In racial employment discrimination action, evidence of workplace discrimination and retaliation against other employees (“me too” evidence) was inadmissible to show routine practice under FRE 406 as it was based on only four instances involving different circumstances; however, the discrimination evidence was admissible on other grounds, in Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008) (No. 06-14440)
FRE 406 provides evidence of the habit or of the routine practice of an organization “is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.” Establishing habit evidence often turns on the uniformity of response and the number of instances, along with other relevant factors. One Eleventh Circuit case considered the application of this rule in the context of workplace discrimination.
In the case, defendant Bagby Elevator Co. hired plaintiff Goldsmith, a black man, to work as an elevator fabricator. Ultimately, the plaintiff filed an employment discrimination action based on a racially hostile work environment with the Equal Employment Opportunity Commission. He was fired after he refused to sign a “Dispute Resolution Agreement” that agreed to arbitrate all “past, present, and future” claims against the defendant and requiring him to drop his EEOC complaint. The matter proceeded to trial in federal court. Over defense objection, the trial court admitted the plaintiff’s evidence of defendant’s discrimination and retaliation against other black workers as evidence of habit under FRE 406. The jury returned a verdict for the plaintiff. On appeal, the defendant challenged the admission of the evidence of race discrimination and retaliation involving the co-workers.
Not Habit Evidence
The Eleventh Circuit held that the discrimination evidence involving the co-workers was inadmissible as habit evidence under FRE 406. In particular, the four instances were insufficient to support the inference that the defendant “systematically terminated any black employee who complained about discrimination.” Goldsmith, 513 F.3d at 1285. Moreover, each employment decision was distinct, including (1) the fact that “each black employee was terminated in response to a different reason”; (2) five different supervisors were involved; and (3) each termination decision “varied in the amount of time that passed between the employee’s initial complaint and the employee’s termination.” Goldsmith, 513 F.3d at 1286. As the circuit explained:
First, Goldsmith offered evidence of only four responses of Bagby Elevator to complaints of racial discrimination. Four examples are not numerous enough to support an inference that Bagby Elevator systematically terminated any black employee who complained about discrimination. Id. Second, each black employee was terminated in response to a different situation. Three of the four employees — Goldsmith, Peoples, and Jemison— filed charges of discrimination with the EEOC, but Thomas did not. Peoples did not complain about racial slurs like the other three black employees; Peoples instead complained about a demotion and asserted that she was subjected to different rules by Bagby Elevator management. Third, at least five different supervisors — Steber, Farley, Braswell, Hunter Bagby, and Bowden — were involved in the termination decisions, and only Steber participated in each decision. Fourth, each termination decision varied in the amount of time that passed between the employee’s initial complaint and his termination. In sum, the “me too” evidence was marked by a variety of responses to different situations involving only four black employees.
Goldsmith, 513 F.3d at 1285-86.
Alternative Basis: Other Act Evidence
Even though the evidence was admitted by the trial court for the “wrong reason,” as the circuit noted, it was still admissible as other act evidence under FRE 404(b) to show the defendant employer’s “the intent of Bagby Elevator to discriminate and retaliate.” Goldsmith, 513 F.3d at 1286 (citing Powers v. United States, 996 F.2d 1121, 1123-24 (11th Cir. 1993) (“We may affirm the district court’s judgment on any ground that appears in the record, whether or not that ground was relied upon or even considered by the court below.”)). Because two of the four co-workers were discriminated against by the same intermediate supervisor as the plaintiff, their experiences were probative of the supervisor’s intent to discriminate. In addition, all four employees confronted the main supervisor.
Alternative Basis: Relevant To Show Hostile Work Environment
Alternatively, the challenged evidence was also admissible under FRE 402 because it was relevant to the plaintiff’s hostile work environment claims. The circuit noted that testimony of three of the four co-workers “established the recurrent use of racial slurs by employees … and proved that any black employee who complained about racial discrimination was treated differently … and ultimately terminated.” This was the essence of promoting “a severe and pervasive atmosphere of racial discrimination.” Goldsmith, 513 F.3d at 1286 (citing Busby v. City of Orlando, 931 F.2d 764, 785 (11th Cir. 1991) (noting “me too” evidence may go “directly to the issue of racial harassment on the job”)). The evidence was therefore probative of the claim that the defendant “permitted a severe and pervasive atmosphere of racial discrimination on its premises.” Goldsmith, 513 F.3d at 1286.
The evidence was also relevant to respond to other issues raised by the defendant employer. For example, during cross-examination, defense counsel asked “about any and all racist comments about which he knew, not just what he had heard.” The evidence was therefore helpful on the defendant’s claim that no one other than the plaintiff had complained about a hostile work atmosphere, or was terminated because of the policy.
There are not many cases involving habit evidence. The Goldsmith case highlights the type of analysis that will be applied to assess whether the proffered evidence meets the requirements of FRE 406. In Goldsmith, the challenged evidence was admissible on alternative grounds.