*1 and material issue of fact presented,”55 is must Commission conduct formal

hearing request; applica- on the license finding

tion bemay granted only on a interest, convenience,

“the public neces- Thus,

sity” will be served thereby.56

burden of proof normally divided be-

tween parties supporting opposing

grant. The nominal additional burden of

coming with an showing forward initial assumptions undergirding generalized findings

Commission’s do not

apply to inconsequential Alaska too

hardship to warrant a rush review.

III. Conclusion reasons,

For the foregoing petitions

for review are dismissed. Petitioners’ chal-

lenges preserved will be for the court’s re- (1)

view when there is an state regu- actual place

lation in which the FCC declares in-

valid as inconsistent with regulation; FCC

or (2) when grants FCC applica- DEMS

tion objection over the of Alascom or anoth-

er rural carrier.

So ordered. V.

Geraldine CARTER

DUNCAN-HUGGINS, LTD., Appellant.

No. 82-1082. Appeals,

United Court of States

District of Columbia Circuit.

Argued Nov. 1982.

Decided Feb. 1984.

As 12, 1984. Amended Feb. 17 and March 21.32(e)(1) (1982). 21.32(a) (1982). 55. 47 C.F.R. § C.F.R. § *2 Appellant

followed. challenges here the de- nial of judgment n.o.v. motion and the trial court’s failure to give certain jury Finding instructions. no merit in appel- arguments, lant’s we affirm.

I. Standard of Review In reviewing a for motion a judg n.o.v., ment ask question we the same the district court asked initially consider ing the Because motion. a motion for judg upon domain, ment n.o.v. intrudes jury’s question very narrow. The jury’s verdict evidence, must stand “the unless together all inferences that can rea sonably be drawn therefrom is so one-sided men reasonable disagree on the verdict.” Coburn v. Pan American Inc., 339, World Airways, (D.C. 711 F.2d 342 Cir.1983) (quoting Murphy States, v. United denied, 637, (D.C.Cir.1981)), 653 F.2d 640 cert. - --, 488, U.S. 104 S.Ct. 78 - L.Ed.2d (1983). 683 See also Vander Zee Karabatsos, v. 589 723, (D.C.Cir.1978), F.2d 726 denied, 962, rt. 441 U.S. 99 Heller, S.Ct. D.C., James H. Washington, ce 2407, 60 L.Ed.2d 1066 (1979). The motion appellant. should be denied unless Lawrence, JePhunneh Washington, D.C., “there can but one reasonable conclu- appellee. sion” drawn from the evidence viewed “in the light most favorable to the [plain- ROBINSON, Before Judge, Chief ..., giving them the advantage of SCALIA, tiffs] MIKVA Judges. Circuit every fair and reasonable inference that Opinion for the Court filed Circuit justify”.

Judge MIKVA. Metrocare Washington Metropolitan v. 922, Area Transit Authority, 679 F.2d 924- Dissenting opinion filed by Judge Circuit (D.C.Cir.1982) 25 (quoting Mary Foster v. SCALIA. Savings Association, land State and Loan MIKVA, Judge: Circuit 928, (D.C.Cir.1978), 590 F.2d 930 cert. de This is an appeal nied, 842, from a jury verdict that 439 99 59 U.S. S.Ct. L.Ed.2d $10,000 awarded Geraldine V. (1979)). as 37 If people may fair-minded dif damages compensatory conclusion, for discriminatory fer as to the there or if is sub proscribed by activities section 1981 of the conflicting evidence, stantial judgment Rights Civil Act of 42 U.S.C. 1981. n.o.v. motion must be Necessarily, § denied. alleged Carter had her em- throughout reviewing court must all the consider ployment, employer, Duncan-Huggins, evaluating evidence offered. In the evi dence, intentionally against however, Ltd. had discriminated the court should not decide Following the jury her because of her race. the motion based which side has the Carter, appellant Duncan-Hug- verdict for “better of case.” v. Bohrer Hanes 213, 218 judgment Corp., (5th Cir.1983) for a non ob- gins timely (quot moved 715 F.2d n.o.v.). ing Maxey Freightliner Corp., stante 665 (judgment veredicto F.2d trial Cir.1982)), court motion this appeal (5th petition denied the 1371 for cert. reflected Carter’s of the desk 10, 1984) placement (U.S. Jan. filed, 52 U.S.L.W. Id. at 37. sample librarian. duties the court assess (No. 83-1017). should Nor for this Moreover, responsible the evidence. weigh credibility witness that Carter had testified arrangement work Airways, Pan American World Coburn v. at 262. Carter the desk. Id. asked for Inc., Those are functions 711 F.2d at 342. in- request and made this having denied jury. for the reserved instructed that she had been stead testified No Background Id. at 123-24. work in the back. II. however, toas proffered, explanation in detail testimony We rehearse the been could not have desk why Carter’s that we can evaluate what inferences so shelves, not in such placed closer to Appel have drawn. juror may reasonable extremely position. isolated Carter, woman, V. a black lee Geraldine June, Duncan-Huggins moved Duncan-Huggins, employment with secured *4 sample facility That had facility. a new op Ltd., Duncan-Huggins 1979. January the show- separated that was from library showroom of fabric erates a wholesale doorways. For a a wall with two by room At designers. furniture for architects and move, following time period short case, Duncan-Hug all times relevant to a desk in the allegedly occupied Carter and thus gins people hired less than fifteen Thereafter, 128, 265-66. showroom. Id. at not fall the ambit of Title VII of did within carried supervisors de facto one of Carter’s 1964, 42 Rights the Civil Act of U.S.C. library. sample separate desk into the Instead, this (1976). 2000e to 2000e-17 §§ Carter, had inade- according to library, This of section purview case falls within Not sur- lighting and ventilation. quate 1981, prereq as an additional imposes which suggested different parties all prisingly, liability plain that the finding uisite to a alleged this relocation. Carter reasons for discrimination. Gen prove tiff intentional by a discrimi- the move was motivated that Building Association eral Contractors actually who natory intent. S.Ct. Pennsylvania, U.S. he did so at testified that moved the desk (1982). 73 L.Ed.2d 835 Duncan-Huggins’ one of the direction of first, only, black em- was the Carter owner, That who ad- at 266. owners. Id. job, applied for the ployee. When Carter place- having responsibility mitted Perez, in- Duncan-Huggins’ president, furniture, that and who indicated ment of duties would primary formed her that her messy sample work was sample because librarian, opportu- with some sample be as from the show- was to be secluded room (Tr.) at 81. Transcript sales. nities to make whether, room, explained specifically never librarian, would retrieve sample As desk to be he ordered the why, and if so wanted to carpet samples that customers Moreover, the own- at 289-93. moved. Id. those that had been borrow and reshelve about where Car- saying anything er denied at Duncan- returned. Carter remained Perez, Id. at 292. stationed. ter was be 1980, when she volun- until June Huggins that suggested Duncan-Huggins’ president, job elsewhere. begin left to tarily construction was relocated because the desk period employ- initial During Carter’s not been com- had work in the showroom other, ment, Yet, desks with the she shared when the con- Id. at 234-35. pleted. show- Company’s desk employees completed, white work was Carter’s struction however, was area. the customer Eventually, not returned to room. tall shelves in returned to the show- was not a desk behind desk given Perez, place- Be- kept. room, samples according carpet which the access shelves, gave was isolated back Carter better the desk ment in the these cause of As evidence samples. con- Id. at 235. from customer from the showroom did not reflect Carter’s contrast, employees placement the white all tact. race, pointed to the fact Dun- showroom. located used desks librarian, woman, a white the current trial can-Huggins suggested spends time same all her remote the summer Carter’s salary, en however, fact, raise, larged by equal desk. This does alter the have been to a Carter, Duncan-Huggins’ only black employee’s salary. white Id. at 14 That separated both employee, however, from employee, joined white Dun employees and customers for the over- can-Huggins after Carter and thus was her work whelming majority experience. of her junior. More pattern reflective of the dem testimony onstrated was the employ Carter’s from the customers ex- isolation ment, April 1980, of two new white sales beyond opportunity tended to make per- $9,000 personnel at salaries starting al- sonal contact. The same owner who $10,400. Id. at Duncan-Huggins sug legedly instructed that Carter’s desk gested that the higher salaries of white moved, that he admitted directed Carter past experience. mirrored their Id. phones. not answer the at 293. To Carter, however, Id. at 81-85. also had a isolation, justify this additional the owner significant previous experience. amount of indicated answering phones was not Id. at 120-22. Additionally, salary dif within responsibilities, but instead justified ferential could not be on the basis was to responsibility be the of others. Id. inadequate work performance since Dun He explanation offered no of why the re- can-Huggins’ president testified Indeed, so sponsibility was allocated. if complaints had no about Carter’s work. Id. personnel sales in the showroom were al- at 60. lowed to the phone, logic might answer

suggest Carter, who was also hired in disparity compensation This was ag- responsibilities, have some sales also should gravated by Carter’s lower consistently in- expected have been phone. to answer the payments. centive Duncan-Huggins had a

