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Eleventh Circuit

Updated to July 8, 2019

Eleventh Circuit

Lewis v. City of Union City, Ga., 918 F.3d 1213 (11th Cir. 2019). Panel:  NEWSOM, E. Carnes, Tjoflat, Marcus, Wilson, W. Pryor, Jordan, Branch, Grant [ROSENBAUM, Martin, J. Pryor, dissenting in part]. Claims on Appeal: Title VII, § 1983 and § 1981 termination (race, sex). ADA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: The issue of "similarly situated" must be resolved at the prima facie stage, before the employer proffers its explanation for the adverse decision. Because "establishing a prima facie case of discrimination entitles the plaintiff to judgment-to victory-if the employer either can't, won't, or doesn't provide a nondiscriminatory explanation for its actions," it is therefore fitting that the plaintiff at that stage "must show a potential 'winner'-i.e., enough to give rise to a valid inference that her employer engaged in unlawful intentional 'discrimination.'" Thus, "[a]bsent a qualitative comparison at the prima facie stage-i.e., without determining whether the employer treated like cases differently-there's no way of knowing (or even inferring) that discrimination is afoot." Court weighs the parties' proposed "similarly situated" standards and rejects them both. "In assessing the parties' positions-and adopting our own-we take as our lodestars (1) the ordinary meaning of the term 'discrimination' and (2) the twin policies that the Supreme Court has said animate the McDonnell Douglas framework's prima facie case," i.e., to eliminate "the most common nondiscriminatory reasons" for an employer's conduct, and to provide a sound basis for an "inference of unlawful discrimination." Court adopts the "similarly situated in all material respects" standard, and provides a (non-exhaustive) checklist of possible material connections: "engaged in the same basic conduct (or misconduct)," "subject to the same employment policy, guideline, or rule," "under the jurisdiction of the same supervisor," "share [an] employment or disciplinary history."

Hornsby-Culpepper v. Ware, 906 F.3d 1302, 2018 FEP 386 (11th Cir. 2018). Panel: BRANCH, W. Pryor, Anderson. Claims on Appeal: 1. Equal Protection and § 1983 pay (race, sex). 2. Equal Pay Act. 3. Equal Pay Act retaliation. 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 [defendnat]. Grounds: 1. Plaintiff did not present genuine dispute of material fact whether employer's rationale for not granting a salary increase was a pretext for race or sex discrimination. Employer advance three reasons: (1) her higher salary request was significant and came two months after two employees in her department had been laid off due to a budget-mandated reduction in force; (2) the proposed funding source was to transfer funds from a non-salary "professional services" line item, which the County Board of Commissioners frowned upon; and (3) Hornsby-Culpepper was previously terminated as Clerk in 2011. Simply disputing the factual basis of these explanations did not establish pretext. Mere fact that employer approved higher salary requests for at least three white employees during the same time frame does not establish that stated non-discriminatory reasons for not approving her request were false. That three black females in the County Attorney's Office had filed a sexual harassment suit against decisionmaker is irrelevant to plaintiff's case, as she did not allege that she was sexually harassed. 2. Proffered reasons above for decision to pay plaintiff less than male counterpart were based on above reasons, which are factors other than gender. 3. Plaintiff failed to show that selection panel's legitimate reasons for not selecting her for Associate Judge position were pretext for retaliation. Although she maintains that her non-selection was retaliation because decisionmaker and manager who plaintiff made complaint about were friends, she offered no evidence in support of this speculative assertion. With respect to termination, employer presented several non-discriminatory reasons: (1) there had been many complaints plaintiff's performance during her two-year second tenure as Clerk; (2) decisionmaker believed plaintiff failed to redirect or train her staff effectively; and (3) she did not think plaintiff was "a good fit" to implement Canyon Solution's recommended changes for improving the Clerk's Office.

Smelter v. Southern Home Care Services Inc., 904 F.3d 1276, 131 FEP 9 (11th Cir. 2018). Panel: J. PRYOR, W. Pryor, Anderson. Claims on Appeal: 1. Title VII and § 1981 harassment (race). 2. Title VII and § 1981 termination (race) and retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Genuine dispute of material fact whether plaintiff suffered severe or pervasive harassment by co-workers, and whether employer had notice. Plaintiff presented sufficient evidence about subjective perception of harassment. While employer argued that she could not have perceived her work environment as hostile because she failed to report her co-workers' racist comments to her supervisors, an employee's failure to report harassment is not dispositive of whether the employee perceived the environment created by the harassment as hostile or abusive. On objective prong, plaintiff provided eight examples of racist remarks that she overheard or that were directed at her; she also testified that she heard racist comments "every day" during her two-month employment. Culminated in plaintiff being called "dumb black n****r." "[T]he use of this word is particularly egregious when directed toward a person in an offensive or humiliating manner." The other comments involved "obvious racial slurs conveying highly offensive derogatory stereotypes of black people," i.e., "monkey," "lazy," "back to Africa." Claim does not fail simply because she provided little evidence of the impact of the harassment on her job performance. Considering the totality of the circumstances, particularly the daily frequency and extreme severity of the harassment, including racist remarks made directly to the plaintiff, plaintiff made out genuine dispute. Record also presented genuine dispute about whether management knew about harassment; testimony would enable a reasonable jury to conclude that supervisor overheard at least some of the racist comments, because supervisor testified that people at the workplace thought that the comments were funny. 2. District court erred in holding that plaintiff waived termination claim in deposition by testifying that one of her managers did not profile her because of race. That manager did not make decision to terminate her. Also, plaintiff did not make unequivocal statement conceding the ultimate issue regarding her discrimination claim. Moreover, race-based termination is always actionable, even if motivated by factors other than the supervisor's personal racism. Nevertheless, court concludes that plaintiff has failed to cast sufficient doubt on employer's first (of several) reasons for termination-that she was a substandard employee who was still in her probationary period. Plaintiff argues thatt any shortcomings were the company's fault, not hers, i.e., lack of training and understaffing at the office, both of which were beyond her control. But there is no evidence that plaintiff was denied support because of race, and in any event, there was ample evidence that the employer tried to help plaintiff at work. Argument that she was disciplined more severely than her white co-workers who experienced similar performance problems fails because white employees were not comparable. Two were never accused of instigating an altercation with a co-worker, while the third - who did engage in an altercation with plaintiff - had longer tenure and manager concluded that plaintiff was to blame.

VACATED FOR REHEARING EN BANC Gogel v. Kia Motors Mfg. of Georgia, Inc., 904 F.3d 1226, 130 FEP 1869 (11th Cir. 2018). Panel: MARTIN, O'Scannlain [J. CARNES, dissenting in part]. Claims on Appeal: 1. Title VII retaliation. 2. Title VII termination (sex, national origin). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Employer's principal argument was that "when a human resource employee ... helps another employee file a discrimination charge, that conduct is unreasonable and not protected activity." The court disagrees. "[N]ot all opposition to employment practices by human resource employees is unreasonable. Indeed, prohibiting all such opposition by human resource employees would be contrary to the text of Title VII." The court applies "the same case-by-case balancing test for human resource employees that we use for any other employee, to determine whether the manner of their opposition was reasonable." The panel majority notes that an employer needs to be able to rely on its HR staff to loyally carry out EEO policies, "to achieve voluntary compliance with Title VII," and that when "when a human resource employee handling another employee's complaint deviates from an internal reporting procedure, the manner of the HR employee's actions may be unreasonable." On the other hand, "[a] human resource employee who tries to resolve complaints internally but fails due to the inadequacy of her employer's procedures furthers the 'purpose of the statute and the need to protect individuals asserting their rights' by going outside the employer's internal procedures." Thus, "sometimes striking that balance will require accepting an employee's opposition to discrimination as protected activity where the employee has stepped outside the bounds of work rules to do so." Jury could find that plaintiff's opposition was reasonable. Despite plaintiff Gogel's attempts to take Kia employee Ledbetter's original complaints to management, she was rebuffed and told not to investigate. "In addressing Ms. Ledbetter's complaint, Ms. Gogel tried to use Kia's internal framework, but [executive] Mr. Jackson forbade Ms. Gogel from investigating. And soon after she was secretly authorized by Mr. Kim to conduct an investigation into the relationship, he told her to stop the investigation and destroy any notes that she had taken." At that point, a jury could find that "Kia's internal framework was exhausted." Gogel gave Ledbetter the name of a lawyer only after years of not getting the company to take her allegations seriously. "Thus, applying the balancing test ... and viewing the evidence in the light most favorable to Ms. Gogel, we conclude that the manner of her opposition was reasonable and her conduct was protected activity." 2. "[T]he record strongly indicates that Kia fired Ms. Gogel for assisting Ms. Ledbetter with her charge. Although this evidence supports Ms. Gogel's retaliation claims, none of it shows the real reason for her firing was gender or national origin discrimination."

