PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 97-3202 05/04/99 ________________________________ THOMAS K. KAHN D.C. Docket No. 95-410-CIV-ORL-18 CLERK
CYNTHIA L. TAYLOR,
Plaintiff-Appellant,
versus
MARVIN T. RUNYON, Postmaster General, United States Postal Service,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Middle District of Florida _________________________________________________________________
(May 4, 1999)
Before HATCHETT, Chief Judge, MARCUS, Circuit Judge, and KRAVITCH, Senior Circuit Judge.
HATCHETT, Chief Judge:
Appellant Cynthia L. Taylor appeals the district court’s grant of appellee United States
Postal Service’s motion for judgment as a matter of law in her Title VII gender discrimination
and retaliation lawsuit. We reverse and remand this case for further proceedings consistent with
this opinion. I. BACKGROUND
Cynthia Taylor began her employment with the United States Postal Service (Postal
Service) in 1979, at Syracuse, New York. Taylor gradually moved into management in 1987 at
the main north branch in Syracuse, New York, as an electronic technician supervisor. At that
facility, Taylor was responsible for mail processing equipment and supervisory responsibilities,
including supervision of maintenance craft employees who worked on heating and ventilation
equipment, and the building custodial staff. Taylor worked in that job until 1990, when Carl
Sumner hired her as a superintendent of maintenance for mail processing equipment at the mid-
Florida facility in Lake Mary, Florida. Taylor worked in that capacity from September 1990
until December 1992. Sumner hired Taylor at an executive administrative pay scale (EAS) level
of 17.
When Taylor first occupied her position as superintendent at mid-Florida, she supervised
45-50 people, including subordinate supervisors who managed the craft individuals responsible
for building maintenance functions. At the time Sumner hired Taylor, the mid-Florida facility
also employed Hal Maloof, an EAS-14, who supervised 6 craft people and supervisors and Del
Scott, an EAS-11, who supervised approximately 15 custodians with no subordinate supervisors.
In 1991, the Postal Service promoted Scott to an EAS-15, where he became supervisor of
building equipment maintenance.
In 1992, the Postal Service underwent a massive reorganization of management positions
where all managers lost their job titles and the Postal Service changed the management
complement for each facility. The new complement of EAS levels for the Florida facility
included one EAS-20 position, one EAS-18 position, one EAS-17 position and six EAS-16
2 positions. Immediately prior to the reorganization, Sumner held an EAS-20 position, Taylor an
EAS-17 position, Scott an EAS-15 position and Maloof an EAS-14 position. No EAS-18
position existed prior to the reorganization. The reorganization essentially combined Taylor$s
EAS-17 position and Scott$s EAS-15 position into one new position, thereby creating the EAS-
18 position. Sumner was the selecting official at mid-Florida for the reassignment of positions
during the reorganization.
For reassignment under the new system, employees had to be within three grades of their
old position, although exceptions existed. As a result, Taylor was eligible for reassignment
positions between EAS-14 and EAS-20. In order to apply for one of the new positions, an
employee had to fill out a Form-991, listing permanent positions, details, non-postal activities,
postal training and a narrative of work accomplishments. Taylor filled out a Form-991.
Prior to the reorganization, Taylor received two evaluations from Sumner, where his
overall score for Taylor’s performance was “very good,” the second highest rating available in
the Postal Service format. Taylor received no discipline in any form prior to the reorganization,
and her lowest rating in any of the individual factors considered in her 1992 evaluation was
“good.”
Pursuant to the reorganization, Taylor interviewed in West Palm Beach, Florida, on
December 15, 1992, to discuss a possible EAS-20 position at that Postal Service facility. West
Palm Beach offered Taylor the EAS-20 position, and she returned immediately to mid-Florida to
discuss her options with Sumner. When Taylor spoke to Sumner upon her return, she believed
that Sumner told her that the options available to her were either the EAS-20 position in West
Palm Beach or the newly created hybrid EAS-18 position in mid-Florida. Based upon this
3 representation, Taylor called the West Palm Beach facility manager and refused the West Palm
Beach offer, counting on a forthcoming offer from Sumner for the EAS-18 position in mid-
Florida.
