Last Week in the Eleventh Circuit

Eleventh Circuit Court of Appeals

Weekly Update

June 1, 2019

Published Cases

There were no published labor or employment cases last week. There were two published cases that tangentially involved labor or employment concerns.

Club Madonna, Inc. v. City of Miami Beach , Case No. 17-13934 (May 24, 2019), involved a constitutional attack by a dance club on the city’s enforcement of a prior ordinance and its adoption of a new ordinance regulating exotic dance clubs that, among other things, established requirements for ensuring that all performers were of legal age and required proof that the performers had been properly paid. The Eleventh Circuit affirmed the district court’s dismissal of eight counts of the 16-count complaint but reversed and remanded the district court’s dismissal of the other eight counts. Contrary to the district court, the Eleventh Circuit concluded that they were ripe for consideration.

In U.S. v. Askins & Miller Orthopaedics, P.A . , Case No. 18-11434 (May 23, 2019), the Eleventh Circuit reversed the district court’s denial of the government’s request for a preliminary injunction seeking to require, among other things, the segregation of funds withheld for FICA and income tax withholding. The Court concluded that where the U.S. had shown the defendants’ long-standing pattern of willful non-compliance with payroll tax laws, combined with the government’s inability to collect back taxes, the district court erred in concluding that the government’s ability to sue for monetary damages automatically constituted an adequate remedy at law.

Unpublished Cases

Lawrence v. Ward

Case No. 18-11387

May 21, 2019

The Eleventh Circuit affirmed summary judgment in favor of defendants (Lawson State Community College, its president, and one of its vice presidents) on Lawrence’s failure-to-promote claim brought under Title VII. The President had named one of Lawrence’s black colleagues to the position of Associate Dean, a move that Lawrence, who is white, argued was racially discriminatory. The Court affirmed summary judgment on the ground Lawrence failed to establish defendants’ reason for not promoting him instead was pretextual.

The Court proceeded straight to the merits of the case despite the potential Eleventh Amendment immunity issue, which usually is a threshold, jurisdictional matter. As the Court explained, “the Eleventh Amendment ‘presents a rather peculiar kind of jurisdictional issue’ that is waivable.” In this case, the defendants argued two alternative bases for affirming the district court: (1) Eleventh Amendment immunity barred Lawrence’s suit, or (2) even if it did not, Lawrence failed to state a claim. Relying on McClendon v. Georgia Dep’t of Comm. Health , where defendants made a similar conditional assertion of Eleventh Amendment immunity, the Court at its discretion bypassed defendants’ jurisdictional argument and affirmed the district court on the merits.

Shannon v. National Railroad Passenger Corp.

Case No. 18-13149

May 20, 2019

The Eleventh Circuit affirmed the district court’s summary judgment for the employer, concluding that the plaintiff had not established an issue of fact regarding her discrimination and retaliation claims under Section 1981 and the FMLA.

Shannon, an African-American female, was notified in March 2017 that all route director positions (one of which she held) were being eliminated in April of that year, and that she had until that time to locate another position. She applied for several different positions but was not selected for any, resulting in her separation. She subsequently filed suit and the district court granted summary judgment on all claims. The Eleventh Circuit agreed, finding insufficient evidence of discrimination either in the job elimination or the failure to hire Shannon in the open positions, and insufficient proof of retaliation for the three denials of positions after her internal complaint of discrimination was made.

While the factual recitation and legal analysis of the case are extensive, there are a few holdings by the Eleventh Circuit that are worthy of note. For several of the positions Shannon sought, the hiring official was DeQuincy McCrea, who was also black. The Court noted that while this fact did not automatically defeat her claims, it made the burden more difficult, citing Elrod , particularly since McCrea hired three black applicants. The Court further noted that evidence that McCrea had told others that “she must have upset someone really high up” because she “kept up a lot of controversy” was not evidence of racial animus. The Court further concluded that Shannon could not establish pretext as to the rationale of some of the hiring officials who questioned her integrity because she did not dispute allegations that she had improperly let lower-level employees secretly listen in on confidential management calls. Finally, the Court agreed that Shannon had not established an FMLA interference claim when the employer denied a request for FMLA leave Shannon submitted on June 7, 2017, the day before her previously-set termination date.

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.