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Alvarez v. Royal Atlantic Developers, 610 F.3d 1253, 109 FEP 1162 (11th Cir. 2010). Panel: CARNES, Hull, Goldberg. Claims on Appeal: 1. Title VII termination (national origin). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Even if the employee had made out a conventional, McDonnell Douglas prima facie claim, she failed to present a genuine issue of material of fact on pretext. Invoking what it calls the "Vince Lombardi" rule, i.e. "someone who treats everyone badly is not guilty of discriminating against anyone," the panel holds that Atlantic's proffered reason for firing Alvarez was that her performance was unsatisfactory. Even if manager's expectations were unreasonable, this does not dispel the evidence that this was the employer's reason (and two other employees of different ethnicity were also fired from the same job in short order). 2. Where employer admitted in depositions that it accelerated timing of employee's termination due to receiving her letter complaining about employment discrimination, summary judgment should have been denied. Employer proffered four, supposedly distinct reasons to justify the immediate firing: "(1) her work performance was unsatisfactory and it had been planning to fire her anyway; (2) her letter made it clear she was not happy working there; (3) the [employer] thought it would be 'awkward and counterproductive' to keep her around; and (4) they feared she might sabotage the company's operations." Panel finds genuine issue of material fact that first performance-based justification at most supported the decision to terminate, not the accelerated timing of the decision. Second and third reasons are essentially indistinguishable from the prohibited retaliatory reason. The fourth reason might be acceptable in a case where the employer manifests a good-faith belief that the employee intends to commit sabotage, but harboring a totally unfounded stereotype does not entitle employer to summary judgment.

Howard v. Walgreen Co., 605 F.3d 1239, 109 FEP 477 (11th Cir. 2010). Panel: QUIST, Pryor, Fay. Claims on Appeal: Title VII and Fla. state law retaliation. Disposition Below: Judgment after a jury trial ($300,000) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Where the only alleged discrimination about which employee complained was manager's message Threatening that employee's job was in jeopardy due to absence from job, plaintiff did not prove materially adverse action.

Beckford v. Department of Corrections, 605 F.3d 951, 109 FEP 360 (10th Cir. 2010). Panel: PRYOR, Fay, Quist. Claims on Appeal: Title VII retaliation. Disposition Below: Judgment after a jury trial ($45,000 compensatory damages each for 14 employees) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiffs (a dozen nurses, a doctor and a guard) worked in contact with inmates housed in "close management dorms,"i.e., offenders who posed a danger to the general population. "When the inmates saw female employees approaching one of the close management dorms, the inmates called the employees names-including cunt, whore, slut, and bitch-through the exterior cell windows and explained, in graphic detail, the sexual liberties that the inmates would take with the employees, if given the opportunity." When female staff approached, "inmates often instructed each other to 'lock and load' . . . referr[ing] to the most notorious conduct to which they exposed the female staff: gunning. That conduct involved exposing themselves and masturbating directly at staff." The employees made timely and frequent complaints, and urged measures aimed at reducing their contact with the harassers, but these were largely disregarded or even derided (e.g., one captain "informed a complaining nurse that the inmates were in 'their living room and they could do whatever they wanted'"; male employees encouraged the female employees to accept the gunning 'as a compliment.'" The prison's anti-harassment policy covered only co-worker/supervisor, not inmate, harassment. Prison's final solution was to adopt "a new 'There minute rule,' which permitted employees to refuse service to an inmate who gunned the employees for more than There minutes. A nurse testified that, after the adoption of the new rule, the gunning got worse." Court declines to recognize a "corrections" exception to the employer's liability under Title VII for failure to correct third-party harassment, citing decisions from the Third, Sixth, Seventh and Ninth Circuits. Panel also affirms the district court's holdings that the defendants unreasonably failed to take measures to limit the plaintiffs' contact with the inmates (e.g., screens, use of disciplinary measures, prosecution), that plaintiffs presented sufficient evidence that the inmate behavior was motivated by sex (specifically directed at women), that no Faragher/Ellerth instruction was warranted (where the harassment was not by supervisors) and that the 14 plaintiffs' cases did not have to be severed.

Edwards v. Prime, Inc., 602 F.3d 1276, 108 FEP 1749 (11th Cir. 2010). Panel: CARNES, Hull, Anderson. Claims on Appeal: §1981 harassment. FLSA, RICO and state tort claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff contended that as a result of complaining to management about the hiring of undocumented aliens, the Latino employees Threatened and harassed the plaintiffs. Applying the pleadings standards of Iqbal and Twombly, complaint does not make out a plausible case of racial harassment under 42 U.S.C. § 1981 Allegation that employer discriminated against Edwards because he had complained, or because his co-workers believed he had complained, about employment of undocumented aliens, not because of his race.

Mora v. Jackson Memorial Foundation, Inc., 597 F.3d 1201, 108 FEP 914 (11th Cir. 2010)). Panel: Per Curiam (Edmondson, Pryor, Camp). Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented genuine issue of material fact about age motive, where supervisor allegedly made a variety of age-biased remarks before firing the plaintiff ("I need someone younger I can pay less . . . I need an Elena [Quevedo, a 25 year old employee]"; " . . . you are very old, you are very inept. What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control"; "[Plaintiff] is too old to be working here anyway"). Although district court concluded that employer would prevail on "same decision:" affirmative defense, panel holds that after Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), ended mixed-motive analysis, employer no longer has this defense.

Brown v. Alabama Dept. of Transp., 597 F.3d 1160, 108 FEP 897 (11th Cir. 2010). Panel: MARCUS, Fay, Anderson. Claims on Appeal: Title VII, §§ 1981 and 1983 promotion and retaliation (race). Disposition Below: Judgment after a jury verdict ($65,697.65 backpay, $25,000.00 mental anguish, no reinstatement) [plaintiff]. Outcome on Appeal: Affirmed in part and remanded [plaintiff]. Grounds: Panel affirms jury verdicts for plaintiff on There of the nine promotion claims she tried, while six lacked sufficient evidence. On the successful claims, the employee presented both evidence that the explanations were not credible (e.g., that the employee supposedly lacked the qualifications, imposing new requirements that lacked validity) and that race was the determinative factor (e.g., statements that superiors wanted to "get the minorities," black candidates were screen out early in process). On remaining claims, other processes were used to fill positions, plaintiff failed to apply, lacked minimum qualifications or failed to identify non-minority who got promotion instead. No need to pursue whether there was sufficient evidence of retaliation on winning claims because judgment amount would be the same; on losing claims, although plaintiff presented sufficient evidence of a protected activity (participating in a class action lawsuit), that activity was separated by years from adverse action, so "temporal proximity" was insufficient to support inference of retaliation. Back pay award vacated. By offering the jury a charge with only a general verdict, instead of special interrogatories as to each promotion, it was uncertain how much of the jury's advisory back pay award to apportion to each denial of promotion. On remand, the court would have to sort out how much the plaintiff ought to be awarded for each. The Seventh Amendment does not require a new trial, though, because "the jury did not 'necessarily' make any findings with respect to the availability of any legal relief. The jury found only that the Department denied promotions to Brown on the basis of her race or for retaliatory reasons, and it awarded her mental anguish damages on the basis of one or more unspecified instances of discrimination or retaliation. Thus, there were no findings as to any legal claim that would merit deference in scrutinizing the facts underlying the purely equitable backpay award." Panel vacates injunction that required the Department to (1) "immediately transfer Plaintiff Geneva Brown in a comparable position nearest her residence in the Third or Fifth Division"; (2) "promote her to fill the next vacancy in the position of Division Engineer in the Third Division"; and (3) compensate her "at a rate not less than that of the incumbent Brian Davis." "Comparable position" mandate is impermissibly vague, requiring clarification; that "the district court acted well within its considerable discretion in specifying that Brown be promoted to a position in the Third Division, near her home" under 42 U.S.C.A. § 2000e-5(g)(1); and that the district court was not required to defer to the state attorney general's opinion about whether the plaintiff met the licensing requirements for the position in question.

Jimenez v. Wellstar Health System, 596 F.3d 1304, 108 FEP 790 (11th Cir. 2010). Panel: BLACK, Wilson, Cox. Claims on Appeal: §§1981, 1985(3) denial of physician staff privileges and retaliation. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Hospital and other did not unlawfully interfere with black doctor's contract, where staff privileges did not confer contractual rights under state law, lacked a contractual right with patients admitted to the hospital, and had no state-law property interest in practicing medicine. Because discrimination claim lacked merit, there was no statutory protected activity. Conspiracies to violate rights protected under § 1981 not a valid basis for a § 1985(3) claim.

Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 108 FEP 804 (11th Cir. 2010). Panel: FAY, Marcus,
Anderson. Claims on Appeal: Title VII and § 1981 discrimination and harassment. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee judicially estopped by her failure to list her race discrimination claims in her asset schedule in bankruptcy.

Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 108 FEP 456 (11th Cir. 2010). Panel: MARCUS, Dubina, Tjoflat, Edmondson, Birch, Black, Carnes, Barkett, Hull, Wilson, Pryor. Claims on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented genuine issue oaf material fact whether hostile environment was severe or pervasive. Plaintiff, one of only two female employee in a male workplace, endured every variation on the F-, B- and C-words; graphic descriptions of sexual behavior; public displays of pornography and other vile behavior. Some of it was targeted at the female employees, but much of it was generalized, e.g., men often tuned their radio to a morning shock-jock. Plaintiff complained but no corrections were made. "Evidence that co-workers aimed their insults at a protected group may give rise to the inference of an intent to discriminate on the basis of sex, even when those insults are not directed at the individual employee. A jury could infer the requisite intent to discriminate when that employee complained to her employer about the humiliating and degrading nature of the commentary about women as a group and the conduct persisted unabated." Although Title VII does not target vulgarity per se, substantial portion of language was female-specific derogatory, and humiliating. Court rejects argument that same behavior occurred before the plaintiff arrived, and thus could not perforce have been motivated by sex. Plaintiff claims that her conditions of employment were humiliating and degrading in a way that the conditions of her male co-workers' employment were not.

Harrison v. Benchmark Electronics Huntsville, Inc., 593 F.3d 1206, 22 A.D. Cases 1281 (11th Cir. 2010). Panel: SILER, Dubina, Birch. Claims on Appeal: ADA medical inquiry, 42 U.S.C. §12112(d)(2). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Medical Review Officer took the opportunity, while conduction drug screening, to ask addition al questions remote from the results of the blood test, e.g., how long employee had been disabled, what medication he took, and how long he had taken it. Inquiry took place before the employee's supervisor. Thereafter, the employee was denied the job. Panel holds that the medical inquiry ban is enforceable by private right of action, citing the law of five circuits, the language and legislative history of the Act and the EEOC's guidance on the issue. Panel reverses the district court's decision that the plaintiff failed to plead the claim: "Harrison satisfied our liberal pleading standard. His complaint alleged that BEHI questioned him about his seizures following a pre-employment drug test, and he claimed damages for these allegedly prohibited medical inquiries. Thus, BEHI had fair notice that Harrison sought relief under § 12112(d)(2), and his allegations, which specifically referred to pre-employment medical inquiries, were more than speculative." Plaintiff demonstrated that he suffered an injury from the pre-hiring inquiry, i.e., not hired as a permanent employee of BEHI because of his responses to allegedly unlawful questions. Plaintiff presented a genuine issue of material fact about whether the employer exceeded the permissible bounds of inquiring about a positive drug test: "Although BEHI was permitted to ask follow-up questions to ensure that Harrison's positive drug test was due to a lawful prescription, a jury may find that these questions exceeded the scope of the likely-to-elicit standard, and that Anthony's presence in the room violated the ADA, especially considering the conflict between Harrison's testimony-that to answer the MRO's questions he was forced to disclose the fact and extent of his epilepsy-and Anthony's-that he never knew Harrison suffered from the condition. A reasonable jury could infer that Anthony's presence in the room was an intentional attempt likely to elicit information about a disability in violation of the ADA's prohibition against pre-employment medical inquiries."

Myers v. Central Florida Investments Inc., 592 F.3d 1201, 108 FEP 111 (11th Cir. 2010). Panel: MARCUS, Fay, Anderson. Claims on Appeal: Title VII and Fla. state law harassment (sex). State tort claims (not discussed here). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Jury awarded $103,622.09 in compensatory and $506,847.75 in punitive damages for plaintiff's state-law battery claim, but nothing on harassment claims because the most recent events occurred more than a year prior to her filing a charge with the EEOC and state agency. Burden was on plaintiff to establish limitations period. Because plaintiff lost the Title VII claim she was not a "prevailing party" entitled to attorney's fees.

