FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 21, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH] 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________________

No. 04-14775

Non-Argument Calendar

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D. C. Docket No. 03-22226-CV-JLK

LAZETTE HORNE,

Plaintiff-Appellant,

versus

TURNER CONSTRUCTION COMPANY,

a foreign corporation,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 21, 2005)

Before ANDERSON, BLACK and KRAVITCH, Circuit Judges.

PER CURIAM:
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Plaintiff-Appellant Lazette Horne appeals the district court’s grant of summary

judgment in favor of Defendant-Appellee Turner Construction Company (“Turner”)

on Horne’s gender discrimination claims under Title VII of the Civil Rights Act of

1964 and the Florida Civil Rights Act. Because we find that the district court

improperly discredited both direct evidence of discrimination and circumstantial

evidence of pretext, we vacate the district court’s ruling and remand this case for

further proceedings.

I. Facts

On Turner’s motion for summary judgment the facts presented, based on

deposition testimony, were as follows. Turner hired Horne as a “laborer”—an

unskilled job—on a construction site at the University of Miami. Turner’s employees

claimed that Horne’s responsibility was to do whatever she was asked, which

primarily entailed cleaning up around the job site. Horne asserts that she was also

asked to perform other tasks, such as using some construction equipment, digging

ditches, constructing doors and fixing pipe. Horne’s supervisor for most of her

tenure, George Cheek, and another supervisor, Angel Cisneros, agreed that Horne did

some construction work but testified that she was hired primarily to do clean-up

work. Cheek said that this was partly because women were not strong enough for

some construction work and did a better job at clean-up than men. A fellow
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employee at the site, DannyLazo, testified that Horne’s performance was just as good

as any of the men on the site, and that she did many other tasks besides cleaning.

Lazo admitted, however, that Horne was never put to especially strenuous tasks and

had no carpentry skills.

About seven months after Horne was hired Eric Valderrama was transferred to

the project as its supervisor, replacing Cheek. Horne’s sister, Collette Edwards, who

had worked at another Turner construction site under Valderrama, testified that she

had heard Valderrama saying that women could not dig or move things as quickly as

men, and that he preferred to limit women’s work to cleaning. Both Horne and

another employee at the University of Miami construction site, Lola Daniels, testified

that Cheek warned them to stay out of Valderrama’s way because Valderrama did not

like women.

On coming to the University of Miami site, Valderrama brought with him two

skilled carpenters, Gonzalez and Ferrado, who wore tool belts and were familiar with

the use of construction equipment. Ferrado was a skilled carpenter, while Gonzalez

was a laborer who had some carpentry skills. After Valderrama had been at the site

for about three weeks, he terminated Horne, telling her that her position had been

eliminated so that he could hire more workers skilled in carpentry. Both Cheek and

Valderrama testified that it wasindustry customfor supervisorsto bring workers with
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them to a new job site, and that this sometimes led to the termination of workers who

were already employed there.

Horne filed a charge with the EEOC, which investigated her case and

subseqently issued a letter determining that there was reasonable cause to believe that

gender discrimimation had occurred. After attempts to reconcile the parties, the

EEOC issued a right to sue letter. Horne then filed a timely complaint alleging

violation of her rights under Title VII of the Civil Rights Act of 1964 and the Florida

Civil Rights Act. After depositions were taken of all the witnesses discussed above,

Turner moved for summary judgment.

Turner’s summary judgment motion alleged, inter alia, (1) that there was no

direct evidence of discrimination because any statements proffered by former

employees were inadmissible hearsay, irrelevant, made without personal knowledge,

and were taken out of context and (2) that Horne could not establish circumstantial

evidence of discrimination because she could not produce evidence that Turner’s

legitimate, nondiscriminatory reasons for firing Horne—industry custom and the need

for skilled workers on the site—were a pretext for discrimination. Turner also moved

to exclude Edwards’ and Daniels’ deposition testimony about Valderrama’s

comments as inadmissible hearsay, irrelevant, and made without personal knowledge.
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The district court granted both summary judgment and the motion to exclude

Edwards’ and Daniels’ testimony.

Horne then moved for reconsideration, asserting that the court had failed to

consider the EEOC’s conclusion that there was evidence of discrimination, and

attaching an affidavit in which Daniels stated that Cheek had warned Daniels that

Valderrama would fire Horne because he did not want women on the site. The

district court denied the motion for reconsideration, and struck the affidavit on

Turner’s motion. Horne then timely filed the instant appeal.

II. Analysis

We review the district court’s grant of summary judgment de novo, viewing the

evidence in the light most favorable to the party opposing the motion. Wilson v. B/E

Aerospace, 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is appropriate

if the record shows that there is no genuine issue of material fact and that the moving

party is therefore entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis

of gender. 42 U.S.C. § 2000e; McDonnell Douglas Corp. v. Green, 411 U.S. 792,

800 (1973). As Horne’s complaint also alleges a claim under the Florida Civil Rights

Act, we note that such claims are analyzed in the same manner as Title VII claims.

Bass v. Bd. of County Comm’ers, 256 F.3d 1095, 1105 (11th Cir. 2001). A plaintiff
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may prove discrimination in two ways: through direct evidence, or through

circumstantial evidence that creates an inference of discrimination. Bass, 256 F.3d

at 1105.

A. Direct Evidence

Direct evidence of discrimination is “evidence which, if believed, would prove

the existence of a fact [in issue] without inference or presumption.” Earley v.

Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (citation and emphasis

omitted). To constitute direct evidence of discrimination, a statement of

discriminatory intent “must be made by a person involved in the challenged

decision.” Trotter v. Bd. of Trustees, 91 F.3d 1449, 1453-54 (11th Cir. 1996). In a

case where the plaintiff proffers direct evidence of discrimination, “the trial judge

must initially make a credibility finding as to whether or not plaintiff’s proffered

direct evidence of discrimination is to be believed.” Haynes v. W.C. Caye & Co., 52

F.3d 928, 931 (11th Cir. 1995) (citation omitted).

We have found direct evidence where “actions or statements of an employer

reflect[] a discriminatory or retaliatory attitude correlating to the discrimination or

retaliation complained of by the employee.” Caban-Wheeler, 904 F.2d at 1555. In

gender discrimination cases, we have held all of the following statements to be direct

evidence: “a woman was not competent enough to do this job,” Haynes, 52 F.3d at
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930; “no woman would be named to a B scheduled job,” Burns v. Gadsden State

Community College, 908 F.2d 1512, 1518 (11th Cir. 1990); “we can’t have women

in management,” Sennello v. Reserve Life Ins. Co., 872 F.2d 393, 394, 395 (11th Cir.

1989).

In the case at bar, Horne and Daniels both testified that Cheek, an employee of

Turner, told them that Valderrama had said he disliked women on the job site, and

that Valderrama would fire Horne because she is a woman. Although credibility

determinations are normally left to the factfinder, our precedent explaining the

meaning of direct evidence in the discrimination context requires the conclusion that

the district court erred. The plaintiff’s proffered evidence of Cheek’s statements is

sufficient to establish direct evidence of discrimination and therefore to withstand a

motion for summary judgment.

The EEOC’s finding that there was reasonable cause to believe that

discrimination occurred bolsters our conclusion. We previously have held that such

an EEOC finding is admissible evidence in a bench trial, and the district court should

have taken it into consideration in this summary judgment proceeding as well.

Barfield v. Orange County, 911 F.2d 644, 650 (11th Cir. 1990). The district court

erred in failing to do so.
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Furthermore, Turner’s claim that the statements upon which Horne relies are

inadmissible hearsay fails. Although Valderrama’sstatementsto Cheek and Cheek’s

subsequent statements to Horne and Daniels appear to fall within the definition of

hearsay as “a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted,” Fed. R.

Evid. 801(c), both levels of statements fall within the hearsay exclusion for

statements made “by [a] party’s agent orservant concerning a matter within the scope

of the agency or employment, made during the existence of the relationship,” which

are deemed admissions by a party opponent. Fed. R. Evid. 801(d)(2)(D). On this

basis, we have held previously that statements made by a supervisor who has a role

in the decision-making process are generally admissible. See, e.g., Miles v. M.N.C.

Corp., 750 F.2d 867, 873-75 (11th Cir. 1985). Both Cheek and Valderrama were

superintendents with authority to hire and fire employees on the construction site, and

their statements were therefore made within the scope of their authority.

B. Circumstantial Evidence

Courts use a burden-shifting analysis to evaluate discrimination claims based

on circumstantial evidence,first described in McDonnell Douglas, 411 U.S. 792. The

plaintiff must first establish a prima facie case of discrimination, which Turner

concedes that Horne did for purposes of this appeal. The burden of production then
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shifts to the employer to show a legitimate, non-discriminatory reason for the

employer’s actions. McDonnell Douglas, 411 U.S. at 802-04, 807. If the employer

does so, the final burden of proof then rests with the plaintiff, who must then show

that the employer’s reason was a mere pretext for discrimination. Id. If the plaintiff

fails to offer sufficient evidence of pretext, the employer is entitled to summary

judgment in its favor. Chapman v. AI Transport, 229 F.3d 1012, 1025 n.11 (11th Cir.

2000) (en banc). The court must evaluate whether the plaintiff demonstrated “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its actions that a reasonable factfinder

could find them unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d

1519, 1528 (11th Cir. 1997).

In the present case, Horne, Daniels, and Lazo testified that Horne’s duties on

the job site consisted of more than just cleaning. Lazo stated that Horne had worked

with him, that she did her job as well as any of the men on the site, and that she had

assisted him with putting up fencing, digging holes, spreading soil, raking, fixing

pipes, constructing doors, mixing cement, and using a drill. On the other hand,

Valderrama testified that Horne lacked the qualifications to do the work he needed

of a laborer, and brought in a laborer with some carpentry skills from another site to

replace her. Several other Turner employees expressed their personal opinions that
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women had a limited role on a construction site, and that they would not ask women

to do certain tasks. A number of witnesses testified that Valderrama had made

statements questioning women’s abilities. Furthermore, Turner employees Cisneros,

Lazo, and Cheek all testified that women should not do strenuous work and that

women are better suited for cleaning work. Evidence of their attitudes is probative

of pretext, though it cannot serve as direct evidence. The discrepancy between the

testimony of Horne, Daniels, and Lazo and that of Valderrama as to Horne’s

qualifications creates a genuine issue of material fact sufficient to preclude summary

judgment in light of the other evidence of possible pretext.

We note that “nepotism” is permitted under Title VIII. See Platner v. Cash &

Thomas Contractors, Inc., 908 F.2d 902, 905 (11th Cir. 1990). In the present case,

however, Valderrama testified that he would not have replaced an employee with a

worker from another site if the employee was qualified and able to do the work

required. This cuts against Turner’s argument that it was industry custom to bring

employees from a superintendent’s previous job site.

For the foregoing reasons, we VACATE the district court’s ruling and

REMAND for further proceedings consistent with this opinion.