jane doe, et al. v. acme corporation - acc.com · jane doe, et al. v. acme corporation ... jurors...

Jane Doe, et al. v.

Acme Corporation

Three-Panel Mock Trial

Chicago, Illinois Month Day, Year

PLEASE DO NOT DISTRIBUTE WITHOUT EXPRESS WRITTEN PERMISSION OF TRIALGRAPHIX

Jane Doe, et al. v. Acme Corporation

Privileged and Confidential Attorney Work Product

TABLE OF CONTENTS Executive Summary ............................................................................................................ 1

Research Goals................................................................................................................ 1 Method ............................................................................................................................ 1 Limitations ...................................................................................................................... 2

Case Issues & Strategic Recommendations........................................................................ 3 Witness Evaluations.......................................................................................................... 16

Jurors’ Impressions of Witnesses.................................................................................. 16 Plaintiffs’ Testimony .................................................................................................... 18 Nancy Werner ............................................................................................................... 19 Patrick Leveque ............................................................................................................ 20 Chris Helm.................................................................................................................... 21 Robert Jones.................................................................................................................. 23 Jim Cane........................................................................................................................ 25 Harold Hanson .............................................................................................................. 27 David Gumphrey........................................................................................................... 29 Lance Bamenda............................................................................................................. 30 Kevin Jarret................................................................................................................... 31

Verdict & Damages........................................................................................................... 32 Progression of Juror Sentiment Across Presentations .................................................. 32 Final Individual Verdict................................................................................................ 36 Group Verdicts.............................................................................................................. 38

Appendices........................................................................................................................ 39 Appendix A: Preconceptions and Experiences ............................................................. 40 Appendix B: Reactions to Presentations....................................................................... 55 Appendix C: Case Perceptions.................................................................................... 155 Appendix D: Verdicts & Table Maps ......................................................................... 170


Privileged and Confidential Attorney Work Product 1

EXECUTIVE SUMMARY

Research Goals The primary goal of this research exercise was to determine the impact of various case issues and themes on mock jurors’ perceptions of the case, especially with respect to liability and damages. These issues included, among others, mock jurors’ perceptions of and reactions to the following:

1. The e-mails and letters sent to Acme Corporation management

2. Management’s lack of familiarity with the investigation and other circumstances related to the Plaintiffs’ terminations

3. Effect of the Plaintiffs’ argument that “several minorities were terminated on the same day”

4. Effect of Jones’ favorable treatment of the Plaintiffs and other black employees

5. Effect of the argument that Jones was running a “tighter ship” and any changes reflected his new management style, not racism

6. Credibility of the investigation

7. Effect of comments made by many of Acme’s upper management 8. Effect of Jane Doe’s testimony, as well as her employment history

9. Effect of the other Plaintiffs’ testimony

Method On July 10 and 11, 2006, 39 mock jurors drawn from the counties of Cook, Lake, DuPage, Grundy, Kane, Kendall and LaSalle and matching the demographic profile of jury-eligible individuals from the Northern District, Eastern Division of Illinois convened to participate in the two-day research exercise. After being rescreened and qualified to participate in the exercise, mock jurors listened to opening statements by counsel representing the Plaintiffs’ case (Mark Wallace on behalf of the Acme workers) and the defense’s case (Gary Jackson on behalf of Acme). Witnesses were then called to testify in the following order: Mary Baynes, Jane Doe, Marcus Turner, Nancy Werner, Patrick Leveque, Chris Helm, Robert Jones, Jim Cane, Harold Hanson, David Gumphrey, Lance Bamenda, and Kevin Jarret. All testimony followed the same procedure: direct, cross and occasionally some redirect questioning. Lastly, closing statements were given by Mark Wallace on behalf of the Acme workers and Gary Jackson on behalf of Acme.



Questionnaires. Feedback from mock jurors was obtained in two ways: 1. A questionnaire administered in real time (i.e., with feedback immediately

following the presentations) consisted of closed-ended questions assessing mock jurors’ demographics, experiences, attitudes, knowledge, and reactions to specific case issues (Appendix A, beginning on page 40, provides a summary of these responses).

2. Paper-and-pencil, open-ended questions provided mock jurors’ perceptions of each side’s strengths and weaknesses, their assessment of liability and damages, and any outstanding questions

Jury Deliberations and Focus. After mock jurors heard the case presentations and were instructed on the law, they were divided into three panels for deliberations. At the conclusion of each panel’s deliberations, a TrialGraphix Trial Consultant moderated each panel in a focus session to explore mock jurors’ decision-making rationale.

Analyses. All data were thoroughly analyzed to address the goals stated above to detect prevalent beliefs, perceptions and positions among the mock jurors.

Limitations A mock jury research study, due to its truncated nature, should not be considered an exact duplication of the trial experience. The process by which mock jurors tend to decide on issues they find important in such studies, however, has been found to be a valuable window into understanding what is likely to be salient in the actual trial.



CASE ISSUES & STRATEGIC RECOMMENDATIONS Issue: The apparent lack of animosity toward Robert Jones. Observations and Analysis Most jurors actually seemed to look past Jones’ allegedly racist actions as the accused and turned their focus more on both the nature of the investigation and the conduct of his immediate supervisors. This “looking past” his conduct was helped tremendously by the overwhelming belief that those fired actually engaged in inappropriate behavior. Implications Apparently, “Robert being Robert” is a somewhat acceptable defense. He does need to be careful when now admitting saying inappropriate comments are bad, as it implies he knew it would be misinterpreted back then. We believe he needs to acknowledge that given the litigation, he has now come to realize that his comments were misinterpreted. But we also believe he needs to stand fast in his position that racial animus was never his intent. He just didn’t think his comments would be interpreted that way when he originally made them. Issue: Upper management’s apparent tolerance of “Robert being Robert.” Observations and Analysis If Jones was “outdated” in his view of the world and his willingness to use inappropriate terms and analogies, then jurors blamed those around him for not calling him on it. This included both those he worked with (i.e., their lack of documented complaints) and his immediate supervisors. That those supervisors were so near the top of the management chain seemed to both surprise and disappoint jurors. Implications The upper management supervisors must all be on the same page when it comes to what they knew and believed about Jones’ tendencies and demeanor. For Hanson and Gumphrey, they must walk the fine line between what they heard Jones say versus what they “knew” Jones meant. While there is no acceptable excuse for tolerating comments with veiled racial overtones, the fact that Jones didn’t mean any harm and that the two supervisors apparently knew Jones well enough to understand this gave some small measure of credence to the fact they didn’t immediately take him to task. If these two can stress that they recognized the incendiary nature of the reference, but that they knew Jones meant no racial animus by the use of the expression, then there is no notice of racial hostility or a hostile work environment at the Chicago branch.



Issue: The jurors’ desire for “outsiders” to conduct the internal investigation into possible misconduct.

Observations and Analysis As is typical when passing judgment on the conduct of others and applying the benefit of hindsight, jurors want companies to spare no expense and go outside the bounds of what would ordinarily pass for sound business judgment. If the jurors had their way, the company would have flown in a team of Stop Theft specialists to pore over the transactional records and conduct more objective interviews of all suspected of misconduct. It doesn’t matter to jurors what that might cost, or how much time and trouble it would be; in hindsight it would have been the much more “proper” thing to do. The true issue is one of the fox being asked to judge the conduct of those in the henhouse – if all employees were to have their “shops” records pulled and reviewed, then someone from the outside should have done it. For the investigation to be fair, someone had to make more objective decisions about the managers and their own histories. In the end, jurors didn’t really believe that wrong decisions had been made about Robert or Lydia or Chris or Sarah – or even that the decisions made about the Plaintiffs had anything to do with race. They just wanted the process to be more fair, more evenhanded. Implications Ultimately, jurors understand that employee theft is a part of business for all companies, especially those businesses with retail products and cash transactions. They also have to recognize that internal investigations of theft are routinely handled by the existing management of the branch, and when misconduct is suspected, it is both natural and correct to turn to the local Stop Theft specialist and the local management team to get to the bottom of the suspected behavior. That Acme was aware of the potential for deception as to the investigation issue from its experiences with similar behavior at other branches is a huge plus, and needs to be introduced early in the trial, most definitely in your opening. For example:

“…thieves always believe they’re the first to have figured out how to steal or scam the employer…but the reality is that most of these schemes have been tried before, and Stop Theft personnel are both aware of and watching for such conduct. Thieves are usually caught because they believe it is a new way to steal and management is just too dumb to catch them.”

Knowledge of the potential for abuse of the systems implies there is a plan in place and procedures to be followed when such conduct is suspected. As it turns out, there was such a plan, and the management of the Chicago branch followed that plan. That outsiders weren’t brought in is explainable and needs to be laid in front of the jury as “standard operating procedure.” The records are pulled by management because it’s easy and part of the procedure in place when theft is suspected.



We’d advise making a bigger deal out of the fact that Stop Theft was conducting the interviews, with management there principally as a witness to the process. Draw up the two interview teams on a pad (or have it as an exhibit). The Stop Theft officers are located behind the desk; they are the ones in charge. They are not necessarily part of “management,” and their job is to suspect everyone. Management sat off to the side, as observers. The interviewee sat in front of the desk, with their back to the door. It is Standard Operating Procedure for Stop Theft to conduct interviews when theft is suspected. They don’t have an agenda as to race or age or gender. Make it about their positions with the company, not the individuals sitting in the various chairs. That is, two teams were formed, with Stop Theft doing the interviews, and the two top managers on site sitting in as witnesses. Again, as it should be. How else should they have done it? They’d checked with the director of security for how they should be conducting the investigation – remember, Acme had faced the problem before at other locations. Simply put, Jones received direction from the home office to do the interviews themselves, and he brought in Jim Cane to expedite the process. Issue: Chris Helm’s apparent “conflict of interest.” Observations and Analysis Jurors placed a tremendous amount of blame on Helm for her apparent lack of objectivity in the investigation of Marcus Turner. Fortunately, jurors didn’t focus on race as the reason for her apparent animosity towards Turner, but again, they believed the fairness had been taken out of the equation. Jurors readily accepted that Helm had “compiled” a file on Turner, and questioned why the administrator at the Chicago branch would “wait” to act if she suspected an employee of misconduct. That Helm’s apparent mini-investigation of Turner was brought to Jones’ attention in the context of the investigation was unfortunate, as this timing truly made it look as if she was “out to get” Turner (e.g., “…you’re not going to fire him? We’ll take a look at this!”). Implications That a manager would want to wait to have definitive proof of misconduct before moving against a suspected employee should be the first rule of a good manager – not a reason to blame them of having an agenda. If Helm had accused an employee without the adequate backup, the jurors would be blaming her for a different set of reasons. The real problem is that Helm didn’t share her suspicions and her compilation of data as to Turner’s conduct with Jones. If the facts will support it, we believe the real issue in this instance is Helm’s personal dislike for Turner, and perhaps for the apparent bond Jones and Turner formed when Jones took over at the Chicago branch. It may be that Helm believed that Jones should



have been bonding with her when he arrived, or more likely, that Helm also had some dislike for Jones, his demeanor, and his management style. If Helm was in fact “bothered” by the relationship between the two men, you should consider having her testify to that point. Helm should be able to explain away her behavior by the very fact of the apparent friendship between Jones and Turner. She knew that Jones liked Turner and probably would have confronted him on the time issue in an effort to nip the practice in the bud and set him back on the right track. Helm held onto her cards until she had enough proof of his misconduct and so that it could not be so easily dismissed. The point of dragging this drama out in front of the jury (i.e., Helm’s true feelings) would be that these actions she took had nothing to do with race. Rather, it was about the internal dynamics of the management team at the Chicago branch. You might even offer up Helm as a good judge of character – after all – she was right about Turner in the end. When all the evidence was in:

• He lied about the weapon charge. • He lied about the true spelling of his name. • He was changing his own time, and that of his friends. • He went on to lie for Jane Doe on an employment application.

Finally, if Helm specifically directed the actions of Sarah Drake and gave her direction to look for inappropriate entries and corrections, then jurors will see less of a conspiracy between the two and put more of the onus on Helm for the compilation of the Marcus Turner file. That Sarah then was promoted into Turner’s former position will seem like less of a coup or reward for her actions in the investigation and more of a fortuitous event that fell into her lap. Issue: The apparent “confessions” of the Plaintiffs. Observations and Analysis The written admissions of the Plaintiffs went a long way toward convincing jurors that the theft had occurred. Although some felt the Plaintiffs wrote their statements on the belief this act of contrition would help them retain their jobs – and that they may have even been promised such an outcome – it didn’t detract from the truth. They implicated themselves and each other through their own statements. That some tried to brazen it out (i.e., Mary Baynes, “…not me…”) also seemed natural, so the fact that not everyone admitted to the conduct mattered little. Both mock and real jurors routinely tell us that they could never see themselves confessing to something they didn’t do, no matter how much pressure was brought to bear. We believe the same thing will happen in this instance, particularly since no one seemed to truly want to argue the admissions were coerced.



Implications This should be a winner at trial – the conduct is admitted, so now it must be race that drove the uneven application of the law. The actual jurors are likely to be bothered by the playing of the “race card” as somehow an apparent justification for the illegal activity of the Plaintiffs. That some Plaintiffs implicated others is a tremendous advantage. Even if they were coerced into saying they had misused the program, there is no readily apparent reason they should say others did too – unless it really happened. We recommend against being too proactive in claiming the confessions were not coerced. Simply emphasize the layout of the interview rooms (i.e., the Plaintiff nearest the door) and the relatively short duration – this was not a locked room with hot interrogation lights beating down on the poor victim. The time frame alone is enough to convince most, if not all, of the jurors that there was no extreme pressure being brought to bear, and we would advise nailing down the approximate length of each interview for the jurors. It sounds as if within 10 to 15 minutes of being braced with the evidence of misconduct, the Plaintiffs were trying to justify their conduct, or had begun writing their statements. No one was browbeaten into admitting to something they didn’t do, and start to finish, most of them were out of the interview room in an hour or less. Issue: The due process argument: Everyone deserved to be questioned, and in the same

way. Observations and Analysis That “management” (mainly Chris Helm and Robert Jones) apparently made some judgment calls as to who should actually be interviewed, and who could be “passed through” bothered some jurors tremendously. Helm’s supposed knowledge of the buying habits of some accounts that had been flagged as unusual was not enough of a justification to let those individual skip the interview process. As one might suspect, jurors saw this as arbitrary and unevenly applied to the white versus black employees whose transactions were being reviewed. It made sense to jurors that Helm (who is white) was more likely to be friends and “know” the personal history (and therefore buying history) of white employees as compared to black employees. Implications Applying hindsight, jurors wanted management to interview each and every employee whose transaction record was flagged. No one should have been excused from the process because of what management “knew.” They thought, let the employee tell you about those purchases, as it should be easy if they have nothing to hide. Since you did not do this, you will now need to literally walk jurors through the list of all of those employees whose shops and large-scale item purchases were flagged but not interviewed. Those who were not interviewed as “suspects” will have to be individually justified to the jurors.



Jurors will be wondering how many employees with suspicious account activity were skipped over for interviews, as well as what percentage of those were black and what percentage were white. We’d strongly suggest you take the time to explain it to them, justifying the decisions that Jones and Helm made. If the facts are favorable, we’d recommend having this list ready and that you walk Jones and/or Helm through their thought process for each and every individual. If any black employees were skipped over in this fashion, that in and of itself would be enough of a reason to make this a key presentation point. If management knew enough about these individuals and their personal histories to say these purchases are justified without further questioning, then they were skipped over – regardless of their race. That Jones knew Lydia Smythe and the purchases she’d made should not bother jurors; it is a hard fact – he did know her well. For this portion of the case, they will look only at the fact he really did know what she’d bought for her condo, and not at the fact he was violating company rules by having a relationship with her. Issue: The decision-making process with regard to the firing and the need for a timeline. Observations and Analysis Jurors heard and understood that Jones could not fire employees with more than two years of service on his own. But they were still a bit confused about the timing of the actual firings, and how the decision making took place. Many thought they were interviewed, and then summarily fired. Implications Jurors need to have a better handle on the time frame, both to comprehend why this wasn’t a predetermined “conspiracy” to fire black employees and to understand how several black employees with different types of problems were all fired on the same day. They also need to clearly see that Jones passed his recommendation on to Hanson that Turner be retained, but that he was overruled – this is not the act of a man trying to fire black employees. If jurors can see that these terminations took place after a thoughtful and thorough investigation, it will help allay any thoughts they may be harboring about the Plaintiffs being railroaded out of the company because they were black. Break the events down into their five logical stages before the firings: 1. Discovery of the problem 2. Investigation (date collection) 3. Interviews 4. Recommendations 5. Suspensions



You could put numbers on the appropriate sections, as jurors will then clearly understand the narrowing process that took place. Although a disproportionate number of blacks made it to the interview stage, the fact is those involved in the scam were friends or at least friendly with one another, and it just so happened to be a black group of friends. Putting together the full list of those interviewed and then narrowing that to a list of just those terminated would also drive home the point that both whites and blacks were involved at each stage of the process. Jurors liked the fact that Hanson testified he reviewed the “packets” that had been put on his desk and that he claims that the “facts” are what he reviewed, not the race of the individuals. If there was truly no racial information contained in the packets he received, we would certainly make that point clear to the jury. Issue: The favorable things Jones had done in the furtherance of the careers of these very

Plaintiffs. Observations and Analysis Jurors in all three groups randomly recalled the various things Jones had done to actually promote or further the careers of the Plaintiffs. They utilized this “evidence” to highlight why Jones was not a racist. Implications Having a summary board of Jones’ “good deeds” with regard to each plaintiff would go a long way towards cementing the notion he was not out to get these individuals. It would also make these various items far more memorable in the deliberations. He did things he did not have to do in his capacity as manager to help several of these individuals, and things that most jurors recognized as both signs of a good manager and a good person. Issue: Hanson and Gumphrey were not in the habit of rubber-stamping anything. Observations and Analysis This plaintiffs’ claim drew some support from the plaintiff-oriented jurors – once Jones made his recommendations, it was all over. It will be a rare day that upper management elects to keep someone that a manager has recommended be fired. Implications Hanson and Gumphrey need to be ready with examples of times they’ve gone against the recommendations received concerning employees. It would be wonderful if you had evidence of them “countermanding” the manager’s recommendations going both ways – keeping an employee who was giving a manager problems (and who was being recommended for termination), and then dismissing an employee the manager was willing to give a second chance. Any evidence of either of these scenarios (or both) would be effective at taking away the notion of upper management as a rubber stamp for the hidden agenda of any particular manager.



Issue: Jones’ history with the company. Observations and Analysis Jurors did not seem bothered by Jones’ original termination and reinstatement as an assistant manager, then resignation during his earlier stint with Acme. That the company was willing to take him back years later was actually seen as a good thing – his prior transgression was not really troubling to management. Some jurors did wonder why someone would be moved about so often, and some even voiced the suspicion that Jones was moved because he had “troubles” wherever he went. Others countered that there were no prior complaints about Jones as a manager, racial or otherwise, and this was enough to say he was not a true racist or it would have emerged in his record long ago. Implications Make certain to clear up the conception that movement means trouble for a manager. A few jurors voiced the opinion that movement is a good thing – implying that moves usually mean you are a good manager, one who can be called on to drop in to a new or troubled office and perform well. If the facts support it, let the jurors know that Jones’ relocations were considered promotions, that is, larger branches, branches with more volume, branches with more responsibility, etc. Highlighting the number of moves is probably best done as a visual, where jurors can literally see the movement from place to place, perhaps on a map of the United States. Some jurors noticed that the Chicago branch was the first place Jones had not opened, and this raised the speculation that this was the first time he hadn’t “handpicked” his staff. Although this may only imply he didn’t get those with his “work ethic,” it can also imply he didn’t get those of the race he preferred. If the racial makeup of the other branches he worked at is diverse, bring this up for the jurors – it will make the lack of prior complaints all the more relevant. Issue: Jones’ original interview plan. Observations and Analysis Jurors were not initially informed of Jones’ request to conduct the interviews off site and with the potential “help of others,” probably from security or upper management.

When told that Jones had wanted these things – both of which would seem to go to his concern for the employees and fairness (i.e., not having to be filing into the office for “interviews” and the use of impartial third parties respectively) – the jurors grudgingly gave him credit.

As the jurors also thought third-party interviewers were called for, they used this new information to place further blame on management for a “bungled” investigation process.



Implications The question becomes, should jurors be made aware of Jones’ original request? Since the jurors already seemed to somewhat “excuse” Jones’ conduct and focused instead on management as the true problem in this situation, revealing this additional information may only serve to inflame them more against Acme management. As stated in our early meetings, the e-mails between Jones and upper management, where he was told to “handle it like when you ran your own bar,” were seen as inconsequential by the mock jurors. If Jones doesn’t make a big deal out of them, neither will the jurors. But these e-mails could still be used by jurors as further evidence of upper management’s disinterest in what was going on at the branch level. So far, the posting of Hanson’s direct number in the lunchroom and the apparent accessibility for the workers to all of management has kept the criticism of management to a minimum. All things considered, we’d recommend keeping management in a lower profile, leaving out Jones’ request for help and his interview plan, as well as playing down any apparent callousness in the e-mail responses Jones received. Issue: The role of Kevin Jarret. Observations and Analysis Most jurors weren’t convinced that Jarret had actually heard the racial comment during the walk-through of the Chicago branch (they took him at his word). Although most seem convinced that both Hanson and Gumphrey had heard it, more of them were on the fence about Jarret and any potential “notice” he had about racial harassment on the part of Jones. In talking with the mock jurors during the debriefing session, Jarret was deemed the most professional of the three managers, although some also indicated he was the most cautious in his demeanor and comments. Implications As with Hanson and Gumphrey, Jarret needs to be ready to portray Jones as they all saw him – a man who said what was on his mind and who was a straight shooter. Although not always politically correct, no one saw any racial bigotry in the man, and he treated all the employees the same. Issue: Doe – a woman who knew how to use the system. Observations and Analysis Everyone understood that Doe marched to her own drummer and that she was probably not the easiest woman to get along with in the workplace. Jones’ attempt to help her by wiping out some of her write-ups for misconduct (as not having happened on his watch) was rejected as a token of compromise. Instead, she marched into the lunchroom and called Hanson to complain Jones was out to get her. The jurors accepted the actress playing Doe as a strong-willed woman who would take no guff from anyone. It is our understanding the real Jane Doe will be even more confrontational and more vocal about how she was treated while at Acme.