VACATED FOR EN BANC REVIEW  Corbitt v. Home Depot USA, Inc., 573 F.3d 1225, 106 FEP 1249 (11th Cir. 2009). Panel: WILSON, Cox [FAWCETT, dissenting in part]. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. State tort claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Male-on-male harassment by supervisor of two employees not severe or pervasive, where the preponderance of cited comments were comments on appearance or deemed "flirtatious" (e.g. comments about their looks, their clothes and that they were "cute"). Although plaintiffs may have "subjectively more uncomfortable" with comments because they were made by another man (presumably gay), that does not factor into the objective component. Removing these comments and innocuous touchings, there were only 4-6 incidents of brief touching and explicit sexual comments per employee. 2. There was a genuine issue of material fact whether the relevant decision-makers were aware that the employees had made complaints about what they perceived as sexual harassment to the company. Involved in the decision to fire the employees were the alleged harasser (who bragged to others about getting the plaintiffs fired) and his business partner, who himself could have been placed under investigation by employer by failing to investigate alleged harassment. Disputed evidence established that despite fact that some managers involved in the decision attested that they did not know about harassment complaints, the alleged harasser made comments to others that he orchestrated the terminations, that he was going to "get" one of the employees and his "days were numbered"; also, that his business partner responded to investigation of harassment complaints and interviewed plaintiffs about their allegations. Also, both men were in upper management, and other employees involved in decision did not make an independent investigation of complaints about alleged misconduct. Plaintiffs also presented evidence of pretext: that store did not treat their "mark down" violations as a disciplinary issue with other employees, and that their actions were authorized by the store manager (and by corporate policy). There was a question in the Record whether the employer even maintained a policy prohibiting the actions for which employees were supposedly terminated. Employees also accused if misusing phones, but plaintiffs presented genuine issue of material fact whether use of phones was allowed by manager. Investigation that led to terminations internally inconsistent which raises significant doubts about its legitimacy.

Bryant v. Jones, 575 F.3d 1281, 106 FEP 1677 (11th Cir. 2009). Panel: TJOFLAT, Anderson, Cox . Claims on Appeal: §§ 1981, 1983 reverse discrimination termination and retaliation. Disposition Below: Qualified immunity denied [plaintiff]. Outcome on Appeal: Affirmed, except for one claim of legislative immunity [plaintiff]. Grounds: There white county managers and one black manager alleged that newly-elected county government engaged in campaign to replace white managers with African Americans. Issue about whether county officials were engaged in discretionary function (a precondition to qualified immunity) was waived in district court. As for whether agents were engaged in activity that violated the equal protection, acts of harassment were sufficiently severe or pervasive to alter the conditions of employment - including implementation of policy to create "darker administration," refusing to hire whites, demoting and transferring incumbent white employees, shunning and stripping them of authority, accusation that white employee could not understand or relate to "powerful black men," exclusion from meetings and denial of staff. One employee made out claim for constructive discharge, based on humiliating demotion (combined with a physically Threatening act, refusal to hire a white employee who the plaintiff wanted to hire, and condescending and racially-charged comments. Moreover, there is evidence that Jones, as county CEO, directly instigated the behavior (made "darker administration" comment, went on campaign to eliminate white mangers' positions, called one plaintiff a "white bastard," issued executive order stripping one plaintiff os substantive duties). Prohibition of racial discrimination in public employment was "clearly established." One plaintiff who had retaliation claim not barred by administrative hearing that denied him relief, where prior hearing did not consider allegations of racial discrimination (prior hearing had limited jurisdiction to decide whether position was eliminated because of shortage of funding). Right against retaliation was also clearly established. District court erred, though, in denying absolute legislative immunity for decision to eliminate jobs of white managers from budget recommendation.

Allmond v. Akal Security Inc., 558 F.3d 1312, 21 A.D. Cases 961 (11th Cir. 2009). Panel: Per Curiam (Edmondson, Black, Pryor)]. Claim on Appeal: AD and Rehabilitation Act termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Defendants established a business necessity for requiring federal court security guards to take their hearing tests without hearing aids, under 42 U.S.C. § 12113(a) of the ADA (obviating any further examination into whether the employee was disabled for purposes of either act). The ban is job-related (the government study indicated that officers must possess a certain level of acuity at all times, unaided by equipment). It also holds that it is consistent with business necessity. "[The] Marshals Service is entrusted to protect the federal courts and relies heavily on security officers to carry out this duty. Because hearing aids may malfunction, break, or become dislodged, the Marshals Service adopted the ban to ensure that all officers can perform their jobs safely and effectively in the event they must rely on their unaided hearing. When considered in the light of the tremendous harm that could result if a security officer could not perform the essential hearing functions of his job at a given moment, we accept this justification as legitimate and wholly consistent with business necessity." Finally, the employee failed to produce a reasonable accommodation that would allow him to pass the test: "[H]is only suggestion is to remove the hearing-aid ban entirely. That proposal is not reasonable: it destroys the very standard we have just upheld as a legitimate business necessity."

Shiver v. Chertoff, 549 F.3d 1342, 104 FEP 1707, 21 A.D. Cases 492 (11th Cir. 2008): Panel: Per Curiam (Dubina, Black, Fay). Claims on Appeal: Title VII and Rehabilitation Act discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. Grounds: District court erred in holding that employee had not contacted EEO counselor within 45 days of date demotion became effective, per 29 C.F.R. § 1614.105(a)(1).

Butler v. Alabama Dep't of Transportation, 536 F.3d 1209, 103 FEP 1542 (11th Cir. 2008). Panel: CARNES, Black, Restani. Claims on Appeal: 1. § 1981/Title VII retaliation. 2. § 1981/Title VII discrimination. Disposition Below: 1. Judgment after a jury trial ($25,000 back pay; $25,000 compensatory damages; $150,000 punitives) [plaintiff]. 2. Judgment after a jury trial (same) [plaintiff]. Outcome on Appeal: 1. Reversed [defendant]. 2. Reversed [defendant]. Grounds: 1. Employee lacked objective, good faith belief that she suffered a hostile work environment (for purpose of opposition clause) when only incidents were two statements by the same co-worker that occurred during an auto accident: "Did you see that? Did you see that stupid mother fucking nigger hit me?" and "'Look at him now. Now that stupid ass nigger down there is trying to direct traffic. I hope something come [sic] over that hill and run over his ass and kill him." Statements occurred outside of work and employee testified that she did not feel comments affected her work. 2. No adverse employment action where (1) promotion was denied because employee did not take exam for it or meet minimum qualifications. Other actions were not materially adverse (physical labor, having to be at work at 7am, having pay readjusted for leave, call-in policy).

Baker v. Birmingham Board of Education, 531 F.3d 1336, 103 FEP 1255 (11th Cir. 2008). Panel: DUBINA, Barkett, Schlesinger. Claims on Appeal: §§ 1981 and 1983 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Limitations period for post-formation section 1981 claim against governmental actor was four years under Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004), not two-year period for section 1983 claim.

Crawford v. Carroll, 529 F.3d 961, 103 FEP 717 (11th Cir. 2008). Panel: RODGERS, Birch, Fay. Claim on Appeal: 1. Title VII and § 1983 pay discrimination (race) and retaliation. 2. 1. Title VII and § 1983 promotion discrimination (race) and retaliation. Disposition Below: 1. Summary judgment [defendant] 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Denial of merit increase, because of a mediocre performance review, was an adverse employment action. Court recognizes that Burlington Northern changed circuit case law, which used to require "ultimate employment action." That employer reinstated lost back pay after employee grieved evaluation did not eliminate violation. Court also reverses summary judgment on same claim presented as a pay discrimination claim. 2. Denial of There posted promotions (all filled by whites) presented genuine issue of material fact. Court assumed that plaintiff made out genuine issue of material fact. about pretext, where reasons included (1) manager's choice not to make decision when plaintiff was found to be most qualified applicant, (2) manager expressed concerns about "other incidents in the past" with plaintiff, possibly referring to employee's prior complaints of discrimination; (3) failure to offer explanation as to one failure to fill position. On one position, where school's legitimate, non-discriminatory reason was elimination of position, court affirmed summary judgment on race discrimination (but not retaliation). Qualified immunity for Vice President of university affirmed where her personal involvement in underlying events was cursory and there was no evidence of a racial motive.

McCann v. Tillman, 526 F.3d 1370, 103 FEP 367 (11th Cir. 2008). Panel: RESTANI, Carnes, Black. Claim on Appeal: 1. §§ 1981, 1983 suspension. 2. §§ 1981, 1983 retaliation. 3. §§ 1981, 1983 harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant. 3. Affirmed [defendant]. Grounds: 1. White corrections officers identified as comparable employees for purposes of prima facie test were not actually comparable. Plaintiff's offense was abuse of office (visiting a jail in another jurisdiction in uniform and acting unprofessionally to high-ranking official during visit to son). Comparables were (1) in plain clothes and at home at time of disorderly conduct arrest; (2) on duty and in connection with of taking civilian into custody. 2. Although employee made out prima facie case (five days separate race complaint from denial of overtime), employee did not present genuine issue of material fact about pretext. Employer was enforcing policy that employee who is suspended may not make up lost pay be working overtime upon return. Unsatisfactory performance rating six weeks after complaint was arguably within temporal scope, but could not establish pretext for county's reasons (chronic tardiness, not calling in and suspension). Past good ratings were not probative of reason for subsequent poor rating. Promotion claim voluntarily dismissed in district court and could not be revived on appeal. 3. Several incidents of use of racial language over two years ("girls," "boys," "nigger") too sporadic to make out hostile work environment.

Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 103 FEP 134 (11th Cir. 2008). Panel: WILSON, Edmondson, Altongaga. Claim on Appeal: Title VII hostile work environment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented genuine issue of material fact about objective offensiveness. The shop was permeated with sex-talk, including "(1) 'getting off' in reference to masturbation, [id. at 1], (2) a song that referenced 'women's teeth on a man's dick,' [id.], and (3) an experience in a hotel with naked women, [id. at 1-2]. On the day before this co-worker's last day at the office, employee was told that she should bring earplugs to work the next day because the co-worker had said that he could behave however he wanted on his last day. Employee testified that the co-worker's last day "was just like any other day: full of sexually offensive remarks, comments, stories, conversation, language-just like any other day . . . ." The manager also joined in the behavior and was insensitive to her complaints. Generalized conduct not directed at a particular woman may constitute harassment based on sex: language in shop included the "sex specific" words (bitch, whore, and cunt) that may be more degrading to women than men." The subject matter of the conversations and jokes that allegedly permeated the office on a daily basis included male and female sexual anatomy, masturbation, and female pornography, all of which was discussed in a manner that was similarly more degrading to women than men. The radio programming that Reeves claims was also similar. Therefore, even if such language was used indiscriminately in the office such that men and women were equally exposed to the language, the language had a discriminatory effect on Reeves because of its degrading nature." Moreover, on the Record presented, the constant barrage did affect terms and conditions of plaintiff's employment. "Reeves testified that the conduct made it difficult to concentrate on work and caused her to leave the pod and stand in the hallway. She claims that she started to shake when she saw the pornographic image on her co-worker's computer. She also often took time away from her work to complain to her superiors, ask her co-workers to stop, or write notes to herself so she would have a Record of some of the more offensive incidents."

Webb-Edwards v. Orange County Sheriff's Office, 525 F.3d 1013, 103 FEP 157 (11th Cir. 2008). Panel: ALARCÓN, Edmondson, Hill. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. 3. Title VII discrimination and constructive discharge. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Judgment as a matter of law [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Sexual comments made once a week for eight-week period remedied by employee's complaints (plaintiff was immediately assigned elsewhere, returned after two meetings, and elected to transfer). Comments not severe or pervasive, where most offensive sexual content was not immediately reported, and others in totality did not affect terms and conditions of employment. 2. Six months between complaint and denial of promotion insufficiently close in time to infer causation. 3. Plaintiff sought transfer as a school Resource Officer ("SRO") to a facility -- Gateway Middle school -- notorious as a physically dangerous environment. At Gateway, "a majority of the students . . . have 'criminal charges' and psychological or behavioral problems. A majority are also on medication." Though she qualified for the transfer, based on her ranking before the transfer review board, her superior officer countermanded her request. Instead, she was offered a transfer to Conway Middle school, a more traditional and safer placement. refused the post and shortly thereafter resigned from the force. Court affirmed the holding that department's cancellation of the transfer that plaintiff wanted did not, as a matter of law, rise to an adverse employment action. A reasonable person would not consider transfer into such hazardous duty adverse.

