.
| |
J. Evidence
Considerations Relating to Disparate Impact |
Sledge v. Goodyear Dunlop Tires North America, Ltd., 275 F.3d
1014, 87 FEP Cases 823, 81 E.P.D. ¶ 40,828 (11th Cir. 2001) (per curiam),
reversed the grant of summary judgment to the Title VII and § 1981
racial discrimination defendant and held that a reasonable jury could
find that the black plaintiff was qualified to be a maintenance mechanic
and that the company’s examinations for mechanic “were nothing more
than a pretext for racial discrimination.” Id. at 1019. The plaintiff
applied for vacant mechanic positions and was not interviewed. At
his request, his supervisors signed a letter to Human Resources stating
that he was qualified. The Plant Engineer then devised a test. The
plaintiff applied for the next two openings, and was not allowed to
take the test. Two whites who had not taken the test were promoted.
He protested, but applied for another vacancy, and was not allowed
to take the test. The white promotee had failed the test. The Plant
Engineer then rewrote the test to include drawing and verbal problems.A
white applicant was told to disregard the word problems and passed.
The company finally allowed the plaintiff to take the test, but insisted
he take it at the end of a twelve-hour shift. He passed the practical
but failed the word problems. The union pursued a grievance on behalf
of a white employee, and an arbitrator ruled that the white employee
could take the test again. The plaintiff was also given the opportunity
to take the test again. A new test was devised, neither man passed,
and the white employee received the promotion. Id. at 1016–18. The
court noted that, at the time the plaintiff filed suit, there was
only one black Mechanic in the Maintenance Department, out of 107.
Id. at 1019. It described the evidence of discrimination as “compelling.”
Id. at 1020.
| |
K. Evidence
Considerations Relating to Constructive Discharge |
EEOC v. University of Chicago Hospitals, 276 F.3d
326, 332, 87 FEP Cases 1089 (7th Cir. 2002), reversed the grant of
summary judgment to the Title VII constructive-discharge defendant.
The court held that a plaintiff can show constructive discharge not
only by showing an intolerable working environment, but also by showing
that the employer has acted “in a manner so as to have communicated
to a reasonable employee that she will be terminated,” and that the
employee has then resigned. The lower court had held that the conditions
at the time the plaintiff submitted her resignation letter—such as
the fact that she had been told by her supervisor while she was on
vacation that an asserted mistake was the “‘last straw’” and, when
she returned, she found that her belongings were packed and her office
was being used for storage space—were irrelevant, because she had
prepared the resignation letter ahead of time. Reversing, the court
of appeals stated that even though the letter had been prepared ahead
of time, “her decision to submit that letter could have surely been
based on” those conditions, (Emphasis in original.)
| |
L. Evidence
Considerations Relating to Reductions in Force |
Windham v. Time Warner, Inc., 275 F.3d 179, 190,
87 FEP Cases 843 (2nd Cir. 2001), vacated the grant of summary judgment
to the Title VII racial-discrimination RIF defendant because the lower
court failed to understand the plaintiffs’ argument. Plaintiffs did
not argue that the defendant made a bad decision by choosing to terminate
three black employees in a RIF, but argued that the decisionmaker
did not consider white employees for the RIF. “From the admitted facts
and the inferences raised by the record, a reasonable jury could find
Harvey gave McLoughlin and Sherman additional responsibilities to
make their jobs indispensable after she knew the department was overstaffed.”
In addition, the court found that all employees had engaged in the
types of negative conduct that the decisionmaker had relied on to
justify the termination of the plaintiffs.
| |
M. Evidence
Considerations Relating to Summary Judgment |
| |
1. Effect
of Contradictions in the Employer’s Case |
Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d
30, 87 FEP Cases 673 (1st Cir. 2001), vacated the grant of summary
judgment to the ADEA defendant, based in part on the fact that the
defendant’s officials could not get their stories straight. Some accused
her of things that others exonerated her for, and defended her for
things that the others attacked her for, and there was no contemporaneous
documentation supporting any of it.
Allen v. Chicago Transit Authority, 317 F.3d 696, 699–700, 90 FEP
Cases 1229 (7th Cir. 2003), reversed the grant of summary judgment
to the defendant. The court stated: “When a witness repeatedly contradicts
himself under oath on material matters, and contradicts as well documentary
evidence likely to be accurate (the time sheets, for example, whose
reliability was attested by several witnesses), the witness’s credibility
becomes an issue for the jury; it cannot be resolved in a summary
judgment proceeding.” (Citations omitted.)
McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 921,
87 FEP Cases 596 (10th Cir. 2001), reversed the grant of summary judgment
to the Title VII and § 1981 defendant, because the lower court failed
to indulge all reasonable inferences in favor of the nonmoving party,
and “ignored some of the facts presented, permitting it to resolve
what otherwise would be material facts more propriately reserved for
a rational jury.” The court summarized the evidence of racial harassment
and the contradictions in the defendant’s evidence as to the plaintiffs’
firing, and cautioned against the grant of summary judgment in such
circumstances:
Thus, All Star’s “business judgment” with the jargon
of economics, efficiency, bottom lines and profit is not impervious
to alternative proof. The court’s inquiry is not whether the employer
made the best choice, but whether it was the real choice for terminating
Plaintiffs. With no evidence of the criteria used to evaluate the
basis for the decision to retain one painting crew over the other
in the face of the inconsistencies and contradictions in the record,
the court improperly resolved questions of fact reserved for the jury.
Id. at 926.
Earlier Failure to Complain Raises Jury Question:
Velazquez-Garcia v. Horizon Lines Of Puerto Rico, Inc., 473 F.3d 11,
19, 181 LRRM 2097 (1st Cir. 2007), reversed the grant of summary judgment
to the USERRA defendant. The court held that the lower court erred
in dismissing plaintiff’s descriptions of anti-military comments as
self-serving, in part because he had not reported such comments earlier.
Finally, the fact that Velázquez failed to report
the remarks earlier is not dispositive. Cf. Faragher v. City of Boca
Raton, 524 U.S. 775, 808, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998)
(holding that plaintiff’s failure to report sexual harassment is not
an affirmative defense to a Title VII claim where plaintiff was discharged).
In an atmosphere such as a working seaport, it is reasonable for a
person to avoid making a scene over such behavior, or even to believe
that the behavior is only in jest, only to discover too late that
it was a harbinger of worse discrimination to come. Velázquez’s failure
to report the behavior may be considered by a jury in judging his
credibility, but it is evident to us that a jury could reasonably
decide to place no weight on his prior silence. Thus, it is a jury
that should ultimately decide.
Cardenas v. Massey, 269 F.3d 251, 261–62, 87 FEP Cases 19
(3rd Cir. 2001), reversed the grant of summary judgment to the defendants
on the plaintiff’s Title VII and New Jersey Law Against Discrimination
racial harassment claim against certain defendants. The alleged harassment
included performance evaluations and the practice of assigning all
minority employees to the one unit headed by a minority manager. The
court stated: “We cannot say that the District Court’s evaluation
of the evidence was not a reasonable one for a trier of fact to reach.
However, the District Court declined to examine the possibility that
defendants’ “management decisions” masked discriminatory intent. As
this court has previously emphasized, the advent of more sophisticated
and subtle forms of discrimination requires that we analyze the aggregate
effect of all evidence and reasonable inferences therefrom, including
those concerning incidents of facially neutral mistreatment, in evaluating
a hostile work environment claim.”
McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 926,
87 FEP Cases 596 (10th Cir.2001), reversed the grant of summary judgment
to the Title VII and § 1981 racial and ethnic harassment defendant.
The court held that whether there was actionable conduct depended
on the “totality of the circumstances” test, and suggested that summary
judgment is not an appropriate means to resolve at least some such
cases:
Finally, we would observe the totality of the circumstances
analysis in cases like the one before us obviates what would otherwise
be the court’s call in deciding how many racist comments constitute
harassment or whether general profanity and vulgarity mixed with specific
racial, ethnic, or sexual epithets equate to the sum of pervasiveness
required by Harris. Rather, by framing the evidence of summary judgment
within the context of this particular workplace, we eliminate the
suggestion that a certain number of comments is or is not actionable,
as All Star has advanced, and leave the resolution to the trier of
fact.
| |
3. Summary
Judgment in Pattern-and-Practice Cases |
Thiessen v. General Electric Capital Corp., 267 F.3d 1095,
1108–09 (10th Cir. 2001), cert. denied, 536 U.S. 934 (2002), reversed
the grant of summary judgment to the ADEA defendant. The court reversed
the lower court’s decertification of the class, and discussed the
effect of a pending pattern-and-practice claim on summary judgment
adjudication:
As with defendants’ motion to decertify, proper consideration
of defendants’ motion for summary judgment must take into account
the fact that Thiessen and the optin plaintiffs were asserting a pattern-or-
practice claim. Although there is little case authority discussing
summary judgment motions in pattern-or-practice cases, we see no reason
why summary judgment motions cannot be aimed at both the first and
second stage issues. Presumably, however, such motions must be analyzed
in light of the orders of proof peculiar to pattern-or-practice cases,
and must be filed and considered at an appropriate stage of the proceedings.
During the first stage of a pattern-or-practice case, for example,
a summary judgment motion (whether filed by plaintiffs or defendants)
must focus solely on whether there is sufficient evidence demonstrating
that defendants had in place a pattern or practice of discrimination
during the relevant limitations period.. . . Until the first stage
is resolved, we question whether it is proper for a court to consider
summary judgment motions regarding second stage issues (i.e., whether
individual plaintiffs are entitled to relief). Even assuming, arguendo,
such motions can properly be considered prior to resolution of the
first stage, it is clear they would not be analyzed under the typical
McDonnell-Douglas framework. . . . Instead, they would operate under
the presumption that (1) defendants had in place a pattern or practice
of discrimination, and (2) all employment decisions regarding the
class plaintiffs were made pursuant to that pattern or practice. .
. .
(Footnote and citations omitted.)
| |
N. Defense
Mental Examinations, Often Misnamed “Independent” |
Nuskey v. Lambright, 251 F.R.D. 3 (D.D.C. 2008), held that
a sexual harassment plaintiff seeking $300,000 in emotional-distress
damages had thereby placed her physical and mental state in issue,
and compelled her to submit to a defense mental examination. The court
stated at p. 8:
Ms. Nuskey also argues that her case is distinguishable
from the cases in which I have ordered an IME because “the recurrent
theme in each of [those] decisions is the plaintiff's proffer of an
expert opinion, a claim of permanent mental injury, and / or a concession
that the mental condition of plaintiff was in controversy.” Pl. Opp.
at 9. The absence of these factors, which are elements of the Turner
test, does not alter the critical fact that the Bank would be at a
significant disadvantage if forced to defend itself against Nuskey's
claims without the benefit of an IME. Whether she has explicitly “conceded”
that her mental condition is in controversy is of no matter because
her complaint and discovery responses make clear that she is seeking
to recover damages relating to her mental condition-which is, as a
result, at issue. That she is not claiming a permanent mental injury
is also irrelevant; whether permanent or not, she is claiming compensatory
damages of $300,000-hardly a nominal amount-that consist of, amongst
other things, several years of past and future therapy. That the injury
for which she seeks compensation is not “permanent” is a distinction
without a difference. Finally, her decision not to call an expert
witness should have no bearing on the Bank's ability to test her theory
of damages, especially where she intends to call a doctor to testify
about her mental condition. It is her claim of damages, not her presentation
of evidence, that trigger's the Bank's interest in an IME.
Roberson v. Bair, 242 F.R.D. 130 (D.D.C. 2007), held that
a discrimination and retaliation plaintiff claiming $300,000 in emotional-distress
damages and relying on assertions of two mental-distress disorders,
and who would likely rely on expert testimony at trial, must undergo
a defense mental examination by a psychiatrist and a psychotherapist.
The court rejected her claim that defendant could get the information
it sought by deposing her treating physician.
Weberg v. Franks, 229 F.3d 514, 526 n.13, 84 FEP Cases 291
(6th Cir. 2000), reversed the grant of summary judgment to the defendant
Michigan correctional officials and officers but held that many of
the statements in plaintiff’s verified Complaint must be disregarded
“because they were not made with Plaintiff’s personal knowledge, or
were otherwise based on hearsay.”
(Citation omitted.)
Markel v. Board of Regents of University of Wisconsin System,
276 F.3d 906, 912, 87 FEP Cases 1131 (7th Cir. 2002), affirmed the
grant of summary judgment to the Title VII defendant. The court held
that an affidavit could not be considered when it was not sworn, not
certified, and signed by plaintiff’s counsel instead of by the witness.
Luckie v. Ameritech Corp., 389 F.3d 708, 714, 94 FEP Cases
1351 (7th Cir. 2004), affirmed the grant of summary judgment to the
Title VII racial harassment defendant, because plaintiff did not show
actionable harassment. The court rejected plaintiff’s argument that
the affidavit of decisionmaker Patterson was hearsay when she referred
to conversations she had had with others in which they made statements
criticizing plaintiff’s performance, because the statements were offered
to prove the state of the decisionmaker’s mind, rather than the truth
of the matter.
Abuan v. Level 3 Communications, Inc., 353 F.3d 1158, 1170–72,
93 FEP Cases 94 (10th Cir. 2003), affirmed the judgment for the ADEA
plaintiff. The court upheld the lower court’s admission of a statement,
by a corporate Vice-President (and former supervisor of the plaintiff),
at a luncheon commemorating the Vice-President’s resignation, that
one of the reasons he was resigning was the company’s unethical treatment
of the plaintiff. The court held that the statement was admissible
under Fed. R. Evid. 801(d)(2)(D) because it was the statement of an
official of the defendant, as to a matter within the scope of his
authority to speak, made while he was an official and had such authority.
| |
3. Reprimand
of Supervisor for Imposing Insufficient Discipline |
Sellers v. Mineta, 350 F.3d 706, 92 FEP Cases 1665 (8th Cir.
2003), affirmed the denial of a new trial in plaintiff’s assault and
battery case against John Joseph, a co-worker at the FAA, for allegedly
attempting to rape her in her home, harassing her at work, and pinching
her buttocks at work. When the FAA finally investigated plaintiff’s
complaints, the following occurred:
FAA supervisor Willie Moore interviewed Joseph and,
at the end of the interview, told Joseph to stay away from Sellers.
Afterward, a letter officially reprimanding Moore for inadequately
handling the matter (hereinafter “the Moore reprimand letter”) was
placed in Moore’s personnel file. The Moore reprimand letter states
as one of the grounds for reprimand: “Failure to assess the proper
penalty when the facts are known and disciplinary action is warranted
(including acts of sexual harassment or other types of prohibited
discrimination).”
At trial, over the objections of both Joseph and
the Secretary, Sellers was permitted to introduce the Moore reprimand
letter into evidence during her case-in-chief.Four days after the
Moore reprimand letter was introduced, Joseph requested that the letter
be stricken from the record or, alternatively, that a limiting instruction
be given.The district court denied both requests.
