Eleventh Circuit Court of Appeals 
Weekly Update
 February 8, 2019

Published Opinions

There were no published cases directly involving labor or employment law cases last week.  In a case tangentially relating to labor law, the Eleventh Circuit granted rehearing en banc in Lewis v. Governor of Alabama , Case No. 17-11009 (January 30, 2019).  The original panel decision (previously discussed in our August 2, 2018 report) had reversed the dismissal of the plaintiffs’ complaint alleging an Equal Protection claim that the Alabama law preempting local minimum wage ordinances was racially discriminatory.  

The Court also granted rehearing en banc in  Yarbrough v. Decatur Housing Authority , Case No. 17-11500 (January 28, 2019).  The original panel decision (discussed in our October 9, 2018 report due to its analysis of what constitutes sufficient evidence in an administrative hearing) had reversed a hearing officer’s order in a Section 8 housing case as factually unsupported because the only evidence of wrongdoing was the fact that the resident had been arrested and indicted.  The Court’s disposition was governed by the standard of proof established in a prior Eleventh Circuit  case , which will likely be revisited in the en banc decision.  
Unpublished Opinions

Case No. 18-10046
January 28, 2019

The Court affirmed the district court’s dismissal of Dr. Griffin’s complaint alleging several theories against a health benefits plan sponsor based on her attempt to obtain payment for services rendered to a patient.  

Dr. Griffin, an African-American female, sought additional payment based on an assignment of benefits she received from the patient despite the fact that the employer’s health benefits plan contained a non-assignment provision.  Among her claims was a contention that the employer had discriminated against her as compared to white male providers in violation of  Section 1557 of the  PPACA by disparately enforcing the anti-assignment provision against her in litigation.  The district court dismissed the claim because it was factually unsupported and because the court concluded that the non-discrimination provision did not cover litigation conduct. On review, the Eleventh Circuit affirmed the decision on factual grounds without reaching the issue of whether a defendant’s litigation conduct was covered under Section 1557.  
Case No. 18-12518
January 31, 2019

The Eleventh Circuit affirmed summary judgment in favor of the employer on Lowe’s claims of race discrimination and retaliation brought under Title VII, and on his claim of age discrimination brought under the ADEA.

Lowe, an African-American, worked as a forklift operator.  He acknowledged he received the criteria for productivity at the time of hire and was informed that four monthly scores of -10 or below in a 12-month period would result in termination.  He received written warnings after his first three low scores and was terminated after the fourth.  The Court assumed that Lowe established a prima facie case on all three claims, but concluded summary judgment was appropriate on all counts because he failed to raise “even the slightest doubt” as to whether the stated reason for termination was pretextual: he admitted that he had no circumstantial evidence to support his contention that he was fired because of race or age and he did not cite anything to call into question that he was fired for low productivity scores. In a footnote, the Court addressed Lowe’s contention that the employer had falsified its written warnings.  It explained “ specific facts ” must be set forth to show a genuine dispute over the veracity of the evidence and noted that Lowe failed to gather facts that might raise the possibility of document falsification, such as deposing the authors of the warnings or the individuals who managed files.
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.