Kidd v. Mando Am. Corp.

• Decision Date: 27 September 2013
• Docket Number: No. 12–12090.,12–12090.
• Citation: 731 F.3d 1196
• Parties: Leanne Renee KIDD, Plaintiff–Appellant, v. MANDO AMERICAN CORPORATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

731 F.3d 1196

Leanne Renee KIDD, Plaintiff–Appellant,

v.MANDO AMERICAN CORPORATION, Defendant–Appellee.

No. 12–12090.

United States Court of Appeals,Eleventh Circuit.

Sept. 27, 2013.

Alicia K. Haynes, Kenneth Drew Haynes, Haynes & Haynes, PC, Birmingham, AL, for Plaintiff–Appellant.

Marcel L. Debruge, Jennifer Busby, Frank McRight, Kathryn Morris Willis, Burr & Forman, LLP, Birmingham, AL, for Defendant–Appellee.

Appeal from the United States District Court for the Middle District of Alabama. D.C. Docket No. 3:10–cv–00871–WHA–WC.

Before CARNES, Chief Judge, and WILSON, Circuit Judge, and HUCK, ^* District Judge.

HUCK, District Judge:

Appellant Leanne Renee Kidd, a white female, had her eyes on the assistant accounting manager position at Appellee Mando America Corporation, a Korean-owned auto-parts manufacturer. When the time came for Mando's management, composed entirely of Korean males, to select someone to fill the position, management gave the job to a Korean male named Byong Woo “B.W.” Seo. Mando claims the relevant decisionmakers selected Seo over a number of other pre-screened candidates—not including Kidd—because he had superior qualifications, not because he was a Korean male.¹

Kidd is not convinced. She contends that Mando's justification for hiring Seo is a pretext for its preference to fill managerial positions with Korean males. To support this assertion, Kidd relies on a remark made by one of Mando's human resource managers, Jerry Rolison. Kidd claims Rolison told her that Mando's management refused to consider American candidates for the assistant accounting manager position. From this statement—and other circumstantial evidence—Kidd contends a jury could reasonably find that Mando's hiring process was unlawfully discriminatory.

Kidd's ability to establish pretext hinges on the admissibility of Rolison's statement—an evidentiary question that neither the parties nor the district court has addressed. Out of deference to the well-established rule that we shouldn't pass judgment on issues the parties do not raise, we vacate the district court's grant of summary judgment, and allow it the opportunity to consider the admissibility of Rolison's statement. In our view, the resolution of this evidentiary question is in turn critical for the resolution of this case.

I. Background

This case arises out of a rocky employment relationship between Kidd and Mando. Kidd joined Mando's accounting department in January 2008 as the accountant in charge of accounts payable and the general ledger. Only a few months later, the assistant accounting manager (who was also Kidd's immediate supervisor), Tim Anderson, was terminated for performance reasons. When that happened, Kidd assumed added responsibilities; she became responsible for “anything that had to do with accounts payable,” and, in her view, “absorbed Mr. Anderson's position.” Despite Kidd's increased role, Mando did not appoint her—or anyone else—interim assistant accounting manager. Indeed, Mando left the position vacant for some time.²

While Kidd's responsibilities increased, her pay did not. Nor did Kidd receive a more senior title. Disappointed, Kidd attempted to tender her resignation after only six months on the job. When B.J. Cheong, Mando's accounting manager, became aware of Kidd's disappointment, he tried to persuade her to stay. Cheong expressed his appreciation to Kidd that she had taken on added responsibility, but informed her that Mando did not promote employees until they had been at the company for at least a year. Cheong did, however, promise Kidd that if she gave him “six more months [ ] we will get you promoted.” Apparently, Cheong and Kidd did not discuss a specific promotion.

Around the spring of 2009, Tae Kwak, Mando's president, asked Rolison, Mando's human resource manager, to gather resumes of prospective candidates for the assistant accounting manager job. Rolison did just that, utilizing the services of professional recruiters. Rolison forwarded the resumes submitted by the recruiters to Kwak. Kwak then selected a number of candidates he thought merited a closer review, and directed Scott Wren, another member of Mando's human resources department (“HR”), to telephonically interview those individuals. No one at Mando encouraged Kidd to apply nor did anyone identify her as a potential candidate.

