Opinion
No. 49703-1-I.
Filed: February 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 97-2-09129-2. Judgment or order under review. Date filed: 11/29/2001.
Counsel for Appellant(s), Eric C. De Los Santos, Attorney at Law, 1323 Minor Ave Apt A504, Seattle, WA 98101-4230.
Georgia Trejo Locher, Georgia Trejo Locher PS, 601 SW 152nd St. Ste a Burien, WA 98166-2212.
Counsel for Respondent(s), Erin L. Overbey, Seattle City Attorneys Office, 600 4th Ave Fl 4, PO Box 94769, Seattle, WA 98124-4769.
Seattle City Light demoted Joe Greene from his position as a crew chief to a lineman position following three safety incidents on Greene's crew in a thirteen month period. It then terminated Greene's employment following a seven month absence during which Greene failed to comply with the company's absence and sick leave policies. Greene brought suit against Seattle City Light under chapter 49.60 RCW, alleging that its demotion and termination of his employment were motivated by race discrimination and retaliation. A jury found for Seattle City Light. Greene appeals. We affirm.
FACTS
In 1982, Seattle City Light (City Light) hired Joe Greene, an African American, as a lineworker. Over the years, Greene was actively involved in promoting racial equality among City Light employees. In 1992, Greene sued City Light for race discrimination and retaliation. One of his allegations in that suit was that William Challender, a supervisor, had induced one of Greene's co-workers, David Ingham, to write a letter (Ingham letter) critical of Greene's safety practices at work. As part of Greene's 1992 settlement agreement with City Light, City Light agreed to remove Ingham's letter from Greene's supervisor file. The terms of the settlement agreement also prohibited Greene from renewing any of his pre-1992 claims in future litigation.
David Ingham's letter, dated August 26, 1985, criticized Greene's work practices as dangerous.
Also in 1992, Greene's supervisor, Len Korslund, proposed that Greene be promoted to crew chief. Crew chiefs are responsible for safely executing work orders and are obligated to take full responsibility for any `incidents' and safety violations that occur on their crew. An `incident' indicates an event that is dangerous and has violated policies, procedures or rules, even though it has not necessarily culminated in an accident or injury.
In February 1993, approximately six months after he was promoted to crew chief, Greene violated a number of safety rules and procedures contributing to an `incident' on his crew. About one month later, a second incident occurred on Greene's crew. In March 1993, Korslund gave Greene a written reprimand for the two violations. The reprimand also warned Greene that future violation of workplace safety rules could result in further corrective action, including demotion and termination. Korslund also arranged for Greene to participate in a month-long safety training class, anticipating that he would thereafter return to his duties as crew chief. In February 1994, a third, more serious incident, a `near miss,' occurred. A `near miss' is an incident in which someone might have been seriously harmed or killed, but was not. Greene does not dispute that his work plan leading to the incident violated six safety rules. Greene's supervisors conducted an investigation of the incident. The results of the investigation were forwarded to Steve Church, Manager of City Light's South Electrical Services at the time. Church discussed the incident with four other supervisors, Barbara Harvey-Brayton, City Light's Deputy Superintendent, and staff from City Light's Human Resources division. After discussing corrective options, they recommended that Greene be demoted. Church thereafter sent Greene a letter recommending that he be demoted to a line worker position. The recommendation was based on the two incidents for which Korslund had earlier reprimanded Greene, and the third incident in February 1994. Church also presented the recommendation to Roberta Palm-Bradley, City Light's Superintendent at the time, who was the only person with the authority to impose demotion. Palm-Bradley demoted Greene effective April 11, 1994.
