Don O. Smith v. Superior Tool & Die & Machine Co.

IN THE COURT OF APPEALS, TENTH APPELLATE DISTRICT FRANKLIN COUNTY, OHIO

DON O. SMITH, Plaintiff-Appellant,

vs.

SUPERIOR TOOL & DIE & MACHINE CO.,  Defendant-Appellee.

CASE NO.: 13AP-690

ON APPEAL FROM THE

FRANKLIN COUNTY COURT

OF COMMON PLEAS

CASE NO. 11CV-15815

BRIEF OF

AMICI CURIAE

OHIO EMPLOYMENT LAWYERS ASSOCIATION AND OHIO NOW EDUCATION AND LEGAL DEFENSE FUND

IN SUPPORT OF APPELLANT DON O. SMITH

Gregory R. Mansell Greg.Mansell@ohioemploymentlawyer.com

Mansell Law LLC, 1457 South High Street, Columbus, OH 43207, (614) 610-4134

Counsel for Plaintiff-Appellant

Mark Knueve, maknueve@vorys.com

John Kulewicz, jjkulewicz@vorys.com

Natalie McLaughlin, nmmclaughlin@vorys.com

Vorys, Sater, Seymour & Pease, LLP

52 E. Gay St., PO Box 1008, Columbus, OH 43216-1008, (614) 464-5634/Fax: (614) 719-4812

Frederick M. Gittes (0031444), fgittes@gitteslaw.com

Jeffrey P. Vardaro (0081819), jvardaro@gitteslaw.com

The Gittes Law Group

723 Oak St.. Columbus, OH 43205, (614)222-4735, Fax: (614) 221-9655

Counsel for Amici Curiae

Ohio Employment Lawyers Association & Ohio NOW Education and Legal Defense Fund

Jan E. Hensel, jan.hensel@dinsmore.com

Anjali Chavan, anjali.chavan@dinsmore.com

Dinsmore & Shohl LLP

191 W. Nationwide; Suite 300, Columbus, OH 43215, Phone: (614) 227-4267, Fax: (614) 628-6890

Counsel for Defendant-Appellee

page i.

TABLE OF CONTENTS

Table of Contents …………………………………………………………………………. i

Table of Authorities ……………………………………………………………………. iii

Statement of Issues Presented for Review ……………………………………… iv

I. STATEMENT OF INTEREST ……………………………………………… 1

II. INTRODUCTION AND SUMMARY OF ARGUMENT ………… 3

III. STATEMENT OF FACTS AND THE CASE …………………………. 5

IV. ARGUMENT ……………………………………………………………………… 9

First Issue Presented for Review:

A Trial Judge May Not Substitute His Own View for the Jury’s

Contrary View of an Employer’s Reasons for Its Actions When

the Record Contains Probative Evidence that Race Was a

Motivating Factor in the Actions, that the Actions Would Not

Have Occurred in the Absence of Racial Bias, and that the

Employer’s Actions Were Retaliatory ……………………………………. 9

A. The Trial Court Chose to Disbelieve the Ample Evidence

Supporting the Jury’s Rejection of Superior’s Claim that

Smith Would Have Been Laid Off Regardless of Its

Discriminatory Actions ………………………………………………… 9

B. The Trial Court Also Disregarded the Evidence

Underlying the Jury’s Rejection of Superior’s Purported

Reason for Failing to Recall Smith from His Layoff ………. 12

page ii.

C. The Trial Court’s Decision Here Is Emblematic of A

Trend Toward Impermissible Judicial Fact-Finding ……….. 15

1. Judges Must Not Apply a “Business Judgment”

Rule in Discrimination Cases, Since It Amounts

to a Rubber Stamp on Practically Any

Employment Decision ………………………………………… 17

2. Judges Must Give Direct and Circumstantial

Evidence Equal Weight ………………………………………. 18

3. Judge Must Not Apply Unreasonable Burdens of

Proof, Such as “Sole Factor” Requirements ………….. 20

Second Issue Presented for Review:

When A Jury Concludes An Employer Has Created A Hostile

Work Environment through the Use and Toleration of

Racially Offensive Hate Speech and Threats of Violence,

A Trial Judge Is Not Entitled to Reject that Finding Based

on His Own Weighing of the Evidence ………………………………… 23

V. CONCLUSION …………………………………………………………………. 31

Certificate of Service …………………………………………………………………. 32

page iii.

TABLE OF AUTHORITIES

Ayissi-Etoh v. Fannie Mae

(D.C. Cir. 2013), 712 F.3d 572 ……………….. 25

Burlington Indus. v. Ellerth

(1998), 524 U.S. 742 …………………………….. 30

Desert Palace v. Costa

(2003), 539 U.S. 90 …………………………………….. 19

Gregory v. Univ. Hosp., Inc.

