No Bias, Retaliation Claim for Black Lawyer Denied Partnership

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By Kevin McGowan

Aug. 25 — A black associate denied partnership by Ropes & Gray LLP lacks a race discrimination or retaliation claim against the Boston law firm, the U.S. Court of Appeals for the First Circuit ruled Aug. 25.

John H. Ray III failed to raise a jury issue that the firm's nine-member policy committee chose not to recommend him for advancement because of racial animus rather than because of documented concerns with his performance, the First Circuit said.

Ray also lacks evidence to upset a jury verdict the firm didn't unlawfully retaliate against him for filing an Equal Employment Opportunity Commission charge or for contacting several politicians, the NAACP, his alma mater Harvard Law School and a legal news website to publicize his case and to request that Ropes be barred from recruiting at Harvard, the court said.

The court therefore affirmed the district court's grant of summary judgment to the firm on Ray's race discrimination claim and the jury's retaliation verdict under Title VII of the 1964 Civil Rights Act.

‘Good Faith' as Element of Retaliation 

Title VII prohibits retaliation by an employer for an employee's participation in an EEOC proceeding and for an employee's “opposition” to employer conduct he reasonably believes is an unlawful employment practice.

On appeal, Ray argued the district court erred by instructing the jury that it must find he filed his EEOC charge in “good faith” in order to be protected from retaliation under Title VII's participation clause.

“Our precedent makes clear that, unlike opposition activity, a plaintiff who engages in participation activity need not hold a reasonable belief that his employer's actions actually violated Title VII,” Judge Jeffrey R. Howard wrote. Rather, circuit precedent establishes that the participation clause protects an employee “regardless of the merit of his or her EEOC charge,” the court said.

Section 704(a) of Title VII “contains no language indicating that a plaintiff's charges must be valid or even reasonable in order to be protected as participation activity,” the court said.

But the court said “good faith” is distinct from reasonableness and the trial judge didn't necessarily err in telling the jury to consider Ray's good faith in filing the EEOC charge after being denied partnership.

“Ultimately, in this case, we need not definitively decide whether a plaintiff must engage in protected activity in good faith to invoke the protections of Title VII,” Howard wrote.

The First Circuit precedent in Wyatt v. City of Boston, 35 F.3d 13, 65 FEP Cases 1441 (1st Cir. 1994), doesn't “expressly address” the question and Ray cited no other case to support his reading of Wyatt as foreclosing a good-faith requirement, the court said.

Ray also provides no further explanation as to why the court should assume Wyatt intended to hold good faith isn't a required element for a participation clause claim or that “Congress intended to protect from retaliation claims of discrimination made in bad faith,” the court said.

“Simply put, Ray has not set forth a coherent argument on appeal for why the district court erred as a legal matter in requiring him to show good faith for purposes of the participation clause,” Howard wrote. “Thus, we deem his argument waived for lack of development.”

Waiver on Opposition Clause 

Ray argued the trial judge's instructions regarding his opposition clause retaliation claim improperly shifted the jury's attention from Ray's subjective beliefs about his underlying discrimination claim to whether Ray's conduct was reasonable.

But the court said Ray's “deft effort at semantics need not detain us long” because Ray waived his argument in the trial court.

Ray proposed a modification to the jury instructions that said “writing letters of protest in good faith to anyone, including a newspaper or a Congressperson, constitutes ‘protected activity.' ”

The trial judge then instructed the jury that “writing such a protest letter is a protected activity if it is done in good faith and based on a reasonable belief that an employer has engaged in an unlawful employment practice such as retaliation.”

Ray's lawyer at trial raised no objection to that instruction after the jury was charged, the First Circuit said. Having requested the alteration but then bypassing the opportunity to object when the trial judge charged the jury otherwise, Ray waived any right to object on appeal, the court said.

“Because Ray has not demonstrated that the district court's participation clause and opposition clause instructions were erroneous in this case, the jury's verdict on the retaliation claims is affirmed,” the court said.

Racial Animus Evidence Absent

The First Circuit also affirmed summary judgment for the law firm on Ray's race bias claim.

The district court found, and the parties don't contest, that Ray made a prima facie case of race discrimination and the law firm advanced a legitimate, nondiscriminatory justification for refusing to advance Ray, namely his negative performance reviews.

“Thus, our sole inquiry is whether Ray established a genuine issue of material facts that Ropes's justification is pretextual and the firm's action was, in fact, ‘improperly motivated by discrimination,' ” the First Circuit said. “To do so, it is not sufficient for Ray ‘merely to impugn the veracity of the employer's justification.' ”

Instead, Ray must produce evidence the real reason for the law firm's actions was “discriminatory animus,” the court said.

Ray cited “comparator evidence” of other Ropes associates who were promoted to partner or counsel; the firm's alleged promotion of other associates based on “racial” characteristics; the subjective nature of Ropes's review process; and the firm's poor record historically of advancing black associates to partnership.

But that evidence, considered separately or in the aggregate, doesn't raise a jury issue “that the actual reason for Ray's dismissal was racial animus,” the court said.

Although Ray produced evidence of negative comments in the performance reviews of non-black associates who were promoted, the court said those reviews were qualitatively different from Ray's reviews. In any event, “Ray does not dispute that Ropes's partnership decisions are based on a number of factors beyond the quality of an associate's work,” the court said. “Ray also does not dispute that the negative comments made in his reviews extend far beyond his work product.”

For example, Ray's evaluations include repeated criticisms that he had insulted co-workers, demeaned junior associates and passed off work to others, the court said.

“Suffice it to say that these comments were distinctively more extreme, and more numerous, than those contained in the evaluations of any of the comparators [Ray] offered,” the court said. “Thus, those other associates' evaluations bear ‘too little similarity' to Ray's ‘to furnish a basis for suspecting racial discrimination.' ”

To the extent Ray argued the firm's subjective review process lends credence to his racial animus claim, the court said his argument “ultimately founders because it is supported only by speculation.”

Ray provides “no evidence that creates a credible inference that his own review process was based on any racial animus,” the court said.

Ray alleged two racially charged remarks by partners during his tenure. One purportedly asked Ray to serve as the “token black associate” or “black face” on a case. Another partner allegedly recounted a “war story,” the punch line of which was that a Mafia informant “beat a nigger to death.” Ray said he complained internally about both remarks and received negative evaluations as a result.

But the court said even crediting Ray's account, he failed to identify “any connection” between the alleged comments and the firm policy committee's decision “that supports an inference of racial animus.”

‘Troubling' Statistic Not Probative 

Ray cited the statistic that only one black associate has been promoted to partner in Ropes's history.

“If accurate, it is unfortunate—even troubling—that as of the time of trial, Ropes had promoted only a single black lawyer in the 150-year history of the firm,” the court said. “But the statistic nevertheless fails to show pretext here.”

“Ultimately, Ray cites only this bald statistic without making any meaningful connection between the lack of black partners and the Policy Committee's decisionmaking process specific to his promotion,” the court said. “Thus, the bare statistic alone fails to support an inference that Ropes discriminated against Ray.”

Judges Kermit V. Lipez and Rogeriee Thompson joined in the decision.

Ray, of Hanover, Mass., represented himself on appeal. Foley Hoag LLP and Arrowood Peters LLP represented Ropes & Gray.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at