Litigating discrimination claims without the smoking gun

or

Why did I take this dog?

Harvey A. Schwartz

Employment Law Conference '98

Massachusetts Continuing Legal Education

Welcome to Plaintiff's Lawyer Hell:

• •That miserable feeling of working through a blissfully sunny weekend preparing to try a loser of a case.
• •Lying awake at 3:00 a.m. wondering what was going through your head when you agreed to take this dog three years ago.
• •Explaining to your client that while you certainly agree he was treated horribly at work, a jury might have some difficulty buying his story.

The first question to address in figuring out how to litigate a case with no smoking gun is whether you should have gotten into the case in the first place. Before discussing legal standards, burdens of proof, court selection and other lawyer-stuff, lets take a moment to consider case selection, sanity and profitability. Lets consider what it takes to be a happy plaintiff's lawyer.

When to say "no"

You don't run a Mobil gas station. You don't have to serve everybody who drives up and wants to buy what you sell. Kids pumping gas are not professionals. Lawyers are professionals. Professionals use judgment, learning and discretion in their work. The kid pumping gas will fill up any car that drives in. Lawyers don't work that way.

Face it, most people fired from their jobs have no legitimate legal claims. That is reality, compliments of the employment at will doctrine and compliments of human nature, which says that a lot of folks deserve to be fired. Your job as a plaintiff's attorney is to sort out the few strong legal and factual claims from the horde of unhappy out-of-work people who knock on your door. You don't do a potential client a favor by miring him into a law suit he will certainly lose. And you don't do yourself any good by agreeing to lock yourself into a case in which you will not only not make any money, but will take up time that could be spent on better cases.

Say "no" to bad cases. Say "no" to cases that are certain to be assassinated at summary judgment. Don't get trapped in a case that the client promised would settle, only to be trying to figure out what to say in your summary judgment memorandum after hundreds of hours of fruitless discovery. Discrimination cases are tough claims to win. Before trying to figure out how to win a case without a smoking gun, you should ask yourself why you took the case in the first place. Better a few great cases and spare time to devote to marketing than a busy practice that looks like the American Kennel Club. Experience shows that if you are accepting even a third of all potential employment discrimination cases that come your way you either have magnificent referral sources who are doing a fabulous screening job for you . . . or you need to exercise better judgment. My intake statistics - and we maintain careful computer records of every inquiry - shows that we accept one out of forty potential employment cases.

Case selection wisdom

Discrimination cases have unique procedural requirements that don't apply to run of the mill tort or contract suits. Use a check list to make sure you don't get involved in a meritorious claim that will tie you up in losing procedural battles. Here are some issues to consider:

