Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 2008

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

During the 2007 survey period, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of issuing many opinions—most unpublished—regarding employment discrimination.¹ The court rendered eight published decisions concerning Title VII of the Civil Rights Act of 1964 ("Title VII")² and fifteen published opinions generally concerning employment discrimination. Unpublished opinions in this area continued to flourish, however, with at least forty-nine unpublished decisions regarding Title VII and fifty-seven unpublished employment discrimination opinions overall. Clearly, the case that received the most press coverage during the survey period was the United States Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co.,³ which clarified the statute of limitations in Title VII cases involving pay discrimination claims on the basis of gender.⁴ The Eleventh Circuit focused its attention on sexual harassment cases, issuing two significant opinions,⁵ which clarified the Faragher-Ellerth affirmative defense⁶ for employers.

I. Title VII of the Civil Rights Act of 1964

A. Theories of Liability and Burdens of Proof

1. Religious Discrimination. The United States Court of Appeals for the Eleventh Circuit considered one religious discrimination case during the survey period. In Morrissette-Brown v. Mobile Infirmary Medical Center,⁷ the court considered an employer's reasonable accommodation obligation pursuant to Title VII's⁸ religious discrimination provisions.⁹ The plaintiff, a member of the Seventh-Day Adventist Church, brought suit under Title VII, alleging that she was terminated from her secretary position because her religious beliefs prevented her from working Friday or Saturday shifts from 3:00 p.m. to 11:00 p.m. Following a bench trial, the district court entered judgment in favor of the infirmary. On appeal, the plaintiff alleged that the district court erred in finding that the infirmary had reasonably accommodated her religious beliefs.¹⁰ However, the court of appeals noted that (1) the employer seemed to utilize a neutral rotating system of assigning shifts, and (2) the employer had approved all the plaintiff's requests for a shift swap when she was assigned a shift that conflicted with her religious beliefs.¹¹ The court also observed that the infirmary posted a master schedule of all employees' shift schedules to make it easier for the shift swaps to occur.¹² Finally, the court noted that the infirmary had offered the plaintiff a transfer to another position that would not have involved working any Friday or Saturday shifts, but the plaintiffturned down the employer's offer.¹³ Consequently, the court concluded that this evidence more than adequately supported the district court's finding that the plaintiff had been reasonably accommodated, and it affirmed the district court's decision.¹⁴

2. Sexual Harassment. In two cases during the survey period, the Eleventh Circuit clarified the employer's Faragher-Ellerth affirmative defense in sexual harassment cases, with both cases resulting in significant victories for the employer.¹⁵ In the first case, Baldwin v. Blue Cross/Blue Shield of Alabama,¹⁶ the plaintiff worked as a marketing representative for the Blue Cross office in Huntsville, Alabama. In November 2000 a gentleman named Scott Head became the plaintiff's boss when Head was promoted to district manager. In the months that followed, Head, setting perhaps a new low for office decorum, used profanity on a daily basis and regularly used the "f word in general office conversation. Head referred to most of the women in the office as "babe" and frequently used the "b" word when referring to women in general.¹⁷ Not limiting his profane comments to women, however, Head also generally referred to the male marketing representatives in the office as "cocksuckers" and "peckerwoods."¹⁸ There were two incidents that occurred between Head and the plaintiff that could be deemed sexual in nature.¹⁹ On one occasion, Head called the plaintiff into his office, closed the door, walked up behind her, and said, "Hey, Babe, blow me."²⁰ On another occasion, after attending a banquet with the plaintiff in Birmingham, Head invited the plaintiff to stay in Birmingham with him for a "night of dancing and partying."²¹ The plaintiff declined the offer.²²

The plaintiff did not file a complaint concerning any of Head's behavior until November 2001, a full year after Head had become her boss (and over three months after the banquet incident in Birming-ham).²³ Blue Cross immediately conducted an investigation of the plaintiff's complaint, including interviews with both the plaintiff and Head and interviews with any other potential witnesses in the office. However, none of the plaintiff's allegations could be substantiated. None of the witnesses corroborated the plaintiff's allegations, and several said that the plaintiff also used profanity in the office. Blue Cross responded to the complaint by issuing Head a warning. The company also offered to hire an expert counselor for both the plaintiff and Head and to monitor any future interactions. The plaintiff was also offered a transfer to a marketing representative position in the Birmingham office. The plaintiff refused both of these options and demanded that Head be fired. The company declined to fire Head and offered the plaintiff the option of counseling or a transfer on three different occasions. When the plaintiff continued to refuse both options, Blue Cross requested the plaintiff's resignation.²⁴