Greene left City Light the day following his demotion and never returned to active duty at City Light. Greene did, however, meet with Palm-Bradley and Beatrice Hughes, Executive Assistant to City Light's Director of Human Resources in March 1994, to discuss the demotion before it was finalized. Greene did not mention at that meeting, or a subsequent meeting with Palm-Bradley, that he was suffering from any condition that rendered him unable to return to work. Palm-Bradley demoted Greene from crew chief to lineworker based on his repeated safety violations. In her demotion letter, Palm-Bradley explained that City Light's conclusion was that Greene required additional safety training in order to perform his duties as a crew chief, and that the demotion would provide him the opportunity to obtain that training. The letter also indicated that Greene would be eligible to return to work as a crew chief after obtaining additional safety training.
Greene does not contest that following his demotion, he did not return to work at City Light. Greene received medical care for health problems following his demotion. He called Eddy Felder, his supervisor at the time, the day after his demotion to advise him that he was under a physician's care. He also informed his acting supervisor, Shelby Tate, on or about February 21, 1994, that he was not at work because he was ill. Greene talked with Tate several times in February, but failed to call City Light's recorded message number to report his absence as City Light policy required. Greene also spoke with John Harris, his direct supervisor, at the end of May when he picked up his paycheck.
By June 1, 1994, Greene had exhausted his vacation and sick leave. He failed to return to work. Greene had not provided City Light with any documentation as to why he was absent. He did not contact his supervisors to inform them he would remain absent or when he expected to return to work. On July 21, 1994, Church sent Greene a letter stating that he needed to contact Harris and to provide him documentation of his medical status. Church informed Greene that he might be eligible for Family and Medical Leave (FML), and sent him a Leave of Absence Form and a Certification of Physician Form, along with information about the Family and Medical Leave Ordinance. Church also informed Greene that he would be processed as a `quit' if he did not respond by July 28, 1994. Church forestalled processing Greene as a `quit' at that time, however.
The FML provides for an employee to take up to 90 days unpaid leave for various purposes, while the City continues to pay the employee's medical premiums.
City Light defines `Unexcused absence' as `[a] period of absence from work without prior notification to, and approval by, the appropriate supervisor or manager, and/or when any subsequent approval for an absence is not obtained.' A `Quit' is defined as `[f]ailure of an employee to return from leave of absence upon the specified date, or any voluntary separation of an employee from City service without two (2) weeks written resignation, or for unexcused absences of 3 or more days.' Under this policy, `[e]mployees unable to report to work must promptly notify their supervisor by the start of the scheduled work day, of [t]heir location and reason for not reporting to work' and `[w]hen they expect to be able to report to work.'
On July 29, 1994, Greene's physician, Dr. Chester Jangala, filled out a Certification of Physician Form (Physician Form) as required to apply for FML. Dr. Jangala diagnosed Greene with anxiety and depression, and stated that Greene could not perform the duties of a lineworker until September 30, 1994. The Physician Form included the following instruction: Regimen of treatment to be prescribed. (Indicate number of visits, general nature and duration of treatment, including referral to other provider of health services. Include schedule of visits or treatment if it is medically necessary for the employee to be off work on an intermittent basis or to work less than the employee's normal schedule of hours per day or days per week.)
Dr. Jangala's only response to this instruction was to state that Greene was `treated for depression with medication and counseling.' Additionally, Dr. Jangala signed his initials on the Physician Form, but not his name as the Physician Form instructed. Greene returned the form to City Light on or about August 3, 1994.
Also on August 3, 1994, Hughes wrote Greene suggesting that he may be eligible for FML. She sent him another copy of a Leave of Absence Form and of a Certification of Physician Form, instructing that he return them to Church `as soon as possible.' When Greene returned the forms on August 7, 1994, however, City Light found them `significantly incomplete.' For example, on the Leave of Absence form, Greene simply wrote `Medical' as the reason for the requested leave.
