Table of Authorities................................................................................ ii
Statement of Interest................................................................................ 1
Statement of the Issues............................................................................ 2
Statement of the Case.............................................................................. 2
A. Statement of the Facts.................................................................. 2
B. District Court’s Decision........................................................... 14
Argument............................................................................................... 17
I. Title VII does not require
evidence of comparators to establish a prima facie case of race discrimination.................................. 17
II. Ramzinski’s and Garza’s use of
racial slurs to refer to Lockhart and other Black employees is strong
circumstantial evidence that race discrimination was at least partially
responsible for Lockhart’s termination................................................................ 26
Conclusion.............................................................................................. 36
Certificate of Compliance..................................................................... 38
Certificate of Service.............................................................................. 39
Cases
Arismendez
v. Nightingale Home Health Care, Inc.,
493
F.3d 602 (5th Cir. 2007).............................................................. 29
Autry v. Fort Bend Indep. Sch. Dist.,
704 F.3d 344 (5th Cir. 2013)....... 21
Bauer
v. Albemarle Corp.,
169 F.3d 962 (5th Cir. 1999)......................... 19
Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).............................. 24,
35
Brown v. E. Miss. Elec. Power Ass’n,
989 F.2d 858 (5th Cir. 1993)....... 28
Burrage v. United States, 571 U.S.
204 (2014)........................................ 35
DeCorte v. Jordan, 497 F.3d 433 (5th Cir.
2007).................................... 32
DeJesus
v. WP Co. LLC,
841 F.3d 527 (D.C. Cir. 2016)......................... 27
Desert
Palace, Inc. v. Costa,
539 U.S. 90 (2003)...................................... 27
EEOC
v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008)................. 34
Frappied
v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038 (10th Cir. 2020)........................................................................................................ 25
Freeman v. Dal-Tile Corp., 750 F.3d 413 (4th Cir.
2014)........................ 28
Furnco
Constr. Corp. v. Waters, 438 U.S. 567 (1978)............................. 18
Gates v. Bd. of
Educ. of City of Chi., 916 F.3d 631
(7th Cir. 2019)......... 32
Goudeau v. Nat’l Oilwell Varco, L.P.,
793 F.3d 470 (5th Cir. 2015). 26, 27
Gross v.
FBL Fin. Servs., Inc., 557
U.S. 167 (2009)................................. 23
Harvill
v. Westward Commc’ns, L.L.C., 433 F.3d 428 (5th Cir. 2005)... 32
Harville
v. City of Houston,
945 F.3d 870 (5th Cir. 2019)...................... 20
Hernandez v. Yellow Transp., Inc.,
670 F.3d 644 (5th Cir. 2012)........... 31
Int’l
Bhd. of Teamsters v. United States, 431 U.S. 324 (1977)................. 18
Jackson v. Cal-W. Packaging Corp.,
602 F.3d 374 (5th Cir. 2010).......... 24
Jackson v.
Quanex Corp., 191 F.3d 647 (6th Cir. 1999).......................... 33
McDonnell
Douglas Corp. v. Green, 411 U.S. 792
(1973)...... 15, 17, 18-19
Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th
Cir. 1995)............. 20
Miles v. Dell, Inc., 429 F.3d 480 (4th Cir.
2005)..................................... 23
O’Connor v. Consol.
Coin Caterers Corp., 517 U.S. 308 (1996).............. 22
Pratt v. City of Houston, 247 F.3d 601 (5th Cir.
2001)........................... 21
Price Waterhouse v. Hopkins, 490 U.S.
228 (1989).................................. 35
Rachid v. Jack In The Box, Inc., 376 F.3d 305 (5th
Cir. 2004)................. 31
Reed
v. Neopost USA, Inc.,
701 F.3d 434, 441 (5th Cir. 2012)............... 26
Reeves
v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810 (11th Cir. 2010)........................................................................................................ 33
Rogers
v. Mo. Pac. R.R. Co.,
352 U.S. 500 (1957)................................... 28
Roy
v. Correct Care Sol’ns, 914 F.3d 52 (1st Cir. 2019).......................... 35
Rutherford v. Harris Cnty., 197 F.3d 173 (5th Cir.
1999)...................... 21
Russell
v. McKinney Hosp. Venture, 235 F.3d 219 (5th Cir. 2000). 27, 29, 30
Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th
Cir. 2001)............... 28
St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).............................. 19
Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)............. 19,
20
Turner
v. Kansas City S. Ry. Co., 675 F.3d 887 (5th Cir. 2012)....... 19, 20
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983)......... 31
Williams v. Trader Publ’g Co., 218 F.3d 481 (5th Cir. 2000)................. 23
Statutes
42
U.S.C. §§ 2000e et seq.......................................................................... 1
42
U.S.C. § 2000e–2(a)(1)........................................................... 18,
25, 35
42 U.S.C. § 2000e-2(m)..................................................................... 18,
24
42 U.S.C. § 2000e-5(g)(2)(B).................................................................. 24
29 U.S.C. § 621........................................................................................ 14
Congress charged the Equal Employment
Opportunity Commission (EEOC) with administering and enforcing Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Here, the
plaintiff sued for race discrimination after his supervisor, who regularly used
racial slurs to refer to him and other Black employees, singled him out for
disparate discipline and discharged him. A second employee who influenced the
termination decision also regularly used the n-word to refer to the plaintiff.