Without interviewing any other candidates, Mando hired a Korean male, B.W. Seo. Seo was not among the candidates pre-screened by Wren. Seo instead came highly recommended by one of Mando's outside auditors. At the time, Seo was working for Sun Microsystems in Australia as an auditor.³

When word of Seo's hire spread, Kidd was none too pleased, having not been aware that Mando was actively seeking Anderson's replacement. Searching for answers, Kidd paid a visit to Rolison. Kidd claims that Rolison told her that he had shown Cheong and Kwak four separate resumes from qualified American candidates, but that “they refused to look at them for the position,” and that “they refused to even consider an American candidate,” Kidd Dep. 145:19–22; see id. at 346:7–12 (“Jerry Rolison told me himself that he had tried to get four Americans to be considered in the position [sic] and he was denied, they were not even allowed to interview”).⁴

Seo and Kidd's relationship was troubled from the start. At an initial meeting between the two, Kidd suggested that the accounting department change the way it allocated costs. This prompted Seo to ask Kidd for her resume—a request Kidd found disparaging. Upset, Kidd complained to HR. While Kidd claims her visit was met with a verbal reprimand from Seo—during which he told her that she had “no right to go to HR” and that she “did not need to contact anyone other than him if [she] had problems with him,”—a review of the record makes clear that Seo may not even have been aware of Kidd's complaint.⁵

After Seo's arrival, Kidd began losing the supervisory responsibilities she had assumed after Anderson's departure, though she suffered neither a decrease in pay nor a loss of title. Nevertheless, Kidd tendered her resignation on September 2, 2010. She credits her resignation to work conditions she viewed as unbearable.

Upset at the way she was being treated at Mando, Kidd filed two EEOC charges—one before she resigned, and one after. In her first EEOC charge, Kidd complained that she had not received the promotion she was promised because she was told that she “was not doing a good job because [she] could not work 80 to 100 hours per week like everyone else in the department.” She also complained that Seo was “very demeaning and insulting to all of the women in [her] department.” In light of this, and the absence of any female managers in Mando's 450–person company, Kidd alleged that Mando discriminated against her.

In Kidd's second EEOC charge, filed after her resignation, Kidd alleged that after filing her first EEOC charge, Seo removed all her responsibilities and that Seo verbally harassed and disparaged Kidd in meetings and other correspondence. Seo's reprisals allegedly became increasingly aggressive and hurtful with each of Kidd's successive complaints to HR. Because of all this, Kidd alleged that she was constructively discharged and forced from her job, and thus the subject of unlawful retaliation.

Kidd filed a complaint in the United States District Court for the Middle District of Alabama, alleging gender discrimination, racial discrimination, and national origin discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. She also advanced hostile work environment and unlawful retaliation claims, in addition to a number of state law claims. The basis of Kidd's employment discrimination claim was that Mando discriminated against her on account of her gender and national origin in failing to promote her to assistant accounting manager. The district court granted Mando's Motion for Summary Judgment as to Kidd's discrimination and retaliation claims, and declined to exercise supplemental jurisdiction over her state law claims.⁶ Kidd abandoned her hostile work environment claim before the lower court addressed Mando's motion.

II. Discussion

Before us, Kidd challenges the district court's grant of summary judgment in Mando's favor. She contends principally that the district court erred in: (1) failing to consider her unlawful demotion claim on the merits; (2) finding that she had not made out a prima facie case on either her discrimination or retaliation claims; and (3) holding in the alternative that Kidd did not create a material factual dispute as to whether the reason Mando offered for choosing Seo over her was pretextual. We review the district court's grant of summary judgment de novo viewing the facts and drawing all reasonable inferences in favor of Kidd.

A. The Discrimination Claim

Title VII prohibits employers from discriminating against their employees on the basis of their gender or national origin. 42 U.S.C. § 2000e–2(a). Kidd contends that Mando violated this prohibition in selecting Seo over her solely because he was a Korean male. McDonnell Douglas Corp. v. Green provides the familiar three-part framework under which we review a claim for employment discrimination that, as here, is based on circumstantial evidence, as opposed to direct evidence. 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

The Title VII plaintiff bears “the ultimate burden of proving discriminatory treatment by a preponderance of the evidence.” Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir.1990). Thus, under the first part of McDonnell Douglas, the plaintiff must establish by a preponderance of the evidence a prima facie case of discrimination. If she does, the burden of production shifts to the employer, which requires the employer to introduce evidence of “some legitimate, nondiscriminatory reason” for its employment decision. McDonnell Douglas, 411 U.S. at 802, 93...