The mock jurors recognized that Doe was primarily a misfit, and that she seemed to get along with no one; Nancy Werner’s comment of “Jane just being Jane,” went a long way towards consolidating the mock jurors in their perceptions of Doe. Many wondered why the company had not terminated Doe long before, with her long history of misconduct, and how with such a personality and such a work history she had ever been considered for a promotion by the company. As expected, jurors took her mistreatment of customers as the strongest sign of her inability to get along with others, as the customers have nothing to do with this lawsuit and have to go out of their way in order to register a complaint with management – something most people will not do, even if they feel they’ve been wronged. Most jurors seemed to believe that her inability to get along with others meant she probably had heard inappropriate comments in the workplace, and probably had been exposed to a hostile work environment. The alleged comment was not necessarily viewed as racial or racist by the mock jurors, and many were unwilling to accept that the comment was ever heard in the workplace. Implications Doe was disliked, but with that dislike comes a greater belief that she might have actually heard racially inappropriate comments in the workplace. People may have been afraid of her, but without true friends, there would be no one with the desire to spare her any hurt feelings. As we understand it, there will also be corroboration from other employees that these statements were making the rounds, which will lend some credence to her claim. However, the lack of a formal complaint from a woman who apparently knew how to use the system bothered several jurors. As one woman juror put it, “If these comments were circulating and Jones heard them, you can bet she’d have been screaming to management about her mistreatment by others.” We found this line of argument appealing and suggest you use it in closing. For example:

“This is a woman who knew how to complain, and who complained often. She called Harold Hanson to complain about her brand new manager within his first two days on the job. If racial slurs were common and directed at her, you can bet she would have been telling anyone willing to listen.”

The timing of Jones’ firing (being lumped in with the others) bothered a few jurors, but one jury group called it “business, not personal,” and they seemed to feel it was common to consolidate firings when possible. Placing the management discussions about Jones and her possible dismissal on a timeline, and simply showing how they were considering terminating her at the same time the investigation was occurring, should be all you really need to do to justify her dismissal at the same time as the Plaintiffs.



Issue: Jones’ near fight. Observations and Analysis Jurors heard very little about this incident, but most seemed to concur that if it happened, it was a very strong indicator of just how out of control Jones actually was. Implications Hanson made the comment that had he known of a physical altercation there would have been serious repercussions, and we believe you should probably make this point more figural in your discussion of Ms. Jones. If the fight (or near fight) wasn’t reported up the chain of command, it simply shows how someone did Jones another huge favor. And hearing about the fight (or near fight) will be another mark against her credibility and trustworthiness. Issue: Turner’s relationship with Jones. Observations and Analysis Virtually no one doubted that Jones and Turner started out on good footing, as both men testified to it. It also helped tremendously that Turner interpreted Jones’ remark in the way it was intended, as a statement recognizing the need for more black employees to be placed as both supervisors and managers at the Chicago branch. That Turner would change his mind later didn’t bother the plaintiff-oriented jurors, as they could see how one could reinterpret past behavior in a different way once new information came to light (i.e., you came to view Jones as a racist). But for most of the jurors it was tough to see how a straightforward comment could now be twisted to mean the exact opposite. Either Jones originally meant to imply more blacks needed to be moved into management, or he meant to imply the blacks needed to be kept in their place, in the hourly work force. The offer Jones made of a management position for Turner was taken as another sign of his true desire to help Turner “get ahead.” The fact that Turner turned it down was less troubling to jurors than we suspected, as most were able to agree that some people would just prefer to stay where they’re comfortable, or where they have less responsibility. His explanation that he didn’t need the money because a girlfriend had won the lottery confused some, as they had also heard his girlfriend was Mary Baynes and assumed the two girlfriends were one. Perhaps the most compelling evidence that Jones didn’t have it “out” for black employees was his efforts to save Turner’s job. This was seen as a true indicator that he genuinely liked the man, and that says a lot in terms of not being a racist.



Implications As long as Turner doesn’t recant his earlier testimony, his admission of the true intent of Jones’ comment will be key – if a black man didn’t take offense to Jones’ comment, then who are we to second-guess what he meant? Jones’ actions on trying to save Turner’s job were well documented, and it should not be difficult for jurors to see that Jones was actually bucking his immediate supervisor to try and save a “friend’s” job. Issue: The timing of Turner’s firing. Observations and Analysis Turner was really part of the original investigation, so it was relatively easy to explain why his termination coincided with the others. The jurors understood why the plaintiff was lumping them all together and trying to make it a conspiracy against blacks. His packet went in with the others, so his firing came down with the others. Implications Don’t miss the opportunity to explain that Jones is the only coincidence here, proactively taking this argument away from the Plaintiffs. The others were all investigated together, the recommendations were put in together, and the terminations came down together. There is no mystery about these terminations happening on the same day. Issue: Jim Cane as a “token” black in the Chicago branch investigation. Observations and Analysis Jurors really didn’t have a problem with Cane’ involvement in the investigation and interview process. His role as a nearby Stop Theft person, coupled with the fact he was a known entity that used to work at the Chicago branch, seemed to make him the logical candidate to share the completion of the numerous interviews with Patrick Leveque. Implications The jurors didn’t really seem to care if Jones purposefully brought in a black Stop Theft person when he saw that those scheduled to be interviewed were primarily black. Although we don’t think you should necessarily embrace this as the rationale behind Jones’ decision, we wouldn’t run away from it if the testimony is there.



Issue: Why was Doe given so many chances, and why wasn’t she terminated earlier? Observations and Analysis Jurors didn’t truly understand the counseling notices and how many it took before further corrective action was necessary, or even how many it took for a termination to occur. At least one deliberation group blamed the company for not providing better “support” for troubled employees. They reasoned that when someone is crying out for help by acting out in such extreme ways like Doe was, the company needs to do more than just hand them a write-up for misconduct and wish them good luck. Implications Although this notion was primarily driven by one juror with some diversity training and a very liberal background, anything additional the company provides in the way of career counseling or guidance as to how to overcome bad work habits would help to diffuse this time bomb of a concept. Apparently, you needed to help Doe learn how to be a better employee. Kevin Jarret mentioned at least one additional counseling type service, and if it is an appropriate resource to employees, the jury needs to hear more about it. Issue: The duty to report complaints when they occur. Observations and Analysis Although this is a fairly obvious duty on the part of the employee, jurors were very receptive to this theme. Even when we asked jurors if employees have a continuing duty to report misconduct/concerns when initial complaints are ignored, and overwhelming percentage agreed – the squeaky wheel gets the grease. Implications The Plaintiffs testified that they didn’t continue to complain about Jones because “it didn’t do any good.” Although it would never do to acknowledge complaints might have been overlooked, the research clearly demonstrated that the onus is on the aggrieved to make their complaint known to management. Protestations of “but it didn’t do any good” are likely to fall on deaf ears. In this day and age, jurors expect employees to be in management’s face about anything they think is offensive, and they blame the employees who refuse to make themselves heard. The open door policy of Acme should be touted more directly, as well as the direct line of access to Harold Hanson that is posted in all break rooms. Employees have the right to go over the head of the manager of the branch where they work, and that is something that is widely known and utilized by the Acme employees.



WITNESS EVALUATIONS

Jurors’ Impressions of Witnesses Impact on Verdict Orientation

Jurors’ impact evaluations for each witness were assessed following each of the witness presentations. The witnesses’ testimony…

Made me favor

the Plaintiff more

Made me favor the Defendant

more

Had no impact on my decision

Plaintiff Witnesses:

• Mary Baynes

• Jane Doe

• Marcus Turner

Defense Witnesses:

• Nancy Werner

• Patrick Leveque

• Chris Helm

• Robert Jones

• Jim Cane

• Harold Hanson

• David Gumphrey

• Lance Bamenda

• Kevin Jarret

7.7%

23.1%

23.1%

2.6%

5.1%

41.0%

41.0%

12.8%

30.8%

15.4%

12.8%

28.2%

71.8%

48.7%

66.7%

74.4%

64.1%

33.3%

33.3%

38.5%

51.3%

51.3%

10.3%

41.0%

20.5%

28.2%

10.3%

23.1%

30.8%

25.6%

25.6%

48.7%

17.9%

33.3%

76.9%

30.8%



Assessment of Characteristics

Individual jurors’ reactions to the plaintiff and defense witness presentations were assessed on separate scales ranging from “0” (“Not at all”) to “10” (“Completely”) at the end of each presentation.

Jurors’ Assessments of Witness Characteristics

Plaintiff

Witnesses Credible Likable Truthful Nervous

Knowledge-

able

Easy to

Understand

Evasive

Mary Baynes 3.4 4.9 3.8 5.0

5.1

7.4

6.1

Jane Doe 4.8 4.2 4.7 2.7

6.3 7.8

5.2

Marcus Turner

4.4

6.8

4.4

3.5

7.7

8.7

5.4

Defense

Witnesses

Nancy Werner 7.5 8.1 7.7 2.9

8.1

8.7

2.5 Patrick

Leveque 7.7 6.8 7.3 3.8

7.9

8.5

2.7

Chris Helm 5.6 5.0 5.8 3.9

7.0

7.8

5.5

Robert Jones 5.4 5.2 5.8 5.4

7.0

7.4

5.2

Jim Cane 8.3 7.5 7.9 2.6

7.7

8.6

2.7

Harold Hanson 7.6 7.0 7.6 3.4

7.9

8.7

3.2

David Gumphrey 7.7 6.8 7.9 3.3

7.2

8.5

3.0

Lance Bamenda 8.7 8.4 8.6 3.0

7.5

8.2

2.1

Kevin Jarret 7.4 7.1 7.2 2.6

7.4

8.3

3.5



Plaintiffs’ Testimony

Overview Because the three Plaintiffs were played by actors and not the actual people, we found it would be inappropriate to do any substantive analysis by way of witness evaluations. However, we have listed some of the top strengths and weaknesses for each of the Plaintiffs based on jurors’ comments.

Mary Baynes Strengths

1. Was told to “keep the line moving” 2. Never admitted guilt in her statement 3. Saw managers doing the same thing she was reprimanded for.

Weaknesses

1. Not knowing what she was doing was wrong 2. Never heard the racial comments directly from Robert Jones 3. Never complained about harassment

Jane Doe Strengths

1. Was not given proof of her wrongdoing 2. Complained about racial comments, but no one listened

Weaknesses

1. The multitude of complaints against her, including customer complaints 2. Counseling notices before Jones even arrived 3. Her attitude

Marcus Turner Strengths

1. Was changing entries, had been doing this for years 2. Heard Jones make racist remarks 3. Others were changing time too (Sarah Drake) and were not reprimanded

Weaknesses

1. Was caught in too many lies 2. Changed friends’/girlfriend’s time entries



Nancy Werner Overview Overall, Werner was one of the better witnesses for Acme. More than any other witness, her testimony impacted jurors favorably towards Acme, with 74% of jurors stating her testimony made them favor the Defendant more. This is due in large part to her matter-of-fact manner of explaining her involvement in the investigation. For the most part, jurors viewed her as one of the more impartial witnesses in the lawsuit. However, there were a few jurors who viewed her as a typical current employee in a lawsuit – she wants to keep her job so she doesn’t want to say anything that could negatively affect her employment. It is impossible to avoid this sentiment from being expressed by some jurors; however, Werner’s relative neutrality prevents most jurors from even going there. Werner’s testimony is enhanced by the fact that Brent Maifeld brought the scam to her attention – she was not seeking it out. She took the appropriate follow-up measures to address the situation by initially investigating the claims and taking her findings to management. Jurors were most bothered by Werner’s failure to report Doe’s complaint about harassment to management. They felt that as a supervisor, Werner should have taken Doe’s complaint seriously and should have moved it up the ladder just like she did the investigation. Making the distinction between supervisors and management more clearly may help jurors absolve Werner of any further action regarding Jones. Jurors were under the impression that Werner was a part of management because of her “supervisor” title. Knowing that a supervisor at Acme doesn’t carry the same weight it may have elsewhere will make Doe’s complaint appear more like how Werner described it – as a complaint from one employee to another. Additionally, continue to stress that this complaint was not racial in nature and was more about “Jane being Jane.” Strengths

1. Confident in her testimony 2. Conviction in explaining her part in the investigation 3. The way in which she uncovered the investigation and process she took to

investigate it further

Weaknesses

1. Not reporting Doe’s complaint to management 2. Being a current Acme employee makes her testimony biased 3. Her response to Plaintiffs’ counsel’s questions regarding the improper entries



Patrick Leveque Overview Jurors responded to Leveque in much the same was they did to Werner. His perceived neutrality in the investigation made him highly credible. As he didn’t seem to have any stake in the outcome, jurors believed that his part in the investigation was not led by any racial bias. Additionally, jurors liked that his testimony was fairly consistent throughout direct- and cross-examination. Being able to explain thoroughly the steps he took goes along way to instilling jurors with confidence in the fairness of the investigation. Also similar to Werner, Leveque’s confidence and conviction in his action impressed jurors. Leveque did come across as slightly more nervous than the other witnesses, and some jurors were bothered that his only training in Stop Theft came from Acme. Especially when compared to someone like Jim Cane, Leveque’s training in Stop Theft seemed rather paltry. In one of the deliberation groups, jurors likened him to a shopping mall security guard. This perception was undoubtedly fueled by his more casual appearance and demeanor. We do not advise trying to alter Leveque’s demeanor, as that is also what made him likable to jurors. However, we do suggest having him explain to jurors more thoroughly his experience and training as a Stop Theft agent. Have him talk about what his daily job duties entail. This should go a long way to allay jurors’ concerns about his appearance as well as give them more information about his experience. Another area of Leveque’s testimony that troubled jurors was his explanation of how Jones and Smythe were investigated. On the one hand, jurors liked that Leveque investigated every employee, including management. However, they didn’t like the perceived arbitrariness with which some employees were exempted from the investigation (namely Jones and Smythe). Leveque needs to be able to explain (to the extent that he is knowledgeable on the reasons) why Jones and Smythe were not investigated further. If that was not a part of his role in the investigation, then he needs to state simply that. Either way, Leveque needs to be able to explain why he feels the investigation caught the people guilty of the scam and did not let anyone get away with any wrongdoing. Strengths

1. The process by which he used to investigate the employees 2. Consistent in his testimony 3. Certainty in his investigation

Weaknesses 1. Lack of external Stop Theft training 2. Testimony as to the reason Jones and Smythe were not investigated



Chris Helm Overview Chris Helm was viewed very unfavorably by jurors. She received some of the worst ratings of any of the Acme witnesses, with the lowest marks for likeability and truthfulness (tied with Jones) and the highest ratings for evasiveness. Jurors found her to be very defensive and sensed that there was something amiss with her relationships with both Turner and Jones.

Jurors surmised that she didn’t like Turner and specifically that she didn’t like Jones’ preferential treatment of him. They believed that she kept her “secret file” on Turner in order to build a case to get him fired.

In addition to being suspicious of her motives, jurors also questioned the integrity of her investigation. Jurors couldn’t understand why Helm would involve Sarah Drake in the investigation. Drake was viewed as biased because she was in the position under Turner and presumably would have his job if he were fired. Additionally, jurors believed it was likely that Drake was doing the same thing as Turner (as he claims) and thought it was unfair that she was never investigated. Jurors wondered why Drake was taken at her word but not Turner. While jurors understood why Turner was fired and even supported the decision to terminate him, they did not like the lack of fairness with which the two employees were treated by Helm.

Some jurors thought that Helm should have addressed her finding with Turner instead of collecting the file on him only to be brought to Jones’ attention. This was where jurors believed she was guilty of “building her case.”

It will be important for Helm to explain how and why she went about her investigation. If this information is beneficial to Acme, Helm should explain the time period involved in her investigation. How long had she been looking into these records? When did she first suspect Turner was doing something wrong? How did she proceed with her “fact finding”? Why didn’t she go to Turner? Why didn’t she go to Jones sooner? It will also be important to redefine her investigation as a “fact finding” effort to avoid jurors from believing it to be a “case building” effort.

Helm also needs to be able to address the reason Drake was not also investigated. In order to diffuse this “fairness” issue, jurors need a reasonable explanation to this question from Helm.

Jurors need to believe that despite Helm’s dislike for Turner, her investigation was based on allegations of impropriety and falsifying company records. As administrative manager, she could not allow something like that to go unchecked. In hindsight, she could have done the investigation differently, but it would have had the same result. At the time, Helm did not inform Turner or Jones about her investigation because Jones showered Turner with such preferential treatment that she knew he would not believe the allegations unless she had hard evidence. Helm may not have done all things right, but she did the right thing.



Strengths

1. Good documentation 2. Consistent with Leveque’s testimony on the investigation

Weaknesses

1. Keeping the file on Turner’s wrongdoing without talking to him about it 2. Failure to investigate Drake for the same allegations 3. Evident dislike of Turner and hostility towards Jones



Robert Jones Overview Much to everyone’s surprise, Robert Jones kept it together on the stand. He certainly took to heart all of the advice he has received and applied what he has learned in his testimony. Unfortunately, Jones received a less than enthusiastic response from jurors. He had the highest percentage of respondents stating his testimony made them favor the Plaintiffs (tied with Helm at 41%). This percentage is even higher than any of the Plaintiffs’ testimony. Of the Acme witnesses, Jones received some of the highest ratings for evasiveness and nervousness and some of the lowest for credibility, likeability, and truthfulness.

Even with these low raw scores, Jones did not fare as poorly in deliberations as expected. Even though he and his comments are at the center of this dispute, the case did not seem to rise and fall with him entirely. While Jones was an integral part of discussions, most of jurors placed responsibility with higher management’s actions more so than Jones’. Jurors shifted their focus to upper management because they accepted Acme’s argument that the comments were just “Robert being Robert.” They took that argument to the next step to say that someone should have told Robert that he can’t say those things. In some way, this line of thinking let Jones off the hook just a bit and placed the blame with management for not intervening. This is also coupled with the perception that Robert was never held accountable for his inappropriate comments. Additionally, Jones’ ability to avoid falling apart on the stand was successful at attenuating the explosive impact his testimony could have had. Jurors had such high expectations for him to arrive on the stand and look the part of a racist. What they saw instead was a nice-looking older man who kind of resembles a grandfather figure. Jurors’ expectations certainly have a lot to do with their perceptions of any witness. In this instance, Jones’ improved performance counteracted what they were expecting and thus he was perceived more favorably than he otherwise would have been. Jurors liked that Jones had done so much to promote African-Americans into management positions at Acme. Similarly, jurors thought that he truly wanted to improve the Chicago branch during his tenure as manager. Once jurors got to know Robert, the majority of them gave him the credit of having good intentions but poor delivery. It was also important for them that Jones admitted that in hindsight he realized the comments he made were not appropriate. Jurors were most upset by Jones’ perceived lack of racial sensitivity. Many people argued that he needed to undergo some kind of race sensitivity training. Others thought that the comments were racist regardless of Jones’ intentions. They reasoned that what is most important is how the person receiving Jones’ comments felt about them, not what Jones meant by them. Not surprisingly, Jones’ relationship with Smythe also bothered jurors. They all recognized the relationship as improper and a possible reason why neither Jones nor Smythe were ever really investigated as a part of the scam.



At trial, Jones should continue to highlight all of the promotions he extended to African-Americans employees. This will go the furthest in disputing Plaintiffs’ claims that he fired them because of their race. Assuming that Jones can also keep his temper in check, it is likely that he will not be the center of jurors’ attentions at the actual trial as well. It will be helpful if his testimony is “neutral” because jurors won’t be diverted by the comments he made and will be able to focus on the big questions in this case: Were the Plaintiffs fired because of their race? Strengths

1. Promoting African-Americans employees 2. Admitting that the statements he made were inappropriate 3. Wanting to make the branch better

Weaknesses

1. Lack of racial sensitivity 2. His relationship with Smythe 3. His temper



Jim Cane Overview Jurors were very impressed with Cane’s testimony and demeanor on the stand. They liked that he is a former police officer, as this gave him credibility in conducting investigations (he received some of the highest credibility ratings). At this point, we see no serious issues with his delivery on the stand. As a former police officer, he presumably has experience testifying in court. If nothing else, he has a familiarity with the process, which helps him be more at ease in that setting. Being an outsider with no knowledge of the employees at the Chicago branch also lent more credibility to Cane’s testimony. Jurors credited Acme for bringing him in. It did have the unintended consequence of making jurors wonder why the entire investigation wasn’t done by outsiders. For this reason, it may be beneficial to have Jones testify that he wanted it all to be done this way – again, reinforcing the point that Jones wasn’t out to fire African-Americans employees. Most jurors did not think that Cane was brought in simply because he is African-American. There was a little bit of that sentiment in deliberations; however, Cane’s testimony showed that he was certainly qualified to carry out such an investigation. And, it made sense to jurors to bring in Cane because he was the closest Stop Theft agent to the Chicago branch. A few jurors commented on the coincidence in Cane being promoted shortly after the investigation. It gave the appearance, to them, of a reward for a job well done. Not many jurors felt this way, and so it should not be a major point of concern. However, it should be addressed in Cane’s testimony. He should discuss his current position at Acme and how it came to be that he received the promotion. Given his high ratings at the mock trial, jurors are likely to believe that he deserved that promotion for his hard work, not for his part in the investigation. Finally, the only other issue jurors raised in Cane’s testimony was the nature of the Plaintiffs’ interviews during the investigation. Some jurors thought that the interviews were likely an intimidating setting. Cane’s denial of that surprised some jurors. As a former police officer, jurors are likely to believe that Cane can be intimidating if he wants to be – it is the nature of the job. However, jurors did not go so far as to contend that the interviews were akin to police interrogations. The interviews were intimidating because the Plaintiffs were caught doing something wrong. While Cane should not concede that the interviews were “intimidating,” it doesn’t hurt to acknowledge that the Plaintiffs must have been nervous. No one likes being questioned about possible wrongdoing, but that doesn’t change the fact that the Plaintiffs were doing something wrong.



