Ferrill v. Parker Group, Inc.

• Decision Date: 26 February 1999
• Docket Number: No. 97-7013,97-7013
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 161, 75 Empl. Prac. Dec. P 45,777, 12 Fla. L. Weekly Fed. C 563 Shirley FERRILL, Plaintiff-Appellee, v. THE PARKER GROUP, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 468

168 F.3d 468

79 Fair Empl.Prac.Cas. (BNA) 161,

75 Empl. Prac. Dec. P 45,777,

12 Fla. L. Weekly Fed. C 563

Shirley FERRILL, Plaintiff-Appellee, v. THE PARKER GROUP, INC., Defendant-Appellant.

No. 97-7013.

United States Court of Appeals Eleventh Circuit.

Feb. 26, 1999.

Stephen A. Strickland, Jaffe, Strickland, Beasley & Drennan, PC, Birmingham, AL, for Defendant-Appellant.

Charles Isaac Brooks, Hycall Brooks, III, The Brooks Firm, P.C., Birmingham, AL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before BIRCH and BARKETT, Circuit Judges, and ALAIMO ^*, Senior District Judge.

ALAIMO, Senior District Judge:

Appellant, The Parker Group, Inc. ("TPG"), appeals the District Court's order granting summary judgment to plaintiff-appellee, Shirley Ferrill, on Ferrill's claim of race discrimination in job assignment in violation of Title 42 of the United States Code, section 1981. TPG argues that the District Court erred in finding TPG liable under § 1981 despite the District Court's finding that TPG had no racial animus. TPG also appeals the jury award of compensatory and punitive damages.

Because this appeal involves the grant of a motion for summary judgment, we review the facts in the light most favorable to TPG, the non-moving party on this motion.

I.

TPG is a telephone marketing corporation, often hired to perform work for political candidates. The conduct at issue in this case involves TPG's work making "get-out-the-vote" calls for various political candidates preceding the November 1994 election. About 60% of TPG's overall business is pre-election "get-out-the-vote" calling. Approximately 10% of such calling is race-matched, such that black voters are called by black TPG employees who use the "black" script, while white voters are called by white TPG employees who use a different, "white" script. ¹ Race-matched calling apparently is used only when specifically requested by customers. TPG employees doing the race-matched calling in 1994 were assigned separate calling areas and separate scripts according to race. To facilitate supervision, TPG also physically segregated employees who worked at race-matched calling. ² Black callers were segregated into one room, and white callers segregated into another. ³

Ferrill, an African-American woman, was hired as a temporary employee to fill TPG's pre-election staffing needs from September through November 1994. ⁴ She worked primarily on Jim Folsom's gubernatorial campaign, making race-matched "get-out-the-vote" calls. Ferrill was laid off during a "reduction in force" ("RIF") immediately after the election.

Ferrill filed this action under 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, ⁵ alleging race discrimination in her termination and job assignment. Ferrill and TPG filed cross-motions for summary judgment. The District Court granted TPG's Motion for Summary Judgment on the unlawful termination claim because Ferrill failed to rebut TPG's proffered legitimate nondiscriminatory reason for the termination, namely, a RIF. The District Court granted Ferrill's Motion for Summary Judgment on the unlawful job assignment claim. TPG appeals this grant of summary judgment to Ferrill.

After granting Ferrill's Motion for Summary Judgment and finding TPG liable on the unlawful job assignment claim, the District Court struck a jury to decide damages. The jury awarded Ferrill $500 in compensatory damages and $4000 in punitive damages. TPG also appeals this award of compensatory and punitive damages.

II.

Section 1981 prohibits intentional race discrimination in the making and enforcement of public and private contracts, including employment contracts. See, e.g., Johnson v. Railway Express Agency, 421 U.S. 454, 459-460, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975) (holding unequivocally that § 1981 protects against racial discrimination in private employment). Section 1981 liability must be founded on purposeful discrimination. See General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141, 3149, 73 L.Ed.2d 835 (1982); Lincoln v. Board of Regents of Univ. System of Ga., 697 F.2d 928, 935 n. 6 (11th Cir.1983).

