MICHAEL W. BASS, Plaintiff-Appellant, versus BOARD OF COUNTY COMMISSIONERS, Orange County, Florida, Defendant-Appellee.
No. 99-10579
United States Court of Appeals, Eleventh Circuit
(February 21, 2001)
D.C. Docket No. 97-00308-CIV-ORL-18A
Before BLACK, CARNES and KRAVITCH, Circuit Judges.
[PUBLISH]
Michael W. Bass appeals the district court’s order granting summary judgment to the Board of County Commissioners of Orange County in his lawsuit claiming race discrimination in violation of Title VII and the Equal Protection Clause, as well as retaliation in violation of Title VII. For the reasons set forth below, we reverse and remand for a jury trial on his race discrimination and retaliation claims.
I. BACKGROUND
A. Facts
In August 1995, the Orange County Fire and Rescue Division (the “Division” or “Fire and Rescue Division”) began a reorganization of its workforce as a result of a $9 million budget shortfall. A number of positions were eliminated, including all four Training Captain positions, one of which was held by Michael Bass, the white male plaintiff in this case. Like the other three people employed in that position, Bass received a layoff notice in September 1995.
The four Captain-level positions that were eliminated were replaced with three Lieutenant-level Training Instructor positions. Bass applied for one of those three positions. In order to become a Training Instructor, the County specified that a person must have “two years training instructor or closely related work
All qualified persons, including those who had been laid off, were allowed to apply for the three Training Instructor positions. The Fire and Rescue Division used a Performance Based Interview system to select candidates for various positions, including the Training Instructor positions. In that type of interview, candidates are asked pre-selected questions to test their responses to hypothetical situations they may face on the job. The candidates are expected to respond by explaining what they have done in similar situations.
A three-member panel interviewed Bass and twelve other applicants for the three Training Instructor positions. The members of the interview panel were Charles Middleton (black male), Ray Valle (Hispanic male), and Betty Meeks (black female). At the time of the reorganization, Middleton was the Acting
Middleton testified that he selected Meeks and Valle for the interview panel and that, in doing so, he “[t]ried to select people who had little or no involvement with the training function” so that they would have had nothing at stake in the Division’s reorganization. Meeks was employed in the County’s Human Resources Department, and admits that she had no knowledge beyond that of a lay person concerning the position of fire department training instructor. She was also known to be a supporter of affirmative action. Although Valle was employed by the Division, he worked as an information technology specialist and had no training in firefighting. Nothing in the record indicates Valle’s views on affirmative action. Therefore, with the possible exception of Middleton,1 none of
Not only did the panel members lack experience as Training Instructors, none of them was given any training or guidelines (other than general training concerning interview skills) to help them evaluate which candidates were best qualified for the positions. Remarkably, none of them received any job description showing the duties of a Training Instructor. Nor did any of them receive the interview questions until just before the start of the interviews. They were not told to take notes of the interviews, and none of them did.
