Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 2002

Employment Discriminationby Peter Reed Corbin"and

John E. Duval!**

The 2001 survey period saw the usual cascade of employment cases coming down the pike from both the United States Supreme Court and the United States Court of Appeals for the Eleventh Circuit.¹ The Supreme Court's Circuit City Stores, Inc. v. Adams² case, which gave a significant boost to the arbitration of employment discrimination cases, was probably the most talked about case during the survey period. However, the Supreme Court also rendered several other significant, albeit less publicized, cases in the employment discrimination area. The Eleventh Circuit joined in with a number of noteworthy decisions of its own, including several in the area of disability discrimination pursuant to the Americans with Disabilities Act of 1990 ("ADA"), the availability of the disparate impact theory pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), and a variety of other issues.

I. Title VII of the Civil Rights Act of 1964 ("Title VII") A. Theories of Liability and Burdens of Proof

1. Disparate Treatment. The burden of proof in the typical disparate treatment case (i.e., where there is no direct evidence of discriminatory intent) is well-known. This familiar circumstantial evidence model was established almost twenty years ago by the Supreme Court in McDonnell Douglas Corp. v. Green.³ In several disparate treatment cases handed down by the Eleventh Circuit during the survey period, the court of appeals continued to apply the Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc. ,⁴ reported in last year's survey edition,⁵ in determining whether the plaintiff, in the context of the McDonnell Douglas circumstantial evidence model of proof, had presented enough of a case to make it to the jury. In two of three instances, summary judgments for the employer were reversed and remanded for a jury trial.

For instance, in Sledge v. Goodyear Dunlop Tires North America, Ltd.,⁶ plaintiff brought a claim pursuant to both Title VII and 42 U.S.C. Sec. 1981 ("Sec. 1981"), alleging that defendant refused to promote him on account of his race. Plaintiff had worked for a number of years at defendant's tire manufacturing plant in Huntsville, Alabama. On several occasions, he unsuccessfully sought a promotion to the position of mechanic. The district court granted summary judgment for the employer because plaintiff did not establish that he was qualified for the position he was seeking.⁷

On appeal, the Eleventh Circuit had little difficulty in reversing this decision, concluding that the record before it "not only presents a question of fact on [the discrimination] issue, but it presents a case of intentional discrimination sufficient to take the case to a jury."⁸ The court pointed to evidence that, although defendant's human resources department had devised an examination for the mechanic position, plaintiff was not even allowed to take the examination. In two instances, promotions were awarded to white individuals who had not taken the test, and in a third instance, a promotion was given to a white individual who had failed the test. When plaintiff finally was allowed to take the test, he passed the practical part, but, according to defendant, failed the written part. Human Resources then devised a new test. When the next mechanic opening became available, both plaintiff and a white applicant failed the new test, but the white applicant was awarded the position.⁹ The court was also influenced by statistical evidence that indicated that only 1 of defendant's 107 mechanics was black.¹⁰ The court of appeals concluded that a reasonable jury could find that plaintiff was qualified for the mechanic position, and further, that defendant's written examinations "were nothing more than a pretext for racial discrimination."¹¹ The case was remanded for a jury trial on these issues.¹²

Employers with affirmative action plans might want to reaffirm the validity of such plans after the Eleventh Circuit's decision in Bass v. Board of County Commissioners.¹³ This was a so-called "reverse discrimination" action by a white plaintiff alleging race discrimination pursuant to Title VII. Plaintiff had been a captain with the Orange County Fire and Rescue Division, but he was laid off when his captain position was eliminated as part of a reorganization resulting from a nine million dollar budget short-fall. Plaintiff then applied for a lieutenant-level training instructor position.¹⁴ Plaintiff and twelve other applicants were interviewed for this position by a three-member panel, two of whom were black, and one of whom was known to support affirmative action and a "promotional 'fast track' for minorities."¹⁵ The panel selected a black applicant who did not even meet the minimum qualifications for the position. Indeed, there was evidence that defendant knew of the lack of qualifications, but encouraged the applicant to submit a second application, falsely stating that he met the qualifications. Defendant attempted to defend the selection on the ground that it was made pursuant to the County's affirmative action plan. The district court granted summary judgment for the County.¹⁶