In a September 13, 1994 letter to Greene, Church advised him that his medical documentation was incomplete and insufficient to authorize a family medical leave. Church informed Greene that he had three days in which to provide more complete medical information, specifying that Greene deliver it to Harris by 12:00 p.m. on September 16. The letter also instructed Greene to report to work for light duty training on Monday, September 19. On September 16, Greene hand-delivered further medical documentation to City Light's Human Resources department. He did not, as Church had instructed in his September 13 letter, deliver the documents to Harris. Greene had also altered one of the documents he submitted on September 16, a Medical Release Agreement (Medical Release). The original language of the Medical Release authorized City Light to contact Dr. Jangala `to request information about [Greene's] medical condition.' That passage was crossed out, so that the form only authorized City Light to contact Dr. Jangala `to verify that [Greene is] currently under regiment of treatment as he stated on 7-29-94.' Moreover, the other medical documents Greene submitted on September 16, stated that Greene was unable to work until December 1994. Previously, Dr. Jangala had stated that Greene would be able to work by September 30, 1994.
As of September 19, Church and Harris were unaware that Greene had submitted additional information to Human Resources on September 16. On September 19, Church advised Greene that he would be processed as a `quit' because he had (1) failed to submit requested medical documentation to Harris, his supervisor, by 12:00 p.m. on Friday, September 16, 1994, and (2) he had failed to report to work for light duty training Monday, September 19, 1994, as directed. Upon later learning that Greene had submitted medical documentation to Human Resources instead of to Harris on September 16, however, City Light agreed to review it. It found that Greene's documentation was nonetheless still insufficient to authorize approval for Greene's continued leave of absence.
On October 25, 1994, Palm-Bradley sent Greene a letter terminating his employment. The letter stated that Greene `still [has] not brought forward thorough medical documentation to explain [his] inability to perform any of the duties of lineworker since February 19, 1994, until the current time.' Palm-Bradley also stated in the letter that Greene's termination was based on his failure to comply with his manager's direction and his excessive unauthorized absenteeism. In April 1997, Greene filed suit against City Light, alleging that both his demotion and termination were acts of race discrimination and retaliation. More specifically, he alleged that City Light disciplined him more harshly than it had disciplined Caucasian crew chiefs and that City Light had acted unreasonably in rejecting his medical documentation as incomplete.
Initially, the trial court granted summary judgment in favor of City Light. The Court of Appeals reversed the trial court's order granting City Light summary judgment. Greene v. Seattle City Light, noted at 98 Wn. App. 1036 (1999), rev. denied, 140 Wn.2d 1026, 10 P.3d 406 (2000).
At trial, both parties filed motions in limine requesting exclusion of certain testimony and evidence. The trial court granted City Light's motion to exclude in part testimony from some City Light employees relating to City Light's pre-1992 conduct. In response, Greene filed a motion for the admission of evidence of City Light's pre-1992 discriminatory and retaliatory conduct. The trial court granted City Light's motion to exclude pre-1992 evidence in support of Greene's claims, but allowed evidence of City Light's pre-1992 conduct to be admitted as background. The trial court reserved City Light's motion on `evidence regarding alleged instances of discrimination or retaliation by [City Light] against persons not a party to this lawsuit,' stating that that evidence would be considered on a case-by-case basis. The court also ruled that, although witnesses could not offer opinion evidence as to whether Greene was the subject of discrimination or retaliation, they could testify to conduct they had observed.
Upon Greene's request, the trial court also admitted as a stipulated exhibit the Ingham letter that had remained in Greene's personnel file despite the 1992 settlement agreement provision that it be removed. In an interlineation, the court stated:
Witnesses may indicate the [pre-1992] lawsuit was resolved and that [the] City agreed the Ingham letter would be removed from his supervisor file and personnel file and that the letter would be of no effect in personnel decisions. All other references to the settlement are excluded.
The court did not rule that only Greene was permitted to refer to or use the Ingham letter at trial.
At closing, City Light quoted from the Ingham letter, suggesting that Ingham's allegations that Greene engaged in unsafe work practices aligned with City Light's decision to demote him for the three incidents that occurred while he was crew chief. The trial court overruled Greene's counsel's hearsay objection.
The jury found that City Light engaged in neither race discrimination nor retaliation when it demoted Greene. It also found that City Light did not terminate Greene based on either discrimination or retaliation. The trial court entered judgment on the verdict.
