Makky v. Chertoff, No. 07-3271 (3d Cir. Aug. 7, 2008); Zolotarev v. City and County of San Francisco, No. 06-16665 (9th Cir. Aug. 7, 2008)

By Paul Mollica

After last month’s decision in White v. Baxter Healthcare Corp., No. 07-1626 (6th Cir. July 3, 2008), where the Sixth Circuit broke with the other circuits over the proper analysis of a so-called “mixed-motive” case under 42 U.S.C. § 2000e-2(m), here comes the Third Circuit wading (ankle-deep, at least) into the same issue. And the Ninth Circuit joins the other circuits in holding that an employment discrimination claim accrues upon discovery of the adverse action, rather than when the employee discovers the discriminatory motive.

Makky v. Chertoff, No. 07-3271 (3d Cir. Aug. 7, 2008): The court states its intentions in the opening lines of the opinion — “This appeal requires us to decide, as an issue of first impression, whether a plaintiff’s prima facie case in a mixed motive Title VII employment discrimination action fails if it is irrefutable that plaintiff does not meet a necessary objective qualification for the job.” The answer, as you might well predict, is “yes.”

The fact situation is arresting. The employee, an Egyptian national and U.S. citizen, had outstanding credentials and was widely horned in the pre-9/11 days for his expertise in terrorism:

“Appellant Dr. Wagih Makky emigrated to the United States from Egypt thirty years ago, and became a naturalized citizen of the United States. He also became a prominent researcher and university professor in the field of aviation security, and is considered to be a technical expert in that field. After the bombing of a Pan American Airways airliner over Lockerbie, Scotland, the United States government asked Makky to create a unit within the Federal Aviation Administration (‘FAA’), later subsumed into the Transportation Safety Administration (‘TSA’), for the purpose of developing technology to detect and prevent explosives from being detonated aboard commercial planes and trains. He was one of six founding members of that project with a stated purpose of preventing terrorist attacks on American passenger jets.

Yet after the 9/11 attacks, Dr. Makky fell under suspicion because of his nation of origin and family ties. Mysteriously, though he was a highly regarded figure in anti-terrorist strategy, Dr. Makky lost his security clearance and was eventually place on unpaid suspension without pay:

“In October 2002, while the security clearance renewal was still pending, Makky came under the supervision of Robin Burke when Burke became Deputy Administrator of the Security Lab. According to the complaint, Burke ‘took an unusual interest in Dr. Makky’s national origin.’ App. at 77. Specifically, Burke ‘made it a point’ to meet with Makky one-on-one and inquired into Makky’s ‘background.’ App. at 77. ‘The first and only thing Burke wanted to know about Dr. Makky was his national origin.’ App. at 78. Makky was the only non-supervisory employee with whom Burke met.”

Dr. Makky pursued a “mixed case” (Title VII discrimination and violations of the Civil Service Reform Act of 1978), over which the district court had jurisdiction. Makky argued that “the District Court erred with respect to the Title VII discrimination claim and the Due Process claim under the CSRA. He argues that his suspension without pay in September 2005 violated Title VII because discrimination was a motivating factor in the decision to suspend him without pay rather than to transfer him to another position or continue to suspend him with pay.”

But the Third Circuit affirmed dismissal of Dr. Makky’s complaint. Dr. Makky argued that his case was a mixed-motive case under Title VII and, accordingly, ought not be evaluated under the McDonnell Douglas burden-shifting analysis, as the court below had done. Up to a point, the Third Circuit panel agreed:

“The McDonnell Douglas burden-shifting framework does not apply in a mixed-motive case in the way it does in a pretext case because the issue in a mixed-motive case is not whether discrimination played the dispositive role but merely whether it played ‘a motivating part’ in an employment decision. It is significant that in Desert Palace, the Court omitted any discussion of the McDonnell Douglas framework as a requirement in mixed motive cases.”

But the panel held that at a minimum, the plaintiff had to establish that he was minimally eligible for the position that he lost, and this is where Dr. Makky fell short (because he lost his security clearance, and was thus unqualified for his old job):

“We need not decide the question whether a plaintiff pursuing a mixed-motive theory of discrimination must satisfy each of the elements of the McDonnell-Douglas prima facie case, as that issue is not squarely before us. We limit our consideration to the need for plaintiff to show his or her qualification, and specifically objective qualification, for the job. For example, if the hospital employing a person who has been performing surgery learns that the employee falsified his or her qualifications and never went to medical school, that employee could not establish a prima facie mixed-motive case irrespective of allegations of racial or ethnic discrimination. We hold today that a mixed-motive plaintiff has failed to establish a prima facie case of a Title VII employment discrimination claim if there is unchallenged objective evidence that s/he did not possess the minimal qualifications for the position plaintiff sought to obtain or retain. In this respect at least, requirements under Price Waterhouse do not differ from those of McDonnell Douglas.”

Zolotarev v. City and County of San Francisco, No. 06-16665 (9th Cir. Aug. 7, 2008):  This presents the basic question of when a failure-to-hire claim accrues — when the applicant learns that he didn’t get the job or when he later learns that supposedly less-qualified minority applicants succeeded?  The Ninth Circuit had apparently not yet reached this issue in a published decision.  It analyzed the applicants’ position thusly:

“Plaintiffs frame their argument in terms of the ‘discovery rule,’ which postpones the beginning of the limitations period from the date the plaintiff is actually injured to the date when he discovers (or reasonably should discover) he has been injured. However, this rule is already incorporated into federal accrual law. The real question, as noted above, is what do we mean by ‘injury,’ that is, what must the plaintiffs ‘discover -that there has been an adverse action, or that the employer acted with discriminatory intent in performing that act?” [Citations omitted]

The panel goes with the former, citing to a number of circuits that have already so held:

“We find these opinions persuasive. Moreover, they are consistent with the Supreme Court’s opinion in Ricks, which involved an action under Title VII and Section 1981, and focused on when the plaintiff became aware of the adverse employment decision. Ricks concluded the statute of limitations under both commenced when the adverse decision was communicated to Ricks, even though the consequences of the action were not fully felt at that time.”