Mitch Floyd, who was Chief of the Fire and Rescue Division from 1989 until April 1995, stated in his affidavit that the County had adopted the interview process “to create some leeway to allow us to promote minority candidates.” He stated under oath that the interview score was not supposed to be determinative, but was meant to be only one of several factors, including education, experience, and diversity (i.e., race and gender) that were to be considered. The County’s written policy specifically stated that scores were not to be totaled and that the interview was only one component to be considered. Similarly, Tom Preston (not related to one of the candidates, Henry Preston), who developed the interview process for the Training Instructor position, stated that the interview scores were
Henry Preston, the black candidate selected for one of the three Training Instructor positions, did not even meet the minimum qualifications for the position. His resume reflected that he had no experience as a Training Instructor and only two years of experience as a firefighter, even though one of the minimum requirements for a Training Instructor position was “two (2) years training instructor or closely related work experience.” Moreover, Preston misrepresented his qualifications both on his general employment application and on his Training Instructor application. Although Preston represented on those documents that he attended the University of Central Florida for three years as an accounting major and earned 94 credits there, he had never attended that university. Preston testified in his deposition that the County’s Human Resources Department knew he had “exaggerated” his educational credits. Initially he had submitted an application which truthfully showed he lacked the necessary qualifications, but someone from
After being denied a Training Instructor position for which he was indisputably qualified, Bass was given the choice of being demoted to engineer/paramedic or being laid-off. He took the demotion. In October 1995, Bass filed a union grievance challenging his demotion and removal from training duties. On November 17, 1995, while his grievance was pending, Bass complained to the Division Chief James Moody that Henry Preston lacked the necessary qualifications for the Training Instructor position. Bass recorded the events in his diary writing as follows:
Met with Moody. . . . Advised him that Preston, Reed and Kucik did not have an A.S. degree, only high school degree and Reed had a GED and Preston did not qualify for training position. Witnessed by Wertz and Angel Gonzales. Moody advised me that the County will continue to promote based on color and that I should file legal action against the County.
(emphasis added).
In December 1995, on his first day as a Training Instructor, Bass was assigned to clean out a warehouse – work ordinarily done by inmates supplied by the Department of Corrections. Between December 1995 and April 1996, Bass had no routine work assignments, performed custodial and clerical duties, and usually was supervised by personnel who were less senior than he. Middleton, who was in charge of the Training Instructors, and Chief Smith ordered Bass not to record on his work logs the custodial and clerical work he was performing.
In January 1997, Bass was transferred out of the Training Bureau without even being told of the transfer. He learned of the transfer upon returning from vacation and discovering that his paycheck was no longer available in the Training Bureau and that he was no longer on that bureau’s payroll. From January until April of 1997, Bass did not know where he had been transferred or to whom he was to report. In April 1997, he was told to report for work in a non-budgeted position that was not covered by the union contract. After the union complained, Bass was allowed to keep his Training Instructor title, and he was given a
B. Procedural History
Bass filed a ten-count complaint against the County on March 31, 1997. The complaint contained race discrimination claims under
The County moved for summary judgment. With respect to the race discrimination claims, the County proffered as its reason for not giving Bass one of
II. STANDARD OF REVIEW
We review a district court‘s grant of summary judgment de novo, using the same legal standard employed by the district court. See, e.g., Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 (11th Cir. 1993). “Summary judgment is appropriate if the record shows no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. When deciding whether summary judgment is appropriate, all evidence and reasonable factual inferences drawn therefrom are reviewed in a light most favorable to the non-moving party.” Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th Cir. 1998) (citation and quotations omitted).
A. RACE DISCRIMINATION CLAIMS
In his complaint, Bass alleges that the County discriminated against him based on his race (non-Hispanic, white) in violation of
Although the analyses for Bass’ Title VII and Equal Protection claims are closely related, the Supreme Court has recognized that it “do[es] not regard as identical the constraints of Title VII and the Federal Constitution.” Johnson v. Transportation Agency, Santa Clara County, Calif., 480 U.S. 616, 632 (1987). In addressing the interplay between Title VII and § 1983, we recently concluded that Congress intended to make available separate, non-exclusive causes of actions and remedies under these provisions, and held that a plaintiff may bring a claim under one provision without asserting a claim under the other. Thigpen v. Bibb County, Sheriff’s Dep’t, 223 F.3d 1231, 1237-39 (11th Cir. 2000). Because claims under Title VII and the Equal Protection Clause are distinct and the Supreme Court has instructed us that different standards are applicable to them, we will address these claims separately.
1. Title VII Framework
Title VII makes it an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s race, color, religion, sex, or national origin.”
A plaintiff may establish a Title VII claim through the introduction of direct evidence of discrimination or through circumstantial evidence that creates an inference of discrimination. To evaluate Title VII claims based on circumstantial evidence, we use the familiar framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). See Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997). Under this framework, the plaintiff must first establish a prima facie case of discrimination.