Greene filed motions for judgment as a matter of law and for a new trial, both of which the trial court denied. Greene appeals.
ANALYSIS I. Admissibility of Testimony
Greene asserts that the trial court committed prejudicial error when it excluded the testimony of some of his witnesses.
The admissibility of evidence is within the sound discretion of the trial court and will be reversed only upon a showing of abuse of discretion. Burnside v. Simpson Paper Co., 123 Wn.2d 93, 107, 864 P.2d 937 (1994). An abuse of discretion occurs when the decision is `manifestly unreasonable . . . or based upon untenable grounds or reasons.' Burnside, 123 Wn.2d at 107. If a trial court makes an erroneous evidentiary ruling, the question becomes whether the error was prejudicial, for error without prejudice is not grounds for reversal. Brown v. Spokane Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983). `Error will not be considered prejudicial unless it affects, or presumptively affects, the outcome of the trial.' Brown, 100 Wn.2d at 196.
Greene specifically contends that the trial court erred in excluding portions of testimony from two City Light employees, Heidi Durham and Nick Dreyer, regarding discrimination experienced by them at City Light. The court allowed Durham's testimony about disparate treatment between Greene and comparators, but prohibited her from testifying about her own background and the issues of gender and sex discrimination in the 1980s, explaining that those were `completely different issue[s].' `It is within the trial court's discretion to exclude evidence, the probative value of which is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence.' Hizey v. Carpenter, 119 Wn.2d 251, 268, 830 P.2d 646 (1992); ER 403. The trial court did not abuse its discretion when it prohibited Durham from testifying as to her own background and to issues of gender discrimination.
When Greene introduced Dreyer as a witness, City Light objected to his testimony as cumulative and irrelevant to Greene's intentional discrimination claim. The court initially overruled City Light's objection. In 1993, Dreyer wrote a letter to the editor of the Post Intelligencer newspaper criticizing how City Light was operated. Dryer testified that Palm-Bradley had `berated' him for writing the letter.
After Dryer testified, the trial court ruled that his testimony was inadmissible because it portrayed an alleged prior bad act by Palm-Bradley. Testimony that illustrates prior bad acts is inadmissible under ER 404(b). Allowing such testimony may lead the jury to assume a connection that is never proven. Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 156 (6th Cir. 1988). The trial court properly excluded Dryer's testimony as portraying an alleged prior bad act under ER 404(b).
Greene argues that `evidence of acts by the employer against others is admissible to prove the employer's intent.' Nevertheless, `[t]he probative value of other discriminatory acts depends not only on their relevance to the acts of which the plaintiff complains but also on the nature of the discrimination charged.' Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1424 (7th Cir. 1986). Neither the excluded portion of Durham's nor Dreyer's testimony directly addressed race discrimination. Moreover, the record establishes that Greene was not deprived of the opportunity to present evidence that he was treated differently from other City Light employees. The jury heard testimony from other City Light employees that Greene was treated differently from other employees at City Light. The record as a whole shows that the trial court was even-handed and impartial in its rulings on the admission of evidence. The trial court did not abuse its discretion, nor prejudice Greene, when it limited Durham's testimony and concluded that Dryer's was inadmissible.
For example, the court allowed testimony from Peggy Hammer, a City Light safety specialist, that she had heard from co-workers that Greene was not treated fairly; and, from Sherman Williams, a City Light shop steward, who testified that Greene was disciplined more harshly for incidents on his crew than were other crew chiefs because of `a race factor.'
Greene also asserts that the trial court erred in limiting evidence of pretext to comparators. He maintains that the trial court ruled that he `could only use comparator evidence to prove discrimination.' The record does not support Greene's assertion.
`One test for pretext is whether (1) an employee outside the protected class (2) committed acts of comparable seriousness (3) but was not demoted or similarly disciplined.' Johnson v. Department of Soc. and Health Servs., 80 Wn. App. 212, 227, 907 P.2d 1223 (1998).