This appeal presents two important issues
regarding the proper analysis of Title VII race discrimination claims on
summary judgment. The district court erroneously required the plaintiff to
offer comparator evidence as part of his prima facie case, even though such
evidence is not mandatory. The court also wrongly discounted the racist slurs the
decisionmaker and the other employee directed at the plaintiff, which constituted
compelling circumstantial evidence of race discrimination. Because the EEOC has
an enforcement interest in these questions, we offer our views to the Court.
Fed. R. App. P. 29(a).
1. Did the district court err by ruling that,
because the plaintiff sued under Title VII and not the ADEA, he was required to
offer comparator evidence as part of his prima facie case of discrimination?
2. Where the plaintiff offered evidence that
the decisionmaker and an employee who influenced the termination decision regularly
used racial slurs to refer to the plaintiff and other Black employees, did the district
court err by failing to consider the slurs as circumstantial evidence of race
discrimination?
Plaintiff Ricky Lockhart worked as a roll off waste
disposal driver for Republic Services of San Antonio (“Republic”) beginning in 2012.
ROA.559. Lockhart was a “dependable and professional driver” (ROA.600) and had
been recognized repeatedly for excellent safety and work performance. ROA.1261.
Republic paid Lockhart on a piece rate basis for
hauling large trash-filled containers (“cans”) to landfills. ROA.526. Republic
calculated pay using a formula that considered the driver’s skill and experience
and the can value, determined by its location and the difficulty required to
access it. Id. Beginning in 2015 or 2016, Lockhart contended that the San
Antonio facility was underpaying the roll off drivers by misclassifying and undervaluing
the cans delivered on daily routes. ROA.1103-05, 1193-94; ROA.491-92. Lockhart
protested to his direct supervisor on a weekly basis, as well as to the
operations manager and Human Resources (HR), and called the internal complaint
line. ROA.1107-09; ROA.405, 408, 425; see also ROA.504. He noted what he
believed to be the correct pay on his route logs each week. ROA.1175-78,
1183-84.
In 2016, General Manager Ryan Whiteside selected
Lockhart to represent the San Antonio facility at the annual Phoenix-based ROAD-EO,
a waste disposal driver contest. ROA.468. Lockhart attended the competition in March
2017. ROA.340. While there, he complained to the district manager that the San Antonio-based
roll off drivers were not being paid correctly. ROA.1245-46; ROA.1417. Upon
Lockhart’s return, Whiteside and HR official Emilie Garcia questioned him as to
why he had not raised the can pay issue with them, despite his previous
complaints to his direct supervisor, the operations manager, and HR. ROA.1188.
Around the same time, in early April, Operations
Manager Kenneth Ramzinski counseled Lockhart on how to report his can pay after
he recorded a higher value than the assigned value on his route sheet. ROA.577.
Lockhart refused to sign the counseling sheet because he was adamant that Republic
was misclassifying the cans. Id.; ROA.1172-73. Ramzinski instructed him to
follow the facility’s pay structure in recording his route sheets in the future.
ROA.577. Ramzinksi reprimanded Lockhart for failing to follow instructions on recording
his can pay several additional times that month. ROA.1173-74; ROA.564 (4/19/17
form); ROA.583 (4/21/17 form); ROA.585 (4/25/17 form).
In May, Republic implemented a new pay system that
adopted Lockhart’s methodology. ROA.469; ROA.505; ROA.1432. Lockhart testified he
was happy with the change. ROA.1188. But Republic did not expunge the discipline
he had received for noting what he believed to be the correct can rates from his
record, and Republic counted it as a strike against him for purposes of the
company’s progressive discipline policy. ROA.1797. Republic’s progressive discipline
policy consisted of a documented verbal warning, a first written warning, suspension,
and then termination. ROA.554; ROA.526.
There were few Black roll off drivers at
Republic, and several former Republic employees testified that race discrimination
towards Black employees pervaded the San Antonio facility. Former roll off driver
Ellis Hankins, who is Black, testified that “they don’t have that many black folks
working there.… Because it seems like the ones that do end up getting fired usually
are the black drivers . . . .” ROA.1032-33. Hankins testified that Lockhart was
looked at as “a trouble maker in the company.” ROA.1027-28.
Former lower-level supervisor Juan Puga
testified that it was common to hear the n-word at Republic. ROA.754. Coworkers
used the term “pinche mayate,” a Spanish term equivalent to the n-word, “a
lot,” as well as “el negro” and “negrito,” which, Puga explained, translates to
“little n****r.” ROA.755. Not only did Ramzinski do nothing to discourage the
use of these slurs, but he also referred to Lockhart as “pinche mayate,” “crazy
mayate,” “stupid mayate” and used the slur generally “throughout the day” and “throughout
the week.”
ROA.756, 814-15.
