PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
No. 96-9114 _______________ D. C. Docket No. 1:95-CV-351-WCO
NANCY ARRINGTON,
Plaintiff-Appellant, versus
COBB COUNTY, ROBERT HIGHTOWER, in His Official Capacity as Director of Cobb County’s Public Safety Commission, NATHAN WILSON, in His Official Capacity as Fire Chief of Cobb County’s Department of Fire and Emergency Service,
Defendants-Appellees.
______________________________
Appeal from the United States District Court for the Northern District of Georgia ______________________________ (April 24, 1998)
Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.
BIRCH, Circuit Judge:
In this appeal, we determine whether material questions of fact
exist with regard to plaintiff-appellant Nancy Arrington’s gender
* Honorable Stanley Marcus, U.S. District Judge of the Southern District of Florida, sitting by designation as a member of this panel when this appeal was argued and taken under submission. On November 24, 1997, he took the oath of office as a United States Circuit Judge of the Eleventh Circuit. discrimination claims against defendant-appellees Cobb County,
Robert Hightower, and Nathan Wilson. The district court granted
summary judgment in favor of appellees after finding that Arrington
had failed to show that she had been discriminated against on the
basis of her gender. For the reasons that follow, we REVERSE.
I. BACKGROUND
From 1984 to 1994, Arrington held the job of Assistant Fire
Chief for the Cobb County Fire Department. In 1994, however,
appellees eliminated the Assistant Fire Chief position and demoted
Arrington to Lieutenant. This case stems from appellees’ decision
to demote Arrington rather than to promote her to Fire Chief or
transfer her to Deputy Chief. Because this appeal is from the district
court’s grant of summary judgement, we view the facts in the light
most favorable to Arrington. See Southpace Properties, Inc. v.
Acquisition Group, 5 F. 3d 500, 504 (11th Cir. 1993).
2 Prior to her demotion in 1994, Arrington served for over twenty
years in a variety of roles within the Cobb County Fire Department.
Although County rules during the 1970's prohibited women from
becoming firefighters, Arrington joined the Department in 1971 as a
secretary, later receiving promotions to Fire Prevention Officer
(1978-79) and Fire Lieutenant in charge of Fire Prevention (1979-
84). When Cobb County lifted its prohibition on female firefighters
in 1980, Arrington became a certified firefighter but never took an
active firefighting position.
In 1984, Arrington won promotion to the position of Assistant
Chief for Administration after submitting to a competitive
examination.1 In choosing Arrington over three other candidates for
the Assistant Chief position, Fire Chief W. D. Hilton relied on
Arrington’s “performance on the examination, her excellent job
performance . . . and her knowledge of fire department operations
1 During Arrington’s decade in this position, her title took various forms, including Assistant Director, Administration. For the sake of clarity and convenience, we refer to her position throughout as “Assistant Chief for Administration.”
3 and administration.” R2-26 Exh. A ¶ 10 at 3 (Hilton Aff.).2 Hilton
promoted Arrington to Assistant Chief with the concurrence of the
County Manager and the Civil Service Board.
In her position as Assistant Chief for Administration, Arrington
had a number of official responsibilities. As the chief administrator
for the Department, Arrington supervised and assessed all six of the
Department’s Colonels, who regularly reported to Arrington
regarding their respective “Training,” “Extinguishment,” “Fire
Marshal,” “Budget,” “Research and Development,” and “Building and
Fleet Maintenance” responsibilities. In addition, Arrington assisted
Chief Hilton in preparing and presenting the Department’s budgets,
wrote technical reports, met with the County Manager and County
Board of Commissioners, and spoke to other professional and
community groups. Further, Arrington managed a variety of the
2 Appellees state throughout their brief that Arrington did not compete for her position, without ever citing us to Chief Hilton’s sworn statement describing her promotion and refuting appellees’ assertion. Appellees would have been better served, on this and other factual points, to have brought all of the relevant evidence in the record to our attention.
4 Department’s special projects. In 1985, for example, Arrington
oversaw the development of an Emergency Medical Services (EMS)
program that soon “was reputed to be the best in the State and one
of the best in the Southeast.” Id. ¶ 12 at 4. Similarly, Arrington lead
the Department’s successful 1988 effort to reduce its insurance
classification, assisting the Department’s cause “greatly” with her
“knowledge of all aspects of firefighting, including administrative and
operations knowledge.” Id. ¶ 15 at 5. At the same time, Arrington
was responsible for “a territory equal to [that of] other management
staff members to be on call for major fires and emergencies.” Id. ¶
21 at 7.
