Employer seeking "Kens and Barbies" must face trial on bias claims 

Sheesh. I would think so!

Here's a story for you:

Some investors bought an apartment complex in Houston with the plan to fix it up and flip it. They decided the Property Manager wasn't doing a good job, so they fired her and promoted her underling to Property Manager. The underling (we'll call her Magali because that's actually her name) was a U.S. citizen who was born in Mexico. She was also a female. Probably still is.

Magali started in her new role on January 1, 2012. Shortly afterward, the owners hired someone (a woman) to supervise Magali. The new supervisor had concerns almost immediately about Magali's job performance and started looking to replace her.

The replacement (also a woman) was hired in March 2012, and two weeks later, Magali was fired. Magali went to the Equal Employment Opportunity Commission, and the EEOC felt strongly enough about her case that they decided to sue the company that owned the complex and the company that managed it for national origin and sex (pregnancy) discrimination. But in 2019, U.S. District Court Judge Lynn Hughes issued a four-page decision granting summary judgment to the companies. According to Judge Hughes, Magali was clearly a lousy performer, and her supervisor and replacement were both female, just like Magali, meaning that Magali wasn't discriminated against because of her sex. A few inappropriate comments were allegedly made about Mexicans, but they were "stray remarks" that didn't have anything to do with Magali's termination, so no big deal.

This week, a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit reversed the summary judgment decision, which means that the case will go to a jury trial if it doesn't settle.


What went wrong for the employer companies?

Political bias, right? Judge Hughes is a Reagan appointee, and this was a panel of Carter-Clinton-Obama-Biden appointees?

Nope. The three judges on the panel were appointed by George W. Bush, Ronald Reagan, and Donald Trump.

So it wasn't politics. But there was a lot more to the EEOC's side of the case. At the summary judgment stage, the courts are supposed to view the evidence in the light most favorable to the party who is not moving for summary judgment. Usually, though not always, that is the plaintiff. In this case it was the EEOC and Magali. The Fifth Circuit panel decided that there was plenty of evidence on the plaintiffs' side to justify sending the case to a jury.

Here's the rest of the story, according to the Fifth Circuit panel:

Remember that the companies wanted to renovate and then flip the apartment complex? Well, apparently one of the problems with the complex in its "as-is" state was that there weren't enough white people there. The owners talked about changing "the demographics," and referred to one tenant as "a trashy Mexican" and another as "a dumb Mexican." According to the Fifth Circuit opinion, one owner "expressed dismay at the fact that the office staff were 'all Mexicans.'"

Gee. That may not bode well for Magali.

It didn't. Magali's supervisor told the EEOC that from the get-go she had been directed by her bosses to start "working toward" terminating Magali. (So this isn't even an "alleged" fact.)

But wait! There's more!

The supervisor was also told "to hire a 'higher class of individual with the look of Ken and Barbie,' which the supervisor understood as a hiring preference for those who are 'petite, attractive, young[,] and Caucasian.'" (Brackets in court's decision.)

"Hi! I have blond hair and blue eyes. Therefore, I am your ideal Property Manager!"

Oh! Oh! And that poor performance? Apparently, Magali had actually improved things when she took over as Property Manager in January 2012. And although the supervisor issued a documented warning for poor performance, she apparently didn't issue it to Magali, because it wasn't signed "and was provided while [Magali] was on vacation."

And then there was the pregnancy. One of the owners learned that Magali was pregnant in January 2012. He allegedly "became frustrated and stated that he believed she would take her full Family and Medical Leave Act (FMLA) entitlement because 'all Mexicans do that.'" (!!!!!!!!!)

And the supervisor allegedly advised Magali to have an abortion. (!!!!!!!!!)*

*Based on Judge Hughes' decision, apparently there was evidence that Magali was the one who wanted to get an abortion. Again, the court had to view the evidence in the light most favorable to Magali.

And wait! There's more!

The supervisor allegedly told the new hire (who became Magali's replacement) that she'd been told to fire Magali because Magali was Hispanic and pregnant.

I have nothing to add.

At this point, you probably feel the way I did. How in tarnation did this employer ever win summary judgment in the first place? Even after having read the lower court's summary judgment decision (linked above), I am scratching my head.

Maybe a lot of this stuff didn't really happen, but -- again -- at the summary judgment stage, the court has to view the evidence in the light most favorable to the EEOC/Magali. That means whenever a fact is disputed, the court is required to assume that Magali's version of the facts is correct.

A jury, on the other hand, can believe whomever it wants. And it looks like they are going to get their chance.

Guess which two letters I never saw in Judge Hughes's opinion or in the Fifth Circuit opinion? (1) H, and (2) R. Someone who could say, "No, no, Honey, you can't do that. That's against the law."

I wouldn't be surprised if a search wasn't in progress already.

Image Credits: Barbie from flickr, Creative Commons license, by Mike Mozart. Other images from Adobe Stock.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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