Later that day, Sumner left telephone messages at Taylor$s home telling her he needed to
speak with her. When Sumner reached Taylor, he told her that he would have to choose between
Taylor and Scott for the EAS-18 position. Taylor testified at trial that Sumner then told her that
he was leaning toward selecting Scott for the EAS-18 position because Scott had a wife and
children and needed the money more than Taylor. Sumner denied that he told Taylor, or
insinuated, that he preferred Scott because Scott was a man and Taylor was a woman, or that
Scott needed the money more because he was a family man. Sumner claimed to only remember
telling Taylor that they were all friends, and that this decision put him in a difficult predicament.
On December 16, 1992, Taylor learned that the Postal Service had placed Maloof in the
EAS-17 position in maintenance. Soon after learning of Maloof$s EAS-17 promotion, Taylor
learned that the Postal Service had placed Scott in the new EAS-18 position. The Postal Service
eventually placed Taylor in one of the EAS-16 positions, effectively a demotion; however, she
continued to receive her level 17 pay. A few days after her reassignment, Taylor asked Sumner
why he had not placed her in the EAS-18 position. In response, Sumner stated that Scott was
stronger in building services, and that the employee opinion survey reflected morale problems
among Taylor’s subordinates. Sumner also told Taylor that she did not have the people skills
that Scott possessed, and that she did not know enough about building maintenance to earn the
position over Scott.
4 As a courtesy to Sumner, Taylor provided formal notification of her intent to file a Postal
Service Equal Employment Opportunity (EEO) complaint regarding his selection decision.
Taylor strongly asserts that after filing her complaint of discrimination, the work environment
changed dramatically from very pleasant to very hostile. Taylor began to routinely receive
critical and negative memos from both Scott and Sumner regarding her performance, and she
began experiencing difficulty in obtaining time off. She was left out of office events and
criticized for matters that she did not control.
In September 1993, Taylor received a letter of warning for inappropriate conduct and for
failure to follow Scott’s instructions (her new supervisor). The reason that Scott formally
warned Taylor was because she reported to the plant support manager that Scott and Sumner
were out playing golf on company time when, in fact, both were on approved leave. Taylor
challenged this letter of warning, which the Postal Service subsequently mitigated.
In December 1995, Taylor received another letter of warning from Scott asserting that
Taylor had engaged in improper conduct in bringing her personal computer monitor into the
building and having one of the electronic technicians repair it. Scott disciplined Taylor for using
government property, postal equipment and a postal employee’s time for personal gain. Taylor
countered that many postal employees brought in personal property, including “boom boxes,”
golf equipment, computer games and music CDs.
Finally in 1995, the Postal Service$s National Maintenance Leadership Program that
grooms certain Postal employees for higher level maintenance managerial positions excluded
Taylor. The Postal Service originally selected Taylor from a national competition to participate
in this program. The National Maintenance Leadership program excluded Taylor after the
5 program director met with Sumner. After learning of her expulsion from the program, Taylor
attempted to determine whether the director would reconsider his decision because the director
gave her no explanation for the expulsion. In response to her inquiry, the director informed
Taylor that because letters of warning to EAS employees were a rarity, and because Sumner had
exposed her disciplinary warnings, she was expelled based on those warnings. The director
explained, however, that although his decision was based upon his discussion with Sumner about
her performance, that if Sumner were to ask him to reinstate Taylor, he would do so. Taylor
spoke to Sumner and explained the reinstatement offer. Sumner informed Taylor that he no
longer trusted her because she had questioned his decision about the selection of Scott and had
filed an EEO complaint against him. Further, Sumner stated that Taylor$s lawyer had made him
uncomfortable during the legal proceedings in her discrimination action, and that such activity
was something supervisors should never do to a superior. Taylor claims that Sumner further
stated that in filing her EEO complaint, she showed a bad attitude, and that as long as he was in
charge, her career with the Postal Service was going nowhere. At the time of trial, Taylor
continued to occupy her reassigned EAS-16 position.
