PAUL OSSMANN v. MEREDITH CORPORATION
No. 22-11462
United States Court of Appeals For the Eleventh Circuit
September 8, 2023
Aрpeal from the United States District Court for the Northern District of Georgia
D.C. Docket No. 1:19-cv-03200-SDG
GRANT, Circuit Judge:
Paul Ossmann was the Chief Meteorologist at CBS46, an Atlanta news station. But during his tenure, female colleagues raised repeated complaints that he engaged in inappropriate conduct and sexual harassment—including “compliments” about appearance, sexually charged language, requests for nude photos, and more. After several meetings with Ossmann did not stop the behavior, it became clear to local managers that he could no longer work at CBS46.
The managers needed authorization from the station‘s parent company to terminate his employment, so the local Human Resources Director moved the Ossmann file up the chain. She sent a termination request form to the corporate office explaining that Ossmann had violated the company‘s sexual harassment policies; the form also included Ossmann‘s race, the demographics of his colleagues, and identification of potential comparator employees who had engaged in similar conduct.
Ossmann, who is white, alleges that he was terminated because of his race in violation of
We cannot agree. The presence of race data in the local station manager‘s termination request is not enough for any jury to reasonably conclude that Ossmann‘s sexual harassment conduct, much of which he admitted, was pretext for the true reason for Ossmann‘s firing—his race. We affirm the grant of summary judgment.
I.
Meredith Corporation hired Paul Ossmann in 2012 as a temporary weekend meteorologist for CBS46. Ossmann became the station‘s Chief Meteorologist in mid-2017 and remained in that position until he was terminated less than two years later, in April 2019.
During that time, Ossmann‘s female co-workers repeatedly complained of his inappropriate behavior and sexual harassment. In April 2017—a few months before his promotion to Chief Meteorologist—a female meteorologist reported that Ossmann had repeatedly told her that she “cockblocked” him over a dispute about vacation scheduling and that he had a dream about them
When Ossmann met with Human Resources Director Laurel Berenguer and his then-supervisor Frank Volpicella to discuss the complaint, he admitted to using the term “cockblocked,” but he denied making the other comments. Volpicella issued Ossmann a written warning letter for exercising “poor judgment,” which Ossmann signed to acknowledge receipt. In that letter, Ossmann was “advised that further incidents may result in additional disciplinary action, up to and including termination” and was reminded of Meredith‘s “zero tolerance for behavior that could contribute to creating a hostile work environment.”1
A little more than six months later, a female news producer also complained. She told HR Director Berenguer that Ossmann sent her “highly inappropriate” messages on Facebook. In those messages, Ossmann told her that he masturbated while thinking about her, that he wanted to have sex with her, and that he wanted
Roughly a year and a half later, yet another female employee raised yet another complaint. She reported that after the news aired Ossmann pulled her aside and said:
Not to be like uncle Joe [Biden], I wanted to let you know I look at you all the time. You‘re so pretty, put together. I see you walk around and you carry yourself very well. You‘re very attractive and that‘s attractive to me. You don‘t flaunt it. Don‘t put it out there. You‘re not all a selfie kind of person. You always look nice.
In the moment, she thanked Ossmann for the compliment and told him that she liked working with him. But afterward she reported
HR Dirеctor Berenguer and Supervisor Doerr again met with Ossmann to discuss the allegations. According to Berenguer‘s contemporaneous notes, Ossmann admitted to making the comments, but did not “mean anything by his comments.” In his view, he was just paying his coworker a compliment because he thought that they “had that kind of relationship.” (Ossmann now denies that he admitted to making the comments.) Doerr reminded Ossmann that this was not the first time he had behaved inappropriately with female colleagues. Doerr also suspended him until Lyle Banks, the station‘s General Manger, decided on how to proceed.
Doerr and Banks reviewed the allegations and decided that based on Ossmann‘s “pattern of violating Meredith‘s policy against sexual harassment,” they “had no choice but to terminate” him. They believed that termination was necessary “to maintain a safe workplace free from sexual harassment.”
Banks directed Berenguer to “put together a recommendation to submit to corporate for approval to proceed with termination.” Berenguer‘s standard practice—based on training she received from Meredith‘s corporate human resources
The EEO Analysis states that the station requested to terminate Ossmann because he violated the company‘s sexual harassment and hostile work environment policies. It described the “cockblocked” and inappropriate messaging incidents, as well as an earlier incident that Ossmann claims was too distant to justify his firing. The form did not describe the final incident because the station moved forward with termination immediately rather than adding it to his file. Banks and Doerr are listed as the decisionmakers. The form includes Ossmann‘s race, sex, and age—which Ossmann says tainted the decisionmaking process—and asks whether “other employees [have] been in a similar circumstance and, if so, how was that handled and resolved?” Berenguer listed two employees terminated for violating the company‘s sexual harassment policies and another who received a written warning for “conduct unbecoming a manager.” Below that question, the form includes a table titled “Comparables (if applicable).” That table requests the same basic information provided for Ossmann—race, sex, age, job title, salary, and supervisor, among other things.
