Omotosho v. Giant Eagle, Inc.

MEMORANDUM OF OPINION & ORDER [Resolving ECF No. 116]

Plaintiff Ernest E. Omotosho presents the Court with a motion for a new trial. ECF No. 116. A trial of Plaintiffs claim that he was wrongfully discharged from employment because of his race, African American, resulted in an unanimous verdict in favor of Defendant Giant Eagle, Inc. No African Americans sat on the jury that rendered the verdict. No African Americans were on the panel from which the jury was selected. Plaintiff asserts that he was denied his right to a jury selected from a fair cross section of the community, and, therefore, the jury selection process used by the Northern District of Ohio failed to comply with the Jury *795Selection and Service Act of 1968 (“JSSA”), 28 U.S.C. § 1861 et seq.

The Court has considered the briefs submitted by the parties, studied the evidence, and reviewed the governing law. The evidence shows that African Americans are significantly underrepresented in the pool of qualified candidates available for jury service in Youngstown, Ohio. Although the Court believes that measures can and must be undertaken to improve this shortcoming of the jury selection process, Plaintiffs motion for a new trial is denied because he did not make a prima facie showing that the fair cross section requirement of the JSSA was violated.

I. Factual and Procedural Background

This case had its genesis in the decision of Defendant, a regional supermarket chain, to fire Plaintiff as a stock clerk because he allegedly consumed an unpaid food item in violation of Defendant’s workplace policy. ECF Nos. 48 at 1-2; 51 at 2-3. Count One of the complaint alleged that white employees had committed similar or worse infractions but, unlike Plaintiff, were not terminated from employment, and that Plaintiffs discharge “violated [his] rights to be free from racial discrimination.” ECF No. 1-2 at 2. Count Two alleged that Defendant breached contractually binding workplace policies espousing equal opportunities for all employees without regard to race. ECF No. 1-2 at 2-3. Count Three alleged that Defendant’s actions constituted “libel and defamation of plaintiffs character.” ECF No. 1-2 at 3-4. Count Four alleged that Defendant wilfully, recklessly, or negligently caused Plaintiff to suffer emotional distress. ECF No. 1-2 at 4.

Defendant removed the action from the Mahoning County Court of Common Pleas on the basis of federal question jurisdiction. ECF No. 1. Noting that the complaint alleged a deprivation of rights secured by a collective bargaining agreement (“CBA”), that a CBA governed all the terms and conditions of Plaintiffs employment, and that Count Two essentially alleged a violation of a CBA, Defendant claimed that the lawsuit implicated federal law, namely, § 301 of the Labor Management Relations Act (“LMRA”).1 ECF No. 15 at 4-6; see ECF No. 1-2 at 1-3. Defendant also asserted that the LMRA applied because Plaintiffs prayer for relief seeks reinstatement, a CBA-created right. ECF No. 15 at 7. The Court agreed that it possessed federal jurisdiction, and denied a motion filed by Plaintiff to remand the case. ECF No. 17.

The parties forewent the filing of summary judgment motions and commenced a jury trial. Shortly prior to trial, the parties stipulated to the dismissal of Counts Two and Four, and the Court dismissed Count Three as untimely. ECF Nos. 58 and 78. The only matter to be tried was Count One: Plaintiffs claim of unlawful discharge on the basis of his race. After a three-day trial, an eight-member jury, all of whom were Caucasian, returned an unanimous verdict in favor of Defendant.

The issue of the jury’s racial composition was first raised by Plaintiff at the start of voir dire. He remarked to the Court that none of the twenty-four individuals comprising the panel that appeared for jury *796service were African American. He then moved to “stop the voir dire proceedings and conduct a hearing on the process that led us to have a [panel] of all Caucasians] and no African-Americans.” The Court— although observing that there appeared to be no African American panelists — denied Plaintiffs motion. Even so, the Court informed the parties that it would hold a hearing after the completion of voir dire and invite a representative from the Clerk’s Office to answer questions regarding the jury selection procedures. At the conclusion of that hearing, which was held prior to opening statements, Plaintiff moved for a “mistrial.” He contended that a fair jury had not been selected and that “the statistical likelihood of pooling a 24-member panel that includes no African-Americans in an evenhanded system would be virtually zero.” The Court again denied Plaintiffs motion. Nevertheless, because the Clerk’s Office representative conceded that she was not qualified to answer all of Plaintiffs questions, and because Plaintiff had not been given an adequate opportunity to examine the relevant data, the Court allowed Plaintiff to “take up the issue again” after he had a chance to investigate the jury selection procedures further.

