Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 2006

Employment Discriminationby Peter Reed Corbin^* and John E. Duvall^**

The 2005 survey period saw a continuation of the diminished number of published decisions by the Eleventh Circuit Court of Appeals in the area of employment discrimination.¹ However, it is interesting to note that the Eleventh Circuit also handed down at least 141 unpublished opinions in employment discrimination cases. Accordingly, while this trend may mean that the topic of employment discrimination is still very much alive and well within the Eleventh Circuit, it may also indicate that there are fewer unsettled questions of law in this area. However, this does not mean that the 2005 survey period was insignificant.

In Smith v. City of Jackson,² the United States Supreme Court resolved once and for all that the disparate-impact theory of relief is available in age discrimination claims pursuant to the Age Discrimination in Employment Act.³ In addition, the Eleventh Circuit decided several issues of first impression, including whether the Americans withDisabilities Act⁴ requires employers to accommodate employees who are merely "regarded as" disabled.⁵ The Eleventh Circuit also established under what circumstances a losing plaintiff, as a condition for appealing a judgment, may be required to post a bond on appeal that covers the defendant's anticipated attorney fees.⁶

I. Title VII of the Civil Rights Act of 1964

A. Theories of Liability and Burdens of Proof

1. Disparate Treatment

The familiar circumstantial evidence model of proof in Title VII⁷ cases was established over twenty years ago by the Supreme Court in McDonnell Douglas Corp. v. Green.⁸ Under McDonnell Douglas and its progeny, the plaintiff bears the initial burden of establishing a prima facie case of discrimination.⁹ To rebut this initial showing, the defendant need only articulate a legitimate, non-discriminatory reason for the employer's action.¹⁰ At this stage, the plaintiff then bears the burden of proving that the employer's proffered reason was merely a pretext for discrimination.¹¹

a. Prima Facie Case. In Underwood v. Perry County Commis-sion,¹² the plaintiff could not even meet the initial McDonnell Douglas hurdle.¹³ At issue was whether a plaintiff could establish a prima facie case of discrimination in a complaint alleging failure to hire on the basis of gender when the plaintiff failed to establish that a male was hired for the position in question.¹⁴ The plaintiff applied twice for a truck driving position for the Perry County Highway Department in Alabama. Ultimately, the plaintiff was not hired for the position. The evidence revealed that following the plaintiff's applications the County hired three male truck drivers, but also hired two female truck drivers.¹⁵ The district court granted summary judgment for the County, finding that the plaintiff failed to establish a prima facie case.¹⁶ on appeal, the Eleventh Circuit affirmed, but for different reasons than those found by the district court. The court of appeals focused on the prima facie element that the plaintiff must prove that "equally or less qualified individuals outside of her protected class were considered or hired for the position."¹⁷ The court concluded that although it was "not necessary that [the plaintiff] name the individual hired by the [defendant,] . . . it [was] necessary that [the plaintiff] present evidence that the favored applicant was male."¹⁸ The only evidence the plaintiff submitted "about gender and the hiring of [the] truck driver" was that "both men and women were hired." The court concluded that this failure was "fatal to [the plaintiff's] complaint of discrimination."¹⁹

Similarly, in Morris v. Emory Clinic, Inc.,²⁰ the initial prima facie hurdle, although not high, was insurmountable to the plaintiff. The plaintiff was a male obstetrician and gynecologist employed by the Emory University School of Medicine.²¹ The plaintiff was ultimately terminated by Emory following a sequence of patient complaints concerning the plaintiff's "forceful physical examinations and off-color remarks he made on the ability of older patients to have children."²² For instance, one patient complained that the plaintiff told her (after she was examined by him and after she consulted him about pregnancy) "the realities are that you have 42-year-old eggs, which means that it will be difficult for you to get pregnant."²³ Furthermore, the patient complained that the plaintiff seemed to have "an underlying resentment of women who chose to postpone motherhood in favor of pursuing a career."²⁴ Another patient complained, after the plaintiff entered the examination room and discovered that the patient was still wearing a bra, that the plaintiff "became upset and 'ripped it over her head.'"²⁵ Following his termination, the plaintiff filed claims of both gender and age discrimination.²⁶ The district court granted summary judgment for Emory.²⁷ on appeal, the Eleventh Circuit agreed with the district court that the plaintiff "never [made] it past the first step of McDonnell Douglas."²⁸ The court of appeals noted that the plaintiff had not "identified any female physician who [had] replaced him."²⁹ Moreover, the court of appeals noted that the plaintiff failed to show that a comparable female physician who received "nearly identical" patient complaints had been disciplined differently.³⁰ Accordingly, the Eleventh Circuit agreed with the district court that the plaintiff failed to establish a prima facie case.³¹

