Davis v. Baltimore Gas and Elec. Co., 97-1600

• Decision Date: 23 November 1998
• Docket Number: No. 97-1600,97-1600
• Citation: 160 F.3d 1023
• Parties: Garry DAVIS, Plaintiff-Appellant, v. BALTIMORE GAS AND ELECTRIC COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1023

160 F.3d 1023

Garry DAVIS, Plaintiff-Appellant, v. BALTIMORE GAS AND ELECTRIC COMPANY, Defendant-Appellee.

No. 97-1600.

United States Court of Appeals Fourth Circuit.

Argued Sept. 24, 1998.

Decided Nov. 23, 1998.

ARGUED: Steven John Potter, Baltimore, Maryland, for Appellant. Ronald McGlenn Cherry, McGuire, Woods, Battle & Booth, L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF: Mark T. Hackman, Barbara A. Gaughan, Baltimore Gas & Electric, Baltimore, Maryland, for Appellee.

Before MURNAGHAN and HAMILTON, Circuit Judges, and MAGILL, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge HAMILTON and Senior Judge MAGILL joined.

OPINION

MURNAGHAN, Circuit Judge:

Plaintiff Garry O. Davis filed a complaint in the United States District Court for the District of Maryland, Northern Division, alleging that Defendant Baltimore Gas and Electric Company discharged him from employment because he had filed a complaint with the Equal Employment Opportunity Commission. Defendant contends that Plaintiff was discharged from employment due to his refusal to perform a work assignment and an overall record of poor performance. After the jury was selected for trial, Plaintiff, through his attorney, made a motion under Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), challenging Defendant's allegedly racially discriminatory use of its peremptory strikes. The district court denied the motion, and the jury was duly sworn.

Pursuant to the jury verdict, the district court issued an Order entering judgment in favor of Defendant on the retaliatory discharge claim. Plaintiff filed a timely notice of appeal, requesting review of the district court's ruling on his Edmonson motion. We affirm the district court's denial of Plaintiff's motion.

I.

Plaintiff Garry O. Davis ("Davis") filed a complaint in the United States District Court for the District of Maryland, Northern Division, alleging that Defendant Baltimore Gas and Electric Company ("BGE") discharged him from employment because he had filed a complaint with the Equal Employment Opportunity Commission. Defendant contends that Plaintiff was discharged from employment due to his refusal to perform a work assignment and an overall record of poor performance. The matter proceeded to trial.

Jury selection commenced on March 24, 1997. The district court (Young, J., presiding) conducted a voir dire examination of the venire. At the conclusion of the examination, the court gave Plaintiff and Defendant an opportunity to provide challenges for cause. After both parties made motions to strike certain potential jurors for cause, the district court provided Plaintiff and Defendant with a list of twelve prospective jurors and a list of six prospective alternate jurors. Each party was allowed to strike three jurors from the list of twelve, and two from the list of six. Defendant used two of its three strikes to eliminate the only two possible black jurors from the pool. No black jurors were selected for the jury.

After the jury was selected, Plaintiff made a motion under Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). Plaintiff's counsel stated that Plaintiff was African-American; no African-Americans were on the jury; and two African-Americans on the venire had not been "reached." The district court denied the motion. Plaintiff then inquired whether the court was going to ask Defendant to give racially neutral reasons for its peremptory strikes of African-Americans from the venire. The court responded, "[t]hey strike who-ever they want. They strike just like you have." The court then denied Plaintiff's motion.

Defendant then volunteered racially neutral reasons why the African-American venire men were stricken. Defendant maintained that the first juror was employed by a large organization, and defense counsel wanted to avoid jurors who might find themselves similarly situated to Davis. The second juror, Defendant argued, had a "blank profile," which prevented defense counsel from drawing any conclusions about him. Counsel indicated that he did not "want to take the chances with him." After Defendant's proffer, Plaintiff made no further attempt to show pretext or purposeful discrimination and sought no additional relief from the court. The jury was duly sworn.

Pursuant to the jury verdict, the district court issued an Order entering judgment in favor of Defendant on the retaliatory discharge claim. Plaintiff now appeals the district court's denial of his motion challenging Defendant's allegedly racially discriminatory use of its peremptory strikes.

We affirm the district court ruling.

II.