Berenguer emailed the station‘s request to Kandis Bock, a Vice President of Human Resources at Meredith. The record is limited on what happened next. The email to Bock is not in the record; nor was she deposed. That said, we know that Bock provided the local station managers with authorization to terminate Ossmann. So four days after suspending Ossmann, Doerr notified him that he was being terminated. Three weeks later, the station replaced Ossmann with Jennifer Valdez, a Hispanic meteorologist. Valdez had been with the station longer than Ossmann, and he admits that she was qualified.
Ossmann‘s suit alleges race discrimination in violation of
II.
We review the grant of summary judgment de novo. McAlpin v. Sneads, 61 F.4th 916, 927 (11th Cir. 2023). “A grant of summary judgment will be affirmed if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) (quoting
III.
A.
Ossmann contends that Meredith terminated him because of his race, in violation of
The McDonnell Douglas burden-shifting framework generally applies to discrimination claims based on circumstantial evidence. Id. That framework first requires Ossmann to establish a prima facie case of intentional discrimination. Lewis v. City of Union City, 918 F.3d 1213, 1220-21 (11th Cir. 2019) (en banc). If he does so, he is entitled to a rebuttable presumption of intentional discrimination. Id. at 1222. To rebut that presumption, Meredith needs to produce evidence of a valid, nondiscriminatory reason for terminating him. Id. at 1221. If it meets that burden, the presumption of intentional discrimination drops out of the case and Ossmann must demonstrate that Meredith‘s “proffered reason was merely a pretext for unlawful discrimination, an obligation that ‘merges with the plaintiff‘s ultimate burden of persuading the factfinder that [he] has been the victim of intentional discrimination.‘” Id. (quoting Texas Dep‘t of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981)) (alterations adopted).4
Unlike a Title VII discrimination claim—where a lesser “motivating factor” standard sometimes applies—a
B.
“When evaluating a charge of employment discrimination” we “focus on the actual knowledge and actions of the decision-maker.” Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1274 (11th Cir. 2002). Ossmann urges that Bock—the corporate HR Vice President who approved his termination—was the final decisionmaker responsible for terminating him. Meredith disagrees, contending that Banks and Doerr—the local station managers who investigated the allegations and decided that they “had no choice but to terminate“—were the final decisionmakers. It may well be that the better view of this evidence is that the local station managers were the final decisionmakers. But because we must make all reasonable inferences in Ossmann‘s favor as the non-moving party, we analyze his employment discrimination claim assuming that Bock was the final decisionmaker.
Ossmann offers several arguments. He starts by contending that the EEO Analysis is direct evidence proving Bock‘s intentional discrimination. Failing that, he argues that Meredith has failed to satisfy its burden at step two of the McDonnell Douglas framework of producing evidence of its valid, nondiscriminatory reason, and that, in any event, he has met his burden at step three of demonstrating pretext. Alternatively, he says he has presented a convincing mosaic of circumstantial evidence proving intentional discrimination and that he has shown a viable “cat‘s paw” theory—under which Bock merely rubberstamped the racial animus of the station managers. We address each of his arguments in turn, but note at the outset that none succeed.5
C.
Ossmann‘s first set of arguments center on the EEO Analysis form. His opening volley is that the form is direct evidence of illegal discrimination. “Direct evidence of discrimination is evidence that reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee, and, if believed, proves the existence of a fact without inference or presumption.” Fernandez v. Trees, Inc., 961 F.3d 1148, 1156 (11th Cir. 2020) (quotations omitted) (emphasis added). This is a
The EEO Analysis does not meet—or even approach—this standard. The form listed several categories of information in a neutral fashion, including Ossmann‘s race, as well as the race of the other employees. For this document to prove that Ossmann was terminated because of his race, we would need to infer that it treated his race as a negative factor and that had his race been different Bock would not have approved his termination. Setting aside whether these inferences are even plausible, they are plainly inferences. And where inferences are required, evidence is not direct. The EEO Analysis is circumstantial rather than direct evidence, so we proceed to Ossmann‘s remaining arguments.
Ossmann next contends that Meredith did not rebut the presumption of intentional discrimination created by his prima facie showing under McDonnell Douglas. To do so, Meredith needed to produce evidence showing that Bock had a legitimate, nondiscriminatory reason for approving Ossmann‘s termination. Burdine, 450 U.S. at 254. This justification must be sufficient to “allow the trier of fact rationally to conclude that the employment
As the district court recognized, the EEO Analysis—which says that the station terminated Ossmann for sexual harassment policy violations—is “evidence of what Bock received and reviewed with respect to Ossmann‘s termination.” And the record includes Berenguer‘s meeting notes describing underlying incidents of harassment, warning letters, and deposition testimony—all supporting Meredith‘s contention that it fired Ossmann because of repeated incidents of sexual harassment and inappropriate comments. This evidence is sufficient to give Ossmann a fair opportunity to demonstrate pretext and tracks rebuttal evidence this court has accepted before. See Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 770 (11th Cir. 2005); Bogle v. Orange Cnty. Bd. of Cnty. Comm‘rs, 162 F.3d 653, 657-58 (11th Cir. 1998). It plainly satisfies step two of the McDonnell Douglas evidentiary framework.