II. PROCEDURAL HISTORY
Taylor brought this action against the Postal Service pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et. seq., as amended in 42 U.S.C. § 1981(a) (1994).
Taylor contends that the Postal Service subjected her to gender discrimination and retaliation in
violation of federal law.
On September 11, 12 and 15, 1997, a jury trial ensued. At the conclusion of Taylor$s
case, the Postal Service moved for judgment as a matter of law pursuant to Federal Rules of
6 Civil Procedure 50(a) on both of Taylor’s claims. At the conclusion of oral arguments on the
motion, the district court made various factual and legal findings and granted the Postal Service$s
motion for judgment as a matter of law as to both claims. The district court entered final
judgment on behalf of the Postal Service on September 15, 1997.
III. ISSUES
The issues are: (1) whether the district court erred in granting judgment as a matter of
law against Taylor$s claim of gender discrimination; and (2) whether the district court erred in
granting judgment as a matter of law against Taylor’s claim of retaliation.1
IV. DISCUSSION
We review a district court’s grant of judgment as a matter of law de novo, applying the
same legal standards as those used in the district court. U.S. Anchor Mfg., Inc. v. Rule Indus.,
Inc., 7 F.3d 986, 993 (11th Cir. 1993), cert. denied, 512 U.S. 1221 (1994). We must “consider
‘whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.’” Combs v. Plantation
Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986)), cert. denied, 118 S. Ct. 685 (1998). Thus, we must consider all of the
evidence in the light most favorable to Taylor and decide whether “‘a substantial conflict in
evidence [exists] to support a jury question.’” See Combs, 106 F.3d at 1526 (quoting Carter v.
City of Miami, 870 F.2d 578, 581 (11th Cir. 1989)).
1 Taylor raises one additional issue contending that the district court committed reversible error in denying the admission of portions of a Postal Service employee’s affidavit as hearsay when the employee was present in the courtroom and available to testify. On this issue, we affirm the district court’s denial pursuant to 11th Circuit Rule 36-1.
7 A. Gender Discrimination Claim
Taylor contends that the district court committed reversible error in failing to recognize
that she introduced direct evidence of discrimination, thereby creating a jury issue. Taylor also
contends that the trial court failed to weigh the evidence she submitted properly to rebut the
Postal Service$s articulated legitimate, nondiscriminatory reasons for her non-selection to the
EAS-18 promotion.
Taylor argues that the initial reason Sumner articulated for his decision to select Scott
was that Scott was a married man with a wife and children to support. Taylor contends that in an
analogous case, Thompkins v. Morris Brown College, the plaintiff testified that the defendant
informed her that his decision to hire male colleagues over her into full-time positions “was
because those males had families and needs that the plaintiff did not have.” 752 F.2d 558, 561
(11th Cir. 1985). The Thompkins court held that such comments constituted direct evidence of
sex discrimination. 752 F.2d at 563. Taylor argues that the same reasoning should apply here,
as she claims that Sumner$s decision to select Scott was because Scott was a married man with a
wife and children to support, and that Taylor did not need the money as much as Scott.
To establish a prima facie case of Title VII gender discrimination in a promotional
decision, Taylor must prove: (1) that she is a member of a protected minority; (2) that she was
qualified and applied for the promotion; (3) that she was rejected despite these qualifications;
and (4) other equally or less qualified employees who are not members of the protected minority
were promoted. Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir. 1988), cert. denied, 490 U.S.
1006 (1989). “Once the plaintiff has established a prima facie case of discrimination, the burden
shifts to the employer ‘to articulate some legitimate, nondiscriminatory reason for the
8 employee’s rejection.’” Wu, 847 F.2d at 1483-84 (quoting McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)).
