Petition of the Month, December 2014:
Dharma Agrawal v. Carlo Montemagno et al.

In the 1980s the trial judges in the Southern District of Ohio often saw discrimination cases as having issues of fact, if a plaintiff could simply present evidence on discrimination issues or on the basis of having a factual or testimonial showing, i.e. two differing versions of facts related to the terms and conditions of employment. In that period, defense counsel often did not ask the court for summary judgment, because plaintiffs’ usually had a showing that the defense saw as factually significant. Many cases also settled, often with District Court encouragement.

Time passed into the 1990s, especially after Congress passed the 1991 Civil Rights Act., and suddenly the judicial attitude was to permit only the most perfect cases to reach the jury. Settlements stopped happening because defense counsel would offer very little until after the Court had ruled on a Rule 56 Motion for Summary Judgment. Disputed facts were interpreted in such a way that virtually all claims became susceptible to “judgment as a matter of law.” Still cases reached the jury and with substantial verdicts.

McDonnell Douglas v. Green, 411 U.S. 792 (1973), which had produced many jury trials in the 1980s, began being interpreted in the 1990s as a way to short circuit trials by claiming the four elements had not been met. Originally, of course, the prima facie case standard had not been meant to be “onerous.” However, prong four evidence for the McDonnell Douglas test, (evidence which inferred discrimination) was refused by Courts, because the comparisons needed for the evidence to be relevant were rejected. A case of this sort in the Sixth Circuit was Mitchell  v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992). The employee sought to be used by plaintiff’s counsel for comparison was excluded because the comparison was not exact enough. Judge Jones’ dissent highlights the lengths that the majority went to exclude the comparable employee from consideration. The case became widely cited especially by defense counsel and the end of factual disputes began. It took almost ten years before Judge Moore’s opinion in Ercegovich v. Goodyear Tire Rubber Company, 154 F. 3d 344 (6th Cir. 1998) sought to stem the tide created by Toledo Hospital. Several other ways of satisfying prong four were destroyed in the process, e.g. inferences of discrimination because of violations of investigatory protocol by management. In the early 1980s this latter inference was available. See Blackwell v. Sun  Electric Corp., 696 F.2d 1176 (6th Cir. 1983).

At this point, the District Court and the Court of Appeals have supported one another with their idea that there are no factual issues in any case, no matter what the Seventh Amendment says.

1. Professor Agrawal’s accomplishments are to me hard to summarize. His interests are remote microwave monitoring and microwave communication mesh networks, including system security. His Curriculum Vitae runs to about 110 pages single spaced; he would appear to be one of the foremost educators and researchers in his field. His courtship was summarized in the offer letter he received in 1998 which appeared to guarantee over $1,000,000 in research funding along with other research incentives. Unfortunately, some of the support along with infrastructure help proved illusory.

1. Professor Agrawal’s position began in 1998 and was punctuated with an absence of support from the University. The University did not produce the level of support it had promised, and in 2006, Dean Montemagno entered the picture. Dean Montemagno reorganized Agrawal’s Department and diverted Agrawal’s research funds. Later, when Department Chair Battacharya supported Agrawal’s research Dean Montemagno dismissed the Department Chair, and tried to eliminate the Computer Science Department’s undergraduate major.

1. The disciplinary actions which suggested Agrawal was exploiting graduate students failed, but they were not properly investigated prior to being brought by the University or were brought despite knowledge that the factual basis of the disciplinary action was incorrect, and thus appeared to me to be trumped up. It became apparent to the Grievance Committee that procedure was in question. Later, the administration threatened further discipline based on questions it raised concerning grant administration, but no further charges came about. The administration, however, contrary to the collective bargaining agreement, decreed that Agrawal could no longer seek grant funding and could not recruit more graduate students. This spawned the federal lawsuit.

1. Of course, the third prong of McDonnell Douglas requires some job detriment be present. The Seventh and Ninth Circuits were on record that diverting research resources and similar University actions satisfied prong three, but the Sixth Circuit had its own precedent, Mitchell v. Vanderbilt (which is an eye opener, but is only similar to Dr. Agrawal’s situation to a point.) Dr. Mitchell was at the end of his career and was not publishing very much. In light of Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) and Burlington Northern & Santa Fe Ry. Co.  v. White, 548 U.S. 53 (2006), the Sixth Circuit decision seems incorrect as a precedent in Professor Agrawal’s situation. Indeed, Burlington says the issue is a fact issue for the jury, which dove-tails with our Seventh Amendment complaint that the previous courts were violating Federal R. 56.

1. Indeed, the lower courts did not like our complaint because it had few legal conclusions in it, and I continue to think that legal conclusions have no place there. Of course the Supreme Court would appear to agree. Agrawal’s work environment was quite hostile, as the myriad decisions directed against him indicated. At the time I drew the complaint, some of the discriminatory treatment the Indians in the department suffered had not even happened yet, or was not apparent. The complaint did say that the discrimination was continuing, and for much of the discriminatory history of the case, discrete acts were simply not there. The lower courts’ refusal to allow us to use evidence beyond the two year statute, despite National R.R. PassengerCorp. v. Morgan, 536 U.S. 101 (2002), on the basis of what legal conclusions were set forth in the complaint constitutes a “form over substance” proposition.