On August 16, 2010, the United States Court of Appeals for the
Ninth Circuit affirmed the United States District Court for the
District of Arizona's grant of summary judgment in favor of
former employer Executive Jet Management ("Executive
Management") against three former employees Gregory Hawn,
Michael Prince and Aric Aldrich ("Plaintiffs") on their
Title VII sex discrimination claims. In Hawn, et al. v.
Executive Jet Management, Case No. 08-15903, the Ninth Circuit
found that a determination of whether plaintiffs are similarly
situated to other employees is a factual inquiry that can be
resolved on summary judgment. The answer may turn on whether the
same or similar misconduct is perceived to be unwelcome or
complaints arise from it. The court further held that no per
se rule of admissibility for all documents related to an Equal
Employment Opportunity Commission ("EEOC") inquiry
exists.
Plaintiffs were male pilots who were terminated after a female
flight attendant, Robin McCrea, alleged that Plaintiffs sexually
harassed her and created a hostile work environment through a
variety of conduct including sexualized and crude banter, jokes,
and sharing of crude and/or pornographic emails and websites.
Within a few days of a training session in which Ms. McCrea alleged
plaintiff Aldrich behaved inappropriately, Ms. McCrea complained to
her supervisor, and her supervisor reported the complaint to the
Human Resources Director. Ms. McCrea then faxed a letter claiming
she experienced a hostile work environment and requested a
transfer. In response, the Chief Pilot interviewed Plaintiffs, Ms.
McCrea as well as other relevant witnesses, and made a report of
his findings. Among other findings, this report indicated that
Plaintiffs were "shocked" by the allegations because Ms.
McCrea had participated in and often encouraged this type of
behavior about which she now complained.
A few days later, Ms. McCrea faxed another letter to the Human
Resources Director detailing her allegations against plaintiff
Aldrich, and including allegations against the remaining Plaintiffs
and others. Executive Jet then hired an independent investigator to
review these more detailed allegations. The findings of the
independent investigator included that certain instances of a few
of the behaviors were confirmed, while a greater number of
incidents were either unconfirmed, denied or told in a different
manner. Plaintiffs were terminated on April 18, 2003.
In addition, during the two month investigation by Executive
Jet's independent investigator, Ms. McCrea also filed a
discrimination charge with the EEOC on January 27, 2003. In July
2003, the EEOC issued a determination of the merits of Ms.
McCrea's complaint and found, in part, that "the evidence
revealed that Respondent fostered a hostile work environment
created by demeaning, crude, derogatory sex based
remarks."
Plaintiffs filed their own claim of discrimination with the EEOC in
February 2004, and all claims were dismissed. Plaintiffs then filed
an action in the district court alleging discrimination on the
basis of race, sex and national origin in violation of Title VII.
In sum, Plaintiffs complained their terminations were
discriminatory because Executive Jet was aware of similar behavior
from female employees who were not disciplined or terminated for
such conduct. Plaintiffs also sought to strike and exclude all
evidence of, and reference to, the EEOC's determination
regarding Ms. McCrea's charge. The district court entered
summary judgment in favor of Executive Jet on the grounds that
Plaintiffs failed to establish a prima facie case of
employment discrimination and failed to raise a triable issue of
material fact as to pretext. Plaintiffs appealed the decision only
as to the gender discrimination claim and to the court's ruling
to exclude the evidence relating to the EEOC's determination of
Ms. McCrea's charges.
The Ninth Circuit reviewed the district court's entry of
summary judgment de novo and analyzed Plaintiffs' claims under
the burden shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). The Ninth Circuit primarily
focused on the element of the prima facie inquiry as to whether
similarly situated employees engaged in similar conduct but
received more favorable treatment. The district court had
previously found the employees were not similarly situated on two
different grounds: (1) they did not report to the same supervisor,
and (2) Plaintiffs' conduct gave rise to a complaint whereas
Ms. McCrea's did not. As an initial matter, Plaintiffs claimed
the district court engaged in an overly narrow inquiry by focusing
on the similarity of the situation between themselves and the
female employees rather than examining whether the inference of
discrimination was supported on the record as a whole. The Ninth
Circuit reasoned that "[P]laintiffs' case relies on a
comparison between themselves and a group of female
employees....The district court did not err by focusing on the
inference of discrimination that is central to [P]laintiffs'
case."
As to the first point of the district court's finding, the
Ninth Circuit did find that the court incorrectly applied the
"same supervisor" requirement. While the Ninth Circuit
acknowledged that the presence or absence of a shared supervisor
might be relevant in some cases, it was not relevant here because
Plaintiffs' supervisor was excluded from the decision to
terminate, and the relevant decision maker, Executive Jet's
President, was aware of both the allegations against
Plaintiffs' and what Plaintiffs alleged against the females. As
such, based on these facts, determining similarity solely on the
basis that plaintiffs shared the same supervisor as the females was
not appropriate.
On the second point, however, the Ninth Circuit confirmed that the
pilots and the female flight attendants were dissimilar because
alleged conduct of the female was not unwelcome and did not result
in a complaint. This dissimilarity was an independent and
sufficient basis to affirm the district court's summary
judgment. Here, it was undisputed that at least some of the
instances of sexually harassing behavior occurred in the manner
alleged by Ms. McCrea. It further was undisputed that
Plaintiffs' did not complain of the behavior of the female
flight attendances until made defensively in response to
accusations against them, and even then, did not lodge a formal
complaint or claim to have found the conduct harassing or
unwelcome. The Ninth Circuit noted, "[w]e have distinguished
misconduct by one employee from misconduct by another employee on
the basis of whether it prompted complaints or consternation by
other employees." As such, the difference between
Plaintiffs' conduct, which was the subject of complaints of
harassment and as unwelcome conduct, in contrast to the behavior of
the female flight attendants, neither the subject of formal
complaint (other than raised in defense) nor unwelcome, was
properly taken into consideration when the district court found
them to be dissimilar and entered summary judgment in favor of
Executive Jet.
Finally, as to the admissibility of the EEOC documents, the Ninth
Circuit clarified that its holding in Plummer v. Western
International Hotels Co., 652 F.2d 502, 505 (9th Cir. 1981)
allowing a plaintiff the right to introduce an EEOC probable cause
determination in a Title VII lawsuit "did not establish a per
se rule of admissibility of all EEOC documents." The cour
confirmed that the district court should instead exercise its
discretion to admit or exclude a letter of violation. In this case,
the admission of the EEOC determination was not considered to be an
abuse of discretion because the district court was exercising its
discretion in weighing its admissibility and Plaintiffs made no
showing of prejudice from the admission.
The main lesson learned from Hawn is that whether parties are
similarly situated depends on the unique factual situation in each
case, and what the plaintiff himself pleads. In this particular
factual configuration, Plaintiffs were found not to be similarly
situated with the female employees (and summary judgment proper),
because of Plaintiffs' own reliance on this group of
individuals for purposes of comparison, and the fact that
Plaintiffs never complained about the female employees' conduct
nor did they report it to be harassing or unwelcome.
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