(S.D.Ohio), 2009 WL 2145678 …………….. 18

Hare v. Potter

(3d Cir. 2007), 220 Fed. Appx. 120 …………………………… 27

Kennedy v. City of Villa Hills, Ky.

(6th Cir. 2011), 635 F.3d 210 ……….. 18

McDonald v. Santa Fe Trail Transp. Co.

(1976), 427 U.S. 273 …………. 21

Parklane Hosiery Co., Inc. v. Shore

(1979), 439 U.S. 322 …………………. 15

Reeves v. Sanderson Plumbing Prods., Inc.

(2000), 530 U.S. 133….. 10, 29

Rodgers v. Western-Southern Life Insurance Co.

(7th Cir. 1993), 12 F.3d 668 …………………………………………… 25

White v. Baxter Healthcare

(6th Cir. 2008), 533 F.3d 381 …………………. 17

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STATEMENT OF ISSUES PRESENTED FOR REVIEW

 First Issue Presented for Review:

A trial judge may not substitute his own view for the jury’s contrary view of an employer’s reasons for its actions when the record contains probative evidence that race was a motivating factor in the actions, that the actions would not have occurred in the absence of racial bias, and that the employer’s actions were retaliatory.

Second Issue Presented for Review:

When a jury concludes an employer has created a hostile work environment through the use and toleration of racially offensive hate speech and threats of violence, a trial judge is not entitled to reject that finding based on his own weighing of the evidence.

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I. STATEMENT OF INTEREST

The Ohio Employment Lawyers Association (OELA) is the statewide professional membership organization in Ohio comprised of lawyers who represent employees in labor, employment, and civil rights disputes. OELA is the only state-wide affiliate of the National Employment Lawyers Association (NELA) in Ohio. OELA attorneys are committed to working on behalf of those treated illegally in the workplace. OELA strives to protect the rights of its members’ clients, and regularly supports precedent-setting litigation affecting the rights of individuals in the workplace. OELA advocates for employee rights and workplace fairness while promoting the highest standards of professionalism, ethics, and judicial integrity.

As an organization focused on protecting the interests of workers who are subjected to workplace discrimination and retaliation, OELA has an abiding interest in ensuring that employees who are subjected to such actions are provided with the full benefit of their right to a jury trial. OELA files this amicus brief in hopes of shedding light on a disturbing, increasing practice by trial judges of invading the province of

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the jury by resolving factual questions, including questions of credibility and weight, on motions for judgment as a matter of law.

Ohio NOW Education and Legal Defense Fund is a nonprofit corporation originally founded in 1981 by the Trustees of the Ohio Chapter of the National Organization for Women. The NOW Legal Defense and Education Fund provides assistance to bring women into full participation in all activities of American life and conducts research and education concerning discrimination in our society. As part of its activities, the NOW Legal Defense and Education Fund provides legal counsel or other support to victims of employment discrimination and conducts regular programs to prevent discrimination. It and the Ohio NOW Chapter have participated as amici curiae in cases before the Ohio Supreme Court and Ohio’s Courts of Appeals. Ohio NOW Education and Legal Defense Fund files this brief in order to support the right of every victim of unlawful employment discrimination to a civil jury trial.

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II. INTRODUCTION AND SUMMARY OF ARGUMENT

Amici curiae OELA and Ohio NOW Education and Legal Defense Fund submit this brief in support of Plaintiff-Appellant Don O. Smith (“Plaintiff” or “Smith”). A Franklin County jury found in Smith’s favor on claims that his employer, Defendant-Appellee Superior Tool & Die & Machine Co. (“Defendant” or Superior”), laid him off because of his race, refused to recall him because he complained of race discrimination, and created a racially hostile work environment.

This verdict was summarily discarded by the trial court because, in short, the judge disagreed with the jury’s finding that Superior’s stated explanations for Smith’s layoff and its refusal to recall him were false. The judge also disagreed with the jury about whether Smith experienced a hostile work environment, finding that frequent use of one of the most offensive words of racial hatred, direct use of the word toward Smith by his supervisor, and the supervisor’s habitual brandishing of a gun toward Smith and other African-American employees was not sufficiently severe or pervasive to constitute an actionable hostile work environment.

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These decisions were all properly in the hands of the jury, not the judge. The reasons for an employer’s actions are a question of motive, and therefore, principally a question of credibility. That was certainly true here. Superior’s stated reasons for laying off and not recalling Smith were forcefully rebutted, including by Superior’s own witnesses, who admitted that Smith was treated differently from others in his position and those with a similarly broad range of job skills and qualifications. The jury was free to disbelieve these witnesses, but the trial judge was not.

