Tagged: burden of production

“This Article develops the missing theoretical foundation for systemic disparate treatment law and provides a roadmap for resolving questions about the proper application of Teamsters. It begins by examining the historical roots of the systemic disparate treatment theory. It demonstrates that, at its core, the Teamsters doctrine — like much of employment discrimination doctrine — is simply an evidentiary device for allocating and shifting burdens of proof among the parties. More specifically, it is a device for determining how the burdens of production and persuasion on the element of discriminatory intent should be allocated at an identifiable point during the course of a systemic discrimination case.”

Source: Jason R. Bent. The Telltale Sign of Discrimination: Probabilities, Information Asymmetries and the Systemic Disparate Treatment Theory, 44 U. Mich. J.L. Reform 797, 800. Summary 2011.

“Although intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’”

Source: Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000).

“That the burden of persuasion never shifts is due to the relatively weak showing required of a plaintiff in order to make out a prima facie case under McDonnell Douglas.” — Jason R. Bent

Where a higher initial showing is made by the plaintiff, the “strong medicine” of a shift in the burden of persuasion can be justified. See Price Waterhouse, 490 U.S. at 262 (O’Connor, J., concurring).

“[O]ur decisions in Teamsters and Franks do indicate a recognition that presumptions shifting the burden of persuasion based on evidentiary probabilities and the policies behind the statute are not alien to our Title VII jurisprudence.” See Price Waterhouse, 490 U.S. at 267 (O’Connor, J., concurring)

“The term ‘burden of proof’ is used to refer to two different concepts. Until the distinction was defined by James Bradley Thayer in 1898, the reasoning of the decisions on this point was hopelessly confused. The two distinct concepts may be referred to as (1) the risk of nonpersuasion, sometimes called the ‘burden of persuasion,’ and (2) the duty of producing evidence (or burden of production), sometimes called the ‘burden of going forward with the evidence.”’

Based on the pyramid of evidence I presented to support all of my claims over the last four years, William Morris and their counsel never met their heightened burden of persuasion and production. They have tried to treat the historical and statistical evidence demonstrating William Morris’ 116-year pattern and practice of discriminating against African Americans as irrelevant and they never produced any of the relevant documents (e.g. resumes, my evaluations, the e-mails & compact discs that were received from EED, etc.) that would have supported their defense. They could not produce these documents because it would only allow me to demonstrate that they are not being truthful and that their arguments are pretextual.

In support of my pre-hiring individual disparate treatment claim, the resumes would have demonstrated that I was considerably more qualified than my similarly situated white/”Jewish” counterparts in the Agent Trainee program and even some recently promoted Agents, although William Morris argued the opposite. In support of my post-hiring individual disparate treatment claims, the evaluations would have demonstrated many things, including that highly subjective, filled with lies and tainted with bias (e.g. Jason Hodes, Chris Walsh, Pat Galloway, Jeff Meade…). Even former COO  Cara Stein stated during our second meeting that after looking at my file, that overall, my evaluations were not bad — especially to be given such a high frequency of dead end assignments and Sisyphean tasks. How could any law firm expect to win an employment discrimination case without producing these basic documents?

Re “Exhibit 31”: The documents I uncovered from Rowe’s case file demonstrate that Leonard Rowe’s forRmer attorneys at SNR (now known as Dentons LLP) and Loeb & Loeb LLP, as well as Weil Gotshal & Manges LLP, were conspiring with each other and engaging in fraud. For reasons unknown at the moment, SNR at the last minute, allowed the Defendants’ to see the e-mail results first while still making their clients pay $200,000.00 for the search. That was a clear violation of Magistrate Francis’ Order. Loeb & Loeb LLP also deleted e-mails before SNR got the opportunity to see them. This was another violation of Francis’ Order. When finally produced, the e-mails that Loeb & Loeb LLP received from Electronic Evidence Discovery — the company hired by SNR to search the e-mails of William Morris and Creative Artists Agency — will confirm whether or not the five music Agents’ e-mails were actually searched, as [mis]represented to Robert P. Patterson. This further proves the lies of the SNR attorneys, in which one stated in his 2012 Declaration, that EED never produced e-mails, they paid $200,000.00 only for the e-mail search term results!! GTFOH!!

SNR also told their clients in 2002 that “no derogatory terms” were found after EED’s search and even stated in their 2012 Declaration, yet they have never stated that “Exhibit 31” is a fraudulent document. They also can’t deny that they faxed “Exhibit 31” to the Willie Gary Law Firm on October 15, 2002 after Leonard Rowe inadvertently discovered it on the desk of his then attorney, Raymond Heslin. There’s so much more that can be proven once those documents are produced…Additionally, the underlying e-mails to “Exhibit 31” must also be produced. Arbitrator Gregory compelled them to produce the documents, but William Morris and Loeb & Loeb LLP refused. A contemporary search is also necessary since a high number of their predominately all White/”Jewish”employees’ e-mails contained racially derogatory terms “nigger,” “nigga,” “Uncle Tom,”and “coon.”

For ANY finder of fact to uphold William Morris’ arbitration agreements and/or grant summary judgment in William Morris/Loeb & Loeb LLP’s favor WITHOUT LIBERAL DISCOVERY AND AN ORAL HEARING is demonstrating a clear MANIFEST DISREGARD OF THE LAW and is engaging in FRAUD, in order to deprive me of my constitutional and statutory rights under the color of law..

Source: Fleming James, Jr. et al., Civil Procedure §7.12, at 414 (5th ed. 2001).