Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 2004

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

For the first time in the life of this Article, the 2003 survey period appears to have experienced a marked decrease in the number of decisions handed down by the United States Supreme Court and the Eleventh Circuit in the area of employment discrimination.¹ As Title VII² approaches its fortieth anniversary, perhaps this is an indication that there are fewer and fewer unsettled questions of law in this area. However, this decline in the number of decisions does not mean that the 2003 survey period was insignificant. The Supreme Court, in Raytheon Co. v. Hernandez,³ continued its string of decisions restricting the potential scope of the ADA, and in Desert Palace, Inc. v. Costa,⁴ the court rendered an important decision on the burden of proof in mixed-motive cases. Moreover, the Eleventh Circuit, after taking a year's vacation with respect to the difficult area of sexual harassment, rendered two very significant decisions clarifiying how employers may defend such actions.

I. Title VII of the Civil Rights Act of 1964

A. Theories of Liability and Burdens of Proof

1. Disparate Treatment. Even though the familiar circumstantial evidence model of proof adopted by the Supreme Court in McDonnell Douglas Corp. v. Green⁵ was developed in 1973, courts still have difficulties with it. Three cases during the survey period illustrate this continuing challenge.

In two cases, the Court addressed the aspect of a plaintiff's prima facie burden requiring a showing that "similarly situated" employees not in plaintiff's protected group were involved in the same conduct as plaintiff, but were treated differently or disciplined more favorably. In the first action, Knight v. Baptist Hospital of Miami, Inc.,⁶ plaintiff, an African-American female, was hired as a clinical nurse in the surgical services department of the defendant hospital. Defendant generally adhered to a four-step progressive program. The third step, called "decision-making leave," required that the employee take a paid leave day, during which the employee was required to draft and submit an "action plan" proposing a solution to the employee's deficiencies. If the employee submitted no "action plan," the employee had to either resign or be subject to termination. Plaintiff received a decision-making leave pursuant to this policy following an incident in which plaintiff was "rude and disrespectful" to fellow employees at the hospital.⁷ After taking her decision-making leave, plaintiff submitted an action plan that was "argumentative and proposed no solution."⁸ In response, defendant terminated plaintiff's employment. Thereafter, plaintiff brought an action pursuant to Title VII and the Florida Civil Rights Act,⁹ alleging that she was terminated on account of her sex. The district court granted summary judgment for the hospital.¹⁰ on appeal, the Eleventh Circuit focused on whether plaintiff had met her prima facie burden of showing that a "similarly situated" employee not in plaintiff's protected group was treated more favorably.¹¹ Plaintiff pointed to evidence concerning a particular Caucasian nurse who allegedly committed similar acts of misconduct but was not terminated. However, the court of appeals rejected plaintiff's argument, finding that plaintiff's "documented performance and tardiness problems were much worse" than the Caucasian nurse's problems "in both number and nature."¹² Accordingly, the Eleventh Circuit agreed that plaintiff had not presented a prima facie case and affirmed.¹³

A similar fate awaited plaintiff in Maynard v. Board of Regents.¹⁴ Plaintiff, after graduating from a medical school in Tennessee, joined the surgical registry program at the University of South Florida, which was typically a five-year program. At the end of his fourth year, plaintiff was advised that he would be required to repeat his fourth-year residency allegedly because of low scores on his ABSITE exam, an annual in-service examination required of residents throughout the country. Plaintiff appealed this decision to an internal Professional Dispute Resolution Committee ("PDRC"). However, before plaintiff's appeal was heard, a compromise was worked out under which plaintiff would contract as a fourth-year resident, while performing fifth-year work, after which his performance would be reviewed after six months. Thereafter, plaintiff received a letter identifying several problems with his performance, including: "failure to attend conferences, changing schedules without permission, untimely evaluations, and low ABSITE scores."¹⁵ Again, plaintiff was advised that he was not eligible to be promoted to his fifth year of residency, and again, plaintiff appealed this decision to the PDRC. This time, however, plaintiff's appeal was denied, and plaintiff was formally terminated from the residency program. In plaintiff's subsequent suit pursuant to Title VII, the district court granted summary judgment for the university.¹⁶ on appeal, plaintiff argued that he had presented a prima facie case by offering evidence of several alleged comparators who had similar negative evaluations but were not terminated from the residency program.¹⁷ The court of appeals concluded that only one of these individuals was arguably similar to plaintiff, and even with respect to this individual, the alleged comparator's negative results "over an isolated period of time" were found to be of no comparison to plaintiff's "overall poor record over an extended period of time."¹⁸ Agreeing that plaintiff had not presented a prima facie case, the Eleventh Circuit affirmed.¹⁹

