Employment Discrimination - Peter Reed Corbin and John E. Duvall

• Publication year: 2005

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

Continuing the trend begun with the 2003 survey period, the 2004 survey period experienced a significant decrease in the number of decisions by the Eleventh Circuit Court of Appeals in the area of employment discrimination.¹ On the other hand, the United States Supreme Court decided several noteworthy decisions in the employment arena. In Pennsylvania State Police v. Suders,² the Court addressed the important issue of whether the Ellerth /Faragher affirmative defense³ in hostile work environment sexual harassment cases is available when the plaintiff alleges that she was constructively discharged.⁴ In General Dynamics Land Systems, Inc. v. Cline,⁵ the Court, in another victory for employers, ruled that claims of so-called "reverse discrimination" are not available in claims made pursuant to the Age Discrimination in Employment Act ("ADEA").⁶

I. Title VII of the Civil Rights Act of 1964

A. Jurisdiction and Coverage Under the Act

1. Definition of "Employee." The requirement that a plaintiff fall within the statutory definition of "employee" is fundamental to coverage under Title VII.⁷ In Cuddeback v. Florida Board of Education,⁸ the issue before the court was whether a graduate student research assistant met the Title VII definition of "employee."⁹ Plaintiff was a graduate student at the University of South Florida who conducted laboratory cancer research while completing her doctoral dissertation. During her first year of work, plaintiff was told by her professor "that she was his best student."¹⁰ From that point forward, however, plaintiff's professor began expressing concerns about plaintiff's attendance, lab notebooks, and lack of communication. Ultimately, these concerns led to the non-renewal of plaintiff's appointment. Plaintiff then filed a complaint under Title VII, alleging gender discrimination. The university filed a motion for summary judgment, alleging that plaintiff was a student, not an employee, so Title VII did not apply. The district court disagreed with the university's argument and found that plaintiff was an employee. Nevertheless, the court granted the summary judgment motion because plaintiff did not establish a prima facie case of discrimination.¹¹

On appeal, the primary issue was whether plaintiff met the statutory definition of "employee." In resolving this issue, the court of appeals relied upon the "economic realities" test adopted by the court's prior decision in Cobb v. Sun Papers, Inc.¹² The court in Cuddeback held the following factors favored treating plaintiff as an employee under Title VII: (1) plaintiff received a stipend (waiver of tuition in the amount of $15,000) and benefits for her work; (2) plaintiff received sick and annual leave; (3) plaintiff's relationship with the university was governed by a collective bargaining agreement; (4) plaintiff was provided equipment and training by the university; and (5) "the decision not to renew [plaintiff's] appointment was based on employment reasons . . . rather than academic reasons."¹³ Accordingly, the Eleventh Circuit affirmed the district court's ruling that plaintiff was a Title VII employee.¹⁴ Despite concluding plaintiff was an employee, the appellate court affirmed the district court's finding that plaintiff had not established that she was discriminated against on account of her gender.¹⁵

2. Disparate Treatment. Part of the plaintiff's burden of proof in a disparate treatment action is establishing she was subjected to an "adverse employment action" by an employer.¹⁶ This issue was before the court in Lindsey v. Burlington Northern Santa Fe Railway.¹⁷ Plaintiff brought a lawsuit against defendant railroad alleging gender discrimination in violation of Title VII. Specifically, plaintiff contended that junior male employees were recalled for temporary work assignments before she was. However, the evidence established that plaintiff had filed an internal grievance over this issue and had been fully compensated through the railroad's grievance process. The district court found that plaintiff had not suffered an adverse employment action, and accordingly, granted summary judgment for the railroad.¹⁸ On appeal, the Eleventh Circuit, citing its prior decision in Davis v. Town of Lake Park,¹⁹ held that a plaintiff must prove that she was subjected to "a serious and material change in the terms, conditions, or privileges of employment" to establish an adverse employment action.²⁰ Applying this standard to plaintiff in Lindsey, the court concluded that plaintiff had suffered no tangible harm and had not suffered an adverse employment action because she had been compensated through the railroad's internal grievance procedure for the times that junior male employees had been called ahead of her for temporary work assignments.²¹ Accordingly, the Eleventh Circuit affirmed the district court's decision.²²