Strengths

1. Was an outsider 2. Very professional in his investigation

Weaknesses

1. His promotion occurred after the terminations 2. Not believing the interviews were intimidating 3. Forgetting a few things



Harold Hanson Overview Although Harold Hanson received relatively positive ratings on characteristics such as credibility, likeability, etc., a fairly sizable percentage of jurors (31%) reported that his testimony made them favor the Plaintiffs more than the Defendant. While this is still less than those who felt his testimony made them favor Acme, there are some problem areas with Hanson’s testimony that need to be addressed. First, on the positive side, jurors liked the conviction in his testimony that he fired the Plaintiffs based on what the paperwork said and not their race. This came across as particularly believable because Hanson didn’t seem to have the most hands-on management style. They believed that he didn’t necessarily know the people who were being recommended for termination and as such that he did not take race into account in firing them. Additionally, Hanson’s testimony about Doe was consistent with the other accounts they had heard about her. Hanson’s recounting of his advice to Doe came across as straightforward and honest. The fact that neither Doe nor anyone else at the Chicago branch ever complained to Hanson about Jones’ comments was also another point in Hanson’s favor. Unfortunately, Hanson’s somewhat aloof and arrogant manner gave jurors the impression that he didn’t have his fingers on the pulse of the Chicago branch. One deliberation group even contended that he spent too much time on the golf course and too little time minding the store. He was perceived as the big boss who flew in for a quick tour and then flew out. Jurors need to know just how involved Hanson was in the Chicago branch. While it is true he may not have been on site all of the time, he did make visits and was always available by phone. It will be beneficial to have Hanson walk jurors through what exactly his responsibilities are as vice president of operations. How many times does he visit each branch in a year? How often does he field calls from managers? How often do employees call him with complaints? Hanson needs to make jurors understand that he was available to employees if they needed him. Jurors also did not like his “pass the buck” attitude. His responses to questions about various events gave the impression that all he did was take information and move it up the ladder. As Jones’ boss, jurors expected more out of him than that. This is especially the case with his acknowledgement that he heard Jones’ alleged racial comment. Jurors were most upset that he didn’t say anything to Jones about the inappropriateness of such a comment.



Strengths

1. Based his termination decisions on the paperwork, not race 2. No one ever called to complain about Jones’ alleged racism 3. Confirmed Doe’s bad attitude and poor work performance

Weaknesses

1. Did not address alleged racial comment with Jones when he said it 2. Did not take responsibility for certain things 3. Did not seem to know what was going on at the Chicago branch



David Gumphrey Overview Similar to Hanson, David Gumphrey received fairly high ratings from jurors on positive characteristics and relatively low ratings on the negative ones. Jurors also did not have as much to say about Gumphrey because he did not have a great deal of involvement in the case. As such, jurors primarily dismissed his testimony. Gumphrey is, of course, implicated in connection to the alleged racial comment because he heard it as well as Hanson and also did not say anything to Jones. This continued to bother jurors, as Gumphrey was viewed as yet another corporate representative who did nothing to address Jones’ inappropriate comment. Since Gumphrey’s testimony was brief and did not add much of anything new, jurors did not consider him much in their deliberations. Strengths

1. Terminated employees based on what they did, not their race 2. Reiterated that everyone was reviewed as a part of the investigation

Weaknesses

1. Did not address the alleged racial comment with Jones 2. Had minimal involvement in the situation



Lance Bamenda Overview Although jurors were impressed by Lance Bamenda’s background and training, they dismissed his testimony, as it was largely irrelevant to the case. This is evidenced by Bamenda receiving the highest percentage of respondents saying his testimony had no impact on their decision with an overwhelming 77% of respondents voting this way. Even more so than dismissing his testimony, some jurors surmised that Acme had him testify because they thought he would impress jurors with his government training. This was seen as a ploy. If Mr. Bamenda serves no real purpose other than as the head of security, then we would discourage him from testifying at trial. There were a few positives to Mr. Bamenda’s testimony. Jurors liked that he explained how the investigation was conducted as well as that he offered his suggestions for how the investigation should be conducted. However, this testimony was problematic because he could not recall if he talked with Jones despite Jones saying he did so. This just stirred up more doubt surrounding Jones’ credibility for an unnecessary purpose. Again, unless Bamenda has something unique to offer a jury, the substance of his testimony should be covered by other witnesses involved in the investigation. Strengths

1. His background in government and conducting investigations 2. Offered advice on the investigation 3. Explained how the investigation was conducted

Weaknesses

1. He wasn’t really involved in this case 2. Isn’t sure if he talked to Jones or Leveque



Kevin Jarret Overview As we saw with the other corporate witnesses, Kevin Jarret received fairly positive ratings from jurors. He seemed the most polished of all the witnesses, as he undoubtedly has had past testifying experience. He came across as confident in his testimony and certain of his actions as they relate to this litigation. Jurors responded positively to his statement that he would fire any employee for these offenses, regardless of race. They felt that he stood his ground well in his testimony. Additionally, some jurors liked that he finally explained the various company policies such as defining Acme’s policy against discrimination and outlining other violations of company code. Also as we saw with the other corporate witnesses, Jarret had problems with the alleged racial comment. Some jurors found it hard to believe that he didn’t hear the comment, especially since the others had. Additionally, jurors were bothered that Jarret said he would have fired Jones on the spot if he had heard the alleged racial comment. Jurors argued that Jarret now knows that Jones made the offensive comment and he still isn’t fired. Even though the bold statement was powerful, it didn’t ring true to them based on what has subsequently happened. Jurors were further incensed that Jones was only demoted and it was only for his inappropriate relationship with Smythe, not for the comments. Jurors’ frustrations over these issues all go back to higher management’s inability to address the alleged racial comment with Jones. While they gave Jones a pass for just being himself, they did not give Hanson, Gumphrey, and Jarret that same free pass. As management, they had a duty to address it. Hanson passed the buck, as did Gumphrey, and now Jarret is still not doing anything about it. Jurors believe that Jones is still not being held accountable for the comments that everyone agrees were inappropriate. Strengths

1. Conviction that he would fire any employee for these offenses 2. Explanation of company policies and regulations 3. Stood his ground, confident in his testimony

Weaknesses

1. Denying that he heard the alleged racial comment 2. Not firing Jones for comments and demoting him for romance only



VERDICT & DAMAGES Mock jurors rendered a verdict in three ways during the research. First, following each presentation, they indicated which party they believed should win based on the information heard thus far. Second, at the conclusion of the presentations, they completed the verdict form on an individual basis. Finally, they participated in a group verdict during deliberations. We report below each of these verdicts in that order.

Progression of Juror Sentiment Across Presentations Mock jurors were asked to rate how strongly they desired each party to win its case, using a scale of 0 (“not at all strongly”) to 10 (“very strongly”). Their feelings about which party should win remained relatively consistent throughout all presentations. However, following the conclusion of the closing arguments, mock jurors’ feelings increased slightly in favor of Acme and support declined slightly for the workers. Jurors ultimately thought Acme should prevail over the workers by a moderate margin.

Desire to Win

0123456789

10

Post-Openings

Post-Plaintiffs'

Case

Post-Defendant's

Case

Post-Closings

The WorkersAcme

Mean Desire That the

Workers Should Win Mean Desire That Acme

Should Win Post-Opening Presentations 4.4 6.4

Post-Plaintiffs’ Case 3.9 6.0

Post-Defendant’s Case 3.6 6.1

Post-Closing Presentations 2.9 7.0



Following each presentation, jurors also indicated their desire to compensate the Plaintiffs on a scale ranging from 0 (“very weak desire to compensate”) to 10 (“very strong desire to compensate”). Jurors’ desire to punish the Defendant was measured on a scale ranging from 0 (“very weak desire to punish”) to 10 (“very strong desire to punish”). Their desire to compensate the workers and punish Acme stayed almost exactly the same throughout all presentations and mirrored one another. In the end, mock jurors thought Acme should be punished slightly more than the workers should be compensated.

Desire to Compensate/Punish

0123456789

10

Post-Openings

Post-Plaintiffs'

Case

Post-Defendant's

Case

Post-Closings

The WorkersAcme

Mean Desire That the Workers

Should be Compensated Mean Desire That Acme

Should be Punished

Post-Opening Presentations 3.9 3.9


Post-Defendant’s Case

3.5 3.8




Mock jurors were then asked to rate their sympathy toward each party using a 0 (“not at all sympathetic”) to 10 (“very sympathetic”) scale. Sympathy toward Acme declined consistently until the closing arguments, when sympathy then increased slightly. Mock jurors’ sympathy toward the workers began lower than their sympathy toward Acme did; it peaked after the Plaintiffs’ evidence presentation and decreased again following both the defense’s evidence presentation and closing arguments. Overall, jurors felt more sympathy toward Acme than they felt for the workers, but only by a small margin.

Sympathy Toward Parties

0123456789

10

Post-Openings

Post-Plaintiffs'

Case

Post-Defendant's

Case

Post-Closings

The WorkersAcme

Mean Sympathy Toward the Workers Mean Sympathy Toward Acme




3.5 4.2




Lastly, jurors were asked to rate their anger toward the respective parties using a 0 (“not at all angry”) to 10 (“very angry”) scale. Anger toward the workers and anger toward Acme once again mirrored each other with very little variation. This case did not evoke much emotional charge toward either side, resulting in the consistent low anger ratings. Ultimately, mock jurors felt less anger toward Acme, but by an extremely small amount.

Anger Toward Parties

0123456789

10

Post-Openings

Post-Plaintiffs'

Case

Post-Defendant's

Case

Post-Closings

The WorkersAcme

Mean Anger Toward the Workers Mean Anger Toward Acme




3.8 3.8




Final Individual Verdict Upon completion of the presentations, mock jurors were read jury instructions and then were asked to complete an individual verdict form prior to their deliberations.

• When asked whether they found that race was one of the motives or reasons Acme used in its decision to discharge Plaintiff Marcus Turner, 82% of jurors answered no and 18% answered yes. Of those, 18% awarded damages for lost salary and emotional harm, ranging from nothing to all of his lost wages and up to $300,000 for emotional harm.

• When asked whether they found that Plaintiff Marcus Turner was subjected to offensive comments or other conduct that involved his race, 67% of mock jurors answered no, while 33% answered yes. Of those who answered yes, 62% found that such conduct substantially interfered with his employment or created an intimidating, hostile or offensive work environment; 45% found that under the totality of the circumstances, Acme had adequate notice that Mr. Jones was harassing Mr. Turner because of his race; and all of them found that Acme failed to adequately investigate or failed to take prompt and remedial action after receiving the notice. Damages for emotional harm were awarded from all of his lost wages to $1 million.

• When asked whether they found that race was one of the motives or reasons Acme used in its decision to discharge Plaintiffs, 18% of jurors answered yes and 82% answered no. Of those 18% who answered yes, damages for lost salary and emotional harm were awarded from nothing to half of their lost wages to $160,000.

• When asked whether they found that the Plaintiffs were subjected to offensive comments or other conduct that involved their race, 80% of mock jurors answered no, while 20% answered yes. Of those who answered yes, 80% found that such conduct substantially interfered with the Plaintiffs employment or created an intimidating, hostile or offensive work environment; 78% found that under the totality of the circumstances, Acme had adequate notice that Mr. Jones was harassing the Plaintiffs because of their race and 100% found that Acme failed to adequately investigate or failed to take prompt and remedial action after receiving the notice. Damages for emotional harm were awarded from $0 to 100% of his lost wages to $1 million.

• When asked whether they found that race was one of the motives or reasons Acme used in its decision to Plaintiff Jane Doe, 20% answered yes and 80% answered no. Of those 20% who answered no, damages for lost salary and emotional harm were awarded from all of her lost wages to $160,000.



• When asked whether they found that Plaintiff Jane Doe was subjected to offensive comments or other conduct that involved her race, 69% of mock jurors answered no, while 31% answered yes. Of those who answered yes, 62% found that such conduct substantially interfered with her employment or created an intimidating, hostile or offensive work environment; 39% found that under the totality of the circumstances, Acme had adequate notice that Mr. Jones was harassing Ms. Doe because of her race; and half found that Acme failed to adequately investigate or failed to take prompt and remedial action after receiving the notice. Damages for emotional harm were awarded from $2,000 to $500,000.

(Appendix D: Verdicts & Table Maps, page 170)



Group Verdicts During the mock jurors’ deliberations, each of the three groups completed a group verdict form. Panel One had split votes on nearly all verdict questions. When asked if Marcus Turner was discharged due to race, two jurors voted in favor of Marcus and 11 favored Acme. Of those voting in favor of Marcus, damages including half of his lost wages and $1 for emotional harm. Six jurors found that Marcus had been subjected to offensive comments, but seven thought he had not. Two found these comments to create a hostile work environment, yet all 13 jurors agreed that Acme did not have adequate notice that Mr. Jones was harassing Mr. Turner because of race. When asked if the Plaintiffs were discharged due to race, two voted in favor of Plaintiffs, and 11 favored Acme. For those voting in favor of the workers, damages included half of their lost wages and $1 for emotional harm. One juror thought the workers had been subjected to offensive comments, and 12 thought they had not. Only one juror found these comments to create a hostile work environment, and only one stated that Acme had adequate notice that Mr. Jones was harassing the Plaintiffs because of race. When asked if Jane Doe was discharged due to race, five voted in favor of Ms. Jones, and eight voted for Acme. Of those voting in favor of Ms. Jones, damages included one year’s salary and $1 for emotional harm. Five jurors thought Ms. Doe had been subjected to offensive comments, but eight found that she had not. Four found these comments to create a hostile work environment, yet those four jurors agreed Acme did not have adequate notice that Mr. Jones was harassing Ms. Doe because of race.

Panel Two unanimously voted in favor of Acme in regards to Mr. Turner’s, the Plaintiffs’ and Ms. Jones’ discharges. They unanimously voted in favor of Acme in terms of Mr. Turner’s, the Plaintiffs’ and Jane Doe’ subjection to offensive comments. However, they thought Mr. Turner should have been compensated with $80,000 of back pay and should have gotten his job back. They also thought the Plaintiffs and Ms. Doe should have received $12,000 each in back pay.

Panel Three unanimously voted in favor of Acme in regards to Mr. Turner’s discharge but favored Mr. Turner when asked if he was subjected to offensive comments. However, when they were asked if these comments interfered with his employment, they found in Acme’s favor. They did not find the Plaintiffs nor Ms. Doe to be discharged based on race. Lastly, they did not think the Plaintiffs nor Ms. Doe were subjected to offensive comments.

(Appendix D: Verdicts & Table Maps, page 170)



APPENDICES

Appendix A: Preconceptions and Experiences ............................................................. 40 Preliminary Questionnaire ........................................................................................ 40

Appendix B: Reactions to Presentations....................................................................... 55 Post-Neutral Statement ............................................................................................. 55 Post-Plaintiff / -Defense Opening Statements .......................................................... 55 Post-Plaintiff Witness: Mary Baynes........................................................................ 64 Post-Plaintiff Witness: Jane Doe .............................................................................. 71 Post-Plaintiff Witness: Marcus Turner ..................................................................... 77 Post-Plaintiff Evidence Ratings ................................................................................ 83 Post-Witness: Nancy Werner.................................................................................... 86 Post-Witness: Patrick Leveque ................................................................................. 92 Post-Witness: Chris Helm......................................................................................... 97 Post-Witness: Robert Jones .................................................................................... 104 Reactions to Defense Witnesses: Day One............................................................. 110 Post-Witness: Jim Cane .......................................................................................... 113 Post-Witness: Harold Hanson ................................................................................. 119 Post-Witness: David Gumphrey ............................................................................. 125 Post-Witness: Lance Bamenda ............................................................................... 131 Post-Witness: Kevin Jarret...................................................................................... 136 Reactions to Defense Witnesses: Day Two ............................................................ 142 Post-Plaintiff / -Defense Closing Statements.......................................................... 145

Appendix C: Case Perceptions.................................................................................... 155 Post-Presentations Questions .................................................................................. 155

Appendix D: Verdicts & Table Maps ......................................................................... 170 Panel One ................................................................................................................ 170



Appendix A: Preconceptions and Experiences

Preliminary Questionnaire

1. What is your gender?

Frequency Percent Male 17 43.6 Female 22 56.4

Total 39 100.0

2. What is your age?

Frequency Percent 18-24 2 5.1 25-34 7 17.9 35-44 10 25.6 45-54 9 23.1 55-64 6 15.4 65 and over 5 12.8

Total 39 100.0

3. What is your marital status?

Frequency Percent Never been married 9 23.1 Married for the first time 17 43.6 Remarried 6 15.4 Separated 1 2.6 Divorced 4 10.3 Widowed 0 0.0 Living with partner/significant other 2 5.1

Total 39 100.0

4. How would you best classify your race?

Frequency Percent African-Americans/black 9 23.1 Hispanic/Latino 1 2.6 Asian 1 2.6 Native Civil/Civil Indian 1 2.6 White/Caucasian 26 66.7 Multiracial 1 2.6

Total 39 100.0



5. Do you rent or own your home?

Frequency Percent Rent 9 23.1 Own 27 69.2 Other 3 7.7

Total 39 100.0

6. Which of the following best describes your political views?

Frequency Percent Liberal 7 17.9 Moderate 27 69.2 Conservative 5 12.8

Total 39 100.0

7. What was your last completed year at school?

Frequency Percent Less than completion of high school 0 0.0

High school/GED 12 30.8 Technical or trade school 2 5.1 Junior college degree (A.A.) 1 2.6 Some college 10 25.6 College degree (B.A., B.S.) 10 25.6 Some college 0 0.0 Postgraduate degree (M.A., Ph.D.) 4 10.3

Total 39 100.0

8. What is your total yearly family income?

Frequency Percent Under $10,000 2 5.1 $20,000 to under $30,000 4 10.3 $30,000 to under $40,000 6 15.4 $40,000 to under $50,000 7 17.9 $50,000 to under $60,000 8 20.5 $60,000 to under $70,000 6 15.4 $70,000 and over 6 15.4

Total 39 100.0

9. Have you ever served on a jury?

Frequency Percent Yes, I have served on a criminal jury. 8 20.5 Yes, I have served on a civil jury. 3 7.7 Yes, I served on both criminal and civil juries. 1 2.6 No, I have never served on any jury. 27 69.2

Total 39 100.0



10. For those who are married or who have a domestic partner, is your spouse/domestic partner

employed? Frequency Percent

Yes 15 38.5 No 12 30.8 Not married/no domestic partner 12 30.8

Total 39 100.0

11. Are you currently employed?

Frequency Percent Yes, full time 20 51.3 Yes, part time 9 23.1 No 10 25.6

Total 39 100.0

12. For those who are NOT employed, which best describes your situation?

Frequency Percent Looking for work 0 0.0 Retired 6 15.4 Student 0 0.0 Homemaker 5 12.8 Disabled 0 0.0 None of the above 1 2.6 I am employed. 27 69.2

Total 39 100.0

13. What is your occupation (if you are retired or unemployed, what was your occupation)?

Frequency Percent Professional/white-collar 7 17.9 Sales 4 10.3 Office worker 5 12.8 Service worker 8 20.5 Skilled blue-collar 5 12.8 Semi-skilled blue-collar 2 5.1 Technical 2 5.1 Academic/education 1 2.6 Homemaker 4 10.3 Artist/musician 1 2.6

Total 39 100.0

14. Have you ever held a management position at work with formal authority to evaluate,

discipline, hire, or fire others? Frequency Percent

Yes 13 33.3 No 26 66.7

Total 39 100.0



15. Have you ever supervised people at work?

Frequency Percent Yes 16 41.0 No 23 59.0

Total 39 100.0

16. If yes, how many people do you, or did you, typically supervise?

Frequency Percent 1 or 2 1 2.6 3 or 4 4 10.3 5 to 10 5 12.8 11 to 50 5 12.8 More than 50 2 5.1 Does not apply to me 22 56.4

Total 39 100.0

17. Do you, or anyone in your immediate family, have any training or work experience in setting

and/or implementing work regulations? Frequency Percent

Yes, self 4 10.3 Yes, family member 2 5.1 Yes, self and family member 3 7.7 No 30 76.9

Total 39 100.0

18. Do you, or anyone in your immediate family, have any training or work experience in handling

and/or resolving employment disputes? Frequency Percent


Total 39 100.0

19. Have you ever heard of the company Acme?


20. Have you ever been a member of Acme?

Frequency Percent Yes, currently 13 33.3 Yes, in the past 2 5.1 No 24 61.5

Total 39 100.0



21. What is your opinion of Acme?

Frequency Percent Positive 16 41.0 Neutral 23 59.0 Negative 0 0.0 Never heard of Acme 0 0.0

