Eleventh Circuit Court of Appeals 
Weekly Update
 March 22, 2019

Published Cases

There were no published labor or employment law cases last week.  
Unpublished Cases

Case No. 17-13961
March 15, 2019

The Eleventh Circuit affirmed summary judgment in favor of the employer city and an individual defendant on Griffin’s Section 1981 and 1983 claims alleging he was demoted due to his race. 

Griffin, an African-American male, served as the appointed Affordable Housing Coordinator for the City’s Housing and Community Development Division, in which he reviewed and approved applications for grant-funded contracts to rehabilitate low-income housing.  City contracts were subject to conflict of interest provisions, and the grants required developers to solicit a minimum number of quotes.  An audit determined that none of nine audited contracts had complied with the minimum quote requirement and four of the nine involved conflicts of interest.  Griffin told the auditor that he was following an established but unwritten “self-performance” policy, no longer in place, that allowed non-profit developers who were also contractors to perform the work, and that the city did not follow the quote requirement. Shortly after the draft audit was prepared, all appointed officials were requested to submit letters of resignation and resumes so that the incoming mayor could select officials he wanted to retain, which Griffin did.  The mayor decided to accept Griffin’s resignation due to the adverse audit findings, resulting in his demotion back to a civil service position he had previously held.  

Griffin contended that he was treated more harshly than three white employees whose actions had resulted in a separate adverse audit, but the Court concluded, analyzing the facts in light of the principle of   Holifield v. Reno that comparators must be similarly situated in all material respects, that Griffin had failed to establish that any of the employees were appropriate comparators, especially since the other audit did not accuse any of them of actions that violated City codes or ordinances.  The Court also affirmed qualified immunity for the individual defendant as to the plaintiff’s cat’s paw theory, finding no evidence that her actions were causally linked to the decision to discharge.   
Case No. 18-10431
March 15, 2019

The Eleventh Circuit affirmed summary judgment in favor of the employer, the Secretary of the Department of Veteran Affairs (the “VA”), on Hutchinson’s claims under Title VII for sex- and race-based discrimination.  

Hutchinson, an African-American female, was employed by the VA medical center where she provided administrative and office management support. The VA opened a position for Personal Security Specialist, and Hutchinson applied. Upon applying, Hutchinson’s name was placed on three separate lists certifying she was entitled to preferential hiring treatment as a veteran.  However, the VA ultimately chose Ross Holman, a white male, for the position. Hutchinson believed herself to be more qualified than Holman based on having more years of experience and a higher level of education. The VA articulated three reasons for choosing Holman over Hutchinson: Holman’s experience was (1) more current and (2) more relevant, and (3) Hutchinson’s application was ambiguous as to whether her single listed security position was that of a manager or an assistant. 

On appeal, Hutchinson argued summary judgment was improper because she offered sufficient evidence to show pretext and presented a “convincing mosaic” of circumstantial evidence of discrimination. Both arguments turned on her assertion that the VA violated its policies and procedures governing interviewing job candidates, including those who are on a veterans preference list, and  federal law providing that when an appointing authority passes over a preference eligible for a non-preference eligible, it must provide the veteran notice of this action, the reasons for it, and a right to respond. The Eleventh Circuit rejected Hutchinson’s arguments finding she provided no evidence establishing the applicability of the cited policies or procedures or federal law; instead, Hutchinson’s own evidence showed Holman was also on veterans’ preference lists.  The Court further noted Hutchinson did not otherwise come forward with evidence showing pretext or that supported an inference of discrimination. 
Case No. 18-12672
March 13, 2019

Ware, an African-American, brought suit under Title VII, Section 1981, and the FCRA, alleging that racial animus led to his termination from his recreation worker position, after he asked another employee to “clock in” for him in violation of City policy, and claiming that the employer was lax in enforcing the policy against similarly-situated white employees.  The Court affirmed summary judgment in favor of the employer.  

Citing  Jones v. Gerwens the Court opined that Ware had not identified suitable comparators because his identified comparators included all employees who were subject to the same timekeeping rules and the white police department employees who received more lenient discipline had a different supervisor.  Consequently, he had not established a prima facie case of discrimination under  McDonnell Douglas.   The Court went on to conclude that even if Ware had provided evidence of more favorably treated white comparators, summary judgment would be proper because he failed to demonstrate that the reason for his termination was pretextual.  Finally, he did not present a “ convincing mosaic of circumstantial evidence ” to demonstrate discriminatory intent; even though his supervisor went against the recommendation to use a lighter form of discipline, she had never failed to terminate an employee that stole or attempted to steal time, including separating three white employees for the same reason.     
A case not involving labor or employment issues but which might be of interest is  Jackson v. McCurry , Case No. 18-10231 (March 12, 2019), in which the plaintiffs sued school officials alleging Section 1983 First and Fourth Amendment claims arising from a search of a student’s cellphone and the actions subsequently taken against her father for his allegedly threatening conduct against school officials.  In a decision with a thorough legal analysis, the Court affirmed summary judgment for the school officials on the grounds of qualified immunity. 
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.