assignment 1 HR

Assignment 1 – case studies

Nino v. The Jewelry Exchange

609 F.3d 191 (3d Cir. 2010)

OPINION BY CIRCUIT JUDGE FUENTES:

Rajae Nino brought this action against his former employer, alleging that he was discriminated against on account of his gender and national origin.… [T]he employer invoked an arbitration provision in Nino’s employment contract and moved the District Court to compel the parties to arbitrate their dispute. Nino opposed the motion, arguing that the arbitration agreement was unconscionable and, therefore, unenforceable.… The District Court concluded that although the arbitration agreement contained unconscionable terms, those provisions could be severed from the contract and the remainder of its terms could be enforced. * * *

In our view, the pervasively one-sided nature of the arbitration agreement’s terms demonstrates that the employer did not seek to use arbitration as a legitimate means for dispute resolution. Instead, the employer created a system that was designed to give it an unfair advantage through rules that impermissibly restricted employees’ access to arbitration and that gave the employer an undue influence over the selection of the arbitrator. We hold that it is not appropriate, in the face of such pervasive one-sidedness, to sever the unconscionable provisions from the remainder of the arbitration agreement. * * * We will thus reverse the District Court’s order compelling the parties to arbitrate.

* * * We have repeatedly recognized that the Federal Arbitration Act (“FAA”) establishes a “strong federal policy in favor of the resolution of disputes through arbitration.” Under the FAA, arbitration agreements “are enforceable to the same extent as other contracts.” “A party to a valid and enforceable arbitration agreement is entitled to a stay of federal court proceedings pending arbitration as well as an order compelling such arbitration.”

* * * Under Virgin Islands law, “[t]he doctrine of unconscionability involves both ‘procedural’ and ‘substantive’ elements.” The procedural component of the unconscionability inquiry looks to the “process by which an agreement is reached and the form of an agreement, including the use therein of fine print and convoluted or unclear language.” We have consistently found that adhesion contracts—that is, contracts prepared by the party with greater bargaining power and presented to the other party “for signature on a take-it-or-leave-it basis”—satisfy the procedural element of the unconscionability analysis. “A contract, however, is ‘not unconscionable merely because the parties to it are unequal in bargaining position.’” Instead, a party challenging a contract on unconscionability grounds must also show that the contract is substantively unconscionable by demonstrating that the contract contains “terms unreasonably favorable to the stronger party.” * * *

Looking first to the question of procedural unconscionability, we agree with the District Court that Nino had no opportunity to negotiate with DI [Diamonds International—the name under which the Jewelry Exchange does business] over the contract’s terms, that DI was the stronger contractual party, and that the arbitration agreement is thus procedurally unconscionable. First and most significantly, as the District Court expressly found, DI presented the arbitration agreement to Nino “for signature on a take-it-or-leave-it basis.” As Nino explained in his deposition, during his first week at the St. Thomas store, DI’s human resources manager provided him with a copy of the company’s employment contract and instructed him to “read it and sign it,” without affording him any opportunity to negotiate over its terms. * * *

We likewise conclude that the arbitration agreement is substantively unconscionable because it contains terms unreasonably favorable to DI, the stronger party. * * * First, … the arbitration agreement’s provision requiring that an employee file a grievance within five days of the complained-of incident in order to preserve his or her opportunity to arbitrate the dispute is substantively unconscionable. We have twice held in no uncertain terms that a thirty-day filing requirement in an arbitration agreement is substantively unconscionable.… [W]hile “a provision limiting the time to bring a claim or provide notice of such a claim to the defendant is not necessarily unfair or otherwise unconscionable,” the time period designated by the agreement must still be reasonable. If a thirty-day filing window is “clearly unreasonable” [as held in a prior case], then the five-day filing requirement imposed by the parties’ contract in this case is even more unduly favorable to DI.… Indeed, the filing requirement in Nino’s arbitration agreement is particularly unreasonable because it is both inflexible and one-sided. With regard to its inflexibility, the agreement states that its filing requirements “are binding and may not be waived except by written agreement of both parties.” * * * DI’s “unfair advantage is only compounded by the fact that [DI itself] is apparently not required to provide detailed and written notice to an employee of any of its own claims within a strictly enforced [five]-day time period.” Indeed, the arbitration agreement in this case imposes no notice requirement upon DI whatsoever. * * * The one-sided five-day filing requirement is manifestly unreasonable and is substantively unconscionable under Virgin Islands law.