Total 39 100.0

22. How would you rate Acme as a company to work for?

Frequency Percent Excellent 3 7.7 Good 19 48.7 Fair 16 41.0 Poor 0 0.0 Never heard of Acme 1 2.6

Total 39 100.0

23. How likely is it, if at all, that you would believe Acme discriminates against its employees

based on gender? Frequency Percent

Very likely 2 5.1 Likely 3 7.7 Moderately likely 12 30.8 Somewhat likely 8 20.5 Not at all likely 14 35.9

Total 39 100.0

24. How likely is it, if at all, that you would believe Acme discriminates against its employees

based on race? Frequency Percent


Total 39 100.0

25. Have you ever heard of the company Wedgeworks?




26. Have you ever been a member of Wedgeworks?


Total 39 100.0

27. What is your opinion of Wedgeworks?

Frequency Percent Positive 7 17.9 Neutral 29 74.4 Negative 3 7.7 Never heard of Sam’s Club 0 0.0

Total 39 100.0

28. How would you rate Wedgeworks as a company to work for?

Frequency Percent Excellent 0 0.0 Good 17 43.6 Fair 22 56.4 Poor 0 0.0 Never heard of Sam’s Club 0 0.0

Total 39 100.0

29. How likely is it, if at all, that you would believe Wedgeworks discriminates against its

employees based on gender? Frequency Percent


Total 39 100.0

30. How likely is it, if at all, that you would believe Wedgeworks discriminates against its

employees based on race? Frequency Percent


Total 39 100.0



31. Have you, or anyone in your immediate family, had any education, training, or experience in

the following? Human resources Frequency Percent


Total 39 100.0

32. Accounting

Frequency Percent Yes, self 5 12.8 Yes, family member 8 20.5 Yes, self and family member 1 2.6 No 25 64.1

Total 39 100.0

33. Bookkeeping/payroll


Total 39 100.0

34. Customer service


Total 39 100.0

35. Retail management


Total 39 100.0



36. Have you, or anyone in your immediate family, ever worked for any retail establishment (e.g.,

grocery store, department store)? Frequency Percent


Total 39 100.0

37. Do you feel that you personally have ever been a victim of discrimination (e.g., race, age,

gender)? Frequency Percent

Yes 10 25.6 No 29 74.4

Total 39 100.0

38. Do you feel that anyone close to you has ever been a victim of discrimination (e.g., race, age,

gender)? Frequency Percent

Yes 19 48.7 No 20 51.3

Total 39 100.0

39. Have you ever been involved in an employment dispute?


Total 39 100.0

40. If yes, did you file a formal grievance or formal complaint?

Frequency Percent Yes 1 2.6 No 4 10.3 Does not apply to me 34 87.2

Total 39 100.0

41. Have you ever had to complain to a superior about a fellow coworker’s behavior?


Total 39 100.0

42. Have you ever had to complain to one superior regarding a second superior’s behavior?


Total 39 100.0



43. Have you ever been or felt discriminated against in your workplace because of your race?


Total 39 100.0

44. If yes, did you ever report the event(s) to the company or your superiors?


Total 39 100.0

45. If yes, were you satisfied with the way it was handled by your company?

Frequency Percent Yes 3 7.7 Does not apply to me 36 92.3

Total 39 100.0

46. Have you ever felt yourself to be working in a hostile work environment (e.g., feeling workers

are consistently harassed or mistreated by a superior or coworker)? Frequency Percent

Yes 10 25.6 No 29 74.4

Total 39 100.0

47. If yes, did you ever report the event(s) to the company?


Total 39 100.0

48. If yes, were you satisfied with the way it was handled by your company?


Total 39 100.0

49. Have you, or has anyone close to you, ever been accused by someone of discrimination in

the workplace? Frequency Percent

Yes 2 5.1 No 37 94.9

Total 39 100.0



50. Have you ever been fired from a job?


Total 39 100.0

51. If yes, did you file a lawsuit or seek any other remedy?


Total 39 100.0

52. If yes, were you satisfied with the outcome?


Total 39 100.0

53. Have you ever left a job under unpleasant circumstances?


Total 39 100.0

54. Have you, or anyone in your immediate family, ever sued someone in any court?

Frequency Percent Yes, myself 0 0.0 Yes, immediate family member 4 10.3 Yes, both myself and immediate family member 4 10.3 No 31 79.5

Total 39 100.0

55. Have you, or anyone in your immediate family, ever been sued by someone?

Frequency Percent Yes, myself 1 2.6 Yes, immediate family member 4 10.3 Yes, both myself and immediate family member 1 2.6 No 33 84.6

Total 39 100.0



56. There are too many employment discrimination lawsuits these days.

Frequency Percent Strongly disagree 2 5.1 Somewhat disagree 8 20.5 Somewhat agree 28 71.8 Strongly agree 1 2.6

Total 39 100.0

57. In general, how would you rate the damage awards in employment discrimination lawsuits?

Frequency Percent Too high 17 43.6 About right 21 53.8 Too low 1 2.6

Total 39 100.0

58. Have you ever been a member of a union?


Total 39 100.0

59. Have you ever worked for a large company or corporation?


Total 39 100.0

60. Reports that workers are being discriminated against in their workplaces are probably…

Frequency Percent exaggerated. 9 23.1 about right. 12 30.8 underreported. 18 46.2

Total 39 100.0

61. When you see a story in the newspaper about workplace discrimination and/or harassment,

do you usually read it? Frequency Percent

Yes 23 59.0 No 16 41.0

Total 39 100.0



62. When you see a story in the newspaper about workplace discrimination and/or harassment,

do you typically think it is…? Frequency Percent

Completely true 0 0.0 Probably true 30 76.9 Probably false 8 20.5 Completely false 1 2.6

Total 39 100.0

63. Awarding punitive damages against large companies is the best way to get them to behave

more responsibly. Frequency Percent

Strongly disagree 0 0.0 Disagree 13 33.3 Agree 24 61.5 Strongly agree 2 5.1

Total 39 100.0

64. Which do you agree with more?

Frequency Percent The larger the company, the more likely there is to be racial discrimination in the workplace. 19 48.7

The larger the company, the less likely there is to be racial discrimination in the workplace. 20 51.3

Total 39 100.0

65. Sometimes people file false complaints about their superiors.

Frequency Percent Strongly disagree 0 0.0 Disagree 6 15.4 Agree 31 79.5 Strongly agree 2 5.1

Total 39 100.0

66. Emotional or mental injuries can be just as devastating as physical injuries.


Total 39 100.0



67. Money claims for "pain and suffering" or "mental anguish" are usually way too high for the

damage that has actually been done. Frequency Percent


Total 39 100.0

68. Minorities in the work force are often targets of discrimination.


Total 39 100.0

69. There is an ever increasing tendency for employees to claim "discrimination" for problems

that are really based on other factors. Frequency Percent


Total 39 100.0

70. People often claim “discrimination” when they do not get what they want.


Total 39 100.0

71. Poor performers are more likely than good performers to complain of discrimination.


Total 39 100.0



72. In a dispute between an individual and a large company, I would tend to favor…

Frequency Percent the individual. 26 66.7 the large company. 13 33.3

Total 39 100.0

73. Large corporations cannot be trusted.


Total 39 100.0

74. Managers of a company will lie about events to protect themselves or their company.


Total 39 100.0

75. The best way to punish a company is by requiring it to pay large money damages.


Total 39 100.0

76. People often blame others for their problems rather than take responsibility for their own

actions. Frequency Percent


Total 39 100.0

77. Too many workers are treated unfairly by their employers.


Total 39 100.0



78. Employee rights are well protected in the United States.


Total 39 100.0



Appendix B: Reactions to Presentations

Post-Neutral Statement

79. At this point in the presentation, without knowing anything else, who would you tend to favor in this dispute?

Frequency Percent Definitely the Plaintiffs (the workers) 1 2.6 Somewhat the Plaintiffs (the workers) 15 38.5 Somewhat the Defendant (Acme) 20 51.3 Definitely the Defendant (Acme) 3 7.7

Total 39 100.0

Post-Plaintiff / -Defense Opening Statements


Frequency Percent Definitely the Plaintiffs (the workers) 1 2.6 Somewhat the Plaintiffs (the workers) 7 17.9 Somewhat the Defendant (Acme) 26 66.7 Definitely the Defendant (Acme) 5 12.8

Total 39 100.0

81. Based on what you know and have heard so far, how strong is your desire or feeling that the

Plaintiffs, the workers, should win this case? 0= Very weak desire / 10= Very strong desire Frequency Percent

0.00 1 2.6 2.00 2 5.1 3.00 9 23.1 4.00 10 25.6 5.00 7 17.9 6.00 6 15.4 7.00 3 7.7 10.00 1 2.6

Total 39 100.0 Mean= 4.4




Defendant, Acme, should win this case? 0= Very weak desire / 10= Very strong desire Frequency Percent

4.00 5 12.8 5.00 7 17.9 6.00 8 20.5 7.00 9 23.1 8.00 9 23.1 10.00 1 2.6

Total 39 100.0 Mean= 6.4


Plaintiffs, the workers, should be compensated in this case? 0= Very weak desire / 10= Very strong desire Frequency Percent

0.00 1 2.6 1.00 2 5.1 2.00 10 25.6 3.00 5 12.8 4.00 8 20.5 5.00 3 7.7 6.00 5 12.8 7.00 3 7.7 8.00 1 2.6 10.00 1 2.6

Total 39 100.0 Mean= 3.9


Defendant, Acme, should be punished in this case? 0= Very weak desire / 10= Very strong desire Frequency Percent

0.00 1 2.6 1.00 2 5.1 2.00 11 28.2 3.00 7 17.9 4.00 4 10.3 5.00 6 15.4 6.00 4 10.3 7.00 1 2.6 8.00 1 2.6 10.00 2 5.1

Total 39 100.0 Mean= 3.8



85. Based on what you know and have heard so far, how sympathetic are you toward the

Plaintiffs, the workers? 0= Not at all / 10= Very Frequency Percent

0.00 1 2.6 1.00 2 5.1 2.00 5 12.8 3.00 8 20.5 4.00 9 23.1 5.00 7 17.9 6.00 3 7.7 7.00 2 5.1 8.00 1 2.6 10.00 1 2.6

Total 39 100.0 Mean= 4.0


Defendant, Acme? 0= Not at all / 10= Very Frequency Percent

0.00 1 2.6 1.00 1 2.6 3.00 1 2.6 4.00 5 12.8 5.00 13 33.3 6.00 5 12.8 7.00 9 23.1 8.00 3 7.7 10.00 1 2.6

Total 39 100.0 Mean= 5.5

87. Based on what you know and have heard so far, how angry are you toward the Plaintiffs, the

workers? 0= Not at all / 10= Very Frequency Percent

0.00 9 23.1 1.00 3 7.7 2.00 4 10.3 3.00 3 7.7 4.00 2 5.1 5.00 9 23.1 6.00 3 7.7 7.00 4 10.3 8.00 2 5.1

Total 39 100.0 Mean= 3.5



88. Based on what you know and have heard so far, how angry are you toward the Defendant,

Acme? 0= Not at all / 10= Very Frequency Percent

0.00 6 15.4 1.00 2 5.1 2.00 6 15.4 3.00 8 20.5 4.00 2 5.1 5.00 6 15.4 6.00 3 7.7 7.00 3 7.7 8.00 1 2.6 10.00 2 5.1

Total 39 100.0 Mean= 3.7



Open-Ended Responses, Post-Plaintiff / -Defense Opening Statements What particular piece of evidence do you think is the strongest part of the case for the Plaintiffs, the workers? Frequency• The statements and comments made by Robert Jones that were racist and

sexist. 23 • The firings seemed to be based on race and involved so many at one time

on one day. 7 • Doe’s bad attitude. 2 • The managers doing it the same way, thus setting an example. 2 • Robert Jones’ relationship with Smythe. 2 • I haven’t seen any evidence. 1 • The fact that they all are black, and a witness heard him say racial

comments as well as a supervisor. 1 • The fact that there is written evidence to support the racial statements

were actually made. 1 • The fact that there was racism at Acme. 1 • Evidence was weak, hearsay. 1 • That other managers did the same thing. 1 • None, not much, etc. 4



What particular piece of evidence do you think is the weakest part of the case for the Plaintiffs, the workers? Frequency

• That they were involved in the scam and it was illegal. 20 • Written statements from the Plaintiffs. 7 • Why only seven people? 1 • They admit guilt. They definitely were doing activities that were against

company policy, and they knew it. 1 • Their ethnic makeup claim is wrong; color has nothing to do with it. 1 • They stole. No matter what Mr. Jones may have or not have said, an

employee should NEVER steal. 1 • None because the employees are still working at Acme. 1 • Targeting Jones as the bad guy. Everything is hearsay. 1 • Believing Mr. Jones. 1 • They feel they were wrongfully fired. 1 • There were no physical documents shown to support the accusation.

Argument seemed a bit weak, needs more support. 1 • It is claimed that they lied. 1 • The facts showing and stating their wrongdoings. 1 • They need to show the papers or e-mails from Jones. 1 • The fact that they were breaking company rules. 1 • The letters by customers’ complaints. 1 • None at this time, undecided, etc. 2



What is one question you would like to ask the Plaintiffs, the workers, about their case against Defendant, Acme? Frequency• Why did you not report racial comments more than once? 9 • Do you believe what you did was wrong? 3 • What sort of process was used, and how long was the filing process from

the investigation until they were fired? 2 • Was Jones the only person making negative comments? 2 • Did they document the complaints about the manager and his behavior? 1 • Did they follow the policy handbook as described when hired? 1 • How much money did they make? 1

• Why were they were not signing in? Why did they lie? 1 • Were there people that did the same thing and not get fired? 1 • How did race affect or relate to their behavior? 1 • Why would some change from the letters they wrote before the lawsuit? 1

• Do they have witnesses that overheard racial tones? 1 • What gives you the right to cheat? 1 • Did the worker steal at previous jobs? 1 • How many black employees still work at Acme? 1 • Were the four of you working together? 1 • Why were they not talked to and given a second chance like Mr. Jones

was? 1

• Who came up with the idea, and how long did that go on? 1 • Why did they have someone else’s property in their possession? 1

• How did they know that the people were customers? Did they have permission? 1

• What is the history and percentage of whites being fired because of the same thing? 1

• Why do you think this will hold up in court against your written admissions? 1

• How can you deny the facts? By the audit and customer complaint? 1 • What was so hard in doing the job that they were trained to do? 1 • Were customers being cheated? 1 • Why? Think of repercussion? 1 • What steps should be followed when comments are made from a boss or

manager? 1 • None, no response 1



What particular piece of evidence do you think is the strongest part of the case for the Defendant, Acme? Frequency • Letters admitting guilt of plaintiff. 20 • The scam was clearly stealing. 6 • Complaints about Jane Doe’s performance. 5 • Policies associated with Acme investigation procedures. 2 • Over and over, warned (evaluated) employees did not take warnings

seriously. 1 • Having Plaintiff attorney’s testimony. 1 • That Robert Jones didn’t start the investigation against the plaintiffs and

that six workers were terminated because they were all friends, and that is why it was only black workers terminated. 1

• I don’t feel there is enough proof yet. 1 • Promotions that were given/offered to employees. 1 • The many managers who investigated the case. 1 • That they are admitting to racism. 1 • Upper management acted in the right way. 1 • That there are minorities in management. 1

What particular piece of evidence do you think is the weakest part of the case for the Defendant, Acme? Frequency• Mr. Jones saying these racial statements, if true. 14 • The fact that all of the fired defendants are minorities. 5 • That all the plaintiffs were friends and favors were done for them (i.e.,

adjusting payroll time). 2 • Given a history of the branch. 1 • There seems to be possible focusing on just black employees. Was the

investigation biased? 1 • Limited discussion surrounding the investigation process. 1 • Unsubstantiated evidence of promotions for some of the plaintiffs and

other African-Americans employees. 1 • That they could be late and that was OK. 1 • Customer complaints about Jane Doe’s bad attitude. 1 • Any statement in reference to branch manager. 1 • Chris Helm’s testimony seemed labored and comes off as in favor of

Acme. 1 • Did question Jones and investigate him and others higher than him. 1 • Turner turning down a “job offer.” 1 • Unclear relationship between Jones and Smythe. 1 • Also, the letters presented, could have been under pressure, duress

believing things would be OK. 1 • None, no response 7



What is one question you would like to ask the Defendant, Acme, about its case? Frequency • How many steps were taken by HR to process firing? 6 • Why have they not fired Mr. Jones? 4 • Why did they not investigate Robert and the allegations against him? 3 • Why were all fired on same day? 2 • Why were all those fired minorities? 2 • You need to interview better and hire better qualified people. 1 • Why wasn’t every employee questioned? 1 • Why did Turner turn down job offer? It may not be what he wanted. 1 • The facts will determine who will win. So far, the facts are on Acme’s

side. 1 • Why did you let them work there that long if it’s true? 1 • Why didn’t they read all of the statement? They could have used

statements out of context. 1 • Why have you not done something to prevent this theft from occurring?

It would have avoided this type of theft in the first place. 1 • How does one complain about the manager, to whom, how confidential

is it?? 1 • How long were they aware of the plaintiffs’ behavior and actions? Was

it before Mr. Jones came to work there? 1 • Did you do what you’re accused of? 1 • What were you thinking? 1 • Why can one person get benefits that others can’t? 1 • Did any of the customers’ complain? 1 • Why were none of the plaintiffs given a second chance? 1 • Was the time adjuster and the bad attitude by Jones found out in the

same day? 1 • Did you act quickly? 1 • Why didn’t they question other managers and supervisors? 1

• How much money, if any, did Turner “steal” from the company? 1



Post-Plaintiff Witness: Mary Baynes

89. On each of the following characteristics, please rate Mary Baynes on a scale of "0" to "10," in which "0" means "Not at all" and "10" means "Completely." CREDIBLE

0=Not at all / 10= Completely Frequency Percent 0.00 1 2.6 1.00 4 10.3 2.00 8 20.5 3.00 9 23.1 4.00 10 25.6 5.00 3 7.7 6.00 1 2.6 7.00 1 2.6 9.00 1 2.6 10.00 1 2.6

Total 39 100.0 Mean= 3.4

90. LIKABLE


Total 39 100.0 Mean= 4.9

91. TRUTHFUL

0=Not at all / 10= Completely Frequency Percent 1.00 3 7.7 2.00 4 10.3 3.00 15 38.5 4.00 8 20.5 5.00 4 10.3 6.00 1 2.6 7.00 2 5.1 10.00 2 5.1

Total 39 100.0 Mean= 3.8



92. NERVOUS

0=Not at all / 10= Completely Frequency Percent 0.00 2 5.1 1.00 2 5.1 2.00 4 10.3 3.00 1 2.6 4.00 7 17.9 5.00 7 17.9 6.00 4 10.3 7.00 6 15.4 8.00 3 7.7 9.00 2 5.1 10.00 1 2.6

Total 39 100.0 Mean= 5.0

93. KNOWLEDGEABLE

0=Not at all / 10= Completely Frequency Percent 1.00 1 2.6 2.00 3 7.7 3.00 6 15.4 4.00 7 17.9 5.00 8 20.5 6.00 5 12.8 7.00 2 5.1 8.00 4 10.3 10.00 3 7.7

Total 39 100.0 Mean= 5.1

94. EASY TO UNDERSTAND


Total 39 100.0 Mean= 7.4



95. EVASIVE


Total 39 100.0 Mean= 6.1

96. How effective was Mary Baynes in helping you understand the case?


Total 39 100.0 Mean= 6.4

97. How successful was Mary Baynes in presenting her side of the case?


Total 39 100.0 Mean= 3.7

98. How did Mary Baynes' testimony affect your decision in this case?

Frequency Percent It made me favor the Plaintiff more. 3 7.7 It had no impact on my decision. 8 20.5 It made me favor the Defendant more. 28 71.8

Total 39 100.0



Open-Ended Responses, Post-Plaintiff Witness: Mary Baynes What particular piece of evidence do you think is the strongest part of the case for the Plaintiffs, the workers? Frequency• The statements and comments made by Robert Jones that were racist and

sexist. 23 • The firings seemed to be based on race and involved so many at one time

on one day. 7 • Robert Jones’ bad attitude. 2 • The managers set a bad example. 2 • Robert Jones’ relationship with Smythe. 2 • I haven’t seen any evidence. 1 • The fact that they all are black, and a witness heard him say racial

comments as well as a supervisor. 1 • The fact that there is written evidence to support the racial statements

were actually made. 1 • The fact that there was racism at the branch. 1 • Evidence was weak, hearsay. 1 • That other managers did the same thing. 1 • None, not much, etc. 4

What particular piece of evidence do you think is the weakest part of the case for the Plaintiffs, the workers? Frequency

• That they were involved in the scam and it was illegal. 20 • Written statements from the Plaintiffs. 7 • Why only seven people? 1 • They admit guilt. They definitely were doing activities that were against

company policy, and they knew it. 1 • Their ethnic makeup claim is wrong; color has nothing to do with it. 1 • They stole. No matter what Mr. Jones may have or not have said, an

employee should NEVER steal. 1 • None because the employees are still working at Acme. 1 • Targeting Jones as the bad guy. Everything is hearsay. 1 • Believing Mr. Jones. 1 • They feel they were wrongfully fired. 1 • There were no physical documents shown to support the accusation.

