Blog Post

White v. Baxter Healthcare Corp., No. 07-1626 (6th Cir. July 3, 2008)

July 06, 2008
Topic: Daily Developments in EEO Law

The Sixth Circuit has now created a genuine split in the circuits about how to analyze a claim brought under Title VII's so-called "mixed-motive" section, 42 U.S.C. § 2000e-2(m). It becomes the first circuit to publish a decision fully abandoning the use of the McDonnell Douglas/Burdine framework at the summary judgment stage in mixed-motive cases. The panel majority also takes a step away from pure deference to an employer's "business judgment" in the single-motive context.

White v. Baxter Healthcare Corp., No. 07-1626 (6th Cir. July 3, 2008): The employee presented two claims -- failure to promote, and the downgrading of his performance evaluation (leading to reduced future pay raises). The employee in the case was an African-American sales representative for the company, who enjoyed six successful years with the company before being assigned to a supervisor (Tim Phillips). Phillips (according to the summary judgment record) gave White a lot of racial flak:

"Soon after Phillips became his supervisor, White began to notice signs of a discriminatory animus toward African-Americans on the part of Phillips. For example, according to White, when he complained to Phillips about scheduling a work meeting on the Martin Luther King, Jr. holiday, Phillips responded by telling White that 'nobody wants to be around a black man.' J.A. at 106. Phillips had allegedly made a similar comment - 'no one wants to work with a black man' - when talking about workforce diversity with another Baxter employee, Jacinta Toland, on a previous occasion. J.A. at 633. White also noted that, during one of their conversations, Phillips had referred to an African-American sales representative as 'that black girl,' rather than referring to her by her name, Tanisha Gabriel, or by her position title. Likewise, Phillips would occasionally answer White's calls in jest by saying 'White, Todd' instead of calling White by just his first name as he would with other employees. Finally, White was disturbed when Phillips circulated an e-mail to Baxter employees which showed an image of Osama Bin Laden morphing into O.J. Simpson and which contained the subject line 'I KNEW IT!!! I KNEW IT!!! I KNEW IT!!!.'"

White claimed that Phillips deliberately downgraded his performance evaluation to "Meets Minus" in 2004. This claim, White presented under the mixed-motive section, 42 U.S.C. § 2000e-2(m), added-on by the 1991 Civil Rights Act to supplant the prior Price Waterhouse standard. Until the Supreme Court decided Desert Palace -- which eliminated the "direct evidence" requirement that most courts had grafted onto this this provision -- the mixed-motive section remained kind of an orphan. Even in the wake of Desert Palace, the federal courts of appeal have continued to apply the McDonnell Douglas/Burdine framework at the summary judgment stage in mixed-motive cases. This section has not received extended consideration as a separate method of evaluating claims of disparate treatment since Desert Palace, save for the Fifth Circuit's decision Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004), applying a modification of McDonnell Douglas.

Reviewing White's performance-evaluation claim, though, the panel (with a majority decision and partial concurrence by Judge Gilman) held that Congress meant for courts to apply a different standard to review claims under this section:

"This case now presents us with the opportunity to finally clarify how Title VII mixed-motive claims should be analyzed at the summary judgment stage. We do so by holding that the McDonnell Douglas / Burdine burden-shifting framework does not apply to the summary judgment analysis ofTitle VII mixed-motive claims. We likewise hold that to survive a defendant's motion for summary judgment, a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) 'race, color, religion, sex, or national origin was a motivating factor' for the defendant's adverse employment action. 42 U.S.C. § 2000e-2(m) (emphasis added). . . . [W]e direct that this summary judgment analysis just described, rather than the McDonnell Douglas / Burdine burden-shifting framework, be applied in all Title VII mixed-motive cases regardless of the type of proof presented by the plaintiff."

Under this framework, the panel first found that the downgrade was an "adverse action" that hit White directly in the wallet. It also held that -- given Phillips' documented animosity toward blacks -- there was a genuine issue of material fact about whether race motivated Phillips to apply a performance-evaluation standard against White that he used with no one else.

