U.S. Supreme Court
Case No. 18-272
February 25, 2019

By a fairly short per curium decision, the Supreme Court vacated the notable majority decision of the en banc Ninth Circuit court, concluding that the issuance of the decision written by and necessarily counting the vote of Judge Reinhardt, who had died shortly before its issuance, was inconsistent with 28 U.S.C. § 46(c).

Rizo sued her employer alleging pay discrimination in violation of the Equal Pay Act. Her salary at hire was determined by an employer procedure that set salaries solely by reference to prior salary. The district court denied summary judgment on the employer’s factors other than sex defense, but certified the case for an interlocutory appeal. The Ninth Circuit panel reversed, concluding that Kouba v. Allstate Insurance Co. , the then-controlling circuit precedent, precluded the district court’s per se rejection of the prior salary as a defense. The Ninth Circuit granted rehearing en banc , and held, in a 6-5 majority opinion written by Judge Reinhardt, that as a general rule prior salary, either alone or in combination with other factors, cannot constitute a factor other than sex. The other five judges, in three different concurrences, disagreed with at least the holding that prior salary cannot in some circumstances be a factor other than sex in combination with other factors. The opinions were issued, however, eleven days after Judge Reinhardt died.

Relying on an earlier decision which concluded that for purposes of 28 U.S.C. § 46(c), a case is “determined” at the time it is decided, the Supreme Court concluded that Judge Reinhardt’s death precluded his participation in the case even though the case had been conferenced, decided, and opinions written prior to his death. “Federal judges,” the Court observed, “are appointed for life, not for eternity.” 
Eleventh Circuit Court of Appeals 
Weekly Update
 March 9, 2019
Published Cases
Case No. 18-10631
March 1, 2019

The Eleventh Circuit affirmed summary judgment for the employer on the plaintiff’s First Amendment speech claim, concluding that the plaintiff failed to establish that she engaged in protected speech because she spoke as an employee rather than as a private citizen. 

King was a contract physician serving as the occupational health director for Polk County. One of her duties was to ensure that county personnel, including firefighters, were medically fit for their jobs. Due to the lack of clearly-established county protocols, King, while following the directives of the county risk manager, got into an ongoing dispute with the equal opportunity administrator over how the medical fitness of one particular candidate would be determined. King had separate meetings with the deputy county manager and county manager to discuss her concerns about the process, during which she raised concerns about public safety and possible reverse discrimination. King was eventually advised that the contract for occupational health director was being put out to bid when time came for renewal. Although she received the highest score from the selection committee, they did not issue a specific recommendation. When King concluded that the county was looking to hire a new provider, she notified the county that she was ending the oral extension of her past contract, resulting in the existing proposals being rejected so that the county could hire a new provider.

King sued contending that the initial decision to bid out the contract was in retaliation for First Amendment-protected speech. The district court granted summary judgment on the First Amendment claims. The Eleventh Circuit affirmed, concluding that King’s speech was not protected by the First Amendment because she did not speak as a citizen but rather as an employee, observing that she “spoke pursuant to her official job duties, the purpose of her speech was work-related, and she never spoke publicly.” Examining the overall content and context of the conversations that included the allegedly protected speech, and relying on Garcetti and its decision in Alves v. Board of Regents , the Court agreed that King’s speech, even as to the issues of public safety and reverse discrimination, was motivated by her concerns about the medical approval process. 
Unpublished Cases
Case No. 17-12281
February 25, 2019

The Eleventh Circuit affirmed the judgment for the employer, entered after a jury verdict in its favor, on Amador’s claims for age discrimination under the ADEA and FCRA. The Court found no error in the trial court’s evidentiary rulings regarding the admission of the employer’s position statement and the testimony of its author, concluding that the trial court acted within its discretion. 

Amador was laid off after a series of changes in his employment assignment, and his inability to obtain a new position after a temporary assignment expired left him without a job. The employer’s in-house counsel prepared a position statement in response to Amador’s charge of discrimination. At trial, Amador sought to introduce the position statement as an exhibit and call the author as a witness. The trial court denied the efforts, concerned that the position statement contained information relating to claims that had not been brought or which had been dismissed. Instead, the trial judge permitted Amador’s counsel to use relevant portions of the position statement in cross-examination of the employer’s witnesses for potential impeachment. 