We disagree with Ossmann‘s argument that our decision in IMPACT v. Firestone compels a different conclusion. 893 F.2d 1189 (11th Cir. 1990). We have described that case as establishing that the employer “must present specific evidence regarding the decision-maker‘s actual motivations.” Walker v. Mortham, 158 F.3d 1177, 1181 n.8 (11th Cir. 1998). Here, the only information sent to Bock was the EEO Analysis, and even Ossmann argues that she made her decision based on the contents of that form. And as we explained in Vessels, so long as those “primarily responsible for making the decision[]“—here, the local station managers—
Finally, Ossmann says that the form means he has provided sufficient evidence to show pretext at the third stage of McDonnell Douglas. At this point, Ossmann needs to show that a reasonable jury could disbelieve Meredith‘s nondiscriminatory reason—repeated incidents of sexual harassment—and instead conclude that, but for his race, Bock would not have approved the termination. Brooks v. Cnty. Comm‘n, 446 F.3d 1160, 1163 (11th Cir. 2006). A court merely uses the pretext inquiry to guide its determination of the ultimate issue at summary judgment.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1346 n.86 (11th Cir. 2011). The pretext inquiry “merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination,” so we ask whether there is a genuine dispute of material fact as to whether Meredith intentionally discriminated against Ossmann. Burdine, 450 U.S. at 256.
Unlike most discrimination plaintiffs, Ossmann does not offer any evidence that employees of other races were not fired for repeated instances of sexual harassment. Ossmann‘s only evidence that Bock intentionally discriminated against him, aside from the fact that he was replacеd by a non-white woman, is the inclusion of race on the EEO Analysis form.6 This form does not remotely approach the amount of evidence necessary for a reasonable jury to conclude that Ossmann was fired because of his race.
To start, the EEO Analysis form says on its face that Ossmann was terminated for multiple sexual harassment policy violations. In fact, it specifically describes three incidents of harassment. It also includes race data for the weather team and overall station statistics. Because of this, Ossmann contends that his race was “a negative factor” in the decision to terminate him. For its part, the dissent adds that the form required Bock to consider “racial balance” when making her decision and contends that a jury could infer that “Bock would have recommended that the lone black or Hispanic member be suspended rather than terminated to avoid racial imbalance.” Dissent at 4, 14, 17, 19, 23-24. But “inferences in favor of a plaintiff can be based only on evidence—not on speculation.” Martin v. Fin. Asset Mgmt. Sys., Inc., 959 F.3d 1048, 1058 (11th Cir. 2020); see also Smith, 644 F.3d at 1328 n.25.
Speculation is all we have here. We agree that we must infer, at this stage of the case, that Bock considered the data on the last attachment to the form. But considered it how? The evidence does not provide an answer.
The language of the form does not tell Bock what she should do with the racial data, and it does not require her to engage in racial balancing—it is completely neutral.7 As was the only
No reasonable jury could conclude from the bare fact that this document includes data on the race of all weather employees at the station that Ossmann was fired because of his race. It is just
Our decision in Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011) demonstrates the point. There, the company had fired seven white employees who forwarded a racially offensive email but had not fired black employees for similar conduct. Id. at 1332, 1336. Reversing the district court‘s grant of summary judgement in favor of the company, we pointed to three pieces of evidence from which a reasonable jury could infer intentional discrimination. First, there was evidence that the same decisionmaker had discriminated against other white employees in similar (but distinct) investigations into the distribution of racist emails occurring around the same time. Id. at 1341-44. Second, there was evidence that because of a tragic incident at a Lockheed-Martin facility in Texas—a racially based shooting that had received a massive amount of media attention—Lockheed-Martin was under intense pressure to “emphatically prove” that the company was committed to curbing racism against black employees by
Third, there was evidenсe that a disciplinary review committee used a decision matrix that detailed each investigated employee‘s conduct and included a column listing each employee‘s race. Id. at 1336. After reviewing the first two categories of evidence, we said that this matrix “strengthen[ed] the reasonableness of the inference” that the decisionmaker “sought to fire all whites who distributed racist emails.” Id. at 1345-46. In light of the other evidence of racial discrimination, “Lockheed‘s injection of race into its decision-making process yield[ed] an unavoidable inference that the employee‘s race impacted the discipline determination.” Id. at 1346. And bolstering that inference, we pointed out, race was not tracked in an investigation into two black employees’ racist emails, which a jury could infer was “because it was already known that both employees to be disciplined... were black and, therefore, would not be terminated for their conduct.” Id. at 1346 n.87. Moreover, the company admitted that it had “no legitimate business purpose” in monitoring the employees’ race. Id. at 1346 n.85 (quotation omitted and alteration adopted).