Plaintiff did not offer additional evidence to support his jury challenge until after the trial. After the Court entered judgment in favor of Defendant, Plaintiff timely moved for a new trial pursuant to Rule 59. Plaintiff claims he was denied his right under the JSSA to a jury selected from a fair cross section of the community. ECF No. 116. In support of his motion, Plaintiff filed a memorandum of law and a number of exhibits, including the sworn affidavit of Guant-Hwa Andy Chang, a professor of mathematics and statistics; data, reports, and responses provided by the Clerk of Court for the Northern District of Ohio; and U.S. Census data. ECF Nos. 117; 117-1; 117-2; 123-1; 123-2; 123-3; 123-4. Defendant filed a brief in opposition. ECF No. 118. Plaintiff filed a reply and supplemental memoranda, and Defendant filed a supplemental opposition. ECF Nos. 119, 123, 127-1; 131. The motion is ready to be resolved.

II. Legal Standard

Fed.R.Civ.P. 59(a)(1)(A) authorizes a court to grant a new trial “after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” The Sixth Circuit has interpreted Rule 59 to require a new trial when the trial was “unfair to the moving party in some fashion .... ” Advance Sign Group, LLC v. Optec Displays, Inc., 722 F.3d 778, 787 (6th Cir.2013) (quoting Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 405 (6th Cir.2006)). A district court has “considerable discretion” in deciding whether to grant a Rule 59 motion. Leisure Caviar, LLC v. U.S. Fish & Wildlife Service, 616 F.3d 612, 615 (6th Cir.2010).

III. Discussion

The motion before the Court raises questions concerning whether Plaintiff received his statutory entitlements under the JSSA. The act declares that “[i]t is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.” 28 U.S.C. § 1861. The “fair cross section” language is drawn from the Supreme Court’s jurisprudence defining criminal defendants’ rights to a fair jury under the Sixth Amendment. In re United States, 426 F.3d 1, 8 (1st Cir.2005). Although the Sixth Amendment does not govern civil cases; Turner v. Rogers, — U.S. —, 131 S.Ct. 2507, 2516, 180 L.Ed.2d 452 (2011); the Sixth Circuit and its sister *797courts have adopted the test for evaluating constitutional fair cross section claims as the standard for analyzing fair cross section claims under the JSSA, which applies to civil cases. United States v. Allen, 160 F.3d 1096, 1102 (6th Cir.1998), cert. denied, 526 U.S. 1044, 119 S.Ct. 1345, 143 L.Ed.2d 508 (1999); see United States v. Royal, 174 F.3d 1, 6 (1st Cir.1999); United States v. Shinault, 147 F.3d 1266, 1270-71 (10th Cir.), cert. denied, 525 U.S. 988, 119 S.Ct. 459, 142 L.Ed.2d 411 (1998); United States v. Clifford, 640 F.2d 150, 155-56 (8th Cir.1981). To establish a prima facie violation of the fair cross section requirement, a litigant must demonstrate:

(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this un-derrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

There is no dispute that African Americans are a “distinctive” group in the community. The salient questions raised by Plaintiff’s motion are whether the remaining Duren requirements are met. Plaintiff asserts that the evidence he marshals conclusively shows that, here in Youngstown, the representation of African Americans in jury panels (interchangeably used with “venires”) is not fan* and reasonable in relation to the African American presence in the community, and African Americans are systematically excluded from the jury selection process. The Court examines the evidence in the sections below.

A. JSSA’s Statutory Requirements

Before proceeding to the substance of Plaintiffs claims, the Court must address the contention that Plaintiffs motion fails to comply with threshold statutory requirements. Defendant claims that the JSSA does not permit Plaintiff to seek a new trial. ECF No. 118 at 6. The exclusive method by which Plaintiff could have challenged the jury, argues Defendant, was to move to stay the proceedings. ECF No. 118 at 6. Defendant also claims that Plaintiff was required to make that motion before voir dire began, and he failed to do so. ECF No. 118 at 6.