Rioux v. City of Atlanta, Georgia, 520 F.3d 1269, 102 FEP 1820 (11th Cir. 2008). Panel: ALTONAGA, Wilson [EDMONDSON, concurring in the judgment]. Claim on Appeal: § 1983 demotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in finding that employee did not present genuine issue of material fact about pretext. Plaintiff deputy fire chief met the ordinary standards of proving pretext under McDonnell Douglas. It was undisputed that he showed that he is a member of a protected class; he was qualified for the job; he was demoted; and following the demotion, he was replaced by someone outside his protected class, an Asian American woman. Despite the absence of a similarly-situated employee, plaintiff came forward with 'other evidence of discrimination'" -- an unwritten affirmative action plan and pressures exerted by an African-American union of firefighters and a city councilman, along with offer of the position to an African American. Short list of candidates for plaintiff's job were minorities. Although employer proffered legitimate, non-discriminatory reason for demotion (plaintiff admittedly assaulted a lieutenant at a fire scene), the prima facie Record established that there were racial as well as non-racial reasons for discharge. Court rejected suggestion that other, African-American officer could serve as comparator, as they were different ranks, had different duties and were found to have committed unrelated offenses. summary judgment affirmed on alternative ground that individual defendants were entitled to qualified immunity. Standing circuit law provides that "mixed-motive" personnel actions are not "clearly established" violations of Equal Protection. Demotion decision was motivated at least in part by lawful considerations.

Davis v. Coca-Cola Bottling Consolidated, 516 F.3d 955, 102 FEP 865 (11th Cir. 2008). Panel: TJOFLAT, Pryor, George. Claim on Appeal: 1. Title VII/§ 1981 pattern-or-practice hiring. 2. Title VII/§ 1981hiring. 3. Title VII/§ 1981 light work assignment. 4. Title VII/§ 1981 retaliation1. Disposition Below: Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed in part [plaintiff]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. Grounds: 1. Only plaintiffs proceeding in a class action make use of the pattern-or-practice method of proof for declaratory or injunctive relief. While a Fed. R. Civ.P. 23(b)(2) class certification would give employees standing to represent; absent certification, there is no right to seek equitable relief for third parties. Also, without certification there would be complications regarding claim and issue preclusion effects of any judgment in the case. In any case, pattern or practice method of proof would not free plaintiffs from time-bar issues, because denial of hiring was a discrete act subject to Morgan timing rule. Panel criticizes complaint and answer as "shotgun" and out of keeping with Fed. R. Civ. P. 8(b).2. Although one plaintiff's hiring claims were waived on appeal, the other plaintiff had two timely claims and the district court erred by dismissing those claims along with the other plaintiff's claim with individual inquiry. Failure to identify individual claims for each of the other six plaintiffs in complaint forfeits those individual claims.3. Two plaintiffs fail to show that they are similarly situated to other injured employees who qualified for light duty or that they qualified for light duty within their medical restrictions. One plaintiff's claim fails because he was fact given accommodation by being reassigned and given an assistant.4. Assignment to cleaning out soft drink coolers and eventual termination not retaliation where decision was based on medical restriction and was not shown to be pretextual. Also no proof of causation where decisions were made five or more months after protected activity.

Goldsmith v. Bagby Elevator Co. Inc., 513 F.3d 1261, 102 FEP 716 (11th Cir. 2008). Panel: PRYOR, Marcus, Land. Claim on Appeal: Title VII/§ 1981 retaliation. Disposition Below: Judgment after a jury trial; $27,160.59 back pay, $27,160.59 compensatory, $500,000 in punitive damages [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Court of appeals affirms judgment, award of damages and attorneys fees. Employer not entitled to judgment as a matter of law on termination claim. Although eight months separated protected activity of filing charge from termination, there was another protected activity the jury could find occurred right before termination (refusing to sign a mandatory arbitration agreement that would apply to his pending claim). And because the only reason that employer gave for firing employee is that he would not sign agreement, jury was allowed to find that such reason is retaliatory on its face. Without any legitimate reason to terminate employee, other than the infected one, their was no same-decision defense. Because jury awarded on award for termination but entered judgment for both race and retaliation, no need to review issues concerning race discrimination. Punitive damages affirmed. Evidence of malice included that supervisor knew about charge and tried to force employee to waive right to civil trial, Thereats against employee met with no corrective action, and testimony that company took no corrective action against aggressive racial harassment showing lack of good faith. No prejudice in employee arguing punitive damages and mental distress for first time in final closing argument; employer knew from pre-trial order that both remedies were at issue. Award did not exceed due process (supported by Gore factors: pattern of exceedingly reprehensible misconduct, employee was economically vulnerable, and ratio was within high end of acceptable (9.2:1) and close to Title VII cap). No error in admission of evidence of discrimination and retaliation against co-workers of plaintiff over FRE406 objection; it was admissible under FRE404(b) as intent evidence and FRE402 as relevant to hostile work environment. Because such testimony was admissible, district court did not err in denying instruction proposed by employer that would have prevented jury from considering evidence of co-workers' testimony. No error in admitting the EEOC's cause determination as evidence at trial under FRE803(8)(C); jury instructed on limited purpose of admissibility and probative value of such determinations outweighs possible prejudice. No error in instructing jury about mental distress. No abuse of discretion in allowing testimony about the use of the word "nigger" by supervisors at country club, which went both to intent and credibility of the witnesses (who denied under oath that they used th word). District court did not err in allowing eyewitness testimony of court clerk at trial about conduct witnesses by company representative during the trial (comment to witness getting on stand by company president). Costs and attorney fees affirmed. Succesful claims were intertwined with unsuccessful ones.

Van Voorhis v. Hillsborough County Board of Commissioners, 512 F.3d 1296, 102 FEP 513 (11th Cir. 2008). Panel: Per Curiam [Anderson, Hull, Pryor]. Claim on Appeal: ADEA hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: When all of the applicants for helicopter pilot job turned out to be 40 years or older (plaintiff was over 50), manager allegedly reviewed the list of qualified applicants and stated that "he did not want to interview [any of the applicants] because he didn't want to hire an old pilot." No interviews were conducted during the first recruitment period. The eventual hire (Pamela Knight, age 40) did not have the minimum 100-hour flying time required for the job, so the county removed that qualification during a second round of recruitment, despite that the FAA "requir[ed] at least 100 hours of spraying flight time before operating a helicopter used for agricultural spraying over a congested area." Manager's remark in the first recruitment period about not wanting to hire an "old pilot" was direct evidence of age discrimination. The district court also erred in holding that there was no "adverse employment action" because the plaintiff filed an incomplete application during the second recruitment period. Rejection of application during the first recruitment period was an adverse employment action.

Springer v. Convergys Customer Management Group Inc., 509 F.3d 1344, 102 FEP 363 (11th Cir. 2007). Panel: Per Curiam (Edmondson, Carnes, Fay). Claim on Appeal: § 1981 promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although employer conceded prima facie case, and there was a factual dispute about whether a job promotion opportunity was posted (as required by company policy), there was no genuine issue of material fact that the employer selected what it considered to be the superior candidate in light of performance evaluations and relevant experience. For purposes of articulating a legitimate, non-discriminatory reason, it was unnecessary for the employee to have actually been considered for position, where decision maker had first-hand experience with the plaintiff and believed she'd not be a good fit. Although job posting called for four-year degree (which plaintiff possessed, and successful candidate did not), manager testified that she was allowed to consider six to eight years' of experience as a substitute for the degree. Subjective impression of respective candidates, provided that there is clear and reasonably specific factual basis for it, is a permissible reason for employment action. Failure to follow internal procedures or preselection of other candidate is not necessarily evidence of pretext.

Garrett v. University of Alabamat Birmingham Board of Trustees, 507 F.3d 1306, 19 A.D. Cases 1605 (11th Cir. 2007). Panel: GEORGE, Tjoflat, Cox. Claim on Appeal: 1. Rehabilitation Act demotion. 2. Rehabilitation Act retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant].Grounds: 1. District court erred in holding that employee (a nurse) did not suffer an adverse employment action in being involuntarily transferred to nursing pool, because even the employer conceded this issue. But employee failed to establish genuine issue of material fact of whether she suffered disability. It is not contested that employee had breast cancer and suffered physical impairments due to radiation treatment. Periods of impairment were short-term, no evidence that impairments continued into relevant period, and no tests were performed to establish extent of limitations. Moreover, plaintiff did not show she was substantially limited in the a major life activity (no objective evidence of diminished ability to work). 2. Having employee asked to return home because of exhaustion was not adverse action. Although demotion to lower-paid position was adverse, there was no causal link between that decision and any protected activity (timing alone was insufficiently probative).

Thomas v. Cooper Lighting, Inc., 506 F.3d 1362, 101 FEP 1826 (11th Cir. 2007). Panel: Per Curiam (Marcus, Pryor, Hancock). Panel: Per Curiam [Birch, Dubina, Carnes]. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: There-month stretch between protected activity and termination does not establish grounds for causal connection.

Morrissette-Brown v. Mobile Infirmary Medical Center, 506 F.3d 1317, 101 FEP 1799 (11th Cir. 2007). PANEL: MARCUS, Pryor ,Land. CLAIMS ON APPEAL: Title VII religious accommodation. DISPOSITION BELOW: Judgment following a bench trial [defendant]. OUTCOME ON APPEAL: Affirmed [defendant]. GROUNDS: Plaintiff claimed she was terminated from her job because she refused to work Friday or Saturday shifts from 3 p.m. to 11 p.m., but the employer contended that she was never fired and had been offered a flex-time position instead. The district court finding that the employee was not fired was not clearly erroneous, in view of testimony that employee was offered flex-time multiple times in writing and orally. No error in finding that employer reasonably accommodated employee's religious observances by allowing her to swap shifts.

Scarborough v. Board of Trustees Fla. A&M Univ., 504 F.3d 1220, 101 FEP 1441 (11th Cir. 2007). PANEL: BARKETT, Birch, Cox. CLAIMS ON APPEAL: Title VII retaliation . DISPOSITION BELOW: Summary judgment [defendant]. OUTCOME ON APPEAL: Reversed [defendant]. GROUNDS: Employee's call to campus police for protection against hostile faculty member and swearing out protective order was a protected activity under Title VII anti-retaliation section, and cannot be considered a legitimate, non-discriminatory reason for taking action against employee.

Greenberg v. Bellsouth Telecommunications, 498 F.3d 1258, 19 A.D. Cases 1153 (11th Cir. 2007). Panel: Per Curiam [Birch, Dubina, Carnes]. Claims on Appeal: AD and Fla. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee, a lineman, fired for failing to lose 50 pounds over 25 weeks to meet safe load requirement for climbing ladders. He was offered other work answering phones, but he concluded he was not qualified. Employee failed to present facts supporting claim that he was substantially limited in the major life activities of working (in a broad class of jobs) or caring for himself. Whether there was conflicting evidence in the Record about his ability to lose weight medically was immaterial.

Watts v. Florida Int'l Univ., 495 F.3d 1289 (11th Cir. 2007). Panel: CARNES, [HILL, concurring] [TJOFLAT, dissenting]. Claims of Appeal: §1983 free exercise. First Amendment, due process and state law claims (not discussed here). Disposition Below: Fed. R. Civ. P. 12(b)(6) dismissal for failure to state a claim [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in requiring employee (graduate student in a practicum) presenting free exercise claim to prove that termination substantially burdened his observation of a central religious belief. It was enough that it burdened a sincerely-held religious belief. Complaint supplied plausible grounds to infer that employee will be able to demonstrate that he sincerely held religious belief that got him fired (i.e. advising patient of option of seeking bereavement support at church). Pleading sincerity of belief not onerous, here that it was his religious belief that patients who profess a religion are entitled to be informed of religious avenues for therapy. Employee not required to plead facts to support inference that belief was itself of a religious character. Qualified immunity for individual actors affirmed.

Jones v. United Space Alliance, LLC, 494 F.3d 1306, 101 FEP 329 (11th Cir. 2007). Panel: KRAVITCH, Barkett, Stahl. Claims of Appeal: Title VII and Fla. state law discrimination and harassment (race and religion). Disposition Below: Summary judgment, but no fee award to employer [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Florida state law follows Christiansburg standard, and employer was not entitled to award of fees because claim was not shown to be frivolous, unreasonable or without foundation.

Holly v. Clairson Industries, LLC, 494 F.3d 1306, 101 FEP 329 (11th Cir. 2007). Panel: MARCUS, Anderson, Hill. Claim on Appeal: AD and Fla. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee confined to wheelchair presented genuine issue of material fact about whether he was a qualified individual. Employer argued that strict punctuality was an essential function of his job as a mold polisher in a factory, where tardiness by mere seconds was deemed an infraction. Employee had asked for accommodation that he be occasionally allowed to clock in late and make up the extra minutes during breaks or at the end of the shift, as the employer had done for most of the employee's tenure. Although employer's official position tolerated no lateness at all, employee's supervisors testified that his job was not time sensitive. EEOC regulations (29 U.S.C. § 1630.2(n)(2) and (3)) point to other factors favoring employee, including that he did not work on an assembly line (and thus would not hold up production), any time was always made up the same business day, no evidence that his tardiness slowed down production, or that employee failed to complete his work on time. There was also sufficient evidence that the employee requested an accommodation. Employee was not required to show that he was treated differently from similarly-situated person, because failure to provide reasonable accommodation is itself discrimination. District court erred in holding that there was no discrimination because all employees were treated equally under strict punctuality policy. Uniformly-applied, facially neutral policies may discriminate against disabled.