Id. at 709. Joseph argued that the letter was too prejudicial
to be admitted under the F.R.E. 703 balancing test, that the lower
court improperly commented on the letter (see below), and that “was
hearsay evidence offered for the truth of the statement that acts
of sexual harassment had occurred.” Id. at 710–11. The court disagreed,
stating that the letter “was relevant to show, not that sexual harassment
had actually taken place, but that the FAA did not take adequate steps
tomrespond to the problem and that Sellers found the pinching incident
to be offensive (an issue which Joseph contested at trial).” Id. at
711.
| |
4. Exclusion
of Evidence Not Produced in Discovery |
Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020,
1027–28, 92 FEP Cases 641 (9th Cir. 2003), cert. denied, __ U.S. __,
124 S. Ct. 1602 (2004), affirmed the § 1981 jury verdict for $360,000
in compensatory damages and $2,600,000 in punitive damages, $86,000
in lost wageson the on the breach of contract claim, and a remitted
$86,000 in double damages for willful withholding of wages and benefits
under Washington law. The court held that the trial court did not
abuse its discretion in refusing to admit an unsigned, undated antidiscrimination
policy produced for the first time at trial and facially applicable
only to a related company, where there was no evidence that any employee
of defendant had ever seen it. The court held that failure to produce
the document in discovery was by itself an adequate basis for its
exclusion, and that defendant’s excuse that “‘there was a rash of
discovery’” was inadequate. Alternatively, the court held that the
lack of foundation was an adequate basis for its exclusion.
| |
5. Exclusion
of Witness Not Listed in Pretrial Order |
Sellers v. Mineta, 350 F.3d 706, 711–12, 92 FEP Cases 1665
(8th Cir. 2003), affirmed the denial of a new trial in plaintiff’s
assault and battery case against John Joseph, a co-worker at the FAA,
for allegedly attempting to rape her in her home, harassing her at
work, and pinching her buttocks at work. The court held that the lower
court did not abuse its discretion in barring the testimony of a witness
Joseph wanted to call, who had not been listed in the pretrial order.
“Joseph also argues that, even though Warren was not on his pretrial
witness list, the prospect of her testimony could not have surprised
Sellers because Warren’s name was on both Sellers’s and the Secretary’s
pretrial witness lists. In any event, Joseph suggests, the more appropriate
remedy would have been to grant a continuance, not to exclude Warren’s
testimony entirely.” Rejecting all of these arguments, the court stated:
In the present case, Joseph provided no justification
for failing to include Warren on his pretrial witness list, nor did
he suggest any reason why Sellers should have expected Warren to testify
on his behalf. Had Warren been identified on Joseph’s witness list,
Sellers might have taken additional steps to prepare for her testimony,
including, for example, taking her deposition. Warren’s anticipated
testimony, as described at trial by Joseph’s attorney (i.e., that
Sellers had looked for Joseph and perhaps that the two had been seen
together), even if true, would not necessarily disprove or even undermine
Sellers’s allegations against Joseph. Finally, as to the suggestion
that a continuance would have been appropriate, it does not appear
that Joseph ever asked for a continuance. Even if he had, the district
court could properly have denied the request.The issue arose late
in the trial, at a point where a continuance would undoubtedly have
been disruptive to the proceedings and everyone involved. The district
court did not abuse its discretion in refusing to allow Warren to
testify on Joseph’s behalf.
Id. at 712.
Flannery v. Recording Industry Ass’n of America, 354 F.3d
632, 638, 93 FEP Cases 65 (7th Cir. 2004), reversed the Rule 12(b)(6)
dismissal of the ADEA and ADA plaintiff’s Complaint, holding that
statements in plaintiff’s EEOC charge that were arguably inconsistent
with those in the Complaint to which it was attached and Amended Complaint
did not estop him from making the assertion in his Complaints and
were only evidentiary admissions that could be used to impeach him
at trial. The court stated that “this court has long held that, when
a document contradicts a complaint to which it is attached, the document’s
facts or allegations trump those in the complaint. . . . This principle
is a sister doctrine of our rule applied in the summary judgment context
that a party cannot create a genuine issue of material fact by contradicting
prior sworn testimony.” It continued: “These doctrines, however, must
be applied with caution. As we said in Bank of Illinois, “[a] definite
distinction must be made between discrepancies which create transparent
shams and discrepancies which create an issue of credibility or go
to the weight of the evidence.” . . . Credibility and weight are issues
of fact for the jury, and we must be careful not to usurp the jury’s
role. . . . For this reason, these doctrines are only triggered upon
a threshold determination of a ‘contradiction,’ which only exists
when the statements are ‘inherently inconsistent,’ . . . not when
the later statement merely clarifies an earlier statement which is
ambiguous or confusing on a particular issue.” (Footnote and citations
omitted.) The court noted that neither the EEOC nor notice pleading
required “a detailed elaboration of the events underlying the plaintiff’s
claim,” id. at 639, and stated: “The statements at issue could be
read differently and infer an inconsistency, but the mere necessity
of making that inference confirms that the inconsistency is not inherent.”
Id. at 640.
Allen v. Chicago Transit Authority, 317 F.3d 696, 700, 90
FEP Cases 1229 (7th Cir.2003), reversed the grant of summary judgment
to the defendant. The court held that the lower court erred by failing
to consider the defendant’s investigator’s stated disbelief of the
decisionmaker as a nonbinding evidentiary admission. The court explained:
The district court refused to give any weight to
the finding by the CTA’s own investigator that Tapling’s explanation
for Reilly’s promotion was not credible. This was another error. The
finding was admissible as an admission made by an employee of a party
opponent within the scope of his employment, Fed. R. Evid. 801(d)(2)(D)
. . . ; and as an investigative report of a public agency. Fed. R.
Evid. 803(8)(C) . . . . How much weight to give such admissions (for
they are evidentiary rather than judicial admissions and hence not
binding . . . is for the jury to decide, not the judge in ruling on
a motion for summary judgment.
(Citations omitted.)
Bell v. E.P.A., 232 F.3d 546, 551–52, 84 FEP Cases 630 (7th
Cir. 2000), reversed the grant of summary judgment to the Title VII
race and national origin promotional discrimination defendant because
the plaintiffs’ qualifications, compared to those of the selectees,
and their statistical showing, would have allowed a reasonable factfinder
to infer discrimination. The court also held that an internal EPA
document, a memorandum written by a member of the selection panel
stating that some of the plaintiffs were superior to the selectees,
was admissible under FED. R. EVID. 801(d)(2)(D) as an admission by
a party opponent.
Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d
687, 689, 82 FEP Cases 913 (7th Cir. 2000), affirmed the grant of
summary judgment to the ADEA RIF defendant. The court held that the
plaintiff’s Local Rule 12(N) statement of contested facts was not
an adequate response to the defendant’s statement of uncontested facts,
because it did not meet the requirement of the local rule that each
statement of contested fact be supported by citations to the record.
“‘An answer that does not deny the allegations in the numbered paragraph
with citations to supporting evidence in the record constitutes an
admission.’” (Citation omitted.) The court held that the plaintiff’s
submission of evidence of additional contested facts could not undo
his admissions, but would be considered along with his admissions.
Eliserio v. United Steelworkers of America Local 310, 398
F.3d 1071, 1078, 95 FEP Cases 421 (8th Cir. 2005), reversed the grant
of summary judgment to the Title VII and § 1981 harassment and retaliation
claims. The Hispanic plaintiff crossed a picket line during a strike,
and resigned from Local 310. He thereafter became the target of graffiti
referring to him as a “rat” and using racial slurs such as “Taco Bob”
and “Ratserio.” Six years after the crossing, Local 310 purchased
“No Rat” stickers in support of the graffiti campaign. The court held
that the local could not be held liable simply because its members
were engaging in the graffiti campaign, but that the union was potentially
liable for its encouragement of a campaign of harassment including
racial slurs that was intended to affect the terms and conditions
of plaintiff’s employment. It held that statements by union officials
were probative of intent:
An affidavit by former Firestone employee Robert
Osterhout supports Eliserio’s claim that Local 310 officials purchased
the stickers to support the graffiti campaign against Eliserio. Osterhout
avers that, in the course of distributing the stickers, Local 310
executive board member Terry Welch told him the stickers were targeted
at Eliserio. In addition, Osterhout claims that Vonk and Osterhout’s
union steward, Andy Byrkette, stated on more than one occasion that
they would “stop at nothing to get rid of” Eliserio.
Local 310 asks us to discount the affidavit because
of questions surrounding Osterhout’s credibility, but issues of credibility
are for a jury to determine. . . . Local 310 also argues that the
alleged statements were inadmissible hearsay because its officials
were not acting as agents of the union at the time they made the comments
reported by Osterhout. . . . On the contrary, Welch’s statement was
allegedly made while distributing the union-purchased stickers. Although
Osterhout provided little context for Vonk’s alleged statements, the
statements were made in regard to a matter of union concern and in
the presence of a union steward. Based upon the summary judgment record,
we conclude that Vonk’s alleged statements were made within the scope
of his duties as a union official. Therefore, the statements of Welch
and Vonk reported by Osterhout are not hearsay and should be considered
as admissions of a party-opponent. See FED. R. EVID. 801(d)(2).
Tinder v. Pinkerton Security, 305 F.3d 728, 735–36, 89 FEP
Cases 1537 (7th Cir. 2002), affirmed the lower court’s confirmation
of the arbitration award. Following the standard used for summary
judgment, the court stated that, where the defendant presented competent
evidence as to the existence of a fact, the plaintiff cannot rebut
it by stating that she “does not recall” its having happened.
| |
8. Prior
Claims of Discrimination |
Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771, 774–77,
87 FEP Cases 219, 81 E.P.D. ¶ 40,807 (7th Cir. 2001), affirmed the
$50,000 judgment on a jury verdict for the ADEA plaintiff. The court
held that the lower court did not abuse its discretion in barring
evidence of the plaintiff’s prior discrimination claims with respect
to six other employers at which he had applied. The court held that
the evidence of a series of false or insincere applications at other
dealerships cannot be admitted Under Rule 404(b), F. R. Evid., to
show that the plaintiff was litigious, but could be admitted under
the same rule to show a plan, scheme, or modus operandi. Even if relevant,
however, the court held that the lower court acted within its discretion
in barring the evidence because its probative value was outweighed
by the danger of prejudice against the plaintiff.
Cremin v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
328 F.Supp.2d 865 (N.D. Ill. 2004), held that the arbitrators resolving
claims under a settlement agreement’s claims resolution process may
consider a prior arbitral finding that defendant had engaged in a
pattern and practice of sex discrimination.
| |
9. Other
Employees’ Claims of Discrimination |
Hatley v. Hilton Hotels Corp., 308 F.3d 473, 475–76, 89 FEP
Cases 1861 (5th Cir.2002), reversed the grant of judgment as a matter
of law on plaintiffs’ Title VII sexual harassment claims. The court
relied in part on the defendant’s inadequate investigation and failure
to provide relief on earlier complaints. The court held that the testimony
of other employees was relevant to show that defendant had earlier
been placed on notice that particular employees, who had harassed
the plaintiffs, might be harassing women. Id. at 476 n.1.
Fine v. Ryan International Airlines, 305 F.3d 746, 753, 89
FEP Cases 1543 (7th Cir. 2002), affirmed the judgment on a jury verdict
for the Title VII retaliation plaintiff. The court rejected defendant’s
argument that the lower court erred in admitting the testimony of
two other female employees who testified to numerous instances of
sexual harassment and discrimination. The court held that this estimony
was relevant to Ryan’s good-faith belief that she was complaining
of actionable sexual discrimination. Id. at 753–54.
Molnar v. Booth, 229 F.3d 593, 603–04, 83 FEP Cases 1756 (7th
Cir. 2000), affirmed the judgment on the jury verdict for plaintiff
on her § 1983 and Title VII sexual harassment and retaliation claims
against the East Chicago Community School Corp and defendant Principal
Booth. The court held that the lower court did not abuse its discretion
by admitting evidence of defendant Principal Booth’s “come on” to
a former employee, Christine Kolavo, because “Rule 404(b) allows the
admission of evidence of other acts if it tends to prove facts like
intent, preparation, and absence of mistake.” Id. at 603. Even if
the lower court had erred in allowing the evidence, held the court,
it would have been harmless error. “Both defendants took advantage
of ample opportunities at trial to argue that Booth’s actions toward
Kolavo were not discriminatory and that East Chicago did not derive
any notice from them. Furthermore, the evidence did not report shocking
behavior; it was about a simple social request that the listener found
inappropriate and that was rebuffed. The jury was thus able to place
this one piece of evidence in its proper perspective.
Williams v. ConAgra Poultry Co., 378 F.3d 790, 794, 94 FEP
Cases 266 (8th Cir. 2004), affirmed the judgment on a jury verdict
for the Title VII, § 1981, and Arkansas Civil Rights Act racial harassment
and termination plaintiff, including the remitted awards of $173,156
in compensatory damages and $500,000 in punitive damages on the termination
claim and compensatory damages of $600,000 on the harassment claim,
but ordered that the punitivedamage award on the harassment claim
be remitted to $600,000 from the jury’s verdict of $6,063,750. The
court held that plaintiff could not rely, for purposes of his harassment
claim, on discriminatory actions of which he was unaware, because
that would violate his duty to show that the working environment was
subjectively hostile. The court held that such evidence is still relevant,
because it adds to the credibility of plaintiff’s testimony of the
hostile environment to which he was subjected. In addition, the court
held that such evidence bears on plaintiff’s termination and retaliation
claims, as well as on punitive damages:
Evidence of widespread toleration of racial harassment
and disparate treatment condoned by management was relevant to its
motive in firing Mr. Williams. We believe that evidence of racial
bias in other employment situations could permissibly lead to the
inference that management was similarly biased in the case of Mr.
Williams’s firing. Furthermore, Mr. Williams alleged that part of
the motivation for firing him was that he had complained about the
racially hostile environment at the plant and that management wished
to silence him in order to avoid addressing the issue. Evidence of
the extent of the hostile environment was thus probative on the matter
of managerial motives. . . .Furthermore, as we discuss below, the
issue of motive was relevant to Mr. Williams’s eligibility for punitive
damages on his harassment claim . . . even if the conduct of which
he was unaware was not relevant to the question of whether he experienced
actionable harassment.
(Citations omitted.)
Obrey v. Johnson, 400 F.3d 691, 697–99, 95 FEP Cases 531 (9th
Cir. 2005), reversed the judgment on a jury verdict for the Title
VII defendant. Plaintiff is an Asian-Pacific Islander who claimed
that persons of his race were systematically excluded from senior
management positions at the Pearl Harbor Naval Shipyard. The lower
court excluded the anecdotal evidence of three shipyard employees
who believed they had suffered from racial discrimination in promotions.
The court held that this was an abuse of discretion. It noted that
anecdotal testimony is important in establishing a pattern and practice
of discrimination, and that the proffered testimony made plaintiff’s
claim more credible. It rejected the lower court’s rationale that
allowing the testimony would have resulted in time-wasting mini-trials,
and that this justified exclusion of the testimony:
We recognize, however, that the district court retains
broad discretion to determine whether the probative value of the evidence
at issue is substantially outweighed by considerations of “undue delay,
waste of time, or needless presentation of cumulative evidence.” Fed.
R. Evid. 403 . . . . Nevertheless, none of the testimony that the
appellant attempted to offer into evidence so clearly involved delay
that was “undue” or a “waste of time” or was cumulative of other evidence
that it was excludable. Rather, the testimony was offered to show
that the defendant had a discriminatory motive when it enied his promotion
because it had unlawfully rejected other applicants in circumstances
similar to his, and tended to support his pattern or practice theory.
While the jury naturally has to determine the redibility of witness
testimony in order to assess the weight it should be accorded, this
is not the sort of undue delay and waste of time that the Rules contemplate.
We acknowledge that the trial court was properly
concerned with the prospect of mini-trials on the witnesses’ own claims
of discrimination. The trial court should have first addressed these
concerns with the parties through other, less restrictive means. On
balance, we believe that this proposed testimony was likely to be
relevant, and Rule 403 considerations do not warrant exclusion in
this case. Consequently, we find that the district court abused its
discretion when it excluded this testimony. On remand, the district
court, of course, will retain discretion to decide that the witnesses’
claims so overwhelm the issues in the trial that their testimony must
be excluded under Rule 403.
