Category Archives: Jury Trial

Are Numbers Facts or Statistics? It Can Make A Difference.

When are numbers facts, when are they statistics, and when are they relevant?  These questions frequently beguile courts and parties alike.  Let’s take a look.

Cheri Hutson sued her employer, Federal Express, for sex discrimination, claiming that she had been denied promotion on account of her sex.  The case came up for trial, and Federal Express filed a number of motions in limine.  A motion in limine is a motion filed shortly before trial, asking the Court to make a ruling concerning some issue that is going to come up at trial.  The most common motions in limine seek evidentiary rulings.

One of Fedex’s motions asked Judge Anderson (who presided over the case) to prevent Hutson from introducing into evidence the fact that plaintiff’s manager had never, or almost never, hired a woman into a managerial position.  According to the Court’s opinion, women applied for manager positions 16 times during the tenure of plaintiff’s manager, and only once was a woman hired.

Well, that seems pretty relevant in a sex discrimination case, doesn’t it?  Indeed it does, and indeed it is.  Not only is it a matter of common sense, but the Supreme Court, in the most important discrimination opinion on the books, stated that the defendant’s “general policy and practice with respect to minority employment” would be relevant in a discrimination case.  It went on to endorse the use of “statistics as to petitioner’s employment policy and practice” to determine whether the refusal to hire the plaintiff “conformed to a general pattern of discrimination.”  But Judge Anderson ruled in favor of Federal Express and refused to allow plaintiff to introduce this evidence.  

Why?  Judge Anderson wrote that “statistics are valid and helpful in a discrimination case only to the extent that

“the methodology and the explanatory power of the statistical analysis sufficiently permit an inference of discrimination. Specifically, the statistics must show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity.”

He went on to note that the small “sample size” of the plaintiff’s statistics eliminated its probative value.  Probative value is just legal mumbo jumbo for the ability of evidence to prove something.  In other words, the Judge ruled, in essence, the fact that plaintiff’s manager only hired 1 woman in 16 hiring decisions didn’t prove anything.


The case went to trial and plaintiff lost.  She has filed a motion for a new trial, citing the exclusion of this evidence as one of the grounds.  

Was Judge Anderson’s decision correct?  I say no.  In my view, He got caught up in the numbers as facts versus numbers as statistics confusion.  The confusion is caused by a misconception that can be expressed in the following logical fallacy:

  1. Statistics can be used to prove discriminatory intent.  Such statistics, however, are admissible only if they satisfy rigorous statistical tests necessary to render them reliable. (This is true.)
  1. Statistics are derived from numbers.  (This  is true.)
  1. Numbers are not admissible unless they satisfy rigorous statistical tests necessary to render them reliable.  (This is false.)

In other posts, I have alluded to the fact that defendants have been successful in foisting a number of dubious “doctrines” on the Courts.  The idea is numbers must meet certain statistical requirements in order to be admissible is one of those dubious doctrines.

If Hutson’s manager hired only 1 woman in 16 hiring situations, that is a fact.  The only test that it should have to meet is the general test for relevance: does it make a material disputed fact more or less likely to be true?  The material disputed fact here is whether Hutson’s manager discriminated against women.  If he did, then we would expect there to be few women in managerial positions he filled.  If he did not, we would expect there to be a representative number of women in positions he filled.  Patently the number of women in managerial positions filled by Huston’s manager is relevant to the issue whether he discriminates against women.

Where did Judge Anderson go wrong?  He went wrong by confusing numbers as facts and numbers as statistics.  In some cases, a plaintiff will want to use statistics as the only evidence of discriminatory intent.  What is the difference?  In Hutson, plaintiff alleged that an objectively less qualified man was given the promotion instead of her.  That fact alone is sufficient to prove discrimination.  The numbers that she sought to introduce are additional evidence that bolsters her claim.  In Bender v. Hecht’s Dep’t Stores, 455 F.3d 612 (6th Cir. 2006), one of the cases relied on by Judge Anderson, the plaintiffs alleged that they were chosen for layoff in a downsizing because of their age.  The evidence offered by the plaintiffs was the fact that the average age of the individuals with their job title was 41.7 years old, while the average age of the employees who were laid off was 43.4 years.  What the plaintiffs in Bender did not say was “X should have been laid off instead of me.”  In other words, they weren’t comparing themselves to other employees, they merely claimed that the process was discriminatory.  You can see the difference.