“[I]n cases of discrimination proven by direct evidence, it is incorrect to rely on the McDonnell Douglas test because, while circumstantial evidence is used to create an inference of discrimination under McDonnell Douglas, no such inference is required in the case of direct evidence.” Taylor, 175 F.3d at 867 n.2; Evans v. McLain of Georgia, Inc., 131 F.3d 957, 962 (11th Cir. 1997) (“[O]nce a plaintiff produces direct evidence of a discriminatory motive, and the trier of facts accepts this testimony the ultimate issue of discrimination is proved.” (citation and internal quotation omitted)); Trotter v. Board of Trustees of the Univ. of Ala., 91 F.3d 1449, 1453 (11th Cir. 1996) (“When there is direct evidence that discrimination was a motivating factor in the challenged employment decision, the appropriate analysis is different from that employed in a case where only circumstantial evidence is available.“). The defendant’s burden when refuting direct evidence of discrimination is one of persuasion and not merely production. See Hill v. Metropolitan Atlanta Rapid Transit Auth., 841 F.2d 1533, 1539 (11th Cir. 1988). Bass attempts to prove his Title VII claim with both direct and circumstantial evidence of discrimination.
In this case, the County has not disputed that Bass established a prima facie case of discrimination under the McDonnell Douglas framework. Therefore, for purposes of summary judgment, we assume that Bass is in a protected class, was qualified to become a Training Instructor, applied for the position, was rejected despite his qualifications and was rejected in favor of another less qualified employee of a different race. The dispute in this case concerns whether Bass has also presented direct evidence of discrimination, and, if not, whether he has put forth sufficient circumstantial evidence that the County’s proffered non-discriminatory reason for its actions (i.e., Bass’ poor performance during his interview) was pretextual. We now turn to these disputed issues.
First, Bass contends that a statement made to him by Chief Moody – the chief of the Fire and Rescue Division at the time of the decision not to offer Bass one of the Training Instructor positions during the 1995 reorganization – constitutes direct evidence of discrimination. Bass testified that he confronted Chief Moody about the promotion of employees who lacked the necessary qualifications for the Training Instructor position, and Moody responded that the County would continue to promote based on color. We agree with the district court that this statement does not rise to the level of direct evidence of discrimination by the Division.
Direct evidence of discrimination is “evidence which, if believed, would prove the existence of a fact [in issue] without inference or presumption.” Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (citation and emphasis omitted). “[O]nly the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of [race] . . . constitute direct evidence of discrimination.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (citations omitted). “For statements of discriminatory intent to constitute direct evidence of discrimination, they must be made by a person involved in the challenged decision.” Trotter v. Bd. of Trustees, 91 F.3d 1449, 1453-54 (11th Cir. 1996). “[R]emarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are not direct evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
Bass argues that Chief Moody’s statement – made close in time to the decision to offer the Training Instructor positions to other candidates and against the backdrop of the County’s affirmative action plans – constitutes direct evidence of discrimination. However, Bass presented no evidence showing that Moody was a decisionmaker or involved in the selection of the Training Instructors. Although Bass attaches significance to the fact that Moody was the chief at the time of the decision, the fact remains that Moody was not a member of the interview panel and was not involved in the selection process. Only statements by the persons involved in the decisionmaking process, here the interview panel members, could constitute direct evidence of discrimination. Therefore, although Moody’s statements may provide significant circumstantial support for Bass’ claims, they do not constitute direct evidence of discrimination. See Standard, 161 F.3d at 1330.
3. Circumstantial Evidence Supporting the Title VII Claim
Even though Chief Moody’s statements are not direct evidence of discrimination, we believe that Bass has put forth ample circumstantial evidence of
It is undisputed that Bass established a prima facie case of race discrimination under the McDonnell Douglas framework. Consequently, a presumption of discrimination arose and the burden shifted to the County to proffer a legitimate, nondiscriminatory reason for not hiring Bass. See Combs, 106 F.3d at 1527-28. To meet that burden of production, the County proffered one reason, a subjective one, for not hiring Bass for a Training Instructor position. The County claimed that Bass did not score as well on his interview (purportedly the only selection criterion used) as the other candidates selected for the position.