The Postal Service did not argue at trial, and does not argue in this appeal, that Taylor
failed to meet her initial prima facie burden. The Postal Service does argue, however, that the
existence of prima facie proof “does not in and of itself foreclose the possibility of [judgment as
a matter of law] being granted in favor of the employer.” Young v. General Foods Corp., 840
F.2d 825, 828 (11th Cir. 1988), cert. denied, 488 U.S. 1004 (1989). The Postal Service asserts
that once Taylor had established a prima facie case, the presumption of discrimination existed
and the burden of persuasion shifted to the Postal Service to produce legitimate,
nondiscriminatory reasons for the challenged employment action. Young, 840 F.2d at 828. The
Postal Service maintains that it plainly articulated legitimate, nondiscriminatory reasons for the
decision not to select Taylor for the level 18 position. Accordingly, any “presumption of
discrimination created by the McDonnell Douglas framework ‘drops from the case,$ and #the
factual inquiry proceeds to a new level of specificity.$” Combs, 106 F.3d at 1528 (quoting Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981)).
The Postal Service articulated three nondiscriminatory reasons for its challenged
employment decision. The selecting official, Sumner, explained that he selected Scott because
(1) Scott had more experience in the building services and building maintenance area than
Taylor, (2) the morale of the workforce was low during the period when Taylor was
superintendent, and (3) Scott did not have the same communication deficiencies as Taylor.
“We have defined direct evidence as evidence, which if believed, proves [the] existence
of [the] fact in issue without inference or presumption. Evidence that only suggests
9 discrimination or that is subject to more than one interpretation does not constitute direct
evidence.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (internal citations
and quotation omitted). Our decision in Thompkins strongly suggests that the type of statement
at issue here constitutes direct evidence. See 752 F.2d at 561-63. In that case, the employer
terminated a female instructor for holding outside employment even though the employer
permitted similarly situated male instructors to engage in the same practice. The plaintiff
testified that one of the decision-makers in her case had stated that “he saw no reason for a
woman to have a second job,” and another had said that the male employees “had families and
needs that the plaintiff did not have.” Thompkins, 752 F.2d at 561. We held that these
statements constituted direct evidence of discrimination. In this case, Taylor testified that Carl
Sumner told her he was going to select Del Scott because:
Del has a family, he's got a wife, he's got three children and he [Sumner] let me [Taylor] know that one of Del's children was having some kind of, had just had an operation of some sort. He told me that Del needed the money and that the position was more important for Del to receive the position than it was for me to get the position. And I didn't need the money.2
2 While we have considered this evidence only as part of the circumstantial evidence in this case, we observe that if we had considered this as a direct evidence case, judgment as a matter of law would be inappropriate. See Merritt, 120 F.3d at 1189; Carter v. Three Springs Residential Treatment, 132 F.3d 635, 642 (11th Cir. 1998). “‘Where the non-movant presents direct evidence that, if believed by the jury, would be sufficient to win at trial, [motion for judgment as a matter of law] is not appropriate even where the movant presents conflicting evidence.’” Merritt, 120 F.3d at 1189 (quoting Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)). We have likewise held that, in cases of discrimination proven by direct evidence, it is incorrect to rely on the McDonnell-Douglas test because, while circumstantial evidence is used to create an inference of discrimination under McDonnell-Douglas, no such inference is required in the case of direct evidence. See Thompkins, 752 F.2d at 563. Therefore, “when there is direct evidence ‘that the defendant acted with a discriminatory motive, and the trier of fact accepts this testimony, the ultimate issue of discrimination is proved.’” Thompkins, 752 F.2d at 563 (quoting Bell v. Birmingham Linen Serv., 715 F.2d 1552, 1556 (11th Cir. 1983)).
10 A plaintiff may overcome the employer’s asserted legitimate reasons and avoid judgment as a
matter of law “either directly by persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employer’s proffered explanation is
unworthy of credence.” Combs, 106 F.3d at 1528 (quoting Burdine, 450 U.S. at 256). Casting
doubt on an employer’s asserted reasons for an adverse employment action does not require
judgment for the plaintiff, but it permits a reasonable jury to infer that the employer acted with
the forbidden animus and therefore precludes judgment as a matter of law. See Combs, 106 F.3d
at 1529.
