Employment Discrimination - Peter Reed Corbin and John E. Duvall
| Publication year | 2011 |
Employment Discrimination
by Peter Reed Corbin* and John E. Duvall**
The United States Court of Appeals for the Eleventh Circuit issued a significantly higher number of published decisions in the area of employment discrimination during the 2010 survey period.1 It is too early to tell whether this will become a new trend or is a one year aberration. However, the Eleventh Circuit handed down eight published Title VII decisions during the survey period (as opposed to only one published decision the year before), and thirteen published employment discrimination opinions overall (as opposed to only three during the 2009 survey period). Three of these decisions were in the ever troublesome area of sexual harassment.
The Supreme Court of the United States continued to be active in the employment discrimination arena as well. In Lewis v. City of Chicago,2 the Court clarified the application of the appropriate statute of limitations in the context ofa disparate impact case, and in the process, allowed a class of African-American firefighter candidates to move
* Partner in the firm of Ford & Harrison LLP, Jacksonville, Florida. University of Virginia (B.A., 1970); Mercer University, Walter F. George School of Law (J.D., cum laude, 1975). Member, State Bars of Georgia and Florida.
** Partner in the firm of Ford & Harrison LLP, Jacksonville, Florida. Florida State University (B.S., 1973); Mercer University, Walter F. George School of Law (J.D., cum laude, 1985). Member, State Bar of Florida.
1. This Article covers significant cases in the area of employment discrimination law decided by the Supreme Court of the United States and the United States Court of Appeals for the Eleventh Circuit during 2010. Cases arising under the following Federal statutes are included: The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§621-634 (2006); the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981, 1983 (2006); Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e to 2000e-17 (2006);
and the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§12101-12213 (2006).
For analysis of Eleventh Circuit employment discrimination law during the prior survey period, see Peter Reed Corbin & John E. Duvall, Employment Discrimination, 2009 Eleventh Circuit Survey, 61 MERCER L. REV. 1073 (2010).
2. 130 S. Ct. 2191 (2010).
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forward with their Title VII class action lawsuit against the City of Chicago's firefighter entrance exam.3 In other action, the Court in Perdue v. Kenny,4 and pursuant to 42 U.S.C. § 1988,5 determined the propriety of enhanced attorney fee awards for outstanding results.6
I. Title VII of the Civil Rights Act of 1964
A. Theories of Liability and Burdens of Proof
1. Disparate Treatment. In Alvarez v. Royal Atlantic Developers, Inc. ,7 the Eleventh Circuit was confronted with the application of the so-called Vince Lombardi rule8 in the context of a national origin discrimination case. The plaintiff, Eliuth Alvarez, a Cuban-American, was hired as the controller for Royal Atlantic Developers, Inc.9 Alvarez reported to Heidi Verdezoto, the Chief Financial Officer, who had a reputation as someone who was "impossible to please."10 Indeed, Alvarez's two predecessors, one an Indian-American and the other an Anglo-American, had both been fired because they could not meet Heidi's strict standards.11 Predictably, Alvarez could not meet those standards either, and after approximately three months, it was determined that she would be fired as soon as a replacement could be found. In the meantime, Alvarez wrote a letter to CEo Edwin Verdezoto complaining that she was being discriminated against because she was Cuban. After receiving this letter, the Verdezotos decided not to wait for a replacement and fired Alvarez the following morning.12 Alvarez filed suit pursuant to Title VII of the Civil Rights Act of 1964 (Title VII),13 complaining of
3. Id. at 2196, 2199, 2201.
4. 130 S. Ct. 1662 (2010).
5. 42 U.S.C. § 1988 (2006).
6. Perdue, 130 S. Ct. at 1673-74.
7. 610 F.3d 1253 (11th Cir. 2010).
8. According to the Vince Lombardi rule, none of the players could accuse Coach Lombardi of discrimination "because he treated all of them like dogs." Id. at 1258 (citing Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1301 n.1 (11th Cir. 2007)).
9. Id. at 1258-59.
10. Id. at 1258.
11. Id.
12. Id. at 1260-62.
13. 42 U.S.C. §§ 2000e to 2000e-17 (2006).
