Empathy and the Trial Lawyer

I'm meeting with a new client later today about her potential sexual harassment case. She did not want to share any information with me over the phone. So, I don't have much information to work with. All I really know is that she is a member of a protected class. That's it.

This led me think about how I approach the first meeting with a potential client. What am I trying to accomplish? What is my goal (and I'm not talking about getting a signed retainer agreement)? How can I best help the person who comes to me for help?

I think answering these questions start with empathy. "Empathy is the capacity to understand what another person is experiencing ***, ie, the capacity to place oneself in another's shoes." Empathy in my opinion is a direct link to litigation and trial strategies and outcomes. If I can understand what another person is going through then I can express to judges and juries the legal conception of that experience. This means more than pigeonholing the client's employment experience into legal elements. It means at least for me visualizing the client's experience at work. The visual has to be more than a scrapbook of snapshots over time. The visual should be like a movie because movies tell stories. The visual must be a moving picture that can be conveyed in writing and orally, as if directing a stage or screen play. This is why I tell my evidence law students to try to see in their mind's eye the facts of a lawbook case. The facts must be brought to life.

Empathy allows me to gain a sense of whether the law provides a remedy for the employee. Empathy informs me if this is someone that I can actually help. Empathy connects me to what other reasonable people are going to think about the client's workplace experience. Making that connection is key to defeating a summary judgment motion (ie., reasonable minds can come to different conclusions) and to persuading a jury to award damages.

Circuit Court Title VII Scoreboard For The Week of January 12, 2014

Employers Romp, 8-1

FOR DEFENDANT

Davis v. James, 14-6063 (10^th Cir., Jan. 15, 2015)

Plaintiff  waived appellate review of discrimination claims because she failed to make any argument about them until her reply brief. (Citing Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). Moreover, Plaintiff failed to allege that her 2006 EEO complaint included allegations of "unlawful employment practices" under Title VII.

Cassotto v. Donahoe, 14-560 (2^nd Cir., Jan. 14, 2015)

While defendant's motions for judgment as a matter of law and a new trial were pending, the Supreme Court decided University of Texas Southwestern Medical Center Center v. Nassar, which subjected Title VII retaliation claims to a heightened standard of "but-for" causation. See 133 S.Ct. 2517, 2533 (2013). On that basis, the district court granted the government's motion for a new trial, resulting this time in a verdict for defendant.  Plaintiff argued on appeal that defendant had invited error by requesting an instruction in accordance with pre-Nassar precedent.  Court rejected this argument because plain error doctrine did not apply, as defendant had “ merely acquiesced in this Circuit's established interpretation of Title VII, which the district court was bound to apply regardless of what charge the defendant proposed.”

Brainard v. City of Topeka, 14-3055 (10th Cir., Jan.13, 2015)

In this RIF case, plaintiff appealed from grant of summary judgment on age and gender discrimination claims. Court held that plaintiff’s case failed on the similarly-situated prong of the McDonnell-Douglas test.

Jenkins v. Foot Locker Inc., 14-1696 (6th Cir., Jan.15, 2015)

Plaintiff claimed that defendant denied her a promotion and pay raises and chose not to rehire her based on race. After discovery, the district court granted summary judgment for defendant because plaintiff could not establish a prima facie case of discrimination on her failure-to-rehire claim, and because Jenkins failed to exhaust EEOC remedies. Court affirmed because plaintiff failed in the first instance to respond to the motion for summary judgment and comparator evidence showed that of the twenty-eight job applicants hired by defendant, twenty-seven were African American and one was multiracial.

Marshall v. Aryan Unlimited Staffing Solution/Faneuil Inc., 13-14538 (11^th Cir., Jan. 14, 2015)

Pro se discrimination plaintiff appealed from the dismissal with prejudice of her sixth amended complaint and from the denial of her motion to file a seventh amended complaint. Affirmed because the sixth amended complaint did not, after numerous warnings, make a short and plain statement of her claims and instead was a “shotgun pleading” (one in which "it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.")

