Torres v. Oakland County

• Decision Date: 19 March 1985
• Docket Number: 83-1239 and 83-1453,Nos. 83-1194,s. 83-1194
• Citation: 758 F.2d 147
• Parties: 37 Fair Empl.Prac.Cas. 535, 36 Empl. Prac. Dec. P 35,085, 17 Fed. R. Evid. Serv. 978 Belen TORRES, Plaintiff-Appellant (83-1194), Plaintiff-Appellee (83-1239, 83-1453), v. COUNTY OF OAKLAND and Oakland County Community Mental Health Services Board, jointly and severally, Defendants-Appellees (83-1194), Defendants-Appellants (83-1239, 83-1453).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 147

758 F.2d 147

37 Fair Empl.Prac.Cas. 535,

36 Empl. Prac. Dec. P 35,085,

17 Fed. R. Evid. Serv. 978

Belen TORRES, Plaintiff-Appellant (83-1194) Plaintiff-Appellee (83-1239, 83-1453), v. COUNTY OF OAKLAND and Oakland County Community Mental Health Services Board, jointly and severally Defendants-Appellees (83-1194) Defendants-Appellants (83-1239, 83-1453).

Nos. 83-1194, 83-1239 and 83-1453.

United States Court of Appeals Sixth Circuit.

Argued Nov. 29, 1984.

Decided March 19, 1985.

Ali Chui Karega (argued), Glotta, Adelman, Dinges & Riley, Detroit, Mich., for Belen Torres.

Malcolm D. Brown (argued), Steven J. Fishman, Bloomfield Hills, Mich., for County of Oakland, etc. in Nos. 83-1194 and 83-1453.

Steven J. Fishman, Malcolm D. Brown (argued), William T. McLellan, Bloomfield Hills, Mich., for County of Oakland, etc. in No. 83-1239.

Before KEITH and CONTIE, Circuit Judges and PHILLIPS, Senior Circuit Judge.

CONTIE, Circuit Judge.

Belen Torres appeals a judgment entered upon a jury verdict in favor of the defendants, County of Oakland and Oakland Community Mental Health Services Board, in this employment discrimination action brought under Title VII and 42 U.S.C. Sec. 1981. Torres' complaint alleged discriminatory treatment based on her national origin. The defendants cross-appeal the district court's denial of attorney's fees. See 42 U.S.C. Sec. 1988.

I.

Because Torres does not challenge the sufficiency of the evidence, the facts may be briefly stated. Torres is a Filipino by birth but has become a United States citizen. She has a Masters degree in social work and has worked for the defendants since September 1979 as a "casework supervisor."

At a meeting in February of 1980, Torres' supervisor, Norbert Birnbaum, used the term "ass" or "asshole" in reference to her. Torres offered some evidence to show that this was purely name-calling. The defendants offered evidence tending to show that, in context, the remark was that Torres would make an "ass" or "asshole" of herself if she continued to discuss subjects after the meeting's discussion had moved to other matters on the agenda.

Torres also offered evidence that her six-month evaluation was downgraded from "outstanding" to "average" in one category without consulting her. The defendants admitted that the evaluation was unilaterally downgraded, but presented evidence tending to show that the change was required by uniformly applied guidelines for attendance. The evaluation form itself reveals that in seven out of eight categories Torres did receive a rating of "outstanding"; only in the eighth category, for attendance, was she rated as "average."

In 1980, the Board decided to create a new supervisory position. Torres applied for this opening but was not promoted. The defendants did not dispute that Torres possessed the general qualifications for this position but instead presented evidence tending to show that there was a high degree of dissension in the ranks of their employees. Thus, it was advisable, in the defendants' view, to hire a new employee to fill the position rather than to promote someone from within the ranks.

II.

Torres' first argument is that the trial court erred in admitting certain testimony of Dr. Quiroga into evidence. Dr. Quiroga is the defendants' Director of Children's Services and took part in selecting the person to fill the new supervisory position. During the examination of Dr. Quiroga by the defendants, the following exchange took place:

Q. It is true, Dr. Quiroga, that you did not believe that Ms. Torres had been discriminated against because of her national origin in that interview process?

MR. KAREGA: Objection, your Honor.

THE COURT: No, she may state her opinion on that.

A. That is correct.

Torres argues that Dr. Quiroga's opinion testimony was not proper under Federal Rule of Evidence 701 both because it was not sufficiently based on personal perception and because it was testimony containing a legal conclusion. ¹

Federal Rule of Evidence 701 provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact and issue.