An unique program additional facet of Carter’s in president which the awarded compensation.* treatment was her level payments of employees incentive twice an- In terms salary of both and incentive pay For the nually. periods, same three two ments, compensation consistently employees Carter’s white received total incentive stayed $4,926 at the low end the pay payments $4,200 scale. compared and Appellee’s starting $1,550. 334; salary 22-32, was at Appel- $7500 Carter’s Id. than markedly salary 10; less the of any Appellee’s other lant’s Brief at Brief at 7. Duncan-Huggins Indeed, then-employed worker. Carter once received the same in- Although Carter received two raises total- centive bonus employee as a white who had ling $1500, employee no full-time a employment had left the Company’s substantial- salary (One lower ly response than Carter. white em pay period. earlier ployee, salary starting larger showing whose was of disparate compen- levels of starting salary, sation, than Carter’s received no the Duncan-Huggins stated that dis- during tenure.) raises her At one in point crepancies the employees’ reflected seniori- * attempt employees partici- The dissent’s to minimize the extent that all listed thereon could compensation pate program. the the Employees differential culminates in the in incentive presentation comparative only employed charts. See dis- and Hook Barlow were for a senting opinion, Duncan-Huggins, period employee infra 1242. These at short at and charts, however, they distort the evidence as temporary Sales was hired on a basis. paint only part picture. example, For Transcript at 104. Because a emphasizes salary the dissent that Carter’s employee qualified plan only for incentive was, times, at commensurate with the salaries upon employment, aggregate six month’s of Barlow and Sales. That observation misses Hook, Sales, compensation for and Barlow Because mark. Barlow Sales were qualify have reflected failure to a Carter, and, they junior hired after were her participate pro- program or a failure to in analysis applying suggests the dissent itself period. compari- gram meaningful The attempt justify initial Carter’s lower payments, son of incentive which the dissent lower, salary, thus should have received implicitly comparison aggre- included in its equal salaries. chart, gate compensation should limited Moreover, employees participated “aggregate compensation” pro- those who misleading incorrectly implies gram. chart since it space. parties Tr. at 96. The still not a The

ty assigned and sales Com- was quantity. imposed by about the limitations contemporaneous disagreed announcement pany’s however, nei- size. plan, specified parking the incentive lot’s as determinative of ther nor sales seniority being parking a In addition to denied 108-09; Id. at Plaintiff’s payments. bonus to the key Carter also was denied a space, (also at H introduced Deposition Exhibit was first new showroom. When move Moreover, have seen trial). jury might made, who employees three white same putative inconsistency some between these parking space a received assigned had been alleged to Car- promise factors and Perez’s move, After to the showroom. keys Id. significant payments. ter of incentive entrusted, a white Carter was so before is, sales if the amount of at 161-62. That seniority with less than Carter employee Carter, at gauge, who measuring were the Carter, According key. received a also given limited sales best would have been key. her employee taunted about never opportunities, qualified could Id. at allegation. employee The denied payments. for substantial incentive the lack 218-19. Carter also testified that hardship es- a jury clearly key heard evidence of a created also to' wait out- tablishing unequal early suffered arrived work that Carter with a treatment existence side until white arrived day-to-day her Duncan-Hug- trial fo- from other Testimony key. Testimony Duncan-Huggins. never the subjects: gins suggested to staff staff Carter was cused four access arrive, thus she had no need for meetings; space; to a access first to parking access itself; deroga- a racially key. facility tory anecdote. undisputed evidence also heard derogatory white em- anecdote told although racially

Carter testified about joke meet- presence. were allowed to staff The offensive ployees attend Carter’s white de facto supervisor Al- ings, prohibited. told same presence who later moved desk into the back though participate, her de agree facto appellant Both supervisor appellee Carter testified that room. *6 anecdo- meetings. joke attend that the was told and that the instructed her to not staff Carter, tist, Id. at 163-64. That supervisor apologized. did not chal- when confronted the testimony. The evidence silent as to whether lenge accuracy was episode. was for this Id. reprimanded at Because he did not address narrator 259-79. however, issue, contest, explanation no proffered parties vigorously he employees during prohibiting presence Carter’s attendance. certain allegedly that a joke’s narration. Carter testified fact is that An uncontroverted additional Duncan-Hug- (white) fellow employee were employees Perez two white while Id. at president present. Perez were gins’ continuously given parking spaces, further testified that at 166-68. She Dun- privilege. a When was denied such line, all looked at her and punch they old show- located at its can-Huggins was rebuttal, alleged- In laughed. Carter, who room, scarce. parking was in the she did ly audience testified that space. for a work, asked Perez drove Id. at 75. present. remember if were testimony, Perez, to Carter’s according Perez, was according testimony, to her own building. at new space her a promised testified, Id. at 231. The narrator absent. made such having Id. 158. Perez denied he contradictorily, although somewhat event, when In any Id. promise. a he present, who could not remember was new show- moved Duncan-Huggins Id. Perez absent. did remember that was given were allocated only spaces room at 279. explained Perez white workers. to three scarcity The final element of Carter’s principal based on decision of these the difference between argument When one seniority. space and on however, promised and those actu- apparently job responsibilities left, employees ally assigned. accepted When Carter her intentional discrimination. The dis animus, job, however, criminatory she was some sales promised responsi- can dem Indeed, onstrated either or opportunities through bilities. she had direct indirect such analogous evidence. In an disparate of her treat early employment. months Id. VII, ment case Title Supreme under move, however, at 272. After the her sales lawsuit, Court stated: “As in the plain responsibilities became non-existent. All may prove tiff his case or by direct circum her time was room. spent sample stantial evidence. The trier of fact should contrast, full-time white who evidence, consider all the giving it whatever hired, subsequently were and who thus weight and credence it deserves. dis [T]he junior Carter, greater were given trict court should not have required [the responsibilities explain for sales. To plaintiff] to submit direct evidence of dis difference the promised between and actual criminatory intent.” United Postal States job, the Company suggested that Carter’s Aikens, -- Board Service of Governors v. inability make sales reflected all-con- --, U.S. 103 S.Ct. 1481 n. suming being a responsibilities sample And, (1983). L.Ed.2d 403 in Metrocare v. librarian. Company pointed to the fact Washington Metropolitan Area Transit Au currently white librarian employed thority, (D.C.Cir.1982), at 929 F.2d has responsibil- no sales case, we section 1981 noted “The that: ab ities. observation, The relevance of this sence racist overly statements actions however, minimal may be because the evi- by this quasi-government agency not suf dence clearly does not indicate whether she ficient overturn the also jury.” See Den was promised anything more than library ny v. Hutchinson Sales Corp., 649 F.2d 816 work. (10th Cir.1981). trial, At the end of the the jury returned Contrary precedent, to this the dissent a verdict for $10,- Carter and awarded would seem severely to restrict the use of 000 in compensatory damages. Duncan- circumstantial evidence those section Huggins timely made a judg- motion 1981 cases involve employers. small ment n.o.v. The district denied court minimum, At a the dissent would have us motion and further concluded that defend- hold that discriminatory treatment has no ant’s challenge to certain jury instructions weight as circumstantial dis- was without merit. criminatory logical motivation. This meaning of the dissent’s assertion that the Analysis III. circumstantial evidence introduced in this This case arises under section 1981 case was “not circumstantial evidence of the Civil Act Rights of 1870. That sec motivation, racial an intent ... of *7 provides: tion Implicit to disfavor Carter.” therein All persons jurisdiction within proposition proof of discriminatory United shall right States have the same proof treatment and of discriminatory ani- in every and make Territory State to are completely mus say unrelated. To contracts, sue, enforce parties, give least, dissent, this is a theory. novel The evidence, equal the full bene- not content limiting of use circum- fit of all proceedings laws and for the evidence, stantial apparently have would us security persons of and property as is go require so far as to direct evidence of enjoyed citizens, by white shall be discriminatory animus. that is Clearly, subject to punishment, penal- like pains, underlying thesis the dissent’s statement ties, taxes, licenses, and exactions of ev- that “the shred of ... evidence ery kind, and to no other. suggest could conceivably any racial ani- 42 (1976). interpreted U.S.C. 1981 As § mus” was racially derogatory joke. General Building infra, Association v. Contractors Dissenting opinion, at 1245-1246. Pennsylvania, 3141, 375, S.Ct. illustration, 458 U.S. 102 Racozy also 1246 See id. 73 (1982), prohibits L.Ed.2d 835 (implying section 1981 that circumstantial evidence irrel-

