Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 2012

Employment Discrimination

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

The United States Supreme Court was the center of the action in the area of employment discrimination during the 2011 survey period.¹ The most talked about decision was the Court's opinion in Wal-Mart Stores, Inc. v. Dukes.² The much-anticipated decision in Dukes was the most significant opinion handed down by the Court in the area of employment discrimination class actions since its 1982 decision in General Telephone Co. v. Falcon,³ and perhaps ever. The Court also continued to broaden the scope of potential Title VII⁴ retaliation actions with its decision in Thompson v. North American Stainless, LP.⁵

As for the United States Court ofAppeals for the Eleventh Circuit, the court continued to hand down a large number ofemployment discrimination decisions, but virtually all of them were unpublished. In fact, the court handed down only one published Title VII opinion during the

* 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 United States Supreme Court and the United States Court of Appeals for the Eleventh Circuit during 2011. 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 & Supp. IV 2010); the Civil Rights Act 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 & Supp. IV 2010); and the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213 (2006 & Supp. IV 2010). For analysis of Eleventh Circuit employment discrimination law during the prior survey period, see Peter Reed Corbin & John E. Duvall, Employment Discrimination, Eleventh Circuit Survey, 62 MERCER L. REV. 1125 (2011).

2. 131 S. Ct. 2541 (2011).

3. 457 U.S. 147 (1982).

4. 42 U.S.C. §§ 2000e to 2000e-17 (2006 & Supp. IV 2010).

5. 131 S. Ct. 863 (2011).

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survey period, and only three published opinions in the employment discrimination area overall.

I. Title VII Of The Civil Rights Act Of 1964

A. Theories of Liability and Burdens of Proof

1. Disparate Treatment. Several cases during the survey period dealt with the issue of whether a plaintiff, as part of the initial prima facie case showing, had presented sufficient evidence of a comparator receiving more favorable treatment than the plaintiff-that is, "a similarly situated"⁶ person not in the plaintiff's protected category who received more favorable treatment than the plaintiff. For instance, in Lane v. McKeithen,⁷ the issue before the Eleventh Circuit was whether the district court had abused its discretion in excluding from evidence the plaintiff's alleged comparator evidence. The plaintiff brought a Title VII⁸ action alleging that he was not hired as a corrections officer at the Bay County jail on account of his race. The defendant sheriff argued that the plaintiff had not been hired because of his criminal background, which included being charged with conspiracy to commit murder and acting as an accessory after the fact. In support of his claim, the plaintiff attempted to show that the defendant had hired a Caucasian detention specialist who had been charged with aggravated manslaughter, although he was later acquitted. The district court granted defendant's motion in limine, excluding this evidence.⁹ On appeal, the Eleventh Circuit ruled that the district court had not abused its discretion in excluding this evidence, holding that there were "material differences" between the detention specialist position that the alleged comparator had applied for, and the corrections officer position that the plaintiff had applied for.¹⁰ In reaching its decision, the court relied upon the prior decision in Maniccia v. Brown,¹¹ where the court noted that alleged comparators must be similarly situated in all relevant respects to avoid "confusing apples with oranges."¹²

6. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).

7. 423 F. App'x 903 (11th Cir. 2011).

8. 42 U.S.C. §§ 2000e to 2000e-17 (2006 & Supp. IV 2010).

9. Lane, 423 F. App'x at 904-05 (footnote omitted).

10. Id.

11. 171 F.3d 1364 (11th Cir. 1999).

12. Id. at 1368; see also Summers v. City of Dothan, 444 F. App'x 346, 348 (11th Cir. 2011) (holding that summary judgment for employer was affirmed where conduct of alleged comparator not "nearly identical" to conduct of the plaintiff).