Argument seemed a bit weak, needs more support. 1 • It is claimed that they lied. 1 • The facts showing and stating their wrongdoings. 1 • They need to show the papers or e-mails from Jones. 1 • The fact that they were breaking company rules. 1 • The letters by customers’ complaints. 1 • None at this time, undecided, etc. 2



What is one question you would like to ask the Plaintiffs, the workers, about their case against Defendant, Acme? Frequency• Why did you not report racial comments more than once? 9 • Do you believe what you did was wrong? 3 • What sort of process was used, and how long was the filing process from

the investigation until they were fired? 2 • Was Jones the only person making negative comments? 2 • Did they document the complaints about the manager and his behavior? 1 • Did they follow the policy handbook as described when hired? 1 • How much money did they make? 1

• Why were they were not signing in? Why did they do it? 1 • Were there people that did the same thing and not get fired? 1 • How did race affect or relate to their behavior? 1 • Why would some change from the letters they wrote before the lawsuit? 1

• Do they have witnesses that overheard racial tones? 1 • What gives you the right to lie and steal? 1 • Did the worker steal at previous jobs? 1 • How many black employees still work at Acme? 1 • Were the four of you working together? 1 • Why were they not talked to and given a second chance like Mr. Jones

was? 1

• Who came up with the idea, and how long did that go on? 1 • Why did they have someone else’s property in their possession? 1

• How did they know that the people were customers? Did they have permission? 1

• What is the history and percentage of whites being fired for the same thing? 1

• Why do you think this will hold up in court against your written admissions? 1

• How can you deny the facts? By the audit and customer complaint? 1 • What was so hard in doing the job that they were trained to do? 1 • Were customers being cheated? 1 • Why? Think of repercussion? 1 • What steps should be followed when comments are made from a boss or

manager? 1 • None, no response 1



What particular piece of evidence do you think is the strongest part of the case for the Defendant, Acme? Frequency • Letters admitting guilt of plaintiff. 20 • The scam was clearly stealing. 6 • Complaints about Jane Doe’s performance. 5 • Policies associated with company procedure. 2 • Over and over, warned (evaluated) employees did not take warnings

seriously. 1 • Having Plaintiff attorney’s testimony. 1 • That Robert Jones didn’t start the investigation against the plaintiffs

and that six workers were terminated because they were all friends, and that is why it was only black workers terminated. 1

• I don’t feel there is enough proof yet. 1 • Promotions that were given/offered to employees. 1 • The many managers who investigated the case. 1 • That they are admitting to racism. 1 • Upper management acted in the right way. 1 • That there are minorities in management. 1

What particular piece of evidence do you think is the weakest part of the case for the Defendant, Acme? Frequency• Mr. Jones saying these racial statements, if true. 14 • The fact that all of the fired defendants are minorities. 5

• That all the plaintiffs were friends and favors were done for them. 2 • Given a history of the branch. 1 • There seems to be possible focusing on just black employees. Was the

investigation biased? 1 • Limited discussion surrounding the investigation process. 1 • Unsubstantiated evidence of promotions for some of the plaintiffs and

other African-Americans employees. 1 • That they could be late and that was OK. 1 • Customer complaints about Jane Doe’s bad attitude. 1 • Any statement in reference to branch manager. 1 • Chris Helm’s testimony seemed labored and comes off as in favor of

Acme. 1 • Did question Jones and investigate him and others higher than him. 1 • Turner turning down a “job offer.” 1 • Unclear relationship between Jones and Smythe. 1 • Also, the letters presented, could have been under pressure, duress

believing things would be OK. 1 • None, no response 7



What is one question you would like to ask the Defendant, Acme, about its case? Frequency • How many steps were taken by HR to process firing? 6 • Why have they not fired Mr. Jones? 4 • Why did they not investigate Robert and the allegations against him? 3 • Why were all fired on same day? 2 • Why were all those fired minorities? 2 • You need to interview better and hire better qualified people. 1 • Why wasn’t every employee questioned? 1 • Why did Turner turn down job offer? It may not be what he wanted. 1 • The facts will determine who will win. So far, the facts are on Acme’s

side. 1 • Why did you let them work there that long if it’s true? 1 • Why didn’t they read all of the statement? They could have used

statements out of context. 1 • Why have you not done anything to prevent the scam? It would have

avoided this type of theft in the first place. 1 • How does one complain about the manager of a branch, to whom, how

confidential is it?? 1 • How long were they aware of the plaintiffs’ behavior and actions?

Was it before Mr. Jones came to work there? 1 • Did you do what you’re accused of? 1 • What were you thinking? 1 • Why can one person get benefits that others can’t? 1 • Did any of the customers’ complain? 1 • Why were none of the plaintiffs given a second chance? 1 • Was the lying and the bad attitude by Jones found out in the same day? 1 • Did you act quickly? 1 • Why didn’t they question other managers and supervisors? 1

• How much money, if any, did Turner “steal” from the company? 1



Post-Plaintiff Witness: Jane Doe

99. On each of the following characteristics, please rate Jane Doe on a scale of "0" to "10," in which "0" means "Not at all" and "10" means "Completely." CREDIBLE


Total 39 100.0 Mean= 4.8

100. LIKABLE


Total 39 100.0 Mean= 4.2

101. TRUTHFUL


Total 39 100.0 Mean= 4.7



102. NERVOUS


Total 39 100.0 Mean= 2.7

103. KNOWLEDGEABLE


Total 39 100.0 Mean= 6.3



Total 39 100.0 Mean= 7.8



105. EVASIVE


Total 39 100.0 Mean= 5.2

106. How effective was Ms. Jones in helping you understand the case?


Total 39 100.0 Mean= 6.8

107. How successful was Ms. Jones in presenting her side of the case?


Total 39 100.0 Mean= 4.9



108. How did Ms. Jones’ testimony affect your decision in this case?


Total 39 100.0



Open-Ended Responses, Post-Plaintiff Witness: Jane Doe What particular piece of evidence do you think is the strongest part of Jane Doe’s testimony? Frequency • She reported her harassment to the proper people with no response. 9 • She did sound credible about her belief that Jones was a racist and that

she was wronged. 8 • Alleged racial discrimination she and others experienced. 5 • Termination materials were inconsistent and dubious. 4 • The fact that she was not shown proof of the accusations against her. 4 • Worked for Acme for three years. 1 • Her handwriting was not on some of the papers. 1 • Jane was not going to get a higher job at Acme. 1 • That she did not know about negative write-ups. 1 • The fact that she hadn’t been terminated previously in spite of her

many write-ups. 1 • Robert fired her because she’s black. 1 • That they did not fire her for fighting until an employee gave her a

chance again. 1 • None, no response. 8

What PARTICULAR PIECE OF EVIDENCE do you think is the weakest part of Jane Doe’s testimony?

Frequency• Poor performance prior to Jones’ arrival. 24 • She never actually heard racist comments firsthand from Robert Jones. 6 • Bad attitude. 4 • No signs of acceptance in her role/part in the events relating to what

happened to cause her dismissal. 2 • A little bit of an attitude. 1 • Not remembering several things and the fact that she knew nothing about

them. 1 • Other plaintiffs’ reports on her. Her manner as a witness. Tardiness

reports. Promoted with higher pay. 1 • No records. 1 • Claiming she had not been shown all of the employee notices about her

problems. 1 • They never say all of the companies before and after. 1 • Notices/termination – didn’t have more than two notices for complaints

of customers. 1 • None, no response. 2



What is one question you have about Jane Doe’s testimony?

Frequency• Why didn’t she ever fight the negative write-ups if false? 9 • Why is she so confrontational/angry? 5 • I would like to see records regarding absences and tardiness. 2 • After all of the letters stating the company’s concerns about her, why

didn’t she do something to change how they saw her? 2 • Who were the people you heard the comments from, and what was the

context? 2 • How many times did she make formal/written complaints to senior

management regarding Jones? 1 • Why does she feel management was picking on her because of her

attitude or because she is black? 1 • Did other white employees get counseling notices similar to Ms. Jones? 1 • She should have been fired sooner because of numerous counseling

notices. 1 • Why were the white women allowed to wear shirts that Jane was not

allowed to wear? 1 • What was the code? 1 • How did James Kelley feel about her performance at Acme? (Did the

problems begin with Jones?) 1 • Why was there not a meeting with all of the VPs? 1 • Was she verbally warned at first? Clearly? 1 • Why did she go to the top? 1 • Why so many disciplinary actions? 1 • Why did you not call again? 1 • Why would customers complain about you if it’s not true? 1 • Do you ever take responsibility for your action? 1 • None, no response. 4



Post-Plaintiff Witness: Marcus Turner

109. On each of the following characteristics, please rate Marcus Turner on a scale of "0" to "10," in which "0" means "Not at all" and "10" means "Completely." CREDIBLE


Total 39 100.0 Mean= 4.4

110. LIKABLE


Total 39 100.0 Mean= 6.8

111. TRUTHFUL


Total 39 100.0 Mean= 4.4



112. NERVOUS


Total 39 100.0 Mean= 3.5

113. KNOWLEDGEABLE


Total 39 100.0 Mean= 7.7


0=Not at all / 10= Completely Frequency Percent 5.00 3 7.7 7.00 4 10.3 8.00 9 23.1 9.00 4 10.3 10.00 19 48.7

Total 39 100.0 Mean= 8.7

115. EVASIVE


Total 39 100.0 Mean= 5.4



116. How effective was Mr. Turner in helping you understand the case?

0=Not at all / 10= Completely Frequency Percent 2.00 1 2.6 5.00 2 5.1 6.00 9 23.1 7.00 7 17.9 8.00 9 23.1 9.00 3 7.7 10.00 8 20.5

Total 39 100.0 Mean= 7.5

117. How successful was Mr. Turner in presenting his side of the case?


Total 39 100.0 Mean= 6.1

118. How did Mr. Turner’s testimony affect your decision in this case?


Total 39 100.0



Open-Ended Responses, Post-Plaintiff Witness: Marcus Turner What particular piece of evidence do you think is the strongest part of Marcus Turner’s testimony? Frequency• Other personnel made similar adjustments and approval without

incident. 18 • Racial discrimination by Robert Jones was clear through conversations

had with Marcus 10 • Reported harassment to Chris Helm. 3 • He has an e-mail of why he did what he did. 2 • He has a good understanding of and experience with job procedures. 2 • Past work history. 1 • Jones got him to write a statement so he could be fired. 1 • He was very aware of what was going on. 1 • The common use of password codes exchanged. 1 • Exhibit 17 statement saying he should have gotten documentation. 1 • Came on strong and knowledgeable, but became weak under cross. 1 • Under Kelley, he never displayed a good record. 1 • In almost four years with Acme he was never tardy or sick. 1 • No intent to falsify. 1 • Confident, credible, forthright. 1 • Discussion of Chris. 1 • I started to question why he was fired. He seemed honest and had stated

he really didn’t do anything that wrong. 1



What particular piece of evidence do you think is the weakest part of Marcus Turner’s testimony? Frequency • Changing time for friends and girlfriends. 19 • He lied about filling out Doe’s paperwork. 10 • History of check fraud. 4 • Marcus’s personal relationship with Jones bringing certain advantages. 3 • Suddenly didn’t remember issues discussed with Dr. Majka. 3 • Changed employees’ times even after he was no longer employed by

Acme. 3 • He did poorly during the cross-examination. 2 • Marcus had known about the scam. That’s wrong. • That he was being racially treated and his job position also was affected. 1 • Knew it was a violation. 1 • Caught in too many lies. 1 • The adjustments that were not authorized. 1 • Willfully using someone else’s information. 1 • That he wasn’t completely honest. 1 • Shady character. 1 • When it showed he signed a form out for Jane. 1 • None, no response. 2



What is one question you have about Marcus Turner’s testimony?

Frequency• Why did he change time for others to gain falsely? 6 • Why did he falsify the application? 4 • Are the time documents secured, or can they be easily altered and

accessed? 2 • How many times did he change things for friends? 2 • Why didn’t Jones speak up and go to bat for you? 2 • If uncomfortable, why not speak with his supervisor about it? 2 • Why did he lie about being on prescription drugs previously? 1

• How could you know what time people came into work? 1 • Why didn’t anyone have a meeting with Mr. Jones and other VPs? 1 • Would a statement by a manager or supervisor having to sign off on

changes you make be in the Acme agreement handbook? 1 • Why change times without written documentation even though it was

past practice with others? 1 • Why wasn’t Sarah investigated? 1 • Sooner or later the truth will come out. You started to see how Robert

Jones becoming, so Ps and Qs were supposed to be up there. 1 • Why did you wait to sue Jones and Acme after you were fired? This

could have been settled in HR. 1 • Why did Acme hire him if they know his history? 1 • Does Gina still work there, or did she get fired? 1 • What is his educational background and work experience 1 • If Marcus claimed to suffer emotional harm, why did he never get help? 1 • Why was it so hard to get written approval for changes even when your

supervisor was supposed to be sitting right next to you? 1 • Need details of his past criminal history. 1 • Is he dating Jane Doe now, or was he at the time he helped her with the

job? 1 • Did he or Ms. Baynes get any money from the scam? 1 • Is it alright to break the company’s rules to help others gain? 1 • None, no response. 3



Post-Plaintiff Evidence Ratings


Frequency Percent Definitely the Plaintiffs (the workers) 1 2.6 Probably the Plaintiffs (the workers) 10 25.6 Probably the Defendant (Acme) 22 56.4 Definitely the Defendant (Acme) 6 15.4

Total 39 100.0

120. Based on what you have heard so far, how strong is your desire or feeling that the Plaintiffs,

the workers, should win this case? 0= Very weak desire / 10= Very strong desire Frequency Percent

0.00 1 2.6 1.00 1 2.6 2.00 3 7.7 3.00 16 41.0 4.00 8 20.5 5.00 1 2.6 6.00 3 7.7 7.00 4 10.3 8.00 2 5.1

Total 39 100.0 Mean= 3.9



2.00 2 5.1 3.00 1 2.6 4.00 4 10.3 5.00 10 25.6 6.00 5 12.8 7.00 7 17.9 8.00 9 23.1 10.00 1 2.6

Total 39 100.0 Mean= 6.0





0.00 3 7.7 1.00 4 10.3 2.00 8 20.5 3.00 6 15.4 4.00 4 10.3 5.00 2 5.1 6.00 4 10.3 7.00 3 7.7 8.00 3 7.7 10.00 2 5.1

Total 39 100.0 Mean= 3.9



0.00 3 7.7 1.00 1 2.6 2.00 7 17.9 3.00 8 20.5 4.00 4 10.3 5.00 5 12.8 6.00 3 7.7 7.00 5 12.8 8.00 2 5.1 10.00 1 2.6

Total 39 100.0 Mean= 4.1



1.00 2 5.1 2.00 7 17.9 3.00 4 10.3 4.00 7 17.9 5.00 5 12.8 6.00 5 12.8 7.00 5 12.8 8.00 1 2.6 9.00 1 2.6 10.00 2 5.1

Total 39 100.0 Mean= 4.7





0.00 3 7.7 2.00 2 5.1 3.00 4 10.3 4.00 5 12.8 5.00 5 12.8 6.00 10 25.6 7.00 7 17.9 8.00 2 5.1 10.00 1 2.6

Total 39 100.0 Mean= 5.0



0.00 8 20.5 1.00 4 10.3 2.00 2 5.1 3.00 7 17.9 4.00 8 20.5 5.00 4 10.3 6.00 4 10.3 8.00 1 2.6 9.00 1 2.6

Total 39 100.0 Mean= 3.1



0.00 9 23.1 1.00 2 5.1 2.00 2 5.1 3.00 9 23.1 4.00 4 10.3 5.00 4 10.3 6.00 5 12.8 7.00 2 5.1 10.00 2 5.1

Total 39 100.0 Mean= 3.4



Post-Witness: Nancy Werner

128. On each of the following characteristics, please rate Nancy Werner on a scale of "0" to "10," in which "0" means "Not at all" and "10" means "Completely." CREDIBLE


Total 39 100.0 Mean= 7.5

129. LIKABLE


Total 39 100.0 Mean= 8.1

130. TRUTHFUL


Total 39 100.0 Mean= 7.7



131. NERVOUS


Total 39 100.0 Mean= 2.9

132. KNOWLEDGEABLE


Total 39 100.0 Mean= 8.1


0=Not at all / 10= Completely Frequency Percent 5.00 1 2.6 6.00 5 12.8 7.00 3 7.7 8.00 5 12.8 9.00 6 15.4 10.00 19 48.7

Total 39 100.0 Mean= 8.7

134. EVASIVE


Total 39 100.0 Mean= 2.5



135. How effective was Ms. Werner in helping you understand the case?


Total 39 100.0 Mean= 7.6

136. How successful was Ms. Werner in presenting her side of the case?


Total 39 100.0 Mean= 8.0

137. How did Ms. Werner’s testimony affect your decision in this case?


Total 39 100.0



Open-Ended Responses, Post-Witness: Nancy Werner What particular piece of evidence do you think is the strongest part of Nancy Werner’s testimony? Frequency• The printed documentation that she had of the employees participating in

the scam. 13 • That she discovered the scam. 11 • The fact that she reported the trouble right away to management. 8 • Confirming Jane Doe’s negative attitude. 3 • Her overall knowledge of policies and procedures. 2 • Her whole testimony. 1 • Nancy got the plaintiffs to admit to the scam. 1 • Spoke with conviction and purpose about her relationship and

conversation with employees about action on. 1 • Very consistent with everything she said even when she stated she told

them how to do it properly. 1 • Her attitude. 1 • Maifeld called her over. 1 • That she was very sure of what she said. 1 • Appears to have a good memory of incidents. 1 • Her thoughts and thinking out the questions. 1 • She worked at Acme for eight years 1 • None 1



What particular piece of evidence do you think is the weakest part of Nancy Werner’s testimony? Frequency • That she didn’t do or say anything to anyone regarding Ms. Jones’

complaints of harassment. 7 • Her answer regarding her use of the same practice as the plaintiffs. Not

certain she did not do the same. 3 • Where were the receipts? Why were they not presented? 3 • She still works there. Could indicate favor towards plaintiffs. 2 • That she did the same thing. 2 • Saw no weakness in her testimony. 2 • The corporate office didn’t consult with her. She was not allowed to

participate in investigation. 2 • Could not remember exact number of times the plaintiffs stole, but really

after four years, would not be expected to. 1 • Why did he ask her if it was OK? 1 • I don’t think she was not telling the truth. 1 • Proof that the plaintiffs were doing the scam multiple times. 1 • Little wordy, just a little, need to elaborate on instances. 1 • Knowing witnesses were shown how to do carry out the scam as an

example. 1 • None, no response. 13



What is one question you have about Nancy Werner’s testimony? Frequency • Why was she not included in the investigation process? 3 • Can records be pulled to prove findings in her investigation? 3 • Does she think Robert Jones is racist? 2 • Credible witness. No questions. 2 • Did she ever do the same thing as the plaintiffs? 2 • Why didn’t she address the issues pertaining to Jane Doe’s claims of

harassment? 2 • Why still did you not evaluate these people after hearing the one-sided

story? 1 • Why did she start the investigation after the verbal warning without

giving them a chance to correct their error in judgment? 1 • Working in that environment. 1 • Did she warn any other employees (plaintiffs) regarding unauthorized

activity? 1 • Why hasn’t anyone checked her employee record to see her activity? 1 • Did she ever give permission to let employees do this? 1 • Was it because you get a higher paid job that you didn’t need your

friends anymore? 1 • Why is it OK for her but not the employees? 1 • How many complaints did she know of that were about white workers

that were left with nothing done? 1 • How do you get into Acme? 1 • For how long and how much money was involved? 1 • None, no response. 14



Post-Witness: Patrick Leveque

138. On each of the following characteristics, please rate Patrick Leveque on a scale of "0" to "10," in which "0" means "Not at all" and "10" means "Completely." CREDIBLE


Total 39 100.0 Mean= 7.7

139. LIKABLE


Total 39 100.0 Mean= 6.8

140. TRUTHFUL


Total 39 100.0 Mean= 7.3



141. NERVOUS


Total 39 100.0 Mean= 3.8

142. KNOWLEDGEABLE


Total 39 100.0 Mean= 7.9



Total 39 100.0 Mean= 8.5

144. EVASIVE


Total 39 100.0 Mean= 2.7



145. How effective was Mr. Leveque in helping you understand the case?


Total 39 100.0 Mean= 8.1

146. How successful was Mr. Leveque in presenting his side of the case?


Total 39 100.0 Mean= 7.9

147. How did Mr. Leveque’s testimony affect your decision in this case?


Total 39 100.0



Open-Ended Responses, Post-Witness: Patrick Leveque What particular piece of evidence do you think is the strongest part of Patrick Leveque’s testimony? Frequency • Recovered documents from shipping history in computer. 14 • His thorough investigation and research. 8 • The duplicate receipts. 4 • Patrick investigated all employees the same without regard to race or

position. 3 • Comfortable and sure of himself. 2 • 165 employees’ records were reviewed. 1 • That he started all of this when Jones wasn’t in the branch for that

week. 1 • With Acme for seven years. 1 • I would ask why they questioned some employees and not others. 1 • His actual knowledge of the interviews. 1 • Consistently delivered through entire testimony. 1 • Remember only the things that he wanted to remember. 1 • How he went to corporate with his information and they told him

where to go from there. 1 • None, no response. 1

What particular piece of evidence do you think is the weakest part of Patrick Leveque’s testimony? Frequency • What determined further investigation of individuals and why? He did

not really say why some people were interviewed and others were not. 11 • Not looking deeper into management’s history. 6 • Why Jones was not investigated. 3 • Why Smythe was not investigated. 2 • Why Helm was not investigated. 2 • Not having a lot of information. 2 • Not remembering things about the people who were working with him,

like numbers. 2 • I think the investigation was weak. 1 • Lack of proper training. 1 • That this was not only a racial thing. 1 • Only 10 people were interviewed. That seems pretty low. 1 • That he let other people help in the interviews. 1 • The fact that he didn’t interview his friends. 1 • By evaluating all of his own evaluations, he wasn’t fair with all of the

cashiers, otherwise not too much. 1

• Mary Baynes and Marcus Turner had a pattern of improper behavior. 1 • None, no response. 6