Batson v. Salvation Army, 897 F.3d 1320 (11th Cir. 2018). Panel: J. PRYOR, Rosenbaum, Ripple. Claims on Appeal: 1. ADA reasonable accommodation. 2. ADA retaliation. FMLA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. No evidence that plaintiff required the travel and telecommuting accommodations at any point before she was fired. "We agree with Batson that the record establishes TSA's intent to deny her accommodation, but without evidence of a specific instance in which she needed an accommodation and was denied one, she cannot establish a failure to accommodate." 2. Plaintiff did not forfeit the ADA retaliation claim by failing to check the "retaliation" box on the EEOC charge. "Batson argues that her ADA failure to accommodate claim is inextricably linked to her ADA retaliation claim, because her accommodation request was the basis for TSA's retaliation against her, and her termination, mentioned in the Charge, was the specific form the retaliation took. Given this link, an EEOC investigation of Batson's failure to accommodate claim would have 'at least in some fashion' uncovered Batson's retaliation claim." On the merits, there is a genuine dispute of material fact about pretext. "Boalt, the decisionmaker, offered two reasons for rejecting Batson for the Senior Auditor position. First, she identified as 'the primary reason' for her decision that Batson performed poorly in the interview ... Her second reason was concern about Batson's 'recent performance issues' as the Audit Manager, 'as reported by Duracher,'" the Audit Manager who was plaintiff's direct supervisor. The first of these reasons was contradicted by evidence that Boalt herself had already decided not to hire plaintiff before the interview, writing in an email that "[i]t appears we have painted ourselves into a corner" in the process, wanted other candidates to examine and pleading "[s]o we have to hire her?" Boalt also asked multiple questions about Batson's health and fitness. (Observers contradicted each other about Boalt's demeanor at the interview, which some saw as hostile.) As to the second reason, there was a decided split between the performance issues (some missed deadlines) and the consistently excellent reviews she received throughout her tenure from two levels of management. "Lastly, undermining both of Boalt's explanations, following the interview, Boalt sent ... an email stating that Batson had been 'pretty combative' and that Boalt was inclined to recommend against hiring her, but 'need[ed] to think through the rationale.'" A reasonable jury confronted with these contradictions could hold that the failure to transfer may have been illegally motivated.

Center v. Sec'y, Dep't of Homeland Security, 895 F.3d 1295 (11th Cir. 2018). Panel: W. PRYOR, Hull, J. Carnes. Claims on Appeal: Rehabilitation Act demotion and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Retaliation claim waived on appeal. The Compensation Act is not an exclusive remedy for all claims related to an injured federal employee and does not foreclose judicial review of a complaint of disability discrimination under the Rehabilitation Act, so it was error to dismiss the case on subject-matter jurisdiction grounds. But it was properly dismissed on the merits, because there is no genuine dispute of material fact on pretext: plaintiff concedes that he was unable to perform the duties of his former position when he returned to work in 2009, so court cannot draw an inference of discrimination from the decision of the agency to assign him to a different role. Even if the assignment was initially in error, it was quickly corrected.

Wilcox v. Corrections Corp. of America, 892 F.3d 1283 (11th Cir. 2018). Panel: BRANCH, Tjoflat, Rosenbaum. Claims on Appeal: Title VII harassment (sex). Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No evidence that company had knowledge of co-worker harassment where plaintiff testified that she never reported the hugging, while the other evidence of hugging in the record does not support the inference that the hugging was widespread or that others considered it offensive. She also never reported the co-worker's intimidating conduct to the company, and the record contains no evidence that it should have known about it at the time. Company had anti-harassment policy and plaintiff did not invoke it. Company also took appropriate remedial measures: company ordered alleged harasser not to be around plaintiff immediately when it learned about her complaint, and it fired the harasser two weeks after the investigator interviewed plaintiff and learned of her other complaints against him.

Jefferson v. Sewon America, Inc., 891 F.3d 911, 130 FEP 1567 (11th Cir. 2018). Panel: W. PRYOR, Carnes, Corrigan. Claims on Appeal: 1. Title VII and § 1981 transfer (race, national origin). 2. Title VII and § 1981 retaliation. 3. Title VII termination (race, national origin). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Rejects constitutional argument that summary judgment violates the Seventh Amendment. Denial of transfer could be found an adverse employment action. Plaintiff "explained that the new job included 'responsibilities and duties' such as 'setting up new hardware,' 'problem-solving with respect to software glitches,' and 'working with the network server.' Indeed, that [manager] administered a preliminary test and that [employer] later insisted that the job required five years of experience and that [plaintiff] was unqualified for the new work-even though she was qualified for her old job-suggests that the position in the information technology department had special responsibilities and carried additional 'prestige.'" The "promise of education and experience in a specific skilled position is a material benefit." Moreover, the alleged statement that manager "wanted a Korean in that position" constituted direct evidence that without more warranted a trial, and thus the district court erred by demanding additional evidence of pretext. Although "at least some of the blame for this error lies with Jefferson because she repeatedly described her evidence as circumstantial, not as direct evidence of discrimination," the court held this did not matter on appeal: "parties cannot waive the application of the correct law or stipulate to an incorrect legal test." 2. A complaint about discrimination is protected if the plaintiff could "reasonably form a good faith belief that the alleged discrimination existed," and "report that [amanger] stated an intent to hire a Korean could have reasonably led Jefferson to conclude that racial discrimination was at play." In addition, that there was a genuine dispute of material fact about causation, based on (1) "the suspicious timing of the termination" (a week after the complaint); (2) the manager's testimony that testified that she had never "filled out this type of [evaluation] for anyone else" or "reprimanded anyone else for" the same kinds of issues cited in her evaluation of plaintiff; and (3) the testimony that terminating an employee without warning or progressive discipline was the unusual exception. 3. Finally, the panel affirms summary judgment on the termination claim based on race. Jefferson was fired in substantial part for "going outside the chain of command," which the plaintiff alleged was shorthand for not abiding by Korean values (and that Korean employees could violate this standard). The panel holds that "[w]e see nothing inherently discriminatory about a policy that requires employees to respect corporate hierarchy, and we are not in the business of determining, without more, whether facially legitimate company practices are subtly linked to ethnic or racial groups."

EEOC v. Exel, Inc., 884 F.3d 1326, 130 FEP 1407 (11th Cir. 2018). Panel: J. PRYOR (MOODY, concurring) (TJOFLAT, dissenting). Claims on Appeal: Title VII promotion (sex). Disposition Below: Judgment entered after a jury trial ($25,000 compensatory damages, $1500 back pay and interest, punitive damages of $475,000 vacated) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Jury could credit testimony that male decisionmaker "spoke to female employees less often, acted standoffish toward them, and asked other supervisors to manage them," and specifically with respect to claimant said he "would not put a woman in a management position." Employer argued that decision was based on priority transfer practice ("PTP") to prevent layoff of other employee, but PTP imposed no mandatory hiring and that decisionmaker retained discretion in deciding whether to hire male into position that claimant sought. Punitive damages vacated where decisionmaker was not shown to be upper management (one of 329 general managers, and he oversaw only 25 employees, which amounted to 0.1% of Exel's employees in North America).

Bowen v. Manheim Remarketing Inc., 882 F.3d 1358, 130 FEP 1312 (11th Cir. 2018). Panel: WILSON, Jordan, Rosenbaum. Claims on Appeal: Title VII (sex) and EPA pay. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact where plaintiff's pay was less than predecessor, was consistently well below the midpoint salary for people in her title, and there was evidence of sex bias (2007 and 2009 employee surveys indicating gender discrimination in office, women excluded from certain positions by managers who admitted they would not hired women, company failed to follow up on complaints of discrimination, corporate representative admitted plaintiff was "severely underpaid" compared to her male predecessor, now general manager allegedly harassed female employees by groping them and smacking their buttocks). Under EPA, plaintiff made out prima facie showing, and employer failed to establish as a matter of law that prior salary and prior experience alone supported disparity, where plaintiff remained underpaid: plaintiff "established herself as an effective arbitration manager, prior salary and prior experience would not seem to justify treating her different than the predecessor." Under Title VII, plaintiff raises a mixed-motive claim, and presented sufficient evidence for a reasonable jury to conclude that her sex was at least a motivating factor for the pay disparity between her and her male predecessor.

TITLE VII CLAIM VACATED EN BANC Lewis v. City of Union City, Ga., 877 F.3d 1000, 130 FEP 102, 133 A.D. Cases 1381 (11th Cir. 2017). Panel: KAPLAN, Rosenbaum (TJOFLAT, dissenting). Claims on Appeal: 1. ADA" regarded as" termination. 2. Title VII termination (sex, race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff presented enough evidence to establish that she was "regarded as" disabled by her employer. There were persistent references in the Record to her chronic condition by several departmental employees (principally Assistant Chief), including inquiries about getting medical clearance and the availability of FMLA leave. Although the employer characterized these inquiries as evaluating possible harm to the plaintiff at work, the panel notes an EEOC interpretive guidance (29 C.F.R. § Pt. 1630, App.) that taking "an adverse action because it fears the consequences of an employee's medical condition has regarded that employee as disabled." Also, a genuine dispute about whether plaintiff was a "qualified person." The department asserted she could not perform the essential functions of a Union City detective, which "included being exposed to OC spray and a Taser shock." But "city's written job description for the position of detective nowhere mentions that it is necessary for a detective either to carry or to be exposed to OC spray or a Taser shock .... Further, Ms. Lewis offered evidence that detectives previously were permitted a choice of what nonlethal weapon or weapons to carry. Moreover, neither party disputes the fact that Taser International does not require trainees to receive a shock in order to become certified in Taser use." There was also sufficient evidence to draw an inference of disability discrimination (citing the above evidence that she was, arguably, terminated because of her perceived condition), and that the department could not make out its burden (on summary judgment) on its "direct Thereat" defense. (Lewis failed to present a Record of being actually disabled, though: the only substantial limitations asserted, sleep and "periodic . . . shortness of breath," were held not to be supported with proof of duration or severity.) 2. There was a genuine dispute both on the prima facie case and pretext. Seeking to make the two white men (who had physical-fitness write-up but were given more time to correct) appear different, thus not "similarly situated," the department argued that plaintiff alone was not qualified to work around tasers or OC spray without risk to herself. But plaintiff's doctor never said such a thing, and that even if this were a plausible reason, the information was learned long after her termination and thus "could have played no role in defendants' decision to put her on leave and terminate her." Also, physical requirements were comparable to training requirement: "The certifications simply would have been evidence that Ms. Lewis was physically able safely to carry and use a Taser or pepper spray. Carrying and using those implements were physical requirements that the UCPD claims were essential functions of her job-just as proper balance and sufficient agility were physical requirements that the UCPD regarded as essential functions of the jobs of [white men]." The "test for whether comparators are appropriately considered is whether they are similarly situated in all relevant respects." The relevant axis was physical requirements, and "proper balance and sufficient agility" for the men (a jury could find) are no less physical requirements than the ability to withstand a Taser or pepper spraying. Other facts in the Record sufficient to present a "convincing mosaic of circumstantial evidence." These include (1) the department not informing Lewis when her unpaid leave must end; (2) not warning Lewis that she would be fired upon the exhaustion of accrued leave; (3) giving Lewis no notice that she had to file FMLA paperwork by any specific date to extend here leave. There was also evidence that the department, without cause, mistrusted Lewis's account of her medical condition and believed she was malingering. Court affirms summary judgment on municipal liability under § 1983, because there was no genuine dispute of material fact that Lewis's termination was subject to a meaningful administrative review.

