Many federal judges avoid employment cases partly because they involve so much detail. But, it is in those details that a circumstantial case is won or lost. And, most employment cases depend on circumstantial evidence. in Robinson v. Jackson State, No. 16-60760 (5th Cir. 12/4/2017) (unpublished), the Fifth Circuit dived into those details and provided some helpful lessons. The lower court granted a motion JNOV (not withstanding the verdict) after the close of jury trial. That means the judge overturned the jury verdict.

Fredrick Robinson noticed a supervisor, Dr. Fuller, eyeing a secretary in a provocative way. Dr. Fuller, the new athletic director, fired the secretary. The athletic director then fired Mr. Robinson and another employee about  month after they were both interviewed by the EEOC. Robinson and the other employee were the only employees to corroborate the secretary’s allegations.

At trial, Dr. Fuller did not admit to knowing that Robinson had been interviewed by the EEOC. The school attorney who was present for the EEOC interviews denied telling Dr. Fuller about the witnesses and who they were. So, it was a classic case. The official who terminated Mr. Robinson denied she knew Mr. Robinson assisted with the EEOC investigation. If the supervisor does not know you assisted the EEOC, then that supervisor cannot be guilty of reprisal because you assisted the EEOC. So, Mr. Robinson’s case hinged on what Dr. Fuller knew and when she knew it.  The jury found in favor of Plaintiff Robinson and awarded $7,100 in lost pay, $25,000 in compensatory damages, and $75,000 in punitive damages.

The district judge then granted JNOV on that issue, finding there was no evidence that Dr. Fuller knew about the participation in the EEOC process before she decided to fire the two employees.

On appeal, the Fifth Circuit noted the timing. Robinson and the other witness were both fired one month after testifying to the EEOC. Jackson State attorneys knew about Robinson and the other worker. And, the purported reasons for firing Robinson were weak. Mr. Robinson was a trainer. The department was already below the require number of trainers when she fired Mr. Robinson. Dr. Fuller’s explanation shifted over time. And, Dr. Fuller did not comply with procedures for terminating an employee.

In reviewing the matter, the higher court noted that the McDonnell-Douglas burden shifting paradigms did not apply, once the jury heard the case. The court noted that in a relation case, it is important to show the decision maker had knowledge of the opposition to discrimination conduct. If Dr. Fuller truly did not know Mr. Robinson had spoken its the EEOC, then her action is firing the trainer could not have been retaliation. The plaintiff argued that the court should accept a “general; corporate knowledge” test as used in the Second Circuit. The Fifth Circuit, however, declined, noting that the circuit had always required “actual” knowledge by the decision maker. The court noted that the plaintiff provided some evidence of the Dr. Fuller’s knowledge. He attitude toward the trainer changed dramatically after he spoke with the EEOC. Prior to the EEOC interviews, the president of the university has explicitly threatened anyone who opposed Dr. Fuller with termination. The school’s two lawyers were aware of the interviews. Dr. Fuller met with both attorneys prior to her own interview with the EEOC and she continued to meet with them afterward. It wasps aid the court, not unreasonable for the jury to infer that Dr. Fuller knew about Robinson’s testimony.

The court noted rightly that it relied on Robinson’s testimony that Dr. Fuller started avoiding him after the interview with the EEOC. But, his testimony that he believed she was aware of his interview solely because of that change toward him was speculation. That is, his observation of her behavior was admissible. But, his conclusions about that behavior was not admissible.

The parties disputed whether the attorney’s knowledge should be imputed to the school. The court would not go there. But, it did note  in a footnote that there was sufficient evidence to infer knowledge on the art of Dr. Fuller from the school’s attorneys.

The court makes an important point that a change in attitude is relevant. But, for the plaintiff to infer the motive for that change is speculation on his part. When the jury makes the inference, that is traditional fact-finding. It is a shame this decision is not published, because that is an important point, rarely made. See the decision here.