What is one question you have about Patrick Leveque’s testimony? Frequency • Why did they not investigate all employees? 12 • Why did management get set aside in this investigation? 6 • Why was an independent investigation conducted when examining

management members’ records? 1 • What other independent counsel could have been made (e.g. FBI, local

police authorities)? 1 • I am wondering what part management played in the investigation. 1 • Can it be traced back to a particular person? 1

• Why did it take so long? 1 • What was the ratio between what spending and their income? 1 • Was this happening on days the plaintiffs were working? 1 • Why doesn’t Acme have trained Stop Theft people? 1 • What did corporate do with the info from the investigation? 1 • How can you forget about your boss’s information when you seem to

know everyone else’s? 1 • Did he do anything that might have been questionable? 1 • How much more were Jane, Marcus and others getting? Was it a lot

more? 1 • What was the criteria for questions? 1 • In his seven years at Acme, has he ever come across a similar scam in

the past? If so, when and how was it handled? 1 • Do you feel that these employees are lying? 1 • Were there still scam events taking place after Werner brought it to the

employees’ attention? 1 • None, no response. 7



Post-Witness: Chris Helm

148. On each of the following characteristics, please rate Chris Helm on a scale of "0" to "10," in which "0" means "Not at all" and "10" means "Completely." CREDIBLE


Total 39 100.0 Mean= 5.6

149. LIKABLE


Total 39 100.0 Mean= 5.0

150. TRUTHFUL


Total 39 100.0 Mean= 5.8



151. NERVOUS


Total 39 100.0 Mean= 3.9

152. KNOWLEDGEABLE


Total 39 100.0 Mean= 7.0



Total 39 100.0 Mean= 7.8



154. EVASIVE


Total 39 100.0 Mean= 5.5

155. How effective was Ms. Helm in helping you understand the case?


Total 39 100.0 Mean= 6.6

156. How successful was Ms. Helm in presenting her side of the case?


Total 39 100.0 Mean= 6.3



157. How did Ms. Helm’s testimony affect your decision in this case?


Total 39 100.0



Open-Ended Responses, Post-Witness: Chris Helm What particular piece of evidence do you think is the strongest part of Chris Helm’s testimony? Frequency • Documentation. 15 • Seemed very knowledgeable about her job. 4 • The time changes. 4 • Seemed credible and confident. 4 • Sought guidance from corporate office. 2 • She seemed involved in evidence gathering. 2 • Marcus used her identity without her permission. 2 • Turner’s violations. 2 • The audit report Chris was secretly keeping tabs on. 1 • She’s sticking to her story. 1 • That she felt the interviews were conducted fairly. 1 • The fact that she had no experience or knowledge on how to use the

computer system. 1 • Race was not an issue. All employees were investigated. 1 • Eight years at Acme, investigated every employee. 1 • None, no response. 4



What particular piece of evidence do you think is the weakest part of Chris Helm’s testimony? Frequency • Why other employees were not investigated more closely. 10 • Keeping own documentation on a coworker. 5 • Seems to have had a personal problem with Marcus Turner. 4 • Not going to Turner earlier about the time entries. 3 • Obvious dislike of Mr. Jones. 2 • Compiled data with help of another employee to terminate Marcus

when scam didn't work. 1 • Proving that Marcus Turner entered Sarah Drake and Chris Helm’s

names into the time sheets. 1 • Only one white person interviewed for scam. 1 • Lack of impartialness. 1 • Presentation was weak. Provided weak excuses why people were

interviewed (profiling). Seem to change testimony. 1 • Claimed to have no knowledge of the date in question. 1 • Alleged racial comment was not racist in any way! Changes of 3 to 4

minutes not a big deal. Marcus Turner said time changes were made all the time. I believe him. 1

• Slightly covering up Mr. Robert Jones. 1 • She did not answer questions directly 1 • She only remembers what she wants to. 1 • I feel that Drake and Helm were in total cahoots! 1 • The envelope with further evidence not presented in the beginning. 1 • None, no response. 5



What is one question you have about Chris Helm’s testimony? Frequency • Why were you and others not questioned during the investigation? 9 • Why not approach Turner before approaching management? 6 • Why did Marcus have your number for the computer? 2 • Why didn’t she make a formal complaint if Turner was having difficulty

on the job with discrimination issues? 1 • Why didn’t you know the computer system? • Why were you so arrogant during redirect? 1 • Are there any time where Mr. Turner used their identity when either

Chris Helm or Sarah Drake was not there? 1 • What are her true feelings are about Jane Doe’s work ethics? 1 • Why didn’t you trust Marcus Turner? 1 • Why are you not telling the truth about the comment? 1 • Why didn’t she come forth soon with the stuff in file? 1 • Why were they watching Marcus Turner? 1 • Did Robert harass certain employees? Did she see any evidence of

racial discrimination? 1 • What gives her the right to speak for other people? 1 • How’s the new branch? Level of education? 1 • So far, I do find Acme guilty of discrimination. However, the firing of

Marcus Turner is questionable! 1 • Do you feel the employees should have been fired? 1 • Why didn’t independent counsel review the records of management

personnel in regard to the scam? 1 • None, no response. 8



Post-Witness: Robert Jones

158. On each of the following characteristics, please rate Robert Jones on a scale of "0" to "10," in which "0" means "Not at all" and "10" means "Completely." CREDIBLE


Total 39 100.0 Mean= 5.4

159. LIKABLE


Total 39 100.0 Mean= 5.2

160. TRUTHFUL


Total 39 100.0 Mean= 5.8



161. NERVOUS


Total 39 100.0 Mean= 5.4

162. KNOWLEDGEABLE


Total 39 100.0 Mean= 7.0



Total 39 100.0 Mean= 7.4



164. EVASIVE


Total 39 100.0 Mean= 5.2

165. How effective was Mr. Jones in helping you understand the case?


Total 39 100.0 Mean= 7.3

166. How successful was Mr. Jones in presenting his side of the case?


Total 39 100.0 Mean= 6.0

167. How did Mr. Jones’ testimony affect your decision in this case?


Total 39 100.0



Open-Ended Responses, Post-Witness: Robert Jones What particular piece of evidence do you think is the strongest part of Robert Jones’ testimony? Frequency • His record of promoting minority employees. 13 • Admitted to racist comments. 10 • His honesty. 5 • Wanted to make the branch better. 2 • Documented paper trail of investigation. 2 • Was fair in promoting his staff. 2 • Followed company policy at every step. 1 • Robert only believes what he wants to about himself. He forgets about

all the names he called everyone. 1 • Time frame and knowledge. 1 • Direct from lawyers went well. Cross was weak without direction. 1 • He was very sure of himself 1 • That he was at Acme for 11 years. 1 • Inappropriate relationship with Lydia, who is now his wife. 1 • None, no response. 4



What particular piece of evidence do you think is the weakest part of Robert Jones’ testimony? Frequency • He should not have made the racist statements. 10 • Inappropriate relationship with Smythe. 3 • His temper. 2 • He is racist/lacks racial sensitivity. 2 • Robert admitted that he made racial comments. 2 • Letter to Kelley. 2 • Jones seems evasive and doesn’t recall much. 2 • He should have taken sensitivity training beforehand. 1 • His honesty. 1 • Jones probably used the wrong choice of words in conversation with

Mr. Turner and possibly other employees. However, I don’t believe he is guilty of any wrongdoing. 1

• Proving what he said has something to do with why the employees were fired. 1

• Very effective testimony! 1 • Employment agreements. 1 • Was unsure on cross about different items (i.e., questions on

interviews). 1 • His lies. He does not think he called these employee names. 1 • The overall attitude of Acme management. 1 • He was fired from Acme once before. 1 • I feel Mr. Jones did make many of said comments and was not held

accountable for them. However, there is no documentation of it, just hearsay. 1

• That Lydia Smythe was his girlfriend and now wife. It seems that his girlfriend could have gotten an advantage to get a promotion. 1

• That he simply took Helm’s and Drake’s word instead of investigating further. 1

• Letter to Powers that suggests that investigation has racial overtones. Comment invokes hostile environment. Upper management condoned behavior by not correcting inappropriate comments. 1

• About the comments – he had made them or people said he made them, and he had no answer about that but it seems like the comments came from somewhere. 1

• To me, Robert was trying to upgrade black employees. 1 • Those words he chose to say. 1 • No response/I don’t know. 4



What is one question you have about Robert Jones’ testimony? Frequency • Why were you removed from the Chicago branch? 4 • Did you receive any sensitivity training? 3 • Does termination seem appropriate? 1 • Was he also gender biased? 1 • Too trusting in the beginning. 1 • Why he was not involved or his girlfriend. • Time frames about what was being said at times. 1 • Do you feel that you should be reprimanded? 1 • Was he playing favorites with Marcus Turner? 1 • I don’t understand why Sarah was not questioned and only Marcus

Turner was. 1 • Why all the racial slurs? 1 • Do you think it’s fair if the black folks say we need to get rid of old men

gray hair? 1 • If you had to do this all over again, what would you do differently? 1 • Did you ever consider that Helm wanted to get rid of Turner so that

Sarah could have the job? 1 • What have you learned from this? 1 • Why didn’t you give these people the same treatment that Acme gave

you? I think you’re a liar. 1 • Did people really take what he said out of context? It sounded clear

enough to me. 1 • Why did he recommend termination for Turner? 1 • What is your level of education and your HR training? 1 • Why did Turner leave the police department? 1 • Did Chris Helm have any additional information on other employees

aside form Turner? 1 • What information was found on Drake? 1 • Is there any previous history of racial misconduct reported? 1 • Have you ever yelled at Ms. Doe in front of members and employees? 1 • Why does he still work for Acme? 1 • Why does upper management condone the comments and you think that

they are OK? 1 • None, no response. 10



Reactions to Defense Witnesses: Day One



Total 39 100.0



0.00 3 7.7 1.00 2 5.1 2.00 8 20.5 3.00 4 10.3 4.00 6 15.4 5.00 3 7.7 6.00 1 2.6 7.00 8 20.5 8.00 2 5.1 10.00 2 5.1

Total 39 100.0 Mean= 4.3



0.00 3 7.7 1.00 1 2.6 2.00 2 5.1 3.00 4 10.3 4.00 3 7.7 5.00 2 5.1 6.00 5 12.8 7.00 5 12.8 8.00 7 17.9 9.00 4 10.3 10.00 3 7.7

Total 39 100.0 Mean= 5.8





0.00 6 15.4 1.00 5 12.8 2.00 4 10.3 3.00 4 10.3 4.00 4 10.3 5.00 3 7.7 6.00 4 10.3 7.00 3 7.7 8.00 3 7.7 9.00 1 2.6 10.00 2 5.1

Total 39 100.0 Mean= 3.9



0.00 4 10.3 1.00 3 7.7 2.00 5 12.8 3.00 8 20.5 4.00 2 5.1 5.00 4 10.3 6.00 2 5.1 7.00 3 7.7 8.00 4 10.3 10.00 4 10.3

Total 39 100.0 Mean= 4.4



0.00 2 5.1 1.00 2 5.1 2.00 9 23.1 3.00 4 10.3 4.00 5 12.8 5.00 1 2.6 6.00 3 7.7 7.00 8 20.5 8.00 2 5.1 9.00 1 2.6 10.00 2 5.1

Total 39 100.0 Mean= 4.5





0.00 8 20.5 1.00 1 2.6 2.00 2 5.1 3.00 7 17.9 4.00 5 12.8 5.00 3 7.7 6.00 4 10.3 7.00 4 10.3 8.00 3 7.7 9.00 1 2.6 10.00 1 2.6

Total 39 100.0 Mean= 4.0



0.00 12 30.8 1.00 3 7.7 2.00 2 5.1 3.00 8 20.5 4.00 2 5.1 5.00 5 12.8 6.00 2 5.1 7.00 1 2.6 8.00 2 5.1 9.00 1 2.6 10.00 1 2.6

Total 39 100.0 Mean= 3.0



0.00 9 23.1 1.00 5 12.8 2.00 2 5.1 3.00 5 12.8 4.00 3 7.7 5.00 5 12.8 6.00 1 2.6 7.00 3 7.7 8.00 3 7.7 9.00 1 2.6 10.00 2 5.1

Total 39 100.0 Mean= 3.6



Post-Witness: Jim Cane

177. On each of the following characteristics, please rate Jim Cane on a scale of "0" to "10," in which "0" means "Not at all" and "10" means "Completely." CREDIBLE


Total 39 100.0 Mean= 8.3

178. LIKABLE


Total 39 100.0 Mean= 7.5

179. TRUTHFUL


Total 39 100.0 Mean= 7.9



180. NERVOUS


Total 39 100.0 Mean= 2.6

181. KNOWLEDGEABLE


Total 39 100.0 Mean= 7.7



Total 39 100.0 Mean= 8.6



183. EVASIVE


Total 39 100.0 Mean= 2.7

184. How effective was Mr. Cane in helping you understand the case?


Total 39 100.0 Mean= 7.1

185. How successful was Mr. Cane in presenting his side of the case?


Total 39 100.0 Mean= 7.9

186. How did Mr. Cane’s testimony affect your decision in this case?


Total 39 100.0



Open-Ended Responses, Post-Witness: Jim Cane What particular piece of evidence do you think is the strongest part of Jim Cane’s testimony? Frequency • Appeared knowledgeable, professional, and calm. 6 • The process he followed during questioning was the same each time. 4 • He was called in from another location to do interviews, therefore

unbiased. 4 • Admissions made by employees during interview. 3 • The fact that he was an outside person and had no reason to dislike or

target the plaintiff. 3 • Former police officer. Very calm. Remembered specific details of the

interviews. 3 • His testimony is consistent with that of others. 2 • His sincerity of not knowing what was going to happen to the employees

after the interview. 2 • Interviews with employees were held in a nonhostile atmosphere.

Employees could leave if they wanted. 2 • The testimony that addressed the tone of each employee meeting. 1 • Jim came into the investigation knowing one of the employees and only

a few managers. Jim never made any of the employees write statements; they chose to. 1

• I think he was used by Jones and Helm, but he was just doing his job. 1 • Only that he worked at Acme eight years. He was the main interviewer. 1 • The people who were interviewed wrote incriminating statements about

themselves. 1 • That he had no problems with any of the plaintiffs giving their

statements. 1 • About the demeanor of Marcus Turner in the questioning. 1 • Whole testimony. 1 • That he (Cane) did most of the talking during the interviews. 1 • The paperwork he had regarding the scam. 1 • None, no response. 3



What particular piece of evidence do you think is the weakest part of Jim Cane’s testimony? Frequency • That he hadn’t a clue about what was really involved until the meeting. 5 • Got promoted just after the firings. 4 • Whether or not Jones was acting in a brash manner during the

interviews. 3 • Disciplinary steps are weak according to employee handbook. Most

companies put employees on probationary hours prior to termination. 1 • He was chosen for lead interviewer due to his closer proximity to the

Chicago branch rather then his racial background. 1 • Getting the interview confused. 1 • Mr. Turner brought in paperwork to attest to writing checks being legit. 1 • Doesn’t recall Jones telling the workers that they could have left the

interview room whenever they wanted to. 1 • That he put in for a job at the branch afterward. 1 • That he couldn’t remember some things. 1 • His demeanor. 1 • That he was not bothered by the alleged racial comment. 1 • I think Jones had talked to him about the job. 1 • No documentation regarding this investigation. 1 • None, no response. 18



What is one question you have about Jim Cane’s testimony? Frequency

• Had he ever put in for a manager job before the investigation? 2

• Stop Theft, police background, why not a police officer? 1

• Was there a set of questions that were manually collected for each employee that was interviewed by both groups? 1

• For how long and how many others did he interview, and did he ask all the questions? 1

• Of the nine people interviewed, how many voluntarily gave statements? 1

• Why was Mr. Jones with you on your decision about the people who were fired? 1

• What was the demeanor of each employee as they were counseled? 1

• What other managers did Jim Cane know? 1

• What would you have asked them? 1

• Were employees misled about the outcome of the interview? 1

• Did he get the job at the Chicago branch? 1

• Why did he think he was called in to participate? 1

• A little information regarding the investigation, need more details. 1

• I want to know if he thinks he was asked to conduct interviews because of his race. 1

• Would his branch have done the same process if it was at his branch? 1

• Did Jones share any pertinent information during the questioning time? 1

• What were his thoughts on only white people being investigated? 1

• Wondering why he was not bothered by the relationship between Mary and him and what that had to do with their case. 1

• Jim, were you interviewed like all the others to make it fair? 1

• Did you help Patrick Leveque research all the employees? 1

• Did he ever feel he was being used by Acme? 1

• None, no response. 18



Post-Witness: Harold Hanson

187. On each of the following characteristics, please rate Harold Hanson on a scale of "0" to "10," in which "0" means "Not at all" and "10" means "Completely." CREDIBLE


Total 39 100.0 Mean= 7.6

188. LIKABLE


Total 39 100.0 Mean= 7.0

189. TRUTHFUL


Total 39 100.0 Mean= 7.6



190. NERVOUS


Total 39 100.0 Mean= 3.4

191. KNOWLEDGEABLE


Total 39 100.0 Mean= 7.9



Total 39 100.0 Mean= 8.7

193. EVASIVE


Total 39 100.0 Mean= 3.2



194. How effective was Mr. Hanson in helping you understand the case?


Total 39 100.0 Mean= 7.9

195. How successful was Mr. Hanson in presenting his side of the case?


Total 39 100.0 Mean= 7.4

196. How did Mr. Hanson’s testimony affect your decision in this case?


Total 39 100.0



Open-Ended Responses, Post-Witness: Harold Hanson What particular piece of evidence do you think is the strongest part of Harold Hanson’s testimony? Frequency • His termination decisions were made without knowing the employees’

race. 10

• Maifeld’s history. 3 • Written statements suggest the plaintiffs are guilty. 3 • Confirmed all evidence previously presented; his testimony was

consistent. 3 • Jones’ conversations with Doe and attempt to help her change. 3 • Doe’s poor work habits. 2 • He heard the comment and did not reprimand him. 2 • He had to authorize all employee terminations. 2 • Received no phone calls from employees regarding discrimination. 2 • His regional boss confirmed the termination. 2 • Jones forwarding important info to Hanson following company policy. 1

• He’s straightforward and articulate. He counseled Jane Doe with common sense. He also was honest regarding the stupid remark Robert Jones said. 1

• Knowledgeable about facts and policy. 1 • Made a strong case against Jane Doe, Maifeld, and Turner. 1 • He was arrogant in answering the questions. 1 • Harold overlooks all problems before firing. 1 • No verbal comments about Jones documenting or harassing employees. 1 • Very calm. Will try to sway the jurors. He sounds like someone I

would not trust. 1 • That he told Jones to make sure everyone was investigated in the scam

problem. 1 • No one called to complain about Jones while he was at the branch. 1 • That he did not like Jones’ comment, and he let him know that. 1 • High position must make well thought-out decisions before firing

people. 1 • Explanation of termination process and investigation of scandal-proof

documentation. 1 • He seemed to tell the truth about Jones’ poor use of words. 1 • That he talked to Jane Doe. 1 • That Mr. Turner falsified records. That employee is very difficult to get

along with. 1 • He seems to be telling the truth. 1 • Jane Doe’s poor working habits. Not customer friendly. 1 • The paperwork on Brent Maifeld’s transactions. 1 • He worked for eight years. He recommended that Jane Doe be fired. 1 • No response. 1



What particular piece of evidence do you think is the weakest part of Harold Hanson’s testimony? Frequency • Jones should have been reprimanded for his racial remarks. 17 • He was not aware of what was going on at his branch; did not know all

African-Americans were being fired on the same day. 3 • Not investigating further into the racial comments that were made. 2 • Hanson heard and knew about the comments Jones said, but Hanson did

nothing. 1 • All VIPs not responding to the inappropriate words used by a manager

toward any race. 1 • That he should have gone to HR. Robert told him about what he said. 1 • Relationship not good for running the branch. 1 • Harold should have said something about the comment when it came

out. All the bosses were there at the time. 1 • Not telling Robert to shut up when he heard the comment. 1 • Jones and he are in disagreement about when they talked about the

comment. 1 • It seems like no one knows about the remarks that were made about

people that were fired. 1 • Never went further with racial undertones. Changed remarks from

deposition. 1 • That he didn’t know if his boss heard what Jones said. 1 • He didn’t tell Robert Jones that his comment was stupid and

inappropriate as he said. 1 • He thought Jones’ comments were racist remarks. 1 • Acknowledged that Jones said that he could sell more at the branch.

This comment was not reported up the ladder because senior management was in attendance. Scam documents were reviewed by only Hanson and Jones. 1

• Did not have a clue concerning the company discrimination policy. 1 • Racial comments were inappropriate, and nothing was done. Arrogant.

It was stupid and embarrassing and wasn’t reported. 1 • The comment was a bad choice of words by Robert Jones. However,

stated Robert was not a racist. 1 • That he didn’t take any action regarding Jones’ racist comment. If he

was aware that there were counseling notices for Doe, did she not complain at all of discrimination? 1

• No response, I don’t know at this time. 6



What is one question you have about Harold Hanson’s testimony? Frequency • Why wasn’t Jones reprimanded or terminated for his inappropriate

comments? 18 • Why wasn’t the HR department involved? 3 • Why wasn’t Jones reprimanded concerning his inappropriate affair with

Smythe? 2 • The nature of Jane’s call to Hanson. 2 • Where is Cindy Stukey; is she still employed with Acme? 1 • Why was Lydia Smythe’s name on all of the counseling notices as a

witness? 1 • Unclear about why he didn’t push for Turner’s firing due to the

problem. 1 • Do you think race played any part in the investigation on either the

payroll subjects? 1 • Did Jane ever get Denise to use the restroom before she walked off like

that? It seems like it was a problem before. 1 • About the racial comment. When exactly did Robert Jones tell Mr.