On appeal, the Eleventh Circuit concluded that no abuse of discretion had been shown. The Court first closely examined the contents of the position statement as compared to the trial testimony, and concluded that material discrepancies sufficient to support pretext had not been shown. The Court also opined that the trial court’s discretionary decision as to the handling of the evidence was “entirely reasonable.”
Case No. 17-13750
February 28, 2019

The Eleventh Circuit affirmed the district court’s order granting summary judgment in favor of the employer on Brathwaite’s Title VII claims of racial harassment and retaliation. 

Braithwaite, a black female, had conflicts with her coworker, Evelyn Melendez, a white female. In August 2014, their supervisor held a meeting that resulted in a verbal reprimand for Braithwaite and a “letter of understanding” for Melendez. Braithwaite then kept a diary of alleged bullying, including three occasions when Melendez referred to her as “black hate.” Because of her own refusal to refer to Melendez by her preferred nickname, their supervisor sent Brathwaite an email instructing Braithwaite to call her “Ms. Melendez.” They then had a brief physical altercation, which was posted to YouTube, wherein Melendez called Brathwaite a “black bitch.” Despite a recommendation for Brathwaite’s suspension, Brathwaite received no discipline and Melendez received a reprimand. Braithwaite filed an EEOC charge on September 29. On October 15, she was issued a written reprimand for continuing to refer to Melendez by her first name.
The Court opined that the district court did not err in concluding the altercation did not create a “severe or pervasive” atmosphere. The Court highlighted that in a four-month period there was one instance of physical contact that lasted only three seconds (when Melendez swatted Brathwaite’s arm away) and four racially-charged comments. Brathwaite did not challenge the district court’s conclusion that the comments “did not amount to more than offensive utterances” and the Court agreed that Melendez’s treatment of Brathwaite did not objectively and unreasonably interfere with her performance. 

The Department of Justice filed an amicus brief arguing that the district court failed to apply the appropriate retaliation standard because it relied on Davis instead of Burlington Northern . While agreeing, the Court concluded that the same result would be reached under Burlington : Brathwaite failed to demonstrate that the challenged reprimands were pretext for retaliation because the September 30 memo documented a verbal reprimand issued prior to the filing of her charge, and she did not dispute that she disobeyed the directive to call her co-worker by her last name.
Case No. 18-12497
February 25, 2019

The Eleventh Circuit upheld the district court’s grant of summary judgment on Cox’s First Amendment retaliation claim, which alleged the school board’s decision to terminate his employment contract was motivated by his candidacy for sheriff.

Under Georgia law, the Clayton County School District makes its employment decisions through a governing board, which consisted of nine members. Each year the board must decide whether to tender a new contract for the ensuing year for each professional employee. In this case, the school district hired Cox in 2013 as the director of safety and security, and the board renewed his contract several times over the following years. On January 26, 2016, Cox announced at a meeting of his staff that he intended to run for sheriff. On February 1, 2016, the board members held a meeting where it decided not to renew Cox’s contract.

Evaluating Cox’s claim under the four-step analysis applicable to allegations of First Amendment retaliation, the district court found Cox’s claim failed at the third stage—that is, his speech was not a substantial motivating factor in his dismissal. The evidence did not establish the board members were even aware of Cox’s candidacy, much less motivated by it. In addition, eight out of the nine board members testified their votes were unrelated to any political expression on the part of Cox but were instead motivated by concerns about his job performance. In support of his claim, Cox pointed to testimony, which he argued, established that at least one other board member was aware of his candidacy. While the district court disagreed, the court concluded in the alternative that, even if Cox established one other board member knew of his candidacy, at least seven board members did not and the decision to terminate required only a five-vote majority. Finding no error in the district court’s analysis, the Eleventh Circuit affirmed.
The Eleventh Circuit Weekly Update was prepared by Reemployment Assistance Appeals Commission staff: case summaries by Chairman Frank E. Brown, and Appellate Counsel Cristina A. Velez and Katie E. Sabo; editing by Deputy General Counsel and Chief Appellate Attorney Amanda L. Neff; research and layout by Research Attorney Lesley Blanton.