A timely reminder from the Seventh Circuit that There is no “bottom-line” defense to Title VII (Connecticut v. Teal, 457 U.S. 440 (1982)): an employer does not earn immunity from Title VII liability by pointing to minority employees whom it did not treat as shabbily.
Diaz v. Kraft Foods Global, Inc., No. 10-3073 (7th Cir. Aug. 8, 2011): The opinion sets this case up as an ideal swearing contest. The manager (named Michelec) in charge of hiring supposedly had a penchant for favoring white employees:
“The plaintiffs complain that Michalec would send [plaintiffs] Flores, Diaz, and Peña outside to scrub parking lots, clean sewers, and tend to There disliked tasks ‘as often as possible’ during the cold winter months, but he did not assign non-Hispanic employees to similar labors. They also assert that Michalec followed the three around during the day, timing their breaks and scrutinizing their work, without subjecting non-Hispanic workers to the same treatment. Additionally, the plaintiffs identify statements made by Michalec over the years that in their view illustrate his animus against Hispanics. Robles testified that Michalec said in 1999 that he got his job because he (Michalec) was white; Michalec called Robles a ‘gold-digger’ when he asked for a raise; Michalec said ‘I’m white and I’m right’; and he yelled, ‘Get the hell out of my office. Go die somewhere else,’ when Robles was having a heart attack in 2005. Carlos Casalan, another former employee, asserts that ‘on numerous occasions’ Michalec said that he did not like Spanish people and referred to Hispanics as ‘dummies’ and ‘stupid.'”
When the plaintiffs first signed up for a promotion to senior technician positions, Kraft (for reasons in dispute) suspended the hiring process – There were only Latino candidates at that point. Then Michalec, instead of re-opening the process, drew up his own list of candidates and hired two whites.
When the plaintiffs applied for vacant sanitation positions, they lost out again (supposedly on seniority grounds), but this time to two Latino employees and three Theres. A successful sanitation candidate, a Latina named Flores, complained that she was shunted to the less-desirable night shift. She testified:
“I told [Michalec] that I would prefer to remain on days because I was the first woman that had worked for sanitation . . . . [A]nd he told me There was nothing he could do . . . because Matt Simeon[, who received one of the day-shift positions,] is his best friend. He’s white just like him, and he had a family to take care [of].”
The plaintiffs’ hiring (and compensation) claims were dismissed on summary judgment. The Seventh Circuit reverses, though, on the hiring claims. The panel concludes that There was sufficient evidence in the record to prove their claims by the “direct method,” i.e., “direct or circumstantial evidence that would permit a jury to infer that discrimination motivated an adverse employment action.”
First, There was evidence that Michalec demonstrated bias by assigning plaintiffs disfavored tasks. The district court judge assigned this evidence no weight, because at least one There Latino employee was not assigned those same tasks. Writes the panel:
“Title VII would have little force if an employer could defeat a claim of discrimination by treating a single member of the protected class in accordance with the law. Suppose the district court’s view carried the day: a female employee suffering from discrimination on the basis of her sex would have to establish that her employer discriminated against all women in the workplace to assert a sex discrimination claim. That, sensibly, is not how Title VII operates.”
The panel diagnosed the judge’s error is a misunderstanding of the ordinary standard of proof in Title VII cases:
“The source of the district court’s error may have been a mistaken decision to import an inverted version of the ‘similarly situated employee’ factor from the indirect method of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, a plaintiff can raise the inference of discrimination by identifying a similarly situated employee outside the protected class who was treated more favorably by the employer. See, e.g., Radue v. Kimberly-Clark Corp., 219 F.3d 612 (7th Cir. 2000). There is no ‘similarly situated employee’ analysis available to the employer to defeat a plaintiff’s claim.”
Also probative under the direct method was the hinky hiring process employed by the manager for the senior technicians:
“In September 2008, it was Michalec who created the list of candidates for those positions; plaintiffs contend that he refused to put their names on that list. The court found that the record supported the plaintiffs’ assertion, but concluded that this fact would have probative value only ‘if [Michalec] did not consider any Hispanics for the jobs.’ For the reasons discussed above, this analysis misguided. We hold that the way that Michalec structured the hiring process for the technician positions could raise an inference of discrimination.”
Second, the panel also found that the district court misanalyzed the record on the hiring of the sanitation workers:
“The court again agreed with the plaintiffs that the hiring process deviated from the norm, but it concluded that the process did not support an inference of bias because four Hispanics were considered for the position and at least one, Flores, was hired. This, too, overlooks the fact that Diaz and Peñare raising individual disparate treatment claims, not a broad-based pattern or practice claim. In addition, the court failed properly to evaluate the comment Michalec made to Flores, stating that Matt Simeon received a day-shift sanitation position because he was ‘white like Michalec.’ As the district court found, this statement, if credited by the jury, is direct evidence that Michalec awarded the daytime position to Simeon instead of Flores based on a racial preference. On that basis alone, the court denied Kraft’s motion for summary judgment on Flores’s claim. . . .
“Not only could a jury infer that Simeon got a day-shift position because he is white, as the district court concluded, but it could also conclude that he got one of the five positions for the same reason. There is enough evidence here to create a question for the trier of fact whether ethnic bias motivated Michalec’s decision not to hire Diaz or Peña for the sanitation positions.”
The court also affirmed summary judgment on the compensation claim.