Michael W. Bass v. Board of County Commissioners , 256 F.3d 1095 ( 2001 )

Michael W. BASS Plaintiff-Appellant,
v.
BOARD OF COUNTY COMMISSIONERS, Orange County, Florida, Defendant-Appellee.
No. 99-10579.
United States Court of Appeals,
Eleventh Circuit.
July 9, 2001.
Appeal from the United States District Court for the Middle District of Florida. (No. 97-00308-CIV-ORL-
18), G. Kendall Sharp, Judge.
ON PETITION FOR REHEARING
Before BLACK, CARNES and KRAVITCH, Circuit Judges.
CARNES, Circuit Judge:
Our previous opinion in this case, published at 242 F.3d 996 (11th Cir.2001), is vacated. In its place,
on petition for rehearing, we substitute this revised opinion. No member of the Court having requested a poll,
we deny the suggestion for rehearing en banc. See Fed. R.App. P. 35; 11th Cir. R. 35-5.
Michael W. Bass appeals the district court's order granting summary judgment to the Board of County
Commissioners of Orange County in his lawsuit claiming race discrimination in violation of Title VII and
the Equal Protection Clause, as well as retaliation in violation of Title VII. For the reasons set forth below,
we reverse and remand for a jury trial on his race discrimination and retaliation claims.
I. BACKGROUND
A. Facts
In August 1995, the Orange County Fire and Rescue Division (the "Division" or "Fire and Rescue
Division") began a reorganization of its workforce as a result of a $9 million budget shortfall. A number of
positions were eliminated, including all four Training Captain positions, one of which was held by Michael
Bass, the white male plaintiff in this case. Like the other three people employed in that position, Bass
received a layoff notice in September 1995.
The four Captain-level positions that were eliminated were replaced with three Lieutenant-level
Training Instructor positions. Bass applied for one of those three positions. In order to become a Training
Instructor, the County specified that a person must have "two years training instructor or closely related work
experience" and "must possess and maintain a valid Florida Department of Education Teacher's Certificate
or obtain [one] within 18 months of employment." Bass' qualifications exceeded those minimums.
Moreover, according to Frank Montes de Oca, who was Chief in Charge of Training at the Division, as a
training instructor Bass "was an excellent employee who constantly received good or outstanding
evaluations." He was first or second in seniority among instructors, and, under terms of the union contract,
should have been the last or next to last to be laid off in the event of a reduction in force.
All qualified persons, including those who had been laid off, were allowed to apply for the three
Training Instructor positions. The Fire and Rescue Division used a Performance Based Interview system to
select candidates for various positions, including the Training Instructor positions. In that type of interview,
candidates are asked pre-selected questions to test their responses to hypothetical situations they may face
on the job. The candidates are expected to respond by explaining what they have done in similar situations.
A three-member panel interviewed Bass and twelve other applicants for the three Training Instructor
positions. The members of the interview panel were Charles Middleton (black male), Ray Valle (Hispanic
male), and Betty Meeks (black female). At the time of the reorganization, Middleton was the Acting
Assistant Department Manager in charge of Administration and had supervisory responsibility over the
Division's Training Instructors. He was also a member of the Progressive Firefighters Association, an
advocacy organization for black firefighters, and he was known to support affirmative action and a
promotional "fast track" for minorities.
Middleton testified that he selected Meeks and Valle for the interview panel and that, in doing so,
he "[t]ried to select people who had little or no involvement with the training function" so that they would
have had nothing at stake in the Division's reorganization. Meeks was employed in the County's Human
Resources Department, and admits that she had no knowledge beyond that of a lay person concerning the
position of fire department training instructor. She was also known to be a supporter of affirmative action.
Although Valle was employed by the Division, he worked as an information technology specialist and had
no training in firefighting. Nothing in the record indicates Valle's views on affirmative action. Therefore,
with the possible exception of Middleton,1 none of the panel members was a certified firefighter in Florida,
1
The record is less clear with respect to Middleton's experience and credentials. The record seems to
indicate that Middleton was not a certified firefighter in the State of Florida. Furthermore, although the
record shows that Middleton had supervisory responsibility over the Division's Training Instructors,
nothing in the record indicates that Middleton had any personal experience as a Training Instructor.
Given the procedural posture, of course, we are required to view the facts in the light most favorable to
the non-movant, Bass. Viewing the evidence that way, Middleton was not a certified firefighter and had
no experience as a Training Instructor.
nor had any panel member held a Training Instructor position.
Not only did the panel members lack experience as Training Instructors, none of them was given any
training or guidelines (other than general training concerning interview skills) to help them evaluate which
candidates were best qualified for the positions. Remarkably, none of them received any job description
showing the duties of a Training Instructor. Nor did any of them receive the interview questions until just
before the start of the interviews. They were not told to take notes of the interviews, and none of them did.
Mitch Floyd, who was Chief of the Fire and Rescue Division from 1989 until April 1995, stated in
his affidavit that the County had adopted the interview process "to create some leeway to allow us to promote
minority candidates." He stated under oath that the interview score was not supposed to be determinative,
but was meant to be only one of several factors, including education, experience, and diversity (i.e., race and
gender) that were to be considered. The County's written policy specifically stated that scores were not to
be totaled and that the interview was only one component to be considered. Similarly, Tom Preston (not
related to one of the candidates, Henry Preston), who developed the interview process for the Training
Instructor position, stated that the interview scores were not intended to be determinative. The interviews for
the Training Instructor positions took place in October 1995. After the panel finished interviewing all the
candidates, the panel members combined their individual scores for each candidate and then ranked the
candidates based on their aggregate interview scores. The panel ranked Bass ninth out of the thirteen
applicants. Middleton and Valle testified that Bass did not answer the questions that were asked and did not
interview as well as expected considering his experience as a training officer. (Meeks was not questioned
about Bass interview performance during her deposition.) Contrary to the written policy and all the testimony
about how the interview results were to be used, selections for the Training Instructor position were made
solely on the basis of the interview scores.2 Because Bass received a low score on the interview, the panel
2
The interview scores were as follows:
Name Previously Supervisor Score Selected Race
Gina McCollum Yes 16 X W
Dan Kucik No 15 W
Donna Reed Yes 13 X W
Henry Preston No 13 X B
David Cohen No 12 W
did not choose him for one of the three Training Instructor positions. Instead, the panel chose three of the
applicants whom it had given higher interview scores: a black male and two white females.
Henry Preston, the black candidate selected for one of the three Training Instructor positions, did not
even meet the minimum qualifications for the position. His resume reflected that he had no experience as a
Training Instructor and only two years of experience as a firefighter, even though one of the minimum
requirements for a Training Instructor position was "two (2) years training instructor or closely related work
experience." Moreover, Preston misrepresented his qualifications both on his general employment application
and on his Training Instructor application. Although Preston represented on those documents that he attended
the University of Central Florida for three years as an accounting major and earned 94 credits there, he had
never attended that university. Preston testified in his deposition that the County's Human Resources
Department knew he had "exaggerated" his educational credits. Initially he had submitted an application
which truthfully showed he lacked the necessary qualifications, but someone from Human Resources told him
that his application needed to be changed before it would be accepted. Taking the suggestion, Preston
submitted a second application, and this one falsely stated he had attended the University of Central Florida.
It was only on the basis of that lie about his qualifications, a lie he testified the County had encouraged, that
Henry Preston was judged to be qualified for a Training Instructor position.
Karen Barber No 12 W
Henry Butts No 11 W
John Russell Yes 10 B
Michael Bass Yes 8 W
Victoria Quick No 7 W
Stephen Manning No 5 W
Thomas Wheeler No 4 W
Terry Boston No 4 W
The candidate with the second-highest score, Dan Kucik, was selected for (and accepted) the
higher-ranking position of Group Supervisor. The Group Supervisors were chosen through a separate
selection process which involved different PBI interviews. Therefore, Kucik's performance during his
Training Instructor interview does not account for his selection as a Group Supervisor. John Russell
(black male), who ranked eighth in the Training Instructor interview was also selected as a Group
Supervisor. Bass applied for a Group Supervisor position, but was not selected.
