Anderson v. MG Broadcasting Brief by Appellant Marian Anderson

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

NO. 99-12796-E

MARIAN ANDERSON, 

Plaintiff-Appellant

MG Broadcasting, Inc., 

Defendant-Appellee

A DIRECT APPEAL OF A CIVIL CASE FROM THE UNITED STATES 
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA,

SOUTHERN DIVISION

BRIEF BY APPELLANT MARIAN ANDERSON

ELAINE R. JONES 
Director-Counsel

LESLIE M. PROLL 
NAACP Legal Defense & 

Educational Fund, Inc.
1444 Eye Street, N.W., 10th Floor 
Washington, D.C. 20005 
(202) 682-1300

COUNSEL FOR APPELLANT ANDERSON



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

NO. 99-12796-E

MARIAN ANDERSON, 

Plaintiff-Appellant

v.

MG Broadcasting, Inc., 

Defendant-Appellee

A DIRECT APPEAL OF A CIVIL CASE FROM TFIE UNITED STATES 
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA,

SOUTHERN DIVISION

BRIEF BY APPELLANT MARIAN ANDERSON

ELAINE R. JONES 
Director-Counsel

LESLIE M. PROLL 
NAACP Legal Defense & 

Educational Fund, Inc.
1444 Eye Street, N.W., 10th Floor 
Washington, D.C. 20005 
(202)682-1300

COUNSEL FOR APPELLANT ANDERSON



No. 99-12796-E Anderson v. MG Broadcasting, Inc.

CERTIFICATE OF INTERESTED PERSONS 
AND CORPORATE DISCLOSURE STATEMENT

The undersigned counsel hereby certifies that the following persons and entities 

have an interest in the outcome of this case:

1. Marian Anderson (Plaintiff-Appellant)

2. Barry V. Frederick (Counsel for Defendant-Appellee)

3. Johnston, Barton, Proctor & Powell (Counsel for Defendant-Appellee)

4. Elaine R. Jones (Counsel for Plaintiff-Appellant)

5. MG Broadcasting, Inc. (Defendant-Appellee)

6. Media General, Inc. (Defendant)

7. NAACP Legal Defense & Educational Fund, Inc. (Counsel for Plaintiff- 

Appellant)

8. Park Communications (Defendant)

9. Judge Sam C. Pointer, Jr. (Trial Judge)

10. Leslie M. Proll (Counsel for Plaintiff-Appellant)

11. M. Jefferson Starling, III (Counsel for Defendant-Appellee)

12. Yvonne M. Williams (Counsel for Plaintiff-1

Counsel for Appellant



STATEMENT REGARDING ORAL ARGUMENT

Appellant Marian Anderson requests oral argument in this matter.

This appeal raises an important legal issue regarding the admissibility of 

circumstantial evidence that is highly probative of racially discriminatory discharge 

from employment — evidence that an employer treated white employees whose conduct 

was similar to the plaintiffs more favorably by not discharging them.

Appellant believes that the Court’s understanding of how that legal issue arises 

in the context of the facts proved or proffered below would be greatly assisted by oral 

argument.



TABLE OF CONTENTS

Page

CERTIFICATE OF INTERESTED PERSONS...................................................... C-l

STATEMENT REGARDING ORAL ARGUMENT................................................... i

TABLE OF CONTENTS ...................     11

TABLE OF AUTHORITIES.........................................    iv

STATEMENT OF JURISDICTION..........................................................................vii

STATEMENT OF ISS U E ..............................................................................................1

STATEMENT OF THE CASE ......................................................................................1

I. Proceedings Below ......................................................   1

II. Statement of Facts ......................................................................................1

III. Standard of Review .................................................................................. 9

SUMMARY OF ARGUMENT...................................................................................10

ARGUMENT ...............................................................................................................11

I. The District Court Committed an Abuse of Discretion by Excluding
Plaintiffs Evidence of Defendant’s More Favorable Treatment of 
Similarly Situated White Employees .................................................... 11

A. Plaintiffs Proffer Contained Evidence That is Highly Probative 
of Defendant’s Racial Motivation in Discharging Plaintiff . . . 11

ii



Table of Contents (Continued)

B. Plaintiffs Proffer Sufficiently Demonstrated That Similarly
Situated Employees Were Treated More Favorably Than
Plaintiff  .........................................................14

1. Plaintiffs Position Was Sufficiently Similar to the
Positions of the White Comparators Such That Plaintiff 
and the Comparators Were Subject to the Same 
Workplace R ules............................................................. 14

2. Plaintiffs Alleged Misconduct Was Sufficiently Similar 
to the Misconduct of the Comparator Employees to 
Warrant Admissibility of the Comparison at Trial . . . .  18

3. The Differences in Disciplinary Action Taken Against
Plaintiff and the Comparators for Similar Misconduct 
Were Sufficient to Support Admissibility of the 
Evidence ......................................................................... 25

4. The Same Decision-Makers Were Involved in the
Disciplinary Action Taken Against Plaintiff and the 
White Comparators.......................................................... 26

C. The Probative Nature of the Comparison Evidence Was Not
Substantially Outweighed by Any Consideration of
Judicial Economy......................................................................... 29

II. The District Court’s Evidentiary Error Caused Substantial Prejudice
to Plaintiffs Rights and Thereby Warrants Reversal ..........   32

CONCLUSION............................................................................................................ 38

CERTIFICATE OF COMPLIANCE......................................................................... 40

CERTIFICATE OF SERVICE 41



TABLE OF AUTHORITIES

FEDERAL CASES

Allen v. County o f Montgomery, Ala.,
788 F.2d 1485 (11th Cir. 1986) .......................................................... 33,34

Barfield v. Orange County, 911 F.2d 644 (11th Cir. 1990),
cert, denied, 500 U.S. 954 (1991) ............................................................  32

Dartmouth Review v. Dartmouth College, 889 F.2d 13 (1st Cir. 1989) ....  21

Early v. Morris Newspaper Corp.,
54 F. Supp. 2d 1261 (M.D.Ala. 1999) ...............................................  20, 21

Farnor v. H.J. Russell & Co., 45 F. Supp. 2d 1358 (N.D. Ga. 1999) .......  13

Fumco Construction Corp. v. Waters, 438 U.S. 567 (1978) ..... ................  13

*Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997) ............................. passim

Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408 (11th Cir. 1986),
cert, denied, 479 U.S. 1090 (1987) ......................................... ................  35

Johnson v. Chapel Hill Independent
School Dist.,853 F.2d 375(5th Cir. 198 ................................................... 26

Jones v. Bessemer Carraway Medical Center, 137 F.3d 1306 
(11th Cir. 1998), superseded in non-relevant part
on denial o f reh'g, 151 F.3d 1321 (11th Cir. 1998) ..................  12, 19, 20

Vones v. Gerwens, 874 F.2d 1534 (11th Cir. 1989) ............................ passim

Juddv. Rodman, 105 F.3d 1339 (11th Cir. 1997) ........................................  32

Lathem v. Dept, o f Children
and Youth Services, 172 F.3d 786 (11th Cir. 1999) ........... 14, 15, 25, 26

IV



Table of Authorities (Continued)

Mamccia v. Brown, 171 F.3d 1364 (11th Cir. 1999).......................  21, 22, 23

McDonald v. Sante Fe Trail Transportation Co., 427 U.S. 273 (1976) ....  12

^McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)............... passim

McKenzie v. EAP Management Corp.,
40 F. Supp. 2d 1369 (S.D. Fla. 1999) .......................................................  13

Moore v. City o f Charlotte, 754 F.2d 1100 (4th Cir. 1985),
cert, denied, 472 U.S. 1021 (1985) .......................................................... 19

Nida v. Echols, 31 F. Supp. 2d 1358 (N.D. Ga. 1998) ..........................  27, 28

Nix v. WLCYRadio/Rahall Communications, 738 F.2d 1181
(11th Cir. 1984)......................................................................  12, 14,20,26

