Thursday, March 6, 2008
Jackson v. Federal Express Corp., No. 06-5844 (6th Cir. Mar. 6, 2008) demonstrates how, for some judges, the McDonald Douglas test really does become "rigid, mechanized, or ritualistic" (Fernco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). Here, at trial, the district court granted judgment as a matter of law to the employer because, by the judge's lights, the employee failed to identify a "similarly situated" employee for comparison in his Title VII and § 1981. On appeal, the Sixth Circuit panel all agree that the employee had proven her prima facie case, but one dissenter would affirm the judgment on other grounds.
The African-American employee -- a Senior Technical analyst -- lost his job owing to a low Employee Contribution Assessment ("ECA") score, while several white co-workers survived the reduction. "The six other employees that comprised Sherwood's workgroup, all of whom are Caucasian, were: Virginia White, Mary Brown, Glen Parham, Cathy Story and Steve Morrison. All of the individuals in Sherwood's workgroup held the title of Senior Technical Analyst." All were working software for the PowerPad "project, which involved the design and development of software for a new handheld device for use by FedEx couriers."
After plaintiff rested his case-in-chief, the district court entered judgment for the employer:
"The district court concluded that Story, White, Griffin and Morrison were not similarly situated to Jackson, as they all functioned as programmers and their job responsibilities did not require the same skills or abilities as Jackson's. The district judge found that Brown was the only employee in Jackson's workgroup with whom he could possibly be similarly situated. Brown functioned as a business analyst and her principal duty was acting as a liaison between the business side of the operations and the employees who developed programming codes. Brown never graduated from college, but took some college courses. The district judge stated that Brown 'had substantial familiarity with business at FedEx, as she had worked in accounting, sales revenue, shipping and 'architectural. (J.A. 931). Jackson had no experience as a business analyst and had not been a programer for a number of years."
But on appeal, the panel majority found that the district court imposed too unyielding a test:
"The evidence at trial shows that Jackson's elimination was not the result of a RIF, but instead the result of a workforce adjustment of FedEx's IT Department under the FedEx Services IT Resource Management Plan. Although Ercegovich and McGrath involve RIF's, the reasoning is nonetheless persuasive given that FedEx was also conducting a reorganization of departments. The district court's formulation of the similarly situated standard is exceedingly narrow. . . . [R]ather than making a true independent determination of the relevant factors, the district court relied on the ECA and FedEx's argument that the short- and long- term goal of the workgroup is the PowerPad project in deciding the focus of the inquiry."
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"Here, the district court impermissibly placed a burden of producing a significant amount of evidence in order to establish a prima facie case. That burden is not appropriate at the prima facie state, but rather is better suited for the pretext stage that occurs later. The purpose of Title VII and Section 1981 are not served by an overly narrow application of the similarly situated standard. The district court's formulation of factors in order to analyze Jackson's prima facie evidence is too narrow and restrictive. It was not proper for the district court judge to define the relevant factors based solely upon narrow job functions and FedEx's stated requirements for the PowerPad project. In effect, the district court is requiring an exact correlation between the position of the employee prior to the ECA and the requirements of the PowerPad project."
Of course, the whole discussion of the prima facie test at the stage of trial is incongruous to observers in this area of the law. "Because this case was fully tried on the merits, it is surprising to find the parties and the [district court] still addressing the question whether [plaintiff] made outa prima facie case." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). A fact finder's Title VII verdict cannot be based upon a plaintiff's failure to produce evidence of a prima facie case or pretext because these burdens of production "drop out" when a case is submitted for a verdict. Id. at 715.
The dissenting judge agreed with the majority's analysis, but concluded on the record that "[g]iven Jackson's lack of the requisite skills and experience, his termination was a legitimate, non-discriminatory decision on the part of FedEx. Because Jackson has presented no evidence that would allow an inference of discriminatory intent to be drawn from that decision, a jury could not reasonably find that FedEx's legitimate, non-discriminatory reason for terminating Jackson was a pretext for discrimination."