## Facts

- Ernest E. Omotosho, an African-American former stock clerk, was fired by Giant Eagle, Inc., a regional supermarket chain, after the company concluded he consumed a food item without paying, allegedly violating workplace policy.
- Omotosho sued Giant Eagle (after removal to federal court) asserting four counts, including race-discrimination/wrongful discharge based on allegedly different treatment of white employees who committed similar or worse infractions.
- Before trial, the case narrowed and proceeded to a jury trial focused on the race-based discharge theory.
- During voir dire in the Northern District of Ohio (Youngstown seat of court), Omotosho objected and sought to stop the proceedings because no African Americans were included in the venire.
- The court denied stopping voir dire, but later permitted Omotosho’s counsel to question the court clerk about how the prospective jury pool for Youngstown was assembled.
- An all-Caucasian jury was empaneled. Omotosho moved for a mistrial; the court denied it.
- After a three-day trial, the jury returned a unanimous verdict for Giant Eagle.
- Omotosho timely moved for a new trial under Federal Rule of Civil Procedure 59, arguing that the jury-selection process violated the Jury Selection and Service Act of 1968 (JSSA), 28 U.S.C. § 1861 et seq., because it did not yield a fair cross-section of the community.

## Issues

1. Whether Omotosho established a prima facie JSSA fair-cross-section violation under the *Duren v. Missouri* framework based on the absence of African Americans from his venire and evidence of underrepresentation in the pool of qualified jurors for Youngstown.
2. Whether Omotosho showed that any underrepresentation resulted from “systematic exclusion” in the jury-selection process, such that a new trial was warranted under Rule 59.

## Decision

- The court denied Omotosho’s Rule 59 motion for a new trial.
- The court recognized that African Americans are a “distinctive” group and found that African Americans were significantly underrepresented in the pool of qualified jurors available for service in Youngstown.
- Despite the disparity, the court held Omotosho did not make the required prima facie showing that the underrepresentation was due to “systematic exclusion” caused by the jury-selection process.
- Because no JSSA fair-cross-section violation was shown, the jury’s verdict for Giant Eagle stood.

## Legal Principles

- The JSSA requires that federal juries be selected at random from a fair cross-section of the community in the district or division where the court convenes. 28 U.S.C. § 1861.
- A fair-cross-section claim under the JSSA is analyzed using the three-part test from *Duren v. Missouri*:
  - the group allegedly excluded is “distinctive” in the community;
  - the group’s representation in jury venires is not fair and reasonable relative to its proportion in the community; and
  - the underrepresentation is due to “systematic exclusion” of the group in the jury-selection process.
- Showing that a particular venire (or even a particular jury) contains no members of a minority group does not, by itself, establish a JSSA violation; the claimant must connect the disparity to a recurring feature of the selection method.
- Proof of underrepresentation in a qualified jury pool may satisfy the second *Duren* element, but the third element requires evidence that the procedures used to compile and qualify jurors regularly produce the disparity.
- Reliance on facially neutral source lists (such as voter-registration lists) and random selection mechanisms generally will not establish “systematic exclusion” without evidence that some step of the plan predictably filters out the group.
- A Rule 59 new-trial request based on the JSSA requires a showing of a qualifying statutory violation affecting the jury-selection process; concerns about representativeness alone do not mandate a retrial.

## Conclusion

The court denied Omotosho’s motion for a new trial because, although the record showed that African Americans were significantly underrepresented in the pool of qualified jurors for the Youngstown seat and none appeared on his venire, Omotosho did not prove that the disparity was caused by “systematic exclusion” attributable to the jury-selection process as required by the JSSA and the *Duren* test.


Omotosho v. Giant Eagle, Inc., 997 F. Supp. 2d 792 (2014)