The essence of Torres' first argument is that Dr. Quiroga's testimony required her to know the intent or state of mind of Dr. Malueg, who ultimately made the decision not to promote Torres, and that an opinion on another's intent cannot be "rationally based on the perception of the witness."

The illogicality of this argument has been succinctly demonstrated by Wigmore:

The argument has been made that, because we cannot directly see, hear, or feel the state of another person's mind, therefore testimony to another person's state of mind is based on merely conjectural and therefore inadequate data. This argument is finical enough; and it proves too much, for if valid it would forbid the jury to find a verdict upon the supposed state of a person's mind. If they are required and allowed to find such a fact, it is not too much to hear such testimony from a witness who has observed the person exhibiting in his conduct the operations of his mind.

2 J. Wigmore, Wigmore on Evidence Sec. 661 (J. Chadbourn rev. 1979). Another commentator explains the requirement that a lay witness' opinion testimony must be "rationally based on the perception of the witness" as merely requiring that "the opinion or inference is one which a normal person would form on the basis of the observed facts." See 3 J. Weinstein & M. Berger, Weinstein's Evidence p 701, page 701-11 (1982). Accordingly, witnesses have been allowed to give opinions on whether another person subjectively believed that he would be shot by an aggressor, see John Hancock Mutual Life Insurance Co. v. Dutton, 585 F.2d 1289, 1293-94 (5th Cir.1978), and, in a civil rights action, that an arrest was "motivated by racial prejudice," see Bohannon v. Pegelow, 652 F.2d 729, 731-32 (7th Cir.1981). As the Fifth Circuit stated in Dutton:

When, as here, the witness observes first hand the altercation in question, her opinions on the feelings of the parties are based on her personal knowledge and rational perceptions and are helpful to the jury. The Rules require nothing more for admission of the testimony.

Dutton, 585 F.2d at 1294.

The record in this case clearly establishes that Dr. Quiroga was privy to the details of Dr. Malueg's selecting the new supervisor. The foundational requirement of personal knowledge of the outward events has thus been satisfied. Since we do not believe that it is beyond the ken of an ordinary person to infer from another's outward actions what his inward feelings are regarding a third person's national origin, Dr. Quiroga's testimony was rationally based on her perceptions.

Torres' second argument rests on the last clause in Rule 701, that the opinion must be "helpful" to the jury. She argues that because Dr. Quiroga's testimony was couched as a legal conclusion, it was not helpful to the jury. We agree.

At the outset, it should be noted what we do not decide. Since Federal Rule of Evidence 704 provides that "testimony ... otherwise admissible is not objectionable because it embraces the ultimate issue to be decided," Dr. Quiroga's testimony cannot be challenged as an improper conclusion on an ultimate fact. The Advisory Committee notes point out, however, that Rule 704 "does not lower the bars so as to admit all opinions." The effect of Rule 704 is merely to remove the proscription against opinions on "ultimate issues" and to shift the focus to whether the testimony is "otherwise admissible." See United States v. Baskes, 649 F.2d 471, 479 (7th Cir.1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1706, 68 L.Ed.2d 201 (1981) ("Rule 704, however, does not provide that witnesses' opinions as to the legal implications of conduct are admissible."). As the Advisory Committee note explains, certain opinions which embrace an ultimate issue will be objectionable on other grounds.

Under Rule 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, "Did T have capacity to make a will?" would be excluded, while the question "Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and formulate a rational scheme of distribution?" would be allowed.

The problem with testimony containing a legal conclusion is in conveying the witness' unexpressed, and perhaps erroneous, legal standards to the jury. This "invade[s] the province of the court to determine the applicable law and to instruct the jury as to that law." F.A.A. v. Landy, 705 F.2d 624, 632 (2d Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 243, 78 L.Ed.2d 232 (1983). See also Marx & Co. v. Diner's Club, Inc., 550 F.2d 505, 509-10 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977) ("It is not for witnesses to instruct the jury as to applicable principles of law, but for the judge."); 3 J. Weinstein & M. Berger, supra, at p 704, page 704-11. Although trial judges are accorded a relatively wide degree of discretion in admitting or excluding testimony which arguably contains a legal conclusion, see Stoler v. Penn Central Transportation Co., 583 F.2d 896, 899 (6th Cir.1978), that discretion is not unlimited. This discretion is appropriate because it is often difficult to determine whether a legal conclusion is implicated in the testimony. See, e.g., Owen v. Kerr-McGee Corp., 698 F.2d 236,...