Rhode v. K.O. Steel Castins, Inc., 649 F.2d 317 (5th Cir. Unit A 1981) ... 16

Riordan v. Kempiners, 831 F.2d 690 (7th Cir. 1987)...................................  33

Sanders v. Alliance Home Health Care, Inc., No. 99-1713,
2000 WL 76339 (8th Cir. (Ark.), Jan. 27, 2000)  .................................  16

Smith v. Wal-Mart Stores, 891 F.2d 1177 (5th Cir. 1990) ..........................  19

Snake v. Staff Leasing, Inc., 43 F. Supp. 2d 1317 (M.D. Fla. 1998)....  23, 27

United States v. Crosby, 59 F.3d 1133 (11th Cir. 1995) ................  13, 14, 18

United States v. Harvey, 547 F.2d 720 (2d Cir. 1976) ............. ...................  30

United States v. Killough, 848 F.2d 1523 (11th Cir. 1988) ............  32, 33, 36

United States v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990) .......  30

V



Table of Authorities (Continued)

Walden v. Sears, Roebuck and Co., 654 F.2d 443 (5th Cir. Unit A 1981) .. 35

Walker v. Nationsbank o f Florida N.A.,
53 F.3d 1548 (11th Cir. 1995) ............................................................  1 U 32

FEDERAL STATUTES

28U.S.C. §§ 1291 & 1294 ............................................................................ ™

28 U.S.C. §§ 1331, 1343(a)(4), 2201 & 2202 ..............................................vii

29 U.S.C. § 206(d)(1) .....................................................................................  15

42 U.S.C. § 1981 ................... ...................... ........... ........................................  1

29 U.S.C. §§ 2000e-5(f)(3) ............... .............................................................™

42 U.S.C. §§ 2000e et seq.......... .............................................. ......................... 1

FEDERAL RULES OF EVIDENCE

Fed. R. Evid. 403 .....................................................................................passim

(*) Denotes Cases Upon Which Appellant Primarily Relies

vi



STATEMENT OF JURISDICTION

The district court had jurisdiction over the subject of this action pursuant to 28 

U.S.C. §§ 1331, 1343(a)(4), 2201, 2202 and 42 U.S.C. § 2000e-5(f)(3).

This court has jurisdiction over the subject of this action pursuant to 28 U.S.C. 

§§ 1291 & 1294, and Federal Rule of Appellate Procedure 4(a).

The final judgment from which this appeal is taken was entered on June 2,1999. 

Plaintiff timely filed, on June 16, 1999, a motion for judgment as a matter of law or, 

alternatively, motion for a new trial pursuant to Federal Rules of Civil Procedure 50(b), 

59, and 60(b)(6). The district court entered an order denying plaintiff s motion for 

judgment as a matter of law or, alternatively, motion for a new trial on July 16, 1999. 

Pursuant to Federal Rules of Appellate Procedure 4(a)(1)(A) and 4(a)(4)(A), plaintiff 

filed a timely notice of appeal on August 6, 1999.

This appeal is taken from a final judgment entered in favor of defendant and 

against plaintiff on all claims.

vii



STATEMENT OF ISSUE

1. Whether the district court committed reversible error in excluding plaintiff s 

evidence regarding defendant’s differential treatment of similarly situated white 

employees offered to prove defendant’s racial discrimination in discharging 

plaintiff?

STATEMENT OF THE CASE

Plaintiff-Appellant Marian Anderson is an African-American news producer who 

alleged racial discrimination and retaliation in employment, under Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Civil Rights Act of 1866, 42 

U.S.C. § 1981, by defendant television station in Birmingham, Alabama.

I. Proceedings Below

This case was filed on August 1,1997. After a jury trial in May, 1999, a verdict 

was returned in favor of defendant on all claims. On June 2, 1999, the district court 

entered judgment in favor of defendant and against plaintiff

II. Statement of Facts

Plaintiff is a thirty-three year old, African-American female, who was hired as 

a producer in June, 1996 by defendant, the Birmingham affiliate of CBS. Doc 80 - Pgs

1



31 to 32,39,42,236. Plaintiff claimed that defendant1 discriminated against her on the 

basi s of race in refusing to give her an on-air reporter position and in discharging her 

one month later for “unprofessional behavior.” R l-3 ,4. Plaintiff also claimed that her 

discharge was in retaliation for her objections to defendant’s racially discriminatory 

practices, including her complaint to the local chapter of the N.A.A.C.P. Rl-3, 4.

Prior to plaintiffs employment, the N.A.A.C.P. had petitioned to block 

defendant’s license renewal by the Federal Communication Commission (FCC) on the 

basis of the station’s minority hiring record. Doc 80 - Pgs 202 to 203, 405 to 406, 

663.2 Through its white General Manager, Hoyle Broome, defendant opposed the 

petition to deny the license. Doc 80 - Pgs 41 to 42, 663. While the petition was 

pending, the Birmingham chapter of the N.A.A.C.P. notified defendant they were 

“concerned about the hiring and promotion of minorities into upper management and 

decision-making positions.” Doc 80 - Pages 370 to 371, Plaintiffs Exhibit 53. In late 

1994, defendant settled the petition with the FCC because the station was planning to 

be sold, and the FCC could slow the sale if racial problems existed. Doc 80 - Pgs 437

'At trial, the district court granted a motion for judgment as a matter of law 
regarding all claims against the additional defendants. Doc 80 - Pg 471.

2Defendant was required to report the racial composition of its workforce to the 
FCC on an annual basis and to maintain a public file containing this information. 
Doc 80 - Pgs 396, 404 to 408.

2



to 438, 665 to 666, 695.

The next year, General Manager Broome hired Wilhelmma Walker as News 

Director. Doc 80 - Pg 198. Walker was the only African-American manager at the 

station. Doc 80 - Pgs 199, 669. At the time Walker was hired, there were only two 

African-American employees in the newsroom. Doc 80-Pgs 197,255 to 256. Walker 

hired a number of additional employees, white and African-American. Doc 80 - Pgs 

43, 49, 215 to 233, 255 to 256. Plaintiff was one of the employees hired by Walker.

Shortly after plaintiff was hired, the atmosphere among employees in the 

newsroom became racially divisive.3 Management had circulated responses to an 

employee survey which contained several racial comments: the News Director “has 

hired too many black females;” persons “other than black women” should be 

“appreciated and rewarded;” and an employee had stated that “the newsroom [was] 

getting dark” and “we shouldn’t hire any more dark people.” Doc 80 - Pgs 61 to 62, 

65 to 67,167,245 to 250; Plaintiffs Exhibit 11. In addition, General Manager Broome 

had allowed the white former News Director, whom Walker had replaced, to remain 

employed in the newsroom, where he challenged Walker’s authority and decision-

3A management consultant hired by defendant concluded there was racial 
divisiveness in the newsroom and reported this to Broome. Doc 80 - Pgs 423 to 
424, 484, 683. The Vice President for Television Operations, who was based in 
Lexington, Kentucky, testified “we had a problem.” Doc 80 - Pgs 452 to 454, 460.

3



making and complained about the station “getting too dark.” Doc 80 - Pgs 52 to 55, 

141 to 142, 204 to 205,257 to 259.

Plaintiff expressed her concern about the racially divisive atmosphere. At a staff 

meeting to discuss the survey responses, plaintiff asked “how many black women in 

a news room equaled too many.” Doc 80 - Pg 63. Plaintiff also questioned the 

decision to implement a new management style in the newsroom, labeled “brand 

management,” which was based on consensus decision-making and threatened to 

undermine Walker’s authority as News Director. Doc 80 - Pgs 69 to 73, 153, 491.

On August 5, 1996, General Manager Broome filled an investigative reporter 

position, although News Director Walker ostensibly was responsible for hiring 

newsroom staff. Doc 80 - Pgs 74, 200 to 201, 266 to 269,457, 691. The position was 

filled by a white woman who had no on-air experience. Doc 80 - Pg 74. The vacancy 

for the position was never posted internally at the station. Doc 80 - Pgs 75, 272. This 

was contrary to the station’s practice of posting vacancies on several bulletin boards 

withm the station. Doc 80 - Pgs 75, 219 to 220, 409. On August 4, Broome had 

notified the FCC in an annual employment report that the station “posted positions 

internally.” Doc 80 - Pgs 429 to 430, 691; Plaintiff’s Exhibit 30.4

4In his earlier opposition to the N.A.A.C.P.’s petition with the FCC, Broome had 
testified to the station’s practice of posting job openings. Doc 80 - Pgs 408 to 409.