Robert Wilson, who worked as the only Black spotter
at the landfill where Lockhart often dropped loads, ROA.860, testified that, of
the hundreds of drivers entering the landfill each day, only three or four were
African American. ROA.889. Wilson said that he “witnessed” “a lot of discrimination
there towards African Americans.” ROA.860. Coworkers repeatedly referred to
Wilson and Lockhart as the n-word or “colored guy,” though never to Lockhart’s
face. ROA.866, 868-70. According to Wilson, the lead men at the landfill, Daniel
Garza and Chuy Velma, who are Hispanic, used racial slurs and mistreated Lockhart
and, in past years, Wilson as well. ROA.862-64, 866, 868-70. Wilson testified that
Garza, Velma, and landfill manager Frank Franco would talk disparagingly about
Lockhart in Wilson’s presence. ROA.868-71. Garza and Velma used the term “mayate”
under their breath to refer to Lockhart when he was at the landfill, though not
within earshot of Lockhart. ROA.890-93.
According to Wilson, Republic supervisors at
the landfill had favorites, and Lockhart was not among them. ROA.869. Wilson stated
that on several occasions, he heard Franco tell Garza and Velma that Ramzinski “had
it out for” Lockhart and wanted to get rid of him. ROA.871, 874-76, 879-80, 933-34.
Garza and Velma “would say … this N-word is going to get fired” and “they would
take that out on Rick [Lockhart] when they would see him.” ROA.871-72. For
example, they would direct him to park his truck in the “sludge” area of the landfill.
ROA.881. Sludge was comprised of “human feces, animal feces, animal parts, solid
waste, all combined together with a chemical … It can stick to your clothes, to
your shoes… it’s hard to wash off. It’s a very, very bad smell …” ROA.883-84. Wilson
testified that he believed Garza and Velma told him to make Lockhart dump in the
sludge because Lockhart was Black, and observed that Hispanic drivers were not made
to park in the sludge. ROA.888-89.
Wilson also stated that Garza and Velma would abuse
him by making him pick up paper in and outside the landfill, a tedious job that
took several hours and entailed fending off snakes. ROA.914-15. Wilson testified
he was the main spotter who had to pick up paper and the only one who had to do
it by himself. ROA.915. Although Wilson complained to HR, Garcia never did anything
to punish Garza or Velma, nor did Republic ever provide training on preventing racial
harassment or discrimination. ROA.894-95, 953-56. According to Wilson,
“everything that they’re doing is … really racist there and discriminating,
because nothing would happen.” ROA.894.
Prior to April 2017, when Ramzinski
disciplined Lockhart for recording his route pay incorrectly, Lockhart had never
been suspended or lost pay for any work violation. ROA.304. Beginning in June
2017, Ramzinski disciplined him for a series of incidents that led to his termination
in November. First, Ramzinski disciplined Lockhart with a verbal correction for
“equipment abuse” when his truck required $4,000 in repairs. ROA.591-93.
Ramzinski informed Lockhart that, according to a third-party mechanic, he had
repeatedly overridden the truck’s self-cleaning “regeneration” system by pressing
the “regen override” button at least forty times, causing extensive damage.
ROA.508-10; ROA.470; ROA.527-28. Ramzinski sent the write-up to Whiteside.
ROA.1097-98.
Lockhart insisted he had not pushed the
override button and asked Whiteside to pull the Vehicle Condition Report to show
when it had been pushed. ROA.1097-98, 1112, 1207-09, 1214; ROA.1797. Whiteside testified
he never saw the paperwork regarding the incident, nor did he show it to Lockhart,
and he conceded he did not investigate further. ROA.471. Because it was Lockhart’s
assigned truck and he had missed only five days of work in recent weeks, the company
determined that he was at fault (ROA.470), but Lockhart refused to sign the corrective
action form. ROA.591. He testified that he had been assigned one of the new trucks
because of his history of care with his vehicle and that he was not the only
one who had driven the damaged truck. ROA.1143; ROA.600. Puga and Hankins testified
that Lockhart was known to take good care of his truck and expressed skepticism
that Lockhart could have pushed the override button so many times. ROA.781-82; ROA.1059.
Several months later, Ramzinski issued Lockhart
a three-day suspension for insubordination and failure to follow instructions for
talking to a mechanic about his personal vehicle on the shop floor and ignoring
maintenance supervisor Hilda Juarez’s instructions to stop. ROA.602; ROA.513;
ROA.528; ROA.596. Juarez also reported Lockhart for not wearing required safety
equipment in the shop. ROA.597. Lockhart admitted that he had briefly spoken to
the mechanic outside but denied that he had pulled the mechanic off the maintenance
floor or that he was disrespectful to Juarez. ROA.454-55; ROA.1098-1101,
1113-14, 1217-19. Lockhart urged Ramzinski to watch the surveillance video footage
that would have shown he had not visited the mechanic shop, but Ramzinski declined.
ROA.1114.
Hankins testified that it was common for drivers
to get advice about their personal vehicles from the mechanics and it did not result
in discipline. ROA.1054. He characterized Lockhart’s suspension for talking to a
mechanic as “a set up.” ROA.1056. Hankins said that some employees even parked their
personal vehicles inside the work bays and washed them without consequence.
ROA.1054-55. He also testified that employees were supposed to wear safety equipment
on the shop floor, but “not everybody followed [the policy]. And not everybody got
in trouble for it.” ROA.1067. Puga confirmed that employees commonly spoke to
shop mechanics about their personal vehicles without penalty. ROA.775-76, 778-79.
Finally, on November 17, Ramzinski suspended
and then fired Lockhart for driving his truck through an exit gate at the landfill.