Beyond her official portfolio, Arrington also assumed a broad
range of additional responsibilities during her tenure as Assistant
Chief. Although the County technically had an Assistant Chief for
Operations, H. K. Nixon, a management study of the Department
found in 1992 that Arrington was functioning as Chief Hilton’s
second-in-command for operations as well as administration:
5 The Assistant Director, Administration [Arrington] is performing outside the boundaries of the job description as it was originally designed. The current incumbent is performing administrative and operational decisions . . . . .... The job description is written for management of the “Administrative Services Division.” However, the current incumbent is serving as second in command and assisting in supervising and controlling all activities of the Fire Department (i.e., supervising/managing line and staff colonels). These are responsibilities of the Assistant Director, Operations’ job description.
R2-26 Exh. C at 2, 6.3 In response to this report, Chief Hilton
wrote to the County Manager not only that he agreed that
Arrington had assumed an operations-related role beyond her
title, but also that he intended to expand her official job
description to encompass the duties of the Assistant Chief for
Operations (once Nixon retired). See R2-26 Exh. D. In fact,
Chief Hilton has explained that he consciously made Arrington
the de facto head of the Department upon his becoming
President of the International Association of Fire Chiefs in
3 This management audit was conducted by the County’s Personnel Department, rather than by officials from within the Fire Department.
6 1990. See R2-26 Exh. A ¶ 17 at 6 (Hilton Aff.) (“In my absence
Assistant Chief Arrington performed the duties of Fire Chief
and ran the department for me.”).4
Moreover, all of the evidence before the court indicates
that Arrington excelled as Assistant Chief. Although appellees
insist throughout their brief that Arrington had no right, as
someone who did not rise through the ranks, to hold a high
post in the Department, they have not offered any evidence
that Arrington ever performed her official or unofficial duties as
Assistant Chief in anything less than an exemplary manner.
Indeed, appellees have made no attempt to refute Chief
Hilton’s assessment that “Nancy Arrington, throughout her
tenure with the County Fire Department[,] has earned the
4 Appellees apparently do not dispute that Arrington exercised a broad range of duties as Assistant Chief. Appellees advance no argument or evidence undercutting the County’s report on Arrington’s operational activities, nor do they offer any argument or evidence contradicting Chief Hilton’s assessment of Arrington’s role within the Department.
7 respect of her peers, her department, and fire officials
throughout the State and Country.” Id. ¶ 19 at 6.
In 1993, Chief Hilton announced his retirement (effective
in 1994) as the County moved toward a restructuring of its
public safety agencies. Central to this reorganization effort, the
County planned to bring its separate Police, Fire, and
Corrections Departments within one, consolidated Public
Safety Department, thereby reducing administrative and other
inefficiencies. Leading the County’s reorganization effort, the
newly-installed Public Safety Director, Robert Hightower, had
responsibility for selecting the County’s new Fire Chief. After
conducting a series of interviews, Hightower chose Nathan
Wilson as the new Chief, passing over Assistant Chief
Arrington and eight other candidates for the position.5 As an
experienced firefighter, Wilson had risen through the ranks of
5 Peter Fanton and Donna Carter also interviewed each of the candidates for Fire Chief. Hightower, however, had the responsibility for actually selecting the new Fire Chief, with the concurrence of the Board of Commissioners.
8 the Department, from firefighter in 1965 to Colonel at the
time of his selection as Fire Chief. In explaining and
defending Wilson’s promotion over Arrington in the course of
this suit, Hightower has cited Arrington’s lack of “operational
experience” as the key element that rendered her unqualified
for the position.
Once Wilson assumed his new position as Chief, he
joined Hightower in determining how to integrate the County’s
Fire Department into the new Public Safety Department. Of
particular relevance to this case, Wilson and Hightower
decided to replace the two Assistant Fire Chief positions
(Administration and Operations) with a new, consolidated
second-in-command position of “Deputy Chief.”6 Upon the
Hightower and Wilson’s motives for this 6
element of their reorganization plan are in dispute and are addressed below. Hightower and Wilson contend that the new Deputy Chief position was designed primarily as an “Operations” job, with most of the administrative responsibilities of the former Assistant Chief for Administration shifting to a centralized administrative staff for the entire Public Safety Department. Arrington, however, contends that the Deputy and Assistant Chief
9 Board of Commissioners’ acceptance of Wilson and
Hightower’s restructuring plan, Wilson chose David Hayes to
serve as the new Deputy Chief, demoting Arrington to
Lieutenant.7 Like Wilson, Hayes had risen through the ranks
from firefighter to Colonel before his most recent promotion to
Deputy Chief, and Wilson has explained and defended his
passing over of Arrington as a reflection of her lack of
“operational experience” in fighting fires.8
Following her demotion, Arrington brought suit against the
County, Hightower, and Wilson in the district court.
