Free Trial Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1690-WDM-MJW CONAIL CROSS, Plaintiff, v. THE HOME DEPOT, Defendant ________________________________________________________________________ DEFENDANT'S TRIAL BRIEF FOR TRIAL ON REMAND ________________________________________________________________________ Defendant The Home Depot ("Home Depot") submits this Trial Brief for the jury trial on December 5, 2005. INTRODUCTION Plaintiff Conail Cross was an Assistant Store Manager ("ASM") for Home Depot in Colorado Springs from 1995 to 2001. He claims he was denied promotions from ASM to Store Manager because he is African American in violation of 42 U.S.C. § 1981. Based on rulings from the Tenth Circuit and this Court, the relevant time period is from August 27, 1997 to August 27, 1999. During that time, Cross claims that he should have received one of 18 positions in Colorado. However, Cross was a mediocre ASM whose performance did not justify him being promoted to store manager. He simply was not the most qualified candidate for any of these Store Manager positions. Home Depot submits this Trial Brief anticipating a motion for directed verdict, evidentiary questions, and legal issues related to jury instructions.

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BACKGROUND Home Depot operates retail stores in Colorado and throughout the country. Each store is a substantial enterprise, employing between 150 and 250 people, and generating gross revenues per year of $25-45 million. The Store Manager is in charge of all aspects of the store. Each store has 5-7 ASMs who report to the Store Manager. They, in turn, supervise 2-4 departments run by Department Heads. Home Depot organizes its stores into groups of 5-7 called districts, which, in turn, are grouped together into regions. Each district has a District Manager who, among other tasks, selects Store Managers with assistance and input from Store Managers. Thus, the primary decision makers in this case are District Mangers who rely on input and recommendations from Store Managers. Home Depot fills Store Manager positions either by transferring existing Store Managers or by promoting ASMs. During the relevant period, Home Depot used two different systems for promoting ASMs to Store Manager. Before January 1999, Home Depot used a system called the "Ready List" (also known as the "Hit List"). Under that system, Store Managers in consultation with their District Managers placed names of ASMs on a list of people ready to become Store Managers, or who would likely be ready soon. Beginning in late 1998, Home Depot adopted a new system for promoting ASMs to Store Manager known as the 9-box grid. Under the 9-box grid, Home Depot rated the promotability of each ASM and then interviewed the top three candidates. ASMs were given semi-annual and annual performance reviews in which they received ratings on a scale of 1 to 5, with 5 being the highest. A rating of `3' or "meets expectations"

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was considered medium to mediocre performance in a particular position. Before an ASM was considered for promotion, he or she needed to receive a rating of `4.' No ASMs were promoted to Store Manager in Colorado who had not previously received ratings of `4' as ASMs. Cross transferred to Colorado as an ASM in 1995 in Store 1504 in Colorado Springs. He did not receive a review rating of `4' until his August 1998 mid-year review and his year end 1998 review, given in February 1999. In early 1999, Cross transferred to a new store, 1510, with a new Store Manager, Penny Allen. Unfortunately, Cross did not perform well. In July 1999, based primarily on input from his Store Manager, Penny Allen, and his District Manager, Chuck Lempereur, Cross was downgraded to a non-promotable box on the 9-box grid. In August 1999, he once again received a `3' in his mid-year performance evaluation, and again for his year end 1999 evaluation. Cross has identified 18 Store Manager positions in Colorado that were filled between August 1997 and August 1999. He alleges that he was denied those positions because he is African American. Seven of these 18 positions were filled by transfers of existing Store Managers, who had already proven themselves as Store Managers. Home Depot filled only 11 of the 18 positions by promoting ASMs. Of those 11, only three were within Cross' district, and only two occurred after Cross had temporarily received a review rating of `4.' Under Home Depot's promotion process, Cross was not the most qualified for either of those two positions. A chart listing all of the positions at issue, the districts, the people who filled the positions, and their ratings is attached as Exhibit A. The chart is based on the positions Cross has identified. In February 2000, Cross filed an EEOC charge. From that point forward he was no longer interested in becoming a Store Manager at Home Depot. In May 2000, Cross began a

