Rapold v. Baxter International, No. 11-2715 (7th Cir. Jan. 31, 2013)

By Paul Mollica

The Seventh Circuit issues a decision, in the context of a Title VII national-origin discrimination jury trial – which ended in a defense verdict – that the decision of whether to instruct the jury with a so-called “single-” or “mixed-” motive charge is for the judge, subject to review only for abuse of discretion. The decision will continue to fuel the on-going debate about the precise value of the 1991 Civil Rights Act “mixed-motive” section to employees.

Rapold v. Baxter International, No. 11-2715 (7th Cir. Jan. 31, 2013):  When Congress last substantially reformed the nation’s core employment discrimination law – Title VII of the Civil Rights Act of 1964 – it added new language providing that a claim of discrimination could be proved even if a biased motive was only an undefined but at-least-partially motivating part of the adverse personnel decision (42 U.S.C. § 2000e-2(m)).

The complement to this mixed-motive language was 42 U.S.C. § 2000e-5(g)(2)(B), creating an alternative remedial structure for such claims. Under this section, if the employer is able to prove that the employee would have been treated the same way regardless of the biased motive, a prevailing employee could still obtain a judgment in his or her favor, but would not be allowed monetary or reinstatement remedies (and attorneys’ fees would be discretionary, instead of essentially compulsory). In short, an employee could win vindication with such a mixed verdict, but only modest relief.

These dual paths to liability in individual-employee Title VII cases have prompted a decades’-long dialogue, among the bench, scholars and lawyers on both sides of Title VII cases, about the utility of mixed-motives as a vehicle for civil justice. As a purely practical matter, one finds that among the exceptional Title VII cases that actually go to trial, parties generally opt for the simpler, pre-1991 liability rules.

The Seventh Circuit now adds to that dialogue with its decision that when a case has been fully tried to a jury, the choice of mixed-vs-single-motive jury charge is left the judge’s determination as to which instruction most closely fits the record, a decision that is reviewable on appeal only for abuse of discretion.

Dr. Hans J. Rapold alleged that Baxter failed to hire him Cellular Therapy (CT) Medical Director because he is Swiss. He was initially given an offer letter in 2006, and began a consultancy relationship with Baxter overseas while awaiting visa clearance. The initial consulting term ran from January 2, 2007 through April 30, 2007. During this period, though, Baxter allegedly received complaints that he Dr. Rapold had been rude with employees at Baxter as well as with the immigration attorney who was attempting to process the doctor’s O-1 visa application. Dr. Rapold also supposedly expressed disagreement with Baxter about his use of technology (he found fault with his BlackBerry and having to call on a speakerphone), and engaged in extended shouting matches with Baxter management about recruitment and a professional presentation. Ultimately, citing these challenges, Baxter withdrew its offer of employment.

Dr. Repold rejoined that the decision maker, Andrea Hunt, Vice President of CT, expressed hostility towards his European origins: “Hunt . . . discussed Dr. Rapold’s work style with David Amrani, who suggested that Dr. Rapold’s behavior may be attributable to a European attitude about working that included a desire not to ‘stress themselves for a job.’ She also corresponded via e-mail . . . about discussing some of Dr. Rapold’s behaviors . . .and stated that ‘European cultural differences will need to be addressed.’ In various There conversations about Dr. Rapold, Hunt referred to his ‘Germanic’ attitude; she also claimed that he had an ‘autocratic . . . hierarchical way of managing.'”

Dr. Rapold’s Title VII national-origin case went to trial before a jury. The judge denied pre-verdict motions for judgment as a matter of law, and rejected the plaintiff’s request for a mixed-motive instruction, finding that the procedural history suggested that both sides viewed it as a single-motive case:

“Specifically, the district court noted both pre-trial and at the jury instruction conference that a mixed-motive instruction was inappropriate because by denying any wrongdoing on his part, Dr. Rapold had created a ‘simple case’ in which the jury could either believe him or the defense, not some combination of the two. Over Dr. Rapold’s objection, the court tendered the Seventh Circuit pattern instruction, which states that ‘plaintiff must prove by a preponderance of the evidence that defendant withdrew his job offer because of his national origin.’ It continues: ‘To determine that plaintiff’s job offer was withdrawn because of plaintiff’s national origin, you must decide that defendant would not have withdrawn its job offer had plaintiff been outside of this protected class but everything else had been the same.'”

On appeal, the Seventh Circuit affirms the defense judgment. Though acknowledging that the cross-currents of “single-” and “mixed-motive” claims with in Title VII had “engendered considerable confusion” among federal courts, it holds that decisions about which liability instruction is warranted belongs to the trial judge:

“It is important to remember, however, that a case will not always be easily identifiable as one of ‘pretext’ or ‘mixed-motives’ from the outset. For that reason, it is up to the district court to decide whether a given case involves mixed motives. And we review this conclusion only for an abuse of discretion.

“The district court was within its considerable discretion to conclude that neither Dr. Rapold’s nor Baxter’s evidence warranted giving a mixed-motive instruction. Both parties consistently maintained that the evidence pointed to a single cause for Dr. Rapold’s termination: according to Dr. Rapold, he was an outstanding employee who was fired only on account of his national origin; according to Baxter, Dr. Rapold was a problematic employee whose repeated bad behavior formed the sole basis for the ultimate withdrawal of his offer. Baxter here clearly sought to present a complete defense: it never argued, as it could have, that Dr. Rapold’s national origin may have played a part in its decision but that it would have rescinded his offer regardless of his national origin.”

The panel also holds that the district court did not abuse its discretion in finding that the plaintiff himself did not ultimately present a mixed-motive record:

“[We think the district court could have concluded that Dr. Rapold had presented sufficient evidence that his national origin played some part in Baxter’s decision. Baxter would then have had the option to defend with the argument that although national origin played a part in its decision, it would have rescinded Dr. Rapold’s offer irrespective of his national origin. But Baxter chose to make a complete defense, denying that Dr. Rapold’s national origin played any part in its decision. And Dr. Rapold essentially did the same by insisting that Baxter’s stated reasons for rescinding his offer were a pretext for its real reason-his national origin. These positions lent themselves to the district court’s conclusion that the mixed-motive instruction was inappropriate.”

In any event, the court holds that any error in giving the instruction was harmless. The jury was entitled to conclude that the remarks about the plaintiff’s European origins were “little more than an attempt to give Dr. Rapold the benefit of the doubt in the face of increasingly unprofessional behavior,” in short, to cut him a break because he is European. Finally, the panel holds that Dr. Rapold was not entitled to judgment as a matter of law on the trial record, finding that the jury’s verdict was rational.

Please visit the professional bio of Paul W. Mollica at the Outten & Golden LLP website.