This Court recently reaffirmed that a subjective reason for an employer’s action – such as poor interview performance – can be as legitimate as any other reason. See Chapman v. AI Transport, 229 F.3d 1012, 1033 (11th Cir. 2000) (en banc). An interview is frequently necessary to assess qualities that are particularly
Although the proffered reason, Bass’ poor interview, was subjective, the County offered explanations of why the interview panel, the decisionmakers, arrived at that subjective conclusion. Valle stated that Bass “did not interview anywhere near as well as [he] expected him to” and observed that Bass “didn‘t answer the questions that [the interviewers] were asking.” Middleton opined that Bass “could have presented himself better” and that Bass gave “answers irrespective of the questions.” Bass’ testimony does not contradict the panel members’ assessment of his interview performance. Bass stated that he “had the impression that [the interview] was just some kind of a go-through-the-motion
Because the interviewers explained the grounds for their subjective evaluation with reasonable clarity and specificity, the County met its burden of producing a legitimate, nondiscriminatory reason for not hiring Bass as a Training Instructor. After the County articulated this reason, the burden shifted back to Bass to present sufficient evidence to create a genuine issue of fact that the County‘s non-discriminatory reason was pretext for discrimination. In response, Bass argued that: (1) the County encouraged employees to hire and promote based on race and established a system for hiring and promotion which created leeway so that minorities could advance more easily; (2) Chief Moody said that the County was going to continue to promote on the basis of color; (3) Preston, the black candidate selected as a Training Instructor, did not meet the minimal qualifications for the position; (4) the Fire and Rescue Division deviated from its established procedures and the interview process was otherwise tainted; and last, but not least,
a. Pressure to Hire and Promote Minorities
With respect to Bass’ first pretext argument, he introduced evidence of county officials’ emphasis on hiring and promoting based upon race. Montes de Oca, Chief of the Fire and Rescue Division from 1990 though 1997, testified that he was pressured to hire more minorities and that he had received periodic reports showing the number of women and blacks in all positions. Mitch Floyd, Chief of the Division from 1989 until April 1, 1995, testified that managers’ success or failure in meeting the County‘s affirmative action goals “could adversely affect their future as managers,” and that the County Administrator, County Chairwoman, and the County Commission regularly communicated this to the Division managers. From that evidence a jury could reasonably find the County had a policy of racial discrimination against non-Hispanic whites.
Bass also presented evidence that the interview system, the same system that was used in hiring the Training Instructors, was used to carry out the affirmative action plans’ goals of emphasizing race in hiring decisions, i.e., the policy of racial discrimination against non-Hispanic whites. Floyd, who developed the interview system for the Training Instructor and Group Supervisor positions and who was a
This evidence of pressure in the County to hire minorities over non-minorities, combined with the existence of an interview system adopted in order to create leeway to promote minorities, constitutes circumstantial evidence of discriminatory intent behind the Division‘s hiring decisions.
b. Chief Moody‘s Statement Concerning Race-Based Promotion
As to his second pretext argument, Bass testified that when he confronted Chief Moody about Henry Preston‘s lacking the requisite qualifications, Moody told him that the County would continue to promote on the basis of color. As we have already said, because Bass did not introduce sufficient evidence establishing that Moody was a decisionmaker, his statement cannot constitute direct evidence of discrimination. Nonetheless, this statement does constitute circumstantial evidence of discrimination because it raises the inference that the Training Instructor interview panel members improperly based their decisions on race, rather than performance during the interview or other legitimate criteria.
