Circumstantial Evidence of Discrimination Need Not Be More or Better Than Direct Evidence

Plaintiff Cornwell (African-American) sued his employer, a credit union, for race discrimination and? ?retaliation.?????? He? ?alleged? ?a? ?new? ?CEO (Caucasian) demoted him from VP/COO to his old job as Director of Lending giving his other responsibilities to a less experienced Caucasian employee,? and? subsequently? terminating? him for complaining. ?The trial court dismissed Cornwell?s case on summary judgment despite evidence that Cornwell was a valued employee who knew the most about lending at the company, was the only African-American? executive,? was? the? only executive demoted, and was excluded from meetings where the reorganization to facilitate the new sales approach was discussed even though it would affect his responsibilities and opportunities. The trial court denied Cornwell?s request to reopen discovery to depose an employee who was not willing to give a declaration but purportedly would testify the CEO called her a ?nigger bitch? because Cornwell?s attorney did not depose preferring ?not to disclose his strongest evidence before trial.? Finding Cornwell?s attorney did not act with diligence, the Court of Appeals held it within the trial ?court?s ?discretion? to ?deny ?the ?request ?to reopen discovery.?? In contrast, the Ninth Circuit reversed on the merits of Cornwell?s claim of discriminatory demotion holding that based on the plaintiff?s evidence a reasonable jury could find that the CEO ?had an aim to force Cornwell out? and ?did not want to work with an African- American? COO. ?Citing the U.S. Supreme Court?s decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the Ninth Circuit remarked ?that Title VII?? does?? not?? require?? a?? disparate?? treatment plaintiff relying on circumstantial evidence to produce more, or better, evidence than a plaintiff who? relies? on? direct? evidence.??? ?The? appeal upheld the dismissal of Cornwell?s claim of retaliation because he did not establish the CEO knew of his complaints to the Board of Directors before demoting him and seven months elapsed between his complaints and his termination. Likewise, the Court found that his termination was not based on race because he failed to rebut the credit union?s explanation that he was fired ?because?? he?? would?? not?? cooperate?? with?? the Board?s request for information? about his complaints.?? Cornwell v. Electra Central Credit Union, No. 04-35408 (March 1, 2006, Fisher, Gould, Bea).