4



Plaintiff complained to Broome about his failure to post the position. Doc 80 - 

Pgs 77 to 78. Plaintiff told Broome that it was not fair to create a position and yet not 

post it “so that you don’t give everybody equal opportunity to bid for it, to have access 

to it.” Doc 80 - Pg 78. Plaintiff also questioned News Director Walker about the 

position. Walker told plaintiff that Broome had created the position, that she did not 

know anything about the position, and that she was “just as surprised as anybody else.” 

Doc 80 - Pgs 77, 79. Plaintiff told Walker she planned to file a complaint with the 

N.A.A.C.P. regarding the “pattern of discrimination.” Doc 80 - Pgs 79 to 80.

On August 9,1996, plaintiff filed a complaint with the Birmingham branch of the 

N.A.A.C.P. regarding defendant’s discriminatory employment practices. Doc 80 - Pgs 

81 to 83; Plaintiffs Exhibit 1. Plaintiff complained that an investigative reporter 

position had been filled in early August by a white female with no experience in 

television, and that the position had not been posted. Plaintiff’s Exhibit 1. At the time 

of plaintiffs complaint, another sale of the television station was pending, and the 

station’s fair employment practices were again a possible issue. Doc. 80 - Pgs 437 to 

438, 695 to 697.

Three days after plaintiffs complaint, the N.A.A.C.P. requested a meeting with 

Hoyle Broome about the working conditions of minorities at the station, citing the 

allegation that “jobs at the station are being filled without being posted.” Doc 80 - Pgs

5



379 to 381, Plaintiffs Exhibit 14. The N.A.A.C.P. received no response. Doc 80 - Pgs 

383 to 384. On August 30, 1996, the N.A.A.C.P. wrote another letter to Broome, 

reiterating its concern about “current developments” at the station and requesting a 

meeting. Doc 80 - Pg 384, Plaintiff s Exhibit 15.

In the first week of September, General Manager Broome met with the 

N.A.A.C.P. Doc 80 - Pgs 274, 385 to 386. Broome asked News Director Walker to 

attend in order to discuss “favorable minority hiring practices” and to tell the 

N.A.A.C.P. about the station’s accomplishments in the last several months. Doc 80 - 

Pgs 274 to 275. At the meeting, the N.A.A.C.P. asked Broome about the station’s 

practice of filling jobs without posting them. Doc 80 - Pgs 277, 386. Broome 

answered that positions were posted at the station. Doc 80 - Pg 386. The N.A.A.C.P. 

also questioned Broome about the adoption of “brand management” and its effect on 

Walker’s authority in the newsroom. Doc 80 - Pgs 276 to 277, 387 to 388.

One week later, General Manager Broome ordered News Director Walker to 

terminate plaintiff. Doc 80 - Pg 282. Walker asked Broome for the reason for the 

termination; Broome replied “unprofessional behavior” and refused to be more specific. 

Doc 80 - Pg 282. Following Broome’s instructions, Walker terminated plaintiff Doc 

80 - Pg 285. Plaintiff asked Walker whether there was a problem with her work; 

Walker replied no. Doc 80 - Pg 89. Plaintiff had never been reprimanded, disciplined

6



or cnticized by Walker or Broome at any time during her four-month employment at 

the station. Doc. 80 - Pgs 89 to 90,173 to 174. Walker testified that plaintiff had done 

nothing to warrant her termination. Doc 80 - Pg 284.

At trial, plaintiff attempted to introduce evidence regarding defendant’s more 

favorable treatment of two white newsroom employees, who had committed 

'‘unprofessional behavior” toward management in the newsroom: Tom Allen, an 

executive producer, and Evan Lockridge, a photographer. Doc 80 - Pgs 55 to 56. 

Plaintiff sought to introduce this evidence through deposition testimony of Walker and 

Broome. Doc 80 - Pgs 238 to 239,241,344,415 to 416.5 Plaintiff s counsel indicated 

the evidence would demonstrate differential treatment by defendant toward plaintiff and 

the white employees, who were held to the same standards of conduct. Doc 80 - Pgs 

342 to 343.

The proffered evidence pertaining to Tom Allen showed that, on several 

occasions, he failed to follow Walker’s directions in the newsroom. Each time, News 

Director Walker either reprimanded Allen or talked to him about her “difficulty with

5Plaintiff offered specific excerpts of the two depositions. The district court 
indicated, on the record, that plaintiff proffered Page 210, Line 5, through Page 225, 
Line 6, of the Walker Deposition, and Pages 148 through 153 of the Broome 
Deposition. Doc 80 - Pgs 238 to 239, 342 to 344, 415 to 416, but they were 
apparently not included in the record. Plaintiff has filed a motion to supplement the 
record with the proffered pages in order to ensure they are available to this Court for 
review.

7



him doing the things in the newsroom that [she] wanted done.” Walker Depo. - Pgs 

212 to 213. Walker testified that Allen had difficulty following the “direction [she] 

wanted the product to go in,” and that he tended to follow the former News Director’s 

instructions. Id. at 213. Walker also instructed Allen on a number of occasions to 

leave work at a particular time but he w'ould remain in the newsroom, interfere with 

preparations for the ten o’clock show and “cause some problems.” Id. at 217 to 218.

The proffered evidence also showed that Hoyle Broome knew about Allen’s 

conduct in the newsroom because Allen complained directly to Broome that anything 

he attempted to do was “countermanded” by Walker. Id. at 214; Broome Depo. - Pg 

148. In addition, Walker also discussed Allen’s conduct with Broome. Walker Depo. - 

214. When Allen attempted to resign, Broome discouraged him from doing so, and 

instead moved him to the Creative Services Department. Broome Depo. - Pgs 150 to 

151.

The preferred evidence pertaining to Evan Lockridge showed that Lockndge 

openly yelled and used profanity in the newsroom, and threw items and kicked a trash 

can in the newsroom. Walker Depo. - Pg 222. This conduct apparently occurred in 

Walker’s presence because she followed him after he “stormed out” of the newsroom. 

Id. at 223. Lockridge himself attributed his conduct to being “very emotional about the 

way things were going,” and “the direction things were going.” Id. at 224. Lockridge

8



was not terminated, however. He was “written up,” suspended for one day, and 

allowed to resign two or three weeks later. Id. at 223 to 224. Hoyle Broome knew 

about this misconduct because Walker complained to Broome that Lockridge had 

“exploded” in the newsroom. Broome Depo. - Pgs 152 to 153. Walker told Broome 

that Lockridge had been reprimanded, but Broome suggested no more severe 

disciplinary action. Id. at 153. Lockridge resigned from the station shortly thereafter. 

Walker Depo. - Pg 224.6 Lockridge continued to do freelance work with the station. 

Id. at 225.

The district court excluded the evidence regarding defendant’s treatment of the 

two white employees from being presented to the jury on the ground that “any 

probative value is substantially outweighed by the waste of time.” Doc 80 - Pgs 238 

to 239, 241, 342 to 344, 415 to 416, 474 to 475.

III. Standard of Review

The appellate court reviews evidentiary rulings by the district court accordmg 

to an abuse of discretion standard.

6In proffering the deposition testimony of Hoyle Broome, plaintiff inadvertently 
failed to include Page 154 of the deposition, instead identifying the last page of 
testimony as Page 153. Doc 80 - Pg 416. This testimony continued the description 
of Broome’s treatment of Lockridge and indicated it was Broome who discussed 
the possibility of Lockridge’s continuing to work with the station in a freelance 
capacity. Broome Depo. - Pg 154. Plaintiff has moved to supplement the record 
with this page.

