Employment Discrimination

• Publication year: 2018

Employment Discrimination

John E. Duvall

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Employment Discrimination

by John E. Duvall^*

Several interesting and noteworthy employment discrimination cases were on the docket of the United States Court of Appeals for the Eleventh Circuit during the survey period, and one Supreme Court of the United States employment decision was announced during the period as well.¹ The vast majority of the Eleventh Circuit's employment discrimination cases continue to be decided in unpublished opinions, most of which were per curiam opinions affirming grants of summary judgments to defendant employers. This year's Article is focused on reported decisions, commenting only on two unpublished decisions. In addition to the cases discussed in this Article, by the Author's rough count, another ninety-three employment-related appeals were decided by the Eleventh Circuit during the survey period. The vast majority of these unreported decisions involved various issues arising under Title VII of the Civil Rights Act of 1964 (Title VII),² while thirteen were Age Discrimination in Employment Act of 1967 (ADEA)³ suits. A like number were brought pursuant to the Americans with Disabilities Act of 1990 (ADA).⁴ Only seven of the unreported cases raised issues under section 1981 of the Civil Rights Act of 1866 and 1871,⁵ and again, a like number raised issues under section 1983 of the Civil Rights Act of 1866 and 1871.⁶

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I. Title VII of the Civil Rights Act of 1964

A. Exhaustion of Administrative Remedies

In Stamper v. Duval County School Board,⁷ the appellate panel was presented with a rather unique set of facts that developed during the charge investigation phase of the dispute between a public employer and one of its former employees. Because of those facts, Stamper, a pro se plaintiff, was thrown out of court when it was ultimately determined that her suit had been untimely filed. The unique facts presented the panel and the United States District Court for the Middle District of Florida with both regulatory and equitable issues. Writing for the panel, Circuit Judge William Pryor framed the issues on appeal:

This appeal requires us to decide whether the Equal Employment Opportunity Commission revived an employee's claim of discrimination—otherwise barred by the statute of limitations—when it vacated a two-year-old dismissal of the employee's administrative charge and the Department of Justice issued the employee a new notice of the right to sue her employer. If the Commission cannot, we must also decide whether the employee's mental health condition equitably tolled the limitations period for her claim of discrimination.⁸

Concluding that the Equal Employment Opportunity Commission (EEOC or Commission) lacked authority to issue the second notice the way it did, and then that the employee had failed to establish her entitlement to equitable tolling, the panel affirmed the dismissal of Stamper's civil action by the district court.⁹

Stamper timely filed a charge of discrimination with the EEOC against her former employer, the Duval County School Board. Following its investigation, the Commission determined it could not conclude that a violation of the statutes prohibiting discrimination had occurred, and therefore, issued Stamper notice of her suit rights. Stamper, however, failed to sue within ninety days as required by law. Normally, that would have been the end of her claim. Over two years later, however, Stamper requested that the EEOC reconsider its earlier decision. For reasons unclear from the record on appeal, the EEOC obliged, revoking and vacating its earlier determination. Stamper thereupon filed a second discrimination charge against her former employer with the Commission based on the same allegations she asserted in her first charge, requesting that the Commission issue her a second notice of suit rights. The EEOC

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obliged again, and this time Stamper timely sued the school board, alleging race and disability discrimination.¹⁰

The school board moved to dismiss the suit because it was untimely as Stamper failed to sue within ninety days of her receipt of the first notice of suit rights. The district court agreed with the school board that the complaint was untimely but permitted the parties to engage in limited discovery on the equitable tolling issue. Stamper alleged, in response to the school board's motion to dismiss, that her former employer's acts of discrimination caused her to develop catatonic schizophrenia, which caused her to miss the first filing deadline. After the limited discovery had been completed, the district court found that Stamper could have sued within ninety days of her receipt of the first suit rights letter notwithstanding her claimed catatonia. Stamper then appealed both of those rulings.¹¹

