Herron et al v. Chisolm
Filing
23
ORDER denying 13 Motion to Compel. Signed by Magistrate Judge G. R. Smith on 10/3/2012. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
CHARRAE HERRON, JAN CLAYTON,)
and TAMARA JACKSON,
)
Plaintiffs,
)
Case No. CV412-041
V.
)
LARRY CHISOLM, individually
and in his Official Capacity as the
District Attorney for Chatham
County, Georgia,
)
)
)
)
)
Defendants.
ORDER
Three female employment-discrimination plaintiffs' move the
Court to compel the defendant, Chatham County, Georgia's District
Attorney, to answer their discovery questions. Doc. 13. After he was
elected to that position, Larry Chisolm reorganized and hired new
members of his office's staff based on merit, he says. The plaintiffs say
that when they applied for an investigator position he discriminated
1 The plaintiffs brought this case under Title VII, 42 U.S.C. § 2000e-2(a). "Title VII
explicitly prohibits discrimination against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)." Reeves
v. DSI Sec. Services, 331 F. App'x 659, 662 (11th Cir. 2009); see also Hunter v. United
Parcel Service, Inc., - F.3d ., 2012 WL 4052403 at * 3 (8th Cir. Sep. 17, 2012).
against them based on their female gender, thus violating Title Vu.2
Doc. 1. They served him with discovery aimed at uncovering
circumstantial evidence to prove that discrimination. Doc. 13.
Specifically, they want Chisoim to admit that he is sexually
attracted to men and thus hired a man he fancied for the investigator
position they sought. Id. They allege that he interviewed no one else for
the job and thus categorically excluded (hence, unlawfully discriminated
against) women -- including them. Id. Because one cannot sue for
employment discrimination based on sexual orientation, Chisolm insists
that questions about his sexual orientation are plainly irrelevant. Hence,
he objects. Doc. 14 at 3-4.
Neither side has cited a case on point. Nor has the Court located
one. But principles from reasonably analogous cases guide the result
here. The logic behind those principles is best seen by first delving
2
As another court explains:
To establish a prima facie case of gender discrimination in a failure-to-hire case,
the plaintiff must show: (1) he is a member of a protected class, (2) he was
qualified for a position and applied for it, (3) he was not considered for the
position despite his qualifications, and (4) equally or less qualified individuals
outside of his protected class were considered or hired for the position.
Underwood v. Perry County Comm'n, 431 F.3d 788, 794 (11th Cir. 2005).
Pasko v. Town of Davie, 2012 WL 1831810 at * 2 (S.D. Fla. May 17, 2012); see also
Hunter, 2012 WL 4052403 at ' 3.
2
further into the alleged facts.
I. BACKGROUND
This is actually the second of two related
employment-discrimination cases against Chisolm before this Court.
The first was filed by Jonathan Drummond, who sued Chisoim under,
inter alia, Title VII. Drummond v. Chisoim, CV411-194, doc. 1 (S.D. Ga.
Aug. 5, 2011). Drummond alleged that Chisolm hired him for the
position of criminal investigator after interviewing no one else for the job.4
Id., doe. 1 at 4 TT 17-18. Chisolm wanted him for the job, Drummond
claimed, "because he is male and Larry Chisoim is sexually attracted to
males." Id. ¶ 20.
Drummond claimed Chisoim retaliated against him after he spurned
Chisoim's overtures. He alleged facts about another male investigator
who resided with Chisolm and who shared a hotel room with him on a
business trip. On that occasion, Chisolm allegedly beckoned Drummond
In an unrelated action, Robbins v. Chatham County, CV410-045, doe. 1 (S.D. Ga.
Feb. 19, 2010), a jury found that Chisoim had retaliated against a female employee
who had served under his predecessor and was basically phased out by Chisoim. Id.,
does. 70 & 73. She had also sued him under, inter alia, Title VII, id. doe. 1, but the
district judge dismissed all but her retaliation claims ahead of the verdict.