Slater v. U.S. Steel Corp., 871 F.3d 1174, 130 FEP 727 (11th Cir. 2017). Panel: J. PRYOR, Tjoflat, Marcus, Wilson, W. Pryor, Martin, Jordan, Rosenbaum, J. Carnes (E. CARNES, concurring). Claims on Appeal: Title VII transfer, Title VII and § 1981 retaliation and discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court may not infer from the fact of failing to list claim in bankruptcy petition alone that plaintiff intended to "make a mockery of the judicial system." To determine whether a plaintiff's inconsistent statements were calculated to make a mockery of the judicial system, a court should look to all the facts and circumstances of the particular case. When the plaintiff's inconsistent statement comes in the form of an omission in bankruptcy disclosures, the court may consider such factors as the plaintiff's level of sophistication, whether and under what circumstances the plaintiff corrected the disclosures, whether the plaintiff told his bankruptcy attorney about the civil claims before filing the bankruptcy disclosures, whether the trustee or creditors were aware of the civil lawsuit or claims before the plaintiff amended the disclosures, whether the plaintiff identified other lawsuits to which he was party, and any findings or actions by the bankruptcy court after the omission was discovered.

Hicks v. City of Tuscaloosa, 870 F.3d 1253, 130 FEP 683 (11th Cir. 2017). Panel: WILSON, Newsome, Wood. Claims on Appeal: PDA failure to reassign and constructive discharge. FMLA claim (not discussed here). Disposition Below: Judgment after a jury trial ($374,000, reduced by court to $161,319.92 plus costs and attorneys' fees) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: "Multiple overheard conversations using defamatory language plus the temporal proximity of only eight days from when [Hicks] returned to when she was reassigned support the inference that there was intentional discrimination." (Following trial, it was unnecessary for the plaintiff to present comparator evidence because the Court's "job is only to decide if there was enough evidence for the jury to infer discrimination.") On the constructive-discharge claim, jury could have found that the accommodations for breastfeeding that the city offered were so inadequate, that "any reasonable person" in Hicks's position "would have been compelled to resign." The panel also holds that lactation is a "medical condition" related to pregnancy or childbirth, and is thus protected by the PDA. "[I]t is a common-sense conclusion that breastfeeding is a sufficiently similar gender-specific condition covered by the broad catchall phrase included in the PDA .... We have little trouble concluding that Congress intended the PDA to include physiological conditions post-pregnancy. The PDA would be rendered a nullity if women were protected during a pregnancy but then could be readily terminated for breastfeeding--an important pregnancy-related8 'physiological process.'" While noting that the PDA did not require that Hicks receive special accommodations, "the jury found that the City's action in refusing an accommodation afforded to other employees compelled Hicks to resign. In the eyes of a jury, this constituted a constructive discharge, which is effectively an adverse action." Finally, the panel rejects the city's defense (that Hicks did not mitigate her damages by seeking comparable work) and a challenge to the jury instructions.

Boyle v. City of Pell City, 866 F.3d 1280, 33 A.D. Cases 981 (11th Cir. 2017). Panel: FAY, J. Carnes, Goldberg. Claims on Appeal: Rehabilitation Act discrimination. FLS and state law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No obligation for employer to bump incumbent to create desk job for disabled employee. No constructive discharge. Employee testified that he decided to apply for disability-retirement benefits after hearing a rumor that he would be fired, but the existence of an unverified rumor did not render his work environment intolerable.

Stamper v. Duval Co. Sch. Bd., 863 F.3d 1336, 130 FEP 484 (11th Cir. 2017). Panel: W. PRYOR, E. Carnes, Moore. Claims on Appeal: Title VII (race) and ADA discrimination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: EEOC could not restart the running of the limitations period by issuing a second notice of the right to sue under 29 C.F.R. § 1601.19(b) unless the Commission issued a notice of intent to reconsider before the expiration of the original limitations period. Here plaintiff waited two years.

Evans v. Georgia Regional Hospital, 850 F.3d 1248, 129 FEP 1830 (11th Cir. 2017). Panel: MARTINEZ (W. PRYOR, concurring) (ROSENBAUM, dissenting). Claims on Appeal: Title VII harassment (sexual orientation) and retaliation. Disposition Below: Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [defendant]. Grounds: Title VII does not cover sexual orientation as a "protected classification," adhering to Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979). Remanded to allow plaintiff to re-plead as a gender non-conformity/stereotyping claim.

Furcron v. Mails Centers Plus, LLC, 843 F.3d 1295, 129 FEP 1385 (11th Cir. 2016). Panel: SCHLESINGER, Rosenbaum, J. Pryor. Claims on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: 1. District court did not abuse discretion in excluding portions of plaintiff's own affidavit regarding (1) frequency with which alleged harasser "bumped" or "rubbed" against plaintiff, and (2) whether alleged harasser ever touched plaintiff with his erection, where both statements contradict her prior deposition testimony. But court erred in excluding declaration of co-worker who experienced harassment by same individual on unsupported ground that it was immaterial. "[Whatever the reliability of Johnson's sworn statements, no legal basis exists for excluding them as 'largely immaterial' under" FRE401. Nor could testimony be excluded under FRE403 or 404, grounds that (in any event) defendant did not argue. FRE404(b) permits the admissibility of so-called "me too" evidence to prove intent to discriminate and retaliation. Exclusion not harmless because district court denied summary judgment on all grounds except for the "based on sex" requirement, and co-worker declaration. Co-worker testimony that alleged harasser would look at her breasts and buttocks in a sexual manner suggests conduct was based on sex. Case remanded to weigh admissibility of statements. 2. Plaintiff engaged in protected activity by complaining about alleged harassment, noting "nature and severity of the conduct complained of, as well as the content of the complaints themselves." But no genuine dispute of material fact about pretext, where plaintiff was terminated for violation of company's harassment rules (showed picture of alleged harasser's penis to co-workers). No evidence of shifting reasons where separation notice cited taking and displaying picture as reason for discharge.

EEOC v. Catastrophe Mgt. Solutions, 852 F.3d 1018 (11th Cir. 2016). Panel: JORDAN, J. Carnes, Robreño. Claims on Appeal: Title VII hiring (race). Disposition Below: Dismissal for failure to state a claim, FRCP12(b)(6). [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer did not violate Title VII by imposing "no extreme hairstyle" rule on applicant who wore dreadlocks. Title VII only "prohibits discrimination based on immutable traits, and the proposed amended complaint does not assert that dreadlocks - though culturally associated with race - are an immutable characteristic of black persons." (Panel questions why the EEOC did not pursue the action as a disparate-impact claim, i.e., challenging a race-neutral policy with a discriminatory impact on persons of a protected group.) Because Title VII nowhere defines race, nor has the EEOC attempted to define it through a regulation, any such definition must derive from a contemporary 1960s-era meaning, the panel says that "most dictionaries at that time tied 'race' to common physical characteristics or traits existing through ancestry, descent, or heredity." While allowing that the word "race" nowadays expresses sociopolitical and cultural meaning, nevertheless "our possible current reality does not tell us what the country's collective zeitgeist was when Congress enacted Title VII half a century ago." The panel bolsters its reading of "race" with citation to circuit decisions that upheld grooming and English-only policies over race-and sex-discrimination challenges. "Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices."

EEOC v. St. Joseph's Hospital, Inc., 842 F.3d 1333, 33 A.D. Cases 1791 (11th Cir. 2016). Panel: Huck, E. Carnes, Dubina. Claims on Appeal: ADA reasonable accommodation. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: After concluding that the district court correctly held that employee was disabled and otherwise qualified for reassignment to vacancies as an accommodation, panel affirms "district court's holding as a matter of law that the ADA does not mandate reassignment without competition." While reassignment to a vacancy is an accommodation expressly provided under the ADA (42 U.S.C. § 12111(9)(B) ("[t]he term 'reasonable accommodation' may include . . . reassignment to vacant position"), the ADA "does not say how an employer must do that." Panel cites framework of U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), which held that employers under the ADA need not deviate from a collectively-bargained seniority system to accommodate a disabled worker. Panel notes split between Fifth and Eighth Circuits that supposedly uphold such "best-qualified" policies, and Eleventh, Tenth and D.C. that do not. The panel also holds that the 30-day period imposed by employer to look for other work was reasonable as a matter of law, in light of the hospital's willingness to hold the period open if she was still actively engaged in a job search. While there was sufficient evidence to support the jury's verdict that employee was denied a reasonable accommodation, the agreed theory of the case was that proof of good faith vitiated liability. For that reason, the injunctive order could not find support in the jury's defense verdict. However erroneous that theory might be under the statute ("good faith" under 42 U.S.C. § 1981a(a)(3) provides only relief from damages, not liability), a Rule 59(e) motion was too late to correct the mistake.