9



SUMMARY OF ARGUMENT

The district court clearly erred in excluding plaintiff s evidence that defendant 

treated similarly situated white employees more favorably than plaintiff. Such evidence 

is probative of defendant’s racial motivation in this discharge case. This Circuit has 

consistently allowed this evidence to demonstrate a prima facie case of discriminatory 

discharge where the basis for discharge is alleged misconduct, and has considered the 

evidence to be probative of pretext. Plaintiffs proffer satisfied the requirements for 

admissibility of this evidence, demonstrating that the white employees were involved 

in similar conduct and were disciplined in different ways.

The district court committed an abuse of discretion by ruling, under Fed. R. Evid. 

403, that any probative value of the evidence was substantially outweighed by a “waste 

of time.” The essential nature of the evidence and the limited time necessary for its 

presentation required its admission. The court’s error deprived plaintiff of her right to 

introduce significant evidence supporting her claim — that defendant’s discharge was 

motivated by race discrimination. The wrongful exclusion of the evidence thus 

substantially prejudiced plaintiff s opportunity to prove her case of discrimination. The 

district court’s ruling constitutes reversible error. The case should be remanded for a 

new trial.

10



ARGUMENT

I. The District Court Committed an Abuse of Discretion by Excluding
Plaintiffs Evidence of Defendant’s More Favorable T reatment of Similarly
Situated White Employees.

The district court’s exclusion of evidence regarding defendant’s differential 

treatment of similarly situated white employees constitutes an abuse of discretion and 

must be reversed. See Walker v. Nationsbank o f Florida N.A., 53 F.3d 1548, 1554 

(11th Cir. 1995). The district court clearly erred in concluding, under Fed. R. Evto. 

403, that the probative value of the evidence was substantially outweighed by a “waste 

of time.” The significant weight of the evidence and the limited time required for its 

introduction clearly warranted its admission.

A. Plaintiffs Proffer Contained Evidence That is Highly Probative of 
Defendant’s Racial Motivation in Discharging Plaintiff.

Plaintiff sought to introduce evidence at trial demonstrating that defendant 

treated similarly situated white employees more favorably than plaintiff Such evidence 

is clearly probative of plaintiff’ s claim that her discharge for misconduct was racially 

motivated.

It is a fundamental principle of employment discrimination law that purposeful 

discrimination may be proven through circumstantial evidence. McDonnell Douglas

11



Corp. v. Green, 411 U.S. 792, 802-04 (1973). In McDonald v. Sante Fe Trail

Transportation Co., 427 U.S. 273 (1976), the Supreme Court held that the McDonnell 

Douglas framework applies in discharge cases even where the discharge is allegedly 

based on serious misconduct by the employee. “While [an employer] may decide that 

[certain acts] may render an employee unqualified for employment, this criterion must 

be applied alike to members of all races, and Title VII is violated i f . . .  it was not.” Id. 

at 283.

This Circuit has consistently held that a plaintiff allegedly discharged for 

misconduct must establish a prima facie case by demonstrating the following: (1) the 

plaintiff belongs to a racial minority; (2) she was subjected to adverse job action; (3) 

her employer treated similarly situated employees of other races more favorably; and 

(4) she was qualified to do the job. Jones v. Bessemer Carraway Medical Center, 137 

F.3d 1306, 1310(11th Cir. 1998), superseded in non-relevantpart on denial o f reh 'g, 

151 F.3d 1321 (11th Cir. 1998); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 

1997); Nix v. WLCYRadio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir. 

1984).

The plaintiff bears the burden of producing the evidence that the employer 

treated white employees differently. Jones v. Gerwens, 874 F.2d 1534,1541 (11th Cir. 

1989). “If a plaintiff fails to show the existence of a similarly situated employee,

12



summary judgment is appropriate where no other evidence of discrimination is 

present.” Hohfield, 115 F.3d at 1562. Discriminatory discharge cases are often 

dismissed for the sole reason that the plaintiff failed to present such evidence. See, 

e.g., Farrior v. H.J. Russell & Co., 45 F. Supp. 2d 1358, 1366 (N.D. Ga. 1999); 

McKenzie v. EAPManagement Corp., 40 F. Supp. 2d 1369, 1375 (S.D. Fla. 1999).

The primafacie case elements demonstrate that evidence of differential treatment 

of similarly situated employees clearly raises an inference of discrimination. The prima 

face case is designed to show precisely this -  “actions taken by the employer from 

which one can infer, if such actions remain unexplained, that it is more likely than not 

that such actions were "based on a discriminatory criterion under the Act.” ’ Furnco 

Construction Corp. v. Waters, 438 U.S. 567, 576 (1978) (quotingMcDonnell Douglas, 

431 U.S. at 358).

The essential nature of “similarly situated” evidence is further demonstrated by 

its role in demonstrating pretext. See McDonnell Douglas, 411 U . S. at 804 (“Especially 

relevant to a showing [of pretext] would be evidence that white employees involved in 

acts against [the employer] of comparable seriousness . . . were nevertheless retained 

or rehired.”). In United States v. Crosby, 59 F.3d 1133 (11th Cir. 1995), this Court 

noted that, once the defendant satisfies its burden of articulating a legitimate non- 

discriminatory reason, the sole inquiry becomes whether plaintiff has proven intentional

13



discrimination. Id. at 1135. “Evidence that similarly situated employees were treated 

differently is of probative value . . . .” Id. A jury can thus infer from this evidence that 

a discriminatory reason motivated defendant to discharge plaintiff

Because of the obvious relevance of this evidence as an element of circumstantial 

proof of discriminatory discharge, it is clear that the district court committed error by 

prohibiting plaintiff from introducing the evidence at trial.

B. Plaintiffs Proffer Sufficiently Demonstrated That Similarly Situated 
Employees Were Treated More Favorably Than Plaintiff.

Plaintiff s proffer regarding defendant’s treatment of similarly situated employees 

contained sufficient evidence to support its admissibility for comparison purposes under 

Title VII.

1. Plaintiffs Position Was Sufficiently Similar to the Positions of 
the White Comparators Such That Plaintiff and the 
Comparators Were Subject to the Same Workplace Rules.

Plaintiff must show that “a white employee in similar circumstances was retamed 

while [s]he was fired.” Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 

1187 (11th Cir. 1984). “The relevant inquiry is not whether the employees hold the 

same job titles, but whether the employer subjected them to different employment 

policies.” Lathem v. Dept, o f Children and Youth Services, 172 F.3d 786, 793 (11th 

Cir. 1999). The white employees with whom plaintiff sought to compare herself held

14



substantially similar positions in the newsroom so as to be subject to the same standards 

of workplace conduct.

Defendant never disputed at trial that plaintiff and the two suggested comparators 

were subject to the same workplace rules.7 Thus, any difference m the application of 

those rules is probative of discrimination. See Lathem, 172 F.3d at 791-93 (intake 

officer and her supervisor, the unit director, were similarly situated because, inter alia, 

same workplace rules and policies applied). Defendant’s lack of formal, written 

employment policies further confirms that there were no different standards of conduct 

in the newsroom, dependent upon position or status. Doc 80 - Pg 417.

Additionally, the positions and duties of plaintiff and the comparators were 

similar enough that any unwritten codes of conduct could not be differentially applied 

on any articulable basis. While the law requires that, in order “to make a comparison 

of the plaintiffs treatment to that of non-minority employees, the plaintiff must show 

that [s]he and the employees are similarly situated in all relevant respects,” Holifield, 

115 F.3d at 1562, a plaintiff need not satisfy the exacting standards of claims under the 

Equal Pay Act, 29 U.S.C. § 206(d)(1), requiring equal skills, equal efforts and equal

7In making the proffer of evidence regarding defendant’s treatment toward the 
white employees, plaintiffs counsel indicated there was no evidence or 
“suggestion” by defendant that plaintiff and the white employees were held to 
different standards of conduct. Doc 80 - Pg 343. Defendant offered no evidence or 
argument to the contrary.

15



responsibilities. Rhode v. K.O. Steel Castins, Inc., 649 F.2d 317, 322 (5th Cir. Unit A 

1981).