On appeal, the Eleventh Circuit initially noted that, although this was a "reverse discrimination" claim, "[discrimination is discrimination no matter what the race, color, religion, sex, or national origin of the victim."¹⁷ Although the court of appeals pointed to several portions of the record as creating a genuine issue of material fact as to whether defendant's articulated reason for not hiring plaintiff was pretextual, the significant part of the court's decision relates to its holding about defendant's affirmative action plan. The court concluded that not only was reliance upon the plan not a defense in this case, but could well constitute direct evidence of discrimination.¹⁸ The court of appeals concluded: "However, the existence of an affirmative action plan, when combined with evidence that the plan was followed in an employment decision, is sufficient to constitute direct evidence of unlawful discrimination unless the plan is valid."¹⁹ The court then remanded the action for a determination of whether the county's affirmative action plan was valid, pursuant to the Supreme Court's decision in Johnson v. Transportation Agency,²⁰ holding that it was plaintiff's burden to establish the plan's invalidity.²¹

The Eleventh Circuit was confronted with another "reverse discrimination" case in Denney v. City of Albany.²² Plaintiffs were five white firefighters who alleged that the City of Albany discriminated against them on the basis of their race in denying them promotions to the position of lieutenant. Twenty-one applicants, including plaintiffs, successfully completed the examination for the lieutenant position and were placed in the pool of qualified applicants. The pool of qualified applicants were then interviewed by the fire chief, who was black, who selected the applicants for promotion on the basis of their demonstrated leadership, maturity, interpersonal skills, and willingness to support management and its policies. Of eight applicants promoted by the chief, four were black and four were white (although none of the plaintiffs were promoted). The district court granted summary judgment for defendant.²³

On appeal, although the Eleventh Circuit issued a lengthy opinion, it had little difficulty in affirming the district court's decision that plaintiffs had not made a sufficient showing of pretext.²⁴ In response to plaintiffs' argument that the fire chief's promotion decisions had been purely subjective, the court, citing its prior decision in Chapman v. AI Transport,²⁵ reiterated that "[s]ubjective reasons can be just as valid as objective reasons,"²⁶ and that the "use of subjective factors . . . does not raise a red flag."²⁷ In response to plaintiffs' arguments that plaintiffs were the most qualified applicants, the court re-emphasized that it does not "'sit as a super-personnel department that re-examines an entity's business decisions.'"²⁸ The court of appeals concluded: "We do not ask whether the employer selected the 'most'qualified candidate, but only whether it selected the candidate based on an unlawful motive."²⁹ In short, the appellate court concluded that plaintiffs had fallen far short of establishing a jury question on the issue of pretext and affirmed the lower court's decision.³⁰

In Silvera v. Orange County School Board,³¹ the Eleventh Circuit summed up the case in the opening paragraph:

A school board fired an employee who had pleaded no contest to a charge of child molestation and who also had multiple arrests for violent assaults. One would think that would have been the end of it, since in any sane world school boards should not be required to employ child molestors. But the fired employee made a federal case of it and managed to convince a judge and jury that he had been fired because of his race in violation of Title VII.³²

This case began with a local television station report that two of the defendant school board's employees, plaintiff (who was black) and another employee (who was white), had prior arrest records for child molestation. After an investigation, the school board fired plaintiff, but only suspended the white employee. Defendant asserted it would have fired the other employee as well, but defendant believed it was bound by a prior agreement after his first arrest. This agreement involved the superintendent, the state attorney's office, and the corrections department, and it stated that although the employee would be kept away from children, he would not be terminated as a result of the arrest. In plaintiff's subsequent lawsuit pursuant to Title VII, after a jury verdict for plaintiff, the district court entered judgment for plaintiff awarding back pay of $75,593, front pay of $62,167, and interest.³³

On appeal the Eleventh Circuit focused...