A showing of disparate impact through a neutral practice is insufficient to prove a § 1981 violation because proof of discriminatory intent is essential. See General Bldg. Contractors Ass'n, 458 U.S. at 388, 102 S.Ct. at 3149 (recognizing that the drafters of § 1981 were not concerned with practices that were facially neutral); Lincoln, 697 F.2d at 935 n. 6. Accordingly, only direct or inferential modes of proving intentional discrimination are available to the § 1981 plaintiff. See Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549, 1561 (11th Cir.1988), overruled on other grounds by Swint v. Pullman-Standard, Inc., 493 U.S. 929, 110 S.Ct. 316, 107 L.Ed.2d 307 (1989) (where plaintiff proceeded on a theory of disparate impact, plaintiff is limited to Title VII and cannot seek the broader § 1981 remedies and longer liability period). Cf. Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir.1985) (where plaintiff claims only disparate treatment under both Title VII and § 1981, courts may analyze claims together).

The test for intentional discrimination in suits under § 1981 is the same as the formulation used in Title VII discriminatory treatment cases. See Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 2377-78, 105 L.Ed.2d 132 (1989). An employee who adduces direct evidence of disparate treatment on the basis of race makes out a prima facie case of intentional discrimination. The burden of persuasion then shifts from the employee to the employer, who must rebut the direct evidence of discrimination by affirmatively proving that it would have made the same decision even if it had not taken race into account. See Price Waterhouse v. Hopkins, 490 U.S. 228, 242, 109 S.Ct. 1775, 1786, 104 L.Ed.2d 268 (1989).

TPG has admitted that the 1994 assignments of "get-out-the-vote" calls and scripts were made on the basis of race and that TPG employees were segregated on the basis of race. ⁶ TPG's admission is direct evidence of disparate treatment on the basis of race and sustains Ferrill's prima facie case. The District Court relied on that unrebutted evidence to find TPG liable for intentional race discrimination in job assignments in violation of § 1981.

Implicit in the District Court's finding is the notion that racial animus and intent to discriminate are not synonymous. ⁷ In its Memorandum Opinion, the District Court stated that there is "no evidence" that TPG acted with any racial animus. The crucial issue then is whether a defendant who acts with no racial animus but makes job assignments on the basis of race can be held liable for intentional discrimination under § 1981. Clearly, the answer is yes.

In Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), the Supreme Court faced this very issue. In Goodman, union members sued their union for intentionally failing to assert race discrimination claims against the employer. The Court found that "there was no suggestion that the [defendant] held any racial animus against or denigrated blacks generally," id. at 668, 107 S.Ct. at 2625, but found the defendant liable for racial discrimination under § 1981 regardless of whether the union leaders were favorably disposed toward minorities. Id. at 669, 107 S.Ct. at 2625. The Goodman Court clearly held that liability for intentional discrimination under § 1981 requires only that decisions be premised on race, not that decisions be motivated by invidious hostility or animus. Id.

III.

Discrimination in employment on the basis of protected traits such as sex, religion, age, national origin, or race, may be permissible in at least three circumstances. First, disparate treatment on the basis of religion, sex, or national origin is allowed where a particular religion, sex, or national origin is deemed a qualification reasonably necessary to the functioning of a business (a "bona fide occupational qualification"). Secondly, facially neutral employer practices that disparately impact protected classes may be justified by "business necessity." Finally, under the aegis of "affirmative action," employers may engage in disparate treatment in favor of a protected class for the purpose of remedying past discrimination.

An employer may intentionally discriminate "on the basis of ... religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise...." 42 U.S.C. § 2000e-2(e)(1). The bona fide occupational qualification ("BFOQ") defense is an extremely narrow exception, see, e.g., Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977); EEOC Guidelines, 29 C.F.R. § 1604.2 (referring to BFOQ for gender), and is not available for racial discrimination. See Miller v. Texas State Bd. of Barber Exam'rs, 615 F.2d 650, 652 (5th Cir.1980) ⁸ (acknowledging that race is "conspicuously absent" from the statutory language); Swint v. Pullman-Standard, 624 F.2d 525, 535 (5th Cir.1980), overruled on other grounds by 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (professing court's belief that the omission of race and color as BFOQs was deliberate and intentional on the part of Congress and holding that the BFOQ defense is not available in race discrimination cases); Burwell v. Eastern Air Lines, Inc., 633 F.2d 361, 370 n. 13 (4th Cir.1980) (statutory BFOQ defense is not available for facial race discrimination in employment); Knight v. Nassau County Civil Serv. Comm'n, 649 F.2d 157, 162 (2d Cir.1981) (same). Because § 1981 proscribes discrimination solely on the basis of race, and the BFOQ defense does not apply to racial discrimination, the BFOQ...