• •Statute of limitations and filing deadlines - The six-month Massachusetts Commission Against Discrimination filing deadline is strictly enforced, as is its Equal Employment Opportunity Commission counterpart. Is it just too late to bring this case? Will you spend more energy trying to get the case up to the starting line than you will actually dealing with liability and damages? Don't be seduced by the continuing violation theory as an end run around missed deadlines. Before buying into a case with the expectation you will be able to revive old claims under a "continuing violation" theory, check out some recent cases, such as Kassaye v. Bryant College, 999 F.2d 603 (1^st Cir, 1993); Sabree v. United Bhd. of Carpenters Local 33, 921 F.2d 396 (1st Cir. 1990); and Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429 (1^st. Cir. 1997). Is the case worth facing a motion to dismiss and an appeal even before you can begin discovery? Even the best plaintiff's cases will be losers if you can't get past missed deadlines. Don't count on going forward under tort or contract theories if the MCAD deadlines were missed. Courts frown on such efforts. Tort damage standards are different from c. 151B damages (no punitive, no attorneys fees). Exclusivity of c. 151B reigns. A statute of limitations problem should be a red flag. Don't take these cases unless you are certain, after doing the research, that this is the rare case allowing you to get past a missed deadline.
• •Did the MCAD complaint say the same thing as the complaint filed in court? - Courts are cracking down on cases where the MCAD complaint is based on one legal theory - age discrimination , for example - and the complaint filed in court adds additional, new theories, such as handicap discrimination or retaliation. Courts are also narrowly construing MCAD complaints that name only the employer and civil complaints adding individual defendants. Compare Chatman v. Gentle Dental Center of Walthan, 973 F. Supp. 228, 235 (D. Mass. 1997) (failure to name a party in a charge does not preclude a later civil action in some circumstances) with Riebold v. Eastern Casualty Ins. Co., 1997 WL 311523 (Mass.Super. June 4, 1997) (MCAD charge that failed to name supervisor in the proper box on the complaint form did not permit law suit against supervisor). If a case comes to you already filed in court with these kinds of procedural problems, consider these problems carefully before accepting the case. Once the MCAD action is dismissed and the civil complaint is filed, it is too late to correct these problems. The world's best handicap discrimination claim may be worthless if it was filed at the MCAD as an age discrimination action. The solution to this problem, of course, is to think before you dismiss your MCAD action and file suit. If you want to add counts or add individual defendants to your law suit, amend your MCAD complaint before dismissing it, and make sure the MCAD actually allows the amendment before dismissal.
• •Lack of probable cause finding at the MCAD - A lack of probable cause finding at the MCAD isn't the end of the world if you intend to file suit, but it should be seen as a warning that at least one supposedly neutral person who reviewed the evidence didn't buy your client's claims.
• •Mixed motives cases - These are cases in which your client comes in with evidence of discrimination, but her employment record is blemished, giving the employer grounds for termination. Your task, should you accept the case, will be to convince a jury - or more likely, a summary judgment court - that the employer would not have fired your client but for the discriminatory motive. These are tough cases in which your client will not be especially sympathetic to a jury. This is a red flag.
• •Small damage cases - The amount of effort it will take to prove liability bears no relationship to the amount of damages. You don't want to get involved in a tough liability case with no prospect of substantial damages. After all, if you are going to have to work hard to prove liability, you would rather do it in a case with a large potential damage award. Be careful about accepting cases in which your client found new work at the same salary in a short time, or, on the other hand, cases in which an allegedly hard-working employee can't find work for years, or at least until her unemployment compensation runs out.
• •He said - she said cases - Cases dependent entirely on the jury believing your client's version of the facts, a he said - she said situation, are good news, bad news cases. The good news is that your client's testimony is often enough to get the case past summary judgment and before a jury. The bad news, of course, is that the whole case rests on your client's credibility and the defendant will train its biggest guns directly on the plaintiff. Cases with no corroboration of your client's version of a set of facts are a roll of the dice for both sides, meaning they can be easier to settle. Before accepting this case make your own determination of the client's credibility. If you don't feel warm and fuzzy about it, neither will a jury.
• •Cases the company will absolutely, definitely, without any doubt settle right away because they are afraid of the bad publicity - Don't bet on it. You may wind up in front of a very skeptical jury after the company takes a hard line on extortion.

So how do you decide whether to take a case? Check the facts, don't necessarily believe your client but obtain some corroboration, make sure all the jurisdictional ducks are in order and then go with your gut. Keep in mind the words of wisdom that you make more money from bad cases you turn away than from good cases you accept. Every bad case you get bogged down in with no light at the end of a long, dark tunnel is one winning case that you can't take because you don't have time for it.

Legal standards for cases without smoking gun evidence

There is a slew of language from courts declaring that in motivation-based discrimination cases smoking gun evidence is not required. This language works well in opposing summary judgment and in jury instructions. Here is a potpourri of such language. Keep it in your word processor.

