United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 26, 1998 Decided May 12, 1998
No. 97-7074
Juanita Griffin,
Appellant
v.
Washington Convention Center
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 93cv02297)
Richard H. Semsker argued the cause and filed the briefs
for appellant. Solaman G. Lippman entered an appearance.
William F. Causey argued the cause for appellees. John
M. Ferren, Corporation Counsel, Charles L. Reischel, Deputy
Corporation Counsel, Carol Elder Bruce and Eric C. Grimm
were on the brief.
Before: Ginsburg, Sentelle, and Garland, Circuit Judges.
Opinion for the court filed by Circuit Judge Ginsburg.
Concurring opinion filed by Circuit Judge Sentelle.
Ginsburg, Circuit Judge: When the Washington Conven-
tion Center discharged Juanita Griffin from her position as an
electrician, Griffin brought suit alleging sex discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
s 2000e et seq. At trial, the magistrate judge excluded
evidence tending to show that Griffin's immediate supervisor
was opposed to women working as electricians. The WCC
defends that evidentiary ruling on the ground that the super-
visor's alleged bias was irrelevant because he lacked authority
to fire Griffin; it was his superior, a woman, who made the
ultimate decision to fire the plaintiff. The WCC admitted,
however, that the plaintiff's supervisor participated at every
stage of the process that led to her termination.
We hold that evidence of a subordinate's bias is relevant
where, as here, the ultimate decisionmaker is not insulated
from the subordinate's influence. The magistrate judge
therefore erred in excluding evidence of the supervisor's bias.
Accordingly, we reverse the judgment of the district court
and remand the case for a new trial.
I. BACKGROUND
Juanita Griffin went to work for the WCC as an apprentice
electrician in 1984. Griffin worked in the "engineering"
department doing routine maintenance, such as changing
light bulbs. She had little occasion to develop her skills but
got favorable performance evaluations. In 1987 she received
her journeyman electrician's license. As a result of the
reorganization that the WCC carried out that same year,
Griffin came under the supervision of Cleo Doyle, a man who
regarded Griffin as incompetent. According to Griffin, Doyle
repeatedly said that women should not be working as electri-
cians but should stay at home, "barefoot and pregnant."
Doyle recommended to his superior, Director of Operations
Reba Evans, that Griffin be fired. After a series of meetings
with Doyle, Griffin, and Randolph Scott--Griffin's union rep-
resentative--Evans decided to have Doyle and Scott develop
a training program for Griffin (and two other employees
about whom Doyle had complained), after which Doyle would
test Griffin's skills. When Griffin had repeatedly failed the
test, Doyle again recommended that Griffin be fired. After
further consultation with Scott and others, Evans discharged
Griffin.
Griffin then filed a complaint with the D.C. Department of
Human Rights charging the WCC with sex discrimination.
Upon receiving a right-to-sue letter she brought suit under
Title VII in district court. Griffin's counsel planned to offer
the testimony of Griffin and two (male) coworkers detailing
various sexist remarks allegedly made by Doyle. Before the
trial began, however, the magistrate judge granted the
WCC's motion in limine to exclude any reference to Doyle's
comments about the proper role of women. When Griffin's
lawyer later elicited testimony concerning Doyle's comments,
the judge instructed the jury to disregard the testimony.
The judge did, however, permit the following exchange during
the cross-examination of Evans by Griffin's lawyer:
Q.You don't recall testifying that Ms. Griffin told you
she had concerns because she believed Mr. Doyle
and Mr. Fleming [another of Griffin's superiors]
were sexists?
A.I remember the conversation, yes.
Q.Do you recall what specifically she told you in that
regard?
A.No, I don't. Most of the focus that I remember was
with regard to her performance.
Q.Do you recall her telling you that Mr. Doyle had
made a statement to her that he believed that she
should be at home, barefoot and pregnant? Do you
recall her telling you that?
A.No, I don't.
The jury returned a verdict for the WCC. Griffin appeals.
II. ANALYSIS
Griffin claims that the magistrate judge committed revers-
ible error when he excluded as irrelevant testimony about
Doyle's sexist remarks. The WCC responds that the judge
did not err at all in excluding the testimony because Doyle
was not responsible for Griffin's dismissal and Evans, who
was responsible, based her decision upon an objective test of
Griffin's skills--a test developed and supervised in part by
Griffin's union representative. In the alternative, the WCC
argues that the exclusion of the disputed testimony was
harmless error in light of all the evidence indicating that
Griffin was fired for incompetence.
A.Relevance
The magistrate judge initially regarded Griffin's effort to
introduce testimony about Doyle's comments as an attempt to
smuggle into the record evidence relevant only to theories of
recovery that Griffin had failed to raise in her complaint to
the Department of Human Rights. In his order granting the
WCC's motion in limine the judge explained:
Evidence of a course of conduct as well as statements
designed to show intent to sexually harass relevant to a
claim of maintaining a sexually hostile work environment
is not relevant to a claim of sexual discrimination in job
training.
