Plummer v. Western Intern. Hotels Co., Inc.

• Decision Date: 03 December 1981
• Docket Number: No. 79-3473,79-3473
• Parties: 26 Fair Empl.Prac.Cas. 1292, 27 Empl. Prac. Dec. P 32,131, 9 Fed. R. Evid. Serv. 234 Jeanette J. PLUMMER, Plaintiff-Appellant, v. WESTERN INTERNATIONAL HOTELS COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 502

656 F.2d 502

26 Fair Empl.Prac.Cas. 1292,

27 Empl. Prac. Dec. P 32,131,

9 Fed. R. Evid. Serv. 234

Jeanette J. PLUMMER, Plaintiff-Appellant, v. WESTERN INTERNATIONAL HOTELS COMPANY, INC., Defendant-Appellee.

No. 79-3473.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 1981.

Decided Sept. 14, 1981.

As Amended Nov. 24, 1981.

Rehearing and Rehearing En Banc Denied Dec. 3, 1981.

Don S. Willner, Willner, Bennett, Bobbitt & Hartman, Portland, Or., for plaintiff-appellant.

Katherine H. O'Neil, Portland, Or., argued for defendant-appellee; Paul D. Dewey, Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, Or., on brief.

Appeal from the United States District Court for the District of Oregon.

Before SNEED and BOOCHEVER, Circuit Judges, and CRAIG, ^* District Judge.

BOOCHEVER, Circuit Judge.

Jeanette Plummer, a black person, filed a civil rights suit against her employer, Western International Hotels Company (Western), alleging racial discrimination in passing her over for promotion despite her qualifications and seniority. The district court entered judgment on a jury verdict for Western. Plummer contends that the district court committed reversible error by excluding from evidence a finding of "reasonable cause" by the Equal Employment Opportunity Commission (EEOC), and by

applying Oregon's two year statute of limitations to limit her claim under 42 U.S.C. § 1981. We agree with both contentions, reverse the district court judgment for Western, and remand for a new trial.

FACTS

Plummer began working as a hostess for Western in 1960, and was promoted to general cashier in 1965, a position she held until her disability retirement in 1978. The parties agree that Plummer performed her job well, and witnesses for Western testified that Plummer was offered several opportunities for promotion, which she turned down.

In March of 1973, Wanda Goodrich, a white woman, was promoted to assistant controller, although she had less seniority than Plummer. At trial, Plummer testified that the job vacancy was never announced, and she claimed that Goodrich was promoted as a result of a "buddy system" which discriminated against Western's black employees. Plummer contended that she was equally qualified for the assistant controller position, and had more seniority than Goodrich. Western contended that Goodrich had more on-the-job training in accounting and actively pursued the promotion, while Plummer never expressed an interest in the job.

Because of the Goodrich promotion and other alleged acts of discrimination, ¹ Plummer filed a discrimination complaint, with the EEOC on August 10, 1973. After a lengthy investigation, the EEOC found that there was "reasonable cause" to believe Plummer's charges of racial discrimination were true, and issued a determination dated October 19, 1976. After unsuccessful efforts at conciliation, Plummer was issued a right to sue letter on June 21, 1977. Plummer filed suit on July 1, 1977, claiming racial discrimination in promotion under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1870, 42 U.S.C. § 1981.

Trial was held in May of 1979 in the district of Oregon, before visiting District Judge Waters. Although a jury trial is not generally available in a Title VII case, the Title VII and section 1981 claims were presented together. Therefore the case was tried before a jury. ² In order to counter Western's testimony that it did not discriminate, Plummer sought to introduce the EEOC determination of reasonable cause that the discrimination charges were true. The court refused to allow introduction of the determination itself, although it informed Plummer's counsel that the underlying EEOC documentation was admissible. ³

At the conclusion of trial, the court instructed the jury that for the purposes of the section 1981 claim, it should only consider Western's conduct after July 1, 1975. The court made this determination by applying Oregon's two year tort statute of limitations from the date of filing the suit, July 1, 1977. Or.Rev.Stat. § 12.110(1). ⁴ Therefore the main basis for Plummer's suit, the Goodrich promotion, was not part of the section 1981 cause of action. The jury did hear evidence on Western's conduct prior to July 1, 1975, however, in considering Plummer's Title VII cause of action.

The jury returned a verdict for the defendant on both causes of action, and judgment was entered on June 11, 1979. Plummer appeals, challenging the exclusion of the EEOC determination and the application of Oregon's two year tort statute of limitations.

