Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 386 (9th Cir. 1989)

Robert SCOTT, William McCloud, Robert Martin, Plaintiffs-Appellants,v.AMERICAN BROADCASTING COMPANY, INC., Defendant-Appellee.

No. 87-6452.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 1989.Decided June 27, 1989.

Before SCHROEDER, FLETCHER and TROTT, Circuit Judges.


Appellants Robert Martin, William McCloud and Robert Scott initiated this lawsuit against American Broadcasting Company ("ABC") in March of 1985 alleging, inter alia, unlawful discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, and pendent claims for intentional and negligent infliction of emotional distress. The district court granted ABC's motion for summary judgment on the pendent state claims. The section 1981 claim was tried before a jury, and the Title VII claim submitted to the district court. ABC prevailed on all claims. Appellant1  seeks reversal on the grounds that the evidence does not support the jury's verdict or the district court's findings, the district court abused its discretion in making several evidentiary rulings, and the court abused its discretion by refusing to grant a new trial on the basis of problems with the wording of the special verdict form. We affirm.


Appellant Robert Martin was hired by ABC as a regular Group 2 engineer in December of 1981.2  Group 2 engineers apparently perform a number of different functions, including video camera engineer, projection engineer, light direction engineer, recording engineer, microphone boom operator, video control engineer, utility, second audio and boom dolly operator. Group 2 engineers have no right to work exclusively in any particular function. They are paid the same weekly wage without regard to seniority or job function.

Group 2 engineers work both on ABC shows and shows produced by outside companies which use ABC facilities. Assignments of Group 2 engineers are not based on seniority, but on a variety of factors, including experience on different types of shows, name recognition, quality of work, staffing requirements, and personal requests by show producers.

The thrust of Martin's argument is that, despite his qualifications, he was denied the opportunity to utilize his skills as a video camera operator. According to Martin, he was continually passed over for the better assignments and relegated to less desirable jobs.3  He believes that the difficulty he has experienced in advancing his career is due to racial discrimination.

ABC admits that Martin has not received the best assignments, but contends that Martin's lack of career advancement is due to poor performance or attitude problems. Specifically, ABC points to testimony at trial that on a number of occasions Martin exhibited a lack of enthusiasm and diligence, as well as an unwillingness to assist in all aspects of the job. ABC argues that it carried its burden at trial of establishing legitimate, non-discriminatory reasons for Martin's job assignments, and that the jury and trial court correctly found that ABC had no intent to discriminate against Martin on the basis of race. Martin contends that the jury verdict was not supported by the evidence, and that the district court erred in denying his motion for a new trial. He also challenges the wording of the special verdict form submitted to the jury, and several decisions by the district judge to admit or exclude evidence. We have jurisdiction under 28 U.S.C. § 1291.


Martin argues that the district court erred in denying his motion for a new trial because the jury's verdict was not supported by the evidence. We review a district court's denial of a motion for a new trial for abuse of discretion. Ortiz v. Bank of America Nat'l Trust and Savings Ass'n, 852 F.2d 383, 388 (9th Cir. 1987). When the motion is based on a challenge to a jury verdict, we must determine whether the verdict is supported by substantial evidence. Id.

Citing Boykin v. Georgia Pacific Corp., 706 F.2d 1384 (5th Cir. 1983), cert. denied, 465 U.S. 1006 (1984), Martin asserts first that the lack of objective standards used by the predominantly white personnel at ABC in assigning work, coupled with the low percentage of blacks in certain job areas, provides strong evidence of discrimination. However, in Boykin, the Title VII plaintiff presented an array of statistical evidence suggesting that blacks did not receive favorable assignments and promotions in proportions comparable to non-blacks. 706 F.2d at 1387-90, 1391 n. 3. Martin points to no similar statistical evidence in this case. He contends that only four Group 2 engineers shooting camera for ABC in 1984 were black. However, ABC contends that at least six black Group 2 engineers other than the plaintiff have operated camera since 1982. Neither party has provided the additional information necessary to evaluate the significance of these figures (i.e., the total number of black and non-black Group 2 engineers, the number of non-blacks operating camera, and similar figures).4  Martin simply has not built the statistical base necessary for reliance on Boykin.

With respect to the alleged disparate treatment of Martin individually, our review of the record reveals significant evidence suggesting that Martin's lack of career advancement was based on negative evaluations of his experience, attitude and work performance, rather than racial factors. Although Martin contends that these reasons were mere pretext, the jury was entitled on the basis of the evidence presented to find that Martin was not discriminated against because of his race.

B. Martin's Challenge to the Special Verdict Form and Jury InstructionsMartin also attacks the verdict on the grounds that the special verdict form submitted to the jury ignores and distorts the criteria for establishing disparate treatment set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and that the special verdict and the district court's instructions on intent were insufficient to provide the jury with guidelines for evaluating ABC's alleged intent to discriminate. These objections are without merit.