The same was true of the hostile environment claim. Smith and others testified that the workplace was suffused with racist hate speech. They described not just a seminal event in which his supervisor called Smith “nigger,”1 but a pattern that included this supervisor pointing a cocked gun at him and other African-American employees. Once the jury found that this conduct created a racially hostile environment, the judge was not entitled to downplay it as mere “name-calling.”

1The use of this word is universally recognized as offensive and unacceptable for use in the workplace and throughout society. Amici prefer not to use it in its filings when possible. From here forward, this word will be referenced as “the N word” except in direct quotations.

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Amici urge this Court to reinstate the jury verdict and provide a clear statement that trial judges must respect the province of the jury, and they are not empowered to make credibility determinations or weigh conflicting evidence as to material disputes of fact—particularly when the disputed facts relate to the motivations for a defendant’s actions.

III. STATEMENT OF FACTS AND THE CASE

The evidence at trial in this case showed that the work environment at Superior was suffused with racist hate speech, including frequent use of the N word and its use by Superior’s principal owner and top managers. (E.g., R. 181, pp. 176-180). Further evidence was presented that Duane Holstein, Smith’s supervisor, a part-owner of Superior, and the principal owner’s son, frequently tolerated the use of the N word by subordinates and used it himself in conversations in and out of the presence of African-American employees. (R. 182, pp. 308-310, 426, 430). He also intimidated African-American employees by taking out a gun he kept in his desk and cocking it during conversations. (R. 181, p. 163; R. 182, p. 431). There was no evidence that white employees were similarly targeted for this conduct. As important, Holstein falsely denied this

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conduct (R. 183, pp. 501-502), permitting the jury to infer that he was lying to conceal his racially discriminatory motive.

The evidence also showed that Smith was directly targeted with the use of the N word by Holstein, who told Smith, in October 2008, “Well, why don’t you just sign out and go home, nigger.” (R. 181, p. 153). This led Smith to complain to Superior’s General Manager that Holstein was a racist and was creating a hostile work environment. (R. 181, pp. 195-196).

In December 2008, Superior executed the first of a series of layoffs, which ultimately led to a temporary reduction of its work force by about 60 employees out of 250. (R. 182, p. 404). Smith was among the first few employees laid off and the very first in the production area. (R. 182, p. 406). Others in the same position and plant location were spared from the layoffs entirely or offered the opportunity for a temporary demotion instead, but Smith was not. (R. 182, pp. 329-330, 360-361). Evidence also showed that Holstein was consulted and participated in selecting and sparing employees for layoff and recall. (R. 182, pp. 327, 406).

Evidence showed that Smith was qualified to perform all or nearly all of the duties of workers throughout Superior’s operations and was

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familiar with both of its plants. (R. 181, pp. 134-138; R. 182, pp. 332-333). Superior’s witnesses testified that this sort of versatility was the precise criterion Superior used to determine who should be laid off, who should be spared, and who should be recalled from layoff (E.g., R. 183, pp. 529-530)—but Smith was selected for layoff and was never recalled. Another key basis Superior cited at trial for not recalling Smith was that he was unwilling to be supervised by Holstein (R. 182, pp. 342-343)—but the evidence showed that not all recalled positions would report to Holstein (R. 182, p. 343). Of course, Smith had told management the reason he was unwilling to report to Holstein was his pattern of racist conduct.

After a four-day jury trial, a unanimous Franklin County jury found that Superior discriminated against Smith based on race in his layoff, retaliated against him by not recalling him after he complained of racism, and created a racially hostile work environment. The jury awarded Smith backpay, frontpay, a separate amount designated “compensatory damages,” and punitive damages.

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The trial court then granted the Defendant’s Motion for Judgment Notwithstanding the Verdict (JNOV) on all claims, stating that the verdict was not supported by “competent, credible evidence.” (R. 192, p. 26). Specifically, the court concluded that while the jury was entitled to conclude that race was a motivating factor in Smith’s layoff, it had no basis to reject Superior’s claim that Smith would have been laid off anyway because the layoffs were due to an economic downturn. (R. 192, pp. 13-14). The court also concluded that the jury had no basis to reject Superior’s similar explanation for its failure to recall Smith, which it said was based on his “job skill sets.” (R. 192, pp. 17-19).

The court also found that the evidence was insufficient, as a matter of law, to support the jury’s verdict that Smith was subjected to a racially hostile work environment. In particular, the judge stated that a single use of the N word toward Smith in the heat of the moment was not severe or pervasive, and Smith had failed to prove that Holstein’s threats with his gun were racially motivated. (R. 192, pp. 21-23). The judge then separately stated that the damages awarded seemed excessive, based on his own calculation of Smith’s backpay and mitigation. (R. 192, p. 25).