The JSSA provides: “In civil cases, before the voir dire examination begins, or within seven days after the party discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, any party may move to stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the petit jury.” 28 U.S.C. § 1867(c). The next subsection in § 1867, subsection (d), states that upon a properly filed motion the moving party “shall be entitled” to present in support of such motion “the testimony of the jury commission or clerk,” “any relevant records and papers” used by the jury commission or clerk, and “any other relevant evidence.” 28 U.S.C. § 1867(d). If the court determines that there has been “a substantial failure to comply with the provisions of this title” in selecting a petit jury, then the statute directs the court to “stay the proceedings pending the selection of a petit jury in conformity with this title.” Id. Importantly, subsection (e) specifies that “[t]he procedures prescribed by this section shall be the exclusive means by which ... a party in a civil case may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title.” 28 U.S.C. § 1867(e).

Defendant contends that the exclusivity requirement of § 1867(e) defeats *798Plaintiffs attempt to obtain a new trial. Its reasoning: a motion to stay is the only instrument described in § 1867 as a vehicle to “challenge any jury.” The Court is not persuaded that “exclusive” means that a litigant is foreclosed from recourse once the district court denies the motion to stay. That could not be what Congress intended. Plaintiff moved — twice—to stop the proceedings. The first motion was made at the commencement of voir dire, when Plaintiffs counsel pointed out that there were no African Americans in the panel. The second motion was presented at the hearing conducted after voir dire.2 Because the Court denied Plaintiff the relief he sought, he should be entitled to seek a new trial if he believes he was unfairly prejudiced by the Court’s decisions. In so seeking, moreover, Plaintiff is not attempting to “challenge any jury” within the meaning of § 1867(e). He accomplished that feat when he timely lodged the motions to stay. Rather, what Plaintiff challenges now are the Court’s rulings with respect to those motions. Thus, the exclusivity requirement of § 1867(e) does not apply.

Defendant also maintains that Plaintiffs efforts to stop the proceedings were untimely because they were not made prior to the beginning of voir dire. A party is permitted under the JSSA to present a motion to stay “before the voir dire examination begins, or within seven days after the party discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier ....” 28 U.S.C. § 1867(c) (emphasis added). Plaintiffs first motion to stay was lodged after the Court swore in the jury panel but before the Court and the parties began questioning the prospective jurors. Thus, the motion was made prior to the “examination” of the jury panel. Moreover, Plaintiff could not have discovered the grounds for his motion earlier than the day of voir dire, when he was able to observe, for the first time, the racial composition of the jury panel. Therefore, the Court concludes that Plaintiff complied with the time requirements of § 1867(c).3

Contrary to Defendant’s arguments, Plaintiffs motion for a new trial is not barred by the above statutory requirements. Accordingly, the Court proceeds to the merits of the motion.

B. Fair and Reasonable Representation

Plaintiff argues that the representation of African Americans on Youngstown jury panels is not fair and reasonable in relation to the representation of African Americans in the community. ECF No. 117 at 3. As evidence, Plaintiff points out that no African Americans appeared on the panel from which jurors were selected *799for his trial. ECF No. 117 at 2. Plaintiff also submits a report prepared by the Clerk of Court, known as an “AO 12,”4 which analyzes the operation of the jury selection plan in Youngstown. ECF No. 117 at 3. One function of the AO 12 is to compare the demographic characteristics of a particular qualified jury wheel against the demographic characteristics of the corresponding community. The proffered report reveals that as of March 14, 2012, African Americans comprised only 3.46% of the 2,458 names in the qualified jury wheel for Youngstown, even though African Americans are 9.5% of the voting-age population in the Youngstown community.5 ECF No. 117-2 at 10.

The disparity must be understood in the context of the Northern District of Ohio’s jury selection procedures. The district consists of four geographic divisions: Akron, Cleveland, Toledo, and Youngstown (the division where the instant Court sits). In the Northern District of Ohio, as in other federal judicial districts, the jury selection process is governed by a “written plan” adopted by the district court in accordance with the JSSA. 28 U.S.C. § 1863(a). The jury selection plan must comply with the JSSA’s provisions and must also be approved by a reviewing panel consisting of the members of the Judicial Council of the Sixth Circuit. Id.

The district’s current plan prescribes that the source of names from which potential jurors are selected shall be from the general election voter registration lists provided by the Ohio Secretary of State. ECF No. 117-2 at 32. Following each presidential election, names are randomly drawn from these lists and placed in a master jury wheel designated for a geographic division. ECF No. 117-2 at 33. The master jury wheel contains names of individuals residing within the division to whom juror qualification questionnaires are mailed. ECF No. 117-2 at 34. The Clerk determines, based on the information returned, whether an individual is unqualified, exempt, or excused from jury service. ECF No. 117-2 at 34-35. The names of those whom are deemed to be qualified for service are then placed in a qualified jury wheel. ECF No. 117-2 at 34. The qualified wheel holds the names of individuals whom, from time to time, are randomly selected by the Clerk to be issued summonses for jury service. ECF No. 117-2 at 36. In June 2013, the month of Plaintiffs trial, the Youngstown division was relying on the master wheel created after the 2008 presidential election. ECF No. 117-2 at 3.