Williams v. Poarch Band of Creek Indians, 839 F.3d 1312, 129 FEP 1105 (11th Cir. 2016). Panel: SMITH, E. Carnes, Jordan. Claims on Appeal: ADEA termination. Disposition Below:  Dismissed on jurisdictional grounds, FRCP12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant] . Grounds: Defendant has tribal sovereign immunity. There is no evidence that the Poarch Band waived its immunity, either generally or in the present suit, and Congress did not abrogate such immunity under the ADEA.

Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 129 FEP 1031 (11th Cir. 2016). Panel: W. PRYOR, E. Carnes, Tjoflat, Hull, Marcus, J. Carnes [JORDAN, concurring and dissenting] [ROSENBAUM, concurring and dissenting] [MARTIN, Wilson, J. Pryor, dissenting, joined by Jordan and Rosenbaum on Part II]. Claims on Appeal: ADEA disparate impact hiring. Disposition Below:  Dismissal for failure to state a claim, FRCP12(b)(6). [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Under ADEA, applicant for employment cannot sue an employer for disparate impact because the applicant has no "status as an employee" per 29 U.S.C. § 623(a)(2). No deference to EEOC interpretation where statute is clear that section does not apply to applicants. Plaintiff also failed to state basis for equitable tolling on disparate treatment claim. Plaintiff not entitled to equitable tolling because he admitted facts that foreclose a finding of diligence, i.e., he alleged that he did nothing for more than two years between his initial application and the communication from the lawyer. When Villarreal chose to anticipate the affirmative defense, of equitable tolling in his complaint, he bore the burden of alleging facts to support that defense.

Coffey v. Braddy, 834 F.3d 1184 (11th Cir. 2016). Panel: ROGERS, Tjoflat, Marcus. Claims on Appeal: Title VII hiring decree (race). Disposition Below: Motion to show cause denied [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiffs' fifteen-year delay prejudiced City's ability to defend itself and new lawsuit had taken up the cause of fighting racial discrimination in the City's firefighting department, so district court's application of laches against contempt and dissolution of the 1982 consent decree was not abuse of discretion. Fifteen-year delay was not excusable where plaintiffs knew city was not following decree for many years, and Record showed that City was transparent about its rationale for ending the one-to-one hiring (that it believed it met purposes of decree). Decision to cease following decree received wide publicity, so not unfair to impute to applicant pool. Delay unduly prejudiced City's ability to defend itself, because unclear memories and incomplete documents made it impossible to determine whether the City was, in fact, in contempt when it ended compliance in 1992. No evidence that burden of proof on defense was shifted to plaintiffs. Moreover, changes in the law made continued enforcement of the consent decree unlawful and pendency of new lawsuit conflicted with enforcement.

Trask v. Dep't of Veterans Affairs, 822 F.3d 1179, 128 FEP 1849 (11th Cir.  2016). Panel: HULL, J. Carnes, Clevenger. Claim on Appeal: 1. Title VII and ADEA failure to train and reassign (sex). 2. Title VII and ADEA retaliation. 3. Title VII and ADEA 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. Plaintiffs failed to demonstrate that they were objectively qualified to fill the PACT pharmacist positions, fatal to their prima facie case. It is undisputed that one of the objective hiring criteria for the PACT pharmacist positions was the possession of an advanced scope, which they lacked Younger alleged comparable who was allowed to train and obtain advance scope not employed in same program as plaintiffs, and was already working module pharmacist. 2. Reassignment resulted in no decrease in pay or grade, and occurred eight months before EEO complaints. Further, Record demonstrates that the plaintiffs' reassignment to the float pool was a natural consequence of their non-selection for the PACT positions and the elimination of module pharmacist assignments. Neither performance review nor the restrictions on attendance at committee meetings constitutes an adverse employment action. 3. No evidence that comments were severe or pervasive, or motivated by age or sex.

Frazier-White v. Gee, 818 F.3d 1249, 32 A.D. Cases 1247 (11th Cir. 2016). Panel: J. CARNES, Hull, Clevenger. Claim on Appeal: 1. AD and Fla. state law termination. 2. AD and Fla. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant].Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff proposed accommodations - (1) an indefinite extension of her light-duty status, or (2) reassignment to some other, unspecified position - were not reasonable. Plaintiff did not suggest a time frame for when she would be able to resume her full-duty position, and she later admitted that she did not know how much time she needed or whether any amount of time would be sufficient. No full-time, permanent light-duty positions existed. Nor did plaintiff identify a specific, full-duty vacant position she was qualified for and could have done, given her medical condition. Further, plaintiff failed to request reassignment to any vacant positions. Plaintiff responsible for breakdown of interactive process by failing to request reasonable accommodations. 2. Plaintiff did not request accommodation until after already receiving notice of termination, so no causation.

VACATED FOR REHEARING EN BANC Slater v. U.S. Steel Corp., 820 F.3d 1193, 128 FEP 1601 (11th Cir. 2016). Panel: Per curiam (W. Pryor, Scola) (TJOFLAT, concurring). Claim on Appeal: 1. Title VII transfer. 2. Title VII and § 1981 retaliation and discrimination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant].Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff, who is Black, contended that a white woman was a similarly situated employee who was treated more favorably because she (but not plaintiff) had been allowed to transfer service time earned at a different worksite to employer's current worksite to count toward her seniority status. White employee not comparable because she was not a transfer employee. 2. Plaintiff's claims judicially estopped by filing of Chapter 7 petition (later converted to Chapter 13) that failed to list cases as "contingent and unliquidated claims" and said that plaintiff had not been a party to a lawsuit in the last year. Test in New Hampshire v. Maine, 532 U.S. 742 (2001), did not apply to case where the successive cases involve different parties. District court did not err in holding that both testes were satisfied: (1) an inconsistent position taken under oath in the Bankruptcy Court, and (2) advancing an inconsistent position in the District Court with the intent to make a mockery of justice.

Longo v. Seminole Indian Casino-Immokalee, 813 F.3d 1348, 128 FEP 1333 (11th Cir.  2016). Panel: Per curiam (E. Carnes, W. Pryor, Anderson). Claim on Appeal: Title VII discrimination (sex) and retaliation. Disposition Below: Dismissed on jurisdictional grounds, FRCP12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Tribe is federally recognized and entitled to sovereign immunity.

Quigg v. Thomas County school Dist., 814 F.3d 1227, 128 FEP 1334 (11th Cir.  2016). Panel: WILSON, W. Pryor, Gilman. Claim on Appeal: 1. Title VII and § 1983 termination. 2. Title VII and § 1983 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Decision-makers on school board allegedly stated that superintendent position needed a tough "hatchet man" to address school policy implementation-a "guy" that could be sent to individual schools to "handle things; also, other references to needing a man in the position. McDonnell Douglas proof "framework is fatally inconsistent with the mixed-motive theory of discrimination because the framework is predicated on proof of a single, 'true reason' for an adverse action." (Noting split of circuits.) Court adopts the Sixth Circuit's standard, a two-factor examination for summary judgment: "(1) the defendant took an adverse employment action against the plaintiff; and (2) [a protected characteristic] was a motivating factor for the defendant's adverse employment action." Various statements made by board members indicated that sex or gender-based bias was a motivating factor in their votes against her; though not direct evidence, it was sufficient to invoke "mixed-motive" framework. panel also refuses to affirm the judgment on a "same decision" ground, i.e., that plaintiff would have lost her job regardless of sex or gender bias. "Same decision" is a defense on which the employer bears the burden of proof. The panel holds that two out of the five majority voting members could not prove, as a matter of law, that they would have voted against plaintiff regardless of such bias. That issue belongs, holds the panel, to a jury. The panel also reverses summary judgment on individual liability for the same two board members. 2. No genuine dispute that the decision-makers learned about the protected activity (protesting discrimination in a reorganization plan and filing an EEOC charge) only after taking adverse action.

Liebman v. Metropolitan Life Insurance Co., 808 F.3d 1294, 128 FEP 879 (11th Cir. 2015). Panel: Per curiam (E. Carnes, Martin, Thapar). Claim on Appeal: ADEA termination. ERISA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court disregarded O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), which unequivocally held that a replacement worker may still be in the protected class as long as the employee is "substantially younger." Thus, "Weiss is seven years younger than Liebman, and this difference qualifies as substantially younger" under the O'Connor rubric. Also genuine issue whether plaintiff was qualified for the job from which he was discharged. While the Record reflected complaints about the plaintiffs' performance, "Liebman had therefore been in virtually the same position for a total of nine years before his termination. Nine years in the same position, and nearly There decades at the company, is long enough to support the inference that he was qualified for his job." Moreover, Liebman had "received many leadership awards during his 27 years at MetLife. In 2009, 2010, and 2011, his was the top branch for MetLife's Cypress Financial Group." While his performance deficiencies might constitute a legitimate, non-discriminatory reason for termination, that issue is separate from Liebman's prima facie case.