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IV. ARGUMENT

First Issue Presented for Review:

A Trial Judge May Not Substitute His Own View for the Jury’s Contrary View of an Employer’s Reasons for Its Actions When the Record Contains Probative Evidence that Race Was a Motivating Factor in the Actions, that the Actions Would Not Have Occurred in the Absence of Racial Bias, and that the Employer’s Actions Were Retaliatory

A. The Trial Court Chose to Disbelieve the Ample Evidence Supporting the Jury’s Rejection of Superior’s Claim that Smith Would Have Been Laid Off Regardless of Its Discriminatory Actions

The jury found, as indicated by their interrogatory answers, that Smith had proven through direct evidence that race was a motivating factor in his layoff. (R. 114, Question 1). The jury also found in favor of the Plaintiff on the ultimate question as to whether Smith’s layoff occurred because of race—rejecting Superior’s claim that he would have been laid off regardless of any racial motivation. (Id., Question 2, 25).

The trial court, in granting the JNOV, accepted the jury’s wellsupported conclusion that race was at least a motivating factor in Smith’s layoff. (R. 192, p. 13). But the judge rejected the jury’s equally

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well-supported finding that Smith would have been laid off regardless of Holstein’s racism, stating (at R. 192, p. 14):

Mr. Duane Holstein testified that he was not involved in the decision to lay off Mr. Smith. Most importantly, 59 other employees were let go in period of approximately six months. Production was reduced to the point that there was only one plant operating on a skeleton crew. As a matter of law, the jury could not have found that race was the reason Mr. Smith was terminated. The economic downturn in the automotive industry unequivocally led to the decision to lay off the Plaintiff. Reasonable minds could come to but one conclusion on this Count[.]

This reasoning might have been permissible if the only evidence in the case were the testimony cited by the court. But the jury had access to ample contrary evidence. There was testimony, including from Superior’s own witnesses, that Holstein did play a role in the layoffs, contrary to his self-serving claim, and that other key managers were also racially biased. (R. 182, pp. 327, 406; R. 181, pp. 176-180). The contradiction about Holstein’s role in Smith’s layoff alone could have supported the jury’s verdict, since the jury was entitled to conclude that Holstein’s false denial of his role was an effort to conceal discrimination against Smith. See Reeves v. Sanderson Plumbing Prods., Inc. (2000),

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530 U.S. 133, 147-48 (citing “the general principle of evidence law that the factfinder is entitled to consider a party’s dishonesty about a material fact as affirmative evidence of guilt”).

There was also evidence upon which the jury could rely to reject Superior’s claims that Smith’s layoff was inevitable. Smith was an assistant production supervisor. Other assistant production supervisors were spared from the layoff entirely, and some were offered demotions instead of being laid off—so why was Smith included, when others were not? There was a very clear admission on this point from a Superior manager, Hook, who testified that Superior diverged from its general approach to the layoffs by laying off Smith:

“Q: But it was your typical process to try to push down the top of the work force?

A. That is right.

Q. Just not in relation to Mr. Smith?

A. Correct.”

(R. 182, p. 362; see also pp. 358-362 (establishing that Smith was near the top of the work force and others in his position were spared)). Again, this evidence alone was sufficient for the jury to find that Smith would not have been laid off in the absence of Holstein’s racism.

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The mere fact that others were laid off was not a silver bullet by which Superior could avoid all liability—not when there was evidence of racial bias against Smith in the decision-making process. If it were, this case could not have survived a motion to dismiss, much less a motion for summary judgment, since there was never a dispute that others were laid off. The dispute, as to which the jury could have found either way, was about why Smith was laid off when others were not.

B. The Trial Court Also Disregarded the Evidence Underlying the Jury’s Rejection of Superior’s Purported Reason for Failing to Recall Smith from His Layoff

The trial court applied almost exactly the same analysis to Smith’s retaliation claim, concluding that “the Plaintiff failed to prove by a preponderance of the evidence that Superior’s stated reason for laying off Plaintiff, as well as for not rehiring Plaintiff was pretextual.” The court’s opinion meanders through a series of possible reasons to believe Superior did not retaliate against Smith after he complained of discrimination. These included Smith’s request not to work under Duane Holstein, the manager whose racist conduct he was complaining about (R. 192, p. 19). Notably, the court did not explain why the jury

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could not conclude that holding Smith’s unwillingness to work with a racist manager against him was retaliatory.

The court also cited testimony about Smith’s “skill set” not being needed (with the exception of jobs where he would report to Holstein). The court stated, “not every employee who was let go was re-hired. The demand for labor simply did not resume. Those who were re-hired were the most versatile.” (R. 192, p. 19). This is simply a recitation of Superior’s witnesses’ testimony. It takes none of Smith’s evidence into account. Smith himself and other witnesses—Duane Holstein included—testified that Smith had performed and was capable of performing many jobs within the plant. (R. 181, pp. 134-138; R. 182, pp. 332-333). The jury could conclude based on this that Smith was versatile, and Superior’s explanation about rehiring the most versatile employees was not adequate. This evidence was completely ignored by the trial judge, who focused only on the employer’s self-serving and conclusory testimony.