ROA.604; ROA.528. Lockhart testified that, at the time, the entrance was backed
up following a rollover accident. ROA.1233. He offered to turn around, but Garza,
whom Lockhart believed was the landfill supervisor (ROA.1234), allowed him to go
in the gate. ROA.1227-28; 1236-40. Lockhart stated he had never been told not to
use the gate nor that it was a permit violation, and the signage was not marked
“exit only.” ROA.1221-22, 1226. Moreover, Wilson testified, if Garza had wanted
Lockhart to go back to the front gate, he could have accomplished that easily
by preventing Lockhart from getting a ticket, which served as his credit for dumping
a load. ROA.958-59.
Garza reported Lockhart to Franco for driving through
the exit-only gate, and Franco emailed the report to Garcia and Ramzinski.
ROA.557; ROA.1778. According to Franco’s email, Lockhart had been the only one
to drive through the gate since it was opened. ROA.557. However, it is
undisputed that two other drivers, Alex Lopez and Jerry Martinez, who are
Hispanic, entered the same exit gate that day. ROA.610; ROA.612. Lockhart explained
the extenuating circumstances to Ramzinski, but Ramzinski recommended his
termination to Whiteside. ROA.1228-29.
Four days later, after Whiteside and HR
approved Ramzinski’s recommendation, Ramzinski informed Lockhart that he was
fired. ROA.1229-30. Whiteside testified that he did not investigate who, if anyone,
had told Lockhart he could enter the exit gate before firing him. ROA.1482-84; 1548-51. Both Whiteside
and Ramzinski testified that Lockhart’s action jeopardized the company’s permit
to use the landfill and was dangerous. ROA.485-86; ROA.528-29. Nonetheless,
Lopez only received a verbal warning and Martinez a written warning for the
same conduct, ostensibly because they had fewer prior infractions. ROA.610;
ROA.614; ROA.487-88; ROA.513-14.
Lockhart filed a charge with the EEOC and
subsequently obtained a right-to-sue notice. ROA.27-29. In relevant part, his
Second Amended Complaint alleges: “Defendants have violated Title VII … by discriminating
against Lockhart with respect to his compensation, terms, conditions, or privileges
of employment because of his race ….” ROA.307. During his deposition, Lockhart testified
that he did not believe he had been fired because he was Black; instead, he
suspected it was because management disliked him after he kept complaining about
the pay system. ROA.400-01. In a subsequent declaration, however, Lockhart stated
he was not aware that members of management, including Ramzinski, used racial slurs
to refer to him until his former coworkers testified about the slurepublic
moved for summary judgment, arguing principally that Lockhart failed to allege an
adverse action connected to his race, could not offer evidence of comparators treated
more favorably, and could not show the discipline he received was a pretext for
race discrimination. ROA.360-61.
The district court
held that Lockhart failed to establish a prima facie case of race
discrimination because he did not offer evidence that he was treated less
favorably than other similarly situated non-Black employees. ROA.2938. Lockhart
had argued that he could establish the fourth element of his prima facie case
with evidence of Ramzinski’s use of racial slurs (ROA.2934-35), but the court
disagreed that the fourth element could be met with a showing that the employee
“was otherwise discharged because of his race.” ROA.2936-37. According to
the court, although some unpublished Fifth Circuit cases permitted this
formulation of the fourth element under Title VII, published Fifth Circuit law
applied it only to cases arising under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621 et seq. ROA.2935-36 (citing cases).
Moreover, the court observed, “Title VII and the ADEA also have different
ultimate causation standards.” ROA.2936. Thus,
it ruled, Lockhart was required to offer evidence of comparators “not in
the protected class, under nearly identical circumstances” who were
treated more favorably. ROA.2937. Nor were Lopez and Martinez valid comparators
for Lockhart, according to the court; although they were not terminated for
going through the exit gate at the landfill, it reasoned, they were not
similarly situated to Lockhart because they were in earlier stages of the
progressive discipline policy. ROA.2938-39.
Next, assuming, arguendo,
that Lockhart had established a prima facie case of discrimination under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), the court held that Republic
articulated a legitimate nondiscriminatory reason for Lockhart’s discipline and
termination: the disciplinary incidents culminating in Lockhart’s discharge
pursuant to the company’s progressive discipline policy. ROA.2939-40. Turning
to pretext, the court ruled that the evidence of racial slurs used by Garza,
Velma, and other employees was irrelevant because “they are nonspecific as to
time, place, and context, and were not made by persons responsible for the
challenged employment action or by a person with influence over the
decisionmaker.” ROA.2951. The court pointed out that there was no evidence of
racial animus by Juarez, Franco, or the third-party company that evaluated
Lockhart’s truck, nor was there evidence that Whiteside—who approved the
discipline and termination—used racial slurs. ROA.2952-53.
While the court
conceded that “[t]he testimony that Ramzinski himself used racial slurs at
times is troubling,” it ruled that such evidence “ultimately does not establish
a sufficient racial motive for the employment decision at issue to survive
summary judgment.” ROA.2951-52. Lockhart offered “only general allegations”
that Ramzinski sometimes used the racial slur “mayate” and “there is
insufficient evidence from which a jury could conclude that race was a
motivating factor in the employment decisions.” ROA.2952. The court noted
Puga’s testimony that Ramzinski used “mayate” as a joke and that derogatory
language was typical at Republic. Id. Thus, the court reasoned,
“although the term is inherently derogatory, there is no testimony that it was
used to display racial animosity against African Americans in general or
Lockhart specifically.” Id. Additionally, the court agreed with Republic
that Puga’s testimony failed to undermine Lockhart’s own testimony that
Ramzinski disliked him because of his complaints about pay. ROA.2953. It
concluded that such testimony and the timing of the discipline following his
complaints about pay in Phoenix suggest these complaints about pay were the
more likely explanation for his termination. Id.
