Title VII

Retaliation: Employees on Thin Ice Can’t Save Their Jobs with Discrimination Complaints

Robert C. Lockwood
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Thin Ice retaliation
Employees on thin ice can’t save their jobs by making insincere claims of discrimination.

People don’t like to get fired from their jobs.  Thanks to the wonders of the internet, many employees also know that several employment laws (like Title VII of the Civil Rights Act of 1964) prohibit retaliation for making complaints of discrimination.  As a result, employees who know that their jobs are in trouble will frequently make last-minute claims of discrimination in the hope that their employer will not fire them — for fear of a retaliation law suit.

This tactic has become so commonplace that the Eleventh Circuit Court of Appeals has developed a line of cases which protect employers from such retaliation law suits.  Those cases focus on the concept of causation.  As part of his/her case, an employee claiming retaliation must show that termination was caused by the discrimination complaint.  In most cases, close timing between the complaint and termination is sufficient to establish causation.   But, there are exceptions to every rule, and the Eleventh Circuit has created an exception to the general rule on causation.  Close timing “between the protected activity and the adverse action alone generally cannot show causation when the employer has contemplated the adverse action before the protected activity takes place.”  Tucker v. Florida Dept. of Transport., No. 16-10420, 2017 WL 443632 at *3 (11th Cir. Feb. 2, 2017).

In short, if an employer is contemplating termination before an employee claims discrimination, then the employee must show more than close timing if he/she wants to win a retaliation claim.  The Eleventh Circuit provides the following rationale for that rule:   “Title VII’s anti-retaliation provisions do not allow employees who are already on thin ice to insulate themselves against termination or discipline by preemptively making a [ ] complaint.”   Id.

As a practical matter, I strongly encourage any employer “contemplating” termination to have documentation in support of termination prior to making the decision.  Additionally, employers should also proceed cautiously any time an employee complains about discrimination.  Sometimes, even last-minute discrimination complaints have merit, and employers should ensure that no discrimination occurs in the workplace.

 

Belief “From the Heart” Cannot Prove Discrimination

Robert C. Lockwood
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Belief heart discrimination
A belief “from the heart” is insufficient to prove discrimination.

I frequently tell clients:  “There’s a difference between what you know and what you can prove.”  A quick internet search tells me that I’ve been stealing that line from Tom Cruise in “A Few Good Men.”  Even so, the maxim is really the foundation for our court system.  Even if you know something “in your bones” (as my Dad used to say), you have to provide admissible evidence in court.  The Eleventh Circuit Court of Appeals recently hammered that point home in a recent Title VII discrimination case: Mells v. Secretary Dept. of Veterans Affairs, No. 15-14251, 2017 WL 60387 (11th Cir. Feb. 15, 2017).

In Mells, an employee sued for racial discrimination arising from denial of a promotion.  The undisputed evidence showed that a four-person interview panel ranked Ms. Mells lower than other applicants.  Nevertheless, Ms. Mells argued that a biased supervisor selected the four-person panel.   Ms. Mells believed “in her heart” that there was a possibility that the interview panel was swayed by the biased supervisor.

The Eleventh Circuit rejected that argument:  “Although Ms. Mells may be inclined to follow her heart, we, like the district court, are required to follow the evidence.”  The Court found no evidence that the interview panel was biased or swayed by the supervisor.  As a result, the Court affirmed dismissal of her claims.  Notably, the Eleventh Circuit rejected these matters of the heart on the day after Valentine’s day, but there is no reference to Valentine’s in the opinion.

Mells provides two lessons.  First, it demonstrates the benefits of using interview panels in hiring and promotion decisions.  If an applicant later attempts to sue for discrimination, they face a heavy burden to show bias of the entire panel.  Second, in every case, employees (and employers) must present more evidence than mere “belief” if they want to win.

Discrimination: Sometimes, ignorance is a good excuse.

Robert C. Lockwood
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Ignorance discrimination knowledge
If a decision maker lacks knowledge of an employee’s protected class, an employer may possess an additional defense to discrimination claims.