Instead of acknowledging the evidence upon which the jury could have based its verdict, the trial judge instead devoted his analysis to

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Duane Holstein’s self-serving description of a brief, “casual” conversation in which Smith allegedly told him that he was happy in his new job, away from Superior, and had no desire to get “back into the trade.” According to the court, “This testimony was not refuted by Plaintiff.” (R. 192, p. 18). But Smith did not need to refute or even address this conversation. The jury could have just disbelieved the story entirely, since it came from an interested witness who testified falsely about other material issues. Or it could have rejected the idea that this conversation was the real reason for not recalling the Plaintiff—it was, after all, not even the reason Superior actually gave for its decision.

The jury was certainly not required to credit Holstein’s testimony and accept that this brief, casual interaction between Smith and the supervisor who had racially harassed him was the only explanation for Superior’s failure to recall Smith. It was the jury’s job, not the judge’s, to decide whose testimony to believe, in whole or in part. Yet the trial court focused on this testimony, credited it as true, and drew its own inferences, to the exclusion of all of the Plaintiff’s contrary evidence and inferences, in order to reject the jury’s perfectly perfectly reasonable conclusion.

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C. The Trial Court’s Decision Here Is Emblematic of A Trend Toward Impermissible Judicial Fact-Finding

The simple problem with the trial court’s reasoning here is that it relied on the judge’s subjective view of what testimony was most persuasive and credible—not an objective review of the record as to whether there was sufficient evidence upon which the jury could have relied to reach the conclusion it did. The jury was not required to credit either Superior’s testimony about its claimed reasons for its actions or Smith’s contrary evidence. But it was permitted to credit whichever version it found more believable. Making such decisions is a jury’s job. It is emphatically not a trial judge’s job to second-guess that decision.

Such an intrusion on the province of the jury undermines the entire premise of civil jury trials. As then-Justice Rehnquist stated, in dissent, in Parklane Hosiery Co., Inc. v. Shore (1979), 439 U.S. 322, 343-44:

The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary. Those who passionately advocated the right to a civil jury trial did not do so because they considered the jury a familiar procedural device that should be continued; the concerns for the institution of jury trial that led to the passages of the

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 Declaration of Independence and to the Seventh Amendment were not animated by a belief that use of juries would lead to more efficient judicial administration. Trial by a jury of laymen rather than by the sovereign’s judges was important to the founders because juries represent the layman’s common sense, the “passional elements in our nature,” and thus keep the administration of law in accord with the wishes and feelings of the community. Here, the trial judge decided to substitute his own view of the evidence for the views of the jury. He was not deciding whether the case Smith presented was legally sufficient to prove race discrimination. Instead, he concluded that Smith’s case did not persuade him that race discrimination occurred. Such a conclusion casts aside “the layman’s common sense” and the collective wisdom of the selected jurors in favor of the professional point of view of a single individual who is expressly prohibited from imposing that point of view in civil jury trials.

Too often, trial judges in Ohio have begun placing themselves in this impermissible position. The question they ask, in considering summary judgment motions before trial and directed verdict and JNOV motions during and after trial, is not whether a jury could find for the plaintiff, but whether a jury should, in their view, find for the plaintiff.

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To answer this question, they add their own weight to the evidence, in a number of separate, but often interrelated ways.

1. Judges Must Not Apply a “Business Judgment” Rule in Discrimination Cases, Since It Amounts to a Rubber Stamp on Practically Any Employment Decision.

The judge here credited Superior’s “economic downturn” argument without considering why Smith was not treated like his peers. This smacks of the discredited “business judgment rule,” under which some judges simply accept an employer’s claimed economic motivations for decisions, even in the face of contrary evidence. See White v. Baxter Healthcare(6th Cir. 2008), 533 F.3d 381, 393 n.6 (“[W]e cannot . . .unquestionably accept the employer’s own self-serving claim that the decision resulted from an exercise of ‘reasonable business judgment.’ Nor can we decide ‘as a matter of law’ that ‘an employer’s proffered justification is reasonable.’ The question of whether the employer’s judgment was reasonable or was instead motivated by improper considerations is for the jury to consider.” (quotations omitted)).

Rejecting this specious reasoning is particularly important in a case like this one, where the mere fact of the nationwide economic downturn

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 did not explain the individual selection issues involved. If merely mouth the words “economic downturn” is enough, unscrupulous employers will have an unfettered opportunity to discriminate and retaliate every time economic conditions shift, without even having to explain why they treated some employees better or worse than others.