• •Another way of proving that the defendants' justification for terminating [the plaintiff] is a pretext is to offer evidence of bias or animosity, although such evidence is not required in order for you to find pretext. "To prove the [defendants'] discriminatory animus, [the] plaintiff is not required to come forward with evidence of the 'smoking gun' variety. Mesnick v. General Elec. Co., 950 F.2d 816, 824 (1st. Cir. 1991), cert. denied, 112 S.Ct. 2965 (1992). Rather, 'there are many veins of circumstantial evidence that may be mined by a plaintiff to this end, including comments by decision-makers which denigrate [persons like the plaintiff]." Resare v. Raytheon Corp., 981 F.2d at 42.
• •"Because 'smoking gun' evidence is rare . . . the plaintiff may, and more often than not must, carry his burden of persuasion with circumstantial evidence that convinces [you] that the [defendants'] proffered explanation is not credible." Blare v. Husky Injection Molding Systems Boston, Inc., 419 Mass. 437, 445 (1995),
• •"The law often obliges finders of fact to inquire into a person's state of mind.... It is true that it is very difficult to prove what the state of a [person's] mind at a particular time is, but if it can be ascertained, it is as much a fact as anything else." United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716-717 (1963).
• •"Circumstantial evidence is expected in discrimination cases given the complexity of the issues and the difficulty, in this rights conscious era, of producing direct evidence of discrimination." Herbert v. Mohawk Rubber Co., 872 F.2d 1104, 1115 (1st Cir. 1989).
• •Most cases of unlawful discrimination will be stitched together from evidence of hiring and discharge patterns, other acts of discrimination, or the absence of a plausible explanation for the employment decision. Smith College v. Massachusetts Commission Against Discrimination, 376 Mass. 221, 228 n. 9 (1978); Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 298 (1991).
• •"Proof along these lines need not be of the "smoking gun" variety and, in some factual settings, the mere showing of the falsity of the employer's stated reasons may, along with the other facts and circumstances in the case, give rise to a reasonable inference of ... discrimination. But this is not a matter that can be addressed by formula. For a plaintiff to prevail on [her] ultimate burden, the totality of the circumstances must in each case create a reasonable inference that the employer's stated reasons were a pretext for unlawful discrimination." Connell v. Bank of Boston, 924 F.2d 1169, 1175 (1st Cir., 1991).
• •"Rarely, if ever, in fact, will a plaintiff employee have the kind of direct evidence that would unassisted by inferences, raise the specter of ... discrimination." Resare v. Raytheon Corp., 981 F.2d at 44 n. 25.
• •"In cases where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate. See Pederson v. Time, Inc., 404 Mass. 14, 17 (1989) ("the generally accepted rule is that the `granting of summary judgment in a case where a party's state of mind . . . constitutes an essential element of the cause of action is disfavored'"), quoting Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86 (1984). See also Sweat v. Miller Brewing Co., 708 F.2d 655, 657 (11th Cir. 1983); Baldini v. Local 1095, UAW, 581 F.2d 145, 151 (7th Cir. 1978). 10A C. Wright, A. Miller, & M. Kane, supra at 2730. In such cases, [m]uch depends on the credibility of the witnesses testifying as to their own states of mind. In these circumstances, the jury should be given an opportunity to observe is unlikely to be forthcoming at trial. Where a moving party properly asserts that there is no genuine issue of material fact, the judge must ask the demeanor, during direct and cross-examination, of the witnesses whose states of mind are at issue." Croley v. Matson Navigation Co., 434 F.2d 73, 77 (5th Cir. 1971)." Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991).

These citations should be deeply mined for jury instruction material and used in opposing summary judgment motions. They provide a legal basis for sending a case to the jury based solely on uncorroborated "smoking gun" that comes only from the lips of the plaintiff. As in most discrimination cases, actually getting the case to the jury is a giant step toward victory. It is far from a guarantee of success.

How many facts do you need to get the case to the jury?