Specifically, Arrington alleged that appellees had discriminated
jobs are essentially the same, and that appellees used the ongoing restructuring effort to replace her with Hayes, discriminating against her on the basis of her gender. 7 Hightower and Fenton also participated in interviewing the candidates for Deputy Chief, but it was Wilson who actually selected Hayes for the job. The County’s civil service law required Arrington’s demotion to her last previous rank (Lieutenant) upon the County’s elimination of her Assistant Chief position. 8 Furthermore, Cobb County, Hightower, and Wilson have insisted before this court that Arrington was not even qualified for her former Assistant Chief position, though they offer no evidence to support this assertion.
10 against her on the basis of her gender in (1) denying her the
Fire Chief position, (2) denying her the Deputy Chief position,
and (3) demoting her to Lieutenant, in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, and the
equal protection clause of the Fourteenth Amendment
(enforced through 42 U.S.C. § 1983). Further, Arrington
claimed that the appellees had violated the Equal Pay Act, 29
U.S.C. § 206(d), by (1) paying her alleged “successor” Hayes
a higher salary as Deputy Chief than she had received for her
“substantially equal” work as Assistant Chief and (2) paying her
less as a Lieutenant than her male Lieutenant peers.
After appellees moved for summary judgment, the district
court assigned the case to a magistrate judge for evaluation.
In a Report & Recommendation (“R & R”), the magistrate judge
suggested that the district court: (1) grant summary judgment
in favor of appellees on Arrington’s Title VII “Fire Chief” claim,
because Arrington had failed to file a timely EEOC charge
11 regarding the appellees’ failure to promote her to that position;
(2) grant summary judgment in favor of appellees on
Arrington’s § 1983 Fire Chief equal protection claim, based on
the same untimeliness rationale; (3) proceed to trial on
Arrington’s Title VII and § 1983 claims regarding the Deputy
Chief position, on the ground that material issues of fact
existed with regard to Arrington’s qualifications for that
position;9 (4) grant summary judgment on behalf of appellees
on Arrington’s claims of discriminatory demotion to Lieutenant,
on the ground that the County’s civil service law required her
demotion to her previous rank (Lieutenant) upon the elimination
of her job as Assistant Chief; (5) deny summary judgment on
Arrington’s Equal Pay Act claim of discrepancy between
Deputy Chief Hayes’s salary and her former salary as Assistant
Chief, because of disputed material facts; and (6) grant
summary judgment on behalf of appellees on Arrington’s Equal
9 Unlike Arrington’s Title VII Fire Chief claims, her Title VII Deputy Chief claims have not suffered from any timeliness problems.
12 Pay Act claim regarding alleged discrepancies between her
current pay and that of other Lieutenants, because any
inequalities regarding Arrington’s current pay were required by
the County’s even-handed civil service rules.
Following the magistrate judge’s initial R & R, Arrington
objected to the district court that the timing of her EEOC
complaint was irrelevant to her § 1983 claim for violations of
her constitutional right of equal protection. Subsequently, the
magistrate judge submitted a Supplemental R & R (“SR & R”)
addressing Arrington’s concerns. In this SR&R, the magistrate
judge agreed with Arrington that her § 1983 Fire Chief claim
could not be dismissed on the basis of her untimely EEOC
charge. Upon reaching the merits of Arrington’s § 1983 Fire
Chief claim, however, the magistrate judge found, sua sponte,
that there was no evidence that the County had any “policy” or
“custom” of gender discrimination that might have caused
Arrington to be denied the Fire Chief position. Relying on
13 Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 98 S. Ct. 2018, 56
L. Ed. 2d 611 (1978), and its progeny, the magistrate judge
therefore again recommended that the district court grant
summary judgment against Arrington on her Fire Chief claims
against the County and Hightower.10 In response to the
magistrate judge’s SR&R, Arrington agreed that Monell
required the district court to dismiss her § 1983 Fire Chief claim
against the County but objected to the magistrate judge’s
unexplained additional recommendation of dismissal against
Hightower, who Arrington insisted she was suing in his
personal capacity as well as in his official capacity. Arrington
did not object to the magistrate judge’s recommendation for
summary judgment against her on her Title VII Fire Chief
claims, her § 1983 Fire Chief claim against the County, her
discriminatory demotion claims, or her Equal Pay Act claim
10 We note that no Monell issue has arisen with regard to Arrington’s § 1983 Deputy Chief claims. On remand, the district court may wish to consider whether to apply Monell to Arrington’s § 1983 Deputy Chief claims.
