187 F.3d 1287 (11th Cir. 1999), 97-3458, Wright v Southland Corp.

Docket Nº:97-3458.
Citation:187 F.3d 1287
Party Name:James D. WRIGHT, Plaintiff-Appellant, v. SOUTHLAND CORPORATION, a foreign corporation authorized to do business in the State of Florida, Defendant-Appellee.
Case Date:September 03, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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187 F.3d 1287 (11th Cir. 1999)

James D. WRIGHT, Plaintiff-Appellant,


SOUTHLAND CORPORATION, a foreign corporation authorized to do business in the State of Florida,


No. 97-3458.

United States Court of Appeals, Eleventh Circuit

September 3, 1999

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        Appeal from the United States District Court for the Middle District of Florida. (No. 95-819-Civ-ORL-18), G. Kendall Sharp, Judge.

        Before TJOFLAT, COX and HULL, Circuit Judges.

        TJOFLAT, Circuit Judge:

        This appeal presents a question that has baffled courts and commentators for some time: What constitutes "direct evidence" of employment discrimination? After carefully examining our cases on the question, as well as the legal framework into which those cases fit, we conclude that direct evidence of employment discrimination is evidence from which a trier of fact could conclude, based on a preponderance of the evidence, that an adverse employment action was taken against the plaintiff on the basis of a protected personal characteristic. In this case, the district court relied upon an incorrect definition of direct evidence in granting summary judgment for the defendant; we therefore vacate the grant of summary judgment and remand the case for further proceedings based on the analysis presented herein.


        James D. Wright was the manager of a 7-11 convenience store in Kissimmee, Florida. He held that position from 1978 until 1995, at which time he was discharged.

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        The Southland Corporation--owner of the 7-11 chain--asserts that it fired Wright because of continuing merchandise control problems; in other words, a substantial portion of the merchandise received by Wright's store had disappeared without being accounted for in either sales or inventory. In addition, Southland cites two violations of its "Banking Awareness Policy": one based on discrepancies between written deposit records and actual amounts deposited, and one based on a failure to make a nightly deposit.

        Wright, however, asserts different explanations for his discharge. Wright claims that Southland fired him because of his age (55 at the time of discharge), in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34 (1994). In the alternative, Wright argues that he was discharged in retaliation for his filing of a claim of age discrimination with the Equal Employment Opportunity Commission ("EEOC") shortly before his termination, in violation of section 704 of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-3(a) (1994).

        Wright filed suit in the United States District Court for the Middle District of Florida seeking damages and an injunction ordering Southland to reinstate him. The district court granted summary judgment for Southland. Wright appeals.


        Employment discrimination law has become an area of great--and often needless--complexity in the federal courts. We therefore begin this part of our opinion by summarizing the basic principles of that law. We then (in section B) address the particular issue raised by this case: the meaning of the "direct evidence" standard in employment discrimination cases.


        Every employment decision involves discrimination. An employer, when deciding who to hire, who to promote, and who to fire, must discriminate among persons. Permissible bases for discrimination include education, experience, and references. Impermissible bases for discrimination, under federal law, include race, sex, and age. See 29 U.S.C. § 623; 42 U.S.C. § 2000e-2(a) (1994). Thus, in an employment discrimination suit, the key question usually is: On what basis did the employer discriminate? Put another way, the question is one of causation: What caused the adverse employment action of which the plaintiff complains?

        The means by which a plaintiff can prove impermissible discrimination have been modified somewhat since the passage of the first anti-discrimination laws.1 Prior to 1973, employment discrimination cases were tried in the same manner as any other civil action. Cf. Preface, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1111 (1971) (stating that employment discrimination cases alleging disparate treatment are "analytically easy," and "the only issues are factual"). The plaintiff had the burden of presenting evidence from which the trier of fact could conclude, more probably than not, that the defendant-employer took an adverse employment action against the plaintiff on the basis of a protected personal characteristic. If the plaintiff failed to carry this burden, then the employer was entitled to summary judgment or judgment as a matter of law. See Fed.R.Civ.P. 50, 56. If, however, the plaintiff succeeded in carrying this burden, then the trier of fact had to listen to all of the evidence and determine whether a protected personal characteristic was the cause of the adverse employment action. This traditional method of trying a case will hereinafter be called the "traditional framework."

        The nature of discrimination suits, however, rendered the traditional framework

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inadequate to effect fully Congress' intent to eliminate workplace discrimination. A discrimination suit (unlike, for instance, an action for negligence or breach of contract) puts the plaintiff in the difficult position of having to prove the state of mind of the person making the employment decision. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (noting difficulty of the issue). Furthermore, unlike some other torts, in which state of mind can be inferred from the doing of the forbidden act, the employer's state of mind cannot be inferred solely from the fact of the adverse employment action--in other words, whereas in an action for battery the defendant's intent to cause harm may be inferred solely from the fact that he was swinging a baseball bat at the plaintiff, an employer's intent to discriminate cannot be inferred solely from the fact that he discharged an individual with a protected personal characteristic.

        To make matters somewhat easier for plaintiffs in employment discrimination suits, the Supreme Court, in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), developed a presumption that supplemented--but did not replace--the traditional framework.2 See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir.1987). This presumption operates as follows: If a plaintiff chooses to make use of the McDonnell Douglas presumption, he initially does not need to present evidence from which the trier of fact could conclude that the adverse employment action taken against him was caused by improper discrimination. Instead, he need only establish that (1) an adverse employment action was taken against him, (2) he was qualified for the job position in question, and (3) different treatment was given to someone who differs in regard to the relevant personal characteristic.3 For instance, if a plaintiff alleges that he was passed over for a job promotion because of his race,

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then under McDonnell Douglas he must establish that (1) he was in fact passed over for the promotion, (2) he was qualified for the higher position, and (3) an individual of a different race was given the higher position. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1333 (11th Cir.1998). If a plaintiff alleges that she was fired because of her sex, then under McDonnell Douglas she must establish that (1) she was in fact fired, (2) she was qualified for her position, and (3) she was replaced by a male (or that males with similar qualifications were retained). See Lee v. Russell County Bd. of Educ., 684 F.2d 769, 773 (11th Cir.1982).4

        Once the plaintiff has established these elements (in other words, persuaded the trier of fact by a preponderance of the evidence of these facts: adverse employment action, qualifications, and differential treatment), unlawful discrimination is presumed. See Walker v. Mortham, 158 F.3d 1177, 1183 (11th Cir.1998). The defendant-employer can rebut this presumption only by articulating a legitimate, nondiscriminatory reason (or reasons) for the adverse employment action. See id. at 1184. If the employer fails to do so, the plaintiff is entitled to judgment as a matter of law. See id. If, however, the employer carries its burden (a burden of production, not persuasion), then the McDonnell Douglas presumption "drops from the case." Id. At this point, the case is placed back into the traditional framework--in other words, the plaintiff still bears the burden of proving, more probably than not, that the employer took an adverse employment action against him on the basis of a protected personal characteristic. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 2747-48, 125 L.Ed.2d 407 (1993). The McDonnell Douglas presumption, however, has made the plaintiff's task somewhat easier: The plaintiff now has evidence of the employer's proferred reasons for the adverse employment action, and can attempt to show that these proferred reasons are a pretext for discrimination.5 See id. at 516-17, 113

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S.Ct. at 2752. (stating that "proving the employer's [proffered] reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination").

        Note that the facts required to establish the McDonnell Douglas presumption are neither necessary nor sufficient to establish discrimination under the traditional framework. They are not necessary because a plaintiff may be able to prove discrimination...

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