The dissent accuses us of avoiding the “unavoidable” inference that we recognized in Lockheed-Martin. Dissent at 4. But the reason that inference was unavoidable in Lockheed-Martin was the dramatic amount of additional evidence in that case. Here, we have none.
The fact that Ossmann was replaced by a non-white employee is not enough. Being replaced by someone outside one‘s protected class can help to establish the prima facie case of discrimination for burden-shifting purposes. Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). But it is not enough to carry the day on the substantive question of discrimination. See Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1236 (11th Cir. 2004). Indeed, there is no record evidence suggesting that Bock was even involved in selecting Ossmann‘s replacement—which would be necessary to infer that she approved his termination so that she could replace him with someone who is not white. Because Ossmann cannot show that a reasonable jury could conclude that
D.
Notwithstanding the complete lack of evidence of intentional discrimination in this case, the dissent relies on two cases where the defendants affirmatively sought to use race in their decisionmaking. Neither has any application here. The first is Ricci v. DeStefano, where a local fire department sought to intentionally discriminate against white firefighters to avoid disparate impact suits from non-white firefighters. 557 U.S. 557, 561–63 (2009). The Supreme Court held that the fire department needed a “strong basis in evidence to believe it will be subject to disparate-impact liability” before it could engage in intentional discrimination to avoid it. Id. at 585. Meredith has not argued that it engaged in intentional discrimination, so Ricci is not relevant.
The second case is the recent decision rejecting the race-based admissions systems of Harvard and the University of North Carolina, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 143 S. Ct. 2141 (2023), which the dissenting opinion rightly concedes is not binding on these unrelated facts. Dissent at 7-8. There, both colleges considered race at every stage of their admissions programs, openly admitted to dоing so, and insisted that they be permitted to continue. Id. at 2154–2156, 2166. This case could not be more different. It is a run-of-the-mill
In sum, Ossmann lacks direct evidence of discrimination, he lacks evidence that Meredith treated his race as a factor favoring his termination, and he lacks evidence that Meredith treated similarly situated non-white employees more favorably. On the other hand, Meredith has produced extensive evidence of Ossmann‘s sexual harassment, which is a valid, nondiscriminatory reason for his termination. On this record, no reasonable jury could infer that Meredith‘s justification was pretext for race discrimination.
E.
Ossmann says that even setting aside the McDonnell Douglas steps, he can prove his claim by presenting “a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.” Smith, 644 F.3d at 1328 (quotation and footnote omitted). He is correct that the convincing mosaic metaphor offers an alternative to plaintiffs
And in any event, the mosaic theory‘s relevance is highest for employees who cannot make out a prima facie case of discrimination. These employees may, for example, lack adequate comparators but otherwise have circumstantial evidence of discrimination. See Smith, 644 F.3d at 1328; Bailey v. Metro Ambulance Servs., Inc., 992 F.3d 1265, 1273 n.1 (11th Cir. 2021). That is not Ossmann. Plus, the convincing mosaic inquiry is identical to the final stage of the McDonnell Douglas framework: both ask whether there is enough evidence for a reasonable jury to infer intentional discrimination. Smith, 644 F.3d at 1326, 1328. We have already concluded that Ossmann‘s circumstantial evidence fails to create a triable question of intentional discrimination. We say so again in rejecting his convincing mosaic argument.
Ossmann also raises a “cat‘s paw” theory of liability. That theory “provides that causation may be established if the plaintiff shows that the decisionmaker followed the biased recommendation without independently investigating the complaint against the employee.” Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999); see also Ziyadat, 3 F.4th at 1298. Still, the non-decisionmaker‘s racial animus must be a but-for cause of the termination. Ziyadat, 3 F.4th at 1298.
*
*
*
The ultimate question in any discrimination case is whether the defendant intentionally discriminated against the plaintiff based on race. Ossmann failed to show that a reasonable jury could conclude that Meredith terminated his employment because he was white. The district court‘s order granting summary judgment for Meredith is therefore AFFIRMED.
COREY L. MAZE, District Judge, dissenting:
I agree with the majority that we must infer Kandis Bock considered Paul Ossmann‘s race and the race of his coworkers when Bock approved Ossmann‘s termination. Opinion at 19. But I think we must also make the next logical inference: if Bock considered race, then changing race would affect Bock‘s decision.
The majority says this inference lacks reason and logic. I‘ll let you, the reader, decide whether they are right. Below are five facts. Assume the first four are true (I‘ll show you the proof later), then ask yourself if it is reasoned and logical to infer that Bock would respond differently depending on the race of the meteorologist in Fact #5:
- A local station wants to fire a male meteorologist for sexually harassing female coworkers.
- Meredith corporate policy requires Bock to review and then approve or deny the termination request.
- As part of her review, Bock must determine whether terminating the meteorologist would impact a minority racial group at a higher percentage rаte than white employees.
- To ensure Bock can conduct this review, corporate counsel orders the local station‘s HR director to fill out a form that identifies the meteorologist‘s race and the race of his coworkers, then chart each racial group by percentage.
