§ 2000d-3. (Defs.' Reply Mem. Supp. Summ. J. at 8.) The court agrees. Section 2000d-3 permits actions against discriminatory employment practices only when a primary purpose of the federal funding is to provide employment. As the following analysis demonstrates, Section 80.3(c)(3) does the same even when a primary purpose of the funding is something other than providing employment.
Section 80.3(c)(3) applies when a primary objective of the relevant Federal funds is not to provide employment but racial discrimination in the employment practices of the federally funded program tends to deny individuals the benefits of a program. If these elements have been satisfied, the "foregoing provisions of this paragraph (c)" apply to the employment practices of the entity receiving the federal money, but only "to the extent necessary to assure equality of opportunity to, and nondiscriminatory treatment of, beneficiaries." This incorporates Section 80.3(c)(1), which states that, when a primary objective of the Federal financial assistance is to provide employment, the recipient of federal financial assistance may not subject an individual to racial discrimination in its employment practices.
Therefore, even though Section 80.3(c)(3) appears to be limited to discrimination in the employment practices under a program or activity that receives federal financial assistance whose primary purpose is not to provide employment, the regulation actually incorporates Section 80.3(c)(3)'s nondiscrimination provisions, which apply to programs or activities that receive assistance whose primary objective is to provide employment.
Applying the nondiscrimination prohibition to programs or activities that receive federal financial assistance that are not intended primarily to provide employment is inconsistent with 42 U.S.C. § 2000d-3 because the statute prohibits discriminatory employment practices only when the primary purpose of the federal financial assistance is to provide employment. Given this irreconcilable conflict, the statute must prevail over the regulation. Fowler v. United States Parole Comm'n, 94 F.3d 835, 841 (3d Cir. 1996).
Robb and Roberts, therefore, may challenge Defendants' employment practices only under 42 U.S.C. § 2000d-3 and any regulation consistent with that statute. Because they do not argue that a primary purpose of the federal financial assistance is a purpose other than providing employment, Robb and Roberts cannot state a Title VI claim challenging an employer's employment practices under the facts that they have presented.
2. Whether Robb & Roberts Alleged an "Employment Practice"
Even if 45 C.F.R. § 80.3(c)(3) provides Robb and Roberts with a cause of action, their claim cannot succeed because they have not shown racial discrimination in Defendants' "employment practices," as required by the regulation.
Neither Title VI nor its accompanying regulations define "employment practice." The United States Court of Appeals for the Third Circuit, however, has stated in a slightly different context that the term "must relate to an employment relationship." Nelson v. Upsala College, 51 F.3d 383, 388 (3d Cir. 1995) (Title VII retaliation case). The court interprets this statement as meaning that the practice in question must relate to an employee's discharge, discipline, layoff, promotion, demotion or downgrading of position, denial of tenure, transfer, retaliation, denial of training, compensation, or other similar feature of the employment relationship. See 1 Lex K. Larson, Employment Discrimination § 8.08, at 8-114 to -117 (2d ed. 1996) (listing the types of practices to which the Supreme Court's rules of proof in employment discrimination cases have been applied). The term "employment practice" does not encompass conduct in general that an employee finds objectionable. See Nelson, 51 F.3d at 388.
Robb and Roberts allege that Scott engaged in three categories of discriminatory conduct. The first category relates to Scott's rejection of programs that would have benefitted minority groups.
The second category includes Scott's halting of programs that benefitted the minority community.
The third category involves Scott's failure to fill vacancies in AACO's prison unit.
The court has carefully reviewed the admissible evidence that Robb and Roberts have submitted to the court in support of their motion.
The court finds that almost all of their complaints involve decisions made by Scott concerning AACO's priorities. Robb and Roberts find these decisions objectionable because they believe that they were motivated by Scott's dislike and disrespect for African-Americans and other minorities. There is some evidence supporting this allegation. (See Robb Dep. at 144-49). Scott's decision to reject an initiative or deny funding for a program, however, does not qualify as an "employment practice" because such decisions do not affect an employee's employment relationship with his or her employer.
