Paul Ossmann v. Meredith Corporation
Citation82 F.4th 1007
Date Filed2023-09-08
Docket22-11462
Cited43 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11462
____________________
PAUL OSSMANN,
Plaintiļ¬-Appellant,
versus
MEREDITH CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-03200-SDG
____________________
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2 Opinion of the Court 22-11462
Before JILL PRYOR and GRANT, Circuit Judges, and MAZE, ā District
Judge.
GRANT, Circuit Judge:
Paul Ossmann was the Chief Meteorologist at CBS46, an
Atlanta news station. But during his tenure, female colleagues
raised repeated complaints that he engaged in inappropriate
conduct and sexual harassmentāincluding ācomplimentsā about
appearance, sexually charged language, requests for nude photos,
and more. After several meetings with Ossmann did not stop the
behavior, it became clear to local managers that he could no longer
work at CBS46.
The managers needed authorization from the stationās
parent company to terminate his employment, so the local Human
Resources Director moved the Ossmann ļ¬le up the chain. She sent
a termination request form to the corporate oļ¬ce explaining that
Ossmann had violated the companyās sexual harassment policies;
the form also included Ossmannās race, the demographics of his
colleagues, and identiļ¬cation of potential comparator employees
who had engaged in similar conduct.
Ossmann, who is white, alleges that he was terminated
because of his race in violation of 42 U.S.C. Ā§ 1981. The sexual
harassment justiļ¬cation, he says, was just a pretext. To survive
ā The Honorable Corey L. Maze, United States District Judge for the Northern
District of Alabama, sitting by designation.
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22-11462 Opinion of the Court 3
summary judgment, Ossmann needed to show that a reasonable
jury could conclude that if he were not white, the station would
not have terminated him. The district court found that he did not
make that showing, and Ossmann asks us to overturn that
conclusion. He notes that the stationās new meteorologist is a
Hispanic woman, but mostly argues that the existence of race data
on the corporate form means that he was ļ¬red because he was
white.
We cannot agree. The presence of race data in the local
station managerās termination request is not enough for any jury
to reasonably conclude that Ossmannās sexual harassment conduct,
much of which he admitted, was pretext for the true reason for
Ossmannās ļ¬ringāhis race. We aļ¬rm the grant of summary
judgment.
I.
Meredith Corporation hired Paul Ossmann in 2012 as a
temporary weekend meteorologist for CBS46. Ossmann became
the stationās Chief Meteorologist in mid-2017 and remained in that
position until he was terminated less than two years later, in April
2019.
During that time, Ossmannās female co-workers repeatedly
complained of his inappropriate behavior and sexual harassment.
In April 2017āa few months before his promotion to Chief
Meteorologistāa female meteorologist reported that Ossmann
had repeatedly told her that she ācockblockedā him over a dispute
about vacation scheduling and that he had a dream about them
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4 Opinion of the Court 22-11462
having sex together. She also reported that Ossmann told another
female employee that āhis ļ¬rst three-way was with a black
woman.ā
When Ossmann met with Human Resources Director
Laurel Berenguer and his then-supervisor Frank Volpicella to
discuss the complaint, he admitted to using the term
ācockblocked,ā but he denied making the other comments.
Volpicella issued Ossmann a written warning letter for exercising
āpoor judgment,ā which Ossmann signed to acknowledge receipt.
In that letter, Ossmann was āadvised that further incidents may
result in additional disciplinary action, up to and including
terminationā and was reminded of Meredithās āzero tolerance for
behavior that could contribute to creating a hostile work
environment.ā 1
A little more than six months later, a female news producer
also complained. She told HR Director Berenguer that Ossmann
sent her āhighly inappropriateā messages on Facebook. In those
messages, Ossmann told her that he masturbated while thinking
about her, that he wanted to have sex with her, and that he wanted
1 Meredithās sexual harassment policy prohibited, among other conduct,
āunwelcome sexual advancesā and listed examples of inappropriate behavior
that could qualify such as āunwelcome sexual jokes or innuendoes, sexual
stories, sexual objects, sexual gestures, inappropriate sexual contact, leers,
stares, whistles, and blocking a path or exit.ā Ossmann addsāwithout
supporting evidenceāthat these policies only apply to conduct occurring in
the workplace.
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22-11462 Opinion of the Court 5
her to send him nude photos. When a meeting was called with
Berenguer and Ossmannās new supervisor, Steve Doerr, Ossmann
admitted to sending the messages. He explained that he did so āin
an attempt to enter into an oļ¬-duty personal relationship.ā The
meeting concluded with Ossmann apologizing to Berenguer and
Doerr for making the female producer feel uncomfortable. The
incident was memorialized in a written warning letter titled āFinal
Written Warning: Exercising Poor Judgment.ā But, unlike the ļ¬rst
letter, this one was not signed by Ossmann. The parties dispute
whether he received it. Ossmann says he was unaware of the letter
until it was produced in discovery for this litigation and adds that
Doerr told him privately that his conduct did not violate company
policy. For his part, Doerr says that he provided Ossmann āwith a
written warning for violating Meredithās policy against sexual
harassment.ā
Roughly a year and a half later, yet another female employee
raised yet another complaint. She reported that after the news
aired Ossmann pulled her aside and said:
Not to be like uncle Joe [Biden], I wanted to let you
know I look at you all the time. Youāre so pretty, put
together. I see you walk around and you carry
yourself very well. Youāre very attractive and thatās
attractive to me. You donāt ļ¬aunt it. Donāt put it out
there. Youāre not all a selļ¬e kind of person. You
always look nice.
In the moment, she thanked Ossmann for the compliment and told
him that she liked working with him. But afterward she reported
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6 Opinion of the Court 22-11462
to HR Director Berenguer that the comment made her feel
uncomfortableāto the point that she immediately called her
husband and parentsāand that she was disappointed in herself for
the way that she handled the situation. She feared that she had set
herself up for it to happen again.
HR Director Berenguer and Supervisor Doerr again met
with Ossmann to discuss the allegations. According to Berenguerās
contemporaneous notes, Ossmann admitted to making the
comments, but did not āmean anything by his comments.ā In his
view, he was just paying his coworker a compliment because he
thought that they āhad that kind of relationship.ā (Ossmann now
denies that he admitted to making the comments.) Doerr
reminded Ossmann that this was not the ļ¬rst time he had behaved
inappropriately with female colleagues. Doerr also suspended him
until Lyle Banks, the stationās General Manger, decided on how to
proceed.
Doerr and Banks reviewed the allegations and decided that
based on Ossmannās āpattern of violating Meredithās policy against
sexual harassment,ā they āhad no choice but to terminateā him.
They believed that termination was necessary āto maintain a safe
workplace free from sexual harassment.ā
Banks directed Berenguer to āput together a
recommendation to submit to corporate for approval to proceed
with termination.ā Berenguerās standard practiceābased on
training she received from Meredithās corporate human resources
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22-11462 Opinion of the Court 7
directorāwas to ļ¬ll out a form called an āEEO Analysis.ā2
According to Berenguer, the purpose of the form was to gather all
the ārelevant information in making a request for review for
discharge.ā The form was required for any discharge, job
elimination, restructuring, or reorganization.
The EEO Analysis states that the station requested to
terminate Ossmann because he violated the companyās sexual
harassment and hostile work environment policies. It described
the ācockblockedā and inappropriate messaging incidents, as well
as an earlier incident that Ossmann claims was too distant to justify
his ļ¬ring. The form did not describe the ļ¬nal incident because the
station moved forward with termination immediately rather than
adding it to his ļ¬le. Banks and Doerr are listed as the
decisionmakers. The form includes Ossmannās race, sex, and ageā
which Ossmann says tainted the decisionmaking processāand asks
whether āother employees [have] been in a similar circumstance
and, if so, how was that handled and resolved?ā Berenguer listed
two employees terminated for violating the companyās sexual
harassment policies and another who received a written warning
for āconduct unbecoming a manager.ā Below that question, the
form includes a table titled āComparables (if applicable).ā That
table requests the same basic information provided for Ossmannā
race, sex, age, job title, salary, and supervisor, among other things.
