California Jury Issues $992,650 Verdict In Case Where Employee Alleged He Was Verbally Abused

January 6th, 2011

2008 Mealey’s CA Jury Verdicts & Settlements 123

HEADLINE: California Jury Issues $992,650 Verdict In Case Where Employee Alleged He Was Verbally Abused

Case Name: Gurpreet Singh v. Southland Stone U.S.A. Inc., et al.

Case Number: BC350196

Court: Calif. Super., Los Angeles Co.

Judge: Mary Thornton

Verdict/Settlement (breakdown): $992,650 plaintiff verdict ($253,750 for the intentional infliction of emotional distress claim, $337,100 for the intentional misrepresentation claim, $45,000 for breach of implied covenant of good faith and fair dealing, $6,800 for nonpayment of wages and $350,000 in punitive damages)

Plaintiff(s): Gurpreet Singh

Defendant(s): Southland Stone U.S.A. Inc.

Date: April 16, 2008

Claim: Breach of written contract, breach of the covenant of good faith and fair dealing, promissory fraud, wrongful termination, intentional infliction of emotional distress and promissory estoppel

Defense: Singh voluntarily resigned from the position; Singh was employed under an “at-will’ agreement; there was ample cause shown by Singh’s lack of performance and violations of company policies.

Background: Gurpreet Singh worked for Southland Stone U.S.A. Inc. as a general manager.Singh said that before he was hired, he was a resident of New Delhi, India, and worked for a different company. Singh said he was approached by a Southland representative, who solicited him to join Southland. Singh said the representative promised that Southland would sponsor his and his family’s immigration to the United States, would pay an annual salary of $120,000 and would provide health benefits and paid vacation time.However, Singh said, once he began to work for Southland, he was verbally abused. He said that four months after he began to work for the company, he received a 50 percent pay cut. Singh said he was not provided with any explanation for the pay cut. As a result of the sudden and unexpected pay cut, Singh said he had to move his wife and children back to India.Singh said that based on increasingly hostile circumstances that included verbal abuse, he was forced to resign.Singh filed an amended complaint against Southland on April 25, 2007, in the Los Angeles Superior Court.

Other: The case went to a jury trial on Jan. 30, 2008, before Judge Mary Thornton.The jury found that Southland was exercising its legal rights but that its conduct was not lawful and consistent with community standards. The jury also found that Southland’s conduct was outrageous and that it knowingly acted with disregard of the probability that Singh would suffer from emotional distress. The jury further found that Singh suffered from severe emotional distress and that Southland’s conduct was a substantial factor in causing the emotional distress.Additionally, the jury found that Southland knowingly made false representations of an important fact to Singh and that it intended Singh to rely on the misrepresentation. The jury also found that Singh’s reliance was a substantial factor on causing him harm.The jury also found in favor of Singh on the concealment claim. However, the jury found that Singh was not entitled to damages for this claim. The jury found in favor of Singh on the breach of implied covenant of good faith and fair dealing claim.

Plaintiff Attorneys: Okorie Okorocha and Krishna R. Malhotra, Malhotra & Malhotra, Los Angeles

Defense Attorneys: Hitendra Bhakta, Law Offices of Norman A. Filer, Orange, Calif.

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Pregnancy Discrimination

March 27th, 2010

McDONNELL DOUGLAS CORP.

v.

GREEN.

No. 72-490.

Supreme Court of United States.

Argued March 28, 1973.

Decided May 14, 1973.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

MR. JUSTICE POWELL delivered the opinion of the Court.

The case before us raises significant questions as to the proper order and nature of proof in actions under Title 794 VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq.

Petitioner, McDonnell Douglas Corp., is an aerospace and aircraft manufacturer headquartered in St. Louis, Missouri, where it employs over 30,000 people. Respondent, a black citizen of St. Louis, worked for petitioner as a mechanic and laboratory technician from 1956 until August 28, 1964[1] when he was laid off in the course of a general reduction in petitioner’s work force.

Respondent, a long-time activist in the civil rights movement, protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated.[2] As part of this protest, respondent and other members of the Congress on Racial Equality illegally stalled their cars on the main roads leading to petitioner’s plant for the purpose of blocking access to it at the time of the morning shift change. The District Judge described the plan for, and respondent’s participation in, the “stall-in” as follows:

“[F]ive teams, each consisting of four cars would `tie up’ five main access roads into McDonnell at the time of the morning rush hour. The drivers of the cars were instructed to line up next to each other completely blocking the intersections or roads. The drivers were also instructed to stop their cars, turn off the engines, pull the emergency brake, raise all windows, lock the doors, and remain in their cars until the police arrived. The plan was to have the cars remain in position for one hour.

795 “Acting under the `stall in’ plan, plaintiff [respondent in the present action] drove his car onto Brown Road, a McDonnell access road, at approximately 7:00 a. m., at the start of the morning rush hour. Plaintiff was aware of the traffic problems that would result. He stopped his car with the intent to block traffic. The police arrived shortly and requested plaintiff to move his car. He refused to move his car voluntarily. Plaintiff’s car was towed away by the police, and he was arrested for obstructing traffic. Plaintiff pleaded guilty to the charge of obstructing traffic and was fined.” 318 F. Supp. 846, 849.

On July 2, 1965, a “lock-in” took place wherein a chain and padlock were placed on the front door of a building to prevent the occupants, certain of petitioner’s employees, from leaving. Though respondent apparently knew beforehand of the “lock-in” the full extent of his involvement remains uncertain.[3]

796 Some three weeks following the “lock-in,” on July 25, 1965, petitioner publicly advertised for qualified mechanics, respondent’s trade, and respondent promptly applied for re-employment. Petitioner turned down respondent, basing its rejection on respondent’s participation in the “stall-in” and “lock-in.” Shortly thereafter, respondent filed a formal complaint with the Equal Employment Opportunity Commission, claiming that petitioner had refused to rehire him because of his race and persistent involvement in the civil rights movement, in violation of §§ 703 (a) (1) and 704 (a) of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000e-2 (a) (1) and 2000e-3 (a).[4] The former section generally prohibits racial discrimination in any employment decision while the latter forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory conditions of employment.

797 The Commission made no finding on respondent’s allegation of racial bias under § 703 (a) (1), but it did find reasonable cause to believe petitioner had violated § 704 (a) by refusing to rehire respondent because of his civil rights activity. After the Commission unsuccessfully attempted to conciliate the dispute, it advised respondent in March 1968, of his right to institute a civil action in federal court within 30 days.

On April 15, 1968, respondent brought the present action, claiming initially a violation of § 704 (a) and, in an amended complaint, a violation of § 703 (a) (1) as well.[5] The District Court dismissed the latter claim of racial discrimination in petitioner’s hiring procedures on the ground that the Commission had failed to make a determination of reasonable cause to believe that a violation of that section had been committed. The District Court also found that petitioner’s refusal to rehire respondent was based solely on his participation in the illegal demonstrations and not on his legitimate civil rights activities. The court concluded that nothing in Title VII or § 704 protected “such activity as employed by the plaintiff in the `stall in’ and `lock in’ demonstrations.” 318 F. Supp., at 850.

On appeal, the Eighth Circuit affirmed that unlawful protests were not protected activities under § 704 (a),[6] but reversed the dismissal of respondent’s § 703 (a) (1) claim relating to racially discriminatory hiring practices, holding that a prior Commission determination of reasonable cause was not a jurisdictional prerequisite to raising a claim under that section in federal court. The court 798 ordered the case remanded for trial of respondent’s claim under § 703 (a) (1).

In remanding, the Court of Appeals attempted to set forth standards to govern the consideration of respondent’s claim. The majority noted that respondent had established a prima facie case of racial discrimination; that petitioner’s refusal to rehire respondent rested on “subjective” criteria which carried little weight in rebutting charges of discrimination; that, though respondent’s participation in the unlawful demonstrations might indicate a lack of a responsible attitude toward performing work for that employer, respondent should be given the opportunity to demonstrate that petitioner’s reasons for refusing to rehire him were mere pretext.[7] In order to clarify the standards governing the disposition of an action challenging employment discrimination, we granted certiorari, 409 U. S. 1036 (1972).

I

We agree with the Court of Appeals that absence of a Commission finding of reasonable cause cannot bar suit under an appropriate section of Title VII and that the District Judge erred in dismissing respondent’s claim of racial discrimination under § 703 (a) (1). Respondent satisfied the jurisdictional prerequisites to a federal action (i) by filing timely charges of employment discrimination with the Commission and (ii) by receiving and acting upon the Commission’s statutory notice of the right to sue, 42 U. S. C. §§ 2000e-5 (a) and 2000e-5 (e). The Act does not restrict a complainant’s right to sue to those charges as to which the Commission has made findings of reasonable cause, and we will not engraft on the statute a requirement which may inhibit the review of 799 claims of employment discrimination in the federal courts. The Commission itself does not consider the absence of a “reasonable cause” determination as providing employer immunity from similar charges in a federal court, 29 CFR § 1601.30, and the courts of appeal have held that, in view of the large volume of complaints before the Commission and the nonadversary character of many of its proceedings, “court actions under Title VII are de novo proceedings and . . . a Commission `no reasonable cause’ finding does not bar a lawsuit in the case.” Robinson v. Lorillard Corp., 444 F. 2d 791, 800 (CA4 1971); Beverly v. Lone Star Lead Construction Corp., 437 F. 2d 1136 (CA5 1971); Flowers v. Local 6, Laborers International Union of North America, 431 F. 2d 205 (CA7 1970); Fekete v. U. S. Steel Corp., 424 F. 2d 331 (CA3 1970).

Petitioner argues, as it did below, that respondent sustained no prejudice from the trial court’s erroneous ruling because in fact the issue of racial discrimination in the refusal to re-employ “was tried thoroughly” in a trial lasting four days with “at least 80%” of the questions relating to the issue of “race.”[8] Petitioner, therefore, requests that the judgment below be vacated and the cause remanded with instructions that the judgment of the District Court be affirmed.[9] We cannot agree that the dismissal of respondent’s § 703 (a) (1) claim was harmless error. It is not clear that the District Court’s findings as to respondent’s § 704 (a) contentions involved the identical issues raised by his claim under § 703 (a) (1). The former section relates solely to discrimination against an applicant or employee on account of his participation in legitimate civil rights activities or protests, while the latter section deals with the broader and centrally 800 important question under the Act of whether, for any reason, a racially discriminatory employment decision has been made. Moreover, respondent should have been accorded the right to prepare his case and plan the strategy of trial with the knowledge that the § 703 (a) (1) cause of action was properly before the District Court.[10] Accordingly, we remand the case for trial of respondent’s claim of racial discrimination consistent with the views set forth below.

II

The critical issue before us concerns the order and allocation of proof in a private, non-class action challenging employment discrimination. The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. Griggs v. Duke Power Co., 401 U. S. 424, 429 (1971); Castro v. Beecher, 459 F. 2d 725 (CA1 1972); Chance v. Board of Examiners, 458 F. 2d 1167 (CA2 1972); Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (ED Va. 1968). As noted in Griggs, supra:

“Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. 801 What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Id., at 430-431.

