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An employee can make a claim of unlawful retaliation under federal and Florida anti-discrimination law when he or she complains about racial discrimination, and then is subsequently passed over for a promotion.  Actually proving such a claim, however, can be extremely difficult for the employee when the employer expresses a non-discriminatory reason for refusing to promote the employee. Cases interpreting Title VII of the Civil Rights Act of 1964 require the plaintiff to prove that the employer’s explanation was pretextual and that no reasonable person would have selected the other candidate. These are critical hurdles put in place by the court to protect employers from employees who are simply dissatisfied with an employer’s decisions. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims include alleged employment retaliation as well as claims for overtime wages and other related claims.

Title VII makes it unlawful for employers of 15 or more employees to “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Furthermore, Title VII makes it unlawful for an employer to retaliate against an employee for attempting to exercise his rights under Title VII. 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment […] because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, […] under [Title VII]”). Accordingly, an employee can prevail on a claim of retaliation “by showing ‘(1) he engaged in statutorily protected expression; (2) he suffered an adverse employment action; and (3) there is some causal relation between the two events.’” Sridej v. Brown, 361 Fed. Appx. 31 (11th Cir. 2010).

Not every employer’s action qualifies as being material enough to support a claim of retaliation. The United States Supreme Court has held that Title VII is not “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc.,523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). “An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). “The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Id. The alleged failure to promote an employee to a position that he is qualified for is sufficiently material to support a claim of retaliation. E.g. Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008) (finding that the employee can make a prima facie case of discrimination if he establishes a causal link with the protected activity and the failure to promote).

When an employee does not have direct evidence that the failure to promote is causally connected to the protected activity, the court applies the burden shifting framework established in important Supreme Court precedent in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Under this test, “the plaintiff initially must establish a prima facie case of discrimination [or retaliation] […]. The burden then shifts to the employer to rebut this presumption by producing evidence that its action was taken for some legitimate, non-discriminatory reason.” E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265 (11th Cir. 2002). If the employer can show a non-discriminatory reason for not selecting the employee for a promotion, then “the plaintiff must show that the proffered reason really is a pretext for unlawful discrimination.” Id. “‘[T]he inquiry into pretext centers on the employer’s beliefs, not the employee’s beliefs,’ and ‘[a] plaintiff is not allowed to [merely] recast an employer’s proffered nondiscriminatory reasons or substitute [his] business judgment for that of the employer.’” Hornsby-Culpepper v. Ware, 906 F.3d 1302 (11th Cir. 2018).

It can be very difficult for an employee to successfully challenge the legitimate non-discriminatory reason for not promoting the employee claimed by their employers. “‘[A] plaintiff cannot prove pretext by simply arguing or even by showing that he was better qualified than the [person] who received the position he coveted. A plaintiff must show not merely that the defendant’s employment decisions were mistaken but that they were in fact motivated by race. Furthermore, a plaintiff must show that the disparities between the successful applicant’s and his own qualifications were ‘of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.’” Springer v. Convergys Customer Mgmt. Group Inc., 509 F.3d 1344 (11th Cir. 2007); see Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (11th Cir. 1998) (holding that an employee “can not establish pretext merely by disagreeing with [performance] evaluations”).

In the recent employment law case, Sprowl v. Mercedes-Benz U.S. Int’l, Inc., 19-14136, 2020 WL 3791567 (11th Cir. July 7, 2020), the federal Eleventh Circuit Court of Appeals evaluated whether an employee showed whether the employer’s explanation for not promoting the employee was pretextual. The Sprowl plaintiff was a black employee of the defendant, Mercedes-Benz. The employee complained to the employer’s HR department after supervising employee called a group of black employees “wild animals swinging in trees.” After an investigation, the offending employee was terminated. The plaintiff-employee claimed that he was treated poorly by his coworkers and supervisor soon after this complaint was made. He thereafter received only modest performance reviews. The employee applied for a new position became available that would have been a promotion for the plaintiff-employee, however, he was not selected for that position. The Sprowl employer explained that the reason for not promoting the plaintiff-employee was because he was simply less qualified, as reflected in the plaintiff’s performance evaluation. The plaintiff-employee thereafter sued on the basis that he was not promoted because of racial discrimination and in retaliation for his earlier complaints.

Sprowl held that the employee failed to rebut the employer’s non-discriminatory reason for not promoting the plaintiff. Sprowl considered that the employer provided reasons for the employee’s modest performance evaluation, which the employee did not contest were true. Because the plaintiff could successfully rebut this explanation, summary judgment was properly granted in the employer’s favor. Sprowl explained that to “merely dispute the wisdom” of an employer’s choices are “insufficient to establish pretext.” Sprowl v. Mercedes-Benz U.S. Int’l, Inc., 19-14136, 2020 WL 3791567 (11th Cir. July 7, 2020).

Performance evaluations are only one way for an employer to prevail against employee claims that they were passed over for a promotion in retaliation. Sprowl shows that an employee’s performance evaluations which justify the refusal to promote can effectively dispatch these claims without the need for a trial. Peter Mavrick is a Fort Lauderdale employment lawyer. This article does not serve as a substitute for legal advice tailored to a particular situation.

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