Such automatic acceptance of an employer’s claimed business reason for its decisions is particularly intrusive because a party’s true motivations are nearly always a question of credibility, squarely within the province of the jury. See Kennedy v. City of Villa Hills, Ky. (6th Cir. 2011), 635 F.3d 210, 218 (“[C]laims involving proof of a defendant’s intent seldom lend themselves to summary disposition”); Gregory v. Univ. Hosp., Inc. (S.D.Ohio), 2009 WL 2145678, * 9 (very littleevidence is needed to create jury issue as to employer’s true motives).

2. Judges Must Give Direct and Circumstantial Evidence Equal Weight

The same courts that rubber-stamp employers’ supposed “business judgment” also tend to elevate “direct” evidence over “circumstantial” evidence despite repeated warnings from higher courts that these

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 distinctions have no purpose. See, e.g., Desert Palace v. Costa (2003), 539 U.S. 90, 99-100 (rejecting distinction between direct and circumstantial evidence in mixed-motive discrimination cases, and stating, “The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” (quotations omitted)).

Here, the trial court issued jury interrogatories that inexplicably applied a mixed-motive analysis only if the jury found direct evidence of discrimination. It did not give the option to the jury of finding circumstantial evidence that race was a “motivating factor.” Instead, contrary to the established principles of evidence and the U.S. Supreme Court’s unequivocal holding, it relegated circumstantial evidence to a lower tier, and used a burden-shifting analysis for such evidence.

Fortunately, despite this impermissible approach, the jury found its  way through these hurdles. It properly found direct evidence of Duane Holstein’s racial bias and rejected Superior’s claim that it would have made the same decision despite Holstein’s racism. But the trial court

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 continued to apply talismanic value to “direct evidence.” The only fact the judge credited in Smith’s favor on the JNOV motion was the direct evidence that Holstein used the N word toward Smith. The judge ignored, downplayed, or excluded every form of circumstantial evidence (including inferences from Superior’s false and shifting explanations, disparate treatment of Smith’s similarly situated co-workers, similar treatment of other African-American employees, and the like) and credited only the “direct” (but obviously self-serving) testimony from Superior’s managers that they did not intend to discriminate or retaliate.

3. Judge Must Not Apply Unreasonable Burdens of Proof, Such as “Sole Factor” Requirements

Similarly, many courts have tended to assert too much authority over fact-finding by adjusting the burdens of proof that properly apply in discrimination cases. In particular, this includes asking, as the trial judge did here, whether “race was the reason” for a particular employment decision (R. 192, p. 14 (emphasis added)). Here, there were only two permissible burdens to place on Smith: proving that race was a motivating factor in his layoff (to trigger a “mixed-motive”

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 analysis), and/or proving that race or retaliation were the “but-for” causes (also known as “determining factors”) for his layoff and recall.

Few, if any, decisions have only a discrete “sole” cause. Thus, courts have long rejected a standard requiring plaintiffs to prove that race was the “sole” cause for an adverse action. See, e.g., McDonald v. Santa Fe Trail Transp. Co. (1976), 427 U.S. 273, 282 n.10 (noting, in a case where white employees were fired upon being charged with misappropriation, while black employees were not, that whether race is a “but for” cause is a different question from whether it is the “sole” cause, and adopting “but for” standard). Applying a “sole cause” standard requires a plaintiff to disprove or rule out every single other factor in a decision (such as an economic downturn), and virtually guarantees adoption of the employer’s claimed explanations.

These common errors are just symptoms of a fundamental flaw in these courts’ approach. A judge has many roles in a jury trial: ruling on the admissibility of evidence, overseeing jury selection, ensuring the smooth administration of the trial, instructing the jury, and giving effect

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 to the jury’s verdict. But the judge must not decide the outcome of the case unless only one outcome is possible as a matter of law.

Notably, despite Ohio’s strong jury trial tradition, nearly all of the statements above regarding the sovereign role of the jury in weighing credibility and deciding factual disputes come from the federal courts.Ohio’s courts follow the same principles, and the state constitution provides jury protections just as strong as those of the Seventh Amendment to the U.S. Constitution, but among recent cases, there seems to be a powerful need for a similar statement from Ohio’s courts.

It is not enough that lawyers and judges pay lip service to the theoretical importance of jury trials. This Court must actively protect the role of civil juries in discrimination cases using all the practical and persuasive tools at its disposal, by reversing decisions that intrude upon the province of the jury in the clearest possible terms. This case presents a prime example of such a decision. It is a perfect opportunity for this Court to reinforce the role of the jury in discrimination cases and remind trial courts of their constitutional obligation to respect the jury’s role and refrain from invading or usurping it.