The resulting racial group chart tells Bock that: - The meteorologist is white, and granting the termination request would increase the percentage of black and Hispanic members of the weather team from 17% to 20% each; or,
- The meteorologist is Black or Hispanic, and granting the termination request would decrease the percentage of his minority racial group from 17% to 0%, meaning his race is no longer represented on the weather team.
Based on these facts, I think it is both reasonable and logical to infer that changing the race of the meteorologist would affect Bock‘s decision. Otherwise, what‘s the point of disclosing his race and the race of his innocent coworkers?
The majority avoids answering this question by declaring that the EEO form is “completely neutral” and “does not tell Bock what she should do with the racial data.” Opinion at 19-20. Not so; the EEO form told Bock how to consider race. I‘ll show you the form and what Berenguer said about the form below.
When we view this evidence in the light most favorable to Ossmann, we must infer that Berenguer sent Bock racial grouр data so that Bock could conduct a race-based disparate impact review, and under that review, we must infer that Bock “would have responded differently” if the station sought to fire the lone black or Hispanic member of the weather team rather than one of team‘s four white members. Comcast Corp. v. Nat‘l Ass‘n of African American-Owned Media, 140 S. Ct. 1009, 1015 (2020); see also Bostock v. Clayton Cty., 140 S. Ct. 1731, 1739 (2020) (“a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.“).
Our precedent supports this inference. When faced with a similar race-conscious document, this Court has said that the inference that race mattered was “unavoidable,” and only a jury could decide what happened:
On its face, the ‘matrix’ indicates that race was pertinent to the discipline decisions made, and Lockheed has not explained satisfactorily why this was legitimate. Therefore, although the district court entirely ignored this fact, Lockheed‘s injection of race into its decision-making process yields an unavoidable inference that the employee‘s race impacted the discipline determination, and it is a jury‘s province to decide whether race actually bore on the decision to terminate Mitten.
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1346 (11th Cir. 2011) (footnotes omitted). If we stuck to Lockheed-Martin, the case would end here. We could cut-and-paste the conclusion and change just two names:
[Meredith‘s] injection of race into its deсision-making process yields an unavoidable inference that the employee‘s race impacted the discipline determination, and it is a jury‘s province to decide
whether race actually bore on the decision to terminate [Ossmann].
Id. But the majority avoids Lockheed-Martin‘s unavoidable inference, so we press on.
I.
Defendants rarely confess wrongdoing, so plaintiffs like Ossmann often base their inferences on circumstantial evidence. That doesn‘t make their inferences unreasonable. Imagine discovering your child reaching into a cookie jar. When you ask why his hand is in the cookie jar, your child says nothing. You didn‘t see your child take a cookie. He did not admit that he was taking a cookie. Yet you can reasonably infer: He was taking a cookie!
A.
Meredith‘s hand is in the cookie jar. “Outright racial balancing is patently unconstitutional.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2172 (2023) (brackets and quotations omitted). Yet Ossmann offers documentary evidence that suggests Bock considered the impact on racial group balance when deciding whether to approve Ossmann‘s termination.
Corporate counsel told Laurel Berenguer that, before corporate would sign off on Ossmann‘s termination, she needed to complete an EEO Analysis form and send it to Bock. Berenguer testified that the EEO Analysis is a standard form that Meredith requires local stations to send “to corporate to review or request
The form‘s header confirms that corporate uses the EEO Analysis data to review termination requests:
(circle added). Later on the first page, the form instructs the person requesting a termination to:
Prepare EEO Analysis Spreadsheet with answers to all FAQs (See Tab 2).
Run an EEO Stats Report of the impacted department, if applicable.
FAQ #10 asks the requesting party to disclose whether “a particular protected category of employee” would be impacted by the decision “at a higher percentage rate than similarly situated non-protected employees“:
While FAQ #10 talks about protected groups “being impacted by the restructure,” Berenguer testified that corporate HR trained her to fill out the form for terminations, as well as restructures and reorganizations, and she had followed that policy for 14 years.
Consistent with her training and practice, Berenguer responded to FAQ #10 by typing “Reference Risk Analysis,” which refers to this “Risk Analysis” chart that Berenguer created:
The green column disclosed the racial makeup of the whole news station. The yellow column disclosed the racial makeup of the weather team, who Berenguer identified by name, race, age, and sex on the previous page:
The gray column disclosed which racial grouр(s) would be diminished if Bock granted the request.
These charts told Bock that terminating Ossmann would not impact minority employees (the African-American and Hispanic reporters who each comprised 1/6 of the weather team), “at a higher percentage rate than similarly situated non-protected employees” (the white employees who filled four of the six spots). They also told Bock that white employees formed the largest racial
The majority acknowledges that Bock considered this racial group data but concludes that no evidence supports how she considered it. Opinion at 19-20. But that conclusion ignores the obvious question: is there any reason Bock would consider the racial group makeup of the news station and the weather team other than to conduct the disparate impact review called for by FAQ #10? We don‘t require jurors to check their common sense at the door. If the EEO form tells Bock how to use the racial group data, and Meredith offers no other explanation for sending Bock the racial group data, then a juror can reasonably find that Bock followed the form.