Nino likewise argues, and the District Court found, that the arbitration agreement’s requirement that the parties bear their own attorney’s fees, costs, and expenses is substantively unconscionable. We agree. * * * [I]f arbitration is to offer claimants the full scope of remedies available under Title VII, arbitrators in Title VII cases, just like courts, must … ordinarily grant attorney fees to prevailing claimants rather than be restricted by private contractual language. Provisions in arbitration clauses requiring parties to bear their own attorney’s fees, costs, and expenses work to “the disadvantage of an employee needing to obtain legal assistance.” * * *

Finally, we turn to the arbitration agreement’s provision governing the selection of an arbitrator, which Nino contends is substantively unconscionable. Under the arbitration agreement, … DI is required to submit a request to the AAA for a panel of four arbitrators. The parties select a single arbitrator from this list according to the following process: From the panel the Employer will strike the first arbitrator for whatever reason is unacceptable to the Employer. The Employee will then be allowed to strike one arbitrator from the remaining names of panel members. This process will continue until there remains one arbitrator who will be the arbitrator for this grievance or the parties can decide on an arbitrator that would be mutually acceptable. Although it is phrased in neutral, procedural terms, the upshot of this provision is that DI is permitted to strike two arbitrators from the four-member AAA panel, whereas the employee is permitted to strike just one.

This provision is “one-sided in the extreme and unreasonably favorable to [DI].” It confers an advantage upon DI for no discernible purpose other than to stack the deck in its favor. Courts of Appeals have not hesitated to conclude that provisions in arbitration agreements that give the employer an unreasonable advantage over the employee in the selection of an arbitrator are unconscionable.… “By agreeing to arbitration in lieu of litigation, the parties agree to trade the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration,” but they do not accede to procedures “utterly lacking in the rudiments of even-handedness.” * * *

Our final task in addressing Nino’s unconscionability challenge to the arbitration agreement is to determine whether the unconscionable terms may be severed from the agreement such that the remainder of its terms may be enforced. * * * [T]wo lines of inquiry are relevant to the question of severability. The first of these is whether the unconscionable aspects “of the employment arbitration agreement constitute[] ‘an essential part of the agreed exchange’ of promises” between the parties. If the unconscionable aspects of the clause do not comprise an essential aspect of the arbitration agreement as a whole, then the unconscionable provisions may be severed and the remainder of the arbitration agreement enforced. * * * The second consideration for the question of severability … is whether the unconscionability of the arbitration clause demonstrates “a systematic effort to impose arbitration on an employee, not simply as an alternative to litigation, but as an inferior forum that works to the employer’s advantage.”

* * * We need not discuss whether the unconscionable provisions of the parties’ arbitration agreement comprise an essential aspect of the agreement as a whole, because we conclude that the one-sided nature of the arbitration agreement reveals unmistakably that DI “was not seeking a bona fide mechanism for dispute resolution, but rather sought to impose a scheme that it knew or should have known would provide it with an impermissible advantage.” The provisions in question do not simply accord an advantage upon DI indirectly or by happenstance. Instead, they are baldly one-sided, with only one discernible purpose—to create advantages for the employer that are not afforded to the employee. Of the four members of the arbitration panel, the agreement permits DI to strike two and the employee to strike just one. The employee is required to give notice to DI of the claims he intends to arbitrate, while DI is under no such obligation to provide any notice to the employee. The employee must file a detailed grievance regarding the matter he seeks to arbitrate within five days of the underlying events or lose the right to go to arbitration altogether, while DI is insulated against the risk of default for any failure to adhere to its own filing deadlines. * * *

We conclude … that the arbitration agreement is procedurally and substantively unconscionable, and that the pervasively one-sided nature of the agreement forecloses any possibility of severing the unfair provisions from the remainder of the agreement. * * *

CASE QUESTIONS

1.