VACATED EN BANC Villarreal v. R.J. Reynolds Tobacco Co., 806 F.3d 1288, 128 FEP 553 (11th Cir. 2015). Panel: MARTIN, Wilson [VINSON, dissenting]. Claim on Appeal: ADEA disparate impact hiring. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff alleged that employer, "[with the assistance of recruiting services ... used a set of 'resume review guidelines' in screening applicants for" Territory Managers. Guidelines tell hiring managers inter alia to target candidates who are "2-3 years out of college" but to "stay away from' candidates with '8-10 years' of prior sales experience." Thus, "[o]f the 1,024 people hired as Territory Managers from September 2007 to July 2010, only 19 were over the age of 40." A decision not to hire was not necessarily communicated to applicants; Villarreal reportedly never received a response to his original 2007 application. While ADEA's statutory liability language (29 U.S.C. § 623(a)) was unclear on the issue: "the plain language of the statute does not make clear whether job applicants like Mr. Villarreal may bring disparate impact claims." It instead defers to the EEOC's regulation that explicitly included hiring under the disparate-impact theory, 29 C.F.R. § 1625.7(c). Regulation extends disparate impact liability to all "individuals within the protected age group." Preamble to the regulation, moreover, "makes clear that the term 'individuals'" as used in the rule "covers both employees and applicants." Court also cites the history that, from the very beginning of the statute's history (when the Department of Labor first enforced it), the agencies have consistently treated the ADEas covering pre-employment tests. On the timing issue, employer's failure to act on Villerreal's application alone did not give him notice of a claim. Tolling is allowed when "the facts supporting a cause of action became apparent or should have bec[o]me apparent to a reasonably prudent person with concern for his or her rights." An older employee who has been fired might not suspect discrimination until they are replaced with a much younger worker. Equitable tolling does not depend on fault by the employer: "there are circumstances other than concealment and misrepresentation which place relevant facts beyond the reach of a reasonably prudent victim of discrimination. In these cases the ultimate question is not whether an employer deliberately hid facts. Rather, we ask whether reasonable prudence would have resulted in the plaintiff uncovering hidden facts earlier." Here, "although Mr. Villarreal applied for a Territory Manager position in November 2007, he alleges that neither the application itself nor any other information available to him described RJ Reynolds's hiring process, the resume review guidelines, or the statistical disparities in the ages of successful applicants." Employer did not even give a definitive "no" to first application. Employee should be permitted to refile his complaint to allege equitable tolling and develop the facts in discovery.

Flowers v. Simpson, 803 F.3d 1327, 128 FEP 212 (11th Cir. 2015). Panel: TJOFLAT, J. Pryor, Moody. Claim on Appeal: Title VII termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While school District's investigation into plaintiff's potential recruiting violations as football coach at another program may have been a pretext for something, but no evidence that it was because of race. Plaintiff also failed to proffer evidence of truly inconsistent/shifting reasons by school District, and allegedly similarly-situated white comparators do not present genuine dispute where intensity and frequency of the recruiting allegations leveled against plaintiff were much greater.

Surtain v. Hamlin Terrace Foundation, 789 F.3d 1239, 127 FEP 833 (11th Cir. 2015). Panel: Per curiam (Tjoflat, Marcus, w. Pryor). Claim on Appeal: Title VII, §1981, ADA, and Fla. state law termination. FMLA claim (not discussed here). Disposition Below: Default judgment denied, complaint dismissed [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court abused discretion not granting Rule 55 default judgment on race discrimination claim by requiring plaintiff to plead McDonnell Douglas prima facie standard instead of "plausibility" standard under Iqbal/Twombly. ADA claim, though, was not plausible: all that was alleged is that plaintiff visited doctor for undisclosed reason and was advised not to return to work until further notice. District court abused discretion not granting Rule 55 default judgment on race discrimination claim by requiring plaintiff to plead McDonnell Douglas prima facie standard instead of "plausibility" standard under Iqbal/Twombly. ADA claim, though, was not plausible: all that was alleged is that plaintiff visited doctor for undisclosed reason and was advised not to return to work until further notice.

Jarvela v. Crete Carrier Corp., 776 F.3d 822, 31 A.D. Cases 313 (11th Cir. 2015). Panel: COX, Tjoflat. Claim on Appeal: ADA termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Replacing 754 F.3d 1283, 30 A.D. Cases 39 (11th Cir. 2014). Truck driver diagnosed with alcoholism not a "qualified individual." Barred from driving under DOT regulations, 49 C.F.R. § 391.41(b)(4), which proscribes anyone with a "current clinical diagnosis of alcoholism." Employer makes final determination of diagnosis; entitled to rely on contractor's diagnosing employee with alcohol dependence seven days before termination.

Pellitteri v. Prine, 776 F.3d 777, 31 A.D. Cases 161 (11th Cir. 2015). Panel: MARTIN, J. Carnes, Black. Claim on Appeal: Title VII, ADA, and § 1983 claims. Disposition Below: Dismissal on immunity grounds denied [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: "County sheriffs" are an arm of the state, and thus protected from damages suits under the Eleventh Amendment.

Lightfoot v. Henry County school Dist., 771 F.3d 764, 30 A.D. Cases 1675 (11th Cir 2014). Panel: HUCK, Wilson, Rosenbaum. Claim on Appeal: ADA retaliation. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: school district and school board were not "arms of the state" of Georgia, and thus, were not entitled to Eleventh Amendment immunity. Nevertheless, on the merits, employee loses ADA claim on the merits. No genuine dispute of material fact that request for intermittent FMLA leave was not protected activity for her ADA retaliation claim. Complaint gave employer no notice that employee was pursuing such a claim; district court did not abuse discretion in refusing to construe complaint to embrace such a claim.

EEOC v. Royal Caribbean Cruises, Inc., 771 F.3d 757, 30 A.D. Cases 1553 (11th Cir. 2014). Panel: Per Curiam [E. Carnes, Restani, Merryman]. Claim on Appeal: EEOC administrative subpoena. Disposition Below: Subpoena not enforced [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Company-wide data regarding employees and applicants around the world with any medical condition, including conditions not specifically covered by the Bahamas Maritime Authority medical standards or similar to charging party's asserted disability, would shed light on his individual charge that he was fired because of his HIV and Kaposi Sarcoma diagnoses. If EEOC intended to pursue pattern or practice, it has ability to file a Commissioner's charge alleging such a pattern or practice that could support a request for that information. Also, there issue of whether EEOC has jurisdiction over the claims of foreign nationals on foreign-flagged ships. Creating split with circuits, holds that responding employer need not prove that compliance would interfere with its normal business operations.

Connelly v. Metropolitan Atlanta Rapid Transit Auth., 764 F.3d 1358, 124 FEP 725 (11th Cir. 2014). Panel: PRYOR, Wood, Edenfield. Claim on Appeal: 1. Title VII and §1981 retaliation (against agency). 2. §1981 reverse-race termination (against individual supervisor). Disposition Below: 1. Judgment as a matter of law [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. No inconsistency in verdicts between defense verdict on discrimination claim and plaintiff verdict on retaliation. 2. Plaintiff failed to establish genuine dispute either by indirect method (he was not replaced, thus no prima facie case), not direct (only evidence of race was supervisor's declaration that she herself was a "black bitch," and employee socialized with African-American employees.

Evans v. Books-A-Million, 762 F.3d 1288 (11th Cir. 2014). Panel: BERMAN, Jordan, Ryskamp. Claim on Appeal: 1. Title VII termination and reassignment (sex). 2. Title VII retaliation. 3. Equal Pay Act. FMLA, ERISA claims (not discussed here). 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. Plaintiff failed to demonstrate prima facie case of gender discrimination with respect to her termination and reassignment because she failed to identify male employee who rejected a reassignment and who were treated differently than she was. 2. No evidence of any protected activity. 3. No prima facie case. With respect to There male division heads within Finance Department, plaintiff did not show that their positions involved "equal work" or required "equal skill, effort and responsibility."

Booth v. Pasco Cty., 757 F.3d 1198, 123 FEP 909 (11th Cir. 2014). Panel: ANDERSON, Martin, Fuller. Claim on Appeal: 1. Title VII and Fla. state law retaliation, employer. 2. Title VII and Fla. state law retaliation, union. Disposition Below: 1. Judgment as a matter of law [defendant]. 2. Judgment after a jury trial ($75K per plaintiff mental distress, $8K per plaintiff punitives) [plaintiff]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. EMS workers, Brown and Booth, filed race-discrimination and retaliation complaints against their captain. Shortly thereafter, the captain was disciplined, and the plaintiffs (along with all coworkers who had submitted written statements on their behalf) were transferred, allegedly to less-desirable locations. Plaintiffs filed charges against the County and the Union with both the EEOC and the Florida Commission on Human Rights ('FCHR'). In the charges, Plaintiffs complained about the actions of their former captain, as well as the County's and the Union's responses to their internal complaints." During litigation plaintiffs filed affidavits expressing concern for their safety in this environment, suggesting that their equipment might be tampered with. In response, the County ordered, on Thereat of termination, that they submit to "fitness-for-duty" exams on the ground that "their fear would render them unable to perform their duties." They were sent for an evaluation and six follow-up visits, after which they were cleared to return to work. Jury awarded $500 per plaintiff in back pay, plus emotional distress damages of $10K and $12K. Judgment as a matter of law reversed. There was sufficient evidence tending to establish that chiefs believed plaintiffs' statements to have a possible basis in reality" and that plaintiffs did not facially meet the conditions for such exams. On plaintiffs' motion for new trial, no error in denying jury instruction on co-worker harassment (claim against county was not brought on hostile work environment theory). Failure to give instruction that cumulative events may be "adverse action" not prejudicial. 2. Union publically posted names of plaintiffs, said their complaint was frivolous and that cost of defense might cause fees to go up. Coworkers subsequently shunned and Threatened them, denied access to overtime and swap days, graffiti. Union argues that adverse action that jury found against them was constitutionally-protected speech, and thus could not be the basis of civil liability. Even if the memo outing the plaintiffs by name might constitute a form of speech, the jury could have found that the false, coercive and private nature of the communication forfeited any constitutional protection. Assumes that judgment was a "content-based" burden on the Union's speech, though it expresses doubts. Nonetheless, memo was more than simply communicating a message. Rather, the Union's speech in the Memo was a "call for retaliation and a Thereat of further retaliation" and that it was "at least arguable that the Union's statements amounted to speech that is incidentally proscribable because it is used to aid in an unlawful act...." Thus, there were ample grounds depriving the memo of First Amendment protection. "First, it is absolutely clear that there is a compelling government interest" in forbidding retaliation against employees who invoked the protection of civil rights laws. "Second, on the basis of our independent review, we conclude that the Memo contained both an implicit 'call for reprisal' and also a Thereat of further retaliation. In the Memo, the Union intentionally invited its members to retaliate against Plaintiffs because Plaintiffs had filed EEOC charges. Implication that the plaintiffs' charges would cause union fees to go up (which turned out to be groundless) "was reasonably perceived as a baseless Thereat of further retaliation if Plaintiffs did not drop their EEOC charges." Finally, "and most significantly, we find strong support for rejecting the Union's First Amendment challenge in the fact that the Union's speech at issue in this case involves a matter of little or no public concern." The panel determines that the jury found liability NOT for the Union's expression of its views on the merits of the plaintiffs' claims, but for the call for reprisal, i.e., that the Union "identified Plaintiffs, invited Union members to retaliate against them for having filed EEOC charges, and Threatened to impose assessments in order to fund the Union's defense." Moreover, the speech was not disseminated publically and did not involve the public in any way. No abuse of discretion denying injunctive relief. Post-judgment interest should be awarded.

