The Second Circuit today reaches a mixed decision reviewing a jury verdict for the defense in a Title VII and state-law race discrimination and retaliation case. It affirms the verdict on the discrimination claim, in the process enunciating a multi-factor standard (is there any other kind?) for the admissibility of allegedly discriminatory statements in the workplace. It reverses on the retaliation claims, finding that the jury was mis-instructed on the causation standards.
Henry v. Wyeth Pharmaceuticals, No. 08-1477 (2d Cir. Aug. 4, 2010): This case was tried to a jury, with the variety of claimed denials-of-promotion, weak reviews and lesser assignments. The jury returned a no-liability verdict. On appeal, the Second Circuit sends the retaliation claims back for retrial. The jury arguably had to find, under that charge, that the employer’s agent/decision maker had actual knowledge of the employee’s protected activity:
“the plaintiff, in order to establish that causation link, has to establish that the person responsible for making the employment decision or action knew that the complaint had been filed, the informal complaint within the company had been filed, and that the action was in retaliation for the making of that complaint or charge of race discrimination.”
The Second Circuit reiterates, from its prior case law, the standard that it is the company’s knowledge itself of the protected activity – not the individual agent’s knowledge – that is relevant to causation.
“However, in order to show causation in the sense required by McDonnell Douglas – that is, a causal connection between the protected activity and the adverse employment action–it is not necessary that the supervisor who has knowledge of the plaintiff’s protected activities have ordered the agent to impose the adverse action. A causal connection is sufficiently demonstrated if the agent who decides to impose the adverse action but is ignorant of the plaintiff’s protected activity acts pursuant to encouragement by a superior (who has knowledge) to disfavor the plaintiff.”
Because the charge was erroneous and could have affected the outcome of the trial, the panel remands it for a new trial. [This holding itself may be upset, depending on the outcome in the pending “cat’s paw” case before the Supreme Court next term, Staub v. Proctor Hospital, No. 09-400.]
On the discrimination claims, plaintiff unfortunately appears to have forfeited most of his objections to the jury charge and evidentiary rulings. With respect to the evidence-admissibility issues, the panel adopted a framework already in use in the district courts to evaluate discriminatory remarks in the workplace:
“The district courts in this circuit have developed a standardized approach for applying these concepts to individual cases. In determining whether a remark is probative, they have considered four factors: (1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process). See, e.g., Adam v. Glen Cove Sch., No. 06-cv-1200 (JFB) (MLO), 2008 U.S. Dist. LEXIS 13039 at *24 n.8 (E.D.N.Y. Feb. 21, 2008); McInnis v. Town of Weston, 375 F. Supp. 2d 70, 83 (D. Conn. 2005) (citing Schreiber v. Worldco, LLC, 324 F. Supp. 2d 512, 518 (S.D.N.Y. 2004)). While we caution that none of these factors should be regarded as dispositive, we think this framework will often provide a useful approach to the admission or exclusion of remarks not directly related to the adverse action against the plaintiff, and employ it here.”
In this case, the panel evaluated statements said to be racially biased, only to find them too remote in time or remote from the decision-makers to warrant admission.
On other assignments of error, the panel holds that (1) the employee failed to make an offer of proof on another motion in limine (regarding other incidents of discrimination suffered by co-workers), thus forfeiting any objection (FRE103(a)); (2) he also forfeited his objection (by not making it on a timely basis) that the district court judge failed to share the final draft of the jury charge with the parties (Fed. R. Civ. P. 51); and (3) the use of McDonnell Douglas burden-shifting terminology in the jury charge was not plain error.
The one issue that gives pause is the part of the instruction that required the jury to find that the employer’s avowed reasons for its actions were “pretext.” At trial, this not the standard – an employee must show only, in light of the entire record, that discrimination more likely than not motivated the adverse action. “A plaintiff has no obligation to prove that the employer’s innocent explanation is dishonest, in the sense of intentionally furnishing a justification known to be false. The crucial element of a claim under Title VII is discrimination, not dishonesty.” The panel continues:
“To require a plaintiff to prove that the employer acted with conscious intent to deceive as to its reasons imposes a burden not envisioned by the statute. There are many circumstances in which a jury may justifiably find a prohibited discriminatory motivation notwithstanding a different explanation given by the employer in good faith without intent to deceive. One such circumstance exists where the adverse decision is made by two or more persons, some of whom are motivated by discrimination, while others are motivated by other reasons, and the employer’s innocent explanation emanates from those who had no discriminatory motivation and were unaware of their colleagues’ discriminatory motivation. In such cases, the explanation given by the employer will be based on incomplete information, but not an intent to deceive. In short, what the statute prohibits is discrimination in employment. It does not require proof in addition of deceitful misrepresentation.”
While the charge was conceivably erroneous, the panel holds that – because the employee himself proposed the language – any error was waived. Yet “[n]onetheless, for the future we caution district courts to avoid charging juries to the effect that a plaintiff must show that the employer’s stated reason for an adverse action was a ‘pretext.’ It is sufficient for a plaintiff to prove that discrimination played a role in motivating the adverse action taken against the plaintiff.”