After being denied a Training Instructor position for which he was indisputably qualified, Bass was
given the choice of being demoted to engineer/paramedic or being laid-off. He took the demotion. In
October 1995, Bass filed a union grievance challenging his demotion and removal from training duties. On
November 17, 1995, while his grievance was pending, Bass complained to the Division Chief James Moody
that Henry Preston lacked the necessary qualifications for the Training Instructor position. Bass recorded the
events in his diary, writing as follows:
Met with Moody.... Advised him that Preston, Reed and Kucik did not have an A.S. degree, only
high school degree and Reed had a GED and Preston did not qualify for training position. Witnessed
by Wertz and Angel Gonzales. Moody advised me that the County will continue to promote based
on color and that I should file legal action against the County.
(emphasis added).
In December 1995, the County settled Bass' union grievance without a hearing by reassigning him
to be a fourth Training Instructor. Bass was given the job title, rank, and pay of a Training Instructor, but he
was not assigned to a district and was not permitted to perform the duties of a Training Instructor. Before
the reorganization, there were four Training Instructors, each holding the rank of Captain, assigned to cover
five battalions. After the reorganization, there were three Training Instructors, each holding the rank of
Lieutenant, assigned to cover three districts (as the battalions were renamed). One Training Instructor was
assigned to each of the three districts. As a result, when the Division finally made Bass a Training Instructor
he was the fourth one, and there was no vacant district to assign him.
In December 1995, on his first day as a Training Instructor, Bass was assigned to clean out a
warehouse—work ordinarily done by inmates supplied by the Department of Corrections. Between
December 1995 and April 1996, Bass had no routine work assignments, performed custodial and clerical
duties, and usually was supervised by personnel who were less senior than he. Middleton, who was in charge
of the Training Instructors, and Chief Smith ordered Bass not to record on his work logs the custodial and
clerical work he was performing.
Bass' non-custodial assignments included working with the Division's Emergency Medical Services
unit, working on the Community Health Care Initiative, teaching CPR for Head-start day care workers, and
assisting other Training Instructors in developing training programs. Bass was not permitted to earn overtime
pay, on-call pay, riding-out-of-classification pay, or adjunct teaching pay, all of which were available to the
other Training Instructors. Although he previously had been permitted to teach numerous outside courses,
such as a SWAT team tactical rope course offered at various law enforcement agencies, in his position as
Training Instructor Bass was denied all opportunities to teach outside courses. He also was required to take
tests in order to retain his paramedic pay, while the three other training instructors were not.
In January 1997, Bass was transferred out of the Training Bureau without even being told of the
transfer. He learned of the transfer upon returning from vacation and discovering that his paycheck was no
longer available in the Training Bureau and that he was no longer on that bureau's payroll. From January
until April of 1997, Bass did not know where he had been transferred or to whom he was to report. In April
1997, he was told to report for work in a non-budgeted position that was not covered by the union contract.
After the union complained, Bass was allowed to keep his Training Instructor title, and he was given a
temporary assignment under Chief Weagraff in Quality Assurance. In the spring of 1998, one of the three
budgeted Training Instructor positions became available, but it was not given to Bass. In fact, it was never
filled. At least as late as February 1999, Bass was still temporarily assigned to Chief Weagraff.
B. Procedural History
Bass filed a ten-count complaint against the County on March 31, 1997. The complaint contained
race discrimination claims under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.; Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1983; the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and the Florida
Civil Rights Act of 1992, Fla. Stat. chs. 760.01-760.11. The complaint also contained retaliation claims under
Title VII; 42 U.S.C. § 1981; the Florida Civil Rights Act of 1992, Fla. Stat. chs. 760.01-760.11; the First
Amendment to the United States Constitution; and a claim under Florida's veterans' preference statutes, Fla.
Stat. §§ 295.07 & 295.085.3
The County moved for summary judgment. With respect to the race discrimination claims, the
County proffered as its reason for not giving Bass one of the Training Instructor positions his poor
performance on the Performance Based Interview. With respect to Bass' retaliation claims, the County argued
that Bass could not establish a prima facie case of retaliation, and that even if he could, he could not refute
the County's asserted legitimate reason for its actions—he was not given Training Instructor duties because
there was not an open district. The district court entered an order granting summary judgment to the County
as to all counts in the complaint.
3
On appeal, Bass does not challenge the district court's rulings on his Title VI or veterans' preference
claims, but argues that the district court erred in granting summary judgment on his race discrimination
and retaliation claims.
II. STANDARD OF REVIEW
We review a district court's grant of summary judgment de novo, using the same legal standard
employed by the district court. See, e.g., Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 (11th Cir.1993).
"Summary judgment is appropriate if the record shows no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. When deciding whether summary judgment is appropriate,
all evidence and reasonable factual inferences drawn therefrom are reviewed in a light most favorable to the
non-moving party." Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th Cir.1998) (citation and
quotations omitted).
III. DISCUSSION
A. RACE DISCRIMINATION CLAIMS
In his complaint, Bass alleges that the County discriminated against him based on his race
(non-Hispanic, white) in violation of Title VII, § 1981, § 1983, the Equal Protection Clause of the Fourteenth
Amendment, and the Florida Civil Rights Act. Sometimes this type of claim, where a white employee alleges
to be the victim of discrimination, is referred to as a "reverse discrimination" claim. Whatever the rhetorical
effect of that phrase in the ongoing public debate over affirmative action may be, it has no place in the legal
analysis of the alleged governmental action before us. Discrimination is discrimination no matter what the
race, color, religion, sex, or national origin of the victim. See McDonald v. Santa Fe Trail Transp. Co., 427
U.S. 273, 280, 96 S.Ct. 2574, 2579, 49 L.Ed.2d 493 (1976) (holding that Title VII prohibits discrimination
against whites as well as non-whites). Our Constitution does not distinguish between races and neither do
we. See Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) (Harlan, J.,
dissenting) ("Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In
respect of civil rights, all citizens are equal before the law."). As Justice Scalia has observed, "In the eyes
of government, we are just one race here. It is American." Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
239, 115 S.Ct. 2097, 2119, 132 L.Ed.2d 158 (1995) (concurring opinion); see also Regents of Univ. of Cal.
v. Bakke, 438 U.S. 265, 289-90, 98 S.Ct. 2733, 2748, 57 L.Ed.2d 750 (1978) (Powell, J., plurality opinion)
("The guarantee of equal protection cannot mean one thing when applied to one individual and something
else when applied to a person of another color."). Racial discrimination against whites is just as repugnant
to constitutionally protected values of equality as racial discrimination against blacks. Therefore, we will
treat Bass' Title VII and Equal Protection Clause discrimination claims as discrimination claims, not as
"reverse discrimination" claims, and we will analyze his claims exactly as we would any racial discrimination
claim.
Although the analyses for Bass' Title VII and Equal Protection claims are closely related, the Supreme
Court has recognized that it "do[es] not regard as identical the constraints of Title VII and the Federal
Constitution." Johnson v. Transportation Agency, Santa Clara County, Calif., 480 U.S. 616, 632, 107 S.Ct.
1442, 1452, 94 L.Ed.2d 615 (1987). In addressing the interplay between Title VII and § 1983, we recently
concluded that Congress intended to make available separate, non-exclusive causes of actions and remedies
under these provisions, and held that a plaintiff may bring a claim under one provision without asserting a
claim under the other. Thigpen v. Bibb County, Sheriff's Dep't, 223 F.3d 1231, 1237-39 (11th Cir.2000).
Because claims under Title VII and the Equal Protection Clause are distinct and the Supreme Court has
instructed us that different standards are applicable to them, we will address these claims separately.
1. Title VII Framework
Title VII makes it an unlawful employment practice for an employer "to fail or refuse to hire or to
discharge any individual, or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C. § 2000e-2(a). Bass alleges that the County violated Title VII by refusing to hire
him for the Training Instructor position because he is a non-Hispanic, white person.
A plaintiff may establish a Title VII claim through the introduction of direct evidence of
discrimination or through circumstantial evidence that creates an inference of discrimination. To evaluate
Title VII claims based on circumstantial evidence, we use the familiar framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Combs v.
Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.1997). Under this framework, the plaintiff must first
establish a prima facie case of discrimination. See Combs, 106 F.3d at 1527-28 (citations omitted). In order
to establish a prima facie case of race discrimination under Title VII, the plaintiff must show that: (1) he was
qualified and applied for the position; (2) he was rejected despite his qualifications; and (3) other equally
or less qualified employees who are not members of his race were hired. See Taylor v. Runyon, 175 F.3d 861,
866 (11th Cir.1999) (citing Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir.1988)). Once the plaintiff has
made out a prima facie case of discrimination, the employer must articulate some legitimate,
non-discriminatory reason for the employee's rejection. See Wu, 847 F.2d at 1483-84. If the employer meets
this burden of production, the plaintiff then must establish that each of the defendant's proffered reasons for
hiring someone of a different race is pretextual. See id.
"[I]n cases of discrimination proven by direct evidence, it is incorrect to rely on the McDonnell
Douglas test because, while circumstantial evidence is used to create an inference of discrimination under
McDonnell Douglas, no such inference is required in the case of direct evidence." Taylor, 175 F.3d at 867
n. 2; Evans v. McClain of Georgia, Inc., 131 F.3d 957, 962 (11th Cir.1997) ("[O]nce a plaintiff produces
direct evidence of a discriminatory motive, and the trier of facts accepts this testimony the ultimate issue of
discrimination is proved." (citation and internal quotation omitted)); Trotter v. Board of Trustees of the Univ.
of Ala., 91 F.3d 1449, 1453 (11th Cir.1996) ("When there is direct evidence that discrimination was a
motivating factor in the challenged employment decision, the appropriate analysis is different from that
employed in a case where only circumstantial evidence is available."). The defendant's burden when refuting
direct evidence of discrimination is one of persuasion and not merely production. See Hill v. Metropolitan
Atlanta Rapid Transit Auth., 841 F.2d 1533, 1539 (11th Cir.1988). Bass attempts to prove his Title VII claim
with both direct and circumstantial evidence of discrimination.
In this case, the County has not disputed that Bass established a prima facie case of discrimination
under the McDonnell Douglas framework. Therefore, for purposes of summary judgment, we assume that
Bass is in a protected class, was qualified to become a Training Instructor, applied for the position, was
rejected despite his qualifications and was rejected in favor of another less qualified employee of a different
race. The dispute in this case concerns whether Bass has also presented direct evidence of discrimination,
and, if not, whether he has put forth sufficient circumstantial evidence that the County's proffered
non-discriminatory reason for its actions (i.e., Bass' poor performance during his interview) was pretextual.
We now turn to these disputed issues.
2. Title VII Direct Evidence Contention Based on Chief Moody's Statements
First, Bass contends that a statement made to him by Chief Moody—the chief of the Fire and Rescue
Division at the time of the decision not to offer Bass one of the Training Instructor positions during the 1995
reorganization—constitutes direct evidence of discrimination. Bass testified that he confronted Chief Moody
about the promotion of employees who lacked the necessary qualifications for the Training Instructor
position, and Moody responded that the County would continue to promote based on color. We agree with
the district court that this statement does not rise to the level of direct evidence of discrimination by the
Division.
Direct evidence of discrimination is "evidence which, if believed, would prove the existence of a fact
[in issue] without inference or presumption." Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th
Cir.1990) (citation and emphasis omitted). "[O]nly the most blatant remarks, whose intent could be nothing
other than to discriminate on the basis of [race] ... constitute direct evidence of discrimination." Damon v.
Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir.1999) (citations omitted). "For statements
of discriminatory intent to constitute direct evidence of discrimination, they must be made by a person
involved in the challenged decision." Trotter v. Bd. of Trustees, 91 F.3d 1449, 1453-54 (11th Cir.1996).
"[R]emarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are not direct
evidence of discrimination." Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998).
Bass argues that Chief Moody's statement—made close in time to the decision to offer the Training
Instructor positions to other candidates and against the backdrop of the County's affirmative action
plans—constitutes direct evidence of discrimination. However, Bass presented no evidence showing that
Moody was a decisionmaker or involved in the selection of the Training Instructors. Although Bass attaches
significance to the fact that Moody was the chief at the time of the decision, the fact remains that Moody was
not a member of the interview panel and was not involved in the selection process. Only statements by the
persons involved in the decisionmaking process, here the interview panel members, could constitute direct
evidence of discrimination. Therefore, although Moody's statements may provide significant circumstantial
support for Bass' claims, they do not constitute direct evidence of discrimination. See Standard, 161 F.3d
at 1330.
3. Circumstantial Evidence Supporting the Title VII Claim
Even though Chief Moody's statements are not direct evidence of discrimination, we believe that
Bass has put forth ample circumstantial evidence of discrimination to permit his Title VII, § 1981 and Florida
Civil Rights Act claims to go to a jury. In addition, for the reasons explained in section 4, infra, we find that
the County's affirmative action plans, when viewed in light of the circumstantial evidence which would allow
a reasonable jury to conclude that the Division was acting pursuant to those plans, do constitute direct
evidence of racial discrimination against Bass. Therefore, we conclude that the district court erred in entering
summary judgment against Bass' Title VII race discrimination claims.
It is undisputed that Bass established a prima facie case of race discrimination under the McDonnell
Douglas framework. Consequently, a presumption of discrimination arose and the burden shifted to the
County to proffer a legitimate, nondiscriminatory reason for not hiring Bass. See Combs, 106 F.3d at 1527-28.
To meet that burden of production, the County proffered one reason, a subjective one, for not hiring Bass for
a Training Instructor position. The County claimed that Bass did not score as well on his interview
(purportedly the only selection criterion used) as the other candidates selected for the position.
This Court recently reaffirmed that a subjective reason for an employer's action—such as poor
interview performance—can be as legitimate as any other reason. See Chapman v. AI Transport, 229 F.3d
1012, 1033 (11th Cir.2000) (en banc). An interview is frequently necessary to assess qualities that are
particularly important in supervisory or professional positions. Id. at 1033. This is because "[t]raits such as
common sense, good judgment, originality, ambition, loyalty, and tact often must be assessed primarily in
a subjective fashion." Id. at 1034 (internal marks and citations omitted). However, in order for a subjective
reason to constitute a legally sufficient, legitimate, nondiscriminatory reason, the defendant must articulate
"a clear and reasonably specific factual basis upon which it based its subjective opinion." Id.; see also
Burdine, 450 U.S. at 258, 101 S.Ct. at 1096 ("[T]he defendant's explanation of its legitimate reasons must
be clear and reasonably specific" so that "the plaintiff be afforded a 'full and fair opportunity' to demonstrate
pretext.").
Although the proffered reason, Bass' poor interview, was subjective, the County offered explanations
of why the interview panel, the decisionmakers, arrived at that subjective conclusion. Valle stated that Bass
"did not interview anywhere near as well as [he] expected him to" and observed that Bass "didn't answer the
questions that [the interviewers] were asking." Middleton opined that Bass "could have presented himself
better" and that Bass gave "answers irrespective of the questions." Bass' testimony does not contradict the
panel members' assessment of his interview performance. Bass stated that he "had the impression that [the
interview] was just some kind of a go-through-the-motion thing." Although Bass admitted that he did not
perform well during the interview, he claimed that his poor performance was caused by Middleton's
interrupting him while he was trying to answer the questions. Middleton did not recall interrupting Bass
during the interview, but Valle testified that if a candidate was "headed in the wrong direction" the
interviewers would "try and help" the candidate by "clarify[ing] what it was [they] were looking for."
Because the interviewers explained the grounds for their subjective evaluation with reasonable clarity
and specificity, the County met its burden of producing a legitimate, nondiscriminatory reason for not hiring
Bass as a Training Instructor. After the County articulated this reason, the burden shifted back to Bass to
present sufficient evidence to create a genuine issue of fact that the County's non-discriminatory reason was
pretext for discrimination. In response, Bass argued that: (1) the County encouraged employees to hire and
promote based on race and established a system for hiring and promotion which created leeway so that
minorities could advance more easily; (2) Chief Moody said that the County was going to continue to
promote on the basis of color; (3) Preston, the black candidate selected as a Training Instructor, did not meet
the minimal qualifications for the position; (4) the Fire and Rescue Division deviated from its established
procedures and the interview process was otherwise tainted; and last, but not least, (5) the County had in
place affirmative action plans with the goal of increasing minority representation within the Division.
a. Pressure to Hire and Promote Minorities
With respect to Bass' first pretext argument, he introduced evidence of county officials' emphasis on
hiring and promoting based upon race. Montes de Oca, Chief of the Fire and Rescue Division from 1990
though 1997, testified that he was pressured to hire more minorities and that he had received periodic reports
showing the number of women and blacks in all positions. Mitch Floyd, Chief of the Division from 1989
until April 1, 1995, testified that managers' success or failure in meeting the County's affirmative action goals
"could adversely affect their future as managers," and that the County Administrator, County Chairwoman,
and the County Commission regularly communicated this to the Division managers. From that evidence a
jury could reasonably find the County had a policy of racial discrimination against non-Hispanic whites.
