ORDER DENYING PLAINTIFFS' MOTION FOR A NEW TRIAL
Re: Dkt. No. 697
YVONNE GONZALEZ ROGERS, District Judge.
On November 28, 2018, following a twelve-day trial, a jury of nine rendered a unanimous verdict in favor of the defendant in the above-captioned matter. (See Dkt. No. 673 ("Verdict").) Now before the Court is plaintiffs' motion for a new trial, pursuant to Federal Rule of Civil Procedure 59. (Dkt. No. 697 ("Motion").) Therein, plaintiffs contend that (1) the jury returned a verdict against the great weight of the evidence and (2) incorrect evidentiary rulings led to an unjust result. (Id. at 4, 16.) Having carefully considered the papers submitted, the Court's own observations in presiding over the trial and all pretrial motion practice, and for the reasons set forth more fully below, the Court hereby DENIES plaintiffs' motion for a new trial.
I. BACKGROUND
The basic background of this case is not in dispute and is well-known to the parties. The Court will not repeat it here. Christopher Slaight, Seyed Amir Masoudi, and Nobel Mandili, on behalf of themselves and on behalf of others similarly situated, claimed disparate treatment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., and the Civil Rights Act of 1866, 42 U.S.C. 1981 against Tata Consultancy Services, Ltd. ("TCS"). (Dkt. No. 246 ("4AC") ¶ 5.) The Court certified a "Termination Class" under Federal Rule of Civil Procedure 23(b)(3), with these plaintiffs as its representatives. (Dkt. No. 244 ("Omnibus Order") at 30-39.) Following some modification, the class was defined as:
All individuals who are not of South Asian race or Indian national origin who were employed by [TCS] in the United States, were subject to a policy or practice of benching and allocation, were placed in an unallocated status and were terminated between April 14, 2011, and [December 27, 2017] and who are not bound by an arbitration agreement with TCS.
(Dkt. No. 412 at 16 (alterations in original, emphasis omitted).)1
On November 2, 2018, the case proceeded to trial. (See Dkt. Nos. 630, 631.) The fact questions at issue included whether TCS had a pattern and practice of intentionally discriminating on the basis of race against non-South Asian employees, or on the basis of national origin against non-Indian employees, who were benched and then terminated. (See Verdict at 2; Dkt. No. 668 ("Jury Instructions") at 5.) As the Court instructed the jury, plaintiffs "had to establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure[, that is] the regular rather than the unusual practice." Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977); see also Jury Instructions at 5.
At trial, each side presented one expert witness and numerous lay witnesses, all of whom discussed scores of exhibits. (See Dkt. Nos. 676-678.) The jury deliberated over two days before rendering a unanimous verdict in favor of TCS. (See Dkt. No. 676 ("Trial Sheet") at 1-2, 20-21; Verdict.) The Court observed during trial that the jurors worked very hard throughout the trial to determine how to resolve the parties' factual disputes. They paid close attention to the exhibit screens and the witnesses; many took extensive notes; jurors posed dozens of questions during trial; and the jury deliberated for approximately eight hours. (See Dkt. No. 674 ("Jury Notes") at 2-25; Dkt. No. 687 at 1919-20.) No hint of any irregularity arose.
The Court entered judgment on the verdict on December 18, 2018. (Dkt. No. 683 ("Partial Judgment").) The instant motion followed.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 59(a)(1), the court may grant a new trial "on all or some of the issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Because "Rule 59 does not specify the grounds on which a motion for a new trial may be granted," district courts are "bound by those grounds that have been historically recognized." Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). Those grounds include (1) a verdict that is contrary to the weight of the evidence, (2) a verdict that is based on false or perjured evidence, (3) that damages are excessive, or (4) to prevent a miscarriage of justice. Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007). Erroneous evidentiary rulings and errors in jury instructions are also grounds for a new trial. See Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir. 1995); Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir. 1990).
III. DISCUSSION
In plaintiffs' instant motion for a new trial, they contend that (A) the jury returned a verdict against the great weight of the evidence and (B) incorrect evidentiary rulings led to an unjust result. (Motion at 4, 16.) The Court will address both in turn.
