Plaintiffs chalk up two, at least partial, wins in the Eleventh Circuit. In the first, an ADEA case, a per curiam decision (reversing summary judgment) goes to show that the Gross v. FBL Financial Services, 129 S. Ct. 2343 (2009), decision had some negative repercussions for employers, as well as employees. In the second, a thorough, 53-page opinion affirms a plaintiff’s Title VII trial victory on three of nine counts in a promotion case, though reversing the balance of the judgment, and remanding to the district judge for a new backpay and injunctive remedy.
Mora v. Jackson Memorial Hospital, No. 08-16113 (11th Cir. Feb. 23, 2010): Little noted when the Supreme Court wiped mixed-motive analysis clean from the ADEA in Gross was that it also removed the “same decision” affirmative defense enjoyed by defendants under that method of proof. To wit, even if an employee can show that age was a “motivating” factor in her case, the employer can still beat a liability finding by proving that it would have taken the same action against the employee, notwithstanding her age. This turns out to be a potent defense in cases where the employee’s behavior was indisputably deficient.
And so, in this case, the employer had won summary judgment under this defense. The summary judgment record included a clash in witness testimony about whether the supervisor made a variety of age-biased remarks before firing the plaintiff (“I need someone younger I can pay less . . . I need an Elena [Quevedo, a 25 year old employee]”; “. . . you are very old, you are very inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control”; “[Plaintiff] is too old to be working here anyway”). The district court granted summary judgment on the ground that despite this testimony, the employer would prevail as a matter of law because the plaintiff’s performance was error-ridden and unprofessional.
The panel reverses summary judgment. In a brief, unsigned opinion, the panel writes that after Gross, the only issue presented on summary judgment is whether the record as a whole could support an inference of but-for causation. “Because the Supreme Court has excluded the whole idea of a ‘mixed motive’ ADEA claim — and the corresponding ‘same decision’ defense — we need not consider the district court’s analysis of Defendant’s affirmative defense. Instead, we look at Defendant’s motion for summary judgment in accord with the ‘ordinary default rule that plaintiffs bear the risk of failing to prove their claims.’ [Gross, 129 S. Ct.] at 2351. Making all reasonable inferences in Plaintiff’s favor, we look to determine whether a material factual question exists on this record about whether Defendant discriminated against her. We say ‘Yes.'”
Brown v. Alabama Department of Transportation, No. 08-14371 (11th Cir. Feb. 23, 2010): While a short summary here cannot do justice to the extensive opinion below — affirming in part and vacating and remanding in part a judgment after a five-day jury trial — I will try to hit a few highlights. The plaintiff alleged that because of her race (African-American) and in retaliation for her participation in a race-discrimination class action, she was denied nine promotion opportunities over a five-year stretch. A jury credited the plaintiff’s evidence and found that she was denied all of these opportunities; it recommended $65,697.65 in backpay and awarded $25,000.00 for mental anguish. (Because the backpay remedy would have been the same whether the motive was race discrimination or retaliation, the panel devotes only a little attention to separating out the two motives for purposes of affirming the award.)
While the panel affirms denial of judgment as a matter of law for three of the nine promotions, finding sufficient evidence that they were denied to plaintiff on account of race, it notes errors regarding plaintiff’s relief that require a remand, but which as likely as not (because the remedies are equitable) can be worked out by the judge below without a new trial.
1. By offering the jury a charge with only a general verdict, instead of special interrogatories as to each promotion, it was uncertain how much of the jury’s advisory backpay award to apportion to each denial of promotion. On remand, the court would have to sort out how much the plaintiff ought to be awarded for each. The Seventh Amendment does not require a new trial, though, because “the jury did not ‘necessarily’ make any findings with respect to the availability of any legal relief. The jury found only that the Department denied promotions to Brown on the basis of her race or for retaliatory reasons, and it awarded her mental anguish damages on the basis of one or more unspecified instances of discrimination or retaliation. Thus, there were no findings as to any legal claim that would merit deference in scrutinizing the facts underlying the purely equitable backpay award.”
2. The judge below entered an injunction that required the Department to (1) “immediately transfer Plaintiff Geneva Brown in a comparable position nearest her residence in the Third or Fifth Division”; (2) “promote her to fill the next vacancy in the position of Division Engineer in the Third Division”; and (3) compensate her
“at a rate not less than that of the incumbent Brian Davis.” The panel holds that the “comparable position” mandate is impermissibly vague, requiring clarification; that “the district court acted well within its considerable discretion in specifying that Brown be promoted to a position in the Third Division, near her home” under 42 U.S.C.A. § 2000e-5(g)(1); and that the district court was not required to defer to the state attorney general’s opinion about whether the plaintiff met the licensing requirements for the position in question.
Overall, a great win for the plaintiff in this case!