Plaintiff and the comparator employees were “similarly placed” within the 

newsroom. See id. Although they held different titles, all three employees were at the 

same level in the station’s hierarchy. Neither plaintiff, Allen nor Lockridge was 

considered management.8 Instead, in the annual employment report submitted to the 

FCC, all three positions were considered “professional.” Doc 80 - Pgs 197, 419, 669 

to 670, 770 to 771. The three positions were filled by the News Director in the same 

manner (postings, advertisements and job searches).9 Doc 80 - Pgs 200 to 201, 214 to 

233. Importantly, all three employees were under the immediate supervision of the 

News Director. Doc 80 - Pgs 204, 213 to 214. See Sanders v. Alliance Home Health 

Care, Inc., No. 99-1713, 2000 WL 76339 (8th Cir. (Ark.), Jan. 27, 2000) (upholding 

district court’s finding that white employees under same supervision were similarly 

situated).

Plaintiff performed job functions which required the same degree of

8There was only one manager in the newsroom — News Director Walker. Doc. 
80 -Pg 199.

9 While plaintiff was hired by News Director Walker, Tom Allen had been hired 
by the previous News Director. Doc 80 - Pg 207. The News Director was 
responsible for hiring photographers. Doc 80 - Pgs 224 to 225, 233.

16



professionalism and adherence to management decisions as those performed by the 

comparators. As a producer, plaintiff was an integral member of a team which worked 

to produce a news show, which included editors, reporters, anchors and photographers. 

D o c8 0 -P g l2 4 ,126, 150 to 151,172. As executive producer, Tom Allen also worked 

with the team of producers, photographers, and the assignment desk toward the same 

purpose. Walker Depo. - Pg 219. (Photographers were part of this team although they 

would often accompany reporters on field work. Doc 80 - Pg 298.) Indeed, there was 

much overlap between job duties in the newsroom. For example, when plaintiff began 

as a producer, she gathered stones and wrote them. Doc 80 - Pgs 125 to 126. Hoyle 

Broome testified that News Director Walker had a “very fluid concept of moving people 

around.” Doc 80 - Pg 418.

Any minor distinctions in the respective duties of plaintiff and the comparators 

do not affect the admissibility of the proffered evidence. It is clear that all three 

employees were held to the same standards of conduct, particularly with respect to 

professionalism or following management direction, which were enforced by the same 

persons in management. While Tom Allen was an executive producer, this was not a 

significant distinction — there were also producers, weekend producers, and associate 

producers. Similar to plaintiff, Allen did not remain on-site for all of the newscasts. 

Walker Depo. - Pgs. 216 to 218. And, when he voluntarily left the newsroom, his

17



position was not replaced for an entire year; it was during this time that plaintiff worked 

as a producer. Vol 80 - Pg 55; Walker Depo. - Pgs 217 to 219.

Each of these three employees rarely made work assignments to reporters, 

anchors or photographers; this was the responsibility of the assignment editor. Doc 80 - 

Pgs 291 to 292. It was the News Director who had the decision-makmg authority' 

regarding what would be covered and by whom. Doc 80 - Pgs 298, 677. According to 

a news anchor who testified, “the real decisions in the newsroom” were made by 

management. Doc 80 - Pg 747. Accordingly, the positions of the three employees were 

not so dissimilar to justify the dramatic differences in discipline presented here. See 

United States v. Crosby, 59 F.3d 1 133,1136 & n. 7 (11 th Cir. 1995) (upholding district 

court’s finding that plaintiffs status as supervisor, contrasted with deputy comparators, 

warranted heightened discipline).

2. Plaintiffs Alleged Misconduct Was Sufficiently Similar to the 
Misconduct of the Comparator Employees To Warrant 
Admissibility of the Comparison at Trial.

The record established at trial and through the proffer that the misconduct with 

which plaintiff was charged was substantially similar to that committed by the white 

comparators. “In determining whether employees are similarly situated for purposes of 

establishing a prima facie case, it is necessary to consider whether the employees are 

involved in or accused of the same or similar conduct . . . Holifield., 115 F.3d at

18



1562. An important factor is the “the nature of the offenses committed.” Jones v. 

Gerwens, 874 F.2d 1534,1539-40 (11th Cir. 1989) (quoting Moore v. City o f  Charlotte, 

754 F.2d 1100, 1105 (4th Cir. 1985), cert, denied, A ll  U.S. 1021 (1985)).

First, defendant’s lack of formal work rules or employment policies substantially 

limits defendant’s ability to argue that plaintiff violated one code of behavioral conduct 

while the comparators violated another, and defendant never so argued to the court 

below. See Smith v. Wal-Mart Stores, 891 F.2d 1177, 1179 (5th Cir. 1990) (court 

analyzing similarly situated evidence according to whether “others were treated 

differently in relation to the relevant policy”). Compare, for example, Jones v. 

Bessemer Carraway Medical Center, where this Court relied on the defendant’s 

interpretation of its workplace rules in affirming the exclusion of “similarly situated” 

evidence. 137F.3d at 1311-12. In Jones, the plaintiff was a nurse who appeared for 

work out-of-uniform and then requested permission to go home. Id. at 1309. After her 

supervisor denied her request and instructed her to put on her uniform, she failed to 

comply. Id. She was terminated for failure to follow her supervisor’s instructions 

(which the employer characterized as insubordination), and being unprepared for work. 

Id. at 1309-10. This Court held that white employees who had taken days off after their 

requests to do so were denied were not similarly situated because defendant consistently 

treated these violations as “occurrences” under the attendance policy, and no evidence

19



existed that defendant ever treated this kind of violation as insubordination. Id. at 1311.

See also, Nix, 738 F.2d at 1186 (black employee terminated for violating company rule 

against competitive moonlighting could not show that white employee was retained 

while violating same policy).

In the absence of such differentiated workplace policies, the Court must conclude 

that defendant expected its employees to conduct themselves according to a standard 

of professionalism. While the absence of a disciplinary rule is not evidence of a lack 

of offense, it is “more appropriately evidence of an expectation of professionalism.” 

Early v. Morris Newspaper Corp., 54 F. Supp. 2d 1261, 1271 (M.D.Ala. 1999).

Second, defendant’s articulated reason for plaintiffs termination is consistent 

with this view. Plaintiff was terminated for alleged “unprofessional conduct.” This was 

the justification offered by Broome when News Director Walker asked for the reason 

after being instructed to carry out the termination. Doc 80 - Pg 282. While Broome at 

trial characterized plaintiffs conduct as “disruptive,” “insubordinate,” and a “failure to 

take management directions,” he admitted that “the stated reason was unprofessional 

behavior.” Doc 80 - Pgs 625, 648.

The comparators’ conduct was similarly “unprofessional.” On repeated 

occasions, Tom Allen refused to follow the direction of News Director Walker. He also 

defied Walker’s instructions to leave the station a number of times, remaining on site.

20



intervening in the operation of the late news show, and causing problems. Lockridge’s 

behavior also qualifies as “unprofessional.” According to Walker, he yelled, swore and 

threw and kicked items in the newsroom. Walker told Broome that Lockridge had 

“exploded.” Walker informed Broome about the conduct of both white employees, and 

she also complained to plaintiff about their conduct. Doc 80 - Pgs 55 to 56. This 

conduct clearly fits within the other descriptions offered by Broome of plaintiffs 

terminable offenses: disruptive, insubordinate, and failure to take management 

direction.

Third, that plaintiff s specific acts were not identical to the “unprofessional” acts 

of the white comparators does not render the evidence inadmissible. “Exact correlation 

is neither likely nor necessary, but the cases must be fair congeners.” Maniccia v. 

Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999)(quoting Dartmouth Review v. 

Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989)); see also Early v. Morris 

Newspaper Corp., 54 F. Supp. 2d 1261, 1271 (M.D. Ala. 1999) (commission of exact 

offense not necessary but conduct should be comparable). At trial, Broome testified that 

plaintiff was terminated for obj ecting, during a staff meeting, to a new management style 

that was to apply only to the newsroom. Doc 80 - Pgs 70, 625. Broome also cited one 

incident, allegedly reported to him, in which plaintiff questioned the presence of the 

employee who had been hired into the investigative reporter position. Doc 80 - Pgs

21



626, 711.

