The Sixth Circuit recently addressed the issue of whether a “sex-plus” claim of discrimination, where a former employee claimed that she was discriminated against specifically for being an African American female, can be made under Title VII. The case is significant for reinforcing the notion that the various traits protected by Title VII necessarily coexist and should not always be considered separate from each other, but also for its emphasis on the importance of e-mail traffic in discrimination cases.
In Shazor v. Prof’l Transit Mgmt., Marilyn Shazor, an African American woman, was assigned by her employer, Professional Transit Management (“PTM”), to serve as the Chief Executive Officer of a regional transit authority. Tensions flared shortly after Shazor assumed the role of CEO because senior management officials began to question her allegiance to PTM. They exchanged e-mails in which they referred to her as “a ‘prima donna’ and not a team player” and as “one hellava bitch.”
After efforts were made by the union representing the transit authority’s bus drivers to expand the number of represented employees, the authority decided to retain a consulting firm in an effort to help educate managers and supervisors on how to handle the unionizing issues. Shazor’s supervisor claimed that Shazor had told two lies in connection with this decision – that the supervisor was unavailable to advise the transit authority regarding the union-organizing drive and that she had not played a role in selecting the consulting firm – and that those lies caused him to terminate her employment.
A Hispanic woman was ultimately selected to replace Shazor.
Shazor filed suit in federal court asserting race and gender discrimination. The District Court granted PTM’s motion for summary judgment and dismissed her claims. On appeal, the Sixth Circuit disagreed and reversed the lower court’s ruling.
The Sixth Circuit found that a prima facie case of race discrimination had been established and that Shazor had rebutted PTM’s legitimate nondiscriminatory reason for her discharge in a manner sufficient to allow her claims to survive summary judgment. On the question of whether Shazor was replaced by someone outside of her protected class, the Court held that Shazor’s replacement by someone of a different protected class was sufficient. That the replacement was also a member of a racial minority was of no consequence.
Despite the fact that she was replaced by a female, the Court held that her sex discrimination claim can proceed because it “cannot be untangled from her claim for race discrimination.” In other words, according to the Court, “African American women are subjected to unique stereotypes that neither African American men nor white women must endure.” In a “sex-plus” case like this one, where the Court finds that the plaintiff established a sufficient foundation of discrimination, the defendant is not permitted to “undermine her prima facie case by showing that white women and African American men received the same treatment.”
In determining that Shazor had successfully rebutted PTM’s legitimate nondiscriminatory reason for terminating her employment (that she lied), the Sixth Circuit focused on the disputed allegations pertaining to Shazor’s statements. With regard to Shazor’s alleged statement about her supervisor’s availability to provide advice to the transit authority, the Court found that e-mails demonstrating that the supervisor was working in Arizona at the time Shazor made the statements created a factual issue regarding the truthfulness of her statement. As to Shazor’s involvement in the selection of the consulting firm, her supervisor based his conclusion that she lied on a report from the transit authority’s general counsel. Because the supervisor’s version of events relied on inadmissible hearsay, the court determined that the evidence was inadmissible, even at the summary judgment stage. Without the general counsel’s statements, the record pertaining to this second lie was “little more than a he-said, she-said” and that Shazor’s testimony again created genuine issues of fact.
While PTM could have nevertheless avoided liability by proving that the supervisor had an “honest belief” in his justification for discharging Shazor, the Court held that the doctrine did not apply. Because the supervisor’s only investigation into the two alleged lies was one conversation with the general counsel of the transit authority, PTM was unable to prove that he made a “reasonably informed and considered decision before taking the complained-of action.” As described by the Court, “one conversation did not establish sufficient particularized facts about the truth behind [Shazor]’s statements, let alone her motive.”
Lessons for Employers
If Shazor had not brought a race discrimination claim in this case, her sex discrimination claim would have been quickly dismissed because she would not have been able to meet even the basic, prima facie, requirements of such claim. This decision reminds employers that rarely brought “sex-plus” claims, which turn an otherwise dismissible claim into one that survives summary judgment, are still viable in the Sixth Circuit. Additionally, it reminds employers that employment decisions should be measured and well-supported by a reasonable investigation. If Shazor’s supervisor had done more to inform his conclusion that she lied, this case may well have had a much different result.
Finally, e-mail traffic among the management of PTM played a critical role in the Court’s decision, even though the decision-making supervisor did not participate in the exchanges. Indeed, the Court stated that the e-mail comment calling Shazor “one hellava bitch” “unambiguously reveals sexist animus.” The e-mails also allowed Shazor to argue that the comments about her were “code for ‘angry black woman’ or ‘uppity black woman.’” Let this decision serve as another warning that management and supervisory employees should take care not to put anything in an e-mail that they would not want read in open court.