Id. at 698–69 (citations omitted). The court held that there
is a presumption of prejudice and that, because the testimony had
not yet been adduced, it was not possible to find that the exclusion
caused no prejudice. Id. at 699–702.
| |
10. Disaggregating
the Evidence |
O’Rourke v. City of Providence, 235 F.3d 713, 727–33 (1st
Cir.), reversed the lower court’s grant of judgment as a matter of
law to defendant after the first trial and directed reinstatement
of the first jury’s verdict for the Title VII sex discrimination and
sexual harassment plaintiff. The evidence involved repeated acts of
harassment against the plaintiff. The court held that “a jury may
consider a broad range of conduct that can contribute to the creation
of a hostile work environment,” that the incidents need not be motivated
by sexual desire, and may include “work-sabotaging pranks,” the “‘silent
treatment,’” and any act “which undermines her ability to succeed
at her job.” Id. at 729. The court then discussed the manner in which
such evidence is to be assessed:
Courts should avoid disaggregating a hostile work
environment claim, dividing conduct into instances of sexually oriented
conduct and instances of unequal treatment, then discounting the latter
category of conduct. Such an approach defies the Meritor Court’s directive
to consider the totality of circumstances in each case and “rob[s]
the incidents of their cumulative effect.” . . .Moreover, such an
approach not only ignores the reality that incidents of nonsexual
conduct--such as work sabotage, exclusion, denial of support, and
humiliation--can in context contribute to a hostile work environment,
it also nullifies the harassing nature of that conduct. An employer
might escape liability, even if it knew about certain conduct, if
that conduct is isolated from a larger pattern of acts that, as a
whole, would constitute an actionable hostile work environment. Thus,
employers would lack the incentive to correct behavior that, like
more overtly sexual forms of harassment, works against integrating
women into the workforce.
Id. at 730 (citations and footnote omitted).
| |
11. Prior
Deposition Testimony As Limiting Trial Testimony |
Fine v. Ryan International Airlines, 305 F.3d 746, 753, 89
FEP Cases 1543 (7th Cir. 2002), affirmed the judgment on a jury verdict
for the Title VII retaliation plaintiff. The court rejected defendant’s
argument that plaintiff’s deposition testimony limited her claim.
The court explained:
Ryan also seems to believe that Fine cannot now argue
that any of the events she complained about in her October 2 letter
were discriminatory because she stated in her deposition that there
were no incidents that she considered sexually harassing from April
25, 1996, until the date of her termination. But why not? A party
is free to contradict her deposition testimony at trial, although
her opponent may then introduce the prior statement as impeachment.
. . . The jury could have reasonably believed that Fine’s earlier
statement was an error or that her statement referred only to workplace
harassment and not to disparate treatment in regard to training and
personnel files. There was enough evidence for the jury to find that
Fine had a good-faith, objectively reasonable belief that Ryan was
discriminating against her on the basis of her sex, and we will not
disturb its finding.
(Citation omitted.)
Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 924–25, 83
FEP Cases 311 (7th Cir 2000), affirmed the grant of summary judgment
to the Title VII pay discrimination defendant. The plaintiffs were
female bakery and deli clerks, who were classified as department clerks
in the collectively-bargained pay scale and claimed that they should
be paid the same as produce clerks, most of whom were male, who were
classified as regular clerks in the CBA pay scale. The court held
that the lower court properly excluded the analysis of Dr. Howard
Risher, plaintiffs’ expert, and spoke in terms suggesting the testimony
was incompetent as well as failing to meet the standards required
for expert testimony. “Talking off the cuff—deploying neither data
nor analysis—is not an acceptable methodology.” Id. at 924 (citations
omitted).
Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212
F.3d 976, 980, 82 FEP Cases 1217 (7th Cir. 2000), reversed the grant
of summary judgment to the defendant on plaintiff’s Title VII retaliation
claim. The court accepted, for purposes of summary judgment, the plaintiff’s
evidence that the defendant had a progressive discipline policy that
it did not follow with respect to the plaintiff. The court rejected,
as “absurd,” the defendant’s argument that an employee is not competent
to testify to the existence of an employment policy.
Stuart v. General Motors Corp., 217 F.3d 621, 635–36 n.20,
84 FEP Cases 871 (8th Cir. 2000), affirmed the grant of summary judgment
to the Title VII retaliation defendant. The court held that two sets
of handwritten notes could not be considered as part of the summary
judgment record because they were authenticated based on personal
knowledge. “To be considered on summary judgment, documents must be
authenticated by and attached to an affidavit made on personal knowledge
setting forth such facts as would be admissible in evidence or a deposition
that meets the requirements of FED. R. CIV. P. 56(e). Documents which
do not meet those requirements cannot be considered.”
Dodoo v. Seagate Technology, Inc., 235 F.3d 522, 528–29, 84
FEP Cases 933 (10th Cir. 2000), affirmed the judgment on a jury verdict
for the ADEA and Title VII plaintiff as to promotions to a Program
Manager position and a Product Line Manager position. The court held
that the lower court did not abuse its discretion in allowing plaintiff’s
former supervisor, Dr. Randy Clark, to testify about his evaluations
of the plaintiff and his opinion that plaintiff was the best applications
engineer in the Oklahoma facility, although the defendant’s decisionmakers
did not rely on Clark’s evaluations, because the testimony helped
establish that plaintiff was qualified for the positions at issue,
and its probative value outweighed any prejudicial effect.
| |
13. Plaintiff’s
Own Testimony |
Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d
46, 53, 83 FEP Cases 569 (1st Cir. 2000), affirmed in part, and reversed
in part, the grant of summary judgment to the Title VII sex discrimination
and retaliation defendant. The court rejected the defendant’s and
Magistrate Judge’s views that the plaintiff’s affidavit, executed
after receipt of the defendant’s summary judgment motion, contains
“self-serving statements” that “should be given less credibility than
other evidence in the record.” The court did not mention any basis
for distinguishing the statements made in the defendant’s affidavits
as less self-serving than the plaintiff’s statements. It stated:
The law regarding this dispute is clear. To the extent
that affidavits submitted in opposition to a motion for summary judgment
merely reiterate allegations made in the complaint, without providing
specific factual information made on the basis of personal knowledge,
they are insufficient. . . . However, a “party’s own affidavit, containing
relevant information of which he has first-hand knowledge, may be
self-serving, but it is nonetheless competent to support or defeat
summary judgment.” . . . Santiago-Ramos’ affidavit contains more than
the allegations made in her complaint: it provides specific factual
information based upon her personal knowledge. It may be self-serving,
but it complies with the requirements of the federal rules, and we
therefore must consider it together with the other evidence before
the magistrate judge.
(Citations omitted.)
Szymanski v. Rite-Way Lawn Maintenance Co., Inc., 231 F.3d
360, 364–65 (7th Cir.), reversed the grant of summary judgment to
the ADA termination defendant. The court rejected the lower court’s
holding that plaintiff’s unsupported assertions that he had been hired
were “self-serving” and insufficient to defeat summary judgment. The
court held that this doctrine was inapplicable. It had originated
in a case in which defendants repeatedly altered their testimony to
create disputed facts. Here, by contrast, both sides relied on affidavit
and deposition testimony. The court held that defendant’s submissions
in support of summary judgment were just as unsupported and self-serving
as plaintiff’s submissions in opposition, and that this was no ground
for considering plaintiff’s submission to be nonprobative. “Where
the moving party’s version of material facts is supported solely by
self-serving assertions, self76 serving assertions to the contrary
by the nonmoving party may be sufficient to create a credibility dispute
which is best resolved at trial.” Id. at 365.
Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212
F.3d 976, 978 (7th Cir.), affirmed the grant of summary judgment to
the defendant on plaintiff’s Title VII sexual harassment claim, holding
that no actionable conduct was involved. The court refused to consider
plaintiff’s post-deposition affidavit, stating that “she gives us
no reason to depart from the presumption that an affidavit which seeks
to bolster a party’s prior deposition is not entitled to consideration.”
(Citations omitted.)
| |
14. Inferences
Arising from Destruction of Records |
Caparotta v. Entergy Corp., 168 F.3d 754, 79 FEP Cases 752
(5th Cir. 1999), vacated the judgment on a jury verdict for the plaintiff
and remanded the case for a new trial. A box of documents in the custody
of the defendant’s in-house counsel was inadvertently destroyed, including
one irreplaceable file: the Supervisor’s File on the plaintiff. The
lower court conducted a pretrial evidentiary hearing and found that
the defendant had not acted in bad faith and that the plaintiff was
not entitled to an adverse inference. Over the objection of the defendant,
the in-house counsel for the defendant was called to the stand during
the jury trial to testify about the inadvertent destruction of documents.
The destruction of documents was a prominent feature of plaintiff’s
opening and closing statements. Id. at 756–57. The court of appeals
stated that the destruction of the evidence might have harmed the
plaintiff, but that it was unduly prejudicial to reveal the facts
of the destruction to the jury through the testimony of one of the
defendant’s counsel seated at its counsel table. Id. at 757–58. The
court stated:
Certainly, the prejudicial impact of such testimony
from Entergy’s counsel was substantial. Additionally, it was confusing
to the jury because it was unclear as to which issue the evidence
was relevant. At points throughout the trial, it appeared that the
parties were relitigating the spoliation issue which had been resolved
by the district court at an earlier evidentiary hearing. To say the
least, this was a highly extraordinary method of informing the jury
that documents were inadvertently destroyed. It would have been more
appropriate for the district court to have informed the jury that
the documents had been inadvertently destroyed and that the district
court found no bad faith on the part of Entergy.
Id. The court stated that the probative value of the evidence
was minimal, if any, and that its admission affected the substantial
rights of the defendant. Judge Dennis dissented. Id. at 758– 62.
Hall v. Bodine Electric Co., 276 F.3d 345, 358–59, 87 FEP
Cases 1240 (7th Cir. 2002), affirmed the grant of summary judgment
to the Title VII sexual harassment defendant. The court held that
no inference of pretext arose from the fact that the investigator
destroyed his original notes after typing them up on a computer. It
stated that employers are not required to keep every piece of scrap
paper, and that the investigator’s reasons for throwing out his original
notes—that the original notes were rough and contained misspellings
and cross-outs, that the typed version contained virtually everything
in the notes, and to preserve confidentiality—were plausible. The
court did not question the consistency of the second and third reasons.
Moreover, there was substantial evidence supporting the nvestigator’s
conclusion that the plaintiff had herself sexually harassed other
men at work, including the accused perpetrator. Id. at 359.
Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 76 FEP Cases
352 (7th Cir. 1998), affirmed the judgment for defendant entered after
a bench trial. The plaintiff did not have the benefit of documents
with which to impeach the defendant dealership’s testimony as to the
reasons the African-American plaintiff was not promoted to the job
of Sales Manager. Id. at 1154. The dealership went out of business
in 1992. Its assets were sold and the owner found a new tenant for
a building he had leased to the dealership. “The documents apparently
were destroyed in 1995 when a new tenant moved into the dealership’s
former premises. Morden had a legal obligation to preserve the documents,
and perhaps the reason he failed to do this is that he knew (and feared)
what they would reveal; but perhaps the explanation is benign.” Id.
at 1155. The destruction occurred shortly before the deposition of
the defendant’s owner. The court stated:
Federal regulations require employers to preserve
documents relevant to claims of discrimination in particular, records
concerning persons hired (or not hired) for the position sought by
the complainant. 29 C.F.R. § 1602.14. Mathis did not rely wholly on
the regulation. He served a document-production request under Fed.
R. Civ. P. 34. Instead of complying or seeking relief under Rule 26(b),
the dealership threw the documents away. In response, the court could
have entered judgment for Mathis or taken any of the lesser steps
authorized by Fed. R. Civ. P. 37(b)(2). Surprisingly, Mathis’s counsel
(a different lawyer from the one who represents him on appeal) did
not file a motion for sanctions under Rule 37. Instead he raised the
subject during crossexamination of Morden at trial, and in post-trial
papers Mathis asked the magistrate judge to disbelieve Morden’s explanation
for his selection of sales managers, or to infer that the documents
would have been unfavorable perhaps because they would have showed
that one or more sales managers lacked prior supervisory experience.
Mathis’s perplexing failure to seek sanctions under
Rule 37 forecloses access to the substantial weaponry in the district
court’s arsenal. . . . What remains the possibility of an adverse
inference depends on persuading the court that the evidence was destroyed
in “bad faith”. . . . That the documents were destroyed intentionally
no one can doubt, but “bad faith” means destruction for the purpose
of hiding adverse information. Mathis argues that only the documents’
contents could explain their destruction; the competing explanation
is that they were destroyed incident to the end of the corporation’s
existence.
Id. (citations omitted). The court stated that “bad faith”
is “a question of fact like any other, so the trier of fact is entitled
to draw any reasonable inference.” Id. The magistrate judge did not
address the question specifically, and the court mentioned several
speculative possibilities. The court stated that the missing documents
may not have been of much help, in any event, on the central question
whether all of the defendant’s sales managers had had supervisory
experience. “From what we can see, however, this is principally a
semantic dispute. One person operated a used car lot before joining
Morden as sales manager. Mathis insists that this is not the kind
of experience Morden says was a prerequisite, supporting an inference
that the reasons for rejecting Mathis were pretextual; Morden replies
that a used car dealer must appraise autos, handle financing and insurance,
and so on, gaining the skills a manager at a new car dealer needs.
How the missing documents would have helped the magistrate judge make
progress in resolving this disagreement is unclear.” Id. at 1155–56.The
court stated that the magistrate judge should have been more explicit,
“but Mathis bears part of the responsibility for omitting a Rule 37
motion and not raising the issue forcefully during trial. Judges must
be vigilant to prevent the destruction of evidence, but litigants
who are not diligent in the defense of their own interests cannot
expect rescue by appellate courts.” Id. at 1156.
Aramburu v. The Boeing Co., 112 F.3d 1398, 1407, 6 AD Cases
1217 (10th Cir.1997), stated that “the general rule is that bad faith
destruction of a document relevant to proof of an issue at trial gives
rise to an inference that production of the document would have been
unfavorable to the party responsible for its destruction.” The court
continued: “The adverse inference must be predicated on the bad faith
of the party destroying the records. . . . Mere negligence in losing
or destroying records is not enough because it does not support an
inference of consciousness of a weak case.” The court held that no
adverse inference should have been drawn from the decisionmaker’s
misplacing of part of the plaintiff’s attendance record for the year
of his discharge, where this was inadvertent and where the company
brought forth other records showing the plaintiff’s attendance in
that year.
| |
15. Determinations
of the EEOC and State and Local Agencies |
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1287–89,
102 FEP Cases 716 (11th Cir. 2008), affirmed the judgment on a jury
verdict for the Title VII and § 1981 retaliation plaintiff. The court
held that the lower court did not abuse its discretion in admitting
the EEOC reasonable-cause determination. The court held that the determination
was adequately discussed by witnesses and given context at the trial,
and that the special instruction provided by the trial court was sufficient
to prevent any abuse of the determination.
| |
16. The
EEOC “Reasonable Cause” Determination |
Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 925–28 (7th
Cir.), affirmed the judgment on a jury verdict for the Equal Pay Act
defendant, and held that the trial court did not abuse its discretion
in informing the jury that the EEOC had found in favor of the defendant.
The lower court had initially granted plaintiffs’ motion in limine
barring the defendant from informing the jury of this determination,
“but the judge changed her mind after plaintiffs’ counsel told the
jury that Kohl’s agreed ‘under pressure of this lawsuit’ to reduce
the pay differential among the departments.” Id. at 925. The court
stated that this assertion implied not only that the suit had merit,
but that the defendant knew of its merit; the defendant thus had a
right to counteract the implication by showing that what it knew “implied
that it would prevail on the merits.” Id. at 926. The court noted
that the EEOC’s report was “more thorough” than the “superficial”
decisions normally issued, quoted extensively from the decision, and
described it as “damning” to plaintiffs’ claims. Id. The lower court
did not inform the jury of the reasoning on which the EEOC’s conclusion
was based. The court rejected plaintiffs’ argument that they had not
“opened the door” because the EEOC had rescinded its decision prior
to the defendant’s agreement to a new pay scale in collective bargaining.