Hanson about the comment? Plaintiff’s attorney is very confusing; he jumps around a lot. 1

• How often is someone recommended for firing if you don’t allow them to be fired? 1

• What was his role in removing Jones? 1 • Why he didn’t ask his boss if he heard Jones’ comments. 1 • Were the plaintiffs experienced compared to those fired? Did he know

or get an explanation? 1 • Did he know of any other employees besides the nine or 10 who had the

similar transactions? 1 • Why after the write-ups was Jane Doe still employed? This was just

too long (many chances). 1 • Are you doing your job? 1 • None, no response. 6



Post-Witness: David Gumphrey

197. On each of the following characteristics, please rate David Gumphrey on a scale of "0" to "10," in which "0" means "Not at all" and "10" means "Completely." CREDIBLE


Total 39 100.0 Mean= 7.7

198. LIKABLE


Total 39 100.0 Mean= 6.8

199. TRUTHFUL


Total 39 100.0 Mean= 7.9



200. NERVOUS


Total 39 100.0 Mean= 3.3

201. KNOWLEDGEABLE


Total 39 100.0 Mean= 7.2



Total 39 100.0 Mean= 8.5

203. EVASIVE


Total 39 100.0 Mean= 3.0



204. How effective was Mr. Gumphrey in helping you understand the case?


Total 39 100.0 Mean= 6.9

205. How successful was Mr. Gumphrey in presenting his side of the case?


Total 39 100.0 Mean= 7.4

206. How did Mr. Gumphrey’s testimony affect your decision in this case?


Total 39 100.0



Open-Ended Responses, Post-Witness: David Gumphrey What particular piece of evidence do you think is the strongest part of David Gumphrey’s testimony? Frequency • That he treated the facts in the files, not the race of the individuals. 14 • That he knows all the facts. 3 • The alleged racial statement was said in a way to make a point. 1 • Documents and evidence. 1 • Reviewed reports. Discussing his duties. 1 • He wasn’t aware of the comment. He didn’t know/wasn’t aware that he

had let an incompetent person run the branch. 1 • Explanation of the reason why he didn’t take action against Robert on the

remark. 1 • Jones didn’t mean for the comment the way it was taken. 1 • Records on sales and employee action as told to him by Hanson, Jones

prompted dismissal. 1 • David’s interview. 1

• That on walking through, you would be making comments on things. 1 • He has a high-level job and knows how a company should be run, not for

personal gain, but for success. 1 • Forthcoming. Reviewed all of the termination process. 1 • Changing documents is taking money from the company. People white

or black, if they’ve done something wrong, it’s wrong. 1 • His defense of the comments. 1 • Admitting that he said the comments in a sworn deposition by Jones.

Was aware that Jones made “stupid” comments. 1 • David had to approve termination of employees who were with the

company more than two years. This means it went through many people, not just Jones. 1

• Overheard Jones’ racial comment. 1 • He made his point on the comment referring to selling product, making it

like it was a good-selling item with him, clarifying it was not so much a racial comment. 1

• He approved Jane Doe’s termination. He wanted the investigation done on everyone working in the branch. 1

• His role in this incident. 1 • Use of chain of command to investigate problem and act. 1 • He told Robert S. to investigate all in the scam and gave a chance for

them to explain purchases. 1 • None, no response. 1



What particular piece of evidence do you think is the weakest part of David Gumphrey’s testimony? Frequency • David overlooked racial statements, insensitive to the comments. 7 • Did nothing about the racial comments. 5 • He relied upon Hanson, Jones and other managers to make his decision. 5 • Racist comments that he made. 4 • Unaware of comments by Jones. 3 • Does not seem clear on facts, lack of information. 2 • That he did not review his records himself for the scam problem seeing

jobs were on the line. 1

• Some white employees’ records histories were worse than the plaintiffs. 1 • That he only knew what told. 1 • Claimed no one told him the people/employees in question were mostly

African-Americans. Although in testimony, Jones thought it could pose an issue. 1

• Lightly restated what Hanson already told us. 1 • His knowledge of the handbook. 1 • I don’t understand how he wasn’t told about the comment. 1 • None, no response. 7



What is one question you have about David Gumphrey’s testimony? Frequency • Why “higher ups” don’t get more involved in employee issues. 3 • Why did he not say something to Jones if he thought it was a stupid thing

to say? 2 • Why Jones, Smythe and Helm were not investigated further. 2 • How, if at all, are employees trained in racial and sexual harassment? 1 • Did he not know that Robert was a possible racist and racially harassing

the employees? 1 • Will you let statements like this happen again? 1 • Why didn’t you look at the paperwork yourself? 1 • Do they ever do follow-up on firings to see a racial impact? 1 • Would he have Jones remain if he had complaints from employees? 1 • Why did it take so long to demote/dismiss Jones concerning his

relationship with Smythe? 1 • Acme has been more than fair with their employees. Facts forced out

these employees, not discrimination. 1 • How many black employees were fired in a branch per year? 1 • What is being done about Jones? 1 • Why don’t you have clarity on the details? 1 • Lack of info on verification of excessive rebate of those not fired. 1 • Why weren’t the attendance issues in Doe’s file mentioned? Only her

behavior in the notices were mentioned. 1 • Would you have asked more questions? 1 • Why wasn’t an outside source used for managers’/supervisors’

investigation? 1 • Why did you allow Jones back at Acme? 1 • What is Acme’s discrimination policy, and did he follow it? 1 • None, no response. 15



Post-Witness: Lance Bamenda

207. On each of the following characteristics, please rate Lance Bamenda on a scale of "0" to "10," in which "0" means "Not at all" and "10" means "Completely." CREDIBLE


Total 39 100.0 Mean= 8.7

208. LIKABLE


Total 39 100.0 Mean= 8.4

209. TRUTHFUL


Total 39 100.0 Mean= 8.6



210. NERVOUS


Total 39 100.0 Mean= 3.0

211. KNOWLEDGEABLE


Total 39 100.0 Mean= 7.5



Total 39 100.0 Mean= 8.2



213. EVASIVE


Total 39 100.0 Mean= 2.1

214. How effective was Mr. Bamenda in helping you understand the case?


Total 39 100.0 Mean= 4.6

215. How successful was Mr. Bamenda in presenting his side of the case?


Total 39 100.0 Mean= 6.8

216. How did Mr. Bamenda’s testimony affect your decision in this case?


Total 39 100.0



Open-Ended Responses, Post-Witness: Lance Bamenda What particular piece of evidence do you think is the strongest part of Lance Bamenda’s testimony?

Frequency • His government background and investigation experience. 13 • Process by which he conducted investigation. 8 • Very articulate and knowledgeable on rebate transitions and

investigation. 3 • Advised Jones on how to conduct investigation. 2 • He seems very smart and organized, professional, and credible. 2 • Explaining how Acme investigates executive abuse among employees. 1 • His consultant presentation concurred with previous testing following

procedure. 1 • All his statements on the policies, knows nothing about anybody. 1 • He may have talked to Patrick Leveque. 1 • Only that he’s been with Acme fifteen years. 1 • None, no response. 10

What particular piece of evidence do you think is the weakest part of Lance Bamenda’s testimony? Frequency • Lack of firsthand knowledge of the people and management involved. 11 • He was not a formal part of the investigation. 4 • Did not recall too much. 4 • Did not review paperwork. 1 • I don’t think this scam has anything to do with the people that were

fired. 1 • Advise everyone plus people with salaries to be investigated. 1 • Was involved in the case hands on. 1 • Not providing him the packet of information to review on this

investigation because he was the lead security officer for Acme. 1 • Did not provide any additional evidence that was not already known. 1 • He looked like an actor from a detective movie. 1 • None, no response. 13



What is one question you have about Lance Bamenda’s testimony? Frequency • Why did he show up here to testify? 4 • Are you usually called into a location for these investigations? 3 • Why wasn’t Bamenda called in to assist as a neutral person with this

issue? 2 • Does he feel the investigation into the scam was thorough? 1 • Would you have done anything different in this case? 1 • He should have stayed with the government instead. 1 • What are legit reasons for multiple records? 1 • No question appeared to be straightforward. 1

• Dispute claims that managers/supervisors had higher level of activity. 1 • Are there printed procedures that are shared with all locations? 1 • Why wasn’t he more aware of problems at the branch? 1 • Is there any way that the reports could be falsified? 1 • Someone I would not believe. 1 • Are there printed procedures that are shared with all locations? 1 • How many Acme employees have been terminated because of this

scam? 1 • Have there been other similar scams at other Acme locations in other

states? 1 • Why he was not involved in the incident. 1 • None, no response. 17



Post-Witness: Kevin Jarret

217. On each of the following characteristics, please rate Kevin Jarret on a scale of "0" to "10," in which "0" means "Not at all" and "10" means "Completely." CREDIBLE


Total 39 100.0 Mean= 7.4

218. LIKABLE


Total 39 100.0 Mean= 7.1

219. TRUTHFUL


Total 39 100.0 Mean= 7.2



220. NERVOUS


Total 39 100.0 Mean= 2.6

221. KNOWLEDGEABLE


Total 39 100.0 Mean= 7.4



Total 39 100.0 Mean= 8.3



223. EVASIVE


Total 39 100.0 Mean= 3.5

224. How effective was Mr. Jarret in helping you understand the case?


Total 39 100.0 Mean= 6.8

225. How successful was Mr. Jarret in presenting his side of the case?


Total 39 100.0 Mean= 7.2

226. How did Mr. Jarret’s testimony affect your decision in this case?


Total 39 100.0



Open-Ended Responses, Post-Witness: Kevin Jarret What particular piece of evidence do you think is the strongest part of Kevin Jarret’s testimony? Frequency • Did not personally conduct terminations, but would authorize all.

5 • Very consistent testimony, well prepared. 3 • Has good understanding of lower chain of command and

responsibilities, knows his handbook (employee). 2 • Has been with the business since day one. Has the most knowledge of

all Acme regulations and operations. 2 • Knowledgeable, easy to understand. 1 • His interpretation of Acme’s rules governing termination. 1 • “We terminate all employees found responsible for this scam.” Robert

was losing control of the Chicago branch. 1 • That the Chicago branch is not the only location to be investigated

seems to back up the policy. 1 • That he was unaware of any of the races of the plaintiffs. 1 • Kevin is one of the first managers with a strong background in the

company. He addressed Mr. Jones to be fair about the problem the branch is going through. 1

• Explaining the reason why Robert Jones was removed from the Chicago branch. 1

• As information and/or evidence was prepared and presented to him, proper action was taken. 1

• Stayed on facts. 1 • Talks strongly about his friends, like Mr. Jones. 1 • How Jones was demoted and why. 1 • The way he answered questions from the Plaintiff’s attorney,

emphasizing intent. 1 • Executive VP, CEO for 22 years. Responsible. 1 • Stated Acme has an open door policy concerning employee abuse of

any kind. Discrimination not allowed in company. 1 • That it is the employees’ responsibility to report any/all

harassment/racist problems within the company when they occur. 1 • Jones’ letter to Jarret shows that Jones apparently thought Jarret heard

him make the inappropriate comment. If Jarret didn’t hear what he said, why didn’t he ask Jones about it? 1

• Jarret was not aware of any racial remarks made by Jones before the lawsuit. He read them in the letters and discovery. 1

• His reasons for demoting Jones for office romance. 1 • None, no response. 9



What particular piece of evidence do you think is the weakest part of Kevin Jarret’s testimony?

Frequency • Jones’ letter. Decided to remove Jones from the Chicago branch after

lawsuit filed. Felt that Jones could no longer focus on running the building under those circumstances. 4

• Did not fire Jones after Jones broke company policy twice (romance and racial comments). 3

• Not directly involved with investigation. 2 • That he didn’t know or hadn’t heard the alleged racial comment. 2 • Not immediately reprimanding Robert Jones for poorly stated

comments. This in particular because of his apparent knowledge of company policies and setting the tone. 2

• His information was hearsay. 1 • Scared to admit that the alleged racial statement was not heard by him. 1 • Never before hearing statements and therefore not being prepared with

answers. 1 • Not knowing about the remarks Mr. Jones made in the letter to Mr.

Jarret. 1 • The serious behavioral notices, the five in question. 1 • That he does not seem to know enough about what happened in the

branch. 1 • That Harold should have told him about the alleged racial remark. 1 • The fact that he didn’t say anything to Jones about the racial comments

before the lawsuit started. Not directly connected to everything that happened in the branch. 1

• Admitting Jones’ improper relationship with Turner and Smythe. Discrimination is prohibited, termination, but nothing was done! 1

• His unawareness of Jones’ comments. 1 • Lack of immediate knowledge of incidents. 1 • Robert Jones’ demotion not being related to lawsuits is hard to believe. 1 • His reasoning behind taking Jones out of the Chicago branch. Says he

never heard Jones’ racist comments. 1 • Jarret moves Jones out of the branch and demotes him. Then he finds

out Jones said some racial things, but does nothing. Even if Jarret did not think they were racial, they were wrong (according to Jarret). 1

• Not knowing more of the events and procedures regarding Jones. 1 • Kevin suggested to Harold Hanson to take Robert Jones out as

manager and remove him from the branch because of the letter, romances and losses hanging over his head because of allegations. 1

• None, no response. 10



What is one question you have about Kevin Jarret’s testimony? Frequency • Why did you help bring back Robert Jones after being fired for

misconduct that is cause for termination? 4 • Why didn’t they fire Jones? 2 • Have there been in the past a large group of terminations of employees

at other locations? 2 • Do you think that Robert Jones should have been looked into more? 1 • Why did he not get more involved with this incident? 1 • Why was he so unconcerned about the comments that were made? 1 • Do you think Robert is a racist? 1 • How many racial complaints have been reported? Why was Jones

terminated in the 1980s? Why was Jones not terminated under “serious misconduct”? 1

• Didn’t Hanson mention the alleged racial comment later on after you all left the Chicago branch? 1

• Kevin, you heard that stuff about the comment, stop back-stepping. 1 • When did Mr. Jones say Kevin Jarret and him were friends before

Acme? Plaintiff’s attorney got me confused again with all of his hopping around. Turn on Acme? 1

• How many employees ever read the Acme “handbook” on any misconduct? 1

• Why was Jones only demoted one spot? 1 • His mind is blank when it comes to important issues. 1 • Why was Jones brought back? 1 • Why did you not send Jones to some sort of rehab after his comments? 1 • Why didn’t he tell Jones on the spot that he can’t make racial

references? Why did you rehire Robert Jones; why do you still employ him? 1

• Are employees aware of the abuse? Is it made clearly known? Can you really overstep protocol to lodge a complaint? Really??? Any leaving on infraction? 1

• Why did you wait to remove Robert Jones from the Chicago branch until after the filed lawsuit? 1

• How did he feel about Jones personally? 1 • If Jarret didn’t hear Jones’ comment and he felt it was inappropriate,

why didn’t he address it properly? 1 • Why didn’t Jones and others have any reparation for their wrong

sayings? 1 • None, no response. 12



Reactions to Defense Witnesses: Day Two



Total 39 100.0



0.00 9 23.1 1.00 4 10.3 2.00 6 15.4 3.00 5 12.8 4.00 1 2.6 6.00 2 5.1 7.00 6 15.4 8.00 4 10.3 10.00 2 5.1

Total 39 100.0 Mean= 3.6



0.00 3 7.7 1.00 2 5.1 2.00 3 7.7 3.00 3 7.7 4.00 1 2.6 5.00 2 5.1 6.00 5 12.8 7.00 1 2.6 8.00 8 20.5 9.00 3 7.7 10.00 8 20.5

Total 39 100.0 Mean= 6.1





0.00 11 28.2 1.00 5 12.8 2.00 4 10.3 3.00 4 10.3 4.00 1 2.6 5.00 3 7.7 6.00 1 2.6 7.00 1 2.6 8.00 4 10.3 9.00 1 2.6 10.00 4 10.3

Total 39 100.0 Mean= 3.5



0.00 8 20.5 1.00 4 10.3 2.00 8 20.5 3.00 4 10.3 5.00 2 5.1 6.00 3 7.7 7.00 1 2.6 8.00 3 7.7 9.00 2 5.1 10.00 4 10.3

Total 39 100.0 Mean= 3.8



0.00 9 23.1 1.00 5 12.8 2.00 3 7.7 3.00 5 12.8 4.00 2 5.1 5.00 3 7.7 6.00 4 10.3 7.00 4 10.3 8.00 2 5.1 9.00 1 2.6 10.00 1 2.6

Total 39 100.0 Mean= 3.5



233. Based on what you know and have heard so far, how sympathetic are you toward the Defendant, Acme?

0= Not at all / 10= Very Frequency Percent 0.00 8 20.5 1.00 2 5.1 2.00 4 10.3 3.00 6 15.4 4.00 3 7.7 5.00 2 5.1 6.00 4 10.3 8.00 4 10.3 9.00 2 5.1 10.00 4 10.3

Total 39 100.0 Mean= 4.2



0.00 10 25.6 1.00 1 2.6 2.00 3 7.7 3.00 6 15.4 4.00 2 5.1 5.00 5 12.8 6.00 4 10.3 7.00 3 7.7 8.00 1 2.6 9.00 2 5.1 10.00 2 5.1

Total 39 100.0 Mean= 3.8



0.00 10 25.6 1.00 3 7.7 2.00 4 10.3 3.00 4 10.3 4.00 3 7.7 5.00 2 5.1 6.00 1 2.6 7.00 3 7.7 8.00 6 15.4 9.00 1 2.6 10.00 2 5.1

Total 39 100.0 Mean= 3.8



Post-Plaintiff / -Defense Closing Statements

236. Who should win in the dispute between the rebate Plaintiffs v. Acme?

Frequency Percent The rebate Plaintiffs 6 15.4 The Defendant, Acme 33 84.6

Total 39 100.0

237. Who should win in the dispute between Jane Doe v. Acme?

Frequency Percent The Plaintiff, Jane Doe 6 15.4 The Defendant, Acme 33 84.6

Total 39 100.0

238. Who should win in the dispute between Marcus Turner v. Acme?

Frequency Percent The Plaintiff, Marcus Turner 8 20.5 The Defendant, Acme 31 79.5

Total 39 100.0



0.00 11 28.2 1.00 7 17.9 2.00 5 12.8 3.00 4 10.3 4.00 2 5.1 5.00 1 2.6 6.00 2 5.1 7.00 3 7.7 8.00 1 2.6 9.00 1 2.6 10.00 2 5.1

Total 39 100.0 Mean= 2.9





0.00 1 2.6 1.00 1 2.6 2.00 1 2.6 3.00 5 12.8 4.00 1 2.6 5.00 1 2.6 6.00 2 5.1 7.00 5 12.8 8.00 8 20.5 9.00 4 10.3 10.00 10 25.6

Total 39 100.0 Mean= 7.0



0.00 13 33.3 1.00 5 12.8 2.00 9 23.1 3.00 1 2.6 5.00 1 2.6 7.00 3 7.7 8.00 4 10.3 10.00 3 7.7

Total 39 100.0 Mean= 2.9



0.00 13 33.3 1.00 5 12.8 2.00 3 7.7 3.00 2 5.1 4.00 2 5.1 5.00 1 2.6 6.00 3 7.7 7.00 3 7.7 8.00 4 10.3 10.00 3 7.7

Total 39 100.0 Mean= 3.4





0.00 13 33.3 1.00 3 7.7 2.00 3 7.7 3.00 5 12.8 4.00 3 7.7 5.00 3 7.7 6.00 2 5.1 7.00 3 7.7 8.00 2 5.1 10.00 2 5.1

Total 39 100.0 Mean= 3.1



0.00 6 15.4 1.00 3 7.7 2.00 4 10.3 3.00 3 7.7 4.00 4 10.3 5.00 3 7.7 6.00 1 2.6 7.00 5 12.8 8.00 1 2.6 9.00 5 12.8 10.00 4 10.3

Total 39 100.0 Mean= 4.7



0.00 9 23.1 1.00 1 2.6 2.00 7 17.9 3.00 2 5.1 4.00 2 5.1 5.00 5 12.8 6.00 3 7.7 7.00 4 10.3 9.00 3 7.7 10.00 3 7.7

Total 39 100.0 Mean= 4.0





0.00 11 28.2 1.00 5 12.8 2.00 4 10.3 3.00 3 7.7 4.00 1 2.6 5.00 3 7.7 6.00 1 2.6 7.00 2 5.1 8.00 5 12.8 9.00 1 2.6 10.00 3 7.7

Total 39 100.0 Mean= 3.6



Open-Ended Responses, Post-Plaintiff / -Defense Closing Statements What particular piece of evidence do you think is the strongest part of the case fore the Plaintiffs, the workers? Frequency • Problems identified by Acme management were not followed up as

successfully as they could have been in all cases. 7 • That they proved Robert Jones is racist. 4 • The admittance of those comments said by Jones. 3 • That all of the plaintiffs were terminated at the same time and all were

minorities. 2 • The way General Manager Robert Jones and management conducted

themselves was wrong, but this happened numerous times at other Acmes and many large corporations and businesses. 1

• That Jones was someone who should’ve never been in charge of a branch right outside an urban area. 1

• Mr. Jones was never fired or even looked into. 1 • Saying the comments is ridiculous. To say “I didn’t mean it like that”

is (absurd). 1 • The other employees had issues with the manager as well. 1 • All paperwork showing violations including customer complaints,

employee complaints, policy violation, etc. 1 • None. Marcus Turner was the only one to hear the comment and

thought it was intended in a positive manner. 1 • Discrimination, avoiding the matter, nothing was done. Intimidation,

interrogation. Misconduct, inappropriate relationship. 1 • None on the theft. On the racism, records of proof should have been

made. 1 • The lack of discipline/counseling of Jones regarding perceived racist,

sexist comments. 1 • The letters to Jim Powers and Kevin Jarret from Robert Jones. 1 • That the employees cheated the system. 1 • Acme didn’t give out anything in writing to say you couldn’t do what

the Plaintiffs were doing 1 • None, no response. 9



What particular piece of evidence do you think is the weakest part of the case for the Plaintiffs, the workers? Frequency• The written statements suggested that the employees were acting

inappropriately. 4 • The lack of proof that people were harassed. It’s all hearsay and

feelings. 4 • The plaintiffs never complained about racism from Jones until they

were in trouble. No one went to HR or upper management. 3 • Documentation and records of the scam. 3 • The defendant’s physical proof of wrongdoing by each plaintiff. 2 • Showing the sales result. 2 • Race was not an issue for termination. 2 • That they were actually stealing even if they didn’t think it was. 1 • They broke the rules! 1 • That they didn’t know what they were doing was wrong. 1 • No reason for their questionable actions. 1 • Not witnessing Robert saying race or inappropriate words toward black

workers. 1 • That they were fired because of their race. 1 • When Marcus said he didn’t know about his girlfriend is absurd. 1 • The plaintiffs! 1 • The facts. Jane Doe had many negative write-ups. Their written

statements of their misconduct. 1 • Employee misconduct. 1 • The fact it wasn't brought to corporate. The testimony of noncredible

plaintiffs. The written statement of the scam. 1 • Jones’ attitude on stand. 1 • Five of the workers actually committed a crime with the scam. Turner

did change times, and Doe was known as a problem worker. 1 • Ms. Doe did get into a fight with a fellow employee. 1 • That there were some undertones said. 1 • Most everything. 1 • Nothing new. 1 • No response. 1



What is one question you would like to ask the Plaintiffs, the workers, about their case against Defendant, Acme? Frequency • Why did not one person report to the regional manager or VP about

harassment and racial comments? 11 • Why would they jeopardize their jobs for a few extra dollars? 2 • Why did you do what you did? 2 • Were you fired because of your race? 2 • Did you hear firsthand any of the comments said by Robert Jones? 2 • Why did they write their statements knowing that they were wrong? 1 • How did discrimination directly cause their termination or influence the

cause of their termination? 1 • Do you think you could steal bonuses and take their profits? 1 • If you knew you would be fired for scam, shame on you.

