Willnerd v. First National Nebraska, No. 07-3316 (8th Cir. Mar. 13, 2009); Graves v. UMB Bank Financial Corporation, No. 07-2901 (8th Cir. Mar. 13, 2009)

| Mar 12, 2009 | Daily Developments in EEO Law |

Two ADappeals in the Eighth Circuit, decided not on statutory arcana (into which so many ADA cases seem to descend), but on the basic issue about who a jury might believe. The first reverses summary judgment on straightforward grounds — that there was enough in the record to doubt the genuineness of the employer’s non-discriminatory explanation. The second went to trial, and the EEOC and employee lost; much of the Eighth Circuit’s opinion (affirming the verdict) is occupied with the admissibility of scribbles on a notepad.

Willnerd v. First National Nebraska, No. 07-3316 (8th Cir. Mar. 13, 2009): Willnerd lost his job as a loan officer/sales representative, and was not rehired thereafter into four other positions, for what he believed was a discriminatory reason: he “suffers from a voice condition that limits his ability to speak in a normal or controlled tone, periodically causes his voice to cut out completely, and requires him to put forth considerable exertion when speaking.” The district court granted summary judgment as the termination and failures to rehire.

The Eighth Circuit reverses.  In a comprehensive opinion covering each distinct claim, the court finds genuine issues of material fact about pretext in each instance.  As for the termination, the plaintiff was able to present the following:

“First, [plaintiff’s supervisor] Ulferts imposed a production quota on Willnerd that reasonable jurors could view as unattainable and as an effort to ensure Willnerd’s failure. Second, Ulferts and [supervisor] Kisicki made inconsistent statements regarding whether they considered other employees for termination. Third, other employees purportedly considered for termination were performing poorly and were not subject to quotas, or ultimately, termination. Fourth, the person to whom First National assigned most of Willnerd’s duties was underutilized prior to the assignment, subsequently failed to perform at Willnerd’s level, and was subjected to no adverse actions as a consequence. Fifth, [branch manager] Spangler and Willnerd were similarly situated, with identical job descriptions, and Willnerd outperformed Spangler. Spangler, however, received no quote and remained in his position despite his inability-and, in fact, the inability of the entire branch-to meet the production level First National demanded of Willnerd. Finally, Kisicki admitted he was concerned about how customers perceived Willnerd.”

Notably, on the failure (in one instance) to rehire plaintiff, the panel holds that the bank presented such a deficient non-discriminatory explanation, that the employee’s burden to rebut it was minimal:

“First National offered no further explanation regarding the Assistant Branch Manager position, so we need not address that claim further. Regarding the Senior Loan Operations Assistant position, First National proffered its selection of a more qualified applicant as the legitimate reason for not hiring Willnerd. First National states, ‘the manager hired a more qualified candidate who had more loan operations experience.’ First National has not fully explained what is meant by the term ‘loan operations experience,’ and we may not interpret this term in an expansive manner contrary to the interest of the non-moving party. Green v. Franklin Nat’l Bank, 459 F.3d 903, 910 (summary-judgment standard). While it is true that First National bears only the burden of production and not the burden of proof in stating a reason for its actions, by failing to more specifically articulate the job requirements and how those requirements relate to the candidates’ relative merits, First National has made it relatively easy for Willnerd to create a triable question of fact as to pretext.”

Graves v. UMB Bank Financial Corporation, No. 07-2901 (8th Cir. Mar. 13, 2009):  Another case about a bank. Graves, a quadriplegic since his youth, was referred by Rochelle Mitz — a job counselor with the organization I AM CARES, a group that works with disabled — for a position as a call-center representative with UMB.  The bank did not hire him.  Graves then filed an EEOC charge, contending that the bank falsely insisted that he required voice-activated software and that this was an excuse was a pretext for disability discrimination.  In the course of the agency’s investigation and conciliation, the bank offered Gaves a job, which he declined.  The EEOC and Graves eventually filed suit.

As the panel summarizes:

“The trial largely came down to a credibility assessment for the jury pitting Graves and Mitz, on the one hand, against the relevant employees at UMB, on the other. Graves argued he was badly mistreated and denied opportunities by UMB’s employees who knew his limitations and knew the scope of any required accommodations. UMB argued that it had an admirable record of hiring disabled persons and that it failed to hire Graves because it believed he required a specific accommodation-voice-activation software-that was inconsistent with UMB’s various computer systems.”

The jury returned a verdict for the bank.

The Eighth Circuit affirms denial of a new trial.  Graves (who as intervenor, took the appeal without the EEOC) challenged the admission of the EEOC investigatory and conciliation documents, a portion of an internal UMB investigative file, and evidence regarding the bank’s record of hiring disabled individuals within departments other than the call center; he also challenged the exclusion of evidence of alleged disability discrimination against another employee.  The panel affirmed all of the evidentiary rulings, on a variety of grounds (e.g., that the plaintiff opened the door, or waived timely objection, or that the evidence was relevant and admissible).

My favorite part of the opinion, though, regards a scrap of paper with jottings by Mitz about a phone call with Graves. Although the court ruled the document partially admissible, it ordered redaction of one line that made reference to the $300,000 cap on ADA compensatory/punitive damages — information that the jury is not supposed to have:

“Exhibit 69 is a small piece of memo pad paper containing handwritten notes. Graves alleges he did not share this document with UMB during the EEOC investigation, conciliation or settlement process, but rather, it was a note Mitz created when he talked to her one day after Bretches asked him for information about his settlement position. The notes on Exhibit 69 are difficult to read; words and phrases are written in lines that run into one another; and a number appears with commas inserted in an improper and confusing manner. The document states, on an approximate line-by-line basis: ‘3/26/04 Rodney,’ ‘EEOC,’ ‘file a case,’ ‘against UMB,’ ‘establish [sic] new law,’ ‘determination letter,’ ‘$7-8,00,000 [sic] general economic loss,’ ‘pension benefit, 20 year interest,’ ‘medical benefit,’ and ‘compensatory – 300,000 cap.’ There also appears to be reference to a percentage written near the phrase ’20 year interest.’ . . .

“[The court held that] the handwritten note, Exhibit 69, was not a settlement offer and was admissible. The court stated, however, that it would be “totally inappropriate” to show the jury that portion of Exhibit 69 with an apparent reference to a $300,000 statutory cap. See 42 U.S.C. § 1981a(c)(2) (‘[T]he court shall not inform the jury of the limitations described in subsection (b)(3) of this section.’).During UMB’s cross-examination of Mitz, UMB placed Exhibit 69 into evidence, and Mitz identified the handwriting on the note as her own. Notwithstanding the court’s earlier statement regarding the statutory cap, UMB placed the document on a courtroom projection device without covering the line that read ‘compensatory – 300,000 cap.’ Graves failed to make a timely renewal of his objection based on UMB’s full publication of the document, but he eventually made a record of the fact that UMB had presented the note in unredacted form. When Graves raised this point, the court noted Graves’s failure to make a contemporaneous objection and took no curative action.”

The Eighth Circuit holds that the admission of the document, and its brief appearance in unredacted form, was not reversible error.  Although the panel finds that the document constituted inadmissible evidence of offers of settlement under FRE 408, that its admission did not affect Grave’s substantive rights: “Any time a plaintiff makes a request for a substantial award before the question of liability is resolved, there is a risk the jury may find that the size of the request provides insight as to the plaintiff’s reasonableness and credibility. We believe that risk existed in this case based on the overt $3 million request just as it may have based on the possible $7-8 million estimate. Ultimately, then, any possible harm in this instance was incremental harm that comes down to a matter of degree. Any such harm could only have been slight . . . .”

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