Metropolitan News-Enterprise


Monday, August 2, 2002


Page 1


Ninth Circuit Opts for Lenient Standard of Proof in Bias Cases


By a MetNews Staff Writer


An employment discrimination plaintiff who was discriminated against, but was fired for reasons that were at least partially non-discriminatory, need not provide “direct evidence” that discriminatory animus factored into the decision to terminate, the Ninth U.S. Circuit Court of Appeals ruled Friday.

 Rejecting the views of several other circuits, and its own three-judge panel, the Ninth Circuit—by an en banc vote of 7-4—reinstated an award of damages to Catharina F. Costa, a trucker/warehouse worker fired from her job at Caesars Palace in Las Vegas.

The court upheld U.S. District Judge David Warner Hagen’s decision to give a “mixed-motive” instruction. Jurors were told that if Costa was mistreated by her employer, and if her mistreatment “was motivated by both gender and lawful reasons,” she was entitled to damages unless the defendant proved that it would have fired her regardless of gender.

Jurors returned a verdict in her favor, awarding over $64,000 in back pay, $200,000 in general damages, and $100,000 in punitive damages. Hagen denied Caesar’s motions for judgment as a matter of law and for a new trial, conditioned upon reduction of the general damage award to $100,000.

The three-judge panel reversed, saying the mixed-motive instruction was error because Costa failed to provide direct evidence that she was fired because she was a woman, rather than because she had been in a series of fights with co-workers. But Judge M. Margaret McKeown, writing Friday for the en banc panel, said no such proof was required.

Costa, McKeown explained, was a “trailblazer” who presented more than sufficient evidence that she was treated differently than her co-workers, all male. She was reprimanded for petty reasons, suspended for conduct that males engaged in with impunity, disfavored in overtime assignments, cursed at, and even physically abused, all with the acquiescence of management, the judge said.

McKeown acknowledged the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), but rejected the argument that a majority of the justices on the court—which failed to produce a majority opinion—had created a “direct evidence” rule. Justice Sandra O’Connor’s “passing reference” to direct evidence in her concurring opinion, did not establish new law, McKeown said.

Besides, the judge wrote, if there was such a requirement, it was removed by the 1991 amendments to Title VII of the Civil Rights Act of 1964. The statute “imposes no special requirement and does not reference ‘direct evidence,’” she said, suggesting that those courts which have adopted such a standard did so “as a veiled excuse to substitute their own judgment for that of the jury.”

The court did, however, overturn the punitive damage award, sending it back to the district judge for reconsideration under standards set forth in a 1999 Supreme Court decision.

Chief Judge Mary M. Schroeder and Judges Stephen Reinhardt, Barry G. Silverman, Susan P. Graber, Raymond C. Fisher, and Richard A. Paez joined in McKeown’s opinion.

Judge Ronald M. Gould, joined by Judges Alex Kozinski, Ferdinand F. Fernandez, and Andrew J. Kleinfeld, dissented.

A direct evidence rule, he said, “makes common sense” and is in line with the majority in Hopkins and the rule in nearly all circuits. Nothing in the 1991 amendments, he argued, indicates that Congress intended otherwise.

The case is Costa v. Desert Palace, Inc. 99-15645.


Copyright 2002, Metropolitan News Company