Description
Read and Answer questions about the two cases listed below. You will find the case questions for each case at the very end of those individual PDF files.Case #1: Ward – this is a disparate treatment (intentional) age discrimination case proven with direct evidence of discriminatory intent.Case #5: Jespersen – this is a leading sex discrimination case alleging discrimination due to different appearance requirements for male and female employees of a casino.
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Case #1: Ward v. Publix, Case No. 3:14-cv-296 (N.D. Fla. 2016)
[This opinion has been edited by the author for educational use. Edits are indicated through brackets [] or through
the following: ***. In addition, certain language has been bolded or underlined for emphasis. Unless otherwise
indicated, all footnotes have been omitted. In addition, certain case citations have been edited to conform to
BlueBook citation requirements].
Plaintiff Donald Ward filed [this] suit *** alleging one count of age discrimination in employment,
seeking damages and injunctive relief against Defendant Publix Super Markets, Inc. (“Publix”),
pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and
the Florida Civil Rights Act of 1992, Fla. Stat. § 760.01, et seq. *** Now pending is Publix’s
Motion for Summary Judgment (doc. 34). Having fully reviewed the matter, the Court finds that
there is a material question of fact precluding summary judgment in this case.
Background [1]
Ward, who is over age 40, answered an online Publix recruitment job posting for meat cutter
positions in stores throughout the country. On June 5, 2013, Staffing Specialist Daniel Kammeraad
responded to Ward by email, explaining some benefits and career opportunities available at Publix,
including Publix’s policy of promoting qualified associates from within the company. [record
citation omitted]. Kammeraad encouraged Ward to apply at the local Publix store in Pensacola,
Florida, which he did. Ward’s resume touted his meat cutting experience, and, after reviewing
Ward’s qualifications, Store Manager William Gouge and Meat Manager Tyler Stull contacted
him for an interview. Ward was interviewed for a position in the meat department on June 14,
2013.[2]
Within a few days after the interview, Publix decided not to hire Ward. It is undisputed that on or
about June 19, 2013, Stull left the following message for Ward by voicemail:
Hey there Donald, my name is Tyler Stull. I interviewed you for a position here at
Publix on Mobile Highway. We’re gonna go in a different direction, we’re gonna
train one of our younger associates to be a meat cutter, hopefully. So we’re going
to release you back into the pool, so hopefully another store they [sic] can come by
and pick you up.
Stull Decl., ECF No. 36-8, ¶ 11. According to Stull, he was simply describing a current Publix
associate, Corey Beddon (age 24), who in fact was younger than Stull and was a clerk in the meat
department. Stull explained in his declaration that there was no immediate need to hire someone
in the meat department, so he was willing to wait and train a current associate. Beddon was
subsequently trained and promoted to a full-time meat cutter apprentice on March 8, 2014, and
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[In a footnote, the court stated: For the limited purposes of this summary judgment proceeding, the Court views
“the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovingparty,” which
in this case is the Plaintiff. *** The Court is mindful that “what is considered to be the facts at the summary
judgment stage may not turn out to be the actual facts if the case goes to trial.” ***]
[In a footnote, the court stated: Whether Ward’s interview went well or poorly, and/or whether
he performed well or poorly on a meat cutting test that was part of the interview, are facts in
dispute.]
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was reclassified as a full-time meat cutter on September 27, 2014. Ward claims he was not hired
because of his age.
Discussion
Summary judgment is appropriate if the evidence, “shows that there is no genuine dispute as to
any material fact” and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a)***. Summary judgment is not appropriate “if a reasonable fact finder evaluating the
evidence could draw more than one inference from the facts, and if that inference introduces a
genuine issue of material fact.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th Cir.
1995). “[T]he mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original). An issue of fact is material if it might affect the outcome of the case under
the governing law, and it is genuine if the record taken as a whole could lead a rational fact finder
to find for the nonmoving party. Id. at 248. In evaluating the record on a motion for summary
judgment, courts construe the evidence and all reasonable inferences arising from it in the light
most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
Also, courts will not make credibility determinations or weigh the evidence presented on summary
judgment. Frederick v. Sprint/United Mgm’t Co., 246 F.3d 1305, 1311 (11th Cir. 2001).
