McMillan v. Castro, 03-4444.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBoyce F. Martin, Jr.
Citation405 F.3d 405
PartiesSolvita McMILLAN, Plaintiff-Appellant, v. Ida CASTRO, Chairwoman, Equal Employment Opportunity Commission, Defendant-Appellee.
Docket NumberNo. 03-4444.,03-4444.
Decision Date19 April 2005
405 F.3d 405
Solvita McMILLAN, Plaintiff-Appellant,
Ida CASTRO, Chairwoman, Equal Employment Opportunity Commission, Defendant-Appellee.
No. 03-4444.
United States Court of Appeals, Sixth Circuit.
Argued: March 10, 2005.
Decided and Filed: April 19, 2005.

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ARGUED: Alexander M. Spater, Spater Law Office, Columbus, Ohio, for Appellant. Annette G. Butler, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Alexander M. Spater, Spater Law Office, Columbus, Ohio, for Appellant. Annette G. Butler, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: MARTIN and GILMAN, Circuit Judges; COHN, District Judge.*


BOYCE F. MARTIN, JR., Circuit Judge.

Solvita McMillan, an attorney in the Cleveland office of the Equal Opportunity Employment Commission, sued her employer in federal court alleging gender discrimination under Title VII of the Civil Rights Act of 1964 and a failure to pay her in accordance with the Equal Pay Act of 1963. At the close of McMillan's case in chief, the district court determined that it would decide McMillan's claim of wage discrimination, but would submit her Title VII claim to the jury. On December 16, 2002, the jury returned a unanimous verdict in favor of the Commission on McMillan's Title VII claim. On September 24, 2003, the district court entered judgment in favor of the Commission on McMillan's equal pay claim. McMillan now appeals, asserting that she was denied her right to a fair trial when the district court allegedly abused its discretion by questioning her in

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a hostile and biased manner, and also that the district court erroneously instructed the jury regarding the term "similarly situated." Based upon a review of the entire record, we conclude that although the district court's conduct came dangerously close to tainting the fairness of McMillan's trial, a new trial is not warranted. We also conclude that the district court committed no reversible error in instructing the jury regarding the "similarly situated" concept.


McMillan, a white female, began her employment at the Cleveland Regional Office of the Equal Employment Opportunity Commission in 1981 as a trial attorney at the GS-12 level. She was promoted to the GS-13 level in 1986. In July 1996, the Commission's General Counsel, C. Gregory Stewart, determined that trial attorneys at regional offices around the country who were doing work that was "significant, complex, and difficult" should be promoted and paid at the GS-14 level. On July 19th, Stewart issued a memorandum outlining the rules for promotion from the GS-13 level to the GS-14 level. The Commission's headquarters in Washington, D.C. retained authority for final approval of promotions. The Cleveland Regional Office was headed by a regional attorney, Larry Watson. Beneath Watson were two supervisory trial attorneys, Lawrence Mays and John Sargent. Watson testified that Mays and Sargent were to identify and recommend attorneys reporting to them for promotion to the GS-14 level. Sargent was McMillan's immediate supervisor. In August 1996, based on the memorandum, McMillan asked Sargent to submit a promotion recommendation on her behalf because, according to her testimony, she "had been performing GS-14 level work since the 1980s." McMillan testified that Sargent agreed and said he would consult with Watson. According to McMillan, she followed up with Sargent who informed her that he did not have authority to act on the matter. Thereafter, McMillan periodically followed up with Sargent to see if he would prepare a recommendation for her.

In May 1997, McMillan learned that back in December 1996 an individual named Jeffrey Stern had been recommended for a promotion to the GS-14 level by his immediate supervisor, Mays. Despite the submission, Watson did not send the recommendation to headquarters for final approval. Upon discovering that a promotion recommendation had been prepared for Stern, McMillan confronted Sargent and again requested that he recommend her for promotion. McMillan testified that Sargent informed her that the Commission's failure to promote her was not a result of any inaction on his part, and within a few days he prepared and submitted a memorandum to Watson recommending McMillan for promotion. McMillan requested a meeting with Watson to discuss the matter at which she testified Watson informed her that he would send her promotion recommendation to headquarters, but would not make the request retroactive because she was not "emotionally ready to be a GS-14 at the time the 14 slots were first authorized."