There are societal as well as personal interests on both sides of this equation. The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.

In this case respondent, the complainant below, charges that he was denied employment “because of his involvement in civil rights activities” and “because of his race and color.”[11] Petitioner denied discrimination of any kind, asserting that its failure to re-employ respondent was based upon and justified by his participation in the unlawful conduct against it. Thus, the issue at the trial on remand is framed by those opposing factual contentions. The two opinions of the Court of Appeals and the several opinions of the three judges of that court attempted, with a notable lack of harmony, to state the applicable rules as to burden of proof and how this shifts upon the making of a prima facie case.[12] We now address this problem.

802 The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.[13] In the instant case, we agree with the Court of Appeals that respondent proved a prima facie case. 463 F. 2d 337, 353. Petitioner sought mechanics, respondent’s trade, and continued to do so after respondent’s rejection. Petitioner moreover, does not dispute respondent’s qualifications[14] and acknowledges that his past work performance in petitioner’s employ was “satisfactory.”[15]

The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. We need not attempt in the instant case to detail every matter which fairly could be 803 recognized as a reasonable basis for a refusal to hire. Here petitioner has assigned respondent’s participation in unlawful conduct against it as the cause for his rejection. We think that this suffices to discharge petitioner’s burden of proof at this stage and to meet respondent’s prima facie case of discrimination.

The Court of Appeals intimated, however, that petitioner’s stated reason for refusing to rehire respondent was a “subjective” rather than objective criterion which “carr[ies] little weight in rebutting charges of discrimination,” 463 F. 2d, at 352. This was among the statements which caused the dissenting judge to read the opinion as taking “the position that such unlawful acts as Green committed against McDonnell would not legally entitle McDonnell to refuse to hire him, even though no racial motivation was involved . . . .” Id., at 355. Regardless of whether this was the intended import of the opinion, we think the court below seriously underestimated the rebuttal weight to which petitioner’s reasons were entitled. Respondent admittedly had taken part in a carefully planned “stall-in,” designed to tie up access to and egress from petitioner’s plant at a peak traffic hour.[16] Nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it.[17] In upholding, under the National Labor Relations Act, the discharge of employees who had seized and forcibly retained 804 an employer’s factory buildings in an illegal sit-down strike, the Court noted pertinently:

“We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct,—to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer’s property . . . . Apart from the question of the constitutional validity of an enactment of that sort, it is enough to say that such a legislative intention should be found in some definite and unmistakable expression.” NLRB v. Fansteel Corp., 306 U. S. 240, 255 (1939).

Petitioner’s reason for rejection thus suffices to meet the prima facie case, but the inquiry must not end here. While Title VII does not, without more, compel rehiring of respondent, neither does it permit petitioner to use respondent’s conduct as a pretext for the sort of discrimination prohibited by § 703 (a) (1). On remand, respondent must, as the Court of Appeals recognized, be afforded a fair opportunity to show that petitioner’s stated reason for respondent’s rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the “stall-in” were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.

Other evidence that may be relevant to any showing of pretext includes facts as to the petitioner’s treatment of respondent during his prior term of employment; petitioner’s reaction, if any, to respondent’s legitimate civil rights activities; and petitioner’s general policy and 805 practice with respect to minority employment.[18] On the latter point, statistics as to petitioner’s employment policy and practice may be helpful to a determination of whether petitioner’s refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks. Jones v. Lee Way Motor Freight, Inc., 431 F. 2d 245 (CA10 1970); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co., and the Concept of Employment Discrimination, 71 Mich. L. Rev. 59, 91-94 (1972).[19] In short, on the retrial respondent must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.

The court below appeared to rely upon Griggs v. Duke Power Co., supra, in which the Court stated: “If an employment practice which operates to exclude Negroes cannot 806 be shown to be related to job performance, the practice is prohibited.” 401 U. S., at 431.[20] But Griggs differs from the instant case in important respects. It dealt with standardized testing devices which, however neutral on their face, operated to exclude many blacks who were capable of performing effectively in the desired positions. Griggs was rightly concerned that childhood deficiencies in the education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives. Id., at 430. Respondent, however, appears in different clothing. He had engaged in a seriously disruptive act against the very one from whom he now seeks employment. And petitioner does not seek his exclusion on the basis of a testing device which overstates what is necessary for competent performance, or through some sweeping disqualification of all those with any past record of unlawful behavior, however remote, insubstantial, or unrelated to applicant’s personal qualifications as an employee. Petitioner assertedly rejected respondent for unlawful conduct against it and, in the absence of proof of pretext or discriminatory application of such a reason, this cannot be thought the kind of “artificial, arbitrary, and unnecessary barriers to employment” which the Court found to be the intention of Congress to remove. Id., at 431.[21]

807 III

In sum, respondent should have been allowed to pursue his claim under § 703 (a) (1). If the evidence on retrial is substantially in accord with that before us in this case, we think that respondent carried his burden of establishing a prima facie case of racial discrimination and that petitioner successfully rebutted that case. But this does not end the matter. On retrial, respondent must be afforded a fair opportunity to demonstrate that petitioner’s assigned reason for refusing to re-employ was a pretext or discriminatory in its application. If the District Judge so finds, he must order a prompt and appropriate remedy. In the absence of such a finding, petitioner’s refusal to rehire must stand.

The judgment is vacated and the cause is hereby remanded to the District Court for further proceedings consistent with this opinion.

So ordered.

[*] Milton A. Smith and Lawrence M. Cohen filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.

[1] His employment during these years was continuous except for 21 months of service in the military.

[2] The Court of Appeals noted that respondent then “filed formal complaints of discrimination with the President’s Commission on Civil Rights, the Justice Department, the Department of the Navy, the Defense Department, and the Missouri Commission on Human Rights.” 463 F. 2d 337, 339 (1972).

[3] The “lock-in” occurred during a picketing demonstration by ACTION, a civil rights organization, at the entrance to a downtown office building which housed a part of petitioner’s offices and in which certain of petitioner’s employees were working at the time. A chain and padlock were placed on the front door of the building to prevent ingress and egress. Although respondent acknowledges that he was chairman of ACTION at the time, that the demonstration was planned and staged by his group, that he participated in and indeed was in charge of the picket line in front of the building, that he was told in advance by a member of ACTION “that he was planning to chain the front door,” and that he “approved of” chaining the door, there is no evidence that respondent personally took part in the actual “lock-in,” and he was not arrested. App. 132-133.

The Court of Appeals majority, however, found that the record did “not support the trial court’s conclusion that Green `actively cooperated’ in chaining the doors of the downtown St. Louis building during the `lock-in’ demonstration.” 463 F. 2d, at 341. See also concurring opinion of Judge Lay. Id., at 345. Judge Johnsen, in dissent, agreed with the District Court that the “chaining and padlocking [were] carried out as planned, [and that] Green had in fact given it . . . approval and authorization.” Id., at 348.

In view of respondent’s admitted participation in the unlawful “stall-in,” we find it unnecessary to resolve the contradictory contentions surrounding this “lock-in.”

[4] Section 703 (a) (1) of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2 (a) (1), in pertinent part provides:

“It shall be an unlawful employment practice for an employer. . . to fail or refuse to hire or to discharge any individual, or otherwise to 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 . . . .”

Section 704 (a) of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-3 (a), in pertinent part provides:

“It shall be an unlawful employment practice 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 . . . .”

[5] Respondent also contested the legality of his 1964 discharge by petitioner, but both courts held this claim barred by the statute of limitations. Respondent does not challenge those rulings here.

[6] Respondent has not sought review of this issue.

[7] All references here are to Part V of the revised opinion of the Court of Appeals, 463 F. 2d, at 352, which superseded Part V of the court’s initial opinion with respect to the order and nature of proof.

[8] Tr. of Oral Arg. 11.

[9] Brief for Petitioner 40.

[10] The trial court did not discuss respondent’s § 703 (a) (1) claim in its opinion and denied requests for discovery of statistical materials which may have been relevant to that claim.

[11] The respondent initially charged petitioner in his complaint filed April 15, 1968, with discrimination because of his “involvement in civil rights activities.” App. 8. In his amended complaint, filed March 20, 1969, plaintiff broadened his charge to include denial of employment because of race in violation of § 703 (a) (1). App. 27.

[12] See original opinion of the majority of the panel which heard the case, 463 F. 2d, at 338; the concurring opinion of Judge Lay, id., at 344; the first opinion of Judge Johnsen, dissenting in part, id., at 346; the revised opinion of the majority, id., at 352; and the supplemental dissent of Judge Johnsen, id., at 353. A petition for rehearing en banc was denied by an evenly divided Court of Appeals.

[13] The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.

[14] We note that the issue of what may properly be used to test qualifications for employment is not present in this case. Where employers have instituted employment tests and qualifications with an exclusionary effect on minority applicants, such requirements must be “shown to bear a demonstrable relationship to successful performance of the jobs” for which they were used, Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971). Castro v. Beecher, 459 F. 2d 725 (CA1 1972); Chance v. Board of Examiners, 458 F. 2d 1167 (CA2 1972).

[15] Tr. of Oral Arg. 3: 463 F. 2d, at 353.

[16] The trial judge noted that no personal injury or property damage resulted from the “stall-in” due “solely to the fact that law enforcement officials had obtained notice in advance of plaintiff’s [here respondent's] demonstration and were at the scene to remove plaintiff’s car from the highway.” 318 F. Supp. 846, 851.

[17] The unlawful activity in this case was directed specifically against petitioner. We need not consider or decide here whether, or under what circumstances, unlawful activity not directed against the particular employer may be a legitimate justification for refusing to hire.

[18] We are aware that some of the above factors were, indeed, considered by the District Judge in finding under § 704 (a), that “defendant’s [here petitioner's] reasons for refusing to rehire the plaintiff were motivated solely and simply by the plaintiff’s participation in the `stall in’ and `lock in’ demonstrations.” 318 F. Supp., at 850. We do not intimate that this finding must be overturned after consideration on remand of respondent’s § 703 (a) (1) claim. We do, however, insist that respondent under § 703 (a) (1) must be given a full and fair opportunity to demonstrate by competent evidence that whatever the stated reasons for his rejection, the decision was in reality racially premised.

[19] The District Court may, for example, determine, after reasonable discovery that “the [racial] composition of defendant’s labor force is itself reflective of restrictive or exclusionary practices.” See Blumrosen, supra, at 92. We caution that such general determinations, while helpful, may not be in and of themselves controlling as to an individualized hiring decision, particularly in the presence of an otherwise justifiable reason for refusing to rehire. See generally United States v. Bethlehem Steel Corp., 312 F. Supp. 977, 992 (WDNY 1970), order modified, 446 F. 2d 652 (CA2 1971). Blumrosen, supra, n. 19, at 93.

[20] See 463 F. 2d, at 352.