Under the ADEA,[3] an employer may not discriminate against an employee who is at least 40
years of age because of his or her age. 29 U.S.C. §§ 623(a); see Sims v. MVM, Inc., 704 F.3d 1327,
1331 (11th Cir. 2013). Liability for disparate treatment under the ADEA depends on whether age
“actually motivated the employer’s decision,” or in other words, whether the plaintiff’s age
“actually played a role in the employer’s decisionmaking process and had a determinative
influence on the outcome.” [citation omitted]. The Supreme Court has clarified that an ADEA
plaintiff “must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the
challenged adverse employment action.” Gross v. FBL Fin. Services, Inc., 557 U.S. 167, 180
(2009).
The plaintiff may establish age discrimination by either direct or circumstantial evidence.4 See
Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1204 (11th Cir. 2010). The Eleventh Circuit
has explained that where an age-related discriminatory-sounding remark is alleged as the
“but for” cause of an employment action, and where resolution of the case depends on whose
account of a conversation a jury would credit, summary judgment must be denied. See id.
Importantly, “the plaintiff will always survive summary judgment if he presents circumstantial
evidence that creates a triable issue concerning the employer’s discriminatory intent.” Sims, 704
F.3d at 1333 (quoting Smith v. Lockheed Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)).
Publix argues that Stull’s voice message is too attenuated to be considered direct evidence of
discrimination and that, standing alone, it is also insufficient as circumstantial evidence to create
3 [In a footnote, the court stated:
Age discrimination claims brought under Florida law are
analyzed under the same framework used to decide actions brought pursuant to the federal
ADEA. *** Thus, there is no need to analyze the state law claim separately.]
a prima facie case of discrimination. The Court disagrees. The voicemail message by Stull, a
decisionmaker relaying an adverse employment decision, is not disputed. In it, Stull said Publix
decided to go with a “younger associate,” and the record confirms that Beddon, who is much
younger than Ward, is now a meat cutter in the department. Whether the statement that Publix was
going with a “younger associate” amounts to direct or circumstantial evidence does not merit
further discussion because on this record, the statement alone is sufficient to create a material
question of fact, regardless of whether it is considered direct or circumstantial. See Mora, 597
F.3d at 1204 (finding a statement that plaintiff was “too old” was direct evidence); see also Van
Voorhis v. Hillsborough County Bd. of County Comm’rs, 512 F.3d 1296, 1299 (11th Cir. 2008)
(finding that an employer’s statement not wanting to hire “any old pilots” was direct evidence);
Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354 (11th Cir. 1999) (finding an
employer’s statement that he “wanted aggressive young men like himself to be promoted” was
circumstantial). Because a reasonable juror could decide to take Stull’s statement “at face
value” and find that Ward was rejected because of his age, Mora, 597 F.3d at 1205, summary
judgment must be denied. “To conclude otherwise would be to deny Plaintiff the benefit of
resolving all reasonable inferences in h[is] favor as the nonmoving party.” [citations omitted].
Accordingly, Defendant’s Motion for Summary Judgment is DENIED. Trial will be scheduled by
separate Order.
[Editor’s Note: This Order denying Publix summary judgment was entered on January 29, 2016.
On July 27, 2016, the parties agreed to settlement terms, and this case was dismissed as a result of
that settlement on September 7, 2016. This suit was originally filed on May 9, 2014].
Case #1: Questions to Answer Before Class
1) The plaintiff in this case, Donald Ward, applied for an open meat cutter position with
Publix Super Markets, but was not hired. Does the opinion indicate whether Ward had
prior meat cutting experience?
2) After Ward’s employment application was rejected, Ward sued Publix for age
discrimination under the Age Discrimination in Employment Act (ADEA), which
prohibits discrimination on the basis of age. How old is Donald Ward?
3) Regarding the previous question, why does it matter, based on the provisions of the
ADEA, that Ward is “over age 40?”
4) In your view, why does it matter that the person hired over Ward, 24-year old Corey
Beddon, was significantly younger than Ward?
5) Determining whether Ward was the victim of age discrimination boiled down to just one
item of evidence. About five days after Ward’s interview at Publix, Meat Manager Tyler
Stull left the following voicemail message for Ward: “Hey there Donald, my name is
Tyler Stull. I interviewed you for a position here at Publix on Mobile Highway. We’re
gonna go in a different direction, we’re gonna train one of our younger associates to be a
meat cutter, hopefully. So we’re going to release you back into the pool, so hopefully
another store they [sic] can come by and pick you up.” To succeed under the ADEA, a
plaintiff like Ward must prove that his age “actually motivated the employer’s decision.”