Greene bases his challenge on a colloquy on City Light's motion in limine: [Greene's attorney:] . . . We object to [the] motion in limine [excluding evidence regarding alleged instances of discrimination by other person not a party to this lawsuit] . . . on the grounds that, one, it's very over broad. Second, we have a difficult burden to prove in this case to prove intentional discrimination. . . .
[W]e should be able to rely on accounts from other employees regarding what they've encountered by the employer. . . .
The Court: Well, the law is also that you have to have valid comparators.
In the colloquy Greene cites, the trial court did not limit testimony on the issue of discrimination to comparators alone. It stated only that Greene needed valid comparators to show that City Light discriminated against him. Further, as discussed above, the trial court admitted testimony from several of Greene's witnesses on the issues of discrimination and retaliation.
II. Judgment as a Matter of Law and a New Trial
Greene asserts on several grounds that he was entitled to judgment as a matter of law under CR 50, or in the alternative, to a new trial under CR 59.
CR 50(a)(1) states in part:
If, during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against the party on any claim, counterclaim, cross claim, or third party claim that cannot under the controlling law be maintained without a favorable finding on that issue. . . .
We review motions for judgment as a matter of law de novo, applying the same legal standard as the trial court. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 187, 23 P.3d 440 (2001). `Overturning a jury verdict is appropriate only when it is clearly unsupported by substantial evidence.' Burnside, 123 Wn.2d at 107-08. As explained in Burnside:
`This court will not willingly assume that the jury did not fairly and objectively consider the evidence and the contentions of the parties relative to the issues before it. . . . The inferences to be drawn from the evidence are for the jury and not for this court. The credibility of witnesses and the weight to be given to the evidence are matters within the province of the jury and even if convinced that a wrong verdict has been rendered, the reviewing court will not substitute its judgment for that of the jury, so long as there was evidence which, if believed, would support the verdict rendered.'
Burnside, 123 Wn.2d at 108 (quoting State v. O'Connell, 83 Wn.2d 797, 839, 523 P.2d 872 (1974)).
A new trial is appropriate under CR 59 when the verdict is contrary to the weight of the evidence, when irregularities in the proceedings may have resulted in an unjust verdict, for misconduct by the prevailing party or jury, and whenever the court believes that substantial justice has not been done. CR 59.
`An order denying a new trial will not be reversed except for abuse of discretion. The criterion for testing abuse of discretion is: `[H]as such a feeling of prejudice been engendered or located in the minds of the jury as to prevent a litigant from having a fair trial?'' This rule of abuse of discretion specific to motions for a new trial stands in juxtaposition to the general test for abuse of discretion. . . .
Sommer v. Department of Social and Health Servs., 104 Wn. App. 160, 170, 15 P.3d 664 (2001) (quoting Moore v. Smith, 89 Wn.2d 932, 942, 578 P.2d 26 (1978)).
A. Irregularities in Proceedings
Relying upon CR 59(a)(1), Greene contends that the trial court's inconsistent evidentiary rulings require a new trial. Greene argues that the trial court's `inconsistent rulings resulted in extreme confusion' and `had a chilling effect on witnesses.' Greene provides no relevant cites to the record and no citations to authority to support his claim. We need not consider arguments that are not developed in a party's brief and for which a party cites no authority. State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990); RAP 10.3(a)(5) (stating that appellate brief should contain argument supporting issues presented for review, citations to legal authority, and references to relevant parts of the record). Moreover, the record provides no support for Greene's argument. Search Term End
B. Misconduct of Opposing Counsel
Greene also asserts that his motions for judgment as a matter of law and for a new trial should have been granted because of the opposing counsel's misconduct. More specifically, Greene alleges that opposing counsel's practice of quoting from the Ingham letter during closing was misconduct and prejudiced the jury.
Improper closing argument is one type of misconduct. CR 59(a)(2). `Such misconduct must `materially affect . . . the substantial rights' of the moving party.' Sommer, 104 Wn. App. at 170-71; CR 59(a)(2).