[21] It is, of course, a predictive evaluation, resistant to empirical proof, whether “an applicant’s past participation in unlawful conduct directed at his prospective employer might indicate the applicant’s lack of a responsible attitude toward performing work for that employer.” 463 F. 2d, at 353. But in this case, given the seriousness and harmful potential of respondent’s participation in the “stall-in” and the accompanying inconvenience to other employees, it cannot be said that petitioner’s refusal to employ lacked a rational and neutral business justification. As the Court has noted elsewhere:

“Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust.” Garner v. Los Angeles Board, 341 U. S. 716, 720 (1951).

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California Pregnancy Discrimination Case Law

March 27th, 2010

450 U.S. 248 (1981)

TEXAS DEPARTMENT OF COMMUNITY AFFAIRS

v.

BURDINE.

No. 79-1764.

Supreme Court of United States.

Argued December 9, 1980.

Decided March 4, 1981.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

Hubert L. Gill argued the cause and filed a brief for respondent.[*]

JUSTICE POWELL delivered the opinion of the Court.

This case requires us to address again the nature of the evidentiary burden placed upon the defendant in an employment 250 discrimination suit brought under Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. The narrow question presented is whether, after the plaintiff has proved a prima facie case of discriminatory treatment, the burden shifts to the defendant to persuade the court by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the challenged employment action existed.

I

Petitioner, the Texas Department of Community Affairs (TDCA), hired respondent, a female, in January 1972, for the position of accounting clerk in the Public Service Careers Division (PSC). PSC provided training and employment opportunities in the public sector for unskilled workers. When hired, respondent possessed several years’ experience in employment training. She was promoted to Field Services Coordinator in July 1972. Her supervisor resigned in November of that year, and respondent was assigned additional duties. Although she applied for the supervisor’s position of Project Director, the position remained vacant for six months.

PSC was funded completely by the United States Department of Labor. The Department was seriously concerned about inefficiencies at PSC.[1] In February 1973, the Department notified the Executive Director of TDCA, B. R. Fuller, that it would terminate PSC the following month. TDCA officials, assisted by respondent, persuaded the Department to continue funding the program, conditioned upon PSC’s reforming its operations. Among the agreed conditions were the appointment of a permanent Project Director and a complete reorganization of the PSC staff.[2]

After consulting with personnel within TDCA, Fuller hired 251 a male from another division of the agency as Project Director. In reducing the PSC staff, he fired respondent along with two other employees, and retained another male, Walz, as the only professional employee in the division. It is undisputed that respondent had maintained her application for the position of Project Director and had requested to remain with TDCA. Respondent soon was rehired by TDCA and assigned to another division of the agency. She received the exact salary paid to the Project Director at PSC, and the subsequent promotions she has received have kept her salary and responsibility commensurate with what she would have received had she been appointed Project Director.

Respondent filed this suit in the United States District Court for the Western District of Texas. She alleged that the failure to promote and the subsequent decision to terminate her had been predicated on gender discrimination in violation of Title VII. After a bench trial, the District Court held that neither decision was based on gender discrimination. The court relied on the testimony of Fuller that the employment decisions necessitated by the commands of the Department of Labor were based on consultation among trusted advisers and a nondiscriminatory evaluation of the relative qualifications of the individuals involved. He testified that the three individuals terminated did not work well together, and that TDCA thought that eliminating this problem would improve PSC’s efficiency. The court accepted this explanation as rational and, in effect, found no evidence that the decisions not to promote and to terminate respondent were prompted by gender discrimination.

The Court of Appeals for the Fifth Circuit reversed in part. 608 F. 2d 563 (1979). The court held that the District Court’s “implicit evidentiary finding” that the male hired as Project Director was better qualified for that position than respondent was not clearly erroneous. Accordingly, the court affirmed the District Court’s finding that respondent was not discriminated against when she was not promoted. The 252 Court of Appeals, however, reversed the District Court’s finding that Fuller’s testimony sufficiently had rebutted respondent’s prima facie case of gender discrimination in the decision to terminate her employment at PSC. The court reaffirmed its previously announced views that the defendant in a Title VII case bears the burden of proving by a preponderance of the evidence the existence of legitimate nondiscriminatory reasons for the employment action and that the defendant also must prove by objective evidence that those hired or promoted were better qualified than the plaintiff. The court found that Fuller’s testimony did not carry either of these evidentiary burdens. It, therefore, reversed the judgment of the District Court and remanded the case for computation of backpay.[3] Because the decision of the Court of Appeals as to the burden of proof borne by the defendant conflicts with interpretations of our precedents adopted by other Courts of Appeals,[4] we granted certiorari. 447 U. S. 920 (1980). We now vacate the Fifth Circuit’s decision and remand for application of the correct standard.

II

In McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment.[5] First, the plaintiff has the burden of proving by 253 the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id., at 802. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804.

The nature of the burden that shifts to the defendant should be understood in light of the plaintiff’s ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U. S. 24, 25, n. 2 (1978); id., at 29 (STEVENS, J., dissenting). See generally 9 J. Wigmore, Evidence § 2489 (3d ed. 1940) (the burden of persuasion “never shifts”). The McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question.

The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a proponderence of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.[6] The prima facie case serves an important 254 function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection. See Teamsters v. United States, 431 U. S. 324, 358, and n. 44 (1977). As the Court explained in Furnco Construction Corp. v. Waters, 438 U. S. 567, 577 (1978), the prima facie case “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff’s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.[7]

The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See Sweeney, supra, at 25. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.[8] 255 To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection.[9] The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted,[10] and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff’s prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the 256 plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant’s evidence should be evaluated by the extent to which it fulfills these functions.

The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U. S., at 804-805.

III

In reversing the judgment of the District Court that the discharge of respondent from PSC was unrelated to her sex, the Court of Appeals adhered to two rules it had developed to elaborate the defendant’s burden of proof. First, the defendant must prove by a preponderence of the evidence that legitimate, nondiscriminatory reasons for the discharge existed. 608 F. 2d, at 567. See Turner v. Texas Instruments, Inc., 555 F. 2d 1251, 1255 (CA5 1977). Second, to satisfy this burden, the defendant “must prove that those he hired . . . were somehow better qualified than was plaintiff; in other words, comparative evidence is needed.” 608 F. 2d, at 567 (emphasis in original). See East v. Romine, Inc., 518 F. 2d 332, 339-340 (CA5 1975).

A

The Court of Appeals has misconstrued the nature of the burden that McDonnell Douglas and its progeny place on the defendant. See Part II, supra. We stated in Sweeney that “the employer’s burden is satisfied if he simply `explains what he has done’ or `produc[es] evidence of legitimate nondiscriminatory reasons.’” 439 U. S., at 25, n. 2, quoting id., at 28,29 (STEVENS, J., dissenting). It is plain that the Court 257 of Appeals required much more: it placed on the defendant the burden of persuading the court that it had convincing, objective reasons for preferring the chosen applicant above the plaintiff.[11]

The Court of Appeals distinguished Sweeney on the ground that the case held only that the defendant did not have the burden of proving the absence of discriminatory intent. But this distinction slights the rationale of Sweeney and of our other cases. We have stated consistently that the employee’s prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus. The Court of Appeals would require the defendant to introduce evidence which, in the absence of any evidence of pretext, would persuade the trier of fact that the employment action was lawful. This exceeds what properly can be demanded to satisfy a burden of production.

The court placed the burden of persuasion on the defendant apparently because it feared that “[i]f an employer need 258 only articulate—not prove—a legitimate, nondiscriminatory reason for his action, he may compose fictitious, but legitimate, reasons for his actions.” Turner v. Texas Instruments, Inc., supra, at 1255 (emphasis in original). We do not believe, however, that limiting the defendant’s evidentiary obligation to a burden of production will unduly hinder the plaintiff. First, as noted above, the defendant’s explanation of its legitimate reasons must be clear and reasonably specific. Supra, at 255. See Loeb v. Textron, Inc., 600 F. 2d 1003, 1011-1012, n. 5 (CA1 1979). This obligation arises both from the necessity of rebutting the inference of discrimination arising from the prima facie case and from the requirement that the plaintiff be afforded “a full and fair opportunity” to demonstrate pretext. Second, although the defendant does not bear a formal burden of persuasion, the defendant nevertheless retains an incentive to persuade the trier of fact that the employment decision was lawful. Thus, the defendant normally will attempt to prove the factual basis for its explanation. Third, the liberal discovery rules applicable to any civil suit in federal court are supplemented in a Title VII suit by the plaintiff’s access to the Equal Employment Opportunity Commission’s investigatory files concerning her complaint. See EEOC v. Associated Dry Goods Corp., 449 U. S. 590 (1981). Given these factors, we are unpersuaded that the plaintiff will find it particularly difficult to prove that a proffered explanation lacking a factual basis is a pretext. We remain confident that the McDonnell Douglas framework permits the plaintiff meriting relief to demonstrate intentional discrimination.

B

The Court of Appeals also erred in requiring the defendant to prove by objective evidence that the person hired or promoted was more qualified than the plaintiff. McDonnell Douglas teaches that it is the plaintiff’s task to demonstrate that similarly situated employees were not treated equally. 411 U. S., at 804. The Court of Appeals’ rule would require 259 the employer to show that the plaintiff’s objective qualifications were inferior to those of the person selected. If it cannot, a court would, in effect, conclude that it has discriminated.

The court’s procedural rule harbors a substantive error. Title VII prohibits all discrimination in employment based upon race, sex, and national origin. “The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and . . . neutral employment and personnel decisions.” McDonnell Douglas, supra, at 801. Title VII, however, does not demand that an employer give preferential treatment to minorities or women. 42 U. S. C. § 2000e-2 (j). See Steel-workers v. Weber, 443 U. S. 193, 205-206 (1979). The statute was not intended to “diminish traditional management prerogatives.” Id., at 207. It does not require the employer to restructure his employment practices to maximize the number of minorities and women hired. Furnco Construction Corp. v. Waters, 438 U. S. 567, 577-578 (1978).

The views of the Court of Appeals can be read, we think, as requiring the employer to hire the minority or female applicant whenever that person’s objective qualifications were equal to those of a white male applicant. But Title VII does not obligate an employer to accord this preference. Rather, the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. 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. Loeb v. Textron, Inc., supra, at 1012, n. 6; see Lieberman v. Gant, 630 F. 2d 60, 65 (CA2 1980).

IV

In summary, the Court of Appeals erred by requiring the defendant to prove by a preponderance of the evidence the 260 existence of nondiscriminatory reasons for terminating the respondent and that the person retained in her stead had superior objective qualifications for the position.[12] When the plaintiff has proved a prima facie case of discrimination, the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[*] Robert E. Williams and Douglas S. McDowell filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.

[1] Among the problems identified were overstaffing, lack of fiscal control, poor bookkeeping, lack of communication among PSC staff, and the lack of a full-time Project Director. Letter of March 20, 1973, from Charles Johnson to B. R. Fuller, reprinted in App. 38-40.

[2] See id., at 39.

[3] The Court of Appeals also vacated the District Court’s judgment that petitioner did not violate Title VII’s equal pay provision, 42 U. S. C. § 2000e-2 (h), but that decision is not challenged here.