The AO 12 for Youngstown discloses an underrepresentation of African Americans in the source of names from which qualified individuals are chosen for jury service. Although the AO 12 does not provide precise information regarding the demographic composition of venires, or jury panels, the report serves as a reliable proxy because veniremen are randomly selected from the qualified jury wheel. The disproportionate representation of groups within a qualified wheel, therefore, may provide a basis for a fair cross section claim. See United States v. Jackman, 46 F.3d 1240, 1244 (2d Cir.1995) (“fair cross-section requirement applies only to the *800larger pool serving as the source of names .... In other words, the Sixth Amendment guarantees the opportunity for a representative jury venire” [citation omitted; emphasis in original]). The mere underrepresentation of a distinctive group does not, alone, adversely implicate the fair cross section requirement. Plaintiff must, pursuant to Duren, show that the underrepresentation is “not fair and reasonable.” In that regard, Plaintiff urges the Court to view the evidence through two lenses: absolute disparity and comparative disparity. ECF No. 117 at 3. These statistical concepts are ably summarized by the Tenth Circuit as follows:

Absolute disparity measures the difference between the percentage of a group in the general population and its percentage in the qualified wheel. For instances, if Asians constitute 10% of the general population and 5% of the qualified wheel, the absolute disparity is 5%. Comparative disparity measures the decreased likelihood that members of an underrepresented group will be called for jury service, in contrast to what their presence in the community suggests it should be. This figure is determined by dividing the absolute disparity of the group by that group’s percentage in the general population. In the example above, the comparative disparity is 50%: Asians are half as likely to be on venires as they would be if represented in proportion to their numbers in the community.

Shinault, 147 F.3d at 1272 (emphasis in original). According to the AO 12, the underrepresentation of African Americans in the Youngstown qualified jury wheel is 6.04%, as measured by the absolute disparity method, and 63.7%, as measured by the comparative disparity method.

The Court acknowledges that many “[c]ourts are generally reluctant to find that the second element of a prima face [fair cross section] case has been satisfied when the absolute disparities are less than 10%.” Shinault, 147 F.3d at 1273; see United States v. Rodriguez, 776 F.2d 1509, 1511 (11th Cir.1985) (“this circuit has consistently found that a prima facie case of underrepresentation has not been made where the absolute disparity between these percentages does not exceed ten percent”); United States v. Quinones, No. 93-10751, 1995 WL 29500 at *9 (9th Cir. January 26, 1995) (“[t]his circuit has consistently held that absolute disparities below 7.7% are insubstantial and constitutionally permissible”); United States v. Butler, 611 F.2d 1066, 1070 (5th Cir.) (10% absolute disparity permissible), cert. denied, 449 U.S. 830, 101 S.Ct. 97, 66 L.Ed.2d 35 (1980); United States v. Rioux, 930 F.Supp. 1558, 1570 (D.Conn.1995) (“courts have approved disparities between 2% and 11.5%”), aff'd, 97 F.3d 648 (2d Cir.1996).

Nevertheless, the Sixth Circuit has doubted “the wisdom of applying the absolute disparity test to measure the under-representation of [a] small African American population .... ” Smith v. Berghuis, 543 F.3d 326, 337 (6th Cir.2008), rev’d in part on other grounds, 559 U.S. 314, 130 S.Ct. 1382, 176 L.Ed.2d 249 (2010). For example, if a district with a 10% non-white population has 0.5% non-whites in the qualified wheel, then the 9.5% absolute disparity “may not invoke disapproval under an absolute measure but may require it under a comparative measure.” Id. at 338 (quoting Foster v. Sparks, 506 F.2d 805, 835 (5th Cir.1975)). The Sixth Circuit therefore declared that “[w]here the distinctive group alleged to have been underrepresented is small ... the comparative disparity test is the more appropriate measure of underrepresentation.” Id.

