Michael W. Bass v. Board of County Commissioners

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
___________________________ ELEVENTH CIRCUIT
FEB 21 2001
No. 99-10579 THOMAS K. KAHN
CLERK
___________________________
D.C. Docket No. 97-00308-CIV-ORL-18A
MICHAEL W. BASS
Plaintiff-Appellant,
versus
BOARD OF COUNTY COMMISSIONERS,
Orange County, Florida,
Defendant-Appellee.
____________________________
Appeal from the United States District Court
for the Middle District of Florida
____________________________
(February 21, 2001)
Before BLACK, CARNES and KRAVITCH, Circuit Judges.
CARNES, Circuit Judge:
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
2
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
3
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
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.
4
the panel members was a certified firefighter in Florida, 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
5
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
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
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
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low score on the interview, the panel 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
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.
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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.
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).
8
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.
9
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
10
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; and 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
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.
11
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.
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).
12
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.
Sante Fe Trail Transp. Co., 427 U.S. 273, 280, 96 S. Ct. 2574, 2579 (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 (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,
13
239, 115 S. Ct. 2097, 2119 (1995) (concurring opinion); see also Regents of Univ.
of Cal. v. Bakke, 438 U.S. 265, 289-90, 98 S. Ct. 2733, 2748 (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 (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.
14
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 (1973), and Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (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.
15
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. Runyan, 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.
McLain 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
161449, 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.
17
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,
18
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
19
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
20
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
21
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,
22
(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
23
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
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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.”
25
(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
26
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
27
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 on account of 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.
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 are
28
actually direct evidence of discrimination. But if they were not direct evidence,
they would certainly be strong circumstantial evidence of 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, and the existence of formal
affirmative action plans 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
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. § 1981 are 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.
29
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
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
(1987). The question in those circumstances is whether the employer’s affirmative
action plan is valid.
In this case, the County seeks 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
30
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 discrimination. 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
31130, 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 satisfies the
demanding scrutiny required by Title VII and the Equal Protection Clause. 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.5
a. Meaning of “Direct Evidence” in Context of Discrimination Claim
For the reasons that follow, we hold that where there is an affirmative action
plan in effect that relates to the employer’s actions which are the subject of a
discrimination claim, the affirmative action plan constitutes direct evidence of
discrimination if there is sufficient circumstantial evidence to permit a jury
5
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.
32
reasonably to conclude that the employer was acting pursuant to its plan in taking
the employment action in question.
Because we believe that the phrase 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 plan.
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
33
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). Therefore, “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.
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 the plaintiff could prove – whether by circumstantial
evidence or any other means – that the decisionmaker did make the statement,
there was direct evidence of retaliation precluding summary judgment. Id. Given
this approach, we hold, for the following reasons, that Bass has put forth direct
evidence of discrimination in the form of the County’s affirmative action plans
even though there is conflicting evidence concerning whether the Division acted
pursuant to those plans.
34
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
35
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 argues, 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 position, 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 any time. 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
36
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 admitted fact that the County had affirmative action
37
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
Ordinarily, if a defendant were found to have acted pursuant to an
affirmative action plan, the next question would be whether the plan was valid
under Title VII. The validity of the plan would then be determined 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).
As we have noted above, however, the County has consistently denied that
the Fire and Rescue Division acted pursuant to its affirmative action plans with
respect to Bass. The jury may ultimately choose to believe that this is true. In the
38
event that the jury disbelieves the County’s denials, however, the County is not
entitled to retrench and argue that its affirmative action plans are valid and
constitute a defense to the race discrimination claims. The County has put forth no
evidence suggesting that its affirmative action plans could satisfy the requirements
of Title VII, nor has it asked for an opportunity to do so. At no time has the
County argued, even in the alternative, that, if Bass is right about the Division’s
actions being a product of the County’s affirmative action plans, the plans were
nevertheless valid. Having chosen its strategic path, the County should not be
allowed to disrupt the orderly course of litigation by belatedly requesting a hearing
on or judicial determination about the validity of its affirmative action plans if the
factual premise of the County’s strategy is rejected by the jury. Therefore, the
district court should instruct the jury that if it finds that the Division acted pursuant
to the County’s affirmative action plans in failing to hire Bass for one of the
Training Instructor positions, the County is liable under Title VII for
discrimination.
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. The Supreme Court has held that “all
racial classifications, imposed by whatever federal, state, or local government
39
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 (1995); see
also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94, 109 S. Ct. 706,
721-22 (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).
For the same reasons that the County should be held liable under Title VII if
a jury finds that the Division acted pursuant to the County’s affirmative action
plans, we hold that it must also be held liable under § 1983, upon such a finding,
for violating Bass’ equal protection rights. As we have explained, Bass put forth
sufficient evidence 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. Because the County has put forth no evidence showing that its
affirmative action plans satisfy strict scrutiny and has disavowed any reliance on
those plans, it is fair to assume for purposes of this action that the plans do not
40
satisfy the requirements of the Equal Protection Clause. Actions pursuant to an
affirmative action plan which does not satisfy strict scrutiny constitute unlawful
and unconstitutional discrimination. See, e.g., Adarand , 515 U.S. at 227, 115 S.
Ct. at 2113. Therefore, the district court should instruct the jury to hold the County
liable under § 1983 if it finds that the Division acted pursuant to the County’s
affirmative action plans in failing to offer Bass a Training Instructor position.
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) 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).
41
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.
42
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 with 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
43
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 . .
44
. 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.
45
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
46
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.
47
The burden then shifts to the County to set forth a legitimate,
nondiscriminatory 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
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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.6
6
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.
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IV. CONCLUSION
We hold that the district court erred in granting summary judgment to the
County on Bass’ Title VII, § 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.
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