ANATOMY OF A
DISCRIMINATION TRIAL
Tips and Tools of the Trade
Paul Lancaster Adams, Esq., Ogletree, Deakins, Nash, Smoak
& Stewart- Philadelphia Managing Shareholder
Tabitha Jenkins, Esq., Vice President – Assistant General
Counsel, Burlington Coat Factory
Mark Calzaretta, Vice President of Litigation Consulting, Magna
Legal Services
http://delvacca.acc.com
Agenda
1.
2.
3.
4.
5.
Parties, Underlying Facts
Complaint/Allegations
Building Our Case
Jury Selection
Mock Trial
1. The Parties
Defendant-employer
• Nationwide company
• In the business of manufacturing, selling, and repairing
very sophisticated, large-scale equipment
• Predecessor company based in Israel
Parties, cont.
Plaintiff-employee
• 57 years of age
• Practicing Orthodox Jew
• Born and lived in Israel; moved to United States to work
for Company’s predecessor in 1980’s
• 30 year employee
• On-site engineer who travelled to area facilities to service
Company’s equipment
• Worked on a team of engineers
• Supervised by an Area Supervisor
Parties, cont.
Plaintiff, cont.
• Earned approximately $75,000 annually
• Outpaced by his peers in technological skills and
frequently required technical assistance
• Highest sales performer in his area
Parties, cont.
Area Supervisor
• 40 years of age
• Transferred to the Region in order to improve productivity
• Supervised on-site engineers
• Placed Plaintiff on a PIP
• Terminated Plaintiff after his failure to improve
2. The Complaint
• Plaintiff, represented by counsel, filed a charge before the
EEOC.
• After the administrative investigation, he filed a federal
complaint alleging he had suffered age, religious, and
national origin discrimination.
• Demanded $6,000,000 in damages in addition to
attorneys fees.
Complaint cont.
• As a practicing Orthodox Jew, Plaintiff was forbidden
from working, travelling, and answering the phone on
religious holidays.
• Made a request for and was granted time off for a
religious holiday.
• Alleged his Area Supervisor attempted to contact him
numerous times on this religious holiday and relied on
his failure to respond as a reason for his termination.
Complaint, cont.
• Claimed his colleagues made fun of his accent, and made
discriminatory comments when referring to certain
Company equipment: “this is what we get with stuff from
your f_g Israeli brothers” “s_t machine from your brothers
in Israel.”
3. Building Our Case
No good deed goes unpunished
• Managers let Plaintiff slide for years without taking action
for performance improvement and even gave him
satisfactory evaluations and occasional Bronze Star
Awards. Every year he received raises and/or bonuses.
• Plaintiff’s colleagues compensated for and covered up his
deficiencies by routinely assisting him on service calls.
Building Our Case, cont.
Although these facts may be helpful to show lack of
discrimination, it simultaneously undermined our position
that his performance fell short of expectations and thus his
PIP and subsequent termination were warranted, especially
since he was a long-term employee.
*Clear and objective (balanced) performance evaluations
are necessary; ensure scores are warranted and deserved.
Building Our Case, cont.
• During plaintiff’s last performance evaluation he received
a satisfactory score that was later suddenly changed.
Plaintiff believed the action was part of a larger scheme to
get rid of him.
We discovered that the Area Supervisor who eventually
terminated Plaintiff actually advocated that he receive his
annual merit raise due to the clerical error. This fact helped
to dispute his claims of her discriminatory animus.
*Managers should adhere to review procedures and ensure
accurate evaluation information is provided to employees in
a timely manner.
Building Our Case cont.
• Plaintiff’s case also focused on the treatment of other
employees (even those not similarly-situated) and an
alleged pattern of age discrimination.
Building Our Case, cont.
• Despite being a long-term employee with a lengthy
personnel file, there was little evidence of Plaintiff’s
completion of any in-person or on-line anti-discrimination
and harassment training.
However, we used Plaintiff’s well-documented objections to
select evaluations to argue that he obviously knew how to
complain, yet he never made any complaints of
discrimination to Human Resources or management.
*Maintain evidence of training attendance and completion.
Acts as an Ellerth/Faragher affirmative defense and may
defeat a claim for punitive damages.
Building Our Case, cont.
Checks and Balances
• HR signed off on Plaintiff’s PIP and termination decisions
recommended by the alleged discriminatory Area
Supervisor. This added a level of fairness and functioned
as a check and balance.
