Advanced Employment Law and Litigation
Washington , D.C.
December 5, 2008

Current Evidentiary Problems in Employment Cases

By Richard T. Seymour*

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*Law Office of Richard T. Seymour, P.L.L.C., 1150 Connecticut Avenue N.W. , Suite 900, Washington , D.C. 20036-4129 . Telephone: 202-862-4320. Cell: 202-549-1454. Facsimile: 800-805-1065. Email: [email protected]. Some of the information in this paper is used with permission from an upcoming edition of Richard T. Seymour and John F. Aslin, Equal Employment Law Update (Bureau of National Affairs, Washington , D.C. , 2007), copyright © American Bar Association, 2007. For copies, contact BNA at 1-800-960-1220; members of the Labor and Employment Law Section are entitled to a 25% discount as a benefit of Section membership. Mention priority code EQL in order to receive the discount.

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Table of Contents

I.Legal Developments

  • A.Evidence Considerations Under the Inferential Model Verdicts and Verdict Forms
  • B. Evidence Considerations Under Mixed Motives Analysis
  • C. Circumstantial Evidence
    • 1. General
    • 2. Too Expensive to Fire
    • 3. Reverse Temporal Proximity
    • 4. Changing Stories
    • 5. Failure to Follow Employer’s Own Policies
    • 6. Discriminatory Statements
    • 7. Absence of Female Supervisors
    • 8. “Counterwight” Evidence
  • D. Comparators
    • 1. The Supreme Court
    • 2. Defendant’s Lack of Comparators
    • 3. Defendant’s Comparators Accepted
    • 4. Rejection of Defendant’s Comparators
    • 5. Plaintiff’s Lack of Comparators
    • 6. Acceptance of Plaintiff’s Comparators
    • 7. Rejection of Plaintiff’s Comparators
    • 8. Comparators Showed the Fourth Prong of the Prima Facie Case
    • 9. Comparability Should Be Exact as to Material Elements
    • 10. Comparability Need Not Be Exact
  • E. Comparative Qualifications and Evidence Bearing on Employee Performance
  • F.Judicial Representation as to Comparators at SJ is Binding at Trial
  • G. Statistics
  • H. Discriminatory Statements
    • 1. Recent Noteworthy Decisions
    • 2. Courts Refusing to Rely on Biased Statements
    • 3. Courts Relying on Biased Statements
    • 4. Statements by Decisionmakers
    • 5. Speakers Who Affected, But Did Not Make, the Decision
    • 6. Speakers Who Were Not Aware of the Reasons for the Decision
    • 7. Other Manager Speakers Who Were Not Decisionmakers
    • 8. Temporal Remoteness of the Biased Remarks
    • 9.Contentions that Biased Remarks Were Isolated
    • 10. The Relevance of Biased Remarks by Co-Workers
  • I. Independent Investigations
    • 1. The Effect of Independent Investigations
    • 2. Rebuttals to Independent-Investigation Defenses
  • J. Evidence Considerations Relating to Disparate Impact
  • K. Evidence Considerations Relating to Constructive Discharge
  • L. Evidence Considerations Relating to Reductions in Force
  • M. Evidence Considerations Relating to Summary Judgment
    • 1. Effect of Contradictions in the Employer’s Case
    • 2. Harassment Cases
    • 3. Summary Judgment in Pattern-and-Practice Cases
  • N. Defense Mental Examinations, Often Misnamed “Independent”
  • O. Evidentiary Rulings
    • 1. Admissible Form
    • 2. Hearsay
    • 3. Reprimand of Supervisor for Imposing Insufficient Discipline
    • 4. Exclusion of Evidence Not Produced in Discovery
    • 5. Exclusion of Witness Not Listed in Pretrial Order
    • 6. Admissions
    • 7. Ineffective Denials
    • 8. Prior Claims of Discrimination
    • 9.Other Employees’ Claims of Discrimination
    • 10.Disaggregating the Evidence
    • 11. Prior Deposition Testimony As Limiting Trial Testimony
    • 12. Competence
    • 13. Plaintiff’s Own Testimony
    • 14. Inferences Arising from Destruction of Records
    • 15. Determinations of the EEOC and State and Local Agencies
    • 16. The EEOC “Reasonable Cause” Determination
    • 17. Hearsay and its Exceptions
    • 18. The Balancing Test
    • 19.Testimony on Advice of Counsel
    • 20.The Time Period for Which Evidence Was Permitted
    • 21. Judge’s Questions
    • 22. Counsel’s Failure to Follow Through
    • 23. Criminal Conviction of the Harasser
    • 24.Criminal Conviction Followed by Pardon
    • 25.Evidence of Post-Event Occurrences
    • 26.Evidence of Post-Event Occurrences
  • P. Rule 412, Fed. R. Evid.
  • Q. Privilege.
    • 1. Attorney-Client Privilege
    • 2. Employee Assistance Programs
    • 3. Ombuds
    • 4. Peer Review Records
  • R. Experts
  • S. Cumulative Evidence
  • T. Electronic Evidence.
    • 1. Authentication of E-Mails
    • 2. Presumption of Authenticity?
    • 3. Counsel’s Say-So
    • 4. Inauthentic E-Mails
  • U. Curative Actions
  • V. Employer’s Access to Employee Communications Over the Employer’s Electronic Syst

II. Practical Considerations

  • A.Case Selection Information
  • B. Whose Electronic Evidence?
  • C. Privilege Considerations
  • D.Identifying Potential In-House Electronic Evidence
  • E. Ensuring the Preservation of Electronic Evidence
  • F.Objects of Discovery
    • 1. Data Bases
    • 2. Getting Documents in their Native Format
    • 3. E-Mails
    • 4. Document “Retention” Policies
  • G. Meeting of Counsel on Electronic Discovery
  • H.Reducing Transaction Costs
  • I. The Role of the Court in Managing Electronic Discovery
  • J. The Use of Computer Files at Trial


A. Evidence Considerations Under the Inferential Model

a. Other Instances of Discrimination

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 lower 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:

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.

United Statesv. Arvizu, 534 U.S. 266 (2002), a Fourth Amendment case, follows Reeves v. Sanderson Plumbing Products, Inc., 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:

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.

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:

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

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:

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.

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 . . . .

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.

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:

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.

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