Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 2003

Employment Discriminationby Peter Reed Corbin^* and

John E. Duvall^**

The 2002 survey period for the United States Supreme Court was truly amazing by any measurement as far as the field of employment discrimination is concerned.¹ No less than eight decisions were handed down by the High Court in this area on a wide variety of issues. The Americans with Disabilities Act of 1990² ("ADA") was the focus of particular attention. The Court's three decisions in Toyota Motor Manufacturing v. Williams,³ US Airways, Inc. v. Barnett,⁴ and Chevron U.S.A., Inc. v. Echazabal⁵ continued its trend of substantially cutting back the scope and potential impact of the ADA. The Supreme Court also handed down several important procedural rulings pursuant to both Title VII of the Civil Rights Act of 1964⁶ ("Title VII") and the Age

Discrimination in Employment Act of 1967⁷ ("ADEA"). At the Eleventh Circuit level, perhaps the best way to describe the 2002 survey period is that it was active and steady, if unspectacular. A number of decisions were handed down, but none would fall into the category ofeye-catching precedent. One surprise was that for the first time in recent memory, not a single decision was handed down in the survey period in the difficult area of sexual harassment.

I. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

A. Theories ofLiability and Burdens ofProof

1. Disparate Treatment. Often the major issue in disparate treatment cases is which model of proof is applicable, i.e., the direct evidence model or the familiar circumstantial evidence model adopted a number ofyears ago by the Supreme Court in McDonnell Douglas Corp. v. Green.⁸ Two cases confronted this issue during the survey period. In neither case was the evidence found sufficient to constitute direct evidence of discrimination.

In the first case, Scott v. Suncoast Beverage Sales, Ltd.,⁹ plaintiff was employed as a driver-salesman for Suncoast Beverage, an Anheuser-Busch distributor. After plaintiff was discharged from his position following a sequence of documented, performance-related problems, he brought an action pursuant to Title VII, alleging that he was terminated on the basis of race. The district court granted summary judgment for Suncoast. On appeal, the key issue was whether plaintiffhad presented direct evidence of discrimination sufficient to create a jury question.¹⁰ The evidence was the following statement, concerning plaintiff made by his supervisor: "We'll burn his black ass."¹¹ However, the statement had been made two and one-half years prior to plaintiff's termination, while plaintiff's supervisor was still a co-worker, and prior to the time he had become plaintiff's supervisor.¹² In these circumstances, the Eleventh Circuit agreed that the comment "was simply too far removed and too indirectly connected to the termination decision to constitute direct evidence of discrimination"¹³ and affirmed the district court.¹⁴

Plaintiff fared no better in Rojas v. Florida.¹⁵ Plaintiff worked as the chief veterinary assistant for the Pari-Mutuel Division of the Florida Department of Business and Professional Regulation, which oversees and regulates greyhound racing in Florida. Plaintiff's primary responsibility was supervising the performance of drug tests on the greyhounds after their races and preparing the urine samples for shipment to testing labs. Plaintiff's initial supervisor, a female, considered plaintiff an "exemplary" employee. Plaintiff then began reporting to a new supervisor, a male, who enforced defendant's policies on tardiness and absenteeism much more stringently. This eventually resulted in plaintiff's termination. Plaintiff brought an action pursuant to Title VII, alleging that she was discharged on the basis of her sex. The district court granted summary judgment for defendant.¹⁶

On appeal, the Eleventh Circuit agreed that plaintiff's case was insufficient to allow her to take it to a jury.¹⁷ Plaintiff had presented evidence that her new male supervisor had made a statement to his predecessor that she "did not deserve her job . . . because [she] was a woman."¹⁸ The Eleventh Circuit concluded that this one remark, "isolated and unrelated to the challenged employment decision," was not direct evidence of discrimination.¹⁹ The court also concluded that the comment, considered in conjunction with the harsher treatment accorded plaintiff by her new male supervisor, was also insufficient to create a triable issue of pretext under the circumstantial evidence model.²⁰ With respect to the differing supervisory treatment, the court concluded: "[T]hese differences in the evaluation of [plaintiff's] performance do not establish a genuine issue on pretext. Different supervisors may impose different standards of behavior, and a new supervisor may decide to enforce policies that a previous supervisor did not consider impor-tant."²¹ Not surprisingly, the Eleventh Circuit affirmed.²²

In most cases under the circumstantial evidence model, the cases are ultimately decided at the third, or last, stage of the evidentiary model,

i.e., on the issue of whether plaintiff can establish that defendant's articulated reason for its employment action was a pretext for discrimination. However, in three cases during the survey period, the Eleventh Circuit addressed whether plaintiff had made his initial prima facie showing.

