Feb. 19 --A black female management services employee assigned to serve as chief executive officer of an Ohio regional transit authority, who was fired and ultimately replaced with a Hispanic female, has triable race and sex discrimination claims under Title VII of the 1964 Civil Rights Act, the U.S. Court of Appeals for the Sixth Circuit ruled Feb. 19 (Shazor v. Prof'l Transit Mgmt., Ltd., 2014 BL 42520, 6th Cir., No. 13-3253, 2/19/14).
Reversing and remanding summary judgment to Professional Transit Management LTD, the Sixth Circuit found that Marilyn Shazor showed she was replaced by someone outside of her statutorily protected classes--a required element for establishing a prima facie case of discrimination.
With respect to Shazor's race bias claim, the court said her replacement was Hispanic and therefore not a member of Shazor's protected racial class.
Although the new CEO was of the same sex as Shazor, the court said the executive still fell outside of Shazor's protected class because Shazor's sex bias claim “cannot be untangled from her claim of race discrimination.”
It said Title VII's protected classifications of race and sex “do not exist in isolation,” observing that black women “are subject to unique stereotypes that neither [black] men or white women must endure.”
As such, the appeals court said an employer cannot undermine a black female employee's prima facie case by “showing that white women and [black men] received the same treatment,” or in this case, that a Hispanic female assumed Shazor's role.
Moreover, the court said Shazor further supported her sex bias claim with evidence of “distasteful” e-mails written by male PTM officials who called her a “prima donna” and a “hellava bitch.”
The Sixth Circuit also ruled that Shazor raised a material factual dispute about whether PTM's stated reason for firing her--purported dishonesty--was pretextual, and that the company could not avail itself of the “honest belief” doctrine because it did not adequately investigate Shazor's alleged lies.
In reviving Shazor's claims under a circumstantial evidence theory, the court said it need not decide whether Shazor also could maintain her claims under a direct evidence theory, which would have required it to resolve “several complex issues” related to “cat's paw” discrimination.
Judge Eric L. Clay wrote the court's opinion, joined by Judges R. Guy Cole Jr. and William O. Bertelsman.
PTM provides management services to transit authorities around the nation, including the Southwest Ohio Regional Transit Authority (SORTA) in Cincinnati.
PTM hired Shazor to serve as SORTA's chief operating officer in 2006 and then made her the authority's CEO in March 2008. Thereafter, two senior PTM officials, Michael Setzer and Will Scott, began to exchange e-mails questioning Shazor's loyalty to PTM because she had declined to participate in educational programs offered by the company, among other issues.
Over the course of the year, Setzer and Scott continued to criticize Shazor in e-mails, commenting that they believed she was “disrespectful” to them. In some messages, they described her as a “prima donna” and a “hellava bitch.”
Setzer, who also was Shazor's direct supervisor, received a new assignment in August 2009 and was replaced by Tom Hock.
In 2010, the union representing SORTA's bus drivers sought to organize the authority's driving instructors and maintenance forepersons.
SORTA's human resources director and general counsel recommended that the authority retain Management Performance International Inc. (MPI) as a third-party consultant to provide advice on union matters. Shazor claimed she played no part in MPI's selection.
At least one SORTA board member in a July 2010 meeting raised concerns about MPI because of its alleged anti-labor stance, and a union official suggested that the authority hire Hock to serve as a labor consultant. Shazor responded that she had been informally consulting with Hock, but that he did not have time to handle the union negotiations.
The next month, a SORTA board committee held a meeting during which Hock claimed that Shazor had been dishonest regarding his availability to provide labor consultation.
On Aug. 19, Scott sent Hock an e-mail that included a “checklist of operational issues involved in wrapping up an individual's employment with the company.”
Hock fired Shazor the next day, claiming she had lied about not playing a role in selecting MPI and about Hock's availability to advise SORTA.
Prior to making the decision, Hock consulted only with SORTA's general counsel, Bill Desmond, who told him that Shazor had been involved in MPI's selection and had refused to hire Hock or PTM to provide labor consultation.
PTM ultimately replaced Shazor with Theresa Crews, a Hispanic female.
Shazor brought various claims against PTM and Hock, including race and sex discrimination under Title VII. The U.S. District Court for the Southern District of Ohio granted summary judgment to the company, and Shazor appealed.
Reversing and remanding, the Sixth Circuit observed that Shazor and PTM agreed that Shazor satisfied the first three elements of a prima facie case of discrimination under a circumstantial evidence theory.
Namely, Shazor showed that she is a member of protected classes based on her race and sex, that her termination was an adverse employment action and that she was qualified for the CEO position she held, the court said.
However, the parties disputed whether Shazor could demonstrate that she was replaced by someone outside of her protected classes.
The appeals court said Shazor met that element with respect to her race discrimination claim, given that Shazor is black and Crews is Hispanic.
“Absent more extensive evidence on the subject, these two facts are enough to establish that Plaintiff was replaced by someone outside her protected racial class,” the court said.