In my view, Bender was right (on this point) for the wrong reason, because the evidence in that case was also numbers as facts and not numbers as statistics.  In a discrimination case, true statistics deal with probabilities; namely the probability that a certain event was caused by discrimination versus something else.  Let’s say that your employer makes employment decisions by flipping a magic coin.  If the coin lands on heads, it’s one decision, and if it lands on tails, it’s another.  What makes the coin magic is that if the flipper has discrimination in his or her heart, the coin will land only on heads.  

So let’s suppose that a manager has to decide who to hire, and the choice is between a man and a woman.  The manager flips the magic coin.  If the manager does not discriminate, it is equally likely that a man or a woman will be hired.  If the manager discriminates, the coin will land only on heads and a man will be hired.  The coin is flipped, and it lands on heads.  Did it land on heads because the manager discriminated, or just by chance?  We can’t tell.  

There’s another job opening, and the coin again lands on heads.  There is a one in four chance of getting heads twice in a row.  It could still be just chance.  After another job opening it’s heads again.  The odds of three heads in a row are one in eight, 12.5 percent.  Now, here is where statisticians differ from ordinary mortals.  You and I may well say that it’s got to be discrimination, but statisticians are more cautious.  When there is a one in eight chance of something happening, it is going to happen from time to time, and it would not be so unusual that the statistician would be ready to conclude that it can’t be chance.  Think about it, if there were a one in eight chance that your son was going to crash the car, would you ever let him drive it?  Very few of us would take any serious risk on one in eight odds.

At what point do statisticians say enough is enough, i.e., “statistically significant.”  The short answer is at 5 percent (one in twenty).  The long answer is “it depends,” but we can ignore that for present purposes.  At one in twenty, we are talking about five consecutive coin flips landing on heads.

Let’s get back to the Hutson case.  1 in 16 hires was a woman.  1 in 16 is more than 5 percent, so it’s not statistically significant is it?  Not so fast.  If each hire is a coin toss, what are the odds that the coin would land on heads 15 times and tails only once?  That’s a lot less than 1 in 16 or 1 in 20.  That is correct.  It would be very rare  to flip a coin 16 times and end up with 15 heads and 1 tail.  It would be statistically significant.

What is this “sample size” that Judge Anderson was talking about?  Let’s say that you wanted to predict who is going to win an election.  One way to do that would be to ask each and every voter how he or she was going to vote.  Assuming the voters tell the truth and don’t change their minds, you would have a very accurate prediction.  But usually it’s not possible to poll every single voter.  Statisticians (bless their hearts) have figured out how to predict the characteristics of a large group (called a “population”) by looking at the characteristics of a small portion of that group, and that portion is called a “sample.”  Basically, for a population of “x” members, a random sample of “y” members will predict the composition of the population to a “z” degree of certainty.  

When Judge Anderson referred to plaintiff’s evidence concerning the number of male versus female hires as a “small sample size,” he was just wrong.  The numbers represented the entire population, therefore it was meaningless to talk in terms of sample size.

Although I believe that Judge Anderson should have allowed plaintiff to introduce the evidence, for a proper analysis we need to go into a little more depth.  I took a look at the motion papers filed in Hutson, and it’s not clear to me that the 1 woman in 16 hiring decisions numbers referred to by Judge Anderson was correct.  (The motion papers are not the model of clarity on this point.)  What I gleaned was that there were five occasions on which both men and women applied for a manager’s position and there was at least one successful candidate.  On each occasion, there were significantly more men than women applying for the position.  All told, 54 men and 11 women applied.  7 men and no women were hired.  According to my calculations, the odds of this happening by chance (i.e., in the absence of discrimination, everything else being equal, are 31.7 percent.  Not statistically significant, but certainly relevant.  

If only one woman had been hired, however, the numbers would be perfectly in line with the odds.  This brings us back to what Judge Anderson’s meant when he wrote “small sample size.”  Change that to “small population size” and his reservation is valid.  Small populations generally will not prove much of anything, because small changes in the numbers have such a big effect.  If you roll dice only three times, you can’t really tell if the dice are loaded or not.  Roll them a thousand times, and you’ll know.

That being said, I still think that the jury should have seen those numbers.  After all, they are perfectly consistent with discrimination.  More importantly, they represent facts, things that actually happened.  Although the numbers may not be statistically significant, the test is relevance, not statistical significance.  Relevance is the “tendency” to make a fact more “probable,” and the numbers clearly do that.  Relevant evidence is admissible, and the probative value is for the jury to determine.  You can be sure that Federal Express would have wanted to introduce the evidence if three women and only four men had been hired.  The Supreme Court has said that the hiring practices of defendant are admissible.  The admissibility does not depend on what those hiring practices were.