In 1985, David Ingham, a City Light employee who had worked on the same crew as Greene, wrote a letter to Greene's supervisor requesting that he be transferred to a different work crew because of Greene's failure to comply with safe work procedures. Greene believed that William Challender, a supervisor at City Light, induced Ingham to write the letter out of racist motives. Although the Ingham letter was to have been removed from Greene's supervisor file as part of Greene's 1992 settlement agreement with City Light, Greene later learned it remained in his supervisor file. At trial, Greene moved to have the Ingham letter entered into evidence as a stipulated exhibit. The trial court did not impose any restrictions on the Ingham letter, nor rule that it was entered into evidence only for limited purposes.
In an interlineation on an order on motion in limine to exclude pre-1992 evidence, the court stated: Witnesses may indicate the [pre-1992] lawsuit was resolved and that [the] City agreed the Ingham letter would be removed from his supervisor file and personnel file and that the letter would be of no effect in personnel decisions. All other references to the settlement are excluded.
At closing, City Light's counsel read an excerpt from the Ingham letter referencing Greene's unsafe work practices. The trial court overruled Greene's hearsay objection.
It is well-established that, barring any special restrictions or evidentiary rulings by the court, both parties are at liberty to reference exhibits or testimony before the court. Greene provides no legal authority to support his contention that City Light's counsel engaged in misconduct when it read a portion of the Ingham letter to the jury. Moreover, he makes no showing on appeal that the letter had a prejudicial effect on the jury. The trial court did not err in denying Greene's motion for judgment as a matter of law, nor abuse its discretion when it denied his motion for a new trial on the basis of opposing counsel's misconduct.
C. Verdict Contrary to the Evidence
Greene also argues that his motion for judgment as a matter of law and his motion for a new trial should have been granted because there is no evidence to sustain the jury's verdicts.
To evaluate such a challenge on appeal, we review the whole record to determine whether there was substantial evidence to support the verdict. Hizey v. Carpenter, 119 Wn.2d 251, 271-72, 830 P.2d 646 (1992). On review we determine `whether the evidence presented,' viewed in the light most favorable to the nonmoving party, `would convince `an unprejudiced, thinking mind.'' Hizey, 119 Wn.2d at 271-72 (quoting Industrial Indem. Co. of Northwest, Inc. v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d 520 (1990)).
The jury found that City Light had engaged in neither racial discrimination nor retaliation when it demoted Greene. The jury also found that City Light had not engaged in racial discrimination or retaliation when it terminated Greene's employment.
RCW 49.60.180 establishes that discrimination on the basis of race by an employer is an unfair practice. Employers may not discriminate against `any person in . . . terms or conditions of employment because of . . . race. . . .' RCW 49.60.180(3).
To establish a prima facie case of racial discrimination based on disparate treatment, Greene was required to show that `(1) he belongs to a protected class, (2) he was treated less favorably in the terms and conditions of his employment (3) than a similarly situated, nonprotected employee, and (4) he and the nonprotected `comparator' were doing substantially the same work.' Johnson, 80 Wn. App. at 227. Once a plaintiff establishes these elements of the prima facie case, the burden shifts to the employer to proffer a legitimate, nondiscriminatory reason for its action. Once a defendant employer has presented evidence tending to show a non-racial reason for its actions, the plaintiff must then produce evidence tending to show that the employer's stated reason was only a pretext. Jones v. Kitsap County Sanitary Landfill, Inc., 60 Wn. App. 369, 371, 803 P.2d 841 (1991).
