DEFENDING FLORIDA EMPLOYERS: DEFEATING EMPLOYMENT DISCRIMINATION CLAIMS THAT RELY ON CIRCUMSTANTIAL EVIDENCE

Most claims of employment discrimination under Title VII of the Civil Rights Act of 1964 (as amended) rely on circumstantial evidence. The plaintiff-employee may attempt to prove discrimination through circumstantial evidence by satisfying the United States Supreme Court’s burden-shifting framework set forth it its decision in McDonnell Douglas v. Green, 411 U.S. 792 (1973). The McDonnell Douglas framework, which is the prevailing framework used to analyze whether a plaintiff’s discrimination claim can survive an employer’s motion for summary judgment, puts the initial burden on the plaintiff to establish a prima facie case of discrimination. McDonnell Douglas v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the plaintiff establishes a prima facie case of discrimination by showing that: (1) he belongs to a protected class; (2) he was subject to an adverse employment action; (3) he was qualified to perform his job; and (4) his employer treated similarly situated employees outside his protected class more favorably. Lewis v. City of Union Cnty. Ga., 918 F.3d 1213 (11th Cir. 2019). Once the plaintiff establishes a prima facie case, the burden then shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for the challenged employment action. McDonnell Douglas v. Green, 411 U.S. 792 (1973). “[T]he defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

To satisfy the burden of producing legitimate, nondiscrimination reasons, the employer need not persuade the court that it was actually motivated by its proffered reasons. Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997). Rather, it is sufficient if the employer’s evidence raises genuine issues of fact as to whether it discriminated against the employee. Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997). “[T]o satisfy this immediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision has not been motivated by discriminatory animus.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). A subjective reason can constitute a legally sufficient, legitimate, nondiscriminatory reason under the McDonnell Douglas analysis. Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000).

For example, a sufficient, legitimate, non-discriminatory reason for the employer to not hire the plaintiff applicant for a sales clerk or wait staff position may be that the employer did not like the plaintiff’s “appearance because his hair was uncombed and he had dandruff all over his shoulders,” “because he had his nose pierced,” or “because his fingernails were dirty.” Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000). An example of a sufficient, legitimate, non-discriminatory reason for the employer to terminate the employee’s employment may be that the plaintiff disobeyed and/or refused to follow the employer’s rules and policies. Perryman v. First United Methodist Church, 2007 WL 703604 (M.D. Ala. Mar. 5, 2007). So long as the employer’s proffered reason for the adverse employment action is “one that might motivate a reasonable employer,” Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001), the employer will likely meet its burden of producing a legitimate, nondiscriminatory reason for its decision.

Once the employer meets its burden of proffering a legitimate, nondiscriminatory reason for its decision, the plaintiff has the opportunity to persuade the trier of fact that the proffered reason was not the real basis of the decision, but a pretext for discrimination. Richardson v. Leeds Police Dept., 71 F.3d 801 (11th Cir. 1995). To show pretext, the plaintiff must demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could them unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997). “A plaintiff is not allowed to recast an employer’s proffered nondiscriminatory reasons or substitute [her] business judgment for that of the employer. Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and cannot succeed by simply quarreling with the wisdom of that reason.” Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000).

Therefore, where the employee cannot show both that the reason for the employer’s decision was false and that discrimination was the real reason for the employer’s decision, the plaintiff will not satisfy her burden of proving that the employer’s proffered reason for the adverse employment action was a pretext for discrimination. Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001). Consequently, the employer is entitled to summary judgment in its favor where the employer can proffer a legitimate nondiscriminatory reason for its decision, and the plaintiff fails to establish that the employer was not simply making a reasonable business decision.

Peter Mavrick is a Fort Lauderdale employment lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.