It pointed out that plaintiffs had requested reconsideration, the
EEOC had granted it and revoked its right-to-sue letter, and before
the EEOC could do anything else “plaintiffs asked for a new right-to-sue
letter, which the EEOC was obliged to issue forthwith, and the EEOC
called off all further activities. Id. at 926–27. While the district
court mistakenly thought, at the time she informed the jury of the
EEOC’s determination, that the collective-bargaining negotiations
took place prior to the EEOC’s rescission of its decision, she asked
them to disregard the report as soon as she learned of her mistake
in timing. The court of appeals held that the mistake of timing did
not require reversal, because the parties had drafted an instruction
that the defendant had a determination at the time of the negotiations.
“Plaintiffs deny that they ‘stipulated’ to the language, but no matter;
they did not object to it, and that is that. FED. R. CIV. P. 51.”
Id. at 927 (emphasis in original). The court continued:
Because plaintiffs sought to persuade the jury that
Kohl’s recognized its culpability, Kohl’s was entitled to rebut this
contention using the best available evidence: a decision by the EEOC
that the positions were not substantially equal. . . . Decisions by
public bodies do not vanish into thin air or become un-documents when
parties ask for reconsideration or settle their differences. . . .
When negotiating with the unions, Kohl’s knew the EEOC’s view, which
had been withdrawn as a result of plaintiffs’ strategy but had not
been disclaimed as erroneous. The 1998 negotiations occurred against
a background that included the EEOC’s support of Kohl’s position,
and this was relevant to the strength of the inference that Kohl’s
and the unions acted under the “pressure of this lawsuit” as plaintiffs
asserted.
Doubtless there was a risk that the jury would overestimate
the significance of the EEOC’s ruling; this is why such conclusions
generally are not admitted (on behalf of either side) in jury trials.
. . . Plaintiffs note that the jury asked a question about the report
during deliberations, implying that the EEOC’s view assumed unusual
significance. By opening the door to disclosure, however, plaintiffs
took that risk; they could not argue as they did and then defang the
best response. . . . Nor can they avoid the consequence of their opening
statement by contending on appeal (as they do) that “[w]hy Kohl’s
narrowed the gap in late 1998 is entirely peripheral” (emphasis in
original). That may be, but it was plaintiffs who injected this subject
into the case and entitled Kohl’s to supply an answer. Plaintiffs
did not argue to the district judge that the scope of the answer was
too prejudicial and never suggested any possible response that was
less prejudicial. The district judge protected plaintiffs’ substantial
rights by excluding the EEOC’s actual language and reminding the jury
that the conclusion had been rescinded.
In response to the jury’s question, the judge reread
the instruction and added that the only issue properly under consideration
was “whether the jobs are equal” rather than why Kohl’s and the union
changed the pay scales in 1998. The evidence and the instructions
as a whole ensured that the jury focused on, and answered, the right
questions. Plaintiffs had a fair trial.
Id. at 927–28 (emphasis in original).
Halloway v. Milwaukee County, 180 F.3d 820, 827 n.9, 80 FEP
Cases 367 (7th Cir. 1999), affirmed the grant of summary judgment
to the ADEA defendants. The court held that the lower court did not
abuse its discretion in failing to conclude that a genuine issue of
triable fact was created by the probable-cause determination of the
Equal Rights Division of the Wisconsin Department of Industry, Labor
and Human Relations. The court stated that administrative findings
are sometimes admissible, but that the trial court has substantial
discretion in deciding whether to admit them. In finding that there
was no abuse of discretion, the court stated:
The Equal Rights Division’s initial determination
explicitly states that the finding would not even be considered in
the state hearing on the matter. Moreover, for the most part, the
finding does not look past the bare allegations made in the complaint.
Commissioner Halloway does not contest that the conclusory assessment
of the investigation was not based on sworn affidavits or depositions
from both sides.
In any event, stated the court, admission of the finding would
not have changed the result of the case.
Bassett v. City of Minneapolis, 211 F.3d 1097, 1103 n.12,
83 FEP Cases 643 (8th Cir. 2000), reversed the grant of summary judgment
to the Title VII and Minnesota Human Rights Act retaliation and racial
discrimination defendant. The court relied in part on the findings
of the Minnesota Department of Civil Rights, which has investigated
the plaintiff’s claims “by examining over 1,000 pages of documents
and reviewing numerous taped conversations and interviews with” plaintiff’s
supervisor, her co-workers, and the plaintiff herself. The MDCR found
probable cause that the plaintiff was (1) subjected to disparate scrutiny
based on her race, and (2) retaliated against because she had attempted
to pursue ‘legitimate channels’ to stop the alleged discriminatory
behavior in her department.” The court concluded: “While not determinative
on the question of discrimination, the finding of probable cause demonstrates
that upon distillation of all the evidence presented, reasonable minds
could disagree over the material fact of retaliation and intentional
discrimination.” (Citations omitted.) The court gave “no credence”
to the ten-page ALJ report after three days of hearings, or to the
inneapolis Civil Service Commission rejecting it, but held that the
ALJ’s findings that there was no “just cause” for firing the plaintiff
“are germane to our determination that a disputed fact exists” as
to the plaintiff’s allegedly deficient performance. Id. at 1104 n.15.
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1283–84, 84 FEP
Cases 602 (9th Cir. 2000), affirmed the grant of summary judgment
to the ADEA RIF defendants. The court held that the lower court properly
admitted the EEOC reasonable-cause determination, but that such letters
vary widely in quality and detail. The court held that the letter
at issue was not enough to create a triable issue of fact because
it was conclusory. “It is impossible from this letter to know what
facts the EEOC considered and how it analyzed them. Examining similarly
conclusory EEOC letters, other circuits have oncluded that when the
letters only report ‘bare conclusions,’ they have little probative
value.” Id. at 1284 (citations omitted). The court observed that the
Circuit had previously upheld summary judgment against the Commission
when it was suing, and that that “then, a priori, a conclusory EEOC
reasonable cause letter, at least by itself, does not create an issue
of material fact.” Id. The court reached a similar conclusion as to
plaintiff Coleman’s reasonable cause determination. “In fact it appears
to have been a form letter.” Id. at 1289. The court continued: “Indicative
of its conclusory nature and lack of probative value, the EEOC letter
in Coleman’s case includes the recitation that Quaker discriminated
against older employees as a class despite the fact that there was
no class in 1995 when Coleman was terminated. Coleman was the only
employee laid off in that RIF who filed an EEOC charge, and the EEOC
had no information regarding other employees terminated that year.”
Judge Fletcher dissented from a different holding. Id. at 1297–1300.
Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1014–16, 9 AD
Cases 1258 (9th Cir. 1999), cert. denied, 529 U.S. 1021 (2000), affirmed
the judgment on a jury verdict for the ADA defendant and held that
the lower court erred in admitting, over the plaintiff’s objection,
a Notice of Dismissal and a Dismissal Memo of the Oregon Bureau of
Labor and Industries (“BOLI”), but held that the error was harmless.
The Notice stated that BOLI would not proceed with the plaintiff’s
case because it had not found sufficient evidence to justify a continuation,
and the Dismissal Memo described the investigation. The court held
that a document that appears to be a final decision of an investigating
agency creates a much greater risk of unfair prejudice than a finding
of probable cause:
We now hold that an agency’s determination that insufficient
facts exist to continue an investigation is not per se admissible
in the same manner as an agency’s determination of probable cause.
Whereas the latter type of determination indicates only that there
is probable cause to believe a violation has occurred, the former
type of determination in effect constitutes a finding of no probable
cause and terminates the agency’s inquiry. In this sense, a determination
of insufficient facts is a final ruling by the agency. There is a
much greater risk of unfair prejudice involved in introducing a final
agency ruling as opposed to a probable cause determination, because
a jury might find it difficult to evaluate independently evidence
of discrimination after being informed of the investigating agency’s
final results. . . . Accordingly, we have held that a district court
asked to admit an agency’s letter of violation must weigh the letter’s
prejudicial effect against its probative value pursuant to Rule 403.
. . . We conclude that the same rule should apply when a district
court is asked to admit an agency’s determination that insufficient
facts exist to continue an investigation.
Id. at 1015 (citations and footnote omitted). The court held
that the lower court’s failure to weigh the prejudicial effect of
these documents against their probative value was harmless error,
because the plaintiff’s case “was not particularly strong,” and the
defendant produced substantial evidence of its nondiscriminatory reasons.
McGarry v. Board of County Commissioners of County of Pitkin,
175 F.3d 1193, 1198– 99 n.2, 79 FEP Cases 964 (10th Cir. 1999), reversed
the grant of summary judgment to the defendants. However, the court
noted that the EEOC’s determination letter, stating that its investigation
had not established a violation of Title VII, “would be admissible
under FED. R. EVID. 803(8)(C).” (Citation omitted.)
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1287–89,
102 FEP Cases 716 (11th Cir. 2008), affirmed the judgment on a jury
verdict for the Title VII and § 1981 retaliation plaintiff. The court
held that the lower court did not abuse its discretion in admitting
the EEOC reasonable-cause determination. The court held that the determination
was adequately discussed by witnesses and given context at the trial,
and that the special instruction provided by the trial court was sufficient
to prevent any abuse of the determination.
Lathem v. Department of Children and Youth Services, 172 F.3d
786, 791–92, 79 FEP Cases 1267 (11th Cir. 1999), affirmed the judgment
on a jury verdict for the plaintiff. The court rejected the defendant’s
argument that the lower court had abused its discretion in declining
to admit the EEOC’s and Georgia Commission on Equal Opportunity’s
no-cause findings.
“Although trial courts admit EEOC determinations in bench
trials, this liberal admissibility rule does not apply to jury trials.
. . . Instead, the district court must make the admissibility determination
on an individual basis, considering the evidence’s probative value
and the danger of unfair prejudice.” Id. at 791 (citation omitted;
footnote omitted). The defendant argued that the refusal to admit
the findings prejudiced it because the plaintiff had not identified
one of her two comparators to the agencies. “Lathem, however, argued
that the district court should not admit the reports because the EEOC
and CEO failed to interview certain witnesses and review certain documents
during its investigation. District courts have broad discretion with
respect to the admissibility of evidence. . . . Because Lathem offered
a legitimate reason why the reports may have unfairly prejudiced her
case, we find that the district court did not abuse its discretion
when it refused to admit in this jury trial the EEOC’s and CEO’s no-cause
determinations.” Id. at 791–92 (citation omitted).
| |
17. Hearsay
and its Exceptions |
EEOC v. University of Chicago Hospitals, 276 F.3d 326, 333,
87 FEP Cases 1089 (7th Cir. 2002), reversed the grant of summary judgment
to the Title VII religious-discrimination constructive-discharge defendant.
The court held that the statements of the charging party’s former
supervisor, as to the intentions of the decisionmaker, and his testimony
as to the charging party’s statements, were not hearsay because they
were not admitted to prove the truth of the matter asserted, but the
state of the plaintiff’s mind as she returned to work.
Alston v. King, 231 F.3d 383, 387, 17 IER Cases 1013 (7th
Cir. 2000), reversed the award of nominal damages of one dollar for
the deprivation of the plaintiff’s due process right to a pretermination
hearing, and remanded the case for a new determination of damages.
The court held that the lower court did not abuse its discretion in
barring evidence on the damage to plaintiff’s reputation, his removal
from the Black History Month program, and his inability to use his
educational degrees, because he attempted to present this evidence
only through his own hearsay testimony, and not from persons who could
have presented these matters properly.
Stewart v. Henderson, 207 F.3d 374, 377–78, 82 FEP Cases 517
(7th Cir. 2000), affirmed the grant of summary judgment to the Title
VII racial discrimination defendant on the claims of plaintiffs Stewart
and Williams. The plaintiffs had applied for a managerial position,
but were screened out by a three-member review committee before the
interview stage. Id. at 376. The defendant relied on the affidavit
of Walter Hess, the chairperson of the review committee. “That affidavit
stated, in relevant part, that all three reviewers rated Williams
as one of the weakest candidates, and that the consensus on Williams
was that his written application responses to the KSAs showed an adversarial
quality that would be detrimental in the position. Hess further attested
that he initially rated Stewart as one of his top four candidates,
but that the other two disagreed. Those reviewers convinced Hess that
his rating was too high because in his application Stewart did not
document ‘Actions’ that he had taken himself, as is required, but
instead had “‘too many we’s—not anything he did himself.’” Id. at
377. The court rejected the plaintiffs’ challenge to the affidavit
as hearsay, stating that “it rests largely on a misunderstanding of
the concept of hearsay.” Id. The court pointed out that Hess’s statement
about the opinions of other committee members was not offered to establish
that Stewart’s application included too may “‘we’s,’” but was offered
to prove only what motivated Hess to change his initial, more favorable
rating. The court also held that there was no need for each committee
member to testify, because “Hess was a participant in the teleconference,
and thus has personal knowledge of what was decided and why.” Id.
The court stated that the logical extreme of the plaintiff’s argument
would be that “each committee member could only testify as to his
or her personal opinion, but no one could testify as to what the group
as a whole decided.” Id. It stated that there is no legal support
for such a rule. The court rejected as frivolous the plaintiffs’ argument
that, if the reasons of other committee members were to be considered,
it was also necessary to consider another part of Hess’s affidavit
in which he stated that one of the committee members had mentioned
plaintiff Williams’ EEO complaint. “The affidavit makes clear, however,
that after the decision not to recommend Williams was made, one member
indicated that Williams previously had filed an EEO complaint, and
that comment motivated Hess to retain his notes. The affidavit thus
negates any claim that the EEO discussion affected the decision, since
the decision preceded it.” Id. at 377–78. The court emphasized that
there was no evidence contradicting the affidavit: “The plaintiffs
offer nothing to the contrary. In fact, the plaintiffs never even
deposed any member of the review committee, despite having more than
a year to do so.” Id. at 378.
Swinton v. Potomac Corp., 270 F.3d 794, 807–08, 87 FEP Cases
65 (9th Cir. 2001), affirmed the judgment on a jury verdict for the
§ 1981 and Washington State-law racial harassment plaintiff. The court
held that the trial court did not err in admitting summaries of the
plaintiff’s accounts of the harassment as part of exhibits prepared
by psychologists he consulted, because these records came under the
hearsay exception in FED. R. EVID. 803(4) for “statements made for
purposes of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment.”
Marcano-Rivera v. Pueblo International, Inc., 232 F.3d 245,
255, 11 AD Cases 105 (1st Cir. 2000), affirmed the judgment on a jury
verdict for the ADA plaintiff, rejecting defendant’s argument that
the admission of evidence of pre-1992 failures to accommodate plaintiff
was so prejudicial that no curative instruction would suffice. The
court held that the curative instruction “was clear and emphatic,”
and stated that “the defendant has not suggested any sufficient basis
for its conjecture that the jury failed to follow the specific curative
instructions repeatedly given by the district court.” (Citation omitted.)