Chang v. MetroPlus Health Plan, 14-665-cv (2^nd Cir., Jan. 13, 2015)

Pro se appellant challenged summary judgment on Title VII, ADA and NYCHRL. “[D]istrict court properly granted summary judgment to the defendants for the reasons stated in its thorough and well-reasoned memorandum and order.”

Gertner v. Pace University, 14-237-cv (2nd Cir., Jan.16, 2015)

Court affirmed judgment after an eight-day bench trial on national origin/failure to promote to full professor claim.

Green v. City of Northport, 14-11916 (11th Cir., Jan.12, 2015)

Former Police Chief appealed summary judgment on race discrimination and retaliation claims.  Evidence of racial animus was a remark by decisionmaker made to his father-in-law that he was going to "get rid of the black son-of-a-bitch who drives the BMW." Court of appeals affirmed, deciding that the comment was inadmissible hearsay (without perhaps recognizing that the remark was an Evid. R. 801(d)(2) admission).

FOR PLAINTIFF

In Greengrass v.International Monetary Systems Ltd., 13-2901(Seventh Circuit, Jan.12, 2015), Plaintiff sued her former employer alleging retaliation for filing an EEOC complaint. Plaintiff claimed that defendant retaliated by naming her in its annual SEC filings and casting her complaint as "meritless." The district court granted summary judgment for defendant on the ground that plaintiff lacked evidence showing a causal link between her EEOC filing and the alleged retaliatory act. Reversing the Seventh Circuit decided that defendant engaged in an adverse employment action when it listed plaintiff’s name in its SEC filings. Naming EEOC claimants in publicly available SEC filings could dissuade a reasonable worker from making or supporting a charge of discrimination, which is “the essence of a materially adverse employment action.” As for evidence of discriminatory animus, the court cited emails evincing disdain for the EEOC process and expressing confidence that it could avoid a "large damages award" because, without the EEOC's involvement, plaintiff "likely [would not] have the resources for a lengthy court fight." The court also pointed to the forwarding of her EEOC complaint to an alleged harasser with the message, "Call me before you explode." Further, the defendant’s multiple shifts in policy -- from not including litigants' names in the SEC filings, to listing them, and then not including them again—could lead a reasonable juror to find that defendant was "dissembling."

Naming EEOC Claimants In SEC Filings Is An Adverse Employment Action

In Greengrass v. International Monetary Systems Ltd., 13-2901(Seventh Circuit, Jan.12, 2015), Plaintiff sued her former employer alleging retaliation for filing an EEOC complaint. Plaintiff claimed that defendant retaliated by naming her in its annual SEC filings and casting her complaint as "meritless." The district court granted summary judgment for defendant on the ground that plaintiff lacked evidence showing a causal link between her EEOC filing and the alleged retaliatory act. 

Reversing, the Seventh Circuit decided that defendant engaged in an adverse employment action when it listed plaintiff’s name in its SEC filings. Naming EEOC claimants in publicly available SEC filings could dissuade a reasonable worker from making or supporting a charge of discrimination, which is “the essence of a materially adverse employment action.” As for evidence of discriminatory animus, the court cited emails evincing disdain for the EEOC process and expressing confidence that it could avoid a "large damages award" because, without the EEOC's involvement, plaintiff "likely [would not] have the resources for a lengthy court fight." The court also pointed to the forwarding of her EEOC complaint to an alleged harasser with the message, "Call me before you explode." Further, the defendant’s multiple shifts in policy -- from not including litigants' names in the SEC filings, to listing them, and then not including them again—could lead a reasonable juror to find that defendant was "dissembling."