14 concerning alleged inequalities between herself and her
Lieutenant peers.
Despite the magistrate judge’s recommendation that the
district court proceed to trial on several of Arrington’s
allegations, the district court granted summary judgment for
appellees on all of Arrington’s claims. On Arrington’s § 1983
Fire Chief claim against Hightower, the district court held that
its judgment against Arrington on her Title VII Fire Chief claims
(because of her untimely EEOC charge) required it to grant
summary judgment also against Arrington on all of her § 1983
Fire Chief claims, lest Arrington use § 1983 to circumvent the
administrative requirements for Title VII actions. On Arrington’s
Deputy Chief claims, the district court ruled that Arrington had
established a prima facie case of sex discrimination under
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973). Nonetheless, the district court
granted summary judgment for appellees because it found that
15 Arrington had produced no evidence that appellees’ proffered
legitimate, nondiscriminatory reason for their actions (i.e.,
Arrington’s lack of “operational experience”) masked an illegal
motive. Finally, on Arrington’s remaining Equal Pay Act claim,
the court granted summary judgment for appellees because it
found that the positions of “Deputy Chief” and “Assistant Chief
for Administration” were not substantially equal.
II. DISCUSSION
Summary judgment is only appropriate where there are no
genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56 (c). In
reviewing the district court’s grant of summary judgment, we
review both its factual findings and its legal reasoning de
novo. See, e.g., Combs v. Plantation Patterns, 106 F.3d
1519, 1526 (11th Cir. 1997), cert. denied sub nom., Combs
v. Meadowcraft, __ U.S., __, __ S. Ct. __, __ L. Ed. 2d __
16 (1998).11 We view the evidence in the light most favorable to
the non-moving party, using the same legal standards
appropriate for the district court. See id. In this appeal,
Arrington contests the district court’s grant of summary
judgment for appellees on (1) her § 1983 Fire Chief claim
against Hightower, (2) her Title VII and § 1983 Deputy Chief
claims against all three appellees, and (3) her Equal Pay Act
claim against all three appellees regarding salary disparity
between the Deputy and Assistant Chief positions. We
address each of Arrington’s bases for appeal in turn.
A. THE FIRE CHIEF POSITION
The district court granted summary judgment on
Arrington’s § 1983 claims for significantly different reasons
from those recommended by the magistrate judge in its SR &
11 Appellees’ assertion that we should subject the factual findings of the district court only to a clearly erroneous standard of review finds no support in the precedents of this court. We find appellees’ inability to discuss even the standard of review in a straightforward and forthcoming manner to be disheartening.
17 R. Instead of relying on a Monell finding that the County did
not have a “policy” or “custom” of discrimination, the district
court based its ruling on the principle that a plaintiff may not
use § 1983 to circumvent the administrative requirements for
a Title VII claim. On appeal, Arrington argues that the district
court erred because her § 1983 claim is based on a violation of
her constitutional equal protection rights and not on any
statutory violation of Title VII.
To prevail on a claim under § 1983, a plaintiff must
demonstrate both (1) that the defendant deprived her of a right
secured under the Constitution or federal law and (2) that such
a deprivation occurred under color of state law. See Willis v.
University Health Serv., 993 F.2d 837, 840 (11th Cir. 1993). Of
course, an allegation of a Title VII violation cannot provide the
sole basis for a § 1983 claim. See Allen v. Denver Pub. Sch.
Bd., 928 F.2d 978, 982 (10th Cir. 1991) (“[S]ection 1983 cannot
be used to assert the violation of rights created only by Title
18 VII.”); Hervey v. City of Little Rock, 787 F.2d 1223, 1233 (8th
Cir. 1986) (same). As the district court observed, a plaintiff
cannot bootstrap an untimely Title VII claim by bringing a §
1983 action based only on a statutory violation of Title VII. Cf.
