The 11th Circuit recently issued 2 opinions in favor of employers in the last week. One dealt with gender discrimination, and the other with age discrimination. Special thanks to one of Sirote's associates, Franklin Corley, for the summaries below.
11th Circuit Upholds Termination of Female Driver. In Barnette v. Federal Express Corp., 2012 WL 4775029 (11th Cir. 2012), Nancy Barnette was employed by Federal Express, Corp. as a delivery driver. After several accidents, Barnette was issued a letter which indicated that she could be terminated if she was involved in another accident. Several months later, Barnette was involved in another accident. Barnette failed to report the accident in accordance with FedEx policy and lied to her superiors about the events surrounding the accident. FedEx terminated her employment for violating company policy.
Barnette sued FedEx for gender discrimination under Title VII, claiming that she was fired because she is a female. FedEx claimed that she was fired because she violated the company conduct policy.
When a gender discrimination claim is based on circumstantial evidence, the plaintiff must first show that: (1) she is a member of a protected class; (2) she was qualified for the position that she held; (3) she suffered an adverse employment action; and (4) she was treated less favorably than a similarly situated individual outside her protected class. Then, the burden shifts to the employer to show that there was a legitimate, nondiscriminatory reason for the employment decision. Where an employer makes such a showing, the plaintiff can only prevail by proving that the reason is actually pretextual.
Barnette’s gender discrimination claim was centered on her contention that several male drivers had been involved in similar accidents but were not terminated. For this claim to be relevant, Barnette had to identify comparators – similarly situated male drivers who had been involved in or accused of similar conduct, but were disciplined in different ways. In other words, Barnette needed to identify male drivers who failed to report an accident, lied about the events surrounding the accident, but were not terminated. Barnette could not identify any such individuals. The Court upheld FedEx’s decision to terminate Barnette based on her failure to comply with company policy following her accident.
11th Circuit Finds RIF Trumps ADEA in Termination. In Proe v. Facts Services, Inc., 2012 WL 4711588 (11th Cir. 2012), 59 year old David Proe was terminated from his employment with Facts Services, Incorporated and Ebix, Incorporated. Proe’s employers then hired a substantially younger employee, in a position for which Proe was also qualified, because they considered the younger employee to be a better fit for the position. In response to his termination, Proe filed a lawsuit under the Age Discrimination in Employment Act. The ADEA makes it illegal for an employer to discriminate against an employee who is at least 40 years of age.
An employee may prove an employer’s discriminatory intent through either direct or indirect evidence. Proe’s age discrimination claim was based on circumstantial evidence. In such cases, the plaintiff can make out an initial case of age discrimination by showing that: (1) he was a member of the protected group of persons between the ages of 40 and 70; (2) he was subjected to an adverse employment action; (3) he was qualified for the position; and (4) the position was awarded to a younger individual.
The employer can rebut the employee’s initial claim of age discrimination by showing a legitimate, nondiscriminatory reason for the adverse employment action. The employee then has the opportunity to present evidence which shows that the employer’s reasons were pretextual. Lastly, in order to prevail under the ADEA, a plaintiff must prove that age was the “but for” cause of the challenged adverse employment action.
The company argued that it terminated Proe during a reduction-in-force. In addition, Proe’s employers claimed that Proe was not rehired because the younger individual was a better fit for the position. Proe argued that his employers’ reasons were pretextual and that he was actually more qualified for the position than the younger individual. When a plaintiff attempts to show pretext by arguing that he was more qualified than another individual, he must show that no reasonable person would have selected the other candidate over the plaintiff.
In denying Proe's claims, the Court determined that Proe's employers presented legitimate, non-discriminatory reason for Proe's termination. The Eleventh Circuit found that a reduction-in-force is a legitimate, nondiscriminatory reason for terminating an employee. Thus, Proe's claim was denied because he could not prove that age was the "but for" cause of his termination.