2 Although there are obvious candidates for what this could stand for, the
record does not offer the answer.
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8 Opinion of the Court 22-11462
But Berenguer did not complete this table with the
information for the employees who were also disciplined. Instead,
she listed the other ļ¬ve members of the weather team, none of
whom had been disciplined, because they had āsimilar jobs or the
same job.ā And on the next page, the form includes a statistical
analysis on how Ossmannās termination would aļ¬ect the
demographics of the news station generally and the comparable
groupāhere the weather teamāspeciļ¬cally. At the companyās
Rule 30(b)(6) deposition, Berenguer repeatedly testiļ¬ed that this
information was used to ensure that the company was ābeing
equitable.ā Or, putting it another way, she testiļ¬ed that it was used
to make sure that the company was not ātreating one person in that
situation in that comparable group diļ¬erently than others.ā
Berenguer emailed the stationās request to Kandis Bock, a
Vice President of Human Resources at Meredith. The record is
limited on what happened next. The email to Bock is not in the
record; nor was she deposed. That said, we know that Bock
provided the local station managers with authorization to
terminate Ossmann. So four days after suspending Ossmann,
Doerr notiļ¬ed him that he was being terminated. Three weeks
later, the station replaced Ossmann with Jennifer Valdez, a Hispanic
meteorologist. Valdez had been with the station longer than
Ossmann, and he admits that she was qualiļ¬ed.
Ossmannās suit alleges race discrimination in violation of 42
U.S.C. Ā§ 1981 and breach of his employment contractās for-cause
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22-11462 Opinion of the Court 9
provision. 3 After the close of discovery, Meredith moved for
summary judgment and the matter was referred to a magistrate
judge, who recommended that the motion be granted. The district
court adopted a modiļ¬ed version of the magistrate judgeās
recommendation and granted summary judgment for Meredith.
Ossmann now appeals the district courtās order.
II.
We review the grant of summary judgment de novo.
McAlpin v. Sneads, 61 F.4th 916, 927 (11th Cir. 2023). āA grant of
summary judgment will be aļ¬rmed if āthere is no genuine dispute
as to any material fact and the movant is entitled to judgment as a
matter of law.āā Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303
(11th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)). There is a genuine
dispute when āthe evidence is such that a reasonable jury could
return a verdict for the nonmoving party.ā Id. (quotation omitted).
The evidence is viewed in the light most favorable to the non-
moving party and all reasonable inferences are drawn in that partyās
favor. Id. at 1303ā04.
III.
A.
Ossmann contends that Meredith terminated him because
of his race, in violation of 42 U.S.C. Ā§ 1981. āSection 1981 prohibits
3 Ossmannās complaint also brought claims for disparate discipline and hostile
work environment, but he abandoned those claims below.
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10 Opinion of the Court 22-11462
intentional race discrimination in the making and enforcement of
public and private contracts, including employment contracts.ā
Jenkins v. Nell, 26 F.4th 1243, 1249 (11th Cir. 2022) (quoting Ferrill v.
Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999)).
The McDonnell Douglas burden-shifting framework generally
applies to discrimination claims based on circumstantial evidence.
Id. That framework ļ¬rst requires Ossmann to establish a prima
facie case of intentional discrimination. Lewis v. City of Union City,
918 F.3d 1213, 1220ā21 (11th Cir. 2019) (en banc). If he does so, he
is entitled to a rebuttable presumption of intentional
discrimination.4 Id. at 1222. To rebut that presumption, Meredith
needs to produce evidence of a valid, nondiscriminatory reason for
terminating him. Id. at 1221. If it meets that burden, the
presumption of intentional discrimination drops out of the case
and Ossmann must demonstrate that Meredithās āproļ¬ered reason
was merely a pretext for unlawful discrimination, an obligation that
āmerges with the plaintiļ¬ās ultimate burden of persuading the
factļ¬nder that [he] has been the victim of intentional
discrimination.āā Id. (quoting Texas Depāt of Cmty. Aļ¬s. v. Burdine,
450 U.S. 248, 256 (1981)) (alterations adopted).
Unlike a Title VII discrimination claimāwhere a lesser
āmotivating factorā standard sometimes appliesāa Ā§ 1981 claim
4 The district court concluded that Ossmann made out a prima facie case by
showing that he belongs to a protected class, was qualified for the position,
was terminated, and was replaced by someone outside of his protected class.
That decision is unchallenged on appeal.
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requires proof that race was a but-for cause of a termination.
Comcast Corp. v. Natāl Assān of Afr. Am.-Owned Media, 140 S. Ct. 1009,
1013, 1017 (2020). This does not require Ossmann to prove that
race was the exclusive cause of his termination, but it does require
him to prove that but for his race he would not have been
terminated. See United States v. Benjamin, 958 F.3d 1124, 1131ā32
(11th Cir. 2020); Ziyadat v. Diamondrock Hosp. Co., 3 F.4th 1291,
1297ā98 (11th Cir. 2021). So to survive summary judgment,
Ossmann needs to show that a reasonable jury could conclude that
had he not been white, he would not have been terminated.
B.
āWhen evaluating a charge of employment discriminationā
we āfocus on the actual knowledge and actions of the decision-
maker.ā Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1274
(11th Cir. 2002). Ossmann urges that Bockāthe corporate HR Vice
President who approved his terminationāwas the ļ¬nal
decisionmaker responsible for terminating him. Meredith
disagrees, contending that Banks and Doerrāthe local station
managers who investigated the allegations and decided that they
āhad no choice but to terminateāāwere the ļ¬nal decisionmakers.
It may well be that the better view of this evidence is that the local
station managers were the ļ¬nal decisionmakers. But because we
must make all reasonable inferences in Ossmannās favor as the non-
moving party, we analyze his employment discrimination claim
assuming that Bock was the ļ¬nal decisionmaker.
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12 Opinion of the Court 22-11462
Ossmann oļ¬ers several arguments. He starts by contending
that the EEO Analysis is direct evidence proving Bockās intentional
discrimination. Failing that, he argues that Meredith has failed to
satisfy its burden at step two of the McDonnell Douglas framework
of producing evidence of its valid, nondiscriminatory reason, and
that, in any event, he has met his burden at step three of
demonstrating pretext. Alternatively, he says he has presented a
convincing mosaic of circumstantial evidence proving intentional
discrimination and that he has shown a viable ācatās pawā theoryā
under which Bock merely rubberstamped the racial animus of the
station managers. We address each of his arguments in turn, but
note at the outset that none succeed.5
C.
Ossmannās ļ¬rst set of arguments center on the EEO Analysis
form. His opening volley is that the form is direct evidence of
illegal discrimination. āDirect evidence of discrimination is
evidence that reļ¬ects a discriminatory or retaliatory attitude
correlating to the discrimination or retaliation complained of by
the employee, and, if believed, proves the existence of a fact without
inference or presumption.ā Fernandez v. Trees, Inc., 961 F.3d 1148, 1156
(11th Cir. 2020) (quotations omitted) (emphasis added). This is a
5 Ossmann also appeals the district courtās order granting summary judgment
on his breach of contract claim. But he concedes that his contract claim is
āderivative of the Ā§ 1981 termination claim.ā Accordingly, because we affirm
the grant of summary judgment on Ossmannās Ā§ 1981 claim, we also affirm
the grant of summary judgment on his breach of contract claim.
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ārigorous standard.ā Damon v. Fleming Supermarkets of Fla., Inc., 196
F.3d 1354, 1359 (11th Cir. 1999). We accept āonly the most blatant
remarks,ā such as āa management memorandum saying, āFire
Earleyāhe is too old,āā as direct evidence. Id. (quoting Earley v.
Champion Intāl Corp., 907 F.2d 1077, 1081 (11th Cir. 1990)). āIf the
alleged statement suggests, but does not prove, a discriminatory
motive, then it is circumstantial evidence.ā Fernandez, 961 F.3d at
1156 (quotation omitted).
