| On September 13, 2000, in the case of Lee v. GTE Florida, Inc., 226 F.3d 1249 (11th Cir. 2000), cert. denied, 121 S. Ct. 1486 (2001), the 11th Circuit addressed and clarified the burden of proof in failure-to-promote cases. The court affirmed that an employer has the right to determine which of its employees are the most qualified for promotions. In short, the court acknowledged that employers have the right to exercise their own business judgment. Specifically, the court held that a plaintiff's showing that a less qualified employee was promoted over the plaintiff will not satisfy the requirements of establishing pretextual motive. In a failure-to-promote case, the court will require a high level of proof showing that a plaintiff is "substantially more qualified" or "clearly more qualified" in order to establish pretext. The disparity between the qualifications of the employees considered for promotion must be so great that the disparity would be obvious to every member of a jury.
Plaintiff Lee was hired by GTE in 1970 and started as a telephone operator in Tampa. Lee was eventually promoted to the position of senior engineer in GTE's real estate department. Her position was eliminated on November 6, 1994, as a result of a reduction in force and a reorganization of GTE's real estate department. Lee and the six other employees in the organization holding the same position were allowed to apply for new positions that were created as a result of the reorganization. One of the new positions created was manager-real estate services. Lee applied for this position.
Eligible employees for the manager-real estate services position could fill out a questionnaire addressing their experience and qualifications. On the questionnaire, the qualifications were listed in descending order of importance as follows: 1) managerial experience; 2) strategic planning experience; 3) a bachelor's degree in business or engineering; and 4) commercial real estate experience. Lee claimed to meet all of the qualifications for the position. Lee was not chosen for the position. Instead, GTE selected an applicant who had a strong managerial background, significant experience in strategic planning, and a bachelor's degree in engineering, in addition to other training. While Lee had more experience in commercial real estate than the successful applicant, her qualifications in the other areas were lacking. For instance, Lee had never served as a manager, was not as qualified with regard to strategic planning, and only attained a high school degree.
After learning she would not be selected to the new position, Lee complained to GTE's employee relations department. GTE commenced an investigation which determined that there was no discrimination in the selection process. As part of the investigatory process, the selecting manager drafted a letter stating why the successful applicant was selected over Lee. The selecting manager stated that he felt Lee's background, education, and experience were not as strong as those of the selected applicant.
In 1995, Lee sued GTE claiming that her failure to be promoted was the result of sex and age discrimination. A four-day trial was held in 1997. The jury found for GTE on the age-discrimination claim, but found for Lee with regard to her sex-discrimination claim and rendered a verdict of $462,000. The trial judge denied GTE's Rule 50 motion. GTE then appealed to the 11th Circuit Court of Appeals. On September 13, 2000, the 11th Circuit reversed the jury's verdict and directed the lower court to enter judgment for GTE.
The 11th Circuit held that a plaintiff alleging discriminatory failure to promote must prove a substantial difference between the qualifications of the candidates applying for promotion in order to raise an inference of pretext sufficient to put the issue to a jury. The court stated that a plaintiff must show not only that a less-qualified candidate was selected, but also that the selection was based on the candidate's sex. A plaintiff will not satisfy its burden by showing that the employer made a mistake in selecting a less-qualified candidate. The 11th Circuit referred to other circuits which had previously clarified a plaintiff's burden of showing pretext in failure-to-promote cases. The court cited with approval the Fifth Circuit's opinion that a showing of disparities in qualification is not sufficient to show pretext unless the "disparities are so apparent as virtually to jump off the page and slap you in the face," meaning that no reasonable person would have chosen the candidate selected.1
The Lee court also looked to a 10th Circuit opinion articulating a similar evidentiary burden:
[A]n employee's own opinions about his . . . qualifications [do not] give rise to a material factual dispute . . . . When two candidates are equally qualified in that they both possess the objective qualifications for the position and neither is better qualified, it is within the employer's discretion to choose among them so long as the decision is not based on unlawful criteria.2
The court held that Lee failed to provide evidence showing that she was "clearly more qualified" or "substantially more qualified" than the successful applicant such that "a reasonable juror could infer discrimination from the comparison."3 Lee only proved that she was the more-qualified candidate with regard to commercial real estate experience. As noted in the position description, commercial real estate experience was the least important qualification for the new position. She failed to show that she was more qualified than the successful candidate in the other three areas. Furthermore, the evidence showed that Lee was the less-qualified candidate with regard to educational background and had less experience in both of the important qualifications of managerial experience and strategic planning. Accordingly, the court held that Lee did not meet her burden of showing that the reasons articulated as to why GTE selected the other candidate were a pretext for sex discrimination.
