Recent Florida Decisions Applying the McDonnell Douglas Analysis to Title VII Employment Discrimination Claims

In my last post, I discussed the administrative process for employment discrimination claims.  In this post, I will briefly describe the burden-shifting analysis often applied in employment discrimination cases.

South Florida’s employment discrimination attorneys know that generally, Title VII discrimination claims can be proven in two ways: (1) by showing disparate treatment, or (2) by showing a pattern or practice of discrimination.  See City of Miami v. Hervis, 65 So. 3d 1110 (Fla. 3d DCA 2011).  In cases where there is no direct evidence of discrimination, and the evidence is circumstantial, discrimination will have to be shown by meeting the requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).   See Smalley v. Holder, No. 09–21253–CIV, 2011 WL 649355, *6 (S.D. Fla. Feb. 22, 2011) (citing Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004)).  See also Holland v. Gee, Case No.: 8:08–cv–2458–T–33AEP, 2011 Wl 940291, *2 (M.D. Fla. Mar. 17, 2011).  The seminal opinion of McDonnell Douglas dealt with the “proper order and nature of proof in actions under Title VII,” and established a three-part burden-shifting framework.  See Ashmore v. F.A.A., No. 11–CV–60272, 2011 WL 3915752, *2 (S.D. Fla. Sept. 2, 2011) (quoting McDonnell Douglas, 411 U.S. at 794).

Pursuant to McDonnell Douglas, the plaintiff has the initial burden of establishing a prima facie case of discrimination or retaliation.  Once the plaintiff makes this prima facie showing, there is a rebuttable presumption that the defendant unlawfully discriminated or retaliated against the plaintiff and the burden shifts back to the defendant to proffer a legitimate, non-discriminatory or non-retaliatory reason for the adverse employment action.  If the defendant proffers a legitimate, non-discriminatory or non-pretextual reason, the burden shifts back to the plaintiff to show that the proffered reason is a pretext.  See Smalley, 2011 WL 649355 at *6 (citing McDonnell Douglas, 411 U.S. at 802, 804).  A plaintiff’s showing must be made by a preponderance of the evidence.  See Burgos-Stefanelli v. Sec’y, U.S. Dept. of Homeland Sec., 410 Fed. App’x 243, 246 (11th Cir. 2011).

It should be noted that in the analysis, the defendant’s burden is a burden of production, not persuasion.  See Holland, 2011 WL 940291 at *2.  A defendant “must merely produce evidence that could allow a rational fact finder to conclude” that its actions were not motivated by discriminatory intent.  See Holland, 2011 Wl 940291 at *2 (citing Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th Cir. 1998).  If the defendant meets his burden, a plaintiff must “come forward with evidence, including the previously produced evidence establishing her prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision.”  See Id. at *2 (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997)).  According to the Middle District of Florida, when a defendant volunteers a legitimate, nondiscriminatory reason for an adverse employment action, the Court should skip the McDonnell Douglas analysis altogether and proceed directly to the question of whether the plaintiff has sufficient evidence to carry her burden of persuasion on the question of improper discrimination.  See Holland, 2011 WL 940291 at *2 (citing Wright v. Southland Corp., 187 F.3d 1287, 1305 n. 24 (11th Cir. 1999)).

To establish a prima facie case of disparate treatment, a plaintiff must demonstrate that (1) he or she is a member of a protected class; (2) he or she was subjected to an adverse employment action; (3) his or her employer treated similarly situated employees outside of the protected class more favorably than he or she was treated; and (4) he or she was qualified to do the job.  See Smalley, 2011 WL 649355 at *6 (citing Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006); Wilson, 376 F.3d at 1087).  Similarly, to establish a claim of discrimination by indirect evidence, a plaintiff will have to show that (1) he is a member of a protected class; (2) he is qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced by a person outside his protected class, or was treated less favorably than a similarly-situated individual outside his protected class.   See Ashmore, 2011 WL 3915752 at *4 (citing Maynard v. Bd. of Regents, 342 F.3d 1281 1288-1289 (11th Cir. 2003)).  A plaintiff’s failure to identify at least one similarly-situated employee who was treated differently than the plaintiff can be fatal.  See Ashmore, 2011 WL 649355 at *4.

Although some actions may appear to be discriminatory at first glance, several recent Florida cases illustrate that courts often conclude otherwise.  For example, you may wish to review Hodgetts v. City of Venice, Florida, Case No. 8:11–cv–00144–EAK–EAJ, 2011 WL 2192813 (M.D. Fla.June 6, 2011) (letter by co-worker not evidence of disability discrimination); Jackson v. B & L Disposal, Inc., 425 Fed. App’x 819 (11th Cir. 2011) (being fired several days after complaint to supervisor did not amount to retaliation by employer); Bradley v. Pfizer, Inc., No. 11–11132, 2011 WL 3962824 (11th Cir. Sept. 9, 2011) (statement made during phone interview that applicant did not appear to be a “spring chicken” was insufficient evidence of age discrimination); and, Florida Dept. of Children and Families v. Shapiro, 68 S0.3d 298 (Fla. 4th DCA 2011) (subordinate co-worker’s racial and religious comments to employee did not rise to the level of an actionable claim for harassment under Title VII).