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Second Issue Presented for Review:

When A Jury Concludes An Employer Has Created A Hostile Work Environment Through The Use And Toleration Of Racially Offensive Hate Speech And Threats Of Violence, A Trial Judge Is Not Entitled To Reject That Finding Based On His Own Weighing Of The Evidence.

The trial court compounded its intrusion upon the jury’s domain by rejecting the jury’s finding that Smith was subjected to a racially hostile work environment. Courts have long cautioned that harassment claims must not be analyzed in a piecemeal, “divide-and-conquer” fashion, considering each potentially offensive, threatening, or humiliating act separately to determine whether it is sufficiently severe to constitute a hostile environment. Yet that is exactly what the trial court did here.

2 Notably, the jury found for Smith despite a jury interrogatory that erroneously required them to determine if the harassment was “severe (not just merely offensive or minor irritations), pervasive (i.e. occurring on numerous occasions and continuous and unreasonably interfered with Mr. Smith’s work performance), and physically threatening or humiliating.” Nearly every “and” in that interrogatory should properly have been an “or” under controlling state and federal precedent. As the jury once again overcame this grave error in the interrogatory and found in the Plaintiff’s favor, however, the focus of this brief is on the trial court’s rejection of the jury’s finding, not its erroneous form.

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There were at least four categories of harassment presented at trial: direct, racially charged verbal abuse of Smith by Holstein; racist speech by Holstein not directed at Smith; racially charged language used by others and tolerated by Superior’s management; and Holstein’s intimidation of African-American employees using the gun he kept in his office. The judge analyzed each category separately and concluded that none of it was severe or pervasive enough to be actionable.

Put bluntly, such a determination begs the question of what work environment the trial judge might consider to be hostile, if this one was not. Smith was called the N word to his face by his supervisor, who also had a history, described to the jury, of using that word in the workplace in other contexts. The judge downplayed this repeatedly, noting that any use of the N word is serious, but that Holstein’s use of it toward Smith was “an isolated incident” in which Holstein “flew off the handle” and engaged in “name calling.” (R. 192, pp. 22-23).

It is hard to take this analysis seriously when there was also evidence presented that Holstein, in talking with another African-American employee, stated, “I hate a dumb ass nigger” when talking

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about Smith. (R. 182, p. 430). The jury did not have to find, as the trial judge did, that this was an isolated instance of “name calling” instead of a severe, deliberate attack on a black subordinate using a vile racial slur.

In fact, courts have indicated that even one use of the N word, by itself, can constitute a severe enough incident to create a hostile work environment. See Ayissi-Etoh v. Fannie Mae (D.C. Cir. 2013), 712 F.3d 572, 577 (“As other courts have observed, ‘perhaps no single act can more quickly alter the conditions of employment’ than ‘the use of an unambiguously racial epithet such as “nigger” by a supervisor.’ This single incident might well have been sufficient to establish a hostile work environment.” (quoting Rodgers v. Western-Southern Life Insurance Co. (7th Cir. 1993), 12 F.3d 668, 675)). Notably, the use of the N word in Ayissi-Etoh occurred in a virtually identical scenario to the one here, with Ayissi-Etoh’s supervisor yelling “get out of my office nigger” during a heated meeting, 712 F.3d at 575. And in Rodgers, the Seventh Circuit specifically noted that “a supervisor’s use of the term impacts the work environment far more severely than use by co-equals.” 12 F.3d at 675.

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But what Smith experienced was not a single use of the N word in isolation. Duane Holstein’s statements, properly considered by the jury in their larger context, were reinforced by the testimony described above regarding use of racist speech, including the N word, by Smith’s coworkers throughout Superior’s business. 3 There was even testimony that employees would not be terminated if caught using this language, except after the fourth occurrence. (R. 182, pp. 308-310). The trial court disregarded this evidence, dismissing it as mere “offensive language bantered around the plant.” (R. 192, p. 22). That may indeed have been the trial judge’s subjective opinion of the significance of this evidence.Many would disagree with that opinion, though, given the seriousness of any use of the N word and the likely effect of its continued use by employees without any tangible repercussions from management.

3)Notably, courts have held that offensive conduct does not have to be directed toward the plaintiff or even seen or heard directly by the plaintiff in order to contribute to a hostile work environment. See, e.g., Jackson v. Quanex Corp. (6th Cir. 1999), 191 F.3d 647, 661; Moore v. Kuka Welding Sys.(6th Cir. 1999), 171 F.3d 1073, 1079 (both addressing “second-hand” harassment and citing cases).

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Among those who seem to have disagreed were the jurors in this case, who unanimously found persuasive evidence of a hostile work environment. It cannot be the case that no reasonable juror could find that a workplace suffused with racist hate speech, with specific incidents of such speech by the principal’s owner son (himself a co-owner) toward and about the plaintiff, was a hostile work environment. Yet that is what the trial court concluded.

