He Said/She Said, Save Our Sons, and the Stories that Stick: Part Two of a Two-Part Series of Columns

SHERRY F. COLB

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

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Prince v. Appleton Auto LLC

Docket: 20-1106

Opinion Date: October 21, 2020

Judge: Joel Martin Flaum

Areas of Law: Business Law, Corporate Compliance, Labor & Employment Law

Applecars is a member of a network of Wisconsin used-car dealerships. McCormick owned a majority share in each dealership. Each dealership received management services from Capital M, which McCormick also owned. Capital M tracked shared dealership inventory, held employee records, and issued identical employee handbooks for each dealership; Capital M’s operations manager hired and fired each dealership’s general manager. The employees of each dealership gathered as one for events several times per year. The dealerships advertised on a single website, which included some language suggesting a single entity and some indicators that each dealership is a separate entity. Each dealership properly maintained corporate formalities and records. Capital M billed each dealership separately. Each dealership had a distinct general manager, bank accounts, and financial reports. The dealerships separately filed and paid taxes, paid employees, and entered into contracts. Prince worked at Applecars for several months before he was fired. Prince claims his firing was retaliatory and sued Applecars and its affiliates for racial discrimination under Title VII of the 1964 Civil Rights Act. The court granted the defendants summary judgment, noting that Applecars had fewer than 15 employees and was not subject to Title VII. The Seventh Circuit affirmed. There is insufficient evidence to support Prince’s theory that the court should pierce the corporate veil of the network, aggregating the number of employees such that Title VII would apply.

Brown v. Jones

Docket: 19-3172

Opinion Date: October 21, 2020

Judge: KANNE

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

In 2008, an Illinois jury convicted Brown of three counts of first-degree murder for shooting three people outside of the Champaign American Legion building. Brown subsequently filed two post-conviction motions, a direct appeal, and a federal habeas corpus petition. Brown’s only remaining claim is that the Illinois Court unreasonably applied the Supreme Court’s Batson holding. Ware was one of two African-Americans in the 60-person venire gathered for Brown’s trial. The court asked whether anyone was familiar with the American Legion where the crime took place. Ware said yes: “Been on the outside. Not inside.” He denied that his familiarity with the site would affect his jury service. Ware was excused at the prosecutor's request. The court overruled a Batson objection, finding that Brown failed to make “a prima facie case that a discriminatory practice was being conducted” and did not ask the prosecution to provide “a race-neutral explanation” for its strike. The Illinois Appellate Court explained that there was no evidence of a pattern of striking African-Americans or of a disproportionate number of strikes used against African-Americans and that Ware meaningfully distinguished himself from other potential jurors by stating that he was familiar with the crime scene. The Seventh Circuit affirmed the denial of relief. The Illinois court correctly noted the prosecution’s apparent reason for striking Ware—that he had been to the crime scene—and found no circumstances giving rise to an inference that the prosecution engaged in racial discrimination.

Gage v. Richardson

Docket: 19-2002

Opinion Date: October 21, 2020

Judge: St. Eve

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

A Wisconsin jury found Gage guilty of repeatedly sexually assaulting his daughter, H.R.G., when she was a child. Gage asserted that his trial counsel was ineffective for failing to interview and present testimony from his son and mother, Josh and Nancy. Gage was living with Nancy at the time of the assaults and most of the assaults occurred on Nancy's property. The state appellate court concluded that Gage was not prejudiced by his trial counsel’s failure to call those witnesses because their testimony in post-conviction proceedings concerned only matters such as the layout of Nancy's house. The Seventh Circuit affirmed the denial of habeas relief. The state court’s decision was not an unreasonable application of clearly established federal law, despite its incorrect recitation of the "Strickland" prejudice standard. The state court’s analysis focused on the consistency between Josh’s and Nancy’s testimony at the post-conviction hearing and H.R.G.’s testimony at trial, which can reasonably be interpreted as “whether the proffered testimony could have affected the outcome,” or its likely impact on the verdict. The state court noted that Josh’s and Nancy’s testimony did not undermine H.R.G.’s testimony in any significant way.