The EEO Analysis does not meetāor even approachāthis
standard. The form listed several categories of information in a
neutral fashion, including Ossmannās race, as well as the race of the
other employees. For this document to prove that Ossmann was
terminated because of his race, we would need to infer that it
treated his race as a negative factor and that had his race been
diļ¬erent Bock would not have approved his termination. Setting
aside whether these inferences are even plausible, they are plainly
inferences. And where inferences are required, evidence is not
direct. The EEO Analysis is circumstantial rather than direct
evidence, so we proceed to Ossmannās remaining arguments.
Ossmann next contends that Meredith did not rebut the
presumption of intentional discrimination created by his prima
facie showing under McDonnell Douglas. To do so, Meredith needed
to produce evidence showing that Bock had a legitimate,
nondiscriminatory reason for approving Ossmannās termination.
Burdine, 450 U.S. at 254. This justiļ¬cation must be suļ¬cient to
āallow the trier of fact rationally to conclude that the employment
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14 Opinion of the Court 22-11462
decision had not been motivated by discriminatory animus.ā Id. at
257.
As the district court recognized, the EEO Analysisāwhich
says that the station terminated Ossmann for sexual harassment
policy violationsāis āevidence of what Bock received and reviewed
with respect to Ossmannās termination.ā And the record includes
Berenguerās meeting notes describing underlying incidents of
harassment, warning letters, and deposition testimonyāall
supporting Meredithās contention that it ļ¬red Ossmann because of
repeated incidents of sexual harassment and inappropriate
comments. This evidence is suļ¬cient to give Ossmann a fair
opportunity to demonstrate pretext and tracks rebuttal evidence
this court has accepted before. See Vessels v. Atlanta Indep. Sch. Sys.,
408 F.3d 763, 770 (11th Cir. 2005); Bogle v. Orange Cnty. Bd. of Cnty.
Commārs, 162 F.3d 653, 657ā58 (11th Cir. 1998). It plainly satisļ¬es
step two of the McDonnell Douglas evidentiary framework.
We disagree with Ossmannās argument that our decision in
IMPACT v. Firestone compels a diļ¬erent conclusion. 893 F.2d 1189
(11th Cir. 1990). We have described that case as establishing that
the employer āmust present speciļ¬c evidence regarding the
decision-makerās actual motivations.ā Walker v. Mortham, 158 F.3d
1177, 1181 n.8 (11th Cir. 1998). Here, the only information sent to
Bock was the EEO Analysis, and even Ossmann argues that she
made her decision based on the contents of that form. And as we
explained in Vessels, so long as those āprimarily responsible for
making the decision[]āāhere, the local station managersā
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22-11462 Opinion of the Court 15
articulate a suļ¬cient race-neutral justiļ¬cation, the employer meets
its burden of production even if upper level supervisors who
approve the decision have not articulated the exact basis for their
approval. 408 F.3d at 770; see also IMPACT, 893 F.2d at 1193ā94
(acknowledging that rebuttal evidence need not come from the
actual decisionmaker). Like Vessels, this is not a case āwhere an
upper-level manager overruled a subordinate managerās
recommendation or decision without explanation.ā 408 F.3d at
770. Meredith has met its burden to rebut Ossmannās prima facie
case, which means the presumption of intentional discrimination
drops out of the case.
Finally, Ossmann says that the form means he has provided
suļ¬cient evidence to show pretext at the third stage of McDonnell
Douglas. At this point, Ossmann needs to show that a reasonable
jury could disbelieve Meredithās nondiscriminatory reasonā
repeated incidents of sexual harassmentāand instead conclude
that, but for his race, Bock would not have approved the
termination. Brooks v. Cnty. Commān, 446 F.3d 1160, 1163 (11th Cir.
2006). A ācourt merely uses the pretext inquiry to guide its
determination of the ultimate issue at summary judgment.ā Smith
v. Lockheed-Martin Corp., 644 F.3d 1321, 1346 n.86 (11th Cir. 2011).
The pretext inquiry āmerges with the ultimate burden of
persuading the court that she has been the victim of intentional
discrimination,ā so we ask whether there is a genuine dispute of
material fact as to whether Meredith intentionally discriminated
against Ossmann. Burdine, 450 U.S. at 256.
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16 Opinion of the Court 22-11462
Unlike most discrimination plaintiļ¬s, Ossmann does not
oļ¬er any evidence that employees of other races were not ļ¬red for
repeated instances of sexual harassment. Ossmannās only evidence
that Bock intentionally discriminated against him, aside from the
fact that he was replaced by a non-white woman, is the inclusion
of race on the EEO Analysis form. 6 This form does not remotely
approach the amount of evidence necessary for a reasonable jury
to conclude that Ossmann was ļ¬red because of his race.
6 Ossmann argues that two more pieces of evidence are relevant. First, he says
that some incidents listed on the EEO Analysis were too old to serve as the
basis for his termination, and that another was dated in the future. But the
listing of previous incidents of sexual harassment does not demonstrate
pretextāif anything it bolsters the conclusion that termination was
appropriate. And no reasonable jury could conclude that the āfutureā event is
anything but a typographical error given the substantial evidence showing that
the incident happened on the same date two years before the date listed in the
analysis.
Second, Ossmann argues that an inference of pretext can be drawn from
Meredithās shifting explanations for the origin of the EEO Analysis. In its
interrogatory responses, Meredith said that Banks directed Berenguer to
prepare the EEO Analysis. But when (unsuccessfully) claiming attorney work-
product privilege over the document, Meredith told the court that in-house
counsel directed Berenguer to prepare it. From this, Ossmann says a jury
could infer Meredithās āconsciousness of guilt.ā Ossmann does not point to
any authority for this inference. The authority that Ossmann does citeā
United States v. Wilsonārelied on a line of criminal cases recognizing that false
exculpatory statements may be used to prove guilt. 788 F.3d 1298, 1311 (11th
Cir. 2015) (citing United States v. Holbert, 578 F.2d 128, 129 (5th Cir. 1978)).
Meredithās explanation on the origin of the EEO Analysis was part of a routine
assertion of attorney work-product privilegeāit is neither a false exculpatory
statement nor evidence of pretext.
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22-11462 Opinion of the Court 17
To start, the EEO Analysis form says on its face that
Ossmann was terminated for multiple sexual harassment policy
violations. In fact, it speciļ¬cally describes three incidents of
harassment. It also includes race data for the weather team and
overall station statistics. Because of this, Ossmann contends that
his race was āa negative factorā in the decision to terminate him.
For its part, the dissent adds that the form required Bock to
consider āracial balanceā when making her decision and contends
that a jury could infer that āBock would have recommended that
the lone black or Hispanic member be suspended rather than
terminated to avoid racial imbalance.ā Dissent at 4, 14, 17, 19, 23ā
24. But āinferences in favor of a plaintiļ¬ can be based only on
evidenceānot on speculation.ā Martin v. Fin. Asset Mgmt. Sys., Inc.,
959 F.3d 1048, 1058(11th Cir. 2020); see also Smith,644 F.3d at 1328
n.25.
Speculation is all we have here. We agree that we must infer,
at this stage of the case, that Bock considered the data on the last
attachment to the form. But considered it how? The evidence does
not provide an answer.
The language of the form does not tell Bock what she should
do with the racial data, and it does not require her to engage in
racial balancingāit is completely neutral.7 As was the only
7 The dissent points specifically to FAQ #10 in the EEO form as evidence that
Bock was required to engage in racial balancing. Dissent at 5ā7, 11ā12. But a
closer look at the full text of FAQ #10, rather than the excerpts quoted by the
dissent, reveals that the form imposes no racial balancing requirements. FAQ
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18 Opinion of the Court 22-11462
testimony oļ¬ered to explain the document. According to
Berenguer, the purpose of the data was to make sure that the
station was not ātreating one person in that situation in that
comparable group diļ¬erently than others.ā 8 Indeed, we ļ¬nd
puzzling the dissentās apparent inference that a 20-second pause
before Berenguer described the companyās commitment to
treating employees equally can be interpreted as substantive
evidence of discrimination. See Dissent at 13ā14. Particularly
when she was being asked about how someone else used the form,
and her only source of information was being āwalked throughā it
14 years earlier when she started her job at the station.