Great Am. Fed. Sav. & Loan Assoc. v. Novotny, 442 U.S. 366,
375-78, 99 S. Ct. 2345, 2350-52, 60 L. Ed. 2d 957 (1979)
(stating that plaintiffs may not bypass the Title VII
administrative process by enforcing their statutory rights under
Title VII through § 1985). Arrington, however, does not rest her
§ 1983 Fire Chief claim on any alleged violation of Title VII.
Instead, Arrington satisfies the first element of § 1983 by
alleging that Hightower violated her Fourteenth Amendment
right of equal protection. See Johnson v. City of Fort
Lauderdale, 114 F.3d 1089, 1092 (11th Cir. 1997), reh’g en
banc denied, 124 F.3d 1372 (1997) (holding that Title VII does
not preempt a Fourteenth Amendment cause of action for
employment discrimination under § 1983); Hervey, 787 F.2d at
19 1233 (holding that a plaintiff whose Title VII claim is time-
barred is “limited to proving that the [defendant] violated her
equal protection rights under the fourteenth amendment in
order to recover under § 1983.”).12 Thus, we conclude that the
district court erred as a matter of law by granting summary
judgment to the appellees on this issue.13 Accordingly, we
reverse the district court’s grant of summary judgment on
Arrington’s § 1983 Fire Chief claim against Hightower and
12 There is no dispute that Hightower acted under the color of state law in denying Arrington the promotion to Fire Chief, satisfying the second element of § 1983. 13 In their brief for this court, appellees ignore the district court’s confusion regarding the relationship between Title VII and § 1983; appellees strangely declare that the district court based its decision on the merits of Arrington’s § 1983 Fire Chief claim. Appellees’ contention that the district court reached the merits of this issue is, at best, misleading. Because the district court did not discuss the magistrate judge’s decision on the merits of appellants’ § 1983 Fire Chief claims, we decline at this stage to evaluate the merits of Arrington’s remaining Fire Chief claim against Hightower. We note, however, that Arrington has insisted that she seeks to pursue Hightower in his personal capacity. Given our liberal system of notice pleading, and appellees’ apparent understanding throughout their submissions to the magistrate judge and district court that Arrington sought to hold Hightower liable in his personal as well as in his official capacity, we expect that the district court will allow Arrington to amend her complaint as necessary to reflect the true nature of her claims. Cf. Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829 (11th Cir. 1982) (rules of notice pleading apply to complaints in § 1983 actions).
20 remand this issue to the district court for further proceedings
consistent with this opinion.14
B. THE DEPUTY CHIEF POSITION
Arrington argues that material questions of fact exist with
regard to her claims that appellees discriminated against her
on the basis of her gender in denying her the Deputy Chief
position. For Title VII and § 1983 gender discrimination claims,
the order and allocation of proof are well established.15 First,
the plaintiff must prove a prima facie case of discrimination by
a preponderance of the evidence. Second, if the plaintiff
makes out a prima facie case, the defendant must produce a
14 We note again that Arrington has conceded that the district court’s judgment on her § 1983 Fire Chief claim against the County is justified on the alternative, Monell grounds relied upon by the magistrate judge. Arrington, therefore, has not appealed the district court’s grant of summary judgment for the County on this claim. On remand, the only remaining claim based on Arrington’s failure to receive promotion to Fire Chief will be her § 1983 claim against Hightower. 15 This framework would also apply to any evaluation of the merits of Arrington’s § 1983 Fire Chief claim against Hightower, discussed above.
21 legitimate, non-discriminatory reason to explain the challenged
action. Third, should the defendant carry this burden, the
plaintiff must show by a preponderance of the evidence that the
defendant’s proffered explanation was a pretext for
discrimination. See Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093, 67 L.
Ed. 2d 207 (1981).
Since Arrington has produced no direct evidence that
appellees’ harbored an illegal motive for refusing her the
Deputy Chief position, she must rely on the test set out in
McDonnell to establish her prima facie case of discrimination
through circumstantial evidence. Under this four-pronged test,
Arrington must show that (1) she is a member of a protected
class, (2) she applied and was qualified for the Deputy Chief
position, (3) she was rejected in spite of her qualifications, and
(4) the Deputy Chief position went to an equally or less
qualified person who was not a member of a protected class.
22 See McDonnell, 411 U.S. at 802, 93 S. Ct. at 1824; Batey v.
Stone, 24 F.3d 1330, 1334 n.11 (11th Cir. 1994).16 Plainly,
Arrington is a member of a protected group (women), did not
receive the position at issue (Deputy Chief), and lost the
position at issue to a person who was not a member of a
protected class (the new, male Deputy Chief, Hayes).