Summary judgment rides on facts more so than on the law. One good fact - "My boss said sleep with me or you're fired" - overcomes an awful lot of bad law. See, St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 2749 (1993). The fact-based nature of summary judgment in employment cases is demonstrated by a comparison of a number of recent sexually hostile work environment cases:

• •Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848 (1^st Cir. 1998)

Evidence was sufficient for jury to find a sexually hostile work environment. The employer primarily employed young, attractive women, known to customers as "Occidental Gals," and instructed them to be especially cordial to officials of its major customer. The plaintiff said her manager told her she should be nice to an important customer and "keep him satisfied." Not surprisingly, the customer began to make unwelcome approaches and suggestive comments to plaintiff. He invited her out to dinner. He asked her to visit his office after hours and on Friday evenings. He anonymously sent her flowers for her birthday and included a sexually explicit card. The plaintiff complained to her boss about this behavior and he responded by stressing that the man was an important client, but assured her that he would deal with the problem. When the customer called the plaintiff and told her he would pick her up to take her to a motel she complained again to her boss, who defended the customer and said she should respond to the customer "as a woman." Shortly after that incident she was fired. The First Circuit concluded that "[u]nder the hostile work environment theory of sex discrimination, the jury could have reasonably found that [the employer] had established a working environment hostile to women."

• •Cody v. Sutar d/b/a Copley Square Associates, 6 Mass.L.Rptr. 457, 1997 WL 109563 (Mass.Super.) 1997

A real estate salesperson employed as an independent contractor (who thus brought a claim under c. 214, § 1C instead of c. 151B) claimed that a fellow employee routinely referred to her as old, ugly, and/or fat; on about twelve occasions made derogatory comments about her hair, including "can't you do something about your hair" and said she had no class and would win "an ugly contest." Judge Lauriat granted the employer summary judgment, saying the conduct "complained of here falls well short of that required to make out a prima facie case of hostile workplace sexual harassment. It is undisputed that . . . the comments to Cody did not involve any vulgarity. Nor did [the] comments, as required by the statute, constitute 'sexual advances.' While the court does not accept [defendant's] argument that such comments are gender-neutral, nor does it find that these comments were sufficiently hostile or sexualized as to constitute sexual harassment."

• •Chatman v. Gentle Dental Center of Waltham, 973 F.Supp. 228, 72 Empl. Prac. Dec. P. 45,114 (D. Mass. 1997)(Lindsay, J.)

Allegations that dentists discussed other female employees of Gentle Communications, commenting on their attire, the sizes of their breasts and their sex lives; that crude sexual language and innuendos were pervasive in the office; that plaintiff was told to hire women with large breasts and nice figures who would be willing "to put out;" that dentists commented on plaintiff's physical features, including what they described as the fullness of her lips and on some Mondays asked if she had sex over the weekend; and offered to pay plaintiff twenty dollars to lick an ice cream cone in front of him, all stated claim for sexually hostile work environment against the employer.

• •Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429 (1^st Cir. 1997)

Despite a history of sexually hostile acts and conduct that occurred outside the statute of limitations period, a single incident in which a supervisor called the plaintiff "Girlie" and told her to go see "nursie" was not "by itself, a sufficient basis to hold the Company liable to [plaintiff] under her Title VII sexual harassment claim. [Note: this is an important case concerning the continuing violations theory, however.]

• •Prader v. Leading Edge Products, Inc., 39 Mass.App.Ct. 616, 659 N.E.2d 756 (1996)

Summary judgment was properly granted in hostile work environment claim that alleged excessive use of profanity in the workplace. The plaintiff complained that her supervisor referred to her as a "cocksucker" and "a fucking...." The Appeals Court said that "[a]lthough the words used . . . do have an explicit sexual connotation, their meaning and usage is not limited to that connotation. Her words amounted to no more than crass garden-variety expletives; they were not sexual commands or lurid innuendos. While scenarios can exist in which explicit sexually charged language alone constitutes harassment, the 'culture of profanity' in existence at the defendant's work place, although offensive to the plaintiff, simply was not a form of sexual harassment. As one Federal court astutely observed, 'Title VII is not a clean language act....' We similarly conclude that G.L. c. 151B, § 1(18), does not mandate 'clean language' in the work place."

• •Albee v. New England Medical Center Hospitals, Inc., 7 Mass.L.Rptr. 593 (1997 WL 691524 (Mass.Super.))(Fabricant, J.)