c. Promotion of Less-Qualified Candidate
Hiring a less qualified person can support an inference of discriminatory motivation. See Alexander v. Fulton County, 207 F.3d 1303, 1340 (11th Cir. 2000) (“both the Supreme Court and this court have observed that evidence showing an employer hired a less qualified applicant over the plaintiff may be probative of whether the employer‘s proffered reason for not promoting plaintiff was pretextual“); Walker v. Mortham, 158 F.3d 1177, 1190 (11th Cir. 1998) (“The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be
d. Deviation from Standard Procedure
In support of his fourth pretext argument, Bass presented evidence indicating that the Fire and Rescue Division departed from its standard procedure when it interviewed the applicants for the Training Instructor positions. Tom Preston, who developed the interview process for the Training Instructor and Group Supervisor positions, testified that interview scores were not intended to be determinative, and the interview policy specifically stated that scores were not to be totaled and that the interview was only one component to be considered. The policy, which was identified in deposition by Valle, included the following instructions:
NOTE: Do not total scores. This process is intended to develop a profile, highlighting a candidate‘s areas of strength and weakness. This process was designed as one component to be used in conjunction with other criteria to determine a final selection.
The Division violated these written procedures by totaling the scores and relying exclusively upon the interviews. An employer‘s violation of its own normal hiring procedure may be evidence of pretext. See Hill v. Seaboard Coast Line R.R., 885 F.2d 804, 811 (11th Cir. 1989). We believe that this is especially true where, as here, an employer disregards all but one of the factors and qualifications generally taken into consideration and relies solely on a factor which was designed to create “leeway” for the promotion of people of a certain race.
Furthermore, other facts surrounding the interview process used in selecting the Training Instructors indicate that the process was suspect. For example, the interviewers, who were the sole decisionmakers, received no training or guidelines to help them evaluate which candidates were best qualified for the Training Instructor positions. The interviewers were supposed to evaluate the applicants’ responses to certain situations to determine which candidates would make the best Training Instructors, yet the interviewers were never even informed of what duties a Training Instructor had. Although Middleton testified that he had at some time received training in the interview process itself, he said he received no training with respect to the specific qualifications to look for when interviewing the Training Instructor applicants. Valle, another member of the Training Instructor interview panel, testified that he knew very little about firefighter training at the time he served on the panel. Meeks, the final member of the Training Instructor interview panel, testified that she had no knowledge of firefighting or training when she served on the panel. Furthermore, despite the fact that the panel
We recognize that “a defendant may terminate an employee for a good or bad reason without violating federal law” and “[w]e are not in the business of adjudging whether employment decisions are prudent or fair.” Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999). We are, however, in the business of adjudging whether an employer violated Title VII by improperly making employment decisions on account of race. In this case, the selection process employed by the Division, when viewed in light of the other evidence of the County‘s race-conscious hiring and promotion efforts, constituted circumstantial evidence that the Division was acting with race in mind while selecting Training Instructors.
e. The County‘s Affirmative Action Plans
The last category of evidence that the proffered interview reason was pretext is the County‘s affirmative action plans, which were in effect at the time that the Fire and Rescue Division refused Bass a Training Instructor position. As we will explain in the next section, we think the County‘s affirmative action plans are
f. Conclusion
We conclude that the evidence offered by Bass was more than sufficient to raise a genuine issue of material fact about whether the County‘s articulated nondiscriminatory reason for not hiring him was pretextual. The county officials’ emphasis on promoting employees based upon race, the statement by Chief Moody concerning race-conscious efforts, the Division‘s deviation from procedures, the hiring of an unqualified candidate instead of Bass, and the existence of formal affirmative action plans provide more than enough evidence for a reasonable jury to conclude that the County‘s proffered non-discriminatory explanation for its actions was pretextual. The district court erred when it granted summary judgment in favor of the County on Bass’ race discrimination claims under
4. Direct Evidence Supporting the Title VII Claim
In this case, the County seeks no cover from its affirmative action plans (and, in fact, seems to distance itself from them), and it is Bass who relies on the County‘s affirmative action plans in support of his claims. Of course, a defendant who in fact acts pursuant to an affirmative action plan cannot avoid judicial review of the plan by disavowing reliance upon it, where there is evidence that the plan played a part in the employment decision.