For the purpose of this Order, Drummond's factual allegations, on which the
plaintiffs here in no small part rely, are taken as true.
3
to share the room with them. Id. ¶T 23, 25, 30. Drummond's case was
dismissed on abandonment grounds.5
The instant plaintiffs allege that even though they were more
qualified than Drummond, Chisoim hired him because he found him
sexually attractive, and thus discriminated against them because of their
sex. Chisolm, they emphasize, did not interview anyone else for the job.
Plus he had already hired another male for another investigator job, and
had done so for the same, sexual-attraction reason. CV412-041 doc. 1 TT
10, 22-34; 12 at 2; doe. 13 at 5; doe. 14 at 1-2.
Plaintiffs emphasize those facts in justifying their discovery
requests, which ask Chisoim to admit that: (a) the other male investigator
referenced by Drummond is Chris Brown; (b) Brown resided with Chisolm
during his employment with Chisoim's office; (c) Chisolm is attracted to
men; and (d) Chisolm has made sexual advances to other men.' Doe. 13
The same lawyer who represents the plaintiffs here represented Drummond, but
she withdrew mid-stream. Doc. 18. Drummond continued pro se but failed to keep
his address current with the Court, so his case was dismissed. Docs. 29, 33 & 34.
6
They thus want Chisoim to answer their Request to Admit No. 4 ("Admit that
Defendant is attracted to men"); Request to Admit No. 5 ("Admit that Defendant has
made sexual advances to other men"); and Request to Admit No. 7 ("Admit that Chris
Brown resided with Larry Chisoim during Mr. Brown's employment with the District
Attorney's office"). They also want him to produce, pursuant to their document
request # 6, the application and resume of Chris Brown. Doc. 13-1.
4
at 1-2; doe. 13-1 at 2-3. Chisolm insists that information is irrelevant
"because sexual orientation is not a permissible basis for liability under
Title VII, and is therefore! not subject to discovery." Doc. 14 at 4.
II. ANALYSIS
While Chisolm is correct in his assertion that Title VII provides no
protection for discrimination based on sexual orientation,' plaintiffs are
not claiming that protection. Instead, they are claiming that Chisolm
categorically excluded an entire gender class for consideration of a job
because that class did not fit Chisolm's sexual preference. They also
remind that the "reasonably calculated" discovery standard is
broad-ranging. $ Doc. 13.
The discoverability of sexual orientation has long been relevant in
' Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001)
("Title VII does not prohibit discrimination based on sexual orientation"); Jantz v.
Emblem Health, 2012 WL 370297 at * 7 (S.D.N.Y. Feb. 6, 2012); 125 Am. JuR. TRIALS
247 § 16.
8 Parties may discover "any nonprivileged matter that is relevant to any party's
claim or defense," Fed. R. Civ. P. 26(b)(1), which means facts relevant to the litigation.
Siddiq v. Saudi Arabian Airlines Corp., 2011 WL 6936485 at * 2 (M.D. Fla. Dec. 7,
2011). Proponents must show relevance. Zorn v. Principal Life Ins. Co., 2010 WL
3282982 at *2 (S.D. Ga. Aug. 8, 2010). The information need not be admissible at
trial, only "reasonably calculated to lead to the discovery of admissible evidence." Id.
And the relevancy standard for discovery is not the same as for at-trial evidence. It is
more liberal, though not a fishing license. Ariel Preferred Retail Group, LLC. v.
CWCapital Asset Management, 2012 WL 1620506 at * 3 (E.D. Mo. May 9, 2012).
5
Title VII cases. Such information can be used to prove, for example, the
invidious discriminatory intent of same-sex defendants in
sexual-harassment based, !Title VII cases. Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998) (an inference of discrimination "would
be available to a plaintiff alleging same-sex harassment, if there was
credible evidence that the harasser was homosexual."); Smith v. Cafe
Asia, 256 F.R.D. 247, 252 (D.D.C. 2009), cited in DISCOVERY PROCEEDINGS
IN FEDERAL COURT §
24:4 (2012).