1232 tried, fully a evidence Once the case has been evant). imposition An of direct nation. and, narrowly thus should focus on precedent, the court requirement without stage. would one sophisticated employers party’s performance this time of a ulti- separate stage merges 1981. More- Each into the effectively eviscerate section has over, question plaintiff evidence mate whether requirement a of direct where, of intentional sufficiently in the established a case fly would face of Aikens Court situation, Court discrimination. As the United States analogous Supreme recently Appeals Eleventh Circuit require- found error in the district court’s age stated in an discrimination suit: direct at 1481 ment of evidence. 103 S.Ct. n. 3. their parties developed [W]hen analyze the proof unnecessary full it is produc To the burden of allocate flow according the “ebb and evidence cases, 1981 have bor tion in section courts shifting under proof burdens” rowed the Title VII announced in guidelines McDonnell-Douglas.... point, At that 792, McDonnell-Douglas Green, v. 411 U.S. of fact whether the trier must determine See, 1817, (1973). 93 36 668 S.Ct. L.Ed.2d has met burden of plaintiff the ultimate e.g., Metropolitan Metrocare v. Washington showing intentionally the employer Area Transit F.2d at 925. Authority, 679 against him in violation discriminated standards, Under these has the plaintiff statute]. [the establishing initial burden of a facie prima Co., Paul Life Insurance Krieg v. Revere case. Once this is estab prima facie case 998, (11th Cir.1983) (quoting 718 F.2d 999 lished, rebuttable “presumption Co., 650 Manufacturing v. Farah Smith employer against” discriminated the em (5th Cir.1981)). F.2d 68 ployee arises. of Com Department Texas case, our posture Because of the of this Burdine, munity Affairs v. 450 U.S. only ask straight-forward: task is we need 1089, 1094, 67 L.Ed.2d S.Ct. evidence, most light whether (1981). To rebut the de presumption, this Carter, reasona- is such that a favorable can facie prima fendant either disprove could have that Carter juror ble concluded non legitimate, case or can articulate some a case of racial discrimination. established discriminatory the action. Plain reason for review, we are applying standard then has the to demon opportunity tiff Justice recent com- Rehnquist’s mindful of proffered pre reasons are strate triers of question facing that “the ment textual. United Postal Service States both sensitive in discrimination cases is fact Aikens, Board Governors S.Ct. Postal difficult.” Ser- United States 1482 n. 15. One method for the Aikens, 103 Board of Governors v. S.Ct. vice justifications is to attack defendant’s (1982). at 1482 alleged explanation that the is unwor show J., (Blackmun, credence. at 1483 thy of Id. record, whole and taken as a concurring). Carter, light read in the most favorable discriminatory that a support finding can standards, how McDonnell-Douglas required present. We are motivation rigid, ever, were “never intended to be pre under the to evaluate Rather, [they or ritualistic. mechanized that the resolved all factual sumption to eval sensible, orderly way merely are] *8 More plaintiff. in favor of the disputes expe light the evidence in of common uate over, advantage every give we must question of as it on the critical rience bears these inference to Under possible Carter. Furn (quoting at 1482 discrimination.” Id. standards, with agree we are to compelled Waters, 438 U.S. Corp. co v. Construction court’s that: the district conclusion 2949, 2943, 57 L.Ed.2d 98 S.Ct. cannot the evidence discriminatory say The Court requiring In a case (1978)). lacking plaintiff’s merely support was so animus, three-step procedure verdict as to that the allegations require relevant to adduce evidence one method Questions discrimi- be annuled or set aside. question of intentional the central are often was necessarily differently intent decided on treated because she Carter black. evidence, of circumstantial and basis have been a reasona- possible it would suggests The dissent that because Carter concluded, to have from the person ble unique responsibilities, compari- had some a trial, plaintiff evidence adduced at Duncan-Huggins’ son between treatment she was differently was treated Carter its treatment of other employees and black. completely must be excluded from our anal- matter, initial ysis. As an the dissent’s Ltd., No. 81- Duncan-Huggins, Carter unique posi- assertion that Carter was in a op. (D.D.C. 23, 1981). at 2 We slip Dec. tion hired is an overstatement since she was affirm. therefore Thus, sales a responsibilities. to have some evidence from was introduced Sufficient comparison between Carter’s treatment a jury which the could have inferred dis- the treatment accorded other sales person- criminatory testimony motive. In the con- Moreover, analytical nel is reasonable. anecdote, heard evi- cerning suggested by framework the dissent would The overtly dence of racist statement. immunize, extent, large employ- small defendant admitted was told. joke that the ers from discrimination suits. em- Such Assuming, must, as we jury accept- that the worth ployers, it is too remembering, are accurate, ed Carter’s recollection as Dun- within the small be ambit of Title VII. president can-Huggins’ present during was section And under 1981—if the dissent’s joke narration found the humorous. position adopted employers were could dis- — Moreover, the narrator was nev- apparently set a criminatorily minority sal- employee’s er intro- reprimanded. plaintiff also responsibilities ary job impunity, with significant duced a amount of circumstan- job long assigned so as that was tial which could have bolstered the that were responsibilities slightly even dif- jury’s perception discrimination. assigned ferent than those other employees. singled demonstrated that she was “smoking gun” direct Absent or other unique aspects out for treatment in all animus, evidence of racial a court would be her employment salary, to customer to ever hard-pressed discern discrimination. —from contact, station, participa- to her work Because we believe that section 1981 should tion in staff meetings, fringe benefits shell, be more than a hollow we decline such parking keys. Additionally, accept suggestion. the dissent’s despite job the fact that it of her part was plaintiff’s allegations, To meet Duncan- description, was denied the opportunity challenged Huggins repre- certain factual Yet, to make sales. white dispute sentations made Carter. The seniority assigned less show- parties between the often concerned facts given room and sales From opportunities. that were related closely to the ultimate evidence, the jury could have concluded question example, of discrimination. For Carter, the Company’s black em- disputed the employer allegations consistently ployee, suffered conduct present about the audience for the offen- conditions that were those im- worse than signifi- joke. disagreement sive This her posed upon employees. fellow white presence cant Dun- since the or absence of piece While each of circumstantial evidence president can-Huggins’ directly bears might alone have been an insufficient basis employer’s alleged involvement in the animus, discriminatory from to infer which discrimination. If Perez were present, impact many discrete the cumulative may discriminatory inference of animus and bro- disparate instances treatment Or, to take stronger. example, another led to an promises reasonably may ken question instructed of whether discriminatory Apply- intent. inference sample to sit in room or did so on experience general sense and ing common If import. own volition is factual issue of presented, sample facts a reasonable voluntarily to the hard moved into the *9 juror Company have found that the of that library, could the inference discrimination