[4] See, e. g., Lieberman v. Gant, 630 F. 2d 60 (CA2 1980); Jackson v. U. S. Steel Corp., 624 F. 2d 436 (CA3 1980); Ambush v. Montgomery County Government, 22 FEP Cases 1101 (CA4 1980); Loeb v. Textron, Inc., 600 F. 2d 1003 (CA1 1979). But see Vaughn v. Westinghouse Elec. Corp., 620 F. 2d 655 (CA8 1980), cert. pending, No. 80-276.

[5] We have recognized that the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes. See McDonnell Douglas, 411 U. S., at 802, n. 14; Teamsters v. United States, 431 U. S. 324, 335-336, and n. 15 (1977).

[6] In McDonnell Douglas, supra, we described an appropriate model for a prima facie case of racial discrimination. The plaintiff must show:

“(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 411 U. S., at 802.

We added, however, that this standard is not inflexible, as “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect in differing factual situations.” Id., at 802, n. 13.

In the instant case, it is not seriously contested that respondent has proved a prima facie case. She showed that she was a qualified woman who sought an available position, but the position was left open for several months before she finally was rejected in favor of a male, Walz, who had been under her supervision.

[7] The phrase “prima facie case” not only may denote the establishment of a legally mandatory, rebuttable presumption, but also may be used by courts to describe the plaintiff’s burden of producing enough evidence to permit the trier of fact to infer the fact at issue. 9 J. Wigmore, Evidence § 2494 (3d ed. 1940). McDonnell Douglas should have made it apparent that in the Title VII context we use “prima facie case” in the former sense.

[8] This evidentiary relationship between the presumption created by a prima facie case and the consequential burden of production placed on the defendant is a traditional feature of the common law. “The word `presumption’ properly used refers only to a device for allocating the production burden.” F. James & G. Hazard, Civil Procedure § 7.9, p. 255 (2d ed. 1977) (footnote omitted). See Fed. Rule Evid. 301. See generally 9 J. Wigmore, Evidence § 2491 (3d ed. 1940). Cf. J. Maguire, Evidence, Common Sense and Common Law 185-186 (1947). Usually, assessing the burden of production helps the judge determine whether the litigants have created an issue of fact to be decided by the jury. In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.

[9] An articulation not admitted into evidence will not suffice. Thus, the defendant cannot meet its burden merely through an answer to the complaint or by argument of counsel.

[10] See generally J. Thayer, Preliminary Treatise on Evidence 346 (1898). In saying that the presumption drops from the case, we do not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case. A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff’s initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextual. Indeed, there may be some cases where the plaintiff’s initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant’s explanation.

[11] The court reviewed the defendant’s evidence and explained its deficiency:

“Defendant failed to introduce comparative factual data concerning Burdine and Walz. Fuller merely testified that he discharged and retained personnel in the spring shakeup at TDCA primarily on the recommendations of subordinates and that he considered Walz qualified for the position he was retained to do. Fuller failed to specify any objective criteria on which he based the decision to discharge Burdine and retain Walz. He stated only that the action was in the best interest of the program and that there had been some friction within the department that might be alleviated by Burdine’s discharge. Nothing in the record indicates whether he examined Walz’ ability to work well with others. This court in East found such unsubstantiated assertions of `qualification’ and `prior work record’ insufficient absent data that will allow a true comparison of the individuals hired and rejected.” 608 F. 2d, at 568.

[12] Because the Court of Appeals applied the wrong legal standard to the evidence, we have no occasion to decide whether it erred in not reviewing the District Court’s finding of no intentional discrimination under the “clearly erroneous” standard of Federal Rule of Civil Procedure 52 (a). Addressing this issue in this case would be inappropriate because the District Court made no findings on the intermediate questions posed by McDonnell Douglas.

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California Pregnancy Discrimination Networked Blog

March 13th, 2010

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Sexual Harassment Law Firm — Sexual Harassment Training

January 5th, 2010

Preventing Sexual Harassment

Employers are required by law to be committed to eliminating Sexual Harassment from the workplace.

The best way an employer can prevent Sexual Harassment is to have a Sexual Harassment reporting system that the employees can use with ease and to act immediately upon the information, once it is received.

Employers should also do their best to train and educate all of their employees about Sexual Harassment.

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Sexual Harassment Lawyer — Employer Obligation Guidelines

January 5th, 2010

Employer Obligations

All employers have a legal obligation to prevent sexual harassment.

* Employers must take all reasonable steps to prevent discrimination and harassment from occurring.

* Employers must help ensure a workplace free from sexual harassment by posting in the workplace a poster made available by the Department of Fair Employment and Housing.

* Employers must help ensure a workplace free from sexual harassment by distributing to employees information on sexual harassment. An employer may either distribute a brochure that may be obtained from the Department of Fair Employment and Housing or develop an equivalent document, which must meet the following requirements:

o The illegality of sexual harassment

o The definition of sexual harassment under state and federal laws

o A description of sexual harassment, utilizing examples

o The internal complaint process of the employer available to the employee

o The legal remedies and complaint process available through the Department and the Fair Employment and Housing Commission

o Directions on how to contact the Department and the Fair Employment and Housing Commission

o The protection against retaliation for opposing the practices prohibited by law or for filing a complaint with, or otherwise participating in investigative activities conducted by, the Department or the Commission

* # Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position. There after, covered employers must provide sexual harassment training and education to each supervisory employee once every two years.

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Typical Sexual Harassment Cases

January 4th, 2010

Typical Sexual Harassment Cases

There are three kinds of Sexual Harassment Cases that typically get litigated as follows:

* When an employer fires, refuses to employ an individual or in some way refuses to give them a benefit or something of value at work because the person refuses to engage in some or of sexual conduct. These cases can also have a “Retaliation” element, which occurs when an employer in some manner punishes an employee for refusing to engage in some sort of sexual conduct, which is also illegal .

* When an employee suffers so much Sexual Harassment or “retaliation” and is forced to resign instead of continuing to suffer. When an employer’s conduct is so bad that the employee is forced to quit. When this occurs, the employee can often obtain the same legal results the employee would have obtained had she been fired.

* When an employee suffers Sexual Harassment that is either “severe” or ” pervasive,” meaning the Sexual Harassment carried on for a long time or was incredibly offensive (or both).

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Los Angeles Sexual Harassment Attorneys

January 4th, 2010

Employer Liability

All employers are prohibited from harassing employees in the workplace. If harassment occurs, an employer may be liable even if management was not aware of the harassment.

An employer might avoid liability if the harasser is a non-management employee, the employer had no knowledge of the harassment, and there was a program to prevent harassment. If the harasser is a non-management employee, the employer may avoid liability if the employer takes immediate and appropriate corrective action to stop the harassment once the employer learns about it. Employers are strictly liable for harassment by their supervisors or agents. The harasser can be held personally liable for damages.

Additionally, Government Code section 12940, subdivision (k), requires an entity to take “all reasonable steps to prevent harassment from occurring.” If an employer has failed to take such preventative measures, that employer can be held liable for the harassment.

A victim may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.

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General Facts about Sexual Harassment

January 3rd, 2010

Facts About Sexual Harassment

Sexual harassment is a form of sex discrimination that violates the Civil Rights Act of 1964 and the Fair Employment and Housing Act.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

  • The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
  • The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
  • The harasser’s conduct must be unwelcome.

It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.

When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

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Los Angeles Employment Lawyers and Attorneys Resource: Oates v. Discovery Zone

June 7th, 2008

IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

No. 96-1205

ARTHUR OATES,
Plaintiff-Appellant,

v.

DISCOVERY ZONE,
Defendant-Appellee.

On Appeal from the United States District Court
for the Northern District of Illinois
(Leinenweber, J.)

BRIEF OF THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION AS AMICUS CURIAE
IN SUPPORT OF PLAINTIFF-APPELLANT

C. GREGORY STEWART
General Counsel

GWENDOLYN YOUNG REAMS
Associate General Counsel

CAROLYN L. WHEELER
Assistant General Counsel

PAULA R. BRUNER
Attorney

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
1801 L Street, N.W. Rm. 7044
Washington, D.C. 20507
(202) 663-4731

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . .ii

STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Nature of the Case. . . . . . . . . . . . . . . . . . . . . . . 2
2. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . 2
3. The District Court's Oral Ruling. . . . . . . . . . . . . . . . 5

STATEMENT OF THE STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . 6

ARGUMENT:

THE DISTRICT COURT MADE LEGAL ERRORS IN GRANTING SUMMARY
JUDGMENT FOR DISCOVERY ZONE. . . . . . . . . . . . . . . . . . . . . . . 6

A. The District Court Erred In Dismissing The Claim Of
Racial Harassment . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. The District Court Erred In Granting Summary Judgment
On The Claim Of Discriminatory Discharge. . . . . . . . . . . . . .14

C. The District Court Erred In Granting Summary Judgment
On The Retaliation Claim. . . . . . . . . . . . . . . . . . . . . .20

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

ATTACHMENTS

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES

Adler v. Madigan,
939 F.2d 476 (7th Cir. 1991). . . . . . . . . . . . . . . . . . . .14

Alexander v. Gerhardt Enter., Inc.,
40 F.3d 187 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . .20

Anderson v. Baxter Healthcare Corp.,
13 F.3d 1120 (7th Cir. 1994). . . . . . . . . . . . . . . . . .14, 18

Anderson v. Local 201 Reinforcing Rodmen,
886 F. Supp. 94 (D.D.C. 1995) . . . . . . . . . . . . . . . . . . . 9

Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . .
6

Bailey v. Binyon,
583 F. Supp. 923 (N.D. Ill. 1984) . . . . . . . . . . . . . . . . .11

Bell v. City of Milwaukee,
746 F.2d 1205 (7th Cir. 1984) . . . . . . . . . . . . . . . . . . . 9

Bennett v. Corroon & Black Corp.,
845 F.2d 104 (5th Cir. 1988),
cert. denied, 489 U.S. 1020 (1989). . . . . . . . . . . . . . . . .11

Brewer v. Quaker State Oil Ref. Corp.,
72 F.3d 326 (3d Cir. 1995). . . . . . . . . . . . . . . . . . . . .19

Brooms v. Regal Tube Co.,
881 F.2d 412 (7th Cir. 1989). . . . . . . . . . . . . . . . . . . . 7

Brown v. East Miss. Elec. Power Ass'n,
989 F.2d 858 (5th Cir. 1993). . . . . . . . . . . . . . . . . . . .15

Burton v. Crowell Pub. Co.,
82 F.2d 154 (2d Cir. 1936). . . . . . . . . . . . . . . . . . . . .11

Chrysler Motors Corp. v. International Union, Allied Indus.
Workers of Am., 959 F.2d 685 (7th Cir.),
cert. denied, 506 U.S. 908 (1992) . . . . . . . . . . . . . . . . .13

Compston v. Borden, Inc.,
424 F. Supp. 157 (S.D. Ohio 1976) . . . . . . . . . . . . . . . . .12