Martin's first contention is that the special verdict form ignores the elements and order of proof set out in McDonnell Douglas. Under McDonnell Douglas, a plaintiff who can establish that he belongs to a racial minority, applied for a job for which an employer continued to seek applicants, and was rejected despite his qualifications for the job, has established a prima facie case of disparate treatment, based on an inference of unlawful discrimination. 411 U.S. at 802; see also Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). Martin is correct to the extent that the questions in the special verdict form do not track the McDonnell Douglas analysis. The first question on the special verdict form required the jury to answer whether ABC had the intention to discriminate against Martin in employment because of race. Because the jury determined that the answer was no, it did not reach the remaining questions on the form.5 

The fact that the special verdict form does not track the McDonnell Douglas order of proof does not, in itself, constitute error. A plaintiff meeting the McDonnell Douglas criteria merely establishes a prima facie case. Once this is done, the burden shifts to the defendant to articulate a legitimate non-discriminatory reason for its employment decision. If it does so, the plaintiff must then demonstrate that the employer's alleged reason is a pretext for a discriminatory motive. Lowe, 775 F.2d at 1004-05 (citing McDonnell Douglas, 411 U.S. at 802-05). The focus of the trial was whether ABC's articulated reasons for Martin's lack of career advancement were legitimate or pretextual. Thus, the McDonnell Douglas factors, which are used merely to establish a prima facie case, were no longer directly at issue in this case.

Moreover, the jury instructions as a whole clearly informed the jury of the proper chain of reasoning to determine whether an inference of discrimination is justified.6  Although Martin asserts that " [t]he large number of intentionals shown in the proposed instructions makes it virtually impossible for appellants to come up to the level of proof required in that instruction," Martin does not attempt to explain how the instruction departs from relevant legal authority. The intent instruction is consistent with our analysis in Lowe, 775 F.2d at 1004-05, and correctly instructed the jury about the proper method by which discriminatory intent may be inferred. The jury determined that intent to discriminate could not be inferred from the facts before it, and answered Question 1 of the special verdict form accordingly. This determination is supported by substantial evidence. Any flaws in the special verdict form do not warrant a new trial.

C. Martin's Challenge to the Court's Evidentiary Rulings

Martin alleges several errors in evidentiary rulings that he claims are prejudicial. The district court's decisions regarding the admissibility of evidence are reviewed for abuse of discretion. Mitchell v. Keith, 752 F.2d 385, 392 (9th Cir.), cert. denied, 472 U.S. 1028 (1985). The district court's evidentiary rulings are not grounds for reversal absent some prejudice. Kisor v. Johns-Manville, 783 F.2d 1337, 1340 (9th Cir. 1986).

First, Martin claims that the trial court erred by admitting testimony from ABC witnesses outlining statements from third parties expressing dissatisfaction with Martin's work performance. However, as Martin admits, the information was not admitted to prove the truth of the statements made to the ABC employees, but to show the basis of their opinions of Martin's performance. This is relevant to ABC's intent. See Haddad v. Lockheed Corp., 720 F.2d 1454, 1456 (9th Cir. 1983). Thus, the court's decision to admit the testimony was not erroneous.

Martin next claims that the district court erred in refusing to admit evidence under Rule 406 establishing ABC's habit or routine practice of engaging in discrimination. He particularly emphasizes the exclusion of testimony from Mr. Morehead, an employee of ABC, about ABC's general practices relating to employment of blacks and women. The district court's refusal to admit this evidence was probably not erroneous. Rule 406 may be invoked only where a high degree of specificity and frequency of uniform response is present. Simplex, Inc. v. Diversified Energy Systems, Inc., 847 F.2d 1290, 1293 (7th Cir. 1988) (allegation of late and inadequate performance of other contracts insufficient to rise to level of semi-automatic conduct necessary to establish routine practice of an organization under Rule 406). The challenged evidence appears to be merely Morehead's subjective perception of ABC's practices. There is an insufficient basis from which to conclude that ABC has a routine practice of discrimination.

Even if the exclusion of this testimony was erroneous, Martin has failed to demonstrate prejudice. Morehead was allowed to testify about ABC's treatment of particular individuals about whom Morehead possessed personal knowledge. Reporter's Transcript (RT) at 490. He was also allowed to testify that it was difficult for blacks to make progress at ABC. Id. at 491. In light of this testimony, exclusion of Morehead's opinion as to ABC's reputation for poor treatment of blacks and women was not prejudicial.