No reasonable jury could conclude from the bare fact that
this document includes data on the race of all weather employees
at the station that Ossmann was ļ¬red because of his race. It is just
#10 asks: āIn reviewing the existing and proposed organizational charts, is a
particular protected category of employee being impacted by the restructure
at a higher percentage rate than similarly situated non-protected employees?
Conduct a Risk Analysis as appropriate.ā Doc. 71-4 at 2. To start, by its terms
this inquiry applies only in restructuring actions rather than for termination
requests (though the station responded in any event). And one can understand
why a reviewing authority would want to know whether a restructuring (read:
layoffs) would impact a protected category of employees in a way that
presented legal risk to the company.
8 We do not use oral argument to āask attorneys to provide new evidence with
which to make our own findings of fact.ā United States v. Campbell, 26 F.4th
860, 876 n.12 (11th Cir. 2022) (en banc). So unlike the dissent, we do not rely
on counselās statements at oral argument for additional factual evidence about
how the form may have been used. See Dissent at 15. Instead, we confine our
review to the certified record. See Id. at 874.
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22-11462 Opinion of the Court 19
as likely (which is to say entirely speculative) that Bock used the
race data in favor of Ossmann. We have no evidence either way.
And we do not know what Bock would have done had Ossmann
not been white because Ossmann does not have evidence that Bock
treated employees of other races more favorably. If he did, a jury
may have been able to make the inference that race was a but-for
cause of his termination. But to infer that without any other
evidence is nothing but speculation. On this record, a reasonable
jury could notāby a long shotāconclude that Ossmannās race was
a but-for cause of his termination.
Our decision in Smith v. Lockheed-Martin Corp. demonstrates
the point. 644 F.3d 1321 (11th Cir. 2011). There, the company had
ļ¬red seven white employees who forwarded a racially oļ¬ensive
email but had not ļ¬red black employees for similar conduct. Id. at
1332, 1336. Reversing the district courtās grant of summary
judgement in favor of the company, we pointed to three pieces of
evidence from which a reasonable jury could infer intentional
discrimination. First, there was evidence that the same
decisionmaker had discriminated against other white employees in
similar (but distinct) investigations into the distribution of racist
emails occurring around the same time. Id. at 1341ā44. Second,
there was evidence that because of a tragic incident at a Lockheed-
Martin facility in Texasāa racially based shooting that had received
a massive amount of media attentionāLockheed-Martin was
under intense pressure to āemphatically proveā that the company
was committed to curbing racism against black employees by
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20 Opinion of the Court 22-11462
ensuring that all white employees engaging in racist conduct were
ļ¬red. Id. at 1329, 1344ā45.
Third, there was evidence that a disciplinary review
committee used a decision matrix that detailed each investigated
employeeās conduct and included a column listing each employeeās
race. Id. at 1336. After reviewing the ļ¬rst two categories of
evidence, we said that this matrix āstrengthen[ed] the
reasonableness of the inferenceā that the decisionmaker āsought to
ļ¬re all whites who distributed racist emails.ā Id. at 1345ā46. In
light of the other evidence of racial discrimination, āLockheedās
injection of race into its decision-making process yield[ed] an
unavoidable inference that the employeeās race impacted the
discipline determination.ā Id. at 1346. And bolstering that
inference, we pointed out, race was not tracked in an investigation
into two black employeesā racist emails, which a jury could infer
was ābecause it was already known that both employees to be
disciplined . . . were black and, therefore, would not be terminated
for their conduct.ā Id. at 1346 n.87. Moreover, the company
admitted that it had āno legitimate business purposeā in
monitoring the employeesā race. Id. at 1346 n.85 (quotation
omitted and alteration adopted).
The dissent accuses us of avoiding the āunavoidableā
inference that we recognized in Lockheed-Martin. Dissent at 4. But
the reason that inference was unavoidable in Lockheed-Martin was
the dramatic amount of additional evidence in that case. Here, we
have none.
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22-11462 Opinion of the Court 21
The more relevant point from Lockheed-Martin is its warning
that an inference āis not a suspicion or a guess. It is a reasoned,
logical decision to conclude that a disputed fact exists on the basis
of another fact.ā 644 F.3d at 1328 n.25. We heed that warning here.
What Lockheed-Martin does not establish is that a reasonable
inference of intentional discrimination is created any time race is
included in a document used to facilitate an employment decision.
Other evidence is needed to show that race was used in a
discriminatory manner. In a diļ¬erent case, with evidence that it
was used for improper reasons in a particular employment
decision, a form containing racial data could move the needle. But
without any evidence suggesting that the race information was a
negative factor against Ossmann, or was used favorably in
evaluating a non-white employee, an inference of intentional
discrimination is not reasonable. Much less āunavoidable.ā
The fact that Ossmann was replaced by a non-white
employee is not enough. Being replaced by someone outside oneās
protected class can help to establish the prima facie case of
discrimination for burden-shifting purposes. Maynard v. Bd. of
Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). But it is not enough
to carry the day on the substantive question of discrimination. See
Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1236 (11th Cir. 2004).
Indeed, there is no record evidence suggesting that Bock was even
involved in selecting Ossmannās replacementāwhich would be
necessary to infer that she approved his termination so that she
could replace him with someone who is not white. Because
Ossmann cannot show that a reasonable jury could conclude that
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22 Opinion of the Court 22-11462
Meredith intentionally discriminated against himārather than
ļ¬red him for his repeated violations of Meredithās sexual
harassment policiesāhis claim cannot survive summary judgment.
D.
Notwithstanding the complete lack of evidence of
intentional discrimination in this case, the dissent relies on two
cases where the defendants aļ¬rmatively sought to use race in their
decisionmaking. Neither has any application here. The ļ¬rst is Ricci
v. DeStefano, where a local ļ¬re department sought to intentionally
discriminate against white ļ¬reļ¬ghters to avoid disparate impact
suits from non-white ļ¬reļ¬ghters. 557 U.S. 557, 561ā63 (2009). The
Supreme Court held that the ļ¬re department needed a āstrong
basis in evidence to believe it will be subject to disparate-impact
liabilityā before it could engage in intentional discrimination to
avoid it. Id. at 585. Meredith has not argued that it engaged in
intentional discrimination, so Ricci is not relevant.
The second case is the recent decision rejecting the race-
based admissions systems of Harvard and the University of North
Carolina, Students for Fair Admissions, Inc. v. President & Fellows of
Harvard College, 143 S. Ct. 2141 (2023), which the dissenting opinion
rightly concedes is not binding on these unrelated facts. Dissent at
7ā8. There, both colleges considered race at every stage of their
admissions programs, openly admitted to doing so, and insisted
that they be permitted to continue. Id. at 2154ā2156, 2166. This
case could not be more diļ¬erent. It is a run-of-the-mill Ā§ 1981 case
without any evidence of intentional discrimination.
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22-11462 Opinion of the Court 23
Still, the dissent insists that SFFA helps ārebuļ¬ Meredithās
ānegative factorā argument,ā because the Supreme Court rejected
the universitiesā argument that race never played a ānegative
factorā in any applicantās admission decision. Dissent at 7, 18ā19;
see 143 S. Ct. at 2169. But in SFFA there was extensive evidence that
race was a positive factor in some applicantsā decisions. SFFA, 143
S. Ct. at 2169. In a āzero-sumā game, therefore, race was a negative
factor for other applicants. Id. The same conclusion cannot be
drawn here; there is neither evidence that race has been used as a
positive factor in other employment decisions nor evidence that
Meredith treats its employment decisions as zero-sum.
In sum, Ossmann lacks direct evidence of discrimination, he
lacks evidence that Meredith treated his race as a factor favoring his
termination, and he lacks evidence that Meredith treated similarly
situated non-white employees more favorably. On the other hand,
Meredith has produced extensive evidence of Ossmannās sexual
harassment, which is a valid, nondiscriminatory reason for his
termination. On this record, no reasonable jury could infer that
Meredithās justiļ¬cation was pretext for race discrimination.
E.
