A Sixth Circuit case addresses the occasional issue of whether Title VII supports "sex-plus" claims - in this case, a claim that she suffered discrimination specifically as an African-American woman. The panel agrees that such a claim can be made, and that the employee may point to treatment of non-African-American women as comparable employees. The case also goes to show the importance of email traffic in discrimination cases.
Shazor v. Prof'l Transit Mgmt., No. 13-3253 (6th Cir. Feb. 19, 2014): plaintiff Shazor, identified in the opinion as "a graduate of West Point and the University of Michigan Business School," was hired to work for Professional Transit Management ("PTM"), a company that offers management services to transit authorities. She was hired out to Southwest Ohio Regional Transit Authority ("SORTA") as Chief Operating Officer, then promoted to CEO, though in that capacity she reported to Michael Setzer, a cofounder of PTM.
Tensions flared because PTM's executives supposedly believed that Shazor was angling to get hired directly by SORTA. Will Scott, a one-time president of PTM, wrote an email to co-founders Setzer and Thomas Hock, complaining that Shazor was "a 'prima donna' and not a team-player, and I suspect that she will eventually fail in a big way." Later, even more aggressively-worded emails re-sounded the "prima donna" theme and complained about her alleged disloyalty to PTM. She was called out on her alleged lack of collegiality in her 2009 review by Setzer. In 2010, Scott in an email to Setzer referred to Shazor as "one hellava bitch." (Shazor, of course, was not copied on these emails and we can surmise only learned about them through civil discovery in federal court, demonstrating just how key these unvarnished communications are today in discrimination cases.)
Shazor was fired by Hock on August 20, 2010, over a dispute about whether plaintiff had been truthful with the SORTA board about Hock's availability to advise them on a union-organizing drive among the driving instructors. "Hock himself testified that plaintiff's representation to the Board concerning his lack of availability was a lie. plaintiff, however, testified that Hock told her in a phone call that he was too busy to help SORTA." Emails appeared to back-up Shazor's account. There was also a credibility dispute about whether Shazor recommended that SORTA hire Management Performance International, Inc. ("MPI") to advise on union matters, a firm deemed to be anti-labor (Shazor denied recommending that firm).
Shazor was replaced by a Latina woman, Theresa Crews.
While the district court granted summary judgment on § 1981 and Title VII claims, the Sixth Circuit reverses. The panel first considers the "purported direct evidence" of discrimination that "consists of the numerous e-mails between Setzer and Scott in which they speak of plaintiff in less than flattering terms, including calling her a 'prima donna,' disloyal, disrespectful, and a 'hellava bitch.'" The panel notes that, as direct evidence, the emails are problematic because the decision maker (Hock) did not participate. While such evidence would be admissible to establish a discriminatory motive by PTM's executives, "it is unclear whether Setzer and Scott constitute 'supervisors' for the purpose of cat's paw liability" by which a non-decision maker's bias may be attributed to the company. "It is not settled whether Setzer's one-time role as plaintiff's supervisor suffices for cat's paw purposes when the ultimate employment action came a year later. It is also unclear whether Setzer and Scott qualified as supervisors on the basis of their senior roles in PTM." The panel also questions whether the emails unambiguously revealed sexist animus, or whether these year-old emails in any respect caused the plaintiff's termination.
Sidestepping the "direct evidence" issue, then, the panel finds sufficient circumstantial evidence to warrant a trial on the sex discrimination claim. The panel notes particularly that the plaintiff's theory is that she suffered discrimination because she is an African American woman: "In the case now before us, both classifications-race and sex-are protected by Title VII. These characteristics do not exist in isolation. African American women are subjected to unique stereotypes that neither African American men nor white women must endure. And Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds." [Citation omitted.] The panel summarizes:
"plaintiff has established a prima facie claim for race discrimination. She has also proffered evidence supporting a claim of sex discrimination, in the form of the distasteful e-mails of PTM executives. These e-mails might not support a direct evidence claim for sex discrimination-as we explained earlier, we need not rule on this complex issue. But considered as a whole, plaintiff has satisfied her prima facie burden on a claim of discrimination on the basis of race and sex."
The panel also holds, following the Sixth Circuit's distinctive law in this arena, that the employer cannot rely on its alleged "honest belief" that Shazor had not been truthful. "Hock's investigation into plaintiff's two purported lies consisted of speaking with one person ... about the retention of MPI. Perhaps this single interview could satisfy the requirement that the investigation turn up particularized facts if Hock had fired plaintiff for overt misconduct. But Hock fired plaintiff for lying-not just uttering a falsehood, but doing so "with intent to deceive." Webster's Third New Int'l Dictionary 1305 (1993). One conversation did not establish sufficient particularized facts about the truth behind plaintiff's statements, let alone her motive. Defendants have Therefore failed to establish a foundation for the honest belief doctrine to apply." [Citation omitted.]