The district court, in granting summary
judgment on Lockhart’s Title VII claim, made two errors that this Court should correct.
First, in finding that Lockhart had failed to establish a prima facie case of
discrimination under McDonnell Douglas, the district court held that
Lockhart was required to offer comparators outside the protected group who were
treated more favorably under nearly identical circumstances. It also ruled that
Title VII plaintiffs may not utilize the broadly-worded fourth element—that the
plaintiff “was otherwise discharged because of his
race”—because this variation of the prima facie case is limited to ADEA cases.
The court is wrong on both counts.
Title VII requires a showing that the complained-of
employment action was “because of” an impermissible factor, such as race, or that
the impermissible factor was “a motivating factor” in the employment decision. See
42 U.S.C. §§ 2000e–2(a)(1), (m). It says nothing at all about what
type of evidence is required to make that showing, much less anything about requiring
comparator evidence. Nor did McDonnell Douglas itself require comparators
in its statement of the prima facie case. 411 U.S. at 802. Starting with McDonnell
Douglas, the Supreme Court has been unequivocal that the prima facie case must
be adapted to the particular circumstances of the case. Id. at 802 n.13 (“The
facts necessarily will vary in Title VII cases, and the specification above of the
prima facie proof required … is not necessarily applicable in every respect to differing
factual situations.”); see also, e.g., Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577 (1978) (“The method suggested in McDonnell Douglas
… was never intended to be rigid, mechanized, or ritualistic.”); Int’l Bhd.
of Teamsters v. United States, 431 U.S. 324, 358 (1977) (no “inflexible formulation”
of prima facie case). Whatever formulation
of the prima facie case is used, the central inquiry is whether the evidence presented
is sufficient to create an inference that the decision was based on unlawful grounds,
such that the burden of production shifts to the employer to explain the reason
for its action. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993)
(explaining that “the McDonnell Douglas presumption places upon the
defendant the burden of producing an explanation to rebut the prima facie case”).
As the Supreme Court and this Court have
recognized repeatedly, the prima facie case presents a minimal burden for a plaintiff
to meet. “‘The burden of establishing a prima facie case of disparate treatment
is not onerous.’” Turner v. Kansas City S. Ry. Co., 675 F.3d 887, 893
(5th Cir. 2012) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981)); see also Hicks, 509 U.S. at 506 (burden is minimal); Bauer
v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999) (only a minimal
showing is necessary).
Under Title
VII, “[t]he plaintiff must establish a prima facie case that the defendant made
an employment decision that was motivated by a protected factor.” Mayberry
v. Vought Aircraft Co., 55 F.3d 1086, 1089 (5th Cir. 1995). Plaintiffs may
satisfy this burden by showing that the injured employee belongs to a protected
class, was qualified for his job, and was subjected to an adverse employment
decision “under circumstances which give rise to an inference of unlawful discrimination.”
Burdine, 450 U.S. at 253 (emphasis added). A common formulation of a
prima facie case of disparate treatment contains four elements: the plaintiff must
show that he (1) belongs to a protected class; (2) was qualified for his position;
(3) was subjected to an adverse employment action; and (4) was replaced by someone
outside his protected class or was treated less favorably than a similarly situated
individual who was not in his protected class. Harville v. City of Houston,
945 F.3d 870, 875 (5th Cir. 2019). Additionally, this Court has instructed that
in work-rule violation cases, a Title VII plaintiff may establish a prima facie
case by showing either (1) that he did not violate the rule, or (2) that, if he
did, White employees who engaged in similar acts were not punished similarly. Turner,
675 F.3d at 892-93; Mayberry, 55 F.3d at 1090.
Contrary to the district court’s account,
published Title VII cases in this Court routinely articulate a prima facie case
where comparators are a common, but not compulsory, element of proof in
disparate treatment cases. See, e.g., Autry
v. Fort Bend Indep. Sch. Dist., 704 F.3d
344, 346-47 (5th Cir. 2013) (articulating fourth element of prima facie case
re: failure-to-promote claim as whether “the defendant either gave the
promotion to someone outside of that protected class or otherwise failed to
promote the plaintiff because of his race.”); Pratt v. City of Houston, 247
F.3d 601, 606 n.2 (5th Cir. 2001) (describing fourth element as “either the position
was filled by someone not in the protected class, or the person was not promoted
because of his race”); Rutherford v. Harris
Cnty., 197 F.3d 173, 179 (5th Cir. 1999)
(characterizing fourth element as “either the position [plaintiff] sought was filled
by someone outside the protected class or she was otherwise not promoted
because of her sex”). These constructions are consistent with the Supreme
Court’s and this Court’s direction that the prima facie case be flexible, not
onerous, and adaptable to a particular case, and leave open the consideration
of other evidence besides comparators in determining if there was an inference of
discrimination.