Ossmann says that even setting aside the McDonnell Douglas
steps, he can prove his claim by presenting āa convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional
discrimination by the decisionmaker.ā Smith, 644 F.3d at 1328
(quotation and footnote omitted). He is correct that the
convincing mosaic metaphor oļ¬ers an alternative to plaintiļ¬s
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24 Opinion of the Court 22-11462
unable to succeed through the McDonnell Douglas framework. See
id.; Vessels, 408 F.3d at 768 n.3. The problem for Ossmann is that
his evidence is neither convincing nor a mosaic. He oļ¬ers no facts
besides the EEO form and his replacementās race, which we have
already determined are not enough to show discrimination.
And in any event, the mosaic theoryās relevance is highest
for employees who cannot make out a prima facie case of
discrimination. These employees may, for example, lack adequate
comparators but otherwise have circumstantial evidence of
discrimination. See Smith, 644 F.3d at 1328; Bailey v. Metro Ambulance
Servs., Inc., 992 F.3d 1265, 1273 n.1 (11th Cir. 2021). That is not
Ossmann. Plus, the convincing mosaic inquiry is identical to the
ļ¬nal stage of the McDonnell Douglas framework: both ask whether
there is enough evidence for a reasonable jury to infer intentional
discrimination. Smith, 644 F.3d at 1326, 1328. We have already
concluded that Ossmannās circumstantial evidence fails to create a
triable question of intentional discrimination. We say so again in
rejecting his convincing mosaic argument.
Ossmann also raises a ācatās pawā theory of liability. That
theory āprovides that causation may be established if the plaintiļ¬
shows that the decisionmaker followed the biased
recommendation without independently investigating the
complaint against the employee.ā Stimpson v. City of Tuscaloosa, 186
F.3d 1328, 1332(11th Cir. 1999); see also Ziyadat,3 F.4th at 1298
.
Still, the non-decisionmakerās racial animus must be a but-for cause
of the termination. Ziyadat, 3 F.4th at 1298.
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22-11462 Opinion of the Court 25
For this theory, Ossmann retreats from his claim that Bock
acted with discriminatory animus. He instead says that she
āaccepted the Atlanta managersā recommendation without
investigatingā and that the Atlanta managersāBanks and Doerrā
recommended his termination for discriminatory reasons. He
argues that Doerrās reasons for recommending Ossmannās
terminationārepeated episodes of sexual harassmentāwere
pretext because, Ossmann says, Doerr did not believe that his
harassing conduct violated Meredithās policies. But even if that
were true (as unlikely as it may be) Ossmann does not argue the
same for Banks, who independently reviewed the facts and directed
Berenguer to submit the termination form for corporate approval.
Because both acted together, the causal chain between Doerr and
the ultimate recommendation to Bock is broken by Banksās
participation in the decision. For Doerrās alleged racial animus to
be a but-for cause of his termination, Ossmann would have had to
argue either that Banks also acted with racial animus or that
Banksālike Bockāwas a mere rubberstamp. He has done neither
here.
* * *
The ultimate question in any discrimination case is whether
the defendant intentionally discriminated against the plaintiļ¬ based
on race. Ossmann failed to show that a reasonable jury could
conclude that Meredith terminated his employment because he
was white. The district courtās order granting summary judgment
for Meredith is therefore AFFIRMED.
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22-11462 Maze, J., dissenting 1
COREY L. MAZE, District Judge, dissenting:
I agree with the majority that we must infer Kandis Bock
considered Paul Ossmannās race and the race of his coworkers
when Bock approved Ossmannās termination. Opinion at 19. But I
think we must also make the next logical inference: if Bock
considered race, then changing race would aļ¬ect Bockās decision.
The majority says this inference lacks reason and logic. Iāll
let you, the reader, decide whether they are right. Below are ļ¬ve
facts. Assume the ļ¬rst four are true (Iāll show you the proof later),
then ask yourself if it is reasoned and logical to infer that Bock
would respond diļ¬erently depending on the race of the
meteorologist in Fact #5:
1. A local station wants to ļ¬re a male meteorologist for
sexually harassing female coworkers.
2. Meredith corporate policy requires Bock to review and
then approve or deny the termination request.
3. As part of her review, Bock must determine whether
terminating the meteorologist would impact a minority
racial group at a higher percentage rate than white
employees.
4. To ensure Bock can conduct this review, corporate
counsel orders the local stationās HR director to ļ¬ll out a
form that identiļ¬es the meteorologistās race and the race
of his coworkers, then chart each racial group by
percentage.
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2 Maze, J., dissenting 22-11462
5. The resulting racial group chart tells Bock that:
a. The meteorologist is white, and granting the
termination request would increase the
percentage of black and Hispanic members of the
weather team from 17% to 20% each; or,
b. The meteorologist is Black or Hispanic, and
granting the termination request would decrease
the percentage of his minority racial group from
17% to 0%, meaning his race is no longer
represented on the weather team.
Based on these facts, I think it is both reasonable and logical to infer
that changing the race of the meteorologist would aļ¬ect Bockās
decision. Otherwise, whatās the point of disclosing his race and the
race of his innocent coworkers?
The majority avoids answering this question by declaring
that the EEO form is ācompletely neutralā and ādoes not tell Bock
what she should do with the racial data.ā Opinion at 19-20. Not so;
the EEO form told Bock how to consider race. Iāll show you the
form and what Berenguer said about the form below.
When we view this evidence in the light most favorable to
Ossmann, we must infer that Berenguer sent Bock racial group
data so that Bock could conduct a race-based disparate impact
review, and under that review, we must infer that Bock āwould have
responded diļ¬erentlyā if the station sought to ļ¬re the lone black or
Hispanic member of the weather team rather than one of teamās
four white members. Comcast Corp. v. Natāl Assān of African
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22-11462 Maze, J., dissenting 3
American-Owned Media, 140 S. Ct. 1009, 1015 (2020); see also Bostock
v. Clayton Cty., __ U.S. __, 140 S. Ct. 1731, 1739 (2020)(āa but-for test
directs us to change one thing at a time and see if the outcome
changes. If it does, we have found a but-for cause.ā).
Our precedent supports this inference. When faced with a
similar race-conscious document, this Court has said that the
inference that race mattered was āunavoidable,ā and only a jury
could decide what happened:
On its face, the āmatrixā indicates that race was
pertinent to the discipline decisions made, and
Lockheed has not explained satisfactorily why this
was legitimate. Therefore, although the district court
entirely ignored this fact, Lockheedās injection of race
into its decision-making process yields an unavoidable
inference that the employeeās race impacted the
discipline determination, and it is a juryās province to
decide whether race actually bore on the decision to
terminate Mitten.
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1346 (11th Cir. 2011)
(footnotes omitted). If we stuck to Lockheed-Martin, the case would
end here. We could cut-and-paste the conclusion and change just
two names:
[Meredithās] injection of race into its decision-making
process yields an unavoidable inference that the
employeeās race impacted the discipline
determination, and it is a juryās province to decide
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4 Maze, J., dissenting 22-11462
whether race actually bore on the decision to
terminate [Ossmann].
Id. But the majority avoids Lockheed-Martinās unavoidable inference,
so we press on.
I.
Defendants rarely confess wrongdoing, so plaintiļ¬s like
Ossmann often base their inferences on circumstantial evidence.
That doesnāt make their inferences unreasonable. Imagine
discovering your child reaching into a cookie jar. When you ask
why his hand is in the cookie jar, your child says nothing. You didnāt
see your child take a cookie. He did not admit that he was taking a
cookie. Yet you can reasonably infer: He was taking a cookie!
A.
Meredithās hand is in the cookie jar. āOutright racial
balancing is patently unconstitutional.ā Students for Fair Admissions,
Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2172
(2023) (brackets and quotations omitted). Yet Ossmann oļ¬ers
documentary evidence that suggests Bock considered the impact
on racial group balance when deciding whether to approve
Ossmannās termination.
