Assessing the risk in disparate treatment cases just got harder in the Eleventh Circuit. With its recent reverse discrimination decision, Mitten v. Lockheed-Martin Corporation, the Eleventh Circuit made it easier for plaintiffs who have neither direct evidence of discrimination nor a comparator of another race to survive summary judgment. Anthony Mitten alleged that Lockheed terminated him because of his race. Not surprisingly, Mitten had no direct evidence that the decision was based on race and offered circumstantial evidence using the familiar McDonnell Douglas standard. Given that Mitten identified no non-white supervisors who were treated more favorably, the district court found that Mitten failed to establish a prima facie case of race discrimination and granted defendant’s summary judgment motion. Holding that proof of a comparator is not necessary to survive summary judgment, the Eleventh Circuit reversed.

Facts of Mitten. Lockheed has a zero tolerance harassment policy that not only prohibits harassment, but also requires supervisors to report it. On March 29, 2005, Mitten, a white supervisor at the company’s Marietta, Georgia plant, received and forwarded an email at work: “Top Ten Reasons Why There are No Black NASCAR Drivers.” The email contained derogatory stereotypes portraying black people as “criminals, pimps, and gang members.” A black employee brought the email first to his lawyer and then to Lockheed’s HR Department. Marietta HR conducted an extensive investigation to determine the source and distribution of the email. Because so many people had touched the email, HR created a “matrix” listing a variety of information, including each employee’s name, race, and role (supervisory, non-supervisory, or hourly). All but one of the distributors of the email were white and three were supervisors. (The black employee distributed it only to raise a complaint.) No non-white supervisor transmitted or received the email. The HR department determined that Mitten and the other white employees violated the zero tolerance policy by forwarding the email. Furthermore, Mitten’s and the other supervisors’ failure to report the email was an additional violation. The company fired all the bad actors. There was no direct evidence of bias and no legally sufficient comparator-- game, set, match for Lockheed? So said the district court, but the Eleventh Circuit disagreed.  

The Eleventh Circuit’s Reversal. Reversing the district court’s grant of summary judgment, the Eleventh Circuit reiterated that the McDonnell Douglas framework is not the only way to establish a case of disparate treatment discrimination. The Court considered evidence of a tragic shooting spree at a facility in a different state that happened two years before, a contemporaneous news report on the anniversary of that spree, and subsequent disciplinary decisions regarding non-supervisory employees, as providing a basis to survive summary judgment. The Court found a jury reasonably could infer that Mitten’s firing was race-based because (1) Lockheed had substantial incentive to discipline white employees more harshly during this time period, (2) evidence suggested Lockheed’s justification for firing Mitten was pretextual, and (3) Lockheed’s notation of race on the matrix injected race into the decision.

First, the Court considered that the company had incentive to discipline white employees more harshly as a result of a 2003 shooting spree by a white supremacist employee at Lockheed’s Meridian, Mississippi facility and its attendant publicity. The victims’ families had filed lawsuits, the EEOC had found the company’s policies and procedures lacking, and the incident was labeled a hate crime. Plaintiffs and the media said Lockheed knew of the shooter’s racist propensities and allowed his harassment to go unchecked until he ultimately killed five coworkers and himself. Additionally, while Lockheed was investigating the NASCAR email in Georgia, ABC News was preparing a report on the Meridian incident and confronted Lockheed’s CEO at the annual shareholders meeting about the company’s alleged failure to enforce its zero tolerance policy. The Court found the pressures related to the Meridian tragedy (public, legal, media, and financial) were circumstantial evidence that the company might have been pressured to fire Mitten—a white employee—to show it enforced the zero tolerance policy.

Second, the Court found that Lockheed’s handling of incidents a month after the NASCAR email could suggest that the company’s reason for firing Mitten was a pretext for race discrimination. In June 2005 at facilities in Marietta, Georgia and Ft. Worth, Texas, non-supervisory employees circulated an email video entitled “How to Dance Like a White Guy,” which contained derogatory references to white people. Black employees circulated the email in Marietta, while white employees circulated it in Ft. Worth. At both locations, the employees thought better of it, apologized to the recipients and asked them to delete the email. (The Court also reports the black employee who originally distributed the email turned herself in, but does not mention similar behavior from the white employees.) After investigations, the Marietta HR department recommended that the black employee be suspended, while the Forth Worth HR department recommended termination. Lockheed’s Vice President of Human Resources reviewed and approved both recommendations (as well as Mitten’s). In reversing the summary judgment decision, the Court was persuaded by the fact that the same high-ranking official ultimately decided to terminate white employees while only temporarily suspending the black employees who engaged in what the Court considered nearly identical conduct. The Court found that there was sufficient evidence for a jury to reject Lockheed’s contention that Mitten was treated more harshly because he was a supervisor rather than because of his race. In other words, if a plaintiff can show that a decision maker discriminated against members of his protected class, even though the employees are not proper comparators, a jury can infer that the decision maker also discriminated against the plaintiff.  

Learning from Mitten. The relevant facts of the Mitten case—a workplace tragedy followed by national media attention followed by racially insensitive chain emails—represent a totality of circumstances that (hopefully) will not often occur and thus will always be distinguishable from facts in most cases. However, the Mitten decision provides some valuable reminders to employers. First, zero tolerance policies must be applied to everyone the same way. Employers must handle incidents involving insensitive jokes or emails consistently, regardless of the race or sex of the person sending or receiving them. In this case, the Eleventh Circuit has made clear that it will not rely on distinctions based on supervisory status or the fact that the incidents occurred at a different facility.  

Second, investigatory materials should not reference race, gender, or any protected category unless absolutely relevant to the decision. In this case, Lockheed could not articulate a reason to include that information and paid dearly for it. Frankly, even if an employee’s protected status is relevant to a legal review of the decision, it should only be provided in privileged materials.

Finally, employers need to assess the benefits of having a central, ultimate authority approving or rejecting decisions across the company. While there are good reasons to have such company-wide control, as Mitten demonstrates, a central decision maker can be the glue that connects otherwise unrelated incidents and decisions.