Tagged: burden of proof

“[E]vidence of employer dishonesty is not required by Title VII itself. The statute requires only that a plaintiff demonstrate that her employer’s decision was taken ‘because of race, sex or some other prohibited characteristic.’ In spite of using some language suggesting that dishonesty is an element of a discrimination claim, the Supreme Court has never held that evidence of mendacity is the only form of proof available to a Title VII plaintiff. In fact, in one of its more recent opinions construing Title VII, the Court noted that evidence suggesting a defendant’s explanation for an employment practice is ‘unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination.’ As the Court recognized, a plaintiff does not have to prove that her employer lied in order to raise a reasonable inference that discrimination played a role in the decision.”

Source: William R. Corbett, Unmasking A Pretext For Res Ipsa Loquittur: A Proposal To Let Employment Discrimination Speak For Itself. 62 Am. U. L. Rev. 447, 451 2013.

“A plaintiff may present evidence about the make-up of the employer’s workforce that suggests an unwillingness to hire minorities or women or a tendency to segregate them into lower-status jobs.”

See, e.g., Simms v. Oklahoma, 165 F.3d 1321, 1328 (10th Cir. 1999); Colon-Sanchez v. Marsh, 733 F.2d 78, 81 (10th Cir. 1984); Aracne v. Lucky Stores Inc., No. C81394RPA, 1983 WL 495, at *4 (N.D. Cal. Mar. 4, 1983) (stating that the plaintiff provided evidence that the employer had not hired any new women to work in his plant from 1974 to 1983).

Source: William R. Corbett, Unmasking A Pretext For Res Ipsa Loquittur: A Proposal To Let Employment Discrimination Speak For Itself. 62 Am. U. L. Rev. 447, 451 2013.

“Should individual employment discrimination plaintiffs have the opportunity to use the Teamsters method of proof if they can produce convincing statistical evidence of discrimination, or should they be limited to the weaker McDonnell Douglas framework? Applying the foregoing analysis, individual plaintiffs should be permitted to use the Teamsters framework in appropriate cases, even though the federal appellate courts have generally held to the contrary. The only difference between an individual private discrimination claim involving statistical proof of a disparity and a class action discrimination claim involving statistical evidence is that in a class action the plaintiffs have satisfied the procedural requirements for class certification pursuant to Fed. R. Civ. P. 23. In the individual private case, the individual has evidence of a systemicviolation but is litigating alone or with too few co-plaintiffs to satisfy the numerosity requirement.”

Bent ends the section by saying:

Finally, the evidentiary signal, (prob(Y§X)) as compared to (prob(Y§~X)), offered by a single plaintiff at Phase I can be just as strong as the evidentiary signal offered by class plaintiffs. In fact, there is no reason that an individual’s statistical evidence need be any different at all from what could be offered in a class action. It is possible, for example, that an individual plaintiff in a sex discrimination case could obtain statistical evidence sufficient to support a class action for failure to promote on the basis of sex, but that all of her fellow female employees decline to sue their employer, for reasons personal to them. The Phase I statistical evidence in the individual case would be identical to the Phase I evidence that could have been offered if it were a class action.

If an individual plaintiff can make a strong showing that (prob(Y§X)) is likely much higher than (prob(Y§~X)) using statistical evidence, just as in a class action systemic disparate treatment case, then there is no principled reason why that individual should not obtain the same benefit of a shift in the burden of persuasion, rather than being relegated to the less powerful McDonnell Douglas scheme. Requiring individual plaintiffs to proceed under the McDonnell Douglas framework unjustifiably forces plaintiff to bear the burden of persuasion at all times, despite the strength of the statistical evidentiary signal. As shown by the analysis developed above, there is no policy reason to preclude individual plaintiffs from using the systemic disparate treatment theory.

This is exactly what the finder of facts are trying to do in my case — treat the statistical evidence as irrelevant. This is because it undeniably establishes, on its own, an inference of William Morris’ discriminatory intent, which predates and continues after my employment, and thus supports, shifting both the burden of persuasion and production onto the Defendants.

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, 853-854. Summary 2011.

 

“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).

“[Marcus Isaiah Washington] satisfies the prima facie test, with impressive qualifications (University of Miami accelerated graduation and a master’s degree by age 23) and some initial successes in the industry before working for [the William Morris Agency].” — Arbitrator David L. Gregory’s Partial Final Award, December 17, 2013. pg. 8

“In sum, Washington has presented and can present no factual basis to support any of his claims. Based largely on vast conspiracy theories, discredited allegations of institutional racism and his own animus, his claims are not only utterly implausible, they are such that no reasonable finder of fact could rule in his favor. Accordingly, under the applicable and governing law, they must be dismissed.” — Michael P. Zweig, November 6, 2012

If I did not present any factual basis to support any of my claims, then please explain to me how David L. Gregory — an arbitrator for the American Arbitration Association and professor in employment & labor law for 31 years — determined in his Partial Final Award on December 17, 2013 that William Morris Endeavor Entertainment discriminated against because of my race in violation of federal, state and local law prohibiting discrimination in employment. What’s crazy to me is that if the AAA disqualified Gregory due to a number of reasons indicating gross arbitrator misconduct after he issued his Award, why didn’t they remove him entirely from arbitrating any further cases on their behalf, particularly those related to employment discrimination and civil rights? It’s all a sham because the AAA served as one of the sponsors for St. John’s University (where Gregory teaches) and NYU’s recent symposium on the 50th Anniversary of the Civil Rights Act of 1964.