Importantly, both plaintiffs alleged misconduct and the misconduct of the 

comparators involve expressing disagreement with or challenges to managerial 

decisions. Plaintiff allegedly disagreed with, or objected to, a new management style 

called “brand management,” which was to be instituted in the newsroom. She also 

objected to defendant’s hiring of the (white) employee in the reporter position. The 

comparators disagreed with, or objected to, the direction which management was taking 

m the newsroom: Prior to Walker’s hire, the decision was made to expand the coverage 

of the news department beyond its traditional niche of “advocacy-oriented” news. Doc 

80 - Pgs 600 to 603. News Director Walker was charged with implementing this new 

direction and mainstreaming the news product. Doc 80 - Pgs 205, 606 to 607. 

“[Walker] wanted to make changes, a lot of changes, creative things to compete with 

other stations.” Doc 80 - Pg 301.

Any distinctions in how plaintiff and the comparators manifested their challenges 

to management do not alter the manner m which defendant would be expected to treat 

all behavior characterized as failing to comply with management directives. At the least, 

these differences are not of the type that have resulted in the rejection of comparison 

evidence under Title VII. For example, in Mamccia v. Brown, 171 F.3d 1364, 1368 

(11th Cir. 1999), a deputy sheriff was charged with obtaining confidential driver’s

22



license information that was used for private benefit, transporting an unauthorized 

passenger, and then lying about both actions. Id. at 1366. This Court considered these 

violations easily distinguishable from those committed by the proposed comparators, 

each of whom was involved in a single incident while the plaintiff committed at least 

four policy violations. Id. at 1369. Moreover, no comparator lied on more than one 

occasion; one comparator’s actions did not even occur while on duty; and no 

comparator used confidential information accessible to only police officers. Id. See 

also, Holifield, 115 F.3d at 1560, 1563 (plaintiff terminated when it was “unlikely that 

he would function effectively” was dissimilar from white employee whose “quality of 

work” was of no concern).

Indeed, in this case, the conduct by the comparators was arguably more serious 

than plaintiffs conduct, see Holifield, 115 F.3d at 1563 (evaluating “seriousness” of 

conduct); Snoke v. Staff Leasing, Inc., 43 F. Supp. 2d 1317, 1324 (M.D. Fla. 1998) 

(plaintiff has not met burden of showing similarly situated employee who engaged in 

“work performance deficiencies similar to, or as serious as, any of those cited by 

defendant as grounds for termination”), and thus warrants harsher disciplinary treatment. 

On repeated occasions, executive producer Allen failed to follow the direction of the 

News Director, and instead heeded the instructions of the former News Director. 

Photographer Lockridge’s vocal outburst and physical acts are certainly more egregious

23



than objecting during a staff meeting to a change in management style.

Finally, the circumstances surrounding plaintiff’s objection to the management 

decision clearly support less severe disciplinary action, especially when compared to the 

comparators’ conduct. The staff meeting at which plaintiff allegedly objected was 

convened precisely to discuss the “brand management” concept with newsroom 

employees. Doc 80 - Pgs 70 to 71, 494, 503. Management had specifically asked for 

staff opinions about the concept. Doc 80 - Pg 160.10 The notes of the management 

consultant leading the meeting indicated that plaintiff had merely asked for a “better 

explanation” of brand management. Doc 80 - Pgs 526 to 527. Indeed, other employees 

did not know about or understand the concept. Doc 80 - Pgs 534, 543, 747. And, when 

plaintiff requested some written materials on the concept, the consultant testified he 

“didn’t think it would be a bad idea,” and he circulated written materials to all 

newsroom employees. Doc 80 - Pgs 499 to 500, 544. The management consultant 

informed the employees that no television station had ever implemented the concept and 

“they didn’t know if it would even work at a television station.” Doc 80 - Pgs 157 to 

158. Ultimately, the station never adopted “brand management.” Doc 80 - Pg 710.

10Plaintiff testified without dispute that management “always encouraged us to 
voice our opinions about these concepts.” Doc 80 - Pg 174.

24



3. The Differences in Disciplinary Action Taken Against Plaintiff 
and the Comparators for Similar Misconduct Were Sufficient 
to Support Admissibility' of the Evidence.

In order to be admissible under Title VII, evidence regarding similarly situated 

white employees must demonstrate that the employer actually treated white employees 

more favorably despite the commission of similar offenses. For example, in H oilfield. 

this Court rejected a plaintiff s preferred comparison because it found imdisputed 

testimony that the employer had attempted to transfer both the plaintiff and the white 

employees prior to termination. 115 F.3d at 1562-63.

Here, the record contains imdisputed testimony of differential treatment. First, 

there is a substantial difference in the outcome of the disciplinary action taken agamst 

the three employees. Plaintiff was terminated. The white comparators were not. 

Moreover, defendant acted affirmatively to retain the two white persons in its employ. 

When both white employees indicated they were contemplating resigning from the 

station, General Manager Broome attempted to dissuade them from doing so. Broome 

discussed the possibility of Lockridge’s working for the station as a freelance 

photographer. Broome actually convinced Tom Allen to continue working for the 

station in another department, Creative Services.

Significantly, plaintiff was treated differently from the white comparators in the 

application of progressive discipline. See Lathem v. Dept, o f Children and Youth

25



Services, 172F.3d786,793 (11th Cir. 1999) (considering comparison where, inter aha, 

employer did not explain why it did not immediately terminate comparator or why it 

considered discipline short of termination for comparator); Johnson v. Chapel Hill 

Independent School Dist., 853 F.2d375,381 (5th Cir. 1988) (white employee’s receipt 

of warnings and counseling before contract was not renewed while black employee 

received none was relevant to similarly-situated analysis). At trial, Broome admitted 

that the station had a practice of giving warnings or “appropriate guidance” to 

employees prior to terminating them. Doc 80 - Pg 417. Prior to her termination, 

however, plaintiff never received any such warning or “guidance” from either Walker 

or Broome. At the time he terminated plaintiff, Broome knew that there had been no 

reprimands of plaintiff. Doc 80 - Pg 627. In stark contrast, the white comparators did 

receive reprimands. Lockridge received a written reprimand. Tom Allen received 

several oral reprimands about his behavior. Given the similarities in the misconduct, 

defendant cannot possibly contend that “non-discriminatory differences just as readily 

explain the difference in treatment.” Nix, 738 F.2d at 1186.

4. The Same Decision-Makers Were Involved in the Disciplinary 
Action Taken Against Plaintiff and the White Comparators.

Finally, there is no question that Walker and Broome were both involved in the 

disciplinary treatment of plaintiff and the white comparators.

As an initial matter, plaintiff and the white comparators were all supervised by

26



the same upper management. See Snoke v. Staff Leasing, Inc., 43 F. Supp. 2d 1317, 

1324 (M.D. Fla. 1998). As News Director, Walker was in charge of the news 

department, was the immediate supervisor of the newsroom employees, and had the 

authority to hire and to discipline newsroom personnel. Doc 80 - Pgs 76, 89, 412 to 

414,607. Walker reported to General Manager Broome. Doc 80 - Pg 421. Broome 

was the highest ranking manager at the station and was in charge of the entire station . 

Doc 8 0 -Pgs 42, 177,402.

The final decision-maker here is General Manager Broome.11 It was Broome who 

directed Walker to terminate plaintiff, and it is his motives which are at issue. See Jones 

v. Gerwens, 874 F.2d 1534, 1541 (llthC ir. 1989f  see also Nidav. Echols, 31 F. Supp. 

2d 1358, 1369 (N.D. Ga. 1998).