In Wilson v. B/E Aerospace, Inc.,²³ the primary issue before the Eleventh Circuit was whether the alleged statements by defendant's management constituted so-called "direct evidence" of discriminatory motive.²⁴ B/E Aerospace, Inc., a manufacturer of airplane cabin interior products, located in Delray Beach, Florida, hired plaintiff as an engineering business manager. Plaintiff subsequently received promotions to the positions of Engineering Manager and then Engineering Director within the company's Interior Systems Group ("ISG"). Thereafter, plaintiff expressed an interest in being considered for the position of Site Vice President.²⁵ Plaintiff allegedly was told by her supervisor that she was "the obvious candidate" for this position, and "even though women aren't typically in that type of position we'll see what happens when we throw your name out there to corporate."²⁶ The position was awarded to a male candidate, allegedly because plaintiff was not fully qualified for the position.²⁷

Over a year later, plaintiff was asked to move her office closer to the majority of employees that she supervised. Plaintiff initially protested this move but eventually agreed to do so. Plaintiff packed the contents of her office, closed the blinds, locked the door, took most of her personal belongings home, and left the facility. It appeared to plaintiff's supervisor that she had vacated her office and quit. When plaintiff was later contacted and asked to explain her actions, she stated that she had simply packed her office in preparation for moving it. Plaintiff's supervisor did not believe this story and terminated plaintiff for insubordination. Plaintiff filed an action pursuant to Title VII alleging gender discrimination, both with respect to her not being promoted to vice president and with respect to her termination. The district court granted summary judgment for the employer.²⁸

On appeal, the Eleventh Circuit focused on whether the alleged comments by plaintiff's supervisor constituted direct evidence of a discriminatory motive.²⁹ The court of appeals noted that direct evidence included '"only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor."³⁰ The court noted that the comment that plaintiff was "the obvious choice" for promotion was neutral, not evidence of a discriminatory intent.³¹ With respect to the supervisor's comment—"even though women aren't typically in that type of position," the court determined that the statement could allow an inference of discrimination, but the statement could also be interpreted as merely an observation of fact.³² Accordingly, the Eleventh Circuit noted that the comments did not constitute direct evidence of discrimination.³³

The court also concluded that the comments, in the context of the circumstantial evidence model of proof, created a disputed issue of material fact on whether defendant's articulated reason for not promoting plaintiff (i.e., that she was not qualified) was simply a pretext for a discriminatory motive.³⁴ Accordingly, the court of appeals reversed the district court's grant of summary judgment with respect to the promotion claim.³⁵ However, the Eleventh Circuit affirmed the district court's decision regarding the termination claim, which did not occur until over a year later, because her termination was too remote in time to allow a reasonable inference of discrimination.³⁶

3. Sexual Harrassment. Perhaps the most significant decision handed down by the United States Supreme Court during the survey period was Pennsylvania State Police v. Suders?¹ Plaintiff worked as a police communications operator for the Pennsylvania State Police. Over a period of approximately five months, three of plaintiff's male supervisors subjected her to a barrage of sexual comments, obscene gestures, and the like. Plaintiff eventually resigned without having filed a complaint in compliance with defendant's sexual harassment policy. She subsequently brought an action pursuant to Title VII, alleging that she had been subjected to sexual harassment and constructively discharged from her position.³⁸

The district court granted summary judgment for defendant on the basis of the Ellerth / Faragher affirmative defense. The court found that defendant exercised reasonable care to prevent sexual harassment by maintaining a policy prohibiting such conduct, and that plaintiff had unreasonably failed to take advantage of defendant's complaint

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31. Id.

32. Id. at 1086-87.

33. Id. at 1083.

34. Id. at 1091.

35. Id. at 1092.

36. Id.

37. 124 S. Ct. 2342 (2004).

38. Id. at 2348. procedure.³⁹ On appeal, the Third Circuit reversed, holding that the employer was strictly liable and that a constructive discharge constituted a tangible employment action.⁴⁰ Thus the Ellerth /Faragher defense was unavailable.⁴¹

In a victory for employers, the Supreme Court vacated the Third Circuit's strict liability holding.⁴² The Court concluded the Ellerth/ Faragher affirmative defense is...