Finally, Martin claims that the court erred by refusing to allow him to introduce statistical evidence to the jury. This claim is without merit. Early in the proceedings, the court did indicate that statistical evidence would not be allowed before the jury on the section 1981 claim. Id. at 17-19. However, the court subsequently reversed that decision, allowing the parties to present statistical evidence to the jury. Martin's counsel chose not to do so, but rather to rely upon introduction of W-2 forms to help substantiate plaintiffs' claims. Id. at 462-64. Any harm to Martin's case arising from failure to introduce statistical evidence in support of the discrimination claim therefore is not attributable to the trial court.

Martin claims that the district court erred in ruling for ABC because it simply adopted the jury's findings and failed to exercise independent judgment in ruling on his Title VII claim. Martin is incorrect. Even if we accept, for the purposes of argument, Martin's contention that a district court is required to exercise independent judgment in ruling on a Title VII claim, there is no basis upon which to conclude that the district court failed to do so in this case. The district judge's comments on the record, while indicating some reluctance on the part of the judge to reach a verdict contrary to that of the jury, do not indicate an intention merely to defer to the jury's verdict. The judge stated:

I have to think about what the jury was thinking.... I will have to think about what they decided and what I am going to decide.... What goes through my mind is different than what goes through the mind maybe of the juror....

RT at 1302.

Moreover, the district court's extensive findings of fact and conclusions of law on the Title VII issue demonstrate an independent evaluation of the testimony presented at trial. These extensive findings could not have been derived merely from the jury's single conclusion that ABC did not intend to discriminate against the plaintiffs. We find in the record substantial evidence to support the district court's findings on the Title VII disparate treatment claim.

Martin also contends that the trial court should have found for him under a disparate impact theory. However, Martin did not present statistical evidence of disparate impact or evidence of the existence of a facially neutral practice or practices having an adverse impact on minorities. Martin's arguments seem more appropriately characterized as disparate treatment arguments. In any event, he fails to point to any evidence suggesting that the district court erred in rejecting this claim.


Each side requests an award of attorney's fees under 42 U.S.C. § 1988. Neither side is entitled to such an award. Martin is entitled to no fees because he is not a "prevailing party." Jensen v. City of San Jose, 806 F.2d 899, 900-01 (9th Cir. 1988). ABC, as a defendant, is entitled to fees only if Martin's claims are groundless or frivolous. Shucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir.), cert. denied, 109 S. Ct. 561 (1988). Although Martin was unsuccessful in this suit, his claims were not frivolous.


The district court did not abuse its discretion in denying Martin's motion for a new trial. The jury's verdict was supported by the evidence, and the special verdict form and jury instructions provided the jury with sufficient guidance. The trial court did not commit reversible error in any of its decisions to admit or exclude evidence. The district court did not err in ruling for ABC on the Title VII claim. Each party is responsible for its own attorney's fees. The judgment below is



This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3


All three plaintiffs filed notices of appeal, but McCloud and Scott were dismissed from the appeal by orders of this court dated August 29, 1988 and December 13, 1988, respectively. Therefore, only the appeal of Martin remains to be decided


Group 2 engineer is a classification under a collective bargaining agreement between ABC and the National Association of Broadcast Employees and Technicians (NABET)


Martin complains both that he is normally assigned to utility jobs (or similar functions) rather than camera work, and that he generally has been assigned to the least desirable shows


The only statistics explored in any detail concern the average wages and overtime hours of black and non-black Group 2 engineers. These statistics suggest no disparities between blacks and non-blacks in these areas, but provide no information relating to the job assignment issue that Martin emphasizes


If the answer to question 1 had been "yes," the jury was to determine whether Martin was treated less favorably by ABC than comparable Group 2 engineers. If so, it then was to determine whether Martin was treated less favorably because of performance, lack of skill, experience or ability. If not, it would finally determine whether Martin was treated less favorably because of his race. If the answer to question 4 had been yes, Martin would prevail on liability, and the jury would then determine the amount of damages. ER at 47-49


One jury instruction, derived from Model Jury Instruction 14.04E, Manual of Jury Instructions for the Ninth Circuit, (West 1985), read:

INTENT. Plaintiffs must show that defendant intentionally discriminated against them because of their race. In deciding whether defendant intentionally discriminated because of plaintiffs' race, your job is to determine what motivated the person or persons who decided plaintiffs' job assignments.

When plaintiffs have offered evidence from which you could conclude that defendant discriminated against them because of their race, defendant may show that it had a reason other than race for its actions. It may also answer plaintiffs' case with evidence which shows a practice of non-discriminatory decisionmaking.

If defendant has shown reasons for plaintiffs' job assignments other than race, plaintiffs may then show that these were not the true reasons for the assignments.

In order for you to find for plaintiffs, you must find from all the evidence that plaintiffs have proved by a preponderance of the evidence that defendant intentionally gave plaintiffs less favorable job assignments than comparable Group 2 engineers because of their race, even if that was not the only reason.