According to the court, could a reasonable jury find that this voice mail meets that
standard? Why or why not?
6) What should Tyler Stull have done differently to better protect Publix from potential
legal liability?
7) This suit was filed in May 2014. Although the dispute in this case was relatively simple
and straightforward, essentially boiling down to the meaning of one unartfully worded
voice mail, the case did not get resolved until September 2016. What do you make of
this?
8) From an HR perspective, what is the lesson of this case?
Case #5: Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006)
[This opinion has been edited by the author to provide focus on the key elements. Edits are indicated through brackets [] or through ***.
In addition, certain language has been bolded or underlined for emphasis. Unless otherwise indicated, all footnotes have been omitted. In
addition, case citations have been omitted or edited to conform to BlueBook citation requirements].
SCHROEDER, Chief Judge.
*** The plaintiff, Darlene Jespersen, was terminated from her position as a bartender at the sports bar in
Harrah’s Reno casino not long after Harrah’s began to enforce its comprehensive uniform, appearance
and grooming standards for all bartenders. The standards required all bartenders, men and women, to
wear the same uniform of black pants and white shirts, a bow tie, and comfortable black shoes. The
standards also included grooming requirements that differed to some extent for men and women,
requiring women to wear some facial makeup and not permitting men to wear any. Jespersen
refused to comply with the makeup requirement and was effectively terminated for that reason.
*** We agree with the [courts below] that on this record, Jespersen has failed to present evidence
sufficient to survive summary judgment on her claim that the policy imposes an unequal burden on
women. With respect to sex stereotyping, we hold that appearance standards, including makeup
requirements, may well be the subject of a Title VII claim for sexual stereotyping, but that on this record
Jespersen has failed to create any triable issue of fact that the challenged policy was part of a policy
motivated by sex stereotyping. We therefore affirm.
I. BACKGROUND
Plaintiff Darlene Jespersen worked successfully as a bartender at Harrah’s for twenty years and
compiled what by all accounts was an exemplary record. *** In February 2000, Harrah’s implemented a
“Beverage Department Image Transformation” program at twenty Harrah’s locations, including its
casino in Reno. Part of the program consisted of new grooming and appearance standards, called the
“Personal Best” program. The program contained certain appearance standards that applied equally to
both sexes, including a standard uniform of black pants, white shirt, black vest, and black bow tie. ***
The program also contained some sex-differentiated appearance requirements as to hair, nails, and
makeup.
In April 2000, Harrah’s amended that policy to require that women wear makeup. Jespersen’s
only objection here is to the makeup requirement. The amended policy provided in relevant part:
All Beverage Service Personnel *** must be well groomed, appealing to the eye, be firm and body
toned, and be comfortable with maintaining this look while wearing the specified uniform.***
Beverage Bartenders and Barbacks will adhere to these additional guidelines:
• Overall Guidelines (applied equally to male/ female):
• Appearance: Must maintain Personal Best image portrayed at time of hire.
• Jewelry, if issued, must be worn. Otherwise, tasteful and simple jewelry is permitted; no large
chokers, chains or bracelets.
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• No faddish hairstyles or unnatural colors are permitted.
• Males:
• Hair must not extend below top of shirt collar.
Ponytails are prohibited.
• Hands and fingernails must be clean and nails neatly trimmed at all times. No colored polish is
permitted.
• Eye and facial makeup is not permitted.
• Shoes will be solid black leather or leather type with rubber (non skid) soles.
• Females:
• Hair must be teased, curled, or styled every day you work. Hair must be worn down at all times,
no exceptions.
• Stockings are to be of nude or natural color consistent with employee’s skin tone. No runs.
• Nail polish can be clear, white, pink or red color only. No exotic nail art or length.
• Shoes will be solid black leather or leather type with rubber (non skid) soles.
• Make up (face powder, blush and mascara) must be worn and applied neatly in
complimentary colors. Lip color must be worn at all times.
Jespersen did not wear makeup on or off the job, and in her deposition stated that wearing it would
conflict with her self-image. It is not disputed that she found the makeup requirement offensive, and felt
so uncomfortable wearing makeup that she found it interfered with her ability to perform as a bartender.
Unwilling to wear the makeup, and not qualifying for any open positions at the casino with a similar
compensation scale, Jespersen left her employment with Harrah’s.