Cox v. NFL,
889 F. Supp. 118 (S.D.N.Y. 1995). . . . . . . . . . . . . . . . . . 9

Daniels v. Essex Group, Inc.,
937 F.2d 1264 (7th Cir. 1991) . . . . . . . . . . . . . . . . . 7, 10

Dey v. Colt Constr. & Dev. Co.,
28 F.3d 1446 (7th Cir. 1994). . . . . . . . . . . . . . . . . . . . 6

Doe v. University of Mich.,
721 F. Supp. 852 (E.D. Mich. 1989). . . . . . . . . . . . . . . 9, 13

EEOC v. Alton Packaging Corp.,
901 F.2d 920 (11th Cir. 1990) . . . . . . . . . . . . . . . . . . .15

Faragher v. City of Boca Raton,
76 F.3d 1155 (11th Cir. 1996) . . . . . . . . . . . . . . . . . . .12

Harris v. Forklift Sys., Inc.,
114 S. Ct. 367 (1993) . . . . . . . . . . . . . . . . . . . . . 7, 12

Harris v. School Annual Publishing Co.,
466 So.2d 963 (Ala. 1985) . . . . . . . . . . . . . . . . . . . . . 9

Harris v. State,
209 Miss. 141, 46 So.2d 91 (1950) . . . . . . . . . . . . . . . . . 9

Jeffries v. Metro-Mark, Inc.,
45 F.3d 258 (8th Cir.),
cert. denied, 116 S. Ct. 102 (1995) . . . . . . . . . . . . . . . . 8

King v. Board of Regents of Univ. of Wis. Sys.,
898 F.2d 533 (7th Cir. 1990). . . . . . . . . . . . . . . . . . . .11

Knox v. First Nat. Bank of Chicago,
909 F. Supp. 569 (N.D. Ill. 1995) . . . . . . . . . . . . . . . . .15

Landon v. Northwest Airlines, Inc.,
72 F.3d 620 (8th Cir. 1995) . . . . . . . . . . . . . . . . . . . .17

Legrand v. Trustees of Univ. of Ark. at Pine Bluff,
821 F.2d 478 (8th Cir. 1987), cert. denied,
485 U.S. 1034 (1988). . . . . . . . . . . . . . . . . . . . . . . .17

Lipsett v. University of Puerto Rico,
864 F.2d 881 (1st Cir. 1988). . . . . . . . . . . . . . . . . . . .19

McCarthy v. Kempfer Life Ins. Cos.,
924 F.2d 683 (7th Cir. 1991). . . . . . . . . . . . . . . . . . . .15

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . 5, 14, 17

Meritor Sav. Bank v. Vinson,
477 U.S. 57 (1986). . . . . . . . . . . . . . . . . . . . . 7, 11, 19

Morgan v. McDonough,
540 F.2d 527 (1st Cir. 1976),
cert. denied, 429 U.S. 1042 (1977). . . . . . . . . . . . . . . . . 9

Patterson v. McLean Credit Union,
491 U.S. 164 (1989) . . . . . . . . . . . . . . . . . . . . . . . . .
6

Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) . . . . . . . . . . . . . . . . . . . . . . . .14

Randle v. LaSalle Telecommun., Inc.,
876 F.2d 563 (7th Cir. 1989). . . . . . . . . . . . . . . . . . . .14

Rodgers v. Western-Southern Life Ins. Co.,
12 F.3d 668 (7th Cir. 1993) . . . . . . . . . . . . . . . . 7, 10, 11

Rogers v. EEOC,
454 F.2d 234 (5th Cir. 1971),
cert. denied, 406 U.S. 957 (1972) . . . . . . . . . . . . . . . . . 7

Rush v. McDonald's Corp.,
966 F.2d 1104 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . .17

Shager v. Upjohn Co.,
913 F.2d 398 (7th Cir. 1990). . . . . . . . . . . . . . . . . . . .18

St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502 (1993) . . . . . . . . . . . . . . . . . . . . . . . .19

State v. Blanks,
479 N.W.2d 601 (Iowa Ct. App. 1992) . . . . . . . . . . . . . . . .11

Talley v. Bravo Pittino Restaurant,
61 F.3d 1241 (6th Cir. 1995). . . . . . . . . . . . . . . . . . . .15

Toletino v. Friedman,
46 F.3d 645 (7th Cir. 1995),
cert. denied, 115 S. Ct. 2613 (1995). . . . . . . . . . . . . . . . 6

Troupe v. May Dep't Stores,
20 F.3d 734 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . 5, 18

Williams v. Williams Elecs., Inc.,
856 F.2d 920 (7th Cir. 1988). . . . . . . . . . . . . . . . . . . .17

CONSTITUTIONAL AMENDMENT, STATUTES, AND OTHER LEGISLATIVE
AUTHORITY

U.S. CONST., Art. I § 2 cl. 3. . . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. § 2000e. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 C.F.R. § 1604.11. . . . . . . . . . . . . . . . . . . . . . . . . . . 7

29 C.F.R. § 1604.11(a)(3). . . . . . . . . . . . . . . . . . . . . . . . 7

29 C.F.R. § 1604.11(d) . . . . . . . . . . . . . . . . . . . . . . . . .13

OTHER AUTHORITY

B. SCHLEI & P. GROSSMAN, EMPLOYMENT DISCRIMINATION LAW
(Five-Year Cum. Supp. 1989) . . . . . . . . . . . . . . . . . . . .12

Courtland Milloy, The Blinding Racism of His Comment, Wash. Post,
Mar. 6, 1996 at C1 . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

George Lawrence, An Oration on the Abolition of the Slave Trade
(N.Y. 1813). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8

Herbert Alptheker, Vol. I A DOCUMENTARY HISTORY OF THE NEGRO PEOPLE IN THE
UNITED STATES 58 (1951). . . . . . . . . . . . . . . . . . . . . . . . . 8

Jennifer M. Russell, On Being a Gorilla in Your Midst, or the Life
of One Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. L. Rev.
259 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 13

Larry L. King, CONFESSIONS OF A WHITE RACIST (1969). . . . . . . . . .8, 9

Phyllis A. Katz, TOWARDS THE ELIMINATION OF RACISM (1976). . . . . . . .13

Thomas Kochman, BLACK AND WHITE STYLES IN CONFLICT (1981). . . . . . . .13

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is the agency charged
by Congress with
the interpretation, administration, and enforcement of Title VII of
the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and other federal
statutes prohibiting
employment discrimination. In this case, the district court granted
summary judgment on
plaintiff's claims of discriminatory discharge and retaliation in
violation of Title VII, despite
conflicting evidence on the reason for his discharge. The court also
dismissed his racial
harassment claim without addressing its merits in apparent disregard
of the independent nature a
racial harassment claim under Title VII. The court's dispositions
raise an important issue
regarding how derogatory and racially offensive slurs and conduct,
beyond the use of the
pejorative term "nigger," should be evaluated in the context of
harassment and discharge claims.
Because proper resolution of the claims in this case is important to
effective enforcement of Title
VII, the Commission offers its views.

JURISDICTIONAL STATEMENT

The Commission adopts the appellant's jurisdictional statement as
accurate and complete.

STATEMENT OF THE ISSUES

1. Whether there was sufficient evidence of racial harassment to
survive summary judgment,
where plaintiff, the only black employee in his office, complained to
his supervisor that a picture
of gorillas with his name written on it was racially offensive, and
his supervisor laughed at his
complaint, refused to take the picture down, and allowed it to remain
on display for a week after
his complaint.
2. Whether the termination of the company's only black employee four
days after he complained
about a racially offensive poster to his supervisor raised a genuine
issue of fact as to his claims
of discriminatory discharge and retaliation, where record evidence not
only shows that his
supervisor laughed at his complaint, refused to take the poster down,
and participated in the
termination decision, but also that plaintiff's performance may not
have been the true reason for
his discharge.

STATEMENT OF THE CASE

1. Nature of the Case
This is an appeal from the district court's order granting
summary judgment for Discovery
Zone on the discriminatory discharge and retaliation claims and
dismissing the case. R. 53.

2. Statement of the Facts<1>
Arthur Oates, a technical support representative, was responsible
for providing telephonic
support to Discovery Zone FunCenter stores regarding their computer
systems. He was the only
African-American employee at Discovery Zone's office in Rosemont,
Illinois. His immediate
supervisor was Bonnie Christenson. On April 8, 1994, Mark McDermott
became Christenson's
supervisor and assumed responsibility for overseeing the Rosemont
office. The week of April 11,
McDermott met with Christenson and she informed him that she had
contemplated terminating
Oates. Pl. Ex. C, McDermott Dep. at 21, 24, 32.<2>
On Friday, April 15, 1994, Oates met with McDermott at the
Chicago office. Pl. Ex. A,
Oates Dep. at 84; Pl. Ex. C, McDermott Dep. at 25. During this
session, McDermott praised his
job performance. Pl. Ex. A, Oates Dep. at 85. McDermott testified
that after their meeting he
was "impressed" with Oates and considered him "intelligent, very
cordial," with "a lot of
potential." Pl. Ex. C, McDermott Dep. at 30.
In early April, Christenson posted a picture of five gorillas on
a bulletin board located in
the main area of the office. Pl. Ex. A, Oates Dep. at 114. On April
18, Oates saw that his name
had been written above one of the gorillas on the poster. Plaintiff
immediately informed
Christenson that, as an African American, he was offended by the
analogy drawn between him and
the gorilla, and that he considered the inscribed poster to be
racially offensive. Pl. Ex. A, Oates
Dep. at 115. Christenson laughed, id. at 223, and told Oates that he
"was being oversensitive"
and that the poster was "no big deal." Id. at 115. Oates testified
that he felt "embarrassed,
ridiculed, [and] humiliated" by Christenson. Id. at 223. On April 19,
he sent a letter complaining
about the incident via interoffice mail to Mary Mierkiewicz in Human
Resources. Discovery Zone
had no company policy or procedures for redressing harassment
grievances during Oates' tenure.
Pl. Ex. B, Christenson Dep. at 161; Pl. Ex. D, Mierkiewicz Dep. at 17;
Pl. Ex. E, Dublin Dep.
at 64.
On April 21, Oates left a message on Christenson's voice mail
informing her that he was
sick. Discovery Zones' phones went unanswered and Christenson told
McDermott it was because
Oates did not come to work. Pl. Ex. B, Christenson Dep. at 48, 148;
Pl Ex. C, McDermott Dep.
at 38. The next day, Christenson fired Oates, telling him that his
job had been eliminated. Pl.
Ex. A, Oates Dep. at 59. At deposition, McDermott testified, however,
that Oates was terminated
because he failed to follow proper call-in procedures on April 21.
Pl. Ex. C, McDermott Dep.
at 38, 75-76, 83, 85. He also said that, because he had known Oates
for only "a couple of
weeks," he "had to agree with Bonnie [Christenson] that" Oates should
be fired. Id. at 76; see
also id. at 84 (indicating that both McDermott and Christenson made
termination decision).
At deposition, Christenson testified that while she fired Oates,
it was not her decision. Pl.
Ex. B, Christenson Dep. at 23. She claimed Oates was "very
intelligent" and knew software and
hardware very well. She stated that on "numerous occasions" she told
McDermott she "did not
want to fire" Oates, but had discussed Oates' performance with
McDermott often. Id. at 30.
Christenson also testified that the decision to terminate Oates had
been made before Oates' absence
on April 21,<3> and that the decision was not based on Oates' absence
or failure to follow proper
call-in procedures on that day. Id. at 67-68.
On April 25, Mary Mierkiewicz received by interoffice mail Oates'
letter complaining
about the poster and Christenson's reaction. The gorilla poster was
still hanging on that day. Pl.
Ex. B, Christenson Dep. at 36, 157; Pl. Ex. D, Mierkiewicz Dep. at 38.
Oates filed a timely action in the district court against
Discovery Zone, alleging inter alia
racial harassment and retaliatory discharge in violation of Title VII
and discriminatory discharge
in violation of 42 U.S.C. § 1981. R. 21, Second Amended Complaint.
Discovery Zone moved
for summary judgment on the discharge claims. R. 29.