This conclusion loses all credence in light of the evidence that Holstein also habitually brandished a deadly weapon toward his African-American subordinates. Holstein did not admit or announce his racial motivation for this conduct, but courts are not supposed to exclude from consideration acts that are not racially motivated on their face, when a jury could reasonably conclude, based on the workplace context, that these acts were part of the same pattern of discriminatory conduct as more explicit harassment. See, e.g., Hare v. Potter (3d Cir. 2007), 220 Fed. Appx. 120, 132 (rejecting isolation of facially neutral acts of harassment, and finding motives in light of “the overall scenario”).

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The trial court ignored this principle, separated this evidence from the hate speech described above, and concluded that there was insufficient evidence for the jury to believe this conduct was racially motivated. This conclusion was wrong for any number of reasons.

First, the jury, knowing that Duane Holstein harbored a racial bias toward Smith, could easily have inferred that this was a key reason he repeatedly threatened him with a gun. Second, there was testimony from other African-American employees that Holstein did the same thing to them, while no white employees testified similarly. One white manager even denied knowing where Holstein kept his gun.

The trial court seemed to conclude that since Holstein did not admit his conduct was racially motivated or make racist statements while brandishing the gun, Smith needed to prove that no white employees were not threatened in the same way. According to this reasoning, the only way Smith could have met his burden of proving the threats were racially motivated was to call every white employee in the plant as a witness and have them confirm that Holstein did not threaten them with a gun.

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Such an argument was never advocated by Holstein or Superior Instead, they argued and testified that Holstein never used the gun the way Smith described. (R. 181, p. 112; R. 183, pp. 501-502). As noted above, if the jury disbelieved this denial, it could find that the reason Holstein falsely denied this material fact was to conceal his unlawful racial motivation for threatening Smith.Reeves, 530 U.S. at 147-48.

As with the layoff and recall claims, the court’s analysis of this claim consisted of its own point of view. The court did not seem concerned at all with the sufficiency of the evidence. Instead, the trial judge focused on the evidence that was most persuasive to him, drawing all inferences in favor of Superior and the verdict the judge believed the jury should have reached. This was error, it was an invasion of the province of the jury, and it demands a clear rejection by this Court.

Finally, it should be noted that the Court can reverse this determination without addressing the trial court’s analysis of Superior’s affirmative defense. The trial court seemed to signal that the jury interrogatories skipped over an element of Superior’s affirmative defense to Smith’s harassment claim. (R. 192, pp. 23-24) (noting that

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interrogatories directed the jury to find for Smith if he was subjected to severe and pervasive harassment and complained about it, without requiring the jury to determine whether Smith used the specific procedures in Superior’s handbook for making his complaint)).

Of course, given the testimony, Superior could not have availed itself of that affirmative defense, making any error harmless. Superior needed to prove that it “exercised reasonable care to prevent and correct promptly” any harassing behavior, and that Smith failed to take advantage of opportunities to prevent, correct, or avoid harm. Burlington Indus. v. Ellerth (1998), 524 U.S. 742, 765. The jury specifically found that Smith complained of the hostile work environment and that Superior retaliated against him for doing so, meaning there is no logical way Superior could have satisfied either prong of the Ellerth defense.

As important in this appeal, Superior’s counsel, unlike Smith’s counsel, accepted the jury instructions, interrogatories, and verdict form without objection. (R. 184, p. 678). In the unlikely event that Superior was affected in any way by the structure of the interrogatories, it consented to and waived this error.

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V. CONCLUSION

This Court should reverse the trial court’s decision granting Superior judgment notwithstanding the jury’s verdict. The jury’s unanimous verdict was supported by competent, credible evidence—evidence that could have convinced any reasonable person that Superior subjected Smith to race discrimination, retaliation, and a racially hostile work environment. The trial judge’s rejection of the jury’s unanimous findings was a clear invasion of the province of the jury, and one that must be rejected by this Court to preserve the fundamental right to a jury trial under Ohio law.

Respectfully submitted,

/s/Frederick M. Gittes_________

Frederick M. Gittes (0031444) fgittes@gitteslaw.com

Jeffrey P. Vardaro (0081819) jvardaro@gitteslaw.com

The Gittes Law Group

723 Oak St.

Columbus, OH 43205

(614)222-4735 Fax: (614) 221-9655

Counsel for Amici Curiae OELA and

Ohio NOW Education and Legal

Defense Fund

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CERTIFICATE OF SERVICE

I hereby certify that, on this 29th day of October 2013, a copy of the foregoing Brief of Amici Curiae was filed with the Court through the efiling system, which shall provide notice of this filing to counsel of record for all parties.

/s/Frederick M. Gittes____

Frederick M. Gittes