1 • Why did Acme wait to correct this violation? 1 • How can the people that did the scam say after they admitted to

wrongdoing that they are innocent? What is the case really about? The big picture? 1

• Did they believe they deserve a chance; how do they review themselves as workers? 1

• If they were only doing what they were told, why did they accept the money that resulted from it? 1

• Why wasn’t racial discrimination ever mentioned as a motive/issue in the written statements? 1

• How significant is the monetary reward with this scam? 1

• Did any of the plaintiffs (e.g.., Mr. Turner) hear Mr. Jones say any comments? Was Mr. Turner dating Ms. Doe at the time he helped her with the application? 1

• If you saw a new sheriff in town, Jones, why stay if you could not adapt to new manager’s rules; would you ask for transfer job or something? Do not allow yourself to be vulnerable. It’s like it is deliberately waiting for a jury and settlement. 1

• Nothing. 2 • No response. 5



What particular piece of evidence do you think is the strongest part of the case for the Defendant, Acme? Frequency • All the records or documentation on the employees involved in the scam. 7 • The fact that there was a scam and Turner did lie and Ms. Jones was a

difficult worker as the record shows. 5 • The documentation. 4 • The employees were stealing. 4 • The facts. Computer printouts of wrongdoing. Employees written

statements. No reporting of racial trouble before or after lawsuit. This was an excuse by former employees to get money from Acme. 2

• Plaintiff admitted to everything. 2 • The logical step-by-step process followed to assure everyone at the

branch was treated in a fair and unbiased manner at the very beginning of the investigation. 1

• The employees were wrong and should be terminated. 1 • They had all higher ups state that they were unaware of the race of the

plaintiffs. 1 • Jane Doe’s “employee evaluation” that Tom Beckom wrote stating her

poor performance attitude problem. 1 • The evidence. The fact corporate was not informed. Testimony

confirmed, although Robert’s remarks were justified. 1 • That everyone was investigated the same way and found out by black

worker women. 1 • Admission statements, occurred at other branches, counseling reports,

time changes. 1 • That the employees were terminated for reasons other than their race. 1 • Duplicated receipts and printed computer data regarding company theft. 1 • Lucy Thomy’s written statement: “It was supposed to be cash only.” 1 • The university application for Jane Doe.

1 • None, no response. 1



What particular piece of evidence do you think is the weakest part of the case for the Defendant, Acme? Frequency • That upper management didn’t counsel or discipline Jones for remarks

he made that were inappropriate. 10

• Jones admitting he said racial or stupid comments and he is still with the company.

3

• That Acme took Robert back after he was fired the first time. 2 • They should have terminated Jane sooner. 1 • Proving that there weren’t more racial comments made by Jones. 1 • Reaction by supervisors to comments made by Jones that could have

been misinterpreted by workers. 1

• Jones’ loose lips, comments have to be guided. He’s been in business too long not to know better; the walls have ears.

1

• All fired on same day. All. 1 • That they were unaware that Robert Jones was a racist. 1 • The manager should watch his mouth at all times. That was stupid of

him. 1

• Robert Jones’ background. 1 • Jones is a racist. 1 • Bringing in Bamenda. He did not add anything to the case. 1 • Chris Helm’s testimony. 1 • Was everyone “really,” even Jones and Smythe, investigated? Can’t

avoid Jones’ characteristics, background. I’m convinced of racism, discrimination, harassment, and a hostile work environment.

1

• The letters that Jones wrote to his superiors. 1 • That there were some undertones said. 1 • Witness evasiveness of accountability of proceedings and events of what

was said. 1

• Mr. Jones did not mean harm with the comment. 1 • None, no response. 7



What is one question you would like to ask the Defendant, Acme, about its case? Frequency • Why was Jones never punished or fired for his “stupid” comments?

Upper management said Jones made stupid comments, but nothing was reported. 4

• Why is Acme still employing Jones after so much wrongdoing? 3 • What is the company’s stance on diversity? What is the minority

representation of the management staff (lower, middle, and upper)? 1 • Why was investigation by top security director in this incident? 1 • Why Jones, Smythe and Helm were not interviewed regarding the

scam. 1 • Who was the person of minority that got cleared early on in the

inquiry? 1 • Should higher management’s role in pursuing problems be more

clearly defined and withhold the process need to assure better control? 1 • Why wasn’t Jane Doe given disciplinary actions before Robert Jones

came to the Chicago branch? 1 • Are you sorry that you didn’t respond to Mr. Jones’ racist comments? 1 • Do you think you would like it if it was reversed on you? 1 • Why did Acme wait to correct this violation? 1 • Why did you give Jane Doe so many chances? 1 • What changes if any were implemented after this situation? 1 • Why did they not take Jones’ comments more seriously? 1 • Why didn’t Bamenda conduct interviews or other neutral party? 1 • Where is James Kelley to discuss Jones’ characteristics? 1 • Case of racial comments. This was clearly heard directly from Robert

Jones by his superiors, and no action was taken on at least two occasions. 1

• Why didn’t they address the lack of involvement in the suit by the other black terminated employee? 1

• Will they change how they handle managers/supervisors in regard to how they conduct themselves? 1

• Were all the people fired for the scam in the same position? 1 • Why would Acme take the chance of this happening again? 1 • Why did you take so long? 1 • None, no response. 11



Appendix C: Case Perceptions

Post-Presentations Questions

247. Do you find that race was one of the motives or reasons Acme used in its decision to discharge Plaintiff Marcus Turner?


Total 39 100.0

248. If yes, should Marcus Turner be awarded money for past and future damages for lost

salary? Frequency Percent

Yes 4 10.3 No 2 5.1 Does not apply 33 84.6

Total 39 100.0

249. If yes, should Marcus Turner be awarded money for past and future damages for emotional

harm caused by the termination? Frequency Percent


Total 39 100.0

250. Do you find that Plaintiff Marcus Turner was subjected to offensive comments or other

conduct that involved his race? Frequency Percent

Yes 17 43.6 No 22 56.4

Total 39 100.0

251. If yes, do you find that such conduct substantially interfered with his employment or created

an intimidating, hostile or offensive work environment? Frequency Percent


Total 39 100.0

252. Do you find that under the totality of the circumstances, Acme had adequate notice that

Jones was harassing Marcus Turner because of his race? Frequency Percent


Total 39 100.0



253. Do you find that Acme failed to adequately investigate or failed to take prompt and remedial action after receiving the notice?

Frequency Percent Yes 12 30.8 No 9 23.1 Does not apply 18 46.2

Total 39 100.0

254. If yes, would you award Marcus Turner damages for emotional harm caused by racial

harassment? Frequency Percent


Total 39 100.0

255. Do you find that race was one of the motives or reasons Acme used in its decision to

discharge the Plaintiffs? Frequency Percent

Yes 7 17.9 No 32 82.1

Total 39 100.0

256. If yes, would you award the Plaintiffs past and future damages for lost salary?


Total 39 100.0

257. If yes, would you award the Plaintiffs past and future damages for emotional harm caused

by the termination? Frequency Percent


Total 39 100.0

258. Do you find that the Plaintiffs were subjected to offensive comments or other conduct that

involved their race? Frequency Percent

Yes 9 23.1 No 30 76.9

Total 39 100.0

259. If yes, do you find that such conduct substantially interfered with their employment or

created an intimidating, hostile or offensive work environment? Frequency Percent


Total 39 100.0



260. If yes, do you find that under the totality of the circumstances, Acme had adequate notice that Jones was harassing the Plaintiffs because of their race?


Total 39 100.0

261. If yes, do you find that Acme failed to adequately investigate or failed to take prompt and

remedial action after receiving the notice? Frequency Percent


Total 39 100.0

262. If yes, would you award the Plaintiffs damages for emotional harm caused by racial



Total 39 100.0

263. Do you find that race was one of the motives or reasons Acme used in its decision to

discharge Plaintiff Jane Doe? Frequency Percent

Yes 8 20.5 No 31 79.5

Total 39 100.0

264. If yes, would you award Jane Doe past and future damages for lost salary?


Total 39 100.0

265. If yes, would you award Jane Doe past and future damages for emotional harm caused by

the termination? Frequency Percent


Total 39 100.0

266. Do you find that Plaintiff Jane Doe was subjected to offensive comments or other conduct

that involved her race? Frequency Percent

Yes 14 35.9 No 25 64.1

Total 39 100.0



267. If yes, do you find that such conduct substantially interfered with her employment or created an intimidating, hostile or offensive work environment?


Total 39 100.0

268. If yes, do you find that under the totality of the circumstances, Acme had adequate notice

that Jones was harassing Jane Doe because of her race? Frequency Percent


Total 39 100.0

269. If yes, do you find that Acme failed to adequately investigate or failed to take prompt and

remedial action after receiving the notice? Frequency Percent


Total 39 100.0

270. If yes, would you award Jane Doe damages for emotional harm caused by racial



Total 39 100.0

271. I would award damages to…

Frequency Percent all of the Plaintiffs. 5 12.8 The rebate Plaintiffs only 0 0.0 Jane Doe only. 2 5.1 Marcus Turner only. 2 5.1 Jane Doe and Marcus Turner only. 2 5.1 Jane Doe and the rebate Plaintiffs only. 2 5.1 Marcus Turner and the rebate Plaintiffs only. 1 2.6 none of the Plaintiffs. 25 64.1

Total 39 100.0

272. The investigation unfairly singled out African-Americans employees.


Total 39 100.0



273. The fact that several African-Americans were fired on the same day is proof that they were discriminated against because of their race.


Total 39 100.0

274. The fact that there were very few minorities in management positions at Acme is proof there

was racial discrimination. Frequency Percent


Total 39 100.0

275. Robert Jones’ demotion is irrelevant to this case.


Total 39 100.0

276. The Plaintiffs deserved to be fired.


Total 39 100.0

277. Lydia Smythe should not have been involved in the investigation because of her romantic

relationship with Mr. Jones. Frequency Percent


Total 39 100.0

278. The investigation was…

Frequency Percent mostly objective. 25 64.1 mostly subjective. 14 35.9

Total 39 100.0



279. The Plaintiffs were stealing from Acme Corporation.


Total 39 100.0

280. The inconsistencies in the reason for Ms. Jones’ termination are proof that Acme

management was looking for an excuse to get rid of her. Frequency Percent


Total 39 100.0

281. Ms. Jones was fired because of her bad attitude.

Frequency Percent Yes, and that is all right. 22 56.4 Yes, and that is not all right. 9 23.1 No, that is not why she was fired. 8 20.5

Total 39 100.0

282. Mr. Turner did not deserve to be fired for his conduct; if anything he should have been given

a warning. Frequency Percent


Total 39 100.0

283. Acme was wrong to believe Sarah Drake over Mr. Turner.


Total 39 100.0

284. Mr. Jones did all that he could to help Ms. Doe by wiping away some of her notices.


Total 39 100.0



285. Acme management intentionally fired African-Americans employees.


Total 39 100.0

286. Acme was looking for any reason to fire Mr. Turner.


Total 39 100.0

287. It is more than a coincidence that several African-Americans were fired on the same day.


Total 39 100.0

288. Mr. Turner should have been given a warning instead of being fired.


Total 39 100.0

289. Because Mr. Jones’ previous poor judgment as a manager, Acme should never have rehired

him for that position. Frequency Percent


Total 39 100.0

290. The comment Mr. Jones is accused of making about Ms. Jones had nothing to do with her

race. Frequency Percent


Total 39 100.0



291. The fact that none of the employees complained about the comments the Plaintiffs allege

Mr. Jones made means… Frequency Percent

they weren’t made. 5 12.8 they didn’t hear them. 11 28.2 they weren’t offended by them. 8 20.5 they were offended by them but afraid to say anything. 15 38.5

Total 39 100.0

292. It was right for Acme to fire Mr. Turner for changing other employees’ records without

verification. Frequency Percent


Total 39 100.0

293. It was right for Acme to fire Mr. Turner for changing his own records.


Total 39 100.0

294. The comment Mr. Jones admits to making was inappropriate and racist.


Total 39 100.0

295. In order to be offended by a racial comment, a person needs to hear it firsthand – not

repeated by someone else. Frequency Percent


Total 39 100.0

296. The comment Mr. Jones admitted to making was intended in a positive way.


Total 39 100.0



297. Mr. Turner’s claim that Mr. Jones said Acme needs more white employees is…

Frequency Percent definitely true. 1 2.6 probably true. 24 61.5 probably false. 12 30.8 definitely false. 2 5.1

Total 39 100.0

298. The allegation that Mr. Jones called Jane Doe ugly is…

Frequency Percent definitely true. 4 10.3 probably true. 14 35.9 probably false. 18 46.2 definitely false. 3 7.7

Total 39 100.0

299. Mr. Jones’ alleged racist comment is irrelevant because none of the Plaintiffs heard him say

it. Frequency Percent


Total 39 100.0

300. Acme cannot be held responsible for the alleged racist comments because the employees

never reported them to management. Frequency Percent


Total 39 100.0

301. By including Jim Cane (an African-American) in the investigation, Acme ensured a racially

neutral outcome. Frequency Percent


Total 39 100.0

302. Since a Caucasian employee was also fired as a part of the scam, the investigation had to

have been race neutral. Frequency Percent


Total 39 100.0



303. The Plaintiffs deserve to be compensated for their emotional injuries as a result of being fired from Acme.


Total 39 100.0

304. The fact that the investigation was initiated by an African-American supervisor (Nancy

Werner) is proof that Acme management was not “out to get” African-American employees. Frequency Percent


Total 39 100.0

305. The Plaintiffs didn’t know what they were doing was wrong.


Total 39 100.0

306. The Plaintiffs did not act as a part of a scheme to steal money from Acme.


Total 39 100.0

307. The investigation did not target African-American employees – some of the employees

initially accused of the scam were even cleared of the charges. Frequency Percent


Total 39 100.0

308. The investigation was fair because every employee of the Chicago branch was investigated.


Total 39 100.0



309. Acme is a good company to work for.


Total 39 100.0

310. The fact that Mr. Jones tried to save Mr. Turner’s job shows that no one was out to get him.


Total 39 100.0

311. Robert Jones’ phone call to Harold Hanson about the comment in question proves that he

knew what he said was inappropriate. Frequency Percent


Total 39 100.0

312. Mr. Jones’ comment in question was racist.


Total 39 100.0

313. Upper management simply “rubber-stamped” Mr. Jones’ recommendations for termination.


Total 39 100.0

314. Mr. Jones’ comments may have been inappropriate, but he is no racist.


Total 39 100.0



315. If Robert Jones admits to making the comments in question, he probably made the other

comments also. Frequency Percent


Total 39 100.0

316. Jane Doe's complaints to Nancy Werner were...

Frequency Percent formal, requiring follow-up by Nancy. 3 7.7 informal, requiring follow-up by Nancy. 22 56.4 informal, but not requiring follow-up by Nancy. 14 35.9

Total 39 100.0

317. Robert Jones didn't like Jane Doe from the beginning and did what he could to get rid of her.


Total 39 100.0

318. Sarah Drake changed her own records but was not fired because she is Caucasian.


Total 39 100.0

319. Jane Doe has a bad attitude.


Total 39 100.0

320. Robert Jones gave Caucasian employees preferential treatment over African-Americans.


Total 39 100.0



321. Marcus Turner's past criminal history is...

Frequency Percent irrelevant because it is in the past. 9 23.1 relevant because it speaks to his credibility. 30 76.9

Total 39 100.0

322. Acme upper management tolerated Robert Jones’ racist remarks.


Total 39 100.0

323. Chris Helm was out to get Marcus Turner fired with her investigation.


Total 39 100.0

324. If the Plaintiffs felt their complaints were being ignored, they should have continued reporting

the incidents to management until action was taken. Frequency Percent


Total 39 100.0

325. The Plaintiffs didn't complain about Robert Jones until after they were terminated.


Total 39 100.0

326. Harold Hanson's smiling at Robert Jones’ alleged racial "joke" meant that management was

on notice of Mr. Jones’ racial bias. Frequency Percent


Total 39 100.0



327. Nancy Werner and Jim Cane received their promotions as a result of their involvement in the

rebate investigation. Frequency Percent


Total 39 100.0



Open-Ended Responses, Post-Presentations Questions In the case of Jane Doe, et al. v. Acme Corporation, who do you think should win? The workers, the Plaintiff – 6 Frequency Clearly, it was a hostile environment there, and upper management did nothing to correct the problem. 2

She asked Jones to prove that the comments about her were true. 1 Three counseling notices in a day. She should take time off, a written plan or action plan to correct or improve her work or skills. 1 Jones yelling at her. Jones’ racial slurs. 1 No response. 1

Acme, the Defendant – 24 Frequency Performance issues, write-ups, and counseling notices. 14 Bad attitude. 11 Claims of racism were bogus. 4 Evidence. 2 The credibility of witnesses. 1 Felt she was cheating the company. 1 Jones really wanted to better the people he worked with at Acme. I believe his comments were made to better the company. 1 Although the plaintiffs did commit crimes, Acme let things get out of hand by employing Jones and backing up his decisions without more questioning and guidance for their employees on what was actually “wrong” in the workplace. Overall, Acme did not break the law as the plaintiff did. 1

Unsure – 8

Frequency For Jones, yes. Harassment, unfair treatment, excessive consultation notices – Jones made a racist comment to Doe and was intimidating, arrogant, interrogating. Jones abused his authority and bad culture; his racist overtones were wrong. The environment was hostile and racially discriminatory because of Jones. All other plaintiffs, no. Not sure, good closing about how plaintiffs were wrong, Jones had an attitude. 1 No response. 7



Appendix D: Verdicts & Table Maps

Panel One

Table Map

Name, # EducationAge, Race, SexJobVerdict: ∆ or π




Name, #Education

Age, Race, SexJob

Verdict: ∆ or π

Name, # Education

Age, Race, SexJob

Verdict: ∆ or π

Name, # Education

Age, Race, SexJob

Verdict: ∆ or π

Dan Wolfe


Name, # Education

Age, Race, SexJob

Verdict: ∆ or π


Name, #Education

Age, Race, SexJob

Verdict: ∆ or π

Name, # Education

Age, Race, SexJob

Verdict: ∆ or π

Verdicts &

Damages

Panel One

FOREPERSON



Verdict Form

1. Do you find that race was one of the motives or reasons Acme used in its decision to discharge the Plaintiffs?

Yes__________ No__________

If your answer is NO, proceed to question 4.

If your answer is YES, proceed to questions 2 and 3.

2. What is the total amount of past and future damages for lost salary?

$______________________

3. What is the total amount of past and future damages for emotional harm caused by the termination?

$______________________

Proceed to question 4.

4. Do you find that the Plaintiffs were subjected to offensive comments or other conduct which involved their race?

Yes__________ No__________

If your answer is NO, STOP. Do not answer any further questions.

If your answer is YES, proceed to question 5.



5. Do you find that such conduct substantially interfered with their employment or created an intimidating, hostile, or offensive work environment?

Yes__________ No__________



6. Do you find that under the totality of the circumstances, Acme had adequate notice that Jones was harassing the Plaintiffs because of their race?

Yes__________ No__________


If your answer is “yes”, proceed to question 7.

7. Do you find that Acme failed to adequately investigate or failed to take prompt and remedial action after receiving the notice?

Yes__________ No__________



8. What is the total amount of damages for emotional harm caused by racial harassment?

$______________________