One panel in the Sixth Circuit (Judges Boggs, Moore and Sutton) today affirms judgments and monetary awards for plaintiffs in two separate employment-discrimination cases -- including one that was tried pro se -- resulting in signed but (regrettably) non-precedential opinions.
Hendricks v. Office of the Clermont County Sheriff, No. 06-4431 (6th Cir. Apr. 28, 2009): Here, the plaintiff won a jury trial on a claim of retaliatory discharge. "The relevant facts are these: Willis called Hendricks to the Sherriff's Office for questioning. Before he or any other officer attempted to question her, Willis showed her a letter recommending that she be discharged and outlining several reasons why. A different officer read Hendricks her Miranda rights, after which she declined to answer any questions without an attorney present. Later that day, a new letter from Willis arrived at Hendricks' home, which included an additional complaint-her 'failure to cooperate with a criminal investigation.'"
The employer, post-trial, argued that the plaintiff sued the wrong entity and failed to join the right one (the Office of the Clermont County Sheriff), but the panel holds that the argument comes too late: after the jury reached its verdict (Fed. R. Civ. P. 61). The defendant also argued that the entity named as the employer does not have the legal capacity to be sued, but the panel holds that defendant was obliged to raise this by way of its answer:
"Rule 9(a) of the Federal Rules of Civil Procedure says that a party must raise an opponent's 'capacity to sue or be sued . . . by a specific denial, which must state any supporting facts that are peculiarly within the party's knowledge' (emphasis added). The featured phrase by itself suggests that a party must raise lack of capacity in the answer or at least before trial. Common sense points in the same direction: Only a set of civil rules designed to lay traps for the wary and unwary alike would allow a defendant to save outcome-dispositive defenses until it has been given a trial run of its other defenses to the claims during the case in chief."
The panel also holds that the employer waived a challenge to allegedly inconsistent jury verdicts: "Having said nothing about the oddity of permitting a governmental entity (the Office) to be found liable for acts that only could have been committed by individuals (Willis or Rodenberg) at the time the parties approved the jury interrogatories, the Office is in no position to blame the district court for giving the jury this option." Finally getting to the merits, the panel affirms denial of judgment as a matter of law: "A jury could fairly find that the Willis recommendation, even if Willis would have made it without regard to Hendricks' invocation of her Miranda rights, became more forceful when Willis added a new justification-that Hendricks refused to cooperate with the investigation. Difficult causation questions like this one are eminently appropriate for finders of fact to resolve, and the district court did not err in permitting the jury to decide this one."
Hollimon v. Shelby County, No. 08-6035 (6th Cir. Apr. 28, 2009): This case was tried pro se to the bench, resulting in a $35,000 judgment for race discrimination and retaliation. On appeal, the panel rejects a limitations defense, finding that each of the claims (suspension and discharge) involved discrete events that were separately and timely the subject of EEOC charges. The employer secondarily argued that the employee failed to state these claims in a charge clearly enough to exhaust them, but the panel holds notwithstanding some unclarity in the charges that "the terms of the charge would prompt the agency to explore the circumstances surrounding Hollimon's June 28, 2002 discharge, and that suffices to satisfy the exhaustion requirement."
The panel also holds that the case was not barred by a prior state-law civil service hearing that found "just cause" for the termination: "The state courts did not 'litigate and decide' the race or retaliation issues because neither claim was in front of the state courts. In challenging the decision of the merit review board that there was good cause for her discharge, Hollimon did not file a claim-under state or federal law-that the county discriminated against her based on race or in retaliation for engaging in constitutionally protected conduct. She simply argued that the county did not have good cause for firing her. No doubt, in resolving that issue, the state courts concluded that Hollimon 'violate[d] the policies and procedures of the Shelby County Government and the Shelby County Policy Department,' and concluded that these violations provided just cause for her discharge."
The panel also affirms the finding of disparate treatment: "Hollimon presented evidence that non-minority officers were not disciplined for violating the following department policies: (1) leaving their patrol cars during lunch; (2) eating lunch outside of a five-building area; (3) parking their personal vehicles in unapproved locations; and (4) talking on personal cell phones while operating county vehicles. While Hollimon did not find an employee who violated each of the policies she (allegedly) did, she put in sufficient evidence showing that, when other similarly situated employees violated many of the same policies, the county either looked the other way or did not bother to enforce the policy."
Finally, and most pecularly, the employer argues that the district court clearly erred by making findings without actually hearing the pro se plaintiff from the stand. The panel holds that the judge could rely on the employee's sworn testimony from the earlier civil service hearing in place of live testimony, in combination with other evidence, to support its ultimate liability findings.