Employment Discrimination
| Publication year | 2013 |
Employment Discrimination
Peter Reed Corbin
John E. Duvall
[Page 891]
After last year's blockbuster year, the United States Supreme Court was relatively quiet in the area of employment discrimination during the 2012 survey period.1 The High Court's most significant ruling was its decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC,2 in which the Court held that the First Amendment's3 Establishment and Free Exercise Clauses create a "ministerial exception" that barred a disability discrimination lawsuit against a religious organization.4
However, the United States Court of Appeals for the Eleventh Circuit offset the Supreme Court's inactivity by handing down six published Title VII opinions and ten published decisions in the employment discrimination area overall (the highest number in recent years). Perhaps the most noteworthy of these was the decision in Gowski v.
[Page 892]
Peake,5 in which the court of appeals recognized for the first time a retaliatory hostile work environment claim.6 The court also continued its recent trend of handing down a huge number of unpublished decisions, most often affirming a summary judgment for the employer. A select few of the more significant unpublished decisions have been reported on below.
A. Theories of Liability and Burdens of Proof
1. Pregnancy Discrimination. Becoming pregnant out of wedlock did not work out so well for the plaintiff in Hamilton v. Southland Christian School, Inc.7 The plaintiff worked as a teacher for a small Christian school. She and her fiancé conceived a child and married a month later. Several months after, in the midst of a meeting for the purpose of requesting maternity leave, the plaintiff admitted that she had conceived the child before she was married. The school responded by firing the plaintiff for the "sin" of engaging in premarital sex.8 The plaintiff filed suit pursuant to Title VII9 alleging that she had been discriminated against because of her pregnancy.10 The district court granted summary judgment for the school because the plaintiff could not produce evidence of "a nonpregnant comparator who was treated differently."11
On appeal, the Eleventh Circuit reversed the district court.12 Citing its prior decision in Smith v. Lockheed-Martin Corp.,13 discussed in the 2012 Eleventh Circuit Survey,14 the court of appeals distinguished McDonnell Douglas Corp. v. Green15 and held that there was "more than one way to show discriminatory intent" than the indirect model of proof.16 "Another way," according to the court, was to present "circumstantial evidence that creates a triable issue concerning the employer's
[Page 893]
discriminatory intent."17 Even without evidence of a comparator, the court held that the plaintiff had done exactly that.18 Pointing to evidence that the school had been "more concerned about her pregnancy and her request to take maternity leave than about her admission that she had premarital sex," the court of appeals reversed and remanded the case for further proceedings.19
A similar fate befell the district court's decision in Chapter 7 Trustee v. Gate Gourmet, Inc.20 The plaintiff worked as a customer service representative at the Hartsfield-Jackson Atlanta International Airport. She drove a truck for the defendant's catering business, and would drive the truck from the company's warehouse to the airport gate where a waiting airplane was docked. Using a lift system, she would push carts of food, drinks, and ovens across a ramp from her truck to the airplane. When the plaintiff became pregnant and developed medical restrictions (no lifting over twenty pounds, no prolonged standing, no working at heights that increased the chance of falling), she was terminated because the company allegedly had no available positions to accommodate the plaintiff's restrictions. In the plaintiff's resulting pregnancy discrimination action pursuant to Title VII, the district court granted summary judgment for the employer because the plaintiff could not identify a similarly situated individual outside of the protected class who was treated differently.21
On appeal the Eleventh Circuit, again relying upon its Lockheed-Martin decision, reversed.22 Noting that under Lockheed-Martin, the lack of a comparator does not "necessarily doom" the plaintiff's case, the court of appeals held that there was enough "non-comparator evidence for a jury to reasonably infer that" the plaintiff had been discriminated against.23 For starters, the plaintiff's supervisor had made his termination decision without even checking with his superiors as to whether there was an available light duty position that the plaintiff could have performed with her restrictions (despite the fact that it was company policy to do so).24 The court also pointed to an admission that the company's human resources director had made at her deposition that the plaintiff's pregnancy had been a "substantial or motivating factor" in the