Importantly, Broome knew about the misconduct of the comparators and failed 

to impose discipline of equal severity to plaintiff’s. News Director Walker had 

complained to Broome about their behavior. And, Broome himself had talked to the two 

employees. However, he did not order the termination of either employee. Doc 80 - Pg 

287. Instead, he attempted to dissuade them from resigning from the station. Broome’s

11 Broome denies making the decision to terminate plaintiff, and contends that his 
superior, Randall Odil, made the decision. Doc 80 - Pg 721. Odil, however, denied 
both making the decision and even knowing about the decision until after plaintiff 
was terminated. Doc 80 - Pgs 458 to 459.

27



knowledge of the misconduct and his failure to terminate the comparators in the face of 

that knowledge make the comparison proper under Title VII. In Jones v. Gerwens, 874 

at 1541-42 & n.13, this Court held that a comparison could not be made unless the 

decision-maker had knowledge of the transgressions by comparator employees and 

failed to recommend discipline. Not only did Broome fail to recommend (to Walker) 

comparable discipline for the white comparators, but he failed to take disciplinary action 

agamst them himself, authority which he clearly held because he terminated plaintiff, a 

subordinate of Walker’s.

Broome’s knowledge and failure to act thus distinguish this case from one in 

which two decision-makers act independently to impose different discipline, a situation 

that this Court recognizes as a possible non-racial justification for differential treatment. 

Jones v. Gerwens, 874 F.2d at 1540 (although a change in managers is not a defense to 

claim of race discrimination, it can suggest a basis other than race for the difference in 

treatment).

Walker’s treatment of plaintiff and the two comparators — whom she immediately 

supervised — further supports use of the comparisons. The role of a subordinate 

manager in a discipline decision has been considered important, for example, where the 

subordinate harbors discriminatory motives and influences the discipline imposed by the 

decision-maker. Nida v. Echols, 31 F. Supp. 2d 1358, 1370 (N.D. Ga. 1998). The

28



converse should also be true; that is, where the subordinate’s involvement supports a 

finding of bias on the part of the decision-maker. Knowing of the conduct of the three 

employees, Walker did not discipline plaintiff but did discipline the white male 

comparators. That a managerial official who was the immediate supervisor of all three 

employees reached precisely the opposite conclusion about discipline from Broome 

supports the unreasonableness of Broome’s action and substantiates plaintiff s claim that 

plaintiff was treated differently due to race. See Jones v. Gerwens, 874 F.2d at 1541 

n.13 (employer may be liable where decision-maker knowingly decides not to 

recommend discipline which had been recommended by other officer).

C. The Probative Nature of the Comparison Evidence Was Not 
Substantially Outweighed by Any Consideration of Judicial Economy.

The district court committed clear error by ruling that any probative value of the 

comparison evidence was substantially outweighed by a “waste of time.” As discussed 

m Section I.A., comparison evidence is considered essential to proof of racial 

discrimination in cases where the discharge is based on alleged misconduct. Plaintiff 

sufficiently demonstrated that the proffered evidence satisfied the test for its 

admissibility.

Relevant evidence may be excluded under Fed. R. Evid. 403 only when “its 

probative nature is substantially outweighed” by one or several factors, which include

29



the “waste of time.”12 “Rule 403 is an extraordinary remedy which should be used only 

sparingly smce it permits the trial court to exclude concededly probative evidence.” 

United States v. Terzado-Madruga, 897 F.2d 1099, 1117 (11th Cir. 1990) (citation 

omitted). “The balance under the Rule, therefore, should be struck in favor of 

admissibility.” Id.

The significance of plaintiffs evidence to her circumstantial case of 

discrimination should have caused the district court to conclude that the need for the 

evidence overwhelmingly favored its admissibility. See United States v. Harvey, 547 

F.2d 720, 723 (2d Cir. 1976) (“[G]iven the importance of the . . . testimony to [the 

party], whatever confusion or delay that may have resulted from its admission would 

have to have been overwhelming to satisfy Rule 403's balancing test.”) The district 

court’s contrary conclusion on the basis of its concern for saving a small amount of trial 

time constitutes a clear abuse of its discretion .

It is significant that in weighing the probative value of the evidence, the district 

court did not rely upon the more substantive concerns traditionally associated with jury 

trials under FED. R. Evid. 403, such as the danger of confusing the jury or creating

12Fed. R. Evid. 403 provides: “Although relevant, evidence may be excluded if 
its probative value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or misleading the jury, or by considerations of undue delay, 
waste of time, or needless presentation of cumulative evidence.”

30



unfair prejudice. Instead, the court’s sole basis for excluding the evidence — articulated 

during trial on three separate occasions -- was that it was a “waste of time.” Doc 80, 

Pgs 239, 344, 475 to 476. As the Rule’s Advisory Committee Note indicates, this 

ground constitutes the least of the concerns to be weighed agamst the probative value 

and need for the evidence under Fed. R. Evid. 403: “These circumstances entail risks 

which range all the way from inducing a decision on a purely emotional basis, at one 

extreme, to nothing more harmful than merely wasting time, at the other extreme.” Fed. 

R. Evid. 403 advisory committee note.

The additional trial time required for admitting the evidence was more than 

justified by the compelling relevance of this evidence. The case was tried over a three- 

day period. Thirteen witnesses testified at trial. Plaintiff presented the testimony of 

three witnesses through deposition which spanned over 150 pages of trial transcript. 

Doc 80 - Pgs 192 to 289, 402 to 451, 452 to 465. The comparison evidence which 

plaintiff sought to introduce was to be elicited from two of these witnesses and consisted 

of less than twenty-five pages in length. This additional testimony was thus negligible 

in terms of the time its introduction would have added to the presentation of plaintiffs 

case and to the trial as a whole. In view of the limited nature of the testimony and its 

significance to the ultimate issue to be decided, the district court clearly erred in 

excluding it under Fed. R. Evid. 403.

31



Finally, the fact that this case was before a jury should have weighed in favor of 

admitting this evidence under Fed, R. Evid. 403. “[T]he distinction between a bench 

and a jury trial may alfect the district court’s analysis of . . .  admissibility under Federal 

Rules of Evidence 403.” Walker v. Nationsbank o f Florida N.A., 53 F.3d 1548, 1554 

(11th Cir. 1995); see also Barfield v. Orange County, 911 F.2d 644, 651 (11th Cir. 

1990), cert, denied, 500 U.S. 954 (1991) (“change from a bench to a jury trial may very 

well affect the analysis under Rule 403”). In employment discrimination cases, jurors 

are asked to decide the ultimate question of whether an employer discriminated on the 

basis of race -- that is, whether the employer treated the employee differently, and 

whether that was due to race. The denial of the opportunity to present specific facts 

with which the jury could compare defendant’s differential treatment of white and 

African-American employees further supports the court’s abuse of discretion in the 

evidentiary ruling.

II. The District Court’s Evidentiary Error Caused Substantial Prejudice to
Plaintiffs Rights and Thereby Warrants Reversal.

The district court’s wrongful exclusion of this critical evidence substantially 

prejudiced plaintiff, and consequently should be overturned. A lower court’s 

evidentiary error may be reversed where the error prejudiced a substantial right of a 

party. Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir. 1997). The party asserting 

error bears the burden of proving substantial prejudice. United States v. Killough, 848

32



F.2d 1523, 1527 (11th Cir. 1988).

The exclusion of this particular evidence in this particular case was clearly

prejudicial. “Whether an error is harmless or prejudicial depends on the facts of each

case.” Killough, 848 F.2d at 1527. This was a discrimination case in which plaintiff

relied solely on circumstantial evidence to prove defendant’s race motivation. In

Riordan v. Kempiners, 831 F.2d 690 (7th Cir. 1987), Judge Posner called for careful

review of evidentiary rulings in discrimination cases which can impact the already

difficult task of proving discrimination circumstantially:

[Careful appellate] review is particularly necessary in a case like this, 
where the substantive issue is whether there was intentional discrimination 
in employment. Proof of such discrimination is always difficult. 
Defendants of even minimal sophistication will neither admit 
discriminatory animus nor leave a paper trail demonstrating it; and because 
most employment decisions involve an element of discretion, alternative 
hypotheses . . . will always be possible and often plausible . . . .  A 
plaintiffs ability to prove discrimination indirectly, circumstantially, must 
not be crippled by evidentiary rulings that keep out probative evidence 
because of crabbed notions of relevance or excessive mistrust of juries.