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District Court Title VII Scoreboard For The Week of January 12, 2014: Employers Best Employees, 14-1

With the exception of one decision, and an interesting one at that (described below), employers bested employees in these cases: DePriest v. Milligan (E.D. Ark., Jan. 12, 2015) – MSJ - gender discrimination; Wyre v. Bollinger Shipyards, Inc. (E.D. La., Jan.14, 2015) – 12(b)(6) - failure to provide protective equipment on the basis of gender is not an “ultimate employment decision” – conclusory allegations fails to state claim of race discrimination; Brogdon v. University of Delaware (D. Del., Jan. 13, 2015) – 12(b)(6) - race discrimination and retaliation; Allison v. Wal-Mart Stores, Inc. (S.D. Ala., Jan. 12, 2015) – MSJ – sex, religion and retaliation; Spurlock v. University of Toledo (N.D. Ohio, Jan. 15, 2015) - rejecting plaintiff’s request for equitable tolling of limitations period; Hughes v. Goodwill Industries of Arkansas Inc. (E.D. Ark., Jan. 13, 2015) - 12(b)(6) - individual co-workers cannot be held personally liable under Title VII; Killian v. Donahoe (E.D. La., Jan. 15, 2015) – 12(b)(6) – failure to exhaust; Wint v. Palm Beach County S.D. Fla., Jan. 14, 2015) - Rooker-Feldman doctrine (federal district courts cannot review state court final judgments); Broshears v. Johnson (E.D. Ky., Jan. 13, 2015) – MSJ – federal employee – failure to exhaust; Rhodes v. Montgomery County (D. Md., Jan. 13, 2015) – MSJ - reasonable accommodation offered; Macklin v. FMC Transport, Inc. (E.D. Ark. Jan. 12, 2015) – MSJ – race; King v. Mansfield University of Pennsylvania (M.D. Pa., Jan. 15, 2015) – Motion to set aside taxation of costs after Title VII loss denied; Azim v. Tortoise Capital Advisors (D. Kan., Jan. 14, 2015) - defendants’ motion for a protective order granted; Fatemi v. Rahn (E.D. Ark., Jan. 12, 2015) – MSJ - HIPAA-related claims. 

However, a transgendering male plaintiff claiming gender discrimination survived a motion to dismiss in Lewis v. High Point Regional Health System (E.D.N.C., Jan. 15, 2015).  Defendant denied employment to plaintiff. Defendant moved to dismiss on the ground that Title VII does not provide a cause of action for discrimination based on sexual orientation. The court rejected this argument because the case does not involve sexual orientation and transgendered status has not been addressed by the Supreme Court or in Circuit precedent.  

First Ohio R.C. 4112.02 Discrimination Case of 2015 Won By Employer.

Employees demoted and later terminated by Family Video have lost their appeal for failure to offer sufficient evidence of pretext.  Brogan v. Family Video Movie Club, Inc., 2015-Ohio-70 (Sixth District, Lucas Cty.,Jan. 9, 2015).

Recent 404(b) “Other Acts” Cases In Title VII Employment Context.

Introduction.

Federal Rule of Evidence 404(b) is the so-called “prior bad acts” rule. It provides in relevant part:

(b) Crimes, Wrongs, or Other Acts. 

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

In sum, Rule 404(b) prohibits an inference based on a person’s character: (1) a person did something; (2) the person’s action says something about the person’s character; and (3) the person acted consistent with that character in connection with the event that gave rise to the lawsuit.  The rule arises mostly in criminal cases but does come up in civil cases, particularly employment cases.  In general, the forbidden inferential path in employment cases is along these lines: (1) the employer discriminated against another employee; (2) the employer is a discriminator; and (3) the employer discriminated in this case.

There is a big “however,” however.  Rule 404(b) permits prior bad acts (or, more appropriately “other act evidence”) if the other act is offered not to prove conduct in conformity with character but for a legitimate purpose. The rule gives a non-exhaustive list of permissible purposes, for example, to prove motive or intent. Generally then in employment cases a proper inferential path would be: (1) the employer took an adverse employment action against another employee under circumstances indicating discrimination; (2) the other act tends to prove the employer’s discriminatory state of mind; (3) the employer’s state of mind came into play in the case at hand. Rule 404(b) evidence in employment cases is sometimes referred to as “me too” evidence.