[Page 894]
supervisor's decision to terminate her.25 In the face of this evidence, the court of appeals vacated the summary judgment and remanded the case for further proceedings.26
2. Cat's Paw Theory. The decision in Lockheed-Martin and the Supreme Court's "cat's paw" case in Staub v. Procter Hospital27 saved the plaintiff's case in King v. Volunteers of America, North Alabama, Inc.28 The plaintiff worked as a service coordinator for Volunteers of America (VOA), a Christian organization that operated group homes for developmentally challenged individuals. The plaintiff's supervisor, according to the evidence, was an individual who frequently made racial comments (including the "n" word), displayed favoritism toward Caucasian employees, forced African-American employees to file false reports of misconduct against other African-American employees, and believed African-American employees were inferior. The supervisor also made it known that he would engineer the plaintiff's termination and that the defendant's CEO would "rubber stamp" any action that he took. A sequence of reprimands by the supervisor led to the plaintiff's termination by the CEO.29 In the subsequent lawsuit by the plaintiff pursuant to Title VII and Section 198130 alleging race discrimination and retaliation, the district court granted summary judgment for VOA.31
On appeal, the Eleventh Circuit acknowledged the plaintiff could not establish her case either through direct evidence or through the traditional McDonnell Douglas approach (there was no evidence of a relevant comparator or that the plaintiff was replaced by a Caucasian employee).32 However, citing Lockheed-Martin, the court of appeals noted that this was not fatal to her claims.33 The court then held that, under Staub, there was sufficient evidence (particularly the evidence that the supervisor would engineer the plaintiff's termination and that the CEO would rubber-stamp anything he did) showing the CEO was the
[Page 895]
supervisor's cat's paw in carrying out the plaintiff's termination.34 Accordingly, the Eleventh Circuit reversed and remanded.35
The result in the above three cases raises the question, at least within the Eleventh Circuit, of the long-term continued vitality of the circumstantial evidence model of proof first established in McDonnell Douglas v. Green,36 which has governed disparate treatment employment discrimination cases for forty years. Through a somewhat mechanical application of the elements in the McDonnell Douglas burden-shifting model of proof, the courts have resolved countless employment discrimination cases for many, many years (and more often than not in favor of the employer). The Lockheed-Martin approach, on the other hand, is a much more flexible, case-by-case approach to employment discrimination cases. It clearly will result in fewer summary judgments (and hence more settlements, which may well be what the court has in mind by taking this approach), and in this sense, will clearly benefit plaintiffs.
3. Religious Discrimination. In Walden v. Centers for Disease Control & Prevention,37 the plaintiff worked as an Employee Assistance Program (EAP) Counselor for Computer Sciences Corporation (CSC), which administered the EAP pursuant to a contract with the Centers for Disease Control and Prevention (CDC). The plaintiff was a "devout Christian" who believed that same-sex sexual relationships were "immoral."38 When confronted with a gay client involved in a same-sex relationship, the plaintiff referred the client to a colleague, explaining that she could not provide counseling because of her "personal values."39 The client complained to the CDC, saying she felt "judged and condemned."40 When the plaintiff would not alter her approach, she was removed from the EAP contract, and after she failed to apply for another position with CSC, she was laid off.41 The plaintiff brought suit against both the CDC and CSC alleging that the defendants violated her free exercise rights under the First Amendment and the Religious Freedom Restoration Act of 199342 (RFRA); and also alleging religious
[Page 896]
discrimination pursuant to Title VII.43 The district court granted summary judgment for the defendants on all claims.44
On appeal, much of the court's decision addressed the First Amendment and RFRA claims.45 As to the Title VII religious discrimination claim against CSC, the Eleventh Circuit held that the defendant had provided the plaintiff "with a reasonable accommodation as a matter of law."46 After removing the plaintiff from the EAP contract, CSC had offered her the opportunity to seek another position within the company and had offered to provide assistance in doing so. The plaintiff declined to do so. Finding that CSC had done all it was required to do under Title VII, the Eleventh Circuit affirmed.47
4. Hostile Work Environment. Guthrie v. Waffle House, Inc.48 is a...
To continue reading
Request your trial