Bass also presented evidence that the interview system, the same system that was used in hiring the
Training Instructors, was used to carry out the affirmative action plans' goals of emphasizing race in hiring
decisions, i.e., the policy of racial discrimination against non-Hispanic whites. Floyd, who developed the
interview system for the Training Instructor and Group Supervisor positions and who was a member of the
Group Supervisor interview panel, testified that Performance Based interviews were adopted as a subjective
evaluation process that would create "leeway" in promoting minorities because the County "didn't have the
time or vacancies to wait out the gradual improvement of skills."
This evidence of pressure in the County to hire minorities over non-minorities, combined with the
existence of an interview system adopted in order to create leeway to promote minorities, constitutes
circumstantial evidence of discriminatory intent behind the Division's hiring decisions.
b. Chief Moody's Statement Concerning Race-Based Promotion
As to his second pretext argument, Bass testified that when he confronted Chief Moody about Henry
Preston's lacking the requisite qualifications, Moody told him that the County would continue to promote on
the basis of color. As we have already said, because Bass did not introduce sufficient evidence establishing
that Moody was a decisionmaker, his statement cannot constitute direct evidence of discrimination.
Nonetheless, this statement does constitute circumstantial evidence of discrimination because it raises the
inference that the Training Instructor interview panel members improperly based their decisions on race,
rather than performance during the interview or other legitimate criteria.
c. Promotion of Less-Qualified Candidate
In support of his third pretext argument, Bass presented evidence that he was the most qualified
applicant for the position and that Preston did not even meet the minimum qualifications for the position. At
the time he applied for the Training Instructor position, Preston's resume reflected that he had no experience
as a Training Instructor and only two years of experience with the Fire and Rescue Division and had earned
no credits toward his teaching certificate. It should have been obvious on the face of Preston's application
that he could not meet the mandatory criterion of obtaining a Florida teaching certification within 18 months
of being promoted and that he lacked the requisite two years of Training Instructor experience.
Hiring a less qualified person can support an inference of discriminatory motivation. See Alexander
v. Fulton County, 207 F.3d 1303, 1340 (11th Cir.2000) ("both the Supreme Court and this court have
observed that evidence showing an employer hired a less qualified applicant over the plaintiff may be
probative of whether the employer's proffered reason for not promoting plaintiff was pretextual"); Walker
v. Mortham, 158 F.3d 1177, 1190 (11th Cir.1998) ("The fact that a court may think that the employer
misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this
may be probative of whether the employer's reasons are pretexts for discrimination." (internal marks,
emphasis and citation omitted)). Here, the fact that the Division promoted Preston, an employee who was
unqualified under the Division's criteria, over Bass supports an inference of discrimination. This inference
is further strengthened by Chief Moody's statement that the County would continue to promote based on race
and by other circumstantial evidence of discrimination.
d. Deviation from Standard Procedure
In support of his fourth pretext argument, Bass presented evidence indicating that the Fire and Rescue
Division departed from its standard procedure when it interviewed the applicants for the Training Instructor
positions. Tom Preston, who developed the interview process for the Training Instructor and Group
Supervisor positions, testified that interview scores were not intended to be determinative, and the interview
policy specifically stated that scores were not to be totaled and that the interview was only one component
to be considered. The policy, which was identified in deposition by Valle, included the following
instructions:
NOTE: Do not total scores. This process is intended to develop a profile, highlighting a candidate's
areas of strength and weakness. This process was designed as one component to be used in
conjunction with other criteria to determine a final selection.
The Division violated these written procedures by totaling the scores and relying exclusively upon the
interviews. An employer's violation of its own normal hiring procedure may be evidence of pretext. See Hill
v. Seaboard Coast Line R.R., 885 F.2d 804, 811 (11th Cir.1989). We believe that this is especially true
where, as here, an employer disregards all but one of the factors and qualifications generally taken into
consideration and relies solely on a factor which was designed to create "leeway" for the promotion of people
of a certain race.
Furthermore, other facts surrounding the interview process used in selecting the Training Instructors
indicate that the process was suspect. For example, the interviewers, who were the sole decisionmakers,
received no training or guidelines to help them evaluate which candidates were best qualified for the Training
Instructor positions. The interviewers were supposed to evaluate the applicants' responses to certain situations
to determine which candidates would make the best Training Instructors, yet the interviewers were never even
informed of what duties a Training Instructor had. Although Middleton testified that he had at some time
received training in the interview process itself, he said he received no training with respect to the specific
qualifications to look for when interviewing the Training Instructor applicants. Valle, another member of the
Training Instructor interview panel, testified that he knew very little about firefighter training at the time he
served on the panel. Meeks, the final member of the Training Instructor interview panel, testified that she
had no knowledge of firefighting or training when she served on the panel. Furthermore, despite the fact that
the panel members were called upon to judge the applicants' qualifications to be Training Instructors,
Middleton, who chose the other two panel members, testified that he "[t]ried to select people who had little
or no involvement with the training function."
We recognize that "a defendant may terminate an employee for a good or bad reason without
violating federal law" and "[w]e are not in the business of adjudging whether employment decisions are
prudent or fair." Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir.1999).
We are, however, in the business of adjudging whether an employer violated Title VII by improperly making
employment decisions based on race. In this case, the selection process employed by the Division, when
viewed in light of the other evidence of the County's race-conscious hiring and promotion efforts, constituted
circumstantial evidence that the Division was acting with race in mind while selecting Training Instructors,
and that is so even without any consideration of the County's formal affirmative action plans.
e. The County's Affirmative Action Plans
The last category of evidence that the proffered interview reason was pretext is the County's
affirmative action plans, which were in effect at the time that the Fire and Rescue Division refused Bass a
Training Instructor position. As we will explain in the next section, we think the County's affirmative action
plans—unless those plans are valid—are actually direct evidence of unlawful discrimination.
f. Conclusion
We conclude that the evidence offered by Bass was more than sufficient to raise a genuine issue of
material fact about whether the County's articulated nondiscriminatory reason for not hiring him was
pretextual. The county officials' emphasis on promoting employees based upon race, the statement by Chief
Moody concerning race-conscious efforts, the Division's deviation from procedures, the hiring of an
unqualified candidate instead of Bass, who was qualified, provide more than enough evidence for a
reasonable jury to conclude that the County's proffered non-discriminatory explanation for its actions was
pretextual. The district court erred when it granted summary judgment in favor of the County on Bass' race
discrimination claims under Title VII, § 1981 and the Florida Civil Rights Act.4
4. Direct Evidence Supporting the Title VII Claim
We now turn to the consideration of the County's affirmative action plans as direct evidence of
discrimination supporting Bass' Title VII, § 1981 and Florida Civil Rights Act claims. The affirmative action
issues in this case arise in a somewhat unusual posture. In a typical Title VII case involving an affirmative
4
Although Bass has presented no separate arguments in support of his claims under the Florida Civil
Rights Act, we have recognized that "decisions construing Title VII are applicable when considering
claims under the Florida Civil Rights Act...." Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385,
1387 (11th Cir.1998). Likewise, "[t]he elements of a claim of race discrimination under 42 U.S.C. § 1981are also the same as a Title VII disparate treatment claim in the employment context." Rice-Lamar v. City
of Fort Lauderdale, 232 F.3d 836, 843 n. 11 (11th Cir.2000). Therefore, for the same reasons that we
reverse the grant of summary judgement as to Bass' Title VII race discrimination claim, we also reverse as
to his race discrimination claims brought under the Florida Civil Rights Act and § 1981.
action plan, an employer asserts in response to a plaintiff's prima facie showing of discrimination that its
employment decision was made pursuant to an affirmative action plan and that its compliance with such a
plan was a legitimate, nondiscriminatory reason for its actions. See, e.g., Johnson v. Transportation Agency,
Santa Clara County, Calif., 480 U.S. 616, 626-27, 107 S.Ct. 1442, 1449, 94 L.Ed.2d 615 (1987). The
question in those circumstances is whether the employer's affirmative action plan is valid.
