9th Circuit - Nevada Rule Barring Ex Parte Contact With Management Employees Is Narrow In Scope

Today's decision in Palmer v. Pioneer Inn Associates, Ltd. (9th Cir. 7/22/03) [pdf] makes two interesting points. Plaintiff had applied for and was initially offered a job as a deli server, waitress and ultimately a supervisor, before being told that she could have none of the three because she was pregnant. The trial court granted summary judgment on the waitress and supervisor position because she could not establish a prima facie case under McDonnell-Douglas . She lost on the deli server position when the case went to trial because testimony by a management level chef was excluded as a sanction for plaintiff's counsel ex parte contact with him.



In the trial court's view, the chef was a 'represented party'under the ethics rule. The 9th Circuit, certified the question to the Nevada Supreme Court which in its opinion adopted a narrow view of management officials who are covered by the rule. The Nevada Supreme Court now uses the managing-speaking agent test, which requires that the individual be able to "bind" the company in a legal sense. Finding that the chef did not meet that test, the 9th Circuit ruled the exclusion of the chef's testimony as a sanction was improper and reversed the jury's finding of no liability on the deli server position.



The second interesting facet is the important distinction between direct and circumstantial evidence. The court reversed the summary judgment of the company on the waiter and supervisor position, finding that the plaintiff had not been required to make a prima facie case under McDonnell-Douglas since she had offered sufficient direct evidence. Her testimony that an agent of the restaurant told her that his boss had overruled his hiring of her because she was pregnant was sufficient to allow her case to go to the jury.