Swinton v. Potomac Corp., 270 F.3d 794, 808, 87 FEP Cases
65 (9th Cir. 2001), affirmed the judgment on a jury verdict for the
§ 1981 and Washington State-law racial harassment plaintiff. The court
held that the lower court did not abuse its discretion in barring
evidence that the plaintiff only sought psychological consulting two
days after consulting with his attorney, because the defendant had
had ample opportunity to cross-examine the plaintiff about his emotional
distress.
| |
19. Testimony
on Advice of Counsel |
Farias v. Instructional Systems, Inc., 259 F.3d 91, 100–01
(2nd Cir. 2001), affirmed the judgment of liability on a jury verdict
for Title VII retaliation plaintiff Robinson, and affirmed the denial
of punitive damages. The court held that the lower court did not abuse
its discretion in barring the testimony of defense counsel to the
effect that counsel had advised the defendant not to offer a severance
payment because the plaintiff had filed an EEOC charge. It explained:
But nothing would prevent ISI from offering the severance
in exchange for a release, which no doubt included actual claims as
well as hypothetical ones. Dunn’s testimony therefore would only have
reinforced the jury’s finding that the denial of severance benefits
was retaliatory, and his testimony therefore could not evidence a
motive that was both legitimate and non-retaliatory. The retaliatory
finding rests on cause and effect, regardless of whether Kaminer acted
out of animus and revenge or on the advice of counsel. We need not
decide whether there are circumstances where the advice of counsel
could constitute or assist a defense to a claim of retaliation.
The court went on to state that the admissibility of this
testimony as to punitive damages was a different question, but any
error was harmless in light of the reversal of punitive damages. Id.
at 101.
| |
20. The
Time Period for Which Evidence Was Permitted |
Abner v. Kansas City Southern R. Co., 513 F.3d 154, 166–68,
102 FEP Cases 616 (5th Cir. 2008), affirmed the award of $125,000
in punitive damages to the Title VII and § 1981 racial harassment
plaintiffs. The court held that the lower court did not abuse its
discretion in allowing evidence covering a ten-year time period, or
in allowing some evidence predating that period, because of the nature
of hostile-environment actions under Morgan. The court rejected defendant’s
argument that any evidence not pinned down to a specific date must
necessarily have fallen outside of the time period:
Furthermore, the court's allowance of testimony regarding
events that occurred at an unspecified time within the ten-year period,
and some events that occurred during a specific year within that period,
by no means placed the events outside of that time frame. Nor was
any lack of individualized assessment as to each event's relation
to the hostile work environment clearly erroneous. Much of the evidence
presented from within theten-year period related directly to the hostile
work environment.
Id. at 167.
Acevedo-Garcia v. Monroig, 351 F.3d 547, 561–62 (1st Cir.
2003), rejected defendants’ objections to the lower court’s comments
on the evidence, and questioning of witnesses, in the presence of
the jury, in large part because the trial had been long and contentious.
The court explained (citations omitted):
Defendants allege that at various junctures during
the trial the district court inaccurately and prejudicially commented
on the evidence, truncated the defendants’ cross-examination of several
plaintiffs, and chastised defense witnesses in front of the jury.
As we have previously observed, it is well settled that the trial
judge “has a perfect right—albeit a right that should be exercised
with care—to participate actively in the trial proper.” . . .
. . . Defendants also fail to demonstrate “serious
prejudice” arising from the court’s participation during plaintiffs’
case in chief. This was a lengthy and contentious trial featuring
dozens of witnesses, numerous sidebar conferences, and a myriad of
other procedural delays arising, inter alia, from the inartful labeling
and introduction of exhibits, translation difficulties, and a continuing
stream of objections from both parties. Under these challenging circumstances,
the court’s efforts to accelerate the pace of the trial with infrequent
commentary on the evidence and the occasional prodding of witnesses
were amply justified and well within its discretion.
Sellers v. Mineta, 350 F.3d 706, 92 FEP Cases 1665 (8th Cir.
2003), affirmed the denial of a new trial in plaintiff’s assault and
battery case against John Joseph, a co-worker at the FAA, for allegedly
attempting to rape her in her home, harassing her at work, and pinching
her buttocks at work. When the court admitted the Moore reprimand
letter discussed above, it stated: “Mr. Moore obviously made a finding
that there was a basis for a claim . . . .” Joseph argued that this
comment was improper because “Mr. Moore’s informal investigation lacked
the most fundamental protections provided by the Administrative Procedure
Act, the Due Process clause, and fundamental fairness.” Id. at 710–11.
The court rejected his claim, stating: “As to the district court’s
comment that Moore ‘obviously made a finding that there was a basis
for a claim,’ we disagree that the jury reasonably could have inferred
from it that Moore had conducted a formal investigation. In any case,
the district court instructed the jury several times that its comments
were not evidence and should never be taken as an indication of what
the verdict should be.” Id. at 711.
Swinton v. Potomac Corp., 270 F.3d 794, 808–09, 87 FEP Cases
65 (9th Cir. 2001), affirmed the judgment on a jury verdict for the
§ 1981 and Washington State-law racial harassment plaintiff. The court
held that the trial judge’s questioning of one of the two co-plant
managers was proper clarification of testimony, and revealed little
of consequence. Although the trial judge did elicit that plaintiff
was the only black employee of the plant, other witnesses had already
testified to this.
| |
22. Counsel’s
Failure to Follow Through |
Swinton v. Potomac Corp., 270 F.3d 794, 809, 87 FEP Cases
65 (9th Cir. 2001), affirmed the judgment on a jury verdict for the
§ 1981 and Washington State-law racial harassment plaintiff. Finally,
the court rejected the defendant’s contention that the district court
improperly excluded an exhibit, when the lower court only reserved
ruling on its admission and plaintiff’s objection, the defendant never
asked for an immediate ruling, used it to refresh the recollection
of the witness as it had begun to do before offering the exhibit,
and never again moved to introduce it.
| |
23. Criminal
Conviction of the Harasser |
McCombs v. Meijer, Inc., 395 F.3d 346, 95 FEP Cases 1 (6th
Cir. 2005), affirmed the judgment on a jury verdict for the Title
VII sexual harassment plaintiff, and held that the lower court did
not abuse its discretion by admitting evidence that the harasser—a
co-worker in the Meat Department where plaintiff worked—had pleaded
guilty to a criminal charge after he waved a bloody knife at her in
response to her complaints. “Meijer was not prejudiced by the jury
knowing that Pound had been convicted of a misdemeanor that resulted
from the knife incident. Meijer does not argue that the knife incident
did not occur; in fact, evidence of the knife incident was admitted
through McCombs’s written complaint on December 4. Moreover, if Pound
himself had been the defendant or if the occurrence of the knife incident
was at issue, the situation may have been different. But, as the district
court properly concluded, it does not ‘hurt [ ] Meijer[ ] at all to
know the man was convicted.’” Id. at 354–55. (Footnote omitted.) Judge
Gilman dissented.
| |
24. Criminal
Conviction Followed by Pardon |
Abner v. Kansas City Southern R. Co., 513 F.3d 154, 168–69,
102 FEP Cases 616 (5th Cir. 2008), affirmed the award of $125,000
in punitive damages to the Title VII and § 1981 racial harassment
plaintiffs. The court held that the lower court did not abuse its
discretion in allowing evidence that a Foreman Moore, one of plaintiffs’
asserted harassers, had been convicted of a KKK-related offense in
1992 although he had received a pardon in 1995 that did not require
any action on his part. “The court determined, after carefully considering
both parties' arguments on the issue and the evidence in the case,
that the probative value of the conviction evidence outweighed its
prejudicial value. The court also made it clear that it would not
tolerate “exaggerated discussion, questions and answers, over and
over and over about the conviction of Mr. Moore.” (Footnote omitted.)
| |
25. Evidence
of Post-Event Occurrences |
Swinton v. Potomac Corp., 270 F.3d 794, 811–17, 87 FEP Cases
65 (9th Cir. 2001), affirmed the judgment on a jury verdict for the
§ 1981 and Washington State-law racial harassment plaintiff. The plaintiff
was subjected to a frequent barrage of racist slurs and jokes, some
of them in the presence of a member of management. The defendant argued
that it was entitled to a new trial because the lower court had excluded
evidence of one of the post-suit steps it had taken to remedy discrimination.
The court distinguished a number of cases excluding evidence of post-event
occurrences because they involved the issue of liability, and evidence
irrelevant to liability may still be relevant to the imposition of
punitive damages. After surveying the law in Federal and State courts,
the court held that lower courts have the discretion to decide whether
to allow evidence of post-event remedial actions, “as a means to mitigate
punitive damages.” Id. at 814. The court stated that, under Faragher
and Ellerth, the employer has the right to show that it took prompt
and effective remedial action, and that this right cannot be cut off
by the plaintiff’s simultaneous quitting under a contention of constructive
discharge and filing of suit under § 1981. “The point is that the
timing and nature of remedial action are case-specific and will not
always fit in a neat box.” Id. at 815. This case is discussed further
in the section on punitive damages below.
| |
26. The
Courtroom Deputy’s Testimony |
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1291,
102 FEP Cases 716 (11th Cir. 2008), affirmed the judgment on a jury
verdict for the Title VII and § 1981 retaliation plaintiff. The court
held that the lower court did not abuse its discretion in admitting
the testimony of the courtroom deputy that, when she went to the witness
room to escort a company supervisor to the stand, Arthur Bagby told
him “Go get ‘em, champ.” The court explained:
Bagby Elevator was not unfairly prejudiced by the
courtroom deputy's testimony. Bagby Elevator was aware of the policy
of the district court that its courtroom deputy would report stray
remarks. The courtroom deputy had previously reported a comment made
by a black juror who was later dismissed because of the comment, and
Bagby Elevator did not object to the application of this policy to
dismiss the juror.
Bagby Elevator had the benefit of several procedural
safeguards to prevent any undue prejudice. Bagby Elevator cross-examined
the courtroom deputy on the comment. . . . Bagby Elevator recalled
Ward to elicit testimony about this alleged comment, and the courtroom
deputy testified only after Ward stated that he did not remember hearing
the comment. The district court instructed the jury that the courtroom
deputy's testimony should not suggest that the district court or its
employees had an opinion about the merits of the case. In the light
of these safeguards, Bagby Elevator was not unduly prejudiced when
the district admitted the testimony of the courtroom deputy.
(Citation omitted.)
| |
P. Rule
412, Fed. R. Evid. |
Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 855–56,
75 FEP Cases 1228 (1st Cir. 1998), affirmed the Title VII judgment
of liability against the defendant employer and its owner. “Defendants
continually sought to make an issue of plaintiff’s sexual history.
In the course of this litigation, defendants attempted to paint the
plaintiff as sexually insatiable, as engaging in multiple affairs
with married men, as a lesbian, and as suffering from a sexually transmitted
disease. Defendants claimed that plaintiff had an affair with a married
man that caused her to become distracted from work, and led to the
lapses for which she was fired.” (Footnote omitted). Nor was this
all. “During discovery, defendants requested that plaintiff submit
to an AIDS test, apparently to substantiate their allegations of promiscuity.
The request was denied.” Id. at 856 n.2. The court stated that Rule
412 “reverses the usual approach . . . by requiring that the evidence’s
probative value ‘substantially outweigh’ its prejudicial effect.”
Id. at 856. The district court excluded “evidence concerning plaintiff’s
moral character or promiscuity and the marital status of her boyfriend,”
but “allowed defendants to introduce evidence directly relevant to
their theory that plaintiff’s relationship distracted her from work”
and allowed evidence “concerning plaintiff’s allegedly flirtatious
behavior toward Miranda . . . to determine whether Miranda’s advances
were in fact ‘unwanted.’” Id. The court of appeals held that these
rulings “were well within the district court’s discretion.” Id. The
court rejected the defendants’ claim of a double standard on evidentiary
rulings, because “Fed. R. Evid. 412 required the district court to
apply a stricter standard with regard to admission of evidence of
plaintiff’s sexual history than to the evidence admitted under the
more liberal standard of Fed. R. Evid. 402 & 403.” Id. at 857
(emphasis in original). The court’s discussion of the $500 fine imposed
on a defense attorney for violating the court’s Rule 412 rulings at
trial is described in Chapter 56 (Sanctions).
Wolak v. Spucci, 217 F.3d 157, 161, 83 FEP Cases 253 (2d Cir.
2000), affirmed the judgment for the Title VII sexual harassment defendant
on a jury verdict, holding that the lower court violated Rule 412,
FED. R. EVID., by admitting evidence of the plaintiff’s sexual behavior.
The lower court stated that Rule 412 “is not by its terms directly
applicable to this case” and allowed inquiry into plaintiff’s sexual
behavior outside work. Although the Magistrate Judge denied the defense’s
discovery request for allegedly sexually explicit photographs of plaintiff
and her boyfriend, the district court declared the need for “balance
and practicality in dealing with . . . plaintiff’s sexual sophistication
in the context of a hostile environment case. At least for purposes
of computing her damages for shame and humiliation and the like, no
plaintiff should be permitted to portray herself to the trial jury
falsely, as some sort of shrinking violet or as a novice in a nunnery.”
Id. at 159. “Over objection at trial, the defense attorney asked plaintiff
about two parties at which pornographic videos were shown while she
was present, and two or three other occasions on which she watched
sexual acts as they were performed. Id. The court of appeals held
that Rule 412 “encompasses sexual harassment lawsuits.” Id. at 160.
The court rejected the defendant’s attempt to distinguish its inquiries
from inquiries into sexual behavior or predisposition. “The Advisory
Committee Notes, however, explain that ‘behavior’ encompasses ‘activities
of the mind, such as fantasies.’ . . . Because viewing pornography
falls within Rule 412’s broad definition of behavior, defendants’
extensive questions were subject to the Rule.” Id. The court continued:
Moreover, the evidence elicited in response to defendant’s
questions should not have been admitted under the criteria set forth
in the Rule. Defendants argue that questions regarding Wolak’s viewing
of pornography were relevant to the subjective prong of the hostile
work environment test whether she was actually offended and to damages.
We conclude that the evidence was of, at best, marginal relevance.
Whether a sexual advance was welcome, or whether an alleged victim
in fact perceived an environment to be sexually offensive, does not
turn on the private sexual behavior of the alleged victim, because
a woman’s expectations about her work environment cannot be said to
change depending upon her sexual sophistication. . . . Even if a woman’s
out-ofwork sexual experiences were such that she could perhaps be
expected to suffer less harm from viewing run-of-the-mill pornographic
images displayed in the office, pornography might still alter her
status in the workplace, causing injury, regardless of the trauma
inflicted by the pornographic images alone. Thus, defendants failed
to establish that “the probative value” of Wolak’s admissions concerning
her activities outside the office, “substantially outweighed the danger
of harm . . . and of unfair prejudice,” and the evidence was not admissible.
FED. R. EVID. 412(6)(2).
Id. at 160–61 (citations omitted). The court held that the
error was harmless because the plaintiff failed to introduce any evidence
of injury, including evidence that she took offense at the pictures,
thus failing to establish an essential element of her claim. Id. at
161–62. See the discussion of this case in Chapter 41 (Trial Management
Issues), in the section on “Continuance.”
Beard v. Flying J, Inc., 266 F.3d 792, 801–02, 87 FEP Cases
1836 (8th Cir. 2001), affirmed the judgment on a jury verdict for
the Title VII sexual harassment plaintiff, and the judgment on a jury
verdict for the defendant on plaintiff’s constructive-discharge claim.
The court stated that it was an open question whether Rule 412 applied
to sexual harassment cases, but held in any event that the defendant’s
failure to follow the procedures set forth in Rule 412 was harmless
in light of the plaintiff’s knowledge that the material on her non-intimate
sexual conduct would be offered, and in light of the fact that the
conduct took place in a public area.