What was the legal issue in this case? What did the appeals court decide?

2.

What does it mean for a contract to be “unconscionable,” To be “procedurally unconscionable”? “To be substantively unconscionable”?

3.

What was the evidence that this agreement was procedurally unconscionable? That this agreement was substantively unconscionable?

4.

What does it mean to “sever” illegal terms from a contract? Why did the appeals court decline to do so here?

5.

What would you advise this employer to do in light of this decision? Should it redraft the language of the arbitration agreement to deal with the court’s objections or drop the whole thing?

Narayan v. EGL, Inc

616 F.3d 895 (9th Cir. 2010)

OPINION BY DISTRICT JUDGE KORMAN:

The California Labor Code (“Labor Code”) confers certain benefits on employees that it does not afford independent contractors. * * * This appeal from a judgment of the United States District Court for the Northern District of California granting the motion of an employer for summary judgment … principally presents the issue whether, assuming the existence of an employer-employee relationship in California, the employer may avoid its obligations under the Labor Code by inserting a clause in an employer-drafted preprinted form contract in which: (1) the employee acknowledges that he is an independent contractor and (2) agrees that the contract would be interpreted in accordance with the laws of another jurisdiction where such an agreement is generally enforceable.

EGL, the employer, is a global transportation, supply chain management and information services company incorporated under the laws of Texas and headquartered in Texas. * * * [The plaintiffs] were residents of California who were engaged to provide freight pickup and delivery services for EGL in California. All three Drivers signed agreements with EGL for “Leased Equipment and Independent Contractor Services” (the “Agreements”). The Agreements provided that the “intention of the parties is to … create a vendor/vendee relationship between Contractor and [EGL],” and acknowledged that “[n]either Contractor nor any of its employees or agents shall be considered to be employees of EGL.” * * *

Notwithstanding the terms of the Agreements, the Drivers filed a complaint in California against EGL … alleging that they were EGL employees.… They sought money damages for unpaid overtime wages, business expenses, meal compensation and unlawful deductions from wages as well as other relief, including statutory penalties.

… EGL moved for summary judgment arguing that, under the terms of the Agreements, the Drivers were not employees. Instead they were independent contractors who were not entitled to the benefits conferred upon employees by the Labor Code. Relying on a choice-of-law clause in the Agreements, the district court held that the law of Texas applied, and that declarations in the Agreements that the Drivers were independent contractors rather than employees, compelled the holding that they were independent contractors as a matter of law. Moreover, although California does not regard such declarations as controlling, and applies a multi-factor analysis in which the intent of the parties is one of over a dozen and a half factors, the district court held, without undertaking any analysis of the relevant factors, that the result would be the same under California law. Consequently, the district court granted EGL’s motion for summary judgment.

i. Choice-of-Law

EGL argues that the choice-of-law clause in the Agreements, which provides that the contracts “shall be interpreted under the laws of the State of Texas,” applies to the current dispute. * * * The Drivers’ claims involve entitlement to benefits under the California Labor Code. Whether the Drivers are entitled to those benefits depends on whether they are employees of EGL, which in turn depends on the definition that the otherwise governing law—not the parties—gives to the term “employee.” While the contracts will likely be used as evidence to prove or disprove the statutory claims, the claims do not arise out of the contract, involve the interpretation of any contract terms, or otherwise require there to be a contract. * * * [H]ere, appellants claims arose under the Labor Code, a California regulatory scheme, and consequently, California law should apply to define the boundaries of liability under that scheme.

ii. Propriety of Summary Judgment Under California Law

* * * [U]nder California law, once a plaintiff comes forward with evidence that he provided services for an employer, the employee has established a prima facie case that the relationship was one of employer/employee. * * * Once the employee establishes a prima facie case, the burden shifts to the employer, which may prove, if it can, that the presumed employee was an independent contractor. * * *

The Supreme Court of California has enumerated a number of indicia of an employment relationship, the most important of which is the “right to discharge at will, without cause.” [The Court] has endorsed other factors … that may point to an employment relationship:

