Facts Are Not What Wins Cases, Perceptions Do

Last month the Labor Letter reported on a decision of the Third Circuit Court of Appeals which held that a plaintiff cannot "pick and choose" evidence. That case involved an age discrimination claim by a 57 year old store manager who was demoted and replaced by a 42 year old then current employee. Simpson v. Kay Jewelers, No. 97-3224, Third Circuit Court of Appeals (April 24, 1998). The demotion was based upon the store manager's failure to meet sales quotas for her store over a substantial period of time. The employee had received evaluations commenting on this failure and warnings of the consequences if the problem was not remedied. The store manager filed a lawsuit based upon the fact that a 26 year old store manager had received performance evaluations which had overall ratings lower than her's, thus demonstrating that the employer considered the younger employee a "lesser quality employee" than the plaintiff, as demonstrated by its own rating system, yet took adverse action only against the older employee. The court initially held that a plaintiff could not pick and chose a single comparator to compare herself or himself against -- that the proper point of comparison was whether the unprotected or younger employees as a group were treated more favorably. The court clearly intended its opinion to be a teaching tool to future litigants and lower courts, since it went on to explain that even if the comparison was permitted it should not have been successful since it did not seek to compare treatment on the issue which was the single and narrow grounds that the employer had decided to terminate the plaintiff -- the failure of her store to meet its sales quotas, not an overview of her performance. This case was important to take note of, not simply because of its pronouncement of law, but because it showed the court's realization of how parties (and their counsel) use broad and colorful palates of paints to persuade, and often do not consider themselves limited by the arguable relevant facts in any given situation. Had the Simpson case not been decided on a motion for summary judgment, the result might have been different after jury deliberation. In fact, trial judges are often resistant to granting such motions, preferring the burden to fall on the jury.


In the process of making most human resource decisions we have the experience and ability to look into our crystal ball. In the Simpson case, for instance, it could have been very easy to have taken action for "poor performance" rather than the narrow and limited basis of sales quotas. Had that been the case, regardless of what factors were actually relied upon, the case would have survived the motion for summary judgment and the case would have resulted in a trial and jury determination. Thoughtful selection of narrow grounds for actions, and grounds which can stand up to scrutiny, is an ability every employer should make use of before the first litigation stone is thrown. The general rule of law is that neither the court nor the jury stand in the shoes of the employer; their job is not to decide how they would have made the decision if they were the employer. When at all possible it is wise not to give them that opportunity.

Every employer is also well-served to put itself in the shoes of the prospective plaintiff's counsel prior to making an adverse employment decision regarding an employee. By taking a moment or two to attack our own tentative decisions we have the advantage of looking for our own weaknesses in our defense and can often consider the facts that we are about to rely on and the actions we take. As an example, how we have treated other similarly situated employees is a factor which can often be discussed and considered in the course of this process. At times, simply considering who your witnesses may be, in the event the employment decision is challenged, is a similar and valuable foresight. Knowing that the primary witness or a key witness in an age case will be a sixty year old manager who can discuss his or her considerations provides a view of how perceptions may be molded differently than if the witness were to be thirty and freshly out of an M.B.A. program -- the facts may be identical, but perception can be everything.

Significant Evidentiary Issues Which Are Key To Our Success

As any experienced trial lawyer knows, and many experienced human resource managers have learned through trial by ordeal, once you get to the courtroom, the parties do not simply tell their stories, with full facts or even with candor. In fact, many times either side to a dispute may request the court not to allow some facts to be presented to a jury because they may not be reliable, they may be unduly prejudicial, they may be unduly confusing, or it may be argued that they are not relevant to the dispute at hand. All of these issues are within the discretion of the individual judge in each individual case; once made these decisions are difficult to overturn on an appellate level. Understanding a few of these rules are not only key to winning trials, but are often helpful in the earlier decision making process as well.