But what if, at bottom, plaintiffs advance no claim? That obviously
would moot their discovery quest. That is the case here. At its core
plaintiffs have advanced a sexual-favoritism, not an orientation case.
They allege that Chisolm preferred Drummond (less qualified than
plaintiffs) over them because he sexually favored him. Their words:
32. Defendant Larry Chisolm is a gay male who sought to fill the
position with a man to whom he was attracted without any regard
for his lack of qualifications.
39. Defendant hired Drummond because he is a male and because
he was sexually attracted to Drummond.
40. Defendant did not interview the Plaintiffs because they were
women and he was not physically attracted to them even though
6
they were extremely well qualified for the position to which they
applied. See 42 U.S.C. § 2000e-2.
Doe. 1 (plaintiff's Complaint) at 5-6.
These core allegations are pivotal. Even if this Court compelled
Chisoim to answer plaintiffs' discovery, and even his answers helped
prove those allegations to be true -- indeed, even if those allegations are
true -- nevertheless they state a sexual-favoritism claim that fails as a
matter of law, DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 308
(2d Cir. 1986), so their discovery is moot. Chudasama v. Mazda Motor
Corp., 123 F.3d 1353, 1368 (11th Cir.1997); Smith v. United States, 877
F.2d 40 1 41 (11th Cir. 1989) (widow of a space shuttle astronaut killed in
Challenger explosion was not entitled to discovery against the United
States because her negligence action was barred as a matter of law).
In DeCintio, seven male physical therapists brought a Title VII sex
discrimination and Equal Pay Act claim against their employer, a
hospital. They alleged that the hospital's program administrator
gratuitously added an extra job requirement for the position they sought
so that the administrator 'could then hire a female with whom he had a
consensual, romantic relationship. DeCintio, 807 F.2d at 305.
7
The DeCintio plaintiffs failed to state a Title VII sex discrimination
claim. They were not prejudiced because they were males, but because
the decision-maker preferred his lover. Hence, the administrator's
sexual favoritism cost men and women alike. Id. at 308. He was an
equal-opportunity discriminator. Title VII does not prohibit that; it only
interdicts discrimination against one sex that benefits another. That is
why the "proscribed differentiation under Title VII ... must be a
distinction based on a person's sex, not on his or her sexual affiliations."
Id. at 306-07.
The DeCintio plaintiffs thus failed to show a distinction based on
sex. And they supplied "no justification for defining `sex,' for Title VII
purposes, so broadly as to include an ongoing, voluntary, romantic
engagement." Id. at 307. That would only expand Title VII to "include
`sexual liasons' and `sexual attractions." Id. at 306. Title VII simply
does not reach that far, and neither does the Equal Pay Act. Id. at
307-08. The Fourth Circuit concurs. Mundy v. Palmetto Ford, 998 F.2d
1010, 1993 WL 280340 at * 2 (4th Cir. 1993) ("Like the Second Circuit, we
can adduce no justification for defining `sex' for Title VII purposes, so
8
broadly as to include an ongoing, voluntary, romantic engagement.")
(quotes and alteration omitted).'
Similarly, here, the female plaintiffs were affected in the same
adverse manner as men not found sexually attractive by Chisolm. 10 At
most Chisolm hired Drummond because -- according to plaintiffs' own
allegations -- he sexually, favored him. For that matter, the alleged
"favoritism facts" here are even less aggravated than in DeCintio:
Compare cases bearing more direct, quid pro quo facts. Piech v. Arthur Andersen
& Co., S.C., 841 F. Supp. 825, 828 (N.D. Ill. 1984) (former female employee's
allegations that it was generally necessary for women to grant sexual favors to
employer's decision makers for professional advancement, and that she was not
extended certain employment: benefits including promotion because, unlike favored
coemployee, she did not grant sexual favors, stated cause of action for quid pro quo
sexual harassment); Toscano, V. Nimmo, 570 F.Supp. 1197, 1199 (D. Del. 1983)
(upholding female plaintiffs Title VII claim where she "offered proof in the form of
evidence of the circumstances of [supervisor's] sexual affair with the applicant he in
fact selected for the position[;]" held, "granting sexual favors was a condition to
receiving the position [was] an employment practice which discriminated against
[plaintiff] on the basis of sex.").
