Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 2007

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

Similar to the 2005 survey period, during the 2006 survey period, the Eleventh Circuit Court of Appeals continued its trend of issuing fewer and fewer published decisions in the area of employment discrimina-tion.¹ The court issued only six published decisions all year involving Title VII and only published nine opinions in the area of employment discrimination overall. With respect to unpublished opinions, however, the court continued to be extremely active, issuing 103 unpublished Title VII opinions and 148 unpublished employment discrimination opinions overall. This is further evidence of the fact that despite the proliferation of employment discrimination cases before the court, there continue to be fewer and fewer unsettled questions of law in this area. Clearly the most significant opinion of the year was the Supreme Court's retaliation decision in Burlington Northern & Santa Fe Railway v. White,² which greatly expanded Title VII's anti-retaliation provision by holding that section 704(a) of the Act³ is not limited to adverse employment actions related to a plaintiff's employment or that occur at the workplace.

I. Title VII of the Civil Rights Act of 1964

A. Jurisdiction

1. Definition of "Employer." In Arbaugh v. Y & H Corp.,⁴ the Supreme Court was confronted with the issue of whether the numerical limitation on the number of employees contained in Title Vll's definition of "employer"⁵ was a matter of the trial court's subject matter jurisdiction or, rather, a substantive ingredient of the plaintiff's claim for relief.⁶ The plaintiff had brought a Title VII action against her former employer, Y & H Corporation, alleging sexual harassment. Following a trial, the jury returned a verdict for the plaintiff in the amount of $40,000. Two weeks after the trial, the employer filed a motion to dismiss for lack of subject matter jurisdiction, raising for the first time that it had fewer than fifteen employees and thus was not covered by Title VII. The district court, believing this to be a jurisdictional issue, reluctantly granted the defendant's motion.⁷ The Fifth Circuit Court of Appeals affirmed.⁸

The Supreme Court noted the broad grant of subject matter jurisdiction that Congress had given the federal courts in 28 U.S.C. Sec. 1331,⁹ that is, "'all civil actions arising under the Constitution, laws, or treaties of the United States.'"¹⁰ The Court also noted the broad jurisdictional provision contained in section 706(f)(3) of Title VII itself.¹¹ Noting that its prior decisions on the issue of jurisdiction had been "less than meticulous,"¹² the Court unanimously held that "when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character."¹³ Accordingly, the Court held that the threshold number of employees contained in Title Vll's definition of "employer" was an element of the plaintiff's claim for reliefand was not an issue of the trial court's subject matter jurisdiction.¹⁴

B. Theories of Liability and Burdens of Proof

1. Individual Liability. In Dearth v. Collins,¹ the Eleventh Circuit addressed the issue of whether an individual employee can be held liable under Title VII.¹⁶ The plaintiff had been the administrative assistant to the defendant company's president and sole shareholder. Following the plaintiff's termination, she brought an action under Title VII alleging sexual harassment against both the company and the president, individually. The district court granted summary judgment for both defendants.¹⁷ on appeal, the plaintiff, acknowledging the Eleventh Circuit's prior decisions holding that supervisors of public employers could not be held individually liable under Title VII,¹⁸ argued that harassing supervisors of private employers, in appropriate circumstances, could be subject to liability under Title VII.¹⁹ In rejecting this argument, the Eleventh Circuit held:

To the extent that we have not so held before, we now expressly hold that relief under Title VII is available against only the employer and not against individual employees whose actions would constitute a violation of the Act, regardless of whether the employer is a public company or a private company.²⁰

Accordingly, the Eleventh Circuit affirmed the decision of the district court.²¹

2. Disparate Treatment. In Ash v. Tyson Foods, Inc.,²² the Supreme Court reversed the long-established standard utilized by the Eleventh Circuit in discriminatory failure to promote cases under Title VII.²³ The plaintiffs were two African-American superintendents working at a poultry plant owned by Tyson Foods. The plaintiffs applied for promotions to two open shift manager positions, but two white male applicants were chosen for the positions instead. The plaintiffs brought suit under Title VII and Sec. 1981.²⁴ Following a trial, a jury ruled for the plaintiffs, but the district court granted the defendant's post-trial motion for judgment. on appeal, the Eleventh Circuit affirmed the district court with respect to one plaintiff, but reversed with respect to the other plaintiff.²⁵

