Employment Discrimination - John F. Dickinson and F. Damon Kitchen

• Publication year: 1996

Employment Discriminationby John F. Dickinson^* and F. Damon Kitchen^**

The employment law docket of the Eleventh Circuit last year was a reflection of the general state of employment-related litigation in all but one respect. It included a large number of decisions, many of which turned on complicated procedural issues arising out of trial practice before juries. On the other hand, as in previous years the court of appeals published no opinion concerning a disability claim under the Americans With Disabilities Act of 1990.¹ These are sure to come.

Consistent with the tradition of past articles on this topic, this survey does not attempt to include all opinions that touch on employment discrimination practice. Instead, this survey will focus on significant decisions handed down by the United States Supreme Court and the Eleventh Circuit in this area.²

I. Title VII of the Civil Rights Act of 1964

A. Theories of Liability and Burdens of Proof

1. Disparate Treatment Cases. During the survey period, the Eleventh Circuit addressed several disparate treatment cases, analyzing burdens of proof and production in both direct evidence and circumstantial evidence fact patterns. One such case was Haynes v. W.C. Caye & Co. ,³ involving allegations of gender discrimination and age discrimination. In Haynes, the president of the defendant corporation created a position within the company to oversee collections.⁴ After consulting with a long time employee of the company, the president was referred to plaintiff Haynes, a female, as a potential candidate for the job.⁵ However, the president suggested to the employee that he thought it would require a man to do the job.⁶ Nonetheless, the president hired plaintiff for the collections position. After a period of time in the new position, the president commented to plaintiff that although he did not think women were competent or tough enough for the position, she might be showing him that she could do it.⁷ When Haynes was subsequently removed from the position by the president, she brought suit against the company, alleging that the gender-based comments constituted direct evidence of sex discrimination.⁸ After a bench trial, the magistrate judge disagreed, and his report and recommendations concerning plaintiff's failure to ultimately satisfy her burden of proving discriminatory intent were adopted by the district court.⁹

On appeal, the Eleventh Circuit sided with the plaintiff, noting that the president's comments were indistinguishable from the evidence considered by the United States Supreme Court in Price Waterhouse v. Hopkins¹⁰ as direct evidence.¹¹ The court held that a statement that women in general are simply not competent to do a particular job would appear to be a classic example of direct evidence.¹² Thus, noting that when a plaintiff presents credible, direct evidence of discriminatory motive the burden shifts to the employer to show that the employment decision would have been the same even absent discrimination, the court remanded the case to the magistrate judge to review the evidence once again in light of its findings and holding.¹³

In Walker v. Nationsbank,¹⁴ the Eleventh Circuit considered burden of proof issues involving circumstantial evidence of sex and age discrimination. In that case, Plaintiff Myra Walker was promoted to the position of branch manager of one of the defendant bank's offices.¹⁵ However, sometime thereafter, Walker began to have alleged performance problems on the job.¹⁶ For example, in one instance, Walker's supervisor approached her about her alleged failure to carry out certain managerial directives.¹⁷ Later, an audit of Walker's branch office allegedly revealed several unsatisfactory deficiencies in the bank's operations.¹⁸ As a result of these performance problems, Walker's supervisor met with her to discuss setting specific performance goals.¹⁹ Additionally, at a subsequent meeting, Walker was instructed to contact two bank employees about certain matters.²⁰ A subsequent follow-up audit revealed even more deficiencies at Walker's branch office, and she was placed on a thirty-day probation.²¹ Soon thereafter, the bank terminated Walker for the alleged reasons that she failed to contact the two bank employees as previously instructed (though she misrepresented that she did so), and that she failed to attend a training course scheduled right after she was placed on probation.²² During the bench trial, at the close of Walker's case, the district court granted the bank's motion for directed verdict and entered judgment against Walker.²³

On appeal to the Eleventh Circuit, Walker maintained that the bank's stated justification for her termination was pretextual.²⁴ She argued that while at the time of her termination she was given the two above-mentioned reasons for her dismissal, at trial the bank contended that the two reasons plus her deficient job performance justified her dismissal.²⁵ Thus, Walker maintained that this difference in the bases given for her termination suggested that the bank's offered reasons were pretextual and that the jury could have inferred that the real reasons for her termination were her gender and her age.²⁶