In this case, the County has sought no cover from its affirmative action plans (and, in fact, seems to
distance itself from them), and it is Bass who relies on the County's affirmative action plans in support of his
claims. Of course, a defendant who in fact acts pursuant to an affirmative action plan cannot avoid judicial
review of the plan by disavowing reliance upon it, where there is evidence that the plan played a part in the
employment decision.
The first step in ascertaining whether the County can be held liable for discrimination as a result of
its affirmative action plans is a determination of whether there is sufficient evidence that it acted pursuant to
those plans. The mere existence of an affirmative action plan by itself does not constitute direct evidence of
discrimination unless there is also evidence that the employer acted pursuant to the plan in making
employment decisions. See Brown v. McLean, 159 F.3d 898, 904 (4th Cir.1998) (holding that affirmative
action plan is only relevant if defendant acted pursuant to plan); Cerrato v. San Francisco Community
College Dist., 26 F.3d 968, 976 (9th Cir.1994) (same); McQuillen v. Wisconsin Educ. Ass'n Council, 830
F.2d 659, 666 (7th Cir.1987) (same).
However, the existence of an affirmative action plan, when combined with evidence that the plan
was followed in an employment decision, is sufficient to constitute direct evidence of unlawful discrimination
unless the plan is valid. See McGarry v. Board of County Comm'rs of Pitkin, 175 F.3d 1193, 1200 (10th
Cir.1999) (holding that county personnel director's statements that those hired were not better qualified than
white applicant and that those hirings were minority affirmative action hirings, made against the backdrop
of the county's policy statements regarding hiring and affirmative action, constituted direct evidence of
discrimination). Furthermore, even when a defendant denies having acted pursuant to its affirmative action
plan, if there is evidence that it may have done so, a jury must decide whether the defendant in fact acted
pursuant to its stated plan. See Messer v. Meno, 130 F.3d 130, 139 (5th Cir.1997) (finding that jury could
conclude that defendant acted pursuant to affirmative action plan in light of circumstantial evidence even
though defendant denied having taken plan into account). When a jury finds that a government employer
acted pursuant to an affirmative action plan, then the employer should be held liable for discrimination unless
the plan is valid under Title VII and the Equal Protection Clause.5 This is because, regardless of good
intentions, a government employer commits unlawful discrimination when it takes race into account in an
employment decision and acts pursuant to an invalid affirmative action plan.6
a. Meaning of "Direct Evidence" in Context of Discrimination Claim
For the reasons that follow, we hold that where there is an invalid affirmative action plan in effect
relating to the employer's allegedly discriminatory actions, that plan constitutes direct evidence of
discrimination if there is sufficient circumstantial evidence to permit a jury reasonably to conclude the
employer acted pursuant to the plan when it took the employment actions in question.
Because we believe that the term has been a source of confusion, we begin by discussing the
meaning of "direct evidence" in the context of a Title VII race discrimination claim. First, we note that the
phrase "direct evidence," when used in the context of discrimination claims, does not refer to whether
evidence is direct or circumstantial in the ordinary evidentiary sense in which we normally think of those
terms. Instead, "direct evidence" refers to a type of evidence which, if true, would require no inferential leap
in order for a court to find discrimination. We do not believe that the status of evidence as "direct" in this
context, however, changes simply because a defendant contests the validity of the evidence, thereby requiring
the plaintiff to offer proof related to the disputed evidence through other means. Therefore, an affirmative
action plan may constitute direct evidence, even when a defendant denies having acted pursuant to its stated
5
Under 42 U.S.C. § 2000e-5(g)(2)(B), adopted as part of the Civil Rights Act of 1991, a defendant
may, however, limit the types of relief to which a Title VII plaintiff is entitled if it is able to "prove by a
preponderance of the evidence that it would have made the same disputed employment decision even in
the absence of the alleged discrimination." Lewis v. Young Men's Christian Assoc., 208 F.3d 1303, 1304
(11th Cir.2000). See also Canup v. Chipman-Union, Inc., 123 F.3d 1440, 1441-42 (11th Cir.1997)
(discussing impact of the 1991 amendments to the Civil Rights Act on cases in which defendant attempts
to show that it would have made same decision even without discrimination).
6
In another case recently before this Court, a plaintiff in a race discrimination lawsuit sought
summary judgment as to the employer's liability based on its undisputed compliance with its affirmative
action plan. See Thigpen v. Bibb County, Sheriff's Dep't, 223 F.3d 1231, 1244 (11th Cir.2000). Although
we did not rule out that such a finding of liability might be appropriate in some cases, we noted that an
affirmative action plan "does not necessarily offend the equal protection clause," and remanded that case
for a determination of whether the affirmative action plan passed muster under strict scrutiny analysis. Id.Our analysis in Thigpen leaves open the possibility, however, that summary judgment as to liability for
discrimination might be appropriate where there is no dispute over whether a defendant was acting
pursuant to an affirmative action plan, if a district court determines that the affirmative action plan is
invalid under Title VII and the Equal Protection Clause.
plan.7
This view of direct evidence is supported by this Court's case law addressing other types of direct
evidence of discrimination. We have held that "[w]here the non-movant presents direct evidence that, if
believed by the jury, would be sufficient to win at trial, summary judgment is not appropriate even where the
movant presents conflicting evidence." Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996)
(emphasis added). Furthermore, "[w]e have defined direct evidence as 'evidence, which if believed, proves
the existence of fact in issue without inference or presumption.' " Merritt v. Dillard Paper Co., 120 F.3d
1181, 1189 (11th Cir.1997) (quoting Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n. 6 (11th Cir.1987))
(emphasis added). The factual premise of "direct evidence" of discrimination may be disputed, and it may
well be that a plaintiff will have to establish the "direct evidence" by introducing circumstantial evidence.
7
The County argues that affirmative action plans should be considered circumstantial, instead of
direct, evidence. It points out that Johnson applied the McDonnell Douglas burden-shifting framework in
assessing an affirmative action plan, Johnson, 480 U.S. at 626, 107 S.Ct. at 1449, and some of our
decisions have held that with direct evidence "it is incorrect to rely on the McDonnell Douglas test
because, while circumstantial evidence is used to create an inference of discrimination under McDonnell
Douglas, no such inference is required in the case of direct evidence." See, e.g., Taylor v. Runyon, 175
F.3d 861, 867 n. 2 (11th Cir.1999). The County reasons that because the McDonnell Douglas framework
does not apply to direct evidence claims, and the Supreme Court applied that framework to an
affirmative-action-based claim in Johnson, it necessarily follows that affirmative action plans cannot be
direct evidence. Although this syllogism has some superficial appeal, we believe it ultimately fails.
To begin with, we note that the Supreme Court never said in Johnson that affirmative
action plans should be treated as circumstantial evidence. In fact, the word "circumstantial" never
appears in that opinion. Instead, the Court simply concluded that the McDonnell Douglas
framework was useful in light of the assignment of the various burdens relevant to the claim. See
Johnson, 480 U.S. at 626, 107 S.Ct. at 1449 (" This case also fits readily within the analytical
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). Once a plaintiff establishes a prima facie case that race or sex has been
taken into account in an employer's employment decision, the burden shifts to the employer to
articulate a nondiscriminatory rationale for its decision. The existence of an affirmative action
plan provides such a rationale. If such a plan is articulated as the basis for the employer's
decision, the burden shifts to the [Title VII] plaintiff to prove that the employer's justification is
pretextual and the plan is invalid."). Nothing in Johnson means that the plaintiff is not entitled to
prevail without further adieu if the affirmative action plan the employer asserts as the motivation
for its actions is invalid.