Using the comparative disparity analysis, the Sixth Circuit concluded, in Ber-ghuis, that the numbers established in that *801case were “sufficient to demonstrate that the representation of African American veniremen in Kent County at the time of Petitioner’s trial was unfair and unreasonable.” Berghuis, 543 F.3d at 338. The evidence showed that 7.28% of the jury-eligible population of Kent County was African American, and, in the six months prior to the petitioner’s trial, only 6% of those who appeared for jury panels in that county were African American. Id. at 337-38. The comparative disparity was therefore 18% in the six months prior to the trial. Id. The evidence also showed that this disparity increased to 34% in the month of the trial. Id. These numbers— 18% and 34% — are considerably lower than the 63.7% comparative disparity demonstrated by Plaintiff.

Admittedly, the Sixth Circuit’s discussion and application of the comparative disparity method is dicta. Berghuis was brought to federal court not as a direct jury challenge but as a habeas petition challenging the Michigan Supreme Court’s rejection of the petitioner’s fair cross section claim. Berghuis, 543 F.3d at 333. The Michigan Supreme Court had given the petitioner “the benefit of the doubt” on the second Duren requirement, and had proceeded to the third prong of the analysis where it reached the conclusion that was ultimately dispositive, namely, that the petitioner had failed to prove the systematic exclusion of African Americans from the jury selection process. People v. Smith, 463 Mich. 199, 205, 615 N.W.2d 1 (2000). It must also be noted that the comparative disparity analysis can be misleading when members of a group compose only a small percentage of those eligible for jury service. Berghuis v. Smith, 559 U.S. 314, 329, 130 S.Ct. 1382, 176 L.Ed.2d 249 (2010). To illustrate: if the community contained only one member of a particular group, and that member was not included in the jury wheel, the comparative disparity would be 100% even though a jury without that member would “clearly” form a fair cross section of the community. United States v. Royal, 174 F.3d 1, 7 n. 4 (1st Cir.1999); see also United States v. Hafen, 726 F.2d 21, 24 (1st Cir.) (“the smaller the group is, the more the comparative disparity figure distorts the proportional representation”), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984); but see United States v. Rogers, 73 F.3d 774, 777 (8th Cir.) (“the comparative disparity calculation provides a more meaningful measure of systematic impact vis-a-vis the ‘distinctive’ group”), cert. denied, 517 U.S. 1239, 116 S.Ct. 1889, 135 L.Ed.2d 183 (1996).

“[T]he debate about use of absolute disparity versus comparative disparity has existed for at least 25 years.” Royal, 174 F.3d at 6 n. 3. The Court need not, however, delve further into this subject in order to conclude that the numbers shown by Plaintiff are dismal. African Americans constitute a substantial segment of the Youngstown population — nearly 10% — yet they comprised only one-third of that figure in the qualified wheel, as reported by the AO 12. Plaintiffs expert in statistics, Guanb-Hwa Andy Chang, opines that this difference causes African Americans to be underrepresented on jury panels 95.12% of the time. ECF No. 117-1 at ¶ 11. Excusing this shortfall through application of the 10% absolute disparity marker cannot be countenanced. “[T]o hold otherwise would prevent fair cross-section claims in areas where the minority population was less than 10%.” Ambrose v. Booker, 684 F.3d 638, 643 (6th Cir.2012), cert. denied, — U.S. —, 133 S.Ct. 993, 184 L.Ed.2d 771 (2013).

The population of African Americans in Youngstown is not so slight as to disfavor the comparative disparity analysis, which shows that African Americans were 63.7% less likely to be called for jury service than *802they would have been if they were proportionally represented in the qualified wheel. This likelihood is significant, and its effects can be pernicious. No expert is needed for the Court to perceive that this degree of African American underrepresentation in the jury selection process can diminish the quality of jury deliberations, frustrate the ability of juries to reach decisions reflecting “the community’s sense of justice,” and threaten the public’s confidence in the fairness and impartiality of our judicial system. See Batson v. Kentucky, 476 U.S. 79, 87, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Taylor v. Louisiana, 419 U.S. 522, 529 n. 7, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Apodaca v. Oregon, 406 U.S. 404, 410-411, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) (plurality opinion); Thiel v. Southern Pacific Co., 328 U.S. 217, 227, 66 S.Ct. 984, 90 L.Ed. 1181 (1946) (Frankfurter, J., dissenting).