In Lubetsky v. Applied Card Systems, Inc.,²³ plaintiff applied for a position with defendant as a correspondence analyst. After performing well on several competency tests administered by defendant's recruiter, the recruiter extended plaintiff a conditional, written offer of employment. Plaintiff then advised the recruiter that he was Jewish and inquired about defendant's leave policy with respect to the observation of religious holidays. The recruiter, who was also Jewish, allegedly responded that plaintiff would be allowed to be off on Jewish holidays, as long as he did not go to "extremes." The recruiter then sent an e-mail to defendant's manager notifying him about the conditional offer of employment. She did not tell the manager that plaintiff was Jewish. The manager responded that he recognized plaintiff as an individual he had met at a previous job fair and that he recalled plaintiff as behaving "very aggressively and rudely."²⁴ The manager then directed the recruiter to rescind the conditional offer of employment. Plaintiff consequently instituted an action pursuant to Title VII, alleging that defendant had refused to hire him because of his religion. The district court granted summary judgment for the employer.²⁵ On appeal, the Eleventh Circuit reiterated that to establish a prima facie case of religious discrimination, plaintiff must establish that "the challenged employment decision was made by someone who was aware of the plaintiff's religion."²⁶ In this case, because there was no evidence that the decision-maker (the manager) knew of plaintiff's religion at the time he directed the recruiter to rescind the conditional offer of employment, the Eleventh Circuit agreed that plaintiff had failed to establish a prima facie case.²⁷

In Walker v. Prudential Property & Casualty Insurance Co.,²⁸ plaintiffs were two female employees employed on the operations staff in the Ft. Lauderdale, Florida, office of defendant insurance company. Defendant then decided to close its Ft. Lauderdale office. Defendant also operated an office in Orlando, Florida, but initially, none of the Ft.

Lauderdale employees were offered a position at the Orlando office. Subsequently, there was an opening at the Orlando office for the position of dispatcher. Todd Hyland, the only male on the Ft. Lauderdale operations staff, had served as Senior Dispatcher in the Ft. Lauderdale office for a number ofyears. He telephoned the manager ofthe Orlando facility, advised him that he would accept any job in the Orlando facility, and would relocate at his own expense. Prior to filling the dispatcher position, however, the Orlando manager asked his Human Resources ("HR") manager to review all of the personnel files of the Ft. Lauderdale employees to determine the most qualified applicant. After reviewing the files, the HR manager decided that Hyland was the most qualified, and she then offered him the dispatcher position. Plaintiffs then brought an action pursuant to Title VII, alleging discrimination on the basis of their sex by Prudential when it hired Hyland, a male, for the Orlando dispatcher position. The district court granted summary judgment for Prudential.²⁹

On appeal, the Eleventh Circuit noted that in evaluating a disparate treatment claim, it was necessary to "focus on the actual knowledge and actions of the decision-maker."³⁰ In this case, there was dispute whether the actual decision-maker was the Orlando manager or the HR manager.³¹ In either case, the court of appeals concluded that summary judgment was appropriate.³² If the decision-maker was the Orlando manager, the court concluded that no prima facie case had been shown because there was no showing that the manager was aware of either plaintiff or their performance as employees and neither had specifically applied for the Orlando position.³³ If the decision-maker was the HR manager, who reviewed all of the personnel files, the court concluded that even assuming a prima facie showing had been made, no jury issue was presented on the issue of pretext.³⁴ The court concluded that to make such a showing, the disparity and relative qualifications between plaintiffs and the person selected for the position had to be so great that it "virtually jump[ed] off the page and slap[ped] one in the face."³⁵ Because the court concluded that the evidence did not come close to making such a showing, it affirmed the district court.³⁶

Making its second trip to the Eleventh Circuit was EEOC v. Joe's Stone Crabs, Inc.³⁷ In a prior decision, reported in the 2001 Survey Article,³⁸ the Eleventh Circuit rendered an extensive...