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Replacement of Black Woman with Hispanic Woman Does Not Preclude Race- and Sex-Bias Claims

By Kathryn P. Roberts  3/24/2014

The unique stereotypes imposed on black women may support a “sex-plus” discrimination claim even when the employee’s replacement was also a woman, the 6th U.S. Circuit Court of Appeals ruled. The plaintiff, Marilyn Shazor, alleged discrimination based on race and sex, in violation of Title VII of the 1964 Civil Rights Act . Although the replacement was a Hispanic woman, the court permitted Shazor to proceed with both her race- and sex-bias claims, reasoning that the discrimination faced by black women is distinct from that suffered by black men or nonblack women.

The defendant, Professional Transit Management Ltd. (PTM), provides management services to transit authorities in the United States. PTM selected Shazor as the CEO of the Southwest Ohio Regional Transit Authority (SORTA). Her direct supervisor, a founding member of PTM, was also the decision-maker in her termination.

Senior PTM officials, all of whom were men, began to privately criticize Shazor for a perceived lack of loyalty after she declined training opportunities and canceled meetings with company officials . They speculated that Shazor and Melody Richardson, SORTA’s board chair, were conspiring to have SORTA hire Shazor directly. In e-mails, the PTM officials referred to Shazor as a “prima donna,” disrespectful and disloyal, and they predicted she would “eventually fail in a big way.” After learning that Shazor would attend a meeting with Vice President Joe Biden, one senior PTM official asked in a private e-mail, “Are you gagging yet?” These officials also referred to Shazor and Richardson as “the girls,” and to Richardson as the “Wicked Witch.” In similar e-mails a few months later, the officials referenced litigation. One stated that he would not confront Shazor directly because she might “end up using it against [him] if there are legal actions taken.” In response, another agreed and said, “The key now is to win this.”

 Shazor’s one-year performance review, prepared by one of these officials, was mixed. He gave Shazor high marks for the quality of her work but criticized her leadership skills. Nonetheless, the reviewer recommended that Shazor receive a 3 percent raise.

Shazor’s termination came about in the context of SORTA’s decision to retain a consultant to advise on employees’ unionization efforts. The termination was based on two perceived lies told by Shazor: that her supervisor was unavailable to act as the consultant and that she played no role in selecting an outside consultant. Her supervisor disputed his unavailability and, in a conversation with PTM’s general counsel, learned that Shazor had indeed played a role in choosing the consultant. Shortly thereafter, the supervisor terminated Shazor for telling two lies and replaced her with a Hispanic woman.

The district court dismissed Shazor’s claim on summary judgment because the direct evidence did not implicate the decision-maker, Shazor’s replacement was a member of her protected gender class, and the plaintiff had thus failed to state a prima facie claim of gender discrimination.

On appeal, the 6th Circuit declined to rule on the sufficiency of Shazor’s direct evidence because it found that her claims could proceed on indirect evidence. The court rejected the premise that Shazor’s replacement, as a Hispanic woman, was in the same protected class as Shazor, a black woman. The court observed that the categories of race and sex do not exist in isolation and the combination of two protected classifications may support a discrimination claim (a category of claims referred to as “sex-plus”). It wrote, “African American women are subjected to unique stereotypes that neither African American men nor white women must endure.” Accordingly, the court ruled that the plaintiff’s discrimination claim could proceed on evidence of both sex and race discrimination, even though Shazor was replaced by a woman.

The court also found that Shazor raised questions of fact as to the reason given for her termination— namely that she had lied twice to the SORTA board. The record contained evidence that her supervisor had told Shazor that he was unavailable, including an e-mail in which he said he was busy with other union issues in another state. What’s more, the court found insufficient evidence that Shazor lied about her role in hiring the consultant. Her supervisor testified that, according to SORTA’s general counsel, Shazor was involved in the decision to hire the consultant. However, because this statement was offered for its truth—that Shazor lied when she denied being involved—it was inadmissible hearsay. Without this evidence to buttress the allegation, the dispute was one of credibility, creating an issue of fact.

Finally, the court rejected PTM’s honest-belief defense. An employer may generally avoid liability if it honestly believes the reason for the adverse action, even when that reason later proves false, so long as the decision is reasonably informed and considered. The court was not satisfied that the supervisor’s abbreviated investigation—a single conversation—was sufficient to establish that Shazor’s statements were both false and intentional.

Shazor v. Professional Transit Management Ltd., 6th Cir., No. 13-3253 (Feb. 19, 2014).

Professional Pointer: Ideally, an employer should be able to demonstrate that the basis for a termination decision is well documented, motivated by verifiable facts and reached after some deliberation.

Kathryn P. Roberts is an attorney at the Portland, Oregon, office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., an international labor and employment law firm representing management.

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