3. District Court's Oral Ruling <4>
Without addressing the merits of Oates' racial harassment claim,
the district court
concluded that Oates did not prove that his discharge was
discriminatory or retaliatory. Citing to
Troupe v. May Dep't Stores, 20 F.3d 734, 736 (7th Cir. 1994), the
court held that Oates did not
proffer direct evidence of discriminatory intent because Christenson's
reaction to the monkey
poster on which Oates' name was written constituted "stray remarks"
that would not prove Oates'
discharge was discriminatory without reliance on inference or
presumption. In addition, it ruled
that the circumstantial evidence of suspicious timing and ambiguous
comments was insufficient
to create a genuine issue as to whether his supervisor's stray
remarks, rather than his poor
performance, led to his discharge. The court also held that plaintiff
did not prove his
discriminatory discharge claim under McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973),
because he did not establish a prima facie case by showing that he was
performing satisfactorily
or that similarly situated employees outside his protected class were
treated more favorably than
he. Finally, the court held that plaintiff did not make out a prima
facie case of retaliation because
he failed to prove Christenson participated in the termination
decision. The court then decided
that even if Oates had established a prima facie case, he did not
offer any evidence showing that
the proffered poor performance reason for the decision to terminate
him was pretextual.
Accordingly, the district court entered summary judgment for Discovery
Zone and dismissed the
case. R. 47.

STATEMENT OF THE STANDARD OF REVIEW

Review of a district court's decision granting summary judgment
is de novo. Dey v. Colt
Constr. & Dev. Co., 28 F.3d 1446, 1453 (7th Cir. 1994). In
determining whether the moving
party has met its burden, all inferences are to be drawn in favor of
the nonmoving party, Toletino
v. Friedman, 46 F.3d 645, 649 (7th Cir.), cert. denied, 115 S. Ct.
2613 (1995), and any doubts
are to be resolved against the moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255
(1986).
ARGUMENT

THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR
DISCOVERY ZONE

In its motion for summary judgment, Discovery Zone asserted that
even though the
allegations regarding the monkey poster incident were in dispute,
summary judgment was
appropriate on the discriminatory and retaliatory discharge claims
because Oates' termination was
"made by a person wholly unaware of the alleged 'monkey picture'
incident." R. 30, Def. Summ.
J. Mem. at 2. The district court agreed, entered summary judgment on
both claims, and
terminated the case without specifically addressing the harassment
claim. R. 47. The court erred
in dismissing Oates' case because the record reveals material factual
disputes on his claims of
racial harassment, discriminatory discharge, and retaliatory discharge
rendering summary
judgment inappropriate.

A. The District Court Erred In Dismissing the Racial Harassment Claim

Racial harassment is an independent basis for liability under
Title VII. Patterson v.
McLean Credit Union, 491 U.S. 164, 180 (1989). Race-based conduct
that affects the terms,
conditions, and privileges of employment gives rise to a Title VII
claim of racial harassment if it
is so severe or pervasive that it creates a hostile or offensive
working environment. Rodgers v.
Western-Southern Life Ins. Co., 12 F.3d 668, 673 (7th Cir. 1993);
Daniels v. Essex Group Inc.,
937 F.2d 1264, 1270 (7th Cir. 1991). Such harassment can include
racial slurs, epithets and
comments that, by themselves, violate Title VII if they unreasonably
interfere with an individual's
work performance or create an intimidating, hostile, or offensive
working environment. 29
C.F.R. § 1604.11(a)(3) (1995).<5> See also Meritor Sav. Bank v.
Vinson, 477 U.S. 57, 65-67
(1989) (approving Commission guidelines, and noting that "Title VII
affords employees the right
to work in an environment free from discriminatory intimidation,
ridicule, and insult"); Rogers
v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) ("discriminatory verbal
intimidation, ridicule and
insults may be sufficiently severe or pervasive to alter the
conditions of the victim's employment
and create an abusive working environment that violates Title VII"),
cert. denied, 406 U.S. 957
(1972). To determine liability, the court must consider the totality
of circumstances, Harris v.
Forklift Sys., Inc., 114 S. Ct. 367, 371 (1993), and employ both an
objective and a subjective
standard to assess the "'likely effect of a defendant's conduct upon a
reasonable person's ability
to perform his or her work and upon his or her well-being as well as
the actual effect upon the
particular plaintiff bringing the claim.'" Daniels, 937 F.2d at 1270
(quoting Brooms v. Regal
Tube Co., 881 F.2d 412, 419 (7th Cir. 1989).
In this case, there was sufficient evidence of racial harassment
to raise a genuine issue of
fact as to whether Oates was objectively subjected to a racially
hostile working environment
because the display of the monkey poster with his name on it was, by
itself, actionable harassment,
and that harassment was exacerbated by the supervisor's refusal to
take corrective action. To
begin with, the use of primate imagery, such as gorillas, monkeys, and
apes, to refer to African-
Americans is as offensive as calling a black person a "nigger."
Historically, African-Americans have been considered, referred to
and treated like
subhumans or animals and, out of lack of appreciation of their
culture, were regarded as
uncivilized, and intellectually and culturally inferior.<6> In the
perpetuation of this racial prejudice,
African-Americans have been, and often still are,<7> referred to as
"beasts," "gorillas,<8>" "apes," or
"monkeys." See, e.g., Jeffries v. Metro-Mark, Inc., 45 F.3d 258, 260
(8th Cir.) (racial
harassment suit in which multiple incidents included supervisor
calling black plaintiff a
"monkey"), cert. denied, 116 S. Ct. 102 (1995); Bell v. City of
Milwaukee, 746 F.2d 1205 (7th
Cir. 1984) (civil rights suit allowing testimony of police officer
that he thought black people were
"apes"); Morgan v. McDonough, 540 F.2d 527, 530 (1st Cir. 1976) (civil
rights case challenging
school's inaction towards racial incidents including racial chants by
white students such as
"2,4,6,8 assassinate the nigger apes" and their request to play music
over school address system
because "music soothes the savage beasts"), cert. denied, 429 U.S.
1042 (1977); Cox v. NFL, 889
F. Supp. 118, 119 (S.D.N.Y. 1995) (regarding crowds' verbal abuse
using terms like "nigger"
and "monkey" directed at black football player as based on race); Doe
v. University of Mich., 721
F. Supp. 852, 854 (E.D. Mich. 1989) (race discrimination case
protesting fliers placed around
campus that referred to black persons as "saucer lips, porch monkeys,
jigaboo" and display of
KKK uniform in dorm window); Harris v. State, 209 Miss. 141, 147-48,
46 So.2d 91, 93 (1950)
(describing African American defendant as a "big, black gorilla");
CONFESSIONS OF A WHITE
RACIST at 68 (recounting incident where Texas Tech crowd directed
racial exhortations like "kill
that black ape" at a black football player on the opposing team).
The clear purpose or effect of using racist animal slurs to refer
to African Americans is to
demean, offend, humiliate, or ridicule them. See, e.g., Anderson v.
Local 201 Reinforcing
Rodmen, 886 F. Supp. 94, 95 (D.D.C. 1995) (noting that black employee
alleged he was "hurt"
when his white foreman called him a "mule"); Harris v. School Annual
Publishing Co., 466 So.2d
963 (Ala. 1985) (defamation case in which black school teacher
regarded cartoon of monkey eating
a banana beneath which appeared her name and the inscription "out
munching" as a derogatory
reference "'traditionally used to dehumanize, insult, belittle and
degrade persons of [her] race'")<9>.
Accordingly, a jury could fairly construe a poster inscribed with the
name of the company's only
black employee as a deliberate appeal to racial prejudices, invoking
ridicule, inciting racial
oppression, and generating racial hostility, and conclude therefore
that the gorilla picture created
conditions that would reasonably affect the employment atmosphere,
performance and emotional
well-being of a black employee.
A factfinder could also decide that the facts in this case
support a racial harassment claim
because they are similar to facts in other cases in which this Court
has found harassment. This
Court has held that calling an African American employee a "nigger"
sufficiently alters the
conditions of that worker's employment to support a hostile working
environment claim. See,
e.g., Rodgers, 12 F.3d at 673 (finding credible plaintiff's testimony
that racial remarks, including
use of "nigger," significantly impaired his work performance,
contributed to stress that compelled
him to quit his job and harmed his self-esteem).<10> The adverse and
hostile conditions created by
the initial and continued display of the offensive poster inscribed
with Oates' name are so similar
to those created by the slur "nigger" that the poster incident could
also be viewed as sufficiently
severe or pervasive to constitute actionable harassment. Meritor, 477
U.S. at 67 ("discriminatory
intimidation, ridicule, and insult, . . . is sufficiently severe or
pervasive to alter the conditions of
the victim's employment and create an abusive working environment");
accord Burton v. Crowell
Pub. Co., 82 F.2d 154, 156 (2d Cir. 1936) (defamation case in which
mere association of plaintiff
with gorilla lowered him in others' esteem); State v. Blanks, 479
N.W.2d 601, 602 (Iowa Ct.
App. 1992) (acknowledging that prosecutorial reference to movie
"Gorillas in the Mist" in case
involving black male defendant charged with criminally assaulting his
former white girlfriend has
"racial overtones" and by itself is sufficiently demeaning as to
constitute reversible error).
Further, because the gorilla picture is as offensive as the slur
"nigger," and "nigger" need
only be said once to alter sufficiently the conditions of an African
American employee's work
environment to be actionable harassment, see, e.g., Rodgers, 12 F.3d
at 675 (quoting Meritor,
477 U.S. at 67) ("perhaps no single act can more quickly 'alter the
conditions of employment and
create an abusive working environment,' than the use of an
unambiguously racial epithet such as
'nigger'"); Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill. 1984)
("use of the word 'nigger'
automatically separates the person addressed from every non-black
person; this is discrimination
per se"), the single incident of the display of the offensive poster
is sufficiently severe to support
a hostile environment claim. See, e.g., King v. Board of Regents of
Univ. of Wis. Sys., 898 F.2d
533, 537 (7th Cir. 1990) (stating that even a "single act" of
harassment can be sufficiently severe
to "'alter the conditions of employment and create an abusive working
environment"); Bennett v.
Corroon & Black Corp., 845 F.2d 104, 105-06 (5th Cir. 1988) (holding
that the one-time posting
of a cartoon depicting plaintiff in an obscene fashion was sufficient
to support a claim of hostile
environment discrimination), cert. denied, 489 U.S. 1020 (1989); B.
SCHLEI & P. GROSSMAN,
EMPLOYMENT DISCRIMINATION LAW 90 (Five-Year Cum. Supp. 1989) ("Evidence of a
single egregious racial slur [may be] sufficient to present a triable
issue of fact[.]").
Next, Oates' complaint to his supervisor about the poster with
his name on it and assertions
of mental distress and humiliation caused by the poster's display are
sufficient subjective evidence
that the display of the monkey poster altered the conditions of Oates'
employment and created an
abusive environment. Harris, 114 S. Ct. at 370 (for workplace
environment to be sufficiently
hostile or abusive, victim must subjectively perceive conditions of
employment as abusive);
Faragher v. City of Boca Raton, 76 F.3d 1155, 1161 (11th Cir. 1996)
(subjective prong of the
harassment standard, i.e. the victim's perception, ensures that the
conditions altered the work
environment).
Finally, even if the display of the inscribed picture by itself
were not sufficiently severe
or pervasive to support a hostile work environment claim, a factfinder
could decide that the
supervisor's conduct of ridiculing Oates and refusing to remove the
poster further poisoned the
environment and altered the terms of Oates' employment enough to
support his harassment claim.
See, e.g., Compston v. Borden, Inc., 424 F. Supp. 157, 160-61 (S.D.
Ohio 1976) (holding that
a supervisor "vested with managerial responsibilities" is liable under
Title VII when he "embarks
upon a course of conduct calculated to demean an employee" because
"such activity will
necessarily have the effect of altering the conditions of [the
employee's] employment"). A jury
could view Christenson's laughter in response to Oates' harassment
complaint and her retort that
Oates was being "oversensitive,"<11> as a demonstration of racial
insensitivity that is often at the
bottom of prejudices and bigotry that poison the workplace. A
factfinder could also view her
refusal to remove the poster as condoning an abusive and hostile
environment, perpetuating a
racial myth that African Americans are not entirely human or entitled
to be treated with human
dignity, and sending a message to his coworkers that they could
continue to harass Oates with
impunity.
The factfinder could conclude then that Discovery Zone is liable
for racial harassment
because Christenson's knowledge of the harassment and failure to take
remedial action can be
imputed to it. See 29 C.F.R. 1604.11(d). See also Doe, 42 F.3d at
446 ("[k]nowledge of the
agent is imputed to the corporate principal only if the agent receives
the knowledge while acting
within the scope of the agent's authority and when knowledge concerns
a matter within the scope
of that authority"); Chrysler Motors Corp. v. International Union,
Allied Indus. Workers of Am.,
959 F.2d 685, 687-88 (7th Cir.) ("[e]mployers must take all necessary
steps to prevent sexual
harassment in the workplace, such as expressing strong disapproval of
the conduct and developing
appropriate sanctions"), cert. denied, 506 U.S. 908 (1992). Since
there is sufficient evidence of
racial harassment from which a jury could determine that the terms and
conditions of Oates'
employment were adversely affected, and that Discovery Zone is liable
for the harassment, the
hostile environment claim should not have been dismissed by the
district court, but rather should
have gone to a jury.