The plaintiff then brought a Title VII claim against Blue Cross, alleging that she had been subjected to a sexually hostile work environment. The district court granted summary judgment in favor of Blue Cross.²⁵ on appeal, the Eleventh Circuit addressed whether Blue Cross had established its defense and determined that Blue Cross had established both elements of the defense.²⁶ As to the first element, the Eleventh Circuit noted that this element focuses on the employer's response to a harassment complaint.²⁷ Regarding the employer's response, the court stated that the employer's obligation was to conduct "an investigation that is reasonable given the circumstances."²⁸ Determining that the investigation in this case was reasonable (although the plaintiff's allegations could not be corroborated), the court noted: "Nothing in the Faragher-Ellerth defense puts a thumb on either side of the scale in a he-said, she-said situation."²⁹

The court also held that Blue Cross had met the second element of the defense because the plaintiff had "waited too long to complain."³⁰ The court noted that the plaintiff had waited over three months before complaining about Head's sexual comment and proposition (the only aspects of his offensive behavior that were sexual in nature).³¹ Accordingly, the court of appeals concluded that Blue Cross had met both elements of the Faragher- Ellerth defense as a matter of law and affirmed the district court.³²

The Eleventh Circuit reached a similar result in the second case, Nurse "BE" v. Columbia Palms West Hospital Ltd. Partnership.³³ The plaintiff worked as a nurse at the defendant-hospital. A pediatric neurosurgeon at the hospital, Dr. Michael Chaparro, had privileges to practice medicine at the hospital but was not employed by the hospital. In late 2002 or early 2003, Dr. Chaparro began calling the plaintiff's cell phone asking her to meet him for a late drink or to go out to dinner. After three to five of these telephone calls, the plaintiff mentioned the calls to her nurse supervisor and asked that her telephone number be removed from the staff directory. However, she also specifically requested that the incidents not be reported to the hospital administration for fear of retaliation. In May 2003 Dr. Chaparro allegedly began making lewd and sexual comments to the plaintiff, but again, the plaintiff did not report the comments. Finally, after an incident in November 2003, in which Dr. Chaparro entered a closet behind the plaintiff and began making sexual advances to her, the plaintiff filed a complaint with the human resource director.³⁴

The hospital immediately began an investigation. The plaintiff was offered a leave of absence pending the investigation and was also offered the use of the hospital's employee assistance program. In investigating the complaint, the hospital interviewed both the plaintiff and Dr. Chaparro. Dr. Chaparro acknowledged the incident in the supply room but submitted that the incident occurred after a long history of mutual flirting between himself and the plaintiff. Dr. Chaparro was not disciplined by the hospital because he was not a hospital employee. However, he was reprimanded by the private clinic that employed him. It was also undisputed that there was no further contact between the plaintiff and Dr. Chaparro after the plaintiff's complaint.³⁵ The plaintiff, not satisfied with the outcome of the investigation, resigned approximately one month later. The plaintiff then brought suit pursuant to Title VII against both Dr. Chaparro and the hospital, alleging that she was subjected to a sexually hostile work environment. Following a jury trial, the jury entered a verdict in the plaintiff's favor for $10,000.³⁶ on appeal, the Eleventh Circuit focused entirely on the second element of the Faragher-Ellerth defense: "whether [the plaintiff] unreasonably failed to take advantage of [the hospital's] sexual harassment policy, and if not, whether [the hospital] responded by taking reasonable and prompt corrective action."³⁷ The key inquiry was whether the plaintiff's report to her supervisor of Dr. Chaparro's calls to the plaintiff's cell phone constituted notice to the hospital sufficient to trigger the hospital's obligation to take prompt and reasonable corrective action.³⁸ The Eleventh Circuit held that the calls to the plaintiff's...