We’ve all heard the phrase:  “Ignorance of the law is no excuse.”  Indeed, that point has been driven-home to at least one employer in Alabama:  Ignorance of the Law is No Excuse  While ignorance of the law is not a good excuse, sometimes, ignorance of the facts can provide employers with a defense to employment discrimination claims.

The vast majority of federal employment laws only prohibit intentional discrimination.  As a result, if a decision-maker possesses no knowledge (i.e. ignorance) of an employee’s protected status, then numerous decisions hold that there was no intentional discrimination.  For example, an employee suing under the Americans with Disabilities Act must prove that he or she was fired “because of” a disability.  But, the Eleventh Circuit Court of Appeals has clearly held that “a decision–maker who lacks actual knowledge of an employee’s disability cannot fire the employee ‘because of’ that disability.”  Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1186 (11th Cir. 2005).  The Court has reached similar conclusions in cases involving allegations of: religious discrimination under Title VII of the Civil Rights Act of 1964, Lubetsky v. Applied Card Sys., 296 F.3d 1301, 1306 (11th Cir. 2002)(” an employer cannot intentionally discriminate against an individual based on his religion unless the employer knows the individual’s religion.”); and,  retaliation under Title VII,  Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th Cir.2000) (“A decision maker cannot have been motivated to retaliate by something unknown to him.”).

This post is not intended to encourage employers and decision makers to remain blissfully ignorant of issues in the work place.  Indeed, ignoring work conditions can quickly lead to more law suits.  But, if a decision maker was truly unaware that a terminated employee was part of a protected class, then there is a potential defense to an employment discrimination claim.

Asperger’s at Work: Potential for Conflict Between Title VII and ADA

Robert C. Lockwood
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autism

A recent decision from the Eleventh Circuit Court of Appeals demonstrates difficult decisions that may face employers when they hire employees with Asperger’s syndrome.  Furcron v. Mail Centers Plus, LLC, No. 15-14595, 2016 WL 7321211 (11th Cir. Dec. 16, 2016).  Asberger’s is generally considered a “high functioning” form of autism.  Affected persons “have difficulty with social interactions and exhibit a restricted range of interests and/or repetitive behaviors.” https://www.autismspeaks.org/what-autism/asperger-syndrome

In Furcron, Myra Furcron was a female mailroom clerk, who claimed that she was sexually harassed by Daniel Seligman, a male mailroom clerk suffering from Asperger’s.  Furcron claimed that Seligman attempted to look down her shirt and at her underwear when she bent over.  She also claimed that Seligman would intentionally bump against her and rub his erect penis against her.  When she complained, Furcron’s supervisor responded “that Seligman meant no harm, and that his conduct should be tolerated because of his disability.”  Furcron, 2016 WL 7321211 at *2.  Although a trial court dismissed Ms. Furcron’s claims, the Eleventh Circuit found sufficient evidence of sexual harassment to warrant a jury trial.

Another case involving Asperger’s is Taylor v. Food World, Inc., 133 F.3d 1419 (11th Cir. 1998). In Taylor, the plaintiff suffered from Asperger’s and was a utility clerk who bagged groceries and assisted customers with their groceries.  He was terminated after three customers complained that he was “loud, overly friendly and overly talkative.”  He sued for violations of the Americans with Disabilities Act.  The Court found that one of the essential functions of the job was “the ability to carry out the tasks of the job without offending customers.”  Taylor, 133 F.3d at 1424.  Nevertheless, the Court found sufficient evidence to warrant a jury trial, because some managers and employees testified that they received no complaints and observed no inappropriate behavior.  Additionally, there were questions of fact regarding whether the questions asked by the plaintiff to customers were offensive or inappropriate.