A trial court's determination regarding the exercise of a peremptory challenge for allegedly racially discriminatory reasons is accorded great deference on appeal. See Hernandez v. New York, 500 U.S. 352, 364-365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). The court of appeals reviews the trial court's determination for clear error. See id. at 369, 111 S.Ct. 1859; Jones v. Plaster, 57 F.3d 417, 421 (4th Cir.1995). To find "clear error," the evidence must be "such that a 'reviewing court on the entire evidence [would be] left with the definite and firm conviction that a mistake ha[d] been committed.' " Hernandez, 500 U.S. at 369, 111 S.Ct. 1859.

An attorney typically is entitled to exercise peremptory challenges for any reason related to the outcome of the case to be tried. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson v. Kentucky, however, the Supreme Court determined that the Equal Protection Clause forbids a prosecutor from challenging potential jurors "...solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Id. at 89, 106 S.Ct. 1712. The defendant, the Court asserted, has "the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria." Id. at 85-86, 106 S.Ct. 1712.

The Court created, in Batson, a 3-step burden-shifting scheme for proving racial discrimination in jury selection. First, the party challenging the strikes must establish a prima facie case showing that the opposing party exercised the peremptory challenges on the basis of race. See id. at 96-97, 106 S.Ct. 1712. Once a prima facie case is established, the burden shifts to the party exercising the strikes to provide a racially neutral explanation for removing the jurors in question. See id. at 97-98, 106 S.Ct. 1712. Finally, once a neutral explanation is presented, the complaining party must prove purposeful discrimination. See id. at 98, 106 S.Ct. 1712. A movant may show purposeful discrimination by demonstrating that the opposing party's explanation is mere pretext for racial discrimination. SeeUnited States v. McMillon, 14 F.3d 948, 953 (4th Cir.1994); United States v. Joe, 928 F.2d 99, 102 (4th Cir.), cert. denied, Baylor v. United States, 502 U.S. 816, 112 S.Ct. 71, 116 L.Ed.2d 45 (1991).

The Supreme Court applied the Batson analysis, which pertained to criminal prosecutions, to jury selections for civil suits in Edmonson v. Leesville Concrete Co., Inc.. 500 U.S. at 618-630, 111 S.Ct. 2077. The petitioner in Edmonson sued Leesvile Concrete Co., alleging that the company's negligence had caused him personal injury. During voir dire, Leesville used two of its three peremptory challenges to remove black individuals from the prospective jury. Id. at 616, 111 S.Ct. 2077. The Supreme Court determined that, although the conduct of private parties usually lies beyond the Constitution's scope, Leesville's exercise of peremptory challenges was pursuant to a course of state action and was therefore subject to constitutional requirements. Id. at 620-628, 111 S.Ct. 2077. Consequently, a private litigant in a civil case may not use peremptory challenges to exclude jurors on account of race. Id. at 630, 111 S.Ct. 2077.

Combined, Batson and Edmonson govern the case at bar. Appellant has failed to satisfy the requirements of the two cases. Typically, a movant must first establish a prima facie case by showing that (1) opposing counsel has exercised peremptory strikes to remove members of a cognizable racial group from the venire; ^* and (2) the facts and any other relevant circumstances raise an inference that counsel used the strikes to exclude the venire persons from the jury on account of their race. See Batson, 476 U.S. at 96, 106 S.Ct. 1712. In the present case, however, the preliminary question of whether the party disputing the peremptory strikes has established a prima facie case of discrimination is moot, since Defendant voluntarily offered racially neutral reasons for its strikes. In Hernandez v. New York, the Supreme Court determined that "[o]nce a prosecutor has offered a race-neutral explanation for peremptory challenges, and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing of intentional discrimination becomes moot." 500 U.S. at 359, 111 S.Ct. 1859.

Fourth Circuit law endorses the Supreme Court's holding in Hernandez. Prior to the Court's pronouncement in Hernandez, the Fourth Circuit held that when racially neutral reasons are proffered, it is unnecessary to determine whether a prima facie case was actually demonstrated. See McMillon, 14 F.3d at 952 n. 2, citing United States v. Lane, 866 F.2d 103, 105 (4th Cir.1989); see also Matthews v. Evatt, 105 F.3d 907, 918 (4th Cir.), cert. denied, Matthews v. Moore, --- U.S. ----, 118 S.Ct. 102, 139 L.Ed.2d 57 (1997); United States v. Skeeter, 989 F.2d 496 (4th Cir.1993) (per curiam). So, since Defendant volunteered racially neutral reasons for its strikes, the...