After *** obtaining a right to sue [letter from the EEOC], Jespersen filed this action in July 2001. In her
complaint, Jespersen [alleged] that the “Personal Best” policy discriminated against women by “(1)
subjecting them to terms and conditions of employment to which men are not similarly subjected, and
(2) requiring that women conform to sex-based stereotypes as a term and condition of employment.”
Harrah’s moved for summary judgment [and] argued that the policy created similar standards for both
men and women, and that where the standards differentiated on the basis of sex, as with the face and
hair standards, any burdens imposed fell equally on both male and female bartenders.
In her deposition testimony***, Jespersen described the personal indignity she felt as a result of
attempting to comply with the makeup policy. Jespersen testified that when she wore the makeup she
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“felt very degraded and very demeaned.” In addition, Jespersen testified that “it prohibited [her] from
doing [her] job” because “[i]t affected [her] self-dignity … [and] took away [her] credibility as an
individual and as a person.” ***
The record *** does not contain any affidavit or other evidence to establish that complying with the
“Personal Best” standards caused burdens to fall unequally on men or women, and there is no evidence
to suggest Harrah’s motivation was to stereotype the women bartenders. Jespersen relied solely on
evidence that she had been a good bartender, and that she had personal objections to complying with the
policy, in order to support her argument that Harrah’s “ ‘sells’ and exploits its women employees.” ***
In this appeal, Jespersen maintains that the record before the district court was sufficient to create triable
issues of material fact as to her unlawful discrimination claims of unequal burdens and sex stereotyping.
We deal with each in turn.
II. UNEQUAL BURDENS
In order to assert a valid Title VII claim for sex discrimination, a plaintiff must make out a prima facie
case establishing that the challenged employment action was either intentionally discriminatory or that it
had a discriminatory effect on the basis of gender. *** In this case, Jespersen argues that the makeup
requirement itself establishes a prima facie case of discriminatory intent***. Our settled law in this
circuit, however, does not support Jespersen’s position***.
***In Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000), we dealt with a weight policy that
applied different standards to men and women in a facially unequal way. The women were forced to
meet the requirements of a medium body frame standard while men were required to meet only the more
generous requirements of a large body frame standard. In that case, we recognized that “[a]n appearance
standard that imposes different but essentially equal burdens on men and women is not disparate
treatment.” The United weight policy, however, did not impose equal burdens. On its face, the policy
embodied a requirement that categorically “‘applie[d] less favorably to one gender[,]’” and the burdens
imposed upon that gender were obvious from the policy itself. [citations in the previous paragraph
omitted].
This case stands in marked contrast, for here we deal with requirements that, on their face, are not more
onerous for one gender than the other. Rather, Harrah’s “Personal Best” policy contains sexdifferentiated requirements regarding each employee’s hair, hands, and face. While those individual
requirements differ according to gender, none on its face places a greater burden on one gender
than the other. Grooming standards that appropriately differentiate between the genders are not
facially discriminatory.
We have long recognized that companies may differentiate between men and women in appearance and
grooming policies, and so have other circuits. [Editor’s Note: Here, the court cited cases from seven
different federal circuit courts of appeal]. The material issue under our settled law is not whether the
policies are different, but whether the policy imposed on the plaintiff creates an “unequal burden” for
the plaintiff’s gender. [citations omitted]. Not every differentiation between the sexes in a grooming and
appearance policy creates a “significantly greater burden of compliance[.]” [citation omitted]. For
example, in Fountain, this court upheld Safeway’s enforcement of its sex-differentiated appearance
standard, including its requirement that male employees wear ties, because the company’s actions in
enforcing the regulations were not “overly burdensome to its employees [.]” [citations omitted].
Similarly, as the Eighth Circuit has recognized, “[w]here, as here, such [grooming and appearance]
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policies are reasonable and are imposed in an evenhanded manner on all employees, slight differences
in the appearance requirements for males and females have only a negligible effect on employment
opportunities.” [citation omitted]. Under established equal burdens analysis, when an employer’s
grooming and appearance policy does not unreasonably burden one gender more than the other, that
policy will not violate Title VII.
Jespersen [argues] that it costs more money and takes more time for a woman to comply with the
makeup requirement than it takes for a man to comply with the requirement that he keep his hair short,
but these are not matters appropriate for judicial notice. [Moreover,] Jespersen did not submit any
documentation or any evidence of the relative cost and time required to comply with the grooming
requirements by men and women. As a result, we would have to speculate about those issues in order to
then guess whether the policy creates unequal burdens for women. This would not be appropriate.
