1. Cobbins v. Tennessee Dept. of Transportation : Employee Rights Post Page 1 of 3
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It’s not often that we see a case in which the verdict for the employer is reversed in favor of
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Home > Cobbins v. Tennessee Dept. of Transportation>
Race Discrimination Plaintiff Gets a New Trial
Posted on April 13, 2009 by Ellen Simon
It’s not often that we see a case in which the verdict for the employer is reversed in favor of the employee
because the judge improperly excluded evidence -- but that’s exactly what happened in the case of
Cobbins v. Tennessee Department ofTransportation. Here’s the story: _____________________
I-
The plaintiff, Greg Cobbins, an African-American was employed by the
Tennessee Department of Transportation (“TDOT”) since 1994.
In 2005 Cobbins became eligible for a promotion for which he was qualified.
He was considered along with another candidate ( white male) named Bradford
Staggs.
Staggs got the job instead of Cobbins. Cobbins believed he was discriminated
against and filed a lawsuit.
Part ofthe reason stated for the decision to choose Staggs over Cobbins, according to the Regional
Director of TDOT, was that Cobbins had “less education” and “several oral and written warnings in
his work file”.
The most common way that discrimination cases are proven is with circumstantial evidence showing that
the reasons givenfor the adverse employment decision are not valid, not credible, or not believable -- it’s
calledpretext.
During the trial, when Cobbins attempted to offer his evidence of pretext as to the reasons stated for the
denial of his promotion, the judge refused to allow it:
• “Less education”: Cobbins had evidence that Staggs lied about his education on his promotion
application. Staggs’ application stated that he had “postsecondary education after high school”
during the years 1991-1995. It turns out that Stagss didn’t even graduate from high school until
1995 so the statement could not have been true.
The trial court judge refused to allow Cobbins to introduce the evidence showing that Staggs had
lied about his education.

2. Cobbins v. I ennessee Dept. of I ransportation: Employee Rights Post Page 2 ot 3
• “Several oral and written warnings in his workfile”: Cobbins did have several warnings in his
file. However, Cobbins had evidence that his former supervisor, Wayne Youcum, was biased and
discriminated against him. Several years earlier, Cobbins charged Yocum with discrimination and
Yocum retaliated by:
1. marring Cobbins work record with unfounded complaints,
2. refusing to give Cobbins supervisory responsibilities, and
3. treating him more harshly than the white employees.
• The first lawsuit over Yocum’s conduct was dismissed because Cobbins failed to file a brief on
time. (Cobbins blamed the new electronic filing system of the court for the failure to process the
brief)
• The important point is that the previous case was never decided “on the merits” but rather was
dismissed due to a technical matter.
The trial court judge refused to allow Cobbins to introduce evidence showing that the warnings in
his file were prompted by his former supervisor’s discriminatory motives.
Not surprisingly, without some of his strongest evidence, Cobbins lost his trial. He filed an appeal on
the grounds that that the trial court committed reversible error when it excluded his evidence.
On April 2nd, the Sixth Circuit Court of Appeals found in his favor, reversed the lower court, and gave
Cobbins the right to a new trial.
In his appeal, Cobbins claimed that his case was greatly harmed by his inability to enter Staggs’ allegedly
false promotion application into the record. The Court agreed:
The district court erred in refusing to allow plaintiffto introduce into the record the
employment application ofa co- worker. The document, ~hearsay at all, falls within the
exceptionfor business records andpossibly public records as well.. and should have
been admissible...
With respect to the warnings in the file, the Court had this to say:
On appeal, plaint4ffargues that the trial court committed reversible error by excluding
evidence ofhisformer supervisor ~ “discriminatory animus and motive” toward African-
Americans. Plaint4ffargues that this disparate treatment in discipline by hisformer
supervisor is relevant in the current proceeding because Youcum ‘s conduct marred his work
record and his opportunityfor promotion.
Plaint4ffis not seeking to relitigate the claimsfrom his earlier suit Plaint4ffseeks only to
demonstrate that certain conduct and actions ofhis supervisor at that time impacted‘his
work record andpromotion chances; and such evidence is, therefore, relevant in this case.
We agree with Plaint4ff Contrary to defendant’s argument, collateral estoppel does not bar
evidence ofplaintj/j’sformer supervisor’s animus that may have adversely impacted his
work record and chancesforpromotion because thejudgment in thefirst lawsuit was not
on the merits.
When you read the decision, you really have to wonder what the trial court judge was thinking. TDOT
said it chose one employee over another because he had more eduction. TDOT’S own records showed

3. Cobbins v. Tennessee Dept. of Transportation : Employee Rights Post Page 3 of 3
that was false, yet the court would not allow the jury to see the evidence.
TDOT said that one employee was chosen over another because of warnings in a personnel file. TDOT’s
own records showed that a previous discrimination and retaliation charge had been filed against that
supervisor. Yet once again, the judge would not let the jury hear the evidence.
I wrote an article about the bias of the federal bench a little while ago and the difficulty that employees
who bring discrimination cases have in the federal courts in this country. This case is a perfect example.
Although the ending is a good one in that the district court judge was properly reversed, it certainly
would have been nice -- and certainly a whole lot more efficient-- if the plaintiff got a fair trial the first
time around.
Image: www. kingsportrnpo. corn
Tags: Cobbins v. Tennessee Dept. of Transoortation, Federal Courts, Sixth Circuit, evidence, ~
discrimination, retaliation