B. The District Court Erred in Granting Summary Judgment on the
Discriminatory
Discharge Claim

In an employment discrimination action, a plaintiff may prove his
case using direct or
indirect methods of proof. Randle v. LaSalle Telecommunications,
Inc., 876 F.2d 563, 569 (7th
Cir. 1989). Under the direct method, plaintiff must show that the
"decisionmakers placed
substantial negative reliance on an illegitimate criterion in reaching
their decision," Price
Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J.,
concurring), or put differently,
that there is a direct link between the discriminatory intent and the
challenged employment action
sufficient to prove the disputed fact "without reliance upon inference
or presumption." Randle,
876 F.2d at 569. The indirect method, in contrast, permits the
plaintiff to prove intentional
discrimination by making out a prima facie case and by establishing
that either the prohibited
reason more likely than not motivated the adverse employment action or
that the articulated reason
is untrue. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03
(1973). On a motion for
summary judgment, if plaintiff successfully produces direct evidence
of discriminatory intent or
establishes a prima facie case and produces enough evidence of pretext
from which the factfinder
could infer the ultimate fact of intentional discrimination, the case
should go to a jury. Anderson
v. Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir. 1994)
(summary judgment is
precluded by evidence of prima facie case and pretext); Adler v.
Madigan, 939 F.2d 476, 479 (7th
Cir. 1991) ("'[m]ixed motives' situations are ordinarily not grist for
the summary judgment mill").

Here, the district court erred in deciding that Oates did not
offer enough evidence from
which a factfinder could infer the ultimate fact of intentional
discrimination as to his discharge
under either proof method. In reaching this conclusion, the court
first incorrectly rejected Oates'
argument that Christenson's offensive conduct is direct evidence of
discriminatory intent under
Price Waterhouse. See McCarthy v. Kempfer Life Ins. Cos., 924 F.2d
683, 687 (7th Cir. 1991)
(racial epithets or discriminatory conduct directed at the plaintiff
by an individual closely involved
in the challenged decisional process are direct evidence of
discriminatory animus); Knox v. First
Nat. Bank of Chicago, 909 F. Supp. 569, 572 (N.D. Ill. 1995)
("plaintiff may present direct proof
of discriminatory intent by introducing stray, stereotyped racial
remarks if the remarks are made
by a decisionmaker, are causally related to or have a nexus with the
employment decision at issue,
and are proximately related in time to the employment decision")
(internal citations omitted)<12>.
Oates' evidence of harassment and Christenson's offensive behavior,
which was as severe as
calling an African American a "nigger," are proof of discriminatory
animus because the evidence
is probative of Christenson's discriminatory attitude and the
circumstances which may have
influenced the decision to terminate Oates.
Next, Oates' termination four days after the racial incident
involving Christenson
constitutes "suspicious timing" from which a factfinder could infer a
causal connection between
Christenson's animus and Oates' termination because there is evidence
in the record from which
a jury could conclude that Christenson participated in the termination
decision. McDermott
testified that, starting with his first meeting with her, Christenson
had recommended that Oates
be terminated, they arranged for Oates to be terminated on April 22,
Christenson conducted the
termination meeting, he "agreed" with Christenson to terminate Oates,
and that together they
decided to terminate him. Pl. Ex. C, McDermott Dep. at 25, 32, 73-76,
84-85. Christenson
testified that Oates' termination was not her decision and she had
never recommended Oates'
termination to McDermott. Pl. Ex. B, Christenson Dep. at 23, 30.
While this evidence clearly
raises a factual dispute as to whether she actually participated in
the termination decision,
resolving all doubts in favor of the plaintiff, a jury could conclude
that, since Christenson
admittedly provided the information on which the termination was based
and fired Oates, that she
participated in the termination decision. Id. at 23, 45. Moreover, a
jury could find it implausible
that McDermott alone made the termination decision when he had only
known Oates a couple of
weeks and had formed a favorable impression of him after their initial
meeting. In any event, this
factual dispute defeats summary judgment and is enough to refute the
district court's conclusion
that Christenson's conduct was a "stray remark" made by a nondecisionmaker.
Even if the evidence of Christenson's bias and role in the
termination decision are
insufficient under the Price Waterhouse direct evidence standard,
Oates has produced enough
evidence to survive summary judgment under the indirect proof scheme
of McDonnell Douglas.
The district court reached a contrary conclusion because, in
evaluating Oates' discriminatory
discharge claim, it erroneously took a rigid and mechanical approach
in deciding that Oates did
not establish a prima facie case of race discrimination.
Specifically, the court improperly
considered Discovery Zone's articulated reason for the discharge in
deciding that Oates had not
shown the second element of the prima facie case — that he was
performing his job satisfactorily.
An employer's assessment of a plaintiff's work is more appropriately
considered in connection
with the pretext stage of proof in a Title VII case. Legrand v.
Trustees of Univ. of Ark. at Pine
Bluff, 821 F.2d 478, 481 n.4 (8th Cir. 1987), cert. denied, 485 U.S.
1034 (1988). The court also
erroneously disregarded Oates' testimony that his performance was
satisfactory, which is sufficient
to meet his prima facie burden. Williams v. Williams Elecs., Inc.,
856 F.2d 920, 923 n.6 (7th
Cir. 1988) ("determination that individual is performing a job well
enough to meet an employer's
legitimate expectations, when made in the context of a prima facie
case, may be based solely upon
the employee's testimony concerning the quality of his work").
Further, the district court erred
in requiring Oates, as the fourth element of the prima facie case, to
prove that similarly situated
employees outside his protected class were treated more favorably than
he because that element
can be satisfied when there is other evidence in the record from which
discrimination could be
inferred, as there was in this case. See Rush v. McDonald's Corp.,
966 F.2d 1104, 1113 (7th Cir.
1992) ("plaintiff may establish a prima facie case of intentional
discrimination by offering evidence
adequate to raise an inference that he was discharged on the basis of
race"); also see Landon v.
Northwest Airlines Inc., 72 F.3d 620, 624 (8th Cir. 1995) (identifying
fourth element of prima
facie case as requiring a showing that "there is some evidence that
would allow the inference of
improper motivation"); accord McDonnell Douglas, 411 U.S. at 802 n.13
(noting that "the
specification above of the prima facie proof [the fourth element of
which was evidence that
position denied plaintiff remained open and employer continued to seek
applicants with similar
qualifications] required from respondent is not necessarily applicable
in every respect to differing
factual situations").
In addition to the evidence establishing the prima facie case,
the record contains "other bits
and pieces" of evidence from which an inference of discriminatory
intent might be drawn. Troupe
v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). For
example, Oates proffered
enough pretext evidence to raise a genuine issue as to whether his
performance was the true reason
for his discharge. Discovery Zone asserted that it terminated Oates
because he failed to follow
proper call-in procedures on April 21 to cover his absence from work.
R. 30, Def. Summ. J.
Mem. at 3. According to testimonial evidence in the record, however,
the termination decision
was made before April 21 and therefore was not based on Oates' absence
or failure to follow
proper call-in procedures on April 21. Pl. Ex. B, Christenson Dep. at
68-69; Pl. Ex. D,
Mierkiewicz Dep. at 13; Pl. Ex. E, Dublin Dep. at 15. In addition,
the record also contained
evidence showing that the company gave inconsistent reasons to justify
Oates' termination. Oates
testified that he was told he was being discharged because his job had
been eliminated. Pl. Ex.
A, Oates Dep. at 59. McDermott testified at deposition that Oates was
terminated because he
failed to follow proper call-in procedures. Pl. Ex. C, McDermott Dep.
at 38, 75-76, 83, 85.
Christenson testified that it was not Oates' absence on April 21 or
failure to call-in but rather his
job performance on which his termination was based. Pl. Ex. B,
Christenson Dep. at 68-69.
Making all credibility assessments in favor of Oates, as the district
court and reviewing court must
on a motion for summary judgment, a jury could have inferred from the
contradictory explanations
that none of them were true and instead were offered to cover up a
discriminatory motive.
Anderson, 13 F.3d at 1123-24 (to survive summary judgment, plaintiff
"must only 'produce
evidence from which a rational factfinder could infer that the company
lied' about its proffered
reasons") (quoting Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990)).
Evidence in the record also established that the company did not
have an anti-harassment
policy or grievance procedure in place during Oates' employment with
Discovery Zone. Pl. Ex.
A, Oates Dep. at 161; Pl. Ex. D, Mierkiewicz Dep. at 17; Pl. Ex. E,
Dublin Dep. at 64. The lack
of a policy could be viewed as discouraging victims of harassment from
exercising their right to
be in a work environment free from discrimination, cf. Meritor, 477
U.S. at 73 (sexual harassment
policy and grievance procedure should be "calculated to encourage
victims of harassment to come
forward"), and, in light of Christenson's failure to take remedial
action regarding the monkey
poster, be considered evidence of the "corporate culture" in which the
decision to terminate Oates
was made. Cf. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 333
(3d Cir. 1995) ("a
supervisor's statement about the employer's employment practices or
managerial policy is relevant
to show the corporate culture in which a company makes its employment
decisions and may be
used to build a circumstantial case of discrimination"); Lipsett v.
University of Puerto Rico, 864
F.2d 881, 907 n.27 (1st Cir. 1988) (noting that, even though defendant
had policy against sex
discrimination, "it had no official grievance procedure to facilitate
the airing of complaints about
such discrimination in an atmosphere of trust and confidence").
Inasmuch as Oates proffered enough evidence to establish a prima
facie case of
discrimination, that evidence combined with his evidence of pretext is
sufficient to raise a genuine
issue of fact as to whether race was the true reason for Oates'
dismissal, and therefore defeat
summary judgment. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113
S. Ct. 2742, 2749
(1993). Thus, we urge this Court to reverse the district court's
granting of summary judgment
on Oates' discriminatory discharge claim.