B.
Meredith says it adds racial group datа to termination documents “to ensure equitable treatment of its employees.” And Title VII prohibits employment practices that disparately impact racial groups.
Ossmann points to the Supreme Court‘s recent statement that “[o]utright racial balancing is patently unconstitutional.” Students for Fair Admissions, 143 S. Ct. at 2172 (quotations omitted). That case, however, involved student admissions to college, not personnel decisions. So while Students for Fair Admissions helps Ossmann rebuff Meredith‘s “negative factor” argument, see infra
- Conducting a group disparate impact analysis when deciding whether to terminate an individual employee flouts the Supreme Court‘s decision in Ricci v. DeStefano, 557 U.S. 557, 583–84 (2009). In Ricci, white employees scored higher than minority employees on the New Haven Fire Department‘s qualification exam, thus placing them higher in the pecking order for promotions. Citing group statistics, some minority candidates threatened to sue the City under a disparate impact theory unless the City discarded the test results, and some white candidates threatened to sue under a disparate treatment theory if it did. The City threw out the test results to avoid the minority candidates’ disparate impact claim.
Despite the City arguing that it had to discard the test results to avoid a disparatе impact lawsuit, id. at 579, the Supreme Court held that the City discriminated against high scoring white and Hispanic candidates. The Court recognized the conflict between Title VII‘s individual-focused disparate treatment provision and its group-focused disparate impact provision. The Court resolved the conflict in favor of individuals by adopting this rule: “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take
Like the City, Meredith offers no evidence, much less a strong basis of evidence, that denying the local station‘s request to fire Ossmann would have caused minority employees to file a viable disparate impact lawsuit against the application of Meredith‘s sexual harassment policy. Id. Nor, I suspect, would anyone argue that Meredith‘s sexual harassment policy is not “job-related” and “consistent with business necessity.” Id. So Ricci forbid Meredith from anаlyzing how Ossmann‘s firing would impact racial balance.
- Meredith‘s policy of providing race statistics for corporate HR to review when approving or denying local personnel decisions also contradicts the EEOC‘s instruction to keep race-related data away from decisionmakers:
§ 1602.13 Records as to racial or ethnic identity of employees
Employers may acquire the information necessary for completion of items 5 and 6 of Report EEO–1 either by visual surveys of the work force, or at their option, by the maintenance of post-employment records as to the identity of employees where the same is
permitted by State law. In the latter case, however, the Commission recommends the maintenance of a permanent record as to the racial or ethnic identity of an individual for purpose of completing the report form only where the employer keeps such records separately from the employee‘s basic personnel form or other records available to those responsible for personnel decisions, e.g., as part of an automatic data processing system in the payroll department.
The EEOC seems to believe that the inference of disparate treatment of individuals is so strong when decisionmakers consider race that it recommends companies build a wall between those who collect and report race-related data and those who make personnel decisions. The evidence suggests that Meredith blew through that wall.
To sum up, the combination of the EEO Analysis form and Berenguer‘s testimony creates a reasonable, logical inference that
II.
The majority offers three rebuttals to my reading of the evidence: (1) the EEO form does not tell Bock how to use the racial group data; (2) Berenguer testified that the purpose of the racial group data was to ensure that the station was not “treating one person in that situation in the comparable group differently than others“; and, (3) Ossmann offers no evidence that Bock considered Ossmann‘s race as a “negative factor.” I address each rebuttal in turn.
A.
The majority says that we cannot reasonably infer that Bock considered the potential impact on racial group balance when reviewing Ossmann‘s file because “[t]he language of the form does not tell Bock what she should do with the racial data, and it does not require her to engage in racial balancing—it is completely neutral.” Opinion at 20.
This language speaks for itself, and a reasonable juror could read it to require Bock to conduct a disparate impact review of racial groups.
B.
To support its finding that the EEO form is race neutral, the majority says that Berenguer testified that “the purpose of the [racial] data was to make sure that the station was not ‘treating one person in that situation in the comparable group differently than others.‘” Opinion at 20. The majority omits important context. Here‘s the full exchange between counsel and Berenguer, with the portion the majority quotes in bold:
Q. And you can‘t remember from 14 years ago why you fill out that form or the instructions as to why it says age, race, and sex?
A. I believe I‘ve already answered that question, but, yes, I do remember. So that we can—or not we, but that upon review, it can be determined whether there‘s equitable treatment or not.
Q. Well—but in your case, the comparables were not being disciplined; correct? A. Correct.
Q. So then why in the world would you need age, race, and sex when you‘re not—when you‘re comparing them to people that were not being disciplined? Do you have an answer? Well, that‘s—
A. I don‘t actually.
Q. That‘s 20 seconds. That‘s 20 seconds for the Court—for the record. Go ahead.
A. I‘m not the one who completes the analysis, so I can speculate that it is making sure that you aren‘t treating one person in that situation in that comparable group differently than others.