Appellees, however, argue that Arrington was not qualified
for the Deputy Chief position because she lacked the
“operational experience” necessary for the proper performance
of the job. As part of the County’s reorganization of its public
safety agencies, the appellees contend, the new Deputy Chief
must perform operational tasks formerly assigned to the
Assistant Chief for Operations, while the administrative duties
of the former Assistant Chief for Administration have been
largely reassigned to the Public Safety Department’s central
16 Although the McDonnell case concerned only Title VII, its analytical framework for the establishment of a prima facie case of employment discrimination applies equally to discrimination claims brought under § 1983. See, e.g, Burns v. Gadsen State Community College, 908 F.2d 1512, 1518 (11th Cir. 1990) (per curiam).
23 administrative office. Thus, appellees contend both that
Arrington cannot prove a prima facie case of discrimination and
that they had a legitimate, nondiscriminatory reason for
refusing to interview Arrington for the Deputy Chief position:
her lack of operational experience rendered her unqualified to
shoulder the operational responsibilities the new position
demanded.17
If Arrington had not been able to provide the district court
with additional evidence of her qualification for the Deputy
Chief position, the district court’s grant of summary judgment
against Arrington might well have been appropriate; without
more, it would seem reasonable to us that a Fire Chief might
17 In granting summary judgment for appellees, the district court ruled that Arrington was sufficiently qualified to establish a prima facie case. Nonetheless, the court ultimately accepted appellees’ asserted nondiscriminatory reason for denying Arrington the Deputy Chief position, apparently because Arrington was unable to rebut appellees’ explanation with direct evidence that appellees’ acted with a discriminatory motive. Given that appellees’ asserted reason is the exact converse of one element of a prima facie McDonnell case of discrimination, we regret that the district court did not explain further its conclusion that Arrington was “arguably qualified” but that there was no material question of fact regarding appellees’ contention that she was not qualified.
24 choose to pass over a candidate for Deputy Chief who did not
have first-hand experience fighting fires. Arrington, however,
has presented circumstantial evidence and testimony that
could lead a reasonable jury to conclude that the appellees’
explanations mask an illegitimate, discriminatory motive.
Although the appellees maintain that the job of Deputy
Chief is a new, “operational” position, Arrington’s evidence
appears to demonstrate that Deputy Chief Hayes is in fact
performing the same tasks formerly performed by Arrington as
Assistant Chief. Shortly after his promotion, Hayes filled out a
“Position Description Questionnaire” in which he detailed his
duties as Deputy Chief and the time he spent on each:
All sections except Fire Prevention and Arson answer directly to me. As an administrative staff member I must attend various meetings both outside and inside the department. . . . [50%]
The Chief or I must approve all purchase requests. . . . We monitor activities from month to month to make sure we stay within the budgeted funds and must take
25 corrective actions if necessary to correct overages. . . . [8%]
The chief and I are responsible for the total preparation of our $28,000,000 budget. This includes proposals for new equipment or programs as well as establishing ongoing budget proposals from existing data as well as known factors that may influence expenditures. . . . [5%]
I oversee the Emergency Medical Services program of the county. . . . [20%]
I answer large or unusual fire and rescue calls on an emergency basis. Once on the scene I assume responsibility for the incident even if I don’t take command of the incident. [5%]
I am responsible for the writing of many technical papers, reports and projects for the department. . . . [10%].
From time to time I speak to various outside organizations representing the department. . . . [1%]
I am a member of various committees or organizations including the Cobb County Emergency Medical Services Council, the Excel Alumni Association, and the Georgia Firefighters Burn Foundation. [1%]
R2-26 Exh. M. Significantly, Arrington performed all of these
activities when she served as Assistant Chief. Like Deputy Chief
26 Hayes, Arrington supervised and assessed the various section
leaders within the Department, and she prepared and policed the
Department’s budgets. Like Hayes, Arrington also oversaw the
County’s EMS program; in fact, she was responsible for the
program’s creation. Moreover, Arrington, like Hayes, was on call to
take responsibility for a variety of emergency situations, and she
prepared a variety of technical papers and reports. Finally, like
Hayes, Arrington commonly represented the Department both before
the County Commission and before a variety of public and private
groups.18 Again, past and present statements by Arrington’s former
superior, former Chief Hilton, call into question appellees’
explanations for their behavior. In response to the 1992 personnel
study of the Department, for example, Hilton reported that:
18 The appellees have offered no evidence of any significant, specific, “operational” task actually performed by the Deputy Chief that Arrington is not at least arguably qualified to perform or that she has not already actually performed as de facto head of the County’s Fire Department under Chief Hilton. We also note that it is curious that appellees believed Arrington to be sufficiently qualified for the Fire Chief position to consider her through two rounds of interviews, yet found her to be so lacking in qualification for the Deputy Chief position as to be unworthy of consideration.
