256 F.3d 1095 (11th Cir. 2001), 99-10579, Bass v Board of County Comm'r

Docket Nº:99-10579
Citation:256 F.3d 1095
Party Name:MICHAEL W. BASS, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS, Orange County, Florida, Defendant-Appellee.
Case Date:July 09, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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256 F.3d 1095 (11th Cir. 2001)

MICHAEL W. BASS, Plaintiff-Appellant,


BOARD OF COUNTY COMMISSIONERS, Orange County, Florida, Defendant-Appellee.

No. 99-10579


July 9, 2001

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Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 97-00308-CIV-ORL-18A


Before BLACK, CARNES and KRAVITCH, Circuit Judges.

CARNES, Circuit Judge:

Our previous opinion in this case, published at 242 F.3d 996 (11th Cir. 2001), is vacated. In its place, on petition for rehearing, we substitute this revised opinion. No member of the Court having requested a poll, we deny the suggestion for rehearing en banc. See Fed. R. App. P. 35; 11th Cir. R. 35-5.

Michael W. Bass appeals the district court's order granting summary judgment to the Board of County Commissioners of Orange County in his lawsuit claiming race discrimination in violation of Title VII and the Equal Protection Clause, as well as retaliation in violation of Title VII. For the reasons set forth below, we reverse and remand for a jury trial on his race discrimination and retaliation claims.


A. Facts

In August 1995, the Orange County Fire and Rescue Division (the "Division" or "Fire and Rescue Division") began a reorganization of its workforce as a result of a $9 million budget shortfall. A number of positions were eliminated, including all four Training Captain positions, one of which was held by Michael Bass, the white male plaintiff in this case. Like the other three people employed in that position, Bass received a layoff notice in September 1995.

The four Captain-level positions that were eliminated were replaced with three Lieutenant-level Training Instructor positions. Bass applied for one of those three positions. In order to become a Training Instructor, the County specified that a person must have "two years training instructor or closely related work experience" and "must possess and maintain a valid Florida Department of Education Teacher's Certificate or obtain [one] within 18 months of employment." Bass' qualifications exceeded those minimums. Moreover, according to Frank Montes de Oca, who was Chief in Charge of Training at the Division, as a training instructor Bass "was an excellent employee who constantly received good or outstanding evaluations." He was first or second in seniority among instructors, and, under terms of the union contract, should have been the last or next to last to be laid off in the event of a reduction in force.

All qualified persons, including those who had been laid off, were allowed to apply for the three Training Instructor positions. The Fire and Rescue Division used a Performance Based Interview system to select candidates for various positions, including the Training Instructor positions. In that type of interview, candidates are asked pre-selected questions

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to test their responses to hypothetical situations they may face on the job. The candidates are expected to respond by explaining what they have done in similar situations.

A three-member panel interviewed Bass and twelve other applicants for the three Training Instructor positions. The members of the interview panel were Charles Middleton (black male), Ray Valle (Hispanic male), and Betty Meeks (black female). At the time of the reorganization, Middleton was the Acting Assistant Department Manager in charge of Administration and had supervisory responsibility over the Division's Training Instructors. He was also a member of the Progressive Firefighters Association, an advocacy organization for black firefighters, and he was known to support affirmative action and a promotional "fast track" for minorities.

Middleton testified that he selected Meeks and Valle for the interview panel and that, in doing so, he "[t]ried to select people who had little or no involvement with the training function" so that they would have had nothing at stake in the Division's reorganization. Meeks was employed in the County's Human Resources Department, and admits that she had no knowledge beyond that of a lay person concerning the position of fire department training instructor. She was also known to be a supporter of affirmative action. Although Valle was employed by the Division, he worked as an information technology specialist and had no training in firefighting. Nothing in the record indicates Valle's views on affirmative action. Therefore, with the possible exception of Middleton,1 none of the panel members was a certified firefighter in Florida, nor had any panel member held a Training Instructor position.

Not only did the panel members lack experience as Training Instructors, none of them was given any training or guidelines (other than general training concerning interview skills) to help them evaluate which candidates were best qualified for the positions. Remarkably, none of them received any job description showing the duties of a Training Instructor. Nor did any of them receive the interview questions until just before the start of the interviews. They were not told to take notes of the interviews, and none of them did.

Mitch Floyd, who was Chief of the Fire and Rescue Division from 1989 until April 1995, stated in his affidavit that the County had adopted the interview process "to create some leeway to allow us to promote minority candidates." He stated under oath that the interview score was not supposed to be determinative, but was meant to be only one of several factors, including education, experience, and diversity (i.e., race and gender) that were to be considered. The County's written policy specifically stated that scores were not to be totaled and that the interview was only one component to be considered. Similarly, Tom Preston (not related to one of the candidates, Henry Preston), who developed the interview process for the Training Instructor position, stated that the interview scores were not intended to be

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determinative. The interviews for the Training Instructor positions took place in October 1995. After the panel finished interviewing all the candidates, the panel members combined their individual scores for each candidate and then ranked the candidates based on their aggregate interview scores. The panel ranked Bass ninth out of the thirteen applicants. Middleton and Valle testified that Bass did not answer the questions that were asked and did not interview as well as expected considering his experience as a training officer. (Meeks was not questioned about Bass interview performance during her deposition.) Contrary to the written policy and all the testimony about how the interview results were to be used, selections for the Training Instructor position were made solely on the basis of the interview scores.2 Because Bass received a low score on the interview, the panel did not choose him for one of the three Training Instructor positions. Instead, the panel chose three of the applicants whom it had given higher interview scores: a black male and two white females.

Henry Preston, the black candidate selected for one of the three Training Instructor positions, did not even meet the minimum qualifications for the position. His resume reflected that he had no experience as a Training Instructor and only two years of experience as a firefighter, even though one of the minimum requirements for a Training Instructor position was "two (2) years training instructor or closely related work experience." Moreover, Preston misrepresented his qualifications both on his general employment application and on his Training Instructor application. Although Preston represented on those documents that he attended the University of Central Florida for three years as an accounting major and earned 94 credits there, he had never attended that university. Preston testified in his deposition that the County's Human Resources Department knew he had "exaggerated" his educational credits. Initially he had submitted an application which truthfully showed he lacked the necessary qualifications, but someone from Human Resources told him that his application needed to be changed before it would be accepted. Taking the suggestion, Preston submitted a second application, and this one falsely stated he had attended the University of Central Florida. It was only on the basis of that lie about his qualifications,

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a lie he testified the County had encouraged, that Henry Preston was judged to be qualified for a Training Instructor position.

After being denied a Training Instructor position for which he was indisputably qualified, Bass was given the choice of being demoted to engineer/paramedic or being laid-off. He took the demotion. In October 1995, Bass filed a union grievance challenging his demotion and removal from training duties. On November 17, 1995, while his grievance was pending, Bass complained to the Division Chief James Moody that Henry Preston lacked the necessary qualifications for the Training Instructor position. Bass recorded the events in his diary, writing as follows:

Met with Moody. . . . Advised him that Preston, Reed and Kucik did not have an A.S. degree, only high school degree and Reed had a GED and Preston did not qualify for training position. Witnessed by Wertz and Angel Gonzales. Moody advised me that the County will continue to promote based on color and that I should file legal action against the County.

(emphasis added).

In December 1995, the County settled Bass' union grievance without a hearing by reassigning him to be a fourth Training Instructor. Bass was given the...

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