*Juries like when personnel decisions are made fairly.
Attorney-client privilege
Not all communications with in-house or outside counsel
are privileged – must be seeking legal advice.
4. Key Issues
1. Sympathetic Plaintiff: older, long-term employee;
2. Discriminatory comments regarding religion and
national origin as well as sensitive facts centered
around a religious holiday;
3. New area supervisor tasked with improving the
department’s performance; and
4. Lack of clear documentation regarding poor
performance.
5. Ideal Juror Profile
(Voir Dire)
Who do we want on our jury?
Occupation
Religion
Sex
Race
National Origin
Marital Status
Education Level
Age
Focus Group Process
Recruitment &
Development of
Pre-screening
Questionnaire
Strategy Meetings
to Define Research
Objectives
Pre-Stimulus
Questionnaire
"Tabula Rasa"
Plaintiff
Presentation
"Clopening"
Post Plaintiff
Questionnaire
Defendant
Presentation
"Clopening"
Post Defendant
Questionnaire
Jury Charge Read
and Verdict Form
Issued
Two Phases of
Juror Deliberations
20
Purposes of Jury Research
Discovery Phase
Early Evaluation Phase
Post Discovery Phase
• Evaluate themes for
discovery
• Evaluate early settlement
desirability based on early
evaluation of themes and
prospects of success
• Re-evaluate settlement
post-discovery
• Evaluate clients’ and witnesses
credibility and likability to
assess settlement
• Evaluate lawyers for jury appeal
• Finalize themes for trial
• Evaluate favorable and
unfavorable jury characteristics
Voir Dire Technology
• Technology – Real-time database search
on prospective jurors
– Fast and Efficient – 3-5 seconds
• Allows us to glean information that we
cannot ask due to court restrictions
during Voir Dire
What Information Is Available on Prospective
Jurors?
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Address Summary
Others using SSN
Date/Locations where SSN Issued
Census Data
Bankruptcy Indicator
Property Indicator
Corporate Affiliations Indicator
Bankruptcy
Liens and Judgments
UCC Filings
People at Work
Driver Licenses
Vehicle Registrations
Property
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Watercraft
FAA Pilots
FAA Aircraft
Professional Licenses
Florida Accidents
Voter Registration
Hunting/Fishing Permits
Concealed Weapons Permits
Associates
Relatives (3 Degrees)
Neighbors
Criminal Records
Sexual Offenders
Phones Plus
Jury Scout and ClaimScout will monitor the
internet to assure that the jury is following the
judge’s orders.
Jury Scout and Claim Scout Monitor:
• Facebook, MySpace
and other social networks
• Digg, Reddit
and other social news sites
• Blogs and Journals
• Business networks
• Online Communities,
• Personal Web sites
Twitter and other microblogs
• and much more
• Message Boards
Predicting Juror Behavior
Jury Scout can create detailed profiles for each
individual juror based on their online habits,
which include but are not limited to:
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frequency of updates
(in terms of photos, status, and comments)
the number of social network profiles each juror has
whether their blogs and profiles are protected
(i.e., locked down)
•
number of online aliases
•
how much personal content is revealed within public forums
•
opinions on current events and religion, and
•
whether said juror is prone to signing online petitions.
Juror 1
Juror 2
Andrea T.
Juror 7
Juror 3
Juror 8
Juror 4
Juror 9
Juror 5
Juror 10
Danielle W.
Juror 6
Juror 11
Juror 12
Ashley C.
Juror 10: Danielle W.
This individual is one of the more tech-savvy of the group. Using three main online
aliases, the most popular of which is missxxxxx, Danielle W. has created a number
of profiles on the most popular social networking sites currently in use. Of the
bunch, she frequents Flickr and Facebook the most, usually updating her own page
and commenting other people’s posts at least a few times a week. She tends to
know the basic implication of online use as the majority of her profiles are set to
private. However, she tends to use the same email and usernames, making her
movements easy to track. As for function, the majority of her Internet usage tends to
be art oriented, specifically related to her hobby of photography. Surprisingly absent
from is a blog.
Ms. Whitney is likely to be a very opinionated plaintiff-oriented juror. Based on
her profile pictures, she appears very artistic and “anti-establishment.” In personal
injury cases, she is likely to be very sympathetic to plaintiffs. As she went to a
wealthy private school, she is likely to award high damages in these cases. She is
likely to be extremely dangerous in these cases as she appears very opinionated in
her views.