Id. at 697-98.

This Court has also cited the “inherent difficulty” of proving discnmination cases 

which often necessitates the use of circumstantial evidence. Allen v. County o f 

Montgomery, Ala., 788 F.2d 1485, 1488 (11th Cir. 1986). There, the Court reversed 

the trial court’s exclusion of relevant evidence of prior discriminatory acts on the ground 

that such exclusion “substantially affected appellant’s ability to carry her burden of

33



demonstrating discriminatory intent.” Id.

Similarly, the exclusion by the court below of the '‘similarly situated” evidence 

was highly prejudicial to plaintiffs proof of discrimination, and requires reversal. As 

discussed in Section LA., an employer’s differential treatment of similarly situated 

employees outside of the protected class is necessary to proving a primafacie case and 

is probative of the pretextual nature of an employer’s articulated reason for the 

employment decision. The role of this evidence in the McDonnell Douglas analysis, 

where the discharge is based upon alleged misconduct, confirms that this evidence is 

fundamental to proving discriminatory discharge through circumstantial evidence.

The fact that the jury was not asked to conduct the McDonnell Douglas analysis 

in order to arrive at its verdict does not affect the significant value of this type of 

evidence. The jury was asked to determine whether defendant’s adverse action against 

plaintiff was more likely than not motivated by discrimination. It its most elemental 

form, that question requires the jury to assess whether defendant treated plaintiff 

differently and did so on the basis of race. To exclude evidence that compares 

defendant’s treatment of African-American and white employees who are similarly 

situated deprived plaintiff of the most basic and understandable method of illustrating 

to the jury the defendant’s disparate treatment and the reason therefore. In a case 

proven by circumstantial evidence alone, the exclusion of this evidence is tantamount

34



to preventing a plaintiff from introducing, in a “direct evidence” case, an admissible 

statement constituting direct evidence of discrimination, “which, if believed, would 

prove the existence of discrimination without inference or presumption.” See Holifield, 

115 F.3d at 1561 (citation omitted). Accordingly, the evidence excluded was of such 

a nature that it could have affected the jury’s verdict on the ultimate question to be 

decided.

The comparison evidence was discrete and ascertainable only through the 

testimony which was the subject of the proffer and was not admitted through the 

testimony of other witnesses or documents. This further supports the conclusion that 

the court’s error requires reversal. See lervolino v. Delta Air Lines, Inc., 796 F.2d 

1408, 1420-21 (11th Cir. 1986), cert, denied, 479 U.S. 1090 (1987) (court erred in 

excluding certain evidence probative of whether age requirement was bona fide 

occupational qualification for flight engineer position but error did not warrant reversal 

because plaintiff introduced other evidence to ensure jury was aware that industry as 

whole had not imposed an age requirement for flight engineers). Under no 

circumstances can this evidence be considered cumulative. See Walden v. Sears, 

Roebuck and Co., 654 F.2d 443, 447 (5th Cir. Unit A 1981) (court committed 

prejudicial error in excluding evidence that was not cumulative of that given at trial and 

distinctly and uniquely related to other testimony).

35



The evidence that plaintiff was permitted to adduce at trial further demonstrates 

the substantial prejudice resulting from the exclusion of comparison evidence. See 

Killough, 848 F.2d at 1527 (specific action constituting error cannot be viewed in a 

vacuum but must be viewed according to the entire record). Plaintiff produced abundant 

evidence that the race of employees within the newsroom was at issue prior to and 

during her employment. Defendant had been threatened with the loss of its license due 

to allegations concerning the racial composition of its staff. Defendant then hired an 

African-American News Director, who became the only African-American manager at 

the station. When she arrived, there were only two African-American employees m the 

newsroom. As the News Director hired a number of employees, both white and 

African-American, she dramatically increased the number of African-Americans in the 

newsroom. Plaintiff entered an employment setting that, according to both defendant’s 

and plaintiff s witnesses, was rife with racial problems. Indeed, there were express 

references by newsroom staff, including former management, that the newsroom was 

“getting too dark,” and that the News Director had hired “too many black females.” 

These circumstances provided the backdrop for defendant’s decision to fire plaintiff— 

one of the “black females.” Introduction of the comparison evidence, which revealed 

defendant’s treatment of unprofessional, disruptive or insubordinate conduct by white 

employees, would have substantially undermined the credibility of the articulated reason

36



for that termination.

The role of the News Director in defendant’s differential treatment of plaintiff and 

the white employees also indicates that prejudice resulted from the exclusion of the 

comparison evidence. The News Director bore the responsibility for disciplining 

newsroom employees. However, she never criticized, reprimanded or disciplined 

plaintiff for either performance or conduct on the job. Indeed, when Hoyle Broome 

ordered Walker to terminate plaintiff, Walker had to ask Broome for the reason. After 

Broome replied “unprofessional conduct,” Walker asked for further clarification but 

received none. Despite the fact that the News Director -- plaintiffs own supervisor -  

did not believe plaintiff had committed any offense, much less a “firing offense,” 

plaintiff was terminated by Broome.

The jury was entitled to learn of the stark contrast in treatment of the white 

comparators by Walker and, then by Broome. Unlike plaintiff’s circumstances, the 

News Director did have problems with the conduct of the white comparators under her 

supervision, which affected the work and atmosphere of the newsroom. Accordingly, 

Walker took disciplinary action against them. Although Hoyle Broome knew of these 

transgressions, and of Walker’s treatment of them, Broome nevertheless declined to 

impose the same discipline which plaintiff received -- termination. Not only did Broome 

fail to terminate the white employees, he took affirmative steps to retain them at the

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station after learning they may resign their positions voluntarily. The district court’s 

exclusion of the differential discipline toward African-American and white employees 

substantially impaired plaintiffs ability to prove that her termination was not due to the 

serious misconduct of which she was accused but instead due to defendant’s racial bias. 

The district court’s evidentiary ruling thus substantially prejudiced plaintiffs case and 

must be overturned.

CONCLUSION

The Supreme Court has long recognized that racial discrimination in employment 

may be proven through circumstantial evidence. McDonnell Douglas Corp. v. Green, 

411 U.S. 792,802-04 (1973). This Circuit has consistently held that, where misconduct 

is an employer’s proffered reason for discharge, proof of discrimination must include 

evidence that the employer treated similarly situated white employees more favorably. 

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).

At trial, the district court denied plaintiff the opportunity to prove what she was 

required to prove: that defendant treated her differently from white employees by 

discharging her for “unprofessional conduct,” and did so on the basis of race. Plaintiff7 s 

proffer satisfied the test for admissibility of evidence that white employees committing 

similar offenses were subject to less severe discipline. This evidence, which the 

Supreme Court has called “especially relevant” in proving a circumstantial case of race

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discrimination, substantially outweighed any concern about judicial resources under 

Fed. R. Evid. 403. By excluding the evidence, the distnct court committed an abuse of 

discretion. This error substantially prejudiced plaintiff s ability to prove race 

discrimination, and requires reversal of the case. The case should be remanded to the 

district court for a new trial.

Respectfully Submitted,

Elaine R. Jones 
Director-Counsel

NAACP Legal Defense & 
Educational Fund, Inc.

1444 Eye Street, N.W., 10th Floor 
Washington, D.C. 20005 
(202) 682-1300

COUNSEL FOR APPELLANT

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CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the type-volume limitation set forth in 

Federal Rule of Appellate Procedure 32(a)(7)(B). This brief contains 10265 words.

Counsel for Appellants

Dated: February 1, 2000

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CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief of Appellant were 
served upon the following counsel of record by Federal Express on February 1,
2000:

Barry V. Frederick 
M. Jefferson Starling, III 
Johnston, Barton, Proctor & Powell 
2900 AmSouth/Harbert Plaza 
1901 Sixth Avenue North 
Birmingham, AL 35203-2618

Counsel for Appellant

Dated: February 1, 2000

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