During Griffin's opening statement, the WCC objected to
Griffin's reference to expected testimony on the issue of
Doyle's bias. The magistrate judge sustained the objection,
apparently because he still regarded the testimony as rele-
vant only to a sexual harassment claim that had not been
preserved for trial. Later in the course of the trial the
magistrate judge shifted his ground somewhat:
[T]his witness [Doyle] did not have any authority to hire
or fire individuals. He made a recommendation and, on
a number of occasions, his recommendation was over-
ruled. So, he was not the one who had the ultimate
authority on it.
Griffin has argued from the outset that the excluded testi-
mony is probative of Doyle's motive and intent and relevant
to the case because Doyle was responsible for Griffin's train-
ing and participated in the decisionmaking process that led to
her discharge. The WCC, on the other hand, argues that
Doyle's motive and intent are not relevant because Evans, not
Doyle, made the decision to fire Griffin.
The WCC relies upon the reasoning of a recent case in the
Seventh Circuit:
[W]hen the causal relationship between the subordinate's
illicit motive and the employer's ultimate decision is
broken, and the ultimate decision is clearly made on an
independent and a legally permissive [sic] basis, the bias
of the subordinate is not relevant.
Willis v. Marion County Auditor's Office, 118 F.3d 542, 547
(1997). So much is uncontroversial; even Griffin agrees with
the principle. Hence, if it is true, as the WCC argues, that
Evans's "decision [to terminate Griffin was] independent of,
or insulated from" Doyle, then the evidence of Doyle's bias
was properly excluded as irrelevant.
Griffin maintains, however, that "Doyle was in fact an
integral part of the decision-making process" that led to her
discharge, so that Doyle's discriminatory motive "would have
infected any deliberations over whether to terminate Plain-
tiff's employment." We agree. Unlike the court in Willis,
we cannot say that "[t]he record affirmatively demonstrates
that [the decisionmaker's] estimation of the quality of [plain-
tiff's] work was not jaded by anyone else's subjective and
possibly [sexually] biased evaluation." 118 F.3d at 547.
On the contrary, Doyle was Evans's chief source of infor-
mation regarding Griffin's job performance, repeatedly urged
Evans to terminate Griffin, was then made responsible for
training Griffin, helped develop the tests used to assess
Griffin, was responsible for evaluating Griffin's success on
those tests, and was in contact with Evans at every significant
step in the decisionmaking process. Under these circum-
stances, in which Evans's dependence upon Doyle's opinion
was heightened by her inability independently to assess Grif-
fin's technical proficiency, a jury exposed to the excluded
evidence of Doyle's sexism might well conclude that Doyle
used Evans, in Judge Posner's phrase, "as the conduit of [his]
prejudice--his cat's-paw." Shager v. Upjohn Co., 913 F.2d
398, 405 (7th Cir. 1990).
That Randolph Scott, a representative of Griffin's union,
and others participated in the decisionmaking process togeth-
er with Doyle was not sufficient to insulate Evans from
Doyle's influence. By his own estimate, Scott personally
observed only some five percent of Griffin's training. Like
Evans, Scott depended upon Doyle's observations and evalua-
tion for most of his knowledge about Griffin's performance.
Evidence of Doyle's intent is therefore relevant in evaluating
Griffin's termination, and the magistrate judge erred by
excluding it.
Thus do we join at least four other circuits in holding that
evidence of a subordinate's bias is relevant where the ultimate
decision maker is not insulated from the subordinate's influ-
ence. See Stacks v. Southwestern Bell Yellow Pages, Inc., 27
F.3d 1316, 1323 (8th Cir. 1994) ("an employer cannot escape
responsibility for [ ] discrimination ... when the facts on
which the reviewers rely have been filtered by a manager
determined to purge the labor force of [a protected class of]
workers"); see also, e.g., Abrams v. Lightolier, Inc., 50 F.3d
1204, 1214 (3d Cir. 1995); Simpson v. Diversitech General,
Inc., 945 F.2d 156, 160 (6th Cir. 1991); Shager v. Upjohn Co.,
913 F.2d 398, 405 (7th Cir. 1990); cf. Steverson v. Goldstein,
24 F.3d 666, 670 (5th Cir. 1994).
B.The Opened Door Doctrine
The magistrate judge's exclusion of testimony about
Doyle's alleged bias is particularly surprising in light of the
admission in evidence of Doyle's self-serving statements
about his lack of discriminatory intent. When Doyle testified
on direct examination that he had recommended to Evans
that three employees, including Griffin, be terminated, the
following exchange ensued:
Q.Did you make those recommendations because they
were women?