The Clerk of Court has assured that, as of December 6, 2013, the qualified wheel for Youngstown has markedly improved since it was analyzed in the 2012 AO 12; the proportion of African Americans has increased to 5.41%. ECF No. 127-2 at 2, 11. While this percentage is healthier, it does not excuse or redeem the wheel’s deficiencies at the time of the report. It is also not a percentage that should be institutionally regarded as acceptable when it remains, in fact, highly unsatisfactory. Efforts must be made to understand why the qualified wheel so materially underre-presents African Americans in Youngstown. The evaluation and adoption of methods to improve — and maintain over time — the representative characteristic of the qualified wheel is imperative to the fair administration of justice, and must be made a top priority in this district.

Notwithstanding the above, the Court will refrain from ruling on whether Plaintiffs evidence satisfies the second prong of the Duren test. Such a ruling need not be made because, as will be explained below, Plaintiff fails to satisfy the third prong of the test, which requires that he demonstrate that African Americans are systematically excluded from the jury selection process.

C. Systematic Exclusion

Plaintiff claims that two factors work in tandem to systematically exclude African Americans from the jury selection process. ECF No. 117 at 4-6. First, Plaintiff contends that “it is well known that African-Americans have a comparatively high rate of mobility.” ECF No. 117 at 5. Second, Plaintiff argues that the Northern District of Ohio fails to update the addresses of the individuals whose names are in the master jury wheel. ECF No. 117 at 4-6. According to Plaintiffs theory, African Americans are therefore less likely to receive and return the juror qualification questionnaires mailed by the Clerk’s Office, which, in turn, causes them to be underrepresented in the qualified jury wheel. ECF No. 119 at 7.

1.

Before turning to the evidence, the Court first considers whether Plaintiffs theory describing systematic exclusion can prevail as a matter of law. Systematic exclusion means that “the cause of the underrepresentation ... [was] inherent in the particular jury-selection process utilized.” Duren, 439 U.S. at 366, 99 S.Ct. 664; see Polk v. Hunt, No. 95-5323, 1996 WL 47110 at *2 (6th Cir. February 5, 1996); United States v. Smallwood, 188 F.3d 905, 914 (7th Cir.1999).

The classic examples of systematic exclusion are found in the cases of Taylor and Duren. Taylor involved a Louisiana law requiring that a woman could not be selected for jury service unless she had previously filed a written declaration of her desire to serve. Taylor v. Louisiana, *803419 U.S. 522, 523, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The Supreme Court held that the law, which did not apply to men, and which caused women to account for no more than 10% of the jury wheel, systematically excluded women from jury service. Id. at 524 and 538, 95 S.Ct. 692. In Du-ren, both the questionnaires and the summonses mailed to prospective jurors specially allowed women to claim automatic exemptions from jury service. 439 U.S. at 361, 99 S.Ct. 664. As a result of these exemptions, only 26.7% of those summoned for jury service were women, and only 14.5% of those who appeared in venires during the period in which the defendant’s jury was chosen were female. Id. at 367, 99 S.Ct. 664. The Supreme Court held that the resulting disproportionate exclusion of women “was quite obviously due to the system by which juries are selected,” which system was “the operation of Missouri’s exemption criteria ... as implemented in Jackson County.” Id. (emphasis in original).

After Duren and Taylor, circuit courts, including the Sixth Circuit, have stated that a group is not systematically excluded if prospective jurors are “gathered without active discrimination.” Polk, 1996 WL 47110 at *2 (emphasis added); see Barber v. Ponte, 772 F.2d 982, 997 (1st Cir.1985) (“courts have tended to allow a fair degree of leeway in designating jurors so long as the state or community does not actively prevent people from serving or actively discriminate” [emphasis in original] ), cert. denied, 475 U.S. 1050, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986); United States v. Cecil, 836 F.2d 1431, 1446 (4th Cir.) (iquoting Ponte), cert. denied, 487 U.S. 1205, 108 S.Ct. 2846, 101 L.Ed.2d 883 (1988). Active discrimination need not involve the intent to discriminate. Jackman, 46 F.3d at 1246 (“the defendant need not prove discriminatory intent on the part of those constructing or administering the jury selection process”). In Jackman, a jury clerk, when selecting individuals to summon for jury service, substantially relied on a qualified jury wheel that had erroneously excluded all residents from two cities within the division. Id. at 1245. The two cities were home to 62.93% and 68.09% of all voting-age African American and Hispanic populations within the division. Id. at 1242. In holding that these groups were systematically excluded from jury selection, the Second Circuit noted that the clerk’s level of fault was irrelevant. Id. at 1245. Rather, “[s]ince the inadequacy of the procedure used was plainly accomplished by action within the Court, what occurred presented] a cognizable [fair cross section] claim.”