2012] EMPLOYMENT DISCRIMINATION 1205

In stark contrast to Lane v. McKeithen, however, was the Eleventh Circuit's opinion in Smith v. Lockheed-Martin Corp.,¹³ the court's only published Title VII decision during the survey period. In this case, the plaintiff, a Caucasian male, brought a "reverse" discrimination case under Title VII and Section 1981¹⁴ alleging that his former employer, Lockheed-Martin Aeronautics Company, had discriminated against him because ofhis race when it terminated his employment.¹⁵ The plaintiff had worked as a supervisor at Lockheed-Martin's plant in Marietta, Georgia.¹⁶ He had received a racially insensitive joke email entitled "Top Ten Reasons Why There are No Black NASCAR Drivers" and had forwarded the joke email to his supervisor, without reporting it to the Human Resources Department.¹⁷ Following an investigation, the plaintiff was terminated for violating Lockheed-Martin's zero tolerance policy prohibiting workplace discrimination and harassment. In support of his claim, the plaintiff presented evidence of two African American non-supervisors at the Marietta facility who had violated the zero tolerance policy by transmitting racially insensitive emails, but who were only suspended for their conduct as opposed to terminated.¹⁸ In granting summary judgment for Lockheed-Martin, the district court found that the African American non-supervisors were not "similarly situated" to the plaintiff.¹⁹

On appeal, however, the Eleventh Circuit ventured off into a totally new and different direction. Although the court of appeals agreed with the district court that the plaintiff had not presented valid comparator evidence, indeed, nowhere in the court's lengthy decision is there any reference to the Eleventh Circuit's decision in Maniccia v. Brown,²⁰ the court of appeals nonetheless reversed the district court's grant of summary judgment.²¹ Reasoning that "establishing the elements of the McDonnell Douglas framework is not, and never was intended to be, the sine qua non for a plaintiff to survive a summary judgment motion," the court held that a plaintiff "will always survive summary judgment" if there is the presentation of other "circumstantial evidence" creating a "triable issue concerning the employer's discriminatory intent."²² In

13. 644 F.3d 1321 (11th Cir. 2011).

14. 42 U.S.C. § 1981 (2006).

15. Lockheed-Martin Corp., 644 F.3d at 1323.

16. Id. at 1324.

17. Id.

18. Id.

19. Id. at 1326.

20. 171 F.3d 1364 (11th Cir. 1999).

21. Lockheed-Martin Corp., 644 F.3d at 1328.

22. Id.; see generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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this case, the crux of the other "circumstantial evidence" was evidence that the defendant was very concerned about an ABC news report critical of the defendant's Human Resources Department that was scheduled to air shortly after the plaintiff was terminated.²³ The court of appeals concluded that this other circumstantial evidence precluded summary judgment because a jury could have reasonably inferred that the plaintiff had been fired because he was white.²⁴ This case is instructive because it is the type of case in which the Eleventh Circuit has affirmed a summary judgment numerous times in the past, utilizing the analysis described above (in other words, the plaintiff's failure to present evidence ofa "similarly situated" comparator). It remains to be seen whether the court will deny future summary judgment motions because of a plaintiff's presentation of alleged "other circumstantial evidence," even where there is no valid evidence of a similarly situated comparator.

2. Retaliation. In Thompson v. North American Stainless, LP,²⁵ the Supreme Court continued its trend of significantly expanding the scope of potential retaliation actions under Title VII. The plaintiff and his fiancee were both employed by the defendant, North American Stainless (NAS). The plaintiff's fiancee filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Three weeks later, NAS fired the plaintiff from his position. The plaintiff then brought an action under Title VII, alleging that NAS had retaliated against him because his fiancee had filed an EEOC charge.²⁶ The district court granted summary judgment for the defendant, finding that Title VII "does not permit third party retaliation claims."²⁷ On appeal to the United States Court ofAppeals for the Sixth Circuit, a three-judge panel initially reversed the ruling, but after granting rehearing en banc, the Sixth Circuit affirmed the district court by a vote of ten to six.²⁸

The Supreme Court focused on two questions: (1) whether the defendant's firing of the plaintiff constituted unlawful retaliation; and (2) if it did, whether Title VII granted the plaintiff a cause of action.²⁹ As to the first question, the Supreme Court, relying upon its prior decision in Burlington Northern & Santa Fe Railway Co. v. White,³⁰

23. See Lockheed-Martin Corp., 644 F.3d at 1331.

24. Id. at 1341.

25. 131 S. Ct. 863 (2011).

26. Id. at 867.

27. I...