644 F.3d 1321 (11th Cir. 2011), 09-15428, Smith v. Lockheed-Martin Corp.

Docket Nº:09-15428.
Citation:644 F.3d 1321
Opinion Judge:TJOFLAT, Circuit Judge:
Party Name:William SMITH, et al., Plaintiffs, v. LOCKHEED-MARTIN CORPORATION, d.b.a. Lockheed-Martin Aeronautics Company, Defendant-Appellee. Anthony Mitten, Plaintiff-Appellant,
Attorney:Daniel M. Klein, John Franklin Beasley, Jr., Edward Daniel Buckley, III, Buckley & Klein, LLP, Atlanta, GA, for Appellant. Joshua H. Viau, Richard M. Escoffery, Stanford G. Wilson, Elarbee, Thompson, Sapp & Wilson, LLP, Atlanta, GA, for Appellee.
Judge Panel:Before TJOFLAT, CARNES and REAVLEY,[*] Circuit Judges.
Case Date:June 30, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1321

644 F.3d 1321 (11th Cir. 2011)

William SMITH, et al., Plaintiffs,

Anthony Mitten, Plaintiff-Appellant,


LOCKHEED-MARTIN CORPORATION, d.b.a. Lockheed-Martin Aeronautics Company, Defendant-Appellee.

No. 09-15428.

United States Court of Appeals, Eleventh Circuit.

June 30, 2011

Page 1322

Daniel M. Klein, John Franklin Beasley, Jr., Edward Daniel Buckley, III, Buckley & Klein, LLP, Atlanta, GA, for Appellant.

Joshua H. Viau, Richard M. Escoffery, Stanford G. Wilson, Elarbee, Thompson, Sapp & Wilson, LLP, Atlanta, GA, for Appellee.

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

Before TJOFLAT, CARNES and REAVLEY,[*] Circuit Judges.

Page 1323

TJOFLAT, Circuit Judge:

In this " reverse" discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, Anthony Mitten, a white male, claims that his former employer, Lockheed-Martin Aeronautics Company (" Lockheed" ),1 discriminated against him on account of his race in terminating his employment. The district court granted Lockheed summary judgment, and Mitten appealed. Our task, consequently, is to determine whether the district court misapplied the summary judgment standard to the evidence presented. Holding that it did, we vacate the district court's judgment and remand the case for further proceedings.



Lockheed prohibits workplace discrimination and harassment under a workplace-conduct rule it calls its " zero tolerance policy." The zero tolerance policy provides notice to employees that Lockheed's department of Human Resources (" HR" ) will discipline anyone who, at work, engages in an act of discriminatory " harassment[2] based on a legally protected status such as race ... when it has the effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive work environment." This includes using Lockheed email accounts " in ways that are disruptive, abusive, obscene, or degrading, or offensive to others," such as the distribution or " transmission of ethnic slurs or racial comments. " (Emphasis added).3

HR frequently learns of violations of the zero tolerance policy through employees, as Lockheed requires its employees to aid HR in policing the workplace-conduct rule. The expectations placed on employees vary based on their employment rank. Employees having no supervisory responsibilities (" non-supervisors" ), for instance, must ensure only their own compliance with the policy and inform their supervisors or HR whenever they discover a violation. Those with supervisory responsibilities (" supervisors" ), however, must be more proactive,4 including " [r]eport[ing] promptly to [HR] any act of harassment which is personally witnessed or suspected or reported by [an] employee."

Page 1324

Once HR learns of a possible infraction of the zero tolerance policy, it initiates an investigation. If its investigation concludes that an employee breached the zero tolerance policy, HR, through an empaneled disciplinary review committee, fashions discipline, up to and including termination.

It is against this background that Mitten's case arises.


On March 29, 2005, Mitten, then a supervisor at Lockheed's plant in Marietta, Georgia,5 received a racially insensitive " joke" email.6 The email, entitled " Top Ten Reasons Why There are No Black NASCAR Drivers" (the " NASCAR email" ), featured a top-ten list of derogatory stereotypes, all of which portrayed black people as criminals, pimps, and gang members. Two of the list's entries, as illustration, claimed there are no blacks in NASCAR racing because a " [p]istol won't stay under the front seat" and because there is " [n]o passenger seat for the ho."