The first step in ascertaining whether the County can be held liable for discrimination as a result of its affirmative action plans is a determination of
However, the existence of an affirmative action plan, when combined with evidence that the plan was followed in an employment decision, is sufficient to constitute direct evidence of discrimination. See McGarry v. Board of County Comm‘rs of Pitkin, 175 F.3d 1193, 1200 (10th Cir. 1999) (holding that county personnel director‘s statements that those hired were not better qualified than white applicant and that those hirings were minority affirmative action hirings, made against the backdrop of the county‘s policy statements regarding hiring and affirmative action, constituted direct evidence of discrimination). Furthermore, even when a defendant denies having acted pursuant to its affirmative action plan, if there is evidence that it may have done so, a jury must decide whether the defendant in fact acted pursuant to its stated plan. See Messer v. Meno, 130 F.3d 130, 139 (5th Cir. 1997) (finding that jury could conclude that defendant acted pursuant to affirmative action plan in light of circumstantial evidence even though defendant denied having taken plan into account). When a jury finds that a government employer acted pursuant to an affirmative action plan, then the employer should be held liable for discrimination unless the plan satisfies the demanding scrutiny required by Title VII and the Equal Protection Clause. This is because, regardless of good intentions, a government employer commits unlawful discrimination when it takes race into account in an employment decision and acts pursuant to an invalid affirmative action plan.5
a. Meaning of “Direct Evidence” in Context of Discrimination Claim
For the reasons that follow, we hold that where there is an affirmative action plan in effect that relates to the employer‘s actions which are the subject of a discrimination claim, the affirmative action plan constitutes direct evidence of discrimination if there is sufficient circumstantial evidence to permit a jury
Because we believe that the phrase has been a source of confusion, we begin by discussing the meaning of “direct evidence” in the context of a Title VII race discrimination claim. First, we note that the phrase “direct evidence,” when used in the context of discrimination claims, does not refer to whether evidence is direct or circumstantial in the ordinary evidentiary sense in which we normally think of those terms. Instead, “direct evidence” refers to a type of evidence which, if true, would require no inferential leap in order for a court to find discrimination. We do not believe that the status of evidence as “direct” in this context, however, changes simply because a defendant contests the validity of the evidence, thereby requiring the plaintiff to offer proof related to the disputed evidence through other means. Therefore, an affirmative action plan may constitute direct evidence, even when a defendant denies having acted pursuant to its stated plan.
This view of direct evidence is supported by this Court‘s case law addressing other types of direct evidence of discrimination. We have held that “[w]here the non-movant presents direct evidence that, if believed by the jury, would be sufficient to win at trial, summary judgment is not appropriate even where the movant presents conflicting evidence.” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (emphasis added). Furthermore, “[w]e have defined direct evidence as ‘evidence, which if believed, proves the existence of fact in issue without inference or presumption.‘” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (quoting Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n.6 (11th Cir. 1987)) (emphasis added). Therefore, “direct evidence” of discrimination may be disputed, and it may well be that a plaintiff will have to establish the “direct evidence” by introducing circumstantial evidence.