Q. But in the comparables you put in, they weren‘t being treated to anything. How can you compare and disprove the negative? Isn‘t it true Ms. Berenguer, that this is simply an improper and illegal form used by Meredith?
A. No, I don‘t believe that to be true.
(objections omitted). There are two reasons why Berenguer‘s testimony does not show that Bock used race to ensure that
First, when asked why Bock needed to know the race of persons who had not been disciplined for sexual harassment, Berenguer sat stumped for 20 seconds before testifying that she did not know and could only speculate. Having watched Berenguer struggle to answer before admitting that she did not know, I doubt the district court would find Berenguer‘s subsequent speculation admissible or that a jury would find it credible.
Second, Bock could not perform the disparate treatment analysis that the majority infers from Berenguer‘s testimony because, as the majority acknowledges (Opinion at 9), Berenguer did not provide Bock with thе race of the other persons who had been accused of sexual harassment. A different question on the form, FAQ #15, requested the data needed to conduct the race-neutral, disparate treatment analysis the majority infers:
The majority‘s inference that “the purpose of the [racial group] data was to make sure that the station was not ‘treating one person in that situation in that comparable group differently than others,‘” id. at 20-21, may have been true if Berenguer provided the race data
Meredith‘s counsel agreed with this distinction between disparate treatment review (FAQ #15) and disparate impact review (FAQ #10) at oral argument. When pressed to explain what Berenguer meant when she testified that she provided Bock with the race of “comparables” who were not accused of sexual harassment, counsel conceded that, “when [Berenguer] was talking about comparables, she was not talking about people who had violated the company‘s sexual harassment policy, she was talking about people within the group—people who worked in the group—and whether or not the decision was going to have a disparate impact on the group.”
I am not saying that counsel‘s statement is “fаctual evidence.” Opinion at 20 n.8. The EEO form plus Berenguer‘s testimony is the evidence. I‘m just pointing out that, against its interest, Meredith interprets Berenguer‘s testimony to discuss disparate impact review, not disparate treatment review. And if Ossmann, Meredith, and I all view the evidence to show disparate impact review, a reasonable juror can too.1
Finally, the majority says that we cannot reasonably infer that race mattered to Bock‘s decision because Ossmann offers no evidence that race was a “negative factor against Ossmann or was used favorably in evaluating a non-white employee[.]” Opinion at 23-24. The majority‘s search for a “negative factor” makes it stray from
1.
If the defendant would have responded the same way to the plaintiff even if he had been white, an ordinary speaker of English would say that the plaintiff received the ‘same’ legally protected right as a white person. Conversely, if the defendant would have responded differently but for the plaintiff‘s race, it follows that the plaintiff has not received thе same right as a white person.
That means Ossmann does not have to prove that Bock considered being white as a “negative factor” in the literal sense—i.e., being white added weight to the local station‘s termination request—as long as Ossmann can show that Bock would have responded differently if the request was to terminate either the lone black or Hispanic weather team member. For example, if Bock would have recommended that the lone black or Hispanic member be suspended rather than terminated to avoid racial imbalance, then Ossmann did not receive the “same right” as his coworkers under
2. The Supreme Court made this point in Students for Fair Admissions. In that case, a group of Asian-American students challenged the admissions policies of Harvard College and the University of North Carolina because the policies allowed the colleges to consider applicants’ race. While both colleges admitted
The Court said, “[t]his understanding of the admissions process is hard to take seriously.” Id. “A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” Id. In other words, making race a positive factor for some groups necessarily makes race a negative factor for other groups. To deny this, as Justice Thomas put it, “simply defies mathematics.” Id. at 2199 n.9 (Thomas, J., concurring).
The Court explained that Harvard was making decisions that balanced race, as shown by the fact that “[f]or the admitted classes of 2009 to 2018, black students represented a tight band of 10.0%-11.7% of the admitted pool.” Id. at 2171. To ensure this racial balance, Harvard‘s Admissions Committee would begin each meeting “with a discussion of ‘how the breakdown of the class compares to the prior year in terms of racial identities.’ And ‘if at some point in the admissions process it appear[ed] that a group [was] notably underrepresented or ha[d] suffered a dramatic drop оff relative to the prior year, the Admissions Committee may
In short, Harvard‘s policy was to consider racial group balance when considering applications. To keep numbers in the college‘s desired range, Harvard would treat applications differently because of race. So despite Harvard saying that race was not considered a “negative factor” when reviewing an Asian-American‘s application, in reality, it was.
3. Meredith‘s EEO form worked the same way. Corporate required the local station managers to disclose their employees’ race, including employees not accused of wrongdoing, so that Bock could consider group balance when deciding whether to approve the termination request.
