Wednesday, October 23, 2019

Is this the worst defense ever to a discrimination claim?


Litigation is painful. It takes a lot of time, costs a lot of money, and has lots of variables that you just can’t control. Especially when the client goes off the rails and says something so ludicrous that you might as well just pack it in and cut a check.

As an example, I offer Evans v. Canal Street Brewing. It’s a race discrimination currently pending in federal court in Detroit. According to the Detroit Metro Times, the plaintiff, who is African-American, alleges “a racist internal corporate culture,” including the repeated used of the “N word”, and  management naming its printer the “white guy printer” and  the printer for lower-tier employees the “black guy printer.”

The employer’s defense? The restaurant’s general manager, Dominic Ryan, claims that he did not know Evans was black.

Thankfully, for our entertainment and education, the Detroit Metro Times published excerpts from Ryan’s deposition.

Evans’ Attorney, Jack Schulz: OK, are you aware Tracy is Black? 
Founders Manager Dominic Ryan: What do you mean by that? 
Schulz: Are you aware Tracy is African-American? 
Ryan: I’m not sure of his lineage so I can’t answer that. 
Schulz: Alright. Are you aware that Tracy is a man of color? 
Ryan: What do you mean by that? 
Schulz: No? Do you know … You don’t know what it means for someone to be a white person or a Black person? 
Ryan: I’m asking for clarification. 
Schulz: You don’t need any. I can promise you that. We’ll keep the record as is. Someone’s skin color. A white … 
Ryan: So that’s what you’re referring to? 
Schulz: Yeah. Oh, yeah, yeah. 
Ryan: OK. Yes, I know the difference in skin tone. 
Schulz: Are you able to identify individuals by their skin tone? 
Ryan: What do you mean “identify”? 
Schulz: I mean have you ever looked at Tracy Evans in your entire life? Have you? That’s a … that’s a genuine question. 
Founders Attorney: Objection. Argumentative. 
Founders Attorney: You can answer. 
Ryan: Yes. 
Schulz: And did you ever realize that Tracy’s skin [is] Black? 
Ryan: That’s not … I mean, is his skin different from mine? Yes. 
Schulz: How? 
Ryan: What do you mean “how”? It’s a different color. 
Schulz: And what is the difference of that color? 
Ryan: It’s darker. 
Schulz: And that means? 
Founders Attorney: Objection. Vague question. 
Schulz: I mean, we could … This could be a one-sentence answer, you know. So by your … I guess your testimony is you have no idea if Tracy is a minority, if he’s African-American? 
Ryan: I don’t know Tracy’s lineage, so I can’t speculate on whether he’s … if he’s from Africa or not. 
Schulz: What do you mean lineage, from Africa? 
Ryan: No. I mean, like, I don’t know his DNA. 
Schulz: Have you ever met Black people who aren’t from Africa? 
Ryan: Excuse me? 
Schulz: Have you ever met a Black person born in America? 
Ryan: Yes. 
Schulz: And you were able … Have you ever met a Black person who didn’t tell you they were Black? 
Ryan: Can you rephrase that? 
Schulz: Is Barack Obama Black? 
Founders Attorney: Objection. 
Schulz: To your knowledge? 
Ryan: I’ve never met Barack Obama so I don’t … 
Schulz: So you don’t know if Barack Obama is Black? What about Michael Jordan? Do you know if Michael Jordan is Black? 
Founders Attorney: Objection 
Ryan: I’ve never met him. 
Schulz: So you don’t know him? What about Kwame Kilpatrick? 
Ryan: Never met him. 
Schulz: To your knowledge, was Kwame Kilpatrick Black? 
Ryan: I … 
Schulz: You don’t know? 
Ryan: I don’t know.

I’m … speechless. I also have no idea how the plaintiff’s lawyer did not lose his mind asking these questions.

I just cannot understand what Ryan hoped to gain by refusing to admit that the plaintiff is African-American. And, once he goes further by refusing to admit that famous folks like Barack Obama and Michael Jordan are also African-American, he has zero credibility. Without any credibility, this case is lost. Nothing else matters once a key witness loses credibility.

For sport, I’m going to keep checking the docket to see how long it takes for this case to settle. Although, with a litigation strategy so poorly thought out, this might just be one of those rare employment cases that makes it all the way to trial.

* Photo by mwangi gatheca on Unsplash
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