The district court maintained that a plaintiff
offering a prima facie case of age discrimination could utilize the “otherwise
discharged because of his age” formulation only under the ADEA. ROA.2935-36
(citing cases). In so ruling, the court appears to have focused on a particular
line of this Court’s cases that issued in the wake of O’Connor v. Consolidated
Coin Caterers Corp., 517 U.S. 308 (1996), where the Supreme Court held it
unnecessary for an ADEA plaintiff to show as part of her prima facie case that
she was replaced with someone outside the group protected by the ADEA – i.e.
those forty and older. In O’Connor, the Court reasoned that whether
someone younger than forty replaced the plaintiff lacked probative value in an
ADEA action because a replacement could be significantly younger while still
being over forty. Id. at 312. While these cases following O’Connor
are certainly valid, it is unclear why the district court relied on them to
conclude that the “otherwise discharged” formulation of the fourth element is
unavailable under other antidiscrimination statutes. Indeed, the district
court’s ruling is particularly puzzling given that every single court of
appeals—including this Court—has held that a Title VII plaintiff need not
always show he was replaced by someone outside the protected class. See, e.g.,
Williams v. Trader Publ’g Co., 218 F.3d 481, 485 (5th Cir. 2000) (“[I]t
is well settled that, although replacement with a non-member of the protected class
is evidence of discriminatory intent, it is not essential to the establishment of
a prima facie case under Title VII.”); Miles v. Dell, Inc.,
429 F.3d 480, 485-486 & n.3 (4th Cir. 2005) (so holding, and citing
published cases from all other circuits holding the same).
Neither the district court nor the cases it relies
on explain why the “otherwise discharged because of race” element would not apply
to Title VII. There is no plausible reason the ADEA would permit a more flexible
prima facie case than would Title VII. McDonnell Douglas’s
burden-shifting paradigm applies to ADEA cases. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 119 (2009)
(“The relevant language in the two statutes is identical, and we have long
recognized that our interpretations of Title VII’s language apply ‘with equal
force in the context of age discrimination, for the substantive provisions of
the ADEA “were derived in haec verba from Title VII.”’”) (internal
citations omitted); Jackson v. Cal-W. Packaging
Corp., 602 F.3d 374, 378 & n.15 (5th Cir.
2010) (circuit precedent applies McDonnell Douglas to age discrimination
cases).
The district
court also rested its conclusion on the fact that the ADEA and Title VII have
“different ultimate causation standards.” ROA.2936. To be sure, under the ADEA a
plaintiff must always show age was a “but-for” cause of the challenged employment
action, whereas a Title VII plaintiff may either show but-for causation or, in
cases alleging mixed motives, may show that the protected trait was a “motivating
factor” in the discrimination. See 42 U.S.C. § 2000e-2(m). However,
because a plaintiff who pursues a mixed-motive theory may not recover damages,
reinstatement, or other forms of job-specific relief, see id. § 2000e-5(g)(2)(B),
the vast majority of Title VII cases are established using the same but-for
causation standard as the ADEA. See Bostock v. Clayton Cnty.,
140 S. Ct. 1731, 1740 (2020) (after noting the 1991 amendment adding motivating
factor to Title VII, analyzing the issue under “the more traditional but-for causation standard that continues to afford a viable,
if no longer exclusive, path to relief under Title VII,” citing § 2000e-2(a)(1)).
But even
assuming, arguendo, that the ADEA and Title VII do have different
causation standards, it would not explain why the prima facie case standard in
a Title VII case would be narrower and more difficult to meet than under the
ADEA. Cf. Frappied v. Affinity Gaming Black Hawk, LLC, 966
F.3d 1038, 1048 (10th Cir. 2020) (“Nothing in the ADEA limits a plaintiff’s ability
to bring a claim under Title VII. To the contrary, by passing the ADEA, Congress
intended to broaden protections against employment discrimination to cover older
workers.… It did not intend to limit existing protections provided under Title VII.”).
This Court should correct the erroneous theory that only the ADEA permits
plaintiffs to utilize the broader formulation of the prima facie case.
The district court also erred by failing to
consider Ramzinski’s and Garza’s racial slurs as circumstantial evidence of
race discrimination. This Court has two distinct
tests for analyzing the probative value of discriminatory comments. See Goudeau
v. Nat’l Oilwell Varco, L.P., 793 F.3d 470, 475 (5th Cir. 2015). The more rigorous
test applies only to comments offered as direct evidence of discrimination, whereas
“[i]n a circumstantial case like this one, in which the discriminatory remarks
are just one ingredient in the overall evidentiary mix, we consider the remarks
under a ‘more flexible’ standard.” Id. Discriminatory
comments support a circumstantial case of discrimination if they show “(1) discriminatory
animus (2) on the part of a person that is either primarily responsible for the
challenged employment action or by a person with influence or leverage over the
relevant decisionmaker.” Id. at 475-76; Reed v. Neopost USA, Inc.,
701 F.3d 434, 441 (5th Cir. 2012).
Under this standard, discriminatory comments made
by the person who terminates an employee—i.e., the decisionmaker, or the
individual “who actually made the decision or caused the decision to be made,” Russell
v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir. 2000)—may be
probative of discrimination. Goudeau, 793 F.3d at 476 (citations omitted).
