Davis v. Espy
From January 13 through January 15, 1997 I tried the case of Joan
P.Davis v. David Espy, Secretary, U.S.Dept of Agriculture,
before an eight member jury in the U.S. District Court for the Northern
District of Georgia. Judge Marvin H. Shoob presided. James R. Schultz,
Assistant U.S. Attorney, represented the Government. The jury returned
a verdict against Ms. Davis.
After exhausting administrative remedies under the federal sector eeo
procedures, we filed suit on Ms. Davis' claims
in November 1993. Because of the procedure in the Northern District of
Georgia, we had previously conducted a non jury trial of the case before
Magistrate Judge John R. Strother, Jr. in February 1996. In mid 1996 Magistrate
Strother issued a Report and Findings recommending no finding of discrimination.
The Facts and Evidence
The complaint alleged that Ms. Joan P. Davis, a black female attorney,
had been subjected to improper criticism and intensive criticism of her
work, and ultimately discharged from her position as a GS-12 Attorney with
the Atlanta Regional Counsel Office of the U.S. Department of Agriculture
because of her race and exercise of protected activities. Ms. Davis, a
graduate of Duquense University Law School who had clerked for a
Federal District Court Judge for three years, had successfully held several
jobs as an attorney when she was hired in March 1990 by the Atlanta Regional
Counsel of the U.S. Dept. of Agriculture. Joan was the first black attorney
ever hired by that office, which had 15 attorneys when she arrived. The
support staff, in contrast, was primarily black, although their supervisors
were white. In December 1990, her supervisor prepared an "Probationary
or Trial Report" evaluation on Joan which rated her performance as
fully successful and recommended that she be retained in employment, observing
that she "fully successful in the production of good quality legal
work." The report noted a weakness in her deportment, stating that
she had been discourteous at times to staff.
In January 1991, Donald Kronenberger, Regional Counsel for the U.S.
Department of Agriculture, recommended to his headquarters that Joan be
terminated during her probationary period because she shown a deficient
attitude. His supporting documentation cited an incident that occurred
in January when Joan allegedly had vocally challenged a case assignment.
Joan contended that the real motivation behind the termination was her
efforts to give her Secretary, Barbara Walton, a favorable performance
evaluation in late December 1990. In any event, Department of Agriculture
headquarters rejected the termination recommendation and advised Mr. Kronenberger
to give Ms. Davis a written counseling instead. On March 5, 1991, Mr. Kronenberger
gave Ms. Davis a memo of counseling. Ms. Davis then toned down her conduct,
and thereafter her demeanor was no longer a problem.
By memo dated April 17, 1991, Mr. Kronenbeger wrote a memo to headquarters
in which he stated that problems with Ms. Davis' work performance had surfaced.
Ms. Davis was placed on a performance improvement plan from August 2, through
October 31, 1991. On January 27, 1992, the Department of Agriculture proposed
her removal for unsatisfactory work performance during her pip. Ms. Davis
disputed that her work was unsatisfactory, asserting that the performance
standards were too vague, were being improperly applied and that the cited
deficiencies in her work were either not her fault, not deficiencies or
inconsequential in nature. The Department of Agriculture sustained the
removal and Ms. Davis was terminated effective March 23, 1992.
No attorney in the office had previously been placed on a pip or terminated
for unsatisfactory work performance. Subsequent to Ms. Davis, two attorneys
were placed on pips for deficient work performance - one had worked for
the Department over 20 years; the second had been there for eight years.
Four black secretaries testified that they had been subjected to racial
discrimination in denial of training and promotional opportunities and
overall disparate work treatment and that Ms. Davis' work had been unjustly
subjected to intensive scrutiny.
The Jury and Verdict
A jury of 7 whites and 1 black was selected in this case. The panel
of 21 from which the panel was selected contained only one black. Most
panel members lived outside the perimeter (the Interstate highway that
circles Atlanta) and most were managers or owners of small businesses.