Watson thereupon concurred in Sargent's recommendation of McMillan and forwarded it to headquarters along with Mays's recommendation of Stern. Before the promotions were approved, however, a freeze went into effect. Approximately a year later, on June 26, 1998, Stewart issued another memorandum, this time allowing the regional attorney, Watson, to sign off on promotions of attorneys from the GS-13 to the GS-14 level. McMillan

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and Stern were again recommended by their respective immediate supervisors; Watson approved McMillan's promotion in August 1998 and approved Stern's promotion several months later.

McMillan's Title VII claim was essentially that she and Stern were similarly situated and she was discriminated against based on her gender when Stern received consideration for promotion in December 1996 and she was not considered until May 1997, despite the fact that she ultimately received her promotion before Stern.

McMillan also asserted a claim under the Equal Pay Act of 1963 based on a disparity in pay for allegedly equal work by her and Charles Guerrier, a GS-14 attorney in the office. In 1988, a GS-14 position was created by the Commission for the Cleveland office and Charles Guerrier was promoted to fill the position. The basis of McMillan's equal pay claim is that from approximately 1991 through 1998, she and Guerrier were doing the same work for unequal pay and that the Equal Pay Act required the Commission to create another GS-14 position or reduce the complexity of her work.

A. District Court's Conduct During McMillan's Testimony

On appeal, McMillan claims that the district court's questioning of her during the trial was hostile and biased and therefore an abuse of discretion that denied her right to a fair trial. According to McMillan, the district court "belittled her and interrupted her answers" and "misrepresented the evidence in a way that was biased against [her]." McMillan points to several pages in the transcript where the district court extensively questioned her regarding the facts of her claims, and specific instances where the district court appeared less-than-cordial. For example, the district court cut McMillan's answers short on occasion, asserting that it was merely asking "a simple question." The district court also questioned whether it and McMillan were "speaking the same language," ended a line of questioning with "[t]hat's it? That's your case?," and once suggested that McMillan's attorney had "keyed" her in on an answer. The morning following McMillan's testimony, her counsel moved for a mistrial based on the district court's "onerous interrogatories." McMillan asserted that the district court "move[d] into the role of an advocate rather than the Judge." The district court responded that "[s]he wouldn't answer my question," told counsel that "[i]t's a matter of interpretation, isn't it?" and overruled McMillan's motion.

This Court reviews a district court's conduct during a trial for an abuse of discretion. Nationwide Mut. Fire Ins. Co. v. Ford Motor Co., 174 F.3d 801, 805 (6th Cir.1999). We have stated that a trial judge is the "governor of the trial" and is charged with "assuring that the trial runs smoothly and [ ] is free to ask questions for the purpose of clarifying the testimony and to elicit the truth." Id. at 805 (citing United States v. Hickman, 592 F.2d 931, 933 (6th Cir.1979)). In doing so, however, the district judge must "always be calmly judicial, dispassionate and impartial. He should sedulously avoid all appearances of advocacy as to those questions which are ultimately to be submitted to the jury." Hickman, 592 F.2d at 933 (quoting Frantz v. United States, 62 F.2d 737, 739 (6th Cir.1933)).

Actual impartiality as well as the appearance of impartiality is "critical because the judge's every action is likely to have a great influence on the jury." Nationwide, 174 F.3d at 805. An indication by the trial court of "outright bias or

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belittling of counsel is ordinarily reversible error," id. at 808, and it is also reversible error if the trial "was so infected with the appearance of partiality" that the trial court's interjections must "inevitably have left the jury" improperly influenced, id. More specifically, "the harmless error doctrine is inapplicable in cases where judicial bias and/or hostility is found to have been exhibited at any stage of a judicial proceeding." Id. (quoting Anderson v. Sheppard, 856 F.2d 741, 746-47 (6th Cir.1988)). The Hickman panel did mention the possibility that in some cases judicial misconduct might not merit reversal, but the only case cited was where the majority of the trial court's comments were "out of the presence of the jury, were provoked by the conduct of counsel, and were directed against both sides." Hickman, 592 F.2d at 934 (citing United States v. Weiss, 491 F.2d 460, 467-68 (2d Cir.), cert. denied, 419 U.S. 833, 95 S.Ct. 58, 42 L.Ed.2d 59 (1974)).

While "[w]e do not look with favor on extensive examination of witnesses by the trial judge in a jury trial," United States v. Carabbia, 381 F.2d 133, 139 (6th Cir.1967), a trial court may...

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