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series of medical leaves from which he did not return. He was ultimately terminated in January 2003 when he could not return to work. DISCUSSION I. HOME DEPOT ANTICIPATES A MOTION FOR A DIRECTED VERDICT, DISMISSING CROSS' CLAIM. A directed verdict is appropriate where "there is no legally sufficient evidentiary basis for a reasonable jury to find for the [plaintiff]." Fed. R. Civ. P. 50(a); Pendleton v. Conoco, Inc., 23 F.3d 281, 286 (10th Cir. 1994). The standards for evaluating § 1981 claims are identical to those used for other discrimination claims. Kendrick v. Penske Transp. Serv., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). A plaintiff alleging employment discrimination may prove intentional discrimination either directly or indirectly. Under the direct approach, a plaintiff may present direct evidence that race was a determining factor in the decision. Id. Alternatively, under the familiar analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), a plaintiff may first present a prima facie case by establishing that he was qualified for a promotion, but that the promotion was given to a person outside of his protected category. See Kendrick at 1226-28. Then, if the employer articulates legitimate, non-discriminatory reasons for its promotion decision, the plaintiff bears the ultimate burden of showing that the stated reasons are a pretext for unlawful discrimination. Id. In this case, Cross has no direct evidence of discrimination. He has no evidence that any of five separate Store Managers who rated his performance or four separate District Managers who did not promote him were biased against him because he's African American. He alleges

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only that he was qualified to be promoted and that white employees received Store Manager positions instead of him. Home Depot's legitimate, non-discriminatory reasons for deciding not to promote Cross to Store Manager were that he was not performing at a high enough level and that it placed more qualified individuals into the jobs, either by transferring performing Store Managers or by promoting more qualified ASMs. An employer is always permitted to promote the candidate it perceives to be the most qualified. Jones v. Eaton Corp., 2002 WL 1360380 (10th Cir. 2002); Colon-Sanchez v. Marsh, 733 F.2d 78 (10th Cir. 1984). Here, evidence supporting Home Depot's non-discriminatory reasons will come in two areas: (1) Cross' weak performance, and (2) Home Depot's processes for selecting Store Managers. A variety of evidence will show Cross' weak performance, including Cross' written performance reviews, his written warnings for policy violations, and testimony from people who worked with Cross and participated in his reviews. Cross has no evidence to rebut his weak performance, except (1) his own self assessment, and (2) his performance rating of `4.' As a matter of law, Cross' self assessment is not sufficient to overcome the overwhelming, and undisputed evidence of his mediocre performance. Furr v. Seagate Technology, Inc., 82 F.3d 980, 988 (10th Cir. 1996) ("It is the manager's perception of the employee's performance that is relevant, not plaintiff's subjective evaluation of his own relative performance"). Similarly, Cross' rating of `4' for one year is not sufficient to overcome Home Depot's legitimate, nondiscriminatory reasons for not promoting him. Cross had a rating of `4' from August of 1998 to August of 1999. During that period, there were only two promotions in his District. Both of the

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people promoted also had ratings of `4,' and they were both more qualified that Cross. Indeed, Cross admits that he has not facts indicating he was more qualified than these two individuals. Home Depot will also present substantial evidence about its promotion processes. Under the Ready List process, decisions were made based on legitimate, non-discriminatory criteria. An ASM needed to achieve the performance level of `4' before he was considered for promotion. Cross had not achieved that level for any of the Ready List promotions, and the evidence at trial will be that all of the ASMs promoted under that system were more qualified than Cross. Cross has no facts rebutting the superior qualifications of those selected. Under the 9-box grid system, the evidence will be similarly undisputed. During the period in question, in Cross' district, under the 9-box system, Home Depot promoted three ASMs: Matt Story, Mike Hill,1 and Jim Martin.2 In each case, the 9-box system worked. Based on the group evaluations, the ASMs in Cross' district were rated for promotability and the top three candidates were interviewed. For the Matt Story promotion, Cross was in the top three, and he was interviewed. He was not selected based on his interview. For the Mike Hill promotion, Cross was rated eighth, and he was not interviewed. For the Jim Martin promotion, Cross was rated even lower, and, once again, he was not interviewed. Cross has no facts to contest his ratings or the operations of the process. II. KEY FACTUAL ISSUES HAVE BEEN PREVIOUSLY DETERMINED.

At the first trial, Cross alleged he was denied promotions because of his race in violation of Title VII. The relevant time period was April 15, 1999, forward. After one day of trial, based
Mike Hill may not be properly in the comparitor group because Cross conceded at the first trial that he could not prove any discrimination in Hill's promotion.
2 1

Jim Martin may actually be after the relevant time period as he became the Store Manager in September 1999. However, Cross has included him on his list of comparitors and he is addressed here.