This standard makes sense because “a reasonable jury could treat evidence of a
decisionmaker’s broad-based racial animus or bias as corroborating evidence
that such animus or bias infected a particular employment decision; it is not
unreasonable to doubt that an employer quarantines her animus or bias to
day-to-day treatment of colleagues, away from decisions about hiring, or promotion,
or termination.” DeJesus v. WP Co. LLC, 841 F.3d 527, 536 (D.C. Cir.
2016). Moreover, as the Supreme Court has observed, circumstantial evidence may
be extremely probative and is not necessarily inferior to direct evidence. “The
reason for treating circumstantial and direct evidence alike is both clear and
deep rooted: ‘Circumstantial evidence is not only sufficient, but may also be
more certain, satisfying and persuasive than direct evidence.’” Desert
Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (quoting Rogers v. Mo.
Pac. R.R. Co., 352 U.S. 500, 508 n.17 (1957)).
Here, Ramzinski’s and Garza’s racial slurs about
Lockhart and other Black employees meet this Court’s more flexible test and should
have been accepted as circumstantial evidence of discrimination. There is no racial slur more egregious than the n-word,
whether in English or in Spanish. See, e.g., Brown
v. E. Miss. Elec. Power Ass’n, 989 F.2d
858, 860 (5th Cir. 1993) (“Unlike certain age-related comments which we have
found too vague to constitute evidence of discrimination, the term ‘nigger’ is
a universally recognized opprobrium, stigmatizing African-Americans because of
their race.”); Freeman v. Dal-Tile Corp., 750 F.3d 413, 422 (4th Cir.
2014) (“To begin, ‘the word “n* * * *r” is pure
anathema to African-Americans,’ as it should be to everyone.” (quoting Spriggs
v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001))). The use of the slurs is probative circumstantial evidence
because their content reveals racist animus and both speakers—Ramzinski and
Garza—were involved in Lockhart’s termination
to differing degrees: Ramzinski as the primary decisionmaker, and Garza as a
subordinate who influenced his decision.
Lockhart offered evidence that Ramzinski—who
suspended Lockhart, whose name was on each discipline report, who recommended
to Whiteside and to HR that the company terminate Lockhart, and who informed
Lockhart of his termination—tolerated the frequent use of racial slurs in the
workplace and used the term “pinche mayate” to refer to Lockhart. Thus, even
if, as the district court noted, Whiteside was the one who ultimately approved
Lockhart’s termination, the matter does not end there. “[T]his
Court looks ‘to who actually made the decision or caused the decision to be
made, not simply to who officially made the decision.’” Arismendez v.
Nightingale Home Health Care, Inc., 493 F.3d 602, 608 (5th Cir. 2007)
(quoting Russell, 235 F.3d at 227); see also Russell, 235
F.3d at 226 (“Typically, the person with authority over the employment decision
is the one who executes the action against the employee. However, that is not
necessarily the case.... If the employee can demonstrate that others had
influence or leverage over the official decisionmaker, and thus were not
ordinary coworkers, it is proper to impute their discriminatory attitudes to
the formal decisionmaker.”).
Likewise, a
reasonable jury would not be required to agree with the district court
(ROA.2951) that Garza had no influence over Ramzinski. As described supra
at 7, 12, the record contains evidence that Garza, who knew Ramzinski wanted to
fire Lockhart, set Lockhart up by first allowing him to enter through the wrong
landfill gate and then reporting him to management. This was the same
individual—Garza—who had repeatedly called Lockhart mayate and the n-word and
directed Wilson to make Lockhart park his truck in the sludge. Accordingly,
these slurs should have been considered as evidence that Ramzinski and Garza
harbored racial animus toward Lockhart. See Russell, 235 F.3d at
225 (“The value of such remarks is dependent upon the content of the remarks
and the speaker.”).
Although Lockhart was unaware during his
employment that Ramzinski and Garza were directing racial slurs at him and
other Black employees, they are still probative evidence of discrimination. Unlike
a hostile work environment claim, where Lockhart would have had to have at
least known of the remarks at the time, for a disparate treatment termination
claim the issue is whether he was terminated because of his race, and the slurs
are evidence of the decisionmaker’s motivation regardless of whether Lockhart
was present to hear them. See, e.g., Rachid
v. Jack In The Box, Inc., 376 F.3d 305, 313
(5th Cir. 2004) (ageist comments made about plaintiff at a meeting from which he
was absent established a prima facie case that he was discharged because of his
age). Racial slurs made generally about a protected class are probative of
discriminatory intent. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-14
n.2 (1983) (evidence of a decision-maker’s generalized derogatory remarks about
a particular group is relevant and admissible to prove race discrimination); Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 653 (5th Cir. 2012) (evidence of
discrimination against other members of the plaintiff’s protected class is
admissible and may be highly probative).
The district court wrote off these slurs entirely,
characterizing Ramzinski’s use of them only as “troubling.” ROA.2951. For
example, the court dismissed Lockhart’s evidence that Ramzinski “sometimes”
called him “mayate” as “only general allegations.” ROA.2952. But while the lack
of more specifics may affect the probative value of this evidence to some
degree, as this Court has observed, it does not render it irrelevant. See
Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 436 (5th Cir. 2005)
(“Harvill’s assertions that she was touched ‘numerous times’ instead of
providing exact dates or the exact number of instances do not render her
allegations so conclusory that they fail to create a genuine issue of material
fact.”).