4. Federal Bench is Biased Against Discrimination Cases: Employee Rights Post Page 1 ot 3
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Home > Federal Courts > Federal Bench is Biased Against Discrimination Cases
Federal Bench is Biased Against Discrimination Cases
Posted on February 19, 2009 by Ellen Simon
The w today discussed a Wall Street .Journal article about the
disproportionate rate at which plaintiffs’ employment discrimination cases are lost in federal court and
asked: Is thefederal bench biased against discrimination cases? As reported:
From 1979 through 2006, federal plaintiffs won 15% ofjob-discrimination cases. By
comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51%
win rate, according to this study due to be published later this month by the Harvard Law &
Policy Review, the official journal of the American Constitution Society for Law and
Policy.
This is no coincidence. To those of us who have been representing
employees in discrimination cases for many years the data comes as no
surprise. We know this because we have lived it.
Our experience is that many federal judges are hostile to our cases and so
are their law clerks. All you have to do is read the comments to the LLS1
Law Blog today where the former federal law clerk refers to these cases as
“dogs” to get a flavor of the attitude.
It is indisputable that far too many federal judges decide to disregard the Federal Rules of Civil
Procedure and Evidence when it comes ruling on discrimination cases:
• Rather than let the juries decide when material facts are in dispute as the rules require, judges
routinely decide to parse through the evidence, weigh each piece separately, and decide why each
is not enough to support a claim.
• They routinely and improperly assess the credibility of the testimony, a task specifically assigned
to juries not judges.
• They routinely disregard the employee’s evidence, and that oftheir co-workers, while giving
credence to the self serving evidence of the employer.
• Even when there is direct evidence of discrimination-- like “you’re too old to do this job” --or

5. reuerai nenen is niasea against uiscriminanon cases: tmpioyee tugnis rost rage z ox i
“women just be at home with their kids”-- it will often be dismissed as a “stray remark’ too remote
in time to be considered, or not made by someone influential enough in the decision.
• In sexual harassment cases, the judges often decide that the harassment may indeed have occurred
but that it wasn’t severe enough for a jury to consider.
These are just a few ofthe improprieties that are regularly faced in representing victims of
discrimination I can think of off the top of my head I’m sure I could be here all day adding to this list if
there was a reason to do so.
Every lawyer knows, and the federal rules specifically state, that judges are supposed to grant summary
judgment only when there is no genuine issue as to any material fact. Inferences are supposed to be
made in favor ofthe employee, not the employer when the employer requests that the case be thrown
out. All relevant evidence is supposed to considered by the jury. The rules are supposed to be
interpreted liberally, not conservatively which means in favor of the employee in these circumstances,
not the employer.
The Supreme Court ofthe United States made all of this abundantly clear in the Reeves v. Sanderson
Plumbing case almost ten years ago, a case in which the Court of Appeals ignored the evidence
presented by the plaintiff. (including the remark that he “looked so old he must have come over on the
Mayflower”) In reversing, the Reeves Court plainly set forth the appropriate standards for review:
o The court must draw all reasonable inferences in favor of the nonmoving party,
and it may not make credibility determinations or weigh the evidence.
o Credibility determinations, the weighing ofthe evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.
o Although the court should review the record as a whole, it must disregard all
evidence favorable to the moving party that the jury is not required to believe.
o The court should give credence to the evidence favoring the nonmovant as well
as that “evidence supporting the moving party that is uncontradicted and
unimpeached, at least to the extent that that evidence comes from disinterested
witnesses.
In spite ofthis very clear language, it seems like there are a whole lot of federal judges who can’t seem
to break their old patterns. They need to get rid of those pre-Reeves canned opinions used to dump these
cases, and do their duty to follow precedent set forth by the United States Supreme Court. That’s really
not too much to expect.
Discrimination is hard to prove, but even with the proof of disparate treatment, stereotyping, or racially
and sexually charged remarks, many federal judges simply decide that these particular parties are not
entitled to their day in court.
Is it because there are not enough women and minorities on the federal bench? Is it because they are
insensitive to discrimination? Is it because they care more about reducing the size of their dockets than
the administration ofjustice? Is it because they are simply pro-business and anti-little guy? All we know
is that whatever the reason, the result is quite often arbitrary , erroneous, and unfair, and it’s about time
that the discrimination is exposed.

6. tecierai bencn is biased Against Lflscrimination cases: tmpioyee Kights YOSt rage i ot i
image: http: images.google.com imgres?
imgurl http: www.fotosearch. corn comp BDX/BDX34J judge-handing-down_--’bxp64659.jpg&im
Tags: Federal Courts, Supreme Court, civil rights, discrimination, employee rights, employment
litigation
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