Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 2009

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

The 2008 survey period was a banner year for the United States Supreme Court in the area of employment discrimination.¹ The Court handed down no fewer than six decisions in the employment area during 2008. Leading the way was the Court's decision in Sprint/United Management Co. v. Mendelsohn,² an Age Discrimination in Employment Act of 1967 (ADEA)³ case in which the Court addressed the admissibility of "me too" evidence in employment discrimination cases.⁴ In Meacham v. Knolls Atomic Power Laboratory,⁵ another ADEA case, the Court held that the employer bears the burden of proof in the "reasonable factors other than age" defense.⁶ Finally, in Federal Express Corp. v. Holowecki,⁷ yet another ADEA case, the Court decided the important procedural question of what constitutes an adequate charge of discrimination.⁸

The United States Court of Appeals for the Eleventh Circuit also had a very busy year in the employment discrimination area; however, continuing the trend from recent years, the vast majority of the court's opinions were unpublished. The Eleventh Circuit handed down approximately 120 unpublished opinions in the employment discrimination area, including approximately 85 on actions pursuant to Title VII of the Civil Rights Act of 1964 (Title VII).⁹ The Eleventh Circuit handed down only fifteen published opinions in the employment discrimination area, including nine Title VII opinions.

I. Title VII of the Civil Rights Act of 1964

A. Theories of Liability and Burdens of Proof

1. Disparate Treatment. One case during this survey period involved the traditional circumstantial evidence model of proofpursuant to McDonnell Douglas Corp. v. Green¹⁰ and Texas Department of Community Affairs v. Burdine.¹¹ In McCann v. Tillman,¹² the United States Court of Appeals for the Eleventh Circuit addressed the element in the plaintiff's prima facie case that required the plaintiffto establish she was "similarly situated" to other employees not in the plaintiff's protective class who received more favorable disciplinary treatment.¹³ The plaintiff was employed as a correctional officer for the Mobile, Alabama county jail. on her way to work one morning, the plaintiffwas notified that her son was incarcerated in a neighboring county jail, so she asked for, and was allowed, an emergency vacation day to go visit him. Unfortunately, however, the plaintiff wore her correctional officer uniform when visiting the neighboring county jail, which violated a regulation forbidding employees from wearing their uniforms off-duty. As a result, the plaintiff was suspended for fifteen days without pay. The plaintiff brought suit under Title VII of the Civil Rights Act of 1964 (Title VII),¹⁴ challenging her suspension as discriminatory on account of race. The United States District Court for the Southern District of Alabama granted summary judgment for the defendant, finding that the plaintiff had not established a prima facie case.¹⁵ on appeal the Eleventh Circuit, citing its prior decision in Maniccia v. Brown,¹⁶ reaffirmed that in order to establish the "similarly situated" prong of the prima facie case requirement, the plaintiffmust show that the conduct of the alleged comparator was "'nearly identical'" to that engaged in by the plaintiff.¹⁷ Acknowledging that "nearly identical" does not mean "exactly identical,"¹⁸ the Eleventh Circuit agreed with the district court that the plaintiff had not met this standard.¹⁹ The Eleventh Circuit held that the two comparators identified by the plaintiff, both Caucasian employees who had received lesser discipline after having been found to have engaged in conduct unbecoming an officer, were "qualitatively different" from the plaintiff.²⁰ In neither of these instances was the alleged comparator violating the uniform directive at the time of misconduct.²¹ The Eleventh Circuit concluded that for this reason, the plaintiff's conduct "involved an abuse of office, while the conduct of the comparators did not."²² Accordingly, the Eleventh Circuit held that the plaintiff had not established the "similarly situated" prima facie case requirement, and the decision of the district court was affirmed.²³