Male plaintiff stated claim against employer for conduct by his female supervisor when he offered evidence she asked him his feelings about a relationship with a married, black woman; urged him to meet her at a hotel; on eight or ten occasions bumped into him and "grabbed his butt"; grabbed his genitals on three occasions; searched his wallet for a condom; telephoned him at his home to urge him to bring a condom to work and to complain that he "didn't send her anything or call her for Valentine's Day"; sent him an e-mail message urging that he see her outside of work; and slapped him on his buttocks. Summary judgment for the employer was denied. [Interestingly, the hospital's "thorough" investigation concluded that "there is insufficient evidence to support Mr. Albee's claim of sexual harassment and a hostile work environment," but at least conceded that "there is a certain lack of professionalism among some of the employees. . .']

• •Ligenza v. Genesis Health Ventures of Massachusetts, Inc., --- F.Supp. ---- (1998 WL 81587 (D.Mass.)(Neiman, Magistrate J.)

Nursing home employee sexually harassed by elderly patient who looked up her blouse and used vulgar language failed to show that the conduct was sufficiently severe and pervasive to create a hostile environment which unreasonably interfered with plaintiff's employment. Plaintiff also did not show that her employer "had actual or constructive knowledge" that the patient's conduct created a sexually hostile work environment for the plaintiff. The decision does acknowledge, however, that the conduct of customers can cause a sexually hostile work environment for employees.

• •Ruffino v. State Street Bank And Trust Company, 908 F.Supp. 1019 (D.Mass. 1995)(Gertner, J.)

Hostile environment claim by corporate manager at State Street Bank and Trust survived summary judgment. Plaintiff alleged her manager's comments were often laced with inappropriate and offensive sexual innuendo. On finding out that her husband had been ordained as a priest, the manager repeatedly made unwelcome and lewd comments about plaintiff's sexual life, including asking her whether her husband now "did it with his collar on." He also made inappropriate remarks to plaintiff about other women. When one woman, returning to work after giving birth, asked for a private place in which to use her breast pump, the manager told the plaintiff, "She doesn't need the pump; I'll take care of her." After interviewing a female job candidate who had been married three times the manager told the plaintiff, "Any woman that couldn't keep three men happy certainly wasn't somebody they were going to look for." Judge Gertner said the manager's remarks "are the stuff of classic sex discrimination claims: disparaging remarks about the qualifications of women; comments insinuating that women should never have been allowed in the public sphere; and comments about sports metaphors and women's inability to grasp professional discussions couched in such language."

• •O'Brien v. Avis Rent a Car System, Inc., 1997 WL 260515 (Mass.Super.)(Lauriat, J.)

Complaint by rental car agency employee survived motion to dismiss and stated a hostile work environment claim. She alleged consistent verbal harassment; unfair demands; intimidating actions such as "spying" and peeking around corners; and one instance of physical contact. Summary judgment was denied because rather than simply citing certain offensive uses of language, plaintiff alleged a pervasive pattern of hostile actions against her. Further, she made repeated complaints about these actions.

• •Burman v. Bock Oldsmobile, Inc., 3 Mass.L.Rptr. 441, (1995 WL 809940 (Mass.Super.))(Connolly, J.)

Female car salesperson's hostile environment claim survived summary judgment. Her evidence showed the sales force was primarily male. The male sales employees frequently used sexually explicit and derogatory language about women. Specifically, the plaintiff claimed the manager referred to female customers as "cunt," "bitch," "pussy" and "pussy whipped." The plaintiff found this language "distressing," "unprofessional," "embarrassing" and "offensive." She alleges that when she asked him to stop using this language, he ignored her. The manager screamed at the plaintiff, saying, "You fucking cunt. My name is on this building and I can do anything I want." When the plaintiff protested, she claims he added, "I'll call you anything I want, even worse than that." After the plaintiff told him there was nothing worse, the manager allegedly responded with the words, "Fuck you, bitch." After the plaintiff filed an MCAD complaint she was fired because "things weren't working out." Judge Connolly concluded that "in the case at bar, whether the alleged statements rose to the level of illegal sexual harassment is a question of fact to be determined at trial."

