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 not.

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 her.

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 plaintiff.

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