Further, Robb and Roberts do not allege that Scott's decisions were motivated by a race-based animus toward them. The evidence shows that if Scott was discriminating against anybody on the ground of race, it was the African-American community groups that would have benefitted from the funding that he denied them. Robb and Roberts' theory is that Scott did not have sympathy for minority groups or minority persons suffering with HIV or AIDS. Assuming this to be true, the discrimination in these funding decisions was totally unrelated to Scott's relationship with Robb and Roberts as AACO employees.
Roberts describes one decision that involves an employment practice: Scott's transfer of Roberts' duties and staff members to Kevin F. Green ("Green"), a white supervisor. Roberts, however, does not argue that the mere transfer was discriminatory. He asserts that transferring him without first consulting with him and obtaining his consent was discriminatory because Scott had always consulted and obtained the consent of white managers before he transferred their duties. (Roberts Aff. PP 2-3.) The record does not support this argument because there is no evidence that Scott ever transferred a white manager's duties. Further, Roberts does not allege that Scott had a duty to consult with him or that Scott had no authority to transfer his duties. Therefore, Scott's decision to shift duties and staff members without first notifying Roberts may have been disrespectful to him, but it does not rise to the level of a discriminatory employment practice in the Title VI context.
The main point of Robb and Roberts' deposition testimony is that Scott made several decisions at AACO that derive from his racist attitude toward African-Americans, and that those decisions caused various minority AIDS community groups to receive less funding and training, which caused AIDS sufferers in the minority community to receive less testing and other services. This claim may be cognizable under Title VI, but not in the employment context. The proper parties for such a claim may be the adversely affected community groups or a class of persons who have been harmed by the shifts in funding for which Scott was responsible. Title VI simply does not contemplate the type of claim that Robb and Roberts allege in this case. The court finds that there is no genuine issue of material fact and that Defendants are entitled to judgment as a matter of law on Count III of the Amended Complaint. For these reasons, the court will grant Defendants' motion.
IV. MOTION REGARDING THE MERITS OF CERTAIN PLAINTIFFS' CLAIMS
Defendants argue that they are entitled to summary judgment because Burks, Hodges, Mills, Sewell, Valentine, and Young cannot prevail on their employment discrimination claims and that all Plaintiffs' claims for compensatory damages should be stricken because they have neither produced their medical records nor executed authorizations for the release of their medical records. Plaintiffs respond that the court must deny the motion with regard to the six Plaintiffs' claims because there are genuine issues of material fact. They also state that they have complied with the relevant court orders concerning the production of medical records and authorizations for the release of medical records.
2. The Framework for Adjudicating Plaintiffs' Employment Discrimination Claims
The United States Supreme Court has recognized two approaches to adjudicating employment discrimination cases, depending on whether the plaintiff has direct evidence of discrimination. If there is no direct evidence, the court must apply the burden-shifting process set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). When the plaintiff offers direct evidence of discrimination, the McDonnell Douglas approach does not apply and the case proceeds as an ordinary civil suit. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 83 L. Ed. 2d 523, 105 S. Ct. 613 (1985); Torre v. Casio, Inc., 42 F.3d 825, 829 n.3 (3d Cir. 1994).
Plaintiffs argue that they have submitted direct evidence of discrimination. To satisfy this burden, they must prove that there is evidence to prove the existence of the discrimination "without inference or presumption." Torre, 42 F.3d at 829 (quotation omitted). This burden is not satisfied when the trier of fact must infer the unlawful discrimination from an employer's remarks. Id.