In Gillis v. Georgia Department ofCorrections,³² the Eleventh Circuit was presented with the issue of whether a plaintiff adequately established the "adverse employment action" element of the prima facie case.³³ In Gillis the plaintiff received a pay raise from the defendant, but the raise would have been larger if her performance evaluation had been more favorable.³⁴ The plaintiff worked as a probation officer for the Georgia Department of Corrections. In this position, she received an annual performance evaluation that determined the amount of her annual pay raise, if any.³⁵ Under the defendant's evaluation system, an employee who received an "exceeded expectations" evaluation would earn a five percent pay raise; an employee who received an evaluation of "met expectations" would earn a three percent pay raise; and an employee who received an evaluation of "did not meet the expectations" would not receive any pay raise.³⁶ The plaintiff consistently received ratings of "met expectations," which entitled her to a three percent pay raise. The plaintiff, however, believed that her performance warranted an "exceeded expectations" evaluation and ultimately filed a grievance that was followed by a racial discrimination lawsuit.³⁷ The district court granted summary judgment for the Department of Corrections after it concluded that the plaintiff failed to show she had suffered an adverse employment action.³⁸ on appeal, the Eleventh Circuit disagreed with the district court.³⁹ The court of appeals relied primarily upon the language of the statute itself, which states that it is unlawful to "'discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.'"⁴⁰ The court of appeals held that "an evaluation that directly disentitles an employee to a raise of any significance is an adverse employment action under Title VII."⁴¹ In the plaintiff's case, the difference between the pay raise associated with a "met expectations" evaluation and an "exceeded expectations" evaluation amounted to $76.03 per month, or $912.36 per year.⁴² The court held that this amount was sufficiently significant to constitute an adverse employment action.⁴³ Accordingly, the court of appeals reversed the district court's finding that the plaintiff had failed to establish a prima facie case, and remanded the case to the district court to determine whether the plaintiff had adequately established the issue of pretext (which the district court had not addressed).⁴⁴

b. Pretext. In two cases during the survey period, the Eleventh Circuit was confronted with the issue of whether a plaintiff adequately established a triable issue regarding the third step in the McDonnell Douglas formula—whether the defendant's proffered reason for its actions was a pretext for discrimination.

In Vessels v. Atlanta Independent School System,⁴⁵ the plaintiff, a Caucasian male, alleged that the defendant school system failed to promote him to the position of Coordinator of Psychological Services, on both an interim basis and a permanent basis, on account of his race.⁴⁶ Dr. Brinson, the individual vacating the coordinator position, recommended that the defendant fill the position on an interim basis with Jill Fields, an African American school psychiatrist, although it was undisputed that the plaintiff had "more education, theoretical knowl- edge, and state certifications than Fields."⁴⁷ For the permanent position, the defendant narrowed the field of candidates to the plaintiff, Jill Fields, and Dr. Gwendolyn Jones, an African American female. A panel, consisting of one Caucasian male, one Caucasian female, and four African American females, interviewed and considered the qualifications of each candidate. The panel calculated the candidates' aggregate scores, rating Dr. Jones at 124, the plaintiff at 106, and Fields at 86. The defendant then hired Jones for the permanent position based upon the panel's recommendation. Thereafter, the plaintiff asserted a claim of racial discrimination pursuant to both Title VII and section 1981.⁴⁸ The district court granted summary judgment in favor of the school system.⁴⁹ on appeal, the court of appeals acknowledged that the plaintiff established a prima facie case for both the interim and permanent positions, and the school system articulated legitimate, non-discriminatory reasons for its selections.⁵⁰...