The jury deliberated for about an hour. Their initial secret ballot
vote was seven to one in favor of the defense. They then agreed unanimously
to enter a defense verdict.
Ms. Davis and I spoke with three jury members after the trial. They
advised us that they found that Ms. Davis was discharged for her unacceptable
demeanor and that this was totally unrelated to her race. They stated that
while they believed the secretaries had been discriminated, Ms. Davis had
Assessments and Observations
By and large the evidence at trial went our way. Ms. Davis testified
calmly, professionally and convincingly. The government did not call any
of the managers or co workers with whom she allegedly had confrontations,
relying instead on hearsay testimony of Mr. Kronenberger on what they had
told him had happened. Judge Shoob permitted this testimony over my hearsay
objection as it was pertinent to Mr. Kronenberger's state of mind when
he discharged Joan. He instructed the jury that it should be considered
for that purpose only.
I believe that Ms. Davis has a very compelling case that discrimination
and retaliation motivated her discharge. While she at times can be very
direct and assertive, perhaps even abrasive, scrutiny of the manner in
which her performance was evaluated during the PIP and examination of the
deficiencies cited in the removal proposal establish that deficient performance
was a pretextual basis for removal. After all, when management had evaluated
her performance in December 1990 it concluded she was fully satisfactory
and recommended that she be retained. Besides, other employees who had
significant, if not more severe performance problems, were not placed on
pips before Ms. Davis even though they had been employed far longer than
The case then reverts to whether removal of a protected class employee
for having "an attitude" is retaliatory or discriminatory. My
research on this issue found many cases where individuals had been so disruptive
and uncooperative in asserting perceptions of discrimination, that their
discharges were found proper. I believe, however, that the facts in this
case are different. The Defendant concedes that the March 1991 memo of
counseling was the first written communication Joan received on her attitude
problem. Joan testified that no one had spoken with her orally prior to
the memo about her demeanor and no evidence to the contrary has been presented.
Mr. Kronenberger also admitted that after she received the memo her demeanor
improved so that it was no longer a significant problem. In the performance
evaluation she was given at the time of her termination, Joan's performance
on the element of interpersonal relations was rated "fully successful."
To my mind, when viewed as a whole, the evidence leads strongly to the
conclusion that Joan's race was a motivating factor in the discharge and
that her opposition to discriminatory practices was the controlling factor.
I acknowledge that it's hard to be objective when you're an advocate.
The single most determining factor in the verdict in this case was the
composition of the jury. I believe that their verdict reflects a powerful
white backlash against discrimination claims. A jury of African Americans
would have decided the case in Ms. Davis' favor. As any experienced trial
lawyer will relate, however, you cannot control the composition of a jury,
nor predict what a jury will do in any particular case. When Title VII
was first enacted in 1964 it provided that judges, not juries, would decide
employment discrimination lawsuits filed under it. The rationale was that
black individuals would be unlikely to receive a fair trial in the South.
In 1991 the law was changed to provide jury trials in employment discrimination
claims because individual prejudices were no longer considered a controlling
factor and many argued that judges were too management orientated.
This case illustrates that having a jury decide discrimination claims is
just as likely to be a factor in favor of the defense as for the
We'll probably file for judgment as a matter or law or a new trial.
Any chances of securing substantive relief for Joan Davis, however, are
extremely remote at this time.
This case dramatically illustrates several factors about litigation:
|Litigation is fraught with great uncertainty|
|Juries are very unpredictable|
|The particular facts are frequently not as important as the jury's
perceptions of the personalities and issues involved|
|Sometimes strong claims are not successful|
|The skills of the attorneys are not as important as the facts and the
perspectives of the decision maker in determining the outcome of a case|
|Juries can be a factor in favor of the defense as in favor of the plaintiff|
On January 30, 1997 we filed a Motion for Judgment as a Matter of Law or in the Alternative, Motion for a New Trial.
This pleading asks the trial judge to overrule the jury and enter judgement in the Plaintiff's favor, or to grant a new trial. These motions are rarely granted, since judges are reluctant to interfere with the jury process.