In the present case, the court must examine the evidence to determine whether it directly proves the existence of employment discrimination. Plaintiffs offer the deposition testimony of David R. Fair ("Fair"), a former City Health Department official who has known Scott for eleven years. (Fair Dep. 5/6/96 at 284-85.) He testified that he has spoken many times with Scott publicly and privately about AIDS issues when Scott was at AACO and before then, when Scott was an activist involved in HIV and AIDS causes in Philadelphia. Fair testified that he has never heard Scott personally call somebody a name, but he believes that Scott generally has not been careful about making disparaging comments "that have a racial tinge to them." Id. at 69. Fair also testified that Scott disrespects African-Americans and Latinos because he believes they are not as smart as white people, id. at 284, and that he treats African-Americans as if they were Amos and Andy, (Fair Dep. 5/22/96 at 413-14).
Fair had spoken to Scott about AIDS-related issues while Scott was the AACO director. Fair testified that whenever Scott could blame an AACO-related problem on an African-American, he would do so. Id. at 69-70. According to Fair, Scott views his nonwhite employees as buffoons and does not respect them as competent people. (Fair Dep. 5/22/96 at 414.) Fair said that Scott would talk about how to get rid of African-American AACO staff members so he could get people who knew what they were doing. (Fair Dep. 5/6/96 at 285.) In particular, Scott talked to Fair about getting Robb away from responsible positions. Id. at 286.
Fair also knows Scott from various community group administrative meetings. Id. at 298. In this context, Fair testified, Scott frequently said that all minority-led organizations are not smart enough to handle certain work. Id. at 317-19. Whenever race was an issue at such meetings, Fair stated, Scott would make a comment that was at least perceived of as pejorative or condescending. Id. at 298.
Robb testified that Scott has referred to the Minority AIDS Coalition as "those people who are incompetent." (Robb Dep. at 144). Robb heard Scott say that the owner of a West Philadelphia radio station that broadcasts AIDS information to the minority community was "trying to work voodoo on him." Id. at 145. Robb also heard Scott say that Burks and another African-American AACO staff member "were incompetent and did not know how to write." Id. In a separate episode, Roberts testified, Scott called an African-American "a stupid, stupid man." (Roberts Dep. at 148.)
The above evidence describes Scott's attitude in general toward African-Americans and others of minority races. It is, however, circumstantial evidence that Scott discriminated against Plaintiffs in the terms and conditions of their employment relationship. It is not direct evidence of employment discrimination. See Thurston, 469 U.S. at 121 (finding that there was direct evidence of discrimination because the defendant had adopted a transfer policy that was "discriminatory on its face). Thus, Plaintiffs may use Scott's remarks to argue that a jury may infer that race was a motivating factor in Scott's employment decisions concerning Plaintiffs. The court finds that this is not a "direct evidence" case and will apply the burden-shifting McDonnell Douglas framework to all the employment discrimination claims in this civil action.
Under McDonnell Douglas, the plaintiff bears the initial burden of stating a prima facie case of racial discrimination. A prima facie case setting forth an employer's failure to hire or promote on the basis of race discrimination comprises four elements:
(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
McDonnell Douglas, 411 U.S. at 802 (footnote omitted). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id.
If the defendant carries its burden and introduces into evidence a legitimate reason for its actions, the prima facie case is rebutted and the burden of production returns to the plaintiff, who then must prove by a preponderance of the evidence that the employer's explanation is a pretext for discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255-56, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). A plaintiff proves that the explanation is a pretext if he or she shows "both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). The Court has emphasized that the plaintiff, at all times, has the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff. Burdine, 450 U.S. at 253.
The Third Circuit has applied the McDonnell Douglas framework to the context of a motion for summary judgment. It has held that a plaintiff who has made a prima facie case may defeat a summary judgment motion either by pointing to some evidence from which a factfinder could either (1) disbelieve the defendant's proffered reasons or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the adverse employment action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). These showings may be made by direct or circumstantial evidence. Id. Thus, if the plaintiff has offered evidence to discredit the defendant's proffered reasons, it need not advance additional evidence of discrimination beyond his or her prima facie case to defeat a summary judgment motion. Id. More specifically,
to avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered nondiscriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext).