In a March 20th decision that all employers should review, the Federal District Court for the Eastern District of Virginia, Alexandria Division, provided an excellent overview of summary judgment standards in discrimination decisions and issued two important rulings:
- That national origin, as protected within Title VII, should be read broadly to provide protection for the national origin of Caucasians of European Descent, and
- That to prove prima facie case of national origin discrimination in the Eastern District of Virginia, a plaintiff does not need to show “background circumstances that demonstrate that a particular employer has reason or inclination to discriminate invidiously against [majority groups] . . . or evidence that there is something ‘fishy’ about the facts at hand.”
In this case, the Plaintiff, a professor at Northern Virginia Community College (“NVCC”), filed an EEO Charge in September 2011 alleging national origin discrimination and retaliation with regard to his non-selection for a teaching position. In February 2012, the EEO issued plaintiff a “right to sue” letter. In May 2012, the Plaintiff filed his discrimination complaint. And, in January 2013, the Defendant filed for Summary Judgment.
EEO Charge Procedure: For employers who are not familiar with the process stemming from an EEO Charge, this time-line and procedure is typical. Following the receipt of a EEO Charge, the employer can either request mediation or file a Statement of Position with the EEO. Generally, we recommend that an employer elect to participate in mediation for two reasons: (1) it presents an opportunity to hear the charging party’s story and evidence — to determine the strength of their case and their “passion” to fight; and (2) it often presents an opportunity to quickly settle a claim — whether a frivolous claim or one with merit. Following mediation (or if mediation was not pursued), the employer must submit a Statement of Position with the EEO. The Statement of Position outlines the employer’s argument as to why the allegations of discrimination are without merit. During this time period, the EEO will also request information and/or conduct interviews and otherwise investigate the charge.
Following the EEO investigation and review of employer Statement of Position, the EEO will pursue one of three paths: (1) issue a Dismissal and Notice of Rights where finding of no reasonable cause of discrimination; (2) issue a Letter of Determination where finding there is reasonable cause to believe discrimination and invite the parties to pursue conciliation to resolve the charge; or (3) if the EEO decides not to pursue matter, the charging party will receive a Notice of Right to Sue and may file a lawsuit in federal court within 90 days. The right to sue letter is, by far, the most frequent outcome.
Burden to Provide Discrimination: A plaintiff may defeat summary judgment and establish intentional discrimination through two methods: (1) direct or circumstantial evidence; or (2) the burden-shifting framework known as the McDonnell Douglas Framework (which was applied in the NVCC case). Under the McDonnell Douglas Framework, it is a three step process. The first step is the Plaintiff proving a prima facie case of discrimination. This is a low threshold and, in the NVCC case, the plaintiff merely had to prove: (1) that he was a member of a protected class; (2) that he applied for the position in question; (3) that he was qualified for that position; and (4) that he was rejected under circumstances that give rise to an inference of unlawful discrimination. If the plaintiff provides evidence to establish a prima facie case, the second step of the McDonnell Douglas Framework is the employer articulating a legitimate, nondiscriminatory reasons for the plaintiff’s non-selection. And, if the employer satisfies this showing, in the third step, the burden shifts back to the plaintiff to show that the stated reason is a pretext for discrimination. The ultimate burden of showing discrimination remains at all times with the plaintiff.
In the NVCC case, because the E.D. VA held that national origin discrimination includes Caucasians of European descent and that no enhanced showing was necessary, the Court determined that the plaintiff satisfied step one of theMcDonnell Douglas Framework and proved the prima facie case of discrimination. (*Please Note, this is not the standard in all courts throughout the nation or even in the DC Area. For example, the D.C. Circuit does require an enhanced showing of discrimination). Accordingly, in this case, the burden then shifted to the employer to articulate a legitimate, nondiscriminatory basis for the hiring decision. To support its hiring decision, NVCC provided evidence that its selection committee interviewed and evaluated candidates and determined that another professor was the best candidate for the position. And, finally, with NVCC showing its legitimate, nondiscriminatory basis, the burden shifted back to the plaintiff to present sufficient evidence for a jury to conclude that the employer’s proffered reasons were false. In this case, the court determined that the plaintiff did not have evidence to show that NVCC’s stated legitimate, nondiscriminatory reasons were pretextual. The Court found that while the plaintiff may disagree with how NVCC assessed its hiring criteria and candidates’ qualifications, such disagreement was not sufficient to show pretext.
Accordingly, NVCC was granted summary judgment as to the plaintiff’s national origin discrimination claims.
PRACTICAL COUNSEL: (1) Employers must remember that within Northern Virginia, national origin discrimination claims will be broadly interpreted to include Caucasians of European descent; (2) under the McDonnell Douglas Framework, although the burden ultimately remains with plaintiff, an employer must be able to provide legitimate/nondiscriminatory evidence to substantiate their employment-related decisions (whether non-hiring, failure to promote, termination, etc). This is why employment attorneys are always reminding employers to create a paper trail and objectively make all employment decisions. Without objective (and documented) proof substantiating an employment decision, it is much more difficult for an employer to win summary judgment. Before making an adverse employment decision that could potentially lead to charge of discrimination, it is always recommended that you consult legal counsel to “talk through” the decision.
If you have any questions about this case, defending discrimination charges, need help with employment decisions, or any other legal matter, please contact Merritt Green, Managing Partner and Chair of General Counsel, P.C.’s Labor and Employment Practice Group at firstname.lastname@example.org or 703.556.0411.
The matters discussed in this newsletter are for informational purposes only and no legal advice is intended.