Excel Corp. v. Bosley, 165 F.3d 635, 640–41, 78 FEP Cases
1844 (8th Cir. 1999), affirmed the judgment on a jury verdict for
the sexual harassment plaintiff. The plaintiff had been harassed at
work by her former husband, and the defendant appealed the exclusion
under Rule 412, Fed. R. Evid., of the former husband’s testimony that
the plaintiff had had sexual relations on several occasions with him,
outside of the workplace, during the same time period in which she
was complaining of harassment. The defendant also challenged the exclusion
of the testimony of Dr. Patrick Barrett, a clinical psychologist whom
the former husband saw twice during the same time period. The plaintiff
attended the second session, at Dr. Barrett’s request. “Dr. Barrett
testified that Bosley may have acknowledged sending Johnson mixed
signals. Dr. Barrett could not recall whether Bosley acknowledged
sleeping with Johnson.” Id. at 640. The court noted that the defendant
sought admission of the evidence solely under Rule 412, and not under
any other rule. Id. at 641. It described Rule 412 as allowing “admission
of evidence of an alleged victim’s past sexual behavior or alleged
sexual predisposition in sex offense cases. Specifically Rule 412(b)(2)
allows for the admission of such evidence in a civil case if it is
otherwise admissible under the Rules of Evidence and its probative
value substantially outweighs the danger of harm to any victim and
of unfair prejudice to any party.” Id. The court noted that it had
never decided the applicability of Rule 412 to evidence proffered
in a Title VII case, but stated without explanation that it did not
need to decide the question because the defendant rested solely on
Rule 412. The court held that the lower court had not “manifestly
erred.” It explained: “The alleged sexual activity took place outside
the workplace. There was no allegation that Excel was aware of it
or that it informed Excel’s actions regarding the sexual harassment
about which Bosley complained. This was the issue before the jury
not Bosley’s actions outside the workplace. Further the danger of
harm and unfair prejudice to Bosley was great.”
Id. B.K.B. v. Maui Police Department, 276 F.3d 1091, 1103–06,
87 FEP Cases 1306 (9th Cir. 2002), reversed the lower court’s denial
of plaintiff’s motion for a new trial after defense counsel introduced
trial testimony as to the plaintiff’s sexually-oriented statements
and conduct, without complying with Rule 412. “Having failed in two
previous motions to obtain the court’s approval to introduce Rule
412 material, the defendants instead simply sprang the offending testimony
upon the court and then misrepresented the nature of Becraft’s testimony
to the trial judge in response to plaintiff’s objections that the
defense intended to violate Rule 412.” Id. at 1104–05. The court held
that Becraft’s testimony as to the plaintiff’s sexual practices did
not involve any admissions by the plaintiff as to the advances she
rejected, and “Plaintiff’s alleged statements regarding her sexual
habits were not probative as to the welcomeness of any harassing conduct
by her coworkers.” Id. at 1105. The court held that no instruction
could have cured the prejudice of Becraft’s “lurid” testimony, but
that the lower court’s curative instruction was in any event not forceful
and was diminished in effect by its having been prefaced with a jocular
reference to its being nearly lunchtime. Id. at 1105–06 & n.7.
The court ordered damages as sanctions.
Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir. 1997), assumed
without deciding that Rule 412, Fed. R. Evid., applied to a case seeking
damages for transmission of genital herpes, a sexually transmitted
disease. The court held that the admission of evidence of plaintiff’s
prior sexual history was not an abuse of discretion, because the record
showed that “the herpes virus can be dormant for long periods of time
and the infected person can be asymptomatic. Consequently, evidence
of prior sexual relationships and the type of protection used during
sexual intercourse is highly relevant to Rodman’s liability.” Id.
at 1343. The court also held that the plaintiff did not waive her
objection by bringing out her sexual history on her own direct examination,
because this was a “valid trial strategy” to minimize the importance
of the evidence after the court had denied plaintiff’s motion in limine
and stated that it considered Rule 412 inapplicable. Id. at 1342.
A party is not required to object to her own testimony in order to
preserve the point made in her motion in limine. Id. The court also
held that plaintiff failed to show a substantial right was affected
by the trial court’s admission of evidence that plaintiff was a nude
dancer both before and after she contracted genital herpes. While
this was a closer question, the court held that the district court
did not commit reversible error in admitting this potentially prejudicial
evidence because the plaintiff had testified that she felt “dirty”
after she contracted herpes, and continued: “The court determined
that Judd’s employment as a nude dancer before and after she contracted
herpes was probative as to damages for emotional distress because
it suggested an absence of change in her body image caused by the
herpes infection.” Id. at 1343. The court also reached its decision
in light of “the specific facts of this case and the considerable
evidence of sexual history and predisposition which were appropriately
admitted.” Id. Finally, because plaintiff cited Rule 402 but failed
to cite Rule 412 in her objection to the introduction of evidence
on her breast augmentation surgery, the court held that she waived
her right to object to this evidence under Rule 412. Id. at 1342.
| |
K. Determinations
of the EEOC and State and Local Agencies |
Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919, 925–28 (7th
Cir.), affirmed thejudgment on a jury verdict for the Equal Pay Act
defendant, and held that the trial court did not abuse its discretion
in informing the jury that the EEOC had found in favor of the defendant.
The lower court had initially granted plaintiffs’ motion in limine
barring the defendant from informing the jury of this determination,
“but the judge changed her mind after plaintiffs’ counsel told the
jury that Kohl’s agreed ‘under pressure of this lawsuit’ to reduce
the pay differential among the departments.” Id. at 925. The court
stated that this assertion implied not only that the suit had merit,
but that the defendant knew of its merit; the defendant thus had a
right to counteract the implication by showing that what it knew “implied
that it would prevail on the merits.” Id. at 926. The court noted
that the EEOC’s report was “more thorough” than the “superficial”
decisions normally issued, quoted extensively from the decision, and
described it as “damning” to plaintiffs’ claims. Id. The lower court
did not inform the jury of the reasoning on which the EEOC’s conclusion
was based. The court rejected plaintiffs’ argument that they had not
“opened the door” because the EEOC had rescinded its decision prior
to the defendant’s agreement to a new pay scale in collective bargaining.
It pointed out that plaintiffs had requested reconsideration, the
EEOC had granted it and revoked its right-to-sue letter, and before
the EEOC could do anything else “plaintiffs asked for a new right-to-sue
letter, which the EEOC was obliged to issue forthwith, and the EEOC
called off all further activities. Id. at 926–27. While the district
court mistakenly thought, at the time she informed the jury of the
EEOC’s determination, that the collective-bargaining negotiations
took place prior to the EEOC’s rescission of its decision, she asked
them to disregard the report as soon as she learned of her mistake
in timing. The court of appeals held that the mistake of timing did
not require reversal, because the parties had drafted an instruction
that the defendant had a determination at the time of the negotiations.
“Plaintiffs deny that they ‘stipulated’ to the language, but no matter;
they did not object to it, and that is that. FED. R. CIV. P. 51.”
Id. at 927 (emphasis in original). The court continued:
Because plaintiffs sought to persuade the jury that
Kohl’s recognized its culpability, Kohl’s was entitled to rebut this
contention using the best available evidence: a decision by the EEOC
that the positions were not substantially equal. . . . Decisions by
public bodies do not vanish into thin air or become un-documents when
parties ask for reconsideration or settle their differences. . . .
When negotiating with the unions, Kohl’s knew the EEOC’s view, which
had been withdrawn as a result of plaintiffs’ strategy but had not
been disclaimed as erroneous. The 1998 negotiations occurred against
a background that included the EEOC’s support of Kohl’s position,
and this was relevant to the strength of the inference that Kohl’s
and the unions acted under the “pressure of this lawsuit” as plaintiffs
asserted.
Doubtless there was a risk that the jury would overestimate
the significance of the EEOC’s ruling; this is why such conclusions
generally are not admitted (on behalf of either side) in jury trials.
. . . Plaintiffs note that the jury asked a question about the report
during deliberations, implying that the EEOC’s view assumed unusual
significance. By opening the door to disclosure, however, plaintiffs
took that risk; they could not argue as they did and then defang the
best response. . . . Nor can they avoid the consequence of their opening
statement by contending on appeal (as they do) that “[w]hy Kohl’snarrowed
the gap in late 1998 is entirely peripheral” (emphasis in original).
That may be, but it was plaintiffs who injected this subject into
the case and entitled Kohl’s to supply an answer. Plaintiffs did not
argue to the district judge that the scope of the answer was too prejudicial
and never suggested any possible response that was less prejudicial.
The district judge protected plaintiffs’ substantial rights by excluding
the EEOC’s actual language and reminding the jury that the conclusion
had been rescinded. In response to the jury’s question, the judge
reread the instruction and added that the only issue properly under
consideration was “whether the jobs are equal” rather than why Kohl’s
and the union changed the pay scales in 1998. The evidence and the
instructions as a whole ensured that the jury focused on, and answered,
the right questions. Plaintiffs had a fair trial.
Id. at 927–28 (emphasis in original).
Halloway v. Milwaukee County, 180 F.3d 820, 827 n.9, 80 FEP
Cases 367 (7th Cir. 1999), affirmed the grant of summary judgment
to the ADEA defendants. The court held that the lower court did not
abuse its discretion in failing to conclude that a genuine issue of
triable fact was created by the probable-cause determination of the
Equal Rights Division of the Wisconsin Department of Industry, Labor
and Human Relations. The court stated that administrative findings
are sometimes admissible, but that the trial court has substantial
discretion in deciding whether to admit them. In finding that there
was no abuse of discretion, the court stated:
The Equal Rights Division’s initial determination
explicitly states that the finding would not even be considered in
the state hearing on the matter. Moreover, for the most part, the
finding does not look past the bare allegations made in the complaint.
Commissioner Halloway does not contest that the conclusory assessment
of the investigation was not based on sworn affidavits or depositions
from both sides.
In any event, stated the court, admission of the finding would
not have changed the result of the case.
Bassett v. City of Minneapolis, 211 F.3d 1097, 1103 n.12,
83 FEP Cases 643 (8th Cir.2000), reversed the grant of summary judgment
to the Title VII and Minnesota Human Rights Act retaliation and racial
discrimination defendant. The court relied in part on the findings
of the Minnesota Department of Civil Rights, which has investigated
the plaintiff’s claims “by examining over 1,000 pages of documents
and reviewing numerous taped conversations and interviews with” plaintiff’s
supervisor, her co-workers, and the plaintiff herself. The MDCR found
probable cause that the plaintiff was (1) subjected to disparate scrutiny
based on her race, and (2) retaliated against because she had attempted
to pursue ‘legitimate channels’ to stop the alleged discriminatory
behavior in her department.” The court concluded: “While not determinative
on the question of discrimination, the finding of probable cause demonstrates
that upon distillation of all the evidence presented, reasonable minds
could disagree over the material fact of retaliation and intentional
discrimination.” (Citations omitted.) The court gave “no credence”
to the ten-page ALJ report after three days of hearings, or to the
Minneapolis Civil Service Commission rejecting it, but held that the
ALJ’s findings that there was no “just cause” for firing the plaintiff
“are germane to our determination that a disputed fact exists” as
to the plaintiff’s allegedly deficient performance. Id. at 1104 n.15.
Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1014–16, 9 AD
Cases 1258 (9th Cir. 1999), cert. denied, 529 U.S. 1021 (2000), affirmed
the judgment on a jury verdict for the ADA defendant and held that
the lower court erred in admitting, over the plaintiff’s objection,
a Notice of Dismissal and a Dismissal Memo of the Oregon Bureau of
Labor and Industries (“BOLI”), but held that the error was harmless.
The Notice stated that BOLI would not proceed with the plaintiff’s
case because it had not found sufficient evidence to justify a continuation,
and the Dismissal Memo described the investigation. The court held
that a document that appears to be a final decision of an investigating
agency creates a much greater risk of unfair prejudice than a finding
of probable cause:
We now hold that an agency’s determination that insufficient
facts exist to continue an investigation is not per se admissible
in the same manner as an agency’s determination of probable cause.
Whereas the latter type of determination indicates only that there
is probable cause to believe a violation has occurred, the former
type of determination in effect constitutes a finding of no probable
cause and terminates the agency’s inquiry. In this sense, a determination
of insufficient facts is a final ruling by the agency. There is a
much greater risk of unfair prejudice involved in introducing a final
agency ruling as opposed to a probable cause determination, because
a jury might find it difficult to evaluate independently evidence
of discrimination after being informed of the investigating agency’s
final results. . . . Accordingly, we have held that a district court
asked to admit an agency’s letter of violation must weigh the letter’s
prejudicial effect against its probative value pursuant to Rule 403.
. . . We conclude that the same rule should apply when a district
court is asked to admit an agency’s determination that insufficient
facts exist to continue an investigation.
Id. at 1015 (citations and footnote omitted). The court held
that the lower court’s failure to weigh the prejudicial effect of
these documents against their probative value was harmless error,
because the plaintiff’s case “was not particularly strong,” and the
defendant produced substantial evidence of its nondiscriminatory reasons.
The court’s discussion of the hearsay objection to the descriptions
of witness statements in the Dismissal Memo is described in section
M., Hearsay and Its Exceptions, below.
McGarry v. Board of County Commissioners of County of Pitkin,
175 F.3d 1193, 1198–99 n.2, 79 FEP Cases 964 (10th Cir. 1999), reversed
the grant of summary judgment to the defendants. However, the court
noted that the EEOC’s determination letter, stating that its investigation
had not established a violation of Title VII, “would be admissible
under FED. R.EVID. 803(8)(C).” (Citation omitted.)
Lathem v. Department of Children and Youth Services, 172 F.3d
786, 791–92, 79 FEP Cases 1267 (11th Cir. 1999), affirmed the judgment
on a jury verdict for the plaintiff. The court rejected the defendant’s
argument that the lower court had abused its discretion in declining
to admit the EEOC’s and Georgia Commission on Equal Opportunity’s
no-cause findings. “Although trial courts admit EEOC determinations
in bench trials, this liberal admissibility rule does not apply to
jury trials. . . . Instead, the district court must make the admissibility
determination on an individual basis, considering the evidence’s probative
value and the danger of unfair prejudice.” Id. at 791 (citation omitted;
footnote omitted). The defendant argued that the refusal to admit
the findings prejudiced it because the plaintiff had not identified
one of her two comparators to the agencies. “Lathem, however, argued
that the district court should not admit the reports because the EEOC
and CEO failed to interview certain witnesses and review certain documents
during its investigation. District courts have broad discretion with
respect to the admissibility of evidence. . . . Because Lathem offered
a legitimate reason why the reports may have unfairly prejudiced her
case, we find that the district court did not abuse its discretion
when it refused to admit in this jury trial the EEOC’s and CEO’s no-cause
determinations.” Id. at 791–92 (citation omitted).
| |
1. Attorney-Client
Privilege |
Arnold v. Cargill Inc., 2004 WL 2203410 (D. Minn. Sept. 24,
2004), held that counsel for plaintiffs breached defendant’s attorney-client
privilege by seeking out and obtaining information from a former manager
who had been involved in the defense against a prior class action,
working directly with defense counsel, obtaining from him documents
labeled privileged, and failing to return the documents promptly.
The court disqualified plaintiffs’ counsel from representation of
the named plaintiffs and of the class they sought to represent.
| |
2. Employee
Assistance Programs |
Oleszko v. State Compensation Ins. Fund, 243 F.3d 1154, 85
FEP Cases 483 (9th Cir.), cert. denied, 534 U.S. 892 (2001), a Title
VII case, extended the psychotherapist-patient privilege to Employee
Assistance Program personnel.
Carman v. McDonnell Douglas Corp., 114 F.3d 790, 73 FEP Cases
1793 (8th Cir. 1997), refused to recognize a corporate ombuds’ privilege
in an ADEA, ERISA, and Missouri Human Rights Act case, and ordered
disclosure of employee communications to the ombud.
Virmani v. Novant Health Inc., 259 F.3d 284 (4th Cir. 2001),
a § 1985(3) race discrimination case, refused to recognize a privilege
for peer review records.