Nurse "BE" v. Michael Chaparro, M.D., 490 F.3d 1302, 100 FEP 1697 (11th Cir. 2007). Panel: SILER, Tjoflat, Fay. Claims of Appeal: Title VII harassment (sex). Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Employer established that it met Faragher/Ellerth affirmative defense as a matter of law. Jury entered finding that employer maintained a policy to prevent sexually harassing activity, which plaintiff did not appeal. Employee contended, though, that she invoked that policy by telling a designated representative about five harassing phone calls she received. Employee did not describe sexually explicit content, though, and urged the supervisor not to report the incidents along. Intangible concern about possible retaliation not enough to excuse reporting requirement. Also, once employee made unconditional report to employer, ten months of activity had already taken place, and employer immediately remedied situation (by separating harasser, counseling him, Threatening termination).

Albra v. Advan, Inc., 490 F.3d 826, 19 A.D. Cases 680 (11th Cir. 2007). Panel: Per Curiam [Black, Marcus, Kravitch]. Claims on Appeal: ADA discrimination and retaliation. Fla. state law claim (not discussed here). Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(6) [defendant] . Outcome on Appeal: Affirmed [defendant]. Grounds: Individuals are not amenable to private suit for violating either Title I, 42 U.S.C. §§ 12111-12117, of the ADA or the ADA's anti-retaliation provision, 42 U.S.C. § 12203, where the act or practice opposed by the plaintiff is made unlawful by the ADA provisions concerning employment.

Adkins v. Christie, 488 F.3d 1324, 100 FEP 1262 (11th Cir. 2007). Panel: WILSON, Edmundson, Birch. Claims on Appeal: §§ 1981, 1983 and 1985 termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in recognizing "medical peer review" privilege. Denial of doctor's discovery of those Records deprived him of key evidence of disparate treatment about how his discipline compared to non-minority doctors. District cout also abused discretion in limiting doctor's discovery to comparators in Department of Surgery. Because disciplinary policies were hospital-wide, the scope of discovery ought to be the same.

Bradshaw v. school Bd. of Broward Co., 486 F.3d 1205, 100 BNA 1083 (11th Cir. 2007). Panel: CUDAHY, Birch, Fay. Claims of Appeal: Title VII and Fla. state law harassment (sex). Disposition Below: Judgment after a jury trial ($500,000 compensatory award) [plaintiff]. Outcome on Appeal: Reversed on damages [defendant]. Grounds: When award in excess of the statutory damage cap, 42 U.S.C. § 1981a(a)(1), is also covered by a second state cap on any judgment award against a public entity set at $100,000, then supremacy clause compels state to Honor $300,000 cap, but under state law employee cannot recover addition al amount. Escape hatch in sovereign immunity statute is that employee can collect the balance over $300,000 through a legislative claims bill.

Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 100 FEP 553 (11th Cir. 2007). Panel: PRYOR, Birch, Nangle. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that employee met his prima facie case, employer furnished five reasons for employee's termination (inaccuracy of his investigation of discrimination complaint, improper traffic stops, complaints relating to pay, problems with dispatchers, complaints of low morale). Evidence that city administrator said that employee's investigation of EEO complaint opened up a "can of worms" was insufficient to present triable issue of fact, in light of numerous unrebutted reasons supporting termination.

Chambless v. Louisiana-Pacific Corp., 481 F.3d 1345, 100 FEP 549 (11th Cir. 2007). Panel: FARRIS, Carnes, Pryor. Claim on Appeal: 1. Title VII (sex) and ADEA promotion. 2. Title VII harassment (sex). State tort claims (not discussed here). Disposition Below: 1. Judgment after a jury trial [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. That employer's proffered reason (improperly filled out sick leave paperwork) arguably violated the FMLA does not mean that it was not a "legitimate" reason for purposes of rebutting discrimination claim. Employer did not waive mixed-motive defense by not pleading it, where it was included in pre-trial order without objection. 2. Claim was ruled untimely. Circumstances surrounding failure to promote and retaliation were not same type of "discriminatory intimidation, ridicule, and insult" that characterized untimely allegations.

Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 100 FEP 273 (11th Cir. 2007). Panel: CARNES, Marcus, Jordan. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII harassment. State tort claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee did not suffer tangible employment action in connection with hostile work environment when employer (1) offered her the choice of a transfer to resolve conflicts she had with her supervisor; and (2) termination that resulted from the employees refusal to accept any of the company's offers (to work with manager, transfer to other office and accept counseling). Use of profanity by one manager, not targeted at or against female employee, not sex harassment by itself, although some vulgarities ("bitch," "slut," "tramp") could contribute to hostile work environment when combined with instances of sexual propositioning. Summary judgment affirmed on alternate ground that employee failed to present genuine issue of material fact on Faragher/Ellerth defense. She failed to prove that anti-harassment was unreasonable as applied to her. Alleged shortcomings in investigation did not vitiate defense; company not required to conduct full-blown hearing. HR head and two members of department carried out investigation and interviewed the witnesses (including plaintiff). Also, deficiencies in procedure immaterial if remedial result is adequate. Option of counseling of manager and plaintiff was reasonable alternative to transfer, in light of failure of investigation to conclude there was harassment. Plaintiff's failure to accept any proposed remedy was unreasonable. Failure to report harassment sooner (more than There months after sexual propositioning) forfeited second prong of defense. 2. Refusal to cooperate with company's remedy of alleged harassment was legitimate, non-discriminatory reason for termination. Company not required to second-guess her refusal to accept continued employment with same manager.

Myricks v. Federal Reserve Bank of Atlanta, 480 F.3d 1036, 100 FEP 1 (11th Cir. 2007). Panel: PRYOR, Carnes, Farris. Claim on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee knowingly and voluntarily released his claim. Counseled agreement is presumptively valid. Subjective misunderstanding about the consideration for the release did not render contract ambiguous or unenforceable. District court did not abuse discretion when it denied discovery on settlement agreement by other employees.

Castro v. Sec'y of Homeland Security, 472 F.3d 1334, 18 A.D. Cases 1518 (11th Cir. 2006). Panel: Per Curiam (Edmondson, Barkett, Cox) . Claims on Appeal: Rehabilitation Act hiring . Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Rehabilitation Act superceded by the more exacting physical performance standards for the hiring of Transportation Security Administration (TSA) security screeners set forth in the Aviation and Transportation Security Act (ATSA), 49 U.S.C. § 44935. Congress directed TSA to establish hiring criteria (including physical standards at least as strenuous as those in subsection (f)) for security screeners "[n]otwithstanding any provision of law." 49 U.S.C. § 44935(e)(2)(iii), (iv). TSA has authority, "[n]otwithstanding any other provision of law," to "employ, appoint, . . . and fix the . . . terms, and conditions of employment' for security screeners. 49 U.S.C. §44935 note."

Burlison v. McDonald's Corp., 455 F.3d 1242, 98 FEP 778 (11th Cir. 2006) . Panel: CUDAHY, Anderson, Barkett. Claims on Appeal : ADEA termination. Disposition Below: Summary judgment on enforceability of releases [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Holding in issue of first impression for circuit that language of OWBPA, 29 U.S.C. § 626(f)(1)(H), referring to disclosure of data about job titles and ages covered and selected for RIF, was ambiguous, and affirming that regulation 29 U.S.C. §1625.22(f)(1)(iii)(C), limiting all disclosures to the decisional unit. Also affirms regulation definition of "decisional unit," 29 U.S.C. §1625.22(f)(3)(i)(B) as unit from which employer chose the persons who would be offered consideration in exchange for the waiver.

Drago v. Jenne, 453 F.3d 1301, 98 FEP 555 (11th Cir 2006). Panel: COX, Black, Pryor . Claim on Appeal: ADEA retaliation. FML and Fla. state law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]Assuming employee's complaints were protected activity, no disputed issue of material fact where only assertion of causal link was There months that separated complaints from demotion. Temporal proximity alone was not enough.

Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 98 FEP 19 (11th Cir. 2006). Panel: Per Curiam (Dubina, Carnes, Hull). Claim on Appeal: Title VII/§ 1981 termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant] Correctional officer who fraternized with and eventually married inmate in her custody was terminated. Plaintiff raised no genuine issue of material fact regarding her prima facie case where she could not show that there were non-black employees who were treated better. White employees who were not terminated were not similarly situated because they became involved with the inmates before they entered the correctional system. Circuit requires comparators to be "nearly identical," clearing up intra-circuit split (where some cases suggested that "similar" misconduct was enough). Alleged statistics showing that blacks were disciplined more than whites for the same conduct irrelevant where numbers did not show individual circumstances that might have warranted different treatment.

Brooks v. County Commission, Jefferson Co., 446 F.3d 1160, 97 FEP 1587 (11th Cir. 2006) . Panel: MARCUS, Dubina, Hull. Claims on Appeal : Title VII promotion (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: White female employee passed over as Budget Management Officer in favor of black candidate did not establish pretext, where employer contended that successful candidate had several years' experience in the Budget Management Office and had temporarily served in the position.

Dearth v. Collins, 441 F.3d 931, 97 FEP 1053 (11th Cir. 2006). Panel: Per Curiam [Black, Hull, Farris]. Claims on Appeal : Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Relief under Title VII is available against only the employer and not against individual employees whose actions would constitute a violation of the Act, regardless of whether the employer is a public company or a private company. Even if court were to adopt alter-ego doctrine (expressing doubt on question, Worth v. Tyer, 276 F.3d 249, 262 (7th Cir. 2001) and EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1282 n.11 (7th Cir. 1995)), the court held, the plaintiff failed to mount a factual Record that harasser (who was director, president and sole shareholder of enterprise) disregarded employer's corporate form, used employer to transact his own affairs or commingled employer's funds with his own; or hid behind employers corporate form in order to protect his own fraudulent behavior. Finally, claims against employer fail on Faragher/Ellerth grounds: the employee never complained until she was on the brink of termination, and then the claims were investigated.

Brown v. Snow, 440 F.3d 1259, 97 FEP 951 (11th Cir. 2006). Panel: PRYOR, Carnes, Hull. Claims on Appeal : Title VII harassment (sex) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Under 42 U.S.C. § 2000e-16(c), employee did not fail to exhaust. Although employee was obliged to wait 180 days after filing charge to file civil action, filing complaint 35 days early was not jurisdictional defect, where it did not evidence a refusal to cooperate in good faith, EEOC continued to investigate for more than 180 days, and agency itself may have misled employee about right filing date. Also there was insufficient evidence under 29 C.F.R. § 1614.105(a)(1) that employee failed to contact counselor within 45 days, an issue on which the agency had the burden of proof. On the merits, plaintiff did not show that diminution of performance rating from 3.67 to 3.33 was tangible or materially adverse. Complaint did not mention termination claim, which at a minimum under Fed. R. Civ. P. 8(a) was required to be part of the short and plain statement.

Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 97 FEP 193 (11th Cir. 2006). Panel: PRYOR, Carnes, Hull. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant] 1. Employee failed to prove causal relationship between reduction in work hours and alleged harassment for purpose of establishing tangible employment action. Employee had been informed at time of employment that her hours would decline after the Christmas rush. Moreover, manager other than alleged harasser set the schedule. Employee also caused decline in hours in part because of taking vacation and sick time. Alleged harassing activities by manager to employee's mother were not directed at employee. No evidence that hiring of full-time cashier was motivated by harassment. 2. As above, employee failed to establish causal relationship of complaint of harassment to loss of hours. Other alleged acts of retaliation were insufficiently adverse to be material (e.g., reprimanding employee for use of company phone for personal matters, refusal to allow employee to sit on stool while working, failure to conduct 30-day evaluation).

Rowell v. BellSouth Corp., 433 F.3d 794, 97 FEP 131 (11th Cir. 2005). Panel: FORRESTER, Pryor [CARNES, concurring]. Claims on Appeal : ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No constructive discharge in early retirement program - even where there was doubt about the continuing availability of employment - where employee's options were "1. Keep his present job or seek other openings within BellSouth, or 2. Resign with a severance package of 150% of his salary and his pension in lump sum." Alternatively, employer's reliance on so-called competency rankings in RIF not shown to be a subterfuge for age discrimination, where there was no correlation between age and ranking, and alleged comparative employees were in a different organization. FRE801(d)(2)(D) did not apply to statement by executive offering his opinion that age was a factor in the RIF decisions, where he did not participate in decision and did not purport to speak for management on this issue.