"The more difficult question, however, is whether White has produced evidence from which a jury can logically infer that Phillips' racial animus was a motivating factor in his evaluation of White's 2004 job performance. White's evidence in support of such a conclusion stems from his claim that Phillips applied the wrong standard to evaluate his 2004 performance. White argues that he was entitled to have his performance evaluated under the 2004 PMO Grid, as opposed to the criteria in the Gold EMail, which Phillips claims he used to evaluate White's performance. White alleges that, while the 2004 PMO Grid was applied across the board to Baxter's other employees, the Gold E-Mail was exclusively applied to him. From Phillips' failure to apply the allegedly correct standard (the 2004 PMO Grid) and his decision to apply a harsher standard (the Gold E-Mail), White argues, a jury can reasonably infer that Phillips was motivated, at least in part, by racial animus when issuing White a 'Meets Minus' rating. We agree with White that a jury could draw such an inference from the evidence presented."

The performance evaluation claim would therefore advance to trial.

The promotion claim, by contrast, was a straightforward single-motive case, evaluated under the McDonnell Douglas rubric. White lost out on a regional manager promotion to a white, female candidate (Maggie Freed) in an interview process where White was ranked at the bottom by each of the three panelists. The employer conceded the existence of a prima facie case, but proffered as its legitimate, non-discriminatory reason that Freed had significant management experience, while "White lacked this managerial experience and did not interview well: in the view of the interviewers, he was "in-your-face" aggressive, demonstrated an inflexible management style, and did not present a persuasive plan for turning around the region."

The panel reversed the district court's holding that White failed to present sufficient evidence to present a genuine issue of material fact about pretext. Regarding the managerial experience, "The record undisputedly demonstrates that White possessed some qualifications for managerial work which Freed did not. For example, White was the only applicant for the ACCO Regional Manger position who had gone to graduate school to earn an MBA. Likewise, in stark contrast to Freed, White had several years of experience as an ACCO sales representative and TCS." As for the interview process, "any evaluation of White's interview performance is an inherently subjective determination, and thus easily susceptible to manipulation in order to mask the interviewer's true reasons for making the promotion decision. Indeed, since the very issue in dispute is whether the reasons given by these interviewers for their decision should be believed, it would be highly inappropriate for us to assume, as Judge Gilman does [in dissent], that their own subjective perceptions of White were accurate. Moreover, we find [the interviewers'] statements indicating that White came across as aggressive and lacking in management vision to be self-serving and conclusory."

The panel restates and extends the Sixth Circuit's standing law on "business judgment," which is not quite as deferential to the employer's "honest belief" (at the summary judgment stage) as other circuits have been. "In determining whether the plaintiff has produced enough evidence to cast doubt upon the employer's explanation for its decision, we cannot, as Judge Gilman does, unquestionably accept the employer's own self-serving claim that the decision resulted from an exercise of 'reasonable business judgment.' Dissenting Op. at 24. Nor can we decide 'as a matter of law' that 'an employer's proffered justification is reasonable.' Dissenting Op. at 24. The question of whether the employer's judgment was reasonable or was instead motivated by improper considerations is for the jury to consider. Our role is merely to assess whether the plaintiff has presented enough evidence for a reasonable jury to accept the plaintiff's claim that the employer made an unlawful business decision."

This portion of the opinion -- as already noted -- drew a dissent from Judge Gilman, who regarded the majority as not sufficiently deferential to the company's business judgment: "I believe, in sum, that this court's precedents require more recognition of such business judgments than the majority's decision permits, and that White failed to produce sufficient evidence for a jury to conclude that Baxter's proffered reasons for hiring Freed over White were pretextual."

And though it is not the office of this blog to offer predictions, a shrewd guess of the future of this case is (1) a huge pile-on by the managment bar to get this case heard en banc, followed (if the first gambit does not succeed) by (2) the mother of all certiorari petitions to the U.S. Supreme Court.