McCombs v. Meijer, Inc., 395 F.3d 346, 359, 95 FEP Cases 1
(6th Cir. 2005), affirmed the judgment on a jury verdict for the Title
VII sexual harassment plaintiff, and held that the lower court did
not abuse its discretion by allowing Elizabeth Bjick (“Bjick”) to
testify as an expert about the psychological impact that McCombs suffered
as a result of the harassment. Bjick was a trainee, working under
the supervision of a licensed psychologist as permitted by Ohio law.
“As indicated in her testimony, Bjick worked under the supervision
of another licensed psychologist, Dr. Virginia Reid, who, in fact,
signed all of Bjick’s diagnoses and treatments. Meijer does not offer
authority that requires Dr. Reid to be present while Bjick testified
about her opinion regarding McCombs—the opinion that she had established
under the supervision of Dr. Reid.”
Weisgram v. Marley Co., 528 U.S. 440 (2000), affirmed the
Eighth Circuit’s direction that the district court enter judgment
as a matter of law for the defendants, where the lower court determined
that expert evidence was erroneously admitted at trial and that the
remaining evidence was not sufficient to be submitted to the jury.
The wrongful-death plaintiffs had introduced the testimony of three
experts to prove that an alleged defect in a heater caused the death
of Bonnie Weisgram. There was no other evidence of causation. The
jury returned a verdict for plaintiffs. On appeal, the Eighth Circuit
held that the testimony of the experts was inadmissible because it
was based on speculation. It refused to remand the matter for a new
trial, stating that the plaintiffs had had a fair opportunity to prove
their strict-liability claim and there was no reason to give them
a second chance. Id. at 1015–16. Affirming, the Court rejected plaintiffs’
argument that they relied on the admission of the expert testimony,
and that they should be given the opportunity to introduce other evidence
of causation
As Neely recognized, appellate rulings on post-trial
pleas for judgment as a matter of law call for the exercise of “informed
discretion” . . . and fairness to the parties is surely key to the
exercise of that discretion. But fairness concerns should loom as
large when the verdict winner, in the appellate court’s judgment,
failed to present sufficient evidence as when the appellate court
declares inadmissible record evidence essential to the verdict winner’s
case. In both situations, the party whose verdict is set aside on
appeal will have had notice, before the close of evidence, of the
alleged evidentiary deficiency. See Fed. Rule Civ. Proc. 50(a)(2)
(motion for judgment as a matter of law “shall specify . . . the law
and facts on which the moving party is entitled to the judgment”).
On appeal, both will have the opportunity to argue in support of the
jury’s verdict or, alternatively, for a new trial. And if judgment
is instructed for the verdict loser, both will have a further chance
to urge a new trial in a rehearing petition.
Since Daubert, moreover, parties relying on expert
evidence have had notice of the exacting standards of reliability
such evidence must meet. . . . It is implausible to suggest, post-Daubert,
that parties will initially present less than their best expert evidence
in the expectation of a second chance should their first try fail.
We therefore find unconvincing Weisgram’s fears that allowing courts
of appeals to direct the entry of judgment for defendants will punish
plaintiffs who could have shored up their cases by other means had
they known their expert testimony would be found inadmissible. . .
. In this case, for example, although Weisgram was on notice every
step of the way that Marley was challenging his experts, he made no
attempt to add or substitute other evidence. . . . (“[A] litigant’s
failure to buttress its position because of confidence in the strength
of that position is always indulged in at the litigant’s own risk.”).
Id. at 1020–21 (footnotes and citations omitted). The court
noted that the plaintiffs “offered no specific grounds for a new trial,”
id. at 1021, even in their petition for rehearing below, id. at 1021–22,
and that the court of appeals had concluded “that this was ‘not a
close case.’” Id. at 1022. It suggested that a remand for a new trial,
instead of directing the entry of judgment for the verdict loser,
may be appropriate “when, for example, the trial court excluded evidence
that would have strengthened the verdict winner’s case or ‘itself
caused the insufficiency . . . by erroneously [imposing] too high
a burden of proof.’” Id. at 1021 n.13.
Comment by Richard Seymour on Weisgram v. Marley Co.:
As a practical matter, this case will require any party having the
burden of proof on an issue, and having introduced any evidence to
which another party had objected, to present what would otherwise
be considered cumulative evidence in order to preserve the opportunity
for a new trial in the event that the initial evidence is ultimately
ruled inadmissible. This will extend the length of trials and complicate
the task of keeping the jury’s attention. Counsel for all parties
may wish to enter into stipulations providing for new trials instead
of judgment in the event of a reversal of a decision admitting particular
evidence, in order to keep trials shorter and to keep the jury’s attention.
| |
1. Authentication
of E-Mails |
United States v. Siddiqui, 235 F.3d 1318, 1322–23 (11th Cir.
2000), cert. denied, 533 U.S. 940 (2001), a criminal case, held that
defendant’s e-mails were properly authenticated by a series of steps:
In this case, a number of factors support the authenticity
of the e-mail. The e-mail sent to Yamada and von Gunten each bore
Siddiqui's e-mail address “msiddiquo@jajuar1.usouthal.edu” at the
University of South Alabama. This address was the same as the e-mail
sent to Siddiqui from Yamada as introduced by Siddiqui's counsel in
his deposition cross-examination of Yamada. Von Gunten testified that
when he replied to the e-mail apparently sent by Siddiqui, the “reply-function”
on von Gunten's email system automatically dialed Siddiqui's e-mail
address as the sender.
The context of the e-mail sent to Yamada and von
Gunten shows the author of the e-mail to have been someone who would
have known the very details of Siddiqui's conduct with respect to
the Waterman Award and the NSF's subsequent investigation. In addition,
in one e-mail sent to von Gunten, the author makes apologies for cutting
short his visit to EAWAG, the Swiss Federal Institute for Environmental
Science and Technology. In his deposition, von Gunten testified that
in 1994 Siddiqui had gone to Switzerland to begin a collaboration
with EAWAG for three or four months, but had left after only three
weeks to take a teaching job.
Moreover, the e-mail sent to Yamada and von Gunten
referred to the author as “Mo.” Both Yamada and von Gunten recognized
this as Siddiqui's nickname. Finally, both Yamada and von Gunten testified
that they spoke by phone with Siddiqui soon after the receipt of the
e-mail, and that Siddiqui made the same requests that had been made
in the e-mail. Considering these circumstances, the district court
did not abuse its discretion in ruling that the documents were adequately
authenticated.
Lorraine v. Markel American Ins. Co., __ F.R.D. __, 2007 WL 1300739
(D. Md. May 4,v2007) (No. CIV.A.PWG 06 1893), denied summary judgment
because both parties relied onunauthenticated e-mails. Judge Grimm
engaged in an extensive analysis of authentication. Acopy of his decision
is attached.
Whatley v. South Carolina Dept. of Public Safety, 2007 WL
120848 (D. S.C. Jan. 10, 2007) (No. 3:05-0042-JFA-JRM), followed Siddiqui,
and stated
Electronic mail communications can normally be authenticated
by affidavit of a recipient, comparison of the communications content
with other evidence, or statements or other statements from the purported
author acknowledging the email communication. . . .
After reviewing the documents in question, the court
agrees with defendants that these alleged communications have not
been properly authenticated. Plaintiff has failed to provide the court
with any foundation, authentication, or certification that the documents
are legitimate despite defendants' raising concern about their authenticity.
Furthermore, none of the alleged communicants in these emails have
authenticated them by affidavit. Finally, plaintiff did not attach
an affidavit to the documents demonstrating their authenticity. .
. . Without this requisite showing, we are unable to substantiate
the validity of these electronic communications.
(Citations omitted.)
Authentication by affidavit, declaration, or deposition testimony
is sufficient. Avery v. Idleaire Technologies Corp., 2007 WL 1574269
(E.D. Tenn. May 29, 2007) (No. 304-CV-312) at p. *5 n.1; Illustro
Systems Intern., LLC v. International Business Machines Corp., 2007
WL 1321825 (N.D. Tex. May 4, 2007) (No. CIV.A. 3:06-CV-1969-L) at
p. *4.
Trial testimony can authenticate electronic files even where
notes and source files have been destroyed, where the memory of witnesses
is very specific. Loussier v. Universal Music Group, Inc., 2007 WL
1098687 (S.D. N.Y. April 11, 2007) (No. 02 CIV. 2447 KMW), at p. *9.
| |
2. Presumption
of Authenticity? |
Sundance Image Technology, Inc. v. Cone Editions Press, Ltd.,
2007 WL 935703 (S.D. Calif. March 7, 2007) (No. 02 CV 2258 JM (AJB)),
rejected defendants’ challenge to the authenticity of an e-mail used
in support of the court’s grant of partial summary judgment on libel,
remarking at p. *8 n.8:
Defendants object that the email lacks foundation
and that it is immaterial to the present motion. However, the email
appears to be written by defendant Cone and he is free to dispute
its authenticity, which he has not. Moreover, the email is not immaterial
because it contains one of the statements alleged to be libelous.
Paris Foods Corp. v. Foresite Foods, Inc., 2007 WL 568841
(N.D. Ga. Feb. 20, 2007) (No. 105-CV-610-WSD), stated:
Plaintiffs do not deny that the parties made these
oral agreements, nor do they deny the existence of the emails and
letters relied upon by Defendants. Instead, they argue that the record
displays “Collins' erstwhile attempts to manufacture ... an agreement
with Paris through fallacious letter confirmations and surreptitious
notations of check stubs during the Fall of 2004, but each one of
those machinations was caught by Paris' vigilant staff and rejected.”
(Opp. to Def. MSJ [100], at 9.) Plaintiffs, however, do not point
to any evidence indicating that Paris Foods did not enter into the
agreements or that the conversations, emails and letters relied upon
by Defendants are not authentic.Plaintiffs fail to demonstrate these
agreements were not reached, or that Defendants' evidence of them
is unreliable.
Dobbins v. Postmaster General and CEO, U.S. Postal Service,
2007 WL 295215 (D. Me. Jan. 29, 2007) (No. CIV. 05-CV-140-B-W), aff’d,
2007 WL 906595 (D. Me. March 22, 2007) (No. CIV. 05-140-B-W), stated
at p. *10 n.6:
Considering the many, many presentations given by
the bench and the bar on summary judgment practice, it occurs to me
that altogether too few practitioners observe the basic practice of
citing authenticating testimony (which could be counsel's own summary
judgment affidavit, attached to the electronic document as “exhibit
1”) in support of exhibits that are critical to the matter at hand.
Jimenez v. Madison Area Technical College, 321 F.3d 652, 91
FEP Cases 193 (7th Cir. 2003), affirmed the sanction of dismissal
of plaintiff’s claim for having presented fabricated emails and other
documents in support of her claims after notice of defendants’ investigation
of the authenticity of the e-mails and other documents and after the
purported authors all denied any knowledge of them, noted the failure
of plaintiff’s counsel to appeal the $16,473 Rule 11 sanction entered
against him, and sanctioned plaintiff and her counsel for filing a
frivolous appeal—they challenged only the severity of the sanction
of dismissal, and did not deny the fraudulent character of the e-mails
and other documents—by awarding defendants their attorneys’ fees on
appeal.
Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 91 FEP Cases
1574 (S.D. N.Y. 2003), a Title VII sex discrimination case, ordered
the defendant to produce in discovery e-mails that had been deleted
and that now resided only on 94 back-up tapes, at its own expense,
estimated to be about $175,000. The court noted that requiring plaintiff
to pay the expenses of such discovery could often make the discovery
inaccessible regardless of its relevance. It stated that the production
of electronic discovery can be cheaper than the production of paper
discovery. Finally, the court announced a new seven-factor test to
determine who should pay for the discovery of electronic records:
Set forth below is a new seven-factor test based
on the modifications to Rowe discussed in the preceding sections.
1. The extent to which the request is specifically
tailored to discover relevant information;
2. The availability of such information from other
sources;
3. The total cost of production, compared to the
amount in controversy;
4. The total cost of production, compared to the
resources available to each party;
5. The relative ability of each party to control
costs and its incentive to do so;
6. The importance of the issues at stake in the litigation;
and
7. The relative benefits to the parties of obtaining
the information.
2. The Seven Factors Should Not Be Weighted Equally
Whenever a court applies a multi-factor test, there
is a temptation to treat the factors as a check-list, resolving the
issue in favor of whichever column has the most checks. But “we do
not just add up the factors.” When evaluating cost-shifting, the central
question must be, does the request impose an “undue burden or expense”
on the responding party? Put another way, “how important is the sought-after
evidence in comparison to the cost of production?” The seven-factor
test articulated above provide some guidance in answering this question,
but the test cannot be mechanically applied at the risk of losing
sight of its purpose.
Wiginton v. CB Richard Ellis, Inc., 2004 WL 1895122, 94 FEP
Cases 627 (N.D. Ill. Aug. 10, 2004), modified the Zubulake factors
by adding a “marginal utility” factor and granted in part plaintiffs’
motion to require defendant to pay the costs of restoring data defendant
had rendered inaccessible, by requiring that defendant pay 25% of
the costs pendente lite.
Lust v. Sealey, Inc., 383 F.3d 580, 585, 94 FEP Cases 645
(7th Cir. 2004), affirmed the judgment for the Title VII plaintiff
except for punitive damages, stating in dictum that the general tort
rule barring evidence of curative actions as showing the steps that
could have been taken earlier to avoid injury, is not limited to tort
cases and could reasonably be applied in employment discrimination
cases as well.
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V. Employer’s
Access to Employee Communications Over the Employer’s Electronic
Systems |
Quon v. Arch Wireless Operating Co., Inc., __ F.3d __, 2008
WL 2440559, (9th Cir. June 18, 2008, No. 07-55282), reversed the grant
of summary judgment to the defendant text messaging contractor on
plaintiffs’ claims that it improperly turned over to the City of Ontario,
their employer, the archived text of text messages sent over City
pagers. The court stated at p.*2:
The City had no official policy directed to text-messaging
by use of the pagers. However, the City did have a general “Computer
Usage, Internet and E-mail Policy” (the “Policy”) applicable to all
employees. The Policy stated that “[t]he use of City-owned computers
and all associated equipment, software, programs, networks, Internet,
e-mail and other systems operating on these computers is limited to
City of Ontario related business. The use of these tools for personal
benefit is a significant violation of City of Ontario Policy.” The
Policy also provided:
C. Access to all sites on the Internet is recorded
and will be periodically reviewed by the City. The City of Ontario
reserves the right to monitor and log all network activity including
e-mail and Internet use, with or without notice. Users should have
no expectation of privacy or confidentiality when using these resources.
D. Access to the Internet and the e-mail system is
not confidential; and information produced either in hard copy or
in electronic form is considered City property. As such, these systems
should not be used for personal or confidential communications. Deletion
of e-mail or other electronic information may not fully delete the
information from the system.
E. The use of inappropriate, derogatory, obscene,
suggestive, defamatory, or harassing language in the e-mail system
will not be tolerated.
In 2000, before the City acquired the pagers, both Quon and
Trujillo had signed an “Employee Acknowledgment,” which borrowed language
from the general Policy, indicating that they had “read and fully
understand the City of Ontario's Computer Usage, Internet and E-mail
policy.” The Employee Acknowledgment, among other things, states that
“[t]he City of Ontario reserves the right to monitor and log all network
activity including e-mail and Internet use, with or without notice,”
and that “[u]sers should have no expectation of privacy or confidentiality
when using these resources.” Two years later, on April 18, 2002, Quon
attended a meeting during which Lieutenant Steve Duke, a Commander
with the Ontario Police Department's Administration Bureau, informed
all present that the pager messages “were considered e-mail, and that
those messages would fall under the City's policy as public information
and eligible for auditing.” Quon “vaguely recalled attending” this
meeting, but did not recall Lieutenant Duke stating at the meeting
that use of the pagers was governed by the City's Policy.