2. Sexual Harassment. Two cases during the survey period addressed the ever volatile area of sexual harassment. In Webb-Edwards v. Orange County Sheriff's Office,²⁴ the Eleventh Circuit confronted whether sexual statements on the job were pervasive enough to constitute a hostile and adverse work environment.²⁵ The plaintiff worked as a deputy sheriff for the orange County Sheriff's office in Florida. In February 2004, the plaintiff's unit was assigned a new supervisor, Sgt. Richard Mankewich.²⁶ Within the first week, Sgt. Mankewich began making statements to the plaintiff along the lines of "that looks hot or you look hot."²⁷ on other occasions, he remarked that the plaintiffshould wear tighter clothes and that he wished his wife wore tighter clothes.²⁸ one day while the plaintiff and Sgt. Mankewich were riding in the car together, the plaintiff's husband telephoned the plaintiff, and before the plaintiff could complete the conversation, Sgt. Mankewich grabbed the telephone and said to her husband: "I don't know what you're saying, but I'm eating your wife."²⁹ The plaintiff then filed a formal complaint against Sgt. Mankewich, but she did not disclose the crude comment that he had made in the car to her husband. The plaintiff was immediately transferred to a different work station pending the investigation of her complaint. The crude telephone comment to the plaintiff's husband did not come to light until a few weeks later when the plaintiff's husband told another sergeant about it and that sergeant in turn reported the incident to his superior. At this point, the plaintiff was given several options: she could either stay with Sgt. Mankewich's unit or transfer to another sector. She was also given the opportunity to participate in mediation with Sgt. Mankewich. The plaintiff chose to transfer to another sector, and agreed to participate in mediation, provided that Sgt. Mankewich wrote her a letter of apology. Sgt. Mankewich sent her a letter apologizing for his behavior, and the plaintiffsubsequently never complained ofinappropriate conduct by Sgt. Mankewich. Nonetheless, the plaintiff sued the Orange County Sheriff's office for sexual harassment and retaliation. The United States District Court for the Middle District of Florida granted the defendant's motion for summary judgment.³⁰

On appeal, the Eleventh Circuit described Sgt. Mankewich's comments as "taunting and boorish," but the court of appeals agreed with the district court that the comments were not "physically threatening or humiliating."³¹ The Eleventh Circuit believed the crude comment to the plaintiff's husband was "more troubling."³² However, concluding that the crude comment was "rather clearly a disgusting attempt at humor, unaccompanied by any other improper conduct,"³³ the Eleventh Circuit agreed that the totality of the circumstances failed to establish that the "boorish remarks" were sufficiently severe or pervasive.³⁴ Accordingly, the Eleventh Circuit affirmed.³⁵

The plaintiff fared better in Reeves v. C.H. Robinson Worldwide, Inc.³⁶ In this case, the Eleventh Circuit addressed the issue of whether a hostile work environment claim could be established when none of the offensive conduct in the workplace was directed at the plaintiff.³⁷ The plaintiff worked as a transportation sales representative in the defendant's Birmingham, Alabama branch office and was the only female in her position in the office. Several of the plaintiff's coworkers frequently used sexually crude language in the workplace.³⁸ For instance, one of the coworkers frequently used the phrase "fucking bitch" or "fucking whore" after hanging up the telephone.³⁹ The coworker referred to another female employee as a "bitch" and once remarked that this individual had "a big ass."⁴⁰ Sexual jokes by this coworker were commonplace, including frequent use of the word "fuck." There was also an offensive radio program played in the office every morning, which included discussions of the breast size of female celebrities, sexual arousal, masturbation, erotic dreams, ejaculation, and female pornography. After the plaintiff resigned, she filed suit against the defendant, alleging a sexually hostile work environment in violation of Title VII.⁴¹ The United States District Court for the Northern District of Alabama granted summary judgment for the defendant "on the ground that the alleged harassment was not 'based on' [the plaintiff's] sex."⁴² On appeal, the Eleventh Circuit disagreed.⁴³ Relying largely on a line of prior race discrimination opinions,⁴⁴ the Eleventh Circuit held that the sexually offensive language at issue in this case satisfied the "based on" element of a sexual harassment hostile work environment case even though the offensive language was not specifically targeted at the plaintiff.⁴⁵ The Eleventh Circuit also had little difficulty in concluding that the offensive language in this case was both objectively and subjectively severe or pervasive enough to create a jury issue and survive summary judgment.⁴⁶

3. Retaliation. One of the Eleventh Circuit's more active areas of interest during the survey period centered around the troubling concept ofretaliation. Of course, in order to trigger the antiretaliation protection afforded by Title VII, it is first necessary to establish that the plaintiff engaged in protected conduct.⁴⁷ That was the issue confronting the Eleventh Circuit in Butler v. Alabama Department of Transportation.⁴⁸ The plaintiff, an African-American woman, worked for the Alabama Department of Transportation. One day, the plaintiffwent to lunch with a Caucasian coworker. The plaintiff was riding as a passenger in the coworker's pickup truck when the truck collided with another vehicle...