As we explain below, treating affirmative action plans as direct evidence is consistent
with our other decisions relating to direct evidence. Statements by decisionmakers clearly
evincing discriminatory intent and obviating the need to rely on an inference of discrimination
constitute direct evidence of discrimination. See, e.g., Merritt v. Dillard Paper Co., 120 F.3d
1181, 1189 (11th Cir.1997). In principle, an affirmative action plan is exactly such a statement.
The only thing to distinguish an affirmative action plan from any other discriminatory statement
(other than the degree of formality involved) is that the discrimination it describes or prescribes is
permissible if the plan is valid under Title VII and the Equal Protection Clause. If it is not valid,
an affirmative action plan amounts to nothing more than a formal policy of unlawful
discrimination.
For example, in Merritt, we considered whether an alleged statement by an employer constituted direct
evidence in support of the plaintiff's retaliation claim. Merritt, 120 F.3d at 1189-91. In that case, the
employer denied that a decisionmaker had made a statement which, if true, clearly showed a retaliatory
motive behind the termination of the plaintiff's employment. Id. Nonetheless, we concluded that because a
jury could find that the decisionmaker had made the statement, there was direct evidence of retaliation
precluding summary judgment. Id. Given this approach, we hold, for the following reasons, Bass has put
forth enough evidence of the existence of direct evidence of discrimination in the form of the County's
affirmative action plans that a jury could find the Division acted pursuant to those plans.
b. The County's Affirmative Action Plans
We begin with the facts concerning the County's affirmative action plans. All parties agree that the
County had affirmative action plans in place at the time of the Fire and Rescue Division's reorganization, and
that those plans were applicable to the Division. Bass showed that in November 1990, the Board of County
Commissioners adopted a five-year affirmative action plan. The plan stated that the underutilization of blacks
and Hispanics at the Division existed "division wide." It set county-wide goals for the hiring of minorities
and instructed division directors and department managers to establish annual numerical hiring and promotion
objectives to alleviate the underutilization of women and minorities.
Bass also presented evidence that in July 1993, the County adopted another plan, the 1993
Diversification Plan, "to ensure that Orange County's workplace is devoid of discrimination and is generally
reflective of the County's diverse population." The 1993 Diversification Plan required county departments
and divisions to suspend the hiring process when no qualified minority or female applicant was available and
"provide written justification to the EEO/Professional Standards Department stating job related reasons why
diversity cannot be obtained via the particular hiring process." The 1993 Diversification Plan also set
percentage hiring goals in positions that were found to have few minorities or women. That 1993 plan was
in effect during the time Bass interviewed for the Training Instructor position in October 1995, and it covered
hiring at the Fire and Rescue Division. In its response to Bass' EEOC charge, the County acknowledged the
existence of an affirmative action plan covering the Division and stated that one of the paramount objectives
of the plan was to "increase the percentage of women and minorities in job categories where they have been
traditionally underrepresented."
Although the County clearly had affirmative action plans in place during the 1995 reorganization,
it contends based on testimony from the interview panel members, that the decision not to offer the Training
Instructor position to Bass was unrelated to its affirmative action plans. To support this contention, the
County points to testimony from the panel members indicating that the Training Instructors were selected
solely on the basis of their interview scores and that no other factors, such as race, were taken into
consideration. Valle specifically testified that there was no discussion of race at anytime. Furthermore, the
County notes that the three Training Instructors selected represented the top three interview scores of the
applicants who were still in consideration.
Although the parties dispute whether the Fire and Rescue Division was acting pursuant to the
County's affirmative action plans, we must bear in mind that this case is before us at the summary judgment
stage. This means the County is entitled to judgment at this time only if it shows "that there is no genuine
issue as to any material fact." Fed.R.Civ.P. 56(c). Moreover, Bass, as the non-movant, is entitled to have
all reasonable inferences from the evidence in the record drawn in his favor. Ryder Int'l Corp. v. First
American Nat'l Bank, 943 F.2d 1521, 1523 (11th Cir.1991).
There is substantial circumstantial evidence in the record upon which a jury reasonably could
conclude that the Division acted pursuant to the County's affirmative action plans. We have outlined above
various types of circumstantial evidence which, independent of the County's affirmative action plans, permit
Bass' Title VII claim to go to a jury. That same evidence would permit a reasonable jury to conclude that,
despite its denials, the Division was acting pursuant to the County's affirmative action plans when it decided
to deny Bass a Training Instructor position during the 1995 reorganization. While the mere existence of an
affirmative action plan does not constitute direct evidence of discrimination, the existence of a plan combined
with other circumstances of the type present in this case make available to a jury the reasonable inference that
the employer was acting pursuant to the plan despite statements to the contrary from the decisionmakers
involved. Therefore, given the undisputed fact that the County had affirmative action plans which were in
effect at the time of the actions that are the subject of this lawsuit, and given the evidence (all of which is
circumstantial and some of which is disputed) that the Division acted pursuant to those affirmative action
plans, there is direct evidence of discrimination.
c. The Validity of the County's Affirmative Action Plans
If it is either proven or conceded that a defendant acted pursuant to an affirmative action plan, the
question then becomes whether the plan is valid under Title VII. The validity of an affirmative action plan
is judged under the following test:
We must first determine whether the [government employer's] consideration of the race of
promotional candidates was justified by a manifest racial imbalance that reflected
under-representation of [the affirmative action plan's beneficiaries] in traditionally segregated job
categories.... If such a justification was present when the plan was developed, we must then
determine whether the plan itself provides a proper remedy for that imbalance. A remedy is proper
if the plan does not unnecessarily trammel the rights of non-black employees or create an absolute
bar to their advancement.
In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d 1525, 1537 (11th Cir.1994) (citing
Johnson, 480 U.S. at 632, 637, 107 S.Ct. at 1452, 1455).
In Johnson, the Supreme Court held that the burden of showing that an affirmative action plan is
invalid is on the plaintiff in a Title VII case. See Johnson, 480 U.S. at 626-27, 107 S.Ct. at 1449 ("As a
practical matter, of course, an employer will generally seek to avoid [a finding of invalidity] by presenting
evidence in support of its plan. That does not mean, however, as petitioner suggests, that reliance on an
affirmative action plan is to be treated as an affirmative defense requiring the employer to carry the burden
of proving the validity of the plan. The burden of proving its invalidity remains on the plaintiff.").
In reaching this decision, the Supreme Court cited only one reason for placing the burden of proving
the invalidity of an affirmative action plan on a Title VII plaintiff—that it had placed a similar burden on
plaintiffs in the equal protection context. See 480 U.S. at 626, 107 S.Ct. at 1449 ("Only last Term, in Wygant
v. Jackson Board of Education, 476 U.S. 267, 277-278, 106 S.Ct. 1842, 1849, 90 L.Ed.2d 260 (1986), we
held that '[t]he ultimate burden remains with the employees to demonstrate the unconstitutionality of an
affirmative-action program,' and we see no basis for a different rule regarding a plan's alleged violation of
Title VII.").
In the fifteen years following the Johnson decision, much has changed in this area of the law and the
change casts considerable doubt over the viability of Johnson 's holding concerning who has the burden with
respect to the validity of an affirmative action plan. As the County concedes, and as we will discuss more
later, the law now is that insofar as an equal protection claim is concerned the defendant must prove that its
affirmative action plan satisfies strict scrutiny. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469,
510-11, 109 S.Ct. 706, 730-31, 102 L.Ed.2d 854 (1989) (concluding that city had failed to demonstrate that
the plan was supported by a strong basis in evidence and had "failed to identify the need for remedial action").
Because consistency in treatment of equal protection and Title VII claims was the only reason given in
Johnson for placing the burden as to the validity of the plan on a Title VII plaintiff, it is likely that the
Supreme Court would place the burden on the defendant if it reconsidered the issue today. See generally Hill
v. Ross, 183 F.3d 586, 590 (7th Cir.1999) (noting that Johnson was undermined by subsequent decisions, but
declining to decide whether it survived those decisions).