The appellate panel concluded that the district court correctly decided both issues and affirmed its rulings.¹² The panel determined first that the EEOC incorrectly read its own regulation concerning the time available for it to reconsider a no-cause determination and the mechanics of the revocation process specifically articulated in the regulation:

The regulation makes clear that the Commission lacked the authority to revive Stamper's claim of discrimination; that is, neither the Commission nor the Department of Justice had the authority to issue Stamper a new notice of her right to sue the Board. Stamper's original notice of her right to sue was not revoked when the Commission reconsidered dismissal of her administrative charge. The regulation contemplates the issuance of a new notice of the right to sue only when the original notice was revoked, which means that the regulation does not allow the Department of Justice to issue a new notice of the right to sue when the original notice was not revoked.¹³

Reasoning that the original notice was not timely revoked, the panel further stated:

The regulation codified an equitable rule followed by our predecessor court that the Commission could restart the running of the limitations period by issuing a second notice of the right to sue only if the

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Commission issued a notice of intent to reconsider before the expiration of the original [ninety-day] limitations period.¹⁴

Because the Commission issued its notice of intent to reconsider two years after it issued the first notice, it could not revive Stamper's right to sue by doing so.¹⁵

Next, the panel examined whether Stamper established, in the record below, a causal relationship between her claimed medical condition and the untimely filing of her civil complaint. Determining that Stamper failed to present the district court with any meaningful evidence to establish she was entitled to equitable tolling, the panel affirmed the lower tribunal's finding to this effect as well.¹⁶

B. Shifting Evidentiary Burdens

Employment discrimination can be proved by direct or circumstantial evidence. In a circumstantial evidence case, the courts employ various articulations of the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green.¹⁷ Under this analytic device, the burdens of production and proof shift between the parties at the pre-trial stage for summary judgment purposes. In an unpublished decision, Voudy v. Sheriff of Broward County,¹⁸ an Eleventh Circuit panel held that the United States District Court for the Southern District of Florida applied the wrong articulation of the framework established by the circuit court for a failure to promote case. Consequently, the defendant employer failed to put forth sufficient evidence of its legitimate nondiscriminatory reason for the challenged employment action.¹⁹ The Eleventh Circuit reversed summary judgment for the employer.²⁰

Voudy, a white Broward County deputy sheriff, had been passed over for promotion to the position of sergeant in favor of two black deputies. He sued, alleging reverse race discrimination occurred in the promotion decisions. Following the completion of discovery, the sheriff moved for summary judgment, contending that Voudy failed to establish a prima facie case of discrimination and that the sheriff articulated legitimate nondiscriminatory reasons for the decisions at issue. The district court

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agreed and granted the sheriff's motion for summary judgment.²¹ The appellate panel reversed, concluding that the district court applied the wrong McDonnell Douglas formulation and that the sheriff failed to meet his burden of articulating nondiscriminatory reasons for the challenged employment decision.²²

Acknowledging the continuing confusion in the circuit concerning the evidentiary burden to be met by a failure-to-promote plaintiff, the panel stated in Walker v. Mortham,²³ decided in 1998, the correct McDonnell Douglas variant to be applied by the trial courts in such cases:

While a number of our decisions employed the standard used by the district court in this case—requiring plaintiffs to show, at the prima facie case stage, that other equally or less qualified employees were promoted over them—other cases required plaintiffs to show only that the position was filled with a person outside the plaintiff's protected class. We determined that both our prior precedent rule and an independent assessment of which standard best comported with Supreme Court precedent required only that a plaintiff show that the position was filled by someone outside his protected class. At least at the prima facie case stage, a plaintiff need not show that the candidate who received the promotion was equally or less qualified than the plaintiff.²⁴

The Eleventh Circuit reversed the ruling of the district court because Voudy proved this.²⁵

Observing that since Voudy made a prima facie case under the Walker articulation that the burden was shifted to the sheriff "to produce evidence that its action was taken for a legitimate, non-discriminatory reason."²⁶ The evidence in the court...