FOUR JUDGES DISSENT
AND WOULD VACATE THE DISTRICT COURT'S DECISION
THOMAS H. ROBERTS & ASSOCIATES, P.C. TO
APPEAL THE HOLDING OF THE MAJORITY
TO THE UNITED STATES SUPREME COURT

September 27,1999 — Four Judges on the United States Court of Appeals for the Fourth Circuit, concur with the law firm of Thomas H. Roberts & Associates, P.C., stating that the district court's decision should be vacated.  In the sex discrimination case of Taylor v. Virginia Union University, the dissent, with a more thorough analysis, calls into question sweeping generalizations often applied in discrimination cases.  The "same actor inference" should not be applied to promotion cases.  Under the "same actor inference," when an individual is hired and fired by the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer."  Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991)(age discrimination); Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996)(extending "same actor inference" to Title VII gender discrimination).  The dissent writes, "The thought of an employer hiring an individual in a protected class and, for discriminatory reasons, keeping that person in an entry-level station, i.e., hindering the employee from advancing to the ranks of management or into a higher paying position, is not nearly as incredulous as the majority urges."

The "stray comment rule" which has made comments like "your too damn old" irrelevant in age discrimination cases, eg. O'Connor v. Consolidated Coin Caterers, should not be applied in race or gender cases.  Age does not create a true "we-they" situation, since all will enter the protected age group at some point in their lives barring unfortunate events. United States Circuit Judge Motz agrees that demeaning and lewd gender specific remarks "offer a big, wide viewfinder into the soul of the individual who is making it" constituting strong, direct evidence of animus.  It is prejudicial error and an abuse of discretion to exclude such evidence.

The Court's decision against the plaintiffs is contrary to the earlier panel decision in favor of the plaintiffs.  Taylor v. Virginia Union University.  See earlier press release.

An appeal to the United States Supreme Court is likely.

Commentary
by
Thomas H. Roberts & Associates, P.C.

The law firm of Thomas H. Roberts & Associates, P.C. joins with the dissent in expressing disappointment that a once respected institution of higher learning like Virginia Union University would suggest that the comment of the University's Chief of Police, Eugene Wells, "I bet she has good pussy" is simply a "man talk situation" and not powerful evidence of animus towards women.  This firm and the public finds even more disappointing the suggestion by one of the Judges joining the majority opinion for the United States Court of Appeals for the Fourth Circuit, that such a comment may be viewed as a compliment.  It is lewd and demeaning.  Our hope is that the suggestion was intended as a shocking rhetorical question rather than a position offering a viewfinder into souls of some on the court.

The facts and circumstances of each case are unique and therefore the fact that a law firm has obtained significant verdicts and results in other cases in no way guarantees that other cases will have similar results.