[citations omitted].
Having failed to create a record establishing that the “Personal Best” policies are more burdensome for
women than for men, Jespersen did not present any triable issue of fact. The district court correctly
granted summary judgment on the record before it with respect to Jespersen’s claim that the makeup
policy created an unequal burden for women.
III. SEX STEREOTYPING
In Price Waterhouse, *** the plaintiff, Ann Hopkins, was denied partnership in the national accounting
firm of Price Waterhouse because some of the partners found her to be too aggressive. [As a result of
Price Waterhouse,] a plaintiff in a Title VII case may introduce evidence that the employment decision
was made in part because of a sex stereotype. [citation omitted]. According to the Court, this is because
“we are beyond the day when an employer could evaluate employees by assuming or insisting that they
matched the stereotype associated with their group.”*** It was therefore impermissible for Hopkins’s
employer to place her in an untenable Catch-22: she needed to be aggressive and masculine to excel at
her job, but was denied partnership for doing so because of her employer’s gender stereotype. Instead,
Hopkins was advised to “‘walk more femininely, talk more femininely, dress more femininely, wear
make up, have her hair styled, and wear jewelry.’” [citation omitted].
The stereotyping in Price Waterhouse interfered with Hopkins’ ability to perform her work; the
advice that she should take “a course at charm school” was intended to discourage her use of the
forceful and aggressive techniques that made her successful in the first place. [citation omitted].
Impermissible sex stereotyping was clear because the very traits that she was asked to hide were
the same traits considered praiseworthy in men.
Harrah’s “Personal Best” policy is very different. The policy does not single out Jespersen. It applies to
all of the bartenders, male and female. It requires all of the bartenders to wear exactly the same uniforms
while interacting with the public in the context of the entertainment industry. It is for the most part
unisex, from the black tie to the non-skid shoes. There is no evidence in this record to indicate that the
policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of
what women should wear. The record contains nothing to suggest the grooming standards would
objectively inhibit a woman’s ability to do the job. The only evidence in the record to support the
stereotyping claim is Jespersen’s own subjective reaction to the makeup requirement.
*** We respect Jespersen’s resolve to be true to herself and to the image that she wishes to project to the
world. We cannot agree, however, that her objection to the makeup requirement, without more, can give
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rise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close
to holding that every grooming, apparel, or appearance requirement that an individual finds personally
offensive, or in conflict with his or her own self-image, can [amount to] sex discrimination.
This is not a case where the dress or appearance requirement is intended to be sexually provocative, and
tending to stereotype women as sex objects.*** Jespersen’s claim here materially differs from Hopkins’
claim in Price Waterhouse because Harrah’s grooming standards do not require Jespersen to conform to
a stereotypical image that would objectively impede her ability to perform her job requirements as a
bartender.***
AFFIRMED.
[dissenting opinions omitted].
Case #5: Questions to Answer Before Class
1) Why was Jespersen terminated from her job as bartender at the Harrah’s Reno casino?
2) As the facts indicate, in April 2000, Harrah’s amended its grooming and appearance standards by
including certain sex-differentiated appearance requirements as to hair, nails, and makeup.
Portions of that policy are quoted in the “Background” section of the case. What did that policy
require of males and females in regards to makeup?
3) In this case, Jespersen objected to the different standards for males and females in regards to
makeup. Jespersen based her sex discrimination claim on two separate theories: unequal
burdens and sex stereotyping. Why did this court reject Jespersen’s unequal burdens argument?
4) In the portion of the case dealing with the unequal burdens theory, Jespersen argued that it costs
more money and takes more time for a woman to comply with the makeup requirement than it
takes for a man to comply with the requirement that he keep his hair short. Why did the court
reject this argument?
5) Why did the court reject Jespersen’s sex stereotyping argument? When answering this question,
be sure to address why the court distinguished this case from the sex stereotyping that occurred
in Price Waterhouse v. Hopkins.
6) At the end of the opinion, the court declared: “We respect Jespersen’s resolve to be true to
herself and to the image that she wishes to project to the world. We cannot agree, however, that
[she has a valid] claim of sex stereotyping under Title VII. If we were to do so, we would come
perilously close to holding that every grooming, apparel, or appearance requirement that an
individual finds personally offensive, or in conflict with his or her own self-image, can [lead to a
claim of] sex discrimination.” Do you agree? Why or why not?
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