Category Archives: Same Actor Inference

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.