As for Shazor's sex bias claim, the appeals court held that it “cannot be untangled from her race discrimination claim.”
Race and sex--classifications protected by Title VII--do “not exist in isolation,” the court said.
“[Black] women are subjected to unique stereotypes that neither [black] men nor white women must endure,” it said. “And Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds.”
As such, if a black female employee “establishes a sufficient foundation of discrimination,” an employer “cannot undermine her prima facie case by showing that white women and [black] men received the same treatment,” the court said.
“The realities of the workplace, let alone the purpose of Title VII, will not allow such an artificial approach,” it said.
The Sixth Circuit rejected PTM's argument that the court should focus on whether similarly situated, nonprotected individuals received more favorable treatment instead of whether Shazor was replaced by someone outside her protected classes.
“The mode of proof that Defendants suggest is intended to provide plaintiffs with an alternative way of establishing the final element of their prima facie case,” the court said. “This method is especially useful in cases where plaintiff is not terminated, is not replaced, or is not replaced with a single person.”
By contrast, the “replacement method works especially well when a plaintiff is terminated and the employer hires a single replacement to do the same job,” as was the case here, the court said.
Moreover, the court said evidence of the e-mails between Scott and Setzer--which Shazor argued were “code” for calling her an “angry black woman” or “uppity black woman”--supports the sex discrimination claim.
“[C]onsidered as a whole, Plaintiff has satisfied her prima facie burden on a claim of discrimination on the basis of race and sex,” the court said.
In light of Shazor's prima facie case, PTM argued that it had a legitimate, nondiscriminatory reason for firing Shazor based on her alleged lies regarding the selection of a labor consultant and Hock's availability.
However, the court said Shazor presented sufficient evidence to question that proffered reason as being pretextual.
With respect to Hock's availability, she offered e-mails from June 2010 showing that Hock “was in fact busy working on union issues” in Arizona.
“A jury can consider Hock's and Plaintiff's credibility and weigh the evidence accordingly,” the court said.
As for the role Shazor played in selecting MPI to advise SORTA, the court pointed out that PTM relied on Hock's account of statements made by Desmond, the authority's general counsel, to prove that Shazor was involved in the MPI decision.
However, Desmond's account, as told by Hock, constitutes inadmissible hearsay because his comments are being used to “prove the truth of the matter asserted,” the court said.
“Defendants cannot use these statements for their truth in a motion for summary judgment any more than they could use them at trial,” it said. “Stripped of Desmond's statements, the record concerning the second lie is a little more than a he-said, she-said. Plaintiff's sworn testimony that she did not have a role in the retention of MPI is enough to create a genuine issue of fact.”
The appeals court acknowledged that MPI could avoid liability by showing it had an “honest belief” in its basis for firing Shazor, and that the belief “arose from reasonable reliance on the particularized facts” it had before making the termination decision.
However, Hock's single interview with Desmond about Shazor's two purported lies “did not establish sufficient particularized facts about the truth behind Plaintiff's statements, let alone her motive,” the court said.
“Defendants have therefore failed to establish a foundation for the honest belief doctrine to apply,” it said.
Finally, the Sixth Circuit said it need not decide whether Shazor's race and sex bias claims could survive summary judgment based on a direct evidence theory of liability.
Shazor argued that the e-mails exchanged between Setzer and Scott constituted direct evidence of bias, but the court pointed out that neither man was the decision maker who fired her.
As such, Shazor would need to proceed under a “cat's paw” theory of liability, whereby an employer may be held liable for the discriminatory animus of a supervisor who did not make the ultimate employment action, the court said.
However, it observed that applying the “cat's paw” theory in the present case would raise “several complex issues of law and fact.”
For example, the court said it is unclear whether Setzer and Scott, who were senior officials for PTM, could be considered “supervisors” under Title VII in light of the U.S. Supreme Court's ruling in Vance v. Ball State University, 133 S. Ct. 2434, 118 FEP Cases 1481 (2013) that a supervisor must have the power to take tangible employment actions.
Although Setzer fit that definition until August 2009, it is “not settled whether [his] one-time role as [Shazor's] supervisor suffices for cat's paw purposes when the ultimate employment action came a year later,” the court said.
In addition, it is unclear whether the cat's paw theory can be applied “to the actions of employees who do not meet the definition of 'supervisor' enunciated in Vance,” the court said.
“Fortunately, we need not resolve these tangled questions of law and fact,” it said, given that Shazor's claims survived summary judgment via circumstantial evidence.
Michael L. Cioffi, Nathaniel R. Jones, Lori G. Nuckolls, Thomas H. Stewart and Laura W. Wilson of Blank Rome in Cincinnati represented Shazor. Susan R. Bell, Jack B. Harrison, Robert J. Hollingsworth and Alexis L. McDaniel of Cors & Bassett in Cincinnati represented PTM.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Marilyn_Shazor_v_Professional_Transit_Managemen_et_al_Docket_No_1.
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