1234 denied, lenged by employee), cert. the relocation is might arise from otherwise instances, disputed -- U.S. --, (1983). In some 78 L.Ed.2d 683 weakened. S.Ct. could nonetheless secondary given fact to to these offered weight The of discrim- finding on a impact have had an justifications required thus business arrival The issue over Carter’s ination. And, an credibility. evaluation of witness category this since time at work illustrates is the ex credibility evaluation of witness need for a was tied to her her arrival time Indeed, where jury. function of the clusive arrived later than those key. If in fact she testimo evidence of intent is oral inference of dis- key, with a to discredit always could choose ny, motive is weakened. criminatory explanation. As we stated proffered Washington Metropolitan Metrocare of a Company’s The articulation 679 F.2d at 926-27: facts, however, Authority, Area Transit is different version of was, grant province a court to whose it jury, not a sufficient reason for “The judgment supervisors’ n.o.v. To hold otherwise would the ... testimonial disbelieve require Company’s us to conclude that against acted explanation why they version was more credible than Carter’s ... and thus could find their [employee] Clearly, beyond scope version. this is justifications pretextual.” to be asserted weighing conflicting our The review. strength purported busi Because evidence and the evaluation of witness strength indeed the ness reasons —and credibility exclusively jury’s within the Company’s inextricably case—was thus province. of witness credibil questions interrelated jury. to the ity, go the case had raising In factual disputes, addition reasons Duncan-Huggins offered business conclusion, that this opposite To reach Company for of its actions. The ex- some jury, not to the the dissent go case could was in the plained, example, verdict jury’s that we here review a forgets ac- separate easy room because she needed required we thus are to draw all and that Company now samples. cess to the plaintiff. inferences favorable to mere appears argue articulation requirement reverse this dissent seems to business ra- any putatively legitimate least accordingly draws all inferences court to take the case requires tionale plaintiff. example One favorable reject argument. jury. from the We of our illustrates the dissent’s modification See, Metro- e.g., Washington Metrocare v. empha- of review. The dissent standard 679 F.2d at politan Authority, Area Transit never filed an EEO com- sizes that Carter articulat- (jury employer’s could believe complained super- to her plaint or otherwise overborne). Duncan-Hug- ed to be reasons infra, at 1245. Dissenting opinion, visors. justifications disparate for the gins’ alleged this, seemingly From the dissent infers through the tes- presented treatment were Yet, did not suffer discrimination. offi- timony past employees, or current support in the record to nothing there cers, part, or owners. For the most a far support inference and much to testimony: evidence of intent was oral her deci- explaining inference. different support were without explanations directly, not to Perez Car- complain sion to example, extrinsic evidence. For there was also thought process ter identified indicating that no internal memorandum her decision to could have motivated room was assignment to the back complain to not complaint, file an EEO sample li- access to provide easier supervisor. and sales evidencing seniority brary, or goI Because of Why didn’t [Perez]? payments. incentive basis already displayed. that was the treatment American World Air- v. Pan Contra Coburn harassment —she allowed allowed She Inc., (D.C.Cir.) (employer 711 F.2d ways, laughter with the rac- participated detailed, to determine complex plan had a joke.... was not chal- ist plan fired and such who was *10 later, Tr. ampli- 190-91. And she further Defendant’s work force small is too to fied make statistical the treat- any analysis this rationale. of ment of black and white employees useful I any power didn’t have couldn’t —I to in whether it deciding purposefully discri- someone in I

complain authority. to against plaintiff minated to remain back in the back. I felt and black. and, therefore, was isolated there was I felt nothing go that that I could to Mrs. at 26. Appellant’s Brief of support this instruction, Perez to talk about. Company that argued sample any smallness of the size rendered Tr. 197. It would not have been unreason- proof” inherently “statistical unreliable. jury able for infer that same rejected argument district court this feelings futility of frustration and motivat- not give therefore chose the instruc- ed file Carter’s decision to not an EEO tion. In its Memorandum and deny- Order complaint not complain supervi- or to motions, ing court defendant’s that ex- sors. This inference of frustration rationale, plained its in stating part: have been bolstered the fact that Car- A plaintiff attempting proof disparate of previous ter’s EEO had been un- complaint treatment in small work force is enti- then, Clearly successful. the dissent’s in- tled to offer argument, evidence and be it possible, ference was not the inference not, persuasive involving comparison or was not the certainly inference most of treatment accorded different workers. favorable plaintiff. The “statistical” inferences be drawn This properly jury. case was left are for the trier fact .... The cases If disputes all factual resolved in defendant now has cited in support favor, plaintiff’s introduced suffi- motion, on the unreliability of statistical cient from jury which the could evidence, go points.... have Moreover, deduced discrimination. Ltd., Duncan-Huggins, No. 81- jury have employer’s could found the 546, slip op. agree at 2. We under- purported justifications to be incredulous. lying reasoning, thus conclude that the juror A reasonable thus found district court properly denied the motion. for Carter. Accordingly, we find no error court’s to deny district decision Duncan-Huggins’ The fatal aspect ar- judgment motion for a n.o.v. gument that the court should have limited

the jury’s simple use of statistics is the fact this case not did involve “statistical” Challenges IV. Other proof Although discrimination. she com- challenges also other as- dollar of her pared figures salary, pay rais- pects disposition of the district court’s es, payments and incentive with the dollar this Specifically, Company case. con- salaries, raises, figures employees’ of other tends trial court should have in- payments, Carter did not from abstract (1) structed the no that: statistical figures any prac- these statistical pattern proof of discrimination could drawn tice or subtle calculate but discrimina- from a in difference treatment such a tory impact. simple comparison force; (2) single joke small work employees’ several salaries is not kind race evidence of discrimination. Dun- proof requires of “statistical” can-Huggins argues also the district safeguards mathematical the defend- court have directed a verdict for should impose. ant seeks to between distance remittitur damages nominal or ordered a suit proof” and the “statistical cases $10,000 verdict. We find none of jury’s upon attempts which the defendant to rely to be meritorious. arguments these merely by is revealed what examining those Duncan-Huggins argues cases have identified as proper statistical give example, refusing proof. Califano, district court erred For Davis v. (D.C.Cir.1980), instruction: following 613 F.2d 957 requested *11 jury presented a Title evidence to the had been VII case used statistical demonstrate, narrator acted as de joke’s in too few women that the part, that it was for the upper-level employment positions. supervisor jury were in facto give the evidence noting weight After could be used to to decide what that statistics case, establish a the court ex of the anecdote. prima facie plained proof: the contours of statistical We hold that the district court did proper comparison “The is between the Indeed, instruction. refusing not err in this composition of the relevant work force and attorney con argument, appellant’s at oral qualified the in the relevant la population he admitted that a ceded as much when bor market.” Id. at 963. also Hazel See evidence, be “some taken racial slur States, wood School District v. United 433 contrast, pro In the things.” with other 299, 308, 2736, 2742, U.S. 53 S.Ct. L.Ed.2d posed instruction would have indicated to (1977) be (“proper comparison was slur could not be jury single composition tween the racial of Hazel- Were this conces considered evidence. teaching compo wood’s staff and the racial absent, would uphold sion we nevertheless qualified sition of the public school teacher- the district court’s decision. population market”). in the relevant Un subject An could be Davis, plaintiff like the made no one, many racially derogatory jokes, only or attempt any type general to use societal The law at the some number in between. comparison suggest anyone or to pervasive A relatively extremes is clear. than subject herself was to discrimination. jokes employ of racial of which the pattern appellant’s labelling proof as “sta See, give liability. is aware can rise to er and the inappropriate tistical” therefore is Jones, (8th e.g., Taylor v. 653 F.2d 1193 inapposite. cases cites thus are appellant Cir.1981). end, single At the other isolat Moreover, we find no error in the joke, any racial unattended indicia of by ed trial court’s treatment of this numerical animus, discriminatory may not be suffi type clearly evidence. Evidence of this See, cient in itself to a violation. establish proof relevant discrimination. Jackson, Bundy v. 641 F.2d 934 n. 9 e.g., See, e.g., Minority Employees at v. NASA case, however, (D.C.Cir.1981). The instant (D.C.Cir.1983). Beggs, 723 F.2d 958 at 962 falls somewhere between the two extremes. parties argue The court here allowed the Here, single joke presented racial proper weight given about the to be with numerous other jury together salaries, raises, comparisons of and incen pieces Logic of circumstantial evidence. tive As with circum payments. any other suggests why piece no reason this of evi evidence, jury proper stantial was the singled separate dence should be out for the evidence and to body weigh decide It to evaluate jury treatment. was for whether inferences could be drawn. any weight all the evidence and to decide the Accordingly, we affirm the district court’s properly piece. Simply, allocable to one decision give Duncan-Huggins’ prof to not proposed no exists for support appellant’s fered instruction. limiting joke instruction that could not be evi argues employer’s alleged also that the dis- dence of the discrimina we affirm refusing pro- tory Accordingly, trict court erred in another motivation. deny the district court’s decision to posed instruction that would have stated: instruction. joke by or slur told isolated racial [A]n even if told employee,

