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3rd Circuit Slowly Expanding Scope Of Relevant Discrimination Evidence
By Samuel Cordes
In the emotionally charged arena of employment discrimination litigation-where liability revolves around the state of mind of a fictional entity-the place the court rests the balancing beam when deciding questions of logical and legal relevance often spells the difference between victory or an abrupt summary judgment.
During the past three years, the U.S. Court of Appeals for the 3rd Circuit has moved the balancing beam, slightly, but consistently, in a way that spells good news for employees.
The 3rd Circuit has telegraphed its view in a line of cases that the nature of employment discrimination claims requires an examination of not just the decision involved in the lawsuit, but also a look at how the employer has made employment decisions in the past with others. And, in examining those decisions, the trier of fact also may consider the corporate culture where the determinations are made.
Following a line of decisions out of the 8th Circuit, in Glass v. Philadelphia Electric Co.34 F.3d 188 (3rd Cir. 1994) noted the judicial inhospitality to blanket evidentiary exclusions in discrimination cases. “The effects of blanket evidentiary exclusions can be especially damaging in employment discrimination cases, in which plaintiffs face the difficult task of persuading the fact-finder to disbelieve an employer’s account of his own motives.” Glass, 34 F.3d at 195, citing, Estes v. Dick Smith Ford, Inc. 856 F.2d 1097, 1103 (8th Cir. 1988).
In Glass, the plaintiff appealed from a jury verdict denying his claim for race and age discrimination. Glass argued the district court abused its discretion when it excluded evidence concerning the racial hostility of his work environment at a prior work site, while admitting evidence introduced by the employer showing Glass had received poor evaluations.
Glass had attempted to introduce evidence that would have shown more senior employers posted hostile and demeaning images about him and that he was the subject of racially derogatory remarks.
The 3rd Circuit reversed and in doing so, adopted a broad rule of admissibility.
Citing with approval Estes, Hawkins v. Hennepin Technical Center, 900 F.2d 153, 155 (8th Cir. 1986) – cases recognizing that evidence of discrimination against other members of the plaintiff’s protected class is admissible in deciding a discrimination claim – the Glass court held that “circumstantial proof of discrimination typically includes unflattering testimony about the employer’s work history and work practices.”
The court also found that this evidence, “which in other kinds of cases may well unfairly prejudice the jury against the defendant,” is not unfairly prejudicial under Fed.R.Evid. 403, because “such background evidence may be critical for the jury’s assessment of whether a given employer was more likely than not to have acted from an unlawful motive.” Glass, 34 F.3d at 195.
Shortly following Glass, the court reiterated its view that relevance in an employment discrimination case is particularly broad and that evidence in such cases is not viewed in a vacuum.
In West v. Philadelphia Elec. Co., 45 F.3d 744 (3d Cir. 1995), the district court excluded evidence of discriminatory conduct occurring more than 300 days prior to the filing of the EEOC charge, and also excluded evidence of discriminatory conduct toward others not witnessed by the plaintiff.
The court rejected the district court’s attempt to Balkanize the employee’s evidence. “The totality” approach cannot support the “same actor” or “same form of discrimination” requirements imposed at trial here. Because a hostile work environment claim is a single cause of action, rather than a sum of discrete claims, each to be judged independently, the focus is the work atmosphere as a whole. The court then emphasized the importance of evidence of the employer’s treatment of others. Indeed, such evidence may be sufficient in itself to carry the day.
“The court’s decision to exclude evidence of harassment of other African Americans, not witnessed by West, was also in error. In some instances, evidence of harassment of others will support a finding of discriminatory intent with regard to a later incident.” West, 45 F.3d at 757.
Likewise, evidence of discriminatory conduct directed at other employees – although not witnessed by the plaintiff – is relevant, substantively, to show the employee herself was similarly discriminated against, and to bolster the credibility of the plaintiff.
“Evidence of harassment of others serves to demonstrate that [the plaintiff] did not weave his allegations out of a whole cloth, and bolster the confidence of the finder of fact in the plaintiff’s veracity and in the objective reasonableness of his claims.” West, 45 F.3d at 757, 1264, 1275 (7th Cir. 1991).
Finally, in Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996), a decision whose frankness already is raising the eyebrows of the employer’s bar, the court erased what should be any doubt about the broadness of the brush with which a discrimination plaintiff may paint. Anti-discrimination laws and lawsuits, the court noted, have educated would-be violators. However, discrimination continues to pollute the social and economic mainstream of American life, but is often now masked in subtle forms.
Thus, it has become easier to coat various forms of discrimination with the appearance of propriety, or to ascribe some other less outrageous intention to what is in reality discriminatory behavior. While discriminatory conduct persists, employers have learned not to leave the proverbial smoking gun behind.
“The sophisticated would-be violator has made our job a little more difficult. Courts today must be increasingly vigilant in their efforts to ensure that prohibited discrimination is not approved under the auspices of legitimate conduct, and a plaintiff’s ability to prove discrimination indirectly, circumstantially, must not be crippled because of crabbed notions of relevance or excessive mistrust of juries.” Aman, 85 F.3d at 1082.
The Aman court then outlined just how broad.
For example, evidence of a hostile environment is relevant to show the plaintiff was fired in retaliation for filing a charge of discrimination or opposing conduct made illegal under the anti-discrimination laws
Evidence of discrimination against other employees is relevant to whether one of the reasons asserted by the employer for its actions was in fact a pretext for discrimination. Evidence of prior acts of discrimination is relevant to an employer’s motive even where this evidence is not extensive enough to establish discriminatory animus. Aman, 85 F.3d at 1086.