A. Challenge to Jury's Verdict
When reviewing a motion for a new trial based on a verdict contrary to the weight of the evidence, the court is "not required to draw all inferences in favor of the verdict and [can] reweigh the evidence and make credibility determinations."2 Experience Hendrix LLC v. Hendrixlicensing.com, 762 F.3d 829, 845 (9th Cir. 2014). Instead, a new trial should be granted only where, after "giv[ing] full respect to the jury's findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake has been committed" by the jury, or by both the jury and the Court. Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1365 (9th Cir. 1987) (affirming denial of new trial); see also Murphy v. City of Long Beach, 914 F.2d 183 (9th Cir. 1990) (affirming grant of a new trial where the district court determined not only that a negligence verdict was against the clear weight of the evidence, but also that it had made two serious errors in the jury instructions).
Plaintiffs argue that they presented (1) compelling statistical evidence of discrimination that TCS failed to rebut as well as (2) documentary and anecdotal evidence that corroborated the disparities identified in their statistical evidence for which TCS failed to offer a viable non-discriminatory explanation. The Court addresses each argument, as well as (3) TCS's affirmative evidence and (4) additional failures in plaintiffs' affirmative case.
1. Plaintiffs' Statistical Evidence
In support of their challenge to the jury's verdict, plaintiffs point primarily the testimony of their labor economics expert Dr. David Neumark, namely his statistical analysis and resulting opinion that "[t]he data on terminations and terminations from the bench are very statistically strongly consistent with discrimination." (Motion at 8 (citing Trial Transcript at 101:17-19).) Plaintiffs characterize this statistical evidence as "overwhelming" and contend that TCS was therefore "required to present evidence showing that plaintiffs' statistics were inaccurate or statistically insignificant, or explain the disparities as the product of a legitimate, nondiscriminatory selection criterion that he failed to present. (Id. at 9 (citing Teamsters, 431 U.S. at 360; Palmer v. Shultz, 815 F.2d 84, 92 (D.C. Cir. 1987)) (internal quotations omitted).)
Plaintiffs describe their statistical evidence as reflecting "shockingly high" and statistically significant disparities in TCS's workforce composition and termination rates between South Asian and non-South Asian employees and assert that this evidence is therefore enough to shift the burden to TCS under the Teamsters framework. (Motion at 7-8.) However, plaintiffs' motion does not account for, or acknowledge, the evidence presented at trial that undermined Dr. Neumark's testimony.
First, during cross-examination on the first day of trial, Dr. Neumark confirmed that his opinions represented his third of three findings of statistics "consistent with discrimination" for plaintiffs' counsel, Kotechn & Low LLP despite the fact that he also described the findings as "unlike anything I almost ever see[s.] (Trial Transcript at 103:22-25; 78:11-14.) The cross-examination significantly undermined Dr. Neumark's credibility and his conclusions. This is especially poignant in a case such as this, where the analysis underlying Dr. Neumark's opinion does not lend itself to independent evaluation by the jury.
Second, shortly thereafter, Dr. Neumark said that he limited the data in his analysis to TCS employees who were merely coded as "unallocated" in TCS's system and therefore his did not consider or account for why the employees whose data analyzed had become "unallocated." (Id. at 109:20-110:4.) Reasonable jurors could easily infer that Dr. Neumark's statistical analysis chose to ignore defendant's primary explanations for the results namely an employee's unwillingness to relocate and the lack of suitable qualifications.
Finally, several of TCS's witnesses testified that Dr. Neumark's U.S. terminate rate analysis and the resulting disparities between "local attrition" and "expat attrition" did not reflect an accurate comparison. Specifically, they testified that there is almost no such thing as "expat attrition" in TCS's U.S. workforce (except in the most extreme circumstances, such as imprisonment or death) because expats' deputation agreements "prevent them from being terminated in the U.S. . . . ." (Id. at 1326:24-1327:25 (Ganapathy); id. at 1221:4-1223:7 (Blandford).) Given the issues with Dr. Neumark's testimony, the Court is not at all convinced that the jury's verdict was a mistake.
Moreover, TCS offered their own labor economics expert, Dr. Edward Lazear, who presented an alternative statistical approach. Dr. Lazear compared TCS's actual rate of involuntary termination for non-South Asian locally-hired employees (like plaintiffs) of 7.3%, and with the national average for a corresponding group of 25.8%. (Trial Transcript at 1432:20-1433:8.) Dr. Lazear opined that this data was inconsistent with a pattern of discrimination because any company intending to discriminate against such employees should have a termination rate higher than the national figure, not one-third of the national figure. (Id. at 1434:8-24.) As they did on cross-examination at trial, plaintiffs criticize Dr. Lazear's approach but do not present evidence or argument that his testimony should be disregarded in its entirety. (Motion at 9-10.)