Sumner’s contemporaneous statement regarding Scott’s family obligations and
corresponding financial needs amounts to evidence that the reasons for Scott's selection were not
those the Postal Service offered at trial. Taylor contends that Sumner’s subsequent justifications
are nothing more than post-hoc attempts at misdirection and that his initial statement more
accurately reveals his intentions. To rebut the reasons the Postal Service proffered at trial,
Taylor first cites the Postal Service's offer of a more senior job in another office as evidence that
she possessed the general qualifications for the position under review. More specifically,
although Taylor concedes that Scott had more direct experience in building services and building
maintenance than she, Taylor points out that she supervised Scott in those roles and emphasizes
that the position at issue was a supervisory one. She argues that her greater responsibility, her
supervision of Scott in these areas, and her vastly greater experience in machine maintenance
would permit a jury to disbelieve that Sumner actually relied on Scott's experience when he
promoted Scott.
11 To rebut the Postal Service's second justification, Taylor contends that the survey
regarding employee morale during her tenure as a superintendent measured the employees’
attitude toward her and Scott collectively. She argues that because the survey does not
distinguish between her and Scott, the Postal Service’s attempt to rely on it obviously is
pretextual. Finally, Taylor argues that no evidence supports the Postal Service's contention that
Scott possessed communication skills superior to Taylor. See generally Carter, 132 F.3d at 643-
44 (rejecting an employer’s subjective judgment that an employee lacked “exceptional verbal
and written skills” because the evidence showed no objective support for that contention).
Taylor also argues that performance reviews, conducted three months before the 1992
reorganization, gave Scott and Taylor equivalent evaluations on their communication skills and
that, although Scott and Taylor received the same “very good” overall rating, her scores in the
individual categories outshone those of Scott.
The evidence at trial, when viewed in the light most favorable to Taylor, certainly could
give a jury a reason to disbelieve the Postal Service's proffered reasons for Scott's selection.
Combs requires nothing more to foreclose judgment as a matter of law. See 106 F.3d at 1528.
Beyond that, a jury could interpret Sumner's statement regarding Scott's financial position as an
indication that he made the decision based on his view of the relative pecuniary needs of Scott
and Taylor (as individuals rather than as male and female) or as evidence of sex discrimination
in violation of Title VII. That decision, however, was for the jury. Consequently, we reverse the
district court's entry of judgment as a matter of law on Taylor's discrimination claim.
B. Retaliation Claim
12 In order to establish a prima facie case of Title VII retaliation, Taylor must show “(1)
statutorily protected expression, (2) adverse employment action, and (3) a causal link between
the protected expression and the adverse action.” Goldsmith v. City of Atmore, 996 F.2d 1155,
1163 (11th Cir. 1993). Once Taylor has established a prima facie case, the Postal Service must
then come forward with “legitimate reasons for the employment action to negate the inference of
retaliation.” Goldsmith, 996 F.2d at 1163. If the Postal Service offers legitimate reasons for the
employment action, Taylor then bears the burden of proving, through a preponderance of the
evidence, that the reasons offered are pretextual. Goldsmith, 996 F.2d at 1163. In order to
establish the “causal link” required as part of her prima facie case, Taylor “need only establish
that ‘the protected activity and the adverse action were not wholly unrelated.’” Goldsmith, 996
F.2d at 1163 (quoting EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571-72 (11th Cir.
1993)).
Taylor vigorously contends that we must reverse the district court because in granting
judgment as a matter of law on her retaliation claim, the district court announced its decision
under a fundamental misstatement of the law. Taylor argues that the district court did not
properly articulate the relationship between a retaliation claim and an underlying gender
discrimination claim. In its oral ruling, the district court held that “if there was no discrimination
because of sex, therefore, there was no[] retaliation.” Taylor asserts that this is simply a
misstatement of the law. We agree.
Under Title VII, it is well established that an employee need not prove the underlying
claim of discrimination in order to establish a retaliation claim. Tipton v. Canadian Imperial
Bank of Commerce, 872 F.2d 1491, 1494 (11th Cir. 1989). Instead, an employee$s opposition to
13 the discrimination is protected if she can reasonably form a good faith belief that the alleged
discrimination existed. Tipton, 872 F.2d at 1494. Taylor meets this burden.