After Mitten received the NASCAR email, he transmitted it in violation of the zero tolerance policy by forwarding it to his supervisor.7 He did not report any of this to HR. HR, however, learned of Mitten's actions and, following an investigation, fired Mitten on May 5, 2005.

Mitten later learned that, within two months of his termination, HR discovered that two black non-supervisors at the Marietta plant had also violated the zero tolerance policy by transmitting racist emails targeting whites. These black employees, however, merely received temporary suspensions as discipline for their conduct.

After learning of this more-lenient treatment for black employees, Mitten concluded that he had been fired— in lieu of a temporary suspension— because he is white.


Mitten brought this lawsuit against Lockheed on July 28, 2006,8 in the United States District Court for the Northern District of Georgia.9 The complaint was framed in two counts: the first under Title VII of the Civil Rights Act of 1964,10 and the second under 42 U.S.C. § 1981. 11 Both counts alleged that Lockheed terminated

Page 1325

Mitten's employment due to his race and, as remedy for the wrong, sought reinstatement, back pay, and compensatory and punitive damages.12 Lockheed answered the complaint, denied liability, and, after discovery closed, moved the district court for summary judgment. The court referred Lockheed's motion to a magistrate judge, who issued a report recommending that the motion be granted. 13 The magistrate judge— and later the district court— rejected Mitten's claim of race discrimination after analyzing it under the three-step burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973).14

The first step of the McDonnell Douglas framework requires the plaintiff to make out a case sufficient to withstand a motion for summary judgment (or a motion for judgment as a matter of law)— i.e., a " prima facie case." When, as here, the plaintiff claims that his employer discharged him on account of his race, he must establish four elements: (1) that he is a member of a protected class (here, Caucasian15); (2) that he was qualified for the position he held; (3) that he was discharged from that position; and (4) that in terminating his employment, his employer treated him less favorably than a similarly situated individual outside of his protected class (here, an African-American).16 E.g., Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir.2003) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). If the plaintiff makes this showing, he raises a presumption that his race motivated his employer to treat him unfavorably. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).

Once this presumption is raised, " [t]he burden then shifts to the employer to rebut [it] by producing evidence that [the employer's] action was taken for some legitimate, non-discriminatory reason." EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir.2002) (citing Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094). If the employer meets its burden of production, the presumption of discrimination

Page 1326

raised by the plaintiff's prima facie case is rebutted and thus disappears.

Once the presumption of discrimination is rebutted, the inquiry " ‘ proceeds to a new level of specificity,’ " whereby the plaintiff must show the employer's proffered reason to be a pretext for unlawful discrimination. Id. at 1272-73 (citing Burdine, 450 U.S. at 255-56, 101 S.Ct. at 1095-96). It is at this stage that the plaintiff's " burden ... merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination." Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. Thus, if a jury reasonably could infer from the evidence presented that the employer's legitimate justification is pretextual, the question becomes whether the evidence, considered in the light most favorable to the plaintiff, yields the reasonable inference that the employer engaged in the alleged discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48, 120 S.Ct. 2097, 2108-09, 147 L.Ed.2d 105 (2000) (explaining that, depending on the facts of the case, the jury may, but need not, infer discriminatory intent from a plaintiff's showing of pretext). If such an inference is raised by the record, it precludes summary judgment (or judgment as a matter of law). Id.

Here, the magistrate judge concluded— and the district court subsequently agreed— that Mitten could not benefit from the McDonnell Douglas presumption of discrimination because the evidence was insufficient to raise the presumption. This was because Mitten did not satisfy the fourth element of a prima facie case; he failed to show that he was disciplined less favorably under the zero tolerance policy than a similarly situated black employee, i.e., a " comparator." 17 Although Mitten pointed to certain preferentially treated black employees in non-supervisory positions, he failed to identify a more favorably treated black supervisory employee.

This was significant. " [D]ifferences in job ranks ... are not, in and of themselves, dispositive as to whether the two individuals may be compared for the purposes of evaluating a discrimination claim," Rioux v. City of Atlanta, 520 F.3d 1269, 1281 (11th Cir.2008) (citations omitted), but they can matter. This is because the relevant inquiry is whether the employer subjected differently ranked employees to the same or different employment policies. Lathem v. Dep't of Children & Youth Servs., 172 F.3d 786, 793 (11th Cir.1999) (citing Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1186 (11th Cir.1984)). If the same policies were applied differently to similarly ranked employees, those employees may be...

To continue reading