2. Plaintiffs' Corroborating Evidence
In terms of corroborating evidence, plaintiffs point primarily to the "`leadership directive,' pursuant to which TCS's expats [mostly Indian and South Asian] were to be utilized in the U.S. `to the maximum extent' permissible under their visas." Motion at 11 (citing Trial Exs. 2, 9, 23, 28; Trial Transcript at 427:16-24.) TCS presented evidence rebutting the inference that this directive constituted evidence of discrimination. First, TCS's trial representative Balaji Ganapathy testified that maximizing the use of each visa was only one aspect of a larger company strategy to fuel growth by retaining all employees it could. (Trial Transcript at 1316:1-1322:11; see also id. 1191:22-1198:13 (Blandford discussed specific efforts to improve retention of locals); Trial Transcript 1325:6-1326:8 (same for Ganapathy; local attrition reduced to 18% by time of trial, and TCS aimed to push it lower).) Second, TCS presented evidence that maximizing the value TCS obtained from each visa did not mean taking jobs from local U.S. workers. (Trial Transcript at 1320-1321.) Plaintiffs never explained how TCS would engage in a pattern of discrimination where TCS had more jobs to fill than qualified and willing employees to fill them. (Id. at 1539:21-1540:13.) The Court finds that a reasonable jury could have determined, based on this evidence, that the leadership directive failed to establish, or a support, a finding of discrimination.
Plaintiffs also argue that testimony of named plaintiffs and other class members and various emails constituted anecdotal evidence of discrimination. (Motion at 11, 13.) While true, cross-examination also revealed that many of the named plaintiffs' and class members had location or other concerns with respect to allocation. (See Trial Transcript 589:8-597:10 (plaintiff Massoudi argumentatively denying that he was removed from TCS's Apple account at Apple's request because he had been argumentative and stating that TCS "never offered [him] anything" immediately before conceding that TCS offered him a position in Walnut Creek, which he turned down due to the commute).) The Court finds that a jury could reasonably discount much of this testimony purporting to present evidence of actual discrimination with respect to allocation.
3. TCS's Affirmative Evidence
The Court recognizes that in support of the verdict, TCS presented affirmative evidence that it did not discriminate at all, much less intentionally. TCS witnesses, including executives and talent-engagement managers, testified that company policy and practice were to treat locals and expats equally, and internal job placement was driven by employees' skills and experience, as well as their availability for a new project (based on the expected end of a current role) and if practicable, employees' location preferences. (See, e.g., Trial Transcript at 1322:7-1323:24 (Ganapathy); id. at 351:1-13 (Kant); id. at 1098:14-1099:15 (Gwalani); id. at 1107:21-1109:5 (Gwalani, also explaining the few instances where a role may legitimately need a local or an expat).
TCS also highlighted two non-discriminatory factors contributing the Indian and South Asian majority in TCS's U.S. workforce. First, TCS witnesses testified that the U.S. education system produces fewer than half the computer science graduates that the I.T. industry demands each year for entry-level jobs. (Trial Transcript at 1331:4-1332:21.) Second, locals demonstrate far greater resistance to TCS's universal requirement, as an I.T. consulting business, that employees should relocate if the best role for them required it. Executives testified that the "refusal to relocate" is TCS's largest challenge in placing local hires (id. at 1104:3-11)—who by definition always have a U.S. home—and that this is the single largest reason why "unallocated" employees are terminated (id. at 346:20-347:5).
Additionally, and as acknowledged by plaintiffs, "TCS presented testimony that its local workforce increased in number and as a percentage of its overall workforce between 2011 and 2017." (Motion at 14 (citing Trial Transcript at 1321:9-17, 1541:14-25).) Although plaintiffs argue that TCS's work force became more local over time only because of the scarcity of H-1B and L-1 visas, a reasonably factfinder could also infer from this evidence that TCS had no practice of discriminating in favor of South Asians or Indians.
This additional evidence supports the jury's decision.