A final case merits discussion, even though it deals with Tourette’s syndrome instead of Asperger’s.  Ray v. Kroger Co., No. 03-12919, 2003 WL 23018292 (11th Cir. 2003).  In Ray, a grocery store employee’s condition caused him to blurt out racial slurs on a daily basis.  As an accommodation to his disability, the store allowed him to pass out cards to customers explaining his condition, and transferred him to the night shift when fewer customers were in the store.  Nevertheless, three customers complained about bizarre and anti-social behavior, and a contractor complained about a perceived racial insult.  The Court affirmed dismissal of Ray’s ADA case, because he could not demonstrate that he could perform the essential function of “interacting with customers without insulting them.”

These cases seem to place employers in a Catch-22 situation.  If they discipline an employee for behavior related to their disability, they face the threat of a law suit for violating the Americans with Disabilities Act.  But, if they fail to discipline the employee, the employee could then commit acts (like the alleged sexual harassment in Furcron) that get the employer sued by other employees or third-parties.

Employer should proceed slowly if they encounter performance issues from employees suffering from Asperger’s, Tourette’s or other conditions that affect behavior.  Ray and Taylor both suggest that it may be possible to discipline such employees without violating the ADA.  To do so, however, employers need to establish, at a minimum that:  (1) the ability to interact with customers and co-workers without offending them is an essential function of the job; and, (2) abundant evidence existed demonstrating the employee’s inability to fulfill that essential function.

Earnhardt!!! Junior’s Car Dealership Wins Discrimination Case

Robert C. Lockwood
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NASCAR discrimination
Dale Earnhardt, Jr.’s car dealership won a recent discrimination case.

In a sweeping victory for NASCAR fans, the Eleventh Circuit Court of Appeals recently affirmed dismissal of a discrimination law suit against Dale Earnhardt, Jr. Chevrolet.  Wilson v. Dale Ernhardt, Jr. Chevrolet, No. 15-15352, 2016 WL 6211818 (11th Cir. Oct. 25, 2016).  (It appears that the parties or the Court incorrectly spelled Dale, Jr’s name “Ernhardt”).

Glenda Wilson claimed that Earnhardt Chevrolet refused to promote her to a guest service manager position because she was black and older than the three women hired for the position.  Yet, Ms. Wilson’s discrimination claims were undermined by her own actions.   After Ms. Wilson filed a charge of discrimination with the EEOC, the general manager of the car dealership twice asked if she would like the position.  On the second occasion, Ms. Wilson said that she was not interested in the position.

Additionally, Ms. Wilson never applied for the guest service manager position.  She argued that it would be futile to apply because an operations manager told her that she would suffer a reduction in wages if she accepted the position.  But, she never asked other service managers what they made, so that she could compare salaries.  Moreover, the general manager testified that he actually told Ms. Wilson she would not suffer a reduction in pay.

Based upon all of the those facts, the Eleventh Circuit affirmed a decision by the trial court to dismiss Ms. Wilson’s claims.  Wilson provides a useful lesson for employers faced with discrimination claims.  Many times, the best way to combat a discrimination claim is to offer the  employee what they want when you learn about the claim.  If the employee rejects that offer, then their claim for damages is severely reduced.  By offering Ms. Wilson the position she desired, the dealership also created valuable evidence that helped negate the discrimination claim.

Gay Police Officer’s Discrimination Case Goes Forward

Robert C. Lockwood
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Homosexual discrimination under Title VII
Gay Police Officer’s Discrimination Claim Goes Forward

An Alabama United States Magistrate Judge recently declined to dismiss a discrimination claim filed by a homosexual police officer.  Smith v. City of Pleasant Grove, No. 2:16-cv-00373-JEO, 2016 WL 5868510 (N.D. Ala. Oct. 7, 2016).

According to the complaint, Lance Smith was hired by the Pleasant Grove Police Department in 2014.  After he was offered the position, he informed his supervisor that he is homosexual.  The supervisor suggested that he should reconsider working at the department, but later sent an email saying that his homosexuality would not be an issue.  After starting work, he was paid a salary $5,000 less than promised by the supervisor.  Mr. Smith was supposed to attend a three-week filed training course, where he was assigned to ride with a Field Training Officer.  But, he was assigned to work on his own after less than two weeks.  Two months after starting work, Mr. Smith was told that he was “not going to work out,” and told that he would be grounded, suspended and fired if he did not resign.