another n.o.v., Dun- judgment In its motion for and no matter presence supervisor of a can-Huggins argues jury’s also tasteless, of race or is not evidence how $10,000 speculative that award was so employer. color discrimination it, have district court should overturned di- Ltd., Duncan-Huggins, damages, No. 81- rected a verdict for nominal fact, a remittitur. In the district refusing at 2. In to use this ordered slip op. instruction, court the district reasoned that court had instructed speculative damages. not to be sums awarded ited to necessary compensate at 362. who Appellant, specif- Tr. does not plaintiffs actual harm. instruction, ically challenge this argues (emphasis original). Doe, Id. at 1123 In award must been since speculative this court found error an instruction that offered “no evidence of appellee actual permitted jury to compensate plaintiffs damages.” Brief at Appellant’s for the “intrinsic value” of their constitu- Memorandum, post-verdict district tional rights. Plaintiffs thus could recover *12 disagreed. court Because had damages. actual presented extensive evidence of variations case, present In the the district court levels, compensation in the court concluded clearly specifically instructed the jury the jury’s that award was not so unreason- that it base an award on actual able as to warrant by disturbance the court. injury evidence of further cautioned Ltd., v. Duncan-Huggins, 81- No. speculation against in the calculation of 546, slip op. at We 3-4. affirm. damages. Appellant places on substantial reliance Now, you if find a verdict for the Plain- Carey Piphus, 247, 1042, v. 435 U.S. 98 S.Ct. tiff, will you award her such actual or 55 (1978). L.Ed.2d 252 At Carey issue in compensatory you damages as find from damages awarded to had students who the preponderance of the evidence was suspended

been from school without proce proximately by caused due actions of the process. dural As the district court If for Carey observed, you had Defendant. find record was barren Plaintiff of upon evidence which even a but do not find that specula she suffered any damages tive measurement damages, of could be actual then you may award her 435 based. U.S. at 98 at S.Ct. some sum nominal such one dollar as 251— appeal, Supreme 1045—46. On Court damages. held that in the of any absence such evi proof The burden of is upon Plaintiff dence, actual damages pre could not be to establish all of her damages. elements 247-48, sumed. Id. at 98 S.Ct. at 1044. of your amount verdict must be (D.C. v. Halperin Kissinger, 606 F.2d 1192 based the evidence presented as to her Cir.1979), per aff’d curiam an equally losses. You are award not Court, dismissed, divided part, cert. speculative damages. Plaintiff That is 452 part, (1981), involving 713 a case a U.S. or compensation present for future detri- substantive fourth search amendment although ment possible which remote claim, seizure circuit explained guesswork. or noting reach of Carey. Carey After Transcript Appellee 361-62. introduced prohibited a dam presumption actual salary variations in and incen- ages, this court explained: “To the extent tive payments ranged thousands the plaintiffs here can establish actual dollars, and further proffered evidence though intangible injury, damages would plaintiff harm. Because the intangible be clearly appropriate [Carey even under v.] recompense injuries here received for actual Piphus.” 606 F.2d at 1207 n. Doe 100. In trial, that were demonstrated at this case is Columbia, (D.C. v. District of 697 F.2d 1115 a cry Carey, far from where the court of Cir.1983), separate published at statements appeals presumed compensable inju- involving 701 F.2d case inter alia Doe, ry, or district from where the court eighth substantive amendment cruel it had instructed the could award claim, we re punishment unusual further damages the somewhat nebulous “in- Carey. analysis fined our of a right.” trinsic value constitutional [Carey] equally apparent It Here, plaintiff merely compensated require, just intended to Court actual, injuries. demonstrated be- injury actual plaintiffs demonstrate present- we conclude that Carter secure more than a nominal Because they

fore actual, damage intangible lim- recovery, injury but that awards be ed evidence 1238 Racial, Ethnic, or Resulting from is a al Distress proper whether this decide we need not Discrimination, Abuse, 40 A.L. Religious infliction of emo-

case in which to infer Carey v. (1971), distinguished stated in Doe v. 1290 As we R.3d distress. tional 264 n. 98 S.Ct. 435 U.S. Piphus, District of Columbia: And, cognizable is a humiliation 1052 n. 22. appropriate in an possible, It well section 1981. injury under compensable emotional infliction of case, to infer the Airlines, Trans World See, v. e.g., Williams the circumstances distress from Cir.1981); v. Inc., (8th 1267 Garner 660 F.2d Carey the court in While violation.... Cir.1978); (5th see Giarrusso, F.2d 1330 571 proof a mode of to frown on such seemed Co., 491 F.2d Sky Realty v. also ... Seaton procedural process in the context compensation for Cir.1974) (allowing (7th would be much likely inferences such 1982), cited in under section has been humiliation when the more reliable Columbia, F.2d at District of punish- and unusual Doe v. subjected to “cruel Washington In Metrocare 1124 n. 24. ment.” Authority, 679 Transit Area Metropolitan omitted). (citation at 1124 n. 697 F.2d *13 case, 929, we 927, a section 1981 F.2d be much might the inference Similarly, jury that the comment noted without has been plaintiff when the more reliable suffering, and pain, damages awarded subjected open racial discrimination. fact that Car The mere emotional distress. offered argument that Carter Appellant’s terms “emo specific recite the ter did not damages actual misstates no evidence of while on the “humiliation” tional harm” or cursory even a collapses upon evidence and the evidence of away wash stand does not testimony record. Much examination of the premium a injury. place To intangible dol- specified precise was adduced that these would terms such as conclusionary on compensation differen- lar amounts of central from the away attention distract employment. length tial and the of Carter’s ac established plaintiff of whether question could have figures, jury From these two thorough A re tual, harm. intangible of the award. part calculated a substantial us that Carter record convinces view of the was in the thou- the difference Because jury, such a harm. here established dollars, earnings reduced sands of and common then, experience applied accounted for reasonably could have reasonably injury sense to evaluate the award. overwhelming majority of necessary compen the amount calculated satisfied that the remainder We are v. Williams generally sate Carter. See injuries reasonably reflected of the award 1267, Airlines, Inc., F.2d 660 Trans World actually despite suffered their which Carter award Cir.1981). jury’s (8th 1272 Since trial, Throughout intangibility. properly compensation may for lost evincing the individu jury testimony heard eight thousand high as seven or been as appellee that suf intangible injury alized corresponded which dollars, portion that emo humiliation and other namely, fered — tional harm. Carter as low may have been intangible injury testified that she “felt We can thousand dollars. as two or three out” isolated,” just “mind flew that her com that this is unreasonable not conclude racist “disrespectful” she heard the when have be jury may for what pensation anecdote, was taunted about and that she seventeen months have been lieved to testified further having key. a She harassment, humiliation, and feel incessant an accusation of shocked that she was ings of isolation. atmosphere and that incompetence amount reviewing the actual In statements con These one of harassment. award, limited and our task is jury’s of a a claim for of which the stuff stitute touchstone. is our reluctance to interfere harm is com and emotional humiliation fact reflects the obvious limited role Measure of This Sedgwick, T. See, e.g., 1 posed. jury’s delibera privy to that we are (1920); see also not. 75-81 Damages § amount of the reviewing the tions. Emotion- Annot., Damages for Recovery of award, jury’s we thus need not —and indeed dence of racial motivation for differential second, precise cannot —reconstruct mathemati treatment. And analyzed cal adopted. legal formula that Nor under correct principles need we explore every possible quantitative so deficient utterly message analysis or compute the each which the penny majority’s holding conveys basis of to our and dollar in the award. District that all inquiry Our ends Court is 1981 cases must § once we go are satisfied the award is the jury. within a reasonable range and that the jury here had to establish two did not engage speculation or other im elements order make out violation of proper As activity. we in Taylor stated (1) 1981: she had been § discriminated Washington Co., Terminal 409 F.2d 145 is, against differently treated from —that (D.C.Cir.), denied, cert. 396 U.S. were, others who for the purposes, relevant S.Ct. 24 L.Ed.2d (1969): “Where the situated; similarly (2) the reason

jury finds a particular quantum damages for that discrimination was her race. I and the trial judge refuses to disturb its address each these elements successively findings on the motion for a new trial ... each, below. As to it should be borne in appellate court should be certain indeed mind that the universe of conclusions theo- the award is all contrary to reason retically deducible from the evidence is not before it orders a remittitur or new trial.” merely (a) (differ- the element was present Id., (emphasis at 148 added). The heavy occurred, ential treatment or racial motiva- burden of establishing the award as “con (b) tion existed); and element ab- trary to all reason” firmly rests (no occurred, sent differential treatment *14 party which challenged jury’s the award. no existed); racial motivation but also—and judice, the Duncan-Huggins In case sub has important (c) most to the it’s defendant — failed to meet this burden. that Given the really (b) impossible (c) tell. If either or apply standard of review we must is ex was the reasonable only conclusion that deferential, tremely the fact that the dis here, could have a been reached directed trict court the admonished award verdict or judgment n.o.v. should have been damages only injuries, for actual and that view, granted. my clearly that was the credible evidence existed to establish these case. person No reasonable could have con- injuries, actual we cannot conclude the cluded that either differential treatment or award was we Accordingly, excessive. af established, racial motivation firm. case should therefore have been withdrawn from the jury.