Ellis v. England, 432 F.3d 1321, 17 A.D. Cases 703 (11th Cir. 2005). Panel: Per Curiam [Tjoflat, Dubina, Hull] . Claims on Appeal : Rehabilitation Act discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: As applied to the Rehabilitation Act, 42 U.S.C. § 2000e-16(c) allows a federal employee who reaches the end of the agency's administrative process, prevails on liability, but obtains unsatisfactory relief, to either accept the final award as-is, or abandon the award and file a claim in federal district court for de novo proceedings (noting a split in the circuits). Reviewing claim de novo, plaintiff failed to make out prima facie case because there was no evidence that disabled employees were treated any differently with respect to selection for duty than non-disabled individuals. Original EEOC finding favoring employee had no controlling weight on district court's adjudication of claim.

Slomcenski v. Citibank, N.A., 432 F.3d 1271, 17 A.D. Cases 707 (11th Cir. 2005) . Panel : BIRCH, Edmundson, Cox. Claims on Appeal: ADA benefits. ERISA claim [not discussed here]. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee with fibromyalgia failed to demonstrate that she was disabled, or regarded as disabled, at the time she received notice of the mental or nervous disorder benefits limitation to the company's long term disability program; when she later applied for benefits, she was no longer "qualified" because her LTD application was premised on representation that she was not qualified for any occupation.

Underwood v. Perry County Commission, 431 F.3d 788, 96 FEP 1801 (11th Cir. 2005). Panel: Per Curiam [Carnes, Pryor, Forrester]. Claims on Appeal: Title VII failure to hire (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Panel declines to address whether district court could consider, on prima facie case, evidence that plaintiff was not objectively qualified for truck driver job because of two traffic citations that the employer did not know about at time of decision. Affirmed summary judgment on alternative basis that employee failed to identify persons outside of her protected group who were hired instead of her. Record showed that both men and women were hired as truck drivers.

Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 96 FEP 1367 (11th Cir. 2005) . Panel : HULL, Birch, Bowman]. Claim on Appeal: Title VII, § 1981 and other federal law claims . Disposition Below: Motion to compel arbitration [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: FAA does not require that arbitration agreements be signed by the parties, only that it be in writing. Contract was within interstate commerce because employer's employment practices affect commerce. Waiver of jury rights is a federal law issue and is subject to contract principles rather than the heightened "knowing and voluntary" standard. Provisions were enforceable under Georgia law, rejecting arguments that there was no valid offer, no acceptance by continued employment, lack of consideration, and unconscionability. Noted possible split in circuits (with First Circuit) on whether arbitration policy must also separately satisfy an "appropriateness" standard in Title VII cases.

Kerr v. McDonald's Corp ., 427 F.3d 947, 96 FEP 1086 (11th Cir. 2005) . Panel: Per Curiam [Birch, Carnes, Fay]. Claim on Appeal : ADEA termination. Disposition Below : Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Ninety-day limitations period for filing suit upon receipt of right-to-sue letter deemed to be triggered upon adequate notice that the EEOC investigation has terminated. In a case where the date of receipt of the letters is in dispute, court presumes that employees' request for right to sue letters placed them on inquiry notice that a right-to-sue letter would soon follow, and failure to investigate (until six weeks later) about issuance of letter was therefore unreasonable.

Jackson v. Cintas Corp., 425 F.3d 1313, 96 FEP 825 (11th Cir. 2005) . Panel: Per Curiam [Birch, Hull, Bowman]. Claim on Appeal: Title VII, § 1981 and other federal law claims . Disposition Below: Motion to compel arbitration [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Although one-year limitations period in arbitration agreement was unenforceable, under Georgia law it could be severed from agreement. Court did not abuse discretion by denying Fed. R. Civ. P. 56(f) discovery, because issue presented (whether employer imposed same agreement on other employees) was immaterial to outcome.

D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 16 AD Cases 1825 (11th Cir. 2005). Panel: MARCUS, Black [FAY, dissenting]. Claim on Appeal: AD and Fla. state law termination . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee who monitored conveyor belt in a fish packing plant suffered vertigo. Employer claimed a lack of positions available away from such equipment and terminated her. She sued under the ADA (and Florida state law) for disability discrimination, on grounds of both actual disability and "regarded as" disability. Panel unanimously affirmed finding that vertigo did not substantially limit the plaintiff in the major life activity of working. Under the "regarded as" liability provisions, the panel majority found a triable issue of fact. District court had found that there was a genuine issue of material fact about whether the employee's manager regarded her as disabled (the manager may have believed, based on the employee's doctor letter, that she could not work around any moving equipment -- which if true blocked her out of all factory work). Panel majority found a triable issue of fact about whether working on a conveyor belt was an essential function of the job, such that the employee would be required to perform that task to be a "qualified individual." (Supervisor deposition testimony, quoted at length, consistently failed to identify work at the conveyor belt as "essential.") Panel majority followed Third Circuit view that the ADA may require reasonable accommodations even for employees who are only regarded as disabled.

Ledbetter v. Goodyear Tire and Rubber Co., Inc., 421 F.3d 1169 (11th Cir. 2005). Panel: TJOFLAT, Dubina, Pryor. Claim on Appeal: Title VII compensation (sex). Disposition Below: Judgment after a jury trial ($360,000 award) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Under Morgan, compensation claims are to be treated as discrete acts. Where last salary decision (under system that annually reviews employee compensation), background evidence of time-barred discrimination in compensation may only stretch back to most recent decision prior to triggering of limitations period. Earlier decisions are admissible only to the extent that they shed light on the motivations of the individual decision makers. Where employer produced non-discriminatory explanation for failing to award plaintiff a raise (based on her low ranking among employees in the same unit), and employee did not rebut explanation, she failed to prove claim as a matter of law. Only challenge was to accuracy of her review, not the decision maker's motives. Sexist remarks by non-decision makers not material as to employer's motivation.

Young v. New Process Steel, LP, 419 F.3d 1201, 96 FEP 399 (11th Cir. 2005). Panel: CARNES, Pryor, Forrester. Claim on Appeal: Title VII and § 1988 fees and costs to defendant. Disposition Below: Entry of Fed. R. App. P. 7 bond [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Under Christiansburg Garment standard, panel rejects a general rule requiring a losing plaintiff in a civil rights case to post a bond that includes the defendant's attorney's fees on appeal. District court may decide when a bond may be required on a case-by-case basis, evaluating a plaintiff's possibility of success on appeal based on what the court has seen of his case at the trial level.

Cordoba v. Dillard's, Inc., 419 F.3d 1169, 16 AD Cases 1774 (11th Cir. 2005). Panel: TJOFLAT, Kravitch, Mills. Claim on Appeal: AD and § 1988 fees and costs to defendant . Disposition Below: Award of fees to defendant [defendant]. Outcome on Appeal: Reversed in part [plaintiff]. Grounds: Manager who made the termination decision was legitimately innocent about the employee's latent disability (a heart condition), and plaintiff therefore could not establish a prima facie case. After summary judgment (and affirmance on appeal in an unpublished order), defendant was awarded fees based on the ADA fee shifting provision (42 U.S.C. § 12205), section 1927, and the court's inherent power. Panel on remand found that the employee in good faith relied on dicta from prior Eleventh Circuit cases suggesting a theory of "constructive" knowledge, imputed to the decision-maker, which -- based as it was on circuit precedent -- could not be considered frivolous. Panel faulted the employer for prolonging the litigation instead of filing an early summary judgment motion on the knowledge issue.

Collado v. United Parcel Service, Co., 419 F.3d 1143, 16 AD Cases 1697 (11th Cir. 2005). Panel: CARNES, Cox, Strom. Claim on Appeal: 1. ADA discrimination 2. ADEA retaliation. Disposition Below: 1. Judgment as a matter of law [defendant] 2. Judgment as a matter of law [defendant]. Outcome on Appeal: 1. Affirmed [defendant] 2. Affirmed [defendant]. Grounds: 1. An ADA plaintiff -- an insulin-dependent diabetic truck driver -- managed, in spite of Department of Transportation rules to the contrary, to obtain certification to work as a full-time driver. Four years later, his manager removes him from full-time duty. A year later he returns full time, only to be removed once more by the same manager. Following disability leave, he is finally cleared for work and reinstated in 2001. Discrimination and retaliation claims go to trial, where the jury awards plaintiff $316,000. District court grants Fed. R. Civ. P. 50(a) JMOL on ground that plaintiff had not identified any 'major life activity' that his diabetes limited. District court could return to the "prima facie case" after trial, in spite of circuit's "don't-look-back" rule. Panel holds that rule does not bar the district court from reconsidering existence of an element of the claim that is also a component of the prima facie case. 2. No causal connection as a matter of law between filing EEOC charge and removal of plaintiff from truck-driving job, where employer was simply enforcing policy to bar all insulin-dependent diabetics from operating trucks.

Quintana v. Jenne, 414 F.3d 1306, 95 FEP 1761 (11th Cir. 2005). Panel: PRYOR, Dubina, Kravitch . Claims on Appeal: Title VII and § 1981 discrimination and retaliation (race). Disposition Below: Summary judgment and award of attorneys fees to defendant [defendant] .Outcome on Appeal: Reversed in part [defendant]. Grounds: Panel affirms award of fees for retaliation claim, on which plaintiff failed to establish a prima facie case. But because plaintiff established a prima facie case on his racial discrimination case, it was not frivolous as a matter of law, and award of fees was abuse of discretion. Although $73,890 award had to be vacated, on remand district court could apportion fees attributable to the retaliation claim.

Akouri v. State of Florida Department of Transportation, 408 F.3d 1338, 95 FEP 1217 (11th Cir. 2005). Panel: FAY, Marcus, Siler. Claims on Appeal: Title VII promotion (national origin). Disposition Below: Judgment entered after a jury verdict; $148,000 back pay and $552,000 compensatory damages, reduced on JAML to $1 nominal damages [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Plaintiff failed to provide evidence of (1) his actual earnings while employed at defendant, which jury needed to determine back pay; or (2) emotional distress to support compensatory damages. Court did not abuse discretion by denying new trial on damages; plaintiff was not unfairly limited by judge's time limit and easily could have presented what was needed within those constraints. On cross-appeal by employer, court affirms judgment. Evidence included Record that statement that "the people working in the crew are not the same that are working in the office. There is no black or Hispanic [employees] in the back. There is always -they are all white and they are not going to take orders from you, especially if you have an accent, and something like that."

Vessels v. Atlanta Indep't school Sys., 408 F.3d 763, 95 FEP 1245 (11th Cir. 2005). Panel: Per Curiam (Barkett, Kravitch, Farris). Claims on Appeal: 1. Title VII, §§ 1981, 1983 reverse discrimination failure to promote to temporary position (white male). 2. Title VII §§ 1981, 1983 reverse discrimination failure to promote to permanent position (white male). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds : 1. Under pretext method of proof, plaintiff established prima facie case. Although employer claimed that plaintiff was not qualified for purposes of McDonnell Douglas, application of subjective interview process did not disprove that employee otherwise met employer's objective job criteria. Employer could proffer subjective evaluation of plaintiff's leadership style as legitimate, non-discriminatory reason not to promote. That employer's agents did not all specifically recall reasons for rating minority candidate higher did not preclude employer from offering leadership qualities at the production stage. Genuine issue of material fact on pretext, in view of the evidence of racially tinged statements by AISS decision-makers, the relative superiority of Vessels' qualifications, AISS's disregard of its own employment regulations, and Vessels' rebuttal of many of AISS's proffered justifications raise a genuine issue of material fact as to whether AISS's articulated reasons for rejecting Vessels for the interim position were pretextual. Record also presented doubts about whether incidents of unprofessionalism occurred and could rationally be relied upon by decision maker, and whether procedures for filling job were violated. 2. Panelists, including admittedly neutral ones, reached same conclusion about professional credentials of candidate, without consultation among themselves.

Webb v. Worldwide Flight Service, Inc., 407 F.3d 1192, 95 FEP 1148 (11th Cir. 2005). Panel: DUBINA, Pryor, Roney. Claims on Appeal: Fla. state law harassment (race). Disposition Below: Judgment entered after a jury trial; $300,000 compensatory (remitted to $100,000), $100,000 punitive [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Courts had subject matter jurisdiction over state law case where employee filed premature civil action that did not divest state civil rights agency of ability to investigate charge. Employee not required to file a new charge to restart clock.

Green v. Elixer Industries, Inc., 407 F.3d 1163, 95 FEP 1151 (11th Cir. 2005). Panel: FARRIS, Barkett [HILL, dissenting]. Claims on Appeal: Title VII harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Although pro se plaintiff's charge stated only a complaint of racially-motivated termination, employee submitted an affidavit to the district court stating that during the intake process, he furnished written details of a scarifying pattern of harassment (including several incidents with nooses) which he thought would be included in the charge. The EEOC had apparently destroyed the file. Plaintiff thereby met charge-filing requirements.