So the majority may be right that Bock didn‘t consider Ossmann‘s race as a “negative factor” when she opened his file and saw that he was white. But if Bock opened the file and instead saw that the local station was seeking to terminate the lone black or Hispanic member of the weather team, it is reasonable to infer that Bock “would have responded differently” to the termination request. Comcast, 140 S. Ct. at 1015. After all, the goal of FAQ #10 was to ensure that the percentage of a “particular proteсted group of employees” was not negatively impacted compared to “similarly-situated non-protected employees.” Because this inference is reasonable and logical, we must make it and give the case to a jury—just as we did in Smith v. Lockheed-Martin.
This case would be easy if we followed our reasoning in Lockheed-Martin.
1. Before I explain why, though, I note my agreement with the majority that the Appellant in Lockheed-Martin, Anthony Mitten, had more evidence than Ossmann. As the majority lays out, Opinion at 21-23, Mitten presented three pieces of evidence that created a convincing mosaic of circumstantial evidence: (1) a final decisionmaker previously discriminated against white employees, (2) Lockheed-Martin had motive to fire white employees thanks to a recent racially based shooting, and (3) the disciplinary review committee was given a decision matrix that disclosed the employees’ alleged misconduct and race. While Ossmann‘s documentary proof is stronger than Mitten‘s (more on that later), he does not present motive or bad act evidence like Mitten.
Having less evidence than Mitten does not, however, negate the reasoned, logical inference that Ossmann creates. Think back to our cookie thief analogy. Imagine that—in addition to your child‘s failure to explain why his hand is in the cookie jar—you know that he didn‘t eat breakfast (i.e., motive) and that he swiped a cookie last week (i.e., prior bad acts). Adding those facts would strengthen the inference that your child reached into the jar to take a cookie. But removing those facts doesn‘t make the original inference that he was taking a cookie unreasonable or illogical. Likewise, the
2. The decisive question is whether evidence that Bock considered a document that contained Ossmann‘s race and the race of his coworkers (including those not accused of wrongdoing) is enough to create a reasonable inference of discrimination. The Court‘s discussion of the decision matrix in Lockheed-Martin is on-point, so I quote it in full:
The discipline ‘matrix,’ on which Mitten‘s race was tracked, strengthens the reasonableness of the inference that Heiserman sought to fire all whites who distributed racist emails and, thus, fired Mitten because of his race. The disciplinary review committee and Heiserman relied on the ‘matrix’ to reach their discipline decisions, including Mitten‘s. On its face, the ‘matrix’ indicates that race was pertinent to the discipline decisions made, and Lockheed has not explained satisfactorily why this was legitimate. Therefore, although the district court entirely ignored this fact, Lockheed‘s injection of race into its decision-making process yields an unavoidable inference that the еmployee‘s race impacted the discipline determination, and it is a jury‘s province to decide whether race actually bore on the decision to terminate Mitten.
But the rest of the paragraph stands alone. Most importantly, the Court says that (a) the inclusion of race in the matrix, plus (b) Lockheed-Martin‘s inability to explain why race was included in the matrix, “yields an unavoidable inference that the employee‘s race impacted the discipline determination, and it is a jury‘s province to decide whether race actually bore on the decision to terminate Mitten.” Id. at 1346. In other words, adding race to the decisionmaker‘s document created the “unavoidable inference,” not the added motive and bad act evidence.
Not only does Ossmann have similar documentary evidence; he has stronger documentary evidence. Lockheed-Martin‘s matrix noted race with one letter. Id. at 1336. Lockheed-Martin did not have a policy that told decisionmakers how to use race, and the man who created the matrix testified that he added race “as merely a decision of personal convenience, intended to aid his putative future reporting of that information to external authoritiеs” and that “it was understood that Lockheed‘s principal decision-makers would ‘close one eye to the race entry’ when looking at the ‘matrix.‘” Id. (brackets omitted).
Meredith‘s EEO Analysis form, in contrast, tells us that Bock was to consider Ossmann‘s race and his coworkers’ race to
If Lockheed-Martin‘s inclusion of race into the decisionmakers’ documents without instructions on how to consider race created “an unavoidable inference that the employee‘s race impacted the discipline determination,” Lockheed-Martin, 644 F.3d at 1346, then Meredith‘s insertion of race into the EEO Analysis with instructions to use race for disparate impact review creates the same unavoidable inference.
IV.
I agree with most of the majority‘s opinion. I agree with the majority‘s portrait of Ossmann as an unsympathetic plaintiff who likely earned his fate. I agree that the evidence suggests that Ossmann‘s station managers wanted to fire him because he would not stop harassing women, not because of his race. And if the decision to fire Ossmann stopped at the local station, I would join the majority‘s opinion in full.
But the decision to fire Ossmann did not stop at the local level; it ended at corporate HR. And corporate wasn‘t satisfied knowing that Ossmann sexually harassed women; corporate needed to know Ossmann‘s race, and everyone else‘s race, so that
Whether Bock would have reached a different decision if the races were changed is a genuine issue of material fact that only a jury can decide. Because the majority will not let the jury decide, I respectfully dissent.