Cobbins v. Tennessee Dept. of Transp., No. 07-6491 (6th Cir. Apr. 3, 2009); Miller v. City of Canton, Ohio, No. 08-3163 (6th Cir. Apr. 3, 2009)
The Sixth Circuit, in two unpublished decisions, sends cases back to the district court for trial. In the former case, it reverses a defense verdict where the district court excluded a Title VII plaintiff's strongest evidence on ultimately indefensible hearsay and relevancy grounds. In the latter, the panel remands a First Amendment/§ 1981/Ohio state law retaliation case, where the employer did "not dispute that it suspended [plaintiff] because of his speech" but said the "reason for the suspension was [his] failure to follow protocol rather than the content of the speech."
Cobbins v. Tennessee Dept. of Transp., No. 07-6491 (6th Cir. Apr. 3, 2009): The employee (African-American) was passed over for a promotion. At trial, the employee attempted to introduce evidence that the successful white applicant lied about his educational attainment on his application. Although the defendant did not dispute the authenticity of the document, it objected to its admissibility on hearsay grounds, which was granted.
The Sixth Circuit holds that the ruling was in error. The panel notes that the obvious solution eluded all of the parties below:
"We first question whether this document constitutes hearsay at all - that is, was it introduced to prove the truth of the matter asserted about the discriminatory intent of the State in not promoting plaintiff? Although plaintiff did not make this argument at trial or on appeal, the allegedly false application does not seem to go to the alleged discriminatory intent by either [the supervisor] Yocum or the State. Plaintiff may have been merely trying to point out a mistake in the records the State decisionmaker used to make the promotion decision and possibly allude to the bad character of Staggs in filing a false application. As this argument was not addressed by the parties, it is difficult for us to make the call here except to note that the document may not even be hearsay."
The panel goes on to hold, nevertheless, that the document could be admitted even for hearsay purposes under FRE802(8) (public records) or FRE802(6) (business records). "The district court erred in refusing to allow plaintiff to introduce into the record the employment application of a coworker. The document, if hearsay at all, falls within the exception for business records and possibly public records as well. Moreover, the authentication of the document through the parties' stipulation minimizes any question about the trustworthiness of the document and obviates the need to introduce the record through someone who had actual knowledge of its content, such as Staggs himself, or through a custodian of records for the State."
The panel also faults the district court for excluding all evidence of a prior lawsuit between the plaintiff and the agency, ultimately dismissed for want of prosecution. Because the lawsuit was not decided on the merits, the panel holds that it was error for the court to hold that the prior judgment collaterally estopped the employee from presenting evidence from the first proceeding in support of the second case.
Miller v. City of Canton, Ohio, No. 08-3163 (6th Cir. Apr. 3, 2009): Two officers sued over allegations of racially-discriminatory discipline and retaliation -- the employees appeared jointly in a press release lambasting the city police department for civil rights violations. Although the plaintiffs failed to first file their Title VII claims in a charge with the EEOC, leading to their eventual dismissal (upheld on appeal), the panel finds that the officers could still proceed on non-Title VII grounds: § 1983/First Amendment retaliation, § 1981 and Ohio state law.
Under the First Amendment and the Pickering balancing test, the panel finds that the contents of the press release were of public interest, and that the plaintiffs were not speaking as part of their job duties (Garcetti v. Ceballos, 547 U.S. 410, 424 (2006)). Moreover, the city flunked its burden to advance a rationale for disciplining the employees consistent with a necessity to keep order. "The City has not put any evidence in the record to support its claim that the press release caused disruption in the workplace. Rather, the City points to an internal report, prepared by Hunt, concluding that the press release was calculated to cause disruption. Summary judgment is improper, however, where the government's interest rests on merely potential harm."
In sum:
"Weighing all the evidence, the City's interest in maintaining loyalty within the police force did not outweigh Miller's interest in exposing racial discrimination by the City. The City has cited no evidence that the press release actually disrupted its effectiveness or otherwise impaired working relationships, nor of any other interest that would justify restricting Miller's speech. Accordingly, Miller's speech was protected by the First Amendment."
Finally, summary judgment was inappropriate where the reason given for the discipline is closely related to the lawful purpose of speaking out on a matter of public interest. "Here, the City does not contest that it took disciplinary action against Miller because of the press release, although it maintains that the contents were not protected. A reasonable jury could find that the City suspended Miller because of the exercise of his civil rights. Therefore, Miller has made out a prima facie case of retaliation under § 1983."
The panel likewise reversed summary judgment on a retaliation theory under § 1981 and Ohio state law for one plaintiff. "The City does not dispute that it suspended Miller because of his speech. The City argues, however, that the reason for the suspension was Miller's failure to follow protocol rather than the content of the speech. Miller has shown enough facts such that a reasonable jury could reject the City's explanation as pretextual and find that the contents of his speech-his complaints of racial discrimination-motivated the suspension."