In Hall v. Alabama Association of School Boards,²⁰ the Eleventh Circuit reaffirmed just how difficult establishing a failure-to-promote claim under Title VII is within the Eleventh Circuit. The promotion at issue involved the highly political position of the superintendent of education for Talladega County, Alabama. The County Board of Education engaged in a search process to replace the former superintendent, who had served the school system for two decades.²¹ Plaintiff, an African-American, had served for a number of years as an administrator and assistant superintendent in the Talladega County school system and was one of the individuals seeking the new superintendent position.²² Of twenty-five applicants for the position, plaintiff survived the initial cut and was one of the six finalists. The board interviewed each of the six finalists and then pared the list down to three individuals, one of whom was plaintiff. At this point, the chairman of the board engaged in heavy communication which each board member in an attempt to reach a consensus on a new superintendent.²³ In a subsequent meeting, the school board, by a vote of 4-1, selected one of the other finalists, William Gardner, a Caucasian who had served as a superintendent in other school systems outside of Alabama. When Gardner's appointment was announced, there was much racial strife and protest in the Talladega community, so much that Gardner decided to decline the appointment.²⁴ At this point, the school board reconvened, and this time, by a 3-2 vote, selected the other Caucasian finalist, Peggy Connell, who had held the position of administrator and principal at another school system in Alabama. Plaintiff then brought suit against the school board pursuant to Title VII, alleging that he was denied the superintendent position on account of his race.²⁵ The district court, in a lengthy memorandum opinion, granted summary judgment for the school board.²⁶ on appeal, the Eleventh Circuit adopted in toto the "well-reasoned memorandum opinion" of the district court.²⁷ Citing the Eleventh Circuit's prior decision in Cofield v. GoldKist, Inc.,²⁸ the court found that, in a claim based on a failure to promote, it was not enough for a plaintiff to show a difference in relative qualifications in order to establish discriminatory intent, "unless those disparities are so apparent as virtually to jump off the page and slap you in the face."²⁹ The court noted that while the chairman of the school board (with his active telephone campaign to arrive at a "consensus") may have "engaged in Machiavellian actions," this did not necessarily mean "that he did so for racial reasons."³⁰ In this case, both the district court and the Eleventh Circuit agreed that, because all three of the finalists were very qualified on paper, and because the disparities between plaintiff's qualifications and those of the other two finalists were not so apparent "as virtually to jump off the page and slap one in the face," plaintiff fell short of proving his claim.³¹

2. Mixed-Motive Cases. The only Supreme Court case under Title VII during the survey period, Desert Palace, Inc. v. Costa,³² concerned a so-called "mixed-motive" issue. The issue before the Court was whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction to the jury in a Title VII case. Plaintiff was employed as a warehouse worker and heavy equipment operator for Caesar's Palace Hotel & Casino in Las Vegas. Defendant terminated plaintiff's employment after she was involved in a physical altercation with a fellow male employee. When the male employee received only a five-day suspension as opposed to termination, plaintiff filed suit pursuant to Title VII, alleging sex discrimination. At trial, the district court gave a standard mixed-motive instruction over defendant's objection (because plaintiff had not produced any "direct evidence" of discrimination). The jury then rendered a verdict for plaintiff, awarding back pay, compensatory damages, and punitive damages. The Ninth Circuit, en banc, affirmed the district court's judgment.³³

The Supreme Court addressed, for the first time, the impact of the 1991 amendments to Title VII (which, among other things, codified the burden of proof in mixed-motive cases). Closely examining the...