27 [Arrington] works jointly with me to provide the total fire and EMS service to our citizens. Nothing goes out of our building, either to our own people, interdepartment, or to the public, without her approval. She assigns work to the Colonels and makes decisions daily about every phase of our service. There has to be a coordination of daily operations and someone to keep everyone going down the same road and out of the ditches. I depend completely on her to do this and trust her to make any decision necessary in my absence to carry on. She is expected to and very often does present new programs or better ways of doing what we do. This requires research and heavy contact with other fire services organizations.
R2-26 Exh. D at 3. In the same vein, Hilton now states in his
affidavit that:
I concur that Nancy Arrington was performing the duties of managing and supervising the operations side of the Fire Department along with being responsible for the administrative aspects of the Department. Nancy Arrington was second in command of the entire Cobb County Fire Department.
R2-26 Exh. A ¶ 22 at 7. Given the striking similarity between the
actual responsibilities of current Deputy Chief Hayes and former
Assistant Chief Arrington, we have difficulty finding that reasonable
minds could not differ concerning appellees’ claims that Arrington
28 was unqualified even to be interviewed for the Deputy Chief
position.19 Thus, we conclude that a jury might reasonably infer that
Arrington was qualified for the Deputy Chief position, thereby both
establishing the final element of Arrington’s prima facie case and
significantly undermining the credibility of appellees’ asserted
nondiscriminatory explanation for their actions.20
The only question remaining, then, is whether Arrington may
proceed to trial on evidence that only undermines the credibility of
appellees’ asserted reason for not considering her for the Deputy
Chief position, without directly showing that appellees harbored an
illegal motive. As this court has repeatedly held, a Title VII plaintiff
19 Significantly, appellees make no attempt to dispute any of this evidence. Instead, appellees rely on the bald proposition that it would be absurd for a person without actual line experience fighting fires to become the second-in-command (let alone the Chief) of a fire department. Although we recognize that such an argument might ultimately persuade a jury, we must view the evidence in the light most favorable to the non-moving party, Arrington. From this perspective, we cannot ignore the substantial evidence from which a jury might reasonably infer that the appellees’ emphasis on operational experience was a pretext for gender discrimination. 20 A plaintiff may rely on the same evidence both to establish her prima facie case and to cast doubt on the defendant’s nondiscriminatory explanations. See Carter v. Three Springs Residential Treatment, No. 97-6256, Slip. Op., __ F.3d __, 1115 (11th Cir. 1998).
29 may defeat a motion for summary judgment by undermining the
credibility of a defendant’s explanation for its actions:
[P]roof that a defendant’s articulated reasons are false is not proof of intentional discrimination; it is merely evidence of intentional discrimination. However, evidence of intentional discrimination is all a plaintiff needs to defeat a motion for summary judgment. That evidence must be sufficient to create a genuine factual issue with respect to the truthfulness of the defendant’s proffered explanation.
Howard v. BP Oil Co., 32 F. 3d 520, 525 (11th Cir. 1994).21 In this
case, Arrington has produced sufficient evidence undermining
appellees’ explanation for denying her the Deputy Chief position
that a reasonable jury might infer that the appellees intentionally
discriminated against Arrington, in violation of her Title VII and
equal protection rights. Both the appellees and the district court,
however, appear to have misread our precedents as to the type of
21 We understand that there may once have been some confusion regarding our court’s precedents on this issue. See Isenbergh v. Knight-Ridder Newspaper Sales, Inc. , 97 F.3d 436 (11 th Cir. 1996) (criticizing Howard). Today, however, Howard clearly represents the law in this circuit, see Combs, 106 F.3d at 1529-35 (collecting cases), as the author of Isenbergh has subsequently acknowledged, see Evans v. McClain of Ga., Inc., 131 F. 3d 957, 964-65 (11th Cir. 1997) (per curiam).
