By Marjorie Johnson, J.D.
There was no error in excluding evidence that the police chief had taken discriminatory action against other African Americans after he gave the desired position to a white lieutenant, due to the likelihood of jury confusion and the detective’s ability to offer evidence of pre-selection bias.
An African-American detective for a VA hospital failed to convince the Seventh Circuit that a district court made evidentiary errors entitling him to a new trial on his failed Title VII claim that he was denied a promotion to a criminal investigator position because of his race. The detective waived his challenge to exclusion of previously undisclosed evidence relating to witnesses’ own discrimination claims against the police chief. Also, the district court did not abuse its discretion in excluding post-selection evidence of the police chief’s alleged bias and the selected white candidate’s subsequent disciplinary actions (Henderson v. Wilkie, July 15, 2020, Ripple, K.).
The employee joined the police department for a VA hospital in 1986, where he held several positions until he became a detective in 2007. In 2013, he applied for an open position for a criminal investigator. Fourteen other individuals also applied for the job, which was eventually awarded to a white lieutenant who had joined the hospital’s police department in 2009 and had accumulated several known disciplinary issues.
No interview due to low resume score. At the first stage of the selection process, a three-person panel reviewed the applicants’ resumes, whose names had been redacted. The resumes were scored based on relevant experience in conducting, leading, and supervising investigations. The three candidates with the highest resume scores proceeded to the second stage of the selection process, the interview panel. Since the detective’s resume only received the tenth highest score, he was not selected for an interview. However, two other African American candidates had higher scores than him, with one of them ranking second and proceeding to the interview stage.
Top three candidates gave more detail. While the detective’s resume indicated that he was a detective and had training in conducting investigations, it did not describe the details of his responsibilities. The white lieutenant’s resume, in contrast, indicated that he had experience in both conducting and leading investigations, including years of experience as a criminal investigator in the Navy where he had supervised and trained more than sixty officers. Similarly, the other two top-scoring resumes described in detail the candidates’ qualifications in planning and leading investigations.
Police chief picks white lieutenant. The interviews were conducted by telephone before a separate three-person panel. The interview panel assigned scores to these three candidates based on their respective performances, and the scores were forwarded to the police chief, who selected the candidate with the highest scoring interview—the white lieutenant.
Race bias claim revived on appeal. The employee filed the instant action alleging race and age discrimination and retaliation under Title VII and the ADEA. In December 2016, the district court dismissed his entire lawsuit on summary judgment, but the Seventh Circuit subsequently revived his race bias claim, finding that triable issues existed as to whether the VA’s explanations for not selecting him for the promotion were pretext for racial discrimination.
Loses at trial on remand. His race discrimination claim was then tried by a jury that ultimately reached a verdict in favor of the VA. The court denied his motion for a new trial, rejecting his challenges to two evidentiary rulings. On appeal, he argued that the district court improperly excluded certain evidence that was probative of the police chief’s discriminatory intent.
Waived challenge over witnesses’ own bias claims. The Seventh Circuit first found that the detective waived his argument that the district court abused its discretion in preventing witnesses from testifying on matters he failed to disclose in his interrogatory answer, including their own prior discrimination claims against the chief. Significantly, the court never ruled on the VA’s motion in limine as to this particular evidence, only stating that it was inclined to prohibit the witnesses from testifying about topics that should have been disclosed in his interrogatory responses unless the VA “open[ed] the door” to the undisclosed topics. Moreover, the detective’s counsel told the court that he did not intend to ask witnesses about topics that exceeded the scope of the detective’s interrogatory answers, and this representation constituted a waiver.
No error in excluding post-selection bias. Additionally, the district court did not err in granting the VA’s motion in limine to exclude evidence of events occurring after white lieutenant was selected for the job, including evidence that the chief had taken discriminatory action against other African Americans after employment decision was made. On appeal, the detective averred that this evidence was crucial to his proving the chief’s discriminatory animus.
Potential for jury confusion. However, the district court “was on solid ground and certainly did not abuse its discretion” in determining that, because many of those instances were still in litigation, their admission would create unwarranted confusion and create “a trial within a trial” since the detective sought to ask the individuals who were not promoted “about what happened.” Moreover, the detective was hardly precluded from introducing other evidence of the chief’s alleged discriminatory animus from the period before the white lieutenant’s selection. The court reasonably concluded that “the slight additional value from this cumulative evidence was outweighed by the risk of jury confusion.”
Post-selection discipline also properly excluded. The Seventh Circuit also rejected the detectives challenge the district court’s exclusion of testimony about disciplinary matters implicating the white lieutenant that occurred after his selection for the criminal investigator position, on the basis that it was not relevant to show the discriminatory animus of the chief at the time of hiring and because it was likely unduly prejudicial. Notably, the detective had omitted mention of this issue in his motion for a new trial, and therefore the matter was clearly waived. Moreover, the Seventh Circuit found it “difficult to see the relevance of such evidence to the issue before the jury.”
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