Jottings By An Employer's Lawyer

Tuesday, February 24, 2004

Million Dollar Judgment Goes Up In Smoke - Failure to Allow Use of EEOC Charge For Cross Examination

It is rare that an evidentiary ruling by a court is the basis for reversing a jury's verdict as the reviewing court must find both abuse of discretion and that it affects a substantial right of the objecting party. In Weyers v. Lear Operations Corp. (8th Cir. 02/24/04) [pdf] the defendant overcame both obstacles. Plaintiff's credibility was critical in this hotly contested litigation and the district court's refusal to allow the defendant to cross examine the plaintiff by using her EEOC charge and questionnaire was enough to merit reversal of the favorable judgment below. It was particularly compelling since at trial she testified to a number of events before January 3, but in her charge filed 18 months earlier, she had only mentioned one incident before that date.

Adding insult to injury, the Court also ruled that the individual who plaintiff alleged was responsible for harassment was not a supervisor, as that term is used in terms of applying the Faragher/Ellerth affirmative defense. The Court applied the narrow standard established by another panel of the 8th Circuit earlier this year, "the alleged harasser must have had the power (not necessarily exercised) to take tangible employment action against the victim, such as the authority to hire, fire, promote, or reassign to significantly different duties.”

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