Although the City had no official policy expressly governing
use of the pagers, the City did have an informal policy governing
their use. Under the City's contract with Arch Wireless, each pager
was allotted 25,000 characters, after which the City was required
to pay overage charges. Lieutenant Duke “was in charge of the purchasing
contract” and responsible for procuring payment for overages. He stated
that “[t]he practice was, if there was overage, that the employee
would pay for the overage that the City had.... [W]e would usually
call the employee and say, ‘Hey, look, you're over X amount of characters.
It comes out to X amount of dollars. Can you write me a check for
your overage[?]’ ”
The court held that, under these facts, the employees had
a reasonable expectation of privacy in their text messages and the
City’s search of their archived messages was improper.
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II.
PRACTICAL CONSIDERATIONS |
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A. Case
Selection Information |
In deciding whether to take a class action or FLSA collective
action, the potential cost of litigation is an important factor. If
the defendant and its vendors have much of the critical information
in computer-readable form, it will enormously decrease transaction
costs for both sides.
Analysis of the electronic data may also enable each side
to form relatively quick estimates of the value of the case, enabling
the parties to engage in early settlement discussions.
No matter how many employees potential plaintiffs’ counsel
may interview in the prefiling or even pre-retainer investigation,
it often occurs that their perceptions of the causes of their problems
differ markedly from the real policies or practices causing their
problems. Many employers see no need to explain themselves to their
employees, or provide such partial information that they sow confusion.
They pay a price in more frequent litigation, but are happy because
they get summary judgments. It would be better to be clearer and not
be sued in the first place, but until they absorb that lesson plaintiffs’
counsel will have to continue to be very careful about relying on
their clients’ perceptions. Access to the electronic information leads
with some frequency to an understanding of the real nature of the
problem, requiring a fresh evaluation of the case.
Some companies or agencies with extensive computer-readable
information can make use of it to persuade plaintiffs’ counsel, even
prior to the filing of litigation, that there is no good case to be
made. This obviously requires attorneys of high integrity and professionalism
on both sides of the case.
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B. Whose
Electronic Evidence |
Practitioners should never fall into the trap of assuming
that only the company may have relevant electronic evidence.
State Employment Services and private employment agencies
may have computer files showing referrals to the employer, with information
on qualifications, race, gender, age, and disability.
Numerous employers contract out the initial screening to third-party
companies, which may administer a test on-line or over the phone,
and which may administer detailed questionnaires on education, prior
experience, and minute details of qualifications. The third party
may have records of applicants the defendant never obtained, or obtained
but no longer has accessible.
For higher-level positions, a corporate parent may receive
information and issue instructions. For lower-level positions, it
may issue changes to local qualification standards. For example, there
are still companies that insist on higher educational and other qualifications
whenever nonwhites are a large proportion of the available pool, and
lower qualifications elsewhere. It is good to know this.
Plaintiffs’ counsel or their expert may generate the most
important computer-readable files. In one case, we computerized the
entire job and department initial assignment, promotion, and disciplinary
information, with details of seniority, experience and education,
for all employees in a textile mill over the 15 years since the mill
opened.1 We needed it.
Hybrid files are also common. These occur when employer or
third-party files are supplemented with other information counsel
deem relevant, either of their own creation or by merging data from
multiple sources. For example, an employer’s data file on hires may
be 1 Lewis v. Bloomsburg Mills, 773 F.2d 561 (4th Cir. 1985). merged
with a third-party screener’s files to show information on the relative
qualifications of hired male applicants and unhired female applicants.
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C. Privilege
Considerations |
When counsel directly or through an expert or in-house personnel
create or merge electronic files for the purpose of litigation, the
work-product privilege and sometimes attorneyclient privilege have
to be considered.
If the new or merged files will eventually give rise to exhibits
in connection with a motion or to trial exhibits, most courts will
order the parent files to be turned over to the opposing side.2 The
timing of the turn-over may be important in the litigation and in
settlement discussions. Counsel may legitimately not reach a decision
to use trial exhibits stemming from such files until late in the day,
and it is doubtful that any obligation to turn over the privileged
parent files could arise before that decision is made.
If opposing counsel have high integrity and professionalism,
it is possible to work out a free-flowing exchange of information
on merged and created files where counsel believe the files may be
used in the future. Both sides may cooperate in the creation of a
data base that both sides may then use in the litigation. The creation
and checking of such a database can require extensive calendar and
professional time, but will still often save a multiple of that professional
time in avoiding a myriad of challenges for which the trial court
will have little time or patience.
One of the many steep costs defendants justly pay for retaining
junkyard dogs as counsel is that these types of case-shortening and
cost-cutting techniques are not available.
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D. Identifying
Potential In-House Electronic Evidence |
Before commencing a proceeding, it is advisable to meet with
as many employees and former employees as possible, to figure out
the company’s recordkeeping system. Paycheck stubs can be useful,
as can all of the computer-generated personnel and payroll information
employees receive.
For example, if employees receive company newsletters at their
home, the employer will be hard-pressed to assert that it does not
have a record of employee addresses.
If employees receive printouts of their job histories, qualifications
on file, statements of interest in higher-paid positions on file,
and hours worked in the current week, potential counsel for the employees
knows that these kinds of information will not have to be created
from scratch. The case may be litigable with significantly lower transaction
costs for both sides, making more relief available to the clients.
2 But see Lowery v. Circuit City Stores, Inc.,
158 F.3d 742, 765 (4th Cir. 1998), vacated and remanded on another
point, 527 U.S. 1031 (1999) (denying defendant’s argument that it
was deprived of effective defense at trial because lower court refused
to order production of data base compiled by non-testifying expert
consultants, which testifying expert used to produce trial exhibits).
It is critical to gather facts in advance of a problem, to
support a potential claim for obstruction of justice or spoliation
in the event that the company destroys currently available information
as soon as it gets wind of a possible legal proceeding. Each current
employee in contact with plaintiffs’ counsel should check to see how
far back his or her e-mails are currently retained on the company’s
system.
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E. Ensuring
the Preservation of Electronic Evidence |
As soon as plaintiffs’ counsel decides to accept the retainer
and it is wise to reveal this fact to the prospective defendant, plaintiffs’
counsel should notify the defendant, at a high level, of the need
to guarantee the preservation of electronic as well as documentary
evidence. If there are no outside counsel yet known to plaintiffs’
counsel, a letter should be sent to the CEO, Chairman of the Board,
and General Counsel. If outside counsel are known, the letter should
go only to outside counsel.
The letter should refer specifically to electronic evidence;
some defense counsel routinely caution their clients to preserve documentary
evidence but do not think to include electronic evidence, back-up
tapes, etc., in their caution.
Setting the electronic evidence aside does not necessarily
preserve it. The files need to be copied onto fresh media every so
often, or they will deteriorate.
It is also important to make sure that the employer either
preserves the means to read the files, or converts the files into
a generally readable format. For example, I was in a case in which
intervenors wanted access to electronic files the defendant was under
a legal duty to maintain. The files were in fact in the computer room.
Unfortunately, their format could be read only by the computer they
had sold to a South American company when they upgraded, and they
had not bothered to migrate the files onto the new system. On deposition,
the IT official said that the law required them to keep the files,
but does not require that they be readable.
If there is no response, or if there is any resistance, to
the letter, plaintiffs’ counsel should consider filing an action to
preserve the evidence or to obtain pre-suit copies of the evidence
that can then be preserved properly.
On more than one occasion, it was only in producing the files
that the defendant became aware of their deterioration. Sometimes,
one expert’s equipment was able to use the underlying data where another
expert’s equipment was not. Sometimes, plaintiffs’ copy of the data
survives and the defendant’s own original does not.
There are enough problems that it is in the interests of both
sides to have a constructive working relationship as to at least the
technical factors.
It is critical to know what is available. Much may be irrelevant,
but it is hard to make that decision without knowing what is available.
For example, in one case defense counsel had assured me the
company had no computerized record of the race of employees. He had
checked personally. When we took a deposition and enquired of a data
processor the meaning of each field in the employee database, including
the obviously irrelevant ones, it transpired that the company did
not use the “Christmas Bonus” field for information on Christmas bonuses,
because it did not pay such bonuses. That was the field where race
codes were stored.
Practitioners should never assume the honesty of the information
in the files. Even defense counsel may be deceived by his or her client’s
misdirection in data-processing files. once had a class case in which
defense counsel was convinced his client faced no risk because the
vast majority of African American applicants had taken themselves
out of the selection process by failing to return required documents.
His client submitted the printout as part of sworn discovery responses.
When we did a spot-check and called the applicants, however, some
of them still had the computer-generated postcards or letters stating
that they had failed the hiring test. All they “failed to return”
was a passing score.
In a proper case, it may be worthwhile to compare a file that
may have been “doctored” with an earlier version available from the
back-up tapes.
A file that looks relevant may in fact be unintelligible without
other files that do not look relevant. For example, a “Job Assignment”
file looks relevant but may contain only two dates and four codes.
The dates would be the starting and ending dates of assignment to
the job, the first code may relate to a second file containing the
employee name and SSN, the second code may relate to a third file
containing the facility with the job, the third code may relate to
the job name, the fourth code may relate to shift, the facility and
job files may in turn relate to a fourth file containing the pay rate,
and the employee name and SSN file may relate to an fifth file containing
demographic information about the employee, a sixth file containing
information about the employee’s qualifications, and a seventh file
containing information about the employee’s performance evaluations.
Plaintiffs’ counsel should ask for copies of all manuals,
memoranda, checklists, etc., used by any persons in any job categories
or departments who enter personnel information into the computer files
or get reports out. They will need samples of blank forms and of filled-in
forms, and will need to compare all of these sources with what is
in the computer files.
These should be studied in detail before a deposition. One
cannot “wing” these matters.
Assuming that the files are of manageable size, it is often
much cheaper to get the entire cluster of files than it would be to
go into the files and redact information. Redaction can add enormously
to the costs of production.
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2. Getting
Documents in their Native Format |
The “properties” of a document can contain critical information.
For example, an employer will tend to win if plaintiff cannot dent
the decisionmaker’s statement that he had decided to fire the plaintiff
and started to prepare the paperwork a week before she filed an EEOC
charge. If the plaintiff gets a copy of the termination memorandum
from the computer network in “native format”—i.e., with the “properties”
information still attached—she will tend to win if the memorandum
shows that the termination paperwork was initiated the day after she
filed her charge.
One should always keep in mind that the company’s decision
to defend a claim may have resulted from its having been deceived
by the decisionmaker. Without the plaintiff’s pointing out the “properties”
information, the defendant may honestly believe it is in the right,
and refuse to settle on reasonable terms. With that information, it
can make a more realistic choice about the risks of litigation.
E-mails are an enormously powerful tool for getting to the
heart of what happened, and why. A single e-mail may alter the result
of the case.
The problem is finding that single e-mail. I get about 200
e-mails a business day, with 30 to 50 more each weekend day. That’s
1,100 a week, or 57,200 e-mails a year. If I am a pack rat and save
my e-mails to my hard drive, in the four years I’ve been with my firm
I would have accumulated 228,800 e-mails. As with most firms and organizations,
some would be in the active e-mail folder, some in an archive folder,
some on back-up tapes as active or archived, some only on my hard
drive, and all potentially available in senders’ and recipients’ e-mail
folders.
To avoid looking at every e-mail—because life is short, resources
are limited, and the case has other demands—one must come up with
an algorithm to search sources of e-mail records. The needs of the
case will produce different search imperatives. We all know how difficult
it is to get the precise case we need to come up in a search of computerized
data bases based on strings of key words, because there are so many
ways courts can phrase things. The problem is compounded with e-mails,
because at least courts use formal English.
For example, in the hypothetical we would all agree that the
following kinds of e-mails between senior officials and Paula Plaintiff’s
supervisor would be of great interest to her:
• Someone’s been pulling the stats on our picks.
I suspect you-know-who. Can you give her enough work so she doesn’t
have time for this garbage?
• Get serious! How many female golf pros can
you name?
• What have you got on our problem situation?
• Somebody’s getting ideas above their station.
A little discouragement is in order, but be careful. We want to keep
the employee.
This illustrates why a multi-tiered strategy works best. Key-word
searches are important, but it is also important to monitor all the
e-mail traffic of key individuals. If substantial traffic consists
only of routine reports of some kind—which will be readily apparent
in an eyeball inspection—they can be excluded.
It is also useful to test algorithms in advance on small sets
of e-mails, with problematic emails drafted for the purpose and inserted,
to see how well the algorithm does in practice.Computerized legal
searches are often fine-tuned when one sees what the search terms
included that should have been excluded, and excluded that should
have been included.
It is highly desirable that the full search be gotten right,
the first time.
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4. Document
“Retention” Policies |
E-mails present special preservation imperatives. The advice
of some defense counsel is to ensure that e-mails are purged quickly.
Some companies have document-destruction policies—uniformly called
“document retention” policies in Orwellian doublespeak3—resulting
in the automatic erasure of e-mails after three weeks.
Putting aside the legal requirements that records relevant
to compliance with the fair employment laws be retained,4 employers
dancing on this sword should remember that it is twoedged, competent
plaintiffs’ counsel can often make them slip, and falling on sharp
objects— even of your own devising—can be painful.
For example, if plaintiffs can put together a decent case
despite the destruction of documents, there are a thousand ways in
which capable counsel can bring to the jury’s attention that the documents
were not preserved. Juries do not like that. In an extreme case, if
defense counsel suggested application of the “document retention”
shedder after it became reasonably clear a claim would be filed, defense
counsel may be disqualified because counsel and their firm may become
co-defendants in an obstruction-of-justice or spoliation count.
Even if the destruction is inadvertent rather than purposeful,
it may result in adverse inferences where the defendant violated a
duty to preserve the documents, such as a duty imposed by a record
preservation order. Finally, even if a destruction is inadvertent
and there was no violation of a court order, the destroyed documents
are often the employer’s only record of any nondiscriminatory explanation.
In a class action, the absence of supporting documentation means that
the employer literally has no idea why any facially-qualified candidate
was not selected. Some claims will be defeated on obvious grounds,
but there may be no remaining defense as to the vast majority of claimants.
3 The destructive commands of so-called
“retention” policies have been well documented in recent corporate
scandals. Nor is this phenomenon limited to private companies or to
the United States. In December 2004, the British government announced
a new “retention” policy that would require the destruction of massive
amounts of information just before a new Freedom of Information law
was to go into effect.
4 EEOC regulations require that records be preserved during
the pendency of EEOC charges and any ensuing litigation, as well as
to show the presence or absence of disparate impact. 29 C.F.R. §§
1602.14 and 1607.4. Unjustified failure to comply should give rise
to adverse inferences. EEOC v. American National Bank, 652 F.2d 1176,
1195 (4th Cir. 1981); Lewis v. Bloomsburg Mills, 773 F.2d 561 at 568.
Contra: Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277,
1287 n.13 (5th Cir. 1994), cert. denied, 513 U.S. 1149 (1995).
| |
G. Meeting
of Counsel on Electronic Discovery |
Once the necessary documents are in hand and have been studied,
and sometimes after the basic computer information has already been
produced, the most effective and cost-efficient step is often to schedule
a meeting of counsel, with each side bringing their data-processing
people. When data-processing people speak directly, they can often
come to a quick understanding of the nature of the data iles and of
any problems in their structure or use, translate it into English
in each others’ hearing for the benefit of counsel, and enable counsel
to get to the heart of the matter.
When each side communicates only between counsel, with the
computer experts speaking only to counsel, the result is about as
effective as trying to connect to the Internet without a modem, by
imitating the sounds modems make.
Court reporters can take down the meeting, but it is often
more useful to cover the necessary ground informally, and then, if
needed, to have a deposition laying everything out in legally useable
form.
If a relationship of trust can be developed, it can continue
throughout the case. My exp
