Omotosho v. Giant Eagle, Inc.

• Decision Date: 31 January 2014
• Docket Number: Case No. 4:11CV00441.
• Citation: 997 F.Supp.2d 792
• Court: U.S. District Court — Northern District of Ohio
• Parties: Ernest E. OMOTOSHO, Plaintiff, v. GIANT EAGLE, INC., Defendant.

997 F.Supp.2d 792

Ernest E. OMOTOSHO, Plaintiff,

v.GIANT EAGLE, INC., Defendant.

Case No. 4:11CV00441.

United States District Court,

N.D. Ohio,

Eastern Division.

Jan. 31, 2014.

Martin S. Hume, Youngstown, OH, for Plaintiff.

Elly Heller—Toig, James F. Rosenberg, Stephanie Maren Weinstein, Marcus & Shapira, Pittsburgh, PA, Richard J. Thomas, Henderson Covington Messenger Newman Thomas, Youngstown, OH, for Defendant.

MEMORANDUM OF OPINION & ORDER [Resolving ECF No. 116]

BENITA Y. PEARSON, District Judge.

Plaintiff Ernest E. Omotosho presents the Court with a motion for a new trial. ECF No. 116. A trial of Plaintiff's claim that he was wrongfully discharged from employment because of his race, African American, resulted in an unanimous verdict in favor of Defendant Giant Eagle, Inc. No African Americans sat on the jury that rendered the verdict. No African Americans were on the panel from which the jury was selected. Plaintiff asserts that he was denied his right to a jury selected from a fair cross section of the community, and, therefore, the jury selection process used by the Northern District of Ohio failed to comply with the Jury Selection and Service Act of 1968 (“JSSA”), 28 U.S.C. § 1861 et seq.

The Court has considered the briefs submitted by the parties, studied the evidence, and reviewed the governing law. The evidence shows that African Americans are significantly underrepresented in the pool of qualified candidates available for jury service in Youngstown, Ohio. Although the Court believes that measures can and must be undertaken to improve this shortcoming of the jury selection process, Plaintiff's motion for a new trial is denied because he did not make a prima facie showing that the fair cross section requirement of the JSSA was violated.

I. Factual and Procedural Background

This case had its genesis in the decision of Defendant, a regional supermarket chain, to fire Plaintiff as a stock clerk because he allegedly consumed an unpaid food item in violation of Defendant's workplace policy. ECF Nos. 48 at 1–2; 51 at 2–3. Count One of the complaint alleged that white employees had committed similar or worse infractions but, unlike Plaintiff, were not terminated from employment, and that Plaintiff's discharge “violated [his] rights to be free from racial discrimination.” ECF No. 1–2 at 2. Count Two alleged that Defendant breached contractually binding workplace policies espousing equal opportunities for all employees without regard to race. ECF No. 1–2 at 2–3. Count Three alleged that Defendant's actions constituted “libel and defamation of plaintiff's character.” ECF No. 1–2 at 3–4. Count Four alleged that Defendant wilfully, recklessly, or negligently caused Plaintiff to suffer emotional distress. ECF No. 1–2 at 4.

Defendant removed the action from the Mahoning County Court of Common Pleas on the basis of federal question jurisdiction. ECF No. 1. Noting that the complaint alleged a deprivation of rights secured by a collective bargaining agreement (“CBA”), that a CBA governed all the terms and conditions of Plaintiff's employment, and that Count Two essentially alleged a violation of a CBA, Defendant claimed that the lawsuit implicated federal law, namely, § 301 of the Labor Management Relations Act (“LMRA”).¹ ECF No. 15 at 4–6; see ECF No. 1–2 at 1–3. Defendant also asserted that the LMRA applied because Plaintiff's prayer for relief seeks reinstatement, a CBA-created right. ECF No. 15 at 7. The Court agreed that it possessed federal jurisdiction, and denied a motion filed by Plaintiff to remand the case. ECF No. 17.

The parties forewent the filing of summary judgment motions and commenced a jury trial. Shortly prior to trial, the parties stipulated to the dismissal of Counts Two and Four, and the Court dismissed Count Three as untimely. ECF Nos. 58 and 78. The only matter to be tried was Count One: Plaintiff's claim of unlawful discharge on the basis of his race. After a three-day trial, an eight-member jury, all of whom were Caucasian, returned an unanimous verdict in favor of Defendant.