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on the testimony from his own witnesses, Cross stipulated to the Court that he could not prove race discrimination, and he requested that his Title VII claim be dismissed with prejudice. The Court granted that motion under either Rule 41 (voluntary dismissal) or Rule 50 (directed verdict), based on the facts at trial. (Order attached as Exhibit B.) In July 2005, this Court ruled that Cross is not precluded from presenting evidence of discriminatory promotions between August 27, 1997 and August 27, 1999. Without disputing that ruling, Home Depot will request an instruction that Home Depot did not discriminate against Cross based on his race in two specific events during that period: the Mike Hill promotion and the July 30, 1999 downgrade. First, in contrast to the Arizona v. California, 530 U.S. 392, 414 (2000) and Amadeo v. Principal Mutual Life Ins. Co., 290 F.3d 1152, 1159 (9th Cir. 2002), cases on which the Court relied in its July 2005 Order concerning the scope of this trial, some of the factual questions at issue in this case actually did go to trial, were presented to a jury, and were the subject of a specific finding by the Court. That is, they were adjudicated. Cross stipulated that his discrimination claim had been conclusively defeated based on the testimony to the jury of his own witness. Cross offered to either dismiss his case with prejudice or to have the Court direct a verdict against him pursuant to Rule 50. The Court endorsed Cross' factual concession by entering an Order reciting the key fact and dismissing the case under either Rule 41 or Rule 50 (directed verdict). Thus, although there may not have been an adjudication as to all possible relevant events between August 1997 and August 1999, there was, at the very least, an adjudication that the April 27, 1999, Mike Hill promotion was not discriminatory.

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Second, again in contrast to the Arizona and Amadeo cases, where a party enters into a factual stipulation, that stipulation is a judicial admission, binding in subsequent proceedings. Lyles v. American Hoist & Derrick Co., 614 F.2d 691, 694 (10th Cir. 1980). Here, Cross stipulated that the facts presented at trial showed that he was not qualified for the Mike Hill promotion. That stipulation is binding, and Home Depot will seek jury instructions to that effect. Because the July 30, 1999, decision to downgrade Cross was also at issue in the previous trial, the previous trial must have also adjudicated that the July 30, 1999 downgrade was not discriminatory. And, Cross' stipulation that the evidence did not support any claim for discrimination, coupled with the fact that the July 30, 1999 downgrade was at issue, means that the stipulation necessarily included a factual concession that he could not prove discrimination arising from the July 30 downgrade. Thus, once again, either by stipulation or prior adjudication, the July 30 downgrade was not discriminatory. Again, Home Depot will seek a jury instruction to that effect. III. HOME DEPOT WILL SEEK TO EXCLUDE CERTAIN EVIDENCE A. Home Depot Will Object to Unrelated Discrimination Complaints.

Home Depot anticipates that Cross will offer testimony about other employees who have complained of discrimination by Home Depot. These other complaints involve claims of sexual harassment, gender discrimination and national origin discrimination and complaints about decision-makers who were not Cross' supervisors and were not involved in the decision at issue in this case. They should be excluded under Rule 404(b).

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Numerous courts have found that allegations of one type of discrimination are not relevant to prove allegations of a different type of discrimination.3 Here, Plaintiff attempts to offer testimony from Hector Hernandez of his national origin discrimination claims against Home Depot, by Sheri Gibson McCune of her gender discrimination and harassment claims against Home Depot, and of other, unrelated, claims for harassment and discrimination. No such evidence should be admitted. B. Home Depot Will Object to Improper Opinion Testimony

Under Rule 701 Fed. R. Evid., a lay witnesses may testify in the form of opinions or inferences only if those opinions or inferences are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witnesses' testimony or to a determination of a fact in issue. Numerous courts have held that lay witness opinion testimony on the ultimate issue of discrimination is inadmissible under Rule 701. In Gross v. Burggraf Construction Co., 53 F.3d 1531, 1544 (10th Cir. 1995), the Tenth Circuit held that a lay opinion of a co-worker, stating that he believed the sexual harassment defendant had a problem with women who were not young and thin, was inadmissible because it was not based on direct evidence, personally observed. In Hester v. BIC Corporation, 225 F.3d 178 (2d Cir. 2000), the plaintiff alleged that she was demoted based upon her race in violation of Title VII. The Second Circuit reversed a jury
See, e.g., Morgan v. Federal Home Loan Mortgage Corp., 197 F.R.D. 12 (D.D.C. 2000) (only discrimination or retaliation of the same character and type as that alleged is probative); Kun v. Finnegan, Henderson, Farabow, Garrett & Dunner, 949 F. Supp.13, 19 (D.D.C.1996) (allegations of race discrimination not relevant to a claim of national origin discrimination); Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350, 357-58 (5th Cir.1995) (evidence of race and sex discrimination is inadmissible in disability discrimination case); Rivera v. Baccarat, Inc.,1997 WL 777887 (S.D.N.Y.,1997) (evidence that other employees may have been victims of gender bias or sexual harassment has no bearing on the plaintiff's claims of national origin and age discrimination); Lanni v. State of New Jersey, 177 F.R.D. 295 ( D.N.J.,1998) (testimony that defendant discriminated against female and Hispanic employees was irrelevant and inadmissible in disability discrimination suit.)
3

