Counsel failed to pursue comparator evidence in discovery; race bias claim failed
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Tuesday, August 29, 2017

Counsel failed to pursue comparator evidence in discovery; race bias claim failed

By Lorene D. Park, J.D.

Although an African-American broker, who was laid off before others based on his attendance violations, testified to his personal observations that white employees had similar violations but were treated more favorably, he could not recall specifics such as number of violations or dates. Affirming summary judgment against his state-law race discrimination claim, the Seventh Circuit explained that there is no rule requiring personal observations be corroborated, but his observations lacked context and his attorney failed to pursue discovery (e.g., attendance records) that might have provided context, so his observations were not relevant to the point he was trying to make. Consequently, his claim failed for lack of comparator evidence. The court also rejected the employee’s argument that the employer’s failure to produce attendance records should have raised a negative inference—having failed to file a motion to compel, his attorney could not now complain (Reed v. Freedom Mortgage Corp., August 25, 2017, Rovner, I.).

The employee and a coworker who is also African-American were hired first as temporary employees and then in November 2012 became full-time broker liaisons at a mortgage lender’s Illinois office. Regular hours were 8 a.m. to 5 p.m., though some employees worked other schedules with permission from management. Under the attendance policy, seven or more absences, late arrivals, or early departures in a 12-month period could trigger disciplinary action.

Email reminder on policy. In a January 21, 2013 email, the regional operations manager informed her 29 subordinates that she and the regional branch manager (both of whom are white) prided themselves on being flexible but they were “being taken advantage of,” so she reiterated certain requirements. The email stressed the work hours and stated there “will be no further ‘setting your own hours’ and assuming that you can stay until 6:00 pm to make up for coming in at 9:00 am.” She stated that employees were required to contact her, before 8:00 am, if they were going to be absent or late. She also stated that only three employees had been approved to work from home and no other approvals would be granted except in “extreme emergency.”

Attendance problems persist. Four days later, the regional operations manager issued a verbal warning to the employee for violating the policy. Another four days later she issued a written warning when he arrived at 9:30 a.m. without advance notice. Between February 14 and April 1 he was absent at least eight times and could not recall if he received prior approval. And between March 6 and April 10 he clocked in late 11 times. His African-American coworker conceded that she also violated the policy numerous times. The regional operations manager sent another email reminder, but the employee’s attendance problems persisted.

Termination. At some point during the employee’s six-month tenure, he applied to be a junior underwriter but was rejected. He was also denied opportunities to work from home. When a decline in business prompted a reduction in force, both he and the African-American coworker were among the first three laid off from the office in April 2013. The regional managers selected them because of the attendance problems and they had less seniority than other employees.

The employee filed suit alleging race discrimination under the Illinois Human Rights Act. Granting summary judgment for the employer, the district court found no evidence that the employee was treated less favorably than similarly situated non-African-American employees.

Evidentiary rulings proper. On appeal, the employee argued that the court abused its discretion by not considering cell phone videos that his coworker made. Disagreeing, the court found that the cell phone videos were not properly authenticated and the employee’s attorney did not timely include them in the appendix of exhibits. Also, on appeal the lawyer challenged only the authentication and did not address the district court’s second rationale, thereby waiving his challenge. Even had he not waived it, the videos were properly excluded because neither the employee nor the coworker who recorded the videos could recall the dates or times the videos were taken, or even whether they were recorded before or after the regional manager’s email.

Counsel failed to pursue discovery. The employee also claimed the court should have credited a negative inference from the employer’s failure to produce certain formal attendance records during discovery. However, the employer had raised objections to the discovery requests for the records and the employee’s attorney failed to follow-up or move to compel production. Once the employer objected, the onus was on the employee’s counsel to try to resolve this “most ordinary kind of discovery dispute” or to compel production. Having failed to do either, there could be no complaint about missing evidence. The negative inference rule was simply inapplicable here.

Lack of context made employee’s observations irrelevant. Proceeding to analyze the merits under the McDonnell Douglas analysis, the appeals court found that summary judgment was proper because the employee failed to provide sufficient evidence that a similarly situated non-African-American employee was treated more favorably. He conceded that he received oral and written warnings for attendance violations and that he continued to be absent and late thereafter. And while he pointed to four white employees whom he claimed had similar attendance problems, he had no evidence other than his personal observations of their arrival times and absences, and he could not recall the specifics in terms of dates or number of absences or later arrivals.

The court was careful to note that there is no rule requiring corroboration of personal observations, but the employee’s attorney failed to gather evidence regarding the timing or context of the personal observations that would have made them relevant to the point he was trying to prove, namely, that these employees had similar attendance issues and were treated more favorably. Absent evidence regarding the attendance of similarly situated white employees, the employee could not establish that they were treated more favorably and his claim failed as a matter of law. The employee’s hostile work environment claim, which “simply rehashes his claim for race-based termination,” failed for the same reason.

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