Will Hutson win her motion for a new trial?  Not likely.  She made the motion, because she is required to if she wants to appeal.  Will she win her appeal?  I can’t say, because I haven’t read the trial transcript, but I don’t think Judge Anderson’s ruling on the evidence of Fedex’s hiring practices would be considered reversible error.  Isn’t that unfair?  Yes, indeed it is.

Robbed Of His Day In Court

The Constitution guarantees the right to trial by jury.  Except when it doesn’t.  Every court system has a process by which judges decide whether a case goes to trial or not.  This commonly befuddles clients, who ask, not unreasonably, why wouldn’t my case “go to court?”  Here’s the reason:  the purpose of a jury is to decide facts.  In most cases, this is synonymous with deciding who wins or loses, but not always.  If there are no facts to decide, there is nothing for a jury to do, and there is no need for a trial.  This process for determining what cases go to trial is generally called “summary judgment” or “summary disposition.”

Who decides whether there are facts to decide?  

The judge.  

In deciding whether there are any facts for a jury to decide, a judge is bound by a simple rule: the role of the judge is solely to identify factual issues; the judge cannot decide who’s telling the truth or which version of the facts is correct or more likely.  The judge’s ability to “weed out” facts is governed by these rules: one, disputes over immaterial facts are ignored; and two, contentions that “no rational jury” could believe are ignored.  For example, in a race discrimination case, an allegation that the supervisor used his work computer to view inappropriate videos is unlikely to be of any significance, even though it may demonstrate a lack of character or judgment.  By the same token, nobody has the right to ask a jury to believe something that is patently unbelievable.  Apart from these exceptions, the judge is not supposed to pass judgment (pun intended) over any issues in the case. (There is a third exception that I’ll save for another time, it’s not important to this discussion.)

While these rules would make it seem like most cases should go to trial, it does not quite work that way.  In too many cases, what “no reasonable jury could believe” turns out to be what the judge does not in fact believe.  Some judges run roughshod over facts that are of some importance, albeit not momentous.  There are some troublesome “doctrines” that are (in my view) impermissible shortcuts for deciding cases.

What happens if a case is thrown out on summary judgment?  There is a right to an appeal.  On appeal, the appeals court is supposed to decide the motion “de novo,” which means that the decision of the first judge is ignored, and the motion is decided all over again.  In practice, the appeals courts give a lot of deference to the decision of the lower court judge.

This process has a lot of potential for injustice, particularly in the Federal Courts.  This comes as a surprise to many people (and not a few lawyers), because historically it has been the Federal Courts that have spearheaded advances in civil rights and the battle to end discrimination in employment, education and public accommodations.  That is part of the problem.  Some Federal judges believe that the Federal system is for big cases involving important principles, and that the garden variety wrongful discharge case should not be clogging up the Federal system.  (In the unlikely event you are a Federal judge who happens to be reading this post, I don’t mean you!)   

There is some irony here.  Federal judges have the greatest job security in the world, quite literally.  The Constitution provides that they are employed for life, they can’t be fired and their salaries cannot be reduced.  Yet, so many show so little concern for the average Joe or Jill that is summarily tossed off the job.

Chester v. DirecTV, L.L.C., 2017 U.S. App. LEXIS 5530 (5th Cir. 2017), a recent summary decision by the Fifth Circuit Court of Appeals illustrates virtually all of the problems identified above.  This was an age discrimination case.  The plaintiff, Chester, supervised a team of installers for DirecTV.  There were four supervisors in his unit, and at 59 years old, he was the oldest.  Two of the other three were in their 30s, and the fourth was 43.  Chester was fired, supposedly because his team was performing poorly as measured by certain statistics used by the company.  But the other teams all had poor performance as well, and one of the supervisors had numbers that were identical to Chester’s.  So why was Chester fired and not the others?

To me (and probably to you), this is a classic age discrimination case.  Chester says that age was the reason, a conclusion that is supported by the facts.  The company says that it was Chester’s performance and no other reason.  Its argument is that while other supervisors had poor numbers, Chester’s situation was different, and those differences are why he was fired and not anybody else.  At this point, the reader might say:

Ah ha, I see where this is going!  A question of fact, something for a jury to decide.  Was Chester fired for age or for performance?

Unfortunately, that is not where this is going.  The judge in Chester’s case wrote what I call a “nothing to see here, move along” decision and threw the case out.  The judge’s decision was rubber stamped by the Court of Appeals.