Juror 10: Danielle W.
MySpace:
http://www.myspace.com/missxxxxx
Full Name:
Current Address:
Hometown:
Phone Number: XXX-XXX-XXXX
Age: 29 (01/1982)
Gender: Female
Email Address: [email protected]
High School(s):
Online Names: missxxxxx , tigerxxxxx
Profile Privacy Settings: Set to Private.
Friends Only
Bankruptcy: 1 Found; Voluntary – Date Filed
03/13/2008 (Case Number 0810686)
Liens and Judgments: None Found
Facebook Profile:
http://www.facebook.com/profile.php?id=7438
94369 Profile Privacy Settings Locked minus
the following information: Sex, Current City,
Hometown, Likes and Interests, Friends (238
total)
Flickr:
http://www.flickr.com/photos/missxxxxx/
(Joined April 2008)
Livestrong:
http://www.livestrong.com/profile/missxxxxx/
MyLife: http://www.mylife.com/tigerxxxxx
Ebay: http://myworld.ebay.com/missxxxxx
Greek Restauant Review:
http://www.menupix.com/providence/restauran
ts.php?id=670138 (comment posted under
missxxxxx name)
Best Nim Chow in Providence?:
http://chowhound.chow.com/topics/465545
(comment posted under missxxxxx name)
Juror 2: Andrea T.
Though not considered a major Internet user, Andrea T. has an established online
presence mainly due to her family’s Internet usage. Most of the information found on
this individual was gathered from the pages of her husband and children, who had
their profiles unlocked and email addresses listed. Mrs. T.’s personal Facebook profile
was locked but her comments can be seen posted on her family and friend pages. In
terms of her own online behavior, the individual spends a great deal of time involved
with chain email strings and posting condolences in funeral home guestbooks and
memorials. Mrs. T. is very religious in the spiritual sense as is evident from her
memorial comments.
This prospective juror is likely to be defense-oriented in many cases. Based on her
online presence, she appears to be religious and conservative. It is important to note
that her only interest listed on her Facebook page is a link to indicate if you agree that
those who love their children should discipline them. This indicates that she believes
that individuals should take more personal responsibility for raising their kids and
thus will have a higher threshold before awarding damages to plaintiff than other
jurors. She appears to be very sociable and will likely get along well with the other
jurors and not be a strong hold out as she would rather “get along” than advocate
strongly for any particular position.
Juror 2: Andrea T.
Current Address:
Phone Number: xxx-xxx-xxxx (listed under
Martin T.)
Age: 49 (07/1961)
Gender: Female
Email Address: [email protected]
Married: to Martin T.
Bankruptcy: None Found
Liens and Judgemnts: None Found
Possible Properties Owned: 2 Found (39
John St – Listed Twice)
Facebook Profile:
http://www.facebook.com/profile.php?id=1591
721964 (profile unlocked: Info and Wall)
Husbands Business Website:
http://martintxxxxxmassage.weebly.com/
Daughter is Gina T.:
http://www.facebook.com/profile.php?id=5227
24828 (profile unlocked: Info and Wall)
Daughter is Tiffany T.:
http://www.facebook.com/profile.php?id=1070
135496 (profile locked minus some Info)
Alternate Facebook Profile : (listed as
Andrea Txxxxxx T.):
http://www.facebook.com/profile.php?id=1627
722263 Profile Privacy Settings Locked minus
the following information: Current City, Likes
and Interests, Friends (76 total)
MyLife: http://www.mylife.com/c-2544449975
Email address referenced by Danielle T. on
Discerning Angels Group thread:
http://groups.yahoo.com/group/DiscerningAng
els/message/52296
Juror 2: Andrea T. (Continued)
Andrea T. has a significant online
presence in regard to online memorials and
tributes as is evident in the following
pages:
- For Linda Harris:
http://www.tributes.com/show/Linda-Harris86386722
- For Maurice P. Goggin:
http://www.legacy.com/guestbook/bostonglobe
/guestbook.aspx?n=mauricegoggin&pid=1420
91972&sign=1&cid=sugg
- O'Keefe-Wade Funeral Home:
http://www.currentobituary.com/Condolences.a
spx?member_id=102&id=52455
Thank You!
Paul Lancaster Adams, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1735 Market Street, Suite 3000
Philadelphia, PA 19103
(215) 995-2800