Richards v. Lufkin Industries LLC

Filing 211

MEMORANDUM OPINION. The court DENIED Plaintiffs Baston challenges as to Juror #1 and Juror #10, and GRANTED Plaintiffs Batson challenge as to Juror #15. Signed by District Judge Ron Clark on 2/15/18. (ljw, )

** NOT FOR PRINTED PUBLICATION **
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
GUY RICHARDS,
Plaintiff,
v.
LUFKIN INDUSTRIES, INC.,
Defendant.

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CIVIL ACTION No. 9:14-cv-136
JUDGE RON CLARK
JJB

Memorandum Opinion
Plaintiff Guy Richards (“Plaintiff”), who is African-American, brought Title VII and 42
U.S.C. § 1981 claims against his former employer, Defendant Lufkin Industries (“Defendant”),
for racial harassment, racial discrimination, and retaliation. During jury selection, Defendant used
all three of its peremptory strikes against African-American members of the venire. The court
rejected Plaintiff’s challenge as to two of venire members and sustained the challenge as to the
third, who was selected for the jury. This Memorandum Opinion clarifies the basis for the court’s
reasoning, as stated on the record, for its rulings.
Background
As part of the jury selection process, all 50 potential jurors completed a juror questionnaire
that asked for background information, including employer information, and whether they had an
employment or business relationship with “Lufkin Industries” or “General Electric,” Defendant’s
current owner. This is more jurors than are usually called for a civil case, but Lufkin Industries

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has been one of the largest employers in the area, so there was a potential for many
disqualifications.
The parties agreed that all jurors who indicated that they or their spouses were currently
employed by Lufkin Industries or General Electric would be excused without questioning.
Prospective jurors who answered either “Lufkin Industries” or “General Electric” to the question
“Last Employer,” or with whom the parties had a concern about a potential connection to either
company, were questioned individually outside the presence of the panel.
After the completion of the preliminary individual voir dires, two prospective jurors were
excused without objection and one was struck for cause. The parties then conducted a general jury
voir dire and were allowed to ask questions of all prospective jurors. After the general jury voir
dire, the court allowed further individual questioning, outside the presence of the panel, of seven
prospective jurors based on their answers to the questions asked during the general voir dire. At
the conclusion of this second round of individual questioning, the court asked the parties to submit
their strikes. Defendant used all of its peremptory challenges to strike three of the four remaining
African-American prospective jurors: Juror #1, Juror #10, and Juror #15.
After the parties submitted their strikes, the Deputy Clerk prepared and provided the list of
jurors to be seated to all counsel. Before the panel was brought back into the courtroom, the court
read the jury list to all counsel and asked if there were any objections from Plaintiff’s counsel.
Plaintiff’s counsel failed to respond. The court then asked Defendant’s counsel if there were any
objections to the jury list, and Defendant’s counsel responded, “No, your Honor.” The court then
asked Plaintiff’s counsel two additional times if Plaintiff had “some problem with the strikes.”
Plaintiff’s counsel responded, “No. No problem.”

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Following this exchange, the ten selected jurors were brought back into the courtroom and
seated in the jury box. After the remaining jury venire had also returned to the courtroom, the court
explained to everyone the importance of jury duty and the reason so many were called to select a
ten member jury and thanked the jury venire for its time. The court then dismissed the jury venire
and asked the ten member jury to stand to be sworn. As the jury venire started to leave the
courtroom and as the jurors stood to be sworn in, Plaintiff’s counsel—in the presence of the jurors
and the jury venire—approached the bench and asked, “Am I required to make a Batson challenge
now?” The court immediately asked the jury venire to come back into the courtroom. Fortunately,
no prospective juror had left the courthouse, and the jury venire was promptly brought back into
the courtroom. The court then recessed with counsel to chambers to discuss this matter.
Analysis
As an initial matter, Plaintiff’s Batson challenge was untimely. See U.S. v. Abou-Kassem,
78 F.3d 161, 167 (5th Cir. 1996) (“A Batson objection must be made before the venire is dismissed
and before commencement of trial.”). However, Defendant did not object to the untimely nature
of the Batson challenge. 1 In light of the importance of a party’s right to equal protection, the court
considered Plaintiff’s Batson challenge on the merits. See Batson v. Kentucky, 476 U.S. 79, 86
(1986) (“Purposeful racial discrimination in selection of the venire violates a defendant’s right to
equal protection because it denies him the protection that a trial by jury is intended to secure.”).

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By failing to object to Plaintiff’s Batson challenge in a timely manner, Defendant has waived such an objection.
See Garcia v. Excel Corp., 102 F.3d 758 (5th Cir. 1997) (Denying consideration of Defendant’s objection that
Plaintiff’s Batson challenge to Defendant’s peremptory strikes were untimely because Defendant failed to raise this
objection when Plaintiff made its Batson challenges and noting, “just as a Batson challenge must be made timely or
it will be rejected, an objection to the timeliness of a Batson challenge must likewise be made timely or it will be
rejected”).