Because Taylor testified that she believed Sumner selected Scott over her for the EAS-18
promotion due to (1) Scott’s “family man” status, and (2) because he needed the money more
than she did, her activity in filing the discrimination claim is protected because she filed it in
good faith believing that the discrimination actually existed. See Tipton, 872 F.2d at 1494.
Having cleared this hurdle, Taylor’s retaliation claim can stand alone, regardless of whether
Taylor proved or the district court dismissed the underlying claim of gender discrimination. See
Tipton, 872 F.2d at 1494.
Despite the district court’s misstatement of the law, we must still examine whether
Taylor established a prima facie case of retaliation such that she escapes the district court’s grant
of judgment as a matter of law. Taylor asserts that Sumner made a direct representation to her
that because of her gender discrimination claim against him, her career was going nowhere.
Taylor claims that such a statement is classic direct evidence, and that the statement reflects a
retaliatory attitude and correlates easily to the complained of retaliation. See Merritt, 120 F.3d at
1189-90. Taylor testified that Sumner proclaimed her no longer worthy of his trust because she
filed a discrimination claim against him. Taylor also testified that Sumner refused to recommend
her for advanced training courses because she exhibited a bad attitude in filing her discrimination
claim. All three of Sumner’s statements readily come within our examples of direct evidence
enunciated in Merritt. See 120 F.3d at 1189-90.
Further, Taylor testified at length that after the filing of her EEO complaint for gender
discrimination, Sumner and Scott subjected her to unpleasant and abusive situations in her work
14 environment. Taylor asserts that the temporal connection between the change in her work
environment and the filing of her EEO charges sufficiently satisfies the causal link requirement
for her retaliation claim. See Goldsmith, 996 F.2d at 1163.
Taylor also received two letters of warning after the filing of her EEO charge. Such
letters of warning are rare for Postal Service management level employees. Moreover,
particularly concerning the 1995 letter of warning, Taylor has testified that the punishment was
disproportionate to the offense. Taylor testified that the Postal Service$s prohibition on bringing
personal property onto the work floor is routinely violated, and aside from her letter of warning,
such violations are never punished. Because of these warning letters, the Postal Service
dismissed Taylor from an important career management training group, thereby damaging her
career.
Finally, Taylor testified that prior to the filing of her discrimination complaint, she
routinely received details (management training seminars) to higher level positions to provide
her with additional management training. Taylor testified that since the filing of her EEO
complaint the Postal Service has given her no substantive detail assignments, at least no detail
assignments with reasonable notice.
Taylor’s opposition to her perceived mistreatment due to her gender is statutorily
protected expression. She more than adequately outlined adverse employment action resulting
from the filing of her discrimination claim. Taylor’s protected activity and the adverse
employment action were not wholly unrelated. See Goldsmith, 996 F.2d at 1163. Thus, Taylor
provided the district court with not only direct evidence of retaliation, she also met her prima
facie burden of Title VII retaliation. After considering the evidence in the light most favorable
15 to Taylor, we hold that a substantial conflict exists in the evidence to support a jury question.
See Combs, 106 F.3d at 1526.
Based upon our holding in Merritt, we hold that Taylor introduced sufficient
retaliatory evidence to create a jury question that is significant enough to escape the
district court’s grant of judgment as a matter of law. Furthermore, we reiterate our
precedent enunciating the principle that even if a gender discrimination claim fails,
plaintiffs may still prevail on a retaliation claim if they meet the Goldsmith retaliation
standard. See Tipton, 872 F.2d at 1494. The district court erred in holding that when
Taylor’s gender discrimination claim failed, her retaliation claim also failed. We reverse
that portion of the district court’s holding and remand this issue for further proceedings.
V. CONCLUSION
In sum, we reverse the district court’s grant of judgment as a matter of law against
Taylor’s Title VII gender discrimination claim and her claim for retaliation.
REVERSED and REMANDED.