Corporate counsel told Laurel Berenguer that, before
corporate would sign oļ¬ on Ossmannās termination, she needed to
complete an EEO Analysis form and send it to Bock. Berenguer
testiļ¬ed that the EEO Analysis is a standard form that Meredith
requires local stations to send āto corporate to review or request
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22-11462 Maze, J., dissenting 5
termination,ā and Meredith admits that Berenguer sent Ossmannās
EEO Analysis form to Bock āin the usual course of business.ā
The formās header conļ¬rms that corporate uses the EEO Analysis
data to review termination requests:
(circle added). Later on the ļ¬rst page, the form instructs the person
requesting a termination to:
FAQ #10 asks the requesting party to disclose whether āa particular
protected category of employeeā would be impacted by the
decision āat a higher percentage rate than similarly situated non-
protected employeesā:
While FAQ #10 talks about protected groups ābeing impacted by
the restructure,ā Berenguer testiļ¬ed that corporate HR trained her
to ļ¬ll out the form for terminations, as well as restructures and
reorganizations, and she had followed that policy for 14 years.
Consistent with her training and practice, Berenguer
responded to FAQ #10 by typing āReference Risk Analysis,ā which
refers to this āRisk Analysisā chart that Berenguer created:
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6 Maze, J., dissenting 22-11462
The green column disclosed the racial makeup of the whole news
station. The yellow column disclosed the racial makeup of the
weather team, who Berenguer identiļ¬ed by name, race, age, and
sex on the previous page:
The gray column disclosed which racial group(s) would be
diminished if Bock granted the request.
These charts told Bock that terminating Ossmann would not
impact minority employees (the African-American and Hispanic
reporters who each comprised 1/6 of the weather team), āat a
higher percentage rate than similarly situated non-protected
employeesā (the white employees who ļ¬lled four of the six spots).
They also told Bock that white employees formed the largest racial
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22-11462 Maze, J., dissenting 7
group in the news department (49%) and the weather team (75%),
so terminating a white employee would not negatively impact a
protected racial group.
The majority acknowledges that Bock considered this racial group
data but concludes that no evidence supports how she considered
it. Opinion at 19-20. But that conclusion ignores the obvious
question: is there any reason Bock would consider the racial group
makeup of the news station and the weather team other than to
conduct the disparate impact review called for by FAQ #10? We
donāt require jurors to check their common sense at the door. If the
EEO form tells Bock how to use the racial group data, and
Meredith oļ¬ers no other explanation for sending Bock the racial
group data, then a juror can reasonably ļ¬nd that Bock followed the
form.
B.
Meredith says it adds racial group data to termination
documents āto ensure equitable treatment of its employees.ā And
Title VII prohibits employment practices that disparately impact
racial groups. 42 U.S.C. Ā§ 2000e-2(k). So why then is racial balancing
problematic?
Ossmann points to the Supreme Courtās recent statement
that ā[o]utright racial balancing is patently unconstitutional.ā
Students for Fair Admissions, 143 S. Ct. at 2172 (quotations omitted).
That case, however, involved student admissions to college, not
personnel decisions. So while Students for Fair Admissions helps
Ossmann rebuļ¬ Meredithās ānegative factorā argument, see infra
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8 Maze, J., dissenting 22-11462
Part II(C), its holding is not binding here. But Meredith is not out
of the woods yet; there are two other reasons why conducting a
disparate impact review was improper.
1. Conducting a group disparate impact analysis when
deciding whether to terminate an individual employee ļ¬outs the
Supreme Courtās decision in Ricci v. DeStefano, 557 U.S. 557, 583ā84
(2009). In Ricci, white employees scored higher than minority
employees on the New Haven Fire Departmentās qualiļ¬cation
exam, thus placing them higher in the pecking order for
promotions. Citing group statistics, some minority candidates
threatened to sue the City under a disparate impact theory unless
the City discarded the test results, and some white candidates
threatened to sue under a disparate treatment theory if it did. The
City threw out the test results to avoid the minority candidatesā
disparate impact claim.
Despite the City arguing that it had to discard the test results
to avoid a disparate impact lawsuit, id. at 579, the Supreme Court
held that the City discriminated against high scoring white and
Hispanic candidates. The Court recognized the conļ¬ict between
Title VIIās individual-focused disparate treatment provision and its
group-focused disparate impact provision. The Court resolved the
conļ¬ict in favor of individuals by adopting this rule: ābefore an
employer can engage in intentional discrimination for the asserted
purpose of avoiding or remedying an unintentional disparate
impact, the employer must have a strong basis in evidence to
believe it will be subject to disparate-impact liability if it fails to take
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22-11462 Maze, J., dissenting 9
the race-conscious, discriminatory action.ā Id. at 585. The Court
found that the City faced no possibility of disparate impact liability
if it accepted the exam results because (a) the exams were job-
related and consistent with a business necessity and (b) the City had
not failed to adopt an equally valid, less-discriminatory alternative
test. Id. at 587 (citing 42 U.S.C Ā§ 2000e-2(k)(1)(A), (C)).
Like the City, Meredith oļ¬ers no evidence, much less a
strong basis of evidence, that denying the local stationās request to
ļ¬re Ossmann would have caused minority employees to ļ¬le a
viable disparate impact lawsuit against the application of
Meredithās sexual harassment policy. Id. Nor, I suspect, would
anyone argue that Meredithās sexual harassment policy is not ājob-
relatedā and āconsistent with business necessity.ā Id. So Ricci forbid
Meredith from analyzing how Ossmannās ļ¬ring would impact
racial balance.
2. Meredithās policy of providing race statistics for corporate
HR to review when approving or denying local personnel decisions
also contradicts the EEOCās instruction to keep race-related data
away from decisionmakers:
Ā§ 1602.13 Records as to racial or ethnic identity of
employees
Employers may acquire the information necessary for
completion of items 5 and 6 of Report EEOā1 either
by visual surveys of the work force, or at their option,
by the maintenance of post-employment records as
to the identity of employees where the same is
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10 Maze, J., dissenting 22-11462
permitted by State law. In the latter case, however, the
Commission recommends the maintenance of a
permanent record as to the racial or ethnic identity of
an individual for purpose of completing the report
form only where the employer keeps such records
separately f rom the employeeās basic personnel form or
other records available to those responsible for
personnel decisions, e.g., as part of an automatic data
processing system in the payroll department.
29 C.F.R. Ā§ 1602.13 (emphasis added); see also United States Equal
Employment Opportunity Commission, 2021 EEO-1 Component 1
Data Collection Instruction Booklet, Appendix D (āIf an employee
declines to self-identify their race and/or ethnicity, employment
records or observer identiļ¬cation may be used. Where records are
maintained, it is recommended that they be kept separately from
the employeeās basic personnel ļ¬le or other records available to
those responsible for personnel decisions.ā).
The EEOC seems to believe that the inference of disparate
treatment of individuals is so strong when decisionmakers consider
race that it recommends companies build a wall between those
who collect and report race-related data and those who make
personnel decisions. The evidence suggests that Meredith blew
through that wall.
ā
To sum up, the combination of the EEO Analysis form and
Berenguerās testimony creates a reasonable, logical inference that
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22-11462 Maze, J., dissenting 11
Bock considered race when deciding whether to terminate
Ossmann. That FAQ #10 says that Bock was to use racial data to
determine whether granting the requested personnel change
would impact protected racial groups āat a higher percentage rate
than similarly situated non-protected employeesā supports a
reasonable, logical inference that Bock would have responded
diļ¬erently if Ossmann was the lone black or Hispanic member of
the weather team. That reasonable inference creates a genuine
dispute of material fact that only a jury can resolve. See Fed. R. Civ.
P. 56(a).
II.
The majority oļ¬ers three rebuttals to my reading of the
evidence: (1) the EEO form does not tell Bock how to use the racial
group data; (2) Berenguer testiļ¬ed that the purpose of the racial
group data was to ensure that the station was not ātreating one
person in that situation in the comparable group diļ¬erently than
othersā; and, (3) Ossmann oļ¬ers no evidence that Bock considered
Ossmannās race as a ānegative factor.ā I address each rebuttal in
turn.
A.
The majority says that we cannot reasonably infer that Bock
considered the potential impact on racial group balance when
reviewing Ossmannās ļ¬le because ā[t]he language of the form does
not tell Bock what she should do with the racial data, and it does
not require her to engage in racial balancingāit is completely
neutral.ā Opinion at 20.