Other evidentiary filters then apply if evidence is offered for a proper purpose under Rule 404(b). The evidence must be relevant (Rule 401). In employment discrimination cases motive and intent are relevant. Moreover, the other act evidence must pass the test of conditional relevance under Rule 104(b). This means essentially that the judge must make a preponderance of the evidence finding that a reasonable juror could decide that the employer acted with discriminatory intent in connection with the other employee. Finally, because the impermissible character inference can still arise from the evidence, the court must determine that the danger of unfair prejudice arising from an inference from character does not substantially outweigh the probative value of the evidence when used for the legitimate purpose (e.g., to prove motive).  See generally Huddleston v. United States, 485 U.S. 681, 689-90 (1988).

Thus, as stated in Aboubaker v. County of Washtenaw, 11-13001 (E.D. Mich., Feb. 27, 2014):

A three-step inquiry as to admissibility of 404(b) evidence is used: 1) whether sufficient evidence exists that the prior act occurred; 2) whether the "other act" is admissible for a proper purpose under Rule 404(b); and, 3) determine whether the "other acts" evidence is more prejudicial than probative under Rule 403. United States v. Poulsen, 655 F.3d 492, 508 (6th Cir. 2011).

To reduce or eliminate the danger that the jury will misuse the other act evidence and draw an inference based on character, the court may give a limiting instruction under Rule 105. 

That said, following are employment/Rule 404(b) cases decided in 2014.

Other Act Evidence Held Inadmissible.

Beard v. AAA of Michigan, No. 14-1294 (6^th Cir., Nov. 20, 2014).

Race discrimination and retaliation case. At trial, plaintiff was impeached with records from his former employer containing negative comments and feedback about his leadership. Plaintiff argued on appeal that the district court erred in admitting these records because they were inadmissible under Rule 404(b) and were not disclosed in discovery. Court of appeals found that (1) the prior employment records were used to impeach plaintiff’s credibility, a proper purpose under Rule 404(B), and (2) pretrial disclosure was not required because such disclosure is limited to evidence being admitted for purposes "other than solely for impeachment." Fed.R.Civ.P. 26(a)(3).

Jackson v. United Parcel Service, Inc., 13-15168 (11^th Cir., Nov. 20, 2014).

Race and gender discrimination and retaliation case. Plaintiff argued that the trial court should have considered other act evidence of discrimination and retaliation aimed at her co-workers ("me too" evidence) as proof of defendant’s  intent to discriminate under Evid. R. 404(b). Court of appeals disagreed because, although use of "me too" evidence can be admitted (citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1285 (11th Cir. 2008), the evidence pertained to a different decisionmaker.

Crosby v. Gregory, CV 212-140 (S.D. Ga., Sept. 10, 2014).

Plaintiff attempted to demonstrate a pattern of pregnancy discrimination with past acts of pregnancy discrimination by same decisionmaker. Although "me too" evidence can be admissible under Rule 404(b) to prove intent where same supervisor is implicated, "courts are reluctant to consider prior bad acts in this [employment discrimination] context where those acts do not relate directly to the plaintiffs." (Quoting Denney v. City of Albany, 247 F.3d 1172, 1189 (11th Cir. 2001). Distinctions matter, such that a plaintiff must provide evidentiary details; “a hodgepodge of unproven allegations of discrimination against others does not create an inference that [the plaintiff herself] was discriminated against ***.” (Citing Hughes v. City of Lake City, No. 3:12-CV-158, 2014 WL 1293525, at *5 (M.D. Fla. Mar. 28, 2014) (citations omitted); Holifield v. Reno, 115 F.3d 1555, 1563 (11th Cir. 1997)).