In vacating the Eleventh Circuit's decision, the Supreme Court focused on two concerns.²⁶ First, the Court commented on the Eleventh Circuit's characterization of the use of the term "boy."²⁷ The Eleventh Circuit had held that without additional evidence of discrimination, the use of the term "boy" by itself was not evidence of discrimination.²⁸ The Supreme Court held that although the use of the word "boy" will not "always be evidence of racial animus, it does not follow that the term, standing alone, is always benign."²⁹ The Court continued that the meaning of the use of the word would depend on "various factors including context, inflection, tone of voice, local custom, and historical usage."³⁰ Second, the Supreme Court addressed the Eleventh Circuit's standard in failure to promote cases.³¹ In the past, the Eleventh Circuit had concluded that pretext in such cases could only be established when the disparity in qualifications between the plaintiff and the person selected was "'so apparent as virtually to jump off the page and slap you in the face.'"³² The Supreme Court commented that this standard was "unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications."³³ Although the Court noted that it was not prepared to define what the standard should be in such cases,³⁴ it was clear that the "jump off the page and slap you in the face" standard was not it.³⁵ The Court remanded the case to the Eleventh Circuit for further proceedings.³⁶

In Brooks v. County Commission of Jefferson County,³⁷ the Eleventh Circuit had its first opportunity to address a Title VII failure to promote case following the Supreme Court's decision in Ash. The plaintiff, a white female, applied for promotion to the position of budget management officer for the defendant county. When the county selected Tracie Hodge, a black female, for the position instead of the plaintiff (based in part upon Hodge's prior experience serving as interim budget management officer), the plaintiff brought a race discrimination claim under Title VII. The district court granted summary judgment for the county.³⁸ on appeal, citing the decision in Ash as well as its own prior decision in Cooper v. Southern Co.,³⁹ the Eleventh Circuit held, with respect to the issue of whether the county's selection of Hodge was based on reasons that were a pretext for discrimination, that the plaintiff had not met her burden of showing that "the disparities between her qualifications and Hodge's qualifications were so severe that no reasonable person could have chosen Hodge over her."⁴⁰ Accordingly, the Eleventh Circuit affirmed the district court's decision.⁴¹

In Burke-Fowler v. Orange County,⁴² the Eleventh Circuit was confronted with the familiar issue of whether alleged comparators were "similarly situated" to the plaintiff; that is, that employees not in the plaintiff's protected category engaged in similar misconduct as the plaintiff but received more favorable disciplinary treatment.⁴³ The plaintiff worked as a correctional officer for the defendant County's corrections department. A number of years after she was hired, the plaintiffdeveloped a relationship with and eventually married an inmate at the prison. The plaintiff did not disclose either her relationship or her marriage to her supervisors at the correctional facility. The County maintained a policy prohibiting correctional officers from fraternizing with inmates. When the plaintiff's supervisors found out about her marriage, the plaintiff was terminated for violating the County's anti-fraternization policy. In the plaintiff's subsequent race discrimination action pursuant to Title VII, the district court granted summary judgment for the County.⁴⁴ on appeal, the Eleventh Circuit was concerned primarily with whether the plaintiff had produced evidence of other "similarly situated" white correctional officers who had received more favorable treatment.⁴⁵ The plaintiff had presented evidence of two white correctional officers who established relationships with individuals who were incarcerated after the relationships had begun but were not terminated.⁴⁶ The court of appeals noted that this was a critical difference when compared to the plaintiff's case because the plaintiff had entered into her relationship with full knowledge of the County's policy and with full knowledge of the inmate's status as an inmate.⁴⁷ Citing its prior decision in Maniccia v. Brown,⁴⁸ the court of appeals held that the misconduct of the alleged comparators was not "'nearly identical'" to that of the plaintiff.⁴⁹ Accordingly, neither were deemed to be appropriate comparators, and the district court's opinion was affirmed.⁵⁰

3. Direct Evidence. In Tomczyk v. Jocks & Jills Restaurants, LLC,⁵¹ the...