  • Narrow precise issues and attention to detail are essential. Narrow concise thinking and discussion during decision-making (and in note-taking) helps keep court review of decisions limited to the same narrow and concise points. If a witness in a deposition or trial, or notes taken during a decision-making discussion, describe that a number of factors were discussed and considered, then selecting a convenient "code" word that seems as if it will be defensible suddenly becomes less defensible. Focus is key in decision making and in witness preparation with an understanding of why the focus is essential.
  • Witnesses and testimony must appear credible. Truthfulness is important not only for ethical reasons, but untruthful testimony can lead to "impeachment" of a witness which may make that witness seem as if he or she either has a poor memory or is intentionally not telling the truth. In addition it may create a perception that other testimony of that and other witnesses may also be unworthy of belief. In addition, the appearance of credibility is highly significant. For this reason, as described above, knowing who you may rely upon as a factor during the employment decision making process, as well as the thoughtful selection of witnesses to testify on your behalf at trial, can often be determinative in a case. Most of us will remember Mark Furman in the O.J. Simpson case regarding his use of the "N" word. When he testified that he had absolutely not used the racial epithet in question, and testimony was later adduced that it was a term not uncommon to him, every scrap of testimony originating from him was then called into question by the jury. To compound the District Attorney's chagrin, of course, was that had the testimony been more forthcoming, the use of the epithet might not have had any affect on the jury. While this is not to suggest that there were not other issues with Mr. Furman's testimony, the appearance of untruthfulness on a single issue taints all testimony by the witness as well as that of other witnesses offering testimony for the same party. It can be disastrous. Perception, again can be more important than the facts.
  • Statements against interest are both harmful and admissible. Admissions by managers are not hearsay and are admissible at trial. Generally, testimony by witnesses are limited by the evidentiary rules regarding hearsay. In its most simple form, hearsay is a statement (or nonverbal conduct of a person) other than one made by the declarant at the trial or hearing offered to prove the matter asserted. If I told you that the real reason for the demotion of Ms. Simpson was her age, and you were a witness at trial, your offer of my statement at trial would be hearsay and thus, inadmissible. However, if I was a manager of the defendant Kay Jewelers (I am not!) the testimony by you would not be hearsay as it would fit under an exception to the hearsay rule as an "admission against interest". Anyone on that level should be trained regarding the importance of what they say and the enormous impact it can have in any case. Further, in preparing for litigation employer is wise to take stock of who may have any knowledge of the actions taken and to know (as best as can be done) who may have been spoken to, and with what breadth of discussion. A manager "spouting off" about something he or she thinks they have knowledge of still speaks as the employer and can create a perception larger than life.
  • A failure to act can be evidence. What you do not do or do not say may also be admissible evidence which can work against you. "Negative" evidence is an unusual concept at first, but the use, once explained is easy to understand. Initially, evidence is "relevant" if it tends to shows that a particular event occurred or a motive was more likely than not to have been the cause for a person's actions. Not all relevant evidence is admissible, but evidence is supposed to be relevant to be admissible. For the limited purposes of this article there are two illustrations which may be helpful to illustrate the significance of negative evidence. The failure to consider an employee for other open positions within a company at a time of layoff or restructuring is often used as evidence that the employer actually wanted to purged the company of that employee rather than giving him or her an opportunity in another position. Juries are often quick to seize an argument such as this, since they would never want to be treated casually themselves. Occasionally jury members themselves (or family members or friends) have been subjected to similar actions and they have a sympathetic ear to this type of non-consideration by an employer. This non-action can easily be driven home with a sarcastic or angry flourish at trial; it is worth consideration at the time of appropriate employment actions whether the prospective plaintiff is capable of performing in any other positions, if any such positions are available.

Another type of "negative" evidence is the failure to deny an accusation when made to a manager. When an emotional employee says to the H.R. Director that he or she knows that the real reason for doing what is about to be done is race, age, sex, union or some other form of discrimination, the failure to either deny it or say that the employee is too emotional now and that it would be inappropriate to discuss the subject at the time, may be argued to lead to a presumption that it was not denied because it was a fact. A judge can even be requested to give an instruction to a jury at the end of the trial, before they begin their deliberation, that they may consider the failure to deny the accusation at the time. The failure to deny may be rebuttable, it may have a variety of explanations, but it is a tough position to be in, particularly if you do not have to be in it at all. The perception created by evidence admitted that the demoted employee accused her employer of discriminating against her because of her age without a denial from the manager can be deafening. If there was not a denial at the moment of accusation, the denial may perhaps come by memo later or even in the notification of the demotion, but the perception of the absence of a denial is admissible and a meaningful concern to plan for.