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12 Maze, J., dissenting 22-11462
But as I showed in Part I, FAQ #10 told Berenguer to send
data that would help Bock determine whether āa particular
protected category of employeeā would be impacted āat a higher
percentage rate than similarly situated non-protected employees.ā
And the Risk Analysis charts that Berenguer created in response
disclosed the percentage of each racial group so that Bock could
determine the impact on racial group percentages.
This language speaks for itself, and a reasonable juror could
read it to require Bock to conduct a disparate impact review of
racial groups.
B.
To support its ļ¬nding that the EEO form is race neutral, the
majority says that Berenguer testiļ¬ed that āthe purpose of the
[racial] data was to make sure that the station was not ātreating one
person in that situation in the comparable group diļ¬erently than
others.āā Opinion at 20. The majority omits important context.
Hereās the full exchange between counsel and Berenguer, with the
portion the majority quotes in bold:
Q. And you canāt remember from 14 years ago why
you ļ¬ll out that form or the instructions as to
why it says age, race, and sex?
A. I believe Iāve already answered that question,
but, yes, I do remember. So that we can ā or not
we, but that upon review, it can be determined
whether thereās equitable treatment or not.
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22-11462 Maze, J., dissenting 13
Q. Well ā but in your case, the comparables were
not being disciplined; correct?
A. Correct.
Q. So then why in the world would you need age,
race, and sex when youāre not ā when youāre
comparing them to people that were not being
disciplined? Do you have an answer? Well, thatās
ā
A. I donāt actually.
Q. Thatās 20 seconds. Thatās 20 seconds for the
Court ā for the record. Go ahead.
A. Iām not the one who completes the analysis, so I
can speculate that it is making sure that you
arenāt treating one person in that situation in
that comparable group diļ¬erently than
others.
Q. But in the comparables you put in, they werenāt
being treated to anything. How can you
compare and disprove the negative?
Isnāt it true Ms. Berenguer, that this is simply an
improper and illegal form used by Meredith?
A. No, I donāt believe that to be true.
(objections omitted). There are two reasons why Berenguerās
testimony does not show that Bock used race to ensure that
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14 Maze, J., dissenting 22-11462
Ossmann was treated equally compared to others accused of sexual
harassment, as the majority infers, Opinion at 21, rather than to
judge the impact termination would have on racial group balance,
as I infer.
First, when asked why Bock needed to know the race of
persons who had not been disciplined for sexual harassment,
Berenguer sat stumped for 20 seconds before testifying that she did
not know and could only speculate. Having watched Berenguer
struggle to answer before admitting that she did not know, I doubt
the district court would ļ¬nd Berenguerās subsequent speculation
admissible or that a jury would ļ¬nd it credible.
Second, Bock could not perform the disparate treatment
analysis that the majority infers from Berenguerās testimony
because, as the majority acknowledges (Opinion at 9), Berenguer
did not provide Bock with the race of the other persons who had
been accused of sexual harassment. A diļ¬erent question on the
form, FAQ #15, requested the data needed to conduct the race-
neutral, disparate treatment analysis the majority infers:
The majorityās inference that āthe purpose of the [racial group]
data was to make sure that the station was not ātreating one person
in that situation in that comparable group diļ¬erently than others,āā
id. at 20-21, may have been true if Berenguer provided the race data
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22-11462 Maze, J., dissenting 15
necessary to analyze FAQ #15. But again, Berenguer only provided
race data for FAQ #10, and Ossmannās argument stems from that
race-conscious part of the formānot FAQ #15.
Meredithās counsel agreed with this distinction between
disparate treatment review (FAQ #15) and disparate impact review
(FAQ #10) at oral argument. When pressed to explain what
Berenguer meant when she testiļ¬ed that she provided Bock with
the race of ācomparablesā who were not accused of sexual
harassment, counsel conceded that, āwhen [Berenguer] was talking
about comparables, she was not talking about people who had
violated the companyās sexual harassment policy, she was talking
about people within the groupāpeople who worked in the
groupāand whether or not the decision was going to have a
disparate impact on the group.ā
I am not saying that counselās statement is āfactual
evidence.ā Opinion at 20 n.8. The EEO form plus Berenguerās
testimony is the evidence. Iām just pointing out that, against its
interest, Meredith interprets Berenguerās testimony to discuss
disparate impact review, not disparate treatment review. And if
Ossmann, Meredith, and I all view the evidence to show disparate
impact review, a reasonable juror can too.1
1 I did not elicit ānew evidenceā about an attorneyās actions at the panel
stageāthe questioning the en banc court found inappropriate in United States
v. Campbell, 26 F.4th 860, 875-76 & n.12 (11th Cir. 2022) (en banc). See Opinion
at 20 n.8 (citing Campbell). I instead asked counsel to reconcile Berenguerās
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16 Maze, J., dissenting 22-11462
C.
Finally, the majority says that we cannot reasonably infer
that race mattered to Bockās decision because Ossmann oļ¬ers no
evidence that race was a ānegative factor against Ossmann or was
used favorably in evaluating a non-white employee[.]ā Opinion at
23-24. The majorityās search for a ānegative factorā makes it stray
from Ā§ 1981 and the Supreme Courtās decision in Students for Fair
Admissions.
1. Section 1981(a) gives employees āthe same right . . . to
make and enforce contracts,ā as members of another race. 42
U.S.C. Ā§ 1981(a). Section 1981(b) says this right applies to
terminations. If a plaintiļ¬ alleges that the termination of his
contract violated Ā§ 1981, a plaintiļ¬ must show that race was a ābut
forā cause of his termination, using this framework:
If the defendant would have responded the same way
to the plaintiļ¬ even if he had been white, an ordinary
speaker of English would say that the plaintiļ¬
received the āsameā legally protected right as a white
person. Conversely, if the defendant would have
responded diļ¬erently but for the plaintiļ¬ās race, it
follows that the plaintiļ¬ has not received the same
right as a white person.
testimony about ācomparablesā with the EEO form. In other words, I treated
āattorneys as attorneys,ā not āattorneys as witnesses.ā 26 F.4th at 876, n.12.
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22-11462 Maze, J., dissenting 17
Comcast, 140 S. Ct. at 1015. 2 Applying the Comcast standard here,
Ossmann must show that Bock āwould have responded diļ¬erentlyā
if the local station requested the termination of a coworker of a
diļ¬erent race under similar circumstances. Id.; see also Bostock 140
S. Ct. at 1739 (āa but-for test directs us to change one thing at a time
and see if the outcome changes. If it does, we have found a but-for
cause.ā).
That means Ossmann does not have to prove that Bock
considered being white as a ānegative factorā in the literal senseā
i.e., being white added weight to the local stationās termination
requestāas long as Ossmann can show that Bock would have
responded diļ¬erently if the request was to terminate either the
lone black or Hispanic weather team member. For example, if Bock
would have recommended that the lone black or Hispanic member
be suspended rather than terminated to avoid racial imbalance,
then Ossmann did not receive the āsame rightā as his coworkers
under Ā§ 1981; even if Bock did not consider Ossmannās race as a
ānegative factorā when considering his termination.
2. The Supreme Court made this point in Students for Fair
Admissions. In that case, a group of Asian-American students
challenged the admissions policies of Harvard College and the
University of North Carolina because the policies allowed the
colleges to consider applicantsā race. While both colleges admitted
2 Section 1981 prohibits discrimination against all races, including white. See
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295 (1976).
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18 Maze, J., dissenting 22-11462
that they considered race, they argued that āan individualās race is
never a negative factor.ā Students for Fair Admissions, 143 S. Ct. at
2169. Rather, race served as a positive factor for some applicants
from underrepresented groups. Harvard, for example, likened race
to playing a musical instrument: the ability to play was considered
a positive factor for some, but the inability to play was not a
negative factor for others. Id.