However, in this case, the Supreme Court's analytical framework in St. Mary's Honor Center v. Hicks²⁷ was of great benefit to the employer.²⁸ The appeals court noted that under Hicks, the factfinder's disbelief of the reasons the defendant offers does not compel judgment for the plaintiff.²⁹ Yet the court also noted that if this belief is accom- panied by a suspicion of mendacity, then it may, together with the elements of the prima facie case, suffice to show intentional discrimination.³⁰ Nonetheless, the appeals court concluded that Walker produced no evidence that raised a suspicion of mendacity and therefore did not carry her ultimate burden of proof that the bank intentionally discriminated against her on the basis of her age or sex.³¹ Although the court was aware that there may have been some obvious "bad blood" between plaintiff and her supervisor, the court held that such unfortunate personality clashes do not, without more, form the basis of relief under Title VII.³²

The Eleventh Circuit decision in United States v. Crosby³³ also addressed issues involving circumstantial evidence as proof of discrimination. In that case, the United States Department of Justice brought suit on behalf of a minority, female correctional officer, Sergeant Burbridge, against Columbia County, Georgia, and its sheriff.³⁴ The suit alleged that defendants unlawfully terminated Burbridge on the basis of her race and gender.³⁵ The sheriff and the county maintained that Burbridge left town to attend to a personal matter and as a result missed a day of work, even though Burbridge knew she had not been granted leave for that day by her supervisor.³⁶ Upon realizing that Burbridge did not have permission to miss work, and in light of her position as a shift supervisor, the sheriff felt a need to set an example and enhance discipline. He thus terminated Burbridge on those grounds.³⁷ However, the United States argued that certain white male employees received less severe sanctions than Burbridge for apparently similar conduct.³⁸ After a bench trial, the district court ruled in favor of the sheriff and the county, finding no intent to discriminate against Burbridge on the basis of her race and gender.³⁹

On appeal to the Eleventh Circuit, the United States contended that the district court did not properly consider the evidence that certain white male employees received more thorough disciplinary reviews and less severe sanctions than Burbridge.⁴⁰ It also contended that the evidence did not support the district court's finding that Burbridge received severe treatment because she was a supervisor and because the Sheriff needed to be decisive and effective in enforcing discipline.⁴¹ Nonetheless, after reviewing the district court's findings under a "clear error" standard, the appeals court rejected those contentions and held that the district court's findings regarding intentional discrimination were not clearly erroneous.⁴² In this regard, the court noted the lack of any direct evidence in this case and further noted that none of the purported circumstantial evidence regarding treatment of white male employees offered by plaintiff involved a supervisor who was absent from duty for an entire day knowing that leave had not been granted.⁴³ Consequently, the court concluded that the evidence offered by plaintiff did not so unequivocally support a finding of intentional discrimination in Burbridge's termination as to render the district court's decision clearly erroneous and affirmed the district court's decision.⁴⁴

2. Disparate Impact Cases. The Eleventh Circuit entertained only one Title VII disparate impact case during the survey period. Edwards v. Wallace Community College*⁴⁵ involved a black word processing specialist who alleged that she was discriminatorily terminated from Wallace Community College Selma ("WCCS") on the basis of her race.⁴⁶ Edwards sued WCCS and her supervisor, Dr. Robert McConnell, alleging violation of Title VII. She also sued McConnell and three co-employees pursuant to section 1983, alleging that the defendants violated the equal protection clause of the Fourteenth Amendment. The United States District Court for the Southern District of Alabama granted motions for summary judgment filed by WCCS and McConnell concerning Edwards's Title VII disparate impact and disparate treatment theories of recov-

On appeal, the Eleventh Circuit affirmed the district court's order granting summary judgment.⁴⁸ The panel held that Edwards's disparate impact claim failed because she did not identify a specific employment practice or test of WCCS used to terminate employees that led to a discriminatory impact on African-Americans and, more specifically, that affected Edwards.⁴⁹ Moreover, the Eleventh Circuit determined...