Practice pointers for factually weak cases

Just as plaintiffs' lawyers know that with a likeable plaintiff and an evil employer they are likely to win a jury's heart, they dread that a sourpuss judge will kill their case without ever meeting their wonderful client face to face. This means you can't accept a case just because it has heartbreaking jury appeal and tremendous damages. You have to ask yourself on day one, and most days thereafter, whether this case will get over the summary judgment rail. The key to summary judgment for plaintiffs is that you don't have to win on summary judgment, you just can't lose. How do you do that?

State court or federal court?

Don't necessarily believe that in Massachusetts all plaintiffs want to be in state court and all defendants want to be in federal court . . . unless you have a case that is weak on the facts. Whether it is because they have more or sharper law clerks or heavier case loads, it is a fact that Massachusetts federal court judges are more likely to allow a defendant's summary judgment motion that state court judges are. Federal rules regarding statements of disputed facts in summary judgment motions are stricter and place a heavier burden on the plaintiff to demonstrate disputed facts than do state court rules. Not that it could possibly be a factor, but federal judges know if a case survives summary judgment, they will have to try the case themselves, unlike state courts where who knows which judge will hear a trial a year after summary judgment is denied.

If you have a case in which you are light on crucial factual disputes, that is a case that should remain in state court. You do that by including no federal law counts in the complaint - skip your Title VII and ADA claims and go with just c. 151B - and do your best to ensure that there is not complete diversity, possibly by naming individuals even if you are not sure you want them in at trial. Plaintiff has most of the control over court selection if the complaint is written with court selection, and preventing removal, in mind.

On the other hand, if you have your one critical disputed fact - the plaintiff says his boss called him an "old geezer" and said he wanted somebody younger for the job - you don't have to worry about summary judgment no matter which court you are in. Some federal judges will get you to trial in a year and, in a fact-based case, the First Circuit will most likely leave your verdict alone. Especially with the Supreme Judicial Court's recent practices in reducing damage awards in employment cases, see LaBonte v. Hutchins & Wheeler, 678 N.E.2d 853 (1997), federal court may be a cozier place for a case with a large potential verdict. The key point is to think about this issue before filing the complaint.

What facts do you really, absolutely have to have to get over the rail?

Write down at the beginning what you will need to get your case to the jury. No matter which side of the "Great BlareDivide" you come down on, that case sets the standard for what you will need to get from Day One to the jury room. Write down on paper these standards:

Prima facie case - If you can't prove your prima facie case, what are you doing in the case in the first place? Consider if there is going to be a summary judgment motion on whether your client is a member of a protected class, is a "qualified handicapped individual," or suffered "an adverse employment action?" If you don't have these bases covered, what facts will you need to cover them? Think about this and think about where those facts are going to come from. These issues should not come as a first time surprise on that fateful Friday at 5:00 p.m. when the defendant's summary judgment carton arrives.

The employer's legitimate nondiscriminatory reason - By the time you've been through the MCAD you should have the employer locked into a single nondiscriminatory justification for what it did to your client. Even in cases that you intend to file in court it is important to wait to receive the employer's position statement before dismissing your MCAD complaint. This position statement locks the employer into a reason for its action and gives you a stationary target to attack. With luck, the statement will be prepared in the human resources department and not by an attorney and the company will have to live with what it said before its attorney cleaned up its act. Once you know the employer's position you only have to come up with evidence that your plaintiff didn't do the single bad thing they say he was fired for, rather than proving what an all-round swell person he was in all aspects of his job performance.

Evidence of pretext - This is the battleground on which most discrimination cases rise or fall, where plaintiff must present evidence that the reason given by the employer for the evil things it did is a pretext. Once again, think about what factoids you have on this issue. If you have none, then why are you taking up the court's time? If you have just a few factoids, exploit them, and dig for more. Facts aren't found in your office. Facts are found by visiting people's living rooms and sitting down with them, drinking coffee and asking questions. Interview people, don't just depose witnesses. Get out and about. The good evidence won't come to you. You don't know what tidbit will tip the scales. Here's a war story that illustrates this point.