If it were up to us, we would follow the reasoning about consistency in Johnson and assign the
burden regarding the validity of an affirmative action plan to the same party in both the Title VII and equal
protection contexts. As a practical matter, placing the burden on different parties for purposes of Title VII
and equal protection claims is problematic, especially in cases, such as this one, where there are both Title
VII and equal protection claims aimed at an affirmative action plan. Placing the burden regarding the validity
of the plan on the plaintiff as to one claim and on the defendant as to the other may cause confusion and
creates the real possibility of disparate results as to the two claims in the same case involving the same plan.
Where the evidence is in equipoise, or in the more likely event that there is a failure of evidence on a factor
in the analysis, the same plan could be judged valid for Title VII purposes but invalid for equal protection
purposes. The possibility of such an incongruous result would be avoided if the burdens were placed on the
same party for purposes of both types of claims.
Failing to place the burden of showing that an affirmative action plan is valid on a Title VII defendant
is also contrary to the trend since Johnson towards heightened, rather than relaxed, scrutiny of affirmative
action plans. See, e.g., Croson, 488 U.S. at 510-11, 109 S.Ct. at 730-31; Adarand, 515 U.S. at 227, 115 S.Ct.
at 2113. Cf. Bob Dylan, Subterranean Homesick Blues, on Bringing it All Back Home (Columbia 1965)
("You don't need a weatherman to know which way the wind blows.").
Nonetheless, we take to heart the Constitution's description of us as one of the "inferior Courts," Art.
III, § 1, and try to follow scrupulously Supreme Court holdings. On numerous occasions, the Supreme Court
has reminded us that it is its "prerogative alone to overrule one of its precedents." United States v. Hatter, ---
U.S. ----, 121 S.Ct. 1782, 1790, --- L.Ed.2d ---- (2001) (citations and quotations omitted). When faced with
similar circumstances in which it appeared that a Supreme Court precedent had been undermined by
subsequent Supreme Court decisions, we recently reasoned:
Given the severity of the blows O'Malley and Will inflicted upon Evans one might suggest it is time
to recognize that Evans is dead and gone. The problem is that the Supreme Court has insisted on
reserving to itself the task of burying its own decisions. We have been told more than once by it that
"[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected
in some other line of decisions, the Court of Appeals should follow the case which directly controls,
leaving to this Court, the prerogative of overruling its own decisions."
Jefferson County v. Acker, 210 F.3d 1317, 1320 (11th Cir.2000) (quoting Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1997))
(citation omitted). Accordingly, we recognized in Acker our inability to inter a Supreme Court decision no
matter how wounded it might appear to be in light of subsequent decisions.8 Thus, "[w]here a Supreme Court
decision that has not been overruled is squarely on point and therefore 'directly controls' the case at hand, we
are to follow it even though convinced that the Court will overturn that decision the next time it addresses
the issue." Id. What this means is unless or until the Supreme Court revisits its holding in Johnson, it is the
plaintiff in an affirmative-action-based, race discrimination case who bears the burden of showing that a plan
is invalid under Title VII. On remand, in addition to shouldering the burden of proving that the County acted
pursuant to its affirmative action plans, Bass also must show that the County's affirmative action plans were
invalid in order to hold the County liable under Title VII for acting pursuant to those plans.
5. Bass' Equal Protection Claim
Next, we consider whether Bass' § 1983 claim alleging an equal protection violation should be
permitted to go to a jury. As we have explained, Bass has put forth sufficient evidence in support of his Title
VII claim for a reasonable jury to find that the Division acted pursuant to the County's affirmative action
plans in failing to offer him a Training Instructor position. We believe, based on the same evidence, that is
also true for his § 1983 claim.
As with Title VII, the question then becomes whether the County's affirmative tection Clause to the
Constitution. The Supreme Court has held that "all racial classifications, imposed by whatever federal, state,
or local government actor, must be analyzed by a reviewing court under strict scrutiny." Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 2113, 132 L.Ed.2d 158 (1995); see also City
of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94, 109 S.Ct. 706, 721-22, 102 L.Ed.2d 854 (1989).
Strict scrutiny review requires the racial classification to serve a compelling governmental interest and be
narrowly tailored to achieve that interest. See Adarand, 515 U.S. at 227, 115 S.Ct. at 2113. "[A] free people
whose institutions are founded upon the doctrine of equality should tolerate no retreat from the principle that
government may treat people differently because of their race only for the most compelling reasons." Id.(citation and internal marks omitted). Therefore, actions pursuant to an affirmative action plan which does
not satisfy strict scrutiny constitute unlawful and unconstitutional discrimination. See, e.g., Adarand, 515
8
The Supreme Court recently did inter the Evans decision, which we spoke of in Acker, explicitly
overruling its prior holding in Evans. See Hatter, 121 S.Ct. at 1793.
U.S. at 227, 115 S.Ct. at 2113.
The County concedes that, in contrast to the Title VII context, Supreme Court precedent governing
equal protection claims places the burden on a defendant to prove that an affirmative action plan satisfies
strict scrutiny. Up to this point, the County has never argued, even in the alternative, that its affirmative
action plans are up to this equal protection challenge, and we do not know if it will ever do so. So, it would
be premature for us to decide whether the County has waived the right to argue that. If, on remand, the
County raises this issue, it will be for the district court to decide in the first instance whether that argument
is still available to the County given its strategy so far of denying that its plans played any role in the
challenged employment actions, or whether because of the County's previous litigating position it is now
precluded from asserting that the plans are valid under the Equal Protection Clause.
Furthermore, if the district court permits the County to assert on remand that its affirmative action
plans are valid under the Equal Protection Clause, the court will then need to decide whether to take up the
legal issue about the validity of the plans before or after the jury considers the factual issue of whether the
County acted pursuant to its plans. In complicated affirmative action cases like this one involving multiple
burdens assigned to different parties and requiring determinations by both judge (i.e. validity of a plan) and
jury (i.e. whether defendant acted pursuant to a plan), we believe that it is best to allow a district court to
decide, based on the circumstances of the particular case, the timing and order of the proceedings. Therefore,
if the County contends (for the first time) on remand that its affirmative action plans are valid under the Equal
Protection Clause, the district court can decide how and when to decide the issues related to that contention.9
B. RETALIATION CLAIMS
In addition to prohibiting employers from discriminating on the basis of race, Title VII makes it
unlawful:
for an employer to discriminate against any of his employees or applicants for employment, ...
because he has opposed any practice made an unlawful employment practice by this subchapter [of
Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter [of Title VII].
42 U.S.C. § 2000e-3(a). In order to establish a prima facie case of retaliation, the plaintiff must show: (1)
9
Regardless of whether the County has waived the right to assert the validity of its plans for equal
protection purposes, it has not done so for Title VII purposes because the burden on that issue is on the
Title VII plaintiff. If Bass does not carry his burden of showing the plans are invalid, his Title VII claim
must fail, insofar as it is based on the existence of the plans as distinguished from the other evidence of
discrimination.
he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there was a causal
link between his protected activity and the adverse employment action. See Gupta v. Florida Bd. of Regents,
212 F.3d 571, 587 (11th Cir.2000); Farley v. Nationwide Mut. Ins., 197 F.3d 1322, 1336 (11th Cir.1999);
Little v. United Technologies, 103 F.3d 956, 959 (11th Cir.1997).
The district court assumed that Bass had established a prima facie case of retaliation, although it
stated that Bass had "difficulty satisfying the third prong of the prima facie test," the causal link. The court
then held that the County had articulated legitimate non-retaliatory reasons for its action which Bass failed
to rebut, and as a result the County was entitled to summary judgment on the retaliation claims. Bass argues
that he established a prima facie case and the district court erred in holding that he had failed to present
sufficient evidence to create a jury issue about the County's proffered reason.
We will first address Bass' prima facie case. Bass contends that he engaged in a protected activity
by filing a union grievance in October 1995 in which he complained of racial discrimination in the hiring of
the Training Instructors and by filing a charge of discrimination with the EEOC in December 1995. We need
not decide whether the filing of the union grievance was a protected activity for anti-retaliation purposes,
because the filing of the EEOC complaint clearly was, and the bulk of the allegedly retaliatory actions
occurred after the filing of the EEOC complaint. See Berman v. Orkin Exterminating Co., 160 F.3d 697, 702
(11th Cir.1998) (holding that filing of EEOC complaint is protected activity). Bass thus satisfied the first
prong of the prima facie case of retaliation.