DeCinto distinguished Toscano by noting that the claim there "was premised on the
coercive nature of the employer's acts rather than the facts of the relationship itself."
DeCinto, 807 F.2d at 307. "The Title VII action at issue in Toscano, therefore, was
the substantial equivalent of a 'sexual harassment' suit." Id.; see also Paramours,
Promotions, And Sexual Favoritism: Unfair, But Is There Liability?, 25 PEPP. L. REV.
819, 868 (1998); see also The Dubious Title VII Cause of Action for Sexual Favoritism,
51 WASH. & LEE L. REV. 547, 549 & n. 7 (1994).
10
The Court reiterates that there is no evidence Chisolm is sexually attracted to
men. The Court is simply accepting plaintiffs' allegations as true for the purpose of
ruling on their motion.
9
Drummond says he spurned Chisolm's advances, while in DeCintio the
preferred candidate slept with her boss.
DeCintio, for that matter, is not an isolated case. An encyclopedist,
exploring a range of cases touching on this area, explains that:
Title VII does not prohibit isolated instances of preferential
treatment based on consensual romantic relationships, since both
other women and men are disadvantaged in that situation, so no sex
discrimination exists. For example, an employer, who promoted a
woman with whom he had a romantic relationship, did not violate
Title VII's sex discrimination ban with respect to male applicants.
The men were not prejudiced because of their status as males, but
were in the same position as all other applicants for the promotion,
including other female applicants. For the same reason, an employer
who promoted a woman with whom a manager was having a sexual
relationship did not discriminate on the basis of gender in failing to
promote a more qualified female employee. Moreover, a supervisor's
romantic relationship with a subordinate does not amount to sexual
harassment of the subordinate without evidence that favorable
treatment is conditioned on continuation of the affair. Likewise,
Title VII did not prohibit discrimination based on preferential
treatment because of a sexual affiliation.
2 EMP. DISCRIM. COORD. ANALYSIS OF FEDERAL LAW § 48:20 (Sep. 2012)
(footnotes omitted); Ahern v. Omnicare ESC LLC, 2009 WL 2591320 at *
5 (E.D.N.C. Aug. 19, 2009); Kelly v. Howard I. Shapiro & Associates
Consulting Engineers, P.C., 2012 WL 3241402 at *11 (E.D.N.Y.)
(collecting cases).
10
It may be tempting to try and distinguish this case by noting
Drummond's allegation that he spurned Chisoim, so there was no
consensual sexual relationship here. But plaintiffs did not base their
case on that; they based it on Chisoim's mere sexual attraction to
Drummond (in the obvious hope of one day having a sexual relationship
with Drummond). Indeed their own discovery requests seek to develop
information on Chris Brown, for example, to corroborate such sexual
favoritism.
Hence, they tied themselves to a sexual-favoritism claim, which is
simply not actionable. And the rule that emerges from the case law is
this: If an employer hires based on his mere sexual attraction to
candidates, then unless he has created what is not alleged here -- a quid
pro quo dynamic, see note 9 supra -- it simply does not matter if a job
candidate embraces or spurns his sexual favoritism. Either way, the
employer has discriminated against male and female job applicants
equally, which means no gender discrimination and thus no Title VII
violation has occurred.
Accordingly, the, Court DENIES plaintiffs' motion to compel. Doe.
11
13.
SO ORDERED this
day of October, 2012.
USAGISTRATE JUDGE
SOUT4ERN DISTRICT OF GEORGIA
12
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