V. Conclusion above, For the we reasons indicated af- Discriminatory I. Treatment firm the district court’s denial of Duncan- of disparate Demonstration treatment is Huggins’ request specified jury instruc- usually a large made in context of busi- tions and judgment its motion for a n.o.v. ness, many perform where individuals es- Affirmed. job. it is sentially easy the same There preliminary make a identification of “simi- SCALIA, Judge, dissenting: Circuit larly employees example, situated” —for When disagreement majority of stenographers signifi- hence to find —and the court ultimately pertains proba- to the cance in salary, promotion the fact that the tive value unique of the evidence perquisite particular treatment of particular case, a lengthy dissent is seldom stenographer has been It “different.” absurd, reading. course, worth I think other- writing would be of extend First, wise approach here for two reasons. entire personnel of the business, evidence majority’s analysis finding significance of the in- even in the volves a of law —that evidence stenographer compen- basic error fact is company president. differential treatment constitutes evi- sated the level of the did); they but that failed to match plaintiff they

But, the fact that except for of the than a the other rather those of all librarian samples here was president, what literally including to and its stenographer, quite company, up is worthy Perez, majori- It deems meaningless. does. majority opinion Suzanne note, “[ajppellee’s em- example, unless small response to this —that ty’s less markedly starting salary of racial discrimi- $7500 convicted ployers can be then-employed other salary any than the with differ- compensating people nation for worker,” at 1229 Maj. op. escape will differently they jobs ent then- fact that the other —despite the 1981, Maj. op. at 1233-1234—is lash of § num- Duncan-Huggins workers employed nothing short of Orwellian. three, was the one of whom precisely bered however, prem- irrational Accepting, per- two and the other company’s president compared with is to be ise that Carter differ- (1) entirely performed sonnel who company, proceed I else in the everyone Carter’s, (2) been with job ent from had the claim bearing upon analyze years for several before company treatment. “different” she received authority arrival, (3) supervisory pre- treated it is that she was What shows herself under- over Carter. The favorably (if not more cisely the same as factors; when of such stood relevance job, the same than) person to hold assigned she was why supposed asked equiva- substantially the same and even said it was job samples librarian she holding different lently junior personnel employ- “new being function of her compared when Carter is jobs. It is ee.” Tr. 124. and the president company with the business, tiny in this reality is that sales supervisory per- experienced two during employ- plaintiff’s which at no time she arrived who were there when sonnel six, force of more than ment had a work appears. That any large discrepancy few if including president, discriminatory treatment not evidence si- self-evidently “similarly employees were it would more than company any this small with refer- replete tuated.” The record is corporation. major in a skills of differing specialized ences to the ut- noted the Salary. already I have to the need for fill- personnel, various *15 any disparate evidence of ter absence of of “slot” when one or ing particular sort fact, by the ma- in the observed treatment 81, id. at departed. E.g., of them another salary was starting that jority, Carter’s 85, evidently was 89-90. Carter above all of other salary less than the “markedly else. From similarly anyone situated to not worker.” then-employed Duncan-Huggins accord- began spent, she work she the time that majority also asserts Id. at 1229. The estimate, “about 90—about ing to her own lower salary had a “no full-time time, per- id. at percent” 100 of is true Id. This statement than Carter.” librarian) that no job (samples forming during which Car- period to the applied as that evi- employee performed incomplete, how- employed. It is ter was skill.1 degree the least of dently required was at ever, it omits the fact that she since in might reasonably significance find One Eileen in 1979 as salary the same level em- the fact that the attributes of Carter’s Carey Barlow, in 1980 as and at the same succes- match those of her ployment did not Sales;2 was however, starting salary $1260 that her (which, samples sor as librarian majority this with the observa- 2. The dismisses that the reason she was 1. Carter made no claim were Barlow and Sales samples tion originally put “[b]ecause was that she to work and, Carter, they junior were her after hired contrary, above black. To the as noted was suggests analysis applying the dissent itself assignment acknowledged attrib- was justify attempt initial lower Carter’s in employee.” being “new Tr. at utable to her lower, salary, have received thus should possibility disparate in The treatment 124. op. What Maj. n.*. equal at 1229 salaries.” job being retained in that will be discussed regard significant with this dissent considers below. salary personnel who is that the initial Carter’s

1241 (20% higher higher) than starting salary majority The particularly *16 gins terminated, has since been one of the rea- supervisors. ter’s Id. at 89-90. assigned being sons tory job that she an did unsatisfac- Gwyn carpet expert 3. was a who had worked cataloging samples. fabric carpet for competing contrast, firms. two Hook had worked for a experience, by showroom. Carter’s company’s 4. The assertion that the to failure Rapids was with Grand Furniture assign Carter sales duties was itself evidence of Store, a furniture store that “sold some car- discrimination will be detail discussed in below. 120, Sears, pets,” Roebuck, Tr. at where she salaries, In the context of this discussion of draperies,” “worked with fabrics and custom however, noting it is worth admit- id., Coverings, Accent Wall where she sold perform required ted she did not well when interiors,” “paints, carpets, anything for id. commission, Sales, Gwyn, work for as were 121, Cogart, Company, at Duff Revere where Hook, e.g., Tr. at and that she declined project Peoples Drug she Stores, for worked on job responsibilities, offer of with sales id. “layouts stores, doing drug for the then, Nothing, can 171. be made of the fact boards,” id., placement illustration Con- higher paid that she not earn the did salaries Merchandise, cept where did “small draft- company’s people. sales boards,” 121-22, ing id. at B and illustration & Furniture, M where she was Office an outside were as any employees have paid of sales the accounted been quantity $1,200 noting employee’s seniority by for and in 1979 and $350 follows: Carter — — criteria were not set forth in the 1980; that these in 1981. Nancy $350 Voorhees— plan of the or in company’s announcement pay- incentive Moreover, one Carter’s policies. Id. company’s written she left the to her after given ments was legal 1229-30,1234. course no is of There 46-48, Tr. even employ, company’s Nor did requirement specification. such pro- though governing policy statement criteria, set so that plan forth other eli- current employees vided that were It recited no implicitly negated. these of dis- scarcely this is gible. All all, but merely criteria at described how crimination adverse Carter. payments funds available for incentive total these computed, would be and stated that by president

would be distributed Perez Compensation. 3. Aggregate In any the advise of the other princi- “with event, figure the crucial purposes [sic] D & H pals equitable in an manner.” comparing compensation Carter’s is neither Deposition (S. Perez) H Plaintiff’s Exhibit salary alone, nor incentive payments trial). (also introduced at Under such a the two. regard, total of as the simply it is not reasonable conclude plan, shows, following table compensa- giving company’s president tion years in both employment her ex- experienced per- two most senior sales ceeded that of all than higher payments sonnel incentive than Car- president except two supervisors, ter was discrimination. that Courtney Hook received more in $200 from Apart payments these indi- picture This is not the employ- of an viduals, payments incentive shown singled ee out for adverse treatment.5 Starting Base Incentive Base Plus Payments Salary Salary

Name_(year) 1979_1980_1981 $14,700 Perez 9,600 Suzanne $ (1977) (president) 13,926 6,240 Lovern

Timothy (1977) $11,800 Augusta 9,600 11,700 Moravec (1979) part-time) (prev: 10,200 8,350 7,500 Geraldine (1979) 8,000 Barlow 8,000 Eileen (1979) 10,400 10,400

