I frequently tell clients: “There’s a difference between what you know and what you can prove.” A quick internet search tells me that I’ve been stealing that line from Tom Cruise in “A Few Good Men.” Even so, the maxim is really the foundation for our court system. Even if you know something “in your bones” (as my Dad used to say), you have to provide admissible evidence in court. The Eleventh Circuit Court of Appeals recently hammered that point home in a recent Title VII discrimination case: Mells v. Secretary Dept. of Veterans Affairs, No. 15-14251, 2017 WL 60387 (11th Cir. Feb. 15, 2017).
In Mells, an employee sued for racial discrimination arising from denial of a promotion. The undisputed evidence showed that a four-person interview panel ranked Ms. Mells lower than other applicants. Nevertheless, Ms. Mells argued that a biased supervisor selected the four-person panel. Ms. Mells believed “in her heart” that there was a possibility that the interview panel was swayed by the biased supervisor.
The Eleventh Circuit rejected that argument: “Although Ms. Mells may be inclined to follow her heart, we, like the district court, are required to follow the evidence.” The Court found no evidence that the interview panel was biased or swayed by the supervisor. As a result, the Court affirmed dismissal of her claims. Notably, the Eleventh Circuit rejected these matters of the heart on the day after Valentine’s day, but there is no reference to Valentine’s in the opinion.
Mells provides two lessons. First, it demonstrates the benefits of using interview panels in hiring and promotion decisions. If an applicant later attempts to sue for discrimination, they face a heavy burden to show bias of the entire panel. Second, in every case, employees (and employers) must present more evidence than mere “belief” if they want to win.