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The Batson framework requires a court to follow a three-step process for determining
whether peremptory strikes have been applied in a discriminatory manner. See Batson, 476 U.S.
at 93-98. First, the claimant must make a prima facie showing that the peremptory challenges have
been exercised on the basis of race. See id. Second, if the requisite showing has been made, the
burden shifts to the party accused of discrimination to articulate race-neutral explanations for the
peremptory. See id. Third, the trial court must determine whether the claimant has carried his
burden of proving purposeful discrimination. See id.
Plaintiff’s counsel, Mr. Garrigan, noted that all three struck jurors were African-American
and thus made a prima facie showing that Defendant exercised its peremptory challenges on the
basis of race. Next, the court asked Defendant’s counsel to articulate its race-neutral explanations
for the three peremptory strikes.
For Juror #1, Defendant’s counsel asserted two race-neutral reasons for removing him from
the jury: (1) Juror #1 might be unable to focus due to the pain from his disability, which was a
topic discussed during his individual voir dire and disclosed on his juror questionnaire; and (2)
Juror #1 might be sympathetic toward the Plaintiff because they both had used canes to walk.
During Juror #1’s individual voir dire, the court explained that jury duty would require Juror #1 to
sit continuously for approximately an hour before a 15-minute break. Juror #1 appeared to want
to accommodate but still had concerns about his ability to sit continuously for as much as an hour.
Further, Juror #1 mentioned that he had not sat still for several years because of his disability and
that, other than one recent funeral, jury selection was the longest he had sat without getting up
since the onset of his disability. The court found Defendant’s first race-neutral explanation credible
and that Plaintiff had failed to meet his burden of proving purposeful discrimination.

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For Juror #10, Defendant’s counsel also proffered two race-neutral explanations: (1)
During general voir dire, Juror #10 exhibited troubling body language when several jurors raised
their hands in response to Defendant counsel’s question concerning who had heard racist
terminology before; and (2) Juror #10 disclosed on his juror questionnaire that he was an hourly
worker at a well-known major corporation with plants in the Eastern District of Texas 2, which had
a reputation for not treating their employees well, and thus would be unlikely to remain objective
when judging a company like Defendant Lufkin Industries. The court asked for Plaintiff’s
response. Mr. Garrigan responded that Defendant failed to ask Juror #10 any individual questions
and that Defendants could not verify the subjective reasons they provided. The court then asked
Mr. Garrigan, who is well familiar with employment litigation in this District, if he disagreed with
the characterization of this major corporation as having a “fair amount of problems with
complaints about its work practices.” 3 Mr. Garrigan only responded that he “didn’t know that it’s
any worse than [Defendant] Lufkin” and did not object otherwise. The court notes that Mr.
Garrigan and his firm have been continuously involved in litigation in this court against Lufkin
industries since at least 1997, representing many Lufkin employees complaining of wrong doing

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Although the corporation was mentioned by name during the Batson challenge discussion, to protect Juror #10’s
privacy, the corporation is not named in this Memorandum Opinion.

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Given the high number of employment based cases filed in the Lufkin Division against the corporation in the last
15 years, the court could hardly disagree with Defendant’s characterization of the corporation’s reputation nor find
Defendant’s reason pretextual on its face. See Batson, 476 U.S. at 98 n.21 (noting that “the trial judge’s findings in
the context under consideration here largely will turn on evaluation of credibility”).

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by Lufkin Industries. 4 Coming from Mr. Garrigan, “no worse than Lufkin” does not even hint at
a disagreement with Defense counsel’s evaluation.
A review of the juror questionnaires revealed no other hourly worker or any other worker
at the same major corporation so it could not be said Defendant failed to strike a white juror with
the characteristic upon which Defense counsel said he relied. As noted, Plaintiff did not attempt
to refute Defendense counsel’s characterization of the major corporation’s reputation. The court
found Defendant’s second proffered race-neutral reason credible and that Plaintiff failed to meet
his burden of proving purposeful discrimination.
For Juror #15, Defendant’s counsel asserted that Juror #15 was removed because she
indicated on her Juror Questionnaire that she knew a witness that Plaintiff intended to call. The
court reviewed Juror #15’s Juror Questionnaire and noted that Juror #15 only indicated she
possibly knew the witness, that Defendant’s counsel had failed to ask Juror #15 any individual
questions during the general voir dire, and that Defendant’s counsel had failed to conduct an
individual voir dire of Juror #15 to further explore this concern—despite two opportunities to do
so. The court determined that Defendant’s race-neutral explanation for removing Juror #15 was
pretextual and that Plaintiff had met his burden of proving purposeful discrimination as to Juror
#15.
As part of its Batson challenge analysis, the court also considered whether Defendant’s
peremptory strikes showed a pattern that indicated purposeful discrimination. In criminal cases, a
pattern is easier to discern because the prosecutor has ten strikes and the defendant has six strikes.

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See eg. McClain et al., v. Lufkin Industries, Inc., 9:97-CV-063, a class action race discrimination suit filed in 1997
which was finally terminated in 2015, and Ruffin v. Lufkin Industries, 9:13cv24, a sexual harassment and retaliation
suit filed in 2013.

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Three strikes in a civil case is not much of a basis for analysis of a “pattern.” Although Defendant’s
use of all three strikes certainly raised a question, it was not enough, on its own, for the court to
discount the race-neutral reasons Defendant asserted for striking Juror #1 and Juror #10. A court
may analyze each strike separately and is not required to discount reasons given for some strikes
simply because the court finds against the striking party on other strikes. See eg. United States v.
Bentley-Smith, 2 F.3d 1368, 1376 (5th Cir. 1993).
To remedy the Batson violation, Plaintiff suggested replacing the last juror seated with
Juror #15. Plaintiff vehemently objected to the proposed solution of expanding the jury to 11
members and seating Juror #15 as the 11th juror. Although the court noted that replacing the last
juror with Juror #15 could be disruptive and that declaring a mistrial was an option, both parties
objected to declaring a mistrial and ultimately agreed that Juror #15 should replace the last juror
seated. Juror #15 replaced the last juror seated and served as the tenth member of the jury.
Accordingly, as stated in the record of court, the court DENIED Plaintiff’s Baston
challenges as to Juror #1 and Juror #10, and GRANTED Plaintiff’s Batson challenge as to Juror
#15.

So Ordered and Signed
Feb 15, 2018

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