Mr. Smith resigned from employment and filed suit under Title VII of the Civil Rights Act of 1964.  He alleged that he was constructively discharged because of his sexual orientation and because of sexual stereotypes associated with his gender.

The City of Pleasant Grove moved to dismiss the complaint and argued that discrimination based upon sexual orientation is not actionable under Title VII.  Magistrate Judge John Ott declined to dismiss the complaint.  Judge Ott recognized that the Eleventh Circuit Court of Appeals has consistently rejected Title VII claims based upon sexual orientation.  Nevertheless, he also recognized that trend might be changing.  The United States Equal Employment Opportunity Commission and at at least one federal court in Alabama have recently recognized that sexual orientation claims are actionable under Title VII.  See Isaacs v. Felder Servs., LLC, 143 F.Supp. 3d 1190, 1193 (M.D. Ala. 2015).

Judge Ott was able to side-step the issue of conclusively deciding whether sexual orientation claims are actionable under Title VII.  Instead, he relied upon an established line of Eleventh Circuit cases holding that Title VII protects employees who allege discrimination based upon failure to conform to sex and gender stereotypes.  See Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011).  Judge Ott found that Mr. Smith’s complaint contained sufficient allegations to allow him to proceed with discovery to support his gender stereotyping claim.

Judge Ott’s ruling appears to be a proper application of the existing federal law in Alabama regarding gender stereotyping.  I previously wrote about the issue of gender stereotyping here:  Emerging LGBT Issues  Unquestionably, the City of Pleasant Grove will move for summary judgment at the conclusion of discovery.  It will be interesting to see if Judge Ott directly tackles the  issue of sexual orientation discrimination at that stage.

The Equal Pay Act Does Not Prohibit Discriminatory Job Assignments

Robert C. Lockwood
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Equal Pay Act Wage Discrimination
The Equal Pay Act Does Not Prohibit Wage Discrimination Resulting from Job Assignments

Recent decisions from the United States District Court for the Northern District of Alabama demonstrate that the Equal Pay Act cannot be used to sue employers for wage disparities caused by discriminatory work assignments.  See Crosby v. Massey Hauling, Co., No. 2:16-cv-00383-RDP, 2016 WL 6082047 (N.D. Ala. Oct. 18, 2016).

Generally, the Equal Pay Act prohibits wage discrimination on the basis of gender.  An employer cannot discriminate “between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which he pays wages to employees of the opposite sex …for equal work ….”  29 U.S.C. 206(d)(1).  In Crosby, the plaintiff was a female truck driver.  Her employer paid truck drivers based upon the materials hauled in the trucks.  Most of the employer’s trucks were coal trucks, but the employer also used about seven dump trucks. The coal truck assignment were more lucrative for drivers than dump truck assignments.  The Plaintiff alleged that she suffered wage discrimination because her employer always assigned her to dump truck jobs, while allowing men to drive the coal trucks.

United States District Court Judge R. David Proctor dismissed the plaintiff’s Equal Pay Act claim.  He relied heavily upon an earlier opinion by Senior United States District Court Judge C. Lynwood Smith, Jr. in Caetio v. Spirit Coach, LLC, 992 F.Supp.2d 1199 (N.D. Ala. 2014).  Judge Smith found that “the Equal Pay Act does not provide relief for allegations of discriminatory work assignments.”  Caetio, 992 F.Supp.2d at 1213.  Because the Plaintiff in Crosby was seeking to recover for disparities in pay caused by discriminatory work assignments between coal trucks and dump trucks, Judge Proctor dismissed the Equal Pay Act claim.

Judge Proctor’s decision was only a minor win for the employer.  The plaintiff also filed a claim under Title VII of the Civil Rights Act of 1964 which generally prohibits gender discrimination. Potentially, discriminatory work assignments could violate Title VII.  The employer in Crosby did not seek dismissal of the Title VII claim, and that claim will proceed through the discovery process.