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national origin discrimination and retaliation.14 The district court granted summary judgment in favor of the company.15
on appeal the Eleventh Circuit, as to the national origin discrimination claim, noted that "Heidi was within her rights to insist on a controller who could whip the company's books into shape overnight while accommodating her own prickly personality and performing every task perfectly, even if there was little or no chance she would ever find such a miracle worker."16 The court went on to conclude that "[t]his [was] a classic example of the Vince Lombardi rule: someone who treats everyone badly is not guilty of discriminating against anyone."17 Accordingly the court affirmed as to the discrimination claim.18 With respect to the retaliation claim, although emphasizing that the retaliation provision does not insulate from discipline an employee "who [is] already on thin ice," the court noted that the disputed facts concerning the timing of this decision made summary judgment inappropriate and thus remanded this aspect of the case for further proceedings.19
In Brown v. Alabama Department of Transportation,20 the Eleventh Circuit was confronted with the latest chapter in what has been many years of civil rights lawsuits against various state agencies in the State of Alabama, including the Alabama Department of Transportation. The plaintiff, Geneva Brown, an African-American civil engineer, had worked for the Alabama DOT since 1977. She brought a Title VII lawsuit against the agency, alleging that she was denied nine different promotions between 2000 and 2005 on account of her race.21 Following a jury trial, the jury agreed with Brown and awarded her $65,697.65 in back pay and $25,000 in damages for mental anguish.22 On appeal however, the Eleventh Circuit, after applying the familiar McDonnell Douglas Corp. v. Green23 circumstantial evidence model of proof to each promotion, concluded that the evidence would support an inference of discrimination or retaliation in only three of the nine promotion decisions.24 As a result, the court of appeals reversed the district
14. Alvarez, 610 F.3d at 1262.
15. Id. at 1263.
16. Id. at 1267.
17. Id.
18. Id. at 1268.
19. Id. at 1270-71.
20. 597 F.3d 1160 (11th Cir. 2010).
21. Id. at 1167-68.
22. Id. at 1173.
23. 411 U.S. 792 (1973).
24. Brown, 597 F.3d at 1181-83.
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court's decision and remanded the case for a recalculation of the plaintiff s back pay award.25
2. Disparate Impact. In Lewis v. City of Chicago,226 the Supreme Court was confronted with a disparate impact challenge against the written examination utilized by the Chicago Fire Department for all applicants to the firefighter position. The city utilized the written examination in July 1995.27 Thereafter it randomly hired its firefighter candidates from among those who were deemed "well qualified," in other words, "those who scored 89 or above (out of 100)" on the test.28 The plaintiffs were six African-American applicants, all ofwhom were in the "qualified" category (they scored between 65 and 88 on the test).29 They filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that the city's examination discriminated against them in its application on account of their race.30 In the ensuing lawsuit pursuant to Title VII, the district court agreed that the examination had a "severe disparate impact against African Americans," and ordered that the City randomly hire 132 ofthe African-American applicants in the qualified category, while also awarding back pay.31 The United States Court of Appeals for the Seventh Circuit reversed this decision, finding that the earliest Equal Employment Opportunity Commission (EEOC) charge filed by the plaintiffs was untimely because it had been filed more than 300 days after the alleged discriminatory act, in this case the administration of the exam.32
When the case came before the Supreme Court, the issue framed was whether a plaintiff who failed to file a timely charge as to the adoption of a practice (in this case, the city's initial administration of the written examination) may assert a disparate impact claim following a timely charge challenging the later application of that practice-the city's selection of firefighters based upon the results of the exam.33 The Court concluded that the plaintiffs could bring such a claim.34 In reaching its decision, the Court was greatly influenced by the express
25. Id. at 1189.
26. 130 S. Ct. 2191 (2010).
27. Id. at 2195.
28. Id. (internal quotation marks omitted).
29. Id. at 2195-96.
30. Id. at 2196.
31. Id. (internal quotation marks omitted).
32. Id.
33. Id. at 2195.
34. Id. at 2197.
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language of the Civil Rights Act of 1991,35 which codified the burden of proof in disparate impact claims.36 Under this language, a claim could be made by showing that an employer "uses a particular employment practice that causes a disparate impact" on a prohibited ground.37 Because the city used the results ofits examination each time it selected applicants, its practice was found to fall within the scope ofthe statutory language, and the plaintiffs case was allowed to proceed.38
3. Religious Discrimination. Title VII claimants can present their case either through the submission of direct or circumstantial evi-
dence.39 In Dixon v. Hallmark Cos.,40 the Eleventh Circuit was confronted with the more uncommon of these...
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