Employment Discrimination

• Publication year: 2015

Employment Discrimination

Peter Reed Corbin

John E. Duvall

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Employment Discrimination

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

Perhaps the most significant cases during the 2014 survey period were those that were not handed down by United States Supreme Court, rather than the cases that were decided.¹ Easily the most talked about case during the survey period was the case pending before the Supreme Court, Young v. United Parcel Service, Inc.,² in which the Court will decide whether the Pregnancy Discrimination Act³ requires employers to offer work place accommodations to pregnant employees in order to remain on the job. Another high profile case is Mach Mining, LLC v. Equal Employment Opportunity Commission,⁴ in which the Supreme Court will decide whether the Equal Employment Opportunity Commission's (EEOC) statutorily required efforts to engage in conciliation before taking employers to court is subject to judicial review. However,

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treatment of the decisions in Young and Mach Mining will have to await the 2015 survey article because 2014 came to an end with the cases still pending before the Supreme Court.

That is not to say that the Supreme Court or the United States Court of Appeals for the Eleventh Circuit were not busy during the 2014 survey period. Indeed they were. Many decisions were handed down. However, the vast majority of Eleventh Circuit cases were unpublished decisions, and the majority of those decisions affirmed summary judgments in favor of employers. The number of these decisions again raises the question of why there continues to be so many appeals in this area in the face of well-established precedent. Selected highlights from these cases are summarized below.

I. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

A. Coverage under the Act - the Definition of Employer

The Eleventh Circuit's decision in Mastro v. Seminole Tribe of Florida⁵ is not that significant, but it is mentioned because it involved an issue that simply does not arise very often. The plaintiff worked as a car dealer at the Seminole Indian Casino in Immokalee, Florida.⁶ In response to the plaintiff's lawsuit alleging gender discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964⁷ and the Florida Civil Rights Act,⁸ the district court granted the tribe's motion to dismiss, finding that the tribe and casino were entitled to tribal immunity.⁹ On appeal, the Eleventh Circuit affirmed the dismissal, but did not reach the immunity question.¹⁰ Instead, the Eleventh Circuit relied upon the language of Section 701(b) of Title VII, recognizing that "Congress chose to expressly exempt Indian tribes from Title VII's definition of 'employer.'"¹¹

B. Disparate Treatment

In Galdamez v. DHL Air Express USA,¹² the Eleventh Circuit underscored how difficult it can be for a plaintiff to establish a "comparator" for purposes of a Title VII prima facie case, i.e., a

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"similarly situated" employee not in the plaintiff's protected category who received more favorable treatment for similar workplace infractions.¹³ The plaintiff worked for DHL, a global air freight company, at the Miami International Airport. Her job as an international service agent was physically demanding and involved lifting heavy objects. The plaintiff injured her knee on the job and requested a light-duty assignment. However, her request was denied by DHL. The plaintiff brought suit pursuant to Title VII, alleging gender discrimination. The district court granted summary judgment for the employer.¹⁴ On appeal, the Eleventh Circuit affirmed, agreeing that the plaintiff had not established a prima facie case because the plaintiff had not shown that "DHL's employment policies were applied less favorably to her than to a similarly situated male employee, i.e., a comparator."¹⁵ Even though the plaintiff argued that two male employees who had received light-duty assignments were valid comparators, the court of appeals rejected this argument because the male employees had different supervisors than the plaintiff and worked in different circumstances.¹⁶

An alternative to the comparator method of establishing a prima facie case under Title VII is the method of presenting a "convincing mosaic" of circumstantial evidence from which a reasonable jury could infer that the defendant acted with discriminatory intent.¹⁷ This is exactly the method that was relied upon by the plaintiff in Smith v. City of New Smyrna Beach.¹⁸ The plaintiff worked as a firefighter and paramedic for the City of New Smyrna Beach. During her initial job interview in 2003, the city's Fire Chief told the plaintiff that he usually "only really hire[d] men that hunt, fish, or camp" but that he had heard the plaintiff was "a pretty good ballplayer." After the plaintiff was hired, the only other woman working for the fire department, a lieutenant who became the plaintiff's mentor, advised her to "[k]eep your head down and your mouth shut." Soon after the plaintiff was hired, one of the three male battalion chiefs told the plaintiff that he did not believe women should be in the fire service. Another male lieutenant commented toward the plaintiff, "We [don't] need another split-tail here." The plaintiff experienced similar comments throughout her employment until her termination in 2008. The plaintiff brought a gender discrimination action pursuant to Title VII. Following a six-day jury trial, the jury