Prohibiting Dreadlocks Is Not Race Discrimination Under Title VII

Robert C. Lockwood
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Dreadlocks Race Discrimination
An Employer’s Decision to Prohibit Dreadlocks Does Not Constitute Race Discrimination

The Eleventh Circuit Court of Appeals has ruled that an employer does not commit race discrimination by prohibiting African-American employees from wearing dreadlocks.  See EEOC v. Catastrophe Management Solutions, No. 14-13482, 2016 WL 4916851.

Catastrophe Management Solutions (“CMS”) interviewed Chastity Jones for a position as a customer service representative.  During the interview, Ms. Jones wore a blue business suit and wore her hair in short dreadlocks.  During  a meeting after the interview, CMS’s Human Resources Manager offered a group of employees (including Ms. Jones) positions as customer service representatives.  After that meeting, Ms. Jones spoke to the HR Manager about scheduling issues, and the HR Manager informed Ms. Jones that CMS could not hire her “with the dreadlocks.”  Allegedly, the HR Manager said:  “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.”  When Ms. Jones refused to cut her hair, the HR Manager requested that Ms. Jones return her hiring paperwork.

CMS had a race-neutral grooming policy which read as follows:  “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines…. [H]airstyle should reflect a business/professional image.  No excessive hairstyles or unusual colors are acceptable[.]”

The United States Equal Employment Opportunity Commission sued CMS for race discrimination under Title VII of the Civil Rights Act of 1964.  The Eleventh Circuit recognized that the concept of “race” today might be different from the concept of race when Title VII was enacted in 1964.  Indeed:  “It may be that today ‘race’ is recognized as a ‘social construct’ … rather than an absolute biological truth.”  Catastrophe Management Solutions, 206 WL 4916851 at *7.  Nevertheless, the Court declined to adopt a more-contemporary concept of race:  “But our possible currently reality does not tell us what the country’s collective zeitgeist was when Congress enacted Title VII half a century ago.  ‘That race is essentially only a very powerful idea and not at all a biological fact is, again, an emerging contemporary understanding of the meaning of race.'”  Id.

Utilizing a contemporary concept of race, the EEOC argued that a ban on dreadlocks amounted to race discrimination:  “black persons choose to wear dreadlocks because that hairstyle is historically, physiologically, and culturally associated with their race.”  Id. at *9.  But, the Eleventh Circuit rejected that argument by relying upon cases from the 1970’s holding “that Title VII protects against discrimination based upon immutable characteristics.”  Id. at *8.

The court then extended that rationale to find that “Title VII protects person in covered categories with respect to their immutable characteristics, but not their cultural practices.”  Id. at *9.  The court concluded:  “That dreadlocks are a ‘natural outgrowth’ of the texture of black hair does not make them an immutable characteristic of race.”  Id.  “[D]iscrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not.”  Id.

Catastrophe Management Solutions should not be interpreted as carte blanche authority for employers to terminate African-American employees on the basis of hairstyle.  In fact, the Eleventh Circuit recognized that “the distinction between immutable and mutable characteristics of race can sometimes be a fine (and difficult) one ….”  Nevertheless, this case provides employers with increased protection if they possess a race-neutral grooming policy which is uniformly enforced without regard to race.

 

“Everybody’s Doing It” Does Not Prove a Title VII Claim

Robert C. Lockwood
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Race discrimination
Race discrimination is not proven by arguing that “everybody’s doing it.”

Judge Scott Coogler recently granted summary judgment in favor of an employer in a Title VII race discrimination case where the employee used a generalized claim of “everybody’s doing it” to try to prove her case.  See McGuire v. 3M Company, No. 6:14-cv-02015-LSC, 2016 WL 4073961 (N.D. Ala. Aug. 1, 2016).  Arzealar McGuire claimed that she was terminated by 3M Company because of her race.