4. Failures in Plaintiffs' Affirmative Case
Plaintiffs' theory of discrimination relied on their contention that TCS intentionally displaced class members by assigning Indian or South Asian employees to jobs that class members were successfully filling or could have filled, resulting in class members' terminations from the bench. But that theory ignored the undisputed evidence that TCS had more jobs to fill nationwide than qualified and willing employees to fill them. (See Trial Transcript 1539:21-1540:13; see also Trial Transcript 291:13-19 (indicating that it would not make economic sense to fail to map any TCS employee to customer requirements).) Further, in the final analysis, defendant had no motive to discriminate, rather, as the Court identified in commenting on the verdict; the economic model promoted the contrary:
. . . I couldn't tell you what that jury was going do. But there was a question that you never answered on the Plaintiffs' side and which I suspect might have been the reason for their verdict, and that is, what was the motive? When you have more jobs available than people applying and the Defendant makes money every time they put someone in that position, what is the motive [for discriminatory termination]? That question was never answered in this case.
(Trial Transcript at 1920.) In sum, the Court finds it was not contrary to the clear weight of the evidence for a reasonable fact finder to determine that TCS's case was more persuasive than Plaintiffs'; nor does the Court find any basis to conclude that a definite or firm basis supports the finding of any mistake.
B. Challenge to the Court's Evidentiary Rulings
To prevail on a motion for new trial based on evidentiary rulings, plaintiffs must persuade the Court that either or both of the challenged rulings was an abuse of the Court's broad discretion in such matters. See Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir. 1995) (affirming denial of new trial; district court was within its discretion to permit limited testimony on defendant's criminal history, where officer's knowledge of it was relevant to excessive-force claim). Further, "[a] new trial is only warranted on the basis of an incorrect evidentiary ruling if the ruling substantially prejudiced a party." United States v. 99.66 Acres of Land, 970 F.2d 651, 658 (9th Cir. 1992). Plaintiffs argue that two of the Court's evidentiary rulings, either independently or cumulatively, were incorrect and necessitate a new trial: (1) the Court's ruling granting in part TCS's motion in limine No. 9, thereby excluding evidence of discrimination in hiring from plaintiffs' case-in-chief; and (2) the Court's ruling permitting testimony from Ashok Seetharaman providing an overview of TCS's termination forms.
i. Plaintiffs' Exhibits Purporting to Show Hiring Discrimination
Responding to plaintiffs' list of proposed exhibits, TCS's Motion in Limine No. 9 argued that "[t]o avoid long `mini-trials' over irrelevant claims and parties, plaintiffs should be precluded from presenting any evidence . . . regarding: (1) adverse employment actions other than benching and termination decisions (meaning that evidence of failure to promote or other alleged adverse actions would be excluded); (2) claims relating to non-parties; and (3) theories of discrimination other than race and national origin." Dkt. No. 531, p. 2. The Court granted one portion of that motion, giving rise to the current argument:
The motion is GRANTED IN PART as to evidence of discrimination in hiring and DENIED IN PART as to the remaining evidence, including evidence non-hiring discrimination against non-class members. To the extent that parties cannot agree whether a particular piece of evi[de]nce relates to hiring discrimination, they may raise the issue with the Court at trial.3
Dkt. No. 592, pp. 4-5.
In support of the instant motion, plaintiffs first argue that the Court's "per se exclusion of all `hiring' documents without individualized analysis" of each document violated the Supreme Court's rule in Sprint/United Mgmt. Co. v. Mendelsohn. (Motion at 18 (citing 552 U.S. 379, 387-88 (2008)).) Second, plaintiffs reiterate the same relevance arguments they made, and lost, in opposition to defendant's Motion in Limine No. 9, which themselves represented a repetition of the arguments they made, and lost, in opposing bifurcation of plaintiff Buchanan's discrimination-in-hiring claim from this termination-class trial. (Compare Motion at 16-20 with Dkt. No. 556 at 2-4 with Dkt. No. 364 at 11-12.) Plaintiffs argue that evidence of discrimination against non-South Asian and non-Indian individuals in "hiring" is "centrally relevant to" plaintiffs' claims of discrimination in "firing" because those claims center around project staffing, "which is accomplished through (a) selecting internal candidates for projects or (b) hiring new candidates from the market." (Motion at 18.) Plaintiffs further contend that the evidence is also relevant because it rebuts two of TCS's defenses — that TCS lacked discriminatory intent based on the significant increase in local hiring since 2011 and that if TCS discriminated, it was on the basis of citizenship not race or national origin. (Id. at 19.)