J. Hook Courtney (1980) 9,000 9,000 Sales Carey (1980) Virginia 10,000 10,000 Gwyn (1980) $8,350 8,000 Voorhees Nancy (1981) reasons why equal been evidently or even *17 figures re- majority these that The asserts 5. perhaps preferential not what it was treatment misleading compensation are aggregate garding what the forth chart text sets seemed. Hook, because, and Barlow to Sales as showed, majority seeks to and the “may payments any receive incentive to failure speculating upon other evi- by what refute it qualify only for the to a failure reflected have by con- could introduced pro- dence not participate in the program a failure to ceivably Maj. op. established. period.” meaningful gram for plaintiff’s Maybe. it was But n.* employ- an payments are added 6. Incentive treatment —and differential to establish burden received, year rather than salary asserting ee’s by that there is not achieved room, sample sight, view, out of out of Job Responsibilities. 4. As noted earli- as we of mind.” er, job suggest, was and out Id. at samples that librari- this, from the an outset. claimed at trial 336. No reasonable believe She she had accepted employment that on the it was contradicted out of the plain- since being given assurance that she was a sales own mouth. tiff’s Assuming case,7 that been job. to have Q: Did tell anybody you that you might have an for she action breach of go couldn’t to them other employ- [the contract, but it bearing upon has no wheth- ees]? assigning er her to librarian duties consti- A; differential tuted treatment. She acknowl- Did tell me I could not anybody go that edged logical person she was the to them? (the

take on the librarian duties “new em- Q: Yes. arrived, ployee”) the time she and once A: I don’t understand what you are developed she had expertise job an in that trying to ask. was prepared it at a perform mod- estly increasing salary, there is nothing Q: Well, impression I got from whatever remarkable about fact your direct examination that you were (When she remained in it. she left Dunean- sample Now, confined to the room. is Huggins, she job took on another as a full- that really true? librarian; samples time and another full- samples time by librarian was hired Dun- A: I was confined to that sample can-Huggins.) It simply room, no evidence of that is correct.

disparate employee treatment not Q: You were only go allowed to to the transferred from one to an job entirely ladies room? different one. A: I was confined to that area in Work 5. Station. Carter testified that my terms of working. to its company after moved new show- Q: you get up You mean couldn’t room, her work was moved to station walk parts around to other of the show- room, far separate from customers and oth- required room when your you work to do employees.8 er She stated she felt it? “confined” to the and was sample room able it go to leave room. ladies’ required it, A: If the me to work do only black said, her as I attorney argued, go samples or to get As assist “[t]he confined, there was segregated in and clean up But that was samples. payment Perez, earned. Incentive data are hiring, available have. Mrs. who had done the 1980, years job represented record for “pri- testified that was employed, except regard marily work,” librarian with some sales id. at Nancy Voorhees. The record indicates 81. paid Perez Lovem were commissions total- $1,500 $2,300, respectively, ling in 1980. majority, op. Maj. 8. like figures These are omitted from the table be- many plaintiff’s witnesses, of the refers to the their cause the record does not disclose salaries samples library room,” as the “back contribu- year. ting impression to the it was secluded from Although the rest of the business. samples library supported was at the back of the store as Her contention at 7. trial was street, adjacent viewed from deposition it was testimony earlier that she area, reception showroom’s Tr. at help and next hired “to work in the showroom to entrance, to its main customer designers they the store’s when come for assistance. customers entered the showroom helping up wings from the putting I and also would parking building, librarian, lot at the taking samples,” “rear” id. at care Tr. at 187-88; and that she did not discuss at the hiring opportunities time sales would *18 1233. is not Maj. op. showroom. at That to be stationed and not where I was so. into that showroom. outside Q: were things busy, you And if not Even if Carter had meetings: As to staff

could out and chat another em- go excluded, it would only employee been not? ployee, you could treatment, since hardly disparate constitute only employee whose re- she was also the A: I not out and go did chat with any entirely library sponsibilities consisted employees. of the fact, however, nothing there is duties. Q: you you to, But could if wanted show, majority in the to nor does record you could not? assert, employees all or even most here meetings. staff other than Carter attended A: I suppose. participation may far as appears, As compa- president limited to the been Q: personnel senior sales whose you ny tell the two anybody you Did majority talk to con- go job superiority could not out and to other em- Carter ployees tinually in the showroom when were you ignores. sample busy in room? undoubtedly latter is true with re- my knowledge. A: Not to gard to assigned parking spaces, the num-

ber of which was limited in order to reserve space customers. The record shows that Q: tell anyone you you Did could only employees three received them: go to the leave ladies room or on president company and Timothy Lo- work missions? Moravec, vern and Augusta super- A: That where —no was one told me visors. Tr. at 101. that. As for to the showroom: keys easy It is It (cross-examination). Id. at 200-03 to see why counsel for the would true, course, that Carter’s work station (“A seek to play upon this factor. is a key But it is unremark- samples was the room. very insignificant thing, small and it’s able, disparate treat- no evidence one of the things your places boss trust ment, work samples librarian should that a you: is a key ‘Here I building. library. separate Nor that a samples you trust open up and do what right.’ Many should purpose room for that exist. But even those decisions shouldn’t made witnesses, including plaintiff, noted on the basis of race. This one at was.” Tr. “cluttered” showroom samples (summation plaintiff’s counsel).) unattractive, e.g., id. rendered it But it is impossible to understand why 290; evidence indicated uncontroverted majority person believes a reasonable customary that it for business such find substance in it. The record shows sam- separate to have that arrangements ultimately made to returning 275. ples Id. at room. And — issue a key to Carter. Id. at 232-33. Be- only comparison among again once time, fore that employee junior one company truly of this that is one, quite had received and for a Voo- telling replacement, Nancy —Carter’s specific regularly reason —she drove rhees, assigned samples was likewise work with her father and at 7:30. arrived sales responsibili- room not offered and was (Carter, hand, Id. at 218. on the other ty- usually arrived ten or fifteen minutes be- fore the opening time of 9:00. Parking Keys. Id. Meetings, Staff 165.) employee junior That this white that Carter “sin- majority states key who had received “taunted gled unique respect treatment” with out for it, her” meetings, park- Maj. op. to her in staff about is of participation great undoubtedly human interest and ing privileges, and access to keys to *19 no upon jury surely effect the it has ee whose treatment should presumably —but Carter’s.) to the case. to equal describing relevance Lovern was elderly designer’s the customarily preten- re- compensation, job In all these areas — arrival at the in large, tious showroom a station, sponsibilities, meetings, work staff chauffeur-driven limousine. At one or no parking space keys simply and —there points not, the story more as the —and evidence that Carter was treated “differ- majority suggests, line,” as “punch id. ently,” except to the same understandable 1230—he at referred to the chauffeur a that all of degree this enter- or “buck” “black buck.” Accepting prise differently. were treated No reasona- plaintiff’s testimony, Perez, Suzanne ble person could conclude that she sustained president of the company, present was of establishing discriminatory burden laughed at the anecdote. treatment, the first element of a § case. Plaintiff’s counsel made of de- much this much, rogatory language fact, —so II. Motivation Racial point trial judge one cut off further if a of plausible showing Even discrimina- (“That point. examination on the just however, made, tory treatment had been shirt, I bloody don’t want it waved.” get to order would 302.) frequent Tr. at Such reference was still have to introduce some evidence that understandable, however, only not because would enable a person reasonable to con- anticipated upon of its emotional effect clude that the discriminatory basis this jury, but this because was the shred of again, treatment was race. Here it must be evidence, gathered from Carter’s one-and- remembered, burden on plain- was years one-half employment of Duncan- reason, tiff to establish that race was the Huggins, conceivably suggest upon not the defendant to establish that it against racial plainly animus her. It is not; if, was on the of basis the evi- enough support not plaintiff’s to case. introduced, dence person reasonable could It credulity strains to enough regard way, conclude either the defendant was incident as evidence of racial animus entitled to a directed verdict to judgment or against Carter part especially on Lovern’s — n.o.v. Here here even again more —and since admitted that she remained to starkly nothing plain- was —there good enough terms with to Lovern contact tiff’s case. planning him when she visit Los It analyze is much easier to this aspect Angeles, after he left appeal, in the entire trial there city, to work in that id. at 206. But one one fragment attempted proof pass beyond must credulousness to sheer of racial motivation. That consisted of ref- irrationality to deduce from this incident “racially erence what the calls a majority Duncan-Hug- the further conclusion that derogatory gins’ anecdote” or an “offensive with employment regard decisions joke,” Maj. op. at but what Yet would Carter race-related. there was more accurately literally be described as use of a nothing else to support conclu- racially derogatory racially Though offensive sion. was familiar her phrase the course of telling rights laws, anecdote. under antidiscrimination hav- man, The butt of joke was not black ing complaint against filed an EEO a for- 175-76, but a white of Duncan-Huggins employer, customer mer during id. her “put being very wealthy,” who on airs of period employment entire with Duncan- Tr. at 277. joke by Timothy was told Huggins she her feeling never mentioned was, who majority Lovern as the takes the racial president discrimination narrative, pain portion to note in this whom company, beside she worked and Carter’s “de supervisor,” Maj. op. facto at whom she a number of other com- brought n 1230-1231. (For other purposes about plaints working conditions. Nor majority opinion is just he another of her employ- supervi- did she mention it either illogic.