Ford v. County of Hudson, Civ. 07-5002 (D.N.J., May 16, 2014).

Defendants filed a motion in limine to exclude independent investigative report pertaining to alleged harassment and retaliation by former director of Department of Corrections and certain deputies culminating in settlements (including one with plaintiff). Although report was probative of custom and policy its finding of retaliation by DOC officials “indirectly” invited the forbidden character inference prohibited by Rule 404(b).  Court excluded report in its entirety but permitted testimony of report’s existence, its general nature, and that certain officials retaliated and/or discriminated against certain employees. Court decided to give limiting instruction that the evidence is relevant only to liability of defendant but not whether individual defendants retaliated against plaintiff.  Court stated it would consider admitting limited excerpts from report if shown to be “particularly relevant.”

El-Hallani v. Huntington National Bank, 13-cv-12983 (E.D. Mich., Mar. 13, 2014).

Not an employment case but close enough to analogize. Arab-American plaintiffs alleged that defendant closed their bank accounts due to their race, ethnicity, and/or religious affiliation. Granting defendant’s Civ. R. 12(b)(6) motion to dismiss with leave to refile, the court decided that use of the "doctrine of chances" evidentiary theory (i.e., serial unusual events cannot be dismissed as coincidence, which seems akin to statistical randomness analysis but without the analysis) sometimes applied under Michigan law cannot replace an Evid. R. 404(b) analysis, and does not permit plaintiff to avoid stricter federal pleading standard under Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). 

Wagoner v. J.P. Morgan Chase Bank, N.A., 1:11-cv-01054 (S.D. Ind., Jan. 15, 2014).

         

In this pregnancy discrimination case it was the plaintiff who made the Rule 404(b) argument. She sought to exclude evidence about her performance in positions other than the one from which she was terminated, arguing that it was impermissible character evidence. Such evidence could not be used to prove that because plaintiff may have underperformed in other positions, she also underperformed in the position from which she was terminated, as to allow it would violate Rule 404(b).  If, however, plaintiff opened the door by presenting evidence of her satisfactory performance in previous positions, then defendant could rebut such evidence.

Davis v. International Paper Co., 997 F.Supp.2d 1225 (M.D. Ala. 2014).

Failure to promote case. Evidence of discrimination against other employees seeking same position, racial epithets and noose-hanging inadmissible because no evidence of decisionmaker’s involvement.

Davis v. Lakeside Motor Co. Inc., 3:10-CV-405 (N.D. Indiana, Nov. 20, 2014).

Court granted plaintiff’s motion in limine concerning prior claims for unemployment benefits because evidence would not be admissible under Rule 404(b).

Tamez v. Donahoe, 12 C 9411 N.D. Illinois, Sept. 10, 2014).

Plaintiff failed to provide sufficient information about co-worker’s EEO retaliation case to make the evidence relevant and admissible under Federal Rules of Evidence 404(b) and 403.

Other Act Evidence Held Admissible/Discoverable.

Moniz v. City of Delano, 1:13-cv-00093 (E.D. Cal., Aug. 5, 2014).

Claim based on sexual harassment retaliation. Defendant moved to exclude “me too” evidence submitted by plaintiff in opposition to its motion for summary judgment.  District court overruled objection because evidence of other employees who suffered sexual harassment by the defendant was probative of the defendant's motive and, therefore, admissible under Rule 404(b). (Citing Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008); Heyne v. Carruso, 69 F.3d 1475, 1481 (9th 1995)).

United States Equal Employment Opportunity Commission v. Suntrust Bank, 8:12-cv-1325-T-33 (M.D. Fla., May 6, 2014).