  • Documents can make or break you. Documents may or may not be admissible for a broad variety of reasons, but they can be used for impeachment, corroboration of testimony, refreshing recollections, and bone chilling cross-examinations. You control what you write, before you write it. Wasting the opportunity to think about what is about to be written is the equivalent of putting a gun in your opponent's hand.

I was placed in the interesting position many years ago of defending a long-standing client in an age discrimination case. I had reviewed the charges, investigatory files, internal memoranda, personnel files and everything else I could get my hands on. The employee however worked from his home rather than the company headquarters, and he reported to a territory district manager. Out of an overabundance of caution I asked if the district manager had any "evaluations" which had not been sent to the human resources office. (I actually knew that the employer did not use and never used performance evaluations.) To my surprise I was told that this manager had once tried to evaluate the employees who reported to him, using a form evaluation which he had once seen in a seminar packet of materials. I will always remember the last question on the evaluation form, "potential for promotion". The form was filled in "none, too old". What the district manager had intended by his comment was that to be promoted the plaintiff would necessarily be promoted into his job, and he was a long way from retirement. The plaintiff was fifty-seven and simply was not expected to be around long enough to take his boss's job. The comment was absolutely intended to honestly communicate the employees potential for promotion in the field operation, without any intent to discriminate. I preferred not to be required to explain that understanding the potential for damages and I settled the matter quickly and relatively cheaply. At times it can be difficult getting past a perception once it is formed.

A common issue affecting perceptions are employee performance evaluations. Usually they are not as dramatic as the anecdote (but true story) that I described above, but the every day issue faced by lawyers in defending discrimination claims is that supervisors and managers responsible for evaluations often do not want to be the deliverer of bad news-- they overrate employees rather than face the unpleasant task, so that when the time comes to make difficult decisions we are significantly undercut by the performance evaluations that we ourselves complete. We not only hand over the gun, but we place a few bullets in the magazine.

A seemingly innocent issue at first blush which often blossoms into a significant problem of credibility and perception is the undated document. It certainly is impossible to quantify, but the numbers would be shockingly high if we could accurately identify the numbers of cases where judges or juries question the authenticity or credibility of a document when it contains no date. At the very minimum, it casts a taint on the quality of work that the document author does when the subject of the case is the quality of the work of the employee or former employee that is the plaintiff in the lawsuit. Even a matter as simple as placing meetings in chronological order to layout a course of disciplinary meeting can become a hopeless muddle when dates are omitted. This is both valuable training for supervisors to avoid these issues and a matter to weigh when deciding to proceed in a litigation matter.

  • Consider the action you are about to take applying a "good faith" standard. In the process of making a decision regarding someone's employment, engage in some review attempting to apply a standard of "good faith". Juries in discrimination cases, unlike juries in any other type of dispute consider themselves expert in what they are being called upon to decide. Once they consider themselves expert, and able to evaluate any argument or defense that any party offers, jurors then often place themselves in the shoes of the plaintiff and consider whether they believe the plaintiff was treated in good faith. There are many little spoken prejudices of jurors in evaluation of an employers conduct, such as whether the plaintiff had adequate notice of the rules violated, was given adequate opportunity to cure deficiencies, and, of course, the certainty that any employer can afford the luxury of time to permit employees to have a "fair shot", as well as the certainty that an employer can afford to pay some amount in back pay or damages -- the "deep pocket" theory. Having a record that demonstrates "fairness" when reviewing facts in the decision making process in the first instance goes a long way to being able to shape perceptions at trial. Simple, calculated application of rules is simply not always sufficient to win over the hearts and minds of a jury -- even when you are correct on the facts.


It is, of course, cavalier to state that facts are of no consequence. However, your view of the facts are not the acid test. It is the judge's or jury's perception of the facts that determines the outcome of any case. A failure to recognize this, and to adapt to this teaching, lowers the percentage of cases where any litigant will be successful. Understanding how facts may be portrayed in trial and that not all facts are admissible helps every employer increase their chances and probability of success.

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