The court also concluded that Ramzinski only used
“mayate” as a joke and that derogatory language in this
workplace was common. ROA.2952. But a racial slur used by a supervisor is
inherently not a joke. Cf. Gates v. Bd. of Educ. of City of Chi.,
916 F.3d 631, 638 (7th Cir. 2019) (“We have repeatedly treated a supervisor’s
use of racially toxic language as much more serious than a coworker’s.”). Even
if the use of racial slurs could be construed as innocuous, whether or not
Ramzinski was joking was quintessentially a question of fact inappropriate for
the court’s resolution on summary judgment. See, e.g., DeCorte v. Jordan, 497
F.3d 433, 437 (5th Cir. 2007) (Rule 50(b) case) (“‘Credibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.’”)
(internal citations omitted).
Moreover, an
employee’s right to be free from illegal discrimination under Title VII does
not vary depending on his workplace—there is no “blue collar” exception to the
statute. In a different but related line of case law—addressing the objective
severity of alleged hostile work environments—courts have routinely held that
common usage or rough working conditions do not render bigoted comments
permissible. See, e.g., Jackson v. Quanex Corp., 191 F.3d 647,
662 (6th Cir. 1999) (reversing district court’s “disturbing” minimization of
evidence of racial slurs as “conventional conditions on the factory floor”);
cf. Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810
(11th Cir. 2010) (en banc) (“[A] member of a protected group cannot be forced
to endure pervasive, derogatory conduct and references that are gender-specific
in the workplace, just because the workplace may be otherwise rife with generally
indiscriminate vulgar conduct.”); EEOC v. Sunbelt Rentals, Inc., 521
F.3d 306, 318 (4th Cir. 2008) (“Title VII contains no [] ‘crude environment’
exception, and to read one into it might vitiate statutory safeguards for those
who need them most.”).
The court also
asserted that the record contains no testimony that the slurs were “used to display
racial animosity against African Americans in general or Lockhart specifically.”
ROA.2952. But this Court’s circumstantial evidence test does not consider whether
the racist remarks were used to “display” animosity—nor is it conceivable that
the use of such slurs is not a display of racial animosity. If the slurs
reveal animus and are made by the decisionmaker or a person with leverage over
the decisionmaker, they are circumstantial evidence of race discrimination, whether
or not they were uttered in connection to the termination decision. See
supra at 26.
Finally, the
district court erroneously discounted Puga’s testimony that Ramzinski referred
to Lockhart as “pinche mayate” on the grounds that it “cannot undermine
Plaintiff’s own testimony that Ramzinski disliked him because of his complaints
about pay.” ROA.2953. Even assuming Lockhart’s complaints about the San Antonio
facility’s pay practices were one reason for his termination, this does not
necessarily preclude a finding that Republic terminated him because of his
race.
Title VII
requires Lockhart to show that he was fired “because of” his race, 42 U.S.C. § 2000e-2(a)(1),
not that race was the only reason for his termination. See Price
Waterhouse v. Hopkins, 490 U.S. 228, 241&
n.7 (1989) (plurality op.) (observing that Congress considered and rejected
placing the word “solely” before “because of” when enacting Title VII; “Title
VII meant to condemn even those decisions based on a mixture of legitimate and
illegitimate considerations”). “An employer violates Title VII when it
intentionally fires an individual employee based in part on [race]. It doesn’t matter if other factors besides the
plaintiff’s [race] contributed to the decision.” Bostock, 140 S.
Ct. at 1741; see also Burrage v. United States, 571 U.S. 204, 211 (2014) (observing that but-for
causation “follows if the predicate act combines with other factors to produce
the result, so long as the other factors alone would not have done so—if, so to
speak, it was the straw that broke the camel’s back”); Roy v. Correct
Care Sol’ns, 914 F.3d 52, 64 (1st Cir. 2019) (in vacating grant of summary
judgment on Title VII sex-based hostile work environment claim, ruling that it
was for the jury to determine how much of the harassing conduct was based on
the plaintiff’s whistleblowing and how much was infected by sex
discrimination). Thus, at the very least, the
district court should have considered Ramzinski’s and Garza’s use of racial
slurs as strong circumstantial evidence of race discrimination against
Lockhart.
For the foregoing reasons, the judgment of the district
court should be vacated and the case remanded for further proceedings.
Respectfully submitted,
SHARON FAST
GUSTAFSON
General Counsel
JENNIFER S.
GOLDSTEIN
Associate
General Counsel
ELIZABETH E.
THERAN
Assistant
General Counsel
s/Julie L. Gantz
JULIE L. GANTZ
Attorney
Equal Employment
Opportunity Commission
Office of
General Counsel
131 M St. N.E.,
5th Floor
Washington, D.C.
20507
(202) 663-4718
julie.gantz@eeoc.gov
This brief complies with the type-volume
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spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.
s/Julie L. Gantz
JULIE L. GANTZ
Attorney
Equal Employment
Opportunity Commission
Office of
General Counsel
131 M St. N.E.,
5th Floor
Washington, D.C.
20507
(202) 663-4718
julie.gantz@eeoc.gov
Dated:
September 23, 2020