(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. [The Court has] also approvingly cited five factors adopted by cases in other jurisdictions. These include: (1) the alleged employee’s opportunity for profit or loss depending on his managerial skill; (2) the alleged employee’s investment in equipment or materials required for his task, or his employment of helpers; (3) whether the service rendered requires a special skill; (4) the degree of permanence of the working relationship; and (5) whether the service rendered is an integral part of the alleged employer’s business. * * *

All factors … [are] “logically pertinent to the inherently difficult determination whether a provider of service is an employee or an excluded independent contractor.” * * * “We must assess and weigh all of the incidents of the relationship with the understanding that no one factor is decisive, and that it is the rare case where the various factors will point with unanimity in one direction or the other. * * *

The delivery services provided by the EGL drivers were an essential part of the regular business of EGL. Indeed, EGL’s instructional video shown to the drivers advises them that “as an [EGL] pickup and delivery driver, you have the key role in the shipping process … * * * You can identify shipments that are potential claims before they are put into our system and you ensure our customers’ freight is protected by using proper loading work method techniques.” * * * The video goes on to describe the drivers as “our company’s largest sales force,” because “[t]hrough your interactions with the customer, you communicate [EGL’s] commitment to excellence.” Indeed, the video acknowledges that “for our company to continue to grow, every [EGL] driver must understand the critical importance of the job they do.”

Consequently, EGL’s Safety and Compliance Manual and Drivers’ Handbook instructed the EGL drivers on … how to conduct themselves when receiving assignments and packages, responding to customer complaints and handling damaged freight. The drivers used EGL-supplied forms, received company memoranda and attended meetings on company policies. The Handbook also provided guidelines on how to communicate with EGL’s dispatch, instructing drivers to notify the dispatcher before leaving EGL’s facility dock, to contact the dispatcher after each delivery stop to report that the delivery was completed, and to immediately report any traffic delays. Indeed, the EGL drivers were told that “[c]ommunicating with dispatch is the single most important aspect of the services drivers are paid for. It is not enough to get the freight picked up or delivered. To be competitive in today’s market, the team must be able to identify at a moment’s notice exactly where a shipment is in the course of transit.” * * *

Moreover, there was evidence that EGL’s drivers were ordered to report to the EGL station at a set time each morning—whether or not packages were available to be delivered. Indeed, one of EGL’s dispatchers testified that one of the plaintiff Drivers was subject to disciplinary action for showing up late. Similarly, the record indicates that the drivers had to submit advance notice of vacation days. The plaintiff Drivers also submitted evidence that, although their contracts purportedly gave them the right to pick and choose assignments, in practice, EGL presented them with batches of deliveries that they generally had to accept as an all-or-nothing proposition. In some circumstances, standard operating procedure agreements between EGL and many of its customers determined the manner in which drivers made deliveries. Moreover, the plaintiff Drivers drove exclusively for EGL during their period of employment, and there is at least a material issue of fact as to whether they could have driven for other delivery companies because EGL required them to affix EGL logos to their trucks, which the plaintiff Drivers allege could not practically be covered up.

The record also shows that EGL controlled many other details of their drivers’ performance. EGL regulated their drivers’ appearance—requiring them to wear EGL-branded shirts, safety boots and an EGL identification card. Although their drivers owned their own trucks or vans as noted above, EGL required that they affix EGL logos to the outside of their vehicles. * * * EGL imposed requirements on their drivers’ vehicles—in particular, that they be painted white and less than five years old, although EGL disputes whether these requirements were enforced. * * * EGL’s drivers supplied some of the equipment used to deliver packages (e.g., hand trucks, lift gates, etc.), but EGL provided other supplies such as EGL-branded boxes and packing tape to their drivers for package pick-ups. While EGL’s drivers retained the right to employ others to assist in performing their contractual obligations, EGL required all helpers to be approved by it. The same rule applied to passengers. * * * [N]one of the plaintiff Drivers hired helpers to perform their duties for EGL.

Significantly, the contracts signed by the plaintiff Drivers contained automatic renewal clauses and could be terminated by either party upon thirty-days notice or upon breach of the agreement. Such an agreement is a substantial indicator of an at-will employment relationship. Moreover, the occupation that the plaintiff drivers were engaged in did not require a high level of skill. Drivers were not required to possess any special license beyond a normal driver’s license, and no skills beyond the ability to drive.