sors; shows, race, is the most demonstrable or, as far as the record “When I saw equivalent saying, herself It is the anyone Except else. for Carter *20 I the first time Racozy strike not suffice the defendant (whose conclusory assertions do reason, he but when case, Anderson, not know the Douglas establish a see v. did I knew it was ten times (9th Cir.1981); v. struck him another 656 F.2d 534 Houser ” Hungarian! The “nu- Sears, Co., (5th he was ... Roebuck & 627 F.2d 759 because evi- Cir.1980)), of circumstantial every questioned pieces witness on the merous other point “many refers to—the majority denied existence of racial bias dence” the Lovern, who treatment including disparate instances of discrete — there, was no includ- longer employed not circumstan- promises” and broken —are Moravec, ing motivation, Carter’s own witness who was tial evidence of racial not there but was longer employed established) no an intent (if they sufficiently joined disaffected that she had against That is not disfavor Carter. (after Carter of both of departure law.

them) going complain in to see Perez to of the defend- majority’s rejection The in- (unsuccessfully) about failure to receive concerning instruction sta- requested ant’s payments centive due. point. to this If tistical evidence is related entirely

I think it obvious that no reason- force consisted of Duncan-Huggins’ work incident of person rely upon employees; able hundred just six but several the racial slur alone to reach the conclusion discriminatory and if showed that treat- allegedly differential was also re- treatment which she received majority ap- ment was race-related. The employ- all the other black only by ceived grudg- parently point concedes ees; infer a it would be reasonable to causal —albeit in ingly, precise parallelism as the lack of discriminatory connection between excerpt suggests: the following showing race. treatment Such evidence of relatively part the extremes is often of the circumstantial law jokes employment clear. A of racial racial motivation in discrimina- pervasive pattern six, employee of employer give of which the is aware can tion cases. But where one treatment, end, liability.... rise to At the other a who has received disfavored black, inference of single joke, happens isolated racial unattended to be no such animus, can be drawn. It any discriminatory may causality reasonably indicia of court not be sufficient in itself to establish a seems to me that the district should given requested violation. have instruction that Defendant’s work force is too small to original). (emphasis 1236 Maj. op. analysis make statistical of the treat- majority principle inapplica- finds this ment of black and white useful ble, however, “[h]ere, single because deciding purposefully whether it discri- joke presented racial to- against plaintiff minated because she was numerous of cir- gether pieces black. cumstantial evidence.” Id. at 1236. it have piece

While each evi- And for the same reason should circumstantial have given dence have an insuffi- the instruction it should dis- might alone been cient from which to infer discrimi- missed the suit. For without such a statis- basis animus, tical inference there was no evidence of natory impact the cumulative disparate Duncan-Huggins’ racial motivation in em- many discrete instances of decisions, promises except plainly treatment and reason- for the ployment broken slur. inadequate have led to an inference of instance of the racial ably may discriminatory intent. assert, majority I as the would do not me, “proof Assum- attribute to of discriminato- original). (emphasis Id. at 1233 discriminatory ing (as argument) by ry proof is essential to the treatment and Maj. op. “discriminatory majority completely intent” the means animus are unrelated.” (emphasis original). con- an intent on the basis of at 1231 To the to discriminate fully acknowledge trary, I the fact of decide “on basis of sheer speculation, discrimination an intent suggests tipped, impossibili- dis- in view of the ultimately But intent may criminate. based ty choosing rationally ‘pos- between mere variety of upon an infinite factors. sibilities,’ by impermissible but understand- case, present example, company sympathy able to such resort factors save may money have decided to like.” Lovelace Sherwin-Williams was the least assertive of the Co., Cir.1982). (4th If F.2d most to take employees, likely and thus the verdict, case did not call for a directed it is picked it. Or Perez her out for imagine any difficult small business hir- *21 was the unfavorable treatment she not, ing minority which in does assertive, most obnoxi- and thus most so, doing commit its economic welfare and words, willing, accept ous. I am good unpredictable specula- name to the discriminatory treatment as circumstantial tions That yet jury. of some unnamed is a animus, but discriminatory evidence of loss, net gain, rather than for the cause of race-related treatment circumstantial ev- equal no employment opportunity less —and By treating idence of racial animus. for important, justice the cause of other, majority one as evidence of the judgment courts. motion for notwith- effectively eliminates second element standing the verdict should have been necessary establish 1981 case. § granted. majority’s fallacy using lies in

word as a synonym “discrimination”

“discrimination on basis of race.” Such

usage may parlance, suffice in common purposes analyzing proof is, 1981 suit it if I

§ be misunder- it,

stood expressing in so too undiscriminat-

ing. assuming Even had established (a

discrimination subject part discussed I NAACP LEGAL DEFENSE & EDUCA- FUND, INC., of this opinion), had further to TIONAL et al. establish that the reason for that discrimi- nation nothing race. She offered DEVINE, Director, Donald J. United to support that point direct evi- —neither States Office of Personnel dence, evidence, nor circumstantial statisti- Management, Appellant. cal or except single racial otherwise — slur. No. 83-1822. ¤ :jc ^ sf: sf: sfc of Appeals, United States Court The majority Supreme takes note of the District of Columbia Circuit. Court’s recent question comment that “the Argued Nov. 1983. facing triers of fact in discrimination cases Decided both sensitive Feb. 1984. and difficult.” United States Postal Service Board of Governors v. As Amended Feb. Aikens, -- U.S. --, 1478, 1482, 103 S.Ct. (1983). L.Ed.2d 403 The reason it is

sensitive is that without careful and consci

entious fact-finding anti-discrimination

laws by, can either be frustrated of, very

converted into evil instruments

they designed are The court’s prevent. development,

decision facilitates the latter juries

permitting to render awards where exists,

no solid evidence them leaving notes two Lovern, Timothy who had been hired two experienced salespeople hired Vir- earlier; years that her replacement as sam- ginia Gwyn Hook, Courtney J. started librarian, ples Nancy Voorhees, started at a higher at salaries than Carter’s. But $1,000 lower salary than Carter been fact with different experi- making, higher than Carter’s $500 ence,3 tasks,4 performing different starting salary despite two intervening salaries, were paid different inflation; years and, of high impor- most except nothing the normal course of com- all, tantly salary that Carter’s differed merce. one significant If were to seek a greater from those of other employees to no salary comparison, Nancy it would be with extent than the other employees’ salaries Voorhees, replacement. Carter’s As noted another, differed from one as the following above, favors, comparison if either break-down indicates: two, Carter. Payments. Incentive 2. The majority

[1981]

[1979]

[1980] Name claims that “disparity asserted com- (Not (Not Perez Suzanne $12,000 record) record) pensation was aggravated by Carter’s con- (Not in lower sistently payments.” Maj. Lovern incentive Timothy 9.000 record) op. alleged disparity This based 1229. Augusta Moravee 9,600 9,600 $ solely upon comparison president with the Carter Geraldine 9.000 of Duncan-Huggins 8.000 and the two senior em- Eileen Barlow ployees who were supervisors. 8,000 Hook J. Courtney majority dismisses the company’s explana- 10,400 tion of what one would consider obvious— Sales Carey 9.000 incentive payments would reflect 8,000 Voorhees Nancy $ representative were had “several company, when arrived designer, Carter sales and commercial years” experience Sales, with the Ceramic Tile “where there were a lot of performing jobs in addition to differ- id., building supplies,” Paints, Winslow Mc- having supervisory ent from Carter’s and au- Reveo, Donald’s, Cooper McLaugh- Equipment, thority Supra, page over her. 1227. Barlow ITG, Corp., company lin Research called was hired about five months after Carter. Tr. Design Friday Group, Valley and Pleasant Me- impossible at 84-85. It is to believe that failure Park, 123, 173-86, morial Inc. Id. Ex- salary preference to accord a for five months’ above, cept as stated relevance seniority constitutes differential treatment. As jobs Duncan-Huggins’ specific these busi- Sales, she was hired about fourteen months they all, according ness was that ter, to Car- job, after came Carter —but did design,” “in connection with the field of not, experience very with business Dun- except job McDonald’s, for the id. at 186. can-Huggins in, engaged since she had Between 1971 when she came to working been as an assistant to an interior Duncan-Huggins, work for had had designer company’s who was one of the cus- employers. employment twelve different tomers, replace id. at 90. She hired accepted Duncan-Hug- leaving which she after Moravee, Augusta who had been one of Car-