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verdict because the trial court had allowed opinions from co-workers who where not involved in the decision process that they believed the defendant had discriminated against plaintiff because of her race. Similarly, in Mitroff v. Xomox Corporation, 797 F.2d 271 (6th Cir. 1986) the court of appeals held that the admission of a personnel manager on the ultimate issue of discrimination was improper lay opinion under Rule 701: [T]he question of whether age discrimination existed or not was the ultimate issue, not just a fact in issue. Although testimony which embraces an ultimate issue is not objectionable, (Fed. R. Evid.704), seldom will be the case when a lay opinion on an ultimate issue will meet the test of being helpful to the trier of fact since the jury's opinion is as good as the witnesses' and the witness turns into little more than an `oath helper.' Here, Mr. Cross will likely attempt to offer lay opinion testimony about Home Depot and Chuck Lempereur making decisions based on race. Under Gross, this testimony should not be admitted because it is not direct evidence based on personal observation. Rather, it is improper lay opinion under Rule 701 because it is not rationally based on the witnesses' perceptions, it goes to the ultimate issues in the case, and it will not be helpful to the jury. C. Home Depot Will Object to Evidence of Stray Remarks

The Tenth Circuit has held that in order to support an inference of discrimination, allegedly discriminatory remarks (1) must be made by a decision maker; and (2) must have a nexus to the allegedly adverse employment action. McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998); Cone v. Longmont United Hospital Association, 14 F.3d 526 (10th Cir. 1994). Evidence of racial comments is not probative of any issue unless it is linked to relevant personnel actions. Figures v. Board of Pub. Utils., 967 F.2d 357, 360-361 (10th Cir. 1992) (holding racial comments Anot probative of any issue unless [the plaintiff] could link those comments to personnel actions of hiring, firing and promoting, justifying Rule 403 exclusion). -10-

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Home Depot anticipates that Cross will offer testimony from Sheri Gibson McCune that Store Manager Penny Allen inquired about whether she could make speaking English a prerequisite for hiring at Home Depot and that District Manager Harry Alfred made a comment that an Hispanic manager would be good for Pueblo. McCune also states that District Manager Chuck Lempereur made a comment against hiring quotas and about high crime neighborhoods. Such remarks, and possibly others, are not probative and Home Depot will seek to exclude any and all comments that do not have a nexus with the decisions in this case. See Jiminez v. Mary Washington College, 57 F.3d 369 (4th Cir. 1995) (statement that college should hire professor who speaks English was not probative of discriminatory animus); Daniels v. Westinghouse Electric Corp., 772 F. Supp.1278, 1283 (N.D.Ga. 1990) (holding vague remarks about quotas not probative of discrimination); Saldana v. Citibank, Federal Savings Bank, 1996 WL 332451 (N.D.Ill. 1996) (holding remark that neighborhood was not the same as it used to be was not probative of race discrimination); Kun v. Finnegan, Henderson, Farabow, Garrett & Dunner, 949 F. Supp.13, 19 (D.D.C.1996) (allegations of race discrimination are not relevant to a claim of national origin discrimination). Dated: November 28, 2005.

By s/Daniel E. Friesen Daniel E. Friesen HALE FRIESEN LLP 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6000 Facsimile: (720) 904-6006 Email:[email protected] Attorneys for Defendant The Home Depot -11-

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CERTIFICATE OF SERVICE I hereby certify that on November 28, 2005, I electronically filed the foregoing DEFENDANT'S TRIAL BRIEF FOR TRIAL ON REMAND with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email address: William R. Hess, Esq. Email: [email protected]

By s/Patricia Foos Patricia Foos HALE FRIESEN, LLP 1430 Wynkoop Street, Suite 300 Denver, CO 80202 Telephone: (720) 904-6000 Facsimile: (720) 904-6006 Email: [email protected]

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