A plaintiff can prove the defendant’s state of mind through circumstantial evidence such as evidence of past conduct or prior incidents, United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714 n.3, 715, 103 S.Ct. 1478, 1481 n.3, 1482 (1983), or evidence of subsequent statements or conduct. Abrams v. Lightolier, Inc., 50 R/3d. 1204, 1214 (3d Cir. 1995); Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 54 (3d cir. 1989) (finding age-based comments relevant even when made subsequent to plaintiff’s termination).
Showing Corporate Culture
Just as past employment decisions can be used as circumstantial evidence of an employer’s intent, so can the atmosphere, or the “culture” where those decisions are and were made, inform the factfinder’s determination.
The Glass-West-Aman “totality of the circumstances” line of cases also has spawned a series of decisions in which 3rd Circuit has recognized the probative value of the culture where employment decisions are made in determining whether an individual employment decision is discriminatory. Therefore, while statements made by non-decision makers, which are temporally remote from the decision, are not direct evidence of improper motivation, when coupled with other evidence, they may be used to build a circumstantial case of discrimination. Abrams v. Lightolier Inc., 50 F.3d 1204, 1214 (3d Cir. 1995); Ezold v. Wolf Black Schorr & Solis-Cohen, 983 F.2d 509, 533 (3d Cir. 1993); Roebuck v. Drexel University, 852 F.2d 715, 733 (3d Cir. 1988) (although temporally remote statements, standing alone, would not suffice to establish liability, they support finding of discrimination when combined with other evidence.).
See also Lockhart v. Westinghouse Credit Corp., 879 F.2 43, 54 (3d Cir. 1989); Jasey v. John R. Hollingsworth Corp., 996 F.2d 632, 641 (3d Cir. 1993) (court may consider as circumstantial evidence, the atmosphere in which company makes its employment decisions); See also Waldron v. SL Industries Inc., 56 F.3d, 491, 502 (3d Cir. 1995) (comment made five months before termination that employee should lose weight because it would make him look younger was relevant circumstantial evidence of age discrimination); EEOC v. Manville Sales Corp. 27 F.3d 1089, 1093 (5th Cir. 1994) (age related statements made over four-year period relevant for jury consideration); Cooley v. Carmike Cinemas, Inc. 25 F.3d 1325, 1331 (6th Cir. 1994) (Statement made by company’s president more than 20 years ago when president was 18 years old that the elderly should be put away in concentration camps admissible to show state of mind, a highly probative fact, in a discrimination analysis).
In Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326 (3d Cir. 1995), the court recognized that evidence of the corporate culture in which the employer’s agents make employment decisions is circumstantial evidence in a discrimination case.
In Brewer, the court held that a statement in a company newsletter by Quaker State’s chairman of the board that two new executives were “two of our star young men in their mid-40’s. That age group is our future,” while unconnected to the decision to fire Brewer, and made two years prior to the decision, was nonetheless probative evidence of the corporate culture in which a company makes its employment decisions, and may be used to build a circumstantial case of discrimination. Id., 72 F.3d at 333; see also Antol v. Perry, 82 F.3d 1291, 1302 (3d Cir. 1996).
In addition, The 3rd Circuit has suggested a number of ways to circumstantially show that culture. For example, Brewer examined published statements by corporate management that showed favoritism of younger executives.
In Jasey, the court of appeals pointed to anonymous racially derogatory notes the plaintiff received, as evidence of the atmosphere in which the company made its employment decisions. Lockhart looked to discriminatory statements made by managers more than six months following the plaintiff’s discharge.
Antol recognized that discriminatory statements by managers who were within the chain of decision-makers who had the authority to hire and fire the plaintiff can be used to show culture. In Abrams, the court held that managers’ opinion of the company policy regarding older workers were admissible to show the atmosphere where decisions were made. In Roebuck, the court upheld admissibility of discriminatory comments by the decision maker made five years before the adverse employment decision.
In its recent decisions, the court has reiterated its view that a discrimination analysis is broad and the atmosphere surrounding the decision-making process is a relevant piece of evidence. See Bray v. Marriott Hotels, 1997 U.S. App. LEXIS 6684 at 13 (3d Cir. April 11, 1997) (stressing that it is totality of evidence that must guide analysis rather than strength of each individual piece of evidence, court rejected analysis that views evidence in isolation); Woodson v. Scott Paper Co. 1997 U.S. App. LEXIS 6290 at 30 (3d. Cir. April 3, 1997) (Although no evidence that arguably affected the decision to fire Woodson the document may still be probative of the environment in which the employment decision was made); Keller v. ORIN Credit Alliance Inc. 105 F.3d 1508 (3d Cir. 1997)(same.)
See also Sheridan v. E.I. DuPont de Newmaurs and Co., 100 F.3d 1061, 1086 (3d Cir. 1996) (en banc) (Alito J. concurring in part and dissenting in part) (recognizing that “stray remarks in the workplace should always be taken into account in determining whether a defense motion for summary judgment or judgment as a matter of law should be granted).
Although the courts will continue to explore the scope and extent of these broad relevance standards in different factual scenarios, the 3rd Circuit has made it clear that the days of “crabbed notions of relevancy and excessive mistrust of juries’ in employment discrimination litigation are at an end.
(Copies of several of the opinions cited above are available from The Legal Intelligencer.)