Jarvela v. Crete Carrier Corp., 754 F.3d 1283, 30 A.D. Cases 39 (11th Cir. 2014). Panel: Per Curiam (Tjoflat, Cox, Alarcon). Claim on Appeal: ADA termination. FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Truck driver diagnosed with alcoholism not a "qualified individual." Barred from driving under DOT regulations, 49 C.F.R. § 391.41(b)(4), which proscribes anyone with a "current clinical diagnosis of alcoholism." Employer makes final determination of diagnosis. Case leaves open issue of whether an employer could maintain a stricter policy then the minimum prescribed by DOT regulations.

Adams v. Austal, USA, LLC, 754 F.3d 1240, 123 FEP 485 (11th Cir. 2014). Panel: PRYOR, Cox, Rosenthal. Claim on Appeal: 1. AD and Fla. state law termination. 2. ADE and Fla. state law termination. Disposition Below: 1. Summary judgment [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Reversed for seven plaintiffs [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Employees who did not share the same supervisors, department or time period of employment could not rely on incidents of racial harassment that they did not witness to establish objective hostility. District court granted summary judgment as to 13 plaintiffs, denied it to ten (two went to trial). District court applied correct objective standard and properly considered only the harassment that each individual personally experienced. Seven plaintiffs presented sufficient evidence: Hollis (her likeness drawn as graffiti in men's room, Threatening slur, fake masturbation by supervisor, noose, "boy," Confederate flag); Reed (daily slurs, graffiti, supervisor called him "boy" on several occasions, Confederate flags); Pettibone (frequently exposed to graffiti and Confederate flag, noose, use of racial slur by supervisor); Law (graffiti, nose, "nigger"); Bumpers (graffiti, Confederate flag, supervisor called him "blue gums," heard about the noose); Williams (occasional exposure to Confederate flag, graffiti, slur, carving "porch monkey" by supervisor); Laffiette (called "boy" by supervisor, graffiti, photo of noose). Other employees were exposed to the same conditions indirectly or less frequently, and/or did not involve supervisors: Adams ("nigger" a few times over several years, exposed to graffiti that company then painted over); Cunningham (occasionally heard word "nigger"); Pratt (graffiti that was painted over, Confederate flag, overheard slurs); Slay (Confederate flag, some exposure to graffiti); Sullivan (harassment mostly experienced second-hand); Thomas (graffiti and isolated comments). 2. Court did not err in excluding testimony of other witnesses who experienced harassment not seen by two plaintiffs. Such evidence might be admissible to establish notice or failure of employer to take corrective measures, but plaintiffs did not offer it at trial for rebuttal purposes. No error in instructing jury on Faragher defense, despite employer not pleading it in answer (pleading defense of "failure to mitigate" was enough to put plaintiffs on notice) where there was no prejudice. No error in admitting witnesses not previously disclosed where plaintiffs established no prejudice. Jury properly charged with 2005 Eleventh Circuit Pattern Jury Instruction.

Wetherbee v. The Southern Co., 754 F.3d 901, 29 A.D. Cases 1697 (11th Cir. 2014). Panel: WILSON, Bucklew, Lazzara. Claim on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff claiming misuse of information from medical evaluation under 42 U.S.C.§ 12112(d)(3)(C) must prove he is disabled (which plaintiff failed to do here).

Barthelus v. G4S Government Solutions, Inc, 752 F.3d 1309, 122 FEP 1687 (11th Cir. 2014). Panel: Per Curiam (Tjoflat, Wilson, Anderson). Claim on Appeal: Title VII and § 1981 discrimination and retaliation (race, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in requiring that plaintiff establish pretext, when he had alleged (in pro se pleading) that he suffered a pattern of workplace discrimination - denied pay increase, not given an office, not given days off or leave on equal terms with white employees - which could provide inference of discrimination, plus evidence that an independent audit had vindicate the quality of his performance (over a sudden and unsubstantiated negative review).

Mazzeo v. Color Resolutions Int'l, 746 F.3d 1264, 122 FEP 543 (11th Cir. 2014). Panel: JORDAN, Kravitch, Albritton. Claim on Appeal: 1. AD and Fla. state law termination. 2. ADE and Fla. state law termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Under ADAAA, Congress indicated that one of its purposes was to "convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis." 42 U.S.C. § 12101 note. Here, plaintiff presented an affidavit from his treating doctor describing his condition and affirming that "Mazzeo's pain would increase with prolonged sitting and standing." District court erred by applying pre-ADAAA case law holding that because restrictions were transitory, they did not substantially limit his ability to work. Plaintiff's "disc herniation problems and resulting pain-which had existed for years and were serious enough to require surgery-substantially and permanently limited Mr. Mazzeo's ability to walk, bend, sleep, and lift more than ten pounds." 2. District court misapplied case law that applies to true "reductions in force," where the Record bore an inference that the employee was replaced by an individual half his age: "Shortly after his termination, the responsibilities and sales territory of Mr. Mazzeo were combined together with those of a retiring employee, Ms. Lumpkin. The duties of this consolidated position were no different from those of Mr. Mazzeo's original position, except inasmuch as the consolidated position necessarily encompassed a larger sales territory forged from the two constituent positions. CRI, moreover, hired Mr. Kyzer-a younger individual without any sales experience-shortly after Mr. Mazzeo's termination to assume this consolidated position. A reasonable jury, we think, could find that CRI, in giving Mr. Kyzer this consolidated position, replaced Mr. Mazzeo."

Samson v. Federal Express Corp., 746 F.3d 1196, 29 A.D. Cases 771 (11th Cir. 2014). Panel: HUCK, Martin [HILL, dissenting]. Claim on Appeal: ADA hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: While some factors favored the employer on the essential-function issue (the employer's own judgment, the written description, the occasional requirement of test-driving to assure safety, and that FedEx applied it consistently), the balance of the factors do not support FedEx. Nine other employees at the same facility with commercial licenses could perform test-drives, and the need for test-drives was highly sporadic (an average of 3-4 hours a year). Jury could find that test-driving was not an essential function. Moreover, FedEx's voluntary application of Federal Motor Carrier Safety Regulations (FMCSRs) to all employees who might operate a commercial vehicle is not a defense. While it is a defense to an ADA claim that a challenged qualification standard was "required or necessitated by another Federal law or regulation," 29 C.F.R. § 1630.15(e), here it is not required. A technician driving out of the Fort Myers facility was not going to cross state lines and enter interstate traffic.

Kidd v. Mando American Corp., 731 F.3d 1196, 120 FEP 1247 (11th Cir. 2013). Panel: HUCK, Carnes [WILSON, dissenting]. Claim on Appeal: 1. Title VII work assignment (sex). 2. Title VII promotion (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. Grounds: 1. Reassignment of supervisory duties from employee not an adverse employment action where there was no loss in pay or benefits. 2. Although employee did not formally apply for the promotion, she still is entitled to make the claim under the circumstances of this case: "when an employer does not formally announce that it is seeking to hire for a vacant position within the company, the plaintiff need not advance evidence that she applied for the vacant position to state a prima facie case." Where employer never posted or publicized need for auditing experience, absence of such experience does not discount prima facie case. Employee does not create genuine dispute of material fact about having exceptionally superior credentials. Yet employee presented evidence of comments about company preferring Koreans for management. "Rolison informed her that [Mando executives] Kwak and Cheong 'refused to even consider an American candidate' for the assistant accounting manager job. See Kidd Dep. 346:7-12 ('Jerry Rolison told me himself that he had tried to get four Americans to be considered in the position [sic] and he was denied, they were not even allowed to interview'). Kidd also testified that another member of HR (Deborah Stone) told her that 'no matter what . . . there would never be any American management in the company, it would always be Korean management . . . '."Court remands case to district court to decide whether statements by human resource executive constitute party admission under FRE801(d)(2)(D). Agent for company need not be a decision maker. 3. No evidence that decision maker was aware that employee had made complaints of discrimination.