Finally, the length and indefinite nature of the plaintiff Drivers’ tenure with EGL also point toward an employment relationship. Here, the plaintiff Drivers worked at EGL for several years, and their Agreements were automatically renewed. This was not a circumstance where a contractor was hired to perform a specific task for a defined period of time. There was no contemplated end to the service relationship at the time that the plaintiff Drivers began working for EGL. * * *

That the Drivers here had contracts “expressly acknowledging that they were independent contractors” is simply not dispositive under California’s test of employment. [Drivers] were paid on a regular basis, although their salary was based on a percentage of each delivery. Nevertheless, the fact that their salary was determined in this way is equally consistent with an employee relationship, particularly where other indicia of employment are present.

Similarly, setting aside evidence that the plaintiff Drivers did not, as a practical matter, determine their own routes, the ability to determine a driving route is “simply a freedom inherent in the nature of the work and not determinitive of the employment relation.” “[I]f an employment relationship exists, the fact that a certain amount of freedom is allowed or is inherent in the nature of the work involved does not change the character of the relationship, particularly where the employer has general supervision and control.”

Ultimately, under California’s multi-faceted test of employment, there existed at the very least sufficient indicia of an employment relationship between the plaintiff Drivers and EGL such that a reasonable jury could find the existence of such a relationship. * * * The judgment of the district court granting EGL’s motion for summary judgment is REVERSED and REMANDED.

CASE QUESTIONS

1.

What issues did the court consider in this case? What was its decision?

2.

What factors did the appeals court consider to determine the employment status of the drivers? How do these compare to the economic realities test? Common law test?

3.

How did the appeals court apply these factors to the facts of this case?

4.

Why had the district court ruled for the employer? Why does the agreement that the drivers signed not matter?

5.

Does the business model of this logistics firm, including an emphasis on teamwork, customer service, and real-time tracking of parcels, fit with the use of independent contractors? Why or why not?

Diaz v. Kraft Foods Global

653 F.3d 582 (7th Cir. 2011)

OPINION BY CIRCUIT JUDGE WOOD:

After Kraft Foods announced a plan in 2008 to outsource many positions at its Tech Center located in Glenview, Illinois, it arranged for the new company to accept applications from Kraft employees who were about to lose their jobs. This case arises from the fallout of that decision. Two of the targeted employees, Jose Diaz and Ramon Peña, chose to apply for positions with Kraft that opened up around that time, rather than pursuing employment with the new vendor. When Kraft did not hire either one, their employment with the company terminated. * * * The plaintiffs attribute these adverse employment actions to their supervisor, Peter Michalec, who they say is biased against Hispanics. The district court concluded that the plaintiffs failed to create a triable issue on whether racial animus motivated any of Kraft’s actions and granted summary judgment for the defendant. We find that the district court improperly discounted the plaintiffs’ strongest evidence and erred in its legal analysis of Diaz and Peña’s failure-to-hire claims.…

* * * In the proceedings below [i.e., before the district court], two additional plaintiffs, Betty Flores and Robert Vela, were parties to this lawsuit. Flores defeated Kraft’s motion for summary judgment and eventually settled her claim. Vela has not appealed. As will soon become clear, the evidence Flores marshaled to defeat Kraft’s summary judgment motion remains relevant to this case.

The conduct of … supervisor … Michalec, gives rise to this lawsuit. * * * The plaintiffs complain that Michalec would send Flores, Diaz, and Peña outside to scrub parking lots, clean sewers, and tend to other disliked tasks “as often as possible” during the cold winter months, but he did not assign non-Hispanic employees to similar labors. They also assert that Michalec followed the three around during the day, timing their breaks and scrutinizing their work, without subjecting non-Hispanic workers to the same treatment. Additionally, the plaintiffs identify statements made by Michalec over the years that in their view illustrate his animus against Hispanics. Robles [another Latino employee] testified that Michalec said in 1999 that he got his job because he (Michalec) was white; Michalec called Robles a “gold-digger” when he asked for a raise; Michalec said “I’m white and I’m right”; and he yelled, “Get the hell out of my office. Go die somewhere else,” when Robles was having a heart attack in 2005. Carlos Casalan, another former employee, asserts that “on numerous occasions” Michalec said that he did not like Spanish people and referred to Hispanics as “dummies” and “stupid.”