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ruled for the plaintiff and awarded her $244,000 in loss compensation and $200,000 for emotional pain and mental anguish.¹⁹ On appeal, the city argued that the plaintiff presented insufficent evidence to allow the jury to infer that the city intentionally discriminated against her on the basis of her gender, but the Eleventh Circuit had little difficulty in concluding otherwise.²⁰ Finding that plantiff had presented evidence that she "was not allowed to change shifts, was denied proper gear, and was yelled at or disciplined in situations where male firefighters were not similarly reprimanded," the court of appeals affirmed.²¹

C. Hostile Work Environment

Perhaps the most noteworthy Title VII case handed down by the Eleventh Circuit during the survey period was Adams v. Austal, U.S.A., L.L.C.²² The plaintiffs worked at a shipyard in Mobile, Alabama. They alleged a racially hostile work environment at the ship yard, and presented evidence of "vulgar racial graffiti in the men's restroom, appearances of nooses, displays of Confederate flags, and utterances of racial slurs."²³ Over a period of almost ten years, the company had repeatedly cleaned the graffiti from the restroom walls until, as the court noted, "it finally wised up and painted the walls black."²⁴ The district court granted summary judgment for the defendants in the cases of thirteen plaintiffs. Two cases went to trial, and in both instances, the jury ruled for the defendant.²⁵ On appeal, the issue before the court of appeals was whether a plaintiff could rely on evidence of racial harassment that he was not personally aware of in order to prove his claim. On this key issue, the Eleventh Circuit stated, "We now hold that an employee alleging a hostile work environment cannot complain about conduct of which he was oblivious for the purpose of proving that his work environment was objectively hostile."²⁶

In doing so, the Eleventh Circuit joined five other circuits in taking this position.²⁷ In applying this holding to the case at hand, the court of appeals "conclude[d] that seven of the employees presented sufficient evidence that their work environments were objectively hostile," and

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vacated the district court's award of summary judgment.²⁸ However, the court affirmed summary judgment in the other six cases, and also affirmed the two jury verdicts.²⁹

D. Sexual Harrassment

In Swindle v. Jefferson County Commission,³⁰ the Eleventh Circuit reaffirmed the importance of maintaining a formal anti-harassment policy that includes an effective complaint procedure for purposes of establishing the Faragher-Ellerth affirmative defense³¹ in sexual harrassment cases.³² The plaintiff worked for the Jefferson County Sheriff's Office as a member of the "weight crew." She worked in that position for approximately three and a half years until she was placed on administrative leave because of the county's financial problems. Prior to being placed on administrative leave, the plaintiff filed an internal complaint of sexual harassment, alleging that her immediate supervisor and another manager had been sexually harassing her for almost two years. The alleged conduct involved a variety of incidents of sexual comments, physical touching, and sexually suggested actions. Following an investigation by the Sheriff's Office, both of the supervisors were terminated. Thereafter, the plaintiff filed an action pursuant to Title VII asserting a sexual harassment claim. The district court granted summary judgment for the Sheriff's Office, finding that the Sheriff had established the Faragher-Ellerth affirmative defense.³³ On appeal, the Eleventh Circuit agreed and affirmed the district court's decision.³⁴ Regarding the first prong of the Faragher-Ellerth defense (that the employer "exercise[] reasonable care to prevent and promptly correct harassing behavior"), the court of appeals agreed that the Sheriff Office's formal anti-harassment policy, which had been openly adopted and communicated, met this prong.³⁵ Regarding the second prong of the

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Faragher-Ellerth defense (that the plaintiff "unreasonably failed to take advantage of the employer's preventive and corrective opportunties"), the Eleventh Circuit agreed that this prong was met as well.³⁶ Of note to the court of appeals was the delay by the plaintiff of almost two years in reporting her first instance of alleged harassment.³⁷

E. Retaliation

In Booth v. Pasco Co.,³⁸ although the plaintiffs brought Title VII actions against both their county employer and...