Jackson v. Talladega County Bd. of Educ., 402 F.3d 1276, 95 FEP 1048 (11th Cir. 2005) . Panel: CARNES, Anderson, Roney . Claims on Appeal: Title VII retaliation. First Amendment claim (not discussed here). Disposition Below: Mistrial and summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Law of the case did not preclude entry of summary judgment where reversal of summary judgment on appeal was followed by a full trial on the merits (vacated on entry of a mistrial), in which employer more fully explained reasons for terminating employee. No abuse of discretion in declaring mistrial in first trial where juror did not disclose criminal conviction and prison sentence for murder, which disqualified her. Employer proffered legitimate, non-discriminatory reason for termination by pointing to plaintiff's demeaning and offensive letter-writing campaign. Opinion testimony that one board member involved in termination decision may have been racist, even if admissible, does not contradict abundant evidence that Board as a whole was motivated by employee's abusive behavior.

Morris v. Emory Clinic, Inc., 402 F.3d 1076, 95 FEP 599 (11th Cir. 2005). Panel: Per Curiam [Black, Pryor, Godbold]. Claims on Appeal: ADE and Title VII (sex) termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Whether or not doctor's termination violated state or federal procedures for investigating his performance, employee physician failed to show that women or substantially younger employees were treated relatively better, or that reason for termination (misconduct) was a pretext for discrimination.

Gillis v. Georgia Dep't of Corrections, 400 F.3d 883, 95 FEP 427 (11th Cir 2005). Panel: COX, Carnes, Strom. Claims on Appeal: Title VII discrimination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : Employee who was denied a good performance review ("exceeded expectations") and therefore lost out on a $912 annual raise demonstrated an "adverse employment action." Supervisor's statement "ain't [it] like a f*****g n****r to complain" is circumstantial evidence of discrimination.

Hill v. Rent-a-Center, No. 03-15608 (11th Cir. Feb. 4, 2005). Panel: RONEY, Anderson, Carnes. Claims on Appeal: Title VII race discrimination. Disposition Below: Motion to compel arbitration granted [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Account manager for rent-to-own business who transports merchandise over state border not a member of a "class of workers engaged in ... interstate commerce" because he is not in the class of transportation workers covered by § 1 exclusion of Federal Arbitration Act (FAA).

Wilbur v. Correctional Services Corp., 393 F.3d 1192, 95 FEP 100 (11th Cir. 2004) . Panel: DUBINA, Tjoflat, Pryor. Claims on Appeal: Title VII and Fla. state law harassment (sex) and retaliation. Disposition Below: Judgment as a matter of law under Fed. R. Civ. P. 49(b) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Jury awarded $25,000 in compensatory damages in spite of verdict form interrogatories that indicated that jury found against plaintiff on each of the ories (quid pro quo harassment, hostile work environment and retaliation) presented to the jury. District court refused to resubmit form back to jury on plaintiff's request, and granted judgment as a matter of law to employer under Fed. R. Civ. P. 49(b) on ground that special interrogatory answers were consistent with each other but inconsistent with a general verdict for plaintiff. Defendant did not waive this ground for affirmance by its failure to raise before the jury was discharged; judge had already ruled before defendant had opportunity to raise the issue. Plaintiff failed to present rational basis to reconciled verdict form answers with jury charge. Even though district court judge admitted that its preparation of the verdict form misled jury into entering an award of damages, in spite of finding no liability. While reinstruction and resubmission to jury would have been preferable on this Record, district court had reasonable grounds to conclude that the general verdict was the only source of inconsistency. Punitive damage issue moot, and in any event plaintiff failed to present evidence to establish that higher management countenanced harassment.

Cooper v. Southern Company, 390 F.3d 695, 94 FEP 1858 (11th Cir. 2004). Grounds: MARCUS, Anderson, Carnes. Claims on Appeal: Title VII and §1981 pattern-or-practice claim (race). Disposition Below: 1. Class certification denied [defendant]. 2. Summary judgment on seven individual disparate treatment claims [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Class certification foundered both on the Rule 23(a) requirements of adequacy, commonality and typicality, and the Rule 23(b)(3) condition that common questions outweigh individual ones. District court did not err in reviewing merits of claim to extent that it implicated whether claim was common to class. Regarding typicality, the panel upheld the district court's finding that the plaintiffs' individual claims (including disability and discriminatory discipline) and lack of standing to raise certain claims (for union members or individuals seeking promotion to senior management) rendered them untypical of the "full range of employees in their putative class." Also commonality found lacking where decisions were being made by different managers in different companies implementing different policies. District court did not abuse discretion in rejecting evidence of statistical disparity in business opportunities in light of methodological flaws in report (education and experience factors insufficient, many variables such as locations and job types missing, absence of statistical significance in many subsets). Alternatively, the panel agreed that Rule 23(b)(2) certification was foreclosed because the proposed damage remedy was more than incidental to injunctive relief. Class counsels' proposal to certify the class solely to pursue injunctive relief was rejected because "it is far from clear that the named plaintiffs would adequately represent the interests of the other putative class members. Indeed, to many of the class members (and especially to those who no longer work for the defendants), the monetary damages requested might be of far greater significance than injunctive relief, stated at a high order of abstraction, that simply directs the defendants not to discriminate." Seventh Amendment compelled a single jury trial for all claims. Summary judgment properly granted on pattern or practice/disparate impact claims on grounds that statistical analysis is insufficient to support claim. 2. Seven individual, disparate treatment claims. Cooper - two promotions. Claim for four-year limitations period for § 1981 waived on appeal. Individual expert report properly excluded under Rules 26(a) and 37(c)(1), because not timely disclosed. Plaintiff failed to show that denial of interview for promotion was pretextual where he lacked requisite experience. Plaintiff did not present genuine issue of material fact on second promotion, where defendant claimed he lacked communication skills and up-to-date job knowledge about high-voltage lines. Cooper failed to rebut all reasons given to deny second promotion. Edwards - four promotions. Plaintiff's argument based on superior qualifications fails, where any difference was not striking enough to sustain inference that race was a motivating factor. Green - promotion claim was time-barred. Compensation claim fails, even assuming that plaintiff made out a prima facie case, because employer's reliance on compensation survey was legitimate, non-discriminatory reason for disparity. P. Harris - compensation differential supported by relatively higher education/experience level of comparables, who demonstrated more ability to work independently. S. Harris - retaliation claim. Plaintiff established prima facie case, but employer presented legitimate, non-discriminatory reason (plaintiff's performance had slid, employer believed that plaintiff falsified a computer entry). Pay differential supported by plaintiff's chequered disciplinary history compared to otherwise similar employees. McCullers - promotion claim, plaintiff did not make out prima facie case because she did not show she was qualified for new position (job performance ratings were not high enough to be considered). Compensation claim fails because comparables all had six more years of seniority over plaintiff. Wilson - promotions; plaintiff's argument based on her own perception of her superior qualifications fails. Compensation, no evidence of comparable employees.

Chappell v. Chao, 388 F.3d 1373 (11th Cir. 2004) . Panel: BARKETT, Birch, Cox. Claims on Appeal: Title VII discrimination (race). Disposition Below: Dismissed for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Affirmed on alternative ground [defendant]. Grounds : Plaintiff waived right to present "mixed case" (MSPB appeal and Title VII) to federal district court by taking appeal of MSPB determination to Federal Circuit.

EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 94 FEP 848 (11th Cir. 2004) . Panel: MARCUS, Wilson, Duplantier. Claims on Appeal: Title VII pattern or practice harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds : EEOC not precluded by judgment in private pattern-or-practice case from proceeding with its own action, where district court denied EEOC's motions to consolidate the actions and EEOC did not direct or act in privity ("virtual representation") with private plaintiffs.

Cuddeback v. Florida Board of Education, 381 F.3d 1230, 94 FEP 538 (11th Cir. 2004) . Panel: DUBINA, Hill, Owens. Claim on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: A graduate student assistant may also be an "employee" for Title VII purposes under the "economic realties" test. Plaintiff met this standard because (1) she received a stipend and benefits for her work; (2) she received sick and annual leave; (3) a comprehensive collective bargaining agreement governed her employment relationship with the University; (4) the University provided the equipment and training; and (5) the decision not to renew her appointment was based on employment reasons, such as attendance and communication problems, rather than academic reasons. On the merits, the district court erred in finding plaintiff did not meet prima facie burden (she was replaced by male student). But five-month period of complaints by professor and student's absent-without-leave status supported termination decision and was not pretextual.

Reynolds v. McInnes, 380 F.3d 1303, 94 FEP 455 (11th Cir. 2004) . Panel: BARKETT, Hill, Forrester. Claim on Appeal: Enforcement action under Title VII consent decree. Disposition Below: Enforcement ordered [intervenor-plaintiffs]. Outcome on Appeal: Affirmed [intervenor-plaintiffs]. Grounds : Holding, on an issue of first impression in circuit, that intervenors have standing to enforce contempt remedies under a Title VII consent decree.

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 93 FEP 1825 (11th Cir. 2004) . Panel: PRYOR, Anderson, Hull. Claim on Appeal: 1. Title VII promotion (sex). 2. Title VII termination (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff presented genuine issue of material fact on pretext where (1) company lacked a formal application process for vacancies at the vice president level, but plaintiff expressed an interest in an open spot (Site VP) to her Group Vice President; (2) Group VP told her that she was the "obvious candidate" for the job, and "even though women aren't typically in that type of position we'll see what happens when we throw your name out there to corporate"; and (3) one of plaintiff's co-workers testified that Group VP said plaintiff was "most qualified based on her accomplishments in the engineering department." 2. Plaintiff allegedly terminated for insubordination (closed up office and stopped reporting to work). Plaintiff failed to generate evidence that to show that the reason was pretextual. Fact that plaintiff previously complained about promotion does not create inference of discrimination.

Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 94 FEP 107 (11th Cir. 2004). Panel: FAY, Mills [WILSON, concurring in result]. Claim on Appeal: ADE age and retaliation termination. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No abuse of discretion to admit testimony about post-termination investigation by employer's parent company, which resulted in employer changing stated reason for termination from poor performance to "other," where investigation merely confirmed sales figures already known the manager at time of termination (therefore not after-acquired); or, alternatively, plaintiff opened the door to its admission. Also, no error in refusing instruction on pretext noting split in circuits.

Bost v. Federal Express Corp., 372 F.3d 1233, 93 FEP 1705 (11th Cir. 2004). Panel: PRYOR, Anderson, Hull. Claim on Appeal: ADEA discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Putative ADEA collective action challenging FedEx's policies (allegedly adverse to its older couriers). Court finds that neither the previously-filed EEOC charges (from a previously dismissed case) nor an intake questionnaire signed by one plaintiff exhausted the federal administrative remedies. (Parallel state law claims under the Florida Civil Rights Act were deemed forfeited below.) On the former, the 90-day filing period upon the right-to-sue letters for the Freeman plaintiffs had expired two years before, and the district court and court of appeals found no grounds for equitable tolling. As to the latter, intake interview was not formal charge, but included a six-page affidavit laying out the claims of discrimination. (Plaintiff later filed a formal charge, but a month after he commenced his lawsuit.) Panel affirmed that interview should not be treated as charge: intake interview was not passed along to FedEx, claimant was not misinformed by EEOC, intake interview form itself stated in a disclaimer that it was not a charge, plaintiff did eventually did file a charge.

Rossbach v. City of Miami, 371 F.3d 1354, 15 A.D. Cases 1064 (11th Cir. 2004). Panel: Per Curiam [Anderson, Carnes, Fay]. Claim on Appeal: ADA discrimination. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff light and limited duty police officers did not create genuine issue of material fact about whether their impairments substantially limited them in any major life activity. Officers were so classified because they were not "combat ready." That plaintiffs functioned "moderately below average" in major life activities of walking, sitting, standing and sleeping did not make them disabled under ADA. Plaintiffs failed to show that the afflictions they suffered were worse than those suffered by many adults. No evidence that city regarded plaintiffs as disabled; "police officer" did not constitute a class of jobs or broad range of jobs.

Stone v. First Union Corp., 371 F.3d 1305, 93 FEP 1550 (11th Cir. 2004). Panel: KRAVITCH, Birch, Oakes. Claim on Appeal: ADEA discrimination. Disposition Below: Motion to intervene denied [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employees who previously had been opt-in plaintiffs in collective action, which was later decertified, could intervene as of right into pending individual case. Opt-in plaintiffs' interests were potentially impaired by individual action because of negative stare decisis effect, where all plaintiffs were challenging the same bank policy. Moreover, plaintiffs were allowed to piggyback on pending ADEA case under "single-filing" rule, where original charge challenged a common policy. Interveners may also have differing interests with original plaintiff, because the district court held (in decertifying collective action) that the individual claims are not identical.

Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 15 A.D. Cases 888 (11th Cir. 2004). Panel: SILER, Tjoflat, Barkett. Claim on Appeal: ADA termination. Disposition Below: Judgment as a matter of law [defendant]; jury had awarded plaintiff $100,000 compensatory damages, $235,000 punitives. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff TV host with neuromuscular disease was terminated, allegedly for appearing in an unauthorized infomercial. District court granted JAML on ground that plaintiff failed to rebut employer's proffered explanation. District court erroneously evaluated credibility; employer had offered shifting reasons for decision, which allowed jury to question manager's credibility. Employer's argument that plaintiff failed to present prima facie case immaterial after a completed trial. addition al evidence about how employer treated plaintiff worse after she returned to work from medical leave with restrictions, and how manager was looking for reason to fire plaintiff anyway, supported inference of discrimination. New trial not warranted on grounds of manifest weight of evidence, excessive damages or instructions issues.

Hulsey v. Pride Restaurants, LLC, 367 F.3d 1238, 93 FEP 1185 (11th Cir. 2004). Panel: CARNES, Wilson, Jordan. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court failed to enter findings of fact and conclusions of law. Reviewing de novo, only two issues in dispute were "severe or pervasive" and basis for employer liability. Court notes that "hostile work environment" and "tangible employment action" are not different claims and do not have to be plead separately. That she presented evidence that she was terminated before she refused immediate supervisor's advances establishes a genuine issue of material fact as tangible employment action. Behavior was also severe or pervasive (grabbing, propositioning for sex); 18 incidents over 2 week period. Because defendant did not advance Faragher defense on appeal, it was not considered.

Parker v. Wendy's Intern., Inc., 365 F.3d 1268 (11th Cir. 2004). Panel: BIRCH, Tjoflat, Goodwin. Claim on Appeal: Title VII discrimination. Disposition Below: Rule 12(b)(6) dismissal [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Rejecting application of judicial estoppel to situation where bankruptcy trustee failed to disclose discrimination claim in bankruptcy court as potential asset, as trustee (who intervened as real party in interest post-petition) did not make inconsistent representations to the court.

Stavropoulos v. Firestone, 361 F.3d 610, 93 FEP 498 (11th Cir. 2004). Panel: COX, Edmondson, Dubina. Claim on Appeal: Title VII retaliation. First Amendment claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Because plaintiff faculty member did no suffer actual termination due to the board of regents votes not to renew her contract (she prevailed on review of those votes), there was no adverse employment action.

Bishop v. City of Birmingham Police Dept., 361 F.3d 607, 93 FEP 533 (11th Cir. 2004). Panel: Per Curiam [Tjoflat, Marcus, Wilson]. Claim on Appeal: Title VII retaliation. Disposition Below: Judgment as a matter of law [defendant]; jury had deadlocked. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in granting collateral estoppel effect to unreviewed findings of county personnel board, per the Supreme Court decision, Univ. of Tenn. v. Elliott.

Carruthers v. BSadvertising, Inc., 357 F.3d 1213, 15 A.D. Cases 238 (11th Cir. 2004). Panel: Per Curiam [Birch, Black, Barkett]. Claim on Appeal: ADA termination. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee with bilateral hand sprain/strain, who was medically restricted (reviewable week to week) in use of keyboard, neither perceived to be or in fact substantially limited in the major life activity of work. That employer made moves to fire and replace her after learning she could not pull full-time schedule does not imply that it perceived her as unable to work in a broad class of jobs. No abuse of discretion to deny motion to amend complaint to add claim of retaliatory discharge where time for amending charge and discovery under court order had expired months before

Gregory v. Georgia Dept. of Human Resources, 355 F.3d 1277, 93 FEP 21 (11th Cir. 2004). Panel: Per Curiam [Anderson, Barkett, Roney]. Claim on Appeal: Title VII retaliation. Disposition Below: Judgment after jury trial; $10,000 damages [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Pro se charge, where plaintiff failed to check retaliation box, did not forfeit exhaustion of retaliation claim where charge stated she was terminated, that at the time sh filed the charge she "believed" that the termination was motivated by race and sex, and EEOC investigation of discrimination claims would (if completed) reasonably uncovered any evidence of retaliation.

Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 92 FEP 1729 (11th Cir. 2003). Panel: Per Curiam [Black, Carnes, Wilson]. Claim on Appeal: ADEA failure to rehire or transfer. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Failure to consider plaintiff, whose job was eliminated, for open positions where the employer had open application procedure and employee did not submit applications (but only expressed orally a general interest in being transferred) does not raise an inference of discrimination. Hence, plaintiff failed to present prima facie case.

Summers v. Dillard's, Inc., 351 F.3d 1100, 92 FEP 1710 (11th Cir. 2003). Panel: Per Curiam [Birch, Dubina, Godbold]. Claim on Appeal: Title VII and ADEA discrimination and retaliation. Disposition Below: Motion to compel arbitration denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Plaintiff's challenge to "loser pays" provision in arbitration agreement, which claimant contended could prevent her from recovering attorney fees if she did not prevail entirely, was not ripe.

Barger v. City of Cartersville, Ga., 348 F.3d 1289, 92 FEP 1377 (11th Cir. 2003). Panel: MILLS, Marcus [BARKETT, dissenting]. Claim on Appeal: AD and ADEA demotion claim. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Trustee in bankruptcy had standing to replace discrimination plaintiff on appeal. Bankruptcy court's oral order granting debtor leave to add civil rights case to petition as pre-petition asset did not collaterally estop defendants in district court to challenge original failure to do so, where defendants had no standing to litigate the issue in bankruptcy. Plaintiff's claim was judicially estopped by her failure to amend Statement of Financial Affairs (submitted under oath) to include lawsuit filed six months later, her failure to include claim again when plaintiff converted Chapter 13 petition to Chapter 7 bankruptcy, and plaintiff obtained judicial discharge of debts. Record established that plaintiff as debtor had motive to conceal potential claim to obtain discharge. Evidence that plaintiff informed her attorney and trustee of lawsuit does not rescue claim where attorney was at least negligent in acting to amend petition and trustee was not informed that plaintiff was seeking significant monetary damages.

Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d 974, 92 FEP 1317 (11th Cir. 2003). Panel: TJOFLAT, Anderson, Cudahy. Claim on Appeal: Title VII constructive discharge (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed[defendant]. Grounds: Working conditions (withdrawn reprimand, two racially offensive cartoons attached anonymously to computer, offer to transfer to another position, co-worker rumor that employer planned to fire him at some point in the future, allegedly unequal pay) not so objectively intolerable that a reasonable person in employee's position would have been compelled to resign.

Walton v. Johnson & Johnson Services, Inc., 347 F.3d 1272, 92 FEP 1284 (11th Cir. 2003). Panel: Per Curiam. [Anderson, Wilson, O'Kelley]. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff, who was pursued and allegedly raped by supervisor, failed to make timely complaint to company, eventually took short-term disability leave and then accepted termination to obtain long-term disability benefits. Plaintiff suffered "tangible employment action" within meaning of Faragher/Ellerth affirmative defense (termination), but there was no evidence she was terminated because of sex. Plaintiff forfeited constructive discharge argument by not raising it in the district court. No genuine issue of material fact presented regarding affirmative defense, where employer (1) maintained anti-harassment policy (rejecting theory that defendant negligently hired manager who turned out to have harassed others at prior job); (2) employer took prompt, remedial steps after plaintiff contacted HR; and (3) employee waited There months to complain, and subjective fears of reprisal do not excuse failure to report. Court notes split in circuits regarding "sudden sexual harassment," where harassment was unavoidable despite best efforts on both sides, but determines that plaintiff waived the point in the district court.

Snider v. Jefferson State Community College, 344 F.3d 1325, 92 FEP 1009 (11th Cir. 2003). Panel: EDMUNDSON, Cox [BARKETT, dissenting]. Claim on Appeal: § 1983 Equal Protection harassment (same-sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: State officials entitled to qualified immunity because prohibition against same-sex harassment was not clearly established at time that the misconduct occurred.

Garrett v. University of Alabamat Birmingham Bd. of Trustees, 344 F.3d 1288, 14 A.D. Cases 1386 (11th Cir. 2003). Panel: Per Curiam [Edmondson, Carnes, Story]. Claim on Appeal: Rehabilitation Act discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: State waived Eleventh Amendment immunity by accepting federal funds conditioned on such waiver.

Maynard v. Board of Regents of Div. of Universities of Florida Dept. of Educ. ex rel. University of South Florida, 342 F.3d 1281, 92 FEP 777 (11th Cir. 2003). Panel: RESTANI, Marcus, Wilson. Claim on Appeal: Title VII termination (race). State and federal constitutional claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff's appeal of discovery orders by magistrate judge forfeited below by failure to timely appeal rulings to district court. No abuse of discretion to deny leave to amend complaint to add a Title VII retaliation claim one day before the close of discovery. Regarding Title VII claim, plaintiff medical resident (who was not retrained due to poor exam scores, poor patient evaluations and other factors) did not make out prima facie case because he could not identify similarly situated, non-minority resident (the most similarly situated non-minority resident dipped in performance because of alcohol abuse, a condition that was successfully treated). Plaintiff's alleged misconduct was substantially worse.

Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 92 FEP 914 (11th Cir. 2003) Panel: WILSON, Marcus, Restani. Claim on Appeal: Title VII, §§ 1981, 1983 and Fla. state law promotion claims. Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Fire chief's decision to cease creating new captains positions, solely to avoid hiring four white males at top of eligibility lists, violated equal protection. Nonetheless, chief had qualified immunity because standard was not clearly established at the time of his decision.

EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 92 FEP 661 (11th Cir. 2003). Panel: HILL, Black, Fitzpatrick. Claim on Appeal: Title VII harassment (race) and retaliation. Disposition Below: Suit dismissed, with fees [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Case dismissed owing to agency's failure to engage in good faith conciliation, when it conducted There-year investigation in individual case, then (upon issuing Letter of Determination) gave company 12 business days to accept nation-wide conciliation agreement , and declined request by employer to set forth basis for its determination. EEOC's statutory duty to conciliate implies duty to notify employer of the basis for the determination.

Hines v. Widnall, 334 F.3d 1253, 92 FEP 242 (11th Cir. 2003). Panel: Per Curiam [Edmundson, Kravitch, Gibson]. Claim on Appeal: Title VII disparate impact and pattern or practice (race). Disposition Below: Class certification denied [defendant]. Outcome on Appeal: Affirmed [defendant].Grounds: Two of five plaintiffs lacked standing to serve as class representatives under Rule 23 of African-American civilian Army employees because they did not file EEOC charges and could not take advantage of charges filed by actual employees, because there were only job applicant. Although remaining There named plaintiffs had standing to appeal adverse class certification decision (despite settling their own claims), district court did not abuse discretion by denying certification on ground that plaintiffs failed to demonstrate typicality: plaintiffs did not suffer hiring or transfer discrimination, and did not represent the entirety of the civilian workforce. Preliminary EEOC order certifying a comparable class was not preclusive upon district court.

Bogle v. McClure, 332 F.3d 1347, 92 FEP 16 (11th Cir. 2003). Panel: BLACK, Dubina, Ryskamp. Claim on Appeal: § 1983 race discrimination. Disposition Below: Judgment after jury trial; $500,000 compensatory to each librarian; $2 million punitive damages to each librarian [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Seven white librarians challenged transfer and demotion decisions, claiming that they were predicated on Board decision to boost number of African-American managers at branch libraries. Jury awarded $23 million (remitted to $17 million). Qualified immunity rejected, because jury found that Board members intentionally discriminated. No error in refusing to instruct on mixed-motive defense, where jury verdict (that discrimination was but-for cause of terminations) vitiates that theory. Jury award not excessive, despite lack of medical testimony; self-announced emotional distress included depression and suicidal thoughts. Punitive damages were proportionate to other award.

Jones v. Dillard's, Inc., 331 F.3d 1259, 92 FEP 28 (11th Cir. 2003). Panel: DOWD, Dubina, Fay. Claim on Appeal: ADEA./Ala. state law termination. State law tort claims [not discussed here]. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff creates genuine issue of material fact under ADEA on equitable tolling, where employer arguably stretched out hiring process and filled plaintiff's position with a younger person six months later. Question about state limitations period certified to state Supreme Court.