The real trouble, however, surfaced when Diaz and Peña tried to get different jobs at Kraft around the time of the outsourcing. * * * In July 2008, Kraft posted a sign-up sheet for a single senior technician position. Diaz, Peña, and two other Hispanic employees, along with two African American employees, signed up to be considered for the positions. Peña also sent an application and his resume to human resources. Shortly after the sign-up sheet was posted, somebody (nobody knows who) crossed off the names of the two African American employees, leaving only four Hispanic employees in the applicant pool. Kraft then decided to freeze the hiring for that position. According to Kraft, the company knew that outsourcing was on the horizon and wanted to wait until the announcement was made so that more employees could apply for the position. In the plaintiffs’ view, however, once Michalec saw that only Hispanics were competing for the position, he decided to halt the hiring.

In September 2008, once Kraft’s plan for outsourcing was known to all, two senior technician and five sanitation positions became available. Kraft posted a notice to announce these vacancies, but it did not permit employees to indicate interest in the positions by putting their names on a sign-up sheet. Instead, Michalec created a list of interested employees and hired from that pool of candidates. Diaz and Peña accuse Michalec of refusing to let them apply for the senior technician positions, thereby eliminating the possibility that they would be hired. Kraft disputes this. It concedes that Diaz and Peña were not considered for the technician positions, but it asserts that the two men simply failed to apply. * * * Kraft ultimately hired Curtis Ward and Robert Meyers, two non-Hispanics, for the senior technician positions. Kraft concedes that none of the applicants for the senior technician positions met all of the qualifications on the posting, but it says that Ward and Meyers were the best match for the position because of their strong mechanical skills. The plaintiffs counter that the strength of Ward and Meyers’s mechanical skills is irrelevant, since their complaint is that they were not even permitted to apply for the positions.

As for the sanitation positions, both Diaz and Peña were on the list of applicants compiled by Michalec. Nine employees applied for the five positions: four Hispanics, two Caucasians, and two African Americans. Kraft says that all of the applicants were sufficiently qualified for the job, so it hired according to seniority. Based on that metric, Diaz and Peña were not selected, but two Hispanic employees with more seniority … were chosen. Diaz and Peña concede that they were lower on the seniority scale than the employees hired, but they assert that they were more qualified and should have been hired on that basis. They emphasize that the guidelines set out in Kraft’s internal hiring policy do not list seniority as a variable in hiring decisions; Kraft responds that the policy does not prohibit the company from using seniority as a factor. * * *

A plaintiff can prove discrimination under Title VII by using either the direct or the indirect method of proof. Under the direct method, the plaintiff must produce either direct or circumstantial evidence that would permit a jury to infer that discrimination motivated an adverse employment action. Direct evidence is something close to an explicit admission by the employer that a particular decision was motivated by discrimination; this type of evidence is rare, but it “uniquely reveals” the employer’s intent to discriminate. More common is circumstantial evidence, which “suggests discrimination albeit through a longer chain of inferences.” A plaintiff can survive summary judgment by producing either type of evidence as long as it creates a triable issue on whether discrimination motivated the employment action. Our cases point to three categories of circumstantial evidence: (1) ambiguous statements or behavior towards other employees in the protected group; (2) evidence, statistical or otherwise, that similarly situated employees outside of the protected group systematically receive better treatment; and (3) evidence that the employer offered a pretextual reason for an adverse employment action. A plaintiff need not produce evidence in each category to survive summary judgment.

We begin with Diaz and Peña’s claim that Kraft failed to hire them for either the sanitation or senior technician positions. They are relying exclusively on the direct method we have just described. * * * The plaintiffs contend that they have produced some evidence that falls into each category of circumstantial evidence which, taken together, would permit a jury to find in their favor.

