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staff reporter In litigator’s parlance, the Texas verdict was a slam dunk. The U.S. Equal Employment Opportunity Commission (EEOC), which pursues harassment and discrimination cases when it is confident employees have been wronged, spent two years in pretrial discovery in the case of six minority workers who claimed United Parcel Service Inc. (UPS) discriminated against them. After a seven-day trial in U.S. district court in San Angelo, Texas, an eight-woman jury deliberated for 30 minutes, including the time it took to elect a forewoman, to find that UPS had done nothing wrong. Using the word “no” 13 consecutive times, they rejected the workers’ claims that the UPS San Angelo package-sorting facility was a hostile workplace for Latino and African-American workers. (A seventh worker, who was white, claimed retaliation.) Equal Employment Opportunity Commission v. United Parcel Service Inc., No. 01-CV-109-C. Calling the trial “a real farce,” juror Cindy Preas of San Angelo, a 48-year-old health aide, said, “I don’t think it should have gone to trial at all. It was obvious from day one that the [EEOC] side had a lot of people that turned out to be liars and told untruths.” Another juror, Beverly Briley, said, “It would have helped if some of the men’s allegations had been verified by somebody else.” The lead lawyer for the EEOC took a philosophical approach to the loss. “The verdict didn’t come out the way we intended, but it wasn’t a failure for us,” said Suzanne Anderson. “By bringing the EEOC down to west Texas, you help the public good not just by winning. You help the public by showing up and being there.” The EEOC wins more than half of its trials. The agency receives on average 80,000 complaints a year. In the past five years, it has agreed to sue on behalf of only 1,963 of the complainants, taken 87 of the cases to trial and won 50 of them. Case history The case had its genesis in complaints filed by the seven workers about the behavior of Terry Kiner, a manager at the 80-employee facility. The complaints were filed with the EEOC in 1998 and 1999. After investigating, the agency decided to intervene and filed suit in June 2001. At trial before U.S. District Judge Sam R. Cummings, the complainants testified that Kiner’s treatment drove them from their jobs. They said their complaints to UPS about Kiner went unheeded. Anderson said that one of the complainants, Ernest Garcia, spent more than four hours on the stand and testified on direct examination that Kiner had once told him, “‘When you go on break, I’m going to be in your face. And when you come back, I’m still going to be in your face.’ “ Garcia, Anderson said, told the court that one day he cracked, retreating to the back of the UPS van, closing the door, collapsing and thinking, “God, I’m not going to make it.” The attorney said that Garcia became emotional and sobbed on the stand. Briley, the juror, a 54-year-old educational diagnostician who lives in nearby Big Lake, called the crying “a pretty big turnoff.” “I’m pretty tender-hearted myself,” she said, “but I didn’t believe him at all.” UPS’ lead defense counsel, Shelton E. Padgett, a partner at Akin, Gump, Strauss, Hauer & Feld, stopped short of calling the crying a stunt. But he said that as soon as Garcia took the stand, “his lawyers put two inches of Kleenex in front of him.” Padgett said that during his summation he reminded the jurors that during a two-hour cross-examination, Garcia didn’t cry at all. Anderson complained that Padgett made fun of Garcia for crying. A white UPS employee, Chris Phillips, corroborated Garcia’s testimony about Kiner’s harsh treatment, Anderson said, adding that when Phillips confronted Kiner, Phillips’ work habits also became subject to scrutiny. Briley emphasized that while the employees said Kiner’s treatment of them was unfair, the defense succeeded in portraying him as uniformly difficult to work for. “He didn’t single them out,” she said. “He was tough on everybody.” UPS testimony Kiner did not testify at the trial. Anderson said that the former manager was fired for sexual harassment after Garcia quit the company, and was beyond the range of this federal court’s subpoena power. District Manager Patsy Miner, the UPS executive who fired Kiner, did testify. A Latina woman, Miner was called by the EEOC as an adverse witness and Miner explained the company’s anti-discrimination procedures. On cross-examination, however, she told the jury that during meetings she conducted with employees at the San Angelo facility, complaints were made concerning a range of employment issues, but discrimination due to national origin was never one of them, Padgett said. Padgett and Anderson agreed that Miner’s ethnicity and testimony resonated with the all-woman jury, which included three Hispanics. “I’m sure the jury appreciated her testimony,” Anderson said. “She represented the company very well.” Briley said simply, “I thought she was honest.” Another factor working against the plaintiffs, both the jurors and Anderson agreed, was that Garcia’s attorney, during his closing arguments, asked the jury to award the complainants damages ranging from $30 million to $300 million for their injuries. Anderson represented the EEOC-and thus all of the complainants. Garcia was the only complainant with his own attorney. That was because Garcia, through this attorney, Thad Harkins of San Antonio’s Harkins, Latimer & Dahl, intervened in the case and won the right to his own representation. Harkins did not respond to requests for comment. Anderson said she objected to Harkins’ request for damages because not only was the amount not justified by the facts, it was not allowed by law. She said the maximum award allowed under federal law in this type of case is $300,000 per complainant. The EEOC asked for $225,000 for each complainant for back pay, she said. Preas, the juror, seemed offended by Harkins’ demand. “We’re all working people. We saw no need for that kind of money to be awarded to anyone,” she said. “Even giving them $30 million is not going to teach UPS a better way to run their business.” Briley said that she, too, was surprised at the sum Harkins demanded. “We didn’t think he had a case to support him,” she said. Asked about the jury’s quick decision, Preas confessed that the women had talked about the direction of the trial early on. “It was so obvious,” she said. Agreeing with Preas, Briley said that the jury needed less than 30 minutes to come to a unanimous verdict about the EEOC’s case. Anderson said that the decision to appeal the verdict rested with the commission’s appellate attorney corps. She said that she could not recall any specific instances in which Cummings may have erred in making an evidentiary ruling or in his charge to the jury. Harris’ e-mail address is

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