Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 2001

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

The field of employment discrimination law was alive and well in the Eleventh Circuit during the 2000 survey period.¹ Indeed, the area is not even showing any signs of slowing down. The case receiving the most press was the Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc. ,² which, although an age discrimination action, will have a large impact on whether cases reach a jury in all areas of employment discrimination law. The Eleventh Circuit also handed down a number of notable decisions, particularly in the area of sexual harassment, the disparate impact theory of liability, and the scope of Title VIFs retaliation provision.

I. Title VII of the Civil Rights Act of 1964

A. Jurisdiction and Coverage Under the Act

1. Preemption. In Dickerson v. Alachua County Commission,³ the Eleventh Circuit considered an issue of first impression of whether a Title VII claim preempts a conspiracy claim pursuant to 42 U.S.C. Sec. 1985(3) when the same conduct underlies both claims.⁴ Plaintiff worked as a corrections officer at the Alachua County Corrections Center in Alachua County, Florida. The county conducted an internal investigation following an inmate's escape from the facility. As a result of this investigation, plaintiff and six other officers were disciplined. Plaintiff was demoted from lieutenant to sergeant. Plaintiff then brought an action pursuant to both Title VII and the conspiracy provisions of Section 1985(3), alleging that his demotion resulted from a conspiracy among Caucasian jail officers, who allegedly wanted to shift the blame for the highly publicized escape to plaintiff and other African-American officers on his shift. Following a jury trial, the jury ruled for the county with respect to plaintiff's Title VII race discrimination claim, but the jury entered a verdict in favor of plaintiff in the amount of $50,000 for his Section 1985(3) conspiracy claim.⁵

On appeal, the Eleventh Circuit considered for the first time whether a conspiracy claim pursuant to Section 1985(3) was preempted by a companion Title VII claim.⁶ The court of appeals was greatly influenced by its prior decision in Johnson v. City of Fort Lauderdale,⁷ which held that Title VII does not preempt claims pursuant to Section 1983 even when based upon the same conduct.⁸ In Johnson the court noted Congress intended Section 1983 to be "a parallel remedy for unconstitutional employment discrimination."⁹ Finding "no principled basis to distinguish between Sec.1983 and Sec.1985(3),"¹⁰ the court of appeals held that Section 1985(3), like Section 1983, is not preempted by Title VII.¹¹

2. Ministerial Exception. In Gellington v. Christian Methodist Episcopal Church, Inc. ¹² the Eleventh Circuit addressed the ministerial exception to Title VII.¹³ Plaintiff was an ordained minister in the Christian Methodist Episcopal Church. While assigned to a church in Mobile, Alabama, one of plaintiff's coworkers confided in him that her immediate supervisor had made sexual advances toward her. Plaintiff aided the coworker in preparing an official complaint to the church elders. Shortly thereafter, plaintiff was reassigned to a church over eight hundred miles away at a substantial reduction in salary. Rather than accept the reassignment, plaintiff resigned and brought a Title VII action alleging that the church had retaliated against him and constructively discharged him for aiding the coworker in her sexual harassment complaint.¹⁴ The district court granted summary judgment,¹⁵ relying upon the ministerial exception to Title VII created by the former Fifth Circuit in its 1972 decision in McClure v. Salvation Army.¹⁶

On appeal, plaintiff argued that the ministerial exception was no longer viable in light of the Supreme Court's intervening decision in Employment Division, Department of Human Resources of Oregon v. Smith.¹⁷ Specifically, plaintiff argued that, under Smith, "religious beliefs do not excuse compliance with a generally applicable law,"¹⁸ and accordingly, defendant church could not evade its obligations under Title VII "simply because it is a religious organization."¹⁹ However, the Eleventh Circuit noted that two other circuits, the Fifth and D.C. Circuits,²⁰ concluded that the ministerial exception survived the decision in Smith.²¹ Agreeing with the Fifth and D.C. Circuits, the Eleventh Circuit held that "the exception only continues a long-standing tradition that churches are to be free from government interference in matters of church governance and administration."²²

B. Theories of Liability and Burdens of Proof

1. Disparate Treatment. In the typical disparate treatment case under Title VII, the plaintiff proceeds under one of two basic models of proof: (1) direct evidence of discriminatory intent or (2) the familiar McDonnell Douglas circumstantial evidence model.²³ Unlike last year's survey period, there were no direct evidence cases during this survey period.²⁴ Rather, the court struggled with applying the Supreme Court's decision in Reeves in the context of the typical McDonnell Douglas circumstantial evidence case.

