Employment Discrimination

• Jurisdiction: United States,Federal
• Publication year: 2016
• Citation: Vol. 67 No. 4

Employment Discrimination

Peter Reed Corbin

John E. Duvall

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Employment Discrimination

by Peter Reed Corbin^* and John E. Duvall^**

Clearly the most significant case handed down during the 2015 survey period¹ was the March 2015 decision by the United States Supreme Court in Young v. United Parcel Service, Inc.² In Young, the Supreme Court decided that the Pregnancy Discrimination Act (PDA)³ does, in fact, require employers to offer workplace accommodations to pregnant employees in order to remain on the job.⁴ This case has almost certainly required a host of employers to review and probably revise the leave policies they had in place prior to the decision being handed down. Otherwise, the 2015 survey period was a busy, but unspectacular, year. Of course, in what has become an annual tradition, there was the usual large number of unpublished (and often per curiam) decisions handed down by the United States Court of Appeals for the Eleventh Circuit, most of which were decisions affirming summary judgment in favor of the employer.

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I. Title VII of the Civil Rights Act of 1964

A. Disparate Treatment

In Flowers v. Troup County,⁵ the Eleventh Circuit was confronted with the issue of whether the plaintiff had presented sufficient evidence of pretext to allow his race discrimination claim to go to a jury.⁶ The plaintiff worked as a high school football coach for Troup High School in Troup County, Georgia. When he was hired in 2010, the plaintiff had been the first black head football coach in Troup County since the school district was desegregated in 1973. In the spring of 2011, the plaintiff's coaching career was placed in jeopardy in the face of certain alleged recruiting violations involving some of his players. The district school board hired a private investigator to look into the recruiting issues. The private investigator found that the mother of one of Flowers' star football players had been evicted from her Troup County apartment (thus making the player ineligible because he could not meet the residency requirement). The investigator also found that the plaintiff had intervened by personally making rental payments to secure the apartment. Thereafter, the school superintendent fired the plaintiff based upon the investigative report.⁷ The plaintiff filed an action under Title VII of the Civil Rights Act of 1964⁸ alleging race discrimination. The district court granted summary judgment in favor of the school district.⁹

On appeal, the plaintiff made three arguments that he had created a jury question on the issue of pretext.¹⁰ The Eleventh Circuit rejected all three.¹¹ First, the plaintiff argued that there was insufficient evidence to find he had committed the recruiting violations.¹² The court of appeals determined that it was "irrelevant whether [the plaintiff] had actually committed a recruiting violation."¹³ Rather, the superintendent fired the plaintiff based on "an honest belief the plaintiff had committed recruiting violations, and that was enough to show the

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superintendent did not fire the plaintiff on a pretext.¹⁴ Second, the Eleventh Circuit rejected the comparators the plaintiff put forth, holding no reasonable person would have found them sufficiently "similarly situated."¹⁵ Finally, the Eleventh Circuit held the plaintiff failed to present "a convincing mosaic of circumstantial evidence" showing he had been the victim of race discrimination.¹⁶ Rejecting all three arguments, the Eleventh Circuit affirmed the district court.¹⁷

B. Retaliation

The plaintiff in Perry v. Rogers,¹⁸ was one of the few plaintiffs during this survey period who succeeded in getting an employer's summary judgment reversed on appeal.¹⁹ The plaintiff was one of three plaintiffs who brought claims of race discrimination and retaliation against their employer, the Alabama Alcoholic Beverage Control (ABC) Board. The plaintiff worked as an Administrative Support Assistant II, a role in which she was responsible for answering the telephone and filing and retrieving documents. The plaintiff's supervisor subjected her to two disciplinary actions relevant to her claim of retaliation. The first was a written reprimand for tardiness and insubordination, and the second was a three-day suspension for violating leave policies and procedures. Before the plaintiff left for her suspension, her supervisor instructed her to create a staffing schedule to cover the switch board while she was gone. The plaintiff forgot to do so. When she returned from her suspension, she was confronted by her supervisor, who chided her for insubordination. Following this encounter, the plaintiff left the building. When she did not return to work after a few days, the defendant sent her a letter advising that her actions constituted job abandonment and voluntary resignation.²⁰