Under RCW 49.60.210(1), Washington also recognizes a cause of action for retaliation. `Retaliatory motivation need not be the principal reason for terminating an employee; an employer motivated in part by retaliatory influences who discharges an employee engaged in protected activity is in violation of the statute.' Kahn v. Salerno, 90 Wn. App. 110, 128, 951 P.2d 321 (1998). In order to establish a prima facie case of retaliatory discharge, Greene must show that he was engaged in a statutorily protected activity, that City Light took an adverse employment action against him, and that retaliation was a substantial factor behind the adverse action. Kahn, 90 Wn. App. at 129. `[O]pposition to an employer's possible discrimination does not enjoy absolute immunity; an employee may still be terminated for proper cause even when engaged in protected activity.' Kahn, 90 Wn. App. at 129.
1. Demotion
The question of an employer's intent to discriminate is a question of fact. Johnson, 80 Wn. App. at 229. Washington courts have adopted the use of comparator evidence to analyze race discrimination claims in employment cases. Johnson, 80 Wn. App. at 227. One test for pretext is whether an employee outside the protected class committed acts of comparable seriousness but was not similarly disciplined. Johnson, 80 Wn. App. at 227.
Especially relevant to . . . a showing [of race discrimination] would be evidence that [Caucasian] employees involved in acts . . . of comparable seriousness to the [African-American plaintiff's acts] were nevertheless retained or rehired. [A discrimination defendant] may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.
Johnson, 80 Wn. App. at 228 (quoting McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 688 (1973)).
Greene asserts that he was more harshly disciplined than the four City Light crew chiefs presented as comparators. He claims that incidents recorded for the comparators' crews occurred `with greater frequency and result[ed in] greater harm to property and persons' than incidents occurring on his crew. Therefore, he reasons, because comparators were not demoted, as he was, he was more harshly disciplined than they were. Greene's claim is contrary to the record.
The jury heard testimony from all four of Greene's comparator witnesses: Barry Kaiser, Mark Whalen, Joe Matthias, and Lue Schweitzer. It also heard testimony from City Light management regarding incidents and disciplinary measures of the four comparators. All three of Greene's violations reflected errors in judgment. In contrast, the records of three comparators reflect only one error in judgment each. The record shows that although some of the incidents on the comparators' crews involved safety violations, on the whole, they differed in nature and magnitude from the incidents on Greene's crew. Kaiser did not violate any established, written safety rules in any of the three reported incidents on his crew.
Whalen received a written reprimand for one safety violation, comparable to the safety violation for which Greene had received a comparable written reprimand Matthias testified as to one safety violation on his crew for which he was disciplined. Schweitzer testified regarding one fatal accident in 1988 on his crew several years earlier, and the only incident on his crew involving a violation of safety rules. City Light disciplined Schweitzer by suspending him for a short period of time without pay because as the crew chief he bore responsibility for the incident.
Following testimony by comparators, the jury asked probing questions of the comparators to learn how each comparator was disciplined, to further ascertain how the incidents on their crews were similar or different to those on Greene's crew, and to determine official safety policies and procedures. The jury concluded that Greene was not more harshly disciplined for comparable safety violations than the comparators. Weighing the evidence before it, the jury concluded that City Light's demotion of Greene was not a pretext for either race discrimination or retaliation. The record contains substantial evidence supporting the jury's verdicts.
2. Termination of Employment
The jury also determined that Greene's termination was not a pretext for race discrimination or retaliation, either. Church told Greene of his demotion on February 18, 1994. Greene thereafter did not return to work at City Light. The record reveals that City Light sought to foreclose the possibility that it would need to terminate Greene. Hughes, Hankins, and Harris testified that they repeatedly encouraged Greene to return to work when it appeared that his unreported absences were jeopardizing his employment, and tried on multiple occasions to assist him in complying with City Light's extended leave policies and procedures for medical leave. Notwithstanding their efforts, Greene failed to comply with City Light's reporting and documentation requirements. The record contains substantial evidence supporting the jury's determination that City Light neither discriminated against Greene because of his race, nor retaliated against, when it terminated his employment. Based on the record, we hold that the trial court did not err when it denied Greene's motions for judgment as a matter of law and for a new trial.
We affirm.
ELLINGTON and COLEMAN, JJ., concur.