In two cases, Reeves directly affected the court's outcome and resulted in sending cases back for trial that previously had ended in summary judgment for the defendant. In the first case, Hinson v. Clinch County Board of Education,²⁵ plaintiff was the principal at a high school in Clinch County, Georgia. She was the first female high school principal hired in the county since 1950. However, a sequence of disagreements began to occur between plaintiff and members of the School Board. Plaintiff had a number of intense conversations with one member of the School Board regarding the Board member's son, who was a student at plaintiff's high school. Another source of friction was a second Board member's habit of referring to plaintiff as "Kay Baby," over plaintiff's objection. One member of the School Board, after successfully running for election, symbolically "buried" plaintiff in front of the local courthouse to celebrate his victory. Thereafter, the School Board voted to remove plaintiff as principal and transfer her to a county-wide administrative position. Plaintiff objected to this transfer because she suspected that it was a "make-work position designed to facilitate her removal as principal"²⁶ and because it involved a significant cut in pay. The SchoolBoard then voted to transfer her to a full-time teaching position at another school with no cut in pay. The Board asserted that it removed her as principal because of "basic disagreements" with her approach to administration of the high school. She was replaced by a male who had served under plaintiff as vice-principal, who had less experience as a principal, and who held fewer advanced degrees than plaintiff. Plaintiff brought a Title VII action challenging her removal as principal. The district court granted summary judgment for defendant.²⁷

On appeal, the Eleventh Circuit initially focused on whether plaintiff had suffered an adverse employment action.²⁸ Citing its prior decision in Doe v. DeKalb County School District,²⁹ the court noted that a transfer to a different position can be considered adverse if it involves "a reduction in pay, prestige or responsibility."³⁰ Finding that a reasonable factfinder could conclude that plaintiff suffered a loss of prestige and responsibility by being transferred to either the administrative position or the teaching position, the court of appeals concluded that the district court erred in finding as a matter of law that plaintiff had not suffered an adverse employment action.³¹ Further, under Reeves, the court concluded there was ample evidence to warrant sending the case to the jury on the issue of whether the School Board's asserted reasons for removing plaintiff as principal were pretextual.³² Accordingly, the grant of summary judgment was reversed, and the action was remanded for trial.³³

In the second case, Durley v. APAC, Inc.,³⁴ plaintiff had been employed with defendant APAC since 1983 and had performed various clerical functions that included considerable accounting functions and purchasing responsibilities. In 1994, the position of purchasing agent became available. Plaintiff applied for the position, having previously performed many of the job functions and having served as acting purchasing agent on various occasions. There was no job description for this position. At the same time, defendant decided to close its fabrication workshop. Jeff Warnock, a male, worked in the fabrication workshop. Defendant decided to consolidate Warnock's fabrication workshop position with the purchasing agent position and hiredWarnock to be the new purchasing agent. Warnock had no prior office or purchasing experience and had not even graduated from high school. Plaintiff filed an EEOC charge, alleging that defendant failed to promote her on account of her sex. While the charge was pending and at the EEOC's request, defendant created a job description for the new purchasing agent position that emphasized the warehouse and fabrication skills that Warnock possessed, rather than the administrative duties that previously had been the primary responsibility of the job when performed by its predecessor. In plaintiff's subsequent Title VII action, the district court granted summary judgment for defendant.³⁵

On appeal, the Eleventh Circuit addressed whether plaintiff presented sufficient evidence of pretext to create a question of fact for the jury.³⁶ Under the Reeves standard, the court of appeals noted that defendant subsequently created a job description that emphasized Warnock's warehouse and fabrication skills and that Warnock completely lacked any administrative or purchasing experience.³⁷ This evidence, coupled with plaintiff's substantial prior experience in the job, was considered by the court of appeals to be more than sufficient to create an issue of...