The court's decision in Lee makes it more difficult for plaintiffs alleging a discriminatory failure to promote to get their claim to a jury. Even if a failure-to-promote case survives a motion for summary judgment and is tried before a jury, the 11th Circuit standard enunciated in Lee should allow defendants to seek a jury instruction including the language of "substantially more qualified."4
Several courts have cited Lee recently. In Rhone v. City of Demopolis, 2001 WL 102398 (S.D. Ala. 2001), the plaintiff, an African-American male, claimed that he was denied a promotion to captain in the city's fire department due to his race. In granting the city's motion for judgment as a matter of law at the close of the plaintiff's trial evidence, the court found that the plaintiff failed to show that the successful applicant's lack of seniority served as probative evidence of pretext with regard to the legitimate decision that the successful applicant was the more-qualified candidate. The court stated even if seniority had been an important criteria at any point in time, important criteria for job promotions are ever-changing and, citing Lee, stated that it is not the business of the court to determine if employment decisions are prudent or fair. Instead, courts will look to see if the decision was motivated by discriminatory intent.5
In Denney v. City of Albany, 2001 WL 363046 (11th Cir. 2001), white firefighters who were passed over for promotion to lieutenant sued claiming that the fire chief's reasons for awarding promotions to African-American firefighters were a pretext for intentional discrimination against white employees. The district court granted summary judgment for the city and two city officials, finding that the white firefighters did not introduce sufficient evidence to establish pretext. On appeal, the 11th Circuit affirmed the district court's ruling. The white firefighters claimed they were more qualified than their African-American counterparts. Citing Lee, the court stated that precedent had established a requirement of "a strong showing of a disparity in qualifications in order for an inference of discrimination to arise."6 The court went on to cite the Lee standard that the disparity in qualification of candidates must be readily apparent to any reasonable jury. The court determined that the white firefighters were not so significantly more qualified than their African-American counterparts that a reasonable jury would infer discrimination based on their nonpromotion. Additionally, the court stated it was not the job of the court to review an employer's business decisions. The court added that the question is not whether the employer selected the most qualified candidate, but instead whether the candidate was selected for an unlawful reason.7
In Silvera v. Orange County School Board, 244 F.3d 1253 (11th Cir. 2001), a terminated school employee sued the school board claiming unlawful termination because of his race. The 11th Circuit considered Lee in its determination of whether the plaintiff's termination was motivated by race discrimination. The plaintiff was an African-American male who had a 16-year-old conviction for lewd assault on a child. A white employee who had a similar conviction at a similar time was not terminated. The jury returned a verdict for the plaintiff, but did not award compensatory damages. The district court awarded back pay and front pay to the plaintiff. The 11th Circuit determined that the school board showed legitimate, nondiscriminatory reasons for terminating the plaintiff and the plaintiff failed to submit evidence showing that the reasons were pretextual. The school board stated that it did not fire the white employee because it believed it was bound to an earlier agreement not to terminate him as a result of his conviction.8 The court determined that the belief in the existence of the earlier agreement was a sufficiently race-neutral reason to treat the two employees differently. The court referred to Lee in stating that an employer who treats two employees differently due to a mistaken belief does not violate Title VII.9 As Lee provides, to be actionable an employer's decision must be the result of a discriminatory motive, not the result of a mistake.
In Beck v. City of Haleyville, 127 F. Supp. 2d. 1197 (N.D. Ala. 2001), a police officer sued the city for age and sex discrimination for the city's failure to retain and promote her. The plaintiff was hired as a community police officer until her grant expired after three years. The plaintiff applied for other positions and complained that she was more qualified than the successful applicants. While serving as an officer, the plaintiff had threatened to kill a private citizen. She was not retained or hired into a new position after her grant expired and alleged that the reason was sex and age discrimination. The city defended claiming that the reasons for terminating and not rehiring the plaintiff included, but were not limited to: the officer's threat against the private citizen, the termination of the grant, and performance problems by the officer. The court granted summary judgment to the defendant. The court looked to Lee when it stated that a plaintiff could not establish that the employer's reason for termination was pretextual by merely questioning the wisdom of an employer's decisions, when the reason for termination is one that could motivate a reasonable employer.10 The court held that the threat to kill the private citizen was a sufficient reason to motivate a reasonable employer to terminate an employee.11
As Lee and other recent 11th Circuit decisions show, in failure-to-promote cases a demonstration that a less-qualified employee was hired is not sufficient to meet the plaintiff's burden of proof. Instead, for a plaintiff to establish pretext, it must be shown that the plaintiff was substantially more qualified than the employee who was promoted. For a plaintiff to succeed, the disparity between the employees considered for promotion must be so obvious to every member of the jury that they would conclude the plaintiff was not chosen because of the plaintiff's statutorily protected characteristic. Additionally, courts will acknowledge that employers may exercise their business judgment and will not second-guess them unless the business judgment is obviously flawed and/or contrived. Courts will not look to see if the employers made prudent decisions, but instead will look to see whether they acted with a discriminatory motive.
1 Deines v. Texas Dept. of Protective and Regulatory Servs., 164 F.3d 277, 280 (5th Cir. 1999).
2 Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1329-30 (10th Cir.), cert. denied, 528 U.S. 815 (1999).
3 Lee, 226 F.3d 1249.
4 The 11th Circuit also addressed pretext in Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997), cert. denied, 522 U.S. 1045 (1998). In Combs, the court said that a plaintiff cannot establish that an employer's reason for taking an adverse employment action is pretext solely by questioning the wisdom of the employer's reason. The court added that it is not the responsibility of the courts to second-guess employers' business judgment.
5 Rhone, 2001 WL 102398 at *3.
6 Denney, 2001WL 363046 at *10.
7 Id. at *13.
8 Silvera, 244 F.3d at 1257.
9 Id. at 1261.
10 Beck, 127 F. Supp. 2d at 1209.
11 Id.
Gregory A. Hearing is a partner with the firm of Thompson, Sizemore & Gonzalez, P.A., representing management in labor and employment law matters. He is certified by The Florida Bar in labor and employment law.
Michael B. Stein joined the firm of Thompson, Sizemore & Gonzalez in September 2000. He received his undergraduate degree from Duke University in 1997 and his law degree from the Florida State University College of Law in 2000.
This column is submitted on behalf of the Labor and Employment Law Section, Stuart A. Rosenfeldt, chair, and F. Damon Kitchen, editor. |