Plaintiffs do not persuade. The Court in Mendelsohn held that courts may not apply broad legal rules to exclude entire categories of evidence without regard for the "particular case" before them. Mendelsohn, 552 U.S. at 387-88. Here, the Court did not so exclude. Instead, the Court grounded its decision to excluding documents related to hiring discrimination because the particulars of this case. (See ECF 244 at 33.) The Court reviewed numerous representative documents and made judgment calls based on the relevance and probative value related to the termination case itself, having previously found insufficient common evidence to support a class action for a "hiring" case. Plaintiff's attempt to recharacterize this review as a "per se" rule is without foundation.4
ii. Mr. Seetharaman's Overview of TCS's Termination Forms
On this issue, the Court granted almost all the relief sought by plaintiffs' Motions in Limine Nos. 7 and 8 and did not allow TCS to introduce any of its termination forms, nor its written summary of those forms reflecting the termination code "unallocated." (See Dkt. No. 605.) However, plaintiffs assert that the Court erred in allowing the following tightly circumscribed testimony by Ashok Seetharaman, summarizing some of the substantive reasons that those 845 employees became unallocated. Despite having precise numbers:
[Mr. Seetharaman] testified that "a majority" of the terminated individuals had relocation restrictions, "quite a few" were released based on customer escalation or performance issues, "a few" had abandoned their jobs or violated TCS policies, "a majority" were terminated or released because the client ended their role, and "a vast majority" were released or terminated for more than two reasons. Tr. 1537:23-1539:13.
Dkt. No. 697, page 27.
The Court rejects plaintiffs' contentions that this testimony was "summarized hearsay" or the mere product of counsel-preparation. The testimony was fairly within the scope of Mr. Seetharaman's knowledge as a manager. (See, e.g. Trial Transcript at 1566:16-18 ("I look at all the documentation. Only when I am convinced that we have been fair to the employee, I will give my approval.").) When asked "How many termination forms have you reviewed while acting as TCS' Deputy Head of HR?" the witness answered: "Since January 2013, I've reviewed most of the terminations to date." (Id. at 1529:25-1530:3.) Moreover, he explained that those forms are the only source for anyone to learn the substantive reason or reasons that an employee coded in the HR system as "unallocated" reached that status. (Id. at 1528-29.) In sum, the Court concluded Mr. Seetharaman had adequate direct foundation to give the very limited testimony allowed, so that such testimony brought no inadmissible hearsay before the jury.
iii. No Prejudice from Any Error
As set forth above, the Court is unpersuaded that it erred in either of the evidentiary rulings raised by the motion. But even if either ruling were wrong, the Court finds that no such error prejudiced Plaintiffs. As a threshold matter, the Court doubts Plaintiffs' proposition that it must presume prejudice resulted from erroneous evidentiary rulings, requiring TCS to overcome such a presumption by a showing that plaintiffs were not prejudiced by any such error.5
In any event, the Court independently concludes as follows:
First, even if it were an error to exclude plaintiffs' hiring-related exhibits, the verdict was not likely affected by that exclusion. Accepting for the purpose of argument plaintiffs' assertion that "[d]iscrimination in one element of TCS's staffing process is plainly relevant to discrimination in the other," the exhibits discussed in the motion still reflect at most sporadic comments by individuals concerning race or national origin. In light of all the evidence, the Court does not conclude that such evidence would likely have affected the jury's assessment that plaintiffs had failed to establish that TCS had a pattern or practice of discrimination. (See Motion at 24.)
Second, even if it were an error to allow Mr. Seetharaman's testimony, the verdict was not likely affected thereby because TCS presented other, similar evidence, in support of the verdict— including other testimony to very similar facts without objection by plaintiffs on this ground. (See, e.g., Trial Transcript at 346:20-347:5 (Surya Kant testifying that refusal to move was the single largest reason why "unallocated" employees are terminated); id. at 1199-1200 (Melissa Blandford explaining that a termination coded as "unallocated" could well have resulted from a prior project-release due to poor performance).
IV. CONCLUSION
For the foregoing reasons, the Court DENIES plaintiffs' motion for a new trial.
This Order terminates Docket Number 697.
IT IS SO ORDERED.