For example, in Merritt, we considered whether an alleged statement by an employer constituted direct evidence in support of the plaintiff‘s retaliation claim. Merritt, 120 F.3d at 1189-91. In that case, the employer denied that a decisionmaker had made a statement which, if true, clearly showed a retaliatory motive behind the termination of the plaintiff‘s employment. Id. Nonetheless, we concluded that because the plaintiff could prove -- whether by circumstantial evidence or any other means -- that the decisionmaker did make the statement, there was direct evidence of retaliation precluding summary judgment. Id. Given this approach, we hold, for the following reasons, that Bass has put forth direct evidence of discrimination in the form of the County‘s affirmative action plans even though there is conflicting evidence concerning whether the Division acted pursuant to those plans.
b. The County‘s Affirmative Action Plans
Bass also presented evidence that in July 1993, the County adopted another plan, the 1993 Diversification Plan, “to ensure that Orange County‘s workplace is devoid of discrimination and is generally reflective of the County‘s diverse population.” The 1993 Diversification Plan required county departments and divisions to suspend the hiring process when no qualified minority or female applicant was available and “provide written justification to the EEO/Professional Standards Department stating job related reasons why diversity cannot be obtained via the particular hiring process.” The 1993 Diversification Plan also set percentage hiring goals in positions that were found to have few minorities or
Although the County clearly had affirmative action plans in place during the 1995 reorganization, it argues, based on testimony from the interview panel members, that the decision not to offer the Training Instructor position to Bass was unrelated to its affirmative action plans. To support this position, the County points to testimony from the panel members indicating that the Training Instructors were selected solely on the basis of their interview scores and that no other factors, such as race, were taken into consideration. Valle specifically testified that there was no discussion of race at any time. Furthermore, the County notes that the three Training Instructors selected represented the top three interview scores of the applicants who were still in consideration.
Although the parties dispute whether the Fire and Rescue Division was acting pursuant to the County‘s affirmative action plans, we must bear in mind that
There is substantial circumstantial evidence in the record upon which a jury reasonably could conclude that the Division acted pursuant to the County‘s affirmative action plans. We have outlined above various types of circumstantial evidence which, independent of the County‘s affirmative action plans, permit Bass’ Title VII claim to go to a jury. That same evidence would permit a reasonable jury to conclude that, despite its denials, the Division was acting pursuant to the County‘s affirmative action plans when it decided to deny Bass a Training Instructor position during the 1995 reorganization. While the mere existence of an affirmative action plan does not constitute direct evidence of discrimination, the existence of a plan combined with other circumstances of the type present in this case make available to a jury the reasonable inference that the employer was acting pursuant to the plan despite statements to the contrary from the decisionmakers involved. Therefore, given the admitted fact that the County had affirmative action
c. The Validity of the County‘s Affirmative Action Plans
Ordinarily, if a defendant were found to have acted pursuant to an affirmative action plan, the next question would be whether the plan was valid under Title VII. The validity of the plan would then be determined under the following test:
We must first determine whether the [government employer‘s] consideration of the race of promotional candidates was justified by a manifest racial imbalance that reflected under-representation of [the affirmative action plan‘s beneficiaries] in traditionally segregated job categories. . . . If such a justification was present when the plan was developed, we must then determine whether the plan itself provides a proper remedy for that imbalance. A remedy is proper if the plan does not unnecessarily trammel the rights of non-black employees or create an absolute bar to their advancement.
In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d 1525, 1537 (11th Cir. 1994) (citing Johnson, 480 U.S. at 632, 637, 107 S. Ct. at 1452, 1455).
As we have noted above, however, the County has consistently denied that the Fire and Rescue Division acted pursuant to its affirmative action plans with respect to Bass. The jury may ultimately choose to believe that this is true. In the
5. Bass’ Equal Protection Claim
Next, we consider whether Bass’
For the same reasons that the County should be held liable under Title VII if a jury finds that the Division acted pursuant to the County‘s affirmative action plans, we hold that it must also be held liable under
B. RETALIATION CLAIMS
In addition to prohibiting employers from discriminating on the basis of race, Title VII makes it unlawful:
for an employer to discriminate against any of his employees or applicants for employment, . . . because he has opposed any practice made an unlawful employment practice by this subchapter [of Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter [of Title VII].
