By Sam Fulkerson
In employment law, it’s all about causation. In other words, the question in every case is whether the challenged employment action was actually caused by unlawful bias. A recent case from the U.S. Tenth Circuit Court of Appeals (whose rulings apply to Oklahoma employers) illustrates how the courts go about determining causation.
The employee in this case (whom we’ll refer to as John Doe) is African American. He was employed by a Kansas school district as a physical education teacher from 1980 to 1996 and served as a basketball coach for part of that time. During his tenure, he received a number of critical teacher evaluations, was transferred from coaching girls’ basketball based on a report of inappropriate conduct, and was discharged as a boys’ coach because of performance issues. In 1991, Doe sued the school district for race discrimination and retaliation. When he lost the case, he was ordered to pay attorneys’ fees. He continued teaching in the school district until 1996, when he relocated to Texas.
Doe later returned to Kansas, and on June 20, 2000, he submitted an application to the school district for open teaching and coaching jobs. The district’s HR manager interviewed him in August 2001. After the interview, she sent him a letter stating that based on his past employment record with the school district, the superintendent had decided he wouldn’t be considered for rehire.
In the summer and fall of 2009, Doe applied for three positions with the school district: (1) head coach, (2) substitute teacher, and (3) special education teacher. He claimed that in June 2009, while he was at a local YMCA, a high-school principal told him he would hire him as head coach if the current coach left. Although Doe later complained that he was denied an assistant coach position, he never formally applied for the job. He was invited to meet with the district’s substitute services coordinator on October 2, but he didn’t go because he was already working as a substitute teacher for another school district.
Additionally, a school board member had told Doe that another board member had commented during a September 17 board meeting that “all [Doe] wants to do is sue us.” Further, Doe was informed that at an October 1 board meeting, the board’s attorney stated the school district might face liability if Doe were hired and a sexual incident occurred between him and a student. On October 6, Doe’s attorney received notice from the school district that Doe wouldn’t be considered for any position.
In 2010, Doe filed a lawsuit alleging that the school district’s refusal to hire him for three separate positions in the summer and fall of 2009 was based on his race and in retaliation for his previous lawsuit, both in violation of Title VII of the Civil Rights Act of 1964.
Race discrimination claim
Title VII makes it unlawful for an employer “to fail or refuse to hire . . . any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race.”
The case turned on whether the school district’s decision not to rehire Doe was a pretext (i.e., a cover-up) for race discrimination. Doe contended that the following evidence demonstrated pretext:
- The school district retained him as an employee from 1980 to 1996, and his performance reviews during that period included positive statements.
- In his view, his 2001 meeting with the school district’s HR manager demonstrated her view that he was a “worthy candidate.”
- A principal’s 2009 comment that he would hire Doe for a head coaching position indicated that he was eligible for rehire.
- The substitute services coordinator’s invitation to meet demonstrated that “certain members of the district felt [Doe’s] qualifications were sufficient for rehire.”
- The school district superintendent who made the decision in 2001 not to rehire Doe didn’t consult his personnel file before making the decision, which itself was unusual because superintendents usually aren’t involved in those types of decisions.
- Doe was improperly required to go through the formal application process, while other employees were hired outside the process.
- Between 1999 and 2009, the school district hired numerous white female teachers and few African American teachers.
- Other employees who were “convicted of crimes” weren’t discharged, and others were rehired even though they had been terminated for misconduct.
- The school district had a fear of litigation and acted on that fear when it refused to rehire him.
- The alleged remarks made at school board meetings about Doe wanting to sue and being a risk demonstrated discriminatory and retaliatory motives.
The court found most of Doe’s evidence irrelevant based on the identity of the 2009 decisionmaker. Doe couldn’t dispute that the superintendent (who was the decisionmaker in 2009) had reviewed his personnel file in September 2009 and noted “many negative documents about [Doe’s] performance from several different sources.” The decision not to rehire him was made solely by the superintendent, not the school board or any of its members. The superintendent stated that although he was aware of Doe’s previous lawsuits, neither the lawsuits nor his race affected his decision not to rehire him.
Accordingly, the court held that Doe’s attempted reliance on statements made by the HR manager, the principal, and the substitute services coordinator was misplaced because there was no evidence that any of those individuals participated in — or had authority to participate in — the decision to not rehire him. Further, he couldn’t controvert the superintendent’s testimony. Instead, he argued that his evidence demonstrated that the superintendent should have recognized that he was qualified for employment, especially since he had received at least some positive performance reviews during his employment from 1980 to 1996 and hadn’t been fired.
The court stated that its role in evaluating the evidence “is to prevent intentional discriminatory . . . practices, not to act as a super personnel department, second guessing employers’ honestly held (even if erroneous) business judgments.” Thus, the court concluded that Doe’s evidence did not show pretext. It also found that his argument that he was required to go through the formal application process while others were not wasn’t supported by any actual evidence.
The court added that Doe’s own opinion, a vague reference to “two people” he believed were hired by a coach, and a 1987 newspaper article apparently describing the hiring of a coach were insufficient to raise a genuine dispute about whether the school district’s stated reason for the adverse employment action against him was pretextual.
Regarding Doe’s “statistical” evidence reflecting the gender and race of teachers the district hired between 1999 and 2009, the court found it was “meaningless without any additional information as to how many persons from different races applied for each position.” Similarly, the court rejected Doe’s claim that other employees who had been convicted of crimes or discharged for misconduct weren’t terminated (thus showing pretext) because he “fail[ed] to show the existence of any racial disparity in [the school district’s] treatment of employees accused of harassment.” Finally, the court excluded the remarks allegedly made at school board meetings as unreliable hearsay.
Title VII’s antiretaliation provision “forbids an employer from ‘discriminating against’ an employee . . . because that individual ‘opposed any practice’ made unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII proceeding or investigation.” To state a case of retaliation, an employee must show the following:
- He engaged in protected opposition to discrimination;
- A reasonable employee would have found the challenged action significantly adverse; and
- A causal connection exists between the protected activity and the significantly adverse employment action.
The court stated that the only disputed element of Doe’s retaliation claim was causation. His evidence of statements allegedly made at school board meetings and the school district’s “strong fear of litigation” was unreliable and therefore inadmissible. The court also stated that any claimed fear of litigation on the school district’s part was pure speculation. Thus, the Tenth Circuit concluded that Doe’s failure to establish a causal connection between his protected activity and an adverse employment action was fatal to his retaliation claim. Brown v. Unified School District No. 501 (10th Cir., 2012).
What this decision means to you
Employment discrimination law is all about establishing an evidentiary link between the decisionmaker’s state of mind and the challenged employment action. In other words, it’s about developing — or refuting — evidence that the decisionmaker’s unlawful bias actually caused the challenged employment action. If an employee can’t tie his evidence of alleged bias to the challenged action, then he won’t be able to prove causation and will lose.