Watson v. Blue Circle, Inc., 324 F.3d 1252, 91 FEP 609 (11th Cir. 2003). Panel: COX, Birch, George. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Claim not time-barred under Morgan, because harassing events constitute single practice (except for harassment by one co-worker, whom the company immediately intervened against when they learned about his behavior). Genuine issues of material fact presented in co-worker hostile work environment case: (1) company admitted to actual knowledge of some harassment, and was in a position to know about others; (2) constructive notice of harassment (employer's anti-discrimination policy not a defense where it is disputed how effective that policy was); (3) absence of prompt and appropriate corrective action (managers dismissed some of the reported misconduct as "horseplay" and declined to punish offenders).

Downing v. Board of Trustees of the Univ. Of Ala., 321 F.3d 1017, 91 FEP 78 (11th Cir. 2003). Panel: TJOFLAT, Birch, Vining. Claim on Appeal: Title VII harassment (sex) and retaliation. Disposition Below: Summary judgment denied on sovereign immunity [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Recognizing Equal Protection right against same-sex, sex harassment in public employment, and affirming constitutional authority of Title VII anti-retaliation provision as applied to public employment.

Wright v. AmSouth Bancorp., 320 F.3d 1198, 91 FEP 1198 (11th Cir. 2003). Panel: EDMONDSON, Wilson, Nangle. Claim on Appeal: ADEA. termination; State law tort claims [not discussed here]. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Timing of filing of EEOC charge. While plaintiff subjectively believed that he would soon be terminated, but actual decision was not communicated to the employee until months later, claim accrued (and time for filing charge began running) only after latter event. Record presented genuine issue of material fact on when the definitive communication occurred.

Kelliher v. Veneman, 313 F.3d 1270, 90 FEP 440 (11th Cir. 2002). Panel: KRAVITCH, Black, Marcus. Claims on Appeal: ADE and Title VII termination (race) and retaliation Civil service unlawful discharge and whistleblower claims (not discussed here). Disposition Below: Summary judgment upon review of MSPB findings [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Review of MSPB findings regarding discrimination subject to de novo review, while non-discrimination claims are reviewed under arbitrary and capricious, without regard to law or substantial evidence standard. Assuming plaintiff met prima facie test, plaintiff failed to present genuine issue of material fact concerning agency's legitimate, nondiscriminatory reason for terminated plaintiff (17 performance related deficiencies were cited).

City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 90 FEP 467 (11th Cir. 2002). Panel: TJOFLAT, Wilson, Restani. Claims on Appeal: Title VII and §1983 termination ( national origin). Disposition Below: Class certification granted [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Putative class representatives failed to file timely claims, because alleged act of discrimination was time barred (reduced retirement payments caused by pattern of terminated and rehiring Latino employees as temps was merely present effect of former discriminatory policy that ended no later than 1991).

Jackson v. Birmingham Bd. of Educ., 309 F.3d 1333 (11th Cir. 2002). Panel: MARCUS, Dubina, Goodwin. Claims on Appeal: Title IX retaliation. Disposition Below: Rule 12(b)(6) dismissal [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: ON CERT IN THE U.S. S. CT. No private right of action for Title IX retaliation for high school basketball coach who complained about gender bias against girls team.

Holmes v. West Palm Beach Housing Authority, 309 F.3d 752, 89 FEP 1852 (11th Cir. 2002). Panel: WINTER, Marcus, Fay. Claims on Appeal: Title VII promotion (sex). Disposition Below: Judgment after jury trial; plaintiff prevailed by court ordered remittitur from $161,000 to $3,300 [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Misstatement in jury verdict special interrogatory constituted harmless error, where in context of entire charge, jury would have understood that the "same decision" defense was being asserted separately for retaliation claim (on which plaintiff lost) and promotion claim. Remittitur not an abuse of discretion where Record would not have supported original verdict on promotion claim alone.

Shields v. Fort James Corp., 305 F.3d 1280, 89 FEP 1646 (11th Cir. 2002). Panel: TJOFLAT, Barkett, Wilson. Claims on Appeal: Title VII and §1981 harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Remand of limitations issue and defense of laches in light of Nat'l R.R. Passenger Corp. v. Morgan.

Brochu v. City of Riviera Beach, 304 F.3d 1144, 89 FEP 1552 (11th Cir. 2002). Panel: DOWD, Tjoflat, Kravitch. Claims on Appeal: Title VII retaliation First Amendment claim (not discussed here). Disposition Below: Judgment after jury trial; $2000 awarded on Title VII claim, $450,000 on First Amendment claim [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Plaintiff presented no evidence that decision maker was aware of plaintiff's adverse deposition testimony prior to making decision to transfer plaintiff, and transfer was otherwise supported by evidence that plaintiff had trouble relating to supervisors and co-workers.

Williams v. Motorola, Inc., 303 F.3d 1284, 89 FEP 1464 (11th Cir. 2002). Panel: OWEN, Tjoflat, Wilson. Claims on Appeal: 1. ADA discrimination. 2. Title VII and ADA retaliation 3. Title VII harassment and discrimination (sex). Disposition Below: 1. Judgment as a matter of law [defendant]. 2. Judgment as a matter of law [defendant]. 3. Judgment after a jury trial; court remitted award from $300,000 to $50,000, then entered nominal award of $1; JAML denied [plaintiff]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Reversed [defendant]. Grounds: 1. While agreeing with plaintiff (on matter of first impression in circuit) that employee need not by disabled in fact to advance claim under "perceived as" disabled prong, employee still had to be "otherwise qualified," and there plaintiff failed to state prima facie case because she was terminated for her inability to work with others, insubordination and Thereats of violence.2. Even assuming plaintiff alleged retaliation, plaintiff presented no genuine issue of material fact regarding causal link, because Record firmly reflects valid reason for termination. 3. Plaintiff failed prima facie standard for termination claim (cannot prove she was performing satisfactorily), and presented insufficient evidence that alleged harassing behavior was severe or pervasive or motivated by sex.

Chavis v. Clayton County school Dist., 300 F.3d 1288 (11th Cir. 2002). Panel: EDMONDSON, Dubina, Cox. Claims on Appeal: Civil rights conspiracy claim under §1985(2). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: On issue of first impression, §1985(2) supports cause of action for allegation that African-American teacher was demoted in retaliation for appearing at a criminal proceeding to testify on behalf of white co-worker accused of sex crime.

EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 89 FEP 522 (11th Cir. 2002). Panel: Per Curiam [Tjoflat, Cox, Bright]. Claims on Appeal: Title VII failure to hire (sex). Disposition Below: Judgment after a bench trial; back pay order [plaintiffs]. Outcome on Appeal: Affirmed as to two servers [plaintiffs]. Grounds: Four women alleged that they were deterred from applying for work as servers. Because hiring is a "discrete act" covered by National Railroad Passenger Assoc. v. Morgan, EEOC could not use continuing violation doctrine to revive claims by women who fell outside of 300-day limitations period. Alleged failure to meet prima facie burden may be reviewed after bench trial in this case because employer did not present legitimate, non-discriminatory reason for termination; thus EEOC could prevail only by raising prima facie inference of discrimination. EEOC did not meet burden as to two deterred applicants, whom it failed to prove manifested a real and present interest in applying for jobs during the 300-day window. Two other women, though, testified that they had taken objective steps to attend hiring process at defendant's work site. Both women were also deterred, because owners maintained an unwritten policy of hiring only men (including corroborating testimony by both maitre d's). District court erred in calculating one claimant's back pay by setting hire date too early.

Lubetsky v. Applied Card Systems, Inc., 296 F.3d 1301, 89 FEP 603 (11th Cir. 2002). Panel: BLACK, Edmundson, Cox. Claims on Appeal: Title VII failure to hire (religion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No retaliation established where there was no Record evidence that decision-maker knew of plaintiff's religion.

Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 89 FEP 472 (11th Cir. 2002). Panel: KENNEDY, Anderson, Hull. Claims on Appeal: Race discrimination (statute not specified in opinion). COBRA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff, an African-American sales person, alleged that he was assigned inferior route and was terminated because of race. Comment by co-worker ("we'll burn his black ass") made over two years before termination, where co-worker was not shown to have had significant influence over decision, was not direct evidence of discrimination. Even assuming plaintiff presented prima facie case, he did not rebut legitimate non discriminatory reasons (co-worker statement insufficiently probative; alleged comparable was not similarly situated where plaintiff had a worse performance history).

Shannon v. Bellsouth Telecommunications, Inc., 292 F.3d 712, 88 FEP 1776 (11th Cir. 2002). Panel: WILSON, Black, Carnes. Claims on Appeal: Title VII retaliation . Disposition Below: Judgment after a jury trial; $83,000 damages [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Ninety percent reduction in overtime and assortment of lesser indignities (relatively severe suspension, manager instructed co-workers to shun employee, given fewer amenities and less time off than other employees) constitute "adverse employment action." Record established that overtime embargo began immediately after grievance meeting with manager. Proffered justification for reduction of overtime (more new employees) did not explain 90% decline.

Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 88 FEP 1482 (11th Cir. 2002). Panel: MARTIN, Carnes, Fay. Claims on Appeal: Title VII, AD and ADEA retaliation . Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: On interlocutory appeal, court holds that five employees did not engage in protected activity under anti-discrimination statutes by refusing to execute mandatory arbitration policy.

Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 88 FEP 1281 (11th Cir. 2002). Panel: HUNT, Carnes, Fay. Claims on Appeal: Discrimination (statute not specified in opinion). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant], except for remand on potential injunctive relief. Grounds: Plaintiff's claim was judicially estopped by her failure to amend Statement of Financial Affairs (submitted under oath) in Chapter 13 bankruptcy to include lawsuit filed six months later, and again failed to amend it when he converted it to a Chapter 7 case. Plaintiff's motive to intentionally hide lawsuit could be inferred from fac that it no asset, complete discharge under Chapter 7 would have been impossible if plaintiff forthrightly disclosed potential recovery from lawsuit. Nonetheless, injunctive relief (that would have no dollar value) would not have been disclosed in ordinary course in bankruptcy, so no estoppel of such claims.

Walker v. Prudential Property and Cas. Ins. Co., 286 F.3d 1270, 88 FEP 982 (11th Cir. 2002). Panel: COX, Meskill [GODBOLD, dissenting]. Claims on Appeal: Title VII failure to rehire . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that female claims representatives met prima facie case on claim that they should have been transferred after office closing from Ft. Lauderdale to Orlando), male selected for job had objectively superior qualifications (experience and training) for position. Moreover, Orlando field manager had no obligation to consider the Ft. Lauderdale sales representatives (who had not formally applied of job), while Ft. Lauderdale manager made decision to refer only male based on qualifications; deviation form affirmative action and job posting policy was not probative of discrimination in isolation.

Rojas v. Florida, 285 F.3d 1339, 88 FEP 734 (11th Cir. 2002). Panel: Per Curiam [Edmundson, Carnes, Musgrave]. Claims on Appeal: 1. Title VII termination (sex) and retaliation. 2. Title VII harassment . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Assuming that plaintiff met prima facie case, plaintiff did not rebut legitimate, non-discriminatory reason proffered for termination (performance) by single discriminatory remark decision maker made about another women in other context.2. Unfriendly conditions insufficient to constitute severe or pervasive harassment.

Green v. Union Foundry Co., 281 F.3d 1229 (11th Cir. 2002). Panel: DUBINA, Edmondson, Cox. Claims on Appeal: Title VII race harassment and discrimination . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to file suit within 90 days of receipt of right-to-sue letter. Record showed that case was filed 97 days after mailing of right-to-sue by EEOC, and plaintiff was unable to establish receipt of letter within 90 days (plaintiff could not testify.

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 87 FEP 1209 (11th Cir. 2002). Panel: TJOFLAT, Birch, Vining. Claims on Appeal: Title VII race harassment . Disposition Below: Judgment after a jury trial; $25,000 compensatory damages, $50,000 punitive damages [plaintiffs]. Outcome on Appeal: Affirmed [plaintiffs], except punitive damages vacated. Grounds: Judgment as a matter of law properly denied, where Record established that co-worker used racial epithets at plaintiff 3-4 times daily, in an intimidating manner (berating or baiting plaintiff), plaintiff tried to get co-worker's own supervisor to end abuse and co-worker's supervisor witnessed abuse but took no steps to end it. Although plaintiff did not specifically complain to supervisor about campaign of ethnic slurs, supervisor was present often enough to take actual notice of harassment. Supervisor was sufficient high up in management for his observations to be imputable (as constructive knowledge) to the employer. Moreover, employer's anti-discrimination policy was neither comprehensive nor effective: no member of management was familiar with it, it was missing from plaintiff's own personnel file and it was not posted at workplace. Because company did not have actual notice of employee's complaint, however, punitive damages were vacated.

                                                                      




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November 01, 2010
Stiefel v. Bechtel Corp., No. 09-55764 (9th Cir. Nov. 1, 2010); Kepas v. eBay Inc., No. 09-4200 (10th Cir. Nov. 2, 2010)

September 29, 2010
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