Weatherly v. Alabama State University, 728 F.3d 1263, 119 FEP 1727 (11th Cir. 2013). Panel: DUBINA, Tjoflat, Evans. Claim on Appeal: Title VII harassment (race,sex). Disposition Below: Judgment after a jury trial (verdicts of $392,648.23, $309,453.06, and $376,509.65) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: University waived appeal of post-trial motion by not including it in the notice of appeal. University preserved challenge to front pay awards, but court affirms: while it contended that one plaintiff failed to mitigate her damages because "she willingly accepted a lower-paying job," and another because she enrolled in nursing school, both presented evidence that they attempted to mitigate their damages first by looking for work. One testified that she looked for work from January 2009 until early 2011. The other presented evidence that she looked for a job before enrolling in nursing school and continued to work full-time while going to school part-time. Failure to renew motion to sever after discovery waived argument based on evidence located after first motion.

Stroud v. McIntosh, 722 F.3d 1294, 119 FEP 340 (11th Cir. 2013). Panel: COX, Wilson, Voorhees. Claim on Appeal: ADEA discrimination. Disposition Below: Judgment on the pleadings, Rule 12(c) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While state's removal of claim to federal court waived its Eleventh Amendment immunity to suit in federal court, state still immune from liability under ADEA because it has not waived sovereign immunity against suits by state employees for age discrimination. Noting split in circuits.

Owusu-Ansah v. The Coca-Cola Co., 715 F.3d 1306, 27 A.D. Cases 1583 (11th Cir. 2013). Panel: JORDAN, Tjoflat, Carnes. Claim on Appeal: ADA medical exam, 42 U.S.C. § 12112(d)(4)(A). Disposition Below: Summary judgment [defendant].  Outcome on Appeal: Affirmed [defendant]. Grounds: Employee does not need to be disabled to have standing to bring suit under this section. Employer met its burden of establishing a valid reason for the examination. Call-center manager, confronted with complaints of harassment, appeared agitated, slammed fist on table and allegedly said someone was "going to pay for this." Employer had enough cause for concern to escalate the examination. addition ally, consulting psychologist expressed "significant concerns" to about plaintiff's emotional and psychological stability, and recommended a psychiatric/psychological fitness-for-duty evaluation. Examination was thus job-related (concerning performance of his supervisory role) and met "business necessity," owing to the need for plant safety. Panel rejected the argument that the employer, under an EEOC Guidance on medical examinations, had to prove that the employee presented a "direct Thereat."

DuChateau v. Camp, Dresser & McKee, Inc., No. 12-10838 (11th Cir. Apr. 9, 2013). Panel: PRYOR, Tjoflat, Rothstein. Claim on Appeal: Fla. state law discrimination (pregnancy). FMLA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Where jury found that employee did not suffer adverse employment action from being removed from project, jury finding had "direct estoppel" effect on remaining claims predicated on same alleged adverse action.

Sims v. MVM, Inc., 704 F.3d 1327, 117 FEP 1 (11th Cir. 2013). Panel: ANDERSON, Dubina, Carnes. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While the circuit continues to recognize the use of McDonnell Douglas in ADEA cases, notwithstanding Gross, Employee still failed to present a genuine issue of fact with respect to pretext, where employer was engaged in economically motivated RIF and presented no evidence that decision-maker possessed any age bias. Court questions whether to apply cat's paw analysis to ADEA claim, where statutory language differs from the USERRA interpreted in Staub. Even assuming that it does apply, though, decision-maker did not rely on allegedly-biased subordinate manager's assessment but engaged in months' long process where he exercised own judgment, and input from several other managers pointed also to firing the plaintiff.

Kragor v. Takeda Pharmaceuticals America, Inc, 702 F.3d 1304, 116 FEP 1483 (11th Cir. 2012). Panel: JORDAN, Tjoflat, Carnes. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: When the employer's actual decision maker, after terminating an employee for misconduct (or the appearance of misconduct), says without qualification that the employee is exceptional, did nothing wrong, did everything right, and should not have been fired, that contradiction-when combined with a prima facie case - is enough to create a jury question on the ultimate issue of discrimination.

Ross v. Jefferson Co. Dep't of Health, 695 F.3d 1183, 116 FEP 6 (11th Cir.  2012). Panel: Per Curiam (Hull, Pryor, Fay). Claim on Appeal: 1. ADA reasonable accommodation. 2. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Department was state agency whose authority, budget and administration originate with the state. Failure to name individual officer waived Ex parte Young relief.2. Employee waived claim in deposition by unequivocal disavowal of race discriminatory motive.

Seff v. Broward Co., 691 F.3d 1221, 26 A.D. Cases 1153 (11th Cir. 2012). Panel: BLACK, Marcus, Evans. Claim on Appeal: ADA "wellness" program. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Wellness program (requiring the taking of basic medical information), even if not an express term of employer-based insurance policy, falls within safe harbor of insurance exception to ADA, 42 U.S.C. § 12201(c)(2).

Ramirez v. Secretary, DOT, 686 F.3d 1239, 115 FEP 711 (11th Cir. 2012). Panel: VINSON, Edmonson, Wilson. Claim on Appeal: Title VII pay (race). Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: While federal sector complaints of discrimination must be raised with the agency EEO Counselor within 45 days, EEOC held that period was excused where it found "nothing in the Record to show that [Ramirez] either knew or should have known the time limits for initiating the EEO process following a discriminatory event." Agency forfeited (waived") the timing argument by not taking an appeal of the EEOC administrative decision on the timing issue. If the EEOC determines that a discrimination claim is timely (or, at least, that there is a valid and adequate reason to excuse its untimeliness), and agency accepts that determination and proceeds to investigate and attempt conciliation of the claim, that should put the timing issue to rest.

Jones v. UPS Group Freight, 683 F.3d 1283, 115 FEP 278 (11th Cir. 2012). Panel: RIPPLE, Carnes, Pryor. Claim on Appeal: Title VII and § 1981 harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court properly excluded evidence of harassment (i.e., a statement that Jones made, in an email, advising the company that he was subjected to many racist remarks) both on hearsay grounds and because it supposedly contradicted his deposition testimony. The evidence of bananas being thrown on truck while parked was admissible, as - despite the absence of a confessed racial purpose for littering plaintiff's truck - the cultural context of these incidents made their purpose clear enough to present to a jury: "[A] discriminator may conjure up images of monkeys by using items associated with monkeys, such as their stereotypical food of choice, the banana. When a race claim is premised upon the presence of bananas, which requires us to infer that the person who placed the bananas was evoking a racial slur, we must, of course, be cognizant of the surrounding circumstances. People commonly eat and discard bananas, in the workplace and elsewhere, without any racial motivation . . . Unfortunately, some people do use bananas to communicate racial slurs." Combination of events presents genuine issue of material fact constitute severe or pervasive harassment: employee witnessed There employees wearing Confederate shirts or hats, all on the same day; reasonable jury could also conclude that it was no coincidence that There employees happened to come to work wearing clothing bearing the Confederate flag on the same day and around the same time that the bananas began to appear on plaintiff's truck with greater frequency. Within a week of his meeting, plaintiff was confronted by two yardmen about that meeting; the yardmen approached him at night, and one of them held an object that could be perceived as a weapon. Yardmen were among those Mr. Jones had seen wearing Confederate-decorated attire. This could be perceived as 'physically Threatening,' an important factor in our hostile work environment analysis. Moreover, shortly after this encounter, Mr. Jones again found bananas on his truck.

Gowski v. Peake, 682 F.3d 1299, 115 FEP 163 (11th Cir. 2012). Panel:Per curiam (Edmundson, Kravitch, Farris). Claims on Appeal:Title VII retaliatory harassment. Disposition Below:Judgment after a jury trial (plaintiff Gowski $250,000 in emotional damages and $16,000 in lost wages; plaintiff Zachariah $1,000,000 in emotional damages, remitted to the $300,000 cap, and $90,000 in lost wages; injunctive relief) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiffs won verdict that they suffered retaliation, but the Secretary won affirmative defense that agency would have taken the same action in the absence of protected activity. Same plaintiffs won retaliatory hostile work environment claims. Court awarded equitable relief: "(1) prohibiting any retaliatory practices; (2) preventing the Secretary from taking any disciplinary action against the doctors for There years unless approved by independent review; (3) ordering the VA staff to participate in discrimination; workshops and post the verdict; (4) removing the doctors' disciplinary files and preventing their use in any further disciplinary action; (5) ordering that the doctors be appointed to addition al hospital committees; (6) ordering that Gowski be placed back on the rotation for duty assignments and be permitted to obtain the necessary credentials and privileges to do so; and (7) ordering that Zachariah be permitted to continue her research." Court holds (as a matter of first impression in the circuit) that Title VII supports a claim for retaliatory harassment. Same-decision finding in favor of the Secretary on retaliation did not negate liability under the harassment claim, even if defense precluded liability for each of the acts individually. Sufficient evidence in the Record to support harassment. Testimony of direct retaliatory intent was well-known and continued over a period of years. Plaintiffs targeted with a campaign to force them to resign by limiting their privileges and their access to positions within the hospital. They were removed from committees and projects, prohibited from conducting research, reassigned to different wards, and given low proficiency ratings. Other doctors testified to the scheme, with some admitting that they were afraid to testify for fear of retaliation. Regarding injunctive relief, court did not abuse its discretion when it prohibited any retaliatory practices, instructed that the verdict be posted, prevented the Secretary from taking any disciplinary action against the doctors for There years unless approved by independent review, and ordered administration and staff to participate in discrimination workshops. Remaining relief ordered by the court vacated owing to jury's finding on the same-decision defense.

Hamilton v. Southland Christian school, Inc., 680 F.3d 1316, 114 FEP 1633 (11th Cir. 2012). Panel: CARNES, Martin, Jordan. Claims on Appeal: PDA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employer waived "ministerial defense" under recently-decided Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012), by failing to raise it, and also by admitting that employee was "non-ministerial." Employee - who became pregnant with her fiancee before her wedding - created genuine issue of material fact by direct evidence that when she was fired, director of school said during meeting that she had sinned by engaging in premarital sex and "there are consequences for disobeying the word of God." Although employer claimed she was fired for not offering an apology, there was conflicting testimony whether such an apology had been offered.