The issue of the jury's racial composition was first raised by Plaintiff at the start of voir dire. He remarked to the Court that none of the twenty-four individuals comprising the panel that appeared for jury service were African American. He then moved to “stop the voir dire proceedings and conduct a hearing on the process that led us to have a [panel] of all Caucasian[s] and no African–Americans.” The Court—although observing that there appeared to be no African American panelists—denied Plaintiff's motion. Even so, the Court informed the parties that it would hold a hearing after the completion of voir dire and invite a representative from the Clerk's Office to answer questions regarding the jury selection procedures. At the conclusion of that hearing, which was held prior to opening statements, Plaintiff moved for a “mistrial.” He contended that a fair jury had not been selected and that “the statistical likelihood of pooling a 24–member panel that includes no African–Americans in an evenhanded system would be virtually zero.” The Court again denied Plaintiff's motion. Nevertheless, because the Clerk's Office representative conceded that she was not qualified to answer all of Plaintiff's questions, and because Plaintiff had not been given an adequate opportunity to examine the relevant data, the Court allowed Plaintiff to “take up the issue again” after he had a chance to investigate the jury selection procedures further.

Plaintiff did not offer additional evidence to support his jury challenge until after the trial. After the Court entered judgment in favor of Defendant, Plaintiff timely moved for a new trial pursuant to Rule 59. Plaintiff claims he was denied his right under the JSSA to a jury selected from a fair cross section of the community. ECF No. 116. In support of his motion, Plaintiff filed a memorandum of law and a number of exhibits, including the sworn affidavit of Guant–Hwa Andy Chang, a professor of mathematics and statistics; data, reports, and responses provided by the Clerk of Court for the Northern District of Ohio; and U.S. Census data. ECF Nos. 117; 117–1; 117–2; 123–1; 123–2; 123–3; 123–4. Defendant filed a brief in opposition. ECF No. 118. Plaintiff filed a reply and supplemental memoranda, and Defendant filed a supplemental opposition. ECF Nos. 119, 123, 127–1; 131. The motion is ready to be resolved.

II. Legal Standard

Fed.R.Civ.P. 59(a)(1)(A) authorizes a court to grant a new trial “after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” The Sixth Circuit has interpreted Rule 59 to require a new trial when the trial was “unfair to the moving party in some fashion ....” Advance Sign Group, LLC v. Optec Displays, Inc., 722 F.3d 778, 787 (6th Cir.2013) ( quoting Mike's Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 405 (6th Cir.2006)). A district court has “considerable discretion” in deciding whether to grant a Rule 59 motion. Leisure Caviar, LLC v. U.S. Fish & Wildlife Service, 616 F.3d 612, 615 (6th Cir.2010).

III. Discussion

The motion before the Court raises questions concerning whether Plaintiff received his statutory entitlements under the JSSA. The act declares that “[i]t is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.” 28 U.S.C. § 1861. The “fair cross section” language is drawn from the Supreme Court's jurisprudence defining criminal defendants' rights to a fair jury under the Sixth Amendment. In re United States, 426 F.3d 1, 8 (1st Cir.2005). Although the Sixth Amendment does not govern civil cases; Turner v. Rogers, ––– U.S. ––––, 131 S.Ct. 2507, 2516, 180 L.Ed.2d 452 (2011); the Sixth Circuit and its sister courts have adopted the test for evaluating constitutional fair cross section claims as the standard for analyzing fair cross section claims under the JSSA, which applies to civil cases. United States v. Allen, 160 F.3d 1096, 1102 (6th Cir.1998), cert. denied,526 U.S. 1044, 119 S.Ct. 1345, 143 L.Ed.2d 508 (1999); see United States v. Royal, 174 F.3d 1, 6 (1st Cir.1999); United States v. Shinault, 147 F.3d 1266, 1270–71 (10th Cir.), cert. denied,525 U.S. 988, 119 S.Ct. 459, 142 L.Ed.2d 411 (1998); United States v. Clifford, 640 F.2d 150, 155–56 (8th Cir.1981). To establish a prima facie violation of the fair cross section requirement, a litigant must demonstrate:

(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

There is no dispute that African Americans are a “distinctive” group in the community. The salient questions raised by Plaintiff's motion are whether the remaining Duren requirements are met. Plaintiff asserts that the evidence he marshals conclusively shows that, here in Youngstown, the representation of African Americans in jury panels (interchangeably used with “venires”) is not fair and reasonable in relation to the African American presence in the community, and African Americans are systematically excluded from the jury selection process. The Court examines the evidence in the sections below.

A. JSSA's Statutory Requirements

Before proceeding to the substance of Plaintiff's claims, the Court must address the contention that Plaintiff's motion fails to comply with threshold statutory requirements. Defendant claims that the JSSA does not permit Plaintiff to seek a new trial. ECF...