As part of a typical Title VII case, an employee like Ms. McGuire is required to show that a “comparator” (typically another white employee) committed similar misconduct and was treated more favorably.  In this case, Ms. McGuire was terminated based upon her disciplinary history, which included three suspensions in 26 months.

To meet her burden of demonstrating a comparator, Ms. McGuire generically alleged that fourteen other other employees committed misconduct, but were not disciplined as severely.  But, she presented no documentation to back-up those claims.  Thus, Judge Coogler found that she could not meet her burden of proof:

The only evidence McGuire presents on these fourteen employees is her deposition testimony. However, McGuire either admits she does not know the disciplinary histories of thirteen of the employees or she does not provide any evidence of their disciplinary histories. Specifically, McGuire has not provided any evidence of an employee who was disciplined for sleeping on the job, making sexually inappropriate comments, falsifying overtime records, engaging in sustained attendance misbehavior, violating company badge policy, and leaving work in violation of the company’s relief policy. Because McGuire had an extensive disciplinary history and it contributed to her termination, a proper comparator should likewise have an extensive disciplinary history.

McGuire, 2016 WL 4073961 at *3.

Ms. McGuire’s tactic is one that we see frequently in employment discrimination cases.  Employees claim that “everybody’s doing it” and thus claim that multiple “oomparator” employees establish their discrimination claim.  Fortunately, many judges in Alabama have required more than such generalized claims in order to prove discrimination.  Instead, plaintiffs like Ms. McGuire are required to identify comparators who engage in similar misconduct and similar amounts of misconduct.

“Cleaning House” OK Under Title VII

Robert C. Lockwood
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Employer "Cleaning House" - Equal Employment Opportunity Claims
Cleaning House Does Not Violate Equal Employment Opportunity Provisions of Title VII

A managerial decision to “clean house” in order to eliminate workplace disruptions is a legitimate, nondiscriminatory reason for terminating an employee under Title VII.  Holmes v. Jefferson County Pub. Sch. Dist., No. 15-15198, 2016 WL 4056029 (11th Cir. 2016).  Holmes arose from the Information Technology department of the Jefferson County School District.  That department hired a black female, April Holmes, in 2009 and a black male, Kenneth Mitchell in 2011.  A white male, Kenneth Stubbs, had worked in the department for roughly 30 years.  In 2011, substantial conflicts arose between Ms. Holmes and Mr. Stubbs, leading to two meetings with the District’s Superintendent.

In 2012, a new Superintendent, Albert Cooksey, was elected.  Mr. Cooksey was aware of the conflicts in the IT department and decided, in his words, to “clean house.”  He terminated Ms. Holmes and Mr. Mitchell.  Mr. Cooksey retained Mr. Stubbs because of his greater level of experience and because Cooksey believed Stubbs was not a part of the conflicts.  Ms. Holmes sued and claimed that her termination was based upon her race in violation of Title VII of the Civil Rights Act of 1964.

The Eleventh Circuit found that Mr. Cooksey’s desire to “clean house” was a legitimate, nondiscriminatory reason for terminating Ms. Holmes. The court also found that Ms. Holmes failed to meet that reason “head on” and rebut it.  Indeed, the court found “Ms. Holmes does not dispute that there was conflict within the department.  Nor does she dispute that Mr. Stubbs had more experience than she did.”

The court recognized that termination of the department’s two black employees, while retaining the lone white employee, was a potential issue.  Nevertheless, the court found that “the sample size is too small to conclude without more that this shows causation rather than coincidence.  Further, the record demonstrates that the first person Mr. Cooksey recommended to fill one of the recently vacant IT technician positions was African-American.”

Holmes recognizes that an employer’s desire to limit workplace disruptions is a valid defense to Title VII claims.  Obviously, that defense is rebuttable by the employee, so employers should not generically rely upon a desire to “clean house” as a defense in all Title VII claims.  Instead, if an employer possesses adequate documentation of the workplace disruptions, it will possess a good starting point for obtaining dismissal of the Title VII claims.