There was no joy in Mudville by the third day of a difficult race discrimination trial in federal court in Boston. The plaintiff was an African-American dispatcher for a bus company. He had a foreman who was clearly a racist. There was uncontroverted evidence of racial statements and animosity from the foreman going back over fourteen years. The bus company changed ownership and four months later the new owner fired the plaintiff, supposedly for incompetence and insubordination after the two had a swearing, screaming argument with one another. The plaintiff's evidentiary problem was proving that the new owner of the bus company, the person who made the termination decision, was racially motivated. There was no smoking gun, not even a smoking match, not even a smoking jacket. Two company managers testified about hundreds of telephone complaints from bus passengers about the dispatcher's rudeness.

The jury returned a verdict for the plaintiff for $285,000, plus attorneys fees.

What swayed the jury? After the devastating testimony from the company's two personnel managers about fielding hundreds of telephone calls from angry customers complaining about the plaintiff's conduct in improperly scheduling vans for handicapped and elderly passengers, the judge called the morning recess. Standing in the hallway during that recess, plaintiff's counsel chatted with a few bus company employees who were attending the trial in support of the plaintiff. The employees were laughing about the two managers and their testimony. It turned out one woman manager was the new owner's girl friend, the other manager was engaged to the racist foreman. Neither fact had been brought out by the company's attorney on direct examination. Those facts, and the complete absence of any documentation of any of these complaints, were the only topics of cross examination. The theme of closing argument, created on the spot, was that if the company owner had nothing to hide about his conduct why did he try to pull a fast one on the jury by not telling them his key witness was his girlfriend? Two crucial facts, facts that never approached plaintiff's radar screen in interrogatories, depositions or document production, made all the difference in the case.

Mixed motives, the plaintiff's best weapon

Cases that are shy on facts need all the legal help they can get. One of the strongest crutches for a factually crippled case is a good mixed motives instruction. Because of changes in Title VII in the 1991 Civil Rights Act, the better instruction is available under federal law rather than state law. A mixed motives instruction may be reason enough to include a Title VII count in a complaint, even if it offers the defendant the opportunity to remove the case to federal court.

Title VII, 42 U.S.C. § 2000e-2(m), as amended by Section 107(a) of the Civil Rights Act of 1991, modified case law regarding mixed motive terminations with the addition of the following language:

Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

The closing argument that goes with this instruction - once the judge has agreed to give a mixed motive instruction - uses a theme of the company shooting a quiver of arrows at the poor plaintiff.

One arrow says "late for work." Another arrow says "couldn't do the job." A third arrow, right in the plaintiff's chest, says "swore at the boss." But the final arrow, just nicking the plaintiff in the foot, says "He's Black." Members of the jury, if one of the reasons Mr. Plaintiff was fired was because of his race then His Honor will instruct you that you must return a verdict for the plaintiff.

This mixed motive fall-back position lowers the plaintiff's hurdle considerably. You don't have to disprove every aspect of the company's case, just prove that discrimination was one of many reasons for the company's conduct.

If you have nothing else, make your plaintiff shine

The toughest cases are credibility contests. The plaintiff tearfully describes to the jury how her boss groped and fondled her, alone, behind a closed door. He denies it. Or the plaintiff repeats the racist language his supervisor used in the course of firing him. The supervisor denies it. Or the grey-haired plaintiff tells the jury how he was teased about slowing down and how it was time for some young blood. The company denies it. These are cases where you must polish your client so he shines. Bring in character witnesses. Bring in his family to show how he's been harmed. Bring in the stacks of rejection letters he's received from potential employers. Eliminate reasons for doubting your client. Nag him about applying for jobs he is sure he won't be hired for so he won't appear to be a malingerer. These cases are major rolls of the dice to try, but they are that way for both sides, which should translate into a reasonable settlement neither side is especially happy with.

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