Mаrian ANDERSON, Plaintiff-Appellant, v. WBMG-42, Parker Communications, Inc., et al., Defendants-Appellees.
No. 99-12796.
United States Court of Appeals, Eleventh Circuit.
June 5, 2001.
253 F.3d 561
IV
The judgment of the district court is AFFIRMED.
Barry V. Frederick, M. Jefferson Starling, III, Johnston, Barton, Proctor & Powell, LLP, Birmingham, AL, for Defendants-Appellees.
Before BARKETT, HILL and KRAVITCH, Circuit Judges.
BARKETT, Circuit Judge:
Marian Anderson, an African-American female, appeals from a final judgment following a jury verdict in favor of her former employers, WBMG-Channel 42, Parker Communications, Inc., and Media General, Inc. (collectively “WBMG“), on her claims of employment discrimination and retaliatory disсharge on the basis of race. See
BACKGROUND
Anderson was hired as a news producer on June 24, 1996, by Wilhemina Walker, the news director at WBMG, a local affiliate of CBS in Birmingham, Alabama. At that time, Walker was the only African-American manager at the station. At trial, Walker testified that Broome instructed her to terminate Anderson on September 12, 1996, less than three months after Anderson was hired. According to Broome, Anderson was terminated due to her “unprofessional behavior,” specifically, her insubordinate actions in opposition to
Anderson sought to present evidence at trial of WBMG‘s racial discrimination through testimony that while she was terminated for “unprofessional behavior,” similarly situated white employees, Evan Lockridge and Tom Allen, likewise guilty of “unprofessional behavior,” were not terminated. The proffered testimony pertaining to Evan Lockridge, a newsroom photographer, established that on one occasion Lockridge lost his temper, used profanity, threw a tape and a box, and kicked a trash can in the newsroom. After the incident, Walker verbally reprimanded Lockridge, suspending him for the remainder of the day. Walker informed Broome that Lockridge had “exploded” in the newsroom, and provided a written report of the incident and his suspension. Lockridge thereafter apologized, offered to resign, and did resign several weeks following the incident.
The evidence relevant to Tom Allen, an executive producer, consisted of Walker‘s testimony of his insubordination. Walker testified that Allen failed to follow her instructions on several occasions and showed reluctance complying with the “direction [she] wanted the product to go in.” Rather, Allen did what Walker‘s predecessor, who was still employed at the station, directed him to do. Moreover, notwithstanding Walker‘s instructions to Allen to leave work at 6:30 p.m. or 7:00 p.m., because his presence interfered with preparations for the ten o‘clock news program, he continued to remain at the station. Walker testified that he would “cause some problems ... by being there,” in order to “manag[e] his wife,” аn anchor on the ten o‘clock news program. Walker claimed that she reprimanded Allen on several occasions by talking to him about her “difficulty with him doing the things in the newsroom that [she] wanted done.” Broome testified that he was unaware of Allen‘s misconduct in the newsroom, although Allen did complain to Broome that Walker would not allow him to perform the responsibilities of his position without interference and offered to resign. Instead, Broome transferred Allen to the production department.
We review the evidentiary rulings by the district court for an abuse of discretion. See Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272, 1305-06 (11th Cir. 1999). We reverse only if the complaining party establishes that the evidentiary ruling resulted in a “substantial prejudicial effect,” thus warrаnting reversal of the jury‘s verdict. See id.; see also
The district court excluded the proffered evidence pertaining to Lоckridge and Allen under Rule 403. See
DISCUSSION
Evidence that similarly situated employees are disciplined more leniently is admissible to support a disparate treatment claim when the plaintiff has established that the co-employees are in fact similarly situated. See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1186 (11th Cir. 1984). Thus, the plaintiff must show that the comparator employees are “involved in or accused of the same or similar conduct” yet are disciplined in a different, more favorable manner. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
In some cases, the determination of whether comparators are similar will be an easier task than in others, for example, when two employees have violated the identical rule or expressed work policy. That is not the case here. In this case, Anderson was fired for “unprofessional behavior.” Both parties agree Anderson was not terminated for the violation of any work rules or specific policy, written or otherwise understood. There is nothing in the record indicating that the term “unprofessional behavior” was defined at the time of Anderson‘s discharge, and it appears a general definition of “unprofessional behavior” was unavailable because WBMG admits no rules of conduct or employee manuals were available throughout the duration of Anderson‘s emрloyment. Likewise, no disciplinary procedures were available due to a lack of published employee policies. When the record establishes that no objective criteria was applied in an employer‘s decisionmaking process, such as the case here, similarly situated evidence is particularly relevant beсause inferences of discriminatory motive depend upon the application of subjective criteria.1
Defendants claim that the term “similarly situated” is ambiguоus, and that this [jury] charge miscasts the governing law of this circuit, which they claim requires the “same or nearly identical conduct.” Again, we disagree. Although susceptible to manipulation, the phrase “similarly situated” is the correct term of art in employment discrimination law. Moreover, the law does not require that a “similarly situated” individual be one who has “engaged in the same or nearly identical conduct” as the disciplined plaintiff. Instead, the law only requires “similar” misconduct from the similarly situated comparator. Olmstead v. L.C. by Zimring, 527 U.S. 581, 599 (1999) (Kennedy, J., concurring in the judgment) (characterizing the “normal definition of discrimination” as “differential treatment of similarly situated groups” (emphasis added)); Texas Dep‘t of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981) (“McDonnell Douglas teaches that it is the plaintiff‘s task to demonstrate that similarly situated employees were not treated equally.” (emphasis added)); Osram Sylvania, Inc. v. Teamsters Local Union 528, 87 F.3d 1261, 1265 (11th Cir. 1996) (“Disparate treatment exists when similarly situated workers are treated differently even though they have committed similar acts.” (emphasis added)); Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989) (holding that in order to show discriminatory discipline, plaintiff must show either that he did not violate the work rule or “that he engаged in misconduct similar to that of a person outside the protected class, and that the disciplinary measures enforced against him were more severe than those enforced against other persons who engaged in similar misconduct” (emphasis added)).
