By: Richard E. Guttentag, Esq., Stearns, Roberts & Guttentag, LLC
The general purpose of the Florida Civil Rights Act of 1992 (FRCA) and Title VII of the Civil Rights Act of 1964 (Title VII) is to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status, to protect individuals’ interest in personal dignity, and to promote the interests, rights and privileges of individuals within the state. The case of McCrea v. Traffic Control Products of Florida, 2014 WL 4071670 (M.D. Fla. August 18, 201), involved a case where an employee brought a claim against its employer for violation of the FRCA and Title VII.
In McCrea v. Traffic Control Products of Florida, Plaintiff was employed by a Contractor as a Maintenance of Traffic laborer. Approximately four years after Plaintiff was hired, the Contactor determined that it had to lay off five employees. Plaintiff’s manager drafted a memorandum listing Plaintiff as an employee recommended to be laid off as part of the reduction in employees. A few days after the memo was drafted, Plaintiff filed a racial discrimination claim against the Contractor. Five days after the discrimination claim was filed, Plaintiff was laid off.
Plaintiff sued the Contractor alleging that the Contractor unlawfully discriminated against him in violation of Title VII and the FRCA on the basis of his race because (i) African-American employees were paid less than those who were not African-Americans despite having the same, or similar job responsibilities; and (ii) following his termination, the Contractor rehired a Hispanic former employee instead of Plaintiff despite the fact that Plaintiff had more seniority based.
To establish a case of discrimination based on disparate treatment, a plaintiff must show that: (1) he is a member of a protected class; (2) he was subjected to adverse employment action; (3) his employer treated similarly situated employees outside of his class more favorably; and (4) he was qualified to do the job. When the employment action is a claim of disparate pay, the plaintiff must show that he occupied a position similar to that of a higher paid employee who was not a member of his protected class. If the plaintiff presents such a situation, the employer must offer a legitimate, non-discriminatory reason for the adverse employment action. If the employer does so, the plaintiff must then show that the employer’s reason is a mere pretext for unlawful discrimination.
In this case, Plaintiff compared his treatment to that of another employee, who was not a member of his protected class. Both Plaintiff and the other employee had no experience in the road construction industry before being hired by the Contractor, Plaintiff had seniority over the other employee, and both were terminated at the same time. However, the other employee had been paid $12.00 per hour, while Plaintiff was paid $10.00 per hour. Further, the Contractor rehired the other employee, prior to rehiring the Plaintiff. In opposition to Plaintiff’s claim, the Contractor argued that its non-discriminatory reason for Plaintiff’s termination was the result of seniority-based layoffs, and that Plaintiff was not rehired because he did not apply.
On the issue of disparate pay, the Court found that the disparity was not due to racial discrimination because the Contractor provided undisputed evidence that the other employee received higher wages due to an administrative error in calculating the other employee’s payroll. The Contractor’s employee payment records did not contain evidence of any other similar employee making more than $10.00 per hour. Furthermore, when the Contractor rehired the other employee, his wages were corrected to $10.00 per hour. Thus, the Court ruled that the Contractor’s actions in selecting employees for layoffs were not discriminatory.
The Court also rejected Plaintiff’s argument that the Contractor’s failure to rehire Plaintiff was due to racial discrimination. Plaintiff argued that, because he had seniority, he should have been rehired before the other employee. However, the Contractor provided undisputed evidence that its policy for rehiring employees was not based on seniority, but rather on prior performance. The other employee’s personnel file showed that his performance evaluations were better than Plaintiff’s. Also, the other employee’s termination report listed that he was eligible for rehire without reservation, while Plaintiff was listed as eligible for rehire, but with some reservation. The Court ruled that layoffs and rehiring are separate employment decisions, and it is not discriminatory to use different criteria for each decision. Consequently, the Court held that there was no evidence that the Contractor’s decision to rehire the other employee prior to Plaintiff was due to racial discrimination.
Thus, the Court found that there was no evidence of racial discrimination against Plaintiff, and entered summary judgment in favor of the Contractor.
This case demonstrates the analytical framework employed by courts in determining discrimination claims.
About the Authors: Richard E. Guttentag is a partner with Stearns, Roberts & Guttentag, LLC, and is Board Certified in Construction Law by the Florida Bar. Mr. Guttentag exclusively in construction law including construction lien claims and defense, payment and performance bond claims and defense, bid protests, construction contract preparation and negotiation, and construction and design defect claims and defense. He can be reached for consultation at [email protected].