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Robin Murphy was hired as the Assistant Swimming Coach for the University of Cincinnati before the 1995-96 academic year. She was fired before the end of the first semester. Murphy claimed that her firing was the result of sex discrimination. The school defended the allegation based, in large part, on the assertion that Murphy was not qualified for the position for which she had just been hired. This raises the question of just what it means to be “qualified” for a position as part of an employee’s prima facie case of discrimination. MURPHY FIRED JUST MONTHS AFTER HIRING Murphy was hired by UC Head Swimming Coach Monty Hopkins, despite the fact that she had no prior coaching experience on the collegiate level. Her main attributes seem to have been that she was female, a former collegiate swimmer and that she and Hopkins had been high school classmates. The order of importance of these attributes was unclear. The coaching relationship seems to have soured almost immediately. Murphy appears to have felt that much of the job was demeaning (cleaning equipment and driving the team bus, for example) and that Hopkins personally demeaned her by belittling her evaluations of swimmers and directing her not to assist swimmers during their workouts. Hopkins, for his part, felt that Murphy constantly challenged his authority, showed a lack of commitment to the job and failed to improve during her tenure. Furthermore, Murphy admittedly violated NCAA recruiting rules by buying a meal for a recruit. Murphy complained to the school’s ombudsman in early November 1995. Her concerns were brought to the Athletic Director’s attention, who placed Murphy on administrative leave while her concerns were investigated. At the meeting where this was all brought to Hopkins’ attention, he asked for permission to fire Murphy for insubordination. Permission was granted and Murphy was fired in short order. TITLE VII CLAIM Murphy sued for sex-based discrimination and retaliation, in violation of Title VII. In UC’s Motion for Summary Judgment, the school took the position that Murphy was not qualified for the position and, therefore, had failed to establish a critical element of the prima facie case. Murphy responded that the fact that she had been hired for the position made it self-evident that she was qualified. The District Court granted summary judgment on this ground, while denying dismissal of the retaliation claim. The jury found in favor of the school and Murphy appealed both the court’s decision on summary judgment and the denial of her Motion for a New Trial. A divided panel of the 6th U.S. Circuit Court of Appeals affirmed the District Court on all grounds in Murphy v. University of Cincinnati, No. 01-3376, 2003 U.S. App. LEXIS 15319 (6th Cir. July 29, 2003). This case highlights how defense counsel can successfully blur the distinction between the prima facie requirement that the employee prove his or her qualification for employment and the employer’s “legitimate non-discriminatory reason” for the employment action. UC argued that Murphy was not qualified for continued employment based upon her insubordinate behavior, which highlighted the litany of sins detailed by Hopkins. As such, Murphy failed to meet her employer’s legitimate expectations. HIRING DOES NOT MEAN QUALIFICATION FOR CONTINUED EMPLOYMENT Murphy responded that she was obviously qualified when she was hired, which precluded UC from claiming that she was unqualified just months later. The court summarized (or, as the dissent claimed “made a caricature of”) this argument: “Murphy would have us hold that once a woman is objectively qualified through proper training, licensure or output requirements, she can never be found unqualified, regardless of her actual performance.” When characterized this way, Murphy’s position was facially absurd and was, of course, rejected. Murphy was, therefore, unable to establish her prima facie case of sex discrimination. The dissent was troubled by the fact that all of Hopkins’ complaints about Murphy were subjective, yet the jury was not given the opportunity to test either their truthfulness or validity as a basis for her termination. In an earlier, unpublished decision, the 6th Circuit found that if “courts applied an analysis based exclusively upon an employer’s subjective evaluation, most plaintiffs in discrimination cases will be barred from pursuing their claims before ever getting to the employer’s conduct.” PROVING THE NEGATIVE As noted, the key element to the case was that UC’s position that Murphy was not qualified made her, in essence “prove the negative.” She was required to prove that she was qualified for a position from which she had been fired. As applied in this case, Murphy’s burden of proof was greater than would have otherwise been required to rebut UC’s “legitimate non-discriminatory reason” for its action. Under the standard applied by the 6th Circuit, Murphy needed to prove her qualifications, rather than just cast legitimate doubt on the school’s explanation for her termination. As demonstrated, any time the employer can have the “battle fought” on the employee’s prima facie case (the enemy’s turf), its chance for success is greatly enhanced. As for Murphy’s retaliation claim, the court considered the jury’s verdict in light of the questions to jury regarding her “good faith” belief that she had been discriminated against. The court concluded that the evidence presented permitted the jury to conclude that Murphy did not have a good faith belief that she was subjected to discrimination at the time of her complaints. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected]

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