We will first address Bass’ prima facie case. Bass contends that he engaged in a protected activity by filing a union grievance in October 1995 in which he complained of racial discrimination in the hiring of the Training Instructors and by filing a charge of discrimination with the EEOC in December 1995. We need not decide whether the filing of the union grievance was a protected activity for anti-retaliation purposes, because the filing of the EEOC complaint clearly was, and the bulk of the allegedly retaliatory actions occurred after the filing of the EEOC complaint. See Berman v. Orkin Exterminating Co., 160 F.3d 697, 702 (11th Cir. 1998) (holding that filing of EEOC complaint is protected activity). Bass thus satisfied the first prong of the prima facie case of retaliation.
“An adverse employment action is an ultimate employment decision, such as discharge or failure to hire, or other conduct that alters the employee‘s compensation, terms, conditions, or privileges of employment, deprives him or her
The last two listed actions of which Bass complains – the order not to record custodial work in his work log and the destruction of various materials – are not adverse employment actions. Those actions were not objectively “serious and tangible enough” to alter Bass’ “compensation, terms, conditions, or privileges of employment, deprive[] . . . him of employment opportunities or adversely affect . .
Having explained why the last two of the seven actions about which Bass complains were not adverse employment actions, we turn now to the remaining five. It is undisputed that Bass was not given the same duties as the other Training Instructors. Bass was given no routine work assignments and was forced to perform custodial and clerical duties under the supervision of less senior personnel. The Division also denied him the opportunity to earn overtime pay, on-call pay, riding-out-of-classification pay, and adjunct teaching pay, which were available to other Training Instructors. Prior to filing his EEOC complaint alleging racial discrimination, Bass had been permitted to teach adjunct courses and receive pay from agencies other than the Division. After filing that complaint, he was not allowed to do so. In addition, Bass was ordered to take tests to maintain his paramedic pay while none of the other Training Instructors were required to do so.
That brings us to the question of whether there is enough evidence to create a genuine issue of material fact as to the causal connection between Bass’ participation in a protected activity and the adverse employment actions. “To establish a causal connection, a plaintiff must show that the decisionmakers were aware of the protected conduct, and that the protected activity and the adverse
Bass filed his EEOC charge on December 19, 1995. Soon after Bass filed his EEOC complaint, he began to suffer adverse employment actions. The close temporal proximity between filing of the EEOC complaint and the adverse actions is sufficient in this case to satisfy the third prong of the prima facie case of retaliation. See generally Gupta, 212 F.3d at 590. Thus, Bass established a prima facie case of discrimination.
Bass argues that the County‘s articulated reason is insufficient because it addresses only the failure to assign Bass Training Instructor duties and not the other alleged retaliatory actions such as being placed in a non-union job and not being allowed overtime pay. Bass further argues that he has shown that the County‘s one-instructor-per-district defense is pretext because the Fire and Rescue Division failed to place Bass in the Training Instructor position that became vacant in the spring of 1998 and was still vacant as of November 1998. Middleton confirmed the existence of the vacancy.
We agree that the County failed to negate the existence of a genuine issue of material fact concerning a causal connection between all of the adverse actions and Bass’ filing of the EEOC complaint. The County only addressed one part of the retaliation: the failure to assign Training Instructor duties to Bass. While the “no
With respect to Bass’
We hold that the district court erred in granting summary judgment to the County on Bass’ Title VII,
REVERSED and REMANDED.
Notes
| Name | Previously Supervisor | Score | Selected | Race |
| Gina McCollum | Yes | 16 | X | W |
| Dan Kucik | No | 15 | W | |
| Donna Reed | Yes | 13 | X | W |
| Henry Preston | No | 13 | X | B |
| David Cohen | No | 12 | W | |
| Karen Barber | No | 12 | W | |
| Henry Butts | No | 11 | W | |
| John Russell | Yes | 10 | B | |
| Michael Bass | Yes | 8 | W | |
| Victoria Quick | No | 7 | W | |
| Stephen Manning | No | 5 | W | |
| Thomas Wheeler | No | 4 | W | |
| Terry Boston | No | 4 | W |