A.No.... It has nothing to do with women. It has to
do with someone who has an electricians' [sic] license
who did not know basic fundamentals.
By eliciting that testimony, the WCC "opened the door" to
matters excluded by its own motion in limine. Testimony
impugning Doyle's intent should have been admitted on re-
buttal at least for purposes of impeachment and in order to
prevent the jury from forming the erroneous impression that
the proper characterization of Doyle's intent was undisputed.
See United States v. Baird, 29 F.3d 647, 654 (D.C. Cir. 1994)
("Once the door is opened, the other party can get through it
otherwise irrelevant evidence 'to the extent necessary to
remove any unfair prejudice which might otherwise have
ensued' "). Yet when Griffin's counsel tried to bring the
excluded evidence in through the door opened during the
defendant's case-in-chief, the magistrate judge denied the
motion, thus compounding his error.
C.Harmless Error
The WCC maintains that any error in the exclusion of
evidence concerning Doyle's views on women as electricians is
harmless because of the overwhelming evidence that Griffin is
an incompetent electrician. That evidence does not, however,
render harmless the exclusion of the testimony regarding
Doyle's intent. Most of the evidence of Griffin's incom-
petence comes from the selfsame Doyle, and a jury might
weigh that evidence differently if it had reason to believe that
Doyle did not want women electricians in his shop. More-
over, the gravamen of Griffin's complaint is that her apparent
incompetence was the product of Doyle's animus against
women, which led him to neglect her training and then to test
her for skills that she did not need in order to do her job.
For these reasons we think that a reasonable jury that
heard the excluded evidence might have decided that the
plaintiff was fired because of her sex notwithstanding the
evidence that she was terminated for incompetence. Accord-
ingly, we must remand the case for a new trial.
III. CONCLUSION
Cleo Doyle played a central role in the decisionmaking
process that led to Griffin's termination. That Randolph
Scott and others also participated did not insulate Reba
Evans, the ultimate decisionmaker, from Doyle's influence in
deciding whether to fire Griffin. The testimony of three
witnesses that Doyle had said women should not be electri-
cians and Griffin's testimony that he had told her she should
be at home, barefoot and pregnant, would permit a reason-
able jury to infer that Griffin lost her job on account of her
sex. Therefore, the magistrate judge's exclusion of that
testimony was error, and we cannot rule out the possibility
that the error affected the outcome of the trial. Accordingly,
we vacate the judgment of the district court and remand the
case for a new trial.
It is so ordered.
Sentelle, Circuit Judge, concurring: I join in my col-
leagues' judgment reversing the judgment of the district
court and remanding for a new trial, but I do so with the
utmost reluctance. When we review the evidentiary rulings
of a trial judge, we should be ever mindful of the express and
stringent standards set forth in Rule 103 of the Federal Rules
of Evidence that "[e]rror may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right
of the party is affected...." In applying that rule we have
held, as have all other circuits, that district judges enjoy
broad discretion in their evidentiary rulings, and that we will
reverse such rulings "only if [they] are an abuse of discre-
tion." Carey Canada, Inc. v. Columbia Cas. Co., 940 F.2d
1548, 1559 (D.C. Cir. 1991). On the record before us, taken
as a whole, that abuse of discretion is not apparent.
The evidence excluded by the district court went to the bias
of a subordinate and not the decision maker. As the majority
recognizes:
[W]hen the causal relationship between the subordinate's
illicit motive and the employer's ultimate decision is
broken, and the ultimate decision is clearly made on an
independent and legally permissive [sic] basis, the bias of
the subordinate is not relevant.
Willis v. Marion County Auditor's Office, 118 F.3d 542, 547
(7th Cir. 1997). The record before us is at least consistent
with, if not compellingly supportive of, a conclusion that
Evans, the ultimate decision maker, made the decision to
terminate appellant based on an objective test administered
with the participation of her union representative. This
testing alone would seem enough to break any causal relation-
ship between Doyle's alleged bias and that decision. While
appellant is able to tease out of the record tenuous support
for the proposition that the causal connection was unbroken, I
find that to be a thin reed upon which to rest a reversal of a
final judgment based on an evidentiary ruling subject to an
abuse of discretion standard. It is most difficult to see this
ruling as affecting a "substantial right" of appellant.
In the end, I join the reversal solely because of the theory
advanced in Part IIB of my colleagues' opinion. That is,
appellee "opened the door" to matters excluded by its own
motion in limine. See United States v. Baird, 29 F.3d 647,
654 (D.C. Cir. 1994). Under that theory--advanced, I might
add, more articulately by my colleagues than by appellant--I
agree that the trial judge's exercise of discretion crossed the
boundary of abuse, and I therefore join in the reversal.