"Me too" evidence held admissible under Rule 404(b) in sexual harassment case to prove defendant's motive, intent, or plan to discriminate, to Faragher/Ellerth affirmative defense and to whether defendant’s anti-discrimination and anti-retaliation policies were effective, where plaintiff’s complaints of harassment and retaliation overlapped temporally with claims of other plaintiffs and involved same supervisor. (Citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008); Phillips v. Smalley Maint. Servs., Inc., 711 F.2d 1524, 1532 (11th Cir. 1983); Walters v. Cent. Fla. Invests. Inc., No. 6:01-cv-1390, 2006 U.S. Dist. LEXIS 21197, at *8 (M.D. Fla. Mar. 28, 2006)("Evidence of McGriff's harassment of other women who worked under him may be admitted to show plan, motive, opportunity, intent, and pattern. Defendants' handling of Lawver's complaint also is relevant to the effectiveness of Defendants' anti-harassment policy and the Defendants' affirmative defense raised under Faragher/Ellerth.")). Court also rejected defendant’s Rule 403 argument that evidence would result in a "mini-trial" and cause juror confusion.

Goold v. Hilton Worldwide, Inc., 1:13-cv-00438 (E.D. Cal. April 8, 2014).

Plaintiff claimed he was fired after complaining about sexual harassment suffered by a former employee. On motion to compel defendants to produce information about complaints made to or about four individuals and adverse employment actions suffered by the complainants. Court notes that there is no per se prohibition on the introduction of this type of evidence. (Citing Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008)). Admissibility of "me too" evidence depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case. Evidence of other acts or wrongs generally may be admitted to demonstrate motive under Rule 404(b). Given that the issue is whether other employees made discrimination complaints and, as a result, Defendants retaliated against them, the evidence is discoverable.

  

King v. CVS Caremark Corp., 2 F.Supp.3d 1252 (N.D. Ala. 2014).

Age discrimination (among other claims) case. Ruling on a motion to strike evidence submitted in opposition to defendant’s summary judgment motion, the court decides that "me too" evidence of ageist comments by decisionmaker concerning another employee were relevant to pretext and admissible under Rule 404(b). (Citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008)).

Aboubaker v. County of Washtenaw, 11-13001 (E.D. Mich., Feb. 27, 2014).

Plaintiff claimed discriminatory failure by current employer to interview him for a “drain inspector” position. Defendants’ moved in limine to exclude evidence pertaining to claims previously dismissed in case, to wit (1) discriminatory demotion/reclassification; and (2) unfair treatment in previous position. Court cites Evid. R. 404(b) but its application of rule is implicit. Court does state test for admissibility of Rule 404(b) evidence that is useful for lawyers practicing in the Sixth Circuit: 

Courts have recognized the use of other crimes or other bad acts permissible as evidence at trial. United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1984). A three-step inquiry as to admissibility of 404(b) evidence is used: 1) whether sufficient evidence exists that the prior act occurred; 2) whether the "other act" is admissible for a proper purpose under Rule 404(b); and, 3) determine whether the "other acts" evidence is more prejudicial than probative under Rule 403. United States v. Poulsen, 655 F.3d 492, 508 (6th Cir. 2011).

 

Step 1 refers to Evid. R. 104(b), the rule on conditional relevance (in a nutshell, collateral “me-too” evidence must be supported by evidence that the “me-to” event actually occurred; for more see Huddleston v. United States, 485 U.S. 681, 689-90 (1988).

With respect to evidence of the alleged discriminatory demotion/reclassification, the court decided that if defendants argued at trial that plaintiff did not meet minimum qualification standards resulting from his demotion/reclassification, then evidence regarding the reason for his downward reclassification is admissible (presumably under Evid. R. 404(b)). Likewise, evidence of unfair treatment in previous position is admissible (again, presumably under Rule 404(b)) if decisionmakers sought or reviewed information about plaintiff emanating from previous supervisors allegedly responsible for unfair treatment (including evaluations of plaintiff and other like documents in plaintiff’s personnel file). Court appears to connect Rule 404(b) to the “cat’s paw” theory of liability, although not explicitly stated.

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