Wednesday, September 22, 2010
The Eighth Circuit today issued a decision in a Title VII race discrimination case that I'm struggling to get my brain around: EEOC v. Con-Way Freight. The court affirms the district court's grant of summary judgment, but the facts (and in my view the analysis) are exceptionally messy.
The plaintiff is black, and a mid-level manager wanted to hire her for a position. When he talked to his boss about creating the position and hiring the plaintiff, the boss, after hearing that the plaintiff was black, warned the manager that he would be "opening a can of worms" by hiring her and that he "didn't want to go that route." The manager asked the plaintiff how she would react to racially derogatory comments in the workplace and said the boss had warned him that if the manager hired the plaintiff, he "was just asking for the NAACP." Sounds like it's shaping up for a pretty straightforward race discrimination case.
But here is where the facts get messy. The manager also interviewed others for the position because of this comment, and decided that the plaintiff and a white woman were the best candidates. Here I'm going to leave out the facts that don't relate to the plaintiff. The manager told the plaintiff that she had the job and that he had gone to bat for her. He then sent her for a drug test, apparently without authorization--the personnel department must first run a background check to approve the candidate. The manager was fired before he submitted her name to the personnel department. When the plaintiff, thinking she had been hired contacted the company, she was told that there was no hiring going on by one person, and by another that her application for the position would be on top of the pile if the manager was replaced. The manager was eventually replaced, and he hired a third person (neither the plaintiff nor the other woman candidate).
To make things more complicated, the plaintiff had two misdemeanor shoplifting convictions, which she disclosed, and two felony theft convictions that had been pardoned, which she did not.
The court of appeals affirmed summary judgment, finding that the plaintiff could not prove that her race was the reason she was not hired. And here's where the analysis becomes a mess. The plaintiff argued that she would have been hired well before the manager had been fired but for the comments which made the manager change the way he had planned to hire--to look for other applicants. The court held that this is not direct evidence of race discrimination because the manager didn't have the authority to hire until the personnel department approved of the candidate. And the personnel department would have rejected her application because of her convictions, so the manager never would have had the authority to hire her. The plaintiff argued that the company had not provided enough evidence to compel a jury to find the existence of such an across-the-board policy, but the court disagreed. Although the policy was not in writing, there was evidence to support that such a policy had disqualified many people from employment.
The court then rejected a mixed motives approach, holding that it was not available when the employer claims no motive at all for the adverse employment action--the employer contended it did not consider her application at all.
The court further rejected a McDonnell Douglas approach, finding that she could not provide evidence of a prima facie case because her convictions made her not qualified. Without a prima facie case, the court did not describe what legitimate reasons the employer may have offered, although it does suggest elsewhere that the reasons for not hiring her were that her name was never put forward and "it simply didn't consider her application" after the manager was fired.
So why am I so confused? The court appears to hold that she can't prove a single motive case because even though she can prove that race played a role at one point in the process, the employer also would have had a nondiscriminatory reason for its action (sounds a lot like mixed motives). So, she can't prove the single motive because this is really mixed motives. But the court also holds that she can't prove a mixed motive case because there was no evidence that the employer actually relied on that legitimate reason (sounds a lot like race is the single motive now). So she can't prove a mixed motives case because there's no evidence that the motives were mixed--but they're mixed enough to defeat the single motive?
So maybe one answer is in the way that mixed motive interacts with a rigid McDonnell Douglas framing. Or maybe it has something to do with the difference between motive and reason for the action, which the court at least implies are different things. But there's no explanation of the distinction, so we're left in the dark. Is there a difference? Am I missing something?