In the plaintiff's subsequent lawsuit under Title VII, the district court granted summary judgment for the defendant on all counts.²¹ On appeal, the Eleventh Circuit concluded that the defendant's "close monitoring and disciplinary decisions" within a month after the plaintiff filed her Title VII lawsuit were sufficient to create a jury question on the

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issue of retaliation.²² The court of appeals was also influenced by evidence that another manager had commented to the plaintiff's supervisor after the plaintiff walked off the job, "Man, you set her up," while making a "thumbs-up gesture" toward the supervisor.²³ This evidence, coupled with the close temporal proximity between the filing of the plaintiff's lawsuit and the subsequent disciplinary actions, was sufficient to create a disputed issue of material fact.²⁴ Accordingly, the court of appeals reversed and remanded with respect to the plaintiff's retaliation claim.²⁵

C. Pregnancy Discrimination Act

Easily the most widely discussed case during the survey period was the Supreme Court opinion Young v. United Parcel Service, Inc.²⁶ The issue before the Court was how the PDA applies "in the context of an employer's policy that accommodates many, but not all, workers with nonpregnancy-related disabilities."²⁷ The plaintiff was employed as a part-time driver for the United Parcel Service, Inc. (UPS). Her duties included picking-up and delivering packages that had arrived by air carrier the previous evening. The plaintiff became pregnant. Her doctor advised her that she could not lift more than 20 pounds during the first 20 weeks of her pregnancy and could not lift more than 10 pounds thereafter. However, the requirements of the plaintiff's job as a part-time driver required her to lift parcels weighing up to 70 pounds (and up to 150 pounds with assistance). Accordingly, UPS advised the plaintiff that she could not work while under her lifting restriction.²⁸ The plaintiff then brought suit pursuant to Title VII, alleging UPS violated Title VII and the PDA by refusing to accommodate her "pregnancy-related lifting restriction."²⁹ UPS had a policy that accommodated workers who had been injured on the job, had a disability under the Americans with Disabilities Act (ADA),³⁰ or had lost their Department of Transportation (DOT) certification.³¹ The district court

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granted summary judgment in favor of UPS, and the United States Court of Appeals for the Fourth Circuit affirmed.³²

The Supreme Court rejected the broad interpretation of the PDA advocated by the plaintiff and the Equal Employment Opportunity Commission (EEOC), as well as the narrow interpretation advocated by the defendant, and adopted more of a middle ground approach.³³ The Supreme Court held pregnant plaintiffs could establish disparate treatment under the PDA by following McDonnell Douglas v. Green³⁴ and the decision's long-established circumstantial evidence model of proof.³⁵ Thus, according to the Supreme Court, a plaintiff could establish a prima facie case under the PDA by showing "that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others 'similar in their ability or inability to work.'"³⁶ In response to a prima facie showing, the employer could rebut this showing by articulating "legitimate, nondiscriminatory" reasons for denying the accommodation.³⁷ Finally, the plaintiff would be given the opportunity to show the employer's articulated reasons were a pretext for a discriminatory motive.³⁸ Applying this model of proof, the Supreme Court determined that the Fourth Circuit decision should be vacated since there was a dispute as to whether the defendant had provided more favorable treatment to "at least some employees whose situation cannot reasonably be distinguished from [the plaintiff's]."³⁹ The Court did not determine whether pretext had in fact been established; rather, the Court left that decision for the Fourth Circuit on remand.⁴⁰ Regardless of the outcome of this specific case, however, the case clearly requires a host of employers to reexamine and revise their existing maternity leave policies.

D. Gender-based Salary Discrimination

The issue of gender-based salary discrimination was before the Eleventh Circuit in Blackman v. Florida Department of Business & Professional Regulation.⁴¹ The plaintiff had begun her career as a

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typist for the Florida Department of Business and Professional Regulation (DBPR). Following a 20-year career, the plaintiff was promoted to the position of bureau chief of operations in the Division of Pari-Mutuel Wagering in 2006. At that time, she received a 14% raise in salary, earning $57,700. Thereafter, she received a legislatively-mandated raise of 3%, which brought her salary to approximately $59,500. The following year, the state legislature stopped providing its mandated annual raises. The plaintiff's salary then remained static for 5 years, until January 2012, when she received a 3.4% discretionary increase to $61,500.⁴²

Upon learning that she made less than two other male division...