Employment Discrimination - Peter Reed Corbin and Richard L. Ruth

• Publication year: 1999

Employment Discriminationby Peter Reed Corbin*and

Richard L. Ruth**

The 1998 survey period presented an extremely active year in the employment discrimination arena, not only for the Eleventh Circuit, but also for the United States Supreme Court.¹ Three key decisions were rendered by the Supreme Court on sexual harassment and same-sex discrimination, and another decision was rendered on the arbitrability of ADA claims. Yet, ironically, in this year of inordinate Supreme Court activity in the field of labor and employment law, the Court's arbitration decision did not "live up to the hype" of being a landmark decision on the legality of mandatory predispute arbitration of statutory discrimination claims. On the Eleventh Circuit level, the court was presented with several issues of first impression in the area of unlawful retaliation and was also active in the application of the Supreme Court's new liability standard for sexual harassment. In all, as the following survey article will highlight, it was another busy year in the employment law realm in the Eleventh Circuit, with several noteworthy decisions being rendered.

A. Theories of Liability and Burdens of Proof

1. Disparate Treatment Cases. In Jones v. Bessemer Carraway Medical Center,² the Eleventh Circuit Court affirmed a district court's entrance of judgment as a matter of law in favor of defendant employer on plaintiff's racial discrimination claim.³ In that case plaintiff, a nurse, arrived on duty in personal clothing, and not in proper nursing attire.⁴ Despite numerous supervisors telling plaintiff that she was tardy and needed to change immediately, plaintiff failed to do so.⁵ Eventually, plaintiff was terminated for insubordination and being unprepared for work.⁶ Afterwards, plaintiff filed a racial discrimination claim, but the district court granted the employer's motion for judgment as a matter of law.⁷

On appeal, the Eleventh Circuit affirmed.⁸ The court first held that plaintiff failed to identify any similarly situated white employees who were treated differently from plaintiff for similar offenses.⁹ While plaintiff pointed to nonterminated white employees who had taken vacation days despite being denied their requests, the employer pointed out that due to the frequency of such occurrences, those situations were treated as violations of the employer's attendance policy and not as insubordination.¹⁰ The court reaffirmed the employer's right to interpret its rules in this reasonable fashion and noted that plaintiff failed to offer any evidence that there was any discriminatory treatment between classes of employees under that interpretation.¹¹ Moreover, the court held that other instances of misconduct, such as medication errors, were too unrelated to the issues involved in the instant action to satisfy the "similarly situated" requirement of plaintiff's prima facie case.¹² Because the court concluded that plaintiff had failed to satisfy all of the elements of her prima facie case, the court affirmed the district court's order.¹³

In a later partially-superseding opinion, the court in Jones¹⁴ also held that plaintiff failed to present any sufficient "direct" evidence of discrimination.¹⁵ While plaintiff presented evidence that her immediate supervisor, who had first told her to change her attire, had frequently used disparaging remarks in the workplace about her race, the court held that plaintiff failed to demonstrate how those remarks played any role in plaintiff's termination by upper management.¹⁶ The court noted that there was no evidence that the supervisor's misconduct report to her superiors was motivated by any discriminatory animus, and that there was no evidence that the decisionmakers themselves had ever made any racially disparaging comments or remarks.¹⁷ Consequently, the court affirmed that the "direct evidence" method of proof did not apply to plaintiff's racial discrimination claim.¹⁸

In Harper v. Blockbuster Entertainment Corp.,¹⁹ the court reaffirmed that an employer's grooming policy, which prohibited men, but not women from wearing long hair did not violate Title VII.²⁰ While the predecessor Fifth Circuit had previously rendered a similar holding,²¹ the Eleventh Circuit expressly adopted that prior precedent, falling in line with numerous other circuits that have addressed the issue.²² Finally, noting the vast amount of caselaw weighing against the male plaintiffs on their gender disscrimination claims challenging defendant employer's hair policy, the court ruled that they had no protection under Title VII's antiretaliation provision because the objective belief standard could not be satisfied.²³

Issues pertaining to both "direct evidence" and "circumstantial evidence" of racial discrimination were addressed by the court in Carter v. Three Springs Residential Treatment.²⁴ In Carter plaintiff brought a Title VII action for racial discrimination after he was denied a promotion in favor of a white employee.²⁵ As part of his claim, plaintiff alleged that a statement made to him by one of his superiors to the effect that she had