First, the plaintiffs contend that Michalec exhibited his bias against Hispanics by assigning Flores, Diaz, and Peña to disfavored tasks such as scrubbing parking lots and cleaning sewers outside during the winter. This raises an inference of discrimination, the plaintiffs assert, because Michalec did not assign non-Hispanic employees to these duties. Based on the record, the district court concluded that these facts could suggest bias. Yet the court backed off from this conclusion because Raul Fernandez, another Hispanic employee, was not assigned to the same unwanted tasks. The court reasoned that ultimately the evidence did not support an inference of discrimination because at least one Hispanic employee was not discriminated against in the same way.

We reject this line of analysis. Title VII would have little force if an employer could defeat a claim of discrimination by treating a single member of the protected class in accordance with the law. Suppose the district court’s view carried the day: a female employee suffering from discrimination on the basis of her sex would have to establish that her employer discriminated against all women in the workplace to assert a sex discrimination claim. That, sensibly, is not how Title VII operates. Instead, “[t]he principal focus of the statute is the protection of the individual employee, rather than the protection of the minority group as a whole.” Discrimination against one Hispanic employee violates the statute, no matter how well another Hispanic employee is treated. We agree with the plaintiffs that there is no token exception to antidiscrimination law. * * * Under the direct method, the fact that Michalec treated another Hispanic worker well at most might be a piece of evidence tending to negate discrimination with respect to Diaz and Peña, but that is the precise question of intent that a jury must resolve. We need not decide whether evidence that Michalec assigned Hispanic workers to disfavored tasks is enough by itself to enable the plaintiffs to survive summary judgment, since there is more.

The plaintiffs also support their claim by reference to Michalec’s role in the irregular hiring processes for the sanitation and senior technician positions. In September 2008, it was Michalec who created the list of candidates for those positions; plaintiffs contend that he refused to put their names on that list. * * *[T]he way that Michalec structured the hiring process for the technician positions could raise an inference of discrimination.… Kraft’s assertion that even if Diaz and Peña had been considered for the senior technician positions, they would not have been hired because they lacked sufficient mechanical skills, is beside the point. Under the direct method of proof, the plaintiffs are not required to rebut a defendant’s nondiscriminatory reason for the adverse employment action, as they must under the indirect method. * * *

The district court continued down its mistaken path when evaluating Diaz and Peña’s contention that unlawful discrimination lay behind Kraft’s decision not to hire them for the sanitation positions. The court again agreed with the plaintiffs that the hiring process deviated from the norm, but it concluded that the process did not support an inference of bias because four Hispanics were considered for the position and at least one, Flores, was hired. This, too, overlooks the fact that Diaz and Peña are raising individual disparate treatment claims, not a broad-based pattern or practice claim. In addition, the court failed properly to evaluate the comment Michalec made to Flores, stating that Matt Simeon received a day-shift sanitation position because he was “white like Michalec.” As the district court found, this statement, if credited by the jury, is direct evidence that Michalec awarded the daytime position to Simeon instead of Flores based on a racial preference. On that basis alone, the court denied Kraft’s motion for summary judgment on Flores’s claim. Taking the perspective of Diaz and Peña’s cases, the court concluded that the statement was only circumstantial evidence that could be considered in conjunction with other evidence to establish Michalec’s discriminatory intent. As a general matter, that is correct. The problem this time is that in the end the district court never returned to consider the relevance of this evidence to Diaz and Peña’s claim at all.

Instead, the court examined other evidence identified by the plaintiffs of racially offensive comments made by Michalec. The district court found that those statements did not support an inference of bias because they were not said around the time the hiring decisions were made. We agree with the court that there must be something (such as temporal proximity) to link the racially inflected comments and the adverse employment action before a jury should be permitted to infer that discrimination motivated the action. The court also correctly found that other nonracial but rough statements made by Michalec, such as telling Robles to get out of his office while Robles was in the throes of a heart attack, did not support an inference of discriminatory intent.

But the irrelevance of those statements does not undercut the force of the rest of the evidence, especially Michalec’s statement … that he awarded a day-shift sanitation position to Simeon because of his race. Not only could a jury infer that Simeon got a day-shift position because he is white, as the district court concluded, but it could also conclude that he got one of the five positions for the same reason. There is enough evidence here to create a question for the trier of fact