Jury Rejection of Muslim Women’s Job Bias Claims Must Stand

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By Patrick Dorrian

Missing records regarding hiring decisions isn’t enough to disrupt a 2016 jury verdict that rejected claims by the EEOC and a group of Muslim women that they were passed over for jobs cleaning United Airlines planes at Denver International Airport because they wore religious headscarves.

The Equal Employment Opportunity Commission failed to show the trial judge erred when she refused to instruct the jury it could infer that missing records relating to JetStream Ground Services Inc.'s hiring decisions would have shown the company engaged in religious discrimination, the U.S. Court of Appeals for the Tenth Circuit said Dec. 28. The agency brought the 2013 lawsuit on behalf of the workers.

JetStream created the records in 2008, as it was about to take over a contract to clean United planes from AirServ Corp., the Tenth Circuit said. The Muslim women were working for AirServ at the time, and JetStream consulted with an AirServ supervisor regarding which of its employees it should hire when it took over the contract.

None of the Muslim women represented by the EEOC were hired, and the agency sought to review JetStream’s records on its consultation with AirServ to see if they might show discrimination.

The agency cried foul when JetStream turned over an updated version of the Excel spreadsheet the company says it created immediately after its meeting with AirServ, and not the original record or related notes. The EEOC asked the trial court to exclude JetStream witnesses from testifying at trial about the spreadsheet, which allegedly showed that the Muslim women were not among AirServ’s list of recommended hires.

Trial Court Didn’t Err

The agency asked the court to instruct the jury that it could draw an adverse inference against JetStream for its destruction of the original list and related notes.

The trial court declined to instruct the jury it could infer the missing evidence was unfavorable to JetStream. The jury ultimately found against the EEOC and the Muslim women, who intervened in the case to assert claims of their own.

The Tenth Circuit rejected the agency’s contention that the trial court mistook the law. An adverse inference instruction for spoliation of evidence may only be given when there is evidence of bad-faith destruction of the evidence by the party who possessed it, the court said.

The EEOC conceded during closing arguments at trial that the loss of the original spreadsheet and notes wasn’t done in bad faith, Judge Harris L. Hartz said.

Proof of Bad Faith Required

The appeals court rejected the EEOC’s contention that a showing of bad faith isn’t necessary to get an adverse inference instruction when evidence is destroyed in violation of agency regulations requiring all personnel and employment records to be preserved for one year. These records must also be retained indefinitely after a discrimination charge has been filed against the company.

The federal procedural rule covering sanctions for premature destruction of electronic records imposes a bad-faith requirement and the EEOC pointed to no common-sense reason to apply a different standard under the agency’s regulations, Hartz said. “For the court to give an adverse-inference instruction when the violation of the regulation was not in bad faith ‘may tip the balance at trial in ways the lost information never would have,’” the judge wrote.

The EEOC also failed to convince the Tenth Circuit that the lower court erred when it refused to prohibit JetStream witnesses from testifying about the spreadsheet at trial. The agency only raised that argument pre-trial and failed to renew it once the trial began, the appeals court said.

Because the trial judge had deferred a ruling on that request pre-trial, the onus was on the EEOC to raise the question again at trial, Hartz said. Not only did the agency fail to do so, but its lawyers discussed the spreadsheet “at length in their opening statement” at trial, he said. The EEOC therefore waived any argument regarding the exclusion issue, Hartz said.

Judges Paul J. Kelly Jr. and Jerome A. Holmes joined the opinion.

EEOC attorneys in Washington represented the commission. King & Griesen LLP represented the Muslim women as intervenor-plaintiffs. Brenton Legal P.A. represented JetStream.

The case is EEOC v. JetStream Ground Servs., Inc. , 2017 BL 464251, 10th Cir., No. 17-1003, appeal dismissed 12/28/17 .

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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