With respect to the second prong, Bass alleges that he suffered numerous adverse employment
actions. Bass presented evidence that the following actions were taken against him after he filed his
complaints the EEOC: (1) he had no routine work assignments; (2) he was forced to perform custodial and
clerical duties, and usually was supervised by less senior personnel; (3) he was continuously denied the
opportunity to earn overtime pay, on-call pay, riding-out-of classification pay, and adjunct teaching pay,
which were available to other training instructors; (4) he was transferred out of the Training Bureau in
January 1997 and was not informed of his new position until April 1997; and in April 1997, he was told to
report to work in a non-budgeted position that was not covered by the union contract; (5) he was ordered to
take tests to retain his paramedic pay while other Training Instructors were not required to do so; (6) Chief
Smith and Middleton ordered him not to record in his work logs the custodial and clerical work he performed;
and (7) Bass' training programs, database files for documenting training, and graphic/multimedia material he
had developed over a five-year period were destroyed.
"An adverse employment action is an ultimate employment decision, such as discharge or failure to
hire, or other conduct that alters the employee's compensation, terms, conditions, or privileges of
employment, deprives him or her of employment opportunities, or adversely affects his or her status as an
employee." Gupta, 212 F.3d at 587 (citation and marks omitted). "Conduct that falls short of an ultimate
employment decision must meet 'some threshold level of substantiality ... to be cognizable under the
anti-retaliation clause' " of Title VII. Id. (quoting Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456
(11th Cir.1998)). While "not everything that makes an employee unhappy is an actionable adverse action,"
Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996), conduct that alters an employee's compensation,
terms, conditions, or privileges of employment does constitute an adverse action under Title VII. See Graham
v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1283 (11th Cir.1999); Robinson v. City of Pittsburgh, 120 F.3d
1286, 1300 (3d Cir.1997). The question of whether an employee has suffered a materially adverse
employment action will normally depend on the facts of each individual case. See Gupta, 212 F.3d at 587.
The last two listed actions of which Bass complains—the order not to record custodial work in his
work log and the destruction of various materials—are not adverse employment actions. Those actions were
not objectively "serious and tangible enough" to alter Bass' "compensation, terms, conditions, or privileges
of employment, deprive[ ] ... him of employment opportunities or adversely affect ... his status as an
employee." Robinson, 120 F.3d at 1300 (internal marks omitted). We do not see how being told not to record
certain tasks on a work log could constitute a serious alteration of the terms of Bass' employment. Also, the
Division's disposal of training programs, database files for documenting training, and graphic/multimedia
material prepared by Bass in no way punished or affected Bass' employment status.
Having explained why the last two of the seven actions about which Bass complains were not
adverse employment actions, we turn now to the remaining five. It is undisputed that Bass was not given the
same duties as the other Training Instructors. Bass was given no routine work assignments and was forced
to perform custodial and clerical duties under the supervision of less senior personnel. The Division also
denied him the opportunity to earn overtime pay, on-call pay, riding-out-of classification pay, and adjunct
teaching pay, which were available to other Training Instructors. Prior to filing his EEOC complaint alleging
racial discrimination, Bass had been permitted to teach adjunct courses and receive pay from agencies other
than the Division. After filing that complaint, he was not allowed to do so. In addition, Bass was ordered
to take tests to maintain his paramedic pay while none of the other Training Instructors were required to do
so.
We conclude that the Division's actions which deprived Bass of compensation which he otherwise
would have earned clearly constitute adverse employment actions for purposes of Title VII. See McCabe v.
Sharrett, 12 F.3d 1558, 1564 (11th Cir.1994) (holding that employee suffered adverse job action where she
had fewer responsibilities, was made to perform more menial tasks, and had lesser opportunity for salary
increases in her new position). While the other actions might not have individually risen to the level of
adverse employment action under Title VII, when those actions are considered collectively, the total weight
of them does constitute an adverse employment action. See Wideman v. Wal-Mart Stores, Inc., 141 F.3d
1453, 1456 (11th Cir.1998) ("It is enough to conclude, as we do, that the actions about which Wideman
complains considered collectively are sufficient to constitute prohibited discrimination. We need not and do
not decide whether anything less than the totality of the alleged reprisals would be sufficient.").
That brings us to the question of whether there is enough evidence to create a genuine issue of
material fact as to the causal connection between Bass' participation in a protected activity and the adverse
employment actions. "To establish a causal connection, a plaintiff must show that the decisionmakers were
aware of the protected conduct, and that the protected activity and the adverse action were not wholly
unrelated." Gupta, 212 F.3d at 590 (citation and internal marks omitted); see also Raney v. Vinson Guard
Service, Inc., 120 F.3d 1192, 1197 (11th Cir.1997) ("a plaintiff must, at a minimum, generally establish that
the defendant was actually aware of the protected expression at the time the defendant took the adverse
employment action"). It is not enough for the plaintiff to show that someone in the organization knew of the
protected expression; instead, the plaintiff must show that the person taking the adverse action was aware
of the protected expression. See Raney, 120 F.3d at 1196. This awareness, however, may be established by
circumstantial evidence. See Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993). Close
temporal proximity between the protected activity and the adverse action may be sufficient to show that the
two were not wholly unrelated. See Gupta, 212 F.3d at 590.
Bass filed his EEOC charge on December 19, 1995. Soon after Bass filed his EEOC complaint, he
began to suffer adverse employment actions. The close temporal proximity between filing of the EEOC
complaint and the adverse actions is sufficient in this case to satisfy the third prong of the prima facie case
of retaliation. See generally Gupta, 212 F.3d at 590. Thus, Bass established a prima facie case of
discrimination.
The burden then shifts to the County to set forth a legitimate, non-retaliatory reason for its actions.
The Fire and Rescue Division's only reason for not assigning Bass Training Instructor duties was that there
was no vacant district to which to assign him. The County contends that the head of the Training Bureau,
Chief Willard Smith, decided to keep three districts, instead of creating a fourth. It also maintains that Smith
decided that only one Training Instructor should serve each district.
Bass argues that the County's articulated reason is insufficient because it addresses only the failure
to assign Bass Training Instructor duties and not the other alleged retaliatory actions such as being placed in
a non-union job and not being allowed overtime pay. Bass further argues that he has shown that the County's
one-instructor-per-district defense is pretext because the Fire and Rescue Division failed to place Bass in the
Training Instructor position that became vacant in the spring of 1998 and was still vacant as of November
1998. Middleton confirmed the existence of the vacancy.
We agree that the County failed to negate the existence of a genuine issue of material fact concerning
a causal connection between all of the adverse actions and Bass' filing of the EEOC complaint. The County
only addressed one part of the retaliation: the failure to assign Training Instructor duties to Bass. While the
"no vacant district" argument may explain his lack of Training Instructor duties and thus the imposition of
clerical duties, it does not explain other adverse employment actions such as Bass' transfer to a non-union job,
his being denied the opportunity to teach outside courses, and the testing requirement placed on Bass and not
others. The County does not attempt to explain those other actions, nor does it explain why Bass was not
assigned to the Training Instructor position that became available in the spring of 1998. The district court
thus erred in granting the County's motion for summary judgment.10
IV. CONCLUSION
We hold that the district court erred in granting summary judgment to the County on Bass' Title VII,
10
Although Bass presented no separate arguments in support of his claims under the Florida Civil
Rights Act, for the same reasons that we reverse the grant of summary judgement as to Bass' retaliation
claim under Title VII, we also reverse as to his parallel claim under the Florida Civil Rights Act. See
supra n. 4.
With respect to Bass' § 1981 retaliation claim, the situation is less clear. We have
previously noted that whether the elements of Title VII and § 1981 retaliation claims are the same
is an "open question" in this Circuit. See Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1463 n. 4
(11th Cir.1998). However, the parties have not raised or argued that issue before us, so we will
not attempt to decide it now. If the issue is raised and preserved on remand and survives the jury
trial, it can be addressed in any subsequent appeal.
§ 1981, and Florida Civil Rights Act race discrimination and retaliation claims, and on his § 1983 equal
protection claim. Accordingly, we REVERSE the district court's grant of summary judgment to the County
and REMAND for further proceedings in accordance with this opinion.
REVERSED and REMANDED.