Last Week in the Eleventh Circuit

Eleventh Circuit Court of Appeals

Weekly Update

January 11, 2019

Published Opinions

There were no published labor or employment cases last week.

A case not involving labor or employment law issues but which might be of interest is Aaron Private Clinic Management LLC v. Commissioner of the Georgia Department of Community Health , Case No. 17-15144 (January 4, 2019). The Eleventh Circuit held that a company planning to open as a methadone clinic lacked standing to challenge two Georgia state licensing laws that restricted the licensure of narcotic-treatment facilities. The company, Aaron Private Clinic Management, contended the state laws violated the Rehabilitation Act and the ADA. The Eleventh Circuit explained that Aaron lacked direct standing because it failed to establish an actual or imminent injury where the complaint alleged only that Aaron was a limited liability company that aspired to someday open a methadone clinic but offered no facts suggesting that “someday” was imminent or any concrete plan to bring its clinic into operation. Because the Court held Aaron lacked an injury in fact, the Court also rejected Aaron’s claim that it has third-party standing to assert the injuries suffered by its prospective, opiate-addicted clients.

Unpublished Opinions

Sanders v. Wal-Mart Stores East, LP

Case No. 18-11524

January 2, 2019

Sanders, who was proceeding pro se, appealed the district court’s denial of his motion to appoint counsel, its grant of defendant’s motion for judgment on the pleadings as to a portion of his race discrimination claims, and its grant of summary judgment on the remaining claims. The Eleventh Circuit affirmed.

Sanders failed to object to the magistrate’s order denying his motion to appoint counsel and he waived his argument that summary judgment was unconstitutional as applied to discrimination cases because he did not raise it in the district court. The Court also concluded that he abandoned several of his challenges by “[f]ailing to provide more than perfunctory and conclusory statements in support of his assertions on appeal.”

As to his retaliation claim, the temporal proximity between his accommodation request and termination, standing alone, was insufficient to establish pretext. Sanders did not dispute that he had 63 unexcused absences and that the employer’s policy calls for termination after 9. He did not provide admissible evidence to support his conclusion that the workers’ compensation doctor provided by the employer wrongly refused to certify that all of his absences were due to work injuries or his allegation that the doctor prematurely cleared him to return to full duty. Since there was no evidence upon which a jury could have concluded the employer orchestrated Sanders’ unexcused absences in an effort to terminate him in retaliation for his protected conduct, the Court concluded summary judgment was appropriate.

Solomon v. Jacksonville Aviation Authority

Case No. 18-12243

January 4, 2019

The Eleventh Circuit affirmed the district court’s grant of summary judgment in favor of the employer on Solomon’s race discrimination and retaliation claims brought under Title VII.

Solomon, an African-American, worked as an airport security officer. In May 2015, two months before he graduated from the police academy and three months before he received his law-enforcement certification, he applied for a posted police officer position that required four years of law-enforcement experience and a law-enforcement certification. Solomon contended, and the Court assumed he was correct, that the lack of certification did not disqualify him from consideration due to a policy that pertained to internal candidates. A white male, with a current certification and several years of law-enforcement experience, received the position. In January 2016 Solomon filed a charge of discrimination with the EEOC complaining of race discrimination and retaliation related to the denied promotion. Amongst the alleged retaliatory actions were arbitrary schedule changes and a request that he take a polygraph in September 2016.

The Court held that summary judgment was appropriate on the race discrimination claim because Solomon did not provide evidence that the non-discriminatory reason for not hiring him (that the other applicant exceeded all of the objective criteria for the position) was pretextual. The Court opined that Solomon did not meet the high burden set forth in Brooks v. County Commission of Jefferson County by showing “that the disparities between the successful applicant’s and [his]own qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.” As to his retaliation claim, the Court concluded that the scheduling changes would not have dissuaded a reasonable person from filing a discrimination claim and Solomon did not provide evidence to demonstrate that the reasons for the scheduling changes, unforeseen events and trainings, were false. Furthermore, the record lacked a causal link between the scheduling changes and the charge of discrimination; the individual who made the changes testified he was not aware of the charge and Solomon did not present evidence to contradict his testimony. The Court went on to state it could not infer a causal connection between the January EEOC charge and the request to take polygraph examination nine months later.

Strang v. City of Albany, Georgia

Case No. 17-11577

December 31, 2018

The Eleventh Circuit affirmed the district court’s grant of summary judgment for the employer on the plaintiff’s Section 1983 claim alleging termination in violation of the First Amendment, concluding that the plaintiff failed to establish a prima facie case and that the district court did not err in denying her motion for discovery sanctions.

Strang, a former assistant city attorney, searched the city attorney’s desk without authorization or legitimate reason, found a handgun, and reported it to human resources. Strang was subsequently fired for a number of performance and interpersonal issues. Her complaint alleged that she was discharged for her disclosure, and that it was protected speech. The Court affirmed the district court, concluding that the internal complaint was not speech on a matter of public concern because she spoke as an employee rather than as a citizen .

Strang’s motion for discovery sanctions challenged the veracity of deposition testimony given by the city attorney, contended a separate witness engaged in dilatory tactics, and accused the defendant’s attorney of fabricating interrogatory answers. The Court held that the fact a witness gave opposing or even inconsistent testimony, without more, did not establish bad faith ; that the trial court did not err in denying sanctions where a witness merely questioned the authenticity of documents, failed to recall his earlier testimony, and insisted on being able to complete his answers without interruption; and that the city attorney’s admission that he did not draft his interrogatory answers did not establish falsification where his counsel merely “conformed with the common practice of drafting responses for his clients’ approval.”

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.