C. The District Court Erred in Granting Summary Judgment on the
Retaliation Claim
The district court also erred in granting summary judgment on the
retaliation claim because
the same evidence of pretext and the supervisor's participation in the
termination process proffered
in support of the discriminatory discharge claim is sufficient to
establish a prima facie case and
to raise a genuine issue of fact as to whether Oates was terminated
for complaining about the
monkey poster or because his employer made "an 'honest assessment of
inadequate performance.'"
Opinion (quoting Alexander v. Gerhardt Enter., Inc., 40 F.3d 187, 197
(7th Cir. 1994)).
Therefore, the retaliation claim should have been resolved by a jury.

CONCLUSION

The district court erred in granting summary judgment for
Discovery Zone. The racial
harassment claim raised a genuine issue of fact as to whether Oates
was subjected to a racially
hostile environment. Further, the record contained enough evidence of
racial animus and pretext
that, combined with evidence of the supervisor's participation in both
the racial incident and the
termination decision, would have permitted a rational factfinder to
infer that Oates' termination
four days after the monkey poster incident was either discriminatory
or retaliatory. Therefore,
we urge this Court to reverse the district court's order granting
summary judgment for Discovery
Zone and remand the case for jury consideration.

Respectfully submitted,

C. GREGORY STEWART
General Counsel
PAULA R. BRUNER, Attorney

GWENDOLYN YOUNG REAMS EQUAL EMPLOYMENT OPPORTUNITY
Associate General Counsel COMMISSION
1801 L Street, N.W. Rm. 7044
CAROLYN L. WHEELER Washington, D.C. 20507
Assistant General Counsel (202) 663-4731

CERTIFICATE OF SERVICE

This is to certify that on April 4, 1996, two copies of the foregoing brief

were mailed first class, postage prepaid, to the following counsel of record:

H. Candace Gorman
GORMAN & GORMAN
542 South Dearborn, Suite 1060
Chicago, Illinois 60605

John P. Morrison, Esq.
Joanne L. Hyman, Esq.
BELL, BOYD & LLOYD
Three First National Plaza
70 West Madison Street, Suite 3200
Chicago, Illinois 60602

PAULA R. BRUNER
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
1801 L Street, N.W. Rm. 7044
Washington, D.C. 20507
(202) 663-4731

April 4, 1996

A T T A C H M E N T S

TABLE OF CONTENTS

1. Courtland Milloy, The Blinding Racism of His Comment, Wash. Post,
Mar. 6, 1996

2. Jennifer M. Russell, On Being a Gorilla in Your Midst, or the Life
of One Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. L. Rev.
259 (1993)

A T T A C H M E N T 1

A T T A C H M E N T 2

*******************************
<NOTES>

<1> The record contains disputed facts regarding, inter alia, Oates' work
performance, attendance and adherence to "call-in" procedures when
missing work,
Discovery Zone's reason for Oates' discharge, whether the monkey
poster incident
occurred, whether Oates complained to Human Resources prior to his
termination, and
whether he wrote his own name on the gorilla poster. We present the
facts here in
the light most favorable to Oates, as summary judgment standards
require. The facts
are largely taken from the district court's oral ruling. Record
references have been
provided for facts not appearing in the court's opinion.

<2> R. 38 is the record reference for all of plaintiff's exhibits
which were in the
appendix to his response to defendant's summary judgment motion.

<3> Discovery Zone's human resources managers also testified that they
were aware
Oates was going to be terminated prior to Thursday, April 21, the day
he was absent.
Mierkiewicz said that she knew Oates was going to be terminated a "few
days" before
April 22 and that it was possibly on Tuesday, April 19 or Wednesday,
April 20, that
she learned of this matter.

Pl. Ex. D, Mierkiewicz Dep. at 13. James Dublin said that he found
out "possibly
the week before" but that he was definitely involved in conversations regarding
Oates' termination the week it occurred. Pl. Ex. E, Dublin Dep. at 15.

<4> There are no page references to the transcript of the district court's oral
ruling because it is not paginated.

<5> Although the Commission's guidelines refer to discrimination based
on sex, the
Commission has made it clear that the liability principles governing sexual
harassment and discrimination also apply to race. 29 C.F.R. § 1604.11
n.1 (1995).

<6> The federal Constitution is illustrative of the subhuman status
accorded African
Americans during slavery because it quantified, for representation
purposes, enslaved
black people as three-fifths of a person. U.S. CONST., Art. I § 2
cl.3. See also
Herbert Alptheker, Vol. I A DOCUMENTARY HISTORY OF THE NEGRO PEOPLE IN
THE UNITED
STATES 58 (1951) (quoting George Lawrence, An Oration on the Abolition
of the Slave
Trade (N.Y. 1813)) ("[t]here was a time whilst shrowded in ignorance,
the African was
estimated no higher than beasts of burden").

<7> See, e.g., Courtland Milloy, The Blinding Racism of His Comment,
Wash. Post, Mar.
6, 1996, at C1 (noting that sports analyst Billy Packer's reference to a black
Georgetown basketball player as "a tough monkey" was not only racist
and offensive
to "many African American viewers" but that Packer's response that his
comment had "
'nothing to do with race'. . . reflects the arrogance and denial that are the
cornerstones of racist thinking in America today") (Att. 1).

<8> The association of black people with gorillas has its origins in Christian
theology. As one commentator expressed:

One of the favored topics of those unlettered priests was the vast amount of
Scriptural authority accounting for the black man's lowly state and substandard
conduct. Ham [one of Noah's sons who survived the Great Flood] had
taken a wife
from among a tribe marked by the curse of Cain — some low-rated beast
of the field
she was, probably little better than a first cousin to the gorilla. From this
unnatural union (so ran the prevailing theology) had been produced the
most primitive
form of the black race.

Larry L. King, CONFESSIONS OF A WHITE RACIST at 18-19 (1969).

<9> Accord Jennifer M. Russell, On Being a Gorilla in Your Midst, or
the Life of One
Blackwoman in the Legal Academy, 28 Harv. C.R.-C.L. L. Rev. 259, 260
(1993) (first
and sole African-American law school female professor's view that picture of a
gorilla found in her school mail box at Case Western University
communicated the
"loud, unambiguous message" that she could "[c]laim no membership to
the human race"
because she was "not even a sub-species" but rather a "brute"
"[a]nimal, not human;"
a "time-worn message communicated to persons who are not white") (Att. 2); The
Blinding Racism of His Comment, Wash. Post at C1 (noting that white
sportscaster
Billy Packer's reference to a black Georgetown basketball player as "a
tough monkey"
is "particularly egregious because of a centuries-old effort to
dehumanize African
Americans by linking them genetically with primates").

<10> See also Daniels, 937 F.2d at 1272-75 (holding that racial
incidents involving
hanging dummy, KKK and racial graffiti, and slurs using "Buckwheat"
and "nigger"
were sufficiently severe and pervasive to support racial harassment claim).

<11> The term "oversensitive" in this context is consistent with a
genre of code
words often used to mask unconscious racism and perpetuate the
racist's denial of,
and arrogance about, the offensiveness of his or her conduct. See
Phyllis A. Katz,
TOWARDS THE ELIMINATION OF RACISM 27 (1976) (for a discussion of code
words used to
describe African Americans and their characteristics). Accord On Being
a Gorilla in
Your Midst, 28 Harv. C.R.-C.L. L. Rev. at 261-62 (when confronted with racial
incidents, "the blackwoman scholar must appear neither hypersensitive
nor paranoid.
Her white male (and female) colleagues will quickly note the
occurrence of facially
similar events involving themselves to discredit what she knows to be
the truth");
Thomas Kochman, BLACK AND WHITE STYLES IN CONFLICT 61 (1981) (because
"in the past
blacks were not even allowed to express and assert themselves to the
extent that
white cultural norms allow, let alone black ones[,] . . . as blacks begin to
experience a greater sense of freedom to express and assert themselves publicly
according to black norms, they find themselves vulnerable again to whites who
consider such behavior excessively emotional and provocative and to which they
respond with incomprehension and violence").

<12> See also Talley v. Bravo Pittino Restaurant, 61 F.3d 1241,
1248-49 (6th Cir.
1995) (racial comments by white managers constituted direct evidence
that plaintiff's
termination was racially motivated); Brown v. East Miss. Elec. Power
Ass'n, 989 F.2d
858, 861 (5th Cir. 1993) (supervisor's routine use of "nigger" is
direct evidence
that racial animus motivated contested employee's discharge); EEOC v.
Alton Packaging
Corp., 901 F.2d 920, 924 (11th Cir. 1990) (evidence of racial
hostility by employer's
general manager, one of persons responsible for denying plaintiff a
promotion, was
direct evidence of discrimination under Price Waterhouse).

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