Blog Post

Perkins v. Silver Mtn. Sports Club, No. 07-4130 (10th Cir. Feb. 25, 2009); Snooks v. Duquesne Light Co., No. 08-1689 (3d Cir. Feb. 24, 2009)

Posted by: Paul Mollica
February 26, 2009
Topic: Daily Developments in EEO Law

The Tenth Circuit affirms a $50,000 jury verdict for a plaintiff in an FMLA and Title VII pregnancy-discrimination case, finding that the employer blundered its after-acquired evidence defense. In an unpublished decision, the Third Circuit reverses summary judgment in a Title VII promotion case, finding irregularities in the promotion process that purportedly favored a white female candidate over the African-American male plaintiff.

Perkins v. Silver Mtn. Sports Club, No. 07-4130 (10th Cir. Feb. 25, 2009): The trial posed starkly different pictures of the plaintiff's firing from the accounting department of a health club. The employee said it was because she announced her pregnancy and asked about maternity leave. The health club originally called her an embezzler, though it later (tactically) withdrew that contention, so the jury instead heard about miscellaneous bad-performance thingies. Nonetheless, some evidence about the alleged embezzlement emerged in testimony. After a three day trial, the plaintiff prevailed, with $20,000 in lost wages and $30,000 in punitives.

On appeal, the defendant complained that the district court wouldn't let it put on an after-acquired evidence defense under McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), based on evidence learned after the employee's termination that she allegedly billed $73.22 of personal cell phone calls to the company. The employer presented a pre-trial motion in limine on this issue. The court reserved the question of whether the after-acquired evidence could come until trial. But according to the opinion, the employer ultimately failed to make the proffer at trial as required by Fed. R. Evid. 103.

Has anyone ever endured defense attorneys who acted like every word that they uttered carried the authority of law? Try this out on them, next time:

"Silver Mountain failed in its motions to demonstrate how it would comply with McKennon other than pointing to one company billing record that purported to show a cell phone payment. Rather than correctly explaining how the record would show misconduct by Perkins severe enough to justify termination, Silver Mountain incorrectly argued that McKennon stands for the proposition that it has 'an absolute right to introduce . . . [the] August 2005 cell phone payment into evidence," R. Vol. I at 164, and it would undoubtedly have fired Perkins for that payment. But lawyer argument is not admissible evidence." [Italics original; bold added.]

The court lays out the foundation that the employer was required to present (and that Silver Mountain failed to offer): "In this case, for example, to make a proper McKennon proffer at trial, Silver Mountain, among other things, could have demonstrated: (1) a basis for authenticating the $73 August 2005 payment record; (2) the payment was unauthorized; (3) Perkins was in fact responsible or credibly thought to be responsible for the payment; (4) the unauthorized payment would have been sufficient alone to justify her termination through testimony of a company."

Because of the waiver, "plain error" controls the review of the decision and the employer fell widely short.

The panel also holds that the district court did not err in excluding defense rebuttal evidence that the plaintiff had filed and withdrawn a defamation claim against the employer. Again, the employer failed to make a proper proffer and under "plain error" (or even abuse of discretion) review, the exclusion of the evidence was justified: "Silver Mountain never demonstrated to the district court how or what evidence it intended to present that would have demonstrated a factual inconsistency in Perkins's testimony or court filings. . . . [Moreover, it] simply did not show how the proposed rebuttal testimony complied with the court's pre-trial order or explain-unlike Perkins-how the testimony would show factual inconsistencies with the dismissed or withdrawn claims."

Snooks v. Duquesne Light Co., No. 08-1689 (3d Cir. Feb. 24, 2009): Here's a garden-variety promotion case, with the classic employer's dodge that the successful candidate "performed better in the second interview." But the plaintiff persuades the Third Circuit to reverse summary judgment, which holds that the process appeared jiggered to benefit the white female candidate. Notably, prior to the second interview, the decision-maker (named McGill) was allowed to spend an entire day with the white female candidate (named Stoehr) on a ride-along while paying a visit to her district, a privlege not extended to the plaintiff:

"Although Snooks has no personal knowledge of what McGill and Stoehr discussed during their eight hours together, the fact remains that Stoehr and McGill spent the day together just two days before the second round of interviews. A reasonable factfinder could infer that the two of them casually chatted over the course of the day, and that McGill could therefore have had a more favorable view of Stoehr simply from their otherwise benign conversation. We recognize that it was [another manager named] Duss, and not McGill, who chose Stoehr for the ride along. However, the mere fact that McGill went on the ride along, knowing full well that he would be interviewing Stoehr two days later, could certainly raise a question in the mind of the jury of exactly why Stoehr was selected for the promotion."

Further, the plaintiff pointed to a contradition between the employer's response to the local civil rights agency and subsequent civil discovery:

"In the position statement, DLC claimed that Snooks made no mention of the drug testing policy in response to a question about an employee who had been involved in a traffic accident. (App. 347.) However, the notes taken by both McGill and Cole indicate that drug testing was at least mentioned in Snooks's response to that question. (App. 327, 330.) Similarly, Snooks argues that DLC gave Stoehr credit for an incorrect answer to a question regarding how to respond to employees using inappropriate language in the workplace, while his incomplete answer was not given credit. Snooks claims that DLC completely overlooked Stoehr's incorrect answer to this question. Snooks argues that these apparent inconsistencies could support an inference that Stoehr had not actually demonstrated superior knowledge of DLC's disciplinary policy, and therefore the proffered non-discriminatory reason was pretext." [Footnotes omitted.]

Who knew that it took this little evidence to avoid summary judgment and get a trial? Pity that the decision's "Not Precedential."