DISCUSSION

I. Admissibility of the EEOC Determination

Plummer sought admission of the EEOC reasonable cause determination as evidence of discrimination, relying on Bradshaw v. Zoological Society of San Diego, 569 F.2d 1066 (9th Cir. 1978). The district court sustained Western's objection to the admission of the determination. In Bradshaw, we held that it is reversible error for a trial court to strike an EEOC determination from a Title VII complaint, stating:

In our judgment the Commission's Determination of Probable Cause was admissible evidence in a trial de novo on appellant's claim. This being so, there was little occasion to strike it from the complaint. The court's remark in granting the motion to strike to the effect that it was "to be given no weight in this court's determination of the case" was error. It remains with the district court, of course, to determine the degree of weight to be assigned to this evidence.

Id. at 1069. We recognized that a civil rights plaintiff has the right to a de novo trial in federal court, and while prior administrative determinations are not binding, they are admissible evidence. Id.; Chandler v. Roudebush, 425 U.S. 840, 863, 96 S.Ct. 1949, 1960, 48 L.Ed.2d 416 (1976). See Clark v. Chasen, 619 F.2d 1330, 1337 (9th Cir. 1980) (administrative record compiled prior to trial is admissible evidence).

In Bradshaw we relied on the first case to address this issue, Smith v. Universal Services, Inc., 454 F.2d 154, 156-58 (5th Cir. 1972). ⁵ The Smith court reversed the trial court's exclusion of an EEOC report and determination, because it would be a waste of EEOC manpower to exclude the highly probative report. The appellate court found that merely because the report was harmful to the defendant, it was not prejudicial. Id. at 157. See Blizard v. Fielding, 572 F.2d 13, 16 (1st Cir. 1978) (EEOC findings are entitled to great deference by district court, but failure to make reference to findings in court opinion is not reversible error).

Western makes the novel argument that Bradshaw should not apply in this case because Title VII and section 1981 claims were joined, and the case was tried to a jury. ⁶ In such a case, Western contends that the trial court should have discretion to exclude an EEOC determination because there is a danger that the jury might be confused. Presumably, in a bench trial the judge is capable of giving the determination appropriate weight. See Bradshaw, 569 F.2d at 1069. If the jury had been allowed to consider the EEOC determination, which was prepared pursuant to Title VII, ⁷ Western argues that the jury would have given the determination too much weight in evaluating the section 1981 cause of action.

The cases applying the per se rule of admissibility did not involve jury trials. Bradshaw, 569 F.2d at 1069; Smith, 454 F.2d at 156-57. In Bradshaw, however, the plaintiff brought suit under both Title VII and 42 U.S.C. § 1983. 569 F.2d at 1067. Therefore the plaintiff may have requested a jury trial on remand. The court did not foreclose the possibility of jury consideration of the EEOC determination.

An EEOC determination, prepared by professional investigators on behalf of an impartial agency, has been held to be a highly probative evaluation of an individual's discrimination complaint. See Bradshaw, id.; Peters v. Jefferson Chemical Co., 516 F.2d 447, 450-51 (5th Cir. 1975); Smith, 454 F.2d at 157. But see Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir. 1972); Smith, 454 F.2d at 160-61 (Dyer, J., dissenting from denial of en banc rehearing). If we were to adopt the distinction between jury and non-jury trials urged by Western, in many cases Bradshaw could in effect be ignored and the value of EEOC determinations wasted. The factual background in a Title VII lawsuit based on racial discrimination will often support a cause of action under 42 U.S.C. § 1981 as well. See Johnson v. Railway Express Agency Inc., 421 U.S. 454, 457-61, 95 S.Ct. 1716, 1717-20, 44 L.Ed.2d 295 (1975) (discussing the overlap between Title VII and section 1981). We believe that Bradshaw should apply to such cases even when the plaintiff requests a jury trial. See note 6 supra.

Admittedly, there is support for the general proposition that the admissibility of evidence varies between jury and non-jury trials. The admission of improper evidence before a jury is grounds for reversal if a party's substantial rights are affected. Fed.R.Evid. 103(a); Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 36, 84 S.Ct. 1, 2, 11 L.Ed.2d 4 (1963). In a judge-tried trial, however, "the admission of incompetent evidence over objection will not ordinarily be a ground of reversal if there was competent evidence received sufficient to support the findings. The judge will be presumed to have disregarded the inadmissible and relied on the competent evidence." E. Cleary, McCormick on Evidence § 60, at 137 (2d ed. 1972) (footnote omitted).

Rule 103(c) of the Federal Rules of Evidence admonishes against inadmissible evidence "being suggested to the jury by any means." Here, however, we are dealing with evidence that is not only admissible, but has been held to be highly probative. There is therefore no more reason to keep the matter from a jury's consideration than from a judge's.

A civil rights plaintiff has a difficult burden of proof, ⁸ and...