Why was the case dismissed?  My analysis is that the lower court weighed the evidence, drew inferences in favor of the defendant, made credibility determinations and misapplied one of those dubious doctrines I referred to above.  Weighing evidence means, in the context of conflicting evidence, deciding that one piece of evidence is more important than another.  Credibility refers to whether a particular piece of evidence, usually testimony, should be believed.  The dubious doctrine is a nefarious idea known as the “same actor inference.”  All the above was mixed up with some faulty reasoning, and produced a horrible result.  

Let me start with the same actor inference.  In simple terms, if the person who fired you is the same person who hired you, it makes no sense to accuse that person of discrimination, since, if he or she wanted to discriminate against [fill in the blank], he or she would not have hired you in the first place.  This is perfectly logical, where it makes sense.  A complete discussion of the doctrine and its limitations in the context of summary judgment would be outside the scope of this post.  It is sufficient to say that it simply did not make sense here.  Chester was hired in 2003 by a company called Bruister, which was a contractor for DirecTV.  DirecTV bought Bruister in 2008 and “hired” all of Bruister’s employees, including Chester.  So, while DirecTV hired Chester in some technical sense, it is not as if DirecTV made some individualized decision to hire Chester such that it would be fair to say that it would be irrational to accuse DirecTV of discriminating against Chester.  There are other reasons the same actor rule makes no sense here, but there is no need to go into all of them.

When we talk about “drawing inferences,” we simply mean interpreting evidence, deciding the meaning of facts.  Virtually all discrimination cases are proved by circumstantial evidence, so the entire case relies on convincing the jury that certain inferences should be drawn.  There is nothing complicated about this, we do this hundreds of times in our daily lives.  It is so natural, that we are hardly aware of it.  In deciding whether there are facts for a jury to decide, the judge is supposed to draw all possible inferences in favor of the plaintiff.  That is not what happened here, not by a long shot.

The essence of discrimination is treating one person differently than another or others.  Chester was treated differently than the younger supervisors, so it was critical for DirecTV to justify that different treatment.  Generally speaking, it is the jury’s role to decide whether the explanations make sense and represent the real reason the employee was terminated.

About the only thing that DirecTV could come up with to distinguish Chester from the other supervisors was the assertion that, in a meeting, Chester was unable to identify the strong and weak performers on his team.  Chester disputed this.  According to Chester, he based his answers on the same metrics that the company used to evaluate the performance of his team.  The court gave no weight to Chester’s assertion, because he was not specific enough about what statistics he relied.  The appeals court added that Chester did not “provide the district court

with the accurate information he claims to have provided during the meeting or that he would present at trial if given the opportunity.”  What neither the District Court or the Court of Appeals  decision acknowledges, however, is that DirecTV’s evidence was even more vague than Chester’s.  The meeting in question was not documented, and all DirecTV said was that when Chester was asked to identify the strong performers, he named the weak, and vice versa.  Chester’s response, that his identifications were based on defendant’s metrics, was appropriate and sufficiently specific.  Furthermore, DirecTV relied on the affidavit of a person who was not even present at the meeting in question, and he did not identify the source of his information.  It should have been ignored entirely.  

The Court also criticized Chester for not attempting to “correct the miscommunication or

clarify his responses even after he was informed he answered incorrectly and his termination was at least in part based on his responses.”  I really don’t see any significance to this, but if there was any significance, it is a matter of interpretation, i.e., for the jury.  Chester stated that the meeting in question was held on September 5, and he was terminated on September 6.  An employee is under no obligation to try to convince the employer to change its mind, and most do not.  Chester filed his charge of discrimination with the EEOC right away, and DirecTV had the opportunity to change its mind and offer him his job back.  These types of details, although completely insignificant in my opinion, are for the jury to assess.  

I could go on, but the point has been made.  A jury, not a judge, should have decided Chester’s case.  

I don’t know anything about Chester.  He could have been the employee from hell for all I know.  But he deserved a better shake than this.  The loss of employment at 59 years old is usually devastating.  It is hard to find employment at that age, especially for somebody carrying the stigma of having been fired from his or her last job.  With retirement only a few years off, it’s critical to earn and save as much as possible in the last few years of one’s work expectancy.  Too many individuals who have worked hard all their lives find themselves without sufficient savings for retirement, and are forced to take low paying, menial jobs in their late 60s or 70s just to pay the bills.  

Where was the justice in denying Mr. Chester his day in court?  Was it a close call?  Then we should err in favor of the individual, very plausibly the victim of age discrimination, and not in favor of DirecTV, a subsidiary of AT&T, a multinational corporation with over $400 billion in assets.