Eleventh Circuit Court of Appeals 
Weekly Update
 May 25, 2019

Published Cases

There were no published labor or employment cases last week.
Unpublished Cases
Case No. 18-14057
May 14, 2019

The Circuit Court affirmed summary judgment in favor of the Defendant Sheriff, in his official capacity, on Lopez’s Section 1983 claim alleging the Sheriff demoted him in retaliation for his exercise of his First Amendment rights.

Lopez worked as a sergeant when he announced his candidacy for Sheriff. He was ultimately disciplined for actions taken during his campaign on his campaign’s Facebook page that were found to be in violation of the Sheriff’s Office’s Standards of Conduct and direct orders. Lopez was issued a notice of intended disciplinary action to demote him to deputy and to suspend him for 40 hours without pay.  After a three-member disciplinary board affirmed the action, he appealed to a five-member Career Service Appeals Board. The Board upheld the demotion, but revoked the suspension. Lopez then filed suit. 

The Court affirmed summary judgment for three reasons: 1) Lopez’s suit against the Sheriff in his official capacity was a suit against the county itself, 2) the Sheriff was not the final policymaker as to the adverse job action, and 3) the county could not be liable under  Section 1983 on a theory of respondeat superior The Court noted Lopez did not challenge the constitutionality of the conduct standards  vel non.  Quoting   Morro v. City of Birmingham , the Court opined, “Municipal liability under 42 U.S.C. § 1983 may be premised upon a single illegal act by a municipal officer only when the challenged act may fairly be said to represent official policy, such as when the municipal officer possesses final policymaking authority.” The Court concluded the Sheriff was  not the final policymaker because his decision was subject to “meaningful administrative review” by a Board with the authority to reinstate, alter, or reverse the decision. Although Lopez argued the review was not meaningful, alleging certain procedural defects, the Court stated that Lopez did not show that the Board had defective procedures or that it rubber-stamped the Sheriff’s discipline. In so concluding, the Court highlighted that Lopez picked two of the five panelists on the Board, introduced evidence, examined witnesses, provided argument, and that the Board ultimately overturned part of the discipline. Thus, the district court did not err in grating summary judgment.
Case No. 18-13061
May 14, 2019

The Eleventh Circuit affirmed summary judgment in favor of Home Depot on McKibben’s claims of race and age discrimination in violation of Title VII and the ADEA and her claim that Home Depot intentionally and negligently inflicted emotional distress in violation of state tort law. Along with the magistrate’s report and recommendation for summary judgment in favor of the employer, the magistrate issued a separate order informing the parties that if no objections were filed to the R&R, the Eleventh Circuit would deem any challenge to factual and legal findings waived. In affirming summary judgment, the Eleventh Circuit did just that, as provided by circuit rule. It further held that McKibben had not argued that the interests of justice required review for plain error, and concluded there was no such error.  
Case No. 17-13060
May 15, 2019

The Eleventh Circuit affirmed the district court’s grant of summary judgment in favor of the defendant health plan on the plaintiff’s ERISA claim for unpaid benefits.  

O.D. was a minor suffering from bulimia among other mental health disorders. She received treatment at a residential eating disorder treatment center, consisting of one day of inpatient treatment followed by two months of residential care. The defendant health plan provided for “medically necessary” mental health benefits as determined by plan guidelines for the “clinically appropriate” level of care for the specific situation. As a practical matter, the plan would not pay for a level of care that was higher than deemed necessary under the circumstances. The plan eventually agreed to pay for the one day of inpatient treatment but only four days of residential care, concluding based on a review of the plaintiff’s records that extended residential care was not medically necessary. After the plaintiff brought suit for denial of benefits, the district court granted summary judgment.

On appeal, the Eleventh Circuit upheld the plan’s decision under the Blankenship test. There was no dispute the plan reserved discretionary authority, but the plaintiff contended that a lesser degree of deference was appropriate because the plan did not adequately comply with the regulatory requirements for notices of denial. Concluding that the plan substantially complied and questioning whether lowered deference would be appropriate in any event, the Court rejected this contention and held that based on its review of the record the plan had a reasonable basis for its decision notwithstanding the opposing opinions offered by the provider’s practitioners.  
Case No. 17-15498            
May 13, 2019

The Eleventh Circuit denied the employer’s petition for review of an order of the NLRB holding that the employer violated a settlement agreement and ordering relief for prior unfair labor practices, and granted the Board’s cross-petition for enforcement.  

After a union filed ULPs against the employer, the employer entered into a settlement agreement with the Board. As part of the agreement, the employer agreed to post a form notice. The employer also agreed that if it violated the settlement agreement, the Board could enter default against it on the underlying charges and enter relief accordingly. The employer posted the required notice, but also posted a side letter blaming the union and emphasizing that it had not been “found guilty” of labor law violations. After the Regional Director notified the employer that the posting of the letter was a violation of the agreement, General Counsel sought enforcement, which the ALJ granted and the Board affirmed. On review, the Eleventh Circuit, noting the highly deferential standard the Court applied to Board decisions, accepted the Board’s interpretation and application of its prior side letter precedent but also concluded that it would have reached the same result given the language of letter.  
Case No. 18-10844
May 16, 2019

The Eleventh Circuit reversed the district court’s application of the law-of-the-case doctrine to Stanley’s claim for non-punitive damages but affirmed the district court’s holding that his claim for injunctive relief was moot.  

Stanley brought a complaint under Section 1983, alleging the Broward County Sheriff’s Office refused to rehire him due to his political activities in violation of the First Amendment. In his first appeal, the Court reversed the district court’s holding that sovereign immunity applied and remanded the case for further proceedings. On remand, the district court held the Court’s opinion recounting the case’s procedural history established as the law of the case that Stanley withdrew his claims for damages; the district court further held that his claims for equitable relief were moot.

The Court concluded the prior panel’s recitation of the procedural history was not binding on the lower court under the law-of-the-case doctrine because the prior panel decided only the issue of sovereign immunity. In addition, the Court found the prior panel “by necessary implication” concluded that Stanley had not withdrawn his claim for damages, when the panel reached the sovereign immunity issue and answered it in the affirmative, rather than simply remanding the case for an analysis of mootness regarding the equitable claims. The Court, however, upheld the district court’s conclusion that Stanley’s claim for injunctive relief was moot because the record was devoid of any facts that the Sheriff’s successor would continue to retaliate against Stanley.  
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.