30 proof required of a plaintiff in a discrimination case based on
circumstantial evidence.22 In ruling for the appellees, the district
court explained that “Plaintiff has not presented any evidence to
suggest that sexual discrimination had anything to do with her not
being appointed to the position of Deputy Chief. Plaintiff’s inability
to show this is fatal to her effort to avoid a ruling of summary
judgment in favor of defendants.” R3-36 at 20. Requiring such a
direct showing of discriminatory intent from Arrington, though, would
not only contradict our precedents but would also would make it
impossible for a plaintiff to prevail on any discrimination case based
solely on circumstantial evidence. See Combs, 106 F.3d at 1536-
38. Thus, we conclude that the district court has erred both in its
assessment of the facts and in its analysis of the law, and we
reverse the district court’s grant of summary judgment against
Arrington on her Deputy Chief claims.
22 Curiously, appellees make no mention in their brief of Howard, Combs, or any of our other precedents supporting Arrington’s position on this issue.
31 C. THE EQUAL PAY ACT CLAIM
To establish a prima facie case under the Equal Pay Act, an
employee must show that “an employer pays different wages to
employees of opposite sexes ‘for equal work on jobs the
performance of which requires equal skill, effort, and responsibility,
and which are performed under similar working conditions.’” Corning
Glass Works v. Brennan, 417 U.S. 188, 195, 94 S. Ct. 2223, 2228,
41 L. Ed. 2d 1 (1974); Waters v. Turner, Wood & Smith Ins. Agency,
Inc., 874 F.2d 797, 799 (11th Cir. 1989). To establish a prima facie
case, a plaintiff need
only demonstrate that the jobs at issue are substantially similar; a
plaintiff does not have to show that the skills or qualifications of the
actual male and female employees holding the positions are also
substantially equivalent. See Miranda v. B & B Cash Grocery Store,
Inc., 975 F.2d 1518, 1533 (11th Cir. 1992) (“[O]nly the skills and
qualifications actually needed to perform the jobs are considered.”).
Moreover, “[t]he prima facie case . . . focuses solely on the primary
32 duties of each job, not duties that are incidental or insubstantial,”
and, although formal job titles or descriptions may be considered,
the controlling factor in the court’s assessment of whether two jobs
are substantially equal must be actual job content. See id. Finally,
a plaintiff does not have to prove that two jobs are identical but
rather must show that the “skill, effort and responsibility required in
the performance of the jobs are substantially equal.” Id. (emphasis
added) (internal quotation omitted).23
On appeal, Arrington argues that the district court erred in
concluding that no material issue of fact existed as to whether the
Deputy and Assistant Chief positions were substantially equal.
Given our comparative analysis above, we agree with Arrington that
a jury might reasonably conclude that the Deputy and Assistant
Chief positions are “substantially equal.” While appellees
emphasize Arrington’s formal job title, Arrington points to significant
23 The Equal Pay Act also clearly applies when a plaintiff alleges an inequality between her pay and that of her successor. See Gosa v. Bryce Hosp., 780 F.2d 917, 919 (11th Cir. 1986) (per curiam).
33 evidence indicating that she exercised a wide range of duties as
“second in command” to former Chief Hilton, duties which very
closely track those actually performed by Deputy Chief Hayes.24 At
a minimum, Arrington has established a material question of fact
with regard to her Equal Pay Act claim.25 Thus, we reverse the
district court’s entry of judgment on this claim and remand it to the
district court for further proceedings.
24 We regret that appellees have chosen not to discuss the various reports and affidavits upon which Arrington relies to demonstrate the extent of her actual responsibility as Assistant Chief. Given such unquestioned evidence, appellees’ repeated references to Arrington’s formal job title and job description as Assistant Chief for Administration are unpersuasive. 25 Appellees argue for the first time on appeal that no significant disparity exists between Hayes’ salary as Deputy Chief and Arrington’s salary as Assistant Chief. Because this argument was not fairly before the district court, we decline to address it here.
34 III. CONCLUSION
The district court has committed a number of factual and legal
errors in granting summary judgment for appellees. Therefore, we
REVERSE the district court’s grant of summary judgment to
Hightower on Arrington’s § 1983 Fire Chief Claim and REMAND that
claim to the district court for further consideration consistent with this
opinion. Further, we REVERSE the district court’s grants of
summary judgment on Arrington’s Title VII and § 1983 Deputy Chief
claims, as well as on Arrington’s Equal Pay Act claim regarding her
Deputy Chief “successor,” and REMAND these claims for further
proceedings in the district court.