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What if an employer says he didn’t know about about the protected activity?

When I was a child, I loved the show “Hogan’s Heroes.” For those of you who were too young to recall the show, it was about some American POWs in a prison camp in Germany. Remember, it was a comedy. These POWs were no more imprisoned than you or I. They had radios, tunnels, and ran missions from their “prison camp.”

How did they do this? They had a buffoon of a prison guard named Sergeant Schultz. He surely knew of the comedy that was going on behind the walls of the prison. Whenever he was asked, however, he would respond with one of the classic lines in TV history: “I hear nothing; I see nothing; I know nothing.”

Employers have a habit of taking on the Sergeant Schultz character when they find themselves defending an employment discrimination claim. “I didn’t know she had a workers compensation claim when I fired her.” “I didn’t know that he had just reported his supervisor for race discrimination.” “I didn’t know she had complained of sexual harassment.” In other words, they claim that the decision maker did not know about the “protected activity.” They take the witness stand and effectively say, “I hear nothing; I see nothing; I know nothing.”

This defense is problematic because it requires employees to prove when a decision maker learned of protected activity, even though the employer has every incentive to hide this crucial information. Fortunately, some courts have realized that if a decision maker will lie about one thing, they will lie about everything.

It’s well-settled law that an employee can prove that the employer acted with an illegal motive if she can show that the “reason” an employer gives for the termination is a big fat lie. In other words, if an employer claims that he fired a pregnant lady because was late to work, but the employee can prove that she arrived on time, then the jury can “infer” that the real reason was her pregnancy. This is called a “pretext.” Again, that’s a fancy legal word for “big fat lie.”

Employees and their attorneys should use pretext evidence where an employer is claiming he does not know of the protected activity. “Pretext evidence” can also be used to estabish an employer’s knowledge of protected activity. If an employee can show that an employer is lying about material matters in case, the jury should be able to infer that he knows about the protected activity and is trying to cover up the discrimination.

Wise judges have reasoned that if the employee can show that the reason given by the employer for her termination is not true, then the jury can conclude both that the true motivation was illegal andthat the employer knew about the protected activity. See e.g. Cunningham v. Black & Decker, No. 05-1297 T-An. (W.D. Tenn. 2008); (holding that the jury could conclude that an alleged decision maker knew of the protected activity where his credibility has been impeached on other matters); see also Allen v. Chicago Transit, 317 F.3d 699‑700 (7th Cir. 2003)(When a witness is impeached on material matters, his credibility becomes an issue for the jury. It is well-settled that summary judgment is not appropriate on employment discrimination cases in light of such evidence); O’Malley, Grenig & Lee, Federal Jury Practice and Instructions § 15.06 (5th ed.2000) (model text of “falsus in uno, falsus in omnibus” as a jury instruction); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2726, at 446 (3d ed. 1998) (“Clearly, if the credibility of the movant’s witnesses is challenged by the opposing party and specific bases for possible impeachment are shown, summary judgment should be denied and the case allowed to proceed to trial”).

The moral of the story? Be sure your lies will find you out.

Discrimination, “Other Act” Evidence, and the Tennessee Vols

This is part two of our series of blog posts about the strange events at the University of Tennessee. When our story last ended, Athletics Director Dave Hart had forced out a long time female employee of the University. She sued for, among other things, sex discrimination.

Other female employees who have worked for Mr. Hart are apparently willing to say, “Me too!” In other words, it may be that other female employees, both from Hart’s time at U.T. and during his previous posts at other schools, will claim they suffered discrimination at his hands.

So here’s the question for trial lawyers: can they testify?

Rule 404(b)(1) of the Federal Rules of Evidence says that you can’t tell the jury about other bad things that folks have done in order to show that the person is a bad guy. This is called inadmissible “character evidence.”

Rule 404(b)(2), however, says there is an exception. You can introduce “other act” evidence to show a person’s “intent.” In other words, the fact a person has discriminated against women in the past can be used to show that the person has a bias against females.

Courts have struggled with how far this can extend. In 2008, the United States Supreme Court weighed in. They handed down a decision called Sprint v. Mendelsohn. In Sprint, the defendant convinced the lower court to exclude evidence of “other acts” of discrimination because they involved a different supervisor than the plaintiff’s.

The Supreme Court disagreed. They looked at the lower court’s belief that “me too” evidence was only admissible if it involved discrimination from the same supervisor. The Supreme Court said that you can’t have such a hard and fast rule. Instead, there must be a “fact intensive, context-specific inquiry.”

Well, what does that mean for Dave Hart? It’s probably not good news for him. I don’t know the specifics of what other females are claiming. It may be that there is some reason to exclude their testimony at trial. However, the Supreme Court in Sprint held that “me too” evidence might come in even if it involved a different supervisor. Since Hart was apparently the supervisor of all the females who are now crying foul, it seems difficult to see how he could keep them from testifying.

Now, allow me some shameless self-promotion. A few years back, I wrote a law review article on this topic. See “Previous Acts of Employment Discrimination: Probative or Prejudicial?” 25 American Journal of Trial Advocacy 297 (2001).

Send me an email if anyone would like a copy of it. They make great drink coasters.