The Court said, ā[t]his understanding of the admissions
process is hard to take seriously.ā Id. āA beneļ¬t provided to some
applicants but not to others necessarily advantages the former
group at the expense of the latter.ā Id. In other words, making race
a positive factor for some groups necessarily makes race a negative
factor for other groups. To deny this, as Justice Thomas put it,
āsimply deļ¬es mathematics.ā Id. at 2199 n.9 (Thomas, J.,
concurring).
The Court explained that Harvard was making decisions
that balanced race, as shown by the fact that ā[f ]or the admitted
classes of 2009 to 2018, black students represented a tight band of
10.0%ā11.7% of the admitted pool.ā Id. at 2171. To ensure this
racial balance, Harvardās Admissions Committee would begin each
meeting āwith a discussion of āhow the breakdown of the class
compares to the prior year in terms of racial identities.ā And āif at
some point in the admissions process it appear[ed] that a group
[was] notably underrepresented or ha[d] suļ¬ered a dramatic drop
oļ¬ relative to the prior year, the Admissions Committee may
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22-11462 Maze, J., dissenting 19
decide to give additional attention to applications from students
within that group.ā Id. at 2170 (citation omitted).
In short, Harvardās policy was to consider racial group
balance when considering applications. To keep numbers in the
collegeās desired range, Harvard would treat applications
diļ¬erently because of race. So despite Harvard saying that race was
not considered a ānegative factorā when reviewing an Asian-
Americanās application, in reality, it was.
3. Meredithās EEO form worked the same way. Corporate
required the local station managers to disclose their employeesā
race, including employees not accused of wrongdoing, so that
Bock could consider group balance when deciding whether to
approve the termination request.
So the majority may be right that Bock didnāt consider
Ossmannās race as a ānegative factorā when she opened his ļ¬le and
saw that he was white. But if Bock opened the ļ¬le and instead saw
that the local station was seeking to terminate the lone black or
Hispanic member of the weather team, it is reasonable to infer that
Bock āwould have responded diļ¬erentlyā to the termination
request. Comcast, 140 S. Ct. at 1015. After all, the goal of FAQ #10
was to ensure that the percentage of a āparticular protected group
of employeesā was not negatively impacted compared to
āsimilarly-situated non-protected employees.ā Because this
inference is reasonable and logical, we must make it and give the
case to a juryājust as we did in Smith v. Lockheed Martin.
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20 Maze, J., dissenting 22-11462
III.
This case would be easy if we followed our reasoning in
Lockheed-Martin.
1. Before I explain why, though, I note my agreement with
the majority that the Appellant in Lockheed-Martin, Anthony
Mitten, had more evidence that Ossmann. As the majority lays out,
Opinion at 21-23, Mitten presented three pieces of evidence that
created a convincing mosaic of circumstantial evidence: (1) a ļ¬nal
decisionmaker previously discriminated against white employees,
(2) Lockheed-Martin had motive to ļ¬re white employees thanks to
a recent racially based shooting, and (3) the disciplinary review
committee was given a decision matrix that disclosed the
employeesā alleged misconduct and race. While Ossmannās
documentary proof is stronger than Mittenās (more on that later),
he does not present motive or bad act evidence like Mitten.
Having less evidence than Mitten does not, however, negate the
reasoned, logical inference that Ossmann creates. Think back to
our cookie thief analogy. Imagine thatāin addition to your childās
failure to explain why his hand is in the cookie jarāyou know that
he didnāt eat breakfast (i.e., motive) and that he swiped a cookie last
week (i.e., prior bad acts). Adding those facts would strengthen the
inference that your child reached into the jar to take a cookie. But
removing those facts doesnāt make the original inference that he
was taking a cookie unreasonable or illogical. Likewise, the
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22-11462 Maze, J., dissenting 21
majorityās point that Mitten had more evidence than Ossmann is
true but not determinative.
2. The decisive question is whether evidence that Bock considered
a document that contained Ossmannās race and the race of his
coworkers (including those not accused of wrongdoing) is enough
to create a reasonable inference of discrimination. The Courtās
discussion of the decision matrix in Lockheed-Martin is on-point, so
I quote it in full:
The discipline āmatrix,ā on which Mittenās race was
tracked, strengthens the reasonableness of the
inference that Heiserman sought to ļ¬re all whites
who distributed racist emails and, thus, ļ¬red Mitten
because of his race. The disciplinary review
committee and Heiserman relied on the āmatrixā to
reach their discipline decisions, including Mittenās.
On its face, the āmatrixā indicates that race was
pertinent to the discipline decisions made, and
Lockheed has not explained satisfactorily why this
was legitimate. Therefore, although the district court
entirely ignored this fact, Lockheedās injection of race
into its decision-making process yields an unavoidable
inference that the employeeās race impacted the
discipline determination, and it is a juryās province to
decide whether race actually bore on the decision to
terminate Mitten.
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22 Maze, J., dissenting 22-11462
Lockheed-Martin, 644 F.3d at 1345-46 (footnotes omitted). The
majority correctly notes that the Court started the paragraph by
saying that the matrix āstrengthens the reasonableness of the
inferenceā created by the motive and bad act evidence. Id. at 1345.
But the rest of the paragraph stands alone. Most importantly, the
Court says that (a) the inclusion of race in the matrix, plus (b)
Lockheed-Martinās inability to explain why race was included in the
matrix, āyields an unavoidable inference that the employeeās race
impacted the discipline determination, and it is a juryās province to
decide whether race actually bore on the decision to terminate
Mitten.ā Id. at 1346. In other words, adding race to the
decisionmakerās document created the āunavoidable inference,ā
not the added motive and bad act evidence.
Not only does Ossmann have similar documentary evidence; he
has stronger documentary evidence. Lockheed-Martinās matrix
noted race with one letter. Id. at 1336. Lockheed-Martin did not
have a policy that told decisionmakers how to use race, and the
man who created the matrix testiļ¬ed that he added race āas merely
a decision of personal convenience, intended to aid his putative
future reporting of that information to external authoritiesā and
that āit was understood that Lockheedās principal decision-makers
would āclose one eye to the race entryā when looking at the
āmatrix.āā Id. (brackets omitted).
Meredithās EEO Analysis form, in contrast, tells us that Bock
was to consider Ossmannās race and his coworkersā race to
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22-11462 Maze, J., dissenting 23
determine whether granting the local stationās request would
disparately impact racial group balance. As discussed, the Supreme
Court held in Ricci that disparate impact review of personnel
decisions violates Title VII, absent circumstances not present here.
And the Supreme Court just reaļ¬rmed that ā[o]utright racial
balancing is patently unconstitutional.ā Students for Fair Admissions,
143 S. Ct. at 2172 (quotations omitted).
If Lockheed-Martinās inclusion of race into the decisionmakersā
documents without instructions on how to consider race created
āan unavoidable inference that the employeeās race impacted the
discipline determination,ā Lockheed-Martin, 644 F.3d at 1346, then
Meredithās insertion of race into the EEO Analysis with
instructions to use race for disparate impact review creates the
same unavoidable inference.
IV.
I agree with most of the majorityās opinion. I agree with the
majorityās portrait of Ossmann as an unsympathetic plaintiļ¬ who
likely earned his fate. I agree that the evidence suggests that
Ossmannās station managers wanted to ļ¬re him because he would
not stop harassing women, not because of his race. And if the
decision to ļ¬re Ossmann stopped at the local station, I would join
the majorityās opinion in full.
But the decision to ļ¬re Ossmann did not stop at the local
level; it ended at corporate HR. And corporate wasnāt satisļ¬ed
knowing that Ossmann sexually harassed women; corporate
needed to know Ossmannās race, and everyone elseās race, so that
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24 Maze, J., dissenting 22-11462
corporate could determine whether ļ¬ring Ossmann would
negatively impact racial group balance. Corporateās injection of
race for this purpose creates a reasonable inferenceāor, as the
Court put it in Lockheed-Martin, an unavoidable inferenceāthat
Ossmann did not receive āthe same rightā that coworkers of
another race would have received if Bock opened their ļ¬le instead.
42 U.S.C. Ā§ 1981.
Whether Bock would have reached a diļ¬erent decision if the
races were changed is a genuine issue of material fact that only a
jury can decide. Because the majority will not let the jury decide, I
respectfully dissent.