Alexander, 207 F.3d at 1334-35. To the extent that “unprofessional behavior” can be understood by the ordinary use of that term, we reject WBMG‘s position that the proferred evidence in this case was not relevant as comparator evidence because the conduct of Lockridge and Allen was not identical. See id.
We also reject WBMG‘s position that Jones v. Gerwens, 874 F.2d 1534, 1541
See Cooper v. City of North Olmsted, 795 F.2d 1265, 1271 (6th Cir. 1986) (“Although a change in managers is not a defense to claims of race оr sex discrimination, it can suggest a basis other than race or sex for the difference in treatment received by two employees“); Tate v. Weyerhaeuser, 723 F.2d 598, 605-06 (8th Cir. 1983) (“Although a change in managers is not a defense to claims of racial discrimination,” evidence that one manager is more lenient than another may explain differential application of sanctions tо whites under one manager and blacks under another); Lynch v. Dean, 39 FEP Cases 338, 345 (M.D.Tenn. 1985), rev‘d on other grounds, 817 F.2d 380 (6th Cir. 1987) (“Proof that workers under [one foreman‘s] supervision were disciplined more severely than workers under the supervision of other foremen does not aid plaintiff in insisting that she was the victim of selective enforcement of the rules“).
In this case there was no change in managers. Unlike the plaintiff and proffered comparators in both Gerwens and Bessemer, the supervision of Lockridge, Allen, and Anderson—all of the employees in question—fell within the primary responsibility of one middle manager and the same supervisory chain of command. Anderson has shown that at the time of the alleged misconduct, the comparator employees were stationed in the newsrоom and under the immediate supervision of Walker, as news director, and under the general supervision of Broome, as general manager. Disparate treatment analysis “requires that none of the participants in the decision making process be influenced by racial bias.” Gerwens, 874 F.2d at 1542 n. 13. “Thus the motivations of both the [upper management] and of [middle management] are pertinent.” Id.
Although relevant, Rule 403 nonetheless permits exclusion when the probative value of the evidence is outweighed by considerations of time. See
There is no abuse of discretion where a trial court prevents counsel from embarking on a lengthy examination of matters which have not been developed during discovery. To have permitted a lengthy examination and perhaps lengthier rebuttal encompassing the efficacy of WBMG‘s management, or Walker‘s role or ability as a supervisor, would have in effect generated a mini-trial on collateral issues which would not relate to the racial discrimination alleged in Anderson‘s claim. For example, among other things, the disciplining and firing authority of Walker and Broome had not been made clear, and their respective roles in Anderson‘s termination had not been fully developed during disсovery. Whether Walker, against whom Anderson makes no claim of discriminatory motive, recommended Anderson‘s termination as WBMG contends, or failed to recommend the termination of the comparator employees, is unclear from the record. Likewise, it is also unclear whether Walker brought the specifics of Allen‘s conduct to the attеntion of Broome, and should have recommended termination pursuant to her role as his immediate manager or as a matter of established supervisory practice at WBMG.3 Consequently, Broome‘s knowledge of Allen‘s alleged unprofessionalism was not established directly and there is no evidence from which it can be inferred. Under all the circumstаnces presented here, we find no abuse of discretion in the district court‘s ruling under Rule 403.
AFFIRMED.
HILL, Circuit Judge, concurring:
I concur, with this remark.
The exclusion of the proffered evidence did not, as the opinion makes clear, result in “manifest injustice,” or “substantial prejudicial effect,” and was not an abuse of discretion. This affirmance is proper.
I doubt that we are required, therefore, to decide whether or not the tendered evidence was comparator evidence. What I view as dicta in our opinion, however, strengthens our holding inasmuch as affirming is ordered assuming the best view of the tendered evidence for the appellant.