Holland v. Gee, 677 F.3d 1047, 114 FEP 1449 (11th Cir. 2012). Panel: MARTIN, Hill, Ebel. Claims on Appeal: PDA termination. Disposition Below: Judgment after a jury trial ($80,000 in back pay, vacated; $10,000 emotional damages) [plaintiff]. Outcome on Appeal: Affirmed and back pay reinstated [plaintiff]. Grounds: Female computer technician, after she announced her pregnancy, was transferred to "Help Desk," described as "less technical and more administrative," as well as categorized at a lower pay grade. decision maker testified at trial that "I felt it was - it was to be nice and to give Lisa desk job. Concerned [sic] with her pregnancy was part of my reasoning. It was not the official reasoning, but it was certainly part of what I felt was - was right." The jury award $80,000 in back pay and $10,000 in compensatory damages. On the sheriff's motion for judgment as a matter of law, the district court upheld the verdict on liability, but vacated the back pay award on the alleged ground that she would have been terminated based on "after-acquired" evidence. Verdict affirmed. Jury could have disbelieved the proffered reason that, according to Chief Deputy's testimony, there was a "series of problems" that went "back literally, uh, well over a year," that there were "problems with her work performance." There was also an issue about whether Holland may have refused certain assignments because of medical restrictions owing to her pregnancy, and issue about her employment (vs. contractor) status. district court erred in vacating the back pay award. The district court's reliance on the after-acquired evidence rule was error, the panel concludes, because the sheriff never plead it as an affirmative defense or argued it at trial. Moreover, apart from the waiver, the after-acquired defense did not apply because the employee had not engaged in misconduct.

Walden v. Centers for Disease Control664 F.3d 883, 114 FEP 102 (11th Cir. 2011). Panel: SEYMOUR, Tjoflat, Wilson. Claims on Appeal: Free Exercise, RFR and Title VII (religion) non-renewal and layoff. First Amendment/RFRA claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Private employer terminated counselor after federal agency with which it contracted complained that she refused to counsel couples in same-sex relationship owing to religious objections to homosexuality. Responding to agency's request under terms of contract as a legitimate, non-discriminatory reason. No Title VII support for a reasonable accommodation; she was accommodated to the fullest extent possible by relieving her from duties counseling couples which might conflict with her views, and allowing her to seek other employment with the same company. Though there were open positions, plaintiff did not apply for any of them. Not required to actually transfer her to a non-counseling position as an accommodation.

Ash v. Tyson Foods, Inc., 664 F.3d 883, 114 FEP 102 (11th Cir. 2011). Panel: CARNES, Pryor, Dowd. Claims on Appeal: § 1981 promotion. Disposition Below: Judgment after a jury trial ($35,000.00 back pay, $29,049.33 back pay interest, $300,000.00 mental anguish; award of $1,000,000 in punitive damages vacated) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: There is sufficient evidence to support the liability verdict. While the employer asserted that it did not promote employee because his plant had been performing poorly, there was ample evidence that this reason was pretextual. Employee presented evidence that the plant where he was manager was not performing as poorly as Tyson presented it to be, and that employee who was promoted instead had come from another plant that was performing so poorly it had been closed. There was also evidence that the white employee who was promoted lacked the posted qualifications for the job and that Hithon had greater (up to 13 years more) relevant experience. There was background evidence that management was hostile to African-Americans, specifically a reference to the plaintiff - by one of the managers - as "boy." In combination with the rest of the evidence, this statement supported an inference of discrimination, especially (as instructed by the Supreme Court's opinion) in light of the "context, inflection, tone of voice, local custom, and historical usage." Ash, 546 U.S. at 456. Lay testimony of the plaintiff, his spouse and a human resources employee (who told employee that he would not be promoted) supported the full $300,000 award. "Hithon [testified] that the denial of the promotion had caused him to become physically ill: he could not eat or sleep; he was nauseated; he had chest pains, digestive problems, and numbness in his arm. He lost about 40 pounds between July and November 1995. He testified that it was 'extremely degrading' to train Dade for the job that he had wanted for himself. He lost his self-esteem. Co-workers asked Hithon why he did not get the job and they made jokes about what had happened." Punitive award was properly vacated, based on the Record that the biased decision maker was relatively low in the company hierarchy, the employee did not otherwise bring the situation to the attention of upper-management and that employer's supposedly maintained an anti-discrimination policy, thus entitling it to prevail on a Kolstad good-faith defense.

Glenn v. Brumby, 663 F.3d 1312, 113 FEP 1543 (11th Cir. 2011). Panel: BARKETT, Pryor, Kravitch. Claims on Appeal: § 1983 termination (sex). Disposition Below: Summary judgment for plaintiff [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiff, formerly employed by the Georgiassembly's Office of Legal Counsel, announced the intent "to transition from male to female under the supervision of health care providers." Plaintiff terminated; direct supervisor stated that "Glenn's intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make Glenn's coworkers uncomfortable." terminated in violation of her Equal Protection rights, citing both her status as a transsexual and her related medical condition (Gender Identity Disorder or "GID"). The district court granted summary judgment to defendant on the GID claim, but to plaintiff on the gender claim. Court affirms summary judgment to the employee on the gender discrimination claim, and does not address the disability-discrimination claim. The panel analyzes the Fourteenth Amendment sex-discrimination jurisprudence of the Supreme Court, and also considers Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a Title VII case. It holds that discrimination on account of sex or gender stereotyping runs afoul of the Constitution: "A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. . . . There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms." Court cites authority from the Sixth and Ninth Circuits, and several federal district courts, that supported claims by employees who identified as transsexuals. On the Record presented, the panel finds ample direct evidence that the employee was terminated because of gender stereotyping, and that the employer lacked any persuasive justification/governmental interest in firing employee. Though the Record contained one justification advanced by the state (avowed concern about the use of public washrooms), this was offset by the fact that the OLC had single-occupancy washrooms, anyway. "Brumby has advanced no other reason that could qualify as a governmental purpose, much less an 'important' governmental purpose, and even less than that, a 'sufficiently important governmental purpose' that was achieved by firing Glenn because of her gender non-conformity."

Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 112 FEP 1119 (11th Cir. 2011). Panel: TJOFLAT, Carnes, Reavley. Claims on Appeal: Title VII and § 1981 termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee presented genuine issue of material fact whether he was singled out for termination under "zero tolerance" anti-harassment policy, which (among other things) banned the transmission of racial or ethnic slurs over company email. Employee was a white manager who was terminated, who received an email of a racial "joke," headed "Top Ten Reasons Why There are No Black NASCAR Drivers" and forwarded this email to his supervisor as a joke. Though employer argued that the African-American employees were not comparable because the plaintiff's duty as a manager was higher (to take affirmative steps to prevent a hostile work environment), district court erred in attempting to force the employee through McDonnell Douglas framework. The Record contained sufficient circumstantial evidence of racial intent to support an inference of discrimination. (1) Two African-American employees who were not supervisors were suspended for a comparable infraction (circulating a video "How to Dance Like a White Guy"), while two whites who forwarded the same video were terminated, even though both white and black employees apologized and attempted to mitigate the damage of forwarding the video. Overall, four whites were terminated while two African-Americans were suspended. District court erred in not admitting this evidence under FRE404(b). (2) The panel investigating the violations then put together a "matrix" with the violators' key information, including the nature of the violation and whether they were hourly or supervisory, and (at least initially), race. (3) Employer was under intense legal and media pressure around the same time for how it handled a white supremacist employee who shot several co-workers. " Lockheed had a substantial incentive to discipline white employees more harshly than black employees in the summer of 2005." (4) Although employer eventually fired two African-American managers for "zero tolerance" violations, it was There years after the above events, while this litigation was pending.

Slater v. Energy Service Co., 634 F.3d 1326, 111 FEP 1185 (11th Cir. 2011). Panel: DUBINA, Martin, Hill. Claims on Appeal: Title VII and Fla. state law claims. State law claim (not discussed here). Disposition Below: Dismissed under Fed. R. Civ. P. 12(b)(3) on venue grounds [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not err in dismissing case against one employer based on forum-selection clause, but retaining venue over claims against defendants who were not parties to the contract. Clause was mandatory, agreeing to venue in Richmond, Virginia, and there was no public policy against parallel proceedings or against applying forum-selection clauses to Title VII cases. District court did not err by dismissing rather than transferring under 28 U.S.C. § 1404(a). Though there is a circuit split over how to analyze a forum-selection clause, the statute governs only transfers, not dismissals.

Dixon v. The Hallmark Co., 627 F.3d 849, 110 FEP 1675 (11th Cir. 2010). Panel: COAR, Dubina, Anderson. Claims on Appeal: 1. Title VII termination (religion). 2. Title VII failure to accommodate (religion). 3. Title VII retaliation. FHA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Married couple who managed apartment building, fired for displaying religious art in the realty office (a bible verse), presented genuine issue of material fact on employer's motive. Their immediate supervisor allegedly stated ""You're fired, too. You're too religious," which if credited by a jury constitutes direct evidence of religious discrimination. 2. Employees presented prima facie case of religious discrimination: they held bona fide religious belief in public display of their faith, the couple argued with the supervisor over her order that they remove the offending work from the wall (and thus employer knew about conflict between the order to remove the art and the plaintiffs' beliefs), and they were discharged for not carrying out the order to remove the art. Claim remanded for resolution of reasonable accommodation and undue hardship issues. 3. Employees could not have possessed an objective belief that refusing order to remove religious artwork was a protected activity under Title VII.

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 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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