"identified a bias against blacks" constituted direct evidence of unlawful discrimination with respect to the promotional decision.²⁶ Moreover, plaintiff adduced alleged circumstantial evidence of unlawful racial discrimination.²⁷ Nonetheless, the district court granted defendant-employer's motion for summary judgment after concluding that plaintiff failed to provide sufficient direct or circumstantial evidence of discrimination to support his claim.²⁸

However, the Eleventh Circuit reversed the district court's order.²⁹ As to the direct evidence issue, the court agreed that the referenced comment was not direct evidence of discrimination because the comment could be interpreted in several different ways, thereby failing to satisfy the legal definition of "direct evidence."³⁰ On the other hand, on circumstantial evidence, the court concluded that plaintiff presented ample evidence to establish a prima facie case and to raise an inference of pretext on the employer's proffered reasons for the promotion decision.³¹ For example, plaintiff demonstrated that the employer failed to follow its own internal promotional opportunity system with respect to the disputed position, and that the employer appeared to waive or modify several minimum qualifications for the successful candidate.³² Thus, based upon this evidence, the court determined that a jury was a proper arbitrator of the dispute rather than the district court on summary judgment.³³

In Berman v. Orkin Exterminating Co.,³⁴ the Eleventh Circuit reversed a district court's judgment in favor of an employer on plaintiff's retaliation claim.³⁵ The district court had granted judgment to defendant employer on the retaliation claim after concluding that plaintiff had presented no evidence that the managers charged with making the adverse employment decisions against him were involved in, or were aware of, plaintiff's prior EEOC complaint alleging religious discriniination.³⁶ In reversing the district court's decision, however, the court ruled that plaintiff did establish a causal connection between the adverse employment action taken against him and the filing of his EEOC charge, noting the district court overlooked key testimony regarding managerial awareness of the EEOC charge and the fact that plaintiff was transferred twice by those managers within the two months following his charge.³⁷ Consequently, a jury verdict rendered in favor of plaintiff on the retaliation claim was reinstated.³⁸

In another retaliation case, Clover v. Total System Services, Inc.,³⁹ the court reversed a jury verdict in favor of plaintiff on her retaliation claim arising out of a sexual harassment context.⁴⁰ In that case plaintiff was a witness for an internal sexual harassment investigation. Plaintiff also had a history of tardiness with defendant company and was even late for the meeting to discuss instances of sexual harassment. Soon after the meeting occurred plaintiff was terminated for her tardiness. Plaintiff brought a retaliation action, and a jury rendered a verdict in her favor.⁴¹

The Eleventh Circuit, when vacating the jury verdict, determined that plaintiff failed to sufficiently establish a cause of action for retaliation under either the "opposition clause"⁴² or the "participation clause"⁴³ of Title VII's antiretaliation provision.⁴⁴ First, the court concluded that the instances of supposed sexual harassment that plaintiff witnessed were a "country mile" away from constituting unlawful harassment.⁴⁵ Therefore, plaintiff's belief that she was opposing an unlawful employment practice was not objectively reasonable, thereby resulting in plaintiffs failing to trigger antiretaliation protections under the opposition clause.⁴⁶ As to the participation clause, the court carefully studied the legislative history and intent behind Title VII before determining that participation in a purely internal, unlawful discrimination investigation did not constitute a protected activity under Title VII's antiretaliation provision.⁴⁷ The court conceded that valid policy grounds existed to protect this participation but held that the matter was for Congress to address, and not the court, given the clear statutory language of Title VII.⁴⁸ Therefore, defendant employer was entitled to judgment as a matter of law on plaintiff's retaliation claim.⁴⁹

In a retaliation case of first impression, the court, in Wideman v. Wal-Mart Stores, Inc.,⁵⁰ was required to determine whether adverse employment actions that did not rise to the level of an "ultimate employment decision" could still constitute a violation of Title VII's antiretaliation provision.⁵¹ In Wideman plaintiff, shortly after filing an EEOC complaint, was subjected to several reprimands even though she had never received a reprimand prior to the filing of the complaint. Plaintiff was also subjected to derogatory comments and was not...