Memphis Fire Prevails on Intersectional Race-Gender Discrimination Claim

The Sixth Circuit Court of Appeals has upheld a district court decision holding that the Memphis Fire Department did not discriminate against an African American female who sought a position as an “Airmask Maintenance Mechanic.” Bridgette Franklin filed suit in 2019 claiming she was denied the position, and it was given to a less qualified Caucasian male firefighter.

Franklin, a non-firefighter employee of the Memphis fire Department, alleged “intersectional race- and gender-discrimination” under both disparate-treatment and disparate-impact theories. Courts have held that “that race and sex ‘do not exist in isolation’ and that ‘African American women are subjected to unique stereotypes that neither African American men nor white women must endure.’’’ Shazor v. Pro Transit Mgmt., Ltd., 744 F.3d 948, 958 (6th Cir. 2014)

The trial court reject both disparate-treatment and disparate-impact arguments finding that Franklin failed to raise a triable issue under either theory. The Sixth Circuit agreed, explaining as follows:

  • Franklin, an African American female, has been employed with MFD in a non-firefighter position since 2007.
  • In February 2018, the City of Memphis posted a job opening for an “Airmask Maintenance Mechanic” on its website.  The position was limited to current MFD employees.
  • Franklin applied, and she and eight other applicants – five Caucasian males and three other African American females – were individually interviewed by the same four-member panel.
  • During the interview process, the panel asked each candidate the same eight questions.
  • After each question was asked, the panel members independently scored the candidate’s response on a 1-10 scale.
  • The entire interview panel then completed a Panel Consensus Rating Form for each candidate, in which the panel combined and averaged the candidate’s scores and ranked the candidate’s overall qualifications for the position.
  • The candidate who scored the highest was selected for the promotion.
  • Randall L. Mitchell, one of the Caucasian male candidates, received the highest cumulative average score of 8.1 and was therefore hired for the promotional position.
  • It is undisputed that Franklin’s score of 7.4 was the second highest among the nine candidates and that, had Mitchell declined, she would have received the promotion.
  • Franklin filed a timely charge with the Equal Employment Opportunity Commission, alleging that MFD discriminated against her by promoting a less qualified Caucasian male.
  • Title VII prohibits employers from taking an adverse employment action against individuals based on their “race, color, religion, sex, or national origin.”
  • A Title VII claim must be proven with either “direct evidence of discrimination or … circumstantial evidence that would allow an inference of discriminatory treatment.”
  • Because Franklin did not present any direct evidence of discrimination, we analyze her Title VII [disparate-treatment] claims in accordance with the three-step framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
  • Under this framework, the burden is on the plaintiff to establish a prima facie case of discrimination.
  • If a plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action at issue.
  • If the defendant satisfies its burden, the burden then shifts back to the plaintiff to establish that the stated reason was pretextual.
  • In this case, assuming that Franklin made a prima facie case of discrimination, MFD proffered a legitimate, non-discriminatory reason for promoting Mitchell instead of Franklin – namely, that Mitchell was the most qualified candidate for the promotional position and performed better than Franklin during the interview process, as evidenced by his score of 8.1, compared to Franklin’s score of 7.4
  • Franklin was therefore required to show that MFD’s stated reason for promoting Mitchell instead of her was merely a pretext for discrimination.
  • A plaintiff can prove pretext by showing that the defendant’s stated reason for the adverse action (1) had “no basis in fact,” (2) “was not the actual reason for” the adverse action, or (3) “was insufficient to explain” it.
  • Franklin advances several arguments to establish pretext, but none are convincing.
  • To begin, Franklin argues that Mitchell did not meet one of the listed minimum qualifications posted for the promotional position-that the applicant have a “[w]orking knowledge of various computer software applications including Oracle preferred.”
  • Although Mitchell acknowledged in his interview that “computer skills” were a weakness of his, two members of the interview panel testified during their depositions that Mitchell had sufficient knowledge of the requisite computer software applications.
  • Franklin fails to cite to any evidence in the record that would create a genuine issue of material fact on this point.
  • Franklin also asserts that she is more qualified than Mitchell for the Airmask Maintenance Mechanic position, but she fails to show that her qualifications were “so significantly better than the successful applicant’s qualifications that no reasonable employer would have chosen” Mitchell over her.
  • In sum, MFC proffered a legitimate, non-discriminatory reason for promoting Mitchell,  and Franklin failed to produce sufficient evidence from which a jury could reasonably reject that reason and infer that MFD intentionally discriminated against her.
  • Therefore, the magistrate judge properly granted summary judgment in MFD’s favor on Franklin’s [disparate-treatment] discrimination claim.
  • The magistrate judge construed Franklin’s complaint and response to MFD’s summary-judgment motion as also asserting a disparate-impact claim. Title VII prohibits employment practices that are “fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).
  • While disparate-treatment claims require a showing of an employer’s discriminatory intent, disparate-impact claims do not.
  • Instead, a plaintiff must show “that a facially neutral employment practice falls more harshly on one group than another and that the practice is not justified by business necessity.”
  • We evaluate disparate-impact claims under a three-step burden-shifting framework.
  • Under this framework, a plaintiff must first establish a prima facie case of discrimination.
  • To establish a prima facie case of discrimination based on a disparate-impact theory, a plaintiff must (1) “identif[y] a specific employment practice to be challenged,” and (2) prove “through relevant statistical analysis” that “the challenged practice has an adverse impact on a protected group.”
  • If a plaintiff makes this showing, the burden then shifts to the employer to “show that the protocol in question has ‘a manifest relationship to the employment’-the so-called ‘business necessity’ justification.”
  • [If the employer meet that burden] The plaintiff must then show that other methods could accomplish the same goals “without creating the undesirable discriminatory effect.”
  • Applying this framework, we affirm the magistrate judge’s conclusion that Franklin failed to establish a prima facie case of discrimination based on a disparate-impact theory.
  • The Supreme Court has held that “it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact.
  • Rather, the employee is ‘responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.'”
  • Franklin alleged below that MFD has an “‘unwritten rule of preferring and selecting firefighters’ for the Airmask Mechanic position.”
  • She further claimed that this rule disfavors black women because they are underrepresented as firefighters.
  • However, she did not cite any evidence showing that MFD in fact employs such a policy, unwritten or otherwise.
  •  Moreover, the statistical chart that Franklin filed alongside her response to MFD’s motion for summary judgment-which details historical demographic information regarding the Air Mask Department’s employees between the years 2000 and 2020 (omitting 2001 and 2003 through 2009) – is insufficient to support